FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

EXHIBIT A

(ECIP Mutual Institutions/Subchapter S Corporations

Subordinated Debt)

SECURITIES PURCHASE AGREEMENT

STANDARD TERMS
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

-iTABLE OF CONTENTS

Page

ARTICLE I

Section 1.1 Definitions................................................................................................................1

Section 1.2 Interpretation............................................................................................................9

Section 1.3 Disclosure Restrictions ............................................................................................9

ARTICLE II

PURCHASE; CLOSING

Section 2.1 Purchase .................................................................................................................10

Section 2.2 Closing ...................................................................................................................10

Section 2.3 Closing Conditions ................................................................................................10

ARTICLE III

REPRESENTATIONS AND WARRANTIES

Section 3.1 Representations and Warranties of the Recipient ..................................................12

ARTICLE IV

COVENANTS

Section 4.1 Affirmative Covenants...........................................................................................21

Section 4.2 Negative Covenants...............................................................................................28

ARTICLE V

REMEDIES OF THE HOLDERS UPON EVENT OF DEFAULT AND OTHER BREACHES 

OR DEFAULTS

Section 5.1 Event of Default.....................................................................................................29

Section 5.2 Acceleration and Other Remedies .........................................................................30

Section 5.3 Suits for Enforcement ............................................................................................30

Section 5.4 Holders May File Proofs of Claim.........................................................................31

Section 5.5 Waiver of Past Defaults.........................................................................................31

Section 5.6 Receivership...........................................................................................................31

Section 5.7 Rate Reductions in the Event of Breaches and Violations ....................................32

Section 5.8 Recipient Breach, Violation or Default .................................................................32

Section 5.9 Additional Remedies..............................................................................................33
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

-iiARTICLE VI

ADDITIONAL AGREEMENTS

Section 6.1 Purchase for Investment.........................................................................................34

Section 6.2 Form of Subordinated Security..............................................................................34

Section 6.3 Execution of Subordinated Debt............................................................................34

Section 6.4 Computation of Interest .........................................................................................34

Section 6.5 Legends..................................................................................................................35

Section 6.6 Transfer of Subordinated Debt...............................................................................40

Section 6.7 Replacement of Subordinated Debt .......................................................................42

Section 6.8 Cancellation ...........................................................................................................42

Section 6.9 Rule 144; Rule 144A; 4(a)(11⁄2) Transactions........................................................42

Section 6.10 Redemption............................................................................................................44

Section 6.11 Governance Rights for Non-Payment of Interest...................................................45

Section 6.12 Communications to Holders ..................................................................................47

Section 6.13 Noncompliance ......................................................................................................47

Section 6.14 Deferral of Interest.................................................................................................47

Section 6.15 Expenses and Further Assurances..........................................................................48

ARTICLE VII

SUBORDINATION OF THE SUBORDINATED DEBT

Section 7.1 Agreement to Subordinate .....................................................................................48

Section 7.2 Default on Senior Indebtedness.............................................................................49

Section 7.3 Liquidation; Dissolution ........................................................................................49

Section 7.4 Subrogation............................................................................................................50

Section 7.5 Notice by the Recipient..........................................................................................51

Section 7.6 Subordination May Not Be Impaired.....................................................................51

ARTICLE VIII

MISCELLANEOUS

Section 8.1 Termination............................................................................................................52

Section 8.2 Survival..................................................................................................................53

Section 8.3 Amendment............................................................................................................53

Section 8.4 Waiver of Conditions.............................................................................................53

Section 8.5 Governing Law; Submission to Jurisdiction, etc. ..................................................53

Section 8.6 Notices...................................................................................................................54

Section 8.7 Assignment ............................................................................................................54

Section 8.8 Severability ............................................................................................................55

Section 8.9 No Third Party Beneficiaries.................................................................................55

Section 8.10 Specific Performance.............................................................................................55
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

-iiiLIST OF ANNEXES

ANNEX A: FORM OF SUBORDINATED SECURITY

ANNEX B: FORM OF OFFICER’S CERTIFICATE

ANNEX C: FORM OF OPINION

ANNEX D: FORM OF ECIP INTERIM FINAL RULE CERTIFICATION

ANNEX E: REGISTRATION RIGHTS
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

-ivINDEX OF DEFINED TERMS

Term

Location of

Definition

Affiliate Section 1.1

Agreement Recitals

Applicable Interest Rate Face of Subordinated Security

Appropriate Federal Banking Agency Section 1.1

Appropriate State Banking Agency Section 1.1

Bank Holding Company Section 1.1

Bankruptcy Exceptions Section 3.1(c)(i)

Baseline Section 1.1

Board of Directors Section 2.3(e)

Business Combination Section 8.7

business day Section 1.2

Call Report Section 1.1

Capitalization Date Section 1.1

CDFI Section 1.1

CDFI Fund Section 1.1

Charter Section 2.3(d)

Closing Section 2.2(a)

Closing Date Section 2.2(a)

Code Section 3.1(n)

Community Development Banking Act Section 1.1

Contagion Event Section 1.1

Contagion Event Measures Section 1.1

Controlled Group Section 3.1(n)

Defaulted Interest Section 6.4(c)

Deferred Interest Section 6.14(b)

Director Trigger Event Section 6.11(b)(i)

Disclosure Schedule Section 1.1

Disclosure Update Section 2.3(j)

ECIP Recitals

ECIP Application Section 1.1

ECIP Interim Final Rule Section 1.1

ECIP Period Section 1.1

Eligible Financial Institution Section 1.1

Eligible Nonprofit Section 6.6(f)(iv)

Equity Section 1.1

Equityholders Section 3.1(e)(i)

ERISA Section 3.1(n)

Event of Default Section 5.1

Exchange Act Section 1.1

Executive Officer Section 1.1

Existing Parity Subordinated Debt Section 1.1

Federal Reserve Section 1.1

GAAP Section 1.1
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

-vTerm

Location of

Definition

Governmental Entities, Governmental Entity Section 2.3(a)

Holder; Holders Section 1.1

IDI Subsidiary Section 1.1

Indebtedness Section 1.1

Indemnitee Section 6.9(c)

Indenture Section 6.1

Indenture Act Section 6.1

Initial Supplemental Report Section 2.3(l)

Insured CDFI Section 1.1

Interest Deferral Period Section 1.1

Interest Payment Date Face of Subordinated Security

Interest Period Section 1.1

Investment and Lending Plan Section 1.1

Investor Recitals

knowledge of the Recipient; Recipient’s knowledge Section 1.1

Letter Agreement Recitals

Major Depository Institution Subsidiary Section 1.1

Majority Holders Section 6.11(b)(vi)

Material Adverse Effect Section 1.1

Maturity Date Face of Subordinated Security

MDI Section 1.1

Members Section 1.1

Offer Price Section 6.6(f)(ii)

Offered Securities Section 6.6(f)(ii)

officers Section 1.1

Part 16 Section 3.1(k)

Plan Section 3.1(n)

Previously Disclosed Section 1.1

Proprietary Rights Section 3.1(u)

Purchase Recitals

Purchase Price Section 2.1

QSub Section 1.1

Qualified Lending Section 1.1

Quarterly Supplemental Report Section 4.1(h)(i)

Recipient Recitals

Recipient Financial Statements Section 2.3(k)

Recipient Reports Section 3.1(i)(i)

Recipient Subsidiary; Recipient Subsidiaries Section 3.1(e)(ii)

Redemption Date Section 6.10(a)

Regular Record Date Face of Subordinated Security

Regulatory Agreement Section 3.1(s)

Regulatory Trigger Event Section 1.1

Related Party Section 3.1(x)

Reporting Issuer Section 6.9(a)
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

-viTerm

Location of

Definition

Response Notice Section 6.6(f)(ii)

Review Period Section 6.6(f)(ii)

ROFR Notice Section 6.6(f)(ii)

S Corp Section 3.1(d)(v)

Savings and Loan Holding Company Section 1.1

Schedules Recitals

SEC Section 3.1(k)

Second Anniversary Face of Subordinated Security

Securities Act Section 3.1(a)

Senior Executive Officers Section 1.1

Senior Indebtedness Section 1.1

Significant Subsidiary Section 3.1(a)

Signing Date Section 1.1

Subordinated Debt Recitals

Subordinated Director Section 6.11(b)(i)

Subordinated Observer Section 6.11(a)

Subordinated Securities Recitals

Subordinated Securities Register Section 6.6(a)

subsidiary Section 1.1

Supplemental Reports Section 1.1

Target Communities Section 1.1

Tax; Taxes Section 1.1

Tenth Anniversary Face of Subordinated Security

Transaction Documents Section 1.1

Transfer Section 6.6(f)

Treasury Recitals
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

SECURITIES PURCHASE AGREEMENT – STANDARD TERMS

Recitals:

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

“Treasury”) may from time to time agree to purchase subordinated debentures from Eligible 

Financial Institutions that elect to participate in the Emergency Capital Investment Program 

(“ECIP”);

WHEREAS, an Eligible Financial Institution electing to participate in ECIP and 

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

Investor that incorporates this Securities Purchase Agreement – Standard Terms (the Eligible 

Financial Institution identified in the Letter Agreement, the “Recipient”);

WHEREAS, the Recipient intends to issue in a private placement subordinated 

debentures (each, a “Subordinated Security” and together, the “Subordinated Debt”), in an amount 

as set forth on Schedule A to the Letter Agreement and the Investor intends to purchase (the 

“Purchase”) from the Recipient the Subordinated Debt;

WHEREAS, the Recipient (i) provides, among other things, loans, grants, and 

forbearance for small businesses, minority-owned businesses, and consumers, in Target 

Communities; and (ii) intends to participate in the ECIP to increase its Qualified Lending in Target 

Communities that may be disproportionately impacted by the economic effects of the COVID-19 

pandemic, as set forth in the Investment and Lending Plan submitted to the Investor as part of the 

Recipient’s ECIP Application; 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 this Securities Purchase 

Agreement. The Disclosure Schedule (as defined below) shall be attached to the Letter Agreement.

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

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

ARTICLE I

Section 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 
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

-2-

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” for the Recipient as defined in Section 3(q) of the Federal Deposit Insurance Act (12 

U.S.C. Section 1813(q)), or any successor provision.

“Appropriate State Banking Agency” means, if the Recipient is a state-chartered 

bank or savings association, the Recipient’s state bank supervisor (as defined in Section 3(r) of the 

Federal Deposit Insurance Act, 12 U.S.C. § 1813(r)).

“Bank Holding Company” means a company registered as a bank holding company 

with the Federal Reserve pursuant to 12 U.S.C. § 1842.

“Bankruptcy Exceptions” has the meaning set forth in Section 3.1(c)(i).

“Baseline” means the “Baseline Qualified Lending” set forth on the Initial 

Supplemental Report, subject to adjustment as provided in the applicable Quarterly Supplemental 

Report.

“Board of Directors” has the meaning set forth in Section 2.3(e).

“Business Combination” has the meaning set forth in Section 8.7.

“business day” has the meaning set forth in Section 1.2.

“Call Reports” means Reports of Condition and Income.

“Capitalization Date” means the most recent fiscal month-end preceding the 

Signing Date.

“CDFI” means a regulated community development financial institution currently 

certified by the CDFI Fund pursuant to 12 C.F.R. § 1805.201(a) as having satisfied the eligibility 

requirements of the Community Development Financial Institutions Program and that satisfies the 

eligibility requirements for a community development financial institution set forth in 12 C.F.R. 

§ 1805.201(b)(1) – (6).

“CDFI Fund” means the Community Development Financial Institution Fund of 

the United States Department of the Treasury.

“Charter” has the meaning set forth in Section 2.3(d).

“Closing” has the meaning set forth in Section 2.2(a).

“Closing Date” has the meaning set forth in Section 2.2(a).

“Code” has the meaning set forth in Section 3.1(n).
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

-3-

“Community Development Banking Act” means the Community Development 

Banking and Financial Institutions Act of 1994 (12 U.S.C. § 4701 et seq.)

“Contagion Event” means the outbreak or continued presence of contagious 

disease, epidemic or pandemic (including SARS-CoV-2 or COVID-19, or any evolutions or 

mutations thereof, or any other viruses (including influenza)), and the governmental responses 

thereto.

“Contagion Event Measures” means any quarantine, “shelter in place”, “stay at 

home”, workforce reduction, social distancing, shut down, closure, sequester or other directives, 

guidelines or recommendations promulgated by any Governmental Entity, including the Centers 

for Disease Control and Prevention and the World Health Organization, in each case, in connection 

with or in response to a Contagion Event.

“Controlled Group” has the meaning set forth in Section 3.1(n).

“Defaulted Interest” has the meaning set forth in Section 6.4(c).

“Deferred Interest” has the meaning set forth in Section 6.14(b).

“Disclosure Schedule” means the schedule to the Letter 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.

“Disclosure Update” has the meaning set forth in Section 2.3(j).

“ECIP Application” has the meaning set forth in the definition of Eligible Financial 

Institution.

“ECIP Interim Final Rule” means the interim final rule promulgated by the Investor 

setting forth restrictions on executive compensation, share buybacks and dividends applicable to 

participants in ECIP, originally codified at 31 C.F.R. Part 35.

“ECIP Period” has the meaning set forth in the ECIP Interim Final Rule.

“Eligible Financial Institution” means a financial institution that is, as of the date 

of submitting an application to participate in ECIP (the “ECIP Application”), and as of the Signing 

Date (1)(i) a CDFI or (ii) a MDI; and (2)(i) an insured depository institution not controlled by a 

Bank Holding Company or Savings and Loan Holding Company that is also an Eligible Financial 

Institution, (ii) a Bank Holding Company; (iii) a Savings and Loan Holding Company, or (iv) any 

credit union the member accounts of which are insured by the National Credit Union Share 

Insurance Fund.

“Eligible Nonprofit” has the meaning set forth in Section 6.6(f).

“Employee Benefit Plan” has the meaning set forth in Section 3.1(n).
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

-4-

“Equity” means: (i) in the case of mutual institutions, mutual capital certificates, 

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

issued by the Recipient, including rights of Members arising from their membership but excluding 

the rights of Members in respect of deposit liabilities of the Recipient, or (ii) in the case of S Corps, 

the common or capital stock of the Recipient.

“Equityholders” has the meaning set forth in Section 3.1(e)(i).

“ERISA” has the meaning set forth in Section 3.1(n).

“Event of Default” has the meaning set forth in Section 5.1.

“Exchange Act” means the Securities Exchange Act of 1934 (15 U.S.C. § 78a et 

seq.).

“Executive Officer” means any of the Recipient’s “executive officers” as defined in 

12 C.F.R. § 215.2(e)(1) (regardless of whether or not such regulation is applicable to the 

Recipient).

“Existing Parity Subordinated Debt” means subordinated debt of the Recipient 

outstanding on the Signing Date that ranks equally with the Subordinated Debt and is identified 

on Schedule A.

“Federal Reserve” means the Board of Governors of the Federal Reserve System.

“GAAP” has the meaning set forth in the definition of Material Adverse Effect.

“Governmental Entities” or “Governmental Entity” has the meaning set forth in 

Section 2.3(a).

“Holder” or “Holders” means a holder of the Subordinated Debt.

“IDI Subsidiary” means any Recipient Subsidiary that is an insured depository 

institution.

“Indebtedness” means, whether or not recourse is to all or a portion of the assets of 

the Recipient and whether or not contingent, (i) the claims of the Recipient’s secured and general 

creditors; (ii) every obligation of the Recipient for money borrowed; (iii) every obligation of the 

Recipient evidenced by bonds, debentures, notes or other similar instruments, including 

obligations incurred in connection with the acquisition of property, assets or businesses; (iv) every 

reimbursement obligation of the Recipient, contingent or otherwise, with respect to letters of 

credit, bankers’ acceptances, security purchase facilities or similar facilities issued for the account 

of the Recipient; (v) every obligation of the Recipient issued or assumed as the deferred purchase 

price of property or services; (vi) every capital lease obligation of the Recipient; (vii) all 

indebtedness of the Recipient for claims in respect of securities contracts, derivative products, 

including interest rate, foreign exchange rate and commodity forward contracts, options and swaps 

and similar arrangements; (viii) every obligation of the type referred to in clauses (i) through (vii) 

of another person and all dividends of another person the payment of which, in either case, the 
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

-5-

Recipient has guaranteed or is responsible or liable for directly or indirectly, as obligor or 

otherwise, and (ix) every obligation of the type referred to in clauses (i) through (vii) of another 

person and all dividends of another person the payment of which, in either case, is secured by a 

lien on any property or assets of the Recipient.

“Indemnitee” has the meaning set forth in Section 6.9(c).

“Indenture” has the meaning set forth in Section 6.1.

“Indenture Act” has the meaning set forth in Section 6.1.

“Initial Supplemental Report” has the meaning set forth in Section 2.3(l).

“Insured CDFI” means an insured community development financial institution, as 

defined in 12 U.S.C. § 4702(13).

“Interest Deferral Period” means the period during which an installment of interest 

is deferred in accordance with Section 6.14(a).

“Interest Period” means the period from and including any Interest Payment Date 

to, but excluding, the next Interest Payment Date; provided, however, the initial Interest Period 

shall be the period from and including the Second Anniversary to the next succeeding Interest 

Payment Date. Interest Payment Dates and Interest Periods will not be adjusted for business days.

“Investment and Lending Plan” means an investment and lending plan of the 

Recipient that meets the criteria set forth in Section 104A(d)(4) of the Community Development 

Banking Act.

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

knowledge after reasonable and due inquiry of the “officers” (as defined in Rule 3b-2 under the 

Exchange Act) of the Recipient.

“Major Depository Institution Subsidiary” means any subsidiary of the Recipient 

that (a) is a depository institution and (b) meets the definition of “significant subsidiary” within 

the meaning of Rule 405 under the Securities Act.

“Majority Holders” has the meaning set forth in Section 6.11(b)(vi).

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

results of operation or financial condition of the Recipient and its consolidated subsidiaries taken 

as a whole; provided, however, that 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 Recipient and its subsidiaries operate (including any such changes resulting from a 

Contagion Event), (B) changes or proposed changes after the Signing Date in generally accepted 
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

-6-

accounting principles in the United States (“GAAP”), or authoritative interpretations thereof, 

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

general applicability or related policies or interpretations of Governmental Entities (including any 

law in respect of Taxes, and laws newly enacted for, relating to or arising out of efforts to 

implement Contagion Event Measures and address the spread of any Contagion Event) or (D), if 

the Recipient is an S Corp, changes or proposed changes after the Signing Date in the taxation of 

(I) the Recipient as a validly electing S corporation within the meaning of Sections 1361 and 1362 

of the Code, or (II) any Recipient Subsidiary as a “qualified subchapter S subsidiary” (“QSub”) 

within the meaning of Section 1361(b)(3)(B) of the Code, (in the case of each of these clauses (A), 

(B), (C) and, if applicable, (D), other than changes or occurrences to the extent that such changes 

or occurrences have or would reasonably be expected to have a materially disproportionate adverse 

effect on the Recipient and its consolidated subsidiaries taken as a whole relative to comparable 

U.S. banking or financial services organizations); or (ii) the ability of the Recipient to consummate 

the Purchase and other transactions contemplated by this Agreement and perform its obligations 

hereunder or thereunder on a timely basis.

“MDI” means a minority depository institution, (i) as defined in section 308 of the 

Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (12 U.S.C. § 1463 et seq.); 

or (ii) considered to be a minority depository institution by the Appropriate Federal Banking 

Agency or the National Credit Union Administration; or (iii) as listed in the Federal Deposit 

Insurance Corporation’s Minority Depository Institutions List published for the third quarter of 

2020.

“Members” means, in the case of mutual institutions, persons having ownership 

rights in the Recipient by virtue of their ownership of a deposit at the Recipient.

“Offer Price” has the meaning set forth in Section 6.6(f)(ii).

“Offered Securities” has the meaning set forth in Section 6.6(f)(ii).

“officers” has the meaning set forth in the definition of knowledge of the Recipient 

or Recipient’s knowledge.

“Original Issue Date” means the date on which the Subordinated Debt is issued by 

the Recipient to the Investor.

“Part 16” has the meaning set forth in Section 3.1(k).

“Plan” has the meaning set forth in Section 3.1(n).

