EXHIBIT A 

(CDFI Bank/Thrifts 

Senior Preferred Stock) 

SECURITIES PURCHASE AGREEMENT 

STANDARD TERMS 
 -iTABLE OF CONTENTS 

Page 

ARTICLE I 

1.1 Definitions............................................................................................................................2 

1.2 Interpretation........................................................................................................................4 

ARTICLE II 

PURCHASE; CLOSING 

2.1 Purchase ...............................................................................................................................4 

2.2 Closing .................................................................................................................................4 

2.3 Closing Conditions ..............................................................................................................5 

ARTICLE III 

REPRESENTATIONS AND WARRANTIES 

3.1 Representations and Warranties of the Company................................................................7 

ARTICLE IV 

COVENANTS 

4.1 Affirmative Covenants.......................................................................................................16 

4.2 Negative Covenants ...........................................................................................................22 

ARTICLE V 

ADDITIONAL AGREEMENTS 

5.1 Purchase for Investment.....................................................................................................24 

5.2 Legends..............................................................................................................................24 

5.3 Transfer of Preferred Shares ..............................................................................................25 

5.4 Rule 144; Rule 144A; 4(11⁄2) Transactions ........................................................................26 

5.5 Depositary Shares ..............................................................................................................27 

5.6 Expenses and Further Assurances......................................................................................27 
 -iiARTICLE VI 

MISCELLANEOUS 

6.1 Termination........................................................................................................................28 

6.2 Survival..............................................................................................................................29 

6.3 Amendment........................................................................................................................29 

6.4 Waiver of Conditions.........................................................................................................29 

6.5 Governing Law; Submission to Jurisdiction, etc ...............................................................29 

6.6 Notices ...............................................................................................................................30 

6.7 Assignment ........................................................................................................................30 

6.8 Severability ........................................................................................................................30 

6.9 No Third Party Beneficiaries .............................................................................................31

6.10 Specific Performance.........................................................................................................31 
 -iiiLIST OF ANNEXES 

ANNEX A: FORM OF OFFICER’S CERTIFICATE 

ANNEX B: FORM OF CERTIFICATE OF DESIGNATIONS FOR PREFERRED STOCK 

ANNEX C: FORM OF WAIVER 

ANNEX D: FORM OF OPINION 

ANNEX E: REGISTRATION RIGHTS 

ANNEX F: FORM OF OFFICER’S CERTIFICATE (CDFI REQUIREMENTS)
 -ivINDEX OF DEFINED TERMS 

Location of 

Term Definition

Affiliate 1.1 

Agreement Recitals 

Appropriate Federal Banking Agency 1.1 

Bank Holding Company 1.1 

Bankruptcy Exceptions 3.1(e) 

Benefit Plans 2.3(f) 

Board of Directors 3.1(f) 

Business Combination 6.7 

business day 1.2 

Capitalization Date 3.1(b) 

CDCI Recitals 

CDFI 3.1(d)(ii) 

CDFI Application 2.3(m) 

CDFI Application Update 2.3(m) 

Certificate of Designations 2.3(d) 

Certified Entity 1.1 

Charter 2.3(d) 

Closing 2.2(a) 

Closing Date 2.2(a) 

Code 3.1(n) 

Common Stock 3.1(b) 

Company Recitals 

Company Financial Statements 2.3 (l) 

Company Material Adverse Effect 1.1 

Company Reports 3.1(i)(i) 

Company Subsidiary; Company Subsidiaries 3.1(e)(ii) 

Compensation Regulations 2.3(f) 

control; controlled by; under common control with 1.1 

Controlled Group 3.1(n) 

CPP 3.1(x) 

CPP/CDCI Securities 3.1(x) 

Disclosure Schedule 1.1 

Disclosure Update 2.3(k) 

EESA 2.3(f) 

ERISA 3.1(n) 

Exchange Act 5.3 

Federal Reserve 1.1 

Fund 3.1(d)(ii) 

GAAP 1.1 

Governmental Entities 2.3(a) 

Holders 5.4(a) 

Indemnitee 5.4(b) 
 -vInformation 4.1(c)(iii) 

Investor Recitals 

Junior Stock 1.1 

knowledge of the Company; Company’s knowledge 1.1 

Letter Agreement Recitals 

MHA 4.1(i) 

officers 1.1 

Parity Stock 1.1 

Plan 3.1(n) 

Preferred Shares Recitals 

Preferred Stock Recitals 

Previously Disclosed 1.1 

[Private Capital 2.3(n)]

Proprietary Rights 3.1(u) 

Purchase Recitals 

Purchase Price 2.1 

Regulatory Agreement 3.1(s) 

Relevant Period 2.3(f) 

Savings and Loan Holding Company 1.1 

Schedules Recitals 

SEC 3.1(k) 

Section 4.1(e) Employee 4.1(e)(ii) 

Securities Act 3.1(a) 

Senior Executive Officers 1.1 

Share Dilution Amount 1.1 

Signing Date 1.1 

subsidiary 1.1 

Tax; Taxes 1.1 

Transfer 5.3 
SECURITIES PURCHASE AGREEMENT – STANDARD TERMS 

Recitals: 

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

from time to time agree to purchase shares of preferred stock from eligible financial institutions 

which elect to participate in the Community Development Capital Initiative (“CDCI”); 

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

and issue securities to the Investor shall enter into a letter agreement (the “Letter Agreement”) 

with the Investor which incorporates this Securities Purchase Agreement – Standard Terms (the 

eligible financial institution identified in the Letter Agreement, the “Company”); 

WHEREAS, the Company 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 Company 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 Company intends to issue in a private placement the number of 

shares of the series of its Preferred Stock (“Preferred Stock”) set forth on Schedule A to the 

Letter Agreement (the “Preferred Shares”) and the Investor intends to purchase (the “Purchase”) 

from the Company the Preferred Shares; and 

WHEREAS, the Purchase will be governed by this Securities Purchase 

Agreement – Standard Terms and the Letter Agreement, including the schedules thereto (the 

“Schedules”), specifying additional terms of the Purchase. This Securities Purchase Agreement – 

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

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

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

Agreement. 

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

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

follows: 
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ARTICLE I 

1.1 Definitions. Except as otherwise specified herein or as the context may 

otherwise require, the following terms have the respective meanings set forth below for all 

purposes of this Agreement. 

“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. 

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

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

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

“Bank Holding Company” means a company registered as such with the Board of 

Governors of the Federal Reserve System (the “Federal Reserve”) pursuant to 12 U.S.C. §1842 

and the regulations of the Federal Reserve promulgated thereunder. 

“Certified Entity” means the Company or, if the Company itself has not been 

certified by the Fund as a CDFI, each Affiliate of the Company that has been certified by the 

CDFI and is specified on Schedule A of the Letter Agreement. 

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

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

subsidiaries and each Certified Entity taken as a whole; provided, however, that Company 

Material Adverse Effect shall not be deemed to include the effects of (A) changes after the date 

of the Letter Agreement (the “Signing Date”) in general business, economic or market conditions 

(including changes generally in prevailing interest rates, credit availability and liquidity, 

currency exchange rates and price levels or trading volumes in the United States or foreign 

securities or credit markets), or any outbreak or escalation of hostilities, declared or undeclared 

acts of war or terrorism, in each case generally affecting the industries in which the Company 

and 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 Company and its consolidated subsidiaries 

taken as a whole relative to comparable U.S. banking or financial services organizations); or (ii) 

the ability of the Company to consummate the Purchase and other transactions contemplated by 

this Agreement and perform its obligations hereunder or thereunder on a timely basis. 
 -3- 

“Disclosure Schedule” means that certain schedule to this Agreement delivered to 

the Investor on or prior to the Signing Date, 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 3.1. 

“Junior Stock” means Common Stock and any other class or series of stock of the 

Company the terms of which expressly provide that it ranks junior to the Preferred Shares as to 

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

“knowledge of the Company” or “Company’s knowledge” means the actual 

knowledge after reasonable and due inquiry of the “officers” (as such term is defined in Rule 3b2 under the Exchange Act) of the Company. 

“Parity Stock” means any class or series of stock of the Company the terms of 

which do not expressly provide that such class or series will rank senior or junior to the Preferred 

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

Company (in each case without regard to whether dividends accrue cumulatively or noncumulatively). 

“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 Purchase nor limit or affect any rights of or 

remedies available to the Investor. 

“Savings and Loan Holding Company” means a company registered as such with 

the Office of Thrift Supervision pursuant to 12 U.S.C. §1467(a) and the regulations of the Office 

of Thrift Supervision promulgated thereunder. 

“Senior Executive Officers” means the Company’s “senior executive officers” as 

defined in Section 111 of EESA and the Compensation Regulations. 

