EX-4.15 PLACEMENT AGREEMENT DATED DECEMBER 7, 2005



 







Exhibit 4 - (15)




PEOPLES COMMUNITY BANCSHARES, INC.




4,000 Capital Securities




Fixed/Floating Rate Capital Securities

(Liquidation Amount $1,000.00 per Capital Security)




PLACEMENT AGREEMENT




 






December 7, 2005




FTN Financial Capital Markets

845 Crossover Lane, Suite 150

Memphis, Tennessee 38117




Keefe, Bruyette & Woods, Inc.

787 7th Avenue

4th Floor

New York, New York 10019




Ladies and Gentlemen:




     Peoples Community Bancshares, Inc., a Florida corporation (the “Company”), and its financing
subsidiary, Peoples Community Statutory Trust I, a Delaware statutory trust (the “Trust,” and
hereinafter together with the Company, the “Offerors”), hereby confirm their agreement (this
“Agreement”) with you as placement agents (the “Placement Agents”), as follows:


Section 1. Issuance and Sale of Securities. 




     1.1. Introduction. The Offerors propose to issue and sell at the Closing (as defined in
Section 2.3.1 hereof) 4,000 of the Trust’s Fixed/Floating Rate Capital Securities, with a
liquidation amount of $1,000.00 per capital security (the “Capital Securities”), to First Tennessee
Bank National Association (the “Purchaser”) pursuant to the terms of a Subscription Agreement
entered into, or to be entered into on or prior to the Closing Date (as defined in Section 2.3.1
hereof), between the Offerors and the Purchaser (the “Subscription Agreement”), the form of which
is attached hereto as Exhibit A and incorporated herein by this reference.



     1.2. Operative Agreements. The Capital Securities shall be fully and unconditionally
guaranteed on a subordinated basis by the Company with respect to distributions and amounts payable
upon liquidation, redemption or repayment (the “Guarantee”) pursuant and subject to the Guarantee
Agreement (the “Guarantee Agreement”), to be dated as of the Closing Date and executed and
delivered by the Company and Wilmington Trust Company (“WTC”), as trustee (the “Guarantee
Trustee”), for the benefit from time to time of the holders of the Capital Securities. The entire
proceeds from the sale by the Trust to the holders of the Capital Securities shall be combined with
the entire proceeds from the sale by the Trust to the Company of its common securities (the “Common
Securities”), and shall be used by the Trust to purchase $4,124,000.00 in principal amount of the Fixed/Floating Rate Junior Subordinated



 









 




Deferrable Interest Debentures (the “Debentures”) of the Company. The Capital Securities and the
Common Securities for the Trust shall be issued pursuant to an Amended and Restated Declaration of
Trust among WTC, as Delaware trustee (the “Delaware Trustee”), WTC, as institutional trustee (the
“Institutional Trustee”), the Administrators named therein, and the Company, to be dated as of the
Closing Date and in substantially the form heretofore delivered to the Placement Agents (the “Trust
Agreement”). The Debentures shall be issued pursuant to an Indenture (the “Indenture”), to be dated
as of the Closing Date, between the Company and WTC, as indenture trustee (the “Indenture
Trustee”). The documents identified in this Section 1.2 and in Section 1.1 are referred to herein
as the “Operative Documents.”




     1.3. Rights of Purchaser. The Capital Securities shall be offered and sold by the
Trust directly to the Purchaser without registration of any of the Capital Securities, the
Debentures or the Guarantee under the Securities Act of 1933, as amended (the “Securities Act”), or
any other applicable securities laws in reliance upon exemptions from the registration requirements
of the Securities Act and other applicable securities laws. The Offerors agree that this Agreement
shall be incorporated by reference into the Subscription Agreement and the Purchaser shall be
entitled to each of the benefits of the Placement Agents and the Purchaser under this Agreement and
shall be entitled to enforce obligations of the Offerors under this Agreement as fully as if the
Purchaser were a party to this Agreement. The Offerors and the Placement Agents have entered into
this Agreement to set forth their understanding as to their relationship and their respective
rights, duties and obligations.



