Unassociated Document


    


     

    PURCHASE
AGREEMENT

     

    among

     

     

    REPUBLIC
FIRST BANCORP, INC.,

     

     

    REPUBLIC
FIRST BANCORP CAPITAL TRUST IV

     

     

    and

     

     

    VERNON
W. HILL, II,

     

    THE
HARRY D. MADONNA FAMILY TRUST,

     

    STEVEN
M. LEWIS,

    


    JOHN P.
SILVESTRI, and

     

    THEODORE
J. FLOCCO, JR.,

    


    


     

    AS
PURCHASERS

     

     

    ________________

     

     

    Dated as
of June 10, 2008

     

    ________________

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    PURCHASE
AGREEMENT

     

    $10,800,000
Convertible Trust
Preferred Securities

     

    THIS
PURCHASE AGREEMENT (the “Agreement”), dated as of June 10, 2008 (the “Closing
Date”), is entered into among, Republic First Bancorp, Inc., a Pennsylvania
corporation (the “Company”), Republic First Bancorp Capital Trust IV, a
statutory trust organized under the Delaware Statutory Trust Act (the “Delaware
Act”), 12 Del. C. § 3801 et seq. (the “Trust,”
and, together with the Company, the “Offerors”), and the Purchasers as set forth
in Schedule A (each, a “Purchaser” and together, the “Purchasers”).

     

    WITNESSETH:

     

    WHEREAS,
the Offerors propose that the Trust issue and sell an aggregate of 10,800
Convertible Capital Securities of the Trust (with a stated liquidation amount of
$1,000 per capital security) having the terms described in the Declaration
(defined below) (“Capital Securities”) to the Purchasers;

     

    WHEREAS
the Capital Securities will be convertible into common stock of the Company, par
value $0.01 per share (“Common Stock”), by the Purchasers (i) at any time on or
after the occurrence of the following events: (1) if, as of the last day of any
calendar quarter beginning with the quarter June 30, 2008, the closing sale
price of the Common Stock for at least 20 trading days in a period of 30
consecutive trading days ending on the last trading day of such calendar quarter
is more than 110% of the conversion price in effect on the last day of such
calendar; (2) upon the occurrence of the following corporate events: (a) a
“change in control” of the Company, which will be deemed to have occurred at
such time as a report is filed on Schedule 13D or TO disclosing that any person
has become the beneficial owner of 50% or more of the voting power of the Common
Stock then outstanding, (b) any compulsory share exchange, (c) any consolidation
of the Company with, or merger of the Company into any other person, any merger
of another person into the Company (other than a merger which does not result in
a reclassification, conversion, exchange or cancellation of outstanding shares
of Common Stock), or (d) any sale, transfer or lease of all or substantially all
of the assets of the Company; (ii) at any time after June 30, 2009; and (iii) on
the business day immediately preceding the date of repayment of such Capital
Securities, whether at stated maturity or upon redemption;

     

    WHEREAS
the Company may redeem the Capital Securities, subject to conditions set forth
in the Indenture, prior to maturity, in whole or in part, on one or more
occasions (i) at any time on or after June 30, 2013 if the Closing Price (as
defined in the Indenture, which is defined below) of Common Stock for 20 Trading
Days (as defined in the Indenture) in a period of 30 consecutive Trading Days
ending on the Trading Day prior to the mailing of the notice of redemption
exceeds 120% of the then prevailing Conversion Price (as defined in the
Indenture); and (ii) at any time on or after June 30, 2018;

     

    WHEREAS,
the entire proceeds from the sale by the Trust of the Capital Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
335 common securities (the “Common Securities”); and

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    WHEREAS,
the Capital Securities will be guaranteed by the Company to the extent provided
in the Guarantee Agreement, dated as of the Closing Date (the “Guarantee
Agreement”), between the Company, as guarantor, and Wilmington Trust Company, as
guarantee trustee (the “Guarantee Trustee”), with respect to distributions and
payments upon liquidation, redemption and otherwise; and

     

    WHEREAS,
the entire proceeds from the sale of the Capital Securities will be combined
with the entire proceeds from the sale by the Trust to the Company of its common
securities (the “Common Securities”), and will be used by the Trust to purchase
$11,135,000 aggregate principal amount of Convertible Junior Subordinated Debt
Securities due 2038 (the “Subordinated Debt Securities”) issued by the
Company.  The Capital Securities and the Common Securities will be
issued pursuant to the Amended and Restated Declaration of Trust, to be dated as
of the Closing Date (the “Declaration”), among the Company, as sponsor, the
Administrators named therein (the “Administrators”), Wilmington Trust Company,
as institutional trustee (the “Institutional Trustee”), Wilmington Trust
Company, as Delaware trustee (the “Delaware Trustee”), and the holders, from
time to time, of undivided beneficial interests in the assets of the
Trust.  The Subordinated Debt Securities will be issued pursuant to
the Indenture, to be dated as of the Closing Date (the “Indenture”), between the
Company and Wilmington Trust Company, as indenture trustee (the “Indenture
Trustee”).  The Indenture, the Guarantee Agreement, the Declaration,
and this Agreement are hereinafter referred to collectively as the “Operative
Documents.”

     

    NOW,
THEREFORE, in consideration of the foregoing and the mutual agreements and
subject to the terms and conditions herein set forth, the parties hereto agree
as follows:

     

    SECTION
1. Representations and
Warranties of the Offerors.

     

    (a) The Trust
and the Company, jointly and severally, represent and warrant to each Purchaser
of Capital Securities as of the date hereof and as of the Closing Date, and
agree with each Purchaser, as follows:

     

    (i) Similar
Offerings.  Within a period of six months before or after the
date hereof, the Offerors have not, directly or indirectly, solicited any offer
to buy or offered to sell, and will not, directly or indirectly, solicit any
offer to buy or offer to sell, in the United States or to any United States
citizen or resident, any security which is or would be integrated with the sale
of the Capital Securities (including any securities of the same or a similar
class as the Capital Securities) in a manner that would require the Capital
Securities to be registered under the Securities Act of 1933, as amended (the
“1933 Act”).

     

    (ii) Incorporated
Documents.  The documents of the Company filed with the
Securities and Exchange Commission (the “Commission”) in accordance with the
Securities Exchange Act of 1934, as amended (the “1934 Act”), from and including
the commencement of the fiscal year covered by the Company’s most recent Annual
Report on Form 10-K, at the time they were or hereafter are filed by the Company
with the Commission (collectively, the “1934 Act Reports”), complied and will
comply in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the 

     

    
      
         

      

      
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    “1934 Act
Regulations”), and, at the date of this Agreement and on the Closing Date, do
not and will not include an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and other than such instruments, agreements, contracts and
other documents as are filed as exhibits to the Company’s Annual Report on Form
10-K, Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, there are
no instruments, agreements, contracts or documents of a character described in
Item 601 of Regulation S-K promulgated by the Commission to which the Company or
any of its subsidiaries is a party.

     

    (iii) Independent
Accountants.  The accountants of the Company who certified the
financial statements included in the 1934 Act Reports (the “Independent
Accountants”) are independent public accountants of the Company and its
subsidiaries within the meaning of the 1933 Act and the rules and regulations of
the Commission thereunder (the “1933 Act Regulations”).

     

    (iv) Financial Statements and
Information.  The consolidated historical financial statements
of the Company, together with the related schedules and notes, included in the
1934 Act Reports present fairly, in all material respects, the respective
consolidated financial positions of the Company and its consolidated
subsidiaries at the respective dates indicated, and the consolidated statements
of income, changes in stockholders’ equity and cash flows of the Company and its
consolidated subsidiaries for the respective periods specified; said financial
statements have been prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis throughout the
periods involved, except as disclosed in the notes to such financial statements;
the supporting schedules, if any, included in the 1934 Act Reports present
fairly, in all material respects, the information required to be stated therein;
and any pro forma financial statements and the related notes thereto included in
the 1934 Act Reports present fairly, in all material respects, the information
shown therein, have been prepared in accordance with the Commission’s rules and
guidelines with respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred to
therein.

     

    (v) No Material Adverse
Change.  Since March 31, 2008, there have not been (A) any
events, changes, or circumstances that have occurred or are occurring that,
singularly or in the aggregate, has had or would reasonably be expected to
result in a material adverse change in the condition, financial, regulatory or
otherwise, or in the business affairs, management, stockholders’ equity, results
of operations, or business prospects of the Trust or of the Company and its
subsidiaries, each of which is listed in Schedule B, considered as one
enterprise, whether or not arising in the ordinary course of business (a
“Material Adverse Effect”) or (B) any dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock other
than regular quarterly dividends on the Company’s common stock declared and paid
consistent with past practice.

     

    (vi) Internal Accounting
Controls.  The Company and its subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with the management’s general or
specific 

     

    
      
         

      

      
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    authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability, (iii) access to assets is permitted only in
accordance with the management’s general or specific authorization and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.

