EXHIBIT A

(Mutual Holding Company) 

SECURITIES PURCHASE AGREEMENT 

STANDARD TERMS 
TABLE OF CONTENTS 

Page 

Article I 

Purchase; Closing 

1.1 Purchase ...................................................................................................................2 

1.2 Closing .....................................................................................................................2 

1.3 Interpretation ............................................................................................................4 

Article II 

Representations and Warranties 

2.1 Disclosure ................................................................................................................4 

2.2 Representations and Warranties of the Company ....................................................5 

Article III 

Covenants 

3.1 Commercially Reasonable Efforts .........................................................................13 

3.2 Expenses ................................................................................................................13

3.3 Ability to Issue Senior Subordinated Securities on Exercise of Warrant; Listing 

on Exchange ...........................................................................................................13 

3.4 Certain Notifications Until Closing .......................................................................14 

3.5 Access, Information and Confidentiality ...............................................................14 

3.6 Capital Covenant ....................................................................................................15 

Article IV 

Remedies of the Holders upon Event of Default 

4.1 Event of Default .....................................................................................................15 

4.2 Acceleration and other Remedies ..........................................................................17 

4.3 Suits for Enforcement ............................................................................................18 

4.4 Holders May File Proofs of Claim .........................................................................18 

Article V 

Additional Agreements 

5.1 Purchase for Investment .........................................................................................19 

5.2 Form of Purchased Security and Warrant Security ................................................19 

5.3 Execution of Senior Notes .....................................................................................19 

5.4 Payment of Principal and Interest ..........................................................................19 

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5.5 Computation of Interest .........................................................................................20 

5.6 Extension of Interest Payment Period ....................................................................21 

5.7 Legends ..................................................................................................................21 

5.8 Certain Transactions ..............................................................................................23 

5.9 Transfer of Senior Notes; Restrictions on Exercise of the Warrant .......................23 

5.10 Replacement of Senior Notes .................................................................................24 

5.11 Cancellation ...........................................................................................................24

5.12 Registration Rights.................................................................................................25 

5.13 Depository Senior Notes ........................................................................................36 

5.14 Restriction on Dividends and Repurchases ............................................................36 

5.15 Redemption ............................................................................................................37 

5.16 Executive Compensation, Transparency and Monitoring ......................................39 

5.17 Related Party Transactions ....................................................................................39 

5.18 Bank and Thrift Holding Company Status.............................................................39 

5.19 Predominantly Financial ........................................................................................40 

5.20 Voting Rights .........................................................................................................40 

Article VI 

Subordination of the Senior Notes 

6.1 Agreement to Subordinate .....................................................................................42 

6.2 Default on Senior Indebtedness .............................................................................43 

6.3 Liquidation; Dissolution; Bankruptcy....................................................................44 

6.4 Subrogation ............................................................................................................45 

6.5 Notice by the Company .........................................................................................45 

6.6 Subordination May Not Be Impaired .....................................................................46 

Article VII 

Miscellaneous 

7.1 Termination ............................................................................................................46 

7.2 Survival of Representations and Warranties ..........................................................47 

7.3 Amendment ............................................................................................................47 

7.4 Waiver of Conditions .............................................................................................47 

7.5 GOVERNING LAW: SUBMISSION TO JURISDICTION, ETC. ................48 

7.6 Notices ...................................................................................................................48 

7.7 Definitions..............................................................................................................48

7.8 Assignment ............................................................................................................49 

7.9 Severability ............................................................................................................49

7.10 No Third Party Beneficiaries .................................................................................49 

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LIST OF ANNEXES 

ANNEX A: FORM OF WAIVER 

ANNEX B: FORM OF OPINION 

ANNEX C: FORM OF SENIOR SUBORDINATED SECURITIES 

ANNEX D: FORM OF WARRANT SENIOR SUBORDINATED 

SECURITIES 

ANNEX E: FORM OF WARRANT 

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INDEX OF DEFINED TERMS

Term 

Location of 

Definition 

Additional Dividend 5.14(a) 

Affiliate 7.7(b) 

Agreement Recitals 

Appropriate Federal Banking Agency 2.2(s) 

Bank Holding Company 5.18 

Bankruptcy Exceptions 2.2(c) 

Benefit Plans 1.2(d)(iv) 

Board of Directors 2.2(i)(ii) 

Business Combination 7.8 

business day 1.3 

Capitalization Date 2.2(b) 

cash, property or securities 6.3(c) 

Charter 1.2(d)(iii) 

Closing 1.2(a) 

Closing Date 1.2(a) 

Code 2.1(n) 

Company Recitals 

Company Financial Statements 2.2(h) 

Company Material Adverse Effect 2.1(b) 

Company Reports 2.2(i)(i) 

Company Subsidiary; Company Subsidiaries 2.2(a) 

Compensation Regulations 5.16 

control; controlled by; under common control with 7.7(b) 

Controlled Group 2.2(n) 

CPP Recitals 

Defaulted Interest 5.5(c) 

Deferred Interest 5.6 

Disclosure Schedule 2.1(a) 

EESA 1.2(d)(iv) 

ERISA 2.2(n) 

Event of Default 4.1 

Exchange Act 5.9(g) 

Extension Period 5.6 

Federal Reserve 5.18 

GAAP 2.1(b) 

Governmental Entities 1.2(c) 

Holder Recitals 

Holders’ Counsel 5.12(l)(ii) 

Indebtedness 6.1(b) 

Indemnitee 5.12(h)(i) 

Indenture Act 5.1 

Information 3.5(c) 

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Location of 

Term Definition 

Interest Payment Date Face of Senior Note 

Interest Period 5.5(b) 

Interest Rate Face of Senior Note 

Investor Recitals 

Knowledge of the Company; Company’s knowledge 7.7(c) 

Letter Agreement Recitals 

Major Depository Institution Subsidiary 4.1(f)(iii) 

Majority Holders 4.1(e) 

Maturity Date Face of Senior Note 

Members 2.2(b) 

Mutual Capital Interests 2.2(b) 

Mutual Interest Holders 2.2(e)(i) 

Obligor 4.4 

Pending Underwritten Offering 5.12(m) 

Permitted Repurchases 5.14(c) 

Piggyback Registration 5.12(b)(iv) 

Plan 2.2(n) 

Previously Disclosed 2.1(c) 

Proprietary Rights 2.2(u) 

prospectus 5.12(p) 

Purchase Recitals 

Purchase Price 1.1 

Purchased Securities Recitals 

Redemption Date 5.15(a) 

register; registered; registration 5.12(l)(iii) 

Registrable Securities 5.12(l)(iv) 

Registration Expenses 5.12(l)(v) 

registration statement 5.12(p) 

Regular Record Date Face of Senior Note 

Regulatory Agreement 2.2(s) 

Rule 144; Rule 144A; Rule 159A; Rule 405; Rule 415 5.12(l)(vi) 

Savings and Loan Holding Company 5.18 

Schedules Recitals 

SEC 2.2(k) 

Securities Act 2.2(a) 

Selling Expenses 5.12(l)(vii) 

Senior Executive Officers 5.16 

Senior Indebtedness 6.1(b) 

Senior Note Register 5.9(a) 

Senior Notes Recitals 

Senior Note Directors 5.20(b) 

Senior Subordinated Securities Recitals 

Shelf Registration Statement 5.12(b)(ii) 

Significant Subsidiary 2.2(b) 

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Term 

Location of 

Definition 

Signing Date 2.1(b) 

Special Registration 5.12(j) 

subsidiary 7.7(a) 

Tax; Taxes 2.2(o) 

Third Parties 5.14(a) 

Transaction Documents Recitals 

Transfer 5.9(g) 

Trust Preferred Securities 2.2(b) 

underwriting agreement 5.12(p) 

Warrant Register 5.9(b) 

Warrant Securities Recitals 
SECURITIES PURCHASE AGREEMENT – STANDARD TERMS 

Recitals: 

WHEREAS, the United States Department of the Treasury (the “Investor”) may from 

time to time agree to purchase senior subordinated debentures and warrants from eligible 

financial institutions which elect to participate in the Troubled Asset Relief Program Capital 

Purchase Program (“CPP”); 

WHEREAS, an eligible financial institution electing to participate in the CPP and issue 

securities to the Investor (referred to herein as the “Company”) shall enter into a letter agreement 

(the “Letter Agreement”) with the Investor which incorporates this Securities Purchase 

Agreement – Standard Terms; 

WHEREAS, the Company agrees to expand the flow of credit to U.S. consumers and 

businesses on competitive terms to promote the sustained growth and vitality of the U.S. 

economy; 

WHEREAS, the Company agrees to work diligently, under existing programs, to modify 

the terms of residential mortgages as appropriate to strengthen the health of the U.S. housing 

market; 

WHEREAS, the Company intends to issue in a private placement senior subordinated 

debentures (“Senior Subordinated Securities”), in an amount as set forth on Schedule A to the 

Letter Agreement and a warrant to purchase the number of additional Senior Subordinated 

Securities (“Warrant Securities”) set forth on Schedule A to the Letter Agreement (the 

“Warrant” and, together with the Senior Subordinated Securities, the “Purchased Securities”) 

and the Investor intends to purchase (the “Purchase”) from the Company the Purchased 

Securities; and 

WHEREAS, the Purchase will be governed by this Securities Purchase Agreement – 

Standard Terms and the Letter Agreement, including the schedules thereto (the “Schedules”), 

specifying additional terms of the Purchase. This Securities Purchase Agreement – Standard 

Terms (including the Annexes hereto) and the Letter Agreement (including the Schedules 

thereto) are together referred to as this “Agreement”. All references in this Securities Purchase 

Agreement – Standard Terms to “Schedules” are to the Schedules attached to the Letter 

Agreement. This Agreement, the Senior Subordinated Securities, the Warrant and the Warrant 

Securities, and all other instruments, documents and agreements executed by or on behalf of the 

Company and delivered concurrently herewith or at any time hereafter to or for the benefit of any 

holder of any Purchased Security in connection with the transactions contemplated by this 

Agreement, all as amended, supplemented or modified from time to time shall be referred to as 

the “Transaction Documents.” The Senior Subordinated Securities and the Warrant Securities 

shall be referred to as the “Senior Notes” and a holder of the Senior Notes shall be referred to as 

the “Holder”. 

NOW, THEREFORE, in consideration of the premises, and of the representations, 

warranties, covenants and agreements set forth herein, the parties agree as follows: 

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Article I

Purchase; Closing 

1.1 Purchase. On the terms and subject to the conditions set forth in this Agreement, 

the Company agrees to sell to the Investor, and the Investor agrees to purchase from the 

Company, at the Closing Date (as hereinafter defined), the Senior Subordinated Securities in the 

form of note attached hereto as Annex C and the Warrant in the form attached hereto as 

Annex E, appropriately completed in conformity herewith and duly and validly issued, 

authorized and executed by the Company, in the aggregate principal amount set forth on 

Schedule A for the purchase price set forth on Schedule A (the “Purchase Price”). The Senior 

Subordinated Securities, including the principal and interest, shall be unsecured and subordinate 

and junior in right of payment to Senior Indebtedness to the extent set forth in Article VI hereof. 

1.2 Closing. 

(a) On the terms and subject to the conditions set forth in this Agreement, the closing 

of the Purchase (the “Closing”) will take place at the location specified in Schedule A, at the 

time and on the date set forth in Schedule A or as soon as practicable thereafter, or at such other 

place, time and date as shall be agreed between the Company and the Investor. The time and 

date on which the Closing occurs is referred to in this Agreement as the “Closing Date”. 

(b) Subject to the fulfillment or waiver of the conditions to the Closing in this Section 

1.2, at the Closing the Company will deliver the Senior Subordinated Securities and the Warrant, 

in each case as evidenced by one or more debentures dated the Closing Date and bearing 

appropriate legends as hereinafter provided for, against payment by the Investor of the Purchase 

Price by wire transfer of immediately available United States funds to such bank account 

designated by the Company on Schedule A. 

(c) The respective obligations of each of the Investor and the Company to 

consummate the Purchase are subject to the fulfillment (or written waiver by the Investor and the 

Company, as applicable) prior to the Closing of the conditions that (i) any approvals or 

authorizations of all United States and other governmental, regulatory or judicial authorities 

(collectively, “Governmental Entities”) required for the consummation of the Purchase shall 

have been obtained or made in form and substance reasonably satisfactory to each party and shall 

be in full force and effect and all waiting periods required by United States and other applicable 

law, if any, shall have expired and (ii) no provision of any applicable United States or other law 

and no judgment, injunction, order or decree of any Governmental Entity shall prohibit the 

purchase and sale of the Purchased Securities as contemplated by this Agreement. 

(d) The obligation of the Investor to consummate the Purchase is also subject to the 

fulfillment (or written waiver by the Investor) at or prior to the Closing of each of the following 

conditions: 

(i) (A) the representations and warranties of the Company set forth in (x) 

Section 2.2(g) of this Agreement shall be true and correct in all respects as though made 

on and as of the Closing Date, (y) Sections 2.2(a) through (f) shall be true and correct in 

all material respects as though made on and as of the Closing Date (other than 

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representations and warranties that by their terms speak as of another date, which 

representations and warranties shall be true and correct in all material respects as of such 

other date) and (z) Sections 2.2(h) through (w) (disregarding all qualifications or 

limitations set forth in such representations and warranties as to “materiality”, “Company 

Material Adverse Effect” and words of similar import) shall be true and correct as though 

made on and as of the Closing Date (other than representations and warranties that by 

their terms speak as of another date, which representations and warranties shall be true 

and correct as of such other date), except to the extent that the failure of such 

representations and warranties referred to in this Section 1.2(d)(i)(A)(z) to be so true and 

correct, individually or in the aggregate, does not have and would not reasonably be 

expected to have a Company Material Adverse Effect and (B) the Company shall have 

performed in all material respects all obligations required to be performed by it under this 

Agreement at or prior to the Closing; 

(ii) the Investor shall have received a certificate signed on behalf of the 

Company by a Senior Executive Officer certifying to the effect that the conditions set 

forth in Section 1.2(d)(i) have been satisfied; 

(iii) the Company shall have provided, as filed with the Secretary of State of its 

jurisdiction of organization or other applicable Governmental Entity, its certificate or 

articles of incorporation, articles of association, or similar organizational document 

(“Charter”) and its bylaws as in effect on the Closing Date; 

(iv) (A) the Company shall have effected such changes to its compensation, 

bonus, incentive and other benefit plans, arrangements and agreements (including golden 

parachute, severance and employment agreements) (collectively, “Benefit Plans”) with 

respect to its Senior Executive Officers (and to the extent necessary for such changes to 

be legally enforceable, each of its Senior Executive Officers shall have duly consented in 

writing to such changes), as may be necessary, during the period that the Investor owns 

any debt or equity securities (including the Senior Subordinated Securities) of the 

Company acquired pursuant to this Agreement or the Warrant, in order to comply with 

Section 111(b) of the Emergency Economic Stabilization Act of 2008 (“EESA”), as 

amended, and as implemented by guidance or regulation thereunder that has been issued 

and is in effect as of the Closing Date, and (B) the Investor shall have received a 

certificate signed on behalf of the Company by a Senior Executive Officer certifying to 

the effect that the condition set forth in Section 1.2(d)(iv)(A) has been satisfied; 

(v) each of the Company’s Senior Executive Officers shall have delivered to 

the Investor a written waiver in the form attached hereto as Annex A releasing the 

Investor from any claims that such Senior Executive Officers may otherwise have as a 

result of the issuance, on or prior to the Closing Date, of any regulations which require 

the modification of, and the agreement of the Company hereunder to modify, the terms of 

any Benefit Plans with respect to its Senior Executive Officers to eliminate any 

provisions of such Benefit Plans that would not be in compliance with the requirements 

of Section 111(b) of the EESA, as amended, and as implemented by guidance or 

regulation thereunder that has been issued and is in effect as of the Closing Date; 

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(vi) the Company shall have delivered to the Investor a written opinion from 

counsel to the Company (which may be internal counsel), addressed to the Investor and 

dated as of the Closing Date, in substantially the form attached hereto as Annex B; 

(vii) the Company shall have delivered physical certificated debentures in 

proper form evidencing the Senior Notes to Investor or its designee(s) in the form 

attached hereto as Annex C and Annex D; and 

(viii) the Company shall have duly executed the Warrant in substantially the 

form attached hereto as Annex E and delivered such executed Warrant to the Investor or 

its designee(s). 

1.3 Interpretation. When a reference is made in this Agreement to “Recitals,” 

“Articles,” “Sections,” or “Annexes” such reference shall be to a Recital, Article or Section of, 

or Annex to, this Securities Purchase Agreement – Standard Terms, and a reference to 

“Schedules” shall be to a Schedule to the Letter Agreement, in each case, unless otherwise 

indicated. The terms defined in the singular have a comparable meaning when used in the plural, 

and vice versa. References to “herein”, “hereof”, “hereunder” and the like refer to this 

Agreement as a whole and not to any particular section or provision, unless the context requires 

otherwise. The table of contents and headings contained in this Agreement are for reference 

purposes only and are not part of this Agreement. Whenever the words “include,” “includes” or 

“including” are used in this Agreement, they shall be deemed followed by the words “without 

limitation.” No rule of construction against the draftsperson shall be applied in connection with 

the interpretation or enforcement of this Agreement, as this Agreement is the product of 

negotiation between sophisticated parties advised by counsel. All references to “$” or “dollars” 

mean the lawful currency of the United States of America. Except as expressly stated in this 

Agreement, all references to any statute, rule or regulation are to the statute, rule or regulation as 

amended, modified, supplemented or replaced from time to time (and, in the case of statutes, 

include any rules and regulations promulgated under the statute) and to any section of any 

statute, rule or regulation include any successor to the section. References to a “business day” 

shall mean any day except Saturday, Sunday and any day on which banking institutions in the 

State of New York generally are authorized or required by law or other governmental actions to 

close. 

Article II 

Representations and Warranties 

2.1 Disclosure. 

(a) On or prior to the Signing Date, the Company shall have delivered to the Investor 

a schedule (“Disclosure Schedule”) setting forth, among other things, items the disclosure of 

which is necessary or appropriate either in response to an express disclosure requirement 

contained in a provision hereof or as an exception to one or more representations or warranties 

contained in Section 2.2. 

(b) “Company Material Adverse Effect” means a material adverse effect on (i) the 

business, results of operation or financial condition of the Company and any of its subsidiaries 

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taken as a whole; provided, however, that Company Material Adverse Effect shall not be deemed 

to include the effects of (A) changes after the date of the Letter Agreement (the “Signing Date”) 

in general business, economic or market conditions (including changes generally in prevailing 

interest rates, credit availability and liquidity, currency exchange rates and price levels or trading 

volumes in the United States or foreign securities or credit markets), or any outbreak or 

escalation of hostilities, declared or undeclared acts of war or terrorism, in each case generally 

affecting the industries in which the Company and any subsidiaries operate, (B) changes or 

proposed changes after the Signing Date in generally accepted accounting principles in the 

United States (“GAAP”) or regulatory accounting requirements, or authoritative interpretations 

thereof, (C) changes or proposed changes after the Signing Date in securities, banking and other 

laws of general applicability or related policies or interpretations of Governmental Entities, or 

(D) changes in the CPP (in the case of each of these clauses (A), (B), (C), and (D), other than 

changes or occurrences to the extent that such changes or occurrences have or would reasonably 

be expected to have a materially disproportionate adverse effect on the Company and its 

consolidated subsidiaries taken as a whole relative to comparable U.S. banking or financial 

services organizations); or (ii) the ability of the Company to consummate the Purchase and other 

transactions contemplated by this Agreement and the Warrant and perform its obligations 

hereunder or thereunder on a timely basis. 