“Share Dilution Amount” means the increase in the number of diluted shares 

outstanding (determined in accordance with GAAP, and as measured from the date of the 

Company’s most recent consolidated financial statements prior to the Closing Date) resulting 

from the grant, vesting or exercise of equity-based compensation to employees and equitably 

adjusted for any stock split, stock dividend, reverse stock split, reclassification or similar 

transaction [Insert for pro-forma viable companies: or the issuance of Private Capital].

“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 
 -4- 

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. 

“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. 

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

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

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

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

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

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

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

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

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

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

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

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

ARTICLE II 

PURCHASE; CLOSING 

2.1 Purchase. On the terms and subject to the conditions set forth in this 

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

the Company, at the Closing (as hereinafter defined), the Preferred Shares for the price set forth 

on Schedule A (the “Purchase Price”). 

2.2 Closing. (a) On the terms and subject to the conditions set forth in this 

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

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

thereafter, or at such other place, time and date as shall be agreed between the Company and the 

Investor. The time and date on which the Closing occurs is referred to in this Agreement as the 

“Closing Date”. 
 -5- 

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

Section 2.3, at the Closing the Company will deliver the Preferred Shares as evidenced by one or 

more certificates dated the Closing Date and bearing appropriate legends as hereinafter provided 

for, in exchange for payment in full of the Purchase Price by wire transfer of immediately 

available United States funds to a bank account designated by the Company on Schedule A. 

2.3 Closing Conditions. The obligation of the Investor to consummate the 

Purchase is subject to the fulfillment (or waiver by the Investor) at or prior to the Closing of each 

of the following conditions: 

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

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

for the consummation of the Purchase shall have been obtained or made in form and substance 

reasonably satisfactory to each party and shall be in full force and effect and all waiting periods 

required by United States and other applicable law, if any, shall have expired and (ii) no 

provision of any applicable United States or other law and no judgment, injunction, order or 

decree of any Governmental Entity shall prohibit the purchase and sale of the Preferred Shares as 

contemplated by this Agreement; 

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

Section 3.1 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 another date, which 

representations and warranties shall be true and correct in all respects as of such other date) and 

(ii) the Company shall have performed in all respects all obligations required to be performed by 

it under this Agreement at or prior to the Closing; 

(c) the Company shall have delivered to the Investor a certificate signed on 

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

set forth in Section 2.3(b) have been satisfied, in substantially the form attached hereto as 

Annex A; 

(d) the Company 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”) in substantially the form attached hereto as Annex B (the “Certificate of 

Designations”) and the Company shall have delivered to the Investor a copy of the filed 

Certificate of Designations 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 Company by a Senior Executive Officer 

certifying to the effect that the filing of the Certificate of Designation has been accepted, in 

substantially the form attached hereto as Annex A; 

(e) the Company shall have delivered to the Investor true, complete and 

correct certified copies of the Charter and bylaws of the Company; 

(f) (i) the Company shall have effected such changes to its compensation, 

bonus, incentive and other benefit plans, arrangements and agreements (including golden 
 -6- 

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

its Senior Executive Officers and any other employee of the Company or its Affiliates subject to 

Section 111 of the Emergency Economic Stabilization Act of 2008, as amended by the American 

Recovery and Reinvestment Act of 2009, or otherwise from time to time (“EESA”), as 

implemented by any guidance, rule or regulation thereunder, as the same shall be in effect from 

time to time (collectively, the “Compensation Regulations”) (and to the extent necessary for such 

changes to be legally enforceable, each of its Senior Executive 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 Company 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 (ii) the Investor shall have received a certificate 

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

condition set forth in Section 2.3(f)(i) has been satisfied, in substantially the form attached hereto 

as Annex A; 

(g) each of the Company’s Senior Executive Officers and any other employee 

of the Company or its Affiliates subject to Section 111 of EESA shall have delivered to the 

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

Company 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 Company 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; 

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

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

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

(i) the Company shall have delivered certificates in proper form or, with the 

prior consent of the Investor, evidence of shares in book-entry form, evidencing the Preferred 

Shares to Investor or its designee(s); 

(j) the Company and the Company Subsidiaries shall have taken all necessary 

action to ensure that the Company and the Company 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; 

(k) the Company shall have delivered to the Investor a copy of the Disclosure 

Schedule on or prior to 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 Company 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 
 -7- 

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; 

(l) the Company shall have delivered to the Investor on or prior to the 

Signing Date each of the consolidated financial statements of the Company and its consolidated 

subsidiaries for each of the last three completed fiscal years of the Company (which shall be 

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

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

Financial Statements”)[;][and]

(m) the Company shall have delivered to the Investor prior to the Signing Date 

either (i) a true, complete and correct certified copy of each CDFI Certification Application that 

each Certified Entity submitted to 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 any Certified Entity submitted to the Fund in connection with its certification as a CDFI is 

not available, a newly completed CDFI Certification Application with respect to such Certified 

Entity true, complete and correct as of the Signing Date (the CDFI Certification Application 

delivered to the Investor pursuant to this Section 2.3(m), 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 Company 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]

(n) [Insert for pro-forma viable companies: the Company shall (i) have 

received equity capital (“Private Capital”) from one or more non-governmental investors (A) in 

an amount equal to or greater than the Purchase Price, (B) that is subordinate in right of payment 

of dividends, liquidation preference and redemption rights to the Preferred Shares and (C) that is 

acceptable in form and substance to the Investor, in its sole discretion and (ii) have satisfied the 

following requirements reasonably in advance of the Closing Date: (A) delivery of copies of the 

definitive documentation for the Private Capital to Investor, (B) delivery of the organizational 

charts of such non-governmental investors to Investor, each certified by the applicable nongovernmental investor and demonstrating that such non-governmental investor is not an Affiliate 

of the Company, (C) delivery of any other documents or information as Investor may reasonably 

request, in its sole discretion and (D) any other terms and conditions imposed by the Appropriate 

Federal Banking Agency, in its sole discretion, as a condition to its recommendation.]

ARTICLE III 

REPRESENTATIONS AND WARRANTIES 

3.1 Representations and Warranties of the Company. Except as Previously 

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

as of the Closing Date (or such other date specified herein): 
 -8- 

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

been duly incorporated 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 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 Company Material Adverse Effect, has been duly qualified as a foreign corporation for 

the transaction of business and is in good standing under the laws of each other jurisdiction in 

which it owns or leases properties or conducts any business so as to require such qualification; 

each Certified Entity (if not the Company) and each subsidiary of the Company 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 Company and each Certified Entity (if not the Company), copies of which have 

been provided to the Investor prior to the Signing Date, are true, complete and correct copies of 

such documents as in full force and effect as of the Signing Date and as of the Closing Date. 

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

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

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

preceding the Signing Date (the “Capitalization Date”) is set forth on Schedule B. The 

outstanding shares of capital stock of the Company have been duly authorized and are validly 

issued and outstanding, fully paid and nonassessable, and subject to no preemptive rights (and 

were not issued in violation of any preemptive rights). As of the Signing Date, the Company 

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

acquire its common stock (“Common Stock”) or other capital stock that is not reserved for 

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

authorize, issue or sell any Common Stock or other capital stock. Since the Capitalization Date, 

the Company has not issued any shares of Common Stock or other capital stock, other than 

(i) shares issued upon the exercise of stock 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) shares disclosed on Schedule B

[Insert for pro-forma viable companies: and (iii) shares or other capital stock representing 

Private Capital disclosed on Schedule B]. Each holder of 5% or more of any class of capital 

stock of the Company and such holder’s primary address are set forth on Schedule B. 

(c) Preferred Shares. The Preferred Shares have been duly and validly 

authorized, and, when issued and delivered pursuant to this Agreement, such Preferred Shares 

will be duly and validly issued and fully paid and non-assessable, will not be issued in violation 

of any preemptive rights, and will rank pari passu with or senior to all other series or classes of 

Preferred Stock, whether or not designated, issued or outstanding, with respect to the payment of 

dividends and the distribution of assets in the event of any dissolution, liquidation or winding up 

of the Company. 
 -9- 

(d) Community Development Financial Institution Status; Domestic 

Ownership. 

(i) The Company 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) Each Certified Entity (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) 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). 

(iii) The Company is not a Bank Holding Company, Savings and Loan 

Holding Company, bank or savings association 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 Bank Holding Companies and 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 and 

Loan Holding Companies and savings associations) by a foreign bank or company. 

(e) Authorization, Enforceability. 

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

deliver this Agreement and to carry out its obligations hereunder (which includes the 

issuance of the Preferred Shares). The execution, delivery and performance by the 

Company of this Agreement and the consummation of the transactions contemplated 

hereby have been duly authorized by all necessary corporate action on the part of the 

Company and its stockholders, and no further approval or authorization is required 

on the part of the Company. This Agreement is a valid and binding obligation of the 

Company enforceable against the Company 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”). 