     

    (vii) Disclosure
Controls.  The Company has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15(e) and 15d-15(e)
under the 1934 Act); such disclosure controls and procedures (i) are designed to
ensure that material information relating to the Company, including its
consolidated subsidiaries, is made known to the Company’s Chief Executive
Officer and its Chief Financial Officer by others within those entities,
particularly during the periods in which the 1934 Act Reports are being
prepared, (ii) have been evaluated for effectiveness as of the end of the annual
or quarterly period reported to the Commission and (iii) are effective to
perform the functions for which they were established; the Company’s auditors
and the Audit Committee of the Board of Directors have been advised of: (A) any
significant deficiencies in the design or operation of internal controls which
could adversely affect the Company’s ability to record, process, summarize, and
report financial data and (B) any fraud, whether or not material, that involves
management or other employees who have a role in the Company’s internal
controls; any material weaknesses in internal controls have been identified for
the Company’s auditors; and since the date of the most recent evaluation of such
disclosure controls and procedures, there have been no significant changes in
internal controls or in other factors that could significantly affect internal
controls, including any corrective actions with regard to significant
deficiencies and material weaknesses.

     

    (viii) Regulatory
Matters.  (a) Neither the Company nor any of its subsidiaries
is subject or is party to, or has received any written notice that any of them
may become subject or party to any investigation with respect to, any
corrective, suspension or cease-and-desist order, agreement, consent agreement,
memorandum of understanding or other regulatory enforcement action, proceeding
or order with or by, or is a party to any commitment letter or similar
undertaking to, or is subject to any directive by, or has been a recipient of
any supervisory letter from, or has adopted any board resolutions at the request
of, any Regulatory Agency (as defined below) that currently (i) restricts in any
material respect the conduct of their business, (ii) relates to their capital
adequacy or (iii) in any material manner relates to their management or business
(each, a “Regulatory Agreement”), nor has the Company or any of its subsidiaries
been advised in writing by any Regulatory Agency that it is considering issuing
or requesting any such Regulatory Agreement; there is no unresolved violation,
criticism or exception by any Regulatory Agency with respect to any report or
statement relating to any examinations of the Company or any of its subsidiaries
which would reasonably be expected to have a Material Adverse
Effect.  As used herein, the term “Regulatory Agency” means any
federal or state agency charged with the supervision or regulation of depositary
institutions or holding companies of depositary institutions, or engaged in the
insurance of depositary institution deposits, or any court, administrative
agency or commission or other governmental agency, authority or instrumentality
having supervisory or regulatory authority with respect to the Company or any of
its subsidiaries.

     

    
      
         

      

      
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    (b)  Since
January 1, 2005, the Company and its Significant Subsidiary has timely filed all
reports, registration statements, proxy statements and other materials, together
with any amendments required to be made with respect thereto, that were required
to be filed with (i) the Office of Thrift Supervision, (ii) the Office of the
Comptroller of the Currency, (iv) the Federal Reserve Board, (iii) the Federal
Deposit Insurance Corporation (the “FDIC”) and (iv) any other federal, state or
foreign Governmental Entity (all such reports and statements are collectively
referred to herein as the “Reports”), and have paid all fees and assessments due
and payable in connection therewith. As of their respective dates, the Reports
complied in all material respects with all of the statutes and published rules
and regulations enforced or promulgated by the regulatory authority with which
they were filed and with respect to all other Reports, were complete and
accurate in all material respects as of their respective dates.  There
are no facts existing as of the date hereof peculiar to the Company or its
Significant Subsidiary that the Company has not disclosed in the Reports or to
the Purchasers in writing that, individually or in the aggregate, have had or
would reasonably be expected to have a Material Adverse Effect.

     

    (ix) No Undisclosed
Liabilities.  Neither the Company nor any of its subsidiaries
has any material liability, whether known or unknown, whether asserted or
unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated, and whether due or to become due, including
any liability for taxes (and there is no past or present fact, situation,
circumstance, condition or other basis for any present or future action, suit,
proceeding, hearing, charge, complaint, claim or demand against the Company or
its subsidiaries giving rise to any such liability), except (i) for liabilities
set forth in the financial statements referred to in Section 1(a)(iv) above and
(ii) normal fluctuations in the amount of the liabilities referred to in clause
(i) above occurring in the ordinary course of business of the Company and all of
its subsidiaries since the date of the most recent balance sheet included in
such financial statements.

     

    (x) Good Standing of the
Company.  The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the Commonwealth of
Pennsylvania and has full power and authority under such laws to own, lease and
operate its properties and to conduct its business, to enter into and perform
its obligations under each of the Operative Documents to which it is a party,
and to issue the Subordinated Debt Securities; and the Company is duly
registered as a bank holding company under the Bank Holding Company Act of 1956,
as amended.

     

    (xi) Good Standing of the
Subsidiaries.  The “significant subsidiary” (as defined in Rule
1-02 of Regulation S-X) of the Company (the “Significant Subsidiary”) has been
duly organized and is validly existing as an entity in good standing under the
laws of the jurisdiction in which it is chartered and has full power and
authority under such laws to own, lease and operate its properties and to
conduct its current and contemplated business; and the deposit accounts of
Republic First Bank (the “Bank”) are insured up to the applicable limits by the
Deposit Insurance Fund of the FDIC to the fullest extent permitted by law and
the rules and regulations of the FDIC, and no proceeding for the revocation or
termination of such insurance is pending or, to the knowledge of the Company,
threatened.  The Company’s only Significant Subsidiary is the
Bank.

     

    
      
         

      

      
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    (xii) Foreign
Qualifications.  Each of the Company and its Significant
Subsidiary is duly qualified as a foreign entity to transact business, and each
is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to be so qualified would not
reasonably be expected to have, singularly or in the aggregate, a Material
Adverse Effect.

     

    (xiii) Capital Stock Duly
Authorized and Validly Issued.  All of the issued and
outstanding capital stock of the Company has been duly authorized and validly
issued and is fully paid and nonassessable; all of the issued and outstanding
capital stock of the Significant Subsidiary of the Company has been duly
authorized and validly issued, is fully paid and nonassessable and is owned by
the Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equitable right; and
none of the issued and outstanding capital stock of the Company or its
Significant Subsidiary was issued in violation of any preemptive or similar
rights arising by operation of law, under the charter, by-laws or code of
regulations of the Company or its Significant Subsidiary or under any agreement
to which the Company or its Significant Subsidiary is a party.

     

    (xiv) Capitalization.  (a)
The authorized capital stock of the Company consists of (A) 20,000,000 shares of
Common Stock, of which as of the date of this Agreement, 10,811,747 shares were
issued and outstanding and (B) 10,000,000 shares of preferred stock, of which as
of the date of this Agreement, no shares were issued and
outstanding.  As of March 31, 2008, the Company held 416,303 shares of
Common Stock in its treasury.  As of March 31, 2008, there were
663,044 shares of Common Stock reserved for issuance in connection with employee
benefit, stock option and dividend reinvestment and stock purchase plans. All of
the issued and outstanding shares of the Company’s capital stock have been duly
and validly authorized and issued and are fully paid and nonassessable, and are
not subject to preemptive rights.  No bonds, debentures, notes or
other indebtedness having the right to vote on any matters on which the
stockholders of the Company may vote (“Voting Debt”) are issued and
outstanding.  Other than as set forth herein or pursuant to this
Agreement, (A) no equity securities or Voting Debt of the Company are or may be
required to be issued by reason of any options, warrants, rights to subscribe
to, calls or commitments of any character whatsoever, (B) there are outstanding
no securities or rights convertible into or exchangeable for any equity
securities or Voting Debt of the Company and (C) there are no contracts,
commitments, understandings or arrangements by which the Company is bound to
issue additional equity securities or Voting Debt or options, warrants or rights
to purchase or acquire any additional equity securities or Voting
Debt.

     

    (b)  Except
for any director qualifying shares, all of the issued and outstanding shares of
capital stock or other equity ownership interests of each Subsidiary of the
Company are owned by the Company, directly or indirectly, free and clear of any
material liens, pledges, charges and security interests and similar
encumbrances, and all of such shares or equity ownership interests have been
duly and validly authorized and issued and are fully paid and nonassessable, and
are not subject to preemptive rights. No Subsidiary of the Company has or is
bound by any outstanding subscriptions, options, warrants, calls, commitments or
agreements of any character calling for the purchase or issuance of any shares
of capital stock or any other 

     

    
      
         

      

      
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    equity
security of such Subsidiary or any securities representing the right to purchase
or otherwise receive any shares of capital stock or any other equity security of
such Subsidiary.

     

    (xv) Good Standing of the
Trust.  The Trust has been duly created and is validly existing
in good standing as a statutory trust under the Delaware Act with the power and
authority to own property and to conduct its business as provided in the
Declaration, to enter into and perform its obligations under the Operative
Documents to which it is a party, and to issue the Capital Securities and the
Common Securities; the Trust is not a party to or otherwise bound by any
agreement other than the Operative Documents to which it is a party; and the
Trust is, and will be, under current law, classified for United States federal
income tax purposes as a grantor trust and not as an association taxable as a
corporation.

     

    (xvi) Authorization of Common
Securities.  On the Closing Date, the Common Securities will
have been duly authorized for issuance by the Trust pursuant to the Declaration
and, when duly issued and executed in accordance with the Declaration and
delivered by the Trust to the Company against payment therefor in accordance
with the subscription agreement therefor, will be validly issued and fully paid
and nonassessable undivided common beneficial ownership interests in the assets
of the Trust; the issuance of the Common Securities is not subject to preemptive
or other similar rights; and on the Closing Date, all of the issued and
outstanding Common Securities of the Trust will be owned directly by the
Company, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equitable right.