(c) “Previously Disclosed” means information set forth on the Disclosure Schedule, 

provided, however, that disclosure in any section of such Disclosure Schedule shall apply only to 

the indicated section of this Agreement except to the extent that it is reasonably apparent from 

the face of such disclosure that such disclosure is relevant to another section of this Agreement. 

2.2 Representations and Warranties of the Company. Except as Previously Disclosed, 

the Company represents and warrants to the Investor that as of the Signing Date and as of the 

Closing Date (or such other date specified herein): 

(a) Organization, Authority and Significant Subsidiaries. The Company has been 

duly formed and is validly existing and in good standing as an organization mutual in form of the 

type described in Schedule A under the laws of its jurisdiction of organization, with the 

necessary power and authority to own its properties and conduct its business in all material 

respects as currently conducted, and has not, individually or in the aggregate, had and would not 

reasonably be expected to have a Company Material Adverse Effect, has been duly qualified as a 

foreign entity for the transaction of business and is in good standing under the laws of each other 

jurisdiction in which it owns or leases properties or conducts any business so as to require such 

qualification; each subsidiary of the Company (each a “Company Subsidiary” and, collectively, 

the “Company Subsidiaries”) that would be considered a “significant subsidiary” within the 

meaning of Rule 1-02(w) of Regulation S-X under the Securities Act of 1933 (the “Securities 

Act”) (each such Company Subsidiary, a “Significant Subsidiary”), has been duly formed and is 

validly existing in good standing under the laws of its jurisdiction of organization. No Company 

Subsidiary is a Bank Holding Company or a Savings and Loan Holding Company. The Charter 

and bylaws of the Company, copies of which have been provided to the Investor prior to the 

Signing Date, are true, complete and correct copies of such documents as in full force and effect 

as of the Signing Date. 

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(b) Capitalization. The authorized and outstanding mutual capital certificates, other 

capital instruments authorized by law, non-withdrawable accounts and other mutual interests 

issued by the Company, excluding the contract rights of Members (collectively, the “Mutual 

Capital Interests”), any authorized or outstanding securities convertible into, or exercisable or 

exchangeable for, Mutual Capital Interests and any authorized or outstanding trust preferred 

securities issued by the Company or any Affiliate or subsidiary of the Company (“Trust 

Preferred Securities”), as of the most recent fiscal month-end preceding the Signing Date (the 

“Capitalization Date”) are set forth on Schedule B. The outstanding Mutual Capital Interests in 

the Company have been duly authorized and are validly issued and outstanding, fully paid and 

nonassessable, and subject to no preemptive rights (and were not issued in violation of any 

preemptive rights). As of the Signing Date, the Company does not have outstanding any 

securities or other obligations providing the holder the right to acquire its Mutual Capital 

Interests that are not reserved for issuance as specified on Schedule B, and the Company has not 

made any other commitment to authorize, issue or sell any Mutual Capital Interests that is not 

specified on Schedule B. Since the Capitalization Date, the Company has not issued any Mutual 

Capital Interests, other than (i) Mutual Capital Interests issued upon the exercise of options or 

delivered under other equity-based awards or other convertible securities or warrants which were 

issued and outstanding on the Capitalization Date and disclosed on Schedule B and (ii) as 

disclosed on Schedule B. Each holder of 5% or more of the Mutual Capital Interests in the 

Company and such holder’s primary address are set forth on Schedule B. “Members” means 

persons having ownership rights in the Company by virtue of their ownership of a deposit at a 

subsidiary of the Company or their ownership of an insurance policy of the Company. The 

amount of the (A) Additional Dividends and (B) total dividends declared and paid in each case 

for the year ended December 31, 2008 are set forth on Schedule B. 

(c) Senior Subordinated Securities. This Agreement has been duly authorized, 

executed and delivered and is, and the Senior Notes, when executed and delivered, will be, the 

legal, valid and binding obligations of the Company, each enforceable in accordance with their 

respective terms, except to the extent that the enforceability thereof may be limited by applicable 

bankruptcy, receivership, conservatorship, insolvency, reorganization, moratorium or similar 

laws affecting the enforcement of creditors’ rights generally and general equitable principles, 

regardless of whether such enforceability is considered in a proceeding at law or in equity 

(“Bankruptcy Exceptions”). 

(d) The Warrant and Warrant Securities. The Warrant has been duly authorized and, 

when executed and delivered as contemplated hereby, will be the legal, valid and binding 

obligation of the Company enforceable against the Company in accordance with its terms, 

subject to Bankruptcy Exceptions. The Warrant Securities, when executed and delivered, will 

have the same priority as the Senior Subordinated Securities. 

(e) Authorization, Enforceability. 

(i) The Company has the power and authority to execute and deliver this 

Agreement and the Warrant and to carry out its obligations hereunder and thereunder 

(which includes the issuance of the Senior Notes). The execution, delivery and 

performance by the Company of this Agreement and the Warrant and the consummation 

of the transactions contemplated hereby and thereby have been duly authorized by all 

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necessary action on the part of the Company and its Members and other holders of 

Mutual Capital Interests (collectively, “Mutual Interest Holders”), and no further 

approval or authorization is required on the part of the Company. 

(ii) The execution, delivery and performance by the Company of this 

Agreement and the Warrant and the consummation of the transactions contemplated 

hereby and thereby and compliance by the Company with the provisions hereof and 

thereof, will not (A) violate, conflict with, or result in a breach of any provision of, or 

constitute a default (or an event which, with notice or lapse of time or both, would 

constitute a default) under, or result in the termination of, or accelerate the performance 

required by, or result in a right of termination or acceleration of, or result in the creation 

of, any lien, security interest, charge or encumbrance upon any of the properties or assets 

of the Company or any Company Subsidiary under any of the terms, conditions or 

provisions of (i) its organizational documents or (ii) any note, debenture, bond, mortgage, 

indenture, deed of trust, license, lease, agreement or other instrument or obligation to 

which the Company or any Company Subsidiary is a party or by which it or any 

Company Subsidiary may be bound, or to which the Company or any Company 

Subsidiary or any of the properties or assets of the Company or any Company Subsidiary 

may be subject, or (B) subject to compliance with the statutes and regulations referred to 

in the next paragraph, violate any statute, rule or regulation or any judgment, ruling, 

order, writ, injunction or decree applicable to the Company or any Company Subsidiary 

or any of their respective properties or assets except, in the case of clauses (A)(ii) and 

(B), for those occurrences that, individually or in the aggregate, have not had and would 

not reasonably be expected to have a Company Material Adverse Effect. 

(iii) Other than the filings with the applicable Governmental Entity, such 

filings and approvals as are required to be made or obtained under any state “blue sky” 

laws, if applicable, and such as have been made or obtained, no notice to, filing with, 

exemption or review by, or authorization, consent or approval of, any Governmental 

Entity is required to be made or obtained by the Company in connection with the 

consummation by the Company of the Purchase except for any such notices, filings, 

exemptions, reviews, authorizations, consents and approvals the failure of which to make 

or obtain would not, individually or in the aggregate, reasonably be expected to have a 

Company Material Adverse Effect. 

(f) Charter; Bylaws; Agreements Among Mutual Interest Holders. The Company has 

taken all necessary action to ensure that the transactions contemplated by this Agreement and the 

Warrant and the consummation of the transactions contemplated hereby and thereby, including 

the exercise of the Warrant in accordance with its terms, are not prohibited by the Company’s 

Charter and bylaws or other organizational documents, or any operating agreement or agreement 

among the Mutual Interest Holders of the Company, and has obtained all consents required by its 

Charter, bylaws or other organizational documents or by such operating agreement or 

agreements among Mutual Interest Holders of the Company, or has amended the Charter and 

bylaws, as is necessary, in order to consummate the transactions contemplated by this Agreement 

and the Warrant. 

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(g) No Company Material Adverse Effect. Since the last day of the last completed 

fiscal period for which financial statements are included in the Company Financial Statements 

(as defined below), no fact, circumstance, event, change, occurrence, condition or development 

has occurred that, individually or in the aggregate, has had or would reasonably be expected to 

have a Company Material Adverse Effect. 

(h) Company Financial Statements. The Company has Previously Disclosed each of 

the consolidated financial statements of the Company and its consolidated subsidiaries for each 

of the last three (3) completed fiscal years of the Company (which shall be audited to the extent 

audited financial statements are available prior to the Signing Date) and each completed 

quarterly period since the last completed fiscal year (collectively the “Company Financial 

Statements”). The Company Financial Statements present fairly in all material respects the 

consolidated financial position of the Company and its consolidated subsidiaries as of the dates 

indicated therein and the consolidated results of their operations for the periods specified therein; 

and except as stated therein, such financial statements (A) were prepared in conformity with 

GAAP applied on a consistent basis (except as may be noted therein) and (B) have been prepared 

from, and are in accordance with, the books and records of the Company and the Company 

Subsidiaries. 

(i) Reports. 

(i) Since December 31, 2006, the Company and each Company Subsidiary 

has filed all reports, registrations, documents, filings, statements and submissions, 

together with any amendments thereto, that it was required to file with any Governmental 

Entity (the foregoing, collectively, the “Company Reports”) and has paid all fees and 

assessments due and payable in connection therewith, except, in each case, as would not, 

individually or in the aggregate, reasonably be expected to have a Company Material 

Adverse Effect. As of their respective dates of filing, the Company Reports complied in 

all material respects with all statutes and applicable rules and regulations of the 

applicable Governmental Entities. 

(ii) The records, systems, controls, data and information of the Company and 

the Company Subsidiaries are recorded, stored, maintained and operated under means 

(including any electronic, mechanical or photographic process, whether computerized or 

not) that are under the exclusive ownership and direct control of the Company or the 

Company Subsidiaries or their accountants (including all means of access thereto and 

therefrom), except for any non-exclusive ownership and non-direct control that would not 

reasonably be expected to have a material adverse effect on the system of internal 

accounting controls described below in this Section 2.2(i)(ii). The Company (A) has 

implemented and maintains adequate disclosure controls and procedures to ensure that 

material information relating to the Company, including the consolidated Company 

Subsidiaries, is made known to the chief executive officer and the chief financial officer 

of the Company by others within those entities, and (B) has disclosed, based on its most 

recent evaluation prior to the Signing Date, to the Company’s outside auditors and the 

audit committee of the Board of Directors of the Company (the “Board of Directors”) 

(x) any significant deficiencies and material weaknesses in the design or operation of 

internal controls that are reasonably likely to adversely affect the Company’s ability to 

- 8 - 
record, process, summarize and report financial information and (y) any fraud, whether or 

not material, that involves management or other employees who have a significant role in 

the Company’s internal controls over financial reporting. 

(j) No Undisclosed Liabilities. Neither the Company nor any of the Company 

Subsidiaries has any liabilities or obligations of any nature (absolute, accrued, contingent or 

otherwise) which are not properly reflected or reserved against in the Company Financial 

Statements to the extent required to be so reflected or reserved against in accordance with 

GAAP, except for (A) liabilities that have arisen since the last fiscal year end in the ordinary and 

usual course of business and consistent with past practice and (B) liabilities that, individually or 

in the aggregate, have not had and would not reasonably be expected to have a Company 

Material Adverse Effect. 

(k) Offering of Securities. Neither the Company nor any person acting on its behalf 

has taken any action (including any offering of any securities of the Company under 

circumstances which would require the integration of such offering with the offering of any of 

the Purchased Securities or the Warrant Securities under the Securities Act, and the rules and 

regulations of the Securities and Exchange Commission (the “SEC”) promulgated thereunder), 

which might subject the offering, issuance or sale of any of the Purchased Securities or the 

Warrant Securities to Investor pursuant to this Agreement to the registration requirements of the 

Securities Act. 

(l) Litigation and Other Proceedings. Except (i) as set forth on Schedule C or (ii) as 

would not, individually or in the aggregate, reasonably be expected to have a Company Material 

Adverse Effect, there is no (A) pending or, to the knowledge of the Company, threatened, claim, 

action, suit, investigation or proceeding, against the Company or any Company Subsidiary or to 

which any of their assets are subject nor is the Company or any Company Subsidiary subject to 

any order, judgment or decree or (B) unresolved violation, criticism or exception by any 

Governmental Entity with respect to any report or relating to any examinations or inspections of 

the Company or any Company Subsidiaries. 

(m) Compliance with Laws. Except as would not, individually or in the aggregate, 

reasonably be expected to have a Company Material Adverse Effect, the Company and the 

Company Subsidiaries have all permits, licenses, franchises, authorizations, orders and approvals 

of, and have made all filings, applications and registrations with, Governmental Entities that are 

required in order to permit them to own or lease their properties and assets and to carry on their 

business as presently conducted and that are material to the business of the Company or such 

Company Subsidiary. Except as set forth on Schedule D, the Company and the Company 

Subsidiaries have complied in all respects and are not in default or violation of, and none of them 

is, to the knowledge of the Company, under investigation with respect to or, to the knowledge of 

the Company, have been threatened to be charged with or given notice of any violation of, any 

applicable domestic (federal, state or local) or foreign law, statute, ordinance, license, rule, 

regulation, policy or guideline, order, demand, writ, injunction, decree or judgment of any 

Governmental Entity, other than such noncompliance, defaults or violations that would not, 

individually or in the aggregate, reasonably be expected to have a Company Material Adverse 

Effect. Except for statutory or regulatory restrictions of general application or as set forth on 

Schedule D, no Governmental Entity has placed any restriction on the business or properties of 

- 9 - 
the Company or any Company Subsidiary that would, individually or in the aggregate, 

reasonably be expected to have a Company Material Adverse Effect. 

(n) Employee Benefit Matters. Except as would not reasonably be expected to have, 

either individually or in the aggregate, a Company Material Adverse Effect: (A) each “employee 

benefit plan” (within the meaning of Section 3(3) of the Employee Retirement Income Security 

Act of 1974, as amended (“ERISA”)) providing benefits to any current or former employee, 

officer or director of the Company or any member of its “Controlled Group” (defined as any 

organization which is a member of a controlled group of corporations within the meaning of 

Section 414 of the Internal Revenue Code of 1986, as amended (the “Code”)) that is sponsored, 

maintained or contributed to by the Company or any member of its Controlled Group and for 

which the Company or any member of its Controlled Group would have any liability, whether 

actual or contingent (each, a “Plan”) has been maintained in compliance with its terms and with 

the requirements of all applicable statutes, rules and regulations, including ERISA and the Code; 

(B) with respect to each Plan subject to Title IV of ERISA (including, for purposes of this clause 

(B), any plan subject to Title IV of ERISA that the Company or any member of its Controlled 

Group previously maintained or contributed to in the six years prior to the Signing Date), (1) no 

“reportable event” (within the meaning of Section 4043(c) of ERISA), other than a reportable 

event for which the notice period referred to in Section 4043(c) of ERISA has been waived, has 

occurred in the three years prior to the Signing Date or is reasonably expected to occur, (2) no 

“accumulated funding deficiency” (within the meaning of Section 302 of ERISA or Section 412 

of the Code), whether or not waived, has occurred in the three years prior to the Signing Date or 

is reasonably expected to occur, (3) the fair market value of the assets under each Plan exceeds 

the present value of all benefits accrued under such Plan (determined based on the assumptions 

used to fund such Plan) and (4) neither the Company nor any member of its Controlled Group 

has incurred in the six years prior to the Signing Date, or reasonably expects to incur, any 

liability under Title IV of ERISA (other than contributions to the Plan or premiums to the PBGC 

in the ordinary course and without default) in respect of a Plan (including any Plan that is a 

“multiemployer plan”, within the meaning of Section 4001(c)(3) of ERISA); and (C) each Plan 

that is intended to be qualified under Section 401(a) of the Code has received a favorable 

determination letter from the Internal Revenue Service with respect to its qualified status that has 

not been revoked, or such a determination letter has been timely applied for but not received by 

the Signing Date, and nothing has occurred, whether by action or by failure to act, which could 

reasonably be expected to cause the loss, revocation or denial of such qualified status or 

favorable determination letter. 

(o) Taxes. Except as would not, individually or in the aggregate, reasonably be 

expected to have a Company Material Adverse Effect, (i) the Company and the Company 

Subsidiaries have filed all federal, state, local and foreign Tax returns required to be filed 

through the Signing Date, subject to permitted extensions, and have paid all Taxes due and 

owing (whether or not shown on any Tax Return), and (ii) no Tax deficiency has been 

determined adversely to the Company or any of the Company Subsidiaries, nor does the 

Company have any knowledge of any Tax deficiencies. “Tax” or “Taxes” means any federal, 

state, local or foreign income, gross receipts, property, sales, use, license, excise, franchise, 

employment, payroll, withholding, alternative or add on minimum, ad valorem, transfer or excise 

tax, or any other tax, custom, duty, governmental fee or other like assessment or charge of any 

kind whatsoever, together with any interest or penalty, imposed by any Governmental Entity. 

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(p) Properties and Leases. Except as would not, individually or in the aggregate, 

reasonably be expected to have a Company Material Adverse Effect, the Company and the 

Company Subsidiaries have good and marketable title to all real properties and all other 

properties and assets owned by them, in each case free from liens, encumbrances, claims and 

defects that would affect the value thereof or interfere with the use made or to be made thereof 

by them. Except as would not, individually or in the aggregate, reasonably be expected to have a 

Company Material Adverse Effect, the Company and the Company Subsidiaries hold all leased 

real or personal property under valid and enforceable leases with no exceptions that would 

interfere with the use made or to be made thereof by them. 

(q) Environmental Liability. Except as would not, individually or in the aggregate, 

reasonably be expected to have a Company Material Adverse Effect: 

(i) there is no legal, administrative, or other proceeding, claim or action of 

any nature seeking to impose, or that would reasonably be expected to result in the 

imposition of, on the Company or any Company Subsidiary, any liability relating to the 

release of hazardous substances as defined under any local, state or federal environmental 

statute, regulation or ordinance, including the Comprehensive Environmental Response, 

Compensation and Liability Act of 1980, pending or, to the Company’s knowledge, 

threatened against the Company or any Company Subsidiary; 

(ii) to the Company’s knowledge, there is no reasonable basis for any such 

proceeding, claim or action; and 

(iii) neither the Company nor any Company Subsidiary is subject to any 

agreement, order, judgment or decree by or with any court, Governmental Entity or third 

party imposing any such environmental liability. 

