EXHIBIT A 

(CDFI Mutual Depository Institutions 

Senior Securities) 

EXCHANGE AGREEMENT 

STANDARD TERMS 
 -iTABLE OF CONTENTS 

Page

ARTICLE I 

THE CLOSING; THE EXCHANGE OF CDCI SENIOR SUBORDINATED SECURITIES FOR 

CPP SENIOR SUBORDINATED SECURITIES 

Section 1.1 The CDCI Senior Subordinated Securities ...........................................................2 

Section 1.2 The Closing...........................................................................................................2 

ARTICLE II 

EXCHANGE 

Section 2.1 Exchange...............................................................................................................5 

Section 2.2 Exchange Documentation .....................................................................................5 

ARTICLE III 

REPRESENTATIONS AND WARRANTIES OF THE BANK 

Section 3.1 Existence and Power.............................................................................................5 

Section 3.2 CDCI Senior Subordinated Securities ..................................................................6 

Section 3.3 Community Development Financial Institution Status; Domestic 

Ownership..........................................................................................................6 

Section 3.4 Authorization and Enforceability..........................................................................7 

Section 3.5 Charter; Bylaws; Agreements Among Interest Holders; Anti-takeover 

Provisions and Rights Plan ................................................................................7 

Section 3.6 No Bank Material Adverse Effect.........................................................................8 

Section 3.7 Bank Financial Statements....................................................................................8 

Section 3.8 No Undisclosed Liabilities....................................................................................8 

Section 3.9 Offering of Securities............................................................................................8

Section 3.10 Litigation and Other Proceedings .........................................................................8 

Section 3.11 Compliance with Laws .........................................................................................8 

Section 3.12 Employee Benefit Matters ....................................................................................9 

Section 3.13 Taxes...................................................................................................................10 

Section 3.14 Properties and Leases..........................................................................................10 

Section 3.15 Environmental Liability......................................................................................10 

Section 3.16 Risk Management Instruments ...........................................................................10 

Section 3.17 Agreements with Regulatory Agencies ..............................................................11 

Section 3.18 Insurance.............................................................................................................11 

Section 3.19 Intellectual Property............................................................................................11 

Section 3.20 Brokers and Finders ............................................................................................12 
 -iiSection 3.21 Disclosure Schedule............................................................................................12 

Section 3.22 CPP Senior Subordinated Securities...................................................................12 

Section 3.23 Amendment to Charter and Other Documents to Effect Section 5. 12(b)..........12 

ARTICLE IV 

COVENANTS 

Section 4.1 Affirmative Covenants........................................................................................12 

Section 4.2 Negative Covenants ............................................................................................19 

ARTICLE V 

ADDITIONAL AGREEMENTS 

Section 5.1 Purchase for Investment......................................................................................21 

Section 5.2 Form of CDCI Senior Subordinated Security.....................................................21 

Section 5.3 Execution of CDCI Senior Subordinated Securities...........................................22 

Section 5.4 Computation of Interest ......................................................................................22 

Section 5.5 Legends...............................................................................................................23 

Section 5.6 Transfer of CDCI Senior Subordinated Securities..............................................25 

Section 5.7 Replacement of CDCI Senior Subordinated Securities ......................................27 

Section 5.8 Cancellation ........................................................................................................27 

Section 5.9 Rule 144; Rule 144A, 4(11⁄2) Transactions .........................................................27 

Section 5.10 Depositary Securities ..........................................................................................28 

Section 5.11 Redemption.........................................................................................................28 

Section 5.12 Voting Rights......................................................................................................30 

Section 5.13 Expenses and Further Assurances.......................................................................32 

Section 5.14 Communications to Holders ...............................................................................33 

ARTICLE VI 

SUBORDINATION OF THE CDCI SENIOR SUBORDINATED SECURITIES 

Section 6.1 Agreement to Subordinate ..................................................................................33 

Section 6.2 Default on Senior Indebtedness ..........................................................................33 

Section 6.3 Liquidation; Dissolution .....................................................................................34 

Section 6.4 Subrogation.........................................................................................................35 

Section 6.5 Notice by the Bank..............................................................................................36 

Section 6.6 Subordination May Not Be Impaired..................................................................36 

ARTICLE VII 

REMEDIES OF THE HOLDERS UPON EVENT OF DEFAULT 

Section 7.1 Event of Default..................................................................................................37 
 -iiiSection 7.2 Acceleration and Other Remedies ......................................................................37 

Section 7.3 Suits for Enforcement .........................................................................................37 

Section 7.4 Holders May File Proofs of Claim......................................................................38 

Section 7.5 Waiver of Past Defaults ......................................................................................38 

ARTICLE VIII 

MISCELLANEOUS 

Section 8.1 Termination.........................................................................................................38 

Section 8.2 Survival...............................................................................................................39 

Section 8.3 Amendment.........................................................................................................39 

Section 8.4 Waiver of Conditions..........................................................................................40 

Section 8.5 Governing Law; Submission to Jurisdiction, etc ................................................40 

Section 8.6 Notices ................................................................................................................40 

Section 8.7 Definitions...........................................................................................................41 

Section 8.8 Interpretation.......................................................................................................44 

Section 8.9 Assignment .........................................................................................................45 

Section 8.10 Severability .........................................................................................................45 

Section 8.11 No Third-Party Beneficiaries..............................................................................45 

Section 8.12 Entire Agreement, etc .........................................................................................45 

Section 8.13 Tax Treatment of CDCI Senior Subordinated Securities ...................................45 

Section 8.14 Specific Performance..........................................................................................46 

LIST OF ANNEXES 

ANNEX A: FORM OF OFFICER’S CERTIFICATE 

ANNEX B: FORM OF OPINION 

ANNEX C: FORM OF WAIVER 

ANNEX D: FORM OF CDFI SENIOR SUBORDINATED SECURITY 

ANNEX E: REGISTRATION RIGHTS 

ANNEX F: FORM OF OFFICER’S CERTIFICATE (CDFI REQUIREMENTS) 
 -ivDefined Terms 

 

Additional Dividends Section 4.2(b) 

Affiliate Section 8.7(b) 

Agreement Recitals 

Appropriate Federal Banking Agency Section 8.7(c) 

Bank Recitals 

Bank Financial Statements Section 8.7(d) 

Bank Material Adverse Effect Section 8.7(e) 

Bankruptcy Exceptions Section 3.4(a) 

Bank Subsidiaries Section 3.2(b) 

Benefit Plans Section 1.2(c)(vi) 

Board of Directors Section 3.5 

Business Combination Section 8.7(f) 

Capitalization Date Section 3.1(b) 

Capital Interests Section 3.1(b) 

CDCI Recitals 

CDCI Senior Subordinated Securities Recitals 

CDCI Senior Subordinated Securities Director Section 5.12(b) 

CDCI Senior Subordinated Securities Register Section 5.6 

CDFI Section 3.3 

CDFI Application Section 1.2(c)(xii) 

CDFI Application Update Section 1.2(c)(xii) 

Certified Entity Section 4.1(d)(iv) 

Charter Section 1.2(c)(iv) 

Closing Section 1.2(a) 

Closing Date Section 1.2(a) 

Code Section 3.12 

Compensation Regulations Section 1.2(c)(vi) 

Controlled Group Section 3.12 

CPP Recitals 

CPP/CDCI Securities Section 3.22 

CPP Securities Section 8.12(b) 

CPP Securities Purchase Agreement Recitals 

CPP Senior Subordinated Securities Recitals 

CPP Signing Date Recitals 

CPP Waiver Section 1.2(c)(vii) 

Defaulted Interest Section 5.4(c) 

Designated Matters Section 8.7(g) 

Disclosure Schedule Section 8.7(h) 

Disclosure Update Section 1.2(xi) 

EAWA Section 8.7(i) 

EESA Section 1.2(c)(vi) 

ERISA Section 3.12 

Event of Default Section 7.1 

Exchange Recitals 
 -vExchange Act Section 5.6(f) 

Fund Section 1.2(c)(xii) 

GAAP Section 8.7(e) 

Governmental Entities Section 1.2(c)(i) 

Holder Section 5.9(a) 

Indebtedness Section 8.7(j) 

Indemnitee Section 5.9(b) 

Indenture Section 5.1 

Indenture Act Section 5.1 

Information Section 4.1(c)(iii) 

Interest Holders Section 3.4(a) 

Interest Payment Date Face of CDCI Senior Subordinated 

Security 

Interest Period Section 5.4(b) 

Interest Rate Face of CDCI Senior Subordinated 

Security 

Investor Recitals 

Letter Agreement Recitals 

Majority Holders Section 5.12(b) 

Maturity Date Face of CDCI Senior Subordinated 

Security 

MHA Section 4.1(g) 

Members Section 8.7(k) 

Obligor Section 7.4 

Plan Section 3.12 

Previously Disclosed Section 8.7(l) 

Proprietary Rights Section 3.19 

Redemption Date Section 5.11 

Regular Record Date Face of CDCI Senior Subordinated 

Security 

Regulatory Agreement Section 3.17 

Relevant Period Section 1.2(c)(vi) 

Schedules Recitals 

SEC Section 3.9 

Section 4.1(e) Employee Section 4.1(e) 

Securities Act Section 3.1(a) 

Senior Executive Officers Section 8.7(m) 

Senior Indebtedness Section 8.7(n) 

Signing Date Section 1.2(c)(xi) 

State Restrictions Section 8.7(o) 

subsidiary Section 8.7(a) 

Tax Section 8.7(p) 

Transaction Documents Section 8.7(q) 

Transfer Section 5.6(f) 
 

EXCHANGE AGREEMENT – STANDARD TERMS 

Recitals: 

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

purchased senior subordinated debentures or has acquired senior subordinated debentures 

through the exercise of warrants or the exchange of other securities (collectively, “CPP Senior 

Subordinated Securities”) from eligible financial institutions which elected to participate in the 

Troubled Asset Relief Program Capital Purchase Program (“CPP”); 

WHEREAS, the Investor may from time to time agree to exchange the CPP 

Senior Subordinated Securities it received from eligible financial institutions that participated in 

CPP for newly issued debentures (“CDCI Senior Subordinated Securities”) from such eligible 

financial institutions to the extent they elect to participate in the Community Development 

Capital Initiative (“CDCI”); 

WHEREAS, an eligible financial institution electing to participate in the CDCI 

and exchange CPP Senior Subordinated Securities for CDCI Senior Subordinated Securities shall 

enter into a letter agreement (the “Letter Agreement”) with the Investor which incorporates this 

Exchange Agreement – Standard Terms (the eligible financial institution identified in the Letter 

Agreement, the “Bank”); 

WHEREAS, the Bank issued the CPP Senior Subordinated Securities (or the 

warrants exercised to acquire the CPP Senior Subordinated Securities or the securities exchanged 

for the CPP Senior Subordinated Securities) pursuant to that certain Securities Purchase 

Agreement – Standard Terms incorporated into a letter agreement, dated as of the date set forth 

on Schedule A to the Letter Agreement (the “CPP Signing Date”), as amended from time to time, 

between the Bank and the Investor (the “CPP Securities Purchase Agreement”); 

WHEREAS, the Bank agrees to support the availability of credit and financial 

services to underserved populations and communities in the United States to promote the 

expansion of small businesses and the creation of jobs in such populations and communities; 

WHEREAS, the Bank agrees to work diligently, under existing and any future 

programs, to modify the terms of residential mortgages as appropriate to strengthen the health of 

the U.S. housing market; 

WHEREAS, the Bank intends to issue the CDCI Senior Subordinated Securities 

in the principal amount set forth on Schedule A to the Letter Agreement to the Investor in 

exchange for (the “Exchange”) the CPP Senior Subordinated Securities in the principal amount 

set forth on Schedule A to the Letter Agreement; and 

WHEREAS, the Exchange will be governed by this Exchange Agreement – 

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

specifying additional terms of the Exchange. This Exchange Agreement – Standard Terms 

(including the Annexes hereto) and the Letter Agreement (including the Schedules thereto) are 
 -2- 

together referred to as this “Agreement”. All references in this Exchange Agreement – Standard 

Terms to “Schedules” are to the Schedules attached to the Letter Agreement. 

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

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

follows: 

ARTICLE I 

THE CLOSING; THE EXCHANGE OF CDCI SENIOR SUBORDINATED SECURITIES 

FOR CPP SENIOR SUBORDINATED SECURITIES

Section 1.1 The CDCI Senior Subordinated Securities. The CDCI Senior 

Subordinated Securities are being issued to the Investor in the Exchange pursuant to Article II 

hereof. The CPP Senior Subordinated Securities exchanged for the CDCI Senior Subordinated 

Securities pursuant to Article II hereof are being reacquired by the Bank and shall be cancelled 

pursuant to Section 5.10 of the CPP Securities Purchase Agreement. 

Section 1.2 The Closing. (a) On the terms and subject to the conditions set 

forth in this Agreement, the closing of the Exchange (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 Bank 

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 Bank will deliver the CDCI Senior Subordinated 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 (ii) the Investor will deliver the certificate 

representing the CPP Senior Subordinated Securities to the Bank. 