     

    (xvii) Authorization of Capital
Securities.  On the Closing Date, the Capital Securities will
have been duly authorized for issuance by the Trust pursuant to the Declaration
and, when duly issued, executed and authenticated in accordance with the
Declaration and delivered by the Trust against payment therefor as provided
herein and will be validly issued and fully paid and nonassessable undivided
preferred beneficial ownership interests in the assets of the Trust; the
issuance of the Capital Securities will not be subject to preemptive or other
similar rights; and the Capital Securities will be in the form contemplated by,
and entitled to the benefits of, the Declaration.

     

    (xviii) Authorization of Common
Stock.  On the Closing Date, the Common Stock into which the
Capital Securities or Debt Securities are convertible pursuant to the
Declaration and the Indenture will have been duly authorized for issuance by the
Company and, upon conversion, all such stock will be validly issued and fully
paid and nonassessable and will have the same relative rights as, and will be
identical in all respects with, every other share of Common Stock.

     

    (xix) Authorization of this
Agreement.  This Agreement has been duly authorized, executed
and delivered by each of the Offerors and assuming due authorization, execution
and delivery by the Purchasers, will constitute a valid, legal and binding
agreement of each of the Offerors, enforceable against each of the Offerors in
accordance with its terms, except to the extent that enforceability may be
limited by (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws now or hereafter in effect relating to
creditors’ rights generally and (b) general principles of equity (regardless of


     

    
      
         

      

      
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    whether
enforceability is considered in a proceeding at law or in equity) (collectively,
the “Enforceability Exceptions”).

     

    (xx) Authorization of
Declaration.  The Declaration has been duly authorized by the
Company and, on the Closing Date, will have been duly executed and delivered by
the Company and the Administrators, and assuming due authorization, execution
and delivery of the Declaration by the Institutional Trustee and the Delaware
Trustee, the Declaration will constitute a valid, legal and binding agreement of
the Company, enforceable against the Company in accordance with its terms,
except to the extent that enforceability may be limited by the Enforceability
Exceptions.

     

    (xxi) Authorization of Guarantee
Agreement.  The Guarantee Agreement has been duly authorized by
the Company and, on the Closing Date, will have been duly executed and delivered
by the Company, and assuming due authorization, execution and delivery of the
Guarantee Agreement by the Guarantee Trustee, the Guarantee Agreement will
constitute a valid, legal and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except to the extent that
enforceability may be limited by the Enforceability Exceptions.

     

    (xxii) Authorization of
Indenture.  The Indenture has been duly authorized by the
Company and, on the Closing Date, will have been duly executed and delivered by
the Company, and assuming due authorization, execution and delivery of the
Indenture by the Indenture Trustee, the Indenture will constitute a valid, legal
and binding agreement of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforceability may be
limited by the Enforceability Exceptions.

     

    (xxiii) Authorization of
Subordinated Debt Securities.  The Subordinated Debt Securities
have been duly authorized by the Company; on the Closing Date, the Subordinated
Debt Securities will have been duly executed by the Company and, when
authenticated in the manner provided for in the Indenture and delivered by the
Company to the Trust against payment therefor as contemplated in the
subscription agreement therefor, will constitute valid, legal and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except to the extent that enforceability may be limited by the
Enforceability Exceptions; the Subordinated Debt Securities will be in the form
contemplated by, and entitled to the benefits of, the Indenture; the
Subordinated Debt Securities constitute indebtedness of the Company for United
States federal income tax purposes and the Company has no present intention to
exercise its option to defer payments of interest on the Subordinated Debt
Securities as provided in the Indenture.

     

    (xxiv) Authorization of
Administrators.  Each of the Administrators of the Trust is an
officer or employee of the Company or one of its subsidiaries and has been duly
authorized by the Company to execute and deliver the Declaration.

     

    (xxv) Not an Investment
Company.  Neither the Trust nor the Company is, and immediately
following consummation of the transactions contemplated hereby and the
application of the net proceeds therefrom neither the Trust nor the Company will
be, an “investment company” or an entity “controlled” by an “investment
company”, in each case 

     

    
      
         

      

      
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    within
the meaning of Section 3(a) of the Investment Company Act of 1940, as amended
(the “1940 Act”), without regard to Section 3(c) of the 1940 Act.

     

    (xxvi) Absence of Defaults and
Conflicts.  The Trust is not in violation of the trust
certificate of the Trust filed with the State of Delaware (the “Trust
Certificate”) or the Declaration, and neither the Company nor its Significant
Subsidiary is in violation of its charter, by-laws or code of regulations; none
of the Trust, the Company or any subsidiary of the Company is in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which it is a party
or by which it or any of them may be bound or to which any of its properties or
assets is subject (collectively, “Agreements and Instruments”), except for such
defaults under Agreements and Instruments that would not reasonably be expected
to have a Material Adverse Effect; and the execution, delivery and performance
of the Operative Documents by the Trust or the Company, as the case may be, the
issuance, sale and delivery of the Capital Securities and the Subordinated Debt
Securities, the consummation of the transactions contemplated by the Operative
Documents, and compliance by the Trust and the Company with the terms of the
Operative Documents to which they are a party have been duly authorized by all
necessary corporate action on the part of the Company and, on the Closing Date,
will have been duly authorized by all necessary action on the part of the Trust
and do not and will not, whether with or without the giving of notice or passage
of time or both, violate, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any, security interest, mortgage, pledge, lien, charge,
encumbrance, claim or equitable right upon any properties or assets of the Trust
or the Company or its Significant Subsidiary pursuant to any of the Agreements
and Instruments, nor will such action result in any violation of the provisions
of the charter, by-laws or code of regulations of the Company or its Significant
Subsidiary or the Declaration or the Trust Certificate, or violation by the
Company or any of its Significant Subsidiaries or bank subsidiaries of any
applicable law, statute, rule, regulation, judgment, order, writ or decree of
any government, government authority, agency (including, without limitation,
each applicable Regulatory Agency) or instrumentality or court, domestic or
foreign, having jurisdiction over the Trust or the Company or any of its
Significant Subsidiaries or bank subsidiaries or their respective properties or
assets (collectively, “Governmental Entities”).  As used herein, a
“Repayment Event” means any event or condition which gives the holder of any
note, debenture or other evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Trust or the Company or its
Significant Subsidiary prior to its scheduled maturity.

     

    (xxvii) ERISA.  (a)
All “employee benefit plans”, as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), that are subject
to Title I of ERISA and are currently maintained or maintained since January 1,
2003, by either the Company or any companies which, with the Company, would be
deemed to be a single employer under Section 414(b), (c), (m) or (o) of the Code
(collectively, the “Company
Group”) for the benefit of the Company Group employees, are collectively,
for purposes of this Agreement, referred to herein as the “Company
Plans.”  All Company Plans that constitute employee “pension
plans” as defined in Section 3(2) of ERISA that are subject to Title IV of ERISA
are referred to herein as the “Company Pension
Plans.”  Except as would not reasonably be expected to have,
singularly or in the aggregate, a Material Adverse Effect, to the knowledge


     

    
      
         

      

      
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    of the
Company, no non-exempt “prohibited transaction” (as such term is used in Section
406 of ERISA or Section 4975 of the Code), has heretofore occurred with respect
to any Company Plan or any Company Pension Plan and, to the knowledge of the
Company, no such non-exempt prohibited transaction with respect to any Company
Plan or Company Pension Plan shall occur as a result of the execution and
delivery of this Agreement and the consummation of the transactions contemplated
herein.

     

    (b)  Except
as would not reasonably be expected to have, singularly or in the aggregate, a
Material Adverse Effect, the consummation of the transactions contemplated
hereby will not result in an increase in the amount of, or acceleration in the
timing of payment of vesting of, any compensation payable or awarded by the
Company or its Significant Subsidiary to any of its or their employees under any
employment agreements, plans or programs of the Company or its Significant
Subsidiary.

     

    (xxviii) Intellectual
Property.  (a) the Company and its Significant Subsidiary owns,
or is licensed to use (in each case, free and clear of any claims, liens or
encumbrances), all Intellectual Property (as defined below) used in or necessary
for the conduct of its business as currently conducted; (b) the use of any
Intellectual Property by the Company and its Significant Subsidiary does not, to
the knowledge of the Company, infringe on or otherwise violate the rights of any
person and is in accordance with any applicable license pursuant to which the
Company or its Significant Subsidiary acquired the right to use any Intellectual
Property; (c) no person is challenging, infringing on or otherwise violating any
right of the Company or any of its Significant Subsidiary with respect to any
material Intellectual Property owned by or licensed to the Company or its
Significant Subsidiary; (d) to the knowledge of the Company, neither the Company
nor its Significant Subsidiary has received any notice of any pending claim with
respect to any Intellectual Property used by the Company or its Significant
Subsidiary; and (e) to the knowledge of the Company, no Intellectual Property
owned or licensed by the Company or its Significant Subsidiary is being used or
enforced in a manner that would be expected to result in the abandonment,
cancellation or unenforceability of such Intellectual Property.  In
this Section 1(xxviii), “Intellectual Property” shall mean trademarks, service
marks, brand names, certification marks, trade dress and other indications of
origin, the goodwill associated with the foregoing and registrations in any
jurisdiction of, and applications in any jurisdiction to register, the
foregoing, including any extension, modification or renewal of any such
registration or application; inventions, discoveries and ideas, whether
patentable or not, in any jurisdiction; patents, applications for patents
(including divisions, continuations, continuations in part and renewal
applications), and any renewals, extensions or reissues thereof, in any
jurisdiction; nonpublic information, trade secrets and confidential information
and rights in any jurisdiction to limit the use or disclosure thereof by any
person; writings and other works, whether copyrightable or not, in any
jurisdiction; and registrations or applications for registration of copyrights
in any jurisdiction, and any renewals or extensions thereof; and any similar
intellectual property or proprietary rights.