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

Agreement and the consummation of the transactions contemplated hereby and 

compliance by the Company 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 Company 

or any subsidiary of the Company or Certified Entity (if not the Company) (each 

subsidiary or Certified Entity, a “Company Subsidiary” and, collectively, the 

“Company Subsidiaries”) under any of the terms, conditions or provisions of (x) its 
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organizational documents or (y) any note, bond, mortgage, indenture, deed of trust, 

license, lease, agreement or other instrument or obligation to which the Company or 

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

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

properties or assets of the Company or any Company Subsidiary may be subject, or 

(B) subject to compliance with the statutes and regulations referred to in the next 

paragraph, violate any statute, rule or regulation or any judgment, ruling, order, writ, 

injunction or decree applicable to the Company or any Company Subsidiary or any 

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

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

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

(iii) Other than the filing of the Certificate of Designations 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 

Company in connection with the consummation by the Company of the Purchase 

except for any such notices, filings, exemptions, reviews, authorizations, consents 

and approvals the failure of which to make or obtain would not, individually or in 

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

(f) Anti-takeover Provisions and Rights Plan. The Board of Directors of the 

Company (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 

will be exempt from any anti-takeover or similar provisions of the Company’s Charter and 

bylaws, and any other provisions of any applicable “moratorium”, “control share”, “fair price”, 

“interested stockholder” or other anti-takeover laws and regulations of any jurisdiction. 

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

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

Statements, no fact, circumstance, event, change, occurrence, condition or development has 

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

a Company Material Adverse Effect, except as disclosed on Schedule C. 

(h) Company Financial Statements. The Company Financial Statements 

present fairly in all material respects the consolidated financial position of the Company and its 

consolidated subsidiaries as of the dates indicated therein and the consolidated results of their 

operations for the periods specified therein; and except as stated therein, such financial 

statements (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 Company and the Company Subsidiaries. 
 -11- 

(i) Reports. 

(i) Since December 31, 2008, the Company and each Company 

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

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

any Governmental Entity (the foregoing, collectively, the “Company Reports”) and 

has paid all fees and assessments due and payable in connection therewith, except, in 

each case, as would not, individually or in the aggregate, reasonably be expected to 

have a Company Material Adverse Effect. As of their respective dates of filing, the 

Company Reports complied in all material respects with all statutes and applicable 

rules and regulations of the applicable Governmental Entities. 

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

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

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

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

Company or the Company Subsidiaries or their accountants (including all means of 

access thereto and therefrom), except for any non-exclusive ownership and nondirect control that would not reasonably be expected to have a material adverse 

effect on the system of internal accounting controls described below in this 

Section 3.1(i)(ii). The Company (A) has implemented and maintains adequate 

disclosure controls and procedures to ensure that material information relating to the 

Company, including the consolidated Company Subsidiaries, is made known to the 

chief executive officer and the chief financial officer of the Company by others 

within those entities, and (B) has disclosed, based on its most recent evaluation prior 

to the Signing Date, to the Company’s outside auditors and the audit committee of 

the Board of Directors (x) any significant deficiencies and material weaknesses in 

the design or operation of internal controls that are reasonably likely to adversely 

affect the Company’s ability to record, process, summarize and report financial 

information and (y) any fraud, whether or not material, that involves management or 

other employees who have a significant role in the Company’s internal controls over 

financial reporting. 

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

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

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

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

with GAAP, except for (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 Company 

Material Adverse Effect. 

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

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

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

the Preferred Shares under the Securities Act, and the rules and regulations of the Securities and 

Exchange Commission (the “SEC”) promulgated thereunder), which might subject the offering, 
 -12- 

issuance or sale of any of the Preferred Shares to Investor pursuant to this Agreement to the 

registration requirements of the Securities Act. 

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

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

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

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

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

Company Subsidiary subject to any order, judgment or decree or (B) unresolved violation, 

criticism or exception by any Governmental Entity with respect to any report or relating to any 

examinations or inspections of the Company or any Company Subsidiaries. 

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

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

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

approvals of, and have made all filings, applications and registrations with, Governmental 

Entities that are required in order to permit them to own or lease their properties and assets and 

to carry on their business as presently conducted and that are material to the business of the 

Company or such Company Subsidiary. Except as set forth on Schedule E, the Company and the 

Company Subsidiaries have complied in all respects and are not in default or violation of, and 

none of them is, to the knowledge of the Company, under investigation with respect to or, to the 

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

violation of, any applicable domestic (federal, state or local) or foreign law, statute, ordinance, 

license, rule, regulation, policy or guideline, order, demand, writ, injunction, decree or judgment 

of any Governmental Entity, other than such noncompliance, defaults or violations that would 

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

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

forth on Schedule E, no Governmental Entity has placed any restriction on the business or 

properties of the Company or any Company Subsidiary that would, individually or in the 

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

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

to have, either individually or in the aggregate, a Company Material Adverse Effect: (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 Company or any member of its “Controlled Group” 

(defined as any organization which is a member of a controlled group of corporations within the 

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

sponsored, maintained or contributed to by the Company or any member of its Controlled Group 

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

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

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

the Code; (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 Company or any member of its 

Controlled Group previously maintained or contributed to in the six years prior to the Signing 

Date), (1) no “reportable event” (within the meaning of Section 4043(c) of ERISA), other than a 
 -13- 

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

waived, has occurred in the three years prior to the Signing Date or is reasonably expected to 

occur, (2) no “accumulated funding deficiency” (within the meaning of Section 302 of ERISA or 

Section 412 of the Code), whether or not waived, has occurred in the three years prior to the 

Signing Date or is reasonably expected to occur, (3) the fair market value of the assets under 

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

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

Controlled Group has incurred in the six years prior to the Signing Date, or reasonably expects to 

incur, any liability under Title IV of ERISA (other than contributions to the Plan or premiums to 

the 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 nothing has occurred, whether by 

action or by failure to act, which could reasonably be expected to cause the loss, revocation or 

denial of such qualified status or favorable determination letter. 

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

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

Subsidiaries have filed all federal, state, local and foreign 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 Company or any of the Company Subsidiaries, nor does the 

Company have any knowledge of any Tax deficiencies. 

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

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

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

properties and assets owned by them, in each case free from liens (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 Company Material Adverse Effect, the 

Company and the Company Subsidiaries hold all leased real or personal property under valid and 

enforceable leases with no exceptions that would interfere with the use made or to be made 

thereof by them. 

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

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

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

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

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

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

environmental statute, regulation or ordinance, including the Comprehensive 
 -14- 

Environmental Response, Compensation and Liability Act of 1980, pending or, to 

the Company’s knowledge, threatened against the Company or any Company 

Subsidiary; 

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

such proceeding, claim or action; and 

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

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

third party imposing any such environmental liability. 

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

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

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

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

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

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

regulatory policies and (iii) with counterparties believed to be financially responsible at the time; 

and each of such instruments constitutes the valid and legally binding obligation of the Company 

or one of the Company Subsidiaries, enforceable in accordance with its terms, except as may be 

limited by the Bankruptcy Exceptions. Neither the Company or the Company Subsidiaries, nor, 

to the knowledge of the Company, any other party thereto, is in breach of any of its obligations 

under any such agreement or arrangement other than such breaches that would not, individually 

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

(s) Agreements with Regulatory Agencies. Except as set forth on Schedule F, 

neither the Company nor any Company Subsidiary is subject to any material cease-and-desist or 

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

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

commitment letter 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 Company or any Company Subsidiary been advised since 

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

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

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

is party or subject, and neither the Company nor any Company Subsidiary has received any 

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

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

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

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

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

and the Company Subsidiaries are in material compliance with their insurance policies and are 
 -15- 

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

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

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

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

Adverse Effect. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Company Subsidiaries sent any written communications since January 1, 2007, alleging that any 

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

by the Company and the Company Subsidiaries. 

(v) 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 Company or any 

Company Subsidiary. 

(w) Disclosure Schedule. The Company 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. 

(x) CPP/CDCI Securities. To the extent that the Company participated in the 

Troubled Asset Relief Program Capital Purchase Program (“CPP”) or the CDCI prior to the 

Signing Date and the Company has any Preferred Stock or other securities issued in connection 

with its participation in the CPP or the CDCI (the “CPP/CDCI Securities”) outstanding, the 

Company has (i) not breached any representation, warranty or covenant set forth in any of the 

documents governing the CPP/CDCI Securities or its sale to Investor and (ii) paid to Investor 

[Insert for cumulative Preferred Shares: all accrued and unpaid dividends and/or interest then 

due on the CPP/CDCI Securities.] [Insert for non-cumulative Preferred Shares: all unpaid 

dividends and/or interest due on the CPP/CDCI Securities for the fiscal quarter prior to the 

Closing Date plus the accrued and unpaid dividends and/or interest due on the CPP/CDCI 

Securities as of the Closing Date for the fiscal quarter in which the Closing shall occur.]
 -16- 

ARTICLE IV 

COVENANTS 

4.1 Affirmative Covenants. The Company 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 Purchase 

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

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

party to that end. 

