EXCHANGE AGREEMENT

by and among

FIRST MERCHANTS CORPORATION,

FIRST MERCHANTS CAPITAL TRUST III

AND

THE UNITED STATES DEPARTMENT OF THE TREASURY

Dated as oÍ June 30, 2010

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TABLE OF CONTENTS

Page

ARTICLE I

THE CLOSING THE EXCHAGE OF CAPITAL SECURTIES FOR SERIS A

PREFERRD STOCK ....................................................................................................................1

Section 1.1

Section 1.2

Section 1.3

The Capital Securties. .........................................................................................1

The Closing. .........................................................................................................2

Interpretation. .......................................................................................................4

ARTICLE II

EXCHANGE...................................................................................................................................4

Section 2.1

Section 2.2

Exchange..............................................................................................................4

Exchange Documentation. ................................................................................... 4

ARTICLE III

REPRESENTATIONS AN WARTIES OF THE COMPAN ...........................................5

Section 3.1

Section 3.2

Section 3.3

Section 3.4

Section 3.5

Section 3.6

Section 3.7

Section 3.8

Section 3.9

Existence and Power. ........................................................................................... 5

Authorization and Enforceability......................................................................... 5

Valid Issuance of Capital Securties and Debentures. .............................. ........... 6

Non-Contravention. .............................................................................................6

Representations and Waranties Regarding the Trust. .........................................7

No Company Material Adverse Effect. ...............................................................8

Brokers and Finders. ............................................................................................8

Offering of Securties. .................................................................................. ........8

Tier 1 Capital. ......................................................................................................8

ARTICLE IV

COVENANTS ................................................................................................................................8

Section 4.1

Section 4.2

Section 4.3

Section 4.4

Section 4.5

Section 4.6

Section 4.7

Section 4.8

Section 4.9

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Commercially Reasonable Efforts. ......................................................................8

Expenses. .............................................................................................................8

Exchange Listing. ................................................................................................8

Access, Information and Confidentiality. ............... ............ ............................ .....9

Executive Compensation. ..................................................................................1 0

Certain Notifications Until Closing. ..................................................................11

Tax Status of Debentues. ..................................................................................11

TIA Qualification. ............................................................................................. .11

Monthly Lending Reports. .................................................................................11

-1-
ARTICLE V

ADDITIONAL AGREEMENTS ..................................................................................................11

Section 5.1

Section 5.2

Section 5.3

Section 5.4

Section 5.5

Section 5.6

Section 5.7

Section 5.8

Section 5.9

Section 5.10

Unregistered Capital Securities.......................................................................... 11

Legend. ...............................................................................................................12

Certain Transactions. ......... ............................................................................... .13

Transfer of Capital Securities. .... ...................... ......................... ............ ............13

Registration Rights. ........................................................................................... .14

Restrction on Dividends and Repurchases........................................................ 14

Repurchase of Investor Securities. .................................................................... .15

Qualified Equity Offering. ............................................................................... ..15

Ban or Thrft Holding Company Status. ................................. ........ .... ............ .15

Compliance with Employ American Workers Act. .... ........ .................. ........... ..16

ARTICLE VI

MISCELLANOUS .................................................................................................................... .16

Section 6.1

Section 6.2

Section 6.3

Section 6.4

Section 6.5

Section 6.6

Section 6.7

Section 6.8

Section 6.9

Section 6.10

Section 6.11

Section 6.12

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Termination. ...................................................................................................... .16

Surival of Representations and Waranties. ............. ................................... .....16

Amendment. ........................... .................. ................................................... ...... .17

Waiver of Conditions. ........................................................................................17

Governing Law; Submission to Jursdiction, Etc. .............................................17

Notices. ..............................................................................................................17

Definitions. ........................................................................................................ .19

Assignent. ...................................................................................................... .20

Severability. ................................ ............................. .............. .... ....... ......... ...... ..20

No Third-Pary Beneficiaries. ............................................................................20

Entire Agreement, Etc. .......................................................................................21

Counterpars and Facsimile. ............................................................................. ..21

-11-
LIST OF ANXES

ANXA: AMENDED AN RESTATED DECLARTION OF TRUST AN TRUST

AGREEMENT

ANX B: GUARTEE AGREEMENT

ANX C: FIRST SUPPLEMENTAL INENTUR

ANX D: BASE INENTUR

ANX E-1: FORM OF OPINION

ANX E-2: FORM OF OPINON

ANX F: FORM OF WAIVER

Defined Terms

Affliate

Agreement

Bank

Base Indentue

Benefit Plans

Capital Securities

Capitalization Date

Closing

Closing Date

Common Securties

Common Stock

Company

Company Material Adverse Effect

Company Subsidiaries

Compensation Regulations

Debentures

Delaware Statutory Trust Act

EAWA

EESA

Exchange

Exchange Act

First Supplemental Indenture

Governing Agreements

Governental Entities

Guarantee Agreement

Indentue

Information

Investor

Junior Stock

Party Stock

Permitted Repurchases

Previously Disclosed

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Section 6.7(b)

Preamble

Section 1.2( d)(iv)

Section 1.2(d)(iv)

Section 1.2(d)(vii)

Recitals

Section 3.1(b)

Section 1.2(a)

Section 1.2(a)

Recitals

Section 3.1(b)

Preamble

Section 6.7(c)

Section 4.4(a)

Section 1.2(d)(vii)

Recitals

Preamble

Section 5.9

Section 1.2(d)(vii)

Recitals

Section 5 .2(b)

Section 1.2( d)(iv)

Section 1.2( d) (iv)

Section 1.2(c)

Section 1.2( d)(iv)

Section 1.2( d)(iv)

Section 4.4( c)

Preamble

Section 5.5(c)

Section 5.5(c)

Section 5.5(a)(ii)

Section 6.7(d)
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Relevant Period

SEC

Section 4.5 Employee

Securties Act

Securties Purchase Agreement

Senior Executive Offcers

Series A Preferred Stock

Series A Shares

Share Dilution Amount

Transfer

Trust

Trust Agreement

Trust Indenture Act

-IVSection 1.2( d) (vii)

Section 6.7(d)

Section 4.5 (b)

Section 5.1

Recitals

Section 1.2( d)(vii)

Recitals

Recitals

Section 5.5(a)(ii)

Section 5.3

Preamble

Section 1.2( d)(iii)

Section 4.8
THIS EXCHANGE AGREEMENT, dated as of June 30, 2010 (this "Agreement")

by and among First Merchants Corporation, an Indiana corporation (the "Company"), First

Merchants Capital Trust III (the "Trust"), a Delaware statutory trust created under the Delaware

Statutory Trust Act (as defined in the Trust Agreement), and the United States Department of

the Treasury (the "Investor"). All capitalized terms used herein and not otherwise defined shall

have the respective meanings ascribed to them in the Securties Purchase Agreement.

BACKGROUND

WHEREAS, the Investor is, as of the date hereof, the beneficial owner of 116,000

shares of the Company's preferred stock designated as "Fixed Rate Cumulative Perpetual

Preferred Stock, Series A", having a liquidation amount of $1,000 per share (the "Series A

Preferred Stock");

WHEREAS, the Company issued the Series A Preferred Stock pursuant to a Letter

Agreement (and the Securities Purchase Agreement incorporated by reference therein), dated as of

February 20, 2009 (the "Securties Purchase Agreement"), between the Company and the Investor;

WHEREAS, the Company, the Trust and the Investor desire to exchange 46,400

newly issued capital securities of the Trust (the "Capital Securties"), with a liquidation amount of

$1,000 per capital security, for 46,400 shares of the Series A Preferred Stock (the "Series A

Shares") beneficially owned and held by the Investor, on the terms and subject to the conditions

set forth herein (the "Exchange"); and

WHEREAS, in connection with the Exchange, the Trust proposes to use the Series

A Shares, together with the proceeds of the issuance and sale by the Trust to the Company of

1,435 Fixed Rate Common Securties, with a liquidation amount of $1,000 per Common Securty

(the "Common Securties"), to purchase $47,835,000 aggregate principal amount of the

Debentures (as defined in the First Supplemental Indentue).

NOW, THEREFORE, in consideration of the mutual covenants and agreements

contained in this Agreement, the receipt and suffciency of which are hereby acknowledged, and

intending to be legally bound, the parties hereby agree as follows:

ARTICLE I

THE CLOSING; THE EXCHANGE OF CAPITAL SECURITIES FOR SERIES A

PREFERRD STOCK

Section 1.1 The Capital Securities. The Capital Securties are being issued to

the Investor in the Exchange pursuant to Aricle II hereof. The shares of Series A Preferred Stock

exchanged for the Capital Securties pursuant to Aricle II hereof are being reacquired by the

Company and shall have the status of authorized but unssued shares of preferred stock of the

Company undesignated as to series and may be designated or redesignated and issued or reissued,

1502392 (4690-92131)
as the case may be, as par of any series of preferred stock of the Company; provided that such

shares shall not be reissued as shares of Series A Preferred Stock.