     

    (xxix) Environmental
Liability.  Except as has not had and would not reasonably be
expected to have, singularly or in the aggregate, a Material Adverse
Effect:  (a) there are no legal, administrative, arbitral or other
proceedings, claims, actions, causes of action or notices with respect to any
environmental, health or safety matters or any private or governmental
environmental, health or safety investigations or remediation activities of
any

     

    
      
         

      

      
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    nature
seeking to impose, or that are reasonably likely to result in, any liability or
obligation of the Company or its Significant Subsidiary arising under common law
or under any local, state or federal environmental, health or safety statute,
regulation or ordinance, including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, pending or threatened
against the Company or its Significant Subsidiary; (b) to the knowledge of the
Company, there is no reasonable basis for, or circumstances that are reasonably
likely to give rise to, any such proceeding, claim, action, investigation or
remediation by any Governmental Entity or any third party that would give rise
to any liability or obligation on the part of the Company or its Significant
Subsidiary; and (d) neither the Company nor its Significant Subsidiary is
subject to any agreement, order, judgment, decree, letter or memorandum by or
with any Governmental Entity or third party imposing any liability or obligation
with respect to any of the foregoing.

     

    (xxx) Taxes and Tax
Returns.  Except as has not had and would not reasonably be
expected to have, singularly or in the aggregate, a Material Adverse Effect: (a)
each of the Company and its subsidiaries has duly and timely filed (including
all applicable extensions) all reports, returns or other information (including
any amendments) required to be supplied to a governmental entity with respect to
taxes including, where permitted or required, combined or consolidated returns
for any group of entities that includes the Company or its subsidiaries (“Tax
Returns”) required to be filed by it on or prior to the date hereof (all such
returns being accurate and complete in all respects), has paid all taxes shown
thereon as arising and has duly paid or made provision for the payment of all
taxes that have been incurred or are due or claimed to be due from it by
federal, state, foreign or local taxing authorities other than taxes that are
not yet delinquent or are being contested in good faith, have not been finally
determined and have been adequately reserved against; (b) the federal, state and
local income Tax Returns of the Company and its subsidiaries have been examined
by the Internal Revenue Service (the “IRS”) and any
applicable state and local tax authorities for all years to and including 2002
and any liability with respect thereto has been satisfied or any liability with
respect to deficiencies asserted as a result of such examination is covered by
reserves that are adequate under GAAP; (c) there are no disputes pending, or
claims asserted, for taxes or assessments upon the Company or its subsidiaries
for which the Company does not have reserves that are adequate under GAAP; (d)
neither the Company nor its subsidiaries are (A) a party to or is bound by any
tax sharing, allocation or indemnification agreement or arrangement (other than
such an agreement or arrangement exclusively between or among the Company and
its subsidiaries) or (B) has any liability for the taxes of any Person (other
than the Company or any of its subsidiaries) under Treasury Regulation Section
1.1502-6 (or any similar provision of state, local or foreign law); (e) within
the past two years, neither the Company nor its subsidiaries have been a
“distributing corporation” or a “controlled corporation” in a distribution
intended to qualify under Section 355(a) of the Code; (f) neither the Company
nor its subsidiaries are required to include in income any adjustment pursuant
to Section 481(a) of the Code, no such adjustment has been proposed by the IRS
and no pending request for permission to change any accounting method has been
submitted by the Company or its subsidiaries; and (g) neither the Company nor
its subsidiaries has participated in a “transaction” within the meaning of
Treasury Regulation section 1.601 1-4(b).

     

    (xxxi) Absence of Labor
Dispute.  No labor dispute with the employees of the Company or
any of its subsidiaries exists or, to the knowledge of the executive officers of


     

    
      
         

      

      
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    the
Company, is imminent, which would reasonably be expected to result in a Material
Adverse Effect.

     

    (xxxii) Absence of
Proceedings.  There is no action, suit, proceeding, inquiry or
investigation before or brought by any Governmental Entity, now pending, or, to
the knowledge of the Trust or the Company, threatened, against or affecting the
Trust or the Company or any of its subsidiaries, which would reasonably be
expected to have a Material Adverse Effect or materially and adversely affect
the consummation of the transactions contemplated by the Operative Documents or
the performance by the Trust or the Company of its obligations hereunder or
thereunder; and the aggregate of all pending legal or governmental proceedings
to which the Trust or the Company or any of its subsidiaries is a party or of
which any of their respective properties or assets is the subject, including
ordinary routine litigation incidental to the business, would not reasonably be
expected to have a Material Adverse Effect.

     

    (xxxiii) Absence of Further
Requirements.  No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any
Governmental Entity, other than those that have been made or obtained, is
necessary or required for the authorization, execution, delivery or performance
by the Trust or the Company of their respective obligations under the Operative
Documents, the Subordinated Debt Securities or the Capital Securities, as
applicable, or the consummation by the Trust or the Company of the transactions
contemplated by the Operative Documents.

     

    (xxxiv) Possession of Licenses and
Permits.  Each of the Trust, the Company and the subsidiaries
of the Company possesses such permits, orders, certificates, licenses,
approvals, consents and other authorizations (collectively, “Governmental
Licenses”) issued by the appropriate Governmental Entities necessary to conduct
the business now operated by it that is material to the Trust or the Company and
its subsidiaries considered as one enterprise; each of the Trust, the Company
and the subsidiaries of the Company is in compliance with the terms and
conditions of all of its Governmental Licenses, except where the failure so to
comply, would not reasonably be expected to have, singularly or in the
aggregate, a Material Adverse Effect; all of the Governmental Licenses are valid
and in full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force and
effect, would not reasonably be expected to have a Material Adverse Effect; and
none of the Trust, the Company or any subsidiary of the Company has received
notice of any proceeding, and to the knowledge of the Trust, the Company or any
subsidiary of the Company, there has been no threatened proceeding, relating to
the revocation, termination, suspension or modification of any such Governmental
Licenses which would reasonably be expected to have, singularly or in the
aggregate, a Material Adverse Effect.

     

    (xxxv) Title to
Property.  Each of the Trust, the Company and the subsidiaries
of the Company has good and marketable title to all of its respective real and
personal properties, in each case free and clear of all liens, encumbrances and
defects, except such as, in the reasonable judgment of the Trust or the Company,
singularly or in the aggregate, are not expected to result in a Material Adverse
Effect; and all of the leases and subleases under which the Trust, the Company
or any subsidiary of the Company holds properties are in full force and effect,
except when the failure of such leases and subleases to be in full force and
effect, would not reasonably be expected to have, singularly or in the
aggregate, a Material 

     

    
      
         

      

      
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    Adverse
Effect, and none of the Trust, the Company or any subsidiary of the Company has
any notice of any claim of any sort that has been asserted by anyone adverse to
the rights of the Trust, the Company or any subsidiary of the Company under any
of the leases or subleases under which the Trust, the Company or any subsidiary
of the Company holds properties, or affecting or questioning the rights of such
entity to the continued possession of the leased or subleased premises under any
such lease or sublease, except when such claim would not reasonably be expected
to have, singularly or in the aggregate, a Material Adverse Effect.

     

    (xxxvi) Stabilization.  The
Company has not taken and will not take, directly or indirectly, any action
designed to, or that might be reasonably expected to, cause or result in
stabilization or manipulation of the price of the Capital
Securities.

     

    (xxxvii) No General
Solicitation.  Neither the Trust or the Company nor any of
their Affiliates (as defined in Rule 501(b) under the 1933 Act) or any person
acting on its or any of their behalf has engaged or will engage, in connection
with the offering of the Capital Securities, in any form of general solicitation
or general advertising within the meaning of Rule 502(c) under the 1933
Act.

     

    (xxxviii) No
Registration.  (a) Subject to compliance by the Purchasers with
the relevant provisions of Section 6 hereof, it is not necessary in connection
with the offer, sale and delivery of the Capital Securities by the Trust in the
manner contemplated by this Agreement to register the Capital Securities, the
guarantee as described in the Guarantee Agreement or the Subordinated Debt
Securities under the 1933 Act or to qualify the Declaration, the Guarantee
Agreement or the Indenture under the Trust Indenture Act of 1939, as
amended.

     

    (b) Any
certificate signed by any Trustee of the Trust or any duly authorized officer of
the Company or any of its subsidiaries and delivered to the Purchasers or to
counsel for the Purchasers shall be deemed a representation and warranty by the
Trust or the Company, as the case may be, to the Purchasers as to the matters
covered thereby.