(r) Risk Management Instruments. Except as would not, individually or in the 

aggregate, reasonably be expected to have a Company Material Adverse Effect, all derivative 

instruments, including, swaps, caps, floors and option agreements, whether entered into for the 

Company’s own account, or for the account of one or more of the Company Subsidiaries or its or 

their customers, were entered into (i) only in the ordinary course of business, (ii) in accordance 

with prudent practices and in all material respects in compliance with all applicable laws, rules, 

regulations and regulatory policies and (iii) with counterparties believed to be financially 

responsible at the time; and each of such instruments constitutes the valid and legally binding 

obligation of the Company or one of the Company Subsidiaries, enforceable in accordance with 

its terms, except as may be limited by the Bankruptcy Exceptions. Neither the Company or the 

Company Subsidiaries, nor, to the knowledge of the Company, any other party thereto, is in 

breach of any of its obligations under any such agreement or arrangement other than such 

breaches that would not, individually or in the aggregate, reasonably be expected to have a 

Company Material Adverse Effect. 

(s) Agreements with Regulatory Agencies. Except as set forth on Schedule E, neither 

the Company nor any Company Subsidiary is subject to any material cease-and-desist or other 

similar order or enforcement action issued by, or is a party to any material written agreement, 

consent agreement or memorandum of understanding with, or is a party to any commitment letter 

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or similar undertaking to, or is subject to any capital directive by, or since December 31, 2006, 

has adopted any board resolutions at the request of, any Governmental Entity (other than the 

Appropriate Federal Banking Agencies with jurisdiction over the Company and the Company 

Subsidiaries) that currently restricts in any material respect the conduct of its business or that in 

any material manner relates to its capital adequacy, its liquidity and funding policies and 

practices, its ability to pay dividends, its credit, risk management or compliance policies or 

procedures, its internal controls, its management or its operations or business (each item in this 

sentence, a “Regulatory Agreement”), nor has the Company or any Company Subsidiary been 

advised since December 31, 2006 by any such Governmental Entity that it is considering issuing, 

initiating, ordering, or requesting any such Regulatory Agreement. The Company and each 

Company Subsidiary are in compliance in all material respects with each Regulatory Agreement 

to which it is party or subject, and neither the Company nor any Company Subsidiary has 

received any notice from any Governmental Entity indicating that either the Company or any 

Company Subsidiary is not in compliance in all material respects with any such Regulatory 

Agreement. “Appropriate Federal Banking Agency” means the “appropriate Federal banking 

agency” with respect to the Company or such Company Subsidiaries, as applicable, as defined in 

Section 3(q) of the Federal Deposit Insurance Act (12 U.S.C. Section 1813(q)). 

(t) Insurance. The Company and the Company Subsidiaries are insured with 

reputable insurers against such risks and in such amounts as the management of the Company 

reasonably has determined to be prudent and consistent with industry practice. The Company 

and the Company Subsidiaries are in material compliance with their insurance policies and are 

not in default under any of the material terms thereof, each such policy is outstanding and in full 

force and effect, all premiums and other payments due under any material policy have been paid, 

and all claims thereunder have been filed in due and timely fashion, except, in each case, as 

would not, individually or in the aggregate, reasonably be expected to have a Company Material 

Adverse Effect. 

(u) Intellectual Property. Except as would not, individually or in the aggregate, 

reasonably be expected to have a Company Material Adverse Effect, (i) the Company and each 

Company Subsidiary owns or otherwise has the right to use, all intellectual property rights, 

including all trademarks, trade dress, trade names, service marks, domain names, patents, 

inventions, trade secrets, know-how, works of authorship and copyrights therein, that are used in 

the conduct of their existing businesses and all rights relating to the plans, design and 

specifications of any of its branch facilities (“Proprietary Rights”) free and clear of all liens and 

any claims of ownership by current or former employees, contractors, designers or others and (ii) 

neither the Company nor any of the Company Subsidiaries is materially infringing, diluting, 

misappropriating or violating, nor has the Company or any or the Company Subsidiaries received 

any written (or, to the knowledge of the Company, oral) communications alleging that any of 

them has materially infringed, diluted, misappropriated or violated, any of the Proprietary Rights 

owned by any other person. Except as would not, individually or in the aggregate, reasonably be 

expected to have a Company Material Adverse Effect, to the Company’s knowledge, no other 

person is infringing, diluting, misappropriating or violating, nor has the Company or any or the 

Company Subsidiaries sent any written communications since January 1, 2006 alleging that any 

person has infringed, diluted, misappropriated or violated, any of the Proprietary Rights owned 

by the Company and the Company Subsidiaries. 

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(v) Brokers and Finders. No broker, finder or investment banker is entitled to any 

financial advisory, brokerage, finder’s or other fee or commission in connection with this 

Agreement or the Warrant or the transactions contemplated hereby or thereby based upon 

arrangements made by or on behalf of the Company or any Company Subsidiary for which the 

Investor could have any liability. 

(w) Amendment to Charter and Other Document To Effect Section 5.20(b). Except as 

set forth on Schedule F, the election, appointment, nomination or designation of Senior Note 

Directors by the Holders in accordance with, and upon the conditions set forth in, Section 5.20(b) 

is permitted by the laws of the jurisdiction of organization of the Company. If permitted by such 

laws, the Company agrees to take all action necessary to permit the Holders to elect, appoint, 

nominate or designate the Senior Note Directors, as applicable, in accordance with, and upon the 

events set forth in, Section 5.20(b), including amending its Charter and any other applicable 

organizational documents, agreements or arrangements as necessary, no later than the date which 

is the earlier of (i) the next scheduled meeting (if any) of Members of the Company or (ii) the 

date which is 13 months from the Signing Date. The Company further agrees to notify the 

Investor of the date upon which the Company’s Members approve (if such approval is required) 

any such amendment to the Charter or other applicable organizational documents, agreements or 

arrangements and to provide the Investor with a copy of the amended Charter certified by the 

Secretary of State or such other authorized person of the Company’s jurisdiction of organization 

and other amended organizational documents, agreements or arrangements. 

Article III 

Covenants 

3.1 Commercially Reasonable Efforts. Subject to the terms and conditions of this 

Agreement, each of the parties will use its commercially reasonable efforts in good faith to take, 

or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or 

desirable, or advisable under applicable laws, so as to permit consummation of the Purchase as 

promptly as practicable and otherwise to enable consummation of the transactions contemplated 

hereby and shall use commercially reasonable efforts to cooperate with the Investor to that end. 

3.2 Expenses. Unless otherwise provided in this Agreement or the Warrant, each of 

the parties hereto will bear and pay all costs and expenses incurred by it or on its behalf in 

connection with the transactions contemplated under this Agreement and the Warrant, including 

fees and expenses of its own financial or other consultants, investment bankers, accountants and 

counsel. 

3.3 Ability to Issue Senior Subordinated Securities on Exercise of Warrant; Listing on 

Exchange. 

(a) During the period from the Closing Date until the date on which the Warrant has 

been fully exercised, the Company shall not at any time take any action that would prohibit the 

Investor from exercising the Warrant. 

(b) If the Company lists its Mutual Capital Interests or other equity securities on any 

national securities exchange, the Company shall, if requested by the Investor, promptly use its 

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reasonable best efforts to cause the Senior Notes to be approved for listing on a national 

securities exchange as promptly as practicable following such request. 

3.4 Certain Notifications Until Closing. From the Signing Date until the Closing, the 

Company shall promptly notify the Investor of (i) any fact, event or circumstance of which it is 

aware and which would reasonably be expected to cause any representation or warranty of the 

Company contained in this Agreement to be untrue or inaccurate in any material respect or to 

cause any covenant or agreement of the Company contained in this Agreement not to be 

complied with or satisfied in any material respect and (ii) except as Previously Disclosed, any 

fact, circumstance, event, change, occurrence, condition or development of which the Company 

is aware and which, individually or in the aggregate, has had or would reasonably be expected to 

have a Company Material Adverse Effect; provided, however, that delivery of any notice 

pursuant to this Section 3.4 shall not limit or affect any rights of or remedies available to the 

Investor; provided, further, that a failure to comply with this Section 3.4 shall not constitute a 

breach of this Agreement or the failure of any condition set forth in Section 1.2 to be satisfied 

unless the underlying Company Material Adverse Effect or material breach would independently 

result in the failure of a condition set forth in Section 1.2 to be satisfied. 

3.5 Access, Information and Confidentiality. 

(a) From the Signing Date until the date when the Investor holds an amount of Senior 

Notes having an aggregate face value of less than 10% of the Purchase Price, the Company will 

permit the Investor and its agents, consultants, contractors and advisors (x) acting through the 

Appropriate Federal Banking Agency, or otherwise to the extent necessary to evaluate, manage, 

or transfer its investment in the Company, to examine the Company’s books and make copies 

thereof and to discuss the affairs, finances and accounts of the Company and the Company 

Subsidiaries with the principal officers of the Company, all upon reasonable notice and at such 

reasonable times and as often as the Investor may reasonably request and (y) to review any 

information material to the Investor’s investment in the Company provided by the Company to 

its Appropriate Federal Banking Agency. Any investigation pursuant to this Section 3.5 shall be 

conducted during normal business hours and in such manner as not to interfere unreasonably 

with the conduct of the business of the Company, and nothing herein shall require the Company 

or any Company Subsidiary to disclose any information to the Investor to the extent (i) 

prohibited by applicable law or regulation or (ii) that such disclosure would reasonably be 

expected to cause a violation of any agreement to which the Company or any Company 

Subsidiary is a party or would cause a risk of a loss of privilege to the Company or any Company 

Subsidiary (provided that the Company shall use commercially reasonable efforts to make 

appropriate substitute disclosure arrangements under circumstances where the restrictions in this 

clause (ii) apply). 

(b) From the Signing Date until the date on which all of the Senior Notes have been 

paid in full, the Company will deliver, or will cause to be delivered, to the Investor:

(i) as soon as available after the end of each fiscal year of the Company, and 

in any event within 90 days thereafter, a consolidated balance sheet of the Company as of 

the end of such fiscal year, and consolidated statements of income, retained earnings and 

cash flows of the Company for such year, in each case prepared in accordance with 

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GAAP and setting forth in each case in comparative form the figures for the previous 

fiscal year of the Company, and which shall be audited to the extent audited financial 

statements are available; and 

(ii) as soon as available after the end of the first, second and third quarterly 

periods in each fiscal year of the Company, a copy of any quarterly reports provided to 

Mutual Interest Holders of the Company or Company management. 

(c) The Investor will use reasonable best efforts to hold, and will use reasonable best 

efforts to cause its agents, consultants, contractors and advisors to hold, in confidence all nonpublic records, books, contracts, instruments, computer data and other data and information 

(collectively, “Information”) concerning the Company furnished or made available to it by the 

Company or its representatives pursuant to this Agreement (except to the extent that such 

information can be shown to have been (i) previously known by such party on a non-confidential 

basis, (ii) in the public domain through no fault of such party or (iii) later lawfully acquired from 

other sources by the party to which it was furnished (and without violation of any other 

confidentiality obligation)); provided that nothing herein shall prevent the Investor from 

disclosing any Information to the extent required by applicable laws or regulations or by any 

subpoena or similar legal process. 

(d) The Investor’s information rights pursuant to Section 3.5(b) may be assigned by 

the Investor to a transferee or assignee of the Purchased Securities or the Warrant Securities with 

a face value or, in the case of the Warrant, a face value of the underlying Warrant Securities, no 

less than an amount equal to 2% of the Purchase Price. 

3.6 Capital Covenant. So long as the Senior Subordinated Securities or the Warrant 

Securities are outstanding, the Company and the Company Subsidiaries shall maintain such 

capital as may be necessary to meet the minimum capital requirements of the Appropriate 

Federal Banking Agency, as in effect from time to time. 

Article IV 

Remedies of the Holders upon Event of Default 

4.1 Event of Default. “Event of Default” shall mean the occurrence or existence of 

any one or more of the following: 

(a) Payment. (i) Failure to pay any installment or other payment of principal or, 

subject to Section 5.6, interest of any of the Senior Subordinated Securities or Warrant 

Securities, when due, or (ii) failure to pay any other amount due under any Transaction 

Documents; or 

(b) Default in Other Agreements. (i) Failure of the Company or any Company 

Subsidiary to pay when due or within any applicable grace period any principal or interest on 

Indebtedness or (ii) breach or default of the Company or any Company Subsidiary, or the 

occurrence of any condition or event, with respect to any Indebtedness of the Company or any 

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Company Subsidiary, if the effect of such breach, default or occurrence is to cause such 

Indebtedness to become or be declared due prior to its stated maturity; or 

(c) Breach of Certain Provisions. Failure of the Company or any Company 

Subsidiary, as the case may be, to perform or comply with the terms and conditions contained in 

Section 3.6, Section 5.8, Section 5.14, or Section 5.20. 

(d) Breach of Warranty. Any representation, warranty, certification or other 

statement made by the Company or any Company Subsidiary in any Transaction Documents or 

in any statement or certificate at any time given by the Company or any Company Subsidiary in 

writing pursuant to or in connection with any of the Transaction Documents is false in any 

material respect on the date made or, if such representation, warranty, certification or other 

statement relates to a date other than the date as of which made, then as of such date, which in 

either case could reasonably be expected to result in a Company Material Adverse Effect; or 

(e) Other Defaults Under Transaction Documents. The Company or any Company 

Subsidiary defaults in the performance of or compliance with any material term contained in the 

Transaction Documents (other than occurrences described in other provisions of this Section 4.1

for which a different grace or cure period is specified or which constitute immediate Events of 

Default) and such default is not remedied or waived within thirty (30) days after the earlier of 

(i) receipt by the Company of notice of such default from Holders holding more than fifty 

percent (50%) of the aggregate outstanding principal amount of the Senior Notes; provided, 

however, that after payment in full of the Senior Subordinated Securities, Majority Holders shall 

mean Holders owning more than fifty percent (50%) of the Warrant Securities (the “Majority 

Holders”) or (ii) actual knowledge of an executive officer of the Company or any Company 

Subsidiary of such default; or 

(f) Bankruptcy and Deferral of Interest Beyond 20 Consecutive Quarters. 

(i) A court having proper jurisdiction shall enter a decree or order for relief in 

respect of the Company in an involuntary case under any applicable bankruptcy, 

insolvency or other similar law now or hereafter in effect, or shall appoint a receiver, 

liquidator, assignee, custodian, trustee, sequestrator or other similar official of the 

Company or for any substantial part of its property, or orders the winding-up or 

liquidation of its affairs and such decree, appointment or order shall remain unstayed and 

in effect for a period of sixty (60) days; or 

(ii) The Company shall commence a voluntary case under any applicable 

bankruptcy, insolvency or other similar law now or hereafter in effect, shall consent to 

the entry of an order for relief in an involuntary case under any such law, or shall consent 

to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, 

custodian, sequestrator or other similar official of the Company or of any substantial part 

of its property, or shall make any general assignment for the benefit of creditors, or shall 

fail generally to pay its debts as they become due; or 

(iii) A court or administrative or governmental agency or body shall enter a 

decree or order for the appointment of a receiver of the Company or any subsidiary of the 

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Company that (A) is a depository institution and (B) meets the definition of “significant 

subsidiary” within the meaning of Rule 405 under the Securities Act (a “Major 

Depository Institution Subsidiary”) or all or substantially all of its property in any 

liquidation, insolvency or similar proceeding with respect to the Company or such Major 

Depository Institution Subsidiary or all or substantially all of its property; or 

(iv) The Company or a Major Depository Institution Subsidiary shall consent 

to the appointment of a receiver for it or all or substantially all of its property in any 

liquidation, insolvency or similar proceeding with respect to it or all or substantially all of 

its property. 

(v) The Company shall have deferred interest on the Senior Subordinated 

Securities or any Warrant Securities, pursuant to Section 5.6, for more than 20 

consecutive quarters. 

(g) Dissolution. Any order, judgment or decree is entered against the Company or a 

Company Subsidiary decreeing the dissolution or split up of the Company or a Company 

Subsidiary and such order remains undischarged or unstayed for a period in excess of thirty 

(30) days; or 

(h) Solvency. The Company or a Company Subsidiary ceases to be solvent or admits 

in writing its present or prospective inability to pay its debts as they become due or is notified 

that it is considered an institution in “troubled condition” within the meaning of 12 U.S.C. 

Section 1831i and the regulations promulgated thereunder; or 

(i) Injunction. The Company or a Company Subsidiary is enjoined, restrained or in 

any way prevented by the order of any court or any administrative or regulatory agency from 

conducting all or any part of its business for more than thirty (30) days unless such event or 

circumstance could not reasonably be expected to have a Company Material Adverse Effect; or 

(j) Invalidity of Transaction Documents. Any of the Transaction Documents for any 

reason, other than a partial or full release in accordance with the terms thereof, ceases to be in 

full force and effect or is declared to be null and void by any court of law having jurisdiction 

over such matters, or the Company or any Company Subsidiary denies that it has any further 

liability under any Transaction Documents to which it is party, or gives notice to such effect. 

4.2 Acceleration and other Remedies. 

(a) Non-Bankruptcy or Deferral of Interest Defaults. When any Event of Default 

other than those set forth in Subsection 4.1(f) has occurred and is continuing, the Majority 

Holders may, by written notice to the Company, enforce any and all rights and remedies 

available to the Holders under the Transaction Documents or applicable law; provided, however, 

the Holders may not accelerate payment of the principal of, or the accrued interest on, the Senior 

Notes, except as provided in Subsection 4.2(c). 

(b) Bankruptcy or Deferral of Interest Defaults. When any Event of Default 

described in Subsection 4.1(f) has occurred and is continuing, then the Senior Notes, including 

both principal and interest, and all fees, charges and other obligations payable hereunder and 

- 17 - 
under the Transaction Documents, shall immediately become due and payable without 

presentment, demand, protest or notice of any kind. In addition, the Holders may exercise any 

and all remedies available to it under the Transaction Documents or applicable law. 

(c) Tier 1 Capital Characterization. If the Company (other than an “insured 

depository institution” as defined in Section 3(c)(2) of the Federal Deposit Insurance Act, as 

amended) receives a written notification from its Appropriate Federal Banking Agency that the 

Senior Notes no longer constitute Tier 1 Capital of the Company, other than due to the limitation 

imposed by the second sentence of 12 C.F.R. Section 250.166(e), which limits the capital 

treatment of subordinated debt during the five years immediately preceding the maturity date of 

the subordinated debt, and the Senior Notes, the Warrant and this Agreement cannot be 

restructured so as to qualify the Senior Notes for Tier 1 Capital treatment, and if thereafter any 

Event of Default shall occur under Section 4.1, the Majority Holders may declare the Senior 

Notes and any other amounts due Holders hereunder immediately due and payable, whereupon 

the Senior Notes and such other amounts payable hereunder shall immediately become due and 

payable, without presentments, demand, protest or notice of any kind. 