Section 1.2 The Closing. (a) The closing of the Exchange (the "Closing") wil

take place at the offces of Cadwalader, Wickersham & Taft LLP, One World Financial Center,

New York, New York 10281 at 9:00 a.m. EDT on the business day after the day on which all of

the conditions set forth in Sections 1.2( c) and (d) are satisfied or waived (other than those

conditions that by their terms must be satisfied on the Closing Date, but subject to the satisfaction

or waiver of those conditions), 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 (i) the Trust wil deliver (A) the Capital Securities to the Investor, as

evidenced by one or more certificates dated the Closing Date and registered in the name of the

Investor or its designee(s) and (B) 69,600 shares of Series A Preferred Stock to the Investor, as

evidenced by one or more certificates dated the Closing Date and registered in the name of the

Investor or its designee(s), (ii) the Investor wil deliver the certificate representing 116,000 shares

of Series A Preferred Stock to the Trust, (iii) the Trust will use the Series A Shares, together with

the proceeds of the issuance and sale by the Trust to the Company of the Common Securties to

purchase $47,835,000 aggregate principal amount of the Debentues and (iv) the Company wil

deliver to the Trust Debentues having an aggregate principal amount of $47,835,000.

(c) The respective obligations of each of the Investor, the Trust and the

Company to consumate the Exchange are subject to the fulfilment (or waiver by the Company,

the Trust and the Investor, as applicable) prior to the Closing of the conditions that (i) any

approvals or authorizations of all United States and other governental, regulatory or judicial

authorities (collectively, "Governental Entities") required for the consummation of the Exchange

shall have been obtained or made in form and substance reasonably satisfactory to each pary 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 Governental Entity shall prohibit

consumation of the Exchange as contemplated by this Agreement.

(d) The obligation of the Investor to consumate the Exchange is also subject

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

conditions:

(i) (A) the representations and waranties of the Company set forth in Aricle

III of this Agreement shall be tre and correct in all respects as though made on and as of

the Closing Date (other than representations and waranties that by their terms speak as of

another date, which representations and waranties shall be true and correct in all respects

as of such other date) 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;

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

Company by a senior executive offcer certifying to the effect that the conditions set forth

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

(iii) the Investor shall have received an amount equal to all accrued and unpaid

dividends on the Series A Shares to, but excluding, the Closing Date in cash to an account

designated by the Investor;

(iv) the Company shall have delivered to the Investor the Amended and

Restated Declaration of Trust and Trust Agreement, in substantially the form attached

hereto as Anex A (the "Trust Agreement"), among the Company, U.S. Ban Trust

National Association, a national baning association, as property trustee (the "Bank"), U.S.

Ban Trust National Association, a national banng association, as Delaware trustee, and

Michael C. Rechin, an individual, Jami L. Bradshaw, an individual, and Mark K.

Hardwick, an individual, as administrative trstees, and the several Holders (as defined in

the Trust Agreement), the Guarantee Agreement, in substantially the form attached hereto

as Anex B (the "Guarantee Agreement"), between the Company and the Ban, as

guarantee trustee, and the First Supplemental Indentue, in substantially the form attached

hereto as Anex C (the "First Supplemental Indenture"), between the Company and the

Ban, as trustee, which amends and supplements the Indentue in substantially the form

attached hereto as Anex D (the "Base Indenture"), between the Company and the Ban;

the Base Indentue and the First Supplemental Indentue are together referred to herein as

the "Indentue"; the Trust Agreement, the Guarantee Agreement and the Indentue are

collectively referred to herein as the "Governng Agreements";

(v) the Trust shall have delivered certificates in proper form or, with the prior

consent of the Investor, evidence in book-entr form, evidencing the Capital Securties to

the Investor or its designee(s);

(vi) the Company shall have delivered to the Investor wrtten opinions from

outside counsel to the Company, addressed to the Investor and dated as of the Closing

Date, in substantially the forms attached hereto as Anexes E-1 and E-2;

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

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

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

respect to its Senior Executive Offcers and any other employee of the Company or its

Affiliates subject to Section 111 of the Emergency Economic Stabilization Act of 2008, as

amended by the American Recovery and Reinvestment Act of 2009, or otherwise from

time to time ("EESA"), as implemented by any guidance, rule or regulation thereunder, as

the same shall be in effect from time to time (collectively, the "Compensation

Regulations") (and to the extent necessary for such changes to be legally enforceable, each

of its Senior Executive Offcers and other employees shall have duly consented in writing

to such changes), as may be necessar, durng the period in which any obligation of the

Company arsing from financial assistance under the Troubled Asset Relief Program

remains outstanding (such period, as it may be fuher described in the Compensation

Regulations, the "Relevant Period"), in order to comply with Section 111 of EESA or the

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Compensation Regulations and (B) the Investor shall have received a certificate signed on

behalf of the Company by a Senior Executive Offcer certifying to the effect that the

condition set forth in Section 1.2( d)(vii)(A) has been satisfied; "Senior Executive Officers"

means the Company's "senior executive offcers" as defined in Section ILL of the EESA

and the Compensation Regulations; and

(viii) The Company shall have completed a placement of its Common Stock

yielding total gross proceeds of at least $24 milion between January 1, 2010 and the

Closing Date.

Section 1.3 Interpretation. When a reference is made in this Agreement to

"Recitals," "Articles," "Sections," "Anexes" or "Schedules" such reference shall be to a Recital,

Aricle or Section of, or Anex or Schedule to, this Agreement, unless otherwise indicated. The

terms defined in the singular have a comparable meanng 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 paricular section or provision, unless the context requires otherwise. The table of

contents and headings contained in this Agreement are for reference puroses 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 paries advised by counsel. All references to "$" or "dollars" mean the lawfl

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 baning institutions in New York, New York or

Wilmington, Delaware generally are authorized or required by law, regulation or executive order

to remain closed or are customarly closed.

ARTICLE II

EXCHANGE

Section 2.1 Exchange. On the terms and subject to the conditions set forth in

this Agreement, (a) the Company and the Trust agree to issue the Capital Securties to the Investor

in exchange for the Series A Shares, and (b) the Investor agrees to deliver to the Trust the Series A

Shares in exchange for the Capital Securties.

Section 2.2 Exchange Documentation. Settlement of the Exchange wil take

place on the Closing Date, at which time the Investor wil cause delivery of the Series A Shares to

the Trust or its designated agent and the Company and the Trust wil cause delivery of the Capital

Securties to the Investor or its designated agent.

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ARTICLE III

REPRESENTATIONS AND WARTIES OF THE COMPAN

Except as Previously Disclosed, the Company represents and warants to Investor

as ofthe date hereof and as of the Closing Date that:

Section 3.1 Existence and Power.

(a) Organzation, Authority and Signficant Subsidiares. The Company is duly

organized, validly existing and in good standing under the laws of the State of Indiana and has all

necessary power and authority to own, operate and lease its properties and to car on its business

as it is being curently conducted, and except as 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 corporation for the transaction of business and is in good standing under the

laws of each other jursdiction in which it owns or leases properties or conducts any business so as

to require such qualification; each subsidiary of the Company that is a "significant subsidiary"

within the meanng of Rule 1-02(w) of Regulation S-X under the Securties Act, including,

without limitation, First Merchants Ban, N.A., has been duly organized and is validly existing in

good standing under the laws of its jurisdiction of organzation. The Charer and bylaws of the

Company, copies of which have been provided to the Investor prior to the date hereof, are tre,

complete and correct copies of such documents as in full force and effect as of the date hereof.

(b) Capitalization. The authorized capital stock of the Company, and the

outstanding capital stock of the Company (including securties convertible into, or exercisable or

exchangeable for, capital stock of the Company) as of the most recent fiscal month-end preceding

the date hereof (the "Capitalization Date") is set forth on Schedule A. The outstanding shares of

capital stock of 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). Except as provided in the Warrant, as of the date hereof, the Company

does not have outstanding any securities or other obligations providing the holder the right to

acquire shares of the Company's common stock (the "Common Stock") that is not reserved for

issuance as specified on Schedule A, and the Company has not made any other commitment to

authorize, issue or sell any Common Stock. Since the Capitalization Date, the Company has not

issued any shares of Common Stock other than (i) shares issued upon the exercise of stock options

or delivered under other equity-based awards or other convertible securities or warants which

were issued and outstanding on the Capitalization Date and disclosed on Schedule A and

(ii) shares disclosed on Schedule A.