(c) The obligation of the Investor to consummate the Exchange is also subject 

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

conditions: 

(i) (A) any approvals or authorizations of all United States and other 

governmental, regulatory or judicial authorities (collectively, “Governmental Entities”) 

required for the consummation of the Exchange 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 (B) no provision of any applicable United States or other law and no 

judgment, injunction, order or decree of any Governmental Entity shall prohibit 

consummation of the Exchange as contemplated by this Agreement; 

(ii) (A) the representations and warranties of the Bank set forth in Article III 

of this Agreement shall be true and correct in all respects as though made on and as of the 

Closing Date (other than representations and warranties that by their terms speak as of 
 -3- 

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

as of such other date) and (B) the Bank shall have performed in all respects all 

obligations required to be performed by it under this Agreement at or prior to the 

Closing; 

(iii) the Bank shall have delivered to the Investor a certificate signed on behalf 

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

forth in Section 1.2(c)(ii) have been satisfied, in substantially the form attached hereto as 

Annex A; 

(iv) if applicable, the Bank shall have duly adopted and filed with the 

Secretary of State of its jurisdiction of organization or other applicable Governmental 

Entity an amendment to its certificate or articles of incorporation, articles of association, 

or similar organizational document (“Charter”) and its bylaws as in effect on the Closing 

Date and the Bank shall have delivered to the Investor a copy of the filed amendment 

with appropriate evidence from the Secretary of State or other applicable Governmental 

Entity that the filing has been accepted, or if a filed copy is unavailable, a certificate 

signed on behalf of the Bank by a Senior Executive Officer certifying to the effect that 

the filing of the amendment has been accepted; 

(v) the Bank shall have delivered to the Investor, a certificate signed on behalf 

of the Bank by a Senior Executive Officer certifying to the effect that the Charter and 

bylaws of the Bank delivered to the Investor pursuant to the CPP Securities Purchase 

Agreement remain true, complete and correct, in substantially the form attached hereto as 

Annex A; to the extent that the Charter and bylaws of the Bank delivered to the Investor 

pursuant to the CPP Securities Purchase Agreement are no longer true, correct and 

complete, prior to the Closing Date, the Bank shall deliver to Investor true, complete and 

correct certified copies of any amendments or supplements to the Charter or bylaws of 

the Bank or the documentation necessary to make the Charter or bylaws of the Bank 

delivered to the Investor true, correct and complete as of the Closing Date; 

(vi) (A) the Bank 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 any other employee of the Bank 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 Officers and other employees shall have duly consented in 

writing to such changes), as may be necessary, during the period in which any obligation 

of the Bank arising from financial assistance under the Troubled Asset Relief Program 

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

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

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

on behalf of the Bank by a Senior Executive Officer certifying to the effect that the 
 -4- 

condition set forth in Section 1.2(c)(vi)(A) has been satisfied, in substantially the form 

attached hereto as Annex A; 

(vii) the Bank shall have delivered to the Investor, a written waiver from each 

of the Bank’s Senior Executive Officers and any other employee of the Bank required to 

have delivered a waiver to Investor pursuant to Section 1.2(d)(v) of the CPP Securities 

Purchase Agreement (each, a “CPP Waiver”) and, to the extent that any Senior Executive 

Officer or any other employee of the Bank or its Affiliates that are subject to Section 111 

of EESA did not deliver a CPP Waiver, the Bank shall cause each such Senior Executive 

Officer or other employee to have delivered to the Investor a written waiver in the form 

attached hereto as Annex D releasing the Investor and the Bank from any claims that 

such Senior Executive Officer or other employee may otherwise have as a result of the 

modification of, or the agreement of the Bank hereunder to modify, the terms of any 

Benefit Plans with respect to its Senior Executive Officers or other employees to 

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

requirements of Section 111 of EESA as implemented by the Compensation Regulations; 

(viii) the Bank shall have delivered certificates in proper form or, with the prior 

consent of the Investor, evidence in book-entry form, evidencing the CDCI Senior 

Subordinated Securities to the Investor or its designee(s); 

(ix) the Bank shall have delivered to the Investor written opinions from 

counsel to the Bank (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; 

(x) the Bank and the Bank Subsidiaries shall have taken all necessary action 

to ensure that the Bank and the Bank Subsidiaries and their executive officers, 

respectively, are in compliance with (i) all guidelines put forth by the Investor with 

respect to transparency, reporting and monitoring and (ii) the provisions of EESA and 

any federal law respecting EESA, including 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, and all rules, 

regulations and guidance issued thereunder; 

(xi) the Bank shall have delivered to the Investor a copy of the Disclosure 

Schedule on or prior to the date of the Letter Agreement (the “Signing Date”) and, to the 

extent that any information set forth on the Disclosure Schedule needs to be updated or 

supplemented to make it true, complete and correct as of the Closing Date, (i) the Bank 

shall have delivered to the Investor an update to the Disclosure Schedule (the “Disclosure 

Update”), setting forth any information necessary to make the Disclosure Schedule true, 

correct and complete as of the Closing Date and (ii) the Investor, in its sole discretion, 

shall have approved the Disclosure Update, provided, however, that the delivery and 

acceptance of the Disclosure Update shall not limit or affect any rights of or remedies 

available to the Investor; 

(xii) the Bank shall have delivered to the Investor prior to the Signing Date 

either (i) a true, complete and correct certified copy of the CDFI Certification Application 
 -5- 

that the Bank submitted to the Community Development Financial Institution Fund (the 

“Fund”) in connection with its certification as a CDFI along with any updates to the 

CDFI Certification Application necessary to make it true, complete and correct as of the 

Signing Date or (ii) to the extent a copy of the CDFI Certification Application that the 

Bank submitted to the Fund in connection with its certification as a CDFI is not available, 

a newly completed CDFI Certification Application true, complete and correct as of the 

Signing Date (the CDFI Certification Application delivered to the Investor pursuant to 

this Section 1.2(c)(xii), the “CDFI Application”), and, to the extent any information set 

forth in the CDFI Application is not true, complete and correct as of the Closing Date, the 

Bank shall have delivered to the Investor an update to the CDFI Application (the “CDFI 

Application Update”), setting forth any information necessary to make the information 

set forth in the CDFI Application true, correct and complete as of the Closing Date;and 

(xiii) CPP Senior Subordinated Securities. The Bank shall have paid to Investor 

all accrued and unpaid interest then due on the CPP Senior Subordinated Securities. 

ARTICLE II 

EXCHANGE

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

this Agreement, the Bank agrees to issue the CDCI Senior Subordinated Securities to the 

Investor in exchange for CPP Senior Subordinated Securities, and the Investor agrees to deliver 

to the Bank the CPP Senior Subordinated Securities in exchange for the CDCI Senior 

Subordinated Securities. 

Section 2.2 Exchange Documentation. Settlement of the Exchange will take 

place on the Closing Date, at which time the Investor will cause delivery of the CPP Senior 

Subordinated Securities to the Bank or its designated agent and the Bank will cause delivery of 

the CDCI Senior Subordinated Securities to the Investor or its designated agent. 

ARTICLE III 

REPRESENTATIONS AND WARRANTIES OF THE BANK

Except as Previously Disclosed, the Bank represents and warrants to the Investor 

that as of the Signing Date and as of the Closing Date (or such other date specified herein) that: 

Section 3.1 Existence and Power. 

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

duly formed and is validly existing and in good standing under the laws of its jurisdiction of 

organization, with the necessary power and authority to own, operate and lease its properties and 

to conduct its business in all material respects as it is being currently conducted, and except as 

has not, individually or in the aggregate, had and would not reasonably be expected to have a 

Bank 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 
 -6- 

leases properties or conducts any business so as to require such qualification; each subsidiary of 

the Bank 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”), has been duly 

organized and is validly existing in good standing under the laws of its jurisdiction of 

organization. The Charter and bylaws of the Bank, 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 and as of the Closing Date. 

(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 Bank, including rights of Members arising from their membership but 

excluding the rights of Members in respect of deposit liabilities of the Bank (collectively, the 

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

or exchangeable for, Capital Interests, as of the most recent fiscal month-end preceding the 

Signing Date (the “Capitalization Date”) are set forth on Schedule B. The outstanding Capital 

Interests in the Bank 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 Bank does not have outstanding any securities or 

other obligations providing the holder the right to acquire its Capital Interests that are not 

reserved for issuance as specified on Schedule B, and the Bank has not made any other 

commitment to authorize, issue or sell any Capital Interests that is not specified on Schedule B. 

Since the Capitalization Date, the Bank has not issued any Capital Interests, other than (i) 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 Capital Interests in the Bank and such holder’s primary address are set forth on 

Schedule B. The amount of the (A) Additional Dividends and (B) total dividends declared and 

paid in each case for the year ended December 31, 2009 are set forth on Schedule B. 

Section 3.2 CDCI Senior Subordinated Securities. This Agreement has 

been duly authorized, executed and delivered and is, and the CDCI Senior Subordinated 

Securities, when executed and delivered, will be, the legal, valid and binding obligations of the 

Bank, each enforceable in accordance with their respective terms, except to the extent that the 

enforceability thereof may be limited by Bankruptcy Exceptions. 

Section 3.3 Community Development Financial Institution Status; 

Domestic Ownership. 

(i) The Bank, collectively with all of its “Affiliates” (within the meaning of 

12 C.F.R. 1805.104) satisfies the requirements of 12 C.F.R. 1805.200(b). 

(ii) The Bank (A) is a regulated community development financial institution 

(a “CDFI”) currently certified by the Fund of the United States Department of the 

Treasury pursuant to 12 C.F.R. 1805.201(a) as having satisfied the eligibility 

requirements of the Fund’s Community Development Financial Institutions Program and 

(B) satisfies the eligibility requirements for a CDFI set forth in 12 C.F.R. 1805.201 (b)(1) 

– (6). 
 -7- 

Section 3.4 Authorization and Enforceability. (a) The Bank has the power 

and authority to execute and deliver this Agreement and, to carry out its obligations hereunder 

(which includes the issuance of the CDCI Senior Subordinated Securities). The execution, 

delivery and performance by the Bank of this Agreement and the consummation of the 

transactions contemplated hereby and thereby have been duly authorized by all necessary action 

on the part of the Bank and its Members and other non-Member holders of Capital Interests 

(collectively, “Interest Holders”), and no further approval or authorization is required on the part 

of the Bank. This Agreement is a valid and binding obligation of the Bank enforceable against 

the Bank in accordance with its terms, subject to any limitations 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 (“Bankruptcy Exceptions”). 

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

and the consummation of the transactions contemplated hereby, and compliance by the Bank 

with the provisions hereof, 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 Bank or 

any subsidiary of the Bank (each subsidiary, a “Bank Subsidiary” and collectively, the “Bank 

Subsidiaries” under any of the terms, conditions or provisions of (i) its organizational documents 

or (ii) any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other 

instrument or obligation to which the Bank or any Bank Subsidiary is a party or by which it or 

any Bank Subsidiary may be bound, or to which the Bank or any Bank Subsidiary or any of the 

properties or assets of the Bank or any Bank 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 

Bank or any Bank 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 Bank Material Adverse Effect. 

(c) Other than filing of the Charter or other filings with the Secretary of State 

of its jurisdiction of organization or other 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 Bank in connection with the consummation by the Bank 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, individually or in the aggregate, reasonably be 

expected to have a Bank Material Adverse Effect. 

Section 3.5 Charter; Bylaws; Agreements Among Interest Holders; 

Anti-takeover Provisions and Rights Plan. The Board of Directors of the Bank (the “Board of 

Directors”) has taken all necessary action to ensure that the transactions contemplated by this 

Agreement and the consummation of the transactions contemplated hereby, (i) are not prohibited 

by the Bank’s Charter and bylaws or other organizational documents, or any operating agreement 
 -8- 

or agreement among the Interest Holders of the Bank, and has obtained all consents required by 

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

agreements among Interest Holders of the Bank, or has amended the Charter and bylaws, as is 

necessary, in order to consummate the transactions contemplated by this Agreement and (ii) will 

be exempt from any anti-takeover or similar provisions of the Bank’s Charter and bylaws, and 

any other provisions of any applicable anti-takeover laws and regulations of any jurisdiction. 

Section 3.6 No Bank Material Adverse Effect. Since the CPP Signing Date, 

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 Bank 

Material Adverse Effect, except as disclosed on Schedule C. 

Section 3.7 Bank Financial Statements. The Bank Financial Statements 

present fairly in all material respects the consolidated financial position of the Bank 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 (i) were prepared in conformity with GAAP applied on a consistent basis (except as 

may be noted therein) and (ii) have been prepared from, and are in accordance with, the books 

and records of the Bank and the Bank Subsidiaries. 

Section 3.8 No Undisclosed Liabilities. Neither the Bank nor any of the Bank 

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

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

to the extent required to be so reflected or reserved against in accordance with GAAP, except for 

(i) liabilities that have arisen since the last fiscal year end in the ordinary and usual course of 

business and consistent with past practice and (ii) liabilities that, individually or in the aggregate, 

have not had and would not reasonably be expected to have a Bank Material Adverse Effect. 

Section 3.9 Offering of Securities. Neither the Bank nor any person acting on 

its behalf has taken any action (including any offering of any securities of the Bank under 

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

CDCI Senior Subordinated Securities under the Securities Act and the rules and regulations of 

the Securities and Exchange Commission (“SEC”) promulgated thereunder), which might 

subject the offering, issuance or acquisition of the CDCI Senior Subordinated Securities to the 

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

Section 3.10 Litigation and Other Proceedings. Except (i) as set forth on 

Schedule D or (ii) as would not, individually or in the aggregate, reasonably be expected to have 

a Bank Material Adverse Effect, there is no (A) pending or, to the knowledge of the Bank, 

threatened, claim, action, suit, investigation or proceeding, against the Bank or any Bank 

Subsidiary or to which any of their assets are subject nor is the Bank or any Bank 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 Bank or any Bank Subsidiaries. 

Section 3.11 Compliance with Laws. Except as would not, individually or in 

the aggregate, reasonably be expected to have a Bank Material Adverse Effect, the Bank and the 
 -9- 

Bank 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 Bank or such Bank 

Subsidiary. Except as set forth on Schedule E, the Bank and the Bank Subsidiaries have 

complied in all respects and are not in default or violation of, and none of them is, to the 

knowledge of the Bank, under investigation with respect to or, to the knowledge of the Bank, 

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 Bank Material Adverse Effect. Except for 

statutory or regulatory restrictions of general application or as set forth on Schedule E, no 

Governmental Entity has placed any restriction on the business or properties of the Bank or any 

Bank Subsidiary that would, individually or in the aggregate, reasonably be expected to have a 

Bank Material Adverse Effect. 

Section 3.12 Employee Benefit Matters. Except as would not reasonably be 

expected to have, either individually or in the aggregate, a Bank Material Adverse Effect: 

(i) 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 Bank 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 Bank or any member of its 

Controlled Group and for which the Bank 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; (ii) with respect to each Plan subject to Title IV of ERISA 

(including, for purposes of this clause (ii), any plan subject to Title IV of ERISA that the Bank 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 Bank 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 Pension Benefit Guaranty Corporation 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 (iii) 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 
 -10- 

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. 

Section 3.13 Taxes. Except as would not, individually or in the aggregate, 

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

Subsidiaries have filed all federal, state, local and foreign income and franchise Tax returns 

(together with any schedules and attached thereto) required to be filed through the Signing Date, 

subject to permitted extensions, and have paid all Taxes due thereon, (ii) all such Tax returns 

(together with any schedules and attached thereto) are true, complete and correct in all material 

respects and were prepared in compliance with all applicable laws and (iii) no Tax deficiency has 

been determined adversely to the Bank or any of the Bank Subsidiaries, nor does the Bank have 

any knowledge of any Tax deficiencies. 

Section 3.14 Properties and Leases. Except as would not, individually or in 

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

Bank 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 (including, without limitation, liens for 

Taxes), 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 Bank Material Adverse Effect, the Bank and the 

Bank 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. 

Section 3.15 Environmental Liability. Except as would not, individually or in 

the aggregate, reasonably be expected to have a Bank Material Adverse Effect: 

(a) 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 Bank or any Bank 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 Bank’s knowledge, threatened against the Bank or any Bank Subsidiary; 

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

proceeding, claim or action; and 

(c) neither the Bank nor any Bank 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. 

Section 3.16 Risk Management Instruments. Except as would not, 

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

all derivative instruments, including, swaps, caps, floors and option agreements, whether entered 

into for the Bank’s own account, or for the account of one or more of the Bank 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 with all applicable laws, rules, 

regulations and regulatory policies and (iii) with counterparties believed to be financially 
 -11- 

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

obligation of the Bank or one of the Bank Subsidiaries, enforceable in accordance with its terms, 

except as may be limited by the Bankruptcy Exceptions. Neither the Bank or the Bank 

Subsidiaries, nor, to the knowledge of the Bank, 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 Bank Material Adverse Effect. 

Section 3.17 Agreements with Regulatory Agencies. Except as set forth on 

Schedule F, neither the Bank nor any Bank 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 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 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 Bank or any Bank 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 Bank and each Bank Subsidiary is 

in compliance in all material respects with each Regulatory Agreement to which it is party or 

subject, and neither the Bank nor any Bank Subsidiary has received any notice from any 

Governmental Entity indicating that either the Bank or any Bank Subsidiary is not in compliance 

in all material respects with any such Regulatory Agreement. 