(b) Certain Notifications Until Closing. From the Signing Date until the 

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

which it is aware and which would reasonably be expected to cause any representation or 

warranty of the Company contained in this Agreement to be untrue or inaccurate in any material 

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

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

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

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

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

notice pursuant to this Section 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 Preferred Shares having an aggregate liquidation value of less than 10% 

of the Purchase Price, the Company will permit the Investor and its agents, 

consultants, contractors and advisors (x) acting through the Appropriate Federal 

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

transfer its investment in the Company, to examine the corporate 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 Company and the Company Subsidiaries with 

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

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

review any information material to the Investor’s investment in the Company 

provided by the Company to its Appropriate Federal Banking Agency. Any 

investigation pursuant to this Section 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 Company, and nothing herein shall require the Company or 

any Company Subsidiary to disclose any information to the Investor to the extent 

(A) prohibited by applicable law or regulation, or (B) that such disclosure would 
 -17- 

reasonably be expected to cause a violation of any agreement to which the Company 

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

the Company or any Company Subsidiary (provided that the Company shall use 

commercially reasonable efforts to make appropriate substitute disclosure 

arrangements under circumstances where the restrictions in this clause (i) apply). 

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

Shares have been redeemed in whole, the Company 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 

Company, and in any event within 90 days thereafter, a consolidated balance 

sheet of the Company as of the end of such fiscal year, and consolidated 

statements of income, retained earnings and cash flows of the Company for such 

year, in each case prepared in accordance with GAAP and setting forth in each 

case in comparative form the figures for the previous fiscal year of the Company 

and which shall be audited to the extent audited financial statements are 

available;1

 

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

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

reports provided to other stockholders of the Company or Company management 

by the Company; 

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

the Company’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 Company has utilized the funds the Company received hereunder in 

connection with the sale of the Preferred Shares and the effects of such funds on 

the operations and status of the Company; 

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

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

(F) at the same time as such items are sent to any stockholders of the 

Company, copies of any information or documents sent by the Company to its 

stockholders. 

(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 

 

1

 To the extent that the Company informed the Investor on the Signing Date that it does not prepare 

financial statements in accordance with GAAP in the ordinary course, the Investor may consider other 

annual financial reporting packages acceptable to it in its sole discretion. 
 -18- 

non-public records, books, contracts, instruments, computer data and other data and 

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

made available to it by the Company or its representatives pursuant to this 

Agreement (except to the extent that such information can be shown to have been (i) 

previously known by such party on a non-confidential basis, (ii) in the public 

domain through no fault of such party or (iii) later lawfully acquired from other 

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

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

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

regulations or by any subpoena or similar legal process. 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 

Company pursuant to Section 4.1(d)(ii) may be assigned by the Investor to a 

transferee or assignee of the Preferred Shares with a liquidation preference of no less 

than an amount equal to 2% of the initial aggregate liquidation preference of the 

Preferred Shares. 

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

owns any Preferred Shares, the Company shall permit, and shall cause each of the 

Company’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, 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 Company 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 Preferred 

Shares have been redeemed in whole, each Certified Entity 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 
 -19- 

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 Preferred 

Shares have been redeemed in whole, the Company 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 Company delivers the documentation required under Section 

4.1(c)(ii)(A) to the Investor, a certificate signed on behalf of the Company by a 

Senior Executive Officer, in substantially the form attached hereto as Annex F, 

certifying (A) that the Company and each Certified Entity 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 the 

Company 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 Company 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 each Certified Entity 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 

Certified Entity with respect to Development Services; (D) a list of the names and 

addresses of the individuals which comprise the board of directors of each Certified 

Entity as of such date and, to the extent any of such individuals was not a member of 

the board of directors of such Certified Entity as of the last certification to the 

Investor, a narrative describing such individual’s relationship to the applicable 
 -20- 

Investment Area(s) and Targeted Population(s) or, if such Certified Entity 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 each Certified Entity 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 Company remains 

in compliance with the covenants set forth in Section 4.1(f) and Section 4.1(m) and 

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

other written communication between each Certified Entity and the Fund, including 

any form that such Certified Entity 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 Company shall immediately notify the Investor upon the 

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

(e) Executive Compensation.

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

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

Affiliates comply in 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 Company 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 Company 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 Company 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 equity-based awards, deferred cash awards or any 

nonqualified deferred compensation payable by the Company 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 
 -21- 

with respect to the application to such Section 4.1(e) Employee of the Compensation 

Regulations, the Company 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’s 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 Company 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 Company shall 

promptly provide such individual with written notice that the amount of such 

payment must be repaid to the Company in full within fifteen business days 

following receipt of such notice or such earlier time as may be required by the 

Compensation Regulations and shall promptly inform the Investor (x) upon 

discovering that a payment in contravention of this Section 4.1(e) has been made and 

(y) following the repayment to the Company of such amount, and shall take such 

other actions as may be necessary to comply with the Compensation Regulations. 

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

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 Company. 

(f) Bank and Thrift Holding Company Status. If the Company is a Bank 

Holding Company or a Savings and Loan Holding Company on the Signing Date, then the 

Company shall maintain its status as a Bank Holding Company or Savings and Loan Holding 

Company, as the case may be, for as long as the Investor owns any Preferred Shares. The 

Company shall redeem all Preferred Shares held by the Investor prior to terminating its status as 

a Bank Holding Company or Savings and Loan Holding Company, as applicable. 

(g) Predominantly Financial. For as long as the Investor owns any Preferred 

Shares, the Company, to the extent it is not itself an insured depository institution, agrees to 

remain predominantly engaged in financial activities. A company is predominantly engaged in 

financial activities if the annual gross revenues derived by the company and all subsidiaries of 

the company (excluding revenues derived from subsidiary depository institutions), on a 

consolidated basis, from engaging in activities that are financial in nature or are incidental to a 

financial activity under subsection (k) of Section 4 of the Bank Holding Company Act of 1956 

(12 U.S.C. 1843(k)) represent at least 85 percent of the consolidated annual gross revenues of the 

company. 

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

the Preferred Shares have been redeemed in whole, the Company and the Company Subsidiaries 

shall maintain such capital as may be necessary to meet the minimum capital requirements of the 

Appropriate Federal Banking Agency, as in effect from time to time. 
 -22- 

(i) HAMP Modifications. The Company shall take all necessary action to 

ensure that (A) from and after the date the Company or any Company 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 Company or 

such Company 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 Company or any Company Subsidiary owns mortgage loans that are serviced by a 

non-affiliated mortgage servicer, the Company or such Company Subsidiary shall consent to any 

MHA modification request made by such mortgage servicer. 

(j) Reporting Requirements. Prior to the date on which all of the Preferred 

Shares have been redeemed in whole, the Company 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 Company 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. 

(k) Compliance with Employ American Workers Act. The Company shall 

agree to comply, and take all necessary action to ensure that any Company 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. 

(l) Transfer of Proceeds to Certified Entities. If the Company is not a 

Certified Entity, the Company shall immediately transfer to its related Certified Entities, as 

capital contributions, any proceeds it receives in connection with the sale of Preferred Shares. 

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

the Preferred Shares have been redeemed in whole, the Company 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 Bank Holding Companies and 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 and Loan Holding 

Companies and savings associations) by a foreign bank or company. 

4.2 Negative Covenants. The Company hereby covenants and agrees with the 

Investor that: 
 -23- 

(a) Certain Transactions. 

(i) The Company 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 Company), 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 Company. 

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

the Investor shall cease to own any Preferred Shares, the Company 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 Company, (ii) dissolve 

or sell all or substantially all of its assets or property other than in connection with 

an internal reorganization or consolidation involving wholly-owned subsidiaries of 

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

convertible or exercisable for any such shares, other than issuances or sales in 

connection with an internal reorganization or consolidation involving wholly-owned 

subsidiaries of the Company. 

(b) Restriction on Dividends and Repurchases. 

(i) The Company covenants and agrees that it shall not violate any of the 

restrictions on dividends, distributions, redemptions, repurchases, acquisitions and 

related actions set forth in the Certificate of Designations, which are incorporated by 

reference herein as if set forth in full. 