Section 3.2 Authorization and Enforceability. (a) The Company has the

corporate power and authority to execute and deliver this Agreement and the Governng

Agreements and to car out its obligations hereunder and thereunder.

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

Agreement and the Governing Agreements and the consumation of the transactions

contemplated hereby and thereby, have been duly authorized by all necessar corporate action on

the par of the Company and, if any, its stockholders, and no fuher approval or authorization is

1502392 (4690-92131) -5-
required on the par of the Company. This Agreement and the Governing Agreements are valid

and binding obligations of the Company, enforceable against the Company in accordance with its

and their terms, subject to the Banptcy Exceptions.

Section 3.3 Valid Issuance of Capital Securties and Debentues. (a) The

Capital Securties have been duly and validly authorized by all necessary action, and, when issued

and delivered pursuant to this Agreement, such Capital Securties wil be duly and validly issued

and fully paid and nonassessable, will not be issued in violation of any preemptive rights, will

represent nonassessable undivided beneficial interests in the assets of the Trust, wil be entitled to

the benefits of the Trust Agreement and the Guarantee Agreement and wil not subject the holder

thereof to personal liability.

(b) The Debentues have been duly and validly authorized by the Company

and, when issued and delivered pursuant to the Indentue, such Debentues will have been duly

executed, authenticated, issued and delivered, wil constitute valid and legally binding obligations

of the Company, enforceable against the Company in accordance with their terms, subject to the

Banptcy Exceptions, will be in the form contemplated by, and entitled to the benefits of, the

Indentue, and wil have the ranng set forth in the Indentue.

Section 3.4 Non-Contravention. (a) The execution, delivery and performance

by the Company of this Agreement, the Governing Agreements, and the consumation of the

transactions contemplated hereby and thereby, and compliance by the Company with the

provisions hereof and thereof, wil 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,

securty 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, bond, mortgage, indentue, deed of trst, license, lease, agreement or

other instrument or obligation to which the Company or any Company Subsidiar is a pary or by

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

Subsidiar or any of the properties or assets of the Company or any Company Subsidiar 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, wrt, injunction or

decree applicable to the Company or any Company Subsidiar 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.

(b) Other than the filing of any curent report on Form 8-K required to be filed

with the SEC, such filings and approvals as are required to be made or obtained under any state

"blue sky" laws and such consents and approvals that have been made or obtained, no notice to,

fiing with, exemption or review by, or authorization, consent or approval of, any Governental

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

by the Company of the Exchange except for any such notices, filings, exemptions, reviews,

authorizations, consents and approvals the failure of which to make or obtain would not,

1502392 (4690-92131) -6-
individually or in the aggregate, reasonably be expected to have a Company Material Adverse

Effect.

(c) Except as would not, individually or in the aggregate, reasonably be

expected to have a Company Material Adverse Effect, (A) the execution, delivery and

performance by the Company of this Agreement and the consumation of the transactions

contemplated hereby (including for this purose the consumation of the Exchange) and

compliance by the Company with the provisions hereof wil not (1) result in any payment

(including any severance payment, payment of unemployment compensation, "excess parachute

payment" (within the meaning of the Code), "golden parachute payment" (as defined in the EESA,

as implemented by the Compensation Regulations) or forgiveness of indebtedness or otherwise)

becoming due to any curent or former employee, offcer or director of the Company or any

Company Subsidiar from the Company or any Company Subsidiary under any benefit plan or

otherwise, (2) increase any benefits otherwise payable under any benefit plan, (3) result in any

acceleration of the time of payment or vesting of any such benefits, (4) require the fuding or

increase in the fuding of any such benefits or (5) result in any limitation on the right of the

Company or any Company Subsidiar to amend, merge, terminate or receive a reversion of assets

from any benefit plan or related trst and (B) neither the Company nor any Company Subsidiary

has taken, or permitted to be taken, any action that required, and no circumstances exist that wil

require the fuding, or increase in the fuding, of any benefits or resulted, or wil result, in any

limitation on the right of the Company or any Company Subsidiary to amend, merge, terminate or

receive a reversion of assets from any benefit plan or related trst.

Section 3.5 Representations and Waranties Regarding the Trust. (a) The Trust

has been duly created, is validly existing in good standing as a statutory trust under the Delaware

Statutory Trust Act and is and wil be treated as a mere security device or "grantor trust" for

federal income tax puroses under existing law.

(b) The Trust has the statutory trust power and authority to conduct its business

as contemplated by this Agreement and the Trust Agreement and is not required to be authorized

to do business in any other jursdiction.

(c) The execution, delivery and performance of this Agreement and the Trust

Agreement have been duly authorized by the Trust, and this Agreement and the Trust Agreement

wil constitute valid and legally binding instruents of the Trust, enforceable against the Trust in

accordance with their terms, subject to the Banptcy Exceptions. The Trust is not and wil not

be a party to or otherwise be bound by any agreement other than the Governng Agreements and

those entered into in connection with the issuance of the Capital Securities and the Common

Securties.

(d) The administrative trstees of the Trust are offcers of the Company and

have been duly authorized by the Company to execute and deliver the Trust Agreement.

(e) The Trust is not now, nor after giving effect to the transactions

contemplated hereby wil be, and the Trust is not controlled by, or acting on behalf of any person

which is, an "investment company" within the meaning of the Investment Company Act of 1940,

as amended.

1502392 (4690-92131) -7-
Section 3.6 No Company Material Adverse Effect. Since December 31, 2009,

no fact, circumstance, event, change, occurence, condition or development has occured that,

individually or in the aggregate, has had or would reasonably be likely to have a Company

Material Adverse Effect, except as disclosed on Schedule B.

Section 3.7 Brokers and Finders. No broker, finder or investment baner is

entitled to any financial advisory, brokerage, finder's or other fee or commission in connection

with this Agreement or the transactions contemplated hereby based upon arangements made by or

on behalf of the Company or any Company Subsidiar for which the Investor could have any

liability.

Section 3.8 Offering of Securities. Neither the Company nor any person acting

on its behalf has taken any action (including any offering of any securties of the Company under

circumstances which would require the integration of such offering with the offering ofthe Capital

Securties under the Securities Act and the rules and regulations of the SEC promulgated

thereunder), which might subject the offering, issuance or sale of the Capital Securties to the

Investor pursuant to this Agreement to the registration requirements of the Securties Act.

Section 3.9 Tier 1 CapitaL. After effecting the Exchange, the outstanding trst

preferred securties of the Company (including the Capital Securities and all other outstanding

trust preferred securties of the Company) wil not exceed the 25% limit on the amount of

restricted core capital elements includable in Tier 1 capital (as defined in 12 CFR Part 225

Appendix A).

ARTICLE IV

COVENANTS

Section 4.1 Commercially Reasonable Efforts. Subject to the terms and

conditions of this Agreement, each of the paries wil 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 consumation

of the Exchange as promptly as practicable and otherwise to enable consumation of the

transactions contemplated hereby and shall use commercially reasonable efforts to cooperate with

the other party to that end.

Section 4.2 Expenses. If requested by the Investor, the Company shall pay all

reasonable out-of-pocket and documented costs and expenses associated with the Exchange,

including (i) the reasonable fees, disbursements and other charges of the Investor's legal counsel

and financial advisors, and (ii) the reasonable fees, disbursements and other charges of the trstees

for the Capital Securties and the Debentues.

Section 4.3 Exchange Listing. If requested by the Investor, the Company and

the Trust shall, at the Company's expense, cause the Capital Securities, to the extent the Capital

Securties comply with applicable listing requirements, and, after distrbution thereof, the

Debentues, to be listed on the Nasdaq Global Select Market or other national stock exchange,

subject to official notice of issuance, and shall maintain such listing for so long as any Common

1502392 (4690-92131) -8-
Stock is listed on such exchange. At the Investor's request, the Company agrees to take such

action as may be necessary to change the minimum denominations of the Capital Securties to $25

or such other amount as the Investor shall reasonably request.

Section 4.4 Access, Information and Confidentiality. (a) From the date hereof

until the date when the Investor no longer holds any debt or equity securties of the Company or

an Affiiate of the Company acquired pursuant to this Agreement, the Company wil permit the

Investor and its agents, consultants, contractors and advisors (i) acting through the Company's

Appropriate Federal Banng Agency, to examine the corporate books and make copies thereof

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

Company (the "Company Subsidiaries") with the principal offcers of the Company, all upon

reasonable notice and at such reasonable times and as often as the Investor may reasonably request

and (ii) to review any information material to the Investor's investment in the Company provided

by the Company to its Appropriate Federal Baning Agency.