Section 3.18 Insurance. The Bank and the Bank Subsidiaries are insured with 

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

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

Bank 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 Bank Material Adverse Effect. 

Section 3.19 Intellectual Property. Except as would not, individually or in the 

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

Bank 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 Bank nor any of 

the Bank Subsidiaries is materially infringing, diluting, misappropriating or violating, nor has the 

Bank or any of the Bank Subsidiaries received any written (or, to the knowledge of the Bank, 

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 Bank Material 
 -12- 

Adverse Effect, to the Bank’s knowledge, no other person is infringing, diluting, 

misappropriating or violating, nor has the Bank or any or the Bank Subsidiaries sent any written 

communications since January 1, 2007 alleging that any person has infringed, diluted, 

misappropriated or violated, any of the Proprietary Rights owned by the Bank and the Bank 

Subsidiaries. 

Section 3.20 Brokers and Finders. The Investor has no liability for any 

amounts that any broker, finder or investment banker is entitled to for any financial advisory, 

brokerage, finder’s or other fee or commission in connection with this Agreement or the 

transactions contemplated hereby based upon arrangements made by or on behalf of the Bank or 

any Bank Subsidiary. 

Section 3.21 Disclosure Schedule. The Bank has delivered the Disclosure 

Schedule and, if applicable, the Disclosure Update to the Investor and the information contained 

in the Disclosure Schedule, as modified by the information contained in the Disclosure Update, if 

applicable, is true, complete and correct. 

Section 3.22 CPP Senior Subordinated Securities. The Bank has (i) not 

breached any representation, warranty or covenant set forth in any of the documents governing 

any subordinated debentures or other securities issued in connection with its participation in the 

CPP or the CDCI (the “CPP/CDCI Securities”) or its sale to Investor and (ii) paid to Investor all 

accrued and unpaid dividends and/or interest then due on the CPP/CDCI Securities. 

Section 3.23 Amendment to Charter and Other Documents to Effect 

Section 5. 12(b). Except as set forth on Schedule G, the election, appointment, nomination or 

designation of CDCI Senior Subordinated Securities Directors by the Holders in accordance 

with, and upon the conditions set forth in, Section 5.12(b) is permitted by the laws of the 

jurisdiction of organization of the Bank. If permitted by such laws, the Bank has taken all action 

necessary to permit the Holders to elect, appoint, nominate or designate the CDCI Senior 

Subordinated Securities Directors, as applicable, in accordance with, and upon the events set 

forth in, Section 5.12(b), including amending its Charter and any other applicable organizational 

documents, agreements or arrangements as necessary. 

ARTICLE IV 

COVENANTS

Section 4.1 Affirmative Covenants. The Bank hereby covenants and agrees 

with Investor that: 

(a) 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 

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

contemplated hereby and shall use commercially reasonable efforts to cooperate with the other 

party to that end. 
 -13- 

(b) Certain Notifications Until Closing. From the date hereof until the 

Closing, the Bank 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 Bank contained in this Agreement to be untrue or inaccurate in any material 

respect or to cause any covenant or agreement of the Bank 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 Bank is 

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

have a Bank Material Adverse Effect; provided, however, that delivery of any notice pursuant to 

this Section 4.1(b) shall not limit or affect any rights of or remedies available to the Investor. 

(c) Access, Information and Confidentiality. 

(i) From the Signing Date until the date when the Investor owns an amount of 

CDCI Senior Subordinated Securities having an aggregate face value of less than 10% of 

the aggregate face value of the CDCI Senior Subordinated Securities as of the Closing 

Date, the Bank 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 Bank, to examine 

the Bank’s books, Tax returns (including all schedules and attached thereto) and other 

information reasonably requested by Investor relating to Taxes and make copies thereof 

and to discuss the affairs, finances and accounts of the Bank and the Bank Subsidiaries 

with the principal officers of the Bank, 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 Bank provided by the Bank to its 

Appropriate Federal Banking Agency. Any investigation pursuant to this Section 4.1(c) 

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

unreasonably with the conduct of the business of the Bank, and nothing herein shall 

require the Bank or any Bank Subsidiary to disclose any information to the Investor to 

the extent (A) prohibited by applicable law or regulation or (B) that such disclosure 

would reasonably be expected to cause a violation of any agreement to which the Bank or 

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

any Bank Subsidiary (provided that the Bank shall use commercially reasonable efforts to 

make appropriate substitute disclosure arrangements under circumstances where the 

restrictions in this clause (i) apply). 

(ii) From the Signing Date until the date on which all of the CDCI Senior 

Subordinated Securities have been redeemed in whole, the Bank will deliver, or will 

cause to be delivered, to the Investor: 

(A) as soon as available after the end of each fiscal year of the Bank, 

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

Bank as of the end of such fiscal year, and consolidated statements of income, 

retained earnings and cash flows of the Bank for such year, in each case prepared 

in accordance with GAAP and setting forth in each case in comparative form the 

figures for the previous fiscal year of the Bank, and which shall be audited to the 

extent audited financial statements are available; 
 -14- 

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

quarterly periods in each fiscal year of the Bank, a copy of any quarterly reports 

provided to other stockholders of the Bank or Bank management by the Bank; 

(C) as soon as available after the Bank receives any assessment of the 

Bank’s internal controls, a copy of such assessment; 

(D) annually on a date specified by the Investor, a completed survey, in 

a form specified by the Investor, providing, among other things, a description of 

how the Bank has utilized the funds the Bank received in connection with the sale 

of the CPP Senior Subordinated Securities and the effects of such funds on the 

operations and status of the Bank; 

(E) as soon as such items become effective, any amendments to the 

Charter, bylaws or other organizational documents of the Bank; and 

(F) at the same time as such items are sent to all Members of the Bank, 

copies of any information or documents, excluding any general solicitations or 

advertisements for services and products, sent by the Bank to its Members. 

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

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

United States executive branch officials and employees, to hold, in confidence all nonpublic records, books, contracts, instruments, computer data and other data and 

information (collectively, “Information”) concerning the Bank furnished or made 

available to it by the Bank or its representatives pursuant to this Agreement (except to the 

extent that such information can be shown to have been (A) previously known by such 

party on a non-confidential basis, (B) in the public domain through no fault of such party 

or (C) 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. The 

Investor understands that the Information may contain commercially sensitive 

confidential information entitled to an exception from a Freedom of Information Act 

request. 

(iv) The Investor’s information rights pursuant to Section 4.1(c)(ii)(A), (B), 

(C), (E) and (F) and the Investor’s right to receive certifications from the Bank pursuant 

to Section 4.1(d)(ii) may be assigned by the Investor to a transferee or assignee of the 

CDCI Senior Subordinated Securities with a face value of no less than an amount equal 

to 2% of the initial face value of the CDCI Senior Subordinated Securities. 

(v) From the Signing Date until the date when the Investor no longer owns 

any CDCI Senior Subordinated Securities, the Bank shall permit, and shall cause each of 

the Bank’s Subsidiaries to permit (A) the Investor and its agents, consultants, contractors 

and advisors, (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, 
 -15- 

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 furtherance of its function, 

to follow applicable law and regulation (and the applicable customary 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 Bank as to information that should be afforded confidentiality, as appropriate. 

(vi) 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. 

(d) CDFI Requirements. 

(i) From the Signing Date until the date on which all of the CDCI Senior 

Subordinated Securities have been redeemed in whole, the Bank shall (A) be certified by 

the Fund as a CDFI; (B) together with its Affiliates collectively meet the eligibility 

requirements of 12 C.F.R. 1805.200(b); (C) have a primary mission of promoting 

community development, as may be determined by Investor from time to time, based on 

criteria set forth in 12 C.F.R. 1805.201(b)(1); (D) provide Financial Products, 

Development Services, and/or other similar financing as a predominant business activity 

in arm’s-length transactions; (E) serve a Target Market by serving one or more 

Investment Areas and/or Targeted Populations as may be determined by Investor from 

time to time, substantially in the manner set forth in 12 C.F.R. 1805.201(b)(3); 

(F) provide Development Services in conjunction with its Financial Products, directly, 

through an Affiliate or through a contract with a third-party provider; (G) maintain 

accountability to residents of the applicable Investment Area(s) or Targeted Population(s) 

through representation on its governing Board of Directors or otherwise; and (H) remain 

a non-governmental entity which is not an agency or instrumentality of the United States 

of America, or any State or political subdivision thereof, as described in 12 C.F.R. 

1805.201(b)(6) and within the meaning of any supplemental regulations or interpretations 

of 12 C.F.R. 1805.201(b)(6) or such supplemental regulations published by the Fund. 

Notwithstanding any other provision hereof, as used in this Section 4.1(d), the terms 

“Affiliates”; “Financial Products”; “Development Services”; “Target Market”; 

“Investment Areas”; and “Targeted Populations” have the meanings ascribed to such 

terms in 12 C.F.R. 1805.104. 

(ii) From the Signing Date until the date on which all of the CDCI Senior 

Subordinated Securities have been redeemed in whole, the Bank shall deliver to Investor 

(1) (x) on the date that is 180 days after the Closing Date and (y) annually on the same 

date on which the Bank delivers the documentation required under Section 4.1(c)(ii)(A) 

to the Investor, a certificate signed on behalf of the Bank by a Senior Executive Officer, 

in substantially the form attached hereto as Annex F certifying (A) that the Bank remains 

in compliance with the covenants set forth in Section 4.1(d)(i); (B) that the information in 

the CDFI Application, as modified by any updates to the CDFI Application provided by 
 -16- 

the Bank to the Investor on or prior to the date of such certificate, with respect to the 

covenants set forth in Section 4.1(d)(i)(B) and Section 4.1(d)(i)(D) remains true, correct 

and complete as of such date or, to the extent any information set forth in the CDFI 

Application, as modified by any updates to the CDFI Application provided by the Bank 

to the Investor on or prior to the date of such certificate, with respect to such covenants 

needs to be updated or supplanted to make it true, complete and correct as of such date, 

that an updated narrative to the CDFI Application setting forth any information necessary 

to make the information set forth in the CDFI Application is true, complete and correct as 

of such date; (C) either (a) that the contracts and material agreements entered into by the 

Bank with respect to Development Services previously disclosed to the Investor remain 

in effect or (b) that attached are any new contracts and material agreements entered into 

by the Bank with respect to Development Services; (D) a list of the names and addresses 

of the individuals which comprise the Board of Directors as of such date and, to the 

extent any of such individuals was not a member of the Board of Directors as of the last 

certification to the Investor, a narrative describing such individual’s relationship to the 

applicable Investment Area(s) and Targeted Population(s) or, if the Bank maintains 

accountability to residents of the applicable Investment Area(s) or Target Population(s) 

through means other than representation on its governing Board of Directors and such 

means have changed since the date of the last certification to the Investor, a narrative 

describing such change; (E) that the Bank is not an agency of the United States of 

America, or any State or political subdivision thereof, as described in 12 C.F.R. 

1805.201(b)(6) and within the meaning of any supplemental regulations or interpretations 

of 12 C.F.R. 1805.201(b)(6) or such supplemental regulations published by the Fund and 

(F) that the Bank remains in compliance with the covenant set forth in Section 4.1(k) and 

(2) within five (5) business days of receipt, copies of any notices, correspondence or 

other written communication between the Bank and the Fund, including any form that the 

Bank is required to provide to the Fund due to the occurrence of a “Material Event” 

within the meaning of the Fund’s CDFI Certification Procedures. 

(iii) The Bank shall immediately notify the Investor upon the occurrence of 

any breach of any of the covenants set forth in Section 4.1(d). 

(iv) If at any time the Bank is no longer certified as a CDFI, but one or more 

Affiliates thereof are certified as CDFIs (such affiliates, the “Certified Entities”), the 

Bank shall (A) immediately notify the Investor of such status (B) cause the Certified 

Entities to comply with the covenants set forth in Section 4.1(d)(i), (C) on an annual basis 

pursuant to Section 4.1(d)(ii), deliver to Investor, the certificates and documentation 

required by clauses (1), (2) and (3) in Section 4.1(d)(ii)(x)(B), with respect to the 

Certified Entities and (D) execute and deliver to Investor such amendments or documents 

or perform such other acts as the Investor may deem necessary, in its sole discretion, for 

the Bank and the Certified Entities to comply with the terms and conditions of this 

Agreement. 

(e) Executive Compensation. 

(i) Benefit Plans. During the Relevant Period, the Bank shall take all 

necessary action to ensure that the Benefit Plans of the Bank and its Affiliates comply in 
 -17- 

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

EESA, as implemented by the Compensation Regulations, and neither the Bank nor any 

of its Affiliates shall adopt any new Benefit Plan (x) that does not comply therewith or 

(y) 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 during the 

Relevant Period in a manner that requires changes to then-existing Benefit Plans, or that 

requires other actions, the Bank and its Affiliates 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 4.1(e) (and shall be deemed to be in compliance for a reasonable period to effect 

such changes). In addition, the Bank and its Affiliates shall take all necessary action, 

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

the United States, to ensure that the consummation of the transactions contemplated by 

this Agreement will not accelerate the vesting, payment or distribution of any equitybased awards, deferred cash awards or any nonqualified deferred compensation payable 

by the Bank or any of its Affiliates. 

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

or promotion of a Section 4.1(e) Employee and/or the promulgation of applicable 

Compensation Regulations or otherwise, to the extent any Section 4.1(e) Employee shall 

not have executed a waiver in a form satisfactory to the Investor with respect to the 

application to such Section 4.1(e) Employee of the Compensation Regulations, the Bank 

shall use its best efforts to (x) obtain from such Section 4.1(e) Employee a waiver in 

substantially the form attached hereto as Annex C and (y) deliver such waiver to the 

Investor as promptly as possible, in each case, within sixty days of such Section 4.1(e) 

Employee becoming subject to the requirements of this Section. “Section 4.1(e) 

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

Bank or any of its Affiliates determined at any time to be subject to Section 111 of 

EESA as implemented by the Compensation Regulations. 

(iii) Clawback. In the event that any Section 4.1(e) Employee receives a 

payment in contravention of the provisions of this Section 4.1(e), the Bank shall promptly 

provide such individual with written notice that the amount of such payment must be 

repaid to the Bank 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 4.1(e) has been made and (ii) following the repayment to the Bank of such 

amount and shall take such other actions as may be necessary to comply with the 

Compensation Regulations. 

(iv) Limitation on Deductions. During the Relevant Period, the Bank agrees 

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

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

Section 162(m)(5) of the Code applied to the Bank. 
 -18- 

(v) Amendment to Prior Agreement. The parties agree that, effective as of the 

date hereof, Section 5.15 of the CPP Securities Purchase Agreement shall be amended in 

its entirety by replacing such Section 5.15 with the provisions set forth in this 

Section 4.1(e) and any terms included in this Section 4.1(e) that are not otherwise defined 

in the CPP Securities Purchase Agreement shall have the meanings ascribed to such 

terms in this Agreement. 

(f) Capital Covenant. From the Signing Date, until the date on which all of 

the CDCI Senior Subordinated Securities have been redeemed in whole, the Bank and the Bank 

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. 