“Previously Disclosed” means information set forth in 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 inclusion of information in a Disclosure Update shall not be deemed to correct an existing 

breach or misrepresentation and, therefore, shall not obligate the Investor to consummate the 

Purchase or limit or affect any rights of or remedies available to the Investor.
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

-7-

“Proprietary Rights” has the meaning set forth in Section 3.1(u).

“Purchase Price” has the meaning set forth in Section 2.1.

“QSub” has the meaning set forth in the definition of Material Adverse Effect.

“Qualified Lending” has the meaning set forth in the definition of Qualified 

Lending in the applicable Supplemental Report.

“Quarterly Supplemental Report” has the meaning set forth in Section 4.1(h)(i).

“Recipient Financial Statements” has the meaning set forth in Section 2.3(k).

“Recipient Reports” has the meaning set forth in Section 3.1(i)(i).

“Recipient Subsidiary” or “Recipient Subsidiaries” has the meaning set forth in 

Section 3.1(e)(ii).

“Redemption Date” has the meaning set forth in Section 6.10(a).

“Regulatory Agreement” has the meaning set forth in Section 3.1(s).

“Regulatory Trigger Event” means, for so long as the Subordinated Debt is 

outstanding the good faith determination by the Recipient that as a result of (i) any amendment to, 

or change in, the laws, rules or regulations of the United States (including, for the avoidance of 

doubt, any agency or instrumentality of the United States, including the Appropriate Federal 

Banking Agency) or any political subdivision of or in the United States that is enacted or becomes 

effective after the initial issuance of the Subordinated Debt, or (ii) any official administrative 

decision or judicial decision or administrative action or other official pronouncement interpreting 

or applying those laws, rules or regulations or policies with respect thereto that is announced after 

the initial issuance of Subordinated Debt, there is more than an insubstantial risk that the Recipient 

will not be entitled to treat the Subordinated Debt then outstanding as “Tier 2 capital” (or its 

equivalent) for purposes of the capital adequacy rules or regulations of the Appropriate Federal 

Banking Agency as then in effect and applicable, to at least the same extent as on the Signing Date.

“Related Party” has the meaning set forth in Section 3.1(x).

“Reporting Issuer” has the meaning set forth in Section 6.9(a).

“Response Notice” has the meaning set forth in Section 6.6(f)(ii).

“Review Period” has the meaning set forth in Section 6.6(f)(ii).

“ROFR Notice” has the meaning set forth in Section 6.6(f)(ii).

“S Corp” has the meaning set forth in Section 3.1(d)(v).

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

and loan holding company with the Federal Reserve pursuant to 12 U.S.C. § 1467(a).
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

-8-

“Schedules” has the meaning set forth in the Recitals.

“SEC” has the meaning set forth in Section 3.1(k).

“Securities Act” has the meaning set forth in Section 3.1(a).

“Senior Executive Officer” has the meaning set forth in the ECIP Interim Final 

Rule.

“Senior Indebtedness” means, with respect to the Subordinated Debt, (i) all 

Indebtedness, including all principal thereof, premium, if any, thereon and interest, if any, thereon 

(including interest accruing on or after the appointment of a receiver or conservator relating to the 

Recipient, or on or after the filing of any petition in bankruptcy or for reorganization relating to 

the Recipient, whether or not such claim for post-appointment or post-petition interest is allowed), 

whether outstanding on the Signing Date, or thereafter created, assumed or incurred, and any 

deferrals, renewals or extensions of such Indebtedness, and (ii) if the Recipient is an insured 

depository institution, all deposit liabilities of the Recipient; provided, however that Senior 

Indebtedness shall not include (A) Existing Parity Subordinated Debt, (B) any Indebtedness issued 

to any statutory trust created by the Recipient for the purpose of issuing trust preferred securities 

in connection with such issuance of Indebtedness, which shall in all cases be junior to the 

Subordinated Debt, (C) any guarantees of the Recipient in respect of the equity securities or other 

securities of any financing entity referred to in clause (B) above, or (D) any other subordinated 

debt of the Recipient that by its terms ranks pari passu with or junior to the Subordinated Debt 

issued hereunder.

“Significant Subsidiary” has the meaning set forth in Section 3.1(a).

“Signing Date” has the meaning set forth in the definition of Material Adverse 

Effect.

“Subordinated Director” has the meaning set forth in Section 6.11(b).

“Subordinated Observer” has the meaning set forth in Section 6.11(a).

“Subordinated Securities Register” has the meaning set forth in Section 6.6(a).

“subsidiary” has the meaning set forth in 12 U.S.C. § 1813(w)(4), except that a 

Recipient that is a corporation shall not be considered to be a subsidiary of any Insured Depository 

Institution or Depository Institution Holding Company that controls less than twenty-five percent 

(25%) of any class of the voting shares of such corporation, and does not otherwise control in any 

manner the election of a majority of the directors of the corporation.

“Supplemental Reports” means, collectively, the Initial Supplemental Report and 

the Quarterly Supplemental Reports.

“Target Communities” means the categories of communities set forth under the 

“Categories of Target Communities” heading in the “Rate Reduction Incentive Guidelines” 

published by the Treasury.
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“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.

“Transaction Documents” means this Agreement, the Letter Agreement, the 

debentures representing the Subordinated Debt, and all other instruments, documents and 

agreements executed by or on behalf of the Recipient and delivered concurrently herewith or at 

any time hereafter to or for the benefit of any Holders in connection with the transactions 

contemplated by this Agreement, all as amended, supplemented or modified from time to time.

“Transfer” has the meaning set forth in Section 6.6(f).

Section 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, a reference to “Schedules” shall 

be to a Schedule to this Securities Purchase Agreement and a reference to “Disclosure Schedules” 

shall be to the Disclosure 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 

having access to 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, in the case of interim final rules, include such rules as may be finalized, revised or 

succeeded by a final rule) and to any section of any statute, rule or regulation include any successor 

to the section. References to a “business day” shall mean any day except Saturday, Sunday and 

any day on which banking institutions in the State of New York or the District of Columbia 

generally are authorized or required by law or other governmental actions to close.

Section 1.3 Disclosure Restrictions. No representation, warranty, covenant or other 

agreement or provision contained in this Agreement shall be deemed to contemplate or require the 

disclosure of “confidential supervisory information” or other similar information, the disclosure 

of which is restricted pursuant to laws and regulations to which the Recipient is subject.
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ARTICLE II

PURCHASE; CLOSING

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

Agreement, the Recipient agrees to sell, and the Investor agrees to purchase, at the Closing (as 

hereinafter defined), the Subordinated Debt in the form attached hereto as Annex A, appropriately 

completed in conformity herewith and duly and validly issued, authorized and executed by the 

Recipient, in the aggregate principal amount set forth on Schedule A for the purchase price set 

forth on Schedule A (the “Purchase Price”). The Subordinated Debt, including the principal and 

interest, shall be unsecured and subordinate and junior in right of payment to Senior Indebtedness 

to the extent set forth in Article VII hereof.

Section 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 by electronic exchange of 

documents at 8:00 am, New York City time, on the date set forth in Schedule A or as soon as 

practicable thereafter, or at such other time and date as shall be agreed between the Recipient and 

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

“Closing Date”.

(b) Subject to the fulfillment or waiver of the conditions to Closing in Section 2.3, at 

the Closing the Recipient will deliver, by registered mail or by courier or express delivery service 

(with confirmation of delivery, and tracking information, where possible) to the address provided 

in Schedule A, the Subordinated Debt as evidenced by one or more debentures dated as of the 

Closing Date and bearing appropriate legends as hereinafter provided, 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 Recipient on Schedule A.

Section 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 (each, a “Governmental Entity”, and 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 Subordinated 

Debt as contemplated by this Agreement;

(b) (i) the representations and warranties of the Recipient 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 Recipient 

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

Agreement at or prior to the Closing;
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(c) the Recipient shall have delivered to the Investor a certificate signed on behalf of 

the Recipient by a Senior Executive Officer, in substantially the form attached hereto as Annex B;

(d) if applicable, the Recipient 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, organization certificate or similar 

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

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

certified copies of the Charter and bylaws of the Recipient and the resolutions of the Board of 

Directors of the Recipient (the “Board of Directors”) authorizing the execution and delivery of 

this Agreement and the performance of its obligations hereunder, including the issuance of the 

Subordinated Debt;

(f) the Recipient shall have delivered to the Investor a good standing or equivalent 

certificate from the Secretary of State of its jurisdiction of organization or other applicable 

Governmental Entity, dated as of a recent date, with respect to the existence, organization and, if 

applicable, good standing of the Recipient;

(g) the Recipient shall have delivered to the Investor a certificate addressing the 

incumbency of each officer of the Recipient who signs the Letter Agreement, the certificate 

referred to in Section 2.3(c) and the debentures representing the Subordinated Debt (provided that 

if any such officer ceases to serve in such officer’s position following the Signing Date, then the 

Recipient shall deliver a duly updated incumbency certificate reflecting the incumbency of the 

respective officers as of the Closing);

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

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

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

(i) the Recipient shall have delivered to the Investor, or the designee identified in 

writing (which may be via e-mail) by the Investor prior to the Closing Date, physical debentures 

in proper form evidencing the Subordinated Debt to the Investor in the form attached hereto as 

Annex A;

(j) the Recipient 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 Recipient shall have delivered to the Investor an update to the Disclosure 

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

Disclosure Schedule true, correct and complete as of the Closing Date and (ii) the Investor, in its 

sole discretion, shall have approved the Disclosure Update, provided, however, that the delivery 

and acceptance of the Disclosure Update shall not be deemed to obligate the Investor to 

consummate the Purchase nor limit or affect any rights of or remedies available to the Investor;

(k) the Recipient shall have delivered to the Investor on or prior to the Signing Date 

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

each of the last three (3) completed fiscal years of the Recipient (which shall be audited to the 
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extent audited financial statements are available prior to the Signing Date) and each completed 

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

Statements”); 

(l) at least ten (10) business days prior to the Closing Date, the Recipient shall have 

delivered to the Investor (i) a report, in a form substantially similar to that posted on Investor’s 

ECIP website, setting forth its calculation of Qualified Lending for the annual period ending on 

September 30, 2020 (the “Initial Supplemental Report”) and (ii) a certification signed by the 

Recipient’s principal executive officer or principal financial officer (each as defined in the ECIP 

Interim Final Rule), certifying to the Investor that the information provided in the Initial 

Supplemental Report is accurate; and

(m) at least ten (10) business days prior to the Closing Date, the Recipient shall have 

delivered to the Investor and the Appropriate Federal Banking Agency, an Investment and Lending 

Plan describing to the satisfaction of the Investor: (i) how the Recipient’s business strategy and 

operating goals will address the community development needs in communities that may be 

disproportionately impacted by the economic effects of COVID-19, which includes the needs of 

small businesses, consumers, nonprofit organizations and other projects in Target Communities 

(ii) a plan to provide community outreach and communication; and (iii) how the Recipient plans 

to expand or maintain significant lending or investment activity in low- or moderate-income and 

minority communities, especially those that may be disproportionately impacted by COVID-19, 

to historically disadvantaged borrowers, and to minorities that have significant unmet capital or 

financial services needs.

ARTICLE III

REPRESENTATIONS AND WARRANTIES

Section 3.1 Representations and Warranties of the Recipient. Except as Previously 

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

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

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

organized and is validly existing and, if applicable, 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 Material Adverse Effect, has been duly qualified as a foreign corporation for the transaction 

of business and, if applicable, is in good standing under the laws of each other jurisdiction in which 

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

subsidiary of the Recipient that would be considered a “significant subsidiary” within the meaning 

of Rule 1-02(w) of Regulation S-X (a “Significant Subsidiary”) under the Securities Act of 1933 

(the “Securities Act”), has been duly organized and is validly existing and, if applicable, in good 

standing under the laws of its jurisdiction of organization. The Charter and bylaws of the Recipient, 

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.
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(b) Capitalization.

(i) If the Recipient is a mutual institution: The authorized and outstanding 

Equity instruments of the Recipient and any authorized or outstanding securities 

convertible into, or exercisable or exchangeable for, Equity, as of the Capitalization Date 

are set forth on Schedule B. The outstanding Equity in the Recipient has 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). On the 

Signing Date, the Recipient does not have outstanding any securities or other obligations 

providing the holder the right to acquire its Equity that are not reserved for issuance as 

specified on Schedule B, and the Recipient has not made any other commitment to 

authorize, issue or sell any Equity that is not specified on Schedule B. Since the 

Capitalization Date, the Recipient has not issued any Equity, other than (i) Equity issued 

upon the exercise of options or delivered under other equity-based awards or other 

convertible securities or warrants which were issued and outstanding on the Capitalization 

Date and disclosed on Schedule B and (ii) as disclosed on Schedule B. Each holder of five 

percent (5%) or more of the Equity of the Recipient and such holder’s primary address are 

set forth on Schedule B.

(ii) If the Recipient is an S Corp: The Recipient maintains only one class of 

equity security. The authorized capital stock of the Recipient, and the outstanding capital 

stock of the Recipient (including securities convertible into, or exercisable or exchangeable 

for, capital stock of the Recipient) as of the Capitalization Date is set forth on Schedule B. 

The outstanding shares of capital stock of the Recipient 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). On the Signing Date, the 

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

the right to acquire its Equity that is not reserved for issuance as specified on Schedule B, 

and the Recipient has not made any other commitment to authorize, issue or sell any Equity. 

Since the Capitalization Date, the Recipient has not issued any Equity, other than shares 

issued upon the exercise of options or delivered under other equity-based awards or other 

convertible securities or warrants which were issued and outstanding on the Capitalization 

Date and disclosed on Schedule B. Each holder of five percent (5%) or more of the Equity 

in the Recipient and such holder’s primary address are set forth on Schedule B.

(c) Subordinated Debt; Enforceability.

(i) This Agreement has been duly authorized, executed and delivered and is, 

and the Subordinated Debt, when executed and delivered, will be, legal, valid and binding 

obligations of the Recipient, each enforceable in accordance with its respective terms, 

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

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

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

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

(“Bankruptcy Exceptions”). The aggregate principal amount of the Subordinated Debt does 

not exceed the maximum specified in the Letter Agreement.
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(ii) The Subordinated Debt does not constitute a separate class of equity 

securities, is subordinate and junior in right of payment to the Senior Indebtedness to the 

extent set forth in Article VII hereof, and are senior to the Recipient’s Equity (and, if the 

Recipient is an S Corp, any other class of equity in the event the Recipient ceases to be a 

validly electing S corporation within the meaning of Sections 1361 and 1362 of the Code) 

whether or not issued or outstanding, with respect to the distribution of assets in the event 

of any dissolution, liquidation or winding up of the Recipient.

(d) Entity Status; Eligible Financial Institution Status; ECIP Application Matters.

(i) The Recipient satisfies the definition of “Eligible Financial Institution” and 

is in compliance with Section 104A of the Community Development Banking Act, and all 

rules and regulations issued by the Investor thereunder, including the ECIP Interim Final 

Rule.

(ii) The (A) information provided by the Recipient in the ECIP Application is 

true, correct and complete in all material respects and (B) projections included in the 

Investment and Lending Plan submitted as part of the ECIP Application were reasonable 

on the date the ECIP Application was submitted to the Investor.

(iii) Neither the Recipient nor any Recipient Subsidiary is a “covered entity” as 

defined in Section 104A(h)(2)(ii) of the Community Development Banking Act.

(iv) The Recipient is not ineligible to participate in ECIP under Section 104A(i), 

or any other provision, of the Community Development Banking Act.

(v) If the Recipient is an S Corp, the Recipient (A) is a validly electing S 

corporation under Sections 1361 and 1362 of the Code (an “S Corp”), and each Recipient 

Subsidiary is a “qualified subchapter S subsidiary” within the meaning of Section 

1361(b)(3)(B) of the Code, (B) has not and the Recipient Subsidiaries and the stockholders 

of the Recipient have not taken any action which would invalidate such elections, (C) is 

either (1) a U.S. bank or U.S. savings association not controlled by a Bank Holding 

Company or Savings and Loan Holding Company; (2) a top-tier U.S. Bank Holding 

Company that engages predominately in activities that are permitted for financial holding 

companies under relevant law, (3) a top-tier U.S. Savings and Loan Holding Company, 

which engages solely or predominately in activities that are permitted for financial holding 

companies under relevant law or (4) a U.S. bank or U.S. savings association that is a 

qualifying S Corp subsidiary that is controlled by a Bank Holding Company or Savings 

and Loan Holding Company that itself is a S Corp and that does not engage solely or 

predominately in activities that are permitted for financial holding companies under 

relevant law and (D) has paid all dividends that are (i) distributed to stockholders in order 

to fund their individual tax payments on allocable taxable income and (ii) required by any 

agreement among stockholders.

(e) Authorization, No Conflict.

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

this Agreement and to carry out its obligations hereunder (which includes the issuance of 
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the Subordinated Debt) and, when issued, under the Subordinated Debt. The execution, 

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

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

corporate action on the part of the Recipient and the holders of its Equity (including nonMember holders in the case of mutual institutions) (collectively, “Equityholders”), and no 

further approval or authorization is required on the part of the Recipient. The resolutions 

of the Board of Directors authorizing the execution and delivery of this Agreement and the 

performance of the Recipient’s obligations hereunder, including the issuance of the 

Subordinated Debt, a copy of which has 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.

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

Agreement and the consummation of the transactions contemplated hereby and compliance 

by the Recipient 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 Recipient or any subsidiary of the Recipient (each 

subsidiary, a “Recipient Subsidiary” and, collectively, the “Recipient Subsidiaries”) under 

any of the terms, conditions or provisions of (x) its organizational documents or (y) any 

note, bond, mortgage, indenture, deed of trust, license, lease, agreement or other instrument 

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

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

Subsidiary or any of the properties or assets of the Recipient or any Recipient 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 Recipient or any Recipient 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 Material Adverse Effect.

(iii) Other than 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 Recipient in connection 

with the consummation by the Recipient 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 Material Adverse Effect.

(f) Charter; Bylaws; Agreements Among Equityholders; Anti-Takeover Provisions 

and Rights Plan. 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 

Recipient’s Charter and bylaws, and any other provisions of any applicable “moratorium”, “control 
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share”, “fair price”, “interested stockholder” or other anti-takeover laws and regulations of any 

jurisdiction.

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

for which financial statements are included in the Recipient 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 Material Adverse Effect, 

except as disclosed on Schedule C.

(h) Recipient Financial Statements. The Recipient Financial Statements present fairly 

in all material respects the consolidated financial position of the Recipient 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 Recipient 

and the Recipient Subsidiaries.

(i) Reports.

(i) Since December 31, 2019, the Recipient and each Recipient 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 “Recipient 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 Material Adverse Effect. As of their 

respective dates of filing, the Recipient 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 Recipient and 

the Recipient 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 Recipient or the 

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

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

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

accounting controls described below in this Section 3.1(i)(ii). The Recipient (A) has 

implemented and maintains adequate disclosure controls and procedures to ensure that 

material information relating to the Recipient, including the consolidated Recipient 

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

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

evaluation prior to the Signing Date, to the Recipient’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 Recipient’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 Recipient’s internal controls over financial 

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

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

otherwise) which are not properly reflected or reserved against in the Recipient 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 Material Adverse Effect.

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

has taken any action (including any offering of any securities of the Recipient under circumstances 

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

Debt under the Securities Act, and the rules and regulations of the Securities and Exchange 

Commission (the “SEC”) promulgated thereunder), which might subject the offering, issuance or 

sale of any of the Subordinated Debt to Investor pursuant to this Agreement to the registration 

requirements of the Securities Act, or, if the Recipient is a national bank or federal savings 

association, the registration requirements of Part 16—Securities Offering Disclosure Rules of the 

Office of the Comptroller of the Currency (12 C.F.R. Part 16) (“Part 16”). The offering of the 

Subordinated Debt is exempt from registration under the Securities Act pursuant to 

Section 3(a)(2), 3(a)(5) or 4(a)(2) 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 Material Adverse 

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

suit, investigation or proceeding, against the Recipient or any Recipient Subsidiary or to which 

any of their assets are subject nor is the Recipient or any Recipient 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 Recipient or any 

Recipient Subsidiaries. There is no claim, action, suit, investigation or proceeding pending or, to 

the Recipient’s knowledge, threatened against any institution-affiliated party (as defined in 12 

U.S.C. § 1813(u)) of the Recipient or any of the IDI Subsidiaries that, if determined or resolved in 

a manner adverse to such institution-affiliated party, could result in such institution-affiliated party 

being prohibited from participation in the conduct of the affairs of any financial institution or 

holding company of any financial institution and, to the Recipient’s knowledge, there are no facts 

or circumstances that could reasonably be expected to provide a basis for any such claim, action, 

suit, investigation or proceeding.