(b) From the date hereof until the date when the Investor no longer holds any

debt or equity securties of the Company or an Affiiate of the Company acquired pursuant to this

Agreement, the Company shall permit, and shall cause each of the Company's Subsidiaries to

permit (A) the Investor and its agents, consultants, contractors, (B) the Special Inspector General

of the Troubled Asset Relief Program, and (C) the Comptroller General of the United States access

to personnel and any books, papers, records or other data, in each case, to the extent relevant to

ascertaining compliance with the financing terms and conditions; provided that prior to disclosing

any information pursuant to clause (B) or (C), the Special Inspector General of the Troubled Asset

Relief Program and the Comptroller General of the United States shall have agreed, with respect to

documents obtained under this Agreement in fuherance of its fuction, to follow applicable law

and regulation (and the applicable customar policies and procedures) regarding the dissemination

of confidential materials, including redacting confidential information from the public version of

its reports and soliciting the input from the Company as to information that should be afforded

confidentiality, as appropriate.

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

reasonable best efforts to cause its agents, consultants, contractors, advisors, and United States

executive branch officials and employees, to hold, in confidence all non-public records, books,

contracts, instruents, computer data and other data and information (collectively, "Information")

concerning the Company fushed 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 pary to which it

was furnshed (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. The Investor

understands that the Information may contain commercially sensitive confidential information

entitled to an exception from a Freedom of Information Act request.

(d) Nothing in this Section shall be construed to limit the authority that the

Special Inspector General of the Troubled Asset Relief Program, the Comptroller General of the

United States or any other applicable regulatory authority has under law.

1502392 (4690-92131) -9-
Section 4.5 Executive Compensation.

(a) Benefit Plans. Durng the Relevant Period, the Company shall take all

necessary action to ensure that the Benefit Plans of the Company and its Affliates comply in all

respects with, and shall take all other actions necessary to comply with, Section 111 of the EESA,

as implemented by the Compensation Regulations, and neither the Company nor any Affliate

shall adopt any new Benefit Plan (i) that does not comply therewith or (ii) that does not expressly

state and require that such Benefit Plan and any compensation thereunder shall be subject to any

relevant Compensation Regulations adopted, issued or released on or after the date any such

Benefit Plan is adopted. To the extent that EESA and/or the Compensation Regulations are

amended or otherwise change durng the Relevant Period in a maner that requires changes to

then-existing Benefit Plans, or that requires other actions, the Company and its Affiiates shall

effect such changes to its or their Benefit Plans, and take such other actions, as promptly as

practicable after it has actual knowledge of such amendments or changes in order to be in

compliance with this Section 4.5(a) (and shall be deemed to be in compliance for a reasonable

period to effect such changes). In addition, the Company and its Affliates shall take all necessar

action, other than to the extent prohibited by applicable law or regulation applicable outside of the

United States, to ensure that the consumation of the transactions contemplated by this

Agreement will not accelerate the vesting, payment or distrbution of any equity-based awards,

deferred cash awards or any nonqualified deferred compensation payable by the Company or any

of its Affliates.

(b) Additional Waivers. After the Closing Date, in connection with the hiring

or promotion of a Section 4.5 Employee and/or the promulgation of applicable Compensation

Regulations or otherwise, to the extent any Section 4.5 Employee shall not have executed a waiver

with respect to the application to such Section 4.5 Employee of the Compensation Regulations, the

Company shall use its best efforts to (i) obtain from such Section 4.5 Employee a waiver in

substantially the form attached hereto as Anex F and (ii) deliver such waiver to the Investor as

promptly as possible, in each case, within sixty days of the Closing Date or, if later, within sixty

days of such Section 4.5 Employee becoming subject to the requirements of this Section. "Section

4.5 Employee" means (A) each Senior Executive Officer and (B) any other employee of the

Company or its Affiliates determined at any time to be subject to Section 111 of EESA and the

Compensation Regulations.

(c) Clawback. In the event that any Section 4.5 Employee receives a payment

in contravention of the provisions of this Section 4.5, the Company shall promptly provide such

individual with wrtten notice that the amount of such payment must be repaid to the Company in

full within fifteen business days following receipt of such notice or such earlier time as may be

required by the Compensation Regulations and shall promptly inform the Investor (i) upon

discovering that a payment in contravention of this Section 4.5 has been made and (ii) following

the repayment to the Company of such amount and shall take such other actions as may be

necessary to comply with the Compensation Regulations.

(d) Limitation on Deductions. Durng the Relevant Period, the Company

agrees that it shall not claim a deduction for remuneration for federal income tax puroses in

excess of $500,000 for each Senior Executive Offcer that would not be deductible if

Section 162(m)(5) ofthe Code applied to the Company.

1502392 (4690-92131) -10-
( e) Amendment to Prior Agreement. The paries agree that, effective as of the

date hereof, Section 4.10 of the Securties Purchase Agreement shall be amended in its entirety by

replacing such Section 4.10 with the provisions set forth in this Section 4.5 and any terms included

in this Section 4.5 that are not otherwise defined in the Securties Purchase Agreement shall have

the meanngs ascribed to such terms in this Agreement.

Section 4.6 Certain Notifications Until Closing. From the date hereof 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 likely to cause any representation or waranty of

the Company contained in this Agreement to be untre 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, occurence, condition or development of which the Company is

aware and which, individually or in the aggregate, has had or would reasonably be likely to have a

Company Material Adverse Effect; provided, however, that delivery of any notice pursuant to this

Section 4.6 shall not limit or affect any rights of or remedies available to the Investor; provided,

further, that a failure to comply with this Section 4.6 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.

Section 4.7 Tax Status of Debentues. The Company agrees that, for so long as

any Debentures are outstanding, it wil treat the Debentues as equity in the Company for all U.S.

federal income and state tax puroses and not claim a deduction for interest on the Debentures for

U.S. federal income or state tax puroses.

Section 4.8 TIA Oualification. In connection with any registration pursuant to

Section 5.5, the Company agrees to (i) qualify the Governing Agreements under the Trust

Indenture Act of 1939, as amended, and the rules and regulations of the SEC promulgated

thereunder (together, the "Trust Indentue Act"), and (ii) ensure that the Governng Agreements

comply in all material respects with the applicable requirements of the Trust Indentue Act.

Section 4.9 Monthly Lending Reports. Durng the Relevant Period, the

Company wil detail in monthly reports submitted to the Investor the information required by the

CPP Monthly Lending Reports, as published on ww.financialstability.gov from time to time.

ARTICLE V

ADDITIONAL AGREEMENTS

Section 5.1 Unregistered Capital Securties. The Investor acknowledges that the

Capital Securties have not been registered under the Securties Act or under any state securities

laws. The Investor (a) is acquiring the Capital Securties pursuant to an exemption from

registration under the Securties Act solely for investment with no present intention to distribute

them to any person in violation of the Securties Act or any applicable U.S. state securties laws,

(b) will not sell or otherwise dispose of any of the Capital Securties, except in compliance with

the registration requirements or exemption provisions of the Securties Act and any applicable

1502392 (4690-92131) -11-
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

Exchange and of making an informed investment decision.

Section 5.2 Legend. (a) The Investor agrees that all certificates or other

instruents representing the Capital Securities wil bear a legend substantially to the following

effect:

" THE SECURTIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN

REGISTERED UNER THE SECURTIES ACT OF 1933, AS AMENDED (THE

"SECURTIES ACT"), OR THE SECURTIES LAWS OF ANY STATE AN MAY NOT BE

TRASFERRD, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE A

REGISTRATION STATEMENT RELATING THERETO IS IN EFFECT UNER SUCH ACT

AN APPLICABLE STATE SECURTIES LAWS OR PURSUANT TO AN EXEMPTION

FROM REGISTRATION UNER SUCH ACT OR SUCH LAWS. EACH PURCHASER OF

THE SECURTIES REPRESENTED BY THIS INSTRUMENT IS NOTIFIED THAT THE

SELLER MAYBE RELYING ON THE EXEMPTION FROM SECTION 5 OF THE

SECURTIES ACT PROVIDED BY RULE 144A THEREUNER. AN TRASFEREE OF

THE SECURTIES REPRESENTED BY THIS INSTRUMENT BY ITS ACCEPTANCE

HEREOF (1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS

DEFINED IN RULE 144A UNER THE SECURTIES ACT), (2) AGREES THAT IT WILL

NOT OFFER, SELL OR OTHERWISE TRASFER THE SECURTIES REPRESENTED BY

THIS INSTRUMENT EXCEPT (A) PURSUANT TO A REGISTRATION STATEMENT

WHICH IS THEN EFFECTIVE UNER THE SECURTIES ACT, (B) FOR SO LONG AS THE

SECURTIES REPRESENTED BY THIS INSTRUMENT AR ELIGIBLE FOR RESALE

PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A

"QUALIFIED INSTITUTIONAL BUYR" AS DEFINED IN RULE 144A UNER THE

SECURTIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE

ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN

THAT THE TRASFER IS BEING MADE IN RELIACE ON RULE 144A, (C) TO THE

ISSUER OR (D) PURSUANT TO AN OTHER AVAILABLE EXEMPTION FROM THE

REGISTRATION REQUIMENTS OF THE SECURTIES ACT AN (3) AGREES THAT IT

WILL GIVE TO EACH PERSON TO WHOM THE SECURTIES REPRESENTED BY THIS

INSTRUMENT AR TRASFERRD A NOTICE SUBSTANTIALLY TO THE EFFECT OF

THIS LEGEND.