(g) HAMP Modifications. The Bank shall take all necessary action to ensure 

that (A) from and after the date the Bank or any Bank Subsidiary that services residential 

mortgage loans has 100 or more residential mortgage loans not owned or guaranteed by Fannie 

Mae or Freddie Mac which have been past due for 60 or more days, the Bank or such Bank 

Subsidiary shall, to the extent such programs are open for participation, (1) participate in the 

United States Department of the Treasury’s Making Home Affordable (“MHA”) program, 

including MHA’s Second Lien Modification Program and (2) immediately execute a 

Commitment to Purchase Financial Instrument and Servicer Participation Agreement (in such 

form as may be set forth on the MHA website at www.hmpadmin.com from time to time) with 

Fannie Mae (acting as the United States Department of the Treasury’s fiscal agent) and (B) if the 

Bank or any Bank Subsidiary owns mortgage loans that are serviced by a non-affiliated mortgage 

servicer, the Bank or such Bank Subsidiary shall consent to any MHA modification request made 

by such mortgage servicer. 

(h) Compliance with Employ American Workers Act. The Bank shall 

agree to comply, and take all necessary action to ensure that any Bank Subsidiary complies, in all 

respects with the provisions of EESA and any federal law respecting EESA, including 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 implemented by any rules, regulation or guidance thereunder, as such may be amended 

or supplemented from time to time, and any applicable guidance of the United States Department 

of the Treasury with respect thereto. 

(i) Reporting Requirements. Prior to the date on which all of the CDCI 

Senior Subordinated Securities have been redeemed in whole, the Bank covenants and agrees 

that, at all times on or after the Closing Date, (i) to the extent it is subject to the reporting 

requirements of Section 13 or 15(d) of the Exchange Act, it shall comply with the terms and 

conditions set forth in Annex E or (ii) as soon as practicable after the date that the Bank becomes 

subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, it shall comply 

with the terms and conditions set forth in Annex E. 

(j) Predominantly Financial. For as long as the Investor owns any CDCI 

Senior Subordinated Securities, the Bank, 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 
 -19- 

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. 

(k) Control by Foreign Bank or Company. Prior to the date on which all of 

the CDCI Senior Subordinated Securities have been redeemed in whole, the Bank shall not be 

controlled (within the meaning of the Bank Holding Company Act of 1956 (12 U.S.C. 

1841(a)(2)) and 12 C.F.R. 225(a)(i) in the case of banks and the Home Owners’ Loan Act of 

1933 (12 U.S.C. 1467a (a)(2)) and 12 C.F.R. 583.7 in the case of savings associations) by a 

foreign bank or company. 

Section 4.2 Negative Covenants. The Bank hereby covenants and agrees with 

the Investor that: 

(a) Certain Transactions. 

(i) The Bank shall 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 

Bank), expressly assumes the due and punctual performance and observance of each and 

every covenant, agreement and condition of this Agreement to be performed and 

observed by the Bank. 

(ii) Without the prior written consent of the Investor, until such time as the 

Investor shall cease to own any debt or equity securities of the Bank acquired pursuant to 

this Agreement or the CPP Securities Purchase Agreement (including, for the avoidance 

of doubt, the CPP Senior Subordinated Securities or the CDCI Senior Subordinated 

Securities), the Bank shall not permit any of its “significant subsidiaries” (as such term is 

defined in Rule 12b-2 promulgated under the Exchange Act) to (i) engage in any merger, 

consolidation, statutory share exchange or similar transaction following the 

consummation of which such significant subsidiary is not wholly-owned by the Bank, 

(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 subsidiaries of 

the Bank or (iii) issue or sell any securities convertible or exercisable for any such 

securities, other than issuances or sales in connection with an internal reorganization or 

consolidation involving wholly-owned subsidiaries of the Bank. 

(b) Restriction on Dividends and Repurchases. 

(i) Prior to the date on which all of the CDCI Senior Subordinated Securities 

have been redeemed in whole, neither the Bank nor any Bank Subsidiary shall, 

(x) redeem, purchase, repay or acquire any equity or debt capital instruments of any kind 

of the Bank or any Bank Subsidiary, other than redemptions, purchases, repayments or 

other acquisitions of Capital Interests or other securities of any kind of the Bank or any 

Bank Subsidiary required pursuant to binding contractual agreements entered into prior to 
 -20- 

October 21, 2009, and (y) declare or pay any extraordinary or special dividends, unless 

all accrued and unpaid Interest for all past interest periods on the CDCI Senior 

Subordinated Securities is paid in full. 

(ii) The Bank may pay, on an annual basis consistent with past practice, 

dividends on Capital Interests in the amount of the “Additional Dividends” as set forth in 

Schedule B. 

(iii) Prior to the date on which all of the CDCI Senior Subordinated Securities 

have been redeemed in whole, the Bank shall not (i) pay any increase in the Additional 

Dividends paid on any annual basis, (ii) pay 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), and (iii) pay 

any Additional Dividend on any Capital Interests or other equity securities of any kind of 

any Bank Subsidiary, provided that, no increase in dividends shall be made as a result of 

any dividend paid in mutual capital certificates, or other capital instruments authorized 

under applicable law, any stock split or similar transaction. 

(iv) Notwithstanding anything contained in Section 4.2(b) prior to the date on 

which all of the CDCI Senior Subordinated Securities have been redeemed in whole, 

neither the Bank nor any Bank Subsidiary shall, redeem, purchase, repay or acquire any 

Capital Interests or other equity securities of any kind of any Bank Subsidiary, other than 

(i) the exchange or conversion of Capital Interests for or into other Capital Interests in the 

Bank, 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 Capital Interests, (ii) redemptions of securities held by 

the Bank or any wholly owned Bank Subsidiary or (iii) redemptions, purchases, 

repayments or other acquisitions of Capital Interests or other securities of any kind of the 

Bank or any Bank Subsidiary required pursuant to binding contractual agreements 

entered into prior to October 21, 2009. 

(v) Notwithstanding anything contained in this Section 4.2(b), from and after 

the eighth (8th) anniversary of the Closing Date and for so long as the CDCI Senior 

Subordinated Securities are outstanding, neither the Bank nor any Bank Subsidiary shall, 

without the consent of the Investor, pay any dividends or repurchase any Capital Interests 

or other securities of any kind of the Bank or any Bank Subsidiary authorized under 

applicable law. 

(vi) Until such time as the Investor ceases to own any CDCI Senior 

Subordinated Securities, the Bank shall not repurchase any CDCI Senior Subordinated 

Securities 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 

CDCI Senior Subordinated Securities then held by the Investor on the same terms and 

conditions. 

(c) Related Party Transactions Until such time as the Investor ceases to own 

any debt or equity securities of the Bank, including the CDCI Senior Subordinated Securities, the 
 -21- 

Bank and the Bank 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 (A) such transactions 

are on terms no less favorable to the Bank and the Bank Subsidiaries than could be obtained 

from an unaffiliated third party, and (B) have been approved by the audit committee of the Board 

of Directors or comparable body of independent directors of the Bank, or if there are no 

independent directors, the Board of Directors, provided that the Board of Directors shall 

maintain written documentation which supports its determination that the transaction meets the 

requirements of clause (A) of this Section 4.2(c). 

(d) Restriction on Repurchase of CDCI Senior Subordinated Securities Held 

by Investor. Prior to the date on which the Investor no longer owns any of the CDCI Senior 

Subordinated Securities the Bank shall not repurchase, redeem, call or otherwise reacquire any 

CDCI Senior Subordinated Securities from any holder thereof, whether by means of open market 

purchase, negotiated transaction, or otherwise, unless it offers to repurchase, redeem, call or 

otherwise reacquire a ratable portion of the CDCI Senior Subordinated Securities, as the case 

may be, then held by the Investor on the same terms and conditions. 

ARTICLE V 

ADDITIONAL AGREEMENTS

Section 5.1 Purchase for Investment. The Investor acknowledges that the 

CDCI Senior Subordinated Securities have not been registered under the Securities Act, or under 

any state securities laws. The Investor acknowledges that the CDCI Senior Subordinated 

Securities are not being sold pursuant to an indenture (an “Indenture”) qualified under the Trust 

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

CDCI Senior Subordinated 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 CDCI Senior Subordinated 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 CDCI Senior 

Subordinated 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 Exchange and of making an informed 

investment decision. 

Section 5.2 Form of CDCI Senior Subordinated Security. The CDCI Senior 

Subordinated Security shall be substantially in the form of Annex D hereto, the terms of which 

are incorporated in and made a part of this Agreement. The CDCI Senior Subordinated 

Securities 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 

CDCI Senior Subordinated Securities 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. 
 -22- 

Section 5.3 Execution of CDCI Senior Subordinated Securities. The CDCI 

Senior Subordinated Securities shall be executed in the name and on behalf of the Bank 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 Bank’s Charter or bylaws or 

applicable law. Every CDCI Senior Subordinated Security shall be dated the date of its 

execution and delivery. 

Section 5.4 Computation of Interest. (a) The amount of interest payable for 

any Interest Period (as defined below) will be computed as provided in the CDCI Senior 

Subordinated Securities. 

(b) Each CDCI Senior Subordinated Security 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 CDCI Senior Subordinated Security 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 Defaulted Interest), payable on each Interest Payment Date or the Maturity 

Date, as the case may be. Interest on any CDCI Senior Subordinated Security that is payable, 

and is punctually paid or duly provided for by the Bank, on any Interest Payment Date shall be 

paid to the person in whose name such CDCI Senior Subordinated Security is registered at the 

close of business on the Regular Record Date for such interest installment. 

(c) Any interest on the CDCI Senior Subordinated Security that is payable, 

but is not punctually paid or duly provided for by the Bank, on any Interest Payment Date (herein 

called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant 

Regular Record Date, and such Defaulted Interest shall be paid by the Bank to the persons in 

whose names such CDCI Senior Subordinated Securities 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 Bank shall notify the Holder in writing of the amount of Defaulted 

Interest proposed to be paid on each such CDCI Senior Subordinated Security 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 Bank 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 CDCI Senior Subordinated Security at his, her or its address as it 

appears in the CDCI Senior Subordinated Securities 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 

person in whose name such CDCI Senior Subordinated Security is registered at the close of 

business on such special record date and thereafter the Bank shall have no further payment 

obligation in respect of the Defaulted Interest. 
 -23- 

(d) The Bank may make payment of any Defaulted Interest on the CDCI 

Senior Subordinated Securities in any other lawful manner not inconsistent with the requirements 

of any securities exchange on which such CDCI Senior Subordinated Securities may be listed, 

and upon such notice as may be required by such exchange. 

(e) Subject to the foregoing provisions of this Section 5.4, each CDCI Senior 

Subordinated Security delivered under this Agreement upon registration of transfer of or in 

exchange for or in lieu of any other CDCI Senior Subordinated Security shall carry the rights to 

interest accrued and unpaid, and to accrue, that were carried by such other CDCI Senior 

Subordinated Security. 

Section 5.5 Legends. (a) The Investor agrees that all certificates or other 

instruments representing the CDCI Senior Subordinated Securities 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. 

THIS SECURITY IS SUBJECT TO THE TERMS AND 

CONDITIONS SET FORTH IN THE LETTER AGREEMENT 

BY AND BETWEEN THE BANK AND THE UNITED STATES 

DEPARTMENT OF THE TREASURY AND EXCHANGE 

AGREEMENT – STANDARD TERMS (THE “AGREEMENT”), 

EACH OF WHICH ARE INCORPORATED INTO THIS 

SENIOR SUBORDINATED SECURITY. 

THIS SECURITY IS NOT A SAVINGS ACCOUNT OR 

DEPOSIT AND IT IS NOT INSURED BY THE UNITED 

STATES, ANY AGENCY OR FUND OF THE UNITED 

STATES OR THE FEDERAL DEPOSIT INSURANCE 

CORPORATION. 

THIS OBLIGATION IS SUBORDINATED AND JUNIOR IN 

RIGHT OF PAYMENT, AS TO PRINCIPAL, INTEREST AND 

PREMIUM, TO ALL CLAIMS AGAINST THE BANK HAVING 
 -24- 

THE SAME PRIORITY AS SAVINGS ACCOUNT HOLDERS 

OR OTHER DEPOSITORS, OR ANY HIGHER PRIORITY, 

INCLUDING GENERAL AND SECURED CREDITORS OF 

THE BANK. THIS OBLIGATION IS NOT SECURED BY THE 

BANK’S ASSETS OR THE ASSETS OF ANY OF ITS 

AFFILIATES. THIS OBLIGATION IS NOT ELIGIBLE AS 

COLLATERAL FOR ANY LOAN BY THE BANK. 

PURSUANT TO 12 U.S.C. 1831o(h), THE BANK MAY NOT 

MAKE ANY PAYMENT OF PRINCIPAL OR INTEREST ON 

THIS OBLIGATION BEGINNING 60 DAYS AFTER 

BECOMING CRITICALLY UNDERCAPITALIZED, UNLESS 

THE FEDERAL DEPOSIT INSURANCE CORPORATION HAS 

MADE AN EXCEPTION PURSUANT TO 12 U.S.C. 

1831o(h)(2)(B). 

THE TERMS UNDER WHICH THE BANK MAY PREPAY 

THIS SENIOR SUBORDINATED SECURITY ARE SET 

FORTH IN THE AGREEMENT. 

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 
 -25- 

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 BANK 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. 

[NOTWITHSTANDING THE FOREGOING, AN INDENTURE 

MEETING THE REQUIREMENTS OF 12 C.F.R. 563.81(c)(4)(i) 

MUST BE IN PLACE BEFORE THIS SECURITY IS 

TRANSFERRED TO ANY PERSON WHO IS NOT AN 

“ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(a) 

UNDER THE SECURITIES ACT). – to be included for OTSregulated institutions only, per 12 C.F.R. 563.81(c)(4)(ii)]

THIS INSTRUMENT IS ISSUED SUBJECT TO THE 

RESTRICTIONS ON TRANSFER AND OTHER PROVISIONS 

OF THE AGREEMENT BETWEEN THE BANK AND THE 

INVESTOR REFERRED TO THEREIN, A COPY OF WHICH IS 

ON FILE WITH THE BANK. THIS SECURITY MAY NOT BE 

SOLD OR OTHERWISE TRANSFERRED EXCEPT IN 

COMPLIANCE WITH SAID AGREEMENT. ANY SALE OR 

OTHER TRANSFER NOT IN COMPLIANCE WITH SAID 

AGREEMENT WILL BE VOID.” 

(b) In the event that any CDCI Senior Subordinated Securities (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 Bank shall issue new certificates 

or other instruments representing such CDCI Senior Subordinated Securities, which shall not 

contain the applicable legends in Sections 5.5(a) above; provided that the Investor surrenders to 

the Bank the previously issued certificates or other instruments. 

Section 5.6 Transfer of CDCI Senior Subordinated Securities. (a) The 

Bank or its duly appointed agent shall maintain a register (the “CDCI Senior Subordinated 

Securities Register”) for the CDCI Senior Subordinated Securities in which it shall register the 

issuance and transfer of the CDCI Senior Subordinated Securities. All transfers of the CDCI 

Senior Subordinated Securities shall be recorded on the CDCI Senior Subordinated Securities 

Register maintained by the Bank or its agent, and the Bank shall be entitled to regard the 

registered Holder of such CDCI Senior Subordinated Security as the actual owner of the CDCI 

Senior Subordinated Security so registered until the Bank or its agent is required to record a 

transfer of such CDCI Senior Subordinated Security on its CDCI Senior Subordinated Securities 
 -26- 

Register. The Bank or its agent shall, subject to applicable securities laws, be required to record 

any such transfer when it receives the CDCI Senior Subordinated Security to be transferred duly 

and properly endorsed by the registered Holder or by its attorney duly authorized in writing. 