4.3 Suits for Enforcement. In case any one or more Events of Default shall have 

occurred and be continuing, unless such Events of Default shall have been waived in the manner 

provided in Section 7.4 hereof, the holders of the Warrants and the Majority Holders, subject to 

the terms of Article VI hereof, may proceed to protect and enforce their rights under this Article 

IV by suit in equity or action at law. It is agreed that in the event of such action, or any action 

between the holders of the Warrants or the Holders of the Senior Notes and the Company 

(including its officers and agents) in connection with a breach or enforcement of this Agreement, 

the holders of the Warrants and the Holders of the Senior Notes shall be entitled to receive all 

reasonable fees, costs and expenses incurred, including without limitation such reasonable fees 

and expenses of attorneys (whether or not litigation is commenced) and reasonable fees, costs 

and expenses of appeals. 

4.4 Holders May File Proofs of Claim. In case there shall be pending proceedings for 

the bankruptcy or for the reorganization of the Company or any other obligor on the Notes under 

Title 11, United States Code, or any other applicable law, or in case a receiver, conservator or 

trustee shall have been appointed for the Company or such other obligor (each, an “Obligor”) or 

a Significant Subsidiary, or in the case of any other similar judicial proceedings relative to an 

Obligor or a Significant Subsidiary, or to the creditors or property of an Obligor or a Significant 

Subsidiary, any Holder, irrespective of whether the principal of the Notes shall then be due and 

payable as therein expressed or by declaration or otherwise and irrespective of whether any such 

Holder shall have made any demand pursuant to the provisions of this Section 4.4, shall be 

entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a 

claim or claims for the whole amount of principal and interest owing and unpaid in respect of the 

Notes held by any such Holder and, in case of any judicial proceedings, to file such proofs of 

claim and other papers or documents as may be necessary or advisable in order to have the 

claims of any such Holder allowed in such judicial proceedings relative to an Obligor or a 

Significant Subsidiary, or to the creditors or property of an Obligor, unless prohibited by 

applicable law and regulations, to vote in any election of a trustee or a standby trustee in 

arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or person 

- 18 - 
performing similar functions in comparable proceedings, and to collect and receive any moneys 

or other property payable or deliverable to any such Holder on any such claims. 

Article V 

Additional Agreements 

5.1 Purchase for Investment. The Investor acknowledges that the Purchased 

Securities and the Warrant Securities have not been registered under the Securities Act, or under 

any state securities laws. The Investor acknowledges that the Purchased Securities and the 

Warrant Securities are not being sold pursuant to an Indenture qualified under the Trust 

Indenture Act of 1939, as amended (the “Indenture Act”). The Investor (a) is acquiring the 

Purchased Securities and the Warrant Securities pursuant to an exemption from registration 

under the Securities Act and an exemption from qualification of an indenture under the Indenture 

Act, and is acquiring the Purchased Securities and the Warrant Securities solely for investment 

with no present intention to distribute them to any person in violation of the Securities Act or any 

applicable U.S. state securities laws, (b) will not sell or otherwise dispose of any of the 

Purchased Securities or the Warrant Securities, except in compliance with the registration 

requirements or exemption provisions of the Securities Act and any applicable U.S. state 

securities laws, and (c) has such knowledge and experience in financial and business matters and 

in investments of this type that it is capable of evaluating the merits and risks of the Purchase and 

of making an informed investment decision. 

5.2 Form of Purchased Security and Warrant Security. The Senior Subordinated 

Security shall be substantially in the form of Annex C hereto, the Warrant Security shall be 

substantially in the form of Annex D hereto, and the Warrant shall be substantially in the form of 

Annex E hereto, the respective terms of which are incorporated in and made a part of this 

Agreement. The Senior Notes shall be issued, and may be transferred, only in denominations 

having an aggregate principal amount of not less than $1,000 and integral multiples of $1,000 in 

excess thereof. The Senior Notes shall be in registered form without coupons and shall be 

numbered, lettered or otherwise distinguished in such manner or in accordance with such plans 

as the officers executing the same may determine as evidenced by the execution thereof. 

5.3 Execution of Senior Notes. The Senior Notes shall be signed in the name and on 

behalf of the Company by the manual or facsimile signature of its President, Chief Executive 

Officer, Chief Financial Officer or one of its Executive Vice Presidents under its seal (if legally 

required) which may be affixed thereto or printed, engraved or otherwise reproduced thereon, by 

facsimile or otherwise, and which need not be attested, unless otherwise required by the 

Company’s Charter or bylaws or applicable law. Every Purchased Security and Warrant 

Security shall be dated the date of its execution and delivery. 

5.4 Payment of Principal and Interest. The Company covenants and agrees for the 

benefit of the Holders of the Senior Notes that it will duly and punctually pay or cause to be paid 

the principal of and, subject to Section 5.6, interest on the Senior Notes at the respective times 

and in the manner provided herein. Payment of the principal of and interest on the Senior Notes 

due on the Maturity Date will be made by the Company in immediately available funds against 

presentation and surrender of the Senior Notes. Subject to Section 5.6, each installment of 

interest on the Senior Notes due on an Interest Payment Date other than the Maturity Date shall 

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be paid by wire transfer of immediately available funds to any account with a banking institution 

located in the United States designated by such Holder no later than the related Regular Record 

Date. 

5.5 Computation of Interest. 

(a) The amount of interest payable for any Interest Period (as defined below) will be 

computed as provided in the Senior Notes. 

(b) Each Senior Note will bear interest at the Interest Rate (i) in the case of the initial 

Interest Period, for the period from, and including, the date of original issuance of such Senior 

Note to, but excluding, the initial Interest Payment Date and (ii) thereafter, for the period from, 

and including, the first day following the end of the preceding Interest Period to, but excluding, 

the applicable Interest Payment Date or, in the case of the last Interest Period, the Maturity Date 

(each such period, an “Interest Period”), on the principal thereof, on any overdue principal and 

(to the extent that payment of such interest is enforceable under applicable law) on any overdue 

installment of interest (including Deferred Interest and Defaulted Interest), payable on each 

Interest Payment Date or the Maturity Date, as the case may be. Interest on any Senior Note that 

is payable, and is punctually paid or duly provided for by the Company, on any Interest Payment 

Date shall be paid to the Person in whose name such Senior Note is registered at the close of 

business on the Regular Record Date for such interest installment. 

(c) Any interest on the Senior Note (other than Deferred Interest pursuant to Section 

5.6) that is payable, but is not punctually paid or duly provided for by the Company, on any 

Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to 

the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such 

Defaulted Interest shall be paid by the Company to the Persons in whose names such Senior 

Notes are registered at the close of business on a special record date for the payment of such 

Defaulted Interest, which shall be fixed in the following manner: the Company shall notify the 

Holder in writing of the amount of Defaulted Interest proposed to be paid on each such Senior 

Note and the date of the proposed payment. Thereupon the Board of Directors shall fix a special 

record date for the payment of such Defaulted Interest, which shall not be more than 15 nor less 

than 10 days prior to the date of the proposed payment. The Company shall cause notice of the 

proposed payment of such Defaulted Interest and the special record date therefor to be mailed, 

first class postage prepaid, to each Holder of a Senior Note at his, her or its address as it appears 

in the Senior Note Register, not less than 10 days prior to such special record date. Notice of the 

proposed payment of such Defaulted Interest and the special record date therefor having been 

mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such 

Senior Notes are registered on such special record date and thereafter the Company shall have no 

further payment obligation in respect of the Defaulted Interest. 

(d) The Company may make payment of any Defaulted Interest on the Senior Notes 

in any other lawful manner not inconsistent with the requirements of any securities exchange on 

which such Senior Notes may be listed, and upon such notice as may be required by such 

exchange. 

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(e) Subject to the foregoing provisions of this Section 5.5, each Senior Note delivered 

under this Agreement upon registration of transfer of or in exchange for or in lieu of any other 

Senior Note shall carry the rights to interest accrued and unpaid, and to accrue, that were carried 

by such other Senior Note. 

5.6 Extension of Interest Payment Period. So long as no other Event of Default has 

occurred and is continuing, the Company shall have the right, from time to time and without 

causing an Event of Default, to defer payments of interest on the Senior Notes by extending the 

Interest Period on the Senior Notes at any time and from time to time during the term of the 

Senior Notes, for up to 20 consecutive quarterly periods (each such extended Interest Period, 

together with all previous and further consecutive extensions thereof, is referred to herein as an 

“Extension Period”). No Extension Period may end on a date other than an Interest Payment 

Date or extend beyond the Maturity Date, as the case may be. During any Extension Period, 

interest will continue to accrue on the Senior Notes, and interest on such accrued interest (such 

accrued interest and interest thereon referred to herein as “Deferred Interest”) will accrue at an 

annual rate equal to the Interest Rate applicable during such Extension Period, compounded on 

each Interest Payment Date during such Extension Period, to the extent permitted by applicable 

law. No interest or Deferred Interest shall be due and payable during an Extension Period, 

except at the end thereof. At the end of any Extension Period, the Company shall pay all 

Deferred Interest then accrued and unpaid on the Senior Notes; provided, however, that during 

any Extension Period, the Company shall be subject to the restrictions set forth in Section 5.14. 

Prior to the termination of any Extension Period, the Company may further extend such 

Extension Period, provided, that no Extension Period (including all previous and further 

consecutive extensions that are part of such Extension Period) shall exceed 20 consecutive 

quarterly periods. Upon the termination of any Extension Period and upon the payment of all 

Deferred Interest, the Company may commence a new Extension Period for up to 20 consecutive 

quarterly periods as if no prior Extension Period had occurred, subject to the foregoing 

requirements. The Company must give the Holders notice of its election to begin or extend an 

Extension Period at least one Business Day prior to the Regular Record Date applicable to the 

next succeeding Interest Payment Date. 

5.7 Legends. 

(a) The Investor agrees that all certificates or other instruments representing the 

Senior Notes will bear a legend substantially to the following effect: 

“THIS SENIOR SUBORDINATED SECURITY WILL BE ISSUED AND MAY BE 

TRANSFERRED ONLY IN MINIMUM DENOMINATIONS OF $1,000 AND 

MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER 

OF SUCH SECURITIES IN A DENOMINATION OF LESS THAN $1,000 AND 

MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE DEEMED TO BE VOID 

AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED 

TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH 

SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE 

RECEIPT OF PAYMENTS ON SUCH SECURITIES, AND SUCH PURPORTED 

TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN 

SUCH SECURITIES. 

- 21 - 
THIS SECURITY IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN 

THE LETTER AGREEMENT BY AND BETWEEN THE COMPANY AND THE 

UNITED STATES DEPARTMENT OF THE TREASURY AND SECURITIES 

PURCHASE AGREEMENT – STANDARD TERMS (THE “AGREEMENT”), EACH 

OF WHICH ARE INCORPORATED INTO THIS NOTE. 

THIS OBLIGATION IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IS NOT 

INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE 

CORPORATION, THE BOARD OF GOVERNORS OF THE FEDERAL RESERVE 

SYSTEM OR ANY OTHER GOVERNMENTAL AGENCY. THIS OBLIGATION IS 

SUBORDINATED TO THE CLAIMS OF GENERAL AND SECURED CREDITORS 

OF THE COMPANY AND IS NOT SECURED. 

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT 

OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS 

OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE 

DISPOSED OF EXCEPT WHILE A REGISTRATION STATEMENT RELATING 

THERETO IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE 

SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION 

UNDER SUCH ACT OR SUCH LAWS. EACH PURCHASER OF THIS SECURITY 

IS NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION 

FROM SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A 

THEREUNDER. ANY TRANSFEREE OF THIS SECURITY BY ITS ACCEPTANCE 

HEREOF (1) REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” 

(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (2) AGREES THAT 

IT WILL NOT OFFER, SELL OR OTHERWISE TRANSFER THE SECURITIES 

REPRESENTED BY THIS INSTRUMENT EXCEPT (A) PURSUANT TO A 

REGISTRATION STATEMENT WHICH IS THEN EFFECTIVE UNDER THE 

SECURITIES ACT, (B) FOR SO LONG AS THE SECURITIES REPRESENTED BY 

THIS INSTRUMENT ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, 

TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL 

BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT 

PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A 

QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE 

TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO THE 

COMPANY OR (D) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION 

FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND 

(3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS 

SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF 

THIS LEGEND. 

THIS INSTRUMENT IS ISSUED SUBJECT TO THE RESTRICTIONS ON 

TRANSFER AND OTHER PROVISIONS OF THE AGREEMENT BETWEEN THE 

COMPANY AND THE INVESTOR REFERRED TO THEREIN, A COPY OF WHICH 

IS ON FILE WITH THE COMPANY. THIS SECURITY MAY NOT BE SOLD OR 

OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH SAID 

- 22 - 
AGREEMENT. ANY SALE OR OTHER TRANSFER NOT IN COMPLIANCE WITH 

SAID AGREEMENT WILL BE VOID.” 

(b) In the event that any Senior Notes (A)(i) become registered under the Securities 

Act or (ii) are eligible to be transferred without restriction in accordance with Rule 144 or 

another exemption from registration under the Securities Act (other than Rule 144A), and (B)(i) 

become subject to an Indenture qualified under the Indenture Act or (ii) are exempt from 

qualification under the Indenture Act, the Company shall issue new certificates or other 

instruments representing such Senior Notes, which shall not contain the applicable legends in 

Sections 4.2(a) above; provided that the Investor surrenders to the Company the previously 

issued certificates or other instruments. 

5.8 Certain Transactions. The Company will not merge or consolidate with, or sell, 

transfer or lease all or substantially all of its property or assets to, any other party unless the 

successor, transferee or lessee party (or its ultimate parent entity), as the case may be (if not the 

Company), expressly assumes the due and punctual performance and observance of each and 

every covenant, agreement and condition contained in this Agreement, the Senior Subordinated 

Securities, the Warrant (if unexercised) and the Warrant Securities to be performed and observed 

by the Company. 

5.9 Transfer of Senior Notes; Restrictions on Exercise of the Warrant. 

(a) The Company or its duly appointed agent shall maintain a register (the “Senior 

Note Register”) for the Senior Notes in which it shall register the issuance and transfer of the 

Senior Notes. All transfers of the Senior Notes shall be recorded on the Senior Note Register 

maintained by the Company or its agent, and the Company shall be entitled to regard the 

registered Holder of such Senior Note as the actual owner of the Senior Note so registered until 

the Company or its agent is required to record a transfer of such Senior Note on its Senior Note 

Register. The Company or its agent shall, subject to applicable securities laws, be required to 

record any such transfer when it receives the Senior Note to be transferred duly and properly 

endorsed by the registered Holder or by its attorney duly authorized in writing. 

(b) The Company or its duly appointed agent shall maintain a register (the “Warrant 

Register”) for each of the Warrants in which it shall register the issuance and transfer of the 

Warrants. All transfers of the Warrant shall be recorded on the Warrant Register maintained by 

the Company or its agent, and the Company shall be entitled to regard the registered holder of 

such Warrant as the actual owner of the Warrants so registered until the Company or its agent is 

required to record a transfer of such Warrant on its Warrant Register. The Company or its agent 

shall, subject to applicable securities laws, be required to record any such transfer when it 

receives the Warrant to be transferred duly and properly endorsed by the registered holder or by 

its attorney duly authorized in writing. 

(c) The Company shall at any time, upon written request of the Holder of a Senior 

Note and surrender of the Senior Note for such purpose, at the expense of the Company, issue 

new Senior Notes in exchange therefor in such denominations of at least $1,000, as shall be 

specified by the Holder of such Senior Note, in an aggregate principal amount equal to the then 

unpaid principal amount of the Senior Note or Senior Notes surrendered and substantially in the 

- 23 - 
form of Annex C or Annex D, as the case may be, with appropriate insertions and variations, and 

bearing interest from the date to which interest has been paid on the Senior Note surrendered. 

(d) All Senior Notes presented for registration of transfer or for exchange or payment 

shall be duly endorsed by, or be accompanied by, a written instrument or instruments of transfer 

in a form satisfactory to the Company duly executed by the Holder or such Holder’s attorney 

duly authorized in writing. 

(e) No service charge shall be incurred for any exchange or registration of transfer of 

Senior Notes, but the Company may require payment of a sum sufficient to cover any tax, fee or 

other governmental charge that may be imposed in connection therewith. 

(f) Prior to due presentment for the registration of a transfer of any Senior Note, the 

Company and any agent of the Company may deem and treat the Person in whose name such 

Senior Note is registered as the absolute owner and Holder of such Senior Note for the purpose 

of receiving payment of principal of and interest on such Senior Note and none of the Company 

or any agents of the Company shall be affected by notice to the contrary. 

(g) Subject to compliance with applicable securities laws, the Holder shall be 

permitted to transfer, sell, assign or otherwise dispose of (“Transfer”) all or a portion of the 

Purchased Securities or the Warrant Securities at any time, and the Company shall take all steps 

as may be reasonably requested by the Investor to facilitate the Transfer of the Purchased 

Securities and the Warrant Securities; provided that the Investor and its transferees shall use their 

commercially reasonable efforts not to effect any Transfer of any Purchased Securities or 

Warrant Securities if such transfer would require the Company to be subject to the periodic 

reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934 (the 

“Exchange Act”). In furtherance of the foregoing, the Company shall provide reasonable 

cooperation to facilitate any Transfers of the Purchased Securities and the Warrant Securities, 

including, as is reasonable under the circumstances, by furnishing such information concerning 

the Company and its business as a proposed transferee may reasonably request (including such 

information as is required by Section 3.5(d)) and making management of the Company 

reasonably available to respond to questions of a proposed transferee in accordance with 

customary practice, subject in all cases to the proposed transferee agreeing to a customary 

confidentiality agreement. 

5.10 Replacement of Senior Notes. Upon receipt of evidence reasonably satisfactory 

to the Company of the loss, theft, destruction or mutilation of any Senior Note, and, in the case 

of any such loss, theft or destruction, upon delivery of a bond of indemnity reasonably 

satisfactory to the Company (provided that the Investor or any institutional Holder of a Senior 

Note may instead deliver to the Company an indemnity agreement in form and substance 

reasonably satisfactory to the Company), or, in the case of any such mutilation, upon surrender 

and cancellation of the Senior Note, as the case may be, the Company will issue a new Senior 

Note of like tenor, in lieu of such lost, stolen, destroyed or mutilated Senior Note. 

5.11 Cancellation. All Senior Notes surrendered for the purpose of payment, exchange 

or registration of transfer, shall be surrendered to the Company and promptly canceled by it, and 

- 24 - 
no Senior Notes shall be issued in lieu thereof except as expressly permitted by any of the 

provisions of this Agreement. The Company shall destroy all canceled Senior Notes. 

5.12 Registration Rights. 

(a) Unless and until the Company becomes subject to the reporting requirements of 

Section 13 or 15(d) of the Exchange Act, the Company shall have no obligation to comply with 

the provisions of this Section 5.12 (other than Section 5.12(b)(iv)-(vi)); provided that the 

Company covenants and agrees that it shall comply with this Section 5.12 as soon as practicable 

after the date that it becomes subject to such reporting requirements. 

(b) Registration. 