NO EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO TITLE I OF THE EMPLOYEE

RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR

SECTION 4975 OF THE INTERNAL REVENU CODE OF 1986, AS AMENDED (THE

"CODE") (EACH, A "PLAN"), NO ENTITY WHOSE UNDERLYING ASSETS INCLUDE

"PLAN ASSETS" BY REASON OF ANY PLAN'S INESTMENT IN THE ENTITY (A "PLAN

ASSET ENTITY"), AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN, MAY

ACQUIR OR HOLD THIS CAPITAL SECURTIES CERTIFICATE OR AN INTEREST

HEREIN, UNESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE

RELIEF AVAILABLE UNER U.S. DEPARTMENT OF LABOR PROHIBITED

TRASACTION CLASS EXEMPTION ("PTCE") 96-23, 95-60, 91-38, 90-1 OR 84-14 OR

ANOTHER APPLICABLE EXEMPTION WITH RESPECT TO SUCH PURCHASE OR

1502392 (4690-92131) -12-
HOLDING OR THE REQUIRMENTS OF U.S. DEPARTMENT OF LABOR REGULATION

SECTION 2550.401c-1 AR SATISFIED SUCH THAT NEITHER THE CAPITAL

SECURTIES CERTIFICATE HELD BY THE PURCHASER OR HOLDERNOR THE

UNDERL YING ASSETS OF THE ISSUER TRUST CONSTITUTE "PLAN ASSETS" UNDER

ERISA OR THE CODE. AN PURCHASER OR HOLDER OF THIS CAPITAL SECURTIES

CERTIFICATE OR AN INTEREST HEREIN WILL BE DEEMED TO HAVE

REPRESENTED BY ITS PURCHASE AN HOLDING HEREOF THAT IT EITHER (A) IS

NOT A PLAN OR A PLAN ASSET ENTITY AN IS NOT PURCHASING SUCH

SECURTIES ON BEHALF OF OR WITH "PLAN ASSETS" OF ANY PLAN, OR (B) IS

ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNER PTCE 96-23, 95-60, 91-38,

90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION WITH RESPECT TO SUCH

PURCHASE OR HOLDING OR U.S. DEPARTMENT OF LABOR REGULATION

SECTION 2550.401c-1."

(b) In the event that any Capital Securties (i) become registered under the

Securties Act or (ii) are eligible to be transferred without restriction in accordance with Rule 144

or another exemption from registration under the Securties Act (other than Rule 144A), the

Company shall issue new certificates or other instruents representing such Capital Securties,

which shall not contain the applicable legend in Section 5.2(a) above; provided that the Investor

surenders to the Company the previously issued certificates or other instruents.

Section 5.3 Certain Transactions. (a) 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 pary unless the successor, transferee or lessee pary (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 of this Agreement and the

Governing Agreements to be performed and observed by the Company.

(b) Without the prior wrtten consent of the Investor, until such time as the

Investor shall cease to own any debt or equity securties of the Company acquired pursuant to this

Agreement, the Company shall not permit any of its "significant subsidiares" (as such term is

defined in Rule 12b-2 promulgated under the Securties Exchange Act of 1934, as amended (the

"Exchange Act")) to (i) engage in any merger, consolidation, statutory share exchange or similar

transaction following the consumation of which such significant subsidiary is not wholly-owned

by the Company, (ii) dissolve or sell all or substantially all of its assets or property other than in

connection with an internal reorganization or consolidation involving wholly-owned subsidiares

of the Company or (iii) issue or sell any shares of its capital stock or any securties convertible or

exercisable for any such shares, other than issuances or sales in connection with an internal

reorganization or consolidation involving wholly-owned subsidiaries of the Company.

Section 5.4 Transfer of Capital Securties. Subject to compliance with

applicable securties laws, the Investor shall be permitted to transfer, sell, assign or otherwise

dispose of ("Transfer") all or a portion of the Capital Securties at any time, and the Company

shall take all steps as may be reasonably requested by the Investor to facilitate the Transfer of the

Capital Securities.

1502392 (4690-92131) -13-
Section 5.5 Registration Rights. The Capital Securties and the Series A

Preferred Stock shall be Registrable Securties and, upon their issuance, the provisions of

Section 4.5 of the Securities Purchase Agreement shall be applicable to them, including with the

benefit, to the extent available, of the tacking of any holding period from the date of issuance of

the Series A Preferred Stock.

Section 5.6 Restrction on Dividends and Repurchases. (a) Until such time as

the Investor ceases to own any debt or equity securties of the Company or an Affiliate of the

Company acquired pursuant to this Agreement, neither the Company nor any Company Subsidiary

shall, without the consent of the Investor:

(i) declare or pay any dividend or make any distrbution on the Common Stock

(other than (A) regular quarerly cash dividends of not more than the amount of the last

quarerly cash dividend per share declared or, if lower, publicly anounced an intention to

declare, on the Common Stock prior to October 14, 2008, as adjusted for any stock split,

stock dividend, reverse stock split, reclassification or similar transaction, (B) dividends

payable solely in shares of Common Stock and (C) dividends or distrbutions of rights or

Junior Stock in connection with a stockholders' rights plan); or

(ii) redeem, purchase or acquire any shares of Common Stock or other capital

stock or other equity securties of any kind of the Company, or any trst preferred

securties issued by the Company or any Affliate of the Company, other than

(A) redemptions, purchases or other acquisitions of the Capital Securties (which purchases

shall be made on a pro rata basis, as provided in Section 5.5(b)), (B) redemptions,

purchases or other acquisitions of shares of Common Stock or other Junior Stock, in each

case in this clause (B) in connection with the administration of any employee benefit plan

in the ordinar course of business (including purchases to offset the Share Dilution

Amount (as defined below) pursuant to a publicly anounced repurchase plan) and

consistent with past practice; provided that any purchases to offset the Share Dilution

Amount shall in no event exceed the Share Dilution Amount, (C) purchases or other

acquisitions by a broker-dealer subsidiary of the Company solely for the purose of

market-makng, stabilization or customer facilitation transactions in trust preferred

securties of the Company or an Affiliate of the Company, Junor Stock or Party Stock in

the ordinary course of its business, (D) purchases by a broker-dealer subsidiar of the

Company of trust preferred securties or capital stock of the Company or an Affliate of the

Company for resale pursuant to an offering by the Company of such trst preferred

securties or capital stock underwtten by such broker-dealer subsidiar, (E) any

redemption or repurchase of rights pursuant to any stockholders' rights plan, (F) the

acquisition by the Company or any of the Company Subsidiares of record ownership in

Junior Stock, Party Stock or trust preferred securties of the Company or an Affiliate of

the Company for the beneficial ownership of any other persons (other than the Company or

any other Company Subsidiar), including as trstees or custodians, and (G) the exchange

or conversion of Junor Stock for or into other Junor Stock or of Party Stock or trst

preferred securities of the Company or an Affliate of the Company for or into other Party

Stock (with the same or lesser aggregate liquidation amount) or Junor Stock, in each case

set forth in this clause (G), solely to the extent required pursuant to binding contractual

agreements entered into prior to the date hereof or any subsequent agreement for the

1502392 (4690-92131) -14-
accelerated exercise, settlement or exchange thereof for Common Stock (clauses (C) and

(F), collectively, the "Permitted Repurchases"). "Share Dilution Amount" means the

increase in the number of diluted shares outstanding (determined in accordance with

GAA, and as measured from the date of the Company's most recently fied consolidated

financial statements prior to the Closing Date) resulting from the grant, vesting or exercise

of equity-based compensation to employees and equitably adjusted for any stock split,

stock dividend, reverse stock split, reclassification or similar transaction.