(b) The Bank shall at any time, upon written request of the Holder of a CDCI 

Senior Subordinated Security and surrender of the CDCI Senior Subordinated Security for such 

purpose, at the expense of the Bank, issue new CDCI Senior Subordinated Securities in exchange 

therefor in such denominations of at least $1,000, as shall be specified by the Holder of such 

CDCI Senior Subordinated Security, in an aggregate principal amount equal to the then unpaid 

principal amount of the CDCI Senior Subordinated Securities surrendered and substantially in 

the form of Annex D, with appropriate insertions and variations, and bearing interest from the 

date to which interest has been paid on the CDCI Senior Subordinated Security surrendered. All 

CDCI Senior Subordinated Securities issued upon any registration of transfer of exchange 

pursuant to this Section 5.6(b) shall be valid obligations of the Bank, evidencing the same debt, 

and entitled to the same benefits under this Agreement, as the CDCI Senior Subordinated 

Securities surrendered upon such registration of transfer or exchange. 

(c) All CDCI Senior Subordinated Securities 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 Bank duly executed by the 

Holder or such Holder’s attorney duly authorized in writing. 

(d) No service charge shall be incurred for any exchange or registration of 

transfer of CDCI Senior Subordinated Securities, but the Bank may require payment of a sum 

sufficient to cover any Tax, fee or other governmental charge that may be imposed in connection 

therewith. 

(e) Prior to due presentment for the registration of a transfer of any CDCI 

Senior Subordinated Security, the Bank and any agent of the Bank may deem and treat the 

person in whose name such CDCI Senior Subordinated Security is registered as the absolute 

owner and Holder of such CDCI Senior Subordinated Security for the purpose of receiving 

payment of principal of and interest on such CDCI Senior Subordinated Security and none of the 

Bank or any agents of the Bank shall be affected by notice to the contrary. 

(f) 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 

CDCI Senior Subordinated Securities at any time, and the Bank shall take all steps as may be 

reasonably requested by the Investor to facilitate the Transfer of the CDCI Senior Subordinated 

Securities; provided that the Investor and its transferees shall use their commercially reasonable 

efforts not to effect any Transfer of any CDCI Senior Subordinated Securities if such transfer 

would require the Bank to be subject to the periodic reporting requirements of Section 13 or 

15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) and the Bank was not 

already subject to such requirements. In furtherance of the foregoing, the Bank shall provide 

reasonable cooperation to facilitate any Transfers of the CDCI Senior Subordinated Securities, 

including, as is reasonable under the circumstances, by furnishing such information concerning 

the Bank and its business as a proposed transferee may reasonably request (including such 

information as is required by Section 4.1(c)(iv)) and making management of the Bank reasonably 
 -27- 

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. 

Section 5.7 Replacement of CDCI Senior Subordinated Securities. Upon 

receipt of evidence reasonably satisfactory to the Bank of the loss, theft, destruction or mutilation 

of any CDCI Senior Subordinated Security, and, in the case of any such loss, theft or destruction, 

upon delivery of a bond of indemnity reasonably satisfactory to the Bank (provided that the 

Investor or any institutional Holder of a CDCI Senior Subordinated Security may instead deliver 

to the Bank an indemnity agreement in form and substance reasonably satisfactory to the Bank), 

or, in the case of any such mutilation, upon surrender and cancellation of the CDCI Senior 

Subordinated Security, as the case may be, the Bank will issue a new CDCI Senior Subordinated 

Security of like tenor, in lieu of such lost, stolen, destroyed or mutilated CDCI Senior 

Subordinated Security. 

Section 5.8 Cancellation. All CDCI Senior Subordinated Securities 

surrendered for the purpose of payment, exchange or registration of transfer, shall be surrendered 

to the Bank and promptly canceled by it, and no CDCI Senior Subordinated Securities shall be 

issued in lieu thereof except as expressly permitted by any of the provisions of this Agreement. 

The Bank shall destroy all canceled CDCI Senior Subordinated Securities. 

Section 5.9 Rule 144; Rule 144A, 4(11⁄2) Transactions. (a) At all times after 

the Signing Date, the Bank covenants that (1) it will, upon the request of the Investor or any 

subsequent holders of the CDCI Senior Subordinated Securities (“Holders”), use its reasonable 

best efforts to (x), to the extent any Holder is relying on Rule 144 under the Securities Act to sell 

any of the CDCI Senior Subordinated Securities, make “current public information” available, as 

provided in Section (c)(1) of Rule 144 (if the Bank is a “Reporting Issuer” within the meaning of 

Rule 144) or in Section (c)(2) of Rule 144 (if the Bank is a “Non-Reporting Issuer” within the 

meaning of Rule 144), in either case for such time period as necessary to permit sales pursuant to 

Rule 144, (y), to the extent any Holder is relying on the so-called “Section 4(11⁄2)” exemption to 

sell any of its CDCI Senior Subordinated Securities, prepare and provide to such Holder such 

information, including the preparation of private offering memoranda or circulars or financial 

information, as the Holder may reasonably request to enable the sale of the CDCI Senior 

Subordinated Securities pursuant to such exemption, or (z) to the extent any Holder is relying on 

Rule 144A under the Securities Act to sell any of its CDCI Senior Subordinated Securities, 

prepare and provide to such Holder the information required pursuant to Rule 144A(d)(4), and 

(2) it will take such further action as any Holder may reasonably request from time to time to 

enable such Holder to sell CDCI Senior Subordinated Securities without registration under the 

Securities Act within the limitations of the exemptions provided by (i) the provisions of the 

Securities Act or any interpretations thereof or related thereto by the SEC, including transactions 

based on the so-called “Section 4(11⁄2)” and other similar transactions, (ii) Rule 144 or 144A 

under the Securities Act, as such Rules may be amended from time to time, or (iii) any similar 

rule or regulation hereafter adopted by the SEC; provided that the Bank shall not be required to 

take any action described in this Section 5.9(a) that would cause the Bank to become subject to 

the reporting requirements of Section 13 or 15(d) of the Exchange Act if the Bank was not 

subject to such requirements prior to taking such action. Upon the request of any Holder, the 

Bank will deliver to such Holder a written statement as to whether it has complied with such 

requirements and, if not, the specifics thereof. 
 -28- 

(b) The Bank agrees to indemnify Investor, Investor’s officers, directors, 

employees, agents, representatives and Affiliates, and each person, if any, that controls Investor 

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 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 document or report provided by the 

Bank pursuant to this Section 5.9 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. 

(c) If the indemnification provided for in Section 5.9(b) 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 Bank, 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 Bank, 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 Bank, 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 Bank or by the Indemnitee and the parties’ relative intent, 

knowledge, access to information and opportunity to correct or prevent such statement or 

omission; the Bank and Investor agree that it would not be just and equitable if contribution 

pursuant to this Section 5.9(c) 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 5.9(b). 

No Indemnitee guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 

Securities Act) shall be entitled to contribution from the Bank if the Bank was not guilty of such 

fraudulent misrepresentation. 

Section 5.10 Depositary Securities. Upon request by the Investor at any time 

following the Closing Date, the Bank 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 CDCI Senior Subordinated 

Securities may be deposited. 

Section 5.11 Redemption. (a) The CDCI Senior Subordinated Securities at the 

time outstanding may be redeemed by the Bank at its option, subject to the approval of the 

Appropriate Federal Banking Agency, in whole or in part and subject to Section 5.11(e), at any 

time and from time to time, out of funds legally available therefor, upon notice given as provided 

in Section 5.11(d) below, on any Interest Payment Date (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 CDCI Senior Subordinated Securities are then 

being redeemed, such amount shall not be less than 25% of the aggregate face value of the CDCI 

Senior Subordinated Securities as of the Closing Date) and (ii) any accrued and unpaid interest. 
 -29- 

(b) The redemption price for any CDCI Senior Subordinated Securities shall 

be payable on the Redemption Date to the Holder of such CDCI Senior Subordinated Securities 

against surrender thereof to the Bank 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 CDCI Senior Subordinated Securities will not be 

subject to any mandatory redemption, sinking fund or other similar provisions. Holders of CDCI 

Senior Subordinated Securities will have no right to require redemption or repurchase of any of 

the CDCI Senior Subordinated Securities. 

(d) Notice of Redemption. Notice of redemption of the CDCI Senior 

Subordinated Securities shall be given by first class mail, postage prepaid, addressed to the 

Holders of record of the CDCI Senior Subordinated Securities to be redeemed at their respective 

last addresses appearing on the CDCI Senior Subordinated Securities 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 CDCI Senior Subordinated 

Securities designated for redemption shall not affect the validity of the proceedings for the 

redemption of any other CDCI Senior Subordinated Securities. Notwithstanding the foregoing, 

if CDCI Senior Subordinated Securities 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 

CDCI Senior Subordinated Securities 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 CDCI Senior Subordinated Securities to be redeemed by such Holder; (3) the 

redemption price; and (4) the place or places where such CDCI Senior Subordinated Securities 

are to be surrendered for payment of the redemption price. 

(e) Partial Redemption. The Bank may redeem less than all of the 

outstanding CDCI Senior Subordinated Securities, 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 CDCI Senior Subordinated 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 CDCI Senior Subordinated Securities shall be redeemed 

from time to time. If less than the full aggregate principal amount of any CDCI Senior 

Subordinated Security is redeemed, the Bank shall issue a new CDCI Senior Subordinated 

Security in the unredeemed aggregate principal amount thereof without charge to the Holder 

thereof. CDCI Senior Subordinated Securities 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 Bank, in trust for the pro rata benefit of the Holders of 

the CDCI Senior Subordinated Securities 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 and selected by the Board of Directors, so as to be and continue 
 -30- 

to be available solely therefor, then, notwithstanding that any CDCI Senior Subordinated 

Security 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 CDCI 

Senior Subordinated Securities so called for redemption, the aggregate principal amount of such 

CDCI Senior Subordinated Securities 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 CDCI Senior Subordinated Securities (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 Bank, after 

which time the Holders of such CDCI Senior Subordinated Securities (or portion thereof so 

called for redemption) shall look only to the Bank for payment of the redemption price of such 

CDCI Senior Subordinated Securities. 

(g) Status of Redeemed Securities. CDCI Senior Subordinated Securities that 

are redeemed, repurchased or otherwise acquired by the Bank shall be cancelled and shall not 

thereafter be reissued by the Bank. 

Section 5.12 Voting Rights. 

(a) General. The Holders of CDCI Senior Subordinated Securities shall not 

have any voting rights except as set forth below or as otherwise from time to time required by 

law. 

(b) CDCI Senior Subordinated Securities Directors. Subject to the provisions 

of Section 3.23 and any applicable State Restrictions, whenever, at any time or times, interest 

payable on the CDCI Senior Subordinated Securities has not been paid in full for an aggregate of 

eight (8) quarterly Interest Periods or more, whether or not consecutive, the authorized number 

of directors of the Bank shall automatically be increased by two and the Holders of the CDCI 

Senior Subordinated Securities 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 “CDCI Senior 

Subordinated Securities Directors” and each, a “CDCI Senior Subordinated Securities Director”) 

at the Bank’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 four (4) consecutive Interest Periods, including the latest 

completed Interest Period (including, if applicable as provided in Section 5.4 above, interest on 

such amount), on all outstanding CDCI Senior Subordinated Securities has been paid in full at 

which time such right shall terminate with respect to the CDCI Senior Subordinated Securities, 

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 CDCI Senior Subordinated Securities Director that the election of such CDCI 

Senior Subordinated Securities Director shall not cause the Bank to violate any corporate 

governance requirements of any securities exchange or other trading facility on which securities 

of the Bank may then be listed or traded that listed or traded companies must have a majority of 
 -31- 

independent directors. Upon any termination of the right of the Holders of CDCI Senior 

Subordinated Securities as a class to vote for directors as provided above, the CDCI Senior 

Subordinated Securities Directors shall cease to be qualified as directors, the term of office of all 

CDCI Senior Subordinated Securities Directors then in office shall terminate immediately and 

the authorized number of directors shall be reduced by the number of CDCI Senior Subordinated 

Securities Directors elected pursuant hereto. Any CDCI Senior Subordinated Securities Director 

may be removed at any time, with or without cause, and any vacancy created thereby may be 

filled, only by the affirmative vote of the Holders holding more than fifty percent (50%) of the 

aggregate outstanding principal amount of the CDCI Senior Subordinated Securities (the 

“Majority Holders”) at the time voting separately as a class, to the extent the voting rights of 

such Holders described above are then exercisable. If the office of any CDCI Senior 

Subordinated Securities Director becomes vacant for any reason other than removal from office 

as aforesaid, the remaining CDCI Senior Subordinated Securities 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 CDCI Senior 

Subordinated Securities are outstanding, in addition to any other vote or consent of Interest 

Holders required by law or by the Charter, but subject to any applicable State Restrictions, the 

vote or consent of the Holders of at least 66 2/3% of the CDCI Senior Subordinated Securities 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 CDCI Senior Subordinated Securities called for the purpose in 

accordance with Section 5.12(e), shall be necessary for effecting or validating: 

(i) Amendment of CDCI Senior Subordinated Securities. Any amendment, 

alteration or repeal of any provision of this Agreement or of the form of the CDCI Senior 

Subordinated Securities or the Charter (including, unless no vote on such merger or 

consolidation is required by Section 5.12(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 CDCI Senior Subordinated 

Securities; 

(ii) Exchanges, Reclassifications, Mergers and Consolidations. Any 

consummation of a binding exchange or reclassification involving the CDCI Senior 

Subordinated Securities, or of a merger or consolidation of the Bank with another entity, 

unless in each case (x) the CDCI Senior Subordinated Securities remain outstanding or, 

in the case of any such merger or consolidation with respect to which the Bank 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 CDCI Senior 

Subordinated Securities 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 CDCI Senior Subordinated Securities immediately prior to such consummation, taken 

as a whole; or 
 -32- 

(iii) Creation of Senior Capital Instruments. Any authorization or issuance of 

any equity securities, mutual capital certificates or other capital instruments (other than 

the rights of Members in respect of deposit liabilities of Bank) of the Bank, or any 

securities convertible into or exchangeable or exercisable for any equity securities, 

mutual capital certificates or other capital instruments authorized by State law (other than 

the rights of Members in respect of deposit liabilities of the Bank) ranking senior to the 

CDCI Senior Subordinated Securities with respect to the payment of interest (whether or 

not such interest compounds) or principal and the distribution of assets upon liquidation, 

dissolution or winding up of the Bank. 

provided, however, that for all purposes of this Section 5.12(c), any increase in the amount of the 

CDCI Senior Subordinated Securities, or the creation and issuance of any other Indebtedness of 

the Bank, or any securities convertible into or exchangeable or exercisable for any CDCI Senior 

Subordinated Securities, ranking senior to, equally with and/or subordinate to the CDCI Senior 

Subordinated Securities 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 

Bank 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 CDCI Senior 

Subordinated Securities. 