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

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

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 Recipient or such Recipient 

Subsidiary. The Recipient has all permits, licenses, franchises, authorizations, orders and 

approvals of, and has made all filings, applications and registrations with, Governmental Entities 

and third parties that are required in order to permit the Recipient to pay interest on the 

Subordinated Debt on the Interest Payment Dates set forth in the form of Subordinated Security, 

except such as may be required to be obtained or made after the Closing Date under federal or state 
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laws or regulations relating to capital adequacy, including, as applicable, pursuant to 12 C.F.R. 

Part 3, 12 C.F.R. Part 6, 12 C.F.R. Part 208, 12 C.F.R. Part 217 and 12 C.F.R. Part 324. Except as 

set forth on Schedule E, the Recipient and the Recipient Subsidiaries have complied in all respects 

and are not in default or violation of, and none of them is, to the knowledge of the Recipient, under 

investigation with respect to or, to the knowledge of the Recipient, 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 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 Recipient or any Recipient Subsidiary that would, individually or 

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

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

either individually or in the aggregate, a Material Adverse Effect: (i) each “employee benefit plan” 

(within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974 

(“ERISA”)) providing benefits to any current or former employee, officer or director of the 

Recipient 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 (the “Code”)) that is sponsored, maintained or contributed to by the 

Recipient or any member of its Controlled Group and for which the Recipient 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 Recipient or any member of its Controlled Group previously maintained or contributed to 

in the six (6) years prior to the Signing Date), (1) no “reportable event” (within the meaning of 

Section 4043(c) of ERISA), other than a reportable event for which the notice period referred to 

in Section 4043(c) of ERISA has been waived, has occurred in the three years prior to the Signing 

Date or is reasonably expected to occur, (2) no “accumulated funding deficiency” (within the 

meaning of Section 302 of ERISA or Section 412 of the Code), whether or not waived, has 

occurred in the three years prior to the Signing Date or is reasonably expected to occur, (3) the fair 

market value of the assets under each Plan exceeds the present value of all benefits accrued under 

such Plan (determined based on the assumptions used to fund such Plan) and (4) neither the 

Recipient nor any member of its Controlled Group has incurred in the six (6) 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) with respect to 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.
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(o) Taxes. Except as would not, individually or in the aggregate, reasonably be 

expected to have a Material Adverse Effect, (i) the Recipient and the Recipient 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 Recipient or any of the Recipient Subsidiaries, nor does the Recipient 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 Material Adverse Effect, the Recipient and the Recipient 

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 Material Adverse Effect, the Recipient and the Recipient 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 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 Recipient or any Recipient Subsidiary, any liability relating to the release of 

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

regulation or ordinance, including the Comprehensive Environmental Response, 

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

threatened against the Recipient or any Recipient Subsidiary;

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

proceeding, claim or action; and

(iii) neither the Recipient nor any Recipient 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 Material Adverse Effect, all derivative instruments, 

including, swaps, caps, floors and option agreements, whether entered into for the Recipient’s own 

account, or for the account of one or more of the Recipient 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 Recipient or one of the 

Recipient Subsidiaries, enforceable in accordance with its terms, except as may be limited by the 
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Bankruptcy Exceptions. Neither the Recipient or the Recipient Subsidiaries, nor, to the knowledge 

of the Recipient, 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 Material Adverse Effect.

(s) Agreements with Regulatory Agencies. For the avoidance of doubt, this 

Section 3.1(s) shall not be deemed to contemplate or require any representation or disclosure 

including on Schedule F that would involve “confidential supervisory information” or other 

similar information the disclosure of which is restricted pursuant to laws and regulations to which 

the Recipient is subject. Except as set forth on Schedule F, neither the Recipient nor any Recipient 

Subsidiary is subject to any material cease-and-desist or other similar order or enforcement or 

supervisory 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, 2017, 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 

Recipient or any Recipient Subsidiary been advised since December 31, 2017, by any such 

Governmental Entity that it is considering issuing, initiating, ordering, or requesting any such 

Regulatory Agreement. The Recipient and each Recipient Subsidiary is in compliance in all 

material respects with each Regulatory Agreement to which it is party or subject, and neither the 

Recipient nor any Recipient Subsidiary has received any notice from any Governmental Entity 

indicating that either the Recipient or any Recipient Subsidiary is not in compliance in all material 

respects with any such Regulatory Agreement. 

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

insurers against such risks and in such amounts as the management of the Recipient reasonably 

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

Recipient Subsidiaries are in material compliance with their insurance policies and are not in 

default under any of the material terms thereof, each such policy is outstanding and in full force 

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

claims thereunder have been filed in due and timely fashion, except, in each case, as would not, 

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

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

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

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 Recipient nor any 

of the Recipient Subsidiaries is materially infringing, diluting, misappropriating or violating, nor 

has the Recipient or any of the Recipient Subsidiaries received any written (or, to the knowledge 

of the Recipient, oral) communications alleging that any of them has materially infringed, diluted, 
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

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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 Material Adverse 

Effect, to the Recipient’s knowledge, no other person is infringing, diluting, misappropriating or 

violating, nor has the Recipient or any or the Recipient Subsidiaries sent any written 

communications since December 31, 2019, alleging that any person has infringed, diluted, 

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

Recipient 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 Recipient or any Recipient Subsidiary.

(w) Disclosure Schedule. The Recipient 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) Related Party Transactions. Neither the Recipient nor any Recipient Subsidiary has 

made any extension of credit to any director or Executive Officer of the Recipient or any Recipient 

Subsidiary, any holder of five percent (5%) or more of the Recipient’s issued and outstanding 

capital stock, or any of their respective spouses or children or any Affiliate of any of the foregoing 

(each, a “Related Party”), other than in compliance with 12 C.F.R. Part 215 (Regulation O). 

Except as disclosed on Schedule G, to the Recipient’s knowledge, no Related Party has any (i) 

material commercial, industrial, banking, consulting, legal, accounting, charitable or familial 

relationship with any vendor or material customer of the Recipient or any Recipient Subsidiary 

that is not on arms-length terms, or (ii) direct or indirect ownership interest in any person or entity 

with which the Recipient or any Recipient Subsidiary has a material business relationship that is 

not on arms-length terms (not including publicly-traded entities in which such person owns less 

than two percent (2%) of the outstanding capital stock).

ARTICLE IV

COVENANTS

Section 4.1 Affirmative Covenants. The Recipient 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 

Recipient shall promptly notify the Investor of (i) any fact, event or circumstance of which it is 
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aware and which would reasonably be expected to cause any representation or warranty of the 

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

any covenant or agreement of the Recipient 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 Recipient is aware and which, 

individually or in the aggregate, has had or would reasonably be expected to have a 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 and Information.

(i) The provisions of this Section 4.1(c)(i) shall apply, (x) with respect to the 

Investor, from the Signing Date until the date when the Investor or one of its Affiliates no 

longer owns, directly or indirectly, any Subordinated Debt and (y) with respect to the 

Inspector General of the Treasury and the Comptroller General of the United States, from 

and after the Signing Date but, after the date when the Investor or one of its Affiliates no 

longer owns, directly or indirectly, any Subordinated Debt, only with respect to the period 

in which the Investor or one of its Affiliates directly or indirectly owned any Subordinated 

Debt. Subject to the foregoing, and limited solely to information determined by the Investor 

to be relevant to the Subordinated Debt, the Recipient will permit, and shall cause each of 

the Recipient Subsidiaries to permit, the Investor, the Inspector General of the Treasury 

and the Comptroller General of the United States and their respective agents, consultants, 

contractors and advisors to (x) examine any books, papers, records, Tax returns (including 

all schedules and attachments thereto), data and other information, (y) make copies thereof 

and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient 

Subsidiaries with the personnel (including the principal officers) of the Recipient and the 

Recipient Subsidiaries, all upon reasonable notice, provided, that:

(A) any examinations and discussions pursuant to this Section 4.1(c)(i)

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

interfere unreasonably with the conduct of the business of the Recipient and the 

Recipient Subsidiaries;

(B) neither the Recipient nor any Recipient Subsidiary shall be required 

by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by 

applicable law or regulation (including laws and regulations relating to the use or 

disclosure of confidential supervisory information), or (y) that such disclosure 

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

Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of 

privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient 

shall use commercially reasonable efforts to make appropriate substitute disclosure 

arrangements under circumstances where the restrictions in this clause (B) apply);

(C) the obligations of the Recipient and the Recipient Subsidiaries to 

disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of 

the Treasury, the Comptroller General of the United States and their respective 

agents, consultants, contractors or advisors, shall be subject to the agreement by the 
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Inspector General of the Treasury or the Comptroller General of the United States, 

as applicable, with respect to documents obtained under this Section 4.1(c)(i), 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 Recipient as to information that should be afforded 

confidential treatment, as appropriate; and

(D) for avoidance of doubt, any investigation or discussions pursuant to 

this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any 

office of the Recipient or any Recipient Subsidiary.

(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant 

to Section 4.1(c)(iii), from the Signing Date until the date on which all the Subordinated 

Debt has been redeemed in whole, the Recipient 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 Recipient, 

and in any event within one hundred twenty (120) days thereafter, a consolidated 

balance sheet of the Recipient as of the end of such fiscal year, and consolidated 

statements of income, retained earnings and cash flows of the Recipient 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 Recipient and 

which shall be audited to the extent audited financial statements are available;

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

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

provided to Equityholders of the Recipient;

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

the Recipient’s internal controls, a copy of such assessment (other than assessments 

provided by the Appropriate Federal Banking Agency or the Appropriate State 

Banking Agency that the Recipient is prohibited by applicable law or regulation 

from disclosing to the Investor);

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

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

(E) at the same time as such items are sent to all Equityholders in the 

case of S Corps or Members in the case of mutual institutions, copies of any 

information or documents, excluding, if the Recipient is a mutual institution, any 

general solicitations or advertisements for services and products, sent by the 

Recipient to its Members; provided, however that, notwithstanding clauses (A)-(E) 

of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to 

prepare audited financial statements if it does not otherwise prepare audited 

financial statements and shall not require the Recipient to submit Call Reports to 

the Investor.
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

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(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the 

Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i)

may be assigned by the Investor to a transferee or assignee of the Subordinated Debt with 

a face value of no less than an amount equal to ten percent (10%) of the Purchase Price.

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

Inspector General of the Treasury, the Comptroller General of the United States or any 

other applicable Governmental Entity has under law.

(v) The Recipient shall provide to the Investor all such information as the 

Investor may request from time to time related to the study under Section 525 of Division N 

of the Consolidated Appropriations Act, 2021 and related studies.

(d) Certifications. Subject to the assignment of the rights under Section 4.1(d)(i)

pursuant to Section 4.1(c)(iii), the Recipient shall provide the following certifications to the 

Investor:

(i) Upon delivery of each Supplemental Report, the Recipient’s principal 

executive officer or principal financial officer (each as defined in the ECIP Interim Final 

Rule) will certify to the Investor that the information provided on each Supplemental 

Report is accurate;

(ii) Following the Closing Date, within one hundred twenty (120) days of the 

end of each fiscal year of the Recipient during which a Supplemental Report is submitted, 

the Recipient will deliver to the Investor (1) a certification by the Recipient that the 

processes and controls used to generate the Supplemental Reports are satisfactory and 

(2) an attestation with respect to the processes and controls used to generate the 

Supplemental Reports from the Recipient’s independent auditor if the Recipient is required 

to include an attestation as to its internal control over financial reporting in connection with 

the filing of audited financial statements with any Governmental Entity or self-regulatory 

agency; and

(iii) By December 31 of the calendar year in which the Closing occurs and, 

thereafter, annually, for so long as required by the ECIP Interim Final Rule, a certification 

substantially in the form attached hereto as Annex D by two of the Recipient’s Senior 

Executive Officers (one of which must be the Recipient’s principal executive officer or 

principal financial officer) (each as defined in the ECIP Interim Final Rule) that the 

Recipient is in compliance with each of the excessive compensation, severance pay and 

excessive or luxury expenditures requirements and limitations on capital distributions set 

forth in ECIP Interim Final Rule, as published and in effect at the time of the certification; 

provided that without the consent of the Investor, the date of such annual certifications 

shall not be later than nor more than 30 days earlier than the anniversary date for the first 

annual certification following the Closing.

The Recipient shall immediately notify the Investor upon the occurrence of any 

breach of any of the covenants set forth in this Section 4.1(d).
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(e) Compensation Matters.

(i) Restrictions on compensation and severance payments. During the ECIP 

Period, the Recipient shall comply, and take all necessary action to ensure that any 

Recipient Subsidiary complies, in all respects with the requirements set forth in the ECIP 

Interim Final Rule regarding restrictions on executive compensation and severance 

payments, and any material changes to the policies and procedures related thereto.

(ii) Excessive or luxury expenditures. Within ninety (90) days of the Closing 

Date, the Board of Directors shall adopt an excessive or luxury expenditures policy, 

provide such policy to the Investor and the Recipient’s Appropriate Federal Banking 

Agency, and post the text of such policy on its Internet website, if the Recipient maintains 

an Internet website. The Recipient shall comply, and take all necessary action to ensure 

that any Recipient Subsidiary complies, in all respects with the requirements set forth in 

the ECIP Interim Final Rule regarding restrictions on excessive or luxury expenditures, 

and any material changes to the excessive or luxury expenditures policy adopted by the 

Board of Directors.

(f) Capital Distributions. During the ECIP Period, the Recipient shall comply with 

each of the restrictions on capital distributions (as defined in 31 C.F.R. § 35.21) applicable to it as 

set forth in the ECIP Interim Final Rule.

(g) Payment of Principal and Interest. The Recipient covenants and agrees for the 

benefit of the Holders of the Subordinated Debt that it will duly and punctually pay or cause to be 

paid the principal of and interest on the Subordinated Debt at the respective times and in the 

manner provided herein and in the Subordinated Debt. Payment of the principal of and interest on 

the Subordinated Debt due on the Maturity Date will be made by the Recipient in immediately 

available funds against presentation and surrender of the Subordinated Debt. Subject to the terms 

of the Subordinated Debt, each installment of interest on the Subordinated Debt due on an Interest 

Payment Date other than the Maturity Date shall be paid by wire transfer of immediately available 

funds to any account with a banking institution located in the United States designated by such 

Holder no later than the related Regular Record Date. Notwithstanding anything herein to the 

contrary, if the Recipient is an insured depository institution, (1) the Recipient shall not pay any 

interest on the Subordinated Debt while it remains in default in the payment of any assessment to 

the Federal Deposit Insurance Corporation if payment of such interest would then be prohibited 

by 12 U.S.C. Section 1828(b) (or any successor statute), and (2) if the Recipient becomes a 

critically undercapitalized depository institution, the Recipient shall not make any payments of 

principal or interest on the Subordinated Debt if the Recipient would then be prohibited from 

making any such payments by 12 U.S.C. Section 1831o (or any successor statute), provided, in 

each case, the Recipient shall not be relieved from making such payments of principal or interest 

on the Subordinated Debt when permitted by applicable law.

(h) Qualified Lending Reports.

(i) Following the Closing Date, for the period through the earlier of (x) the date 

on which the Subordinated Debt is redeemed in whole and (y) the end of the period during 

which the interest rate applicable to the Subordinated Debt adjusts based on the 
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

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Supplemental Reports, the Recipient shall submit to the Investor a report in a form 

substantially similar to that posted on Investor’s ECIP website (the “Quarterly 

Supplemental Report”), in accordance with the submission instructions set forth in such 

Quarterly Supplemental Report concurrently with (A) in the case of a Recipient that is an 

insured depository institution, the submission of the Call Report for the quarter covered by 

the Quarterly Supplemental Report, (B) with respect to a Bank Holding Company or 

Savings and Loan Holding Company that files on Reporting Form FR Y-9SP or Reporting 

Form FR Y-9LP but not FR Y-9C, the submission of its IDI Subsidiary’s(ies’) Call Report 

for the quarter covered by the Quarterly Supplemental Report and (C) in the case of a 

Recipient that is a Bank Holding Company or Savings and Loan Holding Company that 

files on Reporting Form FR Y-9C, the Form FR Y-9C for the quarter covered by the 

Quarterly Supplemental Report, as applicable, setting forth an updated calculation of (i) the 

amount of Qualified Lending as of the applicable quarter end date and (ii) as applicable, 

the difference between the Baseline and such updated amount of Qualified Lending;

(ii) If the Investor determines that the Initial Supplemental Report or any 

Quarterly Supplemental Report is inaccurate, the Investor may require the Recipient to 

restate the Initial Supplemental Report or any applicable Quarterly Supplemental Report, 

and (i) the “Baseline Qualified Lending” on such restated Initial Supplemental Report shall 

become the Baseline or (ii) the Qualified Lending on such restated Quarterly Supplemental 

Report shall become the Qualified Lending, as applicable; 

(iii) If any Initial Supplemental Report or Quarterly Supplemental Report is 

inaccurate, the Investor shall be entitled to recover from the Recipient, upon demand, the 

amount of any difference between (x) the amount of the interest payment(s) actually made 

to the Investor based on such inaccurate report and (y) the correct amount of the interest 

payment(s) that should have been made, but for such inaccuracy; provided, that to the 

extent such inaccuracy resulted in an overpayment of interest, the Investor shall not have 

any obligation to return to or otherwise reimburse the Recipient for such excess interest 

payment. The Recipient shall provide the Investor with a written description of any such 

inaccuracy within three (3) business days after the Recipient’s discovery thereof;

(iv) If the Investor transfers the Subordinated Debt, then any amounts payable 

in respect of Subordinated Debt that have been transferred shall, if and as directed by the 

Investor, be paid to the transferee of the Subordinated Debt; 

(v) The Investor shall have the right from time to time to modify the Quarterly 

Supplemental Report, by posting an amended and restated version of the Quarterly 

Supplemental Report on its website, to conform the Quarterly Supplemental Report to 

(A) reflect changes in GAAP, (B) reflect changes in the form or content of, or definitions 

used in, Call Reports, Reporting Form FR Y-9C or any other applicable reporting form or 

(C) to make clarifications, technical corrections and/or any other adjustments as the 

Investor determines to be necessary or appropriate. Notwithstanding anything herein to the 

contrary, upon posting by the Investor on its website, the Quarterly Supplemental Report 

shall be deemed to be amended and restated as so posted, without the need for any further 

act on the part of any person or entity. If any such modification includes a change to the 

caption or number of any line item of the Quarterly Supplemental Report, any reference 
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herein to such line item shall thereafter be a reference to such re-captioned or renumbered 

line item; 

(vi) The Recipient’s financial records shall be maintained in such a manner and 

scope so as to ensure that the Initial Supplemental Report and Quarterly Supplemental 

Reports can be prepared and filed in accordance with the instructions thereto and will 

reflect a fair presentation of the Recipient’s, and its Affiliates’ as applicable, Qualified 

Lending and Deep Impact Lending, as defined in such Supplemental Report; and

(vii) The Recipient shall maintain in its files a signed and attested record of its 

completed Initial Supplemental Report, any Quarterly Supplemental Reports, any amended 

reports, and the methodology used to generate the data in the Initial Supplemental Report 

and Quarterly Supplemental Reports, for five (5) years after the report date, unless any 

applicable state requirements mandate a longer retention period.

(i) Reporting Requirements. Prior to the date on which all the Subordinated Debt has 

been redeemed in whole, the Recipient covenants and agrees that, upon the written request of the 

Investor or any Holder to which rights are assigned pursuant to Section 1.9 of Annex E and at all 

times from and after such request, (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 Recipient becomes subject to the 

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

and conditions set forth in Annex E.

(j) Nonpayment of Interest. Whenever interest payable on the Subordinated Debt will 

not be paid in full for any Interest Period (as defined in the Subordinated Debt), including 

nonpayment because interest will be deferred pursuant to the applicable provisions of this 

Agreement and the Subordinated Security, then no later than three (3) business days prior to the 

applicable Interest Payment Date (as defined in the Subordinated Debt) the principal executive 

officer and principal financial officer of the Recipient shall provide written notice, in a form 

reasonably satisfactory to the Investor, informing the Investor that the Recipient will not make the 

applicable interest payment and providing the rationale of the Recipient for not making such 

interest payment.