     

    SECTION
2. Representations and
Warranties of the Purchasers

     

    (a) Each
Purchaser understands and acknowledges that (i) none of the Capital Securities,
the Debentures, the Guarantee or the Common Stock (the “Offeror Securities”)
have been or will be registered under the Securities Act, or any other
applicable securities laws, (ii) the Offeror Securities are being offered for
sale by the Offerors in transactions not requiring registration under the
Securities Act, and (iii) the Offeror Securities may not be offered, sold,
pledged or otherwise transferred by the Purchasers except in compliance with the
registration requirements of the Securities Act, or any other applicable
securities laws, pursuant to an exemption therefrom or in a transaction not
subject thereto.

     

    (b) Each
Purchaser represents and warrants that it is an “accredited investor” as such
term is defined in Regulation D promulgated under the 1933 Act, has the ability
to bear the risks of an investment in the Company for an indefinite period and
is suitable to be an investor in a private offering.

     

    (c) Each
Purchaser represents and warrants that it is purchasing the Capital Securities
and, if converted, Common Stock for its own account, for investment and not with
a 

     

    
      
         

      

      
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    view to,
or for offer or sale in connection with, any distribution thereof in violation
of the Securities Act or other applicable securities laws, subject to any
requirement of law that the disposition of its property be at all times within
its control and subject to its ability to resell such Capital Securities and,
upon conversion, Common Stock pursuant to an effective registration statement
under the Securities Act or pursuant to an exemption therefrom or in a
transaction not subject thereto, and the Purchasers agree, severally and not
jointly, to the legends and transfer restrictions applicable to the Capital
Securities and Common Stock contained in the Declaration.

     

    (d) Each
Purchaser has had the opportunity to ask questions of, and receive answers and
request additional information from, the Offerors and is aware that it may be
required to bear the economic risk of an investment in the Capital Securities
and, if converted, Common Stock.

     

    (e) Each
Purchaser has full power and legal capacity to execute, deliver and perform this
Agreement, to make the representations and warranties specified herein, and to
consummate the transactions contemplated herein and it has full right and power
to purchase the Capital Securities.

     

    (f) No filing
with, or authorization, approval, consent, license, order, registration,
qualification or decree of, any governmental body, agency or court having
jurisdiction over any Purchaser, other than those that have been made or
obtained, is necessary or required for the performance by each Purchaser of its
obligations under this Agreement or to consummate the transactions contemplated
herein.

     

    (g) Each
Purchaser represents and warrants that the execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated hereby
will not (i) violate any law or order by which such Purchaser is bound or (ii)
result in a violation or breach of, or constitute a default under any agreement,
instrument or contract to which such Purchaser is a party.

     

    (h) This
Agreement has been duly executed and delivered by each Purchaser.

     

    (i) Each
Purchaser represents and warrants that it is not a beneficial owner (within the
meaning of Section 13(d) of the 1934 Act) of any Common Stock.

     

    (j) Each
Purchaser understands and acknowledges that the Offerors will rely upon the
truth and accuracy of the foregoing acknowledgments, representations, warranties
and agreements and agrees that if any of the foregoing acknowledgments,
representations, warranties or agreements cease to be accurate, it shall
promptly notify the Offerors.

     

    (k) Each
Purchaser agrees that it will keep confidential and will not disclose or divulge
any confidential, proprietary or secret information that it may obtain from
financial statements or other material submitted by the Company to such
Purchaser pursuant to this Agreement.  Notwithstanding the foregoing,
a Purchaser may disclose such information (i) as has become generally available
to the public, (ii) as may be required in any report, statement or testimony
submitted to any municipal, state or federal regulatory body having jurisdiction
over such Purchaser, (iii) as may be required in response to any summons or
subpoena or in connection with any litigation (provided such Purchaser makes
reasonable efforts to enable the 

     

    
      
         

      

      
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    Company
to seek a protective order), (iv) in order to comply with any law, order,
regulation or ruling applicable to such Purchaser or (v) on a confidential basis
to its attorneys, accountants, consultants and other professionals to the extent
necessary to obtain their services in connection with its investment in the
Company.

     

    (l) Each
Purchaser understands that no public market exists for any of the Capital
Securities, and that it is unlikely that a public market will ever exist for the
Capital Securities.

     

    SECTION
3. Sale and Delivery to
Purchasers; Closing.

     

    (a) Subject
to all of the terms and conditions of this Agreement, and in reliance upon the
representations and warranties set forth herein, at the Closing provided for in
Section 3(b) hereof, the Trust hereby agrees to issue and sell the Capital
Securities to each of the Purchasers and, subject to the terms and conditions
specified in this Agreement, each of the Purchasers agrees, severally and not
jointly, to
purchase from the Trust, in consideration of the aggregate purchase price, the
number of Capital Securities set forth opposite the name of such Purchaser in
Schedule A hereto.

     

    (b) The
Capital Securities shall be issued in definitive form and registered in the
name(s) and denomination(s) specified by the Purchasers.  Subject to
all of the terms and conditions of this Agreement, delivery of the certificates
representing the Capital Securities shall be made by the Trust to or on behalf
of the Purchasers at the offices of Thacher Proffitt & Wood llp in The City
of New York (the "Closing"), and payment of the purchase price for the Capital
Securities shall be made by the Purchasers to the Trust by wire transfer of
immediately available funds to a bank designated by the Company contemporaneous
with closing on the Closing Date.

     

    (c) At the
Closing: (A) the Company will deliver to each Purchaser certificates for the
Capital Securities registered in the name of such Purchaser; (B) each Purchaser,
in full payment for the Capital Securities, will deliver to the Company
immediately available funds, by wire transfer to such account as the Company
shall specify, in the amount of the purchase price to be paid hereunder pursuant
to subsection (a) above; and (iii) each party shall take or cause to happen such
other actions, and shall execute and deliver such other instruments or
documents, as shall be required under Section 6.

     

    SECTION
4. Notice of Material
Events.  The Offerors covenant with the  Purchasers,
severally and not jointly, that, prior to the Closing Date, the Offerors will
immediately notify the Purchasers, and confirm such notice in writing, of any
event or development that would reasonably be expected to have a Material
Adverse Effect.

     

    SECTION
5. Payment of
Expenses.  Whether or not this Agreement is terminated or the
sale of the Capital Securities is consummated, the Company, as borrower under
the Subordinated Debt Securities, will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) expenses
related to the preparation, issuance and delivery of the certificates for the
Capital Securities and Subordinated Debt Securities, (ii) the fees and
disbursements of the Company’s counsel, accountants and other advisors, (iii)
the fees and disbursements of the Purchasers’ counsel, (iv) the fees and
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    Trustee’s,
Institutional Trustee’s and Delaware Trustee’s counsel and (v) the fees and
disbursements of any registrar for the Capital Securities.

     

    SECTION
6. Conditions of Purchasers’
Obligations.  The obligations of the Purchasers on the Closing
Date are subject to the accuracy of the representations and warranties of the
Offerors contained in Section 1 hereof or in certificates of any Administrator
of the Trust or any officer of the Company or any of its subsidiaries delivered
pursuant to the provisions hereof, to the performance by the Offerors of their
obligations hereunder, and to the following further conditions:

     

    (a) Opinion of Counsel for the
Offerors.  On the Closing Date, the Purchasers shall have
received the favorable opinion, dated as of the Closing Date, of Thacher
Proffitt & Wood llp, special counsel for the Offerors, in substantially the
form set out in Annex A hereto, in form and substance reasonably satisfactory to
counsel for the Purchasers.  Such counsel may state that, insofar as
such opinion involves factual matters, they have relied, to the extent they deem
proper, upon the opinion of Stevens & Lee P.C., certificates of
Administrators of the Trust, officers of the Company or any of its subsidiaries
and public officials.

     

    (b) Opinion of Special Delaware Counsel
for the Trust.  On the Closing Date, the Purchasers shall have
received the favorable opinion, dated as of the Closing Date, of Stevens &
Lee P.C., special Delaware counsel for the Trust, in substantially the form set
out in Annex B hereto, in form and substance reasonably satisfactory to counsel
for the Purchasers.

     

    (c) Opinion of Special Tax Counsel for
the Offerors.  On the Closing Date, the Purchasers shall have
received an opinion, dated as of the Closing Date, of Thacher Proffitt &
Wood llp, special tax counsel for the Offerors, that (i) the Trust will be
classified for United States federal income tax purposes as a grantor trust and
not as an association taxable as a corporation and (ii) the Subordinated Debt
Securities will constitute indebtedness of the Company for United States federal
income tax purposes, in substantially the form set out in Annex C
hereto.  Such opinion may be conditioned on, among other things, the
initial and continuing accuracy of the facts, financial and other information,
covenants and representations set forth in certificates of officers of the
Company and other documents deemed necessary for such opinion.

     

    (d) Opinion of Counsel to the Guarantee
Trustee, the Institutional Trustee, the Delaware Trustee and the Indenture
Trustee.  On the Closing Date, the Purchasers shall have
received the favorable opinion, dated as of the Closing Date, of Stevens &
Lee P.C., counsel for the Guarantee Trustee, the Institutional Trustee, the
Delaware Trustee and the Indenture Trustee, in substantially the form set out in
Annex D hereto, in form and substance reasonably satisfactory to counsel for the
Purchasers.