(d) Changes after Provision for Redemption. No vote or consent of the 

Holders of CDCI Senior Subordinated Securities shall be required pursuant to Section 5.12(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 CDCI Senior Subordinated Securities shall have been 

redeemed, or shall have been called for redemption upon proper notice and sufficient funds shall 

have been deposited in trust for such redemption, in each case pursuant to Section 5.11 above. 

(e) Procedures for Voting and Consents. The rules and procedures for calling 

and conducting any meeting of the Holders of CDCI Senior Subordinated Securities (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 CDCI Senior Subordinated Securities are listed or traded at the 

time. 

Section 5.13 Expenses and Further Assurances. (a) Unless otherwise 

provided in this Agreement, 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, including fees and expenses of its own financial or other consultants, investment 

bankers, accountants and counsel. 

(b) The Bank shall, at the Bank’s sole cost and expense, (i) furnish to the 

Investor all instruments, documents and other agreements required to be furnished by the Bank 

pursuant to the terms of this Agreement, including, without limitation, any documents required to 
 -33- 

be delivered pursuant to Section 5.9 above, or which are reasonably requested by the Investor in 

connection therewith; (ii) execute and deliver to the Investor such documents, instruments, 

certificates, assignments and other writings, and do such other acts necessary or desirable, to 

evidence, preserve and/or protect the CDCI Senior Subordinated Securities purchased by the 

Investor, as Investor may reasonably require; and (iii) do and execute all and such further lawful 

and reasonable acts, conveyances and assurances for the better and more effective carrying out of 

the intents and purposes of this Agreement, as the Investor shall reasonably require from time to 

time. 

Section 5.14 Communications to Holders. Any Holder shall have the right, 

upon five (5) business days prior written notice to the Bank or its duly appointed agent to obtain 

a complete list of Holders. In addition, any Holder shall have the right to request that the Bank 

or its duly appointed agent send a notice on behalf of such Holder to all other Holders at the 

addresses set forth on the CDCI Senior Subordinated Securities Register or, to the extent the 

Bank has entered into a depositary arrangement, by means of any procedures applicable to such 

depositary arrangement. 

ARTICLE VI 

SUBORDINATION OF THE CDCI SENIOR SUBORDINATED SECURITIES

Section 6.1 Agreement to Subordinate. (a) The Bank covenants and agrees, 

and each Holder of CDCI Senior Subordinated Securities issued hereunder likewise covenants 

and agrees, that the CDCI Senior Subordinated Securities shall be issued subject to the 

provisions of this Article VI; and each Holder of a CDCI Senior Subordinated Security, whether 

upon original issue or upon transfer or assignment thereof, accepts and agrees to be bound by 

such provisions. 

(b) The payment by the Bank of the principal of and interest on all CDCI 

Senior Subordinated Securities 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 

amounts then due and payable in respect of Senior Indebtedness, whether outstanding at the date 

of this Agreement or thereafter incurred. 

(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 CDCI Senior Subordinated Securities hereunder. 

Section 6.2 Default on Senior Indebtedness. (a) In the event and during the 

continuation of any default by the Bank in the payment of principal, premium, interest or any 

other payment due on any Senior Indebtedness, no payment shall be made by the Bank with 

respect to the principal or interest on the CDCI Senior Subordinated Securities or any other 

amounts which may be due on the CDCI Senior Subordinated Securities 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 Bank with respect to the principal or interest on the CDCI 
 -34- 

Senior Subordinated Securities or any other amounts which may be due on the CDCI Senior 

Subordinated Securities 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 CDCI Senior Subordinated Security, 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 CDCI Senior Subordinated Securities 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 Bank 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 Bank shall be paid to the holders of such Senior Indebtedness. 

The Bank shall, within ten (10) business days of receipt of such notice, provide Investor with 

(i) a copy of such notice delivered to the Bank and (ii) a certificate signed on behalf of the Bank 

by a Senior Executive Officer certifying that the information set forth in such notice is true and 

correct and confirming that the Holder of the CDCI Senior Subordinated Securities should pay or 

deliver the amounts specified in such notice in the manner specified therein. 

Section 6.3 Liquidation; Dissolution. (a) Upon any payment by the Bank or 

distribution of assets of the Bank of any kind or character, whether in cash, property or 

securities, to creditors upon any dissolution, winding-up, liquidation or reorganization of the 

Bank, whether voluntary or involuntary or in insolvency, receivership or other proceedings, the 

holders of all Senior Indebtedness of the Bank 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 

Bank on account of the principal of or interest on the CDCI Senior Subordinated Securities or 

any other amounts which may be due on the CDCI Senior Subordinated Securities pursuant to 

the terms hereof or thereof); and upon any such dissolution, winding-up, liquidation or 

reorganization, any payment by the Bank, or distribution of assets of the Bank of any kind or 

character, whether in cash, property or securities, which the Holder of the CDCI Senior 

Subordinated Securities would be entitled to receive from the Bank, except for the provisions of 

this Article VI, shall be paid by the Bank or by any receiver, liquidating trustee, agent or other 

person making such payment or distribution, or by the Holder of the CDCI Senior Subordinated 

Securities under this Agreement if received by them or it, directly to the holders of Senior 

Indebtedness of the Bank (pro rata to such holders on the basis of the respective amounts of 

Senior Indebtedness held by such holders, as calculated by the Bank) 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 money’s 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 CDCI Senior Subordinated Securities. 
 -35- 

(b) In the event that, notwithstanding the foregoing, any payment or 

distribution of assets of the Bank 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 CDCI Senior Subordinated 

Securities, 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 CDCI Senior 

Subordinated Security, 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 Bank, 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. In such event, the Bank shall provide Investor with a certificate signed on behalf 

of the Bank by a Senior Executive Officer confirming that the Holder of the CDCI Senior 

Subordinated Securities should pay or deliver such amounts to 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 Capital Interests in the Bank as reorganized or readjusted, or 

securities of the Bank 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 CDCI Senior Subordinated Securities 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 reorganization or readjustment. The consolidation of the Bank with, or 

the merger of the Bank into, another person or the liquidation or dissolution of the Bank 

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 4.2(a) 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 4.2(a) of this 

Agreement. 

Section 6.4 Subrogation. (a) Subject to the payment in full of all of Senior 

Indebtedness, the rights of the Holders of the CDCI Senior Subordinated Securities 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 Bank, as the case may be, applicable to such 

Senior Indebtedness until the principal of and interest on the CDCI Senior Subordinated 

Securities 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 CDCI Senior Subordinated Securities 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 CDCI Senior 

Subordinated Securities shall, as between the Bank, its creditors other than holders of Senior 

Indebtedness of the Bank, and the Holders of the CDCI Senior Subordinated Securities, be 
 -36- 

deemed to be a payment by the Bank 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 CDCI Senior Subordinated Securities, 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 CDCI Senior Subordinated Securities is intended to or shall impair, as between the Bank, its 

creditors other than the holders of Senior Indebtedness of the Bank, and the Holders of the CDCI 

Senior Subordinated Securities, the obligation of the Bank, which is absolute and unconditional, 

to pay to the Holders of the CDCI Senior Subordinated Securities the principal of and interest on 

the CDCI Senior Subordinated Securities 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 CDCI Senior Subordinated Securities and creditors of the Bank, as the case may be, other 

than the holders of Senior Indebtedness of the Bank, as the case may be, nor shall anything 

herein or therein prevent the Holder of any CDCI Senior Subordinated Securities 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 Bank, as the case may be, received upon the exercise of any 

such remedy. 

Section 6.5 Notice by the Bank. (a) The Bank shall give prompt written 

notice to the Holders of the CDCI Senior Subordinated Securities of any fact known to the Bank 

that would prohibit the making of any payment of monies in respect of the CDCI Senior 

Subordinated Securities pursuant to the provisions of this Article VI. 

(b) Upon any payment or distribution of assets of the Bank referred to in this 

Article VI, the Holders of the CDCI Senior Subordinated Securities shall be entitled to 

conclusively rely upon any order or decree entered by any court of competent jurisdiction in 

which such insolvency, receivership, liquidation, reorganization, dissolution, winding-up or 

similar case or proceeding is pending, or a certificate of the 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 CDCI Senior Subordinated Securities, 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 Bank, 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. 

Section 6.6 Subordination May Not Be Impaired. (a) No right of any 

present or future holder of any Senior Indebtedness of the Bank 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 Bank, 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 Bank, 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 Bank may, at any time and from time to time, without the 
 -37- 

consent of or notice to the Holders of the CDCI Senior Subordinated Securities, without 

incurring responsibility to the Holders of the CDCI Senior Subordinated Securities and without 

impairing or releasing the subordination provided in this Article VI or the obligations hereunder 

of the Holders of the CDCI Senior Subordinated Securities 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 

Bank, as the case may be, and any other person. 

ARTICLE VII 

REMEDIES OF THE HOLDERS UPON EVENT OF DEFAULT

Section 7.1 Event of Default. “Event of Default” shall mean the occurrence 

or existence of any one or more of the following: 

(a) Receivership or Conservatorship. (i) There shall be appointed a receiver, 

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

Bank or for any substantial part of its property, and such appointment shall remain unstayed and 

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

(ii) The Bank shall consent to the appointment of a receiver, conservator, 

liquidator, assignee, custodian, trustee, sequestrator or other similar official 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; or 

(b) Dissolution. Any order, judgment or decree is entered against the Bank 

decreeing the dissolution or split up of the Bank and such order remains undischarged or 

unstayed for a period in excess of thirty (30) days. 

Section 7.2 Acceleration and Other Remedies. When any Event of Default 

has occurred and is continuing, then the CDCI Senior Subordinated Securities, including both 

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

Section 7.3 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 7.5 hereof, the Majority Holders, subject to the terms 

of Article VI hereof, may proceed to protect and enforce their rights under this Article VII 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 CDCI Senior Subordinated Securities and the Bank (including its officers and 
 -38- 

agents) in connection with a breach or enforcement of this Agreement, the Holders of the CDCI 

Senior Subordinated Securities 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. 

Section 7.4 Holders May File Proofs of Claim. In case there shall be 

pending proceedings for the bankruptcy or for the reorganization of any obligor on the CDCI 

Senior Subordinated Securities (other than the Bank) 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 Bank 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 CDCI Senior Subordinated Securities 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 7.4, 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 CDCI Senior 

Subordinated Securities 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 

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. 

Section 7.5 Waiver of Past Defaults. The Holders of not less than a majority 

in aggregate principal amount of the outstanding CDCI Senior Subordinated Securities may on 

behalf of the Holders of all the CDCI Senior Subordinated Securities waive any past default 

hereunder with respect such CDCI Senior Subordinated Securities and its consequences. Upon 

any such waiver, such default shall cease to exist, and any Event of Default arising therefrom 

shall be deemed to have been cured, for every purpose of this Agreement; but no such waiver 

shall extend to any subsequent or other default or impair any right consequent thereon. 

ARTICLE VIII 

MISCELLANEOUS

Section 8.1 Termination. This Agreement shall terminate upon the earliest to 

occur of: 

(a) termination at any time prior to the Closing: 

(i) by either the Investor or the Bank 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 
 -39- 

the parties shall be required to consult only until the fifth calendar 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 8.1(a)(i) 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 

(ii) by either the Investor or the Bank 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 

(iii) by the mutual written consent of the Investor and the Bank; or 

(b) the date on which all of the CDCI Senior Subordinated Securities have 

been redeemed in whole; or 

(c) the date on which the Investor has transferred all of the CDCI Senior 

Subordinated Securities to third parties which are not Affiliates of the Investor; or 

(d) if the Closing shall not have occurred by September 30, 2010, on such 

date. 

In the event of termination of this Agreement as provided in this Section 8.1, 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. 

Section 8.2 Survival. (a) This Agreement and all representations, warranties, 

covenants and agreements made herein shall survive the Closing without limitation. 

(b) The covenants set forth in Article IV and Annex E and the agreements set 

forth in Articles VI and VII shall, to the extent such covenants do not explicitly terminate at such 

time as the Investor no longer owns any CDCI Senior Subordinated Securities, survive the 

termination of this Agreement pursuant to Section 8.1(c) hereof without limitation until the date 

on which all of the CDCI Senior Subordinated Securities have been redeemed in whole. 

Section 8.3 Amendment. Except as otherwise provided herein, no 

amendment, modification, termination or waiver of any provision of this Agreement, the CDCI 

Senior Subordinated Securities or any of the other Transaction Documents, or consent to any 

departure by the Bank therefrom, shall be effective unless made in writing and signed by an 

officer or a duly authorized representative of the Bank, and in the case of the CDCI Senior 

Subordinated Securities, the Majority Holders; provided that for so long as the CDCI Senior 

Subordinated Securities are outstanding, the Investor may at any time and from time to time 

unilaterally amend Section 4.1(d) to the extent the Investor deems necessary, in its sole 

discretion, to comply with, or conform to, any changes after the Signing Date in any federal 

statutes, any rules and regulations promulgated thereunder and any other publications or 

interpretative releases of the Fund governing CDFIs, including, without limitation, any changes 
 -40- 

in the criteria for certification of an entity as a CDFI by the Fund; provided, further, that, 

notwithstanding anything else in this Section 8.3, no amendment, modification, termination or 

waiver with respect to the CDCI Senior Subordinated Securities 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 CDCI Senior Subordinated Security; (B) extend any date fixed for any payment of 

principal or interest; (C) change the definition of the terms “Holders” or “Majority Holders” or 

the percentage of Holders which shall be required for Holders to take any action hereunder; 

(D) amend or waive this Section 8.3 or the definitions of the terms used in this Section 8.3 

insofar as the definitions affect the substance of this Section 8.3; or (E) consent to the 

assignment, delegation or other transfer by the Bank of any of its rights and obligations under 

any Transaction Documents. Any amendment, modification, termination, waiver or consent 

effected in accordance with this Section 8.3 shall be binding upon each Holder of the CDCI 

Senior Subordinated Securities at the time outstanding, each future Holder of the CDCI Senior 

Subordinated Securities and the Bank. 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. 

Section 8.4 Waiver of Conditions. The conditions to each party’s obligation 

to consummate the Exchange 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. 

Section 8.5 Governing Law; Submission to Jurisdiction, etc. This 

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

relationship of the parties, and/or the interpretation and enforcement of the rights and duties of 

the parties shall be enforced, governed, and construed 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 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 or the Exchange contemplated 

hereby and (b) that notice may be served upon (i) the Bank at the address and in the manner set 

forth for notices to the Bank in Section 8.6 and (ii) the Investor at the address and in the manner 

set forth for notices to the Bank in Section 8.6, but otherwise in accordance with federal law. TO 

THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO 

HEREBY UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY CIVIL LEGAL 

ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE EXCHANGE 

CONTEMPLATED HEREBY. 

Section 8.6 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 
 -41- 

recognized next day courier service. All notices hereunder shall be delivered as set forth below 

or pursuant to such other instructions as may be designated in writing by the party to receive 

such notice. 

If to the Bank as set forth in Schedule A. 