(k) Compliance with Federal Law. The Recipient shall comply with, and hereby 

assures that it will comply with, all applicable federal statutes and regulations relating to 

nondiscrimination including: (i) Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et 

seq.), including Treasury’s implementing regulations at 31 C.F.R. Part 22; (ii) Section 504 of the 

Rehabilitation Act of 1973, as amended (29 U.S.C. § 794); and (iii) the Age Discrimination Act 

of 1975, as amended (42 U.S.C. §§ 6101–6107), including Treasury’s implementing regulations 

at 31 C.F.R. Part 23 and the general age discrimination regulations at 45 C.F.R. Part 90.

(l) Transactions with Affiliates. Until such time as the Investor or one of its Affiliates, 

directly or indirectly, ceases to own any Subordinated Debt, (i) the Recipient, if subject to Section 

23A and Section 23B of the Federal Reserve Act (12 U.S.C. §§ 371c and 371c-1) shall comply 

with such Sections and Regulation W promulgated thereunder (12 C.F.R. Part 223) and (ii) the 

Recipient, if not subject to such Sections and Regulation, shall comply with such Sections and 
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

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Regulation to the same extent as if the Recipient were a member of the Federal Reserve System, 

except for any transactions between a Bank Holding Company or Savings and Loan Holding 

Company and its IDI Subsidiaries.

(m) Outreach Plan. The Recipient shall provide community outreach and 

communication, where appropriate, describing the availability and application process of receiving 

loans made possible by the ECIP through organizations, trade associations, and individuals that 

represent or work within or are members of minority communities. 

Section 4.2 Negative Covenants. The Recipient hereby covenants and agrees with the 

Investor that:

(a) Certain Transactions. The Recipient shall not merge or consolidate with, or sell, 

transfer, convey 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 Recipient), expressly assumes the due and punctual performance and observance of each and 

every covenant, agreement and condition of this Agreement and the Subordinated Debt to be 

performed and observed by the Recipient, including the due and punctual payment of the principal 

of and interest on the Subordinated Debt, and, if applicable, the issuance by the successor party of 

an instrument equivalent to the Subordinated Debt. Any such successor entity must also qualify 

at the time of the transaction as an Eligible Financial Institution unless prior written approval of 

the Investor is obtained.

(b) S Corporation Status. If the Recipient is an S Corp as of the Signing Date, the 

Recipient shall not revoke or change its status for federal income tax purposes as an S corporation 

within the meaning of Sections 1361 and 1362 of the Code or the status of any Recipient 

Subsidiary as a QSub within the meaning of Section 1361(b)(3)(B) of the Code without the prior 

written consent of the Majority Holders.

(c) CDFI and MDI Status. If the Recipient is a CDFI as of the Signing Date, the 

Recipient shall not revoke its status as a CDFI and shall use its reasonable best efforts to prevent 

its status as a CDFI from being changed, within the meaning of 12 U.S.C. § 4702 and in accordance 

with 12 C.F.R. § 1805.201. If the Recipient is an MDI as of the Signing Date, the Recipient shall 

not revoke its designation as an MDI and shall use its reasonable best efforts to maintain its 

designation as an MDI.

(d) Restriction on Dividends and Repurchases.

(i) In the case of mutual institutions, (A) no dividends may be declared or paid 

by the Recipient on any Equity or other capital instruments it is authorized to issue under 

applicable law, nor may any discretionary payments be made on any other securities or 

instruments that are pari passu with or junior to the Subordinated Debt with respect to 

distributions or ranking in liquidation, unless all accrued and unpaid interest for all past 

Interest Periods on the Subordinated Debt has been paid in full, and there is no unpaid 

Deferred Interest, and (B) the Recipient may not repurchase or redeem any Equity or other 

capital instruments, or any securities or instruments ranking pari passu with or junior to 
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the Subordinated Debt, unless all accrued and unpaid interest for all past Interest Periods 

on the Subordinated Debt has been paid in full, and there is no unpaid Deferred Interest.

(ii) In the case of S corps, (A) no dividends may be declared or paid by the 

Recipient on any securities or other instruments it is authorized to issue under applicable 

law, nor may any discretionary payments be made on any other securities or instruments, 

that are pari passu with or junior to the Subordinated Debt with respect to distributions or 

ranking in liquidation unless all accrued and unpaid interest for all past Interest Periods on 

the Subordinated Debt has been paid in full, and there is no unpaid Deferred Interest, and 

(B) the Recipient may not repurchase or redeem any securities or instruments ranking pari 

passu with or junior to the Subordinated Debt, including Equity or an equivalent equity 

interest, unless all accrued and unpaid interest for all past Interest Periods on the 

Subordinated Debt has been paid in full, and there is no unpaid Deferred Interest. 

Notwithstanding anything to the contrary above, the Recipient may make capital 

distributions, or purchase or redeem securities that are pari passu with or junior to the 

Subordinated Debt, to the extent reasonably required to cover its owners’ tax obligations 

in respect of the entity’s earnings. Such distributions shall be subject to an annual 

reconciliation, with any surplus or deficiency to be deducted or added to distributions, as 

applicable, in the following year.

(iii) For the avoidance of doubt, the foregoing contractual restrictions shall not 

restrict the Recipient from making required, non-discretionary payments on securities or 

instruments that are pari passu with or junior to the Subordinated Debt it has issued, such 

as payments at stated maturity in accordance with an instrument’s terms or payments of 

interest that may not be deferred, and the foregoing contractual restrictions and clarification 

shall not supersede otherwise applicable limitations or determinations with respect to 

distributions or payments pursuant to the rules or regulations of any Appropriate Federal 

Banking Agency.

ARTICLE V

REMEDIES OF THE HOLDERS UPON EVENT OF DEFAULT AND OTHER 

BREACHES OR DEFAULTS

Section 5.1 Event of Default. “Event of Default” shall mean the occurrence or existence 

of any one or more of the following (whatever the reason for such and whether it shall be voluntary 

or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of 

any court or any order, rule or regulation of any administrative or governmental agency or body) 

with respect to the Subordinated Debt:

(a) if the Recipient is an insured depository institution, (i) the Recipient shall consent 

to the appointment of a receiver or other similar official (other than a conservator) in any 

liquidation, insolvency or similar proceeding with respect to the Recipient or all or substantially 

all of its property; or (ii) a court having jurisdiction in the premises or any administrative or 

governmental agency or body shall enter a decree or order for the appointment of a receiver or 

other similar official (other than a conservator) in any liquidation, insolvency or similar proceeding 
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

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with respect to the Recipient for all or substantially all of its property, and such decree or order 

shall have remained in force undischarged or unstayed for a period of sixty (60) days; or

(b) if the Recipient is a Bank Holding Company or Savings and Loan Holding 

Company, (i) the entry by a court having jurisdiction in the premises of (A) a decree or order for 

relief in respect of the Recipient or a Major Depository Institution Subsidiary in an involuntary 

case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or 

other similar law or (B) a decree or order appointing a custodian, receiver, liquidator, assignee, 

trustee, sequestrator or other similar official of the Recipient or a Major Depository Institution 

Subsidiary or of any substantial part of their respective property, or ordering the winding up or 

liquidation of their respective affairs, and the continuance of any such decree or order for relief or 

any such other decree or order unstayed and in effect for a period of sixty (60) consecutive days, 

or (ii) the commencement by the Recipient or a Major Depository Institution Subsidiary of a 

voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, 

reorganization or other similar law or the consent by the Recipient or a Major Depository 

Institution Subsidiary to the filing of such petition or to the appointment of or taking possession 

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

Recipient or such Major Depository Institution Subsidiary or of any substantial part of their 

respective property, or the making by the Recipient or such Major Depository Institution 

Subsidiary of an assignment for the benefit of creditors, or the admission by it in writing of its 

inability to pay its debts generally as they become due, or the taking of corporate action by the 

Recipient or a Major Depository Institution Subsidiary in furtherance of any such action.

Section 5.2 Acceleration and Other Remedies.

(a) When any Event of Default has occurred and is continuing, then principal and 

interest, and all fees, charges and other obligations payable hereunder and under the Transaction 

Documents, shall immediately become due and payable without presentment, demand, protest or 

notice of any kind. In addition, each Holder may exercise any and all remedies available to it under 

the Transaction Documents or applicable law. For the avoidance of doubt, there is no right of 

acceleration in the case of a default in the payment of principal of, premium, if any, or interest on, 

the Subordinated Debt or in the performance of any other obligation of the Recipient under this 

Agreement or the Subordinated Debt.

(b) Notwithstanding anything to the contrary herein, to the extent then required under 

or pursuant to applicable laws or regulations (including, without limitation, applicable capital 

regulations) then in effect, no repayment pursuant to an acceleration of maturity may be made on 

the Subordinated Debt without the prior written approval of any bank supervisory authority having 

jurisdiction over the Recipient and requiring such approval.

Section 5.3 Suits for Enforcement. In case any one or more Events of Default shall have 

occurred and be continuing, any Holder, subject to the terms of Article VII hereof, may proceed 

to protect and enforce its rights under this Article V by suit in equity or action at law. In the event 

of the failure by the Recipient to make payment of principal of or interest on the Subordinated 

Debt (and, in the case of payment of interest, such failure to pay shall have continued for two (2) 

business days), the Recipient will, upon written demand of any Holder, pay to such Holder the 

whole amount then due and payable (without acceleration) on such Holder’s Subordinated Debt, 
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with interest on the overdue amount at the rate borne by the Subordinated Debt to the extent such 

interest is legally enforceable. Such demand shall not serve to accelerate the Holder’s Subordinated 

Debt. If the Recipient fails to pay such amount upon such demand, the Holder may among other 

things, institute a judicial proceeding for the collection of such amount. It is agreed that in the 

event of such action, or any action between a Holder of the Subordinated Debt and the Recipient 

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

the Holder of the Subordinated Debt shall be entitled to receive all reasonable fees, costs and 

expenses incurred, including without limitation such reasonable fees and expenses of attorneys 

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

Section 5.4 Holders May File Proofs of Claim. In case there shall be pending 

receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, 

composition or other administrative or judicial proceeding relative to the Recipient or the property 

of the Recipient, any Holder, irrespective of whether the principal of the Subordinated Debt shall 

then be due and payable as therein expressed or by declaration or otherwise and irrespective of 

whether any such Holder shall have made any demand pursuant to the provisions of this 

Section 5.4, shall be entitled and empowered, by intervention in such proceedings or otherwise, to 

file and prove a claim or claims for the whole amount of principal and interest owing and unpaid 

in respect of the Subordinated Debt held by any such Holder and, in case of any administrative or 

judicial proceedings, to file such proofs of claim and other papers or documents as may be 

necessary or advisable in order to have the claims of any such Holder allowed in such 

administrative or judicial proceedings relative to the Recipient, or to the creditors or property of 

the Recipient, unless prohibited by applicable law and regulations, to vote in any election of a 

trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or 

insolvency proceedings or person performing similar functions in comparable proceedings, and to 

collect and receive any moneys or other property payable or deliverable to any such Holder on any 

such claims.

Section 5.5 Waiver of Past Defaults. The Majority Holders may on behalf of the Holders 

of all the Subordinated Debt waive any past default hereunder with respect to such Subordinated 

Debt and its consequences, except a default in the payment of principal or interest. Upon any such 

waiver, such default shall cease to exist, for every purpose of this Agreement except Section 5.7

through Section 5.9; but no such waiver shall extend to any subsequent or other default or impair 

any right consequent thereon or for any purpose to Section 5.7 through Section 5.9. This 

Section 5.5 shall apply only to the rights of the Holders in their capacity as such and, 

notwithstanding anything to the contrary in the preceding sentences of this Section 5.5, any waiver 

pursuant to this Section 5.5 shall not extend to the rights, remedies or consequences set forth in 

Section 5.7 through Section 5.9.

Section 5.6 Receivership. If the Recipient is an insured depository institution, it is 

expressly understood and agreed that the Federal Deposit Insurance Corporation, as receiver or 

conservator of the Recipient, shall have the right, but not the obligation, in the performance of its 

legal duties, and as part of any transaction or plan of reorganization or liquidation designed to 

protect or further the continued existence of the Recipient or the rights of any parties or agencies 

with an interest in, or claim against, the Recipient or its assets, to transfer or direct the transfer of 

the obligations of the Subordinated Debt to any national banking association, state bank or bank 

holding company selected by such official which shall expressly assume the obligation of the due 
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and punctual payment of the unpaid principal of, premium, if any, and interest on, the Subordinated 

Debt and the due and punctual performance of all covenants and conditions hereof; and that the 

completion of such transfer and assumption shall serve to supersede and void any default, 

acceleration or subordination which may have occurred, or which may occur due or related to such 

transaction, plan, transfer or assumption pursuant to the provisions of the Subordinated Debt, and 

shall serve to return the Holder of the Subordinated Debt to the same position, other than for 

substitution of the obligor, it would have occupied had no default, acceleration or subordination 

occurred.

Section 5.7 Rate Reductions in the Event of Breaches and Violations. If Treasury 

determines, in its sole discretion, that the Recipient has breached, violated or defaulted under 

(i) any covenant, agreement or obligation of the Recipient included in this Agreement or the 

Subordinated Debt, (ii) Section 104A of the Community Development Banking Act or the ECIP 

Interim Final Rule, or (iii) any additional rules or regulations established in connection with ECIP

that further the purposes of Section 104A of the Community Development Banking Act, Treasury 

may, in its sole discretion, determine that the Recipient shall not be eligible for any rate reduction 

with respect to the Subordinated Debt for such period as Treasury, in its sole discretion, shall 

determine. Any such determination shall cause the applicable interest rate of the Subordinated 

Debt to reset as specified in the Subordinated Security. Treasury shall provide notice to the 

Recipient of any determination with respect to the Recipient’s disqualification from eligibility for 

rate reductions or the termination of any such disqualification; provided that any failure by 

Treasury to provide notice of any such determination or defect in such notice or the transmission 

thereof shall not affect or prejudice Treasury’s rights or remedies under this Section 5.7 or the 

Subordinated Debt. Notwithstanding the foregoing, a default in the payment of interest shall not 

be subject to this Section 5.7.

Section 5.8 Recipient Breach, Violation or Default.

(a) If Treasury determines, in its sole discretion, that the Recipient or an Affiliate of 

the Recipient has breached, violated or defaulted under (i) any covenant, agreement or obligation 

of the Recipient or an Affiliate of the Recipient included in this Agreement or the Subordinated 

Debt, (ii) Section 104A of the Community Development Banking Act or the ECIP Interim Final 

Rule, or (iii) any additional rules or regulations established in connection with ECIP that further 

the purposes of Section 104A of the Community Development Banking Act, Treasury may, in its 

sole discretion, report such breach, violation or default to the CDFI Fund or other entities within 

or affiliated with Treasury. The Recipient acknowledges that any such report of a breach, violation 

or default may result in the Recipient becoming ineligible for awards or programs offered by the 

CDFI Fund or other entities within or affiliated with Treasury at that time or in the future in 

accordance with the terms and conditions of such awards or programs offered by the CDFI Fund 

or other entities within or affiliated with Treasury.

(b) The restrictions on, and notice requirement with respect to, the transferability of the 

Subordinated Debt set forth in Section 6.6(f)(v) shall cease to apply if Treasury determines, in its 

sole discretion, that the Recipient or an Affiliate of the Recipient has breached, violated or 

defaulted under (i) any covenant, agreement or obligation of the Recipient or an Affiliate of the 

Recipient included in this Agreement or the Subordinated Debt, (ii) Section 104A of the 

Community Development Banking Act or the ECIP Interim Final Rule, or (iii) any additional rules 
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or regulations established in connection with ECIP that further the purposes of Section 104A of 

the Community Development Banking Act.

Section 5.9 Additional Remedies.

(a) If Treasury determines, in its sole discretion, that the Recipient or an Affiliate of 

the Recipient has breached, violated or defaulted under (i) any covenant, agreement or obligation 

of the Recipient or an Affiliate of the Recipient included in this Agreement or the Subordinated 

Debt, (ii) Section 104A of the Community Development Banking Act or the ECIP Interim Final 

Rule, or (iii) any additional rules or regulations established in connection with ECIP that further 

the purposes of Section 104A of the Community Development Banking Act, Treasury may 

propose a remedy that Treasury determines, in its sole discretion, is proportional to the breach, 

violation or default. If Treasury makes such a determination and proposes a remedy under this 

Section 5.9(a), Treasury shall notify the Recipient in writing of its proposed determination of a 

breach, violation or default, provide an explanation of the nature of the breach, violation or default, 

and specify the proposed remedy. Upon receipt of such notice, the Recipient shall, within seven 

(7) days, accept Treasury’s proposed remedy, propose an alternative remedy, or provide 

information and documentation contesting Treasury’s proposed determination. Treasury shall 

consider any such submission by the Recipient and make a final written determination, which will 

state Treasury’s findings regarding the breach, violation or default and the remedy to be imposed.

(b) If Treasury makes a final determination under Section 5.9(a) that a breach, violation 

or default has occurred, Treasury may, in its sole discretion, require additional reporting or 

monitoring; initiate suspension or debarment proceedings as authorized under 2 C.F.R. Part 180; 

or take any such other action as Treasury, in its sole discretion, deems appropriate and determines, 

in its sole discretion, to be proportional to the breach, violation or default; provided, however, that

Treasury shall not require acceleration of the interest or principal on the Subordinated Debt as a 

remedy under this Section 5.9 and such acceleration shall be governed exclusively by Section 5.2.

(c) Treasury may make a final determination regarding a breach, violation or default 

without regard to Section 5.9(a) if Treasury determines, in its sole discretion, that such 

determination is necessary to protect a material interest of the federal government. In such event, 

Treasury shall notify the Recipient of the remedy that Treasury, in its sole discretion, shall impose, 

after which the Recipient may contest Treasury’s final determination or propose an alternative 

remedy in writing to Treasury. Following the receipt of such a submission by the Recipient, 

Treasury may, in its sole discretion, maintain or alter its final determination.

(d) Instead of, or in addition to, the remedies listed above, Treasury may refer any 

breach, violation or default or any allegations of fraud, waste, or abuse to the Inspector General of 

the Treasury.

(e) Notwithstanding the foregoing, a default in the payment of interest shall not be 

subject to this Section 5.9.
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

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ARTICLE VI

ADDITIONAL AGREEMENTS

Section 6.1 Purchase for Investment. The Investor acknowledges that the Subordinated 

Debt has not been registered under the Securities Act, or under any state securities laws (or, if the 

Recipient is a national bank or federal savings association, Part 16). The Investor acknowledges 

that the Subordinated Debt is not being sold pursuant to an indenture (an “Indenture”) qualified 

under the Trust Indenture Act of 1939 (the “Indenture Act”). The Investor (a) is acquiring the 

Subordinated Debt pursuant to an exemption from registration under the Securities Act (and, if the 

Recipient is a national bank or federal savings association, Part 16) and an exemption from 

qualification of an indenture under the Indenture Act, and is acquiring the Subordinated Debt 

solely for investment with no present intention to distribute the Subordinated Debt to any person 

in violation of the Securities Act or any applicable U.S. state securities laws (or if, applicable, 

Part 16), (b) will not sell or otherwise dispose of any of the Subordinated Debt, except in 

compliance with the registration requirements or exemption provisions of the Securities Act and 

any applicable U.S. state securities laws (or if, applicable, Part 16), 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.

Section 6.2 Form of Subordinated Security. The Subordinated Debt shall be 

substantially in the form of Annex A hereto, the terms of which are incorporated in and made a 

part of this Agreement. The Subordinated Debt shall be issued, and may be transferred, only in 

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

of $1,000 in excess thereof. The Subordinated Debt shall be in registered form without coupons 

and shall be numbered, lettered or otherwise distinguished in such manner or in accordance with 

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

Section 6.3 Execution of Subordinated Debt. The Subordinated Debt shall be executed 

in the name and on behalf of the Recipient by the manual or facsimile signature of its President, 

Chief Executive Officer, Chief Financial Officer or one of its Executive Vice Presidents under its 

seal (if legally required) which may be affixed thereto or printed, engraved or otherwise 

reproduced thereon, by facsimile or otherwise, and which need not be attested, unless otherwise 

required by the Recipient’s Charter or bylaws or applicable law. Every Subordinated Security shall 

be dated the date of its issuance and delivery.