(i) Subject to the terms and conditions of this Agreement, the Company 

covenants and agrees that as promptly as practicable after the date that the Company 

becomes subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act 

(and in any event no later than 30 days thereafter), the Company shall (A) prepare and 

file with the SEC a Shelf Registration Statement covering all Registrable Securities (or 

otherwise designate an existing Shelf Registration Statement filed with the SEC to cover 

the Registrable Securities), and, to the extent the Shelf Registration Statement has not 

theretofore been declared effective or is not automatically effective upon such filing, the 

Company shall use reasonable best efforts to cause such Shelf Registration Statement to 

be declared or become effective and to keep such Shelf Registration Statement 

continuously effective and in compliance with the Securities Act and usable for resale of 

such Registrable Securities for a period from the date of its initial effectiveness until such 

time as there are no Registrable Securities remaining (including by refiling such Shelf 

Registration Statement (or a new Shelf Registration Statement) if the initial Shelf 

Registration Statement expires), and (B) prepare an Indenture covering the Registrable 

Securities meeting the requirements of the Indenture Act and use its reasonable best 

efforts to cause such Indenture to be qualified under the Indenture Act. Notwithstanding 

the foregoing, if the Company is not eligible to file a registration statement on Form S-3, 

then the Company shall not be obligated to file a Shelf Registration Statement unless and 

until requested to do so in writing by the Investor. 

(ii) Any registration pursuant to Section 5.12(b)(i) shall be effected by means 

of a shelf registration on an appropriate form under Rule 415 under the Securities Act (a 

“Shelf Registration Statement”). If the Investor or any other Holder intends to distribute 

any Registrable Securities by means of an underwritten offering it shall promptly so 

advise the Company and the Company shall take all reasonable steps to facilitate such 

distribution, including the actions required pursuant to Section 5.12(d); provided that the 

Company shall not be required to facilitate an underwritten offering of Registrable 

Securities unless the expected gross proceeds from such offering exceed (i) 2% of the 

Purchase Price if such Purchase Price is less than $2 billion and (ii) $200 million if the 

Purchase Price is equal to or greater than $2 billion. The lead underwriters in any such 

distribution shall be selected by the Holders of a majority of the Registrable Securities to 

be distributed; provided that to the extent appropriate and permitted under applicable law, 

- 25 - 
such Holders shall consider the qualifications of any broker-dealer Affiliate of the 

Company in selecting the lead underwriters in any such distribution. 

(iii) The Company shall not be required to effect a registration (including a 

resale of Registrable Securities from an effective Shelf Registration Statement) or an 

underwritten offering pursuant to Section 5.12(b): (A) with respect to securities that are 

not Registrable Securities; or (B) if the Company has notified the Investor and all other 

Holders that in the good faith judgment of the Board of Directors, it would be materially 

detrimental to the Company or its securityholders for such registration or underwritten 

offering to be effected at such time, in which event the Company shall have the right to 

defer such registration for a period of not more than 45 days after receipt of the request of 

the Investor or any other Holder; provided that such right to delay a registration or 

underwritten offering shall be exercised by the Company (1) only if the Company has 

generally exercised (or is concurrently exercising) similar black-out rights against holders 

of similar securities that have registration rights and (2) not more than three times in any 

12-month period and not more than 90 days in the aggregate in any 12-month period. 

(iv) If during any period when an effective Shelf Registration Statement is not 

available, the Company proposes to register any of its equity securities, other than a 

registration pursuant to Section 5.12(b)(i) or a Special Registration, and the registration 

form to be filed may be used for the registration or qualification for distribution of 

Registrable Securities, the Company will (A) give prompt written notice to the Investor 

and all other Holders of its intention to effect such a registration (but in no event less than 

ten days prior to the anticipated filing date) and will include in such registration all 

Registrable Securities with respect to which the Company has received written requests 

for inclusion therein within ten business days after the date of the Company’s notice and 

(B) if requested by the Investor or a Holder, prepare an Indenture meeting the 

requirements of the Indenture Act and use its reasonable best efforts to cause such 

Indenture to be qualified under the Indenture Act (such registration and qualification, a 

“Piggyback Registration”). Any such person that has made such a written request may 

withdraw its Registrable Securities from such Piggyback Registration by giving written 

notice to the Company and the managing underwriter, if any, on or before the fifth (5th) 

business day prior to the planned effective date of such Piggyback Registration. The 

Company may terminate or withdraw any registration or qualification under this Section 

5.12(b)(iv) prior to the effectiveness of such registration or qualification, whether or not 

Investor or any other Holders have elected to include Registrable Securities in such 

registration or qualification. 

(v) If the registration referred to in Section 5.12(b)(iv) is proposed to be 

underwritten, the Company will so advise Investor and all other Holders as a part of the 

written notice given pursuant to Section 5.12(b)(iv). In such event, the right of Investor 

and all other Holders to registration pursuant to Section 5.12(b) will be conditioned upon 

such persons’ participation in such underwriting and the inclusion of such person’s 

Registrable Securities in the underwriting if such securities are of the same class of 

securities as the securities to be offered in the underwritten offering, and each such 

person will (together with the Company and the other persons distributing their securities 

through such underwriting) enter into an underwriting agreement in customary form with 

- 26 - 
the underwriter or underwriters selected for such underwriting by the Company; provided 

that the Investor (as opposed to other Holders) shall not be required to indemnify any 

person in connection with any registration. If any participating person disapproves of the 

terms of the underwriting, such person may elect to withdraw therefrom by written notice 

to the Company, the managing underwriters and the Investor (if the Investor is 

participating in the underwriting). 

(vi) If either (x) the Company grants “piggyback” registration rights to one or 

more third parties to include their securities in an underwritten offering under the Shelf 

Registration Statement pursuant to Section 5.12(b)(ii) or (y) a Piggyback Registration 

under Section 5.12(b)(iv) relates to an underwritten offering on behalf of the Company, 

and in either case the managing underwriters advise the Company that in their reasonable 

opinion the number of securities requested to be included in such offering exceeds the 

number which can be sold without adversely affecting the marketability of such offering 

(including an adverse effect on the per security offering price), the Company will include 

in such offering only such number of securities that in the reasonable opinion of such 

managing underwriters can be sold without adversely affecting the marketability of the 

offering (including an adverse effect on the per security offering price), which securities 

will be so included in the following order of priority: (A) first, in the case of a Piggyback 

Registration under Section 5.12(b)(iv), the securities the Company proposes to sell, (B) 

then the Registrable Securities of the Investor and all other Holders who have requested 

inclusion of Registrable Securities pursuant to Section 5.12(b)(ii) or Section 5.12(b)(iv), 

as applicable, pro rata on the basis of the aggregate number of such securities owned by 

each such person and (C) lastly, any other securities of the Company that have been 

requested to be so included, subject to the terms of this Agreement; provided, however, 

that if the Company has, prior to the Signing Date, entered into an agreement with respect 

to its securities that is inconsistent with the order of priority contemplated hereby then it 

shall apply the order of priority in such conflicting agreement to the extent that it would 

otherwise result in a breach under such agreement. 

(c) Expenses of Registration. All Registration Expenses incurred in connection with 

any registration, qualification or compliance hereunder shall be borne by the Company. All 

Selling Expenses incurred in connection with any registrations hereunder shall be borne by the 

holders of the securities so registered pro rata on the basis of the aggregate offering or sale price 

of the securities so registered. 

(d) Obligations of the Company. Whenever required to effect the registration of any 

Registrable Securities or facilitate the distribution of Registrable Securities pursuant to an 

effective Shelf Registration Statement, the Company shall, as expeditiously as reasonably 

practicable: 

(i) Prepare and file with the SEC: (A) a prospectus supplement or posteffective amendment with respect to a proposed offering of Registrable Securities 

pursuant to an effective registration statement, subject to Section 5.12(d), keep such 

registration statement effective and keep such prospectus supplement current until the 

securities described therein are no longer Registrable Securities; and (B) an Indenture for 

qualification under the Indenture Act. 

- 27 - 
(ii) Prepare and file with the SEC such amendments and supplements: (A) to 

the applicable registration statement and the prospectus or prospectus supplement used in 

connection with such registration statement as may be necessary to comply with the 

provisions of the Securities Act; and (B) to the Indenture, with respect to the disposition 

of all securities covered by such registration statement and Indenture. 

(iii) Furnish to the Holders and any underwriters such number of copies of the 

applicable registration statement and each such amendment and supplement thereto 

(including in each case all exhibits) and of a prospectus, including a preliminary 

prospectus, in conformity with the requirements of the Securities Act, the Indenture and 

such other documents as they may reasonably request in order to facilitate the disposition 

of Registrable Securities owned or to be distributed by them. 

(iv) Use its reasonable best efforts to register and qualify the securities covered 

by such registration statement under such other securities or Blue Sky laws of such 

jurisdictions as shall be reasonably requested by the Holders or any managing 

underwriter(s), to keep such registration or qualification in effect for so long as such 

registration statement remains in effect, and to take any other action which may be 

reasonably necessary to enable such seller to consummate the disposition in such 

jurisdictions of the securities owned by such Holder; provided that the Company shall not 

be required in connection therewith or as a condition thereto to qualify to do business or 

to file a general consent to service of process in any such states or jurisdictions. 

(v) Notify each Holder of Registrable Securities at any time when a 

prospectus relating thereto is required to be delivered under the Securities Act of the 

happening of any event as a result of which the applicable prospectus, as then in effect, 

includes an untrue statement of a material fact or omits to state a material fact required to 

be stated therein or necessary to make the statements therein not misleading in light of 

the circumstances then existing. 

(vi) Give written notice to the Holders: 

(A) when any registration statement or Indenture filed pursuant to 

Section 5.12(a) or any amendment thereto has been filed with the SEC (except for 

any amendment effected by the filing of a document with the SEC pursuant to the 

Exchange Act) and when such registration statement or any post-effective 

amendment thereto has become effective; 

(B) of any request by the SEC for amendments or supplements to any 

registration statement or the prospectus included therein, or the Indenture or for 

additional information; 

(C) of the issuance by the SEC of any stop order suspending the 

effectiveness of any registration statement or the initiation of any proceedings for 

that purpose; 

(D) of the receipt by the Company or its legal counsel of any 

notification with respect to the suspension of the qualification of the applicable 

- 28 - 
Registrable Securities for sale in any jurisdiction or the initiation or threatening of 

any proceeding for such purpose; 

(E) of the happening of any event that requires the Company to make 

changes in any effective registration statement or the prospectus related to the 

registration statement or to the Indenture in order to make the statements therein 

not misleading (which notice shall be accompanied by an instruction to suspend 

the use of the prospectus until the requisite changes have been made); and 

(F) if at any time the representations and warranties of the Company 

contained in any underwriting agreement contemplated by Section 5.12(d)(x) 

cease to be true and correct. 

(vii) Use its reasonable best efforts to prevent the issuance or obtain the 

withdrawal of any order suspending the effectiveness of any registration statement 

referred to in Section 5.12(d)(vi)(C) at the earliest practicable time. 

(viii) Upon the occurrence of any event contemplated by Section 5.12(d)(v) or 

5.12(d)(vi)(E), promptly prepare a post-effective amendment to such registration 

statement or a supplement to the related prospectus or the Indenture or file any other 

required document so that, as thereafter delivered to the Holders and any underwriters, 

the prospectus or the Indenture will not contain an untrue statement of a material fact or 

omit to state any material fact necessary to make the statements therein, in light of the 

circumstances under which they were made, not misleading. If the Company notifies the 

Holders in accordance with Section 5.12(d)(vi)(E) to suspend the use of the prospectus 

until the requisite changes to the prospectus or the Indenture have been made, then the 

Holders and any underwriters shall suspend use of such prospectus and use their 

reasonable best efforts to return to the Company all copies of such prospectus (at the 

Company’s expense) other than permanent file copies then in such Holders’ or 

underwriters’ possession. The total number of days that any such suspension may be in 

effect in any 12-month period shall not exceed 90 days. 

(ix) Use reasonable best efforts to procure the cooperation of the Company’s 

transfer agent in settling any offering or sale of Registrable Securities, including with 

respect to the transfer of physical certificates into book-entry form in accordance with 

any procedures reasonably requested by the Holders or any managing underwriter(s). 

(x) If an underwritten offering is requested pursuant to Section 5.12(b)(ii), 

enter into an underwriting agreement in customary form, scope and substance and take all 

such other actions reasonably requested by the Holders of a majority of the Registrable 

Securities being sold in connection therewith or by the managing underwriter(s), if any, 

to expedite or facilitate the underwritten disposition of such Registrable Securities, and in 

connection therewith in any underwritten offering (including making members of 

management and executives of the Company available to participate in “road shows”, 

similar sales events and other marketing activities), (A) make such representations and 

warranties to the Holders that are selling securityholders and the managing 

underwriter(s), if any, with respect to the business of the Company and its subsidiaries, 

- 29 - 
and the Shelf Registration Statement, prospectus and documents, if any, incorporated or 

deemed to be incorporated by reference therein, in each case, in customary form, 

substance and scope, and, if true, confirm the same if and when requested, (B) use its 

reasonable best efforts to furnish the underwriters with opinions of counsel to the 

Company, addressed to the managing underwriter(s), if any, covering the matters 

customarily covered in such opinions requested in underwritten offerings, (C) use its 

reasonable best efforts to obtain “cold comfort” letters from the independent certified 

public accountants of the Company (and, if necessary, any other independent certified 

public accountants of any business acquired by the Company for which financial 

statements and financial data are included in the Shelf Registration Statement) who have 

certified the financial statements included in such Shelf Registration Statement, 

addressed to each of the managing underwriter(s), if any, such letters to be in customary 

form and covering matters of the type customarily covered in “cold comfort” letters, (D) 

if an underwriting agreement is entered into, the same shall contain indemnification 

provisions and procedures customary in underwritten offerings (provided that the 

Investor shall not be obligated to provide any indemnity), and (E) deliver such documents 

and certificates as may be reasonably requested by the Holders of a majority of the 

Registrable Securities being sold in connection therewith, their counsel and the managing 

underwriter(s), if any, to evidence the continued validity of the representations and 

warranties made pursuant to clause (i) above and to evidence compliance with any 

customary conditions contained in the underwriting agreement or other agreement 

entered into by the Company. 

(xi) Make available for inspection by a representative of selling Holders, the 

managing underwriter(s), if any, and any attorneys or accountants retained by such 

Holders or managing underwriter(s), at the offices where normally kept, during 

reasonable business hours, financial and other records, pertinent governance documents 

and properties of the Company, and cause the officers, directors and employees of the 

Company to supply all information in each case reasonably requested (and of the type 

customarily provided in connection with due diligence conducted in connection with a 

registered public offering of securities) by any such representative, managing 

underwriter(s), attorney or accountant in connection with such Shelf Registration 

Statement. 

(xii) Use reasonable best efforts to cause all such Registrable Securities to be 

listed on each national securities exchange on which similar securities issued by the 

Company are then listed or, if no similar securities issued by the Company are then listed 

on any national securities exchange, use its reasonable best efforts to cause all such 

Registrable Securities to be listed on such securities exchange as the Investor may 

designate. 

(xiii) If requested by Holders of a majority of the Registrable Securities being 

registered and/or sold in connection therewith, or the managing underwriter(s), if any, 

promptly include in a prospectus supplement or amendment such information as the 

Holders of a majority of the Registrable Securities being registered and/or sold in 

connection therewith or managing underwriter(s), if any, may reasonably request in order 

to permit the intended method of distribution of such securities and make all required 

- 30 - 
filings of such prospectus supplement or such amendment as soon as practicable after the 

Company has received such request. 

(xiv) Timely provide to its securityholders earning statements satisfying the 

provisions of Section 11(a) of the Securities Act and Rule 158 thereunder. 

(e) Suspension of Sales. Upon receipt of written notice from the Company that a 

registration statement, prospectus or prospectus supplement, or Indenture contains or may 

contain an untrue statement of a material fact or omits or may omit to state a material fact 

required to be stated therein or necessary to make the statements therein not misleading or that 

circumstances exist that make inadvisable use of such registration statement, prospectus or 

prospectus supplement, or Indenture, the Investor and each Holder of Registrable Securities shall 

forthwith discontinue disposition of Registrable Securities until the Investor and/or Holder has 

received copies of a supplemented or amended prospectus or prospectus supplement, or 

Indenture, or until the Investor and/or such Holder is advised in writing by the Company that the 

use of the prospectus and, if applicable, prospectus supplement or Indenture may be resumed, 

and, if so directed by the Company, the Investor and/or such Holder shall deliver to the Company 

(at the Company’s expense) all copies, other than permanent file copies then in the Investor 

and/or such Holder’s possession, of the prospectus and, if applicable, prospectus supplement or 

Indenture covering such Registrable Securities current at the time of receipt of such notice. The 

total number of days that any such suspension may be in effect in any 12-month period shall not 

exceed 90 days. 

(f) Termination of Registration Rights. A Holder’s registration rights as to any 

securities held by such Holder (and its Affiliates, partners, members and former members) shall 

not be available unless such securities are Registrable Securities. 

(g) Furnishing Information. 

(i) Neither the Investor nor any Holder shall use any free writing prospectus 

(as defined in Rule 405) in connection with the sale of Registrable Securities without the 

prior written consent of the Company. 

(ii) It shall be a condition precedent to the obligations of the Company to take 

any action pursuant to Section 5.12(d) that Investor and/or the selling Holders and the 

underwriters, if any, shall furnish to the Company such information regarding 

themselves, the Registrable Securities held by them and the intended method of 

disposition of such securities as shall be required to effect the registered offering of their 

Registrable Securities. 

(h) Indemnification. 

(i) The Company agrees to indemnify each Holder and, if a Holder is a 

person other than an individual, such Holder’s officers, directors, employees, agents, 

representatives and Affiliates, and each Person, if any, that controls a Holder within the 

meaning of the Securities Act (each, an “Indemnitee”), against any and all losses, claims, 

damages, actions, liabilities, costs and expenses (including reasonable fees, expenses and 

disbursements of attorneys and other professionals incurred in connection with 

- 31 - 
investigating, defending, settling, compromising or paying any such losses, claims, 

damages, actions, liabilities, costs and expenses), joint or several, arising out of or based 

upon any untrue statement or alleged untrue statement of material fact contained in any 

registration statement, including any preliminary prospectus or final prospectus contained 

therein or any amendments or supplements thereto or any documents incorporated therein 

by reference or contained in any free writing prospectus (as such term is defined in Rule 

405) or contained in any Indenture, prepared by the Company or authorized by it in 

writing for use by such Holder (or any amendment or supplement thereto); or any 

omission to state therein a material fact required to be stated therein or necessary to make 

the statements therein, in light of the circumstances under which they were made, not 

misleading; provided, that the Company shall not be liable to such Indemnitee in any 

such case to the extent that any such loss, claim, damage, liability (or action or 

proceeding in respect thereof) or expense arises out of or is based upon (A) an untrue 

statement or omission made in such registration statement, including any such 

preliminary prospectus or final prospectus contained therein or any such amendments or 

supplements thereto or contained in any free writing prospectus (as such term is defined 

in Rule 405) or contained in any Indenture, prepared by the Company or authorized by it 

in writing for use by such Holder (or any amendment or supplement thereto), in reliance 

upon and in conformity with information regarding such Indemnitee or its plan of 

distribution or ownership interests which was furnished in writing to the Company by 

such Indemnitee for use in connection with such registration statement, including any 

such preliminary prospectus or final prospectus contained therein or any such 

amendments or supplements thereto, or any Indenture or (B) offers or sales effected by 

or on behalf of such Indemnitee “by means of” (as defined in Rule 159A) a “free writing 

prospectus” (as defined in Rule 405) that was not authorized in writing by the Company. 