(ii) During the period beginning on the eighth anniversary of the Closing 

and ending on the date on which the Investor no longer owns any of the Preferred 

Shares, neither the Company nor any Company Subsidiary shall, without the consent 

of the Investor, (i) declare or pay any dividend or make any distribution on capital 

stock or other equity securities of any kind of the Company or any Company 

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

capital stock or other equity securities of any kind of the Company or any Company 

Subsidiary, or any trust preferred securities issued by the Company or any Affiliate 

of the Company, other than (A) redemptions, purchases or other acquisitions of the 

Preferred Shares, (B) regular dividends on shares of preferred stock in accordance 

with the terms thereof and which are permitted under the terms of the Preferred 

Shares, or (C) dividends or distributions by any wholly-owned Company Subsidiary. 

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

any debt or equity securities of the Company, including the Preferred Shares, the Company and 

the Company Subsidiaries shall not enter into transactions with Affiliates or related persons 

(within the meaning of Item 404 under the SEC’s Regulation S-K) unless (A) such transactions 

are on terms no less favorable to the Company and the Company Subsidiaries than could be 
 -24- 

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 Company, 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 Preferred Shares Not Held by Investor. Prior 

to the date on which the Investor no longer owns any of the Preferred Shares the Company shall 

not repurchase, redeem, call or otherwise reacquire any Preferred Shares 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 Preferred 

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

ARTICLE V 

ADDITIONAL AGREEMENTS 

5.1 Purchase for Investment. The Investor acknowledges that the Preferred 

Shares have not been registered under the Securities Act or under any state securities laws. The 

Investor (a) is acquiring the Preferred Shares pursuant to an exemption from registration under 

the Securities Act 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 Preferred Shares, except in compliance with the registration 

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

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

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

of making an informed investment decision. 

5.2 Legends. (a) The Investor agrees that all certificates or other instruments 

representing the Preferred Shares will bear a legend substantially to the following 

effect: 

“THE SECURITIES REPRESENTED BY THIS INSTRUMENT ARE NOT 

SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF A BANK 

AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE 

CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY. 

THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE 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 THE SECURITIES REPRESENTED BY 
 -25- 

THIS INSTRUMENT 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 THE 

SECURITIES REPRESENTED BY THIS INSTRUMENT BY ITS 

ACCEPTANCE HEREOF (1) REPRESENTS THAT IT IS A “QUALIFIED 

INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE 

SECURITIES ACT), (2) AGREES THAT IT WILL NOT OFFER, SELL OR 

OTHERWISE TRANSFER THE SECURITIES REPRESENTED BY THIS 

INSTRUMENT EXCEPT (A) PURSUANT TO A REGISTRATION 

STATEMENT WHICH IS THEN EFFECTIVE UNDER THE SECURITIES 

ACT, (B) FOR SO LONG AS THE SECURITIES REPRESENTED BY THIS 

INSTRUMENT ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, 

TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED 

INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE 

SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR 

THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM 

NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE 

ON RULE 144A, (C) TO THE ISSUER 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 THE SECURITIES REPRESENTED BY THIS 

INSTRUMENT ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO 

THE EFFECT OF THIS LEGEND. 

THIS INSTRUMENT IS ISSUED SUBJECT TO THE RESTRICTIONS ON 

TRANSFER AND OTHER PROVISIONS OF A SECURITIES PURCHASE 

AGREEMENT BETWEEN THE ISSUER OF THESE SECURITIES AND THE 

INVESTOR REFERRED TO THEREIN, A COPY OF WHICH IS ON FILE 

WITH THE ISSUER. THE SECURITIES REPRESENTED BY THIS 

INSTRUMENT 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 Preferred Shares (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), the 

Company shall issue new certificates or other instruments representing such Preferred Shares, 

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

surrenders to the Company the previously issued certificates or other instruments. 

5.3 Transfer of Preferred Shares. Subject to compliance with applicable 

securities laws, the Investor shall be permitted to transfer, sell, assign or otherwise dispose of 

(“Transfer”) all or a portion of the Preferred Shares at any time, and the Company shall take all 

steps as may be reasonably requested by the Investor to facilitate the Transfer of the Preferred 

Shares, including without limitation, as set forth in Section 5.4, provided that the Investor shall 
 -26- 

not Transfer any Preferred Shares if such transfer would require the Company to be subject to the 

periodic reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934 

(the “Exchange Act”) and the Company was not already subject to such requirements. In 

furtherance of the foregoing, the Company shall provide reasonable cooperation to facilitate any 

Transfers of the Preferred Shares, including, as is reasonable under the circumstances, by 

furnishing such information concerning the Company and its business as a proposed transferee 

may reasonably request and making management of the Company reasonably available to 

respond to questions of a proposed transferee in accordance with customary practice, subject in 

all cases to the proposed transferee agreeing to a customary confidentiality agreement. 

5.4 Rule 144; Rule 144A; 4(11⁄2) Transactions. (a) At all times after the 

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

subsequent holders of the Preferred Shares (“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 Preferred 

Shares, make “current public information” available, as provided in Section (c)(1) of Rule 144 (if 

the Company is a “Reporting Issuer” within the meaning of Rule 144) or in Section (c)(2) of 

Rule 144 (if the Company 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 Preferred 

Shares, 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 Preferred Shares 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 Preferred Shares, 

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 Preferred Shares 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 socalled “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 Company shall not be required to take any action 

described in this Section 5.4(a) that would cause the Company to become subject to the reporting 

requirements of Section 13 or 15(d) of the Exchange Act if the Company was not subject to such 

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

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

and, if not, the specifics thereof. 

(b) The Company 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 

Company pursuant to this Section 5.4 or any omission to state therein a material fact required to 
 -27- 

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 5.4(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 Company, in lieu of indemnifying such Indemnitee, shall contribute to the amount paid 

or payable by such Indemnitee as a result of such losses, claims, damages, actions, liabilities, 

costs or expenses in such proportion as is appropriate to reflect the relative fault of the 

Indemnitee, on the one hand, and the Company, on the other hand, in connection with the 

statements or omissions which resulted in such losses, claims, damages, actions, liabilities, costs 

or expenses as well as any other relevant equitable considerations. The relative fault of the 

Company, on the one hand, and of the Indemnitee, on the other hand, shall be determined by 

reference to, among other factors, whether the untrue statement of a material fact or omission to 

state a material fact relates to information supplied by the Company or by the Indemnitee and the 

parties’ relative intent, knowledge, access to information and opportunity to correct or prevent 

such statement or omission; the Company and Investor agree that it would not be just and 

equitable if contribution pursuant to this Section 5.4(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 5.4(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 

Company if the Company was not guilty of such fraudulent misrepresentation. 

5.5 Depositary Shares. Upon request by the Investor at any time following the 

Closing Date, the Company shall promptly enter into a depositary arrangement, pursuant to 

customary agreements reasonably satisfactory to the Investor and with a depositary reasonably 

acceptable to the Investor, pursuant to which the Preferred Shares may be deposited and 

depositary shares, each representing a fraction of a Preferred Share, as specified by the Investor, 

may be issued. From and after the execution of any such depositary arrangement, and the deposit 

of any Preferred Shares, as applicable, pursuant thereto, the depositary shares issued pursuant 

thereto shall be deemed “Preferred Shares” and, as applicable, “Registrable Securities” for 

purposes of this Agreement. 

5.6 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 Company shall, at the Company’s sole cost and expense, (i) furnish to 

the Investor all instruments, documents and other agreements required to be furnished by the 

Company pursuant to the terms of this Agreement, including, without limitation, any documents 

required to be delivered pursuant to Section 5.4 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 Preferred Shares purchased by the Investor, as 

Investor may reasonably require; and (iii) do and execute all and such further lawful and 
 -28- 

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. 

ARTICLE VI 

MISCELLANEOUS 

6.1 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 Company if the Closing shall not have 

occurred by the 30th calendar day following the Signing Date; provided, however, 

that in the event the Closing has not occurred by such 30th calendar day, the parties 

will consult in good faith to determine whether to extend the term of this Agreement, 

it being understood that the parties shall be required to consult only until the fifth 

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 6.1(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 Company in the event that any 

Governmental Entity shall have issued an order, decree or ruling or taken any other 

action restraining, enjoining or otherwise prohibiting the transactions contemplated 

by this Agreement, and such order, decree, ruling or other action shall have become 

final and nonappealable; or 

(iii) by the mutual written consent of the Investor and the Company; or 

(b) the date on which all of the Preferred Shares have been redeemed in 

whole; or 

(c) the date on which the Investor has transferred all of the Preferred Shares 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 6.1, 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. 
 -29- 

6.2 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 Article V shall, to the extent such covenants do not explicitly terminate at such time as 

the Investor no longer owns any Preferred Shares, survive the termination of this Agreement 

pursuant to Section 6.1(c) hereof without limitation until the date on which all of the Preferred 

Shares have been redeemed in whole. 