Section 6.4 Computation of Interest. (a) The amount of interest payable for any Interest 

Period will be computed as provided in the Subordinated Debt.

(b) Each Subordinated Security will bear interest at the Applicable Interest Rate set 

forth in Section 2(a) of the face of the Subordinated Security attached hereto as Annex A for the 

Interest Period on the principal thereof, on any overdue principal and (to the extent that payment 

of such interest is enforceable under applicable law) on any overdue installment of interest 

(including Defaulted Interest but excluding, for the avoidance of doubt, any interest installment 

the payment of which has been deferred pursuant to Section 6.14), payable on each Interest 

Payment Date or the Maturity Date, as the case may be. Interest on any Subordinated Security that 

is payable, and is punctually paid or duly provided for by the Recipient, on any Interest Payment 
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Date shall be paid to the person in whose name such Subordinated Security is registered at the 

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

(c) Any interest on the Subordinated Security that is payable, but is not punctually paid 

or duly provided for by the Recipient, on any Interest Payment Date (herein called “Defaulted 

Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date, 

and such Defaulted Interest shall be paid by the Recipient on either the next succeeding Interest 

Payment Date or another date specified by the Recipient to the persons in whose names such 

Subordinated Debt is registered at the close of business on either (x), if such Defaulted Interest is 

to be paid on the next succeeding Interest Payment Date, the related Regular Record Date, or (y), if 

such Defaulted Interest is to be paid on any other date, a special record date for the payment of 

such Defaulted Interest. To the extent any Defaulted Interest is paid by the Recipient, the Recipient 

shall notify the Holder in writing of the amount of Defaulted Interest proposed to be paid on each 

such Subordinated Security and the date of the proposed payment.

(d) To the extent that Defaulted Interest is to be paid on a date other than on an Interest 

Payment Date, the Board of Directors shall fix a special record date for the payment of such 

Defaulted Interest, which shall not be more than fifteen (15) nor less than ten (10) days prior to 

the date of the proposed payment. The Recipient shall cause notice of the proposed payment of 

such Defaulted Interest and the special record date therefor to be mailed, first class postage prepaid, 

to each Holder of a Subordinated Security at his, her or its address as it appears in the Subordinated 

Securities Register, not less than ten (10) days prior to such special record date. Notice of the 

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

mailed as aforesaid, such Defaulted Interest shall be paid to the person in whose name such 

Subordinated Security is registered at the close of business on such special record date and 

thereafter the Recipient shall have no further payment obligation in respect of the Defaulted 

Interest.

(e) The Recipient may make payment of any Defaulted Interest on the Subordinated 

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

on which such Subordinated Debt may be listed, and upon such notice as may be required by such 

exchange.

Subject to the foregoing provisions of this Section 6.4, each Subordinated Security delivered under 

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

Subordinated Security shall carry the rights to interest accrued and unpaid, and to accrue, that were 

carried by such other Subordinated Security.

Section 6.5 Legends. 

(a) The Investor agrees that all certificates or other instruments representing the 

Subordinated Debt will bear a legend substantially to the following effect:

“THIS SUBORDINATED SECURITY WILL BE ISSUED AND MAY BE 

TRANSFERRED ONLY IN DENOMINATIONS OF A MINIMUM OF $1,000 

AND MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY ATTEMPTED 

TRANSFER OF SUCH SECURITIES IN A DENOMINATION OF LESS THAN 
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$1,000 OR IN A DENOMINATION OTHER THAN IN A MULTIPLE OF $1,000 

IN EXCESS THEREOF SHALL BE DEEMED TO BE VOID AND OF NO 

LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE 

SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH SECURITIES FOR 

ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF 

PAYMENTS ON SUCH SECURITIES, AND SUCH PURPORTED 

TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST 

WHATSOEVER IN SUCH SECURITIES.

THIS SECURITY IS SUBJECT TO THE TERMS AND CONDITIONS SET 

FORTH IN THE LETTER AGREEMENT BY AND BETWEEN THE ISSUER 

AND THE UNITED STATES DEPARTMENT OF THE TREASURY AND 

SECURITIES PURCHASE AGREEMENT – STANDARD TERMS 

(TOGETHER, THE “AGREEMENT”), EACH OF WHICH ARE 

INCORPORATED INTO THIS SUBORDINATED SECURITY.

THE TERMS UNDER WHICH THE ISSUER MAY PREPAY THIS 

SUBORDINATED SECURITY ARE SET FORTH IN THE AGREEMENT.

THE PAYMENT OF PRINCIPAL OF OR INTEREST ON THIS 

SUBORDINATED DEBT SECURITY MAY NOT BE ACCELERATED 

WITHOUT THE PRIOR APPROVAL OF THE APPROPRIATE FEDERAL 

BANKING AGENCY IF REQUIRED UNDER RULES OR REGULATIONS OF 

SUCH APPROPRIATE FEDERAL BANKING AGENCY, AND THE ISSUER 

MAY NOT REDEEM THIS SUBORDINATED DEBT SECURITY PRIOR TO 

MATURITY, REPURCHASE THIS SUBORDINATED DEBT SECURITY, OR 

EXERCISE A CALL OPTION IN CONNECTION WITH THIS 

SUBORDINATED DEBT SECURITY WITHOUT THE PRIOR APPROVAL OF 

THE APPROPRIATE FEDERAL BANKING AGENCY IF REQUIRED UNDER 

RULES OR REGULATIONS OF SUCH APPROPRIATE FEDERAL BANKING 

AGENCY.

THIS SECURITY MAY BE FULLY SUBORDINATED TO INTERESTS HELD 

BY THE U.S. GOVERNMENT IN THE EVENT THAT THE ISSUER ENTERS 

INTO A RECEIVERSHIP, INSOLVENCY, LIQUIDATION, OR SIMILAR 

PROCEEDING.

[IF THE ISSUER IS A BANK HOLDING COMPANY, SAVINGS AND LOAN 

HOLDING COMPANY, NATIONAL BANK OR FEDERAL SAVINGS 

ASSOCIATION, INCLUDE: THIS SECURITY HAS NOT BEEN REGISTERED 

UNDER THE SECURITIES ACT OF 1933 (THE “SECURITIES ACT”), OR THE 

SECURITIES LAWS OF ANY STATE, OR (IF THE ISSUER IS A NATIONAL 

BANK OR FEDERAL SAVINGS ASSOCIATION) PART 16 OF THE 

REGULATIONS OF THE OFFICE OF THE COMPTROLLER OF THE 

CURRENCY (“PART 16”), AND MAY NOT BE TRANSFERRED, SOLD OR 

OTHERWISE DISPOSED OF EXCEPT WHILE A REGISTRATION 

STATEMENT RELATING THERETO IS IN EFFECT UNDER SUCH ACT 
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

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AND APPLICABLE STATE SECURITIES LAWS AND PART 16 (IF 

APPLICABLE) OR PURSUANT TO AN EXEMPTION FROM 

REGISTRATION UNDER SUCH ACT OR SUCH LAWS OR SUCH 

REGULATIONS, AS APPLICABLE. EACH PURCHASER OF THE 

SECURITIES REPRESENTED BY 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 (IF 

THE ISSUER IS A NATIONAL BANK OR FEDERAL SAVINGS 

ASSOCIATION, AS INCORPORATED INTO PART 16). 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 

OR PART 16, AS APPLICABLE, (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 (IF THE ISSUER IS A NATIONAL 

BANK OR FEDERAL SAVINGS ASSOCIATION, AS INCORPORATED INTO 

PART 16), (C) TO THE ISSUER OR (D) PURSUANT TO ANY OTHER 

AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS 

OF THE SECURITIES ACT AND PART 16, AS APPLICABLE, 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.

[IF THE ISSUER IS A FEDERAL SAVINGS ASSOCIATION, INCLUDE: 

WITHOUT LIMITING THE FOREGOING, AN INDENTURE MEETING THE 

REQUIREMENTS OF 12 C.F.R. 5.56(d) MUST BE IN PLACE BEFORE THIS 

SECURITY IS TRANSFERRED TO ANY PERSON WHO IS NOT AN 

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

SECURITIES ACT).]

THIS INSTRUMENT IS ISSUED SUBJECT TO THE RESTRICTIONS ON 

TRANSFER AND OTHER PROVISIONS OF THE AGREEMENT, 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.”
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

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THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS 

NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT 

INSURANCE CORPORATION OR ANY OTHER GOVERNMENT AGENCY.

THIS SECURITY IS SUBORDINATED TO THE CLAIMS OF GENERAL AND 

SECURED CREDITORS, IS NOT SECURED AND IS SUBORDINATE AND 

JUNIOR IN ITS RIGHT OF PAYMENT TO THE OBLIGATIONS OF ALL 

CREDITORS, INCLUDING BOTH SECURED AND UNSECURED OR 

GENERAL CREDITORS, AND TO ALL “SENIOR INDEBTEDNESS” AS 

DEFINED IN THE AGREEMENT, EXCEPT THOSE SPECIFICALLY 

DESIGNATED AS RANKING ON A PARITY WITH, OR SUBORDINATED 

TO, THIS SUBORDINATED SECURITY.

[IF THE ISSUER IS AN INSURED DEPOSITORY INSTITUTION, INCLUDE: 

THIS SECURITY IS ALSO SUBORDINATED TO CLAIMS OF DEPOSITORS 

AND IS INELIGIBLE AS COLLATERAL FOR A LOAN BY THE ISSUER.]

[IF THE ISSUER IS A FEDERAL SAVINGS ASSOCIATION, INCLUDE: THIS 

SECURITY IS ALSO SUBORDINATED ON LIQUIDATION, AS TO 

PRINCIPAL, INTEREST, AND PREMIUM, TO ALL CLAIMS AGAINST THE 

ISSUER THAT HAVE THE SAME PRIORITY AS SAVINGS ACCOUNTS OR 

A HIGHER PRIORITY.]

THIS SECURITY IS NOT SECURED BY THE ISSUER’S ASSETS OR THE 

ASSETS OF ANY AFFILIATE OF THE ISSUER. AN AFFILIATE MEANS 

ANY PERSON OR COMPANY THAT CONTROLS, IS CONTROLLED BY, OR 

IS UNDER COMMON CONTROL WITH THE ISSUER. THIS SECURITY IS 

NOT ELIGIBLE COLLATERAL FOR A LOAN BY THE ISSUER.

[IF THE ISSUER IS AN INSURED DEPOSITORY INSTITUTION, INCLUDE: 

PURSUANT TO 12 U.S.C. 1828(b), THE ISSUER SHALL NOT PAY ANY 

DIVIDENDS ON ITS CAPITAL STOCK OR INTEREST ON ITS CAPITAL 

NOTES OR DEBENTURES (IF SUCH INTEREST IS REQUIRED TO BE PAID 

ONLY OUT OF NET PROFITS) OR DISTRIBUTE ANY OF ITS CAPITAL 

ASSETS WHILE IT REMAINS IN DEFAULT IN THE PAYMENT OF ANY 

ASSESSMENT DUE TO THE FEDERAL DEPOSIT INSURANCE 

CORPORATION.]

[IF THE ISSUER IS AN INSURED DEPOSITORY INSTITUTION, INCLUDE: 

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

PAYMENT OF PRINCIPAL OR INTEREST ON THIS OBLIGATION 

BEGINNING 60 DAYS AFTER BECOMING CRITICALLY 

UNDERCAPITALIZED, UNLESS THE FEDERAL DEPOSIT INSURANCE 

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

1831o(h)(2)(B).]
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

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PURSUANT TO SECTION 11 OF THE REGULATORY CAPITAL RULES SET 

FORTH IN 12 C.F.R. PART 3 (WITH RESPECT TO NATIONAL BANKS AND 

FEDERAL SAVINGS ASSOCIATIONS), 12 C.F.R. PART 217 (WITH 

RESPECT TO BANK HOLDING COMPANIES, SAVINGS AND LOAN 

HOLDING COMPANIES AND STATE MEMBER BANKS) AND 12 C.F.R. 

PART 324 (WITH RESPECT TO STATE NONMEMBER BANKS OR STATE 

SAVINGS ASSOCIATIONS), THE ISSUER WILL BE SUBJECT TO 

LIMITATIONS ON DISTRIBUTIONS (INCLUDING PAYMENTS OF 

INTEREST ON THIS SUBORDINATED SECURITY) IF THE ISSUER DOES 

NOT SATISFY ITS CAPITAL BUFFER REQUIREMENT IN FULL.

[IF THE ISSUER IS AN INSURED DEPOSITORY INSTITUTION, INCLUDE: 

WITH RESPECT TO AN INSOLVENCY OF THE ISSUER, THE FEDERAL 

DEPOSIT INSURANCE CORPORATION, ACTING AS RECEIVER, HAS THE 

AUTHORITY TO TRANSFER THE ISSUER’S OBLIGATION UNDER THIS 

SUBORDINATED SECURITY AND TO SUPERSEDE OR VOID ANY 

DEFAULT, ACCELERATION, OR SUBORDINATION THAT MAY HAVE 

OCCURRED.]

[IF THE ISSUER IS AN INSURED DEPOSITORY INSTITUTION, INCLUDE: IF 

THE ISSUER IS “UNDERCAPITALIZED” AS DEFINED BY APPLICABLE 

LAW AND FAILS TO SATISFACTORILY IMPLEMENT A REQUIRED 

CAPITAL RESTORATION PLAN, THE ISSUER MAY BE SUBJECT TO ALL 

THE ADDITIONAL RESTRICTIONS AND REQUIREMENTS APPLICABLE 

TO A “SIGNIFICANTLY UNDERCAPITALIZED” INSTITUTION, AS 

DEFINED BY APPLICABLE LAW, INCLUDING BEING REQUIRED TO 

SELL SHARES IN THE ISSUER, BEING ACQUIRED BY A DEPOSITORY 

INSTITUTION HOLDING COMPANY, OR BEING MERGED OR 

CONSOLIDATED WITH ANOTHER DEPOSITORY INSTITUTION, AND 

SUCH AUTHORITY BY THE OCC SUPERSEDES AND VOIDS ANY 

DEFAULTS THAT MAY HAVE OCCURRED.]

[IF THE ISSUER IS AN INSURED DEPOSITORY INSTITUTION, INCLUDE: IF 

THE ISSUER IS “CRITICALLY UNDERCAPITALIZED,” AS DEFINED BY 

APPLICABLE LAW, THE ISSUER IS PROHIBITED FROM MAKING 

PRINCIPAL OR INTEREST PAYMENTS ON THIS SUBORDINATED 

SECURITY WITHOUT PRIOR REGULATORY APPROVAL.]”

(b) In the event that any Subordinated Debt (i)(A) becomes registered under the 

Securities Act (or, if applicable, Part 16) or (B) is eligible to be transferred without restriction in 

accordance with Rule 144 or another exemption from registration under the Securities Act (other 

than Rule 144A) (or, if applicable, Part 16); and (ii)(A) becomes subject to an Indenture qualified 

under the Indenture Act or (B) is exempt from qualification under the Indenture Act, the Recipient 

shall issue new certificates or other instruments representing such Subordinated Debt, which shall 

not contain the applicable legends in Section 6.5(a) above; provided that the Investor surrenders 

to the Recipient the previously issued certificates or other instruments.
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

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Section 6.6 Transfer of Subordinated Debt.

(a) The Recipient or its duly appointed agent shall maintain a register (the 

“Subordinated Securities Register”) for the Subordinated Debt in which it shall register the 

issuance and transfer of the Subordinated Debt. All transfers of the Subordinated Debt shall be 

recorded on the Subordinated Securities Register maintained by the Recipient or its agent, and the 

Recipient shall be entitled to regard the registered Holder of such Subordinated Security as the 

actual owner of the Subordinated Security so registered until the Recipient or its agent is required 

to record a transfer of such Subordinated Security on its Subordinated Securities Register. The 

Recipient or its agent shall, subject to applicable securities laws, be required to record any such 

transfer when it receives the Subordinated Security to be transferred duly and properly endorsed 

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

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

Subordinated Security and surrender of the Subordinated Security for such purpose, at the expense 

of the Recipient, issue new Subordinated Debt in exchange therefor in such denominations of at 

least $1,000, as shall be specified by the Holder of such Subordinated Security, in an aggregate 

principal amount equal to the then unpaid principal amount of the Subordinated Debt surrendered 

and substantially in the form of Annex A, with appropriate insertions and variations, and bearing 

interest from the date to which interest has been paid on the Subordinated Security surrendered. 

All Subordinated Debt issued upon any registration of transfer of exchange pursuant to this 

Section 6.6(b) shall be valid obligations of the Recipient, evidencing the same debt, and entitled 

to the same benefits under this Agreement, as the Subordinated Debt surrendered upon such 

registration of transfer or exchange.

(c) All Subordinated Debt presented for registration of transfer or for exchange or 

payment shall be duly endorsed by, or be accompanied by, a written instrument or instruments of 

transfer in a form satisfactory to the Recipient duly executed by the Holder or such Holder’s 

attorney duly authorized in writing.

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

Subordinated Debt, but the Recipient may require payment of a sum sufficient to cover any tax, 

fee or other governmental charge that may be imposed in connection therewith.

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

Security, the Recipient and any agent of the Recipient may deem and treat the person in whose 

name such Subordinated Security is registered as the absolute owner and Holder of such 

Subordinated Security for the purpose of receiving payment of principal of and interest on such 

Subordinated Security and none of the Recipient or any agents of the Recipient shall be affected 

by notice to the contrary.

(f) Subject to compliance with applicable law, the Investor (and any investment 

vehicles established and used by the Investor to purchase, hold, and sell Subordinated Debt) shall 

be permitted to transfer, sell, assign or otherwise dispose of (“Transfer”) all or a portion of the 

Subordinated Debt at any time and from time to time, and the Recipient shall take all steps as may 

be reasonably requested by the Investor to facilitate the sale of the Subordinated Debt, including 

as set forth in Section 6.9, provided that:
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

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(i) The Investor shall not Transfer any Subordinated Debt if such Transfer 

would (A) require the Recipient to be subject to the periodic reporting requirements of 

Section 13 or 15(d) of the Exchange Act and the Recipient was not already subject to such 

requirements, or (B) if the Recipient is a national bank or federal savings association, 

require the Recipient to register the securities under Part 16;

(ii) Prior to the sale of all or a portion of the Subordinated Debt by the Investor 

to a third party, the Investor shall deliver to the Recipient a notice (“ROFR Notice”) setting 

forth the aggregate principal amount of Subordinated Debt proposed to be sold (the 

“Offered Securities”) and the cash purchase price thereof (which shall reflect a valuation 

of the Subordinated Debt by an independent third party) (the “Offer Price”) and other terms 

and conditions on which the Investor proposes to sell the Offered Securities. Within ten 

(10) days from the date the Investor delivers the ROFR Notice to the Recipient (the 

“Review Period”), the Recipient shall deliver to the Investor a written notice (a “Response 

Notice”) stating whether it elects to purchase all the Offered Securities and irrevocably 

offering to purchase such number of Offered Securities on the terms contained in the ROFR 

Notice, which purchase shall, as applicable, be conditional upon receipt of prior approval 

from the Recipient’s Appropriate Federal Banking Agency. If the Recipient does not 

deliver a Response Notice in accordance with this Section 6.6(f)(ii) prior to the expiration 

of the Review Period, then the Recipient will be deemed to have elected not to exercise the 

right of first refusal specified in the ROFR Notice and the Investor shall be free to sell the

Offered Securities to a third party on the terms reflected in the ROFR Notice.