(b) Until such time as the Investor ceases to own any Capital Securities, the

Company shall not repurchase any Capital Securities from any holder thereof, whether by means

of open market purchase, negotiated transaction, or otherwise, other than Permitted Repurchases,

unless it offers to repurchase a ratable portion of the Capital Securties then held by the Investor

on the same terms and conditions.

(c) "Junior Stock" means Common Stock and any other class or series of stock

of the Company the terms of which expressly provide that it rans junior to the Capital Securties

as to dividend rights and/or as to rights on liquidation, dissolution or winding up of the Company.

"Party Stock" means any class or series of stock of the Company the terms of which do not

expressly provide that such class or series wil rank senior or junor to the Capital Securties as to

dividend rights and/or as to rights on liquidation, dissolution or winding up of the Company (in

each case without regard to whether dividends accrue cumulatively or non-cumulatively).

(d) The paries agree that, effective as of the date hereof, Section 4.8 of the

Securties Purchase Agreement shall be amended in its entirety by replacing such Section 4.8 with

the provisions set forth in this Section 5.5 and any terms included in this Section 5.5 that are not

otherwise defined in the Securties Purchase Agreement shall have the meanings ascribed to such

terms in this Agreement.

Section 5.7 Repurchase of Investor Securities. From and after the date of this

Agreement, the agreements set forth in Section 4.9 of the Securities Purchase Agreement shall be

applicable only following the redemption in whole of the Capital Securties held by the Investor or

the Transfer by the Investor of all of the Capital Securties held by the Investor to one or more

third paries not affiliated with the Investor.

Section 5.8 Qualified Equity Offering. The Company and the Investor agree,

for the avoidance of doubt, that none of the transactions contemplated by this Agreement

(including, without limitation, the issuance of the Debentures) shall be deemed a Qualified Equity

Offering under the Securties Purchase Agreement or the Warant.

Section 5.9 Bank or Thrft Holding Company Status. (a) The Company shall

maintain its status as a Ban Holding Company (or, if permitted to become a Savings and Loan

Holding Company in accordance with Subsection (b) below, such status) for as long as the

Investor owns any debt or equity securties of the Company or an Affiiate of the Company

acquired pursuant to this Agreement.

(b) The Company may become a Savings and Loan Holding Company in

accordance with the requirements of the Home Owners' Loan Act and applicable regulations,

1502392 (4690-92131) -15-
provided that it has duly fulfilled any commitments to or other requirements or obligations

imposed by the Board of Governors of the Federal Reserve System.

Section 5.10 Compliance with Employ American Workers Act. Until the

Company is no longer deemed a recipient of fuding under Title I of EESA or Section 13 of the

Federal Reserve Act for puroses of the EA WA, as the same may be determined pursuant to any

regulations or other legally binding guidance promulgated under EA W A, the Company shall

comply, and the Company shall take all necessary action to ensure that its subsidiares comply, in

all respects with the provisions of the EA W A and any regulations or other legally binding

guidance promulgated under the EA W A. "EA W A" means the Employ American Workers Act

(Section 1611 of Division A, Title XVI of the American Recovery and Reinvestment Act of

2009), Public Law No. 111-5, effective as of February 17, 2009, as may be amended and in effect

from time to time.

ARTICLE VI

MISCELLANEOUS

Section 6.1 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 date hereof; provided, however, that in the event the

Closing has not occured by such 30th calendar day, the paries 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 6.1(a) shall not be available to any party whose

breach of any representation or waranty 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;

(b) by either the Investor or the Company in the event that any Governental

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 wrtten consent of the Investor and the Company.

In the event of termination of this Agreement as provided in this Section 6.1, this

Agreement shall forthwith become void and there shall be no liability on the par of either pary

hereto except that nothing herein shall relieve either pary from liability for any breach of this

Agreement.

Section 6.2 Surival of Representations and Waranties. The representations

and warranties of the Company and the Trust made herein or in any certificates delivered in

connection with the Closing shall surive the Closing without limitation.

1502392 (4690-92131) -16-
Section 6.3 Amendment. No amendment of any provision of this Agreement

wil be effective unless made in wrting and signed by an officer or a duly authorized

representative of each of the Company and the Investor; provided that the Investor may

unilaterally amend any provision of this Agreement to the extent required to comply with any

changes after the date hereof in applicable federal statutes. No failure or delay by any pary 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 fuher 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.

Section 6.4 Waiver of Conditions. The conditions to each par's obligation to

consummate the Exchange are for the sole benefit of such pary and may be waived by such party

in whole or in par to the extent permitted by applicable law. No waiver wil be effective unless it

is in a writing signed by a duly authorized offcer of the waiving party that makes express

reference to the provision or provisions subject to such waiver.

Section 6.5 Governng Law; Submission to Jurisdiction, Etc. This Agreement

and any claim, controversy or dispute arising under or related to this Agreement, the relationship

of the paries, and/or the interpretation and enforcement of the rights and duties of the parties shall

be enforced, governed, and constred in all respects (whether in contract or in tort) in accordance

with the federal law of the United States if and to the extent such law is applicable, and 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 jursdiction and venue of the United States District Cour for the District of Columbia

and the United States Cour of Federal Claims for any and all civil actions, suits or proceedings

arsing out of or relating to this Agreement or the Governing Agreements (except with respect to

the Trust Agreement in which case each of the paries hereto agrees to submit to the non-exclusive

jursdiction of such cours) or the Exchange contemplated hereby and (b) that notice may be

served upon (i) the Company at the address and in the maner set forth for notices to the Company

in Section 6.6 and (ii) the Investor at the address and in the manner set forth for notices to the

Investor in Section 6.6, but otherwise in accordance with federal law. To the extent permitted by

applicable law, each of the paries hereto hereby unconditionally waives trial by jury in any civil

legal action or proceeding relating to this Agreement or the Governng Agreements or the

Exchange contemplated hereby.

Section 6.6 Notices. Any notice, request, instruction or other document to be

given hereunder by any pary to the other wil be in writing and wil 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 courer service. All notices hereunder shall be delivered as set forth below or

pursuant to such other instrctions as may be designated in writing by the pary to receive such

notice.

1502392 (4690-92131) -17-
If to the Company or the Trust:

First Merchants Corporation

200 East Jackson Street

P.O. Box 792

Muncie, Indiana 47305-2814

Attention: Mark K. Hardwick, Chief Financial Offcer

and Executive Vice President

Facsimile: (765) 747-1447

Email: mhardwick~firstmerchants.com

Telephone: (765) 751-1857

With a copy to:

David R. Prechtel, Esq.

Bingham McHale LLP

2700 Market Tower

10 West Market Street

Indianapolis, IN 46204-4900

Facsimile: (317) 236-9907

Email: dprechtel~binghamchale.com

Telephone: (317) 968-5403

If to the Investor:

United States Deparent of the Treasury

1500 Pennsylvania Avenue, NW

Washington, DC 20220

Attention: Chief Counsel Offce of Financial Stability

Facsimile: (202) 927-9225

Email: OFSChiefCounselNotices(ido. treas. gov

With a copy to:

Cadwalader, Wickersham & Taft LLP

One World Financial Center

New York, New York 10281

Attention: Patrck T. Quinn

Facsimile: (212) 504-6666

Email: pat.quinn~cwt.com

Telephone: (212) 504-6067

Attention: Wiliam P. Mils

Facsimile: (212) 504-6666

Email: william.mils~cwt.com

Telephone: (212) 504-6436

1502392 (4690-92131) -18-
With a copy to:

Anderson, McCoy & Orta, P.e.

100 N. Broadway, 26th Floor

Oklahoma City, OK 73102

Attention: J. Michael McCoy

Facsimile: (405) 236-1448

Email: mmccoy~amopc.com

Telephone: (405) 230-1015

Section 6.7 Definitions. (a) When a reference is made in this Agreement to a

subsidiar of a person, the term "subsidiary" means any corporation, parnership, joint ventue,

limited liability company or other entity (x) of which such person or a subsidiar of such person is

a general parner or (y) of which a majority of the voting securties 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 fuctions with respect to

such entity, is directly or indirectly owned by such person and/or one or more subsidiares thereof.

(b) The term "Affliate" means, with respect to any person, any person directly

or indirectly controlling, controlled by or under common control with, such other person. For

puroses 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 securties by contract or

otherwise.