6.3 Amendment. No amendment of any provision of this Agreement will be 

effective unless made in writing and signed by an officer or a duly authorized representative of 

each party; provided that for so long as the Preferred Shares 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 in the criteria for certification as a CDFI by the Fund. 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. 

6.4 Waiver of Conditions. The conditions to each party’s obligation to 

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

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

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

reference to the provision or provisions subject to such waiver. 

6.5 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 Purchase contemplated hereby and (b) that 

notice may be served upon (i) the Company at the address and in the manner set forth for notices 

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

notices to the Company in Section 6.6, 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 PURCHASE 

CONTEMPLATED HEREBY. 
 -30- 

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

hereunder by any party to the other will be in writing and will be deemed to have been duly 

given (a) on the date of delivery if delivered personally, or by facsimile, upon confirmation of 

receipt, or (b) on the second business day following the date of dispatch if delivered by a 

recognized next day courier service. All notices to the Company shall be delivered as set forth in 

Schedule A, or pursuant to such other instruction as may be designated in writing by the 

Company to the Investor. All notices to the Investor shall be delivered as set forth below, or 

pursuant to such other instructions as may be designated in writing by the Investor to the 

Company. 

If to the Investor: 

United States Department of the Treasury 

1500 Pennsylvania Avenue, NW 

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 

6.7 Assignment. Neither this Agreement nor any right, remedy, obligation nor 

liability arising hereunder or by reason hereof shall be assignable by any party hereto without the 

prior written consent of the other party, and any attempt to assign any right, remedy, obligation 

or liability hereunder without such consent shall be void, except (a) an assignment, in the case of 

a merger, consolidation, statutory share exchange or similar transaction that requires the approval 

of the Company’s stockholders (a “Business Combination”) where such party is not the surviving 

entity, or a sale of substantially all of its assets, to the entity which is the survivor of such 

Business Combination or the purchaser in such sale, (b) an assignment of certain rights as 

provided in Sections 4.1(c) or 4.1(j) 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 Company’s obligations and liabilities hereunder shall continue to be 

outstanding and (iii) all references to the Investor herein shall be deemed to be references to such 

Affiliate. 

6.8 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 
 -31- 

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. 

6.9 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 Company and the Investor (and any Indemnitee) any benefit, right or 

remedies. 

6.10 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 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. 

* * * 
A-1 

ANNEX A 

FORM OF OFFICER’S CERTIFICATE 

OFFICER’S CERTIFICATE 

OF 

[COMPANY] 

In connection with that certain letter agreement, dated [____________], 2010 

(the “Agreement”) by and between [COMPANY] (the “Company”) and the United States 

Department of the Treasury which incorporates that certain Securities Purchase 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 Company. 

2. The representations and warranties of the Company set forth in Section 3.1 

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 Company has performed in all material respects all obligations required to be performed by it 

under the Agreement. 

3. The Certificate of Designations, a true, complete and correct copy of 

which is attached as Exhibit A hereto, has been filed with, and accepted by, the Secretary of 

State of the State of [___________]. 

4. The Company has effected such changes to its Benefit Plans with respect 

to its Senior Executive Officers and any other employee of the Company 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. 

The foregoing certifications are made and delivered as of [_________] pursuant 

to Section 2.3 of the Standard Terms. 
A-2 

Capitalized terms used and not otherwise defined herein shall have the meanings 

assigned to them in the Standard Terms. 

[SIGNATURE PAGE FOLLOWS] 
A-3 

IN WITNESS WHEREOF, this Officer’s Certificate has been duly executed and 

delivered as of the [__] day of [__________], 20[__]. 

[COMPANY] 

By: ____________________________________ 

Name: 

Title: 
 Exh. A-1 

EXHIBIT A
 B-1 

ANNEX B 

FORM OF CERTIFICATE OF DESIGNATIONS FOR PREFERRED STOCK

[SEE ATTACHED] 
 C-1 

ANNEX C 

FORM OF WAIVER

In consideration for the benefits I will receive as a result of the participation of 

[NAME OF COMPANY] (together with its subsidiaries and affiliates, the “Company”) in the 

United States Department of the Treasury’s (“Treasury”) Community Development Capital 

Initiative and/or any other economic stabilization program implemented by Treasury under the 

Emergency Economic Stabilization Act of 2008 (as amended, supplemented or otherwise 

modified, “EESA”) (any such initiative or program, including 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 Company 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 EESA, 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 EESA, and the applicable 

requirements of the Securities Purchase Agreement by and between the Company and 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 Company or in which I may participate as 

they relate to the period the United States holds any equity or debt securities of the Company 

acquired through a Program or for any other period applicable under such Program or 

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

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

any other 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 the 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 (or any of its departments or agencies) or the Company or any of 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 Company or similar governing body (the “Committee”) reasonably 

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

incentive compensation based on materially inaccurate financial statements or performance 

criteria, would cause the Company to fail to be in compliance with the Limitations (such 

payment or benefit, an “Excess Payment”), upon notification from the Company, I shall repay 

such Excess Payment to the Company within 15 business days. In addition, I agree that the 
 C-2 

Company shall have the right to postpone any such payment or benefit for a reasonable period of 

time to enable the Committee to determine whether such payment or benefit would constitute an 

Excess Payment. 

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

including the manner in which, a payment or benefit needs to be modified, terminated or repaid 

in order for the Company to be in compliance with Section 111 of 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 Company is relying on this letter from me in connection with its 

participation in a Program. 

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: 
 D-1 

ANNEX D 

FORM OF OPINION

(a) The Company has been duly formed and is validly existing as a [TYPE 

OF ORGANIZATION] and is in good standing under the laws of the jurisdiction of its 

organization. The Company 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 Company 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 Preferred Shares have been duly and validly authorized, and, when 

issued and delivered pursuant to the Agreement, the Preferred Shares will be duly and validly 

issued and fully paid and non-assessable, will not be issued in violation of any preemptive rights, 

and will rank pari passu with or senior to all other series or classes of Preferred Stock issued on 

the Closing Date with respect to the payment of dividends and the distribution of assets in the 

event of any dissolution, liquidation or winding up of the Company. 

(d) The Company has the corporate power and authority to execute and 

deliver the Agreement and to carry out its obligations thereunder (which includes the issuance of 

the Preferred Shares). 

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

Agreement and the consummation of the transactions contemplated thereby have been duly 

authorized by all necessary corporate action on the part of the Company and its stockholders, and 

no further approval or authorization is required on the part of the Company, including, without 

limitation, by any rule or requirement of any national stock exchange. 

(f) The Agreement is a valid and binding obligation of the Company 

enforceable against the Company in accordance with its terms, except as the same may be 

limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws 

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

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

(g) The execution and delivery by the Company of this Agreement and the 

performance by the Company of its obligations thereunder (i) do not require any approval by any 

Governmental Entity to be obtained on the part of the Company, 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, 

with notice or lapse of time or both, would constitute a default) under, or result in the termination 

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

of, or result in the creation of, any lien, security interest, charge or encumbrance upon any of the 

properties or assets of the Company or any Company Subsidiary under any of the terms, 

conditions or provisions of its organizational documents or under any agreement, contract, 
 D-2 

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 Company and, pursuant to any applicable laws, is issued by any 

Governmental Entity having jurisdiction over the Company. 

(h) Other than the filing of the Certificate of Designations 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 

consents and approvals that have been made or obtained, no notice to, filing with, exemption or 

review by, or authorization, consent or approval of, any Governmental Entity is required to be 

made or obtained by the Company in connection with the consummation by the Company of the 

Purchase. 

(i) The Company is not nor, after giving effect to the issuance of the 

Preferred Shares 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) Each Certified Entity (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. 
 E-1 

ANNEX E 

REGISTRATION RIGHTS

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 Company of its intent to register its 

Registrable Securities either pursuant to Section 1.2(b) or Section 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 Preferred Shares and (B) any equity 

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 share dividend or 

share split or in connection with a combination of shares, 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 Company in 

effecting any registration pursuant to this Agreement (whether or not any registration or 

prospectus becomes effective or final) or otherwise complying with its obligations under this 

Annex E, including all registration, filing and listing fees, printing expenses, fees and 

disbursements of counsel for the Company, blue sky fees and expenses, expenses incurred in 

connection with any “road show”, the reasonable fees and disbursements of Holders’ Counsel,

and expenses of the Company’s independent accountants in connection with any regular or 
 E-2 

special 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 stock 

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) shares of equity securities and/or options or other rights in respect thereof 

to be offered to directors, members of management, employees, consultants, customers, lenders 

or vendors of the Company or Company Subsidiaries or in connection with dividend 

reinvestment plans. 