(ii) If the indemnification provided for in Section 5.12(h)(i) is unavailable to 

an Indemnitee with respect to any losses, claims, damages, actions, liabilities, costs or 

expenses referred to therein or is insufficient to hold the Indemnitee harmless as 

contemplated therein, then the Company, in lieu of indemnifying such Indemnitee, shall 

contribute to the amount paid or payable by such Indemnitee as a result of such losses, 

claims, damages, actions, liabilities, costs or expenses in such proportion as is appropriate 

to reflect the relative fault of the Indemnitee, on the one hand, and the Company, on the 

other hand, in connection with the statements or omissions which resulted in such losses, 

claims, damages, actions, liabilities, costs or expenses as well as any other relevant 

equitable considerations. The relative fault of the Company, on the one hand, and of the 

Indemnitee, on the other hand, shall be determined by reference to, among other factors, 

whether the untrue statement of a material fact or omission to state a material fact relates 

to information supplied by the Company or by the Indemnitee and the parties’ relative 

intent, knowledge, access to information and opportunity to correct or prevent such 

statement or omission; the Company and each Holder agree that it would not be just and 

equitable if contribution pursuant to this Section 5.12(h)(ii) were determined by pro rata

allocation or by any other method of allocation that does not take account of the equitable 

considerations referred to in Section 5.12(h)(i). No Indemnitee guilty of fraudulent 

misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be 

entitled to contribution from the Company if the Company was not guilty of such 

fraudulent misrepresentation. 

- 32 - 
(i) Assignment of Registration Rights. The rights of the Investor to registration of 

Registrable Securities pursuant to Section 5.12(b) may be assigned by the Investor to a transferee 

or assignee of Registrable Securities with a face value or, in the case of the Warrant, the face 

value of the underlying Warrant Securities, no less than an amount equal to (i) 2% of the 

Purchase Price if such Purchase Price is less than $2 billion and (ii) $200 million if the Purchase 

Price is equal to or greater than $2 billion; provided, however, the transferor shall, within ten 

days after such transfer, furnish to the Company written notice of the name and address of such 

transferee or assignee and the number and type of Registrable Securities that are being assigned. 

(j) Clear Market. With respect to any underwritten offering of Registrable Securities 

by the Investor or other Holders pursuant to this Section 5.12, the Company agrees not to effect 

(other than pursuant to such registration or pursuant to a Special Registration) any public sale or 

distribution, or to file any Shelf Registration Statement (other than such registration or a Special 

Registration) covering any subordinated debentures or equity securities of the Company or any 

securities convertible into or exchangeable or exercisable for subordinated debentures or equity 

securities of the Company, during the period not to exceed ten days prior and 60 days following 

the effective date of such offering or such longer period up to 90 days as may be requested by the 

managing underwriter for such underwritten offering. The Company also agrees to cause such of 

its directors and senior executive officers to execute and deliver customary lock-up agreements 

in such form and for such time period up to 90 days as may be requested by the managing 

underwriter. “Special Registration” means the registration of (A) equity securities and/or 

options or other rights in respect thereof solely registered on Form S-4 or Form S-8 (or successor 

form) or (B) shares of equity securities and/or options or other rights in respect thereof to be 

offered to directors, members of management, employees, consultants, customers, lenders or 

vendors of the Company or Company Subsidiaries or in connection with dividend reinvestment 

plans. 

(k) Rule 144; Rule 144A. With a view to making available to the Investor and 

Holders the benefits of certain rules and regulations of the SEC which may permit the sale of the 

Registrable Securities to the public without registration, the Company agrees to use its 

reasonable best efforts to: 

(i) make and keep public information available, as those terms are understood 

and defined in Rule 144(c)(1) or any similar or analogous rule promulgated under the 

Securities Act, at all times after the Signing Date; 

(ii) (A) file with the SEC, in a timely manner, all reports and other documents 

required of the Company under the Exchange Act, and (B) if at any time the Company is 

not required to file such reports, make available, upon the request of any Holder, such 

information necessary to permit sales pursuant to Rule 144A (including the information 

required by Rule 144A(d)(4) under the Securities Act); 

(iii) so long as the Investor or a Holder owns any Registrable Securities, 

furnish to the Investor or such Holder forthwith upon request: a written statement by the 

Company as to its compliance with the reporting requirements of Rule 144 under the 

Securities Act, and of the Exchange Act; a copy of the most recent annual or quarterly 

report of the Company; and such other reports and documents as the Investor or Holder 

- 33 - 
may reasonably request in availing itself of any rule or regulation of the SEC allowing it 

to sell any such securities to the public without registration; and 

(iv) take such further action as any Holder may reasonably request, all to the 

extent required from time to time to enable such Holder to sell Registrable Securities 

without registration under the Securities Act. 

(l) Definitions. As used in this Section 5.12, the following terms shall have the 

following respective meanings: 

(i) “Holder” for purposes of this Section 5.12, means the Investor and any 

other Holder of Registrable Securities to whom the registration rights conferred by this 

Agreement have been transferred in compliance with Section 5.12(h) hereof. 

(ii) “Holders’ Counsel” means one counsel for the selling Holders chosen by 

Holders holding a majority interest in the Registrable Securities being registered. 

(iii) “Register,” “registered,” and “registration” shall refer to a registration 

effected by preparing and (A) filing a registration statement or amendment thereto in 

compliance with the Securities Act and applicable rules and regulations thereunder, and 

the declaration or ordering of effectiveness of such registration statement or amendment 

thereto or (B) filing a prospectus and/or prospectus supplement in respect of an 

appropriate effective registration statement on Form S-3. 

(iv) “Registrable Securities” means (A) all Senior Notes, (B) the Warrant 

(subject to Section 5.12(q)) and (C) any securities issued or issuable directly or indirectly 

with respect to the securities referred to in the foregoing clauses (A) or (B) by way of 

conversion, exercise or exchange thereof, or in connection with a combination, 

recapitalization, reclassification, merger, amalgamation, arrangement, consolidation or 

other reorganization, provided that, once issued, such securities will not be Registrable 

Securities when (1) they are sold pursuant to an effective registration statement under the 

Securities Act, (2) except as provided below in Section 5.12(p), they may be sold 

pursuant to Rule 144 without limitation thereunder on volume or manner of sale, (3) they 

shall have ceased to be outstanding or (4) they have been sold in a private transaction in 

which the transferor’s rights under this Agreement are not assigned to the transferee of 

the securities. No Registrable Securities may be registered under more than one 

registration statement at any one time. 

(v) “Registration Expenses” mean all expenses incurred by the Company in 

effecting any registration pursuant to this Agreement (whether or not any registration or 

prospectus becomes effective or final) or otherwise complying with its obligations under 

this Section 5.12, including all registration, filing and listing fees, printing expenses, fees 

and disbursements of counsel for the Company, blue sky fees and expenses, expenses 

incurred in connection with any “road show”, the reasonable fees and disbursements of

Holders’ Counsel, and expenses of the Company’s independent accountants in 

connection with any regular or special reviews or audits incident to or required by any 

such registration, but shall not include Selling Expenses. 

- 34 - 
(vi) “Rule 144”, “Rule 144A”, “Rule 159A”, “Rule 405” and “Rule 415” mean, 

in each case, such rule promulgated under the Securities Act (or any successor provision), 

as the same shall be amended from time to time. 

(vii) “Selling Expenses” mean all discounts, selling commissions and security 

transfer taxes applicable to the sale of Registrable Securities and fees and disbursements 

of counsel for any Holder (other than the fees and disbursements of Holders’ Counsel 

included in Registration Expenses). 

(m) Forfeiture of Rights. At any time, any holder of Securities (including any Holder) 

may elect to forfeit its rights set forth in this Section 5.12 from that date forward; provided, that a 

Holder forfeiting such rights shall nonetheless be entitled to participate under Section 5.12(b)(iv) 

– (vi) in any Pending Underwritten Offering to the same extent that such Holder would have 

been entitled to if the holder had not withdrawn; and provided, further, that no such forfeiture 

shall terminate a Holder’s rights or obligations under Section 5.12(g) with respect to any prior 

registration or Pending Underwritten Offering. “Pending Underwritten Offering” means, with 

respect to any Holder forfeiting its rights pursuant to this Section 5.12(m), any underwritten 

offering of Registrable Securities in which such Holder has advised the Company of its intent to 

register its Registrable Securities either pursuant to Section 5.12(b)(ii) or 5.12(b)(iv) prior to the 

date of such Holder’s forfeiture. 

(n) Specific Performance. The parties hereto acknowledge that there would be no 

adequate remedy at law if the Company fails to perform any of its obligations under this Section 

5.12 and that the Investor and the Holders from time to time may be irreparably harmed by any 

such failure, and accordingly agree that the Investor and such Holders, in addition to any other 

remedy to which they may be entitled at law or in equity, to the fullest extent permitted and 

enforceable under applicable law shall be entitled to compel specific performance of the 

obligations of the Company under this Section 5.12 in accordance with the terms and conditions 

of this Section 5.12. 

(o) No Inconsistent Agreements. The Company shall not, on or after the Signing 

Date, enter into any agreement with respect to its securities that may impair the rights granted to 

the Investor and the Holders under this Section 5.12 or that otherwise conflicts with the 

provisions hereof in any manner that may impair the rights granted to the Investor and the 

Holders under this Section 5.12. In the event the Company has, prior to the Signing Date, 

entered into any agreement with respect to its securities that is inconsistent with the rights 

granted to the Investor and the Holders under this Section 5.12 (including agreements that are 

inconsistent with the order of priority contemplated by Section 5.12(b)(vi)) or that may otherwise 

conflict with the provisions hereof, the Company shall use its reasonable best efforts to amend 

such agreements to ensure they are consistent with the provisions of this Section 5.12. 

(p) Certain Offerings by the Investor. In the case of any securities held by the 

Investor that cease to be Registrable Securities solely by reason of clause (2) in the definition of 

“Registrable Securities,” the provisions of Sections 5.12(b)(ii), clauses (iv), (ix) and (x)-(xii) of 

Section 5.12(d), Section 5.12(h) and Section 5.12(j) shall continue to apply until such securities 

otherwise cease to be Registrable Securities. In any such case, an “underwritten” offering or 

other disposition shall include any distribution of such securities on behalf of the Investor by one 

- 35 - 
or more broker-dealers, an “underwriting agreement” shall include any purchase agreement 

entered into by such broker-dealers, and any “registration statement” or “prospectus” shall 

include any offering document approved by the Company and used in connection with such 

distribution. 

(q) Registered Sales of the Warrant. The Holders agree to sell the Warrant or any 

portion thereof under the Shelf Registration Statement only beginning 30 days after notifying the 

Company of any such sale, during which 30-day period the Investor and all Holders of the 

Warrant shall take reasonable steps to agree to revisions to the Warrant to permit a public 

distribution of the Warrant, including entering into a warrant agreement and appointing a warrant 

agent. 

5.13 Depository Senior Notes. Upon request by the Investor at any time following the 

Closing Date, the Company shall promptly enter into a depositary arrangement, pursuant to 

customary agreements reasonably satisfactory to the Investor and with a depositary reasonably 

acceptable to the Investor, pursuant to which the Senior Notes may be deposited. 

5.14 Restriction on Dividends and Repurchases. 

(a) The Company may pay, on an annual basis consistent with past practice, 

dividends on Mutual Capital Interests in the amount of the “Additional Dividends” per share as 

set forth in Schedule B. The consent of the Investor shall be required for any increase in such 

Additional Dividends paid on an annual basis by the Company prior to the earlier of (x) the third 

anniversary of the Closing Date and (y) the date on which all of the Senior Notes have been 

redeemed in whole or the Investor has transferred all of the Senior Notes to unaffiliated third 

parties, which for this purpose does not include a securitization vehicle or investment pool in 

which the Investor is an initial sponsor or participant so long as the Investor has an economic 

interest in such vehicle or pool (“Third Parties”). 

(b) During the period beginning on the third anniversary of the Closing Date and 

ending on the earlier of (i) the tenth anniversary of the Closing Date and (ii) the date on which all 

of the Senior Notes have been paid in full or the Investor has transferred all of the Senior Notes 

to Third Parties, neither the Company nor any Company Subsidiary shall, without the consent of 

the Investor, pay: (x) any extraordinary dividends on deposit accounts (dividends in excess of the 

stated rate or that are in excess of the amount resulting from the stated method of calculating the 

rate on such an account); or (y) any Additional Dividend on any Mutual Capital Interests or any 

shares of capital stock or other equity securities of any kind of any Company Subsidiary at a per 

annum rate per Mutual Capital Interest or share that is greater than 103% of the Additional 

Dividends per Mutual Capital Interest or share for the immediately prior year or that is paid in 

the form of Mutual Capital Interests. 

(c) Prior to the earlier of (x) the tenth anniversary of the Closing Date and (y) the date 

on which all of the Senior Notes have been paid in full or the Investor has transferred all of the 

Senior Notes to Third Parties, neither the Company nor any Company Subsidiary shall, without 

the consent of the Investor, redeem, purchase, repay or acquire any Mutual Capital Interests, 

Trust Preferred Securities or any shares of capital stock or other equity securities of any kind of 

any Company Subsidiary, other than (i) in connection with the administration of any employee 

- 36 - 
benefit plan in the ordinary course of business and consistent with past practice or relevant 

income tax laws, (ii) the acquisition by the Company or any of the Company Subsidiaries of 

record ownership of Mutual Capital Interests for the beneficial ownership of any other persons 

(other than the Company or any other Company Subsidiary), including as trustees or custodians, 

(iii) the exchange or conversion of Mutual Capital Interests for or into other Mutual Capital 

Interests in the Company or of Trust Preferred Securities for or into other Trust Preferred 

Securities (with the same or lesser aggregate liquidation amount and on substantially similar 

terms) or Mutual Capital Interests, in each case set forth in this clause (iii), solely to the extent 

required pursuant to binding contractual agreements entered into prior to the Signing Date or any 

subsequent agreement for the accelerated exercise, settlement or exchange thereof for Mutual 

Capital Interests (clauses (i) and (ii), collectively, the “Permitted Repurchases”), 

(iv) redemptions of securities held by the Company or any wholly-owned Company Subsidiary 

or (v) redemptions, purchases, repayments or other acquisitions of Mutual Capital Interests, 

Trust Preferred Securities or other securities of any kind of the Company or any Company 

Subsidiary required pursuant to binding contractual agreements entered into prior to [●], 2009. 

(d) Until such time as the Investor ceases to own any Senior Notes, the Company 

shall not repurchase any Senior Notes from any Holder thereof, whether by means of open 

market purchase, negotiated transaction, or otherwise, unless it offers to repurchase a ratable 

portion of the Senior Notes then held by the Investor on the same terms and conditions. 

(e) Notwithstanding anything contained in this Section 5.14, during the period 

beginning on the tenth anniversary of the Closing and ending on the date on which all of the 

Senior Notes have been paid in full or repurchased in whole, neither the Company nor any 

Company Subsidiary shall, without the consent of the Investor, (i) declare or pay any dividend 

(including any Additional Dividends) or make any distribution on any Mutual Capital Interests, 

Trust Preferred Securities or any shares of capital stock or other equity securities of any kind of 

any Company Subsidiary; or (ii) redeem, purchase, repay or acquire any Mutual Capital 

Interests, Trust Preferred Securities or any shares of capital stock or other equity securities of any 

kind of any Company Subsidiary. 

(f) Notwithstanding anything contained in this Section 5.14, without the consent of 

the Investor and for so long as the Purchased Securities or Warrant Securities are outstanding, no 

dividends may be declared or paid (including any Additional Dividends) on any Mutual Capital 

Interests, Trust Preferred Securities or any shares of capital stock or other equity securities of any 

kind of any Company Subsidiary, nor may the Company or any Company Subsidiary purchase, 

redeem or acquire any Mutual Capital Interests, Trust Preferred Securities or any shares of 

common stock or capital stock or other equity securities of any kind of any Company Subsidiary, 

unless all accrued and unpaid Interest (including Deferred Interest) for all past interest periods on 

the Senior Notes is paid in full. 

5.15 Redemption. 

(a) The Senior Notes at the time outstanding may be redeemed by the Company at its 

option, subject to the approval of the Appropriate Federal Banking Agency, in whole or in part 

and subject to Section 5.15(e), at any time and from time to time, out of funds legally available 

therefor, upon notice given as provided in Section 5.15(d) below, on any Interest Payment Date 

- 37 - 
(the “Redemption Date”) at a redemption price equal to the sum of (i) 100% of the principal 

amount thereof being called for redemption (provided that, if less than all of the outstanding 

Senior Notes are then being redeemed, such amount shall not be less than 25% of the Purchase 

Price) and (ii) any accrued and unpaid interest (including Deferred Interest). 

(b) The redemption price for any Senior Notes shall be payable on the Redemption 

Date to the Holder of such Senior Notes against surrender thereof to the Company or its agent. 

Interest shall be paid at the then applicable Interest Rate from the date of the last Interest 

Payment Date up to but not including the Redemption Date. 

(c) No Sinking Fund. The Senior Notes will not be subject to any mandatory 

redemption, sinking fund or other similar provisions. Holders of Senior Notes will have no right 

to require redemption or repurchase of any of the Senior Notes. 

(d) Notice of Redemption. Notice of redemption of the Senior Notes shall be given 

by first class mail, postage prepaid, addressed to the Holders of record of the Senior Notes to be 

redeemed at their respective last addresses appearing on the Senior Note Register. Such mailing 

shall be at least 30 days and not more than 60 days before the Redemption Date. Any notice 

mailed as provided in this Subsection shall be conclusively presumed to have been duly given, 

whether or not the Holder receives such notice, but failure duly to give such notice by mail, or 

any defect in such notice or in the mailing thereof, to any Holder of Senior Notes designated for 

redemption shall not affect the validity of the proceedings for the redemption of any other Senior 

Notes. Notwithstanding the foregoing, if Senior Notes are issued in book-entry form through 

The Depository Trust Company or any other similar facility, notice of redemption may be given 

to the Holders of Senior Notes at such time and in any manner permitted by such facility. Each 

notice of redemption given to a Holder shall state: (1) the Redemption Date; (2) the amount of 

Senior Notes to be redeemed by such Holder; (3) the redemption price; and (4) the place or 

places where such Senior Notes are to be surrendered for payment of the redemption price. 