(iii) The Investor shall not sell more than twenty-five percent (25%) of the 

outstanding obligations referred to in clause (iii) of the definition of “Indebtedness” to a 

single third party without the Recipient’s consent, which may not be unreasonably delayed, 

conditioned or withheld;

(iv) With the prior consent of the Recipient (which may not be unreasonably 

delayed, conditioned or withheld), the Investor may Transfer all or a portion of the 

Subordinated Debt for no consideration or for a de minimis amount to a mission-aligned 

nonprofit Affiliate of an Eligible Financial Institution participating in the ECIP that is an 

Insured CDFI (an “Eligible Nonprofit”); and

(v) Subject to Section 5.8(b), the Investor shall not sell the Subordinated Debt 

to a third party (other than to an Eligible Nonprofit) prior to the Tenth Anniversary (as 

defined in the Subordinated Security) without the prior consent of the Recipient (which 

may not be unreasonably delayed, conditioned or withheld). In addition, subject to 

Section 5.8(b), the Investor shall provide the Recipient eighteen (18) months’ advance 

notice of the Investor’s intent to Transfer the Subordinated Debt to a third party other than 

an Eligible Nonprofit.

(g) In furtherance of the foregoing, the Recipient shall provide reasonable cooperation 

to facilitate any Transfers of the Subordinated Debt, including, as is reasonable under the 

circumstances, by furnishing such information concerning the Recipient and its business as a 

proposed transferee may reasonably request and making management of the Recipient reasonably 

available to respond to questions of a proposed transferee in accordance with customary practice, 
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

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

For the avoidance of doubt, the term “third party” as used in this Section 6.6 shall not refer to an 

investment vehicle or other entity controlled by the Investor, or to any Affiliate of the Investor.

Section 6.7 Replacement of Subordinated Debt. Upon receipt of evidence reasonably 

satisfactory to the Recipient of the loss, theft, destruction or mutilation of any Subordinated 

Security, and, in the case of any such loss, theft or destruction, upon delivery of a bond of 

indemnity reasonably satisfactory to the Recipient (provided that any Holder of a Subordinated 

Security may instead deliver to the Recipient an indemnity agreement in form and substance 

reasonably satisfactory to the Recipient), or, in the case of any such mutilation, upon surrender 

and cancellation of the Subordinated Security, as the case may be, the Recipient will issue a new 

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

Subordinated Security.

Section 6.8 Cancellation. All Subordinated Debt surrendered for the purpose of 

payment, exchange or registration of transfer, shall be surrendered to the Recipient and promptly 

canceled by it, and no Subordinated Debt shall be issued in lieu thereof except as expressly 

permitted by any of the provisions of this Agreement. The Recipient shall destroy all canceled 

Subordinated Debt.

Section 6.9 Rule 144; Rule 144A; 4(a)(11⁄2) Transactions.

(a) At all times after the Signing Date, the Recipient covenants that (1) it will, upon 

the request of the Investor or any subsequent holders of the Subordinated Debt (“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 Subordinated Debt (including, in the case of a Recipient that is a 

national bank or federal savings association, as such Rule is incorporated into Part 16), make 

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

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

Recipient 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(a)(11⁄2)” exemption to sell any of its Subordinated Debt, 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 Subordinated Debt pursuant to such exemption, or (z) to the extent any Holder is 

relying on Rule 144A under the Securities Act (including, in the case of a Recipient that is a 

national bank or federal savings association, as such Rule is incorporated into Part 16) to sell any 

of its Subordinated Debt, 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 Subordinated Debt without registration under the 

Securities Act (or, in the case of a Recipient that is a national bank or federal savings association, 

under Part 16) within the limitations of the exemptions provided by (i) the provisions of the 

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

based on the so-called “Section 4(a)(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 (or, in each case and in the case of a Recipient that is 

a national bank or federal savings association, as applicable under Part 16); provided that the 
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

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Recipient shall not be required to take any action described in this Section 6.9 that would cause 

the Recipient to become subject to the reporting requirements of Section 13 or 15(d) of the 

Exchange Act if the Recipient was not subject to such requirements prior to taking such action. 

Upon the request of any Holder, the Recipient will deliver to such Holder a written statement as 

to whether it has complied with such requirements and, if not, the specifics thereof.

(b) If the Recipient is a state-chartered bank or savings association, the Investor and 

Recipient acknowledge that, as of the Signing Date, the offer and sale of the Subordinated Debt is 

a security of an insured depository institution and, accordingly, the transfer of such securities is 

exempt from the registration requirements of the Securities Act and qualification and registration 

requirements under state law. Notwithstanding the foregoing, so long as the Subordinated Debt is 

subject to the exemption provided by Section 3(a)(2) or Section 3(a)(5) of the Securities Act, the 

provisions of this Section 6.9 shall be interpreted so as to nonetheless provide a Holder of 

Subordinated Debt with the benefit of the cooperation of the Recipient to facilitate a sale of the 

Subordinated Debt, including the preparation and provision of materials referenced in 

Section 6.9(a)(1)(y).

(c) The Recipient agrees to indemnify Investor, Investor’s officials, 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 Recipient 

pursuant to this Section 6.9 or any omission to state therein a material fact required to be stated 

therein or necessary to make the statements therein, in light of the circumstances under which they 

were made, not misleading.

(d) If the indemnification provided for in Section 6.9(c) 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 Recipient, 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 Recipient, 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 Recipient, 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 Recipient or by the Indemnitee and the parties’ relative intent, knowledge, access 

to information and opportunity to correct or prevent such statement or omission; the Recipient and 

Investor agree that it would not be just and equitable if contribution pursuant to this Section 6.9(d)

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 6.9(b). No Indemnitee guilty of 

fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be 
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

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entitled to contribution from the Recipient if the Recipient was not guilty of such fraudulent 

misrepresentation.

Section 6.10 Redemption.

(a) Optional Redemption. The Recipient may, at its option, redeem the outstanding 

Subordinated Debt (i) in whole or in part, from time to time, on or after the fifth anniversary of the 

Original Issue Date, or (ii) in whole but not in part at any time within ninety (90) days following 

a Regulatory Trigger Event (any such date, a “Redemption Date”), in each case, at a redemption 

price equal to the sum of (i) 100% of the principal amount thereof being called for redemption and 

(ii) any accrued and unpaid interest (including accrued and unpaid Deferred Interest). The 

redemption price for any Subordinated Debt shall be payable on the relevant Redemption Date to 

the Holder of such Subordinated Debt against surrender thereof to the Recipient or its agent. 

Interest shall be paid at the then Applicable Interest Rate from the date of the last Interest Payment 

Date up to but not including the Redemption Date. Notwithstanding the foregoing, the Recipient 

may not redeem any Subordinated Debt without having received the prior approval of the 

Appropriate Federal Banking Agency to the extent required under capital rules applicable to the 

Recipient and without complying with the capital rules applicable to the Recipient.

(b) No Sinking Fund. The Subordinated Debt will not be subject to any mandatory 

redemption, sinking fund or other similar provisions. Holders of Subordinated Debt will have no 

right to require redemption or repurchase of any of the Subordinated Debt.

(c) Notice of Redemption. Notice of redemption of the Subordinated Debt shall be 

given by first class mail, postage prepaid, addressed to the Holders of record of the Subordinated 

Debt to be redeemed at their respective last addresses appearing on the Subordinated Securities 

Register. Such mailing shall be at least thirty (30) days and not more than sixty (60) days before 

the relevant Redemption Date. Any notice mailed as provided in this subsection shall be 

conclusively presumed to have been duly given, whether or not the Holder receives such notice, 

but failure duly to give such notice by mail, or any defect in such notice or in the mailing thereof, 

to any Holder of Subordinated Debt designated for redemption shall not affect the validity of the 

proceedings for the redemption of any other Subordinated Debt. Notwithstanding the foregoing, if 

Subordinated Debt is issued in book-entry form through The Depository Trust Company or any 

other similar facility, notice of redemption may be given to the Holders of Subordinated Debt at 

such time and in any manner permitted by such facility. Each notice of redemption given to a 

Holder shall state: (1) the Redemption Date; (2) the amount of Subordinated Debt to be redeemed 

by such Holder; (3) the redemption price; and (4) the place or places where such Subordinated 

Debt is to be surrendered for payment of the redemption price.

(d) Partial Redemption. The Recipient may redeem less than all of the outstanding 

Subordinated Debt, provided that the amount called for redemption at any time is not less than 

twenty percent (20%) of the Purchase Price (or one hundred percent (100%) of the Subordinated 

Debt then outstanding if representing a principal amount less than twenty percent (20%) of the 

Purchase Price). Subject to the provisions hereof, the Board of Directors or a duly authorized 

committee thereof shall have full power and authority to prescribe the terms and conditions upon 

which Subordinated Debt shall be redeemed from time to time. If less than the full aggregate 

principal amount of any Subordinated Security is redeemed, the Recipient shall issue a new 
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

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

the Holder thereof. Subordinated Debt may be redeemed in part only on a pro rata basis and only 

in minimum denominations of $1,000 and integral multiples thereof.

(e) Effectiveness of Redemption. If notice of redemption has been duly given and if 

on or before the Redemption Date specified in the notice all funds necessary for the redemption 

have been deposited by the Recipient, in trust for the pro rata benefit of the Holders of the 

Subordinated Debt called for redemption, with a bank or trust company doing business in the 

Borough of Manhattan, The City of New York, and having a capital and surplus of at least $500 

million and selected by the Board of Directors, so as to be and continue to be available solely 

therefor, then, notwithstanding that any Subordinated Security so called for redemption has not 

been surrendered for cancellation, on and after the Redemption Date interest shall cease to accrue 

on the aggregate principal amount of such Subordinated Debt so called for redemption, the 

aggregate principal amount of such Subordinated Debt so called for redemption shall no longer be 

deemed outstanding and shall cease to bear interest from and after the Redemption Date. All rights 

with respect to such Subordinated Debt (or the portion thereof so called for redemption) shall 

forthwith on such Redemption Date cease and terminate, except only the right of the Holders 

thereof to receive the redemption price payable on such redemption from such bank or trust 

company, without interest. Any funds unclaimed at the end of three years from the Redemption 

Date shall, to the extent permitted by applicable law, be released to the Recipient, after which time 

the Holders of such Subordinated Debt (or portion thereof so called for redemption) shall look 

only to the Recipient for payment of the redemption price of such Subordinated Debt.

(f) Status of Redeemed Securities. Subordinated Debt that is redeemed, repurchased 

or otherwise acquired by the Recipient shall be cancelled and shall not thereafter be reissued by 

the Recipient.

Section 6.11 Governance Rights for Non-Payment of Interest.

(a) Board Observation Rights. Whenever, at any time or times, interest on the 

Subordinated Debt has not been paid for an aggregate of five (5) Interest Periods or more, whether 

due to deferral or otherwise and whether or not consecutive, the Recipient shall invite a 

representative (a “Subordinated Observer”) selected by the Holders of the Subordinated Debt, 

voting as a single class, to attend all meetings of the Board of Directors in a nonvoting observer 

capacity and, in this respect, shall give such Subordinated Observer copies of all notices, minutes, 

consents, and other materials that it provides to its directors in connection with such meetings 

(subject to disclosure limitations under applicable law); provided, that the Holders of the 

Subordinated Debt shall not be obligated to select a Subordinated Observer, nor shall such 

Subordinated Observer, if selected, be obligated to attend any meeting to which he/she is invited. 

The rights of the holders of the Subordinated Debt set forth in this Section 6.11(a) shall terminate 

when interest payments have been timely paid in full on the Subordinated Debt for at least four (4) 

consecutive Interest Periods and when there is no unpaid Deferred Interest, subject to revesting in 

the event of each and every subsequent default of the character above mentioned.
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

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(b) Subordinated Directors.

(i) If, at any time or times, interest on the Subordinated Debt has not been paid 

for an aggregate of six (6) Interest Periods or more, whether due to deferral or otherwise 

and whether or not consecutive (a “Director Trigger Event”), the Holders shall have the 

right, but not the obligation, to select up to two (2) individuals to serve on the Board of 

Directors of the Recipient; it being understood, that even if the Holders do not immediately 

select any individuals to serve on the Board of Directors of the Recipient following the 

occurrence of a Director Trigger Event, the Holders shall nevertheless retain the right to 

do so until termination of such right pursuant to Section 6.11(b)(v). Upon the Holders’ 

selection of any such individuals, the Recipient and its Board of Directors shall take all 

necessary action to: (i) cause the size of the Board of Directors to be increased by one (1) 

(if the Holders select one (1) individual) or two (2) (if the Holders select two (2) 

individuals) and (ii) cause such director vacancy or two (2) director vacancies, as the case 

may be, to be filled by the individual or two (2) individuals selected by the Holders, as the 

case may be (the “Subordinated Directors” and each a “Subordinated Director”).

(ii) After any Subordinated Director joins the Recipient’s Board of Directors 

pursuant to Section 6.11(b)(i), until the termination of the Holders’ selection rights 

pursuant to Section 6.11(b)(v), the Board of Directors shall take all necessary action to 

(x) include such Subordinated Director on the slate of directors for nomination at the 

Recipient’s annual meetings of stockholders, (y) recommend that the Recipient’s 

shareholders vote to elect such Subordinated Director and (z) solicit proxies for such 

Subordinated Director in the same manner that the Board of Directors solicits proxies for 

the other director nominees of the Recipient.

(iii) If at any time after a Subordinated Director joins the Board of Directors and 

prior to the termination of the selection and nomination rights pursuant to 

Section 6.11(b)(v) the office of any Subordinated Director becomes vacant for any reason, 

the Holders may select a successor, and the Board of Directors shall take all action 

necessary to appoint such successor to the Board of Directors.

(iv) Notwithstanding the foregoing, it shall be a qualification for selection or 

nomination for any Subordinated Director that the nomination or election of such 

Subordinated Director to the Board of Directors shall not cause the Recipient to violate any 

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

which securities of the Recipient may then be listed or traded that listed or traded 

companies must have a majority of independent directors.

(v) The selection and nomination rights set forth in Section 6.11(b)(i), (ii) and 

(iii) shall terminate when all accrued and unpaid interest has been timely paid in full on the 

Subordinated Debt for at least four (4) consecutive Interest Periods and there is no unpaid 

Deferred Interest, subject to revesting upon the occurrence of a subsequent Director Trigger 

Event.

(vi) For the avoidance of doubt, the Holders holding more than fifty percent 

(50%) of the aggregate outstanding principal amount of the Subordinated Debt (the 
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“Majority Holders”) shall be entitled to take all necessary action to exercise and enforce 

the rights set forth in this Section 6.11 on behalf of the Holders.

Section 6.12 Communications to Holders. Any Holder shall have the right, upon five (5) 

business days prior written notice to the Recipient or its duly appointed agent to obtain a complete 

list of Holders. In addition, any Holder shall have the right to request that the Recipient or its duly 

appointed agent send a notice on behalf of such Holder to all other Holders at the addresses set 

forth on the Subordinated Securities Register.

Section 6.13 Noncompliance. The Recipient acknowledges and agrees that this 

Agreement is entered into under Section 104A of the Community Development Banking Act and 

that the ECIP Interim Final Rule was promulgated under that Act and, accordingly, where 

applicable, the enforcement of the provisions of the Agreement and the ECIP Interim Final Rule 

(and any violations thereof) are subject to 12 U.S.C. § 4717. The Recipient further acknowledges 

and agrees that the Investor may inform the Appropriate Federal Banking Agency of Recipient’s 

apparent noncompliance.

Section 6.14 Deferral of Interest.

(a) Payments of interest on the Subordinated Debt shall be deferred for any Interest 

Period, with the result that such payment of interest shall not be due on the originally scheduled 

Interest Payment Date and shall instead be due on a subsequent Interest Payment Date or the 

Maturity Date, as applicable and as determined in accordance with this Section 6.14 if as of the 

applicable Interest Payment Date, any of the following is true:

(i) the Recipient fails to be classified as “well capitalized”, as defined in the

applicable regulations of its Appropriate Federal Banking Agency;

(ii) the Recipient failed to achieve positive net income for the most recently 

completed quarter prior to the relevant Interest Payment Date;

(iii) the Recipient is subject to distribution limitations under the capital rules 

applicable to it, such as those set forth in 12 C.F.R. § 3.11; 12 C.F.R. § 217.11 or 12 C.F.R. 

§ 324.11; or

(iv) the Recipient determines that the payment would be detrimental to the 

financial health of the Recipient, and the principal executive officer and principal financial 

officer of the Recipient provide written notice, in a form reasonably satisfactory to the 

Investor, of such determination and the basis thereof.

(b) Any interest installment that is deferred pursuant to Section 6.14(a) (“Deferred 

Interest”) shall be tested against Section 6.14(a)(i)–Section 6.14(a)(iv) at each subsequent Interest 

Payment Date, and the applicable Interest Deferral Period shall continue until none of the items in 

Section 6.14(a)(i)–Section 6.14(a)(iv) is true. Deferred Interest shall be payable on any Interest 

Payment Date and shall become due at the first Interest Payment Date as of which none of such 

items is true. No Interest Deferral Period may end on a date other than an Interest Payment Date 

or extend beyond the Maturity Date, as the case may be. During any Interest Deferral Period, 

interest will continue to accrue on the principal amount of the Subordinated Debt in accordance 
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with the terms thereof, but no additional interest will accrue on any Deferred Interest. If an Interest 

Deferral Period has occurred and is continuing on the Maturity Date, any accrued and unpaid 

Deferred Interest shall be due on the Maturity Date.

(c) The Recipient may, in its discretion, provide the Investor notice that it waives the 

deferral provisions set forth in Section 6.14(a) above with respect to any Interest Payment Date, 

and may pay interest that would otherwise be subject to deferral. Notwithstanding any such waiver 

pursuant to this Section 6.14(c), the Recipient’s interest payments must adhere to any distribution 

or interest payment limitations set forth by the Recipient’s Appropriate Federal Banking Agency.

Section 6.15 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 Recipient shall, at the Recipient’s sole cost and expense, (i) furnish to the 

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

pursuant to the terms of this Agreement, including any documents required to be delivered 

pursuant to Section 6.9 above, or which are reasonably requested by the Investor in connection 

therewith; (ii) execute and deliver to the Investor such documents, instruments, certificates, 

assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve 

and/or protect the Subordinated Debt purchased by the Investor, as Investor may reasonably 

require; and (iii) do and execute all and such further lawful and reasonable acts, conveyances and 

assurances for the better and more effective carrying out of the intents and purposes of this 

Agreement, as the Investor shall reasonably require from time to time.

ARTICLE VII

SUBORDINATION OF THE SUBORDINATED DEBT

Section 7.1 Agreement to Subordinate. (a) The Recipient covenants and agrees, and 

each Holder of Subordinated Debt issued hereunder likewise covenants and agrees, that the 

Subordinated Debt shall be issued subject to the provisions of this Article VII; and each Holder of 

a Subordinated Security, whether upon original issue or upon transfer or assignment thereof, 

accepts and agrees to be bound by such provisions.

(b) The payment by the Recipient of the principal of and interest on all Subordinated 

Debt issued hereunder shall, to the extent and in the manner hereinafter set forth, be subordinated 

and subject in right of payment to the prior payment in full of all amounts then due and payable in 

respect of Senior Indebtedness, whether outstanding at the date of this Agreement or thereafter 

incurred.

(c) No provision of this Article VII shall prevent the occurrence of any Event of 

Default (or any event which, after notice or the lapse of time or both would become, an Event of 

Default) with respect to the Subordinated Debt hereunder.
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Section 7.2 Default on Senior Indebtedness. (a) In the event and during the continuation 

of any default by the Recipient in the payment of principal, premium, interest or any other payment 

due on any Senior Indebtedness, no payment shall be made by the Recipient with respect to the 

principal or interest on the Subordinated Debt or any other amounts which may be due on the 

Subordinated Debt pursuant to the terms hereof or thereof.

(b) In the event of the acceleration of the maturity of the Senior Indebtedness, then no 

payment shall be made by the Recipient with respect to the principal or interest on the Subordinated 

Debt or any other amounts which may be due on the Subordinated Debt pursuant to the terms 

hereof or thereof until the holders of all Senior Indebtedness outstanding at the time of such 

acceleration shall receive payment, in full, of all amounts due on or in respect of such Senior 

Indebtedness (including any amounts due upon acceleration).