1.2 Registration. 

(a) The Company covenants and agrees that as promptly as practicable after 

the date that the Company becomes subject to the reporting requirements of Section 13 or 15(d) 

of the Exchange Act (and in any event no later than 30 days thereafter), the Company shall 

prepare and file with the SEC a Shelf Registration Statement covering all Registrable Securities 

(or otherwise designate an existing shelf registration on an appropriate form under Rule 415 

under the Securities Act (a “Shelf Registration Statement”) filed with the SEC to cover the 

Registrable Securities), and, to the extent the Shelf Registration Statement has not theretofore 

been declared effective or is not automatically effective upon such filing, the Company shall use 

reasonable best efforts to cause such Shelf Registration Statement to be declared or become 

effective and to keep such Shelf Registration Statement continuously effective and in compliance 

with the Securities Act and usable for resale of such Registrable Securities for a period from the 

date of its initial effectiveness until such time as there are no Registrable Securities remaining 

(including by refiling such Shelf Registration Statement (or a new Shelf Registration Statement) 

if the initial Shelf Registration Statement expires). Notwithstanding the foregoing, if the 

Company is not eligible to file a registration statement on Form S-3, then the Company shall not 

be obligated to file a Shelf Registration Statement unless and until requested to do so in writing 

by the Investor. 

(b) Any registration pursuant to Section 1.2(a) of this Annex E shall be 

effected by means of a Shelf Registration Statement on an appropriate form under Rule 415 

under the Securities Act (a “Shelf Registration Statement”). If the Investor or any other Holder 

intends to distribute any Registrable Securities by means of an underwritten offering it shall 

promptly so advise the Company and the Company shall take all reasonable steps to facilitate 

such distribution, including the actions required pursuant to Section 1.2(d) of this Annex E; 

provided that the Company shall not be required to facilitate an underwritten offering of 

Registrable Securities unless (i) the expected gross proceeds from such offering exceed $200,000 
 E-3 

or (ii) such underwritten offering includes all of the outstanding Registrable Securities held by 

such Holder. The lead underwriters in any such distribution shall be selected by the Holders of 

a majority of the Registrable Securities to be distributed. 

(c) The Company shall not be required to effect a registration (including a 

resale of Registrable Securities from an effective Shelf Registration Statement) or an 

underwritten offering pursuant to Section 1.2 of this Annex E: (A) with respect to securities that 

are not Registrable Securities; or (B) if the Company has notified the Investor and all other 

Holders that in the good faith judgment of the Board of Directors, it would be materially 

detrimental to the Company or its securityholders for such registration or underwritten offering 

to be effected at such time, in which event the Company shall have the right to defer such 

registration for a period of not more than 45 days after receipt of the request of the Investor or 

any other Holder; provided that such right to delay a registration or underwritten offering shall 

be exercised by the Company (1) only if the Company has generally exercised (or is concurrently 

exercising) similar black-out rights against holders of similar securities that have registration 

rights and (2) not more than three times in any 12-month period and not more than 90 days in the 

aggregate in any 12-month period. 

(d) If during any period when an effective Shelf Registration Statement is not 

available, the Company proposes to register any of its equity securities, other than a registration 

pursuant to Section 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 Company will give prompt written notice to the Investor and all other Holders of its intention 

to effect such a registration (but in no event less than ten days prior to the anticipated filing date) 

and will include in such registration all Registrable Securities with respect to which the 

Company has received written requests for inclusion therein within ten business days after the 

date of the Company’s notice (a “Piggyback Registration”). Any such person that has made such 

a written request may withdraw its Registrable Securities from such Piggyback Registration by 

giving written notice to the Company and the managing underwriter, if any, on or before the fifth 

business day prior to the planned effective date of such Piggyback Registration. The Company 

may terminate or withdraw any registration under this Section 1.2(d) prior to the effectiveness of 

such registration, whether or not Investor or any other Holders have elected to include 

Registrable Securities in such registration. 

(e) If the registration referred to in Section 1.2(d) of this Annex E is proposed 

to be underwritten, the Company will so advise Investor and all other Holders as a part of the 

written notice given pursuant to Section 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 Company 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 Company; provided that the Investor (as 

opposed to other Holders) shall not be required to indemnify any person in connection with any 

registration. If any participating person disapproves of the terms of the underwriting, such person 
 E-4 

may elect to withdraw therefrom by written notice to the Company, the managing underwriters 

and the Investor (if the Investor is participating in the underwriting). 

(f) If either (x) the Company grants “piggyback” registration rights to one or 

more third parties to include their securities in an underwritten offering under the Shelf 

Registration Statement pursuant to Section 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 Company, and in either case the managing underwriters advise the Company that in their 

reasonable opinion the number of securities requested to be included in such offering exceeds the 

number which can be sold without adversely affecting the marketability of such offering 

(including an adverse effect on the per share offering price), the Company will include in such 

offering only such number of securities that in the reasonable opinion of such managing 

underwriters can be sold without adversely affecting the marketability of the offering (including 

an adverse effect on the per share 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 Company proposes to sell, (B) then the Registrable Securities 

of the Investor and all other Holders who have requested inclusion of Registrable Securities 

pursuant to Section 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 or shares owned by each such person and (C) lastly, 

any other securities of the Company that have been requested to be so included, subject to the 

terms of this Agreement; provided, however, that if the Company has, prior to the Signing Date, 

entered into an agreement with respect to its securities that is inconsistent with the order of 

priority contemplated hereby then it shall apply the order of priority in such conflicting 

agreement to the extent that it would otherwise result in a breach under such agreement. 

1.3 Expenses of Registration. All Registration Expenses incurred in 

connection with any registration, qualification or compliance hereunder shall be borne by the 

Company. All Selling Expenses incurred in connection with any registrations hereunder shall be 

borne by the holders of the securities so registered pro rata on the basis of the aggregate offering 

or sale price of the securities so registered. 

1.4 Obligations of the Company. Whenever required to effect the registration 

of any Registrable Securities or facilitate the distribution of Registrable Securities pursuant to an 

effective Shelf Registration Statement, the Company shall, as expeditiously as reasonably 

practicable: 

(a) Prepare and file with the SEC a prospectus supplement or post-effective 

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. 

(b) Prepare and file with the SEC such amendments and supplements to the 

applicable registration statement and the prospectus or prospectus supplement used in connection 

with such registration statement as may be necessary to comply with the provisions of the 

Securities Act with respect to the disposition of all securities covered by such registration 

statement. 
 E-5 

(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, 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 Company shall not be required in connection therewith or as a condition thereto 

to qualify to do business or to file a general consent to service of process in any such states or 

jurisdictions. 

(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: 

(i) when any registration statement filed pursuant to Section 4.1(j) 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; 

(ii) of any request by the SEC for amendments or supplements to any 

registration statement or the prospectus included therein or for additional 

information; 

(iii) 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; 

(iv) of the receipt by the Company 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; 

(v) of the happening of any event that requires the Company to make 

changes in any effective registration statement or the prospectus related to the 
 E-6 

registration statement 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 

(vi) if at any time the representations and warranties of the Company 

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)(iii) 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)(v) of this Annex E, promptly prepare a post-effective amendment to such registration 

statement or a supplement to the related prospectus or file any other required document so that, 

as thereafter delivered to the Holders and any underwriters, the prospectus will not contain an 

untrue statement of a material fact or omit to state any material fact necessary to make the 

statements therein, in light of the circumstances under which they were made, not misleading. If 

the Company notifies the Holders in accordance with Section 1.4(f)(v) to suspend the use of the 

prospectus until the requisite changes to the prospectus have been made, then the Holders and 

any underwriters shall suspend use of such prospectus and use their reasonable best efforts to 

return to the Company all copies of such prospectus (at the Company’s expense) other than 

permanent file copies then in such Holders’ or underwriters’ possession. The total number of 

days that any such suspension may be in effect in any 12-month period shall not exceed 90 days. 

(i) Use reasonable best efforts to procure the cooperation of the Company’s 

transfer agent in settling any offering or sale of Registrable Securities, including with respect to 

the transfer of physical stock 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 Company available to participate in “road shows”, similar sales events and 

other marketing activities), (A) make such representations and warranties to the Holders that are 

selling stockholders and the managing underwriter(s), if any, with respect to the business of the 

Company 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 

Company, addressed to the managing underwriter(s), if any, covering the matters customarily 

covered in such opinions requested in underwritten offerings, (C) use its reasonable best efforts 

to obtain “cold comfort” letters from the independent certified public accountants of the 

Company (and, if necessary, any other independent certified public accountants of any business 
 E-7 

acquired by the Company for which financial statements and financial data are included in the 

Shelf Registration Statement) who have certified the financial statements included in such Shelf 

Registration Statement, addressed to each of the managing underwriter(s), if any, such letters to 

be in customary form and covering matters of the type customarily covered in “cold comfort” 

letters, (D) if an underwriting agreement is entered into, the same shall contain indemnification 

provisions and procedures customary in underwritten offerings (provided that the Investor shall 

not be obligated to provide any indemnity), and (E) deliver such documents and certificates as 

may be reasonably requested by the Holders of a majority of the Registrable Securities being 

sold in connection therewith, their counsel and the managing underwriter(s), if any, to evidence 

the continued validity of the representations and warranties made pursuant to clause (A) above 

and to evidence compliance with any customary conditions contained in the underwriting 

agreement or other agreement entered into by the Company. 