(c) The term "Company Material Adverse Effect" means a material adverse

effect on (i) the business, results of operation or financial condition of the Company and its

consolidated subsidiares 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 hereof in general

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

credit availability and liquidity, curency exchange rates and price levels or trading volumes in the

United States or foreign securties or credit markets), or any outbreak or escalation of hostilities,

declared or undeclared acts of war or terrorism, in each case generally affecting the industres in

which the Company and its subsidiares operate, (B) changes or proposed changes after the date

hereof in GAA or regulatory accounting requirements, or authoritative interpretations thereof,

(C) changes or proposed changes after date hereof in securties, banng and other laws of general

applicability or related policies or interpretations of Governental Entities (in the case of each of

these clauses (A), (B) and (C), other than changes or occurences to the extent that such changes

or occurences have or would reasonably be expected to have a materially disproportionate

adverse effect on the Company and its consolidated subsidiares taken as a whole relative to

comparable U.S. banking or financial services organzations), or (D) changes in the market price

or trading volume of the Common Stock or any other equity, equity-related or debt securties of

the Company or its consolidated subsidiares (it being understood and agreed that the exception set

forth in this clause (D) does not apply to the underlying reason giving rise to or contributing to any

such change); or (ii) the ability of the Company to consumate the Exchange and the other

1502392 (4690-92131) -19-
transactions contemplated by this Agreement and perform its obligations hereunder on a timely

basis.

(d) The term "Previously Disclosed" means information set forth or

incorporated in the Company's Anual Report on Form 10-K for the most recently completed

fiscal year of the Company fied with the Securties and Exchange Commission (the "SEC") prior

to the date hereof or in its other reports and forms filed with or fuished to the SEC under

Sections 13 (a), 14(a) or 15(d) of the Exchange Act on or after the last day of the most recently

completed fiscal year of the Company and prior to the date hereof.

(e) To the extent any securities issued pursuant to this Agreement or the

transactions contemplated hereby are registered in the name of a designee of the Investor pursuant

to Sections 1.2 or 6.8(c) or transferred to an Affliate of the Investor, all references herein to the

Investor holding or owning any debt or equity securties of the Company, Capital Securties or

Registrable Securities (and any like varations thereof) shall be deemed to refer to the Investor,

together with such designees and/or Affliates, holding or owning any debt or equity securities,

Capital Securities or Registrable Securties (and any like variations thereof), as applicable.

Section 6.8 Assignent. 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 wrtten consent of each other party, and any attempt to assign any right,

remedy, obligation or liability hereunder without such consent shall be void, except (a) an

assignent, in the case of a Business Combination where such party is not the suriving 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, (b) as provided in Sections 5.3 and 5.4 and (c) an

assignent by the Investor of this Agreement to an Affiliate of the Investor; provided that if the

Investor assigns this Agreement to an Affiliate, the Investor shall be relieved of its obligations

under this Agreement but (i) all rights, remedies and obligations of the Investor hereunder shall

continue and be enforceable and exercisable by such Affiliate, (ii) the Company's obligations and

liabilities hereunder shall continue to be outstanding and (iii) all references to the Investor herein

shall be deemed to be references to such Affliate.

Section 6.9 Severability. If any provision of this Agreement, or the application

thereof to any person or circumstance, is determined by a cour of competent jursdiction 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, wil 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, pary. Upon such determination, the

paries shall negotiate in good faith in an effort to agree upon a suitable and equitable substitute

provision to effect the original intent of the paries.

Section 6.10 No Third-Pary Beneficiares. Nothing contained in this Agreement,

expressed or implied, is intended to confer upon any person or entity other than the Company, the

Trust and the Investor any benefit, right or remedies, except that the provisions of Sections 4.4

and 5.4 shall inure to the benefit of the persons holding Capital Securities durng any tacked

holding period, as contemplated by that Section.

1502392 (4690-92131) -20-
Section 6.11 Entire Agreement, Etc. This Agreement (including the Anexes and

Schedules hereto) constitutes the entire agreement, and supersedes all other prior agreements,

understandings, representations and waranties, both written and oral, between the parties, with

respect to the subject matter hereof. For the avoidance of doubt, the Securties Purchase

Agreement shall remain in full force and effect.

Section 6.12 Counterpars and Facsimile. For the convenience of the paries

hereto, this Agreement may be executed in any number of separate counterpars, each such

counterpart being deemed to be an original instruent, and all such counterpars wil together

constitute the same agreement. Executed signature pages to this Agreement may be delivered by

facsimile and such facsimiles wil be deemed as suffcient as if actual signatue pages had been

delivered.

(Remainder of Page Intentionally Left Blank)

1502392 (4690-92131) -21-
IN WITNESS WHEREOF, the paries hereto have caused this Agreement to be

duly executed by their respective authorized officers as of the day and year first above wrtten.

FIRST MERCHANTS CORPORATION

BY~~ Title: Chief Financial Officer and

Executive Vice President

FIRST MERCHANTS CAPITAL TRUST III

By: FIRST MERCHANTS CORPORATION,

as Depositor

BY:~ ~ame~HardWi

Title: Chief Financial Offcer and

Executive Vice President

UNITED STATES DEPARTMENT OF THE

TREASURY

By:

Name:

Title:

1502392 (4690-92131) (Signatue Page to Exchange Agreement)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be

duly executed by their respective authorized offcers as of the day and year first above written.

FIRST MERCHANTS CORPORATION

By:

Name: Mark K. Hardwick

Title: Chief Financial Offcer and

Executive Vice President

FIRST MERCHANTS CAPITAL TRUST III

By: FIRST MERCHANTS CORPORATION,

as Depositor

By:

Name: Mark K. Hardwick

Title: Chief Financial Offcer and

Executive Vice President

UNITED STATES DEPARTMENT OF THE

TREASURY By:r:~ Name: David N. Miler

Title: Chief Investment Offcer, OFS

(Signature Page to Exchange Agreement)
SCHEDULE A

CAPITALIZATION

Common Stock

Par value: None

Total Authorized: 50,000,000

Outstanding: 25,523,224

Subject to warants, options, convertible securities, etc.: 991,453 warants and 1,110,867 options

Reserved for benefit plans and other issuances: 1,509,927

Remaining authorized but unissued: 24,476,776

Shares issued after Capitalization Date (other than pursuant to warants, options, convertible

securties, etc. as set forth above): None

Preferred Stock

Par value: None

Total Authorized: 500,000

Outstanding: Series A 116,000

Reserved for issuance:

Remaining authorized but unissued: 384,000

1502392 (4690-92131) Schedule A
Response to Section 3.6: None

1502392 (4690-92131)

SCHEDULEB

Schedule B
ANNEXA

1502392 (4690-92131)
ANNEXB

1502392 (4690-92131)
ANNEXC

1502392 (4690-92131)
ANNEXD

1502392 (4690-92131)
ANNEXE-l

FORM OF OPINION

1. The Trust has been duly created and is validly existing in good standing as a statutory

trst under the Delaware Statutory Trust Act, 12 DeL. C. §§ 3801 et. seq. (the "Delaware

Statutory Trust Act") and all fiings required under the Delaware Statutory Trust Act with

respect to the creation and valid existence of the Trust as a statutory trust have been

made.

2. Under the Delaware Statutory Trust Act and the Trust Agreement, the Trust has the trst

power and authority to own its properties and to conduct its business, all as described in

the Trust Agreement.

3. The Trust Agreement constitutes a valid and binding obligation of the Company, as

depositor, and the Issuer Trustees (as defined in the Trust Agreement), and is enforceable

against the Company and the Issuer Trustees, in accordance with its terms.

4. Under the Delaware Statutory Trust Act and the Trust Agreement, the Trust has the trust

power and authority (i) to execute, deliver and perform its obligations under this

Agreement, (ii) to issue and sell and perform its obligations under the Capital Securties

and the Common Securties, and (iii) to purchase and hold the Debentures.

5. Under the Delaware Statutory Trust Act and the Trust Agreement, the execution and

delivery by the Trust of this Agreement, and the performance by the Trust of its

obligations thereunder and under the Trust Securties (as defined in the Trust

Agreement), have been duly authorized by all necessary trust action on the part of the

Trust.