     

    (e) Certificates.  On
the Closing Date, there shall not have been, since the date hereof or since the
respective dates as of which information is given in the 1934 Act Reports, any
Material Adverse Effect, and the Purchasers shall have received a certificate of
the Chairman, the Chief Executive Officer, the President, any Executive Vice
President or any Vice President of the Company and of the Chief Financial
Officer or Chief Accounting Officer of the Company and a certificate of an
Administrator of the Trust, dated as of the Closing Date, to the effect that


     

    
      
         

      

      
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    (i) there
has been no such Material Adverse Effect, (ii) the representations and
warranties in Section 1 hereof were true and correct when made and are true and
correct with the same force and effect as though expressly made on and as of the
Closing Date, and (iii) the Offerors have complied with all agreements and
satisfied all conditions on their part to be performed or satisfied on or prior
to the Closing Date.

     

    (f) Maintenance of
Ratings.  From the date of this Agreement through the Closing
Date, there shall not have occurred a downgrading in or withdrawal of the rating
assigned to any debt securities or preferred stock of the Company or its
Significant Subsidiary by any “nationally recognized statistical rating
organization,” as that term is defined by the Commission for the purposes of
Rule 436(g)(2) under the 1933 Act, and no such organization shall have publicly
announced that it has under surveillance or review its rating of any debt
securities or preferred stock of the Company or its Significant
Subsidiary.

     

    (g) Additional
Documents.  On the Closing Date, the Purchasers shall have been
furnished such documents and opinions as they may reasonably request in
connection with the issue and sale of the Capital Securities; and all
proceedings taken by the Offerors in connection with the issuance, and sale of
the Capital Securities shall be satisfactory in form and substance to the
Purchaser.

     

    (h) Termination of
Agreement.  If any condition specified in this Section shall
not have been fulfilled when and as required to be fulfilled, this Agreement may
be terminated by the Purchasers by notice to the Offerors at any time on or
prior to the Closing Date.  In addition, such termination shall be
subject to Section 5 hereof.

     

    SECTION
7. Offers and Sales of the
Capital Securities.

     

    (a) Offer and Sale
Procedures.  The Purchasers and the Offerors hereby establish
and agree to observe the following provisions with respect to the offer, issue
and sale of the Capital Securities:

     

    (i) Offers and Sales only to the
Purchasers.  Offers and sales of the Capital Securities will be
made only to the Purchasers in a transaction not requiring registration under
the 1933 Act.

     

    (ii) No General
Solicitation.  No general solicitation or general advertising
(within the meaning of Rule 502(c) under the 1933 Act) has been or will be used
in connection with the offering of the Capital Securities.

     

    (iii) Purchaser
Notification.  The Purchasers acknowledge that the Capital
Securities (A) have not been and will not be registered under the 1933 Act, (B)
are being sold without registration under the 1933 Act in accordance with an
exemption from the registration requirements of the 1933 Act and (C) may not be
offered, sold or otherwise transferred except in accordance with the legend set
forth in Annex E hereto.

     

    (b) Covenants of the
Offerors.  Each of the Offerors, jointly and severally,
covenant with the Purchasers as follows:

     

    
      
         

      

      
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    (i) Due
Diligence.  In connection with the sale of the Capital
Securities, the Offerors agree that the Purchasers shall have the right to make
reasonable inquiries into the business of the Trust, the Company and the
subsidiaries of the Company.  The Offerors also agree to provide
answers to each Purchaser, if requested, concerning the Trust, the Company and
the subsidiaries of the Company (to the extent that such information is
available or can be acquired and made available without unreasonable effort or
expense and to the extent the provision thereof is not prohibited by applicable
law) and the terms and conditions of the offering of the Capital Securities and
the Subordinated Debt Securities.

     

    (ii) Integration.  The
Offerors agree that they will not, and will cause their Affiliates not to, make
any offer or sale of securities of the Offerors of any class if, as a result of
the doctrine of “integration” referred to in Rule 502 under the 1933 Act, such
offer or sale would render invalid the exemption from the registration
requirements of the 1933 Act provided by Section 4(2) thereof or by Rule 144A or
otherwise.

     

    (iii) Nasdaq
Listing.  The Company will use its commercially reasonable
efforts to obtain approval for listing of the shares of the Common Stock
underlying the Capital Securities on the NASDAQ Stock Market or such other
exchange within three months following the Closing Date and will use its
commercially reasonable efforts to maintain such listing.

     

    (iv) Financial
Statements.   For so long as the Purchasers beneficially own
Capital Securities convertible into shares of Common Stock, or shares of Common
Stock issued upon the conversion of the Capital Securities, or any combination
of the foregoing, in any case representing at least 4.9 percent of the Common
Stock then outstanding, the Offerors shall deliver the reports required to be
delivered to Securityholders (as defined in the Indenture) pursuant to the terms
of, and in the manner described in, Section 4.03 of the Indenture.

     

    SECTION
8. Representations, Warranties
and Agreements to Survive Delivery.  All representations,
warranties and agreements contained in this Agreement or in certificates of
officers of the Company or Trustees of the Trust submitted pursuant hereto shall
remain operative and in full force and effect, and shall survive delivery of the
Capital Securities by the Trust.

     

    SECTION
9. Termination of
Agreement.

     

    (a) Termination;
General.  The Purchasers may terminate this Agreement, by
notice to the Offerors, at any time on or prior to the Closing Date if, since
the time of execution of this Agreement or, in the case of (i), since the
respective dates as of which information is given in the 1934 Act Reports, (i)
there has occurred any Material Adverse Effect, or (ii) there has occurred any
material adverse change in the financial markets in the United States, any
outbreak of hostilities or escalation thereof or any other calamity or crisis,
or any change or development involving political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Purchasers, impracticable to purchase the Capital Securities, or
(iii) trading in any securities of the Company has been suspended or limited by
the Commission or any national stock exchange or market on or in which such
securities are traded or quoted, or if trading generally on the American Stock
Exchange, the New York Stock 

     

    
      
         

      

      
        19

        
          

        

      

      
         

      

    

    Exchange
or the Nasdaq National Market has been suspended or limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers or any other
governmental authority, or (iv) a banking moratorium has been declared by United
States federal, Delaware or New York authorities.

     

    (b) Liabilities.  If
this Agreement is terminated pursuant to this Section, such termination shall be
without liability of any party to any other party except as provided in Section
4 and Section 5 hereof, and provided further that Sections 1, 7 and 8 hereof
shall survive such termination and remain in full force and effect.

     

    SECTION
10. Notices.  All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication.  Notices to the Offerors shall be directed to
Republic First Bancorp, Inc., 50 South 16th Street, Philadelphia, Pennsylvania
19102, Attention: Paul Frenkiel, with a copy to Thacher Proffitt & Wood llp,
Two World Financial Center, New York, New York 10281, Attention: Robert C.
Azarow, Esq.  Notices to the Purchasers shall be directed to Vernon W.
Hill, II, 17000 Horizon Way, Suite 100, Mount Laurel, NJ 08054 with a copy to
Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Sq., New York, New York
10036, Attention: David C. Ingles, The Harry D. Madonna Family Trust, 1320 N.
Avignon Dr., Gladwyne, PA 19035, Steven M. Lewis 1780 Swede Road, Blue Bell, PA
19422, John P. Silvestri, 17000 Horizon Way, Suite 100, Mount Laurel, NJ
08054, and Theodore J. Flocco, Jr., 11 Brookwood Road, Mount Laurel, NJ
08054.

     

    SECTION
11. Parties.  This
Agreement shall inure to the benefit of and be binding upon each of the
Purchasers and the Offerors and their respective successors.  Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Purchasers and the
Offerors, and their respective successors and the controlling persons and other
persons referred to in Sections 1, 7 and 8 hereof and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained.  This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Purchasers and the Offerors and their
respective successors, and said controlling persons and other persons and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation.

     

    SECTION
12. GOVERNING
LAW.  THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT
OF LAWS PRINCIPLES OF SAID STATE OTHER THAN SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW.

     

    EACH OF
THE TRUST AND THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE CITY OF NEW
YORK IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING RELATED TO THIS AGREEMENT
OR ANY OF THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES ANY DEFENSE OF


     

    
      
         

      

      
        20

        
          

        

      

      
         

      

    

    LACK OF
PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT.  EACH OF THE TRUST AND THE COMPANY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.

     

    SECTION
13. Disclosure of Tax Treatment
and Tax Structure.  Notwithstanding anything herein to the
contrary, any party to this Agreement (and each employee, representative or
other agent of any party to this Agreement) may disclose to any and all persons,
without limitation of any kind, the tax treatment and tax structure of the offer
and sale and all materials of any kind (including opinions or other tax
analyses) that are provided to it relating to such tax treatment and tax
structure.  However, such information relating to the tax treatment or
tax structure is required to be kept confidential to the extent necessary to
comply with any applicable federal or state securities laws.  For this
purpose, “tax structure” means any facts relevant to the federal income tax
treatment of the offer and sale contemplated by this Agreement but does not
include information relating to the identity of the Offeror.

     

    SECTION
14. Effect of
Headings.  The Section headings herein are for convenience only
and shall not affect the construction hereof.