(c) In the event that, notwithstanding the foregoing, any payment is received by any 

Holder of a Subordinated Security, when such payment is prohibited by the preceding paragraphs 

of this Section 7.2, such payment shall be held in trust for the benefit of, and shall be paid over or 

delivered by the Holder of the Subordinated Security to the holders of Senior Indebtedness or their 

respective representatives, or to the trustee or trustees under any indenture pursuant to which any 

of such Senior Indebtedness may have been issued, as their respective interests may appear, but 

only to the extent of the amounts in respect of such Senior Indebtedness and to the extent that the 

holders of the Senior Indebtedness (or their representative or representatives or a trustee) notify 

the Recipient in writing within ninety (90) days of such payment of the amounts then due and 

owing on such Senior Indebtedness, and only the amounts specified in such notice to the Recipient 

shall be paid to the holders of such Senior Indebtedness. The Recipient shall, within ten (10) 

business days of receipt of such notice, provide Investor with (i) a copy of such notice delivered 

to the Recipient and (ii) a certificate signed on behalf of the Recipient by a Senior Executive 

Officer certifying that the information set forth in such notice is true and correct and confirming 

that the Holder of the Subordinated Security should pay or deliver the amounts specified in such 

notice in the manner specified therein.

Section 7.3 Liquidation; Dissolution. (a) Upon any payment by the Recipient or 

distribution of assets of the Recipient of any kind or character, whether in cash, property or 

securities, to creditors upon any dissolution, winding-up, liquidation or reorganization of the 

Recipient, whether voluntary or involuntary or in insolvency, receivership or other proceedings, 

the holders of all Senior Indebtedness of the Recipient will first be entitled to receive payment in 

full of amounts due on or in respect of such Senior Indebtedness, before any payment is made by 

the Recipient on account of the principal of or interest on the Subordinated Debt or any other 

amounts which may be due on the Subordinated Debt pursuant to the terms hereof or thereof; and 

upon any such dissolution, winding-up, liquidation or reorganization, any payment by the 

Recipient, or distribution of assets of the Recipient of any kind or character, whether in cash, 

property or securities, which the Holder of the Subordinated Debt would be entitled to receive 

from the Recipient, except for the provisions of this Article VII, shall be paid by the Recipient or 

by any receiver, liquidating trustee, agent or other person making such payment or distribution, or 

by the Holder of the Subordinated Debt under this Agreement if received by them or it, directly to 

the holders of Senior Indebtedness of the Recipient (pro rata to such holders on the basis of the 

respective amounts of Senior Indebtedness held by such holders, as calculated by the Recipient) 

or their representative or representatives, or to the trustee or trustees under any indenture pursuant 
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to which any instruments evidencing such Senior Indebtedness may have been issued, as their 

respective interests may appear, to the extent necessary to pay all such amounts of Senior 

Indebtedness in full, in money or money’s worth, after giving effect to any concurrent payment or 

distribution to or for the holders of such Senior Indebtedness, before any payment or distribution 

is made to the Holder of the Subordinated Debt.

(b) In the event that, notwithstanding the foregoing, any payment or distribution of 

assets of the Recipient of any kind or character prohibited by Section 7.3(a), whether in cash, 

property or securities, shall be received by any Holder of the Subordinated Debt, before the

amounts of all Senior Indebtedness are paid in full, or provision is made for such payment in 

money in accordance with its terms, such payment or distribution shall be held in trust for the 

benefit of and shall be paid over or delivered by any Holder of a Subordinated Security, to the 

holders of such Senior Indebtedness or their representative or representatives, or to the trustee or 

trustees under any indenture pursuant to which any instruments evidencing such Senior 

Indebtedness may have been issued, as their respective interests may appear, as calculated by the 

Recipient, for application to the payment of all amounts of Senior Indebtedness remaining unpaid 

to the extent necessary to pay all amounts due on or in respect of such Senior Indebtedness in full

in money in accordance with its terms, after giving effect to any concurrent payment or distribution 

to or for the benefit of the holders of such Senior Indebtedness. In such event, the Recipient shall 

provide Investor with a certificate signed on behalf of the Recipient by a Senior Executive Officer 

confirming that the Holder of the Subordinated Debt should pay or deliver such amounts to the 

holders of such Senior Indebtedness.

(c) For purposes of this Article VII, the words “cash, property or securities” shall not 

be deemed to include Equity of the Recipient as reorganized or readjusted, or securities of the 

Recipient or any other entity provided for by a plan of reorganization or readjustment, the payment 

of which is subordinated at least to the extent provided in this Article VII with respect to the 

Subordinated Debt to the payment of Senior Indebtedness that may at the time be outstanding, 

provided that (i) such Senior Indebtedness is assumed by the new entity, if any, resulting from any 

such reorganization or readjustment, and (ii) the rights of the holders of such Senior Indebtedness 

are not, without the consent of such holders, altered by such reorganization or readjustment. The 

consolidation of the Recipient with, or the merger of the Recipient into, another person or the 

liquidation or dissolution of the Recipient following the sale, conveyance, transfer or lease of its 

property as an entirety, or substantially as an entirety, to another person upon the terms and 

conditions provided for in Section 4.2(a) of this Agreement shall not be deemed a dissolution, 

winding-up, liquidation or reorganization for the purposes of this Section 7.3 if such other person 

shall, as a part of such consolidation, merger, sale, conveyance, transfer or lease, comply with the 

conditions stated in Section 4.2(a) of this Agreement.

Section 7.4 Subrogation. (a) Subject to the payment in full of all Senior Indebtedness, 

the rights of the Holders of the Subordinated Debt shall be subrogated to the rights of the holders 

of such Senior Indebtedness to receive payments or distributions of cash, property or securities of 

the Recipient, as the case may be, applicable to such Senior Indebtedness until the principal of and 

interest on the Subordinated Debt shall be paid in full; and, for the purposes of such subrogation, 

no payments or distributions to the holders of such Senior Indebtedness of any cash, property or 

securities to which the Holders of the Subordinated Debt would be entitled except for the 

provisions of this Article VII, and no payment pursuant to the provisions of this Article VII to or 
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for the benefit of the holders of such Senior Indebtedness by the Holders of the Subordinated Debt 

shall, as between the Recipient, its creditors other than holders of Senior Indebtedness of the

Recipient, and the Holders of the Subordinated Debt, be deemed to be a payment by the Recipient 

to or on account of such Senior Indebtedness. It is understood that the provisions of this Article VII

are intended solely for the purposes of defining the relative rights of the Holders of the 

Subordinated Debt, on the one hand, and the holders of such Senior Indebtedness on the other 

hand.

(b) Nothing contained in this Article VII or elsewhere in this Agreement or in the 

Subordinated Debt is intended to or shall impair, as between the Recipient, its creditors other than 

the holders of Senior Indebtedness of the Recipient, and the Holders of the Subordinated Debt, the 

obligation of the Recipient, which is absolute and unconditional, to pay to the Holders of the 

Subordinated Debt the principal of and interest on the Subordinated Debt as and when the same 

shall become due and payable in accordance with their terms, or is intended to or shall affect the 

relative rights of the Holders of the Subordinated Debt and creditors of the Recipient, as the case 

may be, other than the holders of Senior Indebtedness of the Recipient, as the case may be, nor 

shall anything herein or therein prevent the Holder of any Subordinated Debt from exercising all 

remedies otherwise permitted by applicable law upon default under this Agreement, subject to the 

rights, if any, under this Article VII of the holders of such Senior Indebtedness in respect of cash, 

property or securities of the Recipient, as the case may be, received upon the exercise of any such 

remedy.

Section 7.5 Notice by the Recipient. (a) The Recipient shall give prompt written notice 

to the Holders of the Subordinated Debt of any fact known to the Recipient that would prohibit the 

making of any payment of monies in respect of the Subordinated Debt pursuant to the provisions 

of this Article VII.

(b) Upon any payment or distribution of assets of the Recipient referred to in this 

Article VII, the Holders of the Subordinated Debt shall be entitled to conclusively rely upon any 

order or decree entered by any court of competent jurisdiction in which such insolvency, 

receivership, liquidation, reorganization, dissolution, winding-up or similar case or proceeding is 

pending, or a certificate of the liquidating trustee, custodian, receiver, assignee for the benefit of 

creditors, agent or other person making such payment or distribution, delivered to the Holders of 

the Subordinated Debt, for the purpose of ascertaining the persons entitled to participate in such 

payment or distribution, the holders of Senior Indebtedness and other indebtedness of the 

Recipient, the amount thereof or payable thereon, the amount or amounts paid or distributed 

thereon and all other facts pertinent thereto or to this Article VII.

Section 7.6 Subordination May Not Be Impaired. (a) No right of any present or future 

holder of any Senior Indebtedness of the Recipient to enforce subordination as herein provided 

shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of 

the Recipient, as the case may be, or by any act or failure to act, in good faith, by any such holder, 

or by any noncompliance by the Recipient, as the case may be, with the terms, provisions and 

covenants of this Agreement, regardless of any knowledge thereof that any such holder may have 

or otherwise be charged with.
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(b) Without in any way limiting the generality of the foregoing paragraph, the holders 

of Senior Indebtedness of the Recipient may, at any time and from time to time, without the consent 

of or notice to the Holders of the Subordinated Debt, without incurring responsibility to the Holders 

of the Subordinated Debt and without impairing or releasing the subordination provided in this 

Article VII or the obligations hereunder of the Holders of the Subordinated Debt to the holders of 

such Senior Indebtedness, do any one or more of the following: (i) change the manner, place or 

terms of payment or extend the time of payment of, or renew or alter, such Senior Indebtedness, 

or otherwise amend or supplement in any manner such Senior Indebtedness or any instrument 

evidencing the same or any agreement under which such Senior Indebtedness is outstanding; 

(ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise 

securing such Senior Indebtedness; (iii) release any person liable in any manner for the collection 

of such Senior Indebtedness; and (iv) exercise or refrain from exercising any rights against the 

Recipient, as the case may be, and any other person.

ARTICLE VIII

MISCELLANEOUS

Section 8.1 Termination. This Agreement shall terminate upon the earliest to occur of:

(a) termination at any time prior to the Closing:

(i) by either the Investor or the Recipient if the Closing shall not have occurred 

by the thirtieth (30th) calendar day following the Signing Date; provided, however, that in 

the event the Closing has not occurred by such thirtieth (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 thirtieth (30th) calendar day and not be under any obligation to extend the term of this 

Agreement thereafter; provided, further, that the right to terminate this Agreement under 

this Section 8.1(a)(i) shall not be available to any party whose breach of any representation 

or warranty or failure to perform any obligation under this Agreement shall have caused or 

resulted in the failure of the Closing to occur on or prior to such date; or

(ii) by either the Investor or the Recipient 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 Recipient; or

(b) the date on which all the Subordinated Debt has been redeemed in whole; or

(c) if the Closing shall not have occurred by June 30, 2022, on such date.

In the event of termination of this Agreement as provided in this Section 8.1, this 

Agreement shall forthwith become void and there shall be no liability on the part of either party 

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

Agreement.
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Section 8.2 Survival.

(a) This Agreement and all representations, warranties, covenants and agreements 

made herein shall survive the Closing without limitation.

(b) The rights and remedies of Treasury with respect to the representations, warranties, 

covenants and obligations of the Recipient herein shall not be affected by any investigation 

conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time 

by Treasury or any of its personnel or agents with respect to the accuracy or inaccuracy of, or 

compliance with, any such representation, warranty, covenant or obligation.

Section 8.3 Amendment. No amendment, modification, termination or waiver of any 

provision of this Agreement or the Subordinated Debt or any of the other Transaction Documents 

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

of each party hereto, and, in the case of any amendment, modification, termination or waiver 

affecting the Subordinated Debt, the Majority Holders; provided that for so long as the 

Subordinated Debt is outstanding, the Investor may at any time and from time to time unilaterally 

amend this Agreement 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 and any rules and 

regulations; provided, further that notwithstanding anything else in this Section 8.3, no 

amendment, modification, termination or waiver with respect to the Subordinated Debt shall, 

unless in writing and signed by all Holders, do any of the following: (A) change the principal of 

or the rate of interest on any Subordinated Security; (B) extend any date fixed for any payment of 

principal or interest; (C) change the definition of the terms “Holders” or “Majority Holders” or 

the percentage of Holders which shall be required for Holders to take any action hereunder; 

(D) amend or waive this Section 8.3 or the definitions of the terms used in this Section 8.3 insofar 

as the definitions affect the substance of this Section 8.3; or (E) consent to the assignment, 

delegation or other transfer by the Recipient of any of its rights and obligations under any 

Transaction Documents. Any amendment, modification, termination, waiver or consent effected 

in accordance with this Section 8.3 shall be binding upon each Holder of the Subordinated Debt at 

the time outstanding, each future Holder of the Subordinated Debt and the Recipient. No failure 

or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver 

thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any 

other right, power or privilege. The rights and remedies herein provided shall be cumulative of any 

rights or remedies provided by law.

Section 8.4 Waiver of Conditions. The conditions to each party’s obligation to 

consummate the 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.

Section 8.5 Governing Law; Submission to Jurisdiction, etc. This Agreement and any 

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

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

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

with the federal law of the United States if and to the extent such law is applicable, and otherwise 
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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 Recipient at the address and in the manner set forth for notices to the 

Recipient in Section 8.6 and (ii) the Investor at the address and in the manner set forth for notices 

to the Recipient in Section 8.6, but otherwise in accordance with federal law. TO THE EXTENT 

PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY 

UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY CIVIL LEGAL ACTION OR 

PROCEEDING RELATING TO THIS AGREEMENT OR THE PURCHASE 

CONTEMPLATED HEREBY.

Section 8.6 Notices. Any notice, request, instruction or other document to be given 

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

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

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

day courier service. All notices to the Recipient shall be delivered as set forth in Schedule A, or 

pursuant to such other instruction as may be designated in writing by the Recipient to the Investor. 

All notices to the Holders of Subordinated Debt shall be delivered in writing, mailed first-class 

postage prepaid, to each Holder of a Subordinated Security at the address of such Holder as it 

appears in the Subordinated Securities Register. All notices to the Investor shall be delivered as 

set forth below, or pursuant to such other instructions as may be designated in writing by the 

Investor to the Recipient.

If to the Investor:

United States Department of the Treasury

1500 Pennsylvania Avenue, NW

Washington, D.C. 20220

Attention: [to come]

Facsimile: [to come]

E-mail: [to come]

with a copy to:

[Address to come]

Attention: [to come]

Facsimile: [to come]

E-mail: [to come]

Section 8.7 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 Recipient’s Equityholders or other equity securityholders (a “Business Combination”) where 
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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 access and information rights as provided in Section 4.1(c) or the right to receive Qualified 

Lending Reports as provided in Section 4.1(h) 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 Recipient’s obligations and liabilities hereunder shall continue to be 

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

Section 8.8 Severability. If any provision of this Agreement or the Subordinated Debt, 

or the application thereof to any person or circumstance, is determined by a court of competent 

jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof, or the 

application of such provision to persons or circumstances other than those as to which it has been 

held invalid or unenforceable, will remain in full force and effect and shall in no way be affected, 

impaired or invalidated thereby, so long as the economic or legal substance of the transactions 

contemplated hereby is not affected in any manner materially adverse to any party. Upon such 

determination, the parties shall negotiate in good faith in an effort to agree upon a suitable and 

equitable substitute provision to effect the original intent of the parties.

Section 8.9 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 Recipient and the Investor (and any Indemnitee) any benefit, right or 

remedies.

Section 8.10 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.

* * *
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

Annex A-1

ANNEX A

FORM OF SUBORDINATED SECURITY

[ATTACHED]
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

Annex B-1

ANNEX B

FORM OF OFFICER’S CERTIFICATE

OFFICER’S CERTIFICATE OF

[RECIPIENT]

In connection with that certain letter agreement, dated [ ], 20[ ] (the 

“Agreement”) by and between [RECIPIENT] (the “Recipient”) 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 Recipient.

2. The representations and warranties of the Recipient 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 Recipient has performed in all material respects all obligations required to be performed by it 

under the Agreement.

3. The Recipient is an Eligible Financial Institution and, as applicable, has 

delivered to the Investor true, complete and correct copies of any certifications pertinent to its 

status as an Eligible Financial Institution.

4. No material changes have been made, or are anticipated to be made, to the 

Investment and Lending Plan the Recipient submitted in connection with its ECIP Application.

5. The Recipient is in compliance with the provisions of Section 104A of the 

Community Development Banking and Financial Institutions Act of 1994, and all rules and 

regulations issued thereunder, including the ECIP Interim Final Rule.

6. Neither the Recipient nor any Recipient Subsidiary is a “covered entity” as 

defined in Section 104A(h)(2)(ii) of the Community Development Banking Act.

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

Section 2.3 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]
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

Annex B-2

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

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

[RECIPIENT]

By:

Name:

Title:
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

Annex C-1

ANNEX C

FORM OF OPINION

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

ORGANIZATION] and, if applicable, is in good standing under the laws of the jurisdiction of its 

organization. The Recipient 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 Recipient has been duly qualified as a foreign entity for the transaction 

of business and is, if applicable, in good standing, under the laws of each jurisdiction in which it 

owns or leases material properties or conducts any material business so as to require such 

qualification.

(c) The Subordinated Debt has been duly and validly authorized, and, when 

executed and delivered pursuant to the Agreement, the Subordinated Debt will be the legal, valid 

and binding obligations of the Recipient, enforceable in accordance with their terms, except as the 

same may be limited by applicable receivership, insolvency, reorganization, moratorium or similar 

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

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

(d) The Recipient 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 

Subordinated Debt).

(e) The execution, delivery and performance by the Recipient 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 Recipient and its Equityholders, and no further 

approval or authorization is required on the part of the Recipient, including, without limitation, by 

any rule or requirement of any national securities exchange.

(f) The Agreement is a legal, valid and binding obligation of the Recipient 

enforceable against the Recipient in accordance with its terms, except as limited by applicable 

receivership, bankruptcy, insolvency, reorganization, moratorium, conservatorship 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 Recipient of this Agreement and the 

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

Governmental Entity to be obtained on the part of the Recipient, 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 Recipient or any Recipient Subsidiary under any of the terms, conditions 

or provisions of its organizational documents or under any agreement, contract, indenture, lease, 

mortgage, power of attorney, evidence of indebtedness, letter of credit, license, instrument, 
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

Annex C-2

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 Recipient and, pursuant to any applicable laws, is issued by any Governmental Entity having 

jurisdiction over the Recipient.

(h) Other than 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 Recipient in connection with the 

consummation by the Recipient of the Purchase.

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

Subordinated Debt 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.

(j) The Recipient is an Eligible Financial Institution.
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

Annex D-1

ANNEX D

FORM OF ECIP INTERIM FINAL RULE CERTIFICATION

ECIP CERTIFICATION OF

[RECIPIENT]

In connection with that certain Letter Agreement, dated [ ], 20[ ] (the “Agreement”) 

by and between [RECIPIENT] (the “Recipient”) and the United States Department of the Treasury 

(the “Investor”), the undersigned does hereby certify on behalf of the Recipient as follows:

1. I am a duly elected/appointed Senior Executive Officer of the Recipient.

2. From the Closing Date through the date of this certification, the Recipient has complied 

with the requirements in:

a. 31 C.F.R. 35.22(a), which addresses restrictions on executive compensation;

b. 31 C.F.R. 35.22(b), which addresses restrictions on severance payments;

c. 31 C.F.R. 35.22(c), which addresses restrictions on excessive or luxury expenditures;

d. 31 C.F.R. 35.22(d), which addresses material changes in policies or procedures 

maintained for purposes of compliance with 31 C.F.R. 35.22(a)–(c);

e. 31 C.F.R. 35.23(a), which addressees restrictions on capital distributions due to 

nonpayment of the Subordinated Debt; and

f. 31 C.F.R. 35.23(b), which addresses limitations on the amount of capital distributions.

3. The undersigned and the Recipient understand that a knowing and willful false or 

fraudulent statement made in connection with this certification may be punished by fine, 

imprisonment, or both. (See, for example, 18 U.S.C. 1001).

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

Section 4.1(d)(iii) of the Agreement.

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

in the Agreement unless otherwise stated.

[Signature page follows]
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

Annex D-2

IN WITNESS WHEREOF, this Certificate has been duly executed and delivered as of the [ ] 

day of [ ], 20[ ].