6. Under the Delaware Statutory Trust Act, the certificate attached to the Trust Agreement

as Exhibit C is an appropriate form of certificate to evidence ownership of the Capital

Securties. The Capital Securties have been duly authorized for issuance by the Trust

Agreement and, when issued and delivered in accordance with the Trust Agreement and

this Agreement, wil be validly issued and, subject to the qualifications set forth herein,

fully paid and non-assessable undivided beneficial interests in the assets of the Trust

entitled to the benefits of the Trust Agreement. Each person to whom a Capital Securty

is to be issued by the Trust (each a "Holder" and collectively the "Holders"), as a

beneficial owner of the Trust, wil be entitled to the same limitation of personal liability

extended to stockholders of private corporations for profit organzed under the General

Corporation Law of the State of Delaware. We note that the Holders may be obligated,

pursuant to the Trust Agreement, to (i) provide payment of a sum suffcient to cover taxes

or other governental charges arising from transfers of Trust Securities Certificates and

the issuance of replacement Trust Securties Certificates (as defined in the Trust

Agreement), and (ii) provide securty or indemnity in connection with requests of or

directions to the Property Trustee (as defined in the Trust Agreement) to exercise its

rights and powers under the Trust Agreement.

1502392 (4690-92131)
7. The Common Securties have been duly authorized by the Trust Agreement and, when

issued and delivered in accordance with the terms of the Trust Agreement, wil be duly

and validly issued, representing an undivided beneficial interest in the assets of the Trust

entitled to the benefits of the Trust Agreement.

8. Under the Delaware Statutory Trust Act and the Trust Agreement, the issuance of the

Trust Securties is not subject to preemptive rights.

9. The issuance and sale by the Trust of the Capital Securties and the Common Securties,

the purchase by the Trust of the Debentues, the execution, delivery and performance by

the Trust of this Agreement, the consumation by the Trust of the transactions

contemplated by this Agreement and compliance by the Trust with its obligations under

this Agreement do not violate (i) any of the provisions of the Certificate of Trust (as

defined in the Trust Agreement) or the Trust Agreement or (ii) any law or administrative

regulation of the State of Delaware applicable to the Trust.

10. No authorization, approval, consent or order of any Delaware court or any Delaware

governental body or regulatory authority or agency is required to be obtained by the

Trust solely in connection with the issuance of the Trust Securties and the consumation

of the transactions contemplated by the Trust Agreement and this Agreement, other than

the filing of the Certificate with the Secretar of State, which Certificate has been duly

fied.

11. The Holders (other than those Holders who reside or are domiciled in the State of

Delaware) do not have any liability for income taxes imposed by the State of Delaware

solely as a result of their paricipation in the Trust, and the Trust wil not be liable for any

income tax imposed by the State of Delaware.

1502392 (4690-92131)
ANNEXE-2

FORM OF OPINION

1. The Company is duly organized, validly existing and in good standing under the laws of

the State of Indiana and has all necessary power and authority to own, operate and lease

its properties and to carryon its business as it is being currently conducted.

2. First Merchants Ban has been duly organzed and is validly existing and in good

standing under the laws of the State of Indiana and has all necessary power and authority

to own, operate and lease its properties and to car on its business as it is being curently

conducted.

3. The Company has the corporate power and authority to execute and deliver the

Agreement and the Governng Agreements and to car out its obligations thereunder.

4. The execution, delivery and performance by the Company of the Agreement and the

Governing Agreements and the consumation of the transactions contemplated thereby,

have been duly authorized by all necessar corporate action on the part of the Company

and its stockholders, and no fuher approval or authorization is required on the par of

the Company.

5. The Debentures have been duly and validly authorized by the Company.

6. The Agreement is a valid and binding obligation of the Company and the Trust,

enforceable against the Company and the Trust in accordance with its terms, except as

the same may be limited by applicable banptcy, insolvency, reorganzation,

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.

7. The Indentue, dated as of June 30, 2010, between the Company and U.S. Ban Trust

National Association, a national baning association, as trustee (the "Indentue Trustee"),

as supplemented by the First Supplemental Indentue, dated as of June 30, 2010, between

the Company and the Indentue Trustee (as so supplemented, the "Indenture"), has been

duly executed and delivered by the Company; the Debentures issued and sold to the Trust

pursuant to the Indentue and the Trust Agreement in an aggregate principal amount of

$47,835,000 have been duly executed, authenticated, issued and delivered; and the

Indentue and the Debentues constitute valid and legally binding obligations of the

Company enforceable in accordance with their terms, subject to bankptcy, insolvency,

fraudulent transfer, reorganization, moratorium and similar laws of general applicability

relating to or affecting creditors' rights and to general equity principles.

8. The Guarantee Agreement has been duly executed and delivered by the Company; and

the Guarantee Agreement constitutes a valid and legally binding obligation of the

Company enforceable in accordance with its terms, subject to banptcy, insolvency,

fraudulent transfer, reorganzation, moratorium and similar laws of general applicability

relating to or affecting creditors' rights and to general equity principles.

1502392 (4690-92131)
9. Neither the Company nor the Trust is or, after giving effect to the issuance of the

Debentues pursuant to the Indentue and the Trust Agreement, and the Common

Securties and the Capital Securties pursuant to the Agreement and the Trust Agreement,

would be on the date hereof an "investment company" or an entity "controlled" by an

"investment company," as such terms are defined in the Investment Company Act of

1940, as amended.

10. The Trust will be a mere securty device or grantor trust that is not taxable as a

corporation (or a publicly traded parnership or taxable mortgage pool taxable as a

corporation) for U.S. federal income tax puroses and the Capital Securties and

Common Securties wil be treated as undivided beneficial ownership interests in the

Debentures and any other property held by the Trust for U.S. federal income tax

puroses.

1502392 (4690-92131)
ANNEXF

FORM OF WAIVER

In consideration for the benefits I wil receive as a result of the paricipation of FIRST

MERCHANTS CORPORATION (together with its subsidiares and affiliates, the "Company"),

which is either my employer or the sole shareholder of my employer, in the United States

Deparment of the Treasur's (the "Treasury") Capital Purchase Program and/or any other

economic stabilization program implemented by the Treasury under the Emergency Economic

Stabilization Act of 2008 (as amended, supplemented, or otherwise modified, the "EESA") (any

such program, including the Capital Purchase Program, a "Program"), I hereby voluntarly waive

any claim against the United States (and each of its deparents and agencies) or the Company

or my employer, or any of their respective directors, officers, employees and agents for any

changes to my compensation or benefits that are required to comply with the executive

compensation and corporate governance requirements of Section 111 of the EESA, as

implemented by any guidance or regulations issued and/or to be issued thereunder, including

without limitation the provisions for the Capital Purchase Program, as implemented by any

guidance or regulation thereunder, including the rules set forth in 31 C.F.R. Par 30, or any other

guidance or regulations under the EESA and the applicable requirements of the Exchange

Agreement by and among the Company and the Treasury dated as of June 30, 2010, as amended

(such requirements, the "Limitations").

I acknowledge that the Limitations may require modification or termination 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

wrting, that I may have with the Company or my employer or in which I may participate as they

relate to the period the United States holds any equity or debt securties of the Company acquired

through a Program or for any other period applicable under such Program or Limitations, as the

case may be, and I hereby consent to all such modifications.

This waiver includes all claims I may have under the laws of the United States or any other

jursdiction (whether or not in existence as of the date hereof) related to the requirements

imposed by the Limitations, including without limitation a claim for any compensation or other

payments or benefits I would otherwise receive, any challenge to the process by which the

Limitations are or were adopted and any tort or constitutional claim about the effect of these

Limitations on my employment relationship and I hereby agree that I wil not at any time initiate,

or cause or permit to be initiated on my behalf, any such claim against the United States, the

Company, my employer or their respective directors, officers, employees or agents in or before

any local, state, federal or other agency, court or body.

I agree that, in the event and to the extent that the Compensation Committee of the Board of

Directors of the Company or similar governing body (the "Committee") reasonably determines

that any compensatory payment and benefit provided to me, including any bonus or incentive

compensation based on materially inaccurate financial statements or performance criteria, would

cause the Company to fail to be in compliance with the Limitations (such payment or benefit, an

"Excess Payment"), upon notification from the Company, I shall repay such Excess Payment to

1502392 (4690-92131)
the Company within 15 business days. In addition, I agree that the Company shall have the right

to postpone any such payment or benefit for a reasonable period of time to enable the Committee

to determine whether such payment or benefit would constitute an Excess Payment.

I understand that any determination by the Committee as to whether or not, including the maner

in which, a payment or benefit needs to be modified, terminated or repaid in order for the

Company to be in compliance with Section 111 of the EESA and/or the Limitations shall be a

final and conclusive determination of the Committee which shall be binding upon me. I fuher

understand that the Company is relying on this letter from me in connection with its paricipation

in a Program.

1502392 (4690-92131)
IN WITNESS WHEREOF, I execute this waiver on my own behalf, thereby communicating my

acceptance and acknowledgement to the provisions herein.

Respectfully,

Name:

Title:

Date:

1502392 (4690-92131)