(e) Partial Redemption. The Company may redeem less than all of the outstanding 

Senior Notes, provided that the amount called for redemption at any time is not less than 25% of 

the amount of the outstanding principal amount of the Senior Notes. In case of any redemption 

of less than all of the Senior Notes at the time outstanding, the Company shall redeem the Senior 

Subordinated Securities in full prior to redeeming any of the Warrant Securities. Subject to the 

provisions hereof, the Board of Directors or a duly authorized committee thereof shall have full 

power and authority to prescribe the terms and conditions upon which Senior Notes shall be 

redeemed from time to time. If less than the full aggregate principal amount of any Senior Note 

is redeemed, the Company shall issue a new Senior Note in the unredeemed aggregate principal 

amount thereof without charge to the Holder thereof. Senior Notes may be redeemed in part 

only on a pro rata basis and only in minimum denominations of $1,000 and integral multiples 

thereof. 

(f) Effectiveness of Redemption. If notice of redemption has been duly given and if 

on or before the Redemption Date specified in the notice all funds necessary for the redemption 

have been deposited by the Company, in trust for the pro rata benefit of the Holders of the 

Senior Notes called for redemption, with a bank or trust company doing business in the Borough 

of Manhattan, The City of New York, and having a capital and surplus of at least $500 million 

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and selected by the Board of Directors, so as to be and continue to be available solely therefor, 

then, notwithstanding that any Senior Note so called for redemption has not been surrendered for 

cancellation, on and after the Redemption Date interest shall cease to accrue on the aggregate 

principal amount of such Senior Notes so called for redemption, the aggregate principal amount 

of such Senior Notes so called for redemption shall no longer be deemed outstanding and shall 

cease to bear interest from and after the Redemption Date. All rights with respect to such Senior 

Notes (or the portion thereof so called for redemption) shall forthwith on such Redemption Date 

cease and terminate, except only the right of the Holders thereof to receive the redemption price 

payable on such redemption from such bank or trust company, without interest. Any funds 

unclaimed at the end of three years from the Redemption Date shall, to the extent permitted by 

applicable law, be released to the Company, after which time the Holders of such Senior Notes 

(or portion thereof so called for redemption) shall look only to the Company for payment of the 

redemption price of such Senior Notes. 

(g) Status of Redeemed Securities. Senior Notes that are redeemed, repurchased or 

otherwise acquired by the Company shall be cancelled and shall not thereafter be re-issued by 

the Company. 

5.16 Executive Compensation, Transparency, Accountability and Monitoring. Until 

such time as the Investor ceases to own any debt or equity securities of the Company acquired 

pursuant to this Agreement or the Warrant, the Company and each of its Senior Executive 

Officers shall take all necessary action to ensure that its Benefit Plans comply in all respects with 

Section 111(b) of the EESA, as amended and as implemented by any guidance or regulation 

thereunder that has been issued and is in effect as of the Closing Date, and shall not adopt any 

new Benefit Plan with respect to its Senior Executive Officers that does not comply therewith. 

“Senior Executive Officers” means the Bank's “senior executive officers” as defined in 

subsection 111(b)(3) of the EESA and regulations issued thereunder, including the rules set forth 

in 31 C.F.R. Part 30. 

5.17 Related Party Transactions. Until such time as the Investor ceases to own any 

debt or other securities of the Company, including the Purchased Securities or Warrant 

Securities, the Company and the Company Subsidiaries shall not enter into transactions with 

Affiliates or related persons (within the meaning of Item 404 under the SEC’s Regulation S-K) 

unless (i) such transactions are on terms no less favorable to the Company and the Company 

Subsidiaries than could be obtained from an unaffiliated third party, and (ii) have been approved 

by the audit committee of the Board of Directors or comparable body of independent directors of 

the Company, or, if there are no “independent directors,” the board of directors of the Company, 

but only if the board of directors maintains written documentation supporting its determination 

that the transaction meets the requirements of this paragraph. 

5.18 Bank and Thrift Holding Company Status. If the Company is a Bank Holding 

Company or a Savings and Loan Holding Company on the Signing Date, then the Company shall 

maintain its status as either a Bank Holding Company or Savings and Loan Holding Company, 

as the case may be, for as long as the Investor owns any Purchased Securities or Warrant 

Securities. The Company shall redeem all Purchased Securities and Warrant Securities held by 

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the Investor prior to terminating its status as a Bank Holding Company or Savings and Loan 

Holding Company, as applicable. “Bank Holding Company” means a company registered as 

such with the Board of Governors of the Federal Reserve System (the “Federal Reserve”) 

pursuant to 12 U.S.C. §1842 and the regulations of the Federal Reserve promulgated thereunder. 

“Savings and Loan Holding Company” means a company registered as such with the Office of 

Thrift Supervision pursuant to 12 U.S.C. §1467(a) and the regulations of the Office of Thrift 

Supervision promulgated thereunder. 

5.19 Predominantly Financial. For as long as the Investor owns any Purchased 

Securities or Warrant Securities, the Company, to the extent it is not itself an insured depository 

institution, agrees to remain predominantly engaged in financial activities. A company is 

predominantly engaged in financial activities if the annual gross revenues derived by the 

company and all subsidiaries of the company (excluding revenues derived from subsidiary 

depository institutions), on a consolidated basis, from engaging in activities that are financial in 

nature or are incidental to a financial activity under subsection (k) of Section 4 of the Bank 

Holding Company Act of 1956 (12 U.S.C. 1843(k)) represent at least 85 percent of the 

consolidated annual gross revenues of the company. 

5.20 Voting Rights. 

(a) General. The Holders of Senior Notes shall not have any voting rights except as 

set forth below or as otherwise from time to time required by law. 

(b) Senior Note Directors. Subject to the provisions of Section 2.2(w), whenever, at 

any time or times, interest payable on the Senior Notes has not been paid in full for an aggregate 

of six (6) quarterly Interest Payment Periods or more, whether or not consecutive, the authorized 

number of directors of the Company shall automatically be increased by two and the Holders of 

the Senior Notes shall have the right, voting as a class, to elect or appoint two directors to fill 

such newly created directorships or, if applicable law does not permit the Holders to elect or 

appoint such directors, to designate or nominate two individuals for election or appointment to 

fill such directorships (such directors, hereinafter the “Senior Note Directors” and each a “Senior 

Note Director”) at the Company’s next annual meeting of Members (or at a special meeting 

called for that purpose prior to such next annual meeting) and at each subsequent annual meeting 

of Members until all accrued and unpaid interest for all past Interest Periods, including the latest 

completed Interest Period (including, if applicable as provided in Section 5.5 above, interest on 

such amount), on all outstanding Senior Notes has been paid in full at which time such right shall 

terminate with respect to the Senior Notes, except as herein or by law expressly provided, subject 

to revesting in the event of each and every subsequent default of the character above mentioned; 

provided that it shall be a qualification for election for any Senior Note Director that the election 

of such Senior Note Director shall not cause the Company to violate any corporate governance 

requirements of any securities exchange or other trading facility on which securities of the 

Company may then be listed or traded that listed or traded companies must have a majority of 

independent directors. Upon any termination of the right of the Holders of Senior Notes as a 

class to vote for directors as provided above, the Senior Note Directors shall cease to be qualified 

as directors, the term of office of all Senior Note Directors then in office shall terminate 

immediately and the authorized number of directors shall be reduced by the number of Senior 

Note Directors elected pursuant hereto. Any Senior Note Director may be removed at any time, 

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with or without cause, and any vacancy created thereby may be filled, only by the affirmative 

vote of the Majority Holders of the Senior Notes at the time outstanding voting separately as a 

class, to the extent the voting rights of such Holders described above are then exercisable. If the 

office of any Senior Note Director becomes vacant for any reason other than removal from office 

as aforesaid, the remaining Senior Note Director may choose a successor who shall hold office 

for the unexpired term in respect of which such vacancy occurred. 

(c) Class Voting Rights as to Particular Matters. So long as any Senior Notes are 

outstanding, in addition to any other vote or consent of Mutual Interest Holders required by law 

or by the Charter, the vote or consent of the Holders of at least 66 2/3% of the Senior Notes at 

the time outstanding, given in person or by proxy, either in writing without a meeting or by vote 

at any meeting of the Holders of Senior Notes called for the purpose in accordance with Section 

5.20(e), shall be necessary for effecting or validating: 

(i) Amendment of Senior Notes. Any amendment, alteration or repeal of any 

provision of this Agreement or of the form of the Senior Notes or the Charter (including, 

unless no vote on such merger or consolidation is required by Section 5.20(c)(ii) below, 

any amendment, alteration or repeal by means of a merger, consolidation or otherwise) so 

as to adversely affect the rights, preferences, privileges or voting powers of the Senior 

Notes; or 

(ii) Exchanges, Reclassifications, Mergers and Consolidations. Any 

consummation of a binding exchange or reclassification involving the Senior Notes, or of 

a merger or consolidation of the Company with another entity, unless in each case (x) the 

Senior Notes remain outstanding or, in the case of any such merger or consolidation with 

respect to which the Company is not the surviving or resulting entity, are converted into 

or exchanged for securities of the surviving or resulting entity or its ultimate parent, and 

(y) such remaining Senior Notes outstanding or such securities, as the case may be, have 

such rights, preferences, privileges and voting powers, and limitations and restrictions 

thereof, taken as a whole, as are not materially less favorable to the Holders thereof than 

the rights, preferences, privileges and voting powers, and limitations and restrictions 

thereof, of Senior Notes immediately prior to such consummation, taken as a whole; 

provided, however, that for all purposes of this Section 5.20(c), any increase in the amount of the 

Senior Notes, or the creation and issuance of any other Indebtedness of the Company, or any 

securities convertible into or exchangeable or exercisable for any Senior Notes, ranking senior 

to, equally with and/or subordinate to the Senior Notes with respect to the payment of interest 

(whether or not such interest compounds) and the distribution of assets upon liquidation, 

dissolution or winding up of the Company will not be deemed to adversely affect the rights, 

preferences, privileges or voting powers, and shall not require the affirmative vote or consent of, 

the Holders of outstanding Senior Notes. 

(d) Changes after Provision for Redemption. No vote or consent of the Holders of 

Senior Notes shall be required pursuant to Section 5.20(c) above if, at or prior to the time when 

any such vote or consent would otherwise be required pursuant to such Section, all outstanding 

Senior Notes shall have been redeemed, or shall have been called for redemption upon proper 

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notice and sufficient funds shall have been deposited in trust for such redemption, in each case 

pursuant to Section 5.15 above. 

(e) Procedures for Voting and Consents. The rules and procedures for calling and 

conducting any meeting of the Holders of Senior Notes (including, without limitation, the fixing 

of a record date in connection therewith), the solicitation and use of proxies at such a meeting, 

the obtaining of written consents and any other aspect or matter with regard to such a meeting or 

such consents shall be governed by any rules of the Board of Directors or any duly authorized 

committee of the Board of Directors, in its discretion, may adopt from time to time, which rules 

and/or procedures shall conform to the requirements of the Charter, the bylaws, and applicable 

law and the rules of any national securities exchange or other trading facility on which the Senior 

Notes are listed or traded at the time. 

Article VI 

Subordination of the Senior Notes 

6.1 Agreement to Subordinate. 

(a) The Company covenants and agrees, and each Holder of Senior Notes issued 

hereunder likewise covenants and agrees, that the Senior Notes shall be issued subject to the 

provisions of this Article VI; and each Holder of a Senior Note, whether upon original issue or 

upon transfer or assignment thereof, accepts and agrees to be bound by such provisions. 

(b) The payment by the Company of the principal of and interest on all Senior Notes 

issued hereunder shall, to the extent and in the manner hereinafter set forth, be subordinated and 

subject in right of payment to the prior payment in full of all contract rights of the Members, if 

applicable, and all amounts then due and payable in respect of Senior Indebtedness, whether 

outstanding at the date of this Agreement or thereafter incurred. The term “Senior 

Indebtedness” means, with respect to the Senior Notes, the principal of (and premium, if 

any) and interest, if any (including interest accruing on or after the filing of any petition in 

bankruptcy or for reorganization relating to the Company, whether or not such claim for post 

petition interest is allowed in such proceedings), on all Indebtedness, whether outstanding on the 

date of execution of this Agreement, or hereafter created, assumed or incurred, and any deferrals, 

renewals or extensions of such Indebtedness including all contract rights of the Members; 

provided, however, that Senior Indebtedness shall not include (A) any Indebtedness issued to any 

statutory trust created by the Company for the purpose of issuing Trust Preferred Securities in 

connection with such issuance of Indebtedness, which shall in all cases be junior to such Senior 

Notes, (B) any guarantees of the Company in respect of the equity securities or other securities 

of any financing entity referred to in clause (A) above, (C) any other subordinated debt of the 

Company that by its terms ranks pari passu or junior to the Senior Notes issued hereunder or 

(D) any Mutual Capital Interests. The term “Indebtedness” shall mean, whether or not recourse 

is to all or a portion of the assets of the Company and whether or not contingent, (i) the claims of 

the Company’s secured and general creditors; (ii) every obligation of the Company for money 

borrowed; (iii) every obligation of the Company evidenced by bonds, debentures, notes or other 

similar instruments, including obligations incurred in connection with the acquisition of 

property, assets or businesses; (iv) every reimbursement obligation of the Company, contingent 

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or otherwise, with respect to letters of credit, bankers’ acceptances, security purchase facilities or 

similar facilities issued for the account of the Company; (v) every obligation of the Company 

issued or assumed as the deferred purchase price of property or services (but excluding trade 

accounts payable or accrued liabilities arising in the ordinary course of business); (vi) every 

capital lease obligation of the Company; (vii) all indebtedness of the Company for claims in 

respect of derivative products, including interest rate, foreign exchange rate and commodity 

forward contracts, options and swaps and similar arrangements; (viii) every obligation of the 

type referred to in clauses (i) through (vii) of another Person and all dividends of another Person 

the payment of which, in either case, the Company has guaranteed or is responsible or liable for 

directly or indirectly, as obligor or otherwise, and (ix) every obligation of the type referred to in 

clauses (i) through (vii) of another Person and all dividends of another Person the payment of 

which, in either case, is secured by a lien on any property or assets of the Company. 

(c) No provision of this Article VI shall prevent the occurrence of any Event of 

Default (or any event which, after notice or the lapse of time or both would become, an Event of 

Default) with respect to the Senior Notes hereunder. 

6.2 Default on Senior Indebtedness. 

(a) In the event and during the continuation of any default by the Company in the 

payment of principal, premium, interest or any other payment due on any Senior Indebtedness, 

no payment shall be made by the Company with respect to the principal or interest on the Senior 

Notes or any other amounts which may be due on the Senior Notes pursuant to the terms hereof 

or thereof. 

(b) In the event of the acceleration of the maturity of the Senior Indebtedness, then no 

payment shall be made by the Company with respect to the principal or interest on the Senior 

Notes or any other amounts which may be due on the Senior Notes pursuant to the terms hereof 

or thereof until the holders of all Senior Indebtedness outstanding at the time of such acceleration 

shall receive payment, in full, of all amounts due on or in respect of such Senior Indebtedness 

(including any amounts due upon acceleration). 

(c) In the event that, notwithstanding the foregoing, any payment is received by any 

Holder of a Senior Note, when such payment is prohibited by the preceding paragraphs of this 

Section 6.2, such payment shall be held in trust for the benefit of, and shall be paid over or 

delivered by the Holder of the Senior Notes to the holders of Senior Indebtedness or their 

respective representatives, or to the trustee or trustees under any indenture pursuant to which any 

of such Senior Indebtedness may have been issued, as their respective interests may appear, but 

only to the extent of the amounts in respect of such Senior Indebtedness and to the extent that the 

holders of the Senior Indebtedness (or their representative or representatives or a trustee) notify 

the Company in writing within 90 days of such payment of the amounts then due and owing on 

such Senior Indebtedness, and only the amounts specified in such notice to the Company shall be 

paid to the holders of such Senior Indebtedness. 

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6.3 Liquidation; Dissolution; Bankruptcy. 

(a) Upon any payment by the Company or distribution of assets of the Company of 

any kind or character, whether in cash, property or securities, to creditors upon any dissolution, 

winding-up, liquidation or reorganization of the Company, whether voluntary or involuntary or 

in bankruptcy, insolvency, receivership or other proceedings, the holders of all Senior 

Indebtedness of the Company will first be entitled to receive payment in full of amounts due on 

or in respect of such Senior Indebtedness, before any payment is made by the Company on 

account of the principal of or interest on the Senior Notes or any other amounts which may be 

due on the Senior Notes pursuant to the terms hereof or thereof); and upon any such dissolution, 

winding-up, liquidation or reorganization, any payment by the Company, or distribution of assets 

of the Company of any kind or character, whether in cash, property or securities, which the 

Holder of the Senior Notes would be entitled to receive from the Company, except for the 

provisions of this Article VI, shall be paid by the Company or by any receiver, trustee in 

bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by 

the Holder of the Senior Notes under this Agreement if received by them or it, directly to the 

holders of Senior Indebtedness of the Company (pro rata to such holders on the basis of the 

respective amounts of Senior Indebtedness held by such holders, as calculated by the 

Company) or their representative or representatives, or to the trustee or trustees under any 

indenture pursuant to which any instruments evidencing such Senior Indebtedness may have 

been issued, as their respective interests may appear, to the extent necessary to pay all such 

amounts of Senior Indebtedness in full, in money or moneys worth, after giving effect to any 

concurrent payment or distribution to or for the holders of such Senior Indebtedness, before any 

payment or distribution is made to the Holder of the Senior Notes. 

(b) In the event that, notwithstanding the foregoing, any payment or distribution of 

assets of the Company of any kind or character prohibited by Section 6.3(a), whether in cash, 

property or securities, shall be received by any Holder of the Senior Notes, before the amounts of 

all Senior Indebtedness is paid in full, or provision is made for such payment in money in 

accordance with its terms, such payment or distribution shall be held in trust for the benefit of 

and shall be paid over or delivered by any Holder of a Senior Note, to the holders of such Senior 

Indebtedness or their representative or representatives, or to the trustee or trustees under any 

indenture pursuant to which any instruments evidencing such Senior Indebtedness may have 

been issued, as their respective interests may appear, as calculated by the Company, for 

application to the payment of all amounts of Senior Indebtedness remaining unpaid to the extent 

necessary to pay all amounts due on or in respect of such Senior Indebtedness in full in money in 

accordance with its terms, after giving effect to any concurrent payment or distribution to or for 

the benefit of the holders of such Senior Indebtedness. 

(c) For purposes of this Article VI, the words “cash, property or securities” shall not 

be deemed to include Mutual Capital Interests in the Company as reorganized or readjusted, or 

securities of the Company or any other entity provided for by a plan of reorganization or 

readjustment, the payment of which is subordinated at least to the extent provided in this 

Article VI with respect to the Senior Notes to the payment of Senior Indebtedness that may at the 

time be outstanding, provided that (i) such Senior Indebtedness is assumed by the new entity, if 

any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of 

such Senior Indebtedness are not, without the consent of such holders, altered by such 

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reorganization or readjustment. The consolidation of the Company with, or the merger of the 

Company into, another Person or the liquidation or dissolution of the Company following the 

sale, conveyance, transfer or lease of its property as an entirety, or substantially as an entirety, to 

another Person upon the terms and conditions provided for in Section 5.8 of this Agreement shall 

not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this 

Section 6.3 if such other Person shall, as a part of such consolidation, merger, sale, conveyance, 

transfer or lease, comply with the conditions stated in Section 5.8 of this Agreement. 