     

    
      
         

      

      
        21

        
          

        

      

      
         

      

    

    If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to the Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the Purchasers and
the Offerors in accordance with its terms.

     

    
      
        	 
      	
                Very
      truly yours,

              
	 
      	 
      	 
      
	 
      	
                REPUBLIC
      FIRST BANCORP, INC.

              
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	 
      	 
      
	 
      	 
      	
                Name:
      Harry D. Madonna

              	 
      
	 
      	 
      	
                Title:
      Chairman, President and Chief Executive Officer

              	 
      
	 
      	 
      	 
      	 
      
	 
      	
                REPUBLIC
      FIRST BANCORP CAPITAL TRUST IV

              
	 
      	 
      	 
      
	 
      	
                By:

              	 
      
	 
      	 
      	
                Name:
      Harry D. Madonna

              
	 
      	 
      	
                Title:
      Administrator

              


      

    

     

     

    
      
         

      

      
        22

        
          

        

      

      
         

      

    

    


    
      
        	
                VERNON  W.
      HILL, II

              
	 
      	 
      
	 
      	 
      
	 
      	
                Vernon
      W. Hill, II

              
	 
      	 
      
	
                THE
      HARRY D.  MADONNA FAMILY TRUST

              
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	
                Title:

              
	 
      	 
      
	
                STEVEN
      M. LEWIS

              
	 
      	 
      
	 
      	
                Steven
      M. Lewis

              
	
                JOHN P.
      SILVESTRI

              
	 
      	 
      
	 
      	
                John
      P. Silvestri

              
	 
      	 
      
	
                THEODORE
      J. FLOCCO, JR.

              
	 
      	 
      
	 
      	
                Theodore
      J. Flocco, Jr

              


      

    

    


     

    


    
      
         

      

      
        23

        
          

        

      

      
         

      

    

    


     

    Schedule
A

     

    
      	
              Name

               

            	
              Amount

            
	
              Vernon
      W. Hill, II

               

            	
              $6,000,000

            
	
              The
      Harry D. Madonna Family Trust

               

            	
              $3,000,000

            
	
              Steven
      M. Lewis

               

            	
              $780,000

            
	
              John P.
      Silvestri

               

            	
              $780,000

            
	
              Theodore
      J. Flocco, Jr.

               

            	
              $240,000

            


    

     

    


    
      
         

      

      
        24

        
          

        

      

      
         

      

    

     

     

    Schedule
B

     

    
      	
              Significant
      Subsidiary

               

            	
              Banking
      Subsidiary

            
	
              Republic
      First Bank

               

            	
              Republic
      First Bank

            


    

     

     

    
      
         

      

      
        25

        
          

        

      

      
         

      

    

    ANNEX
A

     

    Pursuant
to Section 5(a) of the Purchase Agreement, special counsel for the Offerors
shall deliver an opinion in substantially the following form:

     

    1.           The
Company is incorporated and is validly existing as a corporation in good
standing under the laws of the Commonwealth of Pennsylvania.

     

    2.           The
Company has corporate power and authority to (i) execute and deliver, and to
perform its obligations under, the Operative Documents to which it is a party
and (ii) issue and perform its obligations under the Subordinated Debt
Securities.

     

    3.           The
Company is registered as a bank holding company under the Bank Holding Company
Act of 1956, as amended.

     

    4.           (i)
The Significant Subsidiary is validly existing under the laws of the
jurisdiction of its organization; and (ii) to the best of our knowledge, all of
the issued and outstanding shares of capital stock of the Significant Subsidiary
is owned of record by the Company, directly or through other
subsidiaries.

     

    5.           The
deposit accounts of the Bank are insured by the Federal Deposit Insurance
Corporation up to the maximum amount allowable under applicable
law.

     

    6.           No
consent, approval, authorization or order of or filing, registration or
qualification with any Governmental Entity is required in connection with the
execution and delivery by the Company of the Operative Documents or the
Subordinated Debt Securities and the consummation of the transactions
contemplated thereby except as have already been obtained or made.

     

    7.           The
Purchase Agreement has been duly authorized, executed and delivered by the
Company and, assuming due authorization, execution and delivery by
the  Purchasers, respectively, constitutes a valid and binding
instrument of the Company, enforceable against the Company in accordance with
its terms, except as rights to indemnity and contribution thereunder may be
limited under applicable law or public policy, and subject to the qualifications
that (i) enforcement thereof may be limited by bankruptcy, insolvency,
receivership, reorganization, liquidation, voidable preference, moratorium or
other laws (including the laws of fraudulent conveyance and transfer) or
judicial decisions affecting the enforcement of creditors’ rights generally or
the reorganization of financial institutions and (ii) the enforceability of the
obligations of the Company thereunder is subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and to the effect of certain laws and judicial decisions upon
the availability and enforceability of certain remedies, including the remedies
of specific performance and self-help.

     

    8.           The
Declaration has been duly authorized, executed and delivered by the Company and
the Administrators.

     

    9.           Each
of the Guarantee Agreement and the Indenture has been duly authorized, executed,
and delivered by the Company and, assuming due authorization, execution


     

    
      
         

      

      
        A-1

        
          

        

      

      
         

      

    

    and
delivery by the Guarantee Trustee and the Indenture Trustee, respectively,
constitutes a valid and binding instrument of the Company, enforceable against
the Company in accordance with its terms, except as rights to indemnity and
contribution thereunder may be limited under applicable law or public policy,
and subject to the qualifications that (i) enforcement thereof may be limited by
bankruptcy, insolvency, receivership, reorganization, liquidation, voidable
preference, moratorium or other laws (including the laws of fraudulent
conveyance and transfer) or judicial decisions affecting the enforcement of
creditors’ rights generally or the reorganization of financial institutions and
(ii) the enforceability of the Company’s obligations thereunder is subject to
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and to the effect of certain
laws and judicial decisions upon the availability and enforceability of certain
remedies, including the remedies of specific performance and
self-help.

     

    10.           The
Subordinated Debt Securities have been duly authorized for issuance by the
Company pursuant to the Indenture and, when executed, authenticated and
delivered in the manner provided for in the Indenture and paid for in accordance
with the subscription agreement therefor, will constitute valid and binding
obligations of the Company and will entitle the holders thereof to the benefits
of the Indenture, enforceable against the Company in accordance with their
terms, except as rights to indemnity and contribution thereunder may be limited
under applicable law or public policy, and subject to the qualifications that
(i) enforcement thereof may be limited by bankruptcy, insolvency, receivership,
reorganization, liquidation, voidable preference, moratorium or other laws
(including the laws of fraudulent conveyance and transfer) or judicial decisions
affecting the enforcement of creditors’ rights generally or the reorganization
of financial institutions and (ii) the enforceability of the Company’s
obligations thereunder is subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and to the effect of certain laws and judicial decisions upon the availability
and enforceability of certain remedies, including the remedies of specific
performance and self-help.

     

    11.           The
execution, delivery and performance of the Operative Documents, Registration
Rights Agreement, the Subordinated Debt Securities and the Capital Securities,
as applicable, by the Company and the Trust and the consummation by the Company
and the Trust of the transactions contemplated by the Operative Documents, as
applicable, will not result in any violation of (i) the charter or bylaws of the
Company, (ii) the charter or bylaws of the Significant
Subsidiary,  (iii) the Amended Declaration or the Certificate of Trust
of the Trust, (iv) the certificate of trust, trust agreement and other
agreements or instruments related to the formation of, and issuance of
securities by, First Republic  Bancorp Capital Trust II, (v) the
certificate of trust, trust agreement and other agreements or instruments
related to the formation of, and issuance of securities by, First Republic
Bancorp Capital Trust III and (vi) the terms of any agreement, instrument,
contract or other document to which the Company or any of its subsidiaries is a
party or by which any of them or any of their respective properties may be
bound, which agreement, instrument, contract or other document has been filed
with the Securities and Exchange Commission as an exhibit to filings required
under the 1934 Act during the period from and including January 1, 2007 to and
including the date hereof or incorporated by reference to such
filings.

     

    
      
         

      

      
        A-2

        
          

        

      

      
         

      

    

    12.           Assuming
(i) the accuracy of the representations and warranties, and compliance with the
agreements, contained in the Purchase Agreement and (ii) that the Capital
Securities are sold in the manner contemplated by, and in accordance with, the
Purchase Agreement and the Declaration, it is not necessary in connection with
the offer, sale and delivery of the Capital Securities by the Trust to the
Purchasers to register the Capital Securities, the Guarantee Agreement or the
Subordinated Debt Securities under the 1933 Act or to qualify an indenture under
the Trust Indenture Act of 1939, as amended.

     

    13.           Neither
the Company nor the Trust is, and, following the issuance of the Capital
Securities and the consummation of the transactions contemplated by the
Operative Documents and the application of the proceeds therefrom, neither the
Company nor the Trust will be, an “investment company” required to be registered
under the Investment Company Act of 1940 Act, as amended.

     

    In
rendering such opinions, such counsel may (A) state that its opinion is limited
to the laws of New York and the Federal laws of the United States and (B) rely
as to matters involving the application of laws of any jurisdiction other than
New York or the United States, to the extent deemed proper and specified in such
opinion, upon the opinion of other counsel of good standing believed to be
reliable and who are satisfactory to you and as to matters of fact, to the
extent deemed proper, on certificates of responsible officers of the Company and
public officials.