If to the Investor: 

United States Department of the Treasury 

1500 Pennsylvania Avenue, NW 

Washington, D.C. 20220 

Attention: Chief Counsel, Office of Financial Stability 

Facsimile: (202) 927-9225 

E-mail: CDCINotice@do.treas.gov

with a copy to: 

E-mail: OFSChiefCounselNotices@do.treas.gov 

Section 8.7 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 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 term “Appropriate Federal Banking Agency” means the “appropriate 

Federal banking agency” with respect to the Bank or such Bank Subsidiaries, as applicable, as 

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

(d) The term “Bank Financial Statements” means the consolidated financial 

statements of the Bank and its consolidated subsidiaries for each of the last three completed 

fiscal years of the Bank (which shall be audited to the extent audited financial statements are 

available) and each completed quarterly period since the last completed fiscal year, required to 

be delivered to Investor pursuant to the CPP Securities Purchase Agreement. 

(e) The term “Bank Material Adverse Effect” means a material adverse effect 

on (i) the business, results of operation or financial condition of the Bank and its consolidated 
 -42- 

subsidiaries taken as a whole; provided, however, that Bank Material Adverse Effect shall not be 

deemed to include the effects of (A) changes after 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 Bank and its subsidiaries operate, (B) changes or proposed changes after the Signing 

Date in generally accepted accounting principles in the United States (“GAAP”), or authoritative 

interpretations thereof, or (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 (in the case of each of these clauses (A), (B) and (C), 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 Bank and its consolidated 

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

organizations); or (ii) the ability of the Bank to consummate the Exchange and other transactions 

contemplated by this Agreement and perform its obligations hereunder or thereunder on a timely 

basis. 

(f) The term “Business Combination” means a merger, consolidation, 

statutory share exchange or similar transaction that requires the approval of the Bank’s Members. 

(g) The term “Designated Matters” means (i) the election and removal of 

directors, (ii) the approval of any Business Combination, (iii) the approval of a sale of all or 

substantially all of the assets or property of the Bank, (iv) the approval of a dissolution of the 

Bank, (v) the approval of any issuance of any securities of the Bank on which holders of 

Common Stock are entitled to vote, (vi) the approval of any amendment to the Charter or bylaws 

of the Bank on which holders of Common Stock are entitled to vote, (vii) any matters which 

require member approval under any applicable national stock exchange rules and (viii) the 

approval of any other matters reasonably incidental to the matters set forth in subclauses (i) 

through (vii) as determined by the Investor. 

(h) The term “Disclosure Schedule” means collectively, those certain 

schedules delivered to the Investor on or prior to (i) the CPP Signing Date, with respect to the 

“Disclosure Schedule” delivered in connection with the CPP Securities Purchase Agreement and 

(ii) the Signing Date with respect to the schedules required to be delivered under this Agreement, 

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 of the CPP 

Securities Purchase Agreement or Article III hereof. 

(i) The term “EAWA” 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. 

(j) The term “Indebtedness” means, whether or not recourse is to all or a 

portion of the assets of the Bank and whether or not contingent, (i) the claims of the Bank’s 
 -43- 

secured and general creditors; (ii) every obligation of the Bank for money borrowed; (iii) every 

obligation of the Bank 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 Bank, contingent or otherwise, with 

respect to letters of credit, bankers’ acceptances, security purchase facilities or similar facilities 

issued for the account of the Bank; (v) every obligation of the Bank 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 

Bank; (vii) all indebtedness of the Bank 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 

Bank 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 Bank. 

(k) The term “Members” means persons having ownership rights in the Bank 

by virtue of their ownership of a deposit at the Bank. 

(l) The term “Previously Disclosed” means information set forth on the 

Disclosure Schedule or the Disclosure Update, as applicable; provided, however, that disclosure 

in any section of such Disclosure Schedule or Disclosure Update, as applicable, 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; 

provided, further, that the existence of Previously Disclosed information, pursuant to a 

Disclosure Update, shall neither obligate the Investor to consummate the Exchange nor limit or 

affect any rights of or remedies available to the Investor. 

(m) The term “Senior Executive Officers” means the Bank’s “senior executive 

officers” as defined in Section 111 of the EESA and the Compensation Regulations. 

(n) The term “Senior Indebtedness” means, with respect to the CDCI Senior 

Subordinated Securities, (i) all deposit liabilities of the Bank, (ii) the principal of (and premium, 

if any) and interest, if any (including interest accruing on or after the appointment of a receiver 

or conservator relating to the Bank, whether or not such claim for post appointment interest is 

allowed), 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, provided, however, that Senior Indebtedness shall not include (A) any other 

subordinated debt of the Bank that by its terms ranks pari passu or junior to the CDCI Senior 

Subordinated Securities issued hereunder or (B) any obligation to holders of Capital Interests or 

shares of equity in the Bank (if and upon conversion of the Bank to a stock-based entity) arising 

as a result of their status as holders of such Capital Interests or shares of equity. 

(o) The term “State Restrictions” means, if the Bank is organized under the 

laws of any state, any restrictions imposed by the laws of such state on voting rights of holders of 
 -44- 

the CDCI Senior Subordinated Securities that cannot be modified, waived or otherwise removed 

by the appropriate Governmental Entity of such state. 

(p) The term “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, penalty or addition imposed by any Governmental Entity. 

(q) The term “Transaction Documents” means this Agreement, the CDCI 

Senior Subordinated Securities, and all other instruments, documents and agreements executed 

by or on behalf of the Bank and delivered concurrently herewith or at any time hereafter to or for 

the benefit of any holder of any CDCI Senior Subordinated Security in connection with the 

transactions contemplated by this Agreement, all as amended, supplemented or modified from 

time to time. 

(r) 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 Section 1.2 or 8.9(c) or transferred to an Affiliate of the Investor, all references 

herein to the Investor holding or owning any debt or equity securities of the Bank, CDCI Senior 

Subordinated Securities shall be deemed to refer to the Investor, together with such designees 

and/or Affiliates, holding or owning any debt or equity securities, CDCI Senior Subordinated 

Securities (and any like variations thereof), as applicable. 

Section 8.8 Interpretation. When a reference is made in this Agreement to 

“Recitals,” “Articles,” “Sections,” “Annexes” or “Schedules” such reference shall be to a 

Recital, Article or Section of, or Annex or Schedule to, this Agreement, 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 entered into 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 or the District of Columbia generally are authorized or required by law or other 

governmental actions to close. 

Section 8.9 Assignment. Neither this Agreement nor any right, remedy, 

obligation nor liability arising hereunder or by reason hereof shall be assignable by any party 
 -45- 

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 Bank’s Members 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, (b) an assignment of certain rights as 

provided in Sections 4.1(c) or 4.1(i) or Annex E or (c) an assignment 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 by 

such Affiliate, (ii) the Bank’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 

Affiliate. 

Section 8.10 Severability. If any provision of this Agreement, 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. 

Section 8.11 No Third-Party Beneficiaries. Other than as expressly provided 

herein, nothing contained in this Agreement, expressed or implied, is intended to confer upon 

any person or entity other than the Bank and the Investor (and any Indemnitee) any benefit, right 

or remedies. 

Section 8.12 Entire Agreement, etc. (a) This Agreement (including the 

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

agreements, understandings, representations and warranties, both written and oral, between the 

parties, with respect to the subject matter hereof. 

(b) For the avoidance of doubt, for so long as the Investor holds any 

outstanding CPP Senior Subordinated Securities or warrants issued by the Bank to the Investor 

pursuant to the CPP Securities Purchase Agreement or any securities issuable upon the exercise 

thereof or exchanged therefor (collectively, the “CPP Securities”), the CPP Securities Purchase 

Agreement and the CPP Securities shall remain in full force and effect, other than as specifically 

modified herein. 

Section 8.13 Tax Treatment of CDCI Senior Subordinated Securities. The 

Investor and the Bank agree that, for all tax purposes, the CDCI Senior Subordinated Securities 

will be treated as debt instruments and not as stock or equity of the Bank. 

Section 8.14 Specific Performance. The parties agree that irreparable damage 

would occur in the event that any of the provisions of this Agreement were not performed in 
 -46- 

accordance with their specific terms. It is accordingly agreed that the parties shall be entitled 

(without the necessity of posting a bond) to specific performance of the terms hereof, this being 

in addition to any other remedies to which they are entitled at law or equity. 

[Remainder of Page Intentionally Left Blank] 
 Annex A-1 

ANNEX A 

FORM OF OFFICER’S CERTIFICATE

OFFICER’S CERTIFICATE 

OF 

[BANK]

In connection with that certain letter agreement, dated [____________], 2010 

(the “Agreement”) by and between [BANK] (the “Bank”) and the United States Department of 

the Treasury which incorporates that certain Exchange Agreement –Standard Terms referred to 

therein (the “Standard Terms”), the undersigned does hereby certify as follows: 

1. I am a duly elected/appointed [____________] of the Bank. 

2. The representations and warranties of the Bank set forth in Article III of 

the Standard Terms are true and correct in all respects as though as of the date hereof (other than 

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

and warranties shall be true and correct in all respects as of such other date) and the Bank has 

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

Agreement. 

3. The Bank has effected such changes to its Benefit Plans with respect to its 

Senior Executive Officers and any other employee of the Bank or its Affiliates subject to 

Section 111 of EESA, as implemented by any Compensation Regulations (and to the extent 

necessary for such changes to be legally enforceable, each of its Senior Executive Officers and 

other employees has duly consented in writing to such changes), as may be necessary, during the 

Relevant Period, in order to comply with Section 111 of EESA or the Compensation 

Regulations. 

4. The Charter and bylaws of the Bank delivered to the Investor pursuant to 

the CPP Securities Purchase Agreement are true, complete and correct as of the date hereof. 

The foregoing certifications are made and delivered as of [_________] pursuant 

to Section 1.2 of the Standard Terms. 

Capitalized terms used and not otherwise defined herein shall have the meanings 

assigned to them in the Standard Terms. 

[SIGNATURE PAGE FOLLOWS] 
 Annex A-2 

IN WITNESS WHEREOF, this Officer’s Certificate has been duly executed and 

delivered as of the [__] day of [__________], 20[__]. 

[BANK] 

By: ____________________________________ 

Name: 

Title: 
 Annex B-1 

ANNEX B 

FORM OF OPINION 

(a) The Bank 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 

jurisdiction of its organization. The Bank has all necessary power and authority to own, operate 

and lease its properties and to carry on its business as it is being conducted. 

(b) The Bank has been duly qualified as a foreign entity for the transaction of 

business and is in good standing under the laws of [_____________], [_____________] and 

[_____________]. 

(c) The CDCI Senior Subordinated Securities have been duly and validly 

authorized, and, when executed and delivered pursuant to the Agreement, the CDCI Senior 

Subordinated Securities will be the legal, valid and binding obligations of the Bank, enforceable 

in accordance with their terms, except as the same may be limited by applicable receivership, 

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 obligations to holders of 

Capital Interests arising as a result of their status as holders of such Capital Interests, but 

subordinate to deposit liabilities of the Bank and to the Bank’s other debt obligations to its 

general and secured creditors, unless such debt obligations are explicitly made pari passu or 

subordinated to the CDCI Senior Subordinated Securities, in accordance with applicable 

regulations of the Appropriate Federal Banking Agency. 

(d) The Bank has the power and authority to execute and deliver the 

Agreement and to carry out its obligations thereunder (which includes the issuance of the CDCI 

Senior Subordinated Securities). 

(e) The execution, delivery and performance by the Bank of the Agreement 

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

necessary entity action on the part of the Bank and its Interest Holders, and no further approval 

or authorization is required on the part of the Bank, including, without limitation, by any rule or 

requirement of any national stock exchange. 

(f) The Agreement is a legal, valid and binding obligation of the Bank 

enforceable against the Bank in accordance with its terms, except as the same may be limited by 

applicable receivership, 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. 

(g) The execution and delivery by the Bank of this Agreement and the 

performance by the Bank of its obligations thereunder (i) do not require any approval by any 

Governmental Entity to be obtained on the part of the Bank, except those that have been 

obtained, (ii) do not violate or conflict with any provision of the Charter, (iii) do not violate, 

conflict with, or result in a breach of any provision of, or constitute a default (or an event which, 
 Annex B-2 

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

provisions of its organizational documents or under any agreement, contract, indenture, lease, 

mortgage, power of attorney, evidence of indebtedness, letter of credit, license, instrument, 

obligation, purchase or sales order, or other commitment, whether oral or written, to which it is a 

party or by which it or any of its properties is bound or (iv) do not conflict with, breach or result 

in a violation of, or default under any judgment, decree or order known to us that is applicable to 

the Bank and, pursuant to any applicable laws, is issued by any Governmental Entity having 

jurisdiction over the Bank. 

(h) Other than the filing of the amendment to the Charter with the Secretary 

of State of its jurisdiction of organization or other applicable Governmental Entity, such filings 

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

in connection with the consummation by the Bank of the Exchange. 

(i) The Bank is not nor, after giving effect to the issuance of the CDCI Senior 

Subordinated Securities pursuant to the 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. 

(j) The Bank (A) is a regulated community development financial institution 

(a “CDFI”) currently certified by the Community Development Financial Institution Fund (the 

“Fund”) of the United States Department of the Treasury pursuant to 12 C.F.R. 1805.201(a) and 

(B) satisfies all of the eligibility requirements of the Fund’s Community Development Financial 

Institutions Program for a CDFI. 
 Annex C-1 

ANNEX C 

FORM OF WAIVER 

In consideration for the benefits I will receive as a result of the participation of 

[____________________] (together with its subsidiaries and affiliates, the “Bank”) in the United 

States Department of the Treasury’s (the “Treasury”) Capital Purchase Program, Community 

Development Capital Initiative 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 and the Community Development Capital Initiative, a “Program”), I hereby 

voluntarily waive any claim against the United States (and each of its departments and agencies) 

or the Bank or any of its 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. Part 30, or any other guidance or 

regulations under the EESA and the applicable requirements of the Exchange Agreement by and 

among the Bank and the Treasury dated as of ___________ __, 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 

writing, that I may have with the Bank or in which I may participate as they relate to the period 

the United States holds any equity or debt securities of the Bank 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 

jurisdiction (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 will not at any time initiate, 

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

Bank or its 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 Bank 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 Bank to fail to be in compliance with the Limitations (such payment or benefit, an 

“Excess Payment”), upon notification from the Bank, I shall repay such Excess Payment to the 
 Annex C-2 

Bank within 15 business days. In addition, I agree that the Bank 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 manner 

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

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 further understand 

that the Bank is relying on this letter from me in connection with its participation in a Program. 
 Annex C-3 

IN WITNESS WHEREOF, I execute this waiver on my own behalf, thereby 

communicating my acceptance and acknowledgement to the provisions herein. 

Respectfully, 

By: ____________________________________ 

Name: 

Title: 

Date: 
 Annex D-1 

ANNEX D 

FORM OF CDCI SENIOR SUBORDINATED SECURITIES 

[SEE ATTACHED] 
 Annex E-1 

ANNEX E 

REGISTRATION RIGHTS 

Section 1.1 Definitions. Terms not defined in this Annex shall have the 

meaning ascribed to such terms in the Agreement. As used in this Annex E, the following terms 

shall have the following respective meanings: 

(a) “Holder” 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 1.9 hereof. 

(b) “Holders’ Counsel” means one counsel for the selling Holders chosen by 

Holders holding a majority interest in the Registrable Securities being registered. 