6.4 Subrogation. 

(a) Subject to the payment in full of all of Senior Indebtedness, the rights of the 

Holders of the Senior Notes shall be subrogated to the rights of the holders of such Senior 

Indebtedness to receive payments or distributions of cash, property or securities of the Company, 

as the case may be, applicable to such Senior Indebtedness until the principal of and interest on 

the Senior Notes shall be paid in full; and, for the purposes of such subrogation, no payments or 

distributions to the holders of such Senior Indebtedness of any cash, property or securities to 

which the Holders of the Senior Notes would be entitled except for the provisions of this 

Article VI, and no payment pursuant to the provisions of this Article VI to or for the benefit of 

the holders of such Senior Indebtedness by the Holders of the Senior Notes shall, as between the 

Company, its creditors other than holders of Senior Indebtedness of the Company, and the 

Holders of the Senior Notes, be deemed to be a payment by the Company to or on account of 

such Senior Indebtedness. It is understood that the provisions of this Article VI are intended 

solely for the purposes of defining the relative rights of the Holders of the Senior Notes, on the 

one hand, and the holders of such Senior Indebtedness on the other hand. 

(b) Nothing contained in this Article VI or elsewhere in this Agreement or in the 

Senior Notes is intended to or shall impair, as between the Company, its creditors other than the 

holders of Senior Indebtedness of the Company, and the Holders of the Senior Notes, the 

obligation of the Company, which is absolute and unconditional, to pay to the Holders of the 

Senior Notes the principal of and interest on the Senior Notes as and when the same shall 

become due and payable in accordance with their terms, or is intended to or shall affect the 

relative rights of the Holders of the Senior Notes and creditors of the Company, as the case may 

be, other than the holders of Senior Indebtedness of the Company, as the case may be, nor shall 

anything herein or therein prevent the Holder of any Senior Notes from exercising all remedies 

otherwise permitted by applicable law upon default under this Agreement, subject to the rights, if 

any, under this Article VI of the holders of such Senior Indebtedness in respect of cash, property 

or securities of the Company, as the case may be, received upon the exercise of any such remedy. 

6.5 Notice by the Company. 

(a) The Company shall give prompt written notice to the Holders of the Senior Notes 

of any fact known to the Company that would prohibit the making of any payment of monies in 

respect of the Senior Notes pursuant to the provisions of this Article VI. 

(b) Upon any payment or distribution of assets of the Company referred to in this 

Article VI, the Holders of the Senior Notes shall be entitled to conclusively rely upon any order 

or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, 

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receivership, liquidation, reorganization, dissolution, winding-up or similar case or proceeding is 

pending, or a certificate of the trustee in bankruptcy, liquidating trustee, custodian, receiver, 

assignee for the benefit of creditors, agent or other person making such payment or distribution, 

delivered to the Holders of the Senior Notes, for the purpose of ascertaining the persons entitled 

to participate in such payment or distribution, the holders of Senior Indebtedness and other 

indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts 

paid or distributed thereon and all other facts pertinent thereto or to this Article VI. 

6.6 Subordination May Not Be Impaired. 

(a) No right of any present or future holder of any Senior Indebtedness of the 

Company to enforce subordination as herein provided shall at any time in any way be prejudiced 

or impaired by any act or failure to act on the part of the Company, as the case may be, or by any 

act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company, 

as the case may be, with the terms, provisions and covenants of this Agreement, regardless of 

any knowledge thereof that any such holder may have or otherwise be charged with. 

(b) Without in any way limiting the generality of the foregoing paragraph, the holders 

of Senior Indebtedness of the Company may, at any time and from time to time, without the 

consent of or notice to the Holders of the Senior Notes, without incurring responsibility to the 

Holders of the Senior Notes and without impairing or releasing the subordination provided in this 

Article VI or the obligations hereunder of the Holders of the Senior Notes to the holders of such 

Senior Indebtedness, do any one or more of the following: (i) change the manner, place or terms 

of payment or extend the time of payment of, or renew or alter, such Senior Indebtedness, or 

otherwise amend or supplement in any manner such Senior Indebtedness or any instrument 

evidencing the same or any agreement under which such Senior Indebtedness is outstanding; 

(ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise 

securing such Senior Indebtedness; (iii) release any Person liable in any manner for the 

collection of such Senior Indebtedness; and (iv) exercise or refrain from exercising any rights 

against the Company, as the case may be, and any other Person. 

Article VII 

Miscellaneous 

7.1 Termination. This Agreement may be terminated at any time prior to the Closing: 

(a) by either the Investor or the Company if the Closing shall not have occurred by 

the 30th calendar day following the Signing Date; provided, however, that in the event the 

Closing has not occurred by such 30th calendar day, the parties will consult in good faith to 

determine whether to extend the term of this Agreement, it being understood that the parties shall 

be required to consult only until the fifth day after such 30th calendar day and not be under any 

obligation to extend the term of this Agreement thereafter; provided, further, that the right to 

terminate this Agreement under this Section 7.1(a) shall not be available to any party whose 

breach of any representation or warranty or failure to perform any obligation under this 

Agreement shall have caused or resulted in the failure of the Closing to occur on or prior to such 

date; or 

- 46 - 
(b) by either the Investor or the Company in the event that any Governmental Entity 

shall have issued an order, decree or ruling or taken any other action restraining, enjoining or 

otherwise prohibiting the transactions contemplated by this Agreement and such order, decree, 

ruling or other action shall have become final and nonappealable; or 

(c) by the mutual written consent of the Investor and the Company. 

In the event of termination of this Agreement as provided in this Section 7.1, this Agreement 

shall forthwith become void and there shall be no liability on the part of either party hereto 

except that nothing herein shall relieve either party from liability for any breach of this 

Agreement. 

7.2 Survival of Representations and Warranties. All covenants and agreements, other 

than those which by their terms apply in whole or in part after the Closing, shall terminate as of 

the Closing. The representations and warranties of the Company made herein or in any 

certificates delivered in connection with the Closing shall survive the Closing without limitation. 

7.3 Amendment. Except as otherwise provided herein, no amendment, modification, 

termination or waiver of any provision of this Agreement, the Warrant, the Senior Notes or any 

of the other Transaction Documents, or consent to any departure by the Company therefrom, 

shall be effective unless made in writing and signed by an officer or a duly authorized 

representative of the Company and, in the case of the Warrant, the holder thereof, and in the case 

of the Senior Notes, the Majority Holders; provided that the Investor may unilaterally amend any 

provision of this Agreement to the extent required to comply with any changes after the Signing 

Date in applicable federal statutes; provided further that, notwithstanding anything else in this 

Section 7.3, no amendment, modification, termination or waiver with respect to the Senior Notes 

shall, unless in writing and signed by all Holders, do any of the following: (A) change the 

principal of or the rate of interest on any Senior Note; (B) extend any date fixed for any payment 

of principal or interest; (C) change the definition of the term “Majority Holders” or the 

percentage of Holders which shall be required for Holders to take any action hereunder; 

(D) amend or waive this Section 7.3 or the definitions of the terms used in this Section 7.3

insofar as the definitions affect the substance of this Section 7.3; or (E) consent to the 

assignment, delegation or other transfer by the Company of any of its rights and obligations 

under any Transaction Documents. Any amendment, modification, termination, waiver or 

consent effected in accordance with this Section 7.3 shall be binding upon each Holder of the 

Senior Notes and the Warrant at the time outstanding, each future Holder of the Senior Notes, the 

holder of the Warrant and the Company. No failure or delay by any party in exercising any right, 

power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial 

exercise thereof preclude any other or further exercise of any other right, power or privilege. 

The rights and remedies herein provided shall be cumulative of any rights or remedies provided 

by law. 

7.4 Waiver of Conditions. The conditions to each party’s obligation to consummate 

the Purchase are for the sole benefit of such party and may be waived by such party in whole or 

in part to the extent permitted by applicable law. No waiver will be effective unless it is in a 

writing signed by a duly authorized officer of the waiving party that makes express reference to 

the provision or provisions subject to such waiver. 

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7.5 GOVERNING LAW: SUBMISSION TO JURISDICTION, ETC. THIS 

AGREEMENT AND THE SENIOR NOTES WILL BE GOVERNED BY AND 

CONSTRUED IN ACCORDANCE WITH THE FEDERAL LAW OF THE UNITED 

STATES IF AND TO THE EXTENT SUCH LAW IS APPLICABLE, OTHERWISE IN 

ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE 

TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH 

STATE. EACH OF THE PARTIES HERETO AGREES (A) TO SUBMIT TO THE 

EXCLUSIVE JURISDICTION AND VENUE OF THE UNITED STATES DISTRICT 

COURT FOR THE DISTRICT OF COLUMBIA AND THE UNITED STATES COURT 

OF FEDERAL CLAIMS FOR ANY AND ALL CIVIL ACTIONS, SUITS OR 

PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE 

SENIOR NOTES OR THE WARRANT OR THE TRANSACTIONS CONTEMPLATED 

HEREBY OR THEREBY, AND (B) THAT NOTICE MAY BE SERVED UPON (I) THE 

COMPANY AT THE ADDRESS AND IN THE MANNER SET FORTH FOR NOTICES 

TO THE COMPANY IN SECTION 7.6, (II) ANY THE INVESTOR IN ACCORDANCE 

WITH FEDERAL LAW. TO THE EXTENT PERMITTED BY APPLICABLE LAW, 

EACH OF THE PARTIES HERETO AND EACH HOLDER OF THE SENIOR NOTES 

HEREBY UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY CIVIL LEGAL 

ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, THE SENIOR 

NOTES OR THE WARRANT OR THE TRANSACTIONS CONTEMPLATED HEREBY 

OR THEREBY. 

7.6 Notices. Any notice, request, instruction or other document to be given hereunder 

by any party to the other will be in writing and will be deemed to have been duly given (a) on the 

date of delivery if delivered personally, or by facsimile, upon confirmation of receipt, or (b) on 

the second business day following the date of dispatch if delivered by a recognized next day 

courier service. All notices to the Company shall be delivered as set forth in Schedule A, or 

pursuant to such other instruction as may be designated in writing by the Company to the 

Investor. All notices to the Holders of Senior Notes shall be delivered in writing, mailed firstclass postage prepaid, to each Holder of a Senior Note at the address of such Holder as it appears 

in the Senior Note Register. All notices to the Investor shall be delivered as set forth below, or 

pursuant to such other instructions as may be designated in writing by the Investor to the 

Company. 

If to the Investor: 

United States Department of the Treasury 

1500 Pennsylvania Avenue, NW, Room 2312 

Washington, D.C. 20220 

Attention: Assistant General Counsel (Banking and Finance) 

Facsimile: (202) 622-1974 

7.7 Definitions. 

(a) When a reference is made in this Agreement to a subsidiary of a person, the term 

“subsidiary” means any corporation, partnership, joint venture, limited liability company or other 

entity (x) of which such person or a subsidiary of such person is a general partner or (y) of which 

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- 49 - 

a majority of the voting securities or other voting interests, or a majority of the securities or other 

interests of which having by their terms ordinary voting power to elect a majority of the board of 

directors or persons performing similar functions with respect to such entity, is directly or 

indirectly owned by such person and/or one or more subsidiaries thereof. 

(b) The term “Affiliate” means, with respect to any person, any person directly or 

indirectly controlling, controlled by or under common control with, such other person. For 

purposes of this definition, “control” (including, with correlative meanings, the terms “controlled 

by” and “under common control with”) when used with respect to any person, means the 

possession, directly or indirectly, of the power to cause the direction of management and/or 

policies of such person, whether through the ownership of voting securities by contract or 

otherwise. 

(c) The terms “knowledge of the Company” or “Company’s knowledge” mean the 

actual knowledge after reasonable and due inquiry of the “officers” (as such term is defined in 

Rule 3b-2 under the Exchange Act, but excluding any Vice President or Secretary) of the 

Company. 

7.8 Assignment. Neither this Agreement nor any right, remedy, obligation nor 

liability arising hereunder or by reason hereof shall be assignable by any party hereto without the 

prior written consent of the other party, and any attempt to assign any right, remedy, obligation 

or liability hereunder without such consent shall be void, except (a) an assignment, in the case of 

a merger, consolidation, statutory share exchange or similar transaction that requires the approval 

of the Company’s Mutual Interest Holders or other equity securityholders (a “Business 

Combination”) where such party is not the surviving entity, or a sale of substantially all of its 

assets, to the entity which is the survivor of such Business Combination or the purchaser in such 

sale that meets the requirements of Section 5.8 and (b) as provided in Section 5.12. 

7.9 Severability. If any provision of this Agreement, the Senior Notes or the Warrant, 

or the application thereof to any person or circumstance, is determined by a court of competent 

jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof, or the 

application of such provision to persons or circumstances other than those as to which it has been 

held invalid or unenforceable, will remain in full force and effect and shall in no way be affected, 

impaired or invalidated thereby, so long as the economic or legal substance of the transactions 

contemplated hereby is not affected in any manner materially adverse to any party. Upon such 

determination, the parties shall negotiate in good faith in an effort to agree upon a suitable and 

equitable substitute provision to effect the original intent of the parties. 

7.10 No Third Party Beneficiaries. Nothing contained in this Agreement, expressed or 

implied, is intended to confer upon any person or entity (other than the Company, the Investor, 

any holder of the Warrant and any Holder of the Senior Notes) any benefit, right or remedies, 

except that the provisions of Section 5.12 shall inure to the benefit of the persons referred to in 

that Section. 

* * * 
ANNEX A 

FORM OF WAIVER

In consideration for the benefits I will receive as a result of my employer’s participation 

in the United States Department of the Treasury’s TARP Capital Purchase Program, I hereby 

voluntarily waive any claim against the United States or any state or territory thereof or my 

employer or any of its directors, officers, employees and agents for any changes to my 

compensation or benefits that are required in order to comply with Section 111 of the Emergency 

Economic Stabilization Act of 2008, as implemented by any guidance or regulation thereunder, 

as the same shall be in effect from time to time (“Compensation Regulations”). 

I acknowledge that the Compensation Regulations may require modification of the 

employment, compensation, bonus, incentive, severance, retention and other benefit plans, 

arrangements, policies and agreements (including so-called “golden parachute” agreements), 

whether or not in writing, that I have with my employer or in which I participate as they relate to 

the period the United States holds any equity or debt securities of my employer acquired through 

the TARP Capital Purchase Program and I hereby consent to all such modifications. I further 

acknowledge and agree that if my employer notifies me in writing that I have received payments 

in violation of the Compensation Regulations, I shall repay the aggregate amount of such 

payments to my employer no later than fifteen business days following my receipt of such notice. 

This waiver includes all claims I may have under the laws of the United States or any 

other jurisdiction related to the requirements imposed by the Compensation Regulations 

(including, without limitation, any claim for any compensation or other payments or benefits I 

would otherwise receive absent the Compensation Regulations, any challenge to the process by 

which the Compensation Regulations were adopted and any tort or constitutional claim about the 

effect of the foregoing on my employment relationship) and I hereby agree that I will not at any 

time initiate, or cause or permit to be initiated on my behalf, any such claim against the United 

States, my employer or its directors, officers, employees or agents in or before any local, state, 

federal or other agency, court or body. 

In witness whereof, I execute this waiver on my own behalf, thereby communicating my 

acceptance and acknowledgement to the provisions herein. 

 Respectfully, 

A - 1 
ANNEX B 

FORM OF OPINION

(a) The Company has been duly formed and is validly existing as an organization 

mutual in nature of the type described in Schedule A and in good standing under the laws of the 

state of its organization. 

(b) The Senior Subordinated Securities have been duly and validly authorized, and, 

when executed and delivered pursuant to the Agreement, the Senior Subordinated Securities will 

be the legal, valid and binding obligations of the Company, enforceable in accordance with their 

terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, 

moratorium or similar laws affecting the enforcement of creditors’ rights generally and general 

equitable principles, regardless of whether such enforceability is considered in a proceeding at 

law or in equity, and will rank Senior to Mutual Capital Interests, but subordinate to the contract 

rights of Members and to the Company’s other debt obligations to its general and secured 

creditors, unless such debt obligations are explicitly made pari passu or subordinated to the 

Senior Subordinated Securities, in accordance with applicable regulations of the Appropriate 

Federal Banking Agency. 

(c) The Warrant has been duly authorized and, when executed and delivered as 

contemplated by the Agreement, will constitute the legal, valid and binding obligation of the 

Company enforceable against the Company in accordance with its terms, except as the same may 

be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws 

affecting the enforcement of creditors’ rights generally and general equitable principles, 

regardless of whether such enforceability is considered in a proceeding at law or in equity. 

(d) The Warrant Securities have been duly authorized and reserved for issuance upon 

exercise of the Warrant and when so executed and delivered in accordance with the terms of the 

Warrant will be the legal, valid and binding obligations of the Company, enforceable in 

accordance with their terms, except as the same may be limited by applicable bankruptcy, 

insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ 

rights generally and general equitable principles, regardless of whether such enforceability is 

considered in a proceeding at law or in equity, and will rank senior to Mutual Capital Interests, 

but subordinate to the contract rights of Members and to the Company’s other debt obligations to 

its general and secured creditors, unless such debt obligations are explicitly made pari passu or 

subordinated to the Senior Subordinated Securities, in accordance with applicable regulations of 

the Appropriate Federal Banking Agency. 

(e) The Company has the entity power and authority to execute and deliver the 

Agreement and the Warrant and to carry out its obligations thereunder (which includes the 

issuance of the Senior Subordinated Securities, Warrant and Warrant Securities). 

(f) The execution, delivery and performance by the Company of the Agreement and 

the Warrant and the consummation of the transactions contemplated thereby have been duly 

authorized by all necessary entity action on the part of the Company and its Mutual Interest 

Holders, and no further approval or authorization is required on the part of the Company. 

B - 1 
B - 2 

(g) The Agreement is a legal, valid and binding obligation of the Company 

enforceable against the Company in accordance with its terms, except as the same may be 

limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws 

affecting the enforcement of creditors’ rights generally and general equitable principles, 

regardless of whether such enforceability is considered in a proceeding at law or in equity 

provided, however, such counsel need express no opinion with respect to Section 5.12(h) or the 

severability provisions of the Agreement insofar as Section 5.12(h) is concerned. 
ANNEX C 

FORM OF SENIOR SUBORDINATED SECURITIES

[SEE ATTACHED] 

C - 1 
ANNEX D 

FORM OF WARRANT SENIOR SUBORDINATED SECURITIES

[SEE ATTACHED] 

D - 1 
ANNEX E 

FORM OF WARRANT TO PURCHASE SENIOR SUBORDINATED SECURITIES

[SEE ATTACHED] 

E - 1