[RECIPIENT]

By:

Name:

Title: [Chief Executive Officer/

Chief Financial Officer]

By:

Name:

Title: [Chief Executive Officer/

Chief Financial Officer]
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

Annex E-1

ANNEX E

REGISTRATION RIGHTS

Section 1.1 Definitions. Terms not defined in this Annex shall have the meaning 

given to such terms in the Agreement. As used in this Annex E, the following terms shall have the 

following respective meanings:

(a) “Applicable Securities Regulator” means, in the case of a Recipient that is 

a state-chartered bank or savings association, the Governmental Entity having the powers, 

functions and duties of the SEC to administer and enforce Sections 12, 13, 14(a), 14(c), 14(d), 

14(f) and 16 of the Exchange Act with respect to securities issued by the Recipient.

(b) “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.

(c) “Holders’ Counsel” means one counsel for the selling Holders chosen by 

Holders holding a majority interest in the Registrable Securities being registered.

(d) “OCC” means the Office of the Comptroller of the Currency.

(e) “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 Recipient 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.

(f) “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 (or Part 16, if the Recipient 

is a national bank or federal savings association), and the declaration or ordering of effectiveness 

of such registration statement or amendment thereto or (B) filing a prospectus and/or prospectus 

supplement with respect to an appropriate effective registration statement on Form S-3.

(g) “Registrable Securities” means (A) all Subordinated Debt, 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 (or Part 16, if the Recipient is a national 

bank or federal savings association), (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.
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

Annex E-2

(h) “Registration Expenses” mean all expenses incurred by the Recipient 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 Recipient, “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 

Recipient’s independent accountants in connection with any regular or special reviews or audits 

incident to or required by any such registration, but shall not include Selling Expenses.

(i) “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.

(j) “Selling Expenses” mean all discounts, selling commissions and security 

transfer taxes applicable to the sale of Registrable Securities and fees and disbursements of counsel 

for any Holder (other than the fees and disbursements of Holders’ Counsel included in Registration 

Expenses).

(k) “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 Recipient or Recipient Subsidiaries or in connection with dividend reinvestment plans.

Section 1.2 Registration.

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

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

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

prepare and file with the SEC (or the OCC, if the Recipient is a national bank or federal savings 

association) 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 (or the OCC, if the Recipient is a federal 

savings association) 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 Recipient 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 (or Part 16, if the Recipient is a federal savings 

association) and usable for resale of such Registrable Securities for a period from the date of its 

initial effectiveness until such time as there are no Registrable Securities remaining (including by 

refiling such Shelf Registration Statement (or a new Shelf Registration Statement) if the initial 

Shelf Registration Statement expires), and prepare an Indenture covering the Registrable Securities 

meeting the requirements of the Indenture Act and use its reasonable best efforts to cause such 

Indenture to be qualified under the Indenture Act. So long as the Recipient is a well-known 

seasoned issuer (as defined in Rule 405 under the Securities Act) at the time of filing of the Shelf 

Registration Statement with the SEC, such Shelf Registration Statement shall be designated by the 

Recipient as an automatic Shelf Registration Statement. Notwithstanding the foregoing, if the 
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

Annex E-3

Recipient is not eligible to file a registration statement on Form S-3, then the Recipient 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 (or Part 16, if the Recipient is a national bank or federal savings association). 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 Recipient and the Recipient 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 Recipient shall not be required to facilitate an 

underwritten offering of Registrable Securities unless (i) the expected gross proceeds from such 

offering exceed $200,000 or (ii) such underwritten offering includes all 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 Recipient 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 Recipient 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 

Recipient or its securityholders for such registration or underwritten offering to be effected at such 

time, in which event the Recipient shall have the right to defer such registration or offering for a 

period of not more than forty-five (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 Recipient (1) only if the Recipient 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 twelve (12)-month period and not more than ninety (90) days in 

the aggregate in any twelve (12)-month period. The Recipient shall notify the Holders of the date 

of any anticipated termination of any such deferral period prior to such date.

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

available, the Recipient 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 Recipient will (A) give prompt written notice to the Investor and all other Holders of its 

intention to effect such a registration (but in no event less than ten (10) days prior to the anticipated 

filing date) and will include in such registration all Registrable Securities with respect to which 

the Recipient has received written requests for inclusion therein within ten (10) business days after 

the date of the Recipient’s notice and (B) if requested by the Investor or a Holder, prepare an 

Indenture meeting the requirements of the Indenture Act and use its reasonable best efforts to cause 

such Indenture to be qualified under the Indenture Act (such registration and qualification, a 

“Piggyback Registration”). Any such person that has made such a written request may withdraw 

its Registrable Securities from such Piggyback Registration by giving written notice to the 

Recipient and the managing underwriter, if any, on or before the fifth (5th) business day prior to 

the planned effective date of such Piggyback Registration. The Recipient may terminate or 

withdraw any registration or qualification under this Section 1.2(d) of this Annex E prior to the 
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

Annex E-4

effectiveness of such registration or qualification, whether or not Investor or any other Holders 

have elected to include Registrable Securities in such registration or qualification.

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

to be underwritten, the Recipient 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 Recipient 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 Recipient; provided that the Investor (as opposed to other Holders) 

shall not be required to indemnify any person in connection with any registration. If any 

participating person disapproves of the terms of the underwriting, such person may elect to 

withdraw therefrom by written notice to the Recipient, the managing underwriters and the Investor 

(if the Investor is participating in the underwriting).

(f) If either (x) the Recipient 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 Recipient, 

and in either case the managing underwriters advise the Recipient that in their reasonable opinion 

the number of securities requested to be included in such offering exceeds the number which can

be sold without adversely affecting the marketability of such offering (including an adverse effect 

on the per security offering price), the Recipient will include in such offering only such number of 

securities that in the reasonable opinion of such managing underwriters can be sold without 

adversely affecting the marketability of the offering (including an adverse effect on the per security 

offering price), which securities will be so included in the following order of priority: (A) first, in 

the case of a Piggyback Registration under Section 1.2(d) of this Annex E, the securities the 

Recipient proposes to sell, (B) then the Registrable Securities of the Investor and all other Holders 

who have requested inclusion of Registrable Securities pursuant to Section 1.2(b) or Section 1.2(d)

of this Annex E, as applicable, pro rata on the basis of the aggregate number of such securities 

owned by each such person and (C) lastly, any other securities of the Recipient that have been 

requested to be so included, subject to the terms of this Agreement; provided, however, that if the 

Recipient 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 this Annex E would otherwise result in a 

breach under such agreement.

Section 1.3 Expenses of Registration. All Registration Expenses incurred in 

connection with any registration, qualification or compliance hereunder shall be borne by the 

Recipient. 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.
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

Annex E-5

Section 1.4 Obligations of the Recipient. The Recipient shall use its reasonable 

best efforts, for so long as there are Registrable Securities outstanding, to take such actions as are 

under its control to not become an ineligible issuer (as defined in Rule 405 under the Securities 

Act) and to remain a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) 

if it has such status on the Signing Date or becomes eligible for such status thereafter. In addition, 

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 

Recipient shall, as expeditiously as reasonably practicable:

(a) Prepare and file with the SEC (or the OCC, if the Recipient is a national 

bank or federal savings association) (A) 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; and (B) an Indenture for qualification under the Indenture Act. The plan 

of distribution included in such registration statement shall include, among other things, an 

underwritten offering, ordinary brokerage transactions and transactions in which the broker-dealer 

solicits purchasers, block trades, privately negotiated transactions, the writing or settlement of 

options or other derivative transactions and any other method permitted pursuant to applicable law, 

and any combination of any such methods of sale.

(b) Prepare and file with the SEC(or the OCC, if the Recipient is a national 

bank or federal savings association) such amendments and supplements: (A) to the applicable 

registration statement and the prospectus or prospectus supplement used in connection with such 

registration statement as may be necessary to comply with the provisions of the Securities Act (or 

Part 16, if the Recipient is a national bank or federal savings association); and (B) to the Indenture, 

with respect to the disposition of all securities covered by such registration statement and 

Indenture.

(c) Furnish to the Holders and any underwriters such number of copies of the 

applicable registration statement and each such amendment and supplement thereto (including in 

each case all exhibits) and of a prospectus, including a preliminary prospectus, in conformity with 

the requirements of the Securities Act (or Part 16, if the Recipient is a national bank or federal 

savings association), the Indenture and such other documents as they may reasonably request in 

order to facilitate the disposition of Registrable Securities owned or to be distributed by them.

(d) Use its reasonable best efforts to register and qualify the securities covered 

by such registration statement under such other securities or “blue sky” laws of such jurisdictions 

as shall be reasonably requested by the Holders or any managing underwriter(s), to keep such 

registration or qualification in effect for so long as such registration statement remains in effect, 

and to take any other action which may be reasonably necessary to enable such seller to 

consummate the disposition in such jurisdictions of the securities owned by such Holder; provided 

that the Recipient 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 (or Part 16, if the Recipient is 
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

Annex E-6

a national bank or federal savings association) 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 or Indenture filed pursuant to 

Section 4.1(i) of the Agreement or any amendment thereto has been filed with the 

SEC (or Part 16, if the Recipient is a national bank or federal savings association) 

(except for any amendment effected by the filing of a document with the SEC 

pursuant to the Exchange Act) (or with the OCC, if the Recipient is national bank 

or federal savings association) and when such registration statement or any posteffective amendment thereto has become effective;

(ii) of any request by the SEC (or the OCC, if the Recipient is a national 

bank or federal savings association) for amendments or supplements to any 

registration statement or the prospectus included therein, or the Indenture or for 

additional information;

(iii) of the issuance by the SEC (or the OCC, if the Recipient is a national 

bank or federal savings association) 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 Recipient 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 Recipient to make 

changes in any effective registration statement or the prospectus related to the 

registration statement or to the Indenture in order to make the statements therein 

not misleading (which notice shall be accompanied by an instruction to suspend the 

use of the prospectus until the requisite changes have been made); and

(vi) if at any time the representations and warranties of the Recipient 

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)(i) of this Annex E at the earliest practicable time.

(h) Upon the occurrence of any event contemplated by Section 1.4(a) or 

Section 1.4(f)(iv) of this Annex E, promptly prepare a post-effective amendment to such 

registration statement or a supplement to the related prospectus or the Indenture or file any other 

required document so that, as thereafter delivered to the Holders and any underwriters, the 

prospectus or the Indenture will not contain an untrue statement of a material fact or omit to state 
FOR REFERENCE ONLY – NOT FOR EXECUTION – UPDATED 3.25.2022

Annex E-7

any material fact necessary to make the statements therein, in light of the circumstances under 

which they were made, not misleading. If the Recipient notifies the Holders in accordance with 

Section 1.4(f)(iv) of this Annex E to suspend the use of the prospectus until the requisite changes 

to the prospectus or the Indenture have been made, then the Holders and any underwriters shall 

suspend use of such prospectus and use their reasonable best efforts to return to the Recipient all 

copies of such prospectus (at the Recipient’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 twelve (12)-month period shall not exceed ninety (90) days. The Recipient shall 

notify the Holders of the date of any anticipated termination of any such suspension period prior 

to such date.

(i) Use reasonable best efforts to procure the cooperation of the Recipient’s 

transfer agent in settling any offering or sale of Registrable Securities, including with respect to 

the transfer of physical debentures 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 Recipient available to participate in “road shows”, similar sales events and other marketing 

activities), (A) make such representations and warranties to the Holders that are selling 

securityholders and the managing underwriter(s), if any, with respect to the business of the 

Recipient 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 and “10b-5” letters of counsel to 

the Recipient, addressed to the managing underwriter(s), if any, covering the matters customarily 

covered in such opinions and letters requested in underwritten offerings, (C) use its reasonable 

best efforts to obtain “cold comfort” letters from the independent certified public accountants of 

the Recipient (and, if necessary, any other independent certified public accountants of any business 

acquired by the Recipient 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 Recipient.
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Annex E-8

(k) Make available for inspection by a representative of selling Holders, the 

managing underwriter(s), if any, and any attorneys or accountants retained by such Holders or 

managing underwriter(s), at the offices where normally kept, during reasonable business hours, 

financial and other records, pertinent corporate documents and properties of the Recipient, and 

cause the officers, directors and employees of the Recipient 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 Recipient are 

then listed or, if no similar securities issued by the Recipient 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 Recipient 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.

Section 1.5 Suspension of Sales. Upon receipt of written notice from the 

Recipient that a registration statement, prospectus or prospectus supplement, or Indenture contains 

or may contain an untrue statement of a material fact or omits or may omit to state a material fact 

required to be stated therein or necessary to make the statements therein not misleading or that 

circumstances exist that make inadvisable use of such registration statement, prospectus or 

prospectus supplement, or Indenture, the Investor and each Holder of Registrable Securities shall 

forthwith discontinue disposition of Registrable Securities until the Investor and/or Holder has 

received copies of a supplemented or amended prospectus or prospectus supplement, or Indenture, 

or until the Investor and/or such Holder is advised in writing by the Recipient that the use of the 

prospectus and, if applicable, prospectus supplement or Indenture may be resumed, and, if so 

directed by the Recipient, the Investor and/or such Holder shall deliver to the Recipient (at the 

Recipient’s expense) all copies, other than permanent file copies then in the Investor and/or such 

Holder’s possession, of the prospectus and, if applicable, prospectus supplement or Indenture 

covering such Registrable Securities current at the time of receipt of such notice. The total number 

of days that any such suspension may be in effect in any twelve (12)-month period shall not exceed 

ninety (90) days. The Recipient shall notify the Investor and the Holders prior to the anticipated 

termination of any such suspension period of the date of such anticipated termination.
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Annex E-9

Section 1.6 Termination of Registration Rights. A Holder’s registration rights 

as to any securities held by such Holder (and its Affiliates, partners, members and former 

members) shall not be available unless such securities are Registrable Securities.

Section 1.7 Furnishing Information.

(a) Neither the Investor nor any Holder shall use any free writing prospectus 

(as defined in Rule 405) in connection with the sale of Registrable Securities without the prior 

written consent of the Recipient.

(b) It shall be a condition precedent to the obligations of the Recipient 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 Recipient such information regarding themselves, the 

Registrable Securities held by them and the intended method of disposition of such securities as 

shall be required to effect the registered offering of their Registrable Securities.

Section 1.8 Indemnification.

(a) The Recipient 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 defined in Rule 405) or 

contained in any Indenture, prepared by the Recipient 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 Recipient 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 defined in Rule 405) or contained in any Indenture, 

prepared by the Recipient 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 

Recipient by such Indemnitee for use in connection with such registration statement, including any 

such preliminary prospectus or final prospectus contained therein or any such amendments or 

supplements thereto, or any Indenture or (B) offers or sales effected by or on behalf of such 

Indemnitee “by means of” (as defined in Rule 159A) a “free writing prospectus” (as defined in 

Rule 405) that was not authorized in writing by the Recipient.
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Annex E-10

(b) If the indemnification provided for in Section 1.8 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 Recipient, 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 Recipient, 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 Recipient, 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 Recipient or by the Indemnitee and the parties’ relative intent, 

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

omission; the Recipient 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(b) 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 Recipient 

if the Recipient was not guilty of such fraudulent misrepresentation.

Section 1.9 Assignment of Registration Rights. The rights of the Investor to 

registration of Registrable Securities pursuant to Section 1.2 of this Annex E may be assigned by 

the Investor to a transferee or assignee of Registrable Securities; provided, however, the transferor 

shall, within ten (10) days after such transfer, furnish to the Recipient written notice of the name 

and address of such transferee or assignee and the number and type of Registrable Securities that 

are being assigned.

Section 1.10 Clear Market. With respect to any underwritten offering of 

Registrable Securities by the Investor or other Holders pursuant to this Annex E, the Recipient 

agrees not to effect (other than pursuant to such registration or pursuant to a Special Registration) 

any public sale or distribution, or to file any Shelf Registration Statement (other than such 

registration or a Special Registration) covering any subordinated debentures or equity securities of 

the Recipient or any securities convertible into or exchangeable or exercisable for subordinated 

debentures or equity securities of the Recipient, during the period not to exceed ten (10) days prior 

and sixty (60) days following the effective date of such offering or such longer period up to ninety 

(90) days as may be requested by the managing underwriter for such underwritten offering. The 

Recipient also agrees to cause such of its directors and senior executive officers to execute and 

deliver customary lock-up agreements in such form and for such time period up to ninety (90) days 

as may be requested by the managing underwriter.

Section 1.11 Forfeiture of Rights. At any time, any holder of Registrable 

Securities (including any Holder) may elect to forfeit its rights set forth in this Annex E from that 

date forward; provided, that a Holder forfeiting such rights shall nonetheless be entitled to 

participate under Section 1.2(d) – (f) of this Annex E in any Pending Underwritten Offering to the 

same extent that such Holder would have been entitled to if the holder had not withdrawn; and 

provided, further, that no such forfeiture shall terminate a Holder’s rights or obligations under 
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Annex E-11

Section 1.7 of this Annex E with respect to any prior registration or Pending Underwritten 

Offering.

Section 1.12 Specific Performance. The parties hereto acknowledge that there 

would be no adequate remedy at law if the Recipient 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 Recipient under this Section 1.12 in accordance with the terms and conditions 

of this Annex E.

Section 1.13 No Inconsistent Agreements. The Recipient 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 Recipient has, prior to the Signing Date, entered into any 

agreement with respect to its securities that is inconsistent with the rights granted to the Investor 

and the Holders under this Annex E (including agreements that are inconsistent with the order of 

priority contemplated by Section 1.2(f) of this Annex E) or that may otherwise conflict with the 

provisions hereof, the Recipient shall use its reasonable best efforts to amend such agreements to 

ensure they are consistent with the provisions of this Annex E. Any transaction entered into by 

the Recipient that would reasonably be expected to require the inclusion in a Shelf Registration 

Statement or any report of the Recipient filed with the SEC (or the OCC, if the Recipient is a 

national bank or federal savings association) of any separate financial statements pursuant to 

Rule 3-05 of Regulation S-X or pro forma financial statements pursuant to Article 11 of 

Regulation S-X shall include provisions requiring the Recipient’s counterparty to provide any 

information necessary to allow the Recipient to comply with its obligation hereunder.

Section 1.14 Certain Offerings by the Investor. An “underwritten” offering or 

other disposition shall include any distribution of such securities on behalf of the Investor by one 

or more broker-dealers, an “underwriting agreement” shall include any purchase agreement 

entered into by such broker-dealers, and any “registration statement” or “prospectus” shall include 

any offering document approved by the Recipient and used in connection with such distribution.

Section 1.15 Other Cooperation. If the Recipient is a state-chartered savings 

association and the transfer or sale of the Registrable Securities is subject to any requirements 

under applicable state law or regulation relating to such transfer or sale, the Recipient will 

cooperate and assist in complying with such law and regulation in order to provide the Holders 

with the benefit of rights to effect or participate in broadly distributed underwritten offerings of 

the Registrable Securities.

Section 1.16 State-Chartered Banks and Savings Associations. If the Recipient 

is a state-chartered bank or savings association, the Investor and Recipient acknowledge that, as 

of the Signing Date, the Registrable Securities are securities of an insured depository institution 

and, accordingly, the transfer of such securities is exempt from the registration requirements of the 

Securities Act and qualification and registration requirements under state law. Notwithstanding 
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Annex E-12

the foregoing, so long as the Registrable Securities are subject to the exemption provided by 

Section 3(a)(2) or Section 3(a)(5) of the Securities Act, the provisions of this Annex E shall, to the 

extent practicable and where applicable, be interpreted so as to nonetheless provide the Holders 

with the benefit of rights to effect or participate in broadly distributed underwritten offerings of 

the Registrable Securities. Without limiting the generality of the foregoing, so long as the 

Registrable Securities are subject to the exemption provided by Section 3(a)(2) or Section 3(a)(5) 

of the Securities Act: (i) all references to the “SEC” shall be deemed to refer to the Applicable 

Securities Regulator and all references to provisions of the Securities Act shall be deemed to refer 

to the corresponding provision of the applicable banking law or regulation, if any; and (ii) if, under 

such applicable laws, rules and regulations of the Applicable Securities Regulator, no registration 

statement or correlative filing is required to be made, then (A) any references herein to a 

“registration statement” or “prospectus” shall be deemed to refer to an offering memorandum or 

other offering materials with respect to the applicable transfer of Registrable Securities, (B) any 

references herein to the filing of a registration statement shall be deemed to refer instead to the 

time when such broadly distributed underwritten offering is proposed to be commenced and 

(C) any references herein to the preparation and filing of a registration statement or prospectus 

shall be deemed to refer to the preparation of an offering memorandum or other appropriate 

offering materials.