(k) Make available for inspection by a representative of Holders that are 

selling stockholders, 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 corporate documents and 

properties of the Company, and cause the officers, directors and employees of the Company to 

supply all information in each case reasonably requested (and of the type customarily provided in 

connection with due diligence conducted in connection with a registered public offering of 

securities) by any such representative, managing underwriter(s), attorney or accountant in 

connection with such Shelf Registration Statement. 

(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 Company 

are then listed or, if no similar securities issued by the Company are then listed on any national 

securities exchange, use its reasonable best efforts to cause all such Registrable Securities to be 

listed on such securities exchange as the Investor may designate. 

(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 Company has received such request. 

(n) Timely provide to its security holders earning statements satisfying the 

provisions of Section 11(a) of the Securities Act and Rule 158 thereunder. 

1.5 Suspension of Sales. Upon receipt of written notice from the Company 

that a registration statement, prospectus or prospectus supplement contains or may contain an 

untrue statement of a material fact or omits or may omit to state a material fact required to be 

stated therein or necessary to make the statements therein not misleading or that circumstances 

exist that make inadvisable use of such registration statement, prospectus or prospectus 

supplement, 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 
 E-8 

supplemented or amended prospectus or prospectus supplement, or until the Investor and/or such 

Holder is advised in writing by the Company that the use of the prospectus and, if applicable, 

prospectus supplement may be resumed, and, if so directed by the Company, the Investor and/or 

such Holder shall deliver to the Company (at the Company’s expense) all copies, other than 

permanent file copies then in the Investor and/or such Holder’s possession, of the prospectus 

and, if applicable, prospectus supplement 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. 

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. 

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 Company. 

(b) It shall be a condition precedent to the obligations of the Company 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 Company such information regarding themselves, the 

Registrable Securities held by them and the intended method of disposition of such securities as 

shall be required to effect the registered offering of their Registrable Securities. 

1.8 Indemnification. 

(a) The Company agrees to indemnify each Holder and, if a Holder is a 

person other than an individual, such Holder’s officers, directors, employees, agents, 

representatives and Affiliates, and each person, if any, that controls a Holder within the meaning 

of the Securities Act (each, an “Indemnitee”), against any and all losses, claims, damages, 

actions, liabilities, costs and expenses (including reasonable fees, expenses and disbursements of 

attorneys and other professionals incurred in connection with 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) prepared by the Company or authorized by it in writing for use 

by such Holder (or any amendment or supplement thereto); or any omission to state therein a 

material fact required to be stated therein or necessary to make the statements therein, in light of 

the circumstances under which they were made, not misleading; provided, that the Company 

shall not be liable to such Indemnitee in any such case to the extent that any such loss, claim, 

damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based 

upon (A) an untrue statement or omission made in such registration statement, including any 

such preliminary prospectus or final prospectus contained therein or any such amendments or 

supplements thereto or contained in any free writing prospectus (as such term is defined in Rule 
 E-9 

405) prepared by the Company or authorized by it in writing for use by such Holder (or any 

amendment or supplement thereto), in reliance upon and in conformity with information 

regarding such Indemnitee or its plan of distribution or ownership interests which was furnished 

in writing to the Company by such Indemnitee for use in connection with such registration 

statement, including any such preliminary prospectus or final prospectus contained therein or any 

such amendments or supplements thereto, or (B) offers or sales effected by or on behalf of such 

Indemnitee “by means of” (as defined in Rule 159A) a “free writing prospectus” (as defined in 

Rule 405) that was not authorized in writing by the Company. 

(b) If the indemnification provided for in Section 1.8(a) 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 Company, in lieu of indemnifying such Indemnitee, shall 

contribute to the amount paid or payable by such Indemnitee as a result of such losses, claims, 

damages, actions, liabilities, costs or expenses in such proportion as is appropriate to reflect the 

relative fault of the Indemnitee, on the one hand, and the Company, on the other hand, in 

connection with the statements or omissions which resulted in such losses, claims, damages, 

actions, liabilities, costs or expenses as well as any other relevant equitable considerations. The 

relative fault of the Company, on the one hand, and of the Indemnitee, on the other hand, shall be 

determined by reference to, among other factors, whether the untrue statement of a material fact 

or omission to state a material fact relates to information supplied by the Company or by the 

Indemnitee and the parties’ relative intent, knowledge, access to information and opportunity to 

correct or prevent such statement or omission; the Company and each Holder agree that it would 

not be just and equitable if contribution pursuant to this Section 1.8(b) 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(a) 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 Company if the Company was not guilty of such 

fraudulent misrepresentation. 

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 Company written notice of the 

name and address of such transferee or assignee and the number and type of Registrable 

Securities that are being assigned. 

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 Company agrees not to 

effect (other than pursuant to such registration or pursuant to a Special Registration) any public 

sale or distribution, or to file any Shelf Registration Statement (other than such registration or a 

Special Registration) covering any preferred stock of the Company or any securities convertible 

into or exchangeable or exercisable for preferred stock of the Company, during the period not to 

exceed ten days prior and 60 days following the effective date of such offering or such longer 

period up to 90 days as may be requested by the managing underwriter for such underwritten 

offering. The Company also agrees to cause such of its directors and senior executive officers to 
 E-10 

execute and deliver customary lock-up agreements in such form and for such time period up to 

90 days as may be requested by the managing underwriter. 

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. 

1.12 Specific Performance. The parties hereto acknowledge that there would 

be no adequate remedy at law if the Company fails to perform any of its obligations under this 

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 Company under this Annex E in accordance with the terms and conditions of 

this Annex E. 

1.13 No Inconsistent Agreements. The Company shall not, on or after the 

Signing Date, enter into any agreement with respect to its securities that may impair the rights 

granted to the Investor and the Holders under this 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 Company has, prior to the Signing Date, entered 

into any agreement with respect to its securities that is inconsistent with the rights granted to the 

Investor and the Holders under this Annex E (including agreements that are inconsistent with the 

order of priority contemplated by Section 1.2(f) of Annex E) or that may otherwise conflict with 

the provisions hereof, the Company shall use its reasonable best efforts to amend such 

agreements to ensure they are consistent with the provisions of this Annex E. 

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 Company and used in connection with such distribution.
 F-1 

ANNEX F 

OFFICER’S CERTIFICATE 

OF 

[COMPANY] 

In connection with that certain letter agreement, dated [____________], 2010 

(the “Agreement”) by and between [COMPANY] (the “Company”) and the United States 

Department of the Treasury (“Investor”) which incorporates that certain Securities Purchase 

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 Company. 

2. Each Certified Entity (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. 

3. The information set forth in the CDFI Certification Application delivered 

to the Investor pursuant to Section 2.3(m) of the Standard Terms (the “CDFI Application”), as 

modified by any updates to the CDFI Application provided on [Insert Date(s)] by the Company 

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. 
 F-2 

4. The contracts and material agreements entered into by each Certified 

Entity with respect to Development Services previously disclosed to the Investor remain in effect 

and copies of any new contracts and material agreements entered into by the Certified Entity 

with respect to Development Services are attached hereto as Exhibit A. 

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 each Certified Entity 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 any Certified 

Entity 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. 

6. Each Certified Entity 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. 

7. [Insert if the Company was a Bank Holding Company or a Savings and 

Loan Holding Company on the Signing Date: The Company is and has been at all times since 

the date of the last certification provided to the Investor pursuant to Section 4.1(d)(ii) of the 

Standard Terms, a [Insert if the Company is a Bank Holding Company: Bank Holding 

Company] [Insert if the Company is a Savings and Loan Holding Company: Savings and Loan 

Holding Company].] The Company 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 and Bank Holding 

Companies: 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 and Savings and Loan Holding Companies: 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[__]. 

[COMPANY] 

By: ____________________________________ 

Name: 

Title: 
Exh. A-1 

EXHIBIT A 

NEW CONTRACTS AND MATERIAL AGREEMENTS 
Exh. B-1 

EXHIBIT B 

BOARD OF DIRECTORS 

CERTIFIED ENTITY: [CERTIFIED ENTITY]1

NAME ADDRESS NARRATIVE2

 

 

1

 Include chart for each Certified Entity. 

2

 To the extent (x) any of the individuals was not a member of the board of directors of such Certified 

Entity 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 such Certified 

Entity 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.