(c) “Pending Underwritten Offering” means, with respect to any Holder 

forfeiting its rights pursuant to Section 1.11 of this Annex E, any underwritten offering of 

Registrable Securities in which such Holder has advised the Bank of its intent to register its 

Registrable Securities either pursuant to Section 1.2(b) or 1.2(d) of this Annex E prior to the date 

of such Holder’s forfeiture. 

(d) “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. 

(e) “Registrable Securities” means (A) all CDCI Senior Subordinated 

Securities, and (B) any securities issued or issuable directly or indirectly with respect to the 

securities referred to in the foregoing clause (A) 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) they shall have ceased to be outstanding or 

(3) they have been sold in any 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. 

(f) “Registration Expenses” mean all expenses incurred by the Bank 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 

Annex E, including all registration, filing and listing fees, printing expenses, fees and 

disbursements of counsel for the Bank, 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 Bank’s independent accountants in connection with any regular or special 
 Annex E-2 

reviews or audits incident to or required by any such registration, but shall not include Selling 

Expenses. 

(g) “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. 

(h) “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). 

(i) “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) 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 Bank or Bank Subsidiaries or in connection with dividend reinvestment plans. 

Section 1.2 Registration. (a) The Bank covenants and agrees that as promptly 

as practicable after the date that the Bank 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 

Bank 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 

Bank 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 Bank is not eligible to file a registration statement on Form 

S-3, then the Bank shall not be obligated to file a Shelf Registration Statement unless and until 

requested to do so in writing by the Investor. 

(b) Any registration pursuant to Section 1.2(a) of this Annex E 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 Bank and the Bank shall take all reasonable steps to facilitate such distribution, 

including the actions required pursuant to Section 1.2(d) of this Annex E; provided that the Bank 

shall not be required to facilitate an underwritten offering of Registrable Securities unless (i) the 

expected gross proceeds from such offering exceed $200,000 or (ii) such underwritten offering 

includes all of the outstanding Registrable Securities held by such Holder. The lead underwriters 
 Annex E-3 

in any such distribution shall be selected by the Holders of a majority of the Registrable 

Securities to be distributed. 

(c) The Bank 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 1.2 of this Annex E: (A) with respect to securities that are not 

Registrable Securities; or (B) if the Bank 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 Bank 

or its securityholders for such registration or underwritten offering to be effected at such time, in 

which event the Bank 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 Bank (1) only if the 

Bank 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. 

(d) If during any period when an effective Shelf Registration Statement is not 

available, the Bank proposes to register any of its equity securities, other than a registration 

pursuant to Section 1.2(a) of this Annex E 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 Bank 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 Bank has 

received written requests for inclusion therein within ten business days after the date of the 

Bank’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 Bank 

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 Bank may terminate or withdraw 

any registration or qualification under this Section 1.2(d) of this Annex E 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. 

(e) If the registration referred to in Section 1.2(d) of this Annex E is proposed 

to be underwritten, the Bank will so advise Investor and all other Holders as a part of the written 

notice given pursuant to Section 1.2(d) of this Annex E. In such event, the right of Investor and 

all other Holders to registration pursuant to Section 1.2 of this Annex E 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 

Bank and the other persons distributing their securities through such underwriting) enter into an 

underwriting agreement in customary form with the underwriter or underwriters selected for such 

underwriting by the Bank; 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 
 Annex E-4 

written notice to the Bank, the managing underwriters and the Investor (if the Investor is 

participating in the underwriting). 

(f) If either (x) the Bank 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 1.2(b) of this Annex E or (y) a Piggyback Registration under 

Section 1.2(d) of this Annex E relates to an underwritten offering on behalf of the Bank, and in 

either case the managing underwriters advise the Bank 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 Bank 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 1.2(d) of this Annex E, the 

securities the Bank 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 1.2(b) 

or Section 1.2(d) of this Annex E, 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 Bank that 

have been requested to be so included, subject to the terms of this Agreement; provided, 

however, that if the Bank 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. 

Section 1.3 Expenses of Registration. All Registration Expenses incurred in 

connection with any registration, qualification or compliance hereunder shall be borne by the 

Bank. 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. 

Section 1.4 Obligations of the Bank. 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 Bank shall, as expeditiously as 

reasonably practicable: 

(a) 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 1.4 of this Annex E, 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. 

(b) 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 
 Annex E-5 

of the Securities Act; and (B) to the Indenture, with respect to the disposition of all securities 

covered by such registration statement and Indenture. 

(c) 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. 

(d) 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 Bank 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. 

(e) 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. 

(f) Give written notice to the Holders: 

(A) when any registration statement or Indenture filed pursuant to 

Section 4.1(i) of the Agreement 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 Bank or its legal counsel of any notification 

with respect to the suspension of the qualification of the applicable Registrable 

Securities for sale in any jurisdiction or the initiation or threatening of any 

proceeding for such purpose; 
 Annex E-6 

(E) of the happening of any event that requires the Bank 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 Bank 

contained in any underwriting agreement contemplated by Section 1.4(j) of this 

Annex E cease to be true and correct. 

(g) 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 1.4(f)(C) of this Annex E at the earliest practicable time. 

(h) Upon the occurrence of any event contemplated by Section 1.4(e) or 

1.4(f)(E) of this Annex 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 Bank notifies the Holders in accordance with Section 1.4(f)(E) 

of this Annex 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 Bank all copies of such 

prospectus (at the Bank’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. 

(i) Use reasonable best efforts to procure the cooperation of the Bank’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). 

(j) If an underwritten offering is requested pursuant to Section 1.2(b) of this 

Annex E, 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 Bank 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 Bank and its subsidiaries, 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 Bank, 

addressed to the managing underwriter(s), if any, covering the matters customarily covered in 
 Annex E-7 

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 Bank (and, if 

necessary, any other independent certified public accountants of any business acquired by the 

Bank 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 (A) above 

and to evidence compliance with any customary conditions contained in the underwriting 

agreement or other agreement entered into by the Bank. 

(k) 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 Bank, and 

cause the officers, directors and employees of the Bank 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. 

(l) 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 Bank are 

then listed or, if no similar securities issued by the Bank 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. 

(m) 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 filings of such prospectus supplement or 

such amendment as soon as practicable after the Bank has received such request. 

(n) Timely provide to its securityholders earning statements satisfying the 

provisions of Section 11(a) of the Securities Act and Rule 158 thereunder. 

Section 1.5 Suspension of Sales. Upon receipt of written notice from the 

Bank 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 
 Annex E-8 

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 Bank that the use 

of the prospectus and, if applicable, prospectus supplement or Indenture may be resumed, and, if 

so directed by the Bank, the Investor and/or such Holder shall deliver to the Bank (at the Bank’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. 

Section 1.6 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. 

Section 1.7 Furnishing Information. (a) 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 Bank. 

(b) It shall be a condition precedent to the obligations of the Bank to take any 

action pursuant to Section 1.4 of this Annex E that Investor and/or the selling Holders and the 

underwriters, if any, shall furnish to the Bank 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. 

Section 1.8 Indemnification. The Bank 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 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 

Bank 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 Bank 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 
 Annex E-9 

Bank 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 Bank 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 Bank. 

If the indemnification provided for in Section 1.8(i) of this Annex E 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 Bank, 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 Bank, 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 Bank, 

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 Bank or by the Indemnitee and the parties’ 

relative intent, knowledge, access to information and opportunity to correct or prevent such 

statement or omission; the Bank and each Holder agree that it would not be just and equitable if 

contribution pursuant to this Section 1.8(ii) of this Annex E 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 1.8(i) of this Annex E. No Indemnitee guilty of fraudulent 

misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to 

contribution from the Bank if the Bank was not guilty of such fraudulent misrepresentation. 

Section 1.9 Assignment of Registration Rights. The rights of the Investor to 

registration of Registrable Securities pursuant to Section 1.2 of this Annex E may be assigned by 

the Investor to a transferee or assignee of Registrable Securities; provided, however, the 

transferor shall, within ten days after such transfer, furnish to the Bank written notice of the 

name and address of such transferee or assignee and the number and type of Registrable 

Securities that are being assigned. 

Section 1.10 Clear Market. With respect to any underwritten offering of 

Registrable Securities by the Investor or other Holders pursuant to this Annex E, the Bank 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 Bank or any securities convertible into or exchangeable or exercisable for subordinated 

debentures or equity securities of the Bank, 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 Bank also agrees to 

cause such of its directors and senior executive officers to execute and deliver customary lock-up 
 Annex E-10 

agreements in such form and for such time period up to 90 days as may be requested by the 

managing underwriter. 

Section 1.11 Forfeiture of Rights. At any time, any holder of Registrable 

Securities (including any Holder) may elect to forfeit its rights set forth in this Annex E from that 

date forward; provided that a Holder forfeiting such rights shall nonetheless be entitled to 

participate under Section 1.2(d) – (f) of this Annex E 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 1.7 of this Annex E with respect to any prior registration or Pending Underwritten 

Offering. 

Section 1.12 Specific Performance. The parties hereto acknowledge that there 

would be no adequate remedy at law if the Bank fails to perform any of its obligations under this 

Annex E 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 Bank under this Annex E in accordance with the terms and conditions of this 

Annex E. 

Section 1.13 No Inconsistent Agreements. The Bank 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 Annex E 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 Annex E. In the event the Bank 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 Annex E (including agreements that are inconsistent with the 

order of priority contemplated by Section 1.2(f) of this Annex E ) or that may otherwise conflict 

with the provisions hereof, the Bank shall use its reasonable best efforts to amend such 

agreements to ensure they are consistent with the provisions of this Annex E. 

Section 1.14 Certain Offerings by the Investor. An “underwritten” offering 

or other disposition shall include any distribution of such securities on behalf of the Investor by 

one 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 Bank and used in connection with such 

distribution. 
 F-1 

ANNEX F 

OFFICER’S CERTIFICATE 

OF 

[BANK] 

In connection with that certain letter agreement, dated [____________], 2010 

(the “Agreement”) by and between [BANK] (the “Bank”) and the United States Department of 

the Treasury (“Investor”) which incorporates that certain Exchange Agreement –Standard Terms 

referred to therein (the “Standard Terms”), the undersigned does hereby certify as follows: 

Section 1.1 I am a duly elected/appointed [____________] of the Bank. 

Section 1.2 The Bank (as defined in the Standard Terms) (A) is certified by the 

Community Development Financial Institution Fund (the “Fund”) of the United States 

Department of the Treasury as a regulated community development financial institution (a 

“CDFI”); (B) together with its Affiliates collectively meets the eligibility requirements of 12 

C.F.R. 1805.200(b); (C) has a primary mission of promoting community development, as may be 

determined by Investor from time to time, based on criteria set forth in 12 C.F.R. 1805.201(b)(1); 

(D) provides Financial Products, Development Services, and/or other similar financing as a 

predominant business activity in arm’s-length transactions; (E) serves a Target Market by 

serving one or more Investment Areas and/or Targeted Populations in the manner set forth in 12 

C.F.R. 1805.201(b)(3); (F) provides Development Services in conjunction with its Financial 

Products, directly, through an Affiliate or through a contract with a third-party provider; (G) 

maintains accountability to residents of the applicable Investment Area(s) or Targeted 

Population(s) through representation on its governing Board of Directors or otherwise; and (H) 

remains a non-governmental entity which is not an agency or instrumentality of the United States 

of America, or any State or political subdivision thereof, as described in 12 C.F.R. 

1805.201(b)(6) and within the meaning of any supplemental regulations or interpretations of 12 

C.F.R. 1805.201(b)(6) or such supplemental regulations published by the Fund. As used herein, 

the terms “Affiliates”, “Financial Products”; “Development Services”; “Target Market”; 

“Investment Areas”; and “Targeted Populations” have the meanings ascribed to such terms in 12 

C.F.R. 1805.104. 

Section 1.3 The information set forth in the CDFI Certification Application 

delivered to the Investor pursuant to Section 1.2(c)(xii) of the Standard Terms (the “CDFI 

Application”), as modified by any updates to the CDFI Application provided on [Insert Date(s)] 

by the Bank to the Investor on or prior to the date hereof, with respect to the covenants set forth 

in Section 4.1(d)(i)(B) and Section 4.1(d)(i)(D) of the Standard Terms remains true, correct and 

complete as of the date hereof. 

Section 1.4 The contracts and material agreements entered into by the Bank 

with respect to Development Services previously disclosed to the Investor remain in effect and 
 F-2 

copies of any new contracts and material agreements entered into by the Bank with respect to 

Development Services are attached hereto as Exhibit A. 

Section 1.5 Attached hereto as Exhibit B is (A) a list of the names and 

addresses of the individuals which comprise the board of directors of the Bank as of the date 

hereof, (B) to the extent any member of the board of directors listed on Exhibit B was not a 

member of the board of directors as of the last certification provided to the Investor pursuant to 

Section 4.1(d)(ii) of the Standard Terms, a narrative describing such individual’s relationship to 

the applicable Investment Area(s) and Targeted Population(s) and (C) to the extent the Bank 

maintains accountability to residents of the applicable Investment Area(s) or Target 

Population(s) through means other than representation on its governing board of directors and 

such means have changed since the date of the last certification provided to the Investor pursuant 

to Section 4.1(d)(ii) of the Standard Terms on [Insert Date], a narrative describing such change. 

Section 1.6 The Bank is not an agency of the United States of America, or any 

State or political subdivision thereof, as described in 12 C.F.R. 1805.201(b)(6) and within the 

meaning of any supplemental regulations or interpretations of 12 C.F.R. 1805.201(b)(6) or such 

supplemental regulations published by the Fund. 

Section 1.7 The Bank is not, and has not been at any time since the date of the 

last certification provided to the Investor pursuant to Section 4.1(d)(ii) of the Standard Terms on 

[Insert Date], controlled (within the meaning of [Insert for banks: the Bank Holding Company 

Act of 1956 (12 U.S.C. 1841(a)(2)) and 12 C.F.R. 225(a)(i)][Insert for savings associations: the 

Home Owners’ Loan Act of 1933 (12 U.S.C. 1467a (a)(2)) and 12 C.F.R. 583.7]) by a foreign 

bank or company. 

The foregoing certifications are made and delivered as of [_________] pursuant 

to Section 4.1(d)(ii) of the Standard Terms. 

Capitalized terms used and not otherwise defined herein shall have the meanings 

assigned to them in the Standard Terms. 

[SIGNATURE PAGE FOLLOWS] 
 F-3 

IN WITNESS WHEREOF, this Officer’s Certificate has been duly executed and 

delivered as of the [__] day of [__________], 20[__]. 

[BANK] 

By: ____________________________________ 

Name: 

Title: 
Exh. A-1 

EXHIBIT A 

NEW CONTRACTS AND MATERIAL AGREEMENTS 
Exh. B-1 

EXHIBIT B 

BOARD OF DIRECTORS 

NAME ADDRESS NARRATIVE1

 

 

1

 To the extent (x) any of the individuals was not a member of the board of directors of the Bank as of the 

last certification to the Investor, include a narrative describing such individual’s relationship to the 

applicable Investment Area(s) and Targeted Population(s) or, (y) if the Bank maintains accountability to 

residents of the applicable Investment Area(s) or Target Population(s) through means other than 

representation on its governing board of directors and such means have changed since the date of the last 

certification to the Investor, a narrative describing such change.