     

    
      
         

      

      
        A-3

        
          

        

      

      
         

      

    

    ANNEX
B

     

    Pursuant
to Section 5(b) of the Purchase Agreement, special Delaware counsel for the
Trust shall deliver an opinion in substantially the following form:

     

    1.           The
Trust has been duly formed and is validly existing in good standing as a
statutory trust under the Delaware Act.

     

    2.           The
Declaration constitutes a valid and binding obligation of the Sponsor and
Trustees party thereto, enforceable against such Sponsor and Trustees in
accordance with its terms.

     

    3.           Under
the Delaware Act and the Declaration, the Trust has the requisite trust power
and authority (i) to own its properties and conduct its business, all as
described in the Declaration, (ii) to execute and deliver, and perform its
obligations under, the Operative Documents to which it is a party, (iii) to
authorize, issue, sell and perform its obligations under its Capital Securities
and Common Securities, and (iv) to purchase and hold the Subordinated Debt
Securities.

     

    4.           The
Capital Securities have been duly authorized for issuance by the Trust and, when
issued, executed and authenticated in accordance with the Declaration and
delivered against payment therefor in accordance with the Declaration and the
Purchase Agreement, will be validly issued and, subject to the qualifications
set forth in paragraph 5 below, fully paid and nonassessable undivided
beneficial interests in the assets of the Trust and the holders of the Capital
Securities will be entitled to the benefits provided by the
Declaration.

     

    5.           Each
holder of Capital Securities, in such capacity, will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware. We note, however, that the holders of the Capital Securities may be
required to make payment or provide indemnity or security as set forth in the
Declaration.

     

    6.           Under
the Declaration and the Delaware Act, the issuance of the Capital Securities and
Common Securities is not subject to preemptive rights.

     

    7.           The
Common Securities have been duly authorized for issuance by the Trust and, when
issued and executed in accordance with the Declaration and delivered against
payment therefor in accordance with the Declaration and the subscription
agreement therefor, will be validly issued undivided beneficial interests in the
assets of the Trust and the holders of the Common Securities will be entitled to
the benefits provided by the Declaration.

     

    8.           Under
the Declaration and the Delaware Act, the execution and delivery by the Trust of
the Operative Documents to which it is a party, and the performance by the Trust
of its obligations thereunder, have been duly authorized by the requisite trust
action on the part of the Trust.

     

    9.           The
issuance and sale by the Trust of its Capital Securities and Common Securities,
the execution, delivery and performance by the Trust of the Operative Documents
to 

     

    
      
         

      

      
        B-1

        
          

        

      

      
         

      

    

    which it
is a party, the consummation by the Trust of the transactions contemplated by
the Operative Documents to which it is party, and the compliance by the Trust
with its obligations thereunder are not prohibited by (i) the Declaration or the
Trust Certificate, or (ii) any law or administrative regulation of the State of
Delaware applicable to the Trust.

     

    10.           No
authorization, approval, consent or order of any Delaware court or Delaware
governmental authority or Delaware agency is required to be obtained by the
Trust solely in connection with the issuance and sale by the Trust of its
Capital Securities and Common Securities, the due authorization, execution and
delivery by the Trust of the Operative Documents to which it is a party or the
performance by the Trust of its obligations under the Operative Documents to
which it is a party.

     

    11.           The
holders of the Capital Securities (other than those holders who reside or are
domiciled in the State of Delaware) will have no liability for income taxes
imposed by the State of Delaware solely as a result of their participation in
the Trust, and the Trust will not be liable for any income tax imposed by the
State of Delaware.

     

    
      
         

      

      
        B-2

        
          

        

      

      
         

      

    

    ANNEX
C

     

    Pursuant
to Section 5(c) of the Purchase Agreement, special tax counsel for the Offerors
shall deliver an opinion in substantially the following form:

     

    It is our
opinion that, under current law and assuming the performance of the Operative
Documents in accordance with the terms described therein, the Subordinated Debt
Securities will be treated for United States federal income tax purposes as
indebtedness of the Company.

     

    It is our
opinion that the Trust will be classified for United States federal income tax
purposes as a grantor trust and not as an association taxable as a
corporation.

     

    
      
         

      

      
        C-1

        
          

        

      

      
         

      

    

    ANNEX
D

     

    Pursuant
to Section 5(d) of the Purchase Agreement, counsel to the Guarantee Trustee, the
Institutional Trustee, the Delaware Trustee and the Indenture Trustee shall
deliver an opinion in substantially the following form:

     

    1.           Wilmington
Trust Company (“WTC”) is a Delaware banking corporation with trust powers, duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware, with requisite corporate power and authority to execute and
deliver, and to perform its obligations under, the Declaration, the Guarantee
Agreement and the Indenture (collectively, the “Transaction
Documents”).

     

    2.           The
execution, delivery, and performance by WTC of the Transaction Documents have
been duly authorized by all necessary corporate action on the part of WTC, and
the Transaction Documents have been duly executed and delivered by
WTC.

     

    3.           The
execution, delivery and performance of the Transaction Documents by WTC and the
consummation of any of the transactions by WTC contemplated thereby are not
prohibited by (i) the charter or bylaws of WTC, (ii) any law or administrative
regulation of the State of Delaware or the United States of America governing
the banking and trust powers of WTC, or (iii) to our knowledge (based and
relying solely on the Officer Certificates), any agreements or instruments to
which WTC is a party or by which WTC is bound or any judgments or order
applicable to WTC.

     

    4.           The
Subordinated Debt Securities delivered on the date hereof have been
authenticated by due execution thereof and delivered by WTC, as Indenture
Trustee, in accordance with the Indenture. The Capital Securities delivered on
the date hereof have been authenticated by due execution thereof and delivered
by WTC, as Institutional Trustee, in accordance with the
Declaration.

     

    5.           None
of the execution, delivery and performance by WTC of the Transaction Documents
and the consummation of any of the transactions by WTC contemplated thereby
requires the consent, authorization, order or approval of, the withholding of
objection on the part of, the giving of notice to, the registration with or the
taking of any other action in respect of, any governmental authority or agency,
under any law or administrative regulation of the State of Delaware or the
United States of America governing the banking and trust powers of WTC, except
for the filing of the Trust Certificate with the Office of the Secretary of
State of the State of Delaware pursuant to the Delaware Act (which filing has
been duly made).

     

    
      
         

      

      
        D-1

        
          

        

      

      
         

      

    

    ANNEX
E

     

    THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAWS.  NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.  THE HOLDER OF THIS SECURITY OR
ANY INTEREST OR PARTICIPATION HEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF, AS
THE CASE MAY BE, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR
ANY INTEREST OR PARTICIPATION HEREIN ONLY (A) TO THE DEBENTURE ISSUER OR THE
TRUST, (B) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A
PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER,” AS
DEFINED IN RULE 144A, THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO AN “ACCREDITED INVESTOR”
WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER
THE SECURITIES ACT OR TO ANY ENTITY IN WHICH ALL OF THE EQUITY OWNERS COME
WITHIN SUCH SUBPARAGRAPHS THAT IS ACQUIRING THIS SECURITY OR SUCH INTEREST OR
PARTICIPATION FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN ACCREDITED
INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE
IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (D)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE DEBENTURE ISSUER AND THE
TRUST PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (D)
ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE AMENDED
AND RESTATED DECLARATION OF TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE
DEBENTURE ISSUER OR THE TRUST.  THE HOLDER OF THIS SECURITY OR ANY
INTEREST OR PARTICIPATION HEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF, AS THE
CASE MAY BE, AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.

     

    THE
HOLDER OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN, BY ITS
ACCEPTANCE HEREOF OR THEREOF, AS THE CASE MAY BE, ALSO AGREES, REPRESENTS AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR
OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) (EACH A “PLAN”), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” 

     

    
      
         

      

      
        E-1

        
          

        

      

      
         

      

    

    BY REASON
OF ANY PLAN'S INVESTMENT IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS” OF
ANY PLAN MAY ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF
AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION
96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS
PURCHASE AND HOLDING OF THIS SECURITY OR SUCH INTEREST OR PARTICIPATION IS NOT
PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO
SUCH PURCHASE OR HOLDING.  ANY PURCHASER OR HOLDER OF THIS SECURITY OR
ANY INTEREST OR PARTICIPATION HEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS
PURCHASE AND HOLDING HEREOF OR THEREOF, AS THE CASE MAY BE, THAT EITHER (i) IT
IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR
A PLAN TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER
PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON
OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH
PURCHASE, OR (ii) SUCH PURCHASE AND HOLDING WILL NOT RESULT IN A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH
THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.

     

    IN
CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITY WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE
REQUIRED BY THE AMENDED AND RESTATED DECLARATION OF TRUST TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

     

    THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A
LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS
THEREOF.  ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING A
LIQUIDATION AMOUNT OF LESS THAN $100,000 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 THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN FOR ANY
PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS
SECURITY OR SUCH INTEREST OR PARTICIPATION, AND SUCH PURPORTED TRANSFEREE SHALL
BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN THIS SECURITY OR ANY INTEREST OR
PARTICIPATION HEREIN.

     

     

    E-2