     1.4. Legends. Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Securities Act, the Capital Securities and
Debentures certificates shall each contain a legend as required pursuant to any of the Operative
Documents.


Section 2. Purchase of Capital Securities. 




     2.1. Exclusive Rights; Purchase Price. From the date hereof until the Closing Date
(which date may be extended by mutual agreement of the Offerors and the Placement Agents), the
Offerors hereby grant to the Placement Agents the exclusive right to arrange for the sale of the
Capital Securities to the Purchaser at a purchase price of $1,000.00 per Capital Security.



     2.2. Subscription Agreement. The Offerors hereby agree to evidence their acceptance of
the subscription by countersigning a copy of the Subscription Agreement and returning the same to
the Placement Agents.



     2.3. Closing and Delivery of Payment. 



          2.3.1. Closing; Closing Date. The sale and purchase of the Capital Securities by the
Offerors to the Purchaser shall take place at a closing (the “Closing”) at the offices of Lewis,
Rice & Fingersh, L.C., at 10:00 a.m. (St. Louis time) on December 15, 2005, or such other business
day as may be agreed upon by the Offerors and the Placement Agents (the “Closing Date”); provided,
however, that in no event shall the Closing Date occur later than December 30, 2005 unless
consented to by the Purchaser. Payment by the Purchaser shall be payable in the manner set forth
in the Subscription Agreement and shall be made prior to or on the Closing Date.




          2.3.2. Delivery. The certificate for the Capital Securities shall be in definitive
form, registered in the name of the Purchaser, or the Purchaser’s designee, and in the aggregate
amount of the Capital Securities purchased by the Purchaser.




          2.3.3. Transfer Agent. The Offerors shall deposit the certificate representing the
Capital Securities with the Institutional Trustee or other appropriate party prior to the Closing
Date.




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     2.4. Costs and Expenses. Whether or not this Agreement is terminated or the sale of
the Capital Securities is consummated, the Company hereby covenants and agrees that it shall pay or
cause to be paid (directly or by reimbursement) all reasonable costs and expenses incident to the
performance of the obligations of the Offerors under this Agreement, including all fees, expenses
and disbursements of counsel and accountants for the Offerors; all reasonable expenses incurred by
the Offerors incident to the preparation, execution and delivery of the Trust Agreement, the
Indenture, and the Guarantee; and all other reasonable costs and expenses incident to the
performance of the obligations of the Company hereunder and under the Trust Agreement.



     2.5. Failure to Close. If any of the conditions to the Closing specified in this
Agreement shall not have been fulfilled to the satisfaction of the Placement Agents or if the
Closing shall not have occurred on or before 10:00 a.m. (St. Louis time) on December 30, 2005, then
each party hereto, notwithstanding anything to the contrary in this Agreement, shall be relieved of
all further obligations under this Agreement without thereby waiving any rights it may have by
reason of such nonfulfillment or failure; provided, however, that the obligations of the parties
under Sections 2.4, 7.5 and 9 shall not be so relieved and shall continue in full force and effect.


Section 3. Closing Conditions. The obligations of the Purchaser and the Placement Agents on
the Closing Date shall be subject to the accuracy, at and as of the Closing Date, of the
representations and warranties of the Offerors contained in this Agreement, to the accuracy, at and
as of the Closing Date, of the statements of the Offerors made in any certificates pursuant to this
Agreement, to the performance by the Offerors of their respective obligations under this Agreement,
to compliance, at and as of the Closing Date, by the Offerors with their respective agreements
herein contained, and to the following further conditions:




     3.1. Opinions of Counsel. On the Closing Date, the Placement Agents shall have
received the following favorable opinions, each dated as of the Closing Date: (a) from Smith
Mackinnon, P.A., counsel for the Offerors and addressed to the Purchaser, the Placement Agents and
WTC in substantially the form set forth on Exhibit B-1 attached hereto and incorporated herein by
this reference, (b) from Richards, Layton & Finger, P.A., special Delaware counsel to the Offerors
and addressed to the Purchaser, the Placement Agents and the Offerors, in substantially the form
set forth on Exhibit B-2 attached hereto and incorporated herein by this reference and (c) from
Lewis, Rice & Fingersh, L.C., special tax counsel to the Offerors, and addressed to the Placement
Agents and the Offerors, addressing the items set forth on Exhibit B-3 attached hereto and
incorporated herein by this reference, subject to the receipt by Lewis, Rice & Fingersh, L.C. of a
representation letter from the Company in the form set forth in Exhibit B-3
completed in a manner reasonably satisfactory to Lewis, Rice & Fingersh, L.C. (collectively,
the “Offerors’ Counsel Opinions”). In rendering the Offerors’ Counsel Opinions, counsel to the
Offerors may rely as to factual matters upon certificates or other documents furnished by officers,
directors and trustees of the Offerors (copies of which shall be delivered to the Placement Agents
and the Purchaser) and by government officials, and upon such other documents as counsel to the
Offerors may, in their reasonable opinion, deem appropriate as a basis for the Offerors’ Counsel
Opinions. Counsel to the Offerors may specify the jurisdictions in which they are admitted to
practice and that they are not admitted to practice in any other jurisdiction and are not experts
in the law of any other jurisdiction. If the Offerors’ counsel is not admitted to practice in the
State of New York, the opinion of Offerors’ counsel may assume, for purposes of the opinion, that
the laws of the State of New York are substantively identical, in all respects material to the
opinion, to the internal laws of the state in which such counsel is admitted to practice. Such
Offerors’ Counsel Opinions shall not state that they are to be governed or qualified by, or that
they are otherwise subject to, any treatise, written policy or other document relating to legal
opinions, including, without limitation, the Legal Opinion Accord of the ABA Section of Business
Law (1991).



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     3.2. Officer’s Certificate. At the Closing Date, the Purchaser and the Placement
Agents shall have received certificates from an authorized officer of the Company, dated as of the
Closing Date, stating that (i) the representations and warranties of the Offerors set forth in
Section 5 hereof are true and correct as of the Closing Date and that the Offerors have complied
with all agreements and satisfied all conditions on their part to be performed or satisfied at or
prior to the Closing Date, (ii) since the date of this Agreement the Offerors have not incurred any
liability or obligation, direct or contingent, or entered into any material transactions, other
than in the ordinary course of business, which is material to the Offerors, and (iii) covering such
other matters as the Placement Agents may reasonably request.



     3.3. Administrator’s Certificate. At the Closing Date, the Purchaser and the Placement
Agents shall have received a certificate of one or more Administrators of the Trust, dated as of
the Closing Date, stating that the representations and warranties of the Trust set forth in Section
5 are true and correct as of the Closing Date and that the Trust has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing
Date.



     3.4. Purchase Permitted by Applicable Laws; Legal Investment. The purchase of and
payment for the Capital Securities as described in this Agreement and pursuant to the Subscription
Agreement shall (a) not be prohibited by any applicable law or governmental regulation, (b) not
subject the Purchaser or the Placement Agents to any penalty or, in the reasonable judgment of the
Purchaser and the Placement Agents, other onerous conditions under or pursuant to any applicable
law or governmental regulation, and (c) be permitted by the laws and regulations of the
jurisdictions to which the Purchaser and the Placement Agents are subject.



     3.5. Consents and Permits. The Company and the Trust shall have received all consents,
permits and other authorizations, and made all such filings and declarations, as may be required
from any person or entity pursuant to any law, statute, regulation or rule (federal, state, local
and foreign), or pursuant to any agreement, order or decree to which the Company or the Trust is a
party or to which either is subject, in connection with the transactions contemplated by this
Agreement.



     3.6. Information. Prior to or on the Closing Date, the Offerors shall have furnished
to the Placement Agents such further information, certificates, opinions and documents addressed to
the Purchaser and the Placement Agents, which the Placement Agents may reasonably request,
including, without limitation, a complete set of the Operative Documents or any other documents or
certificates required by this Section 3; and all proceedings taken by the Offerors in connection
with the issuance, offer and sale of the Capital Securities as herein contemplated shall be
reasonably satisfactory in form and substance to the Placement Agents.



     If any condition specified in this Section 3 shall not have been fulfilled when and as
required in this Agreement, or if any of the opinions or certificates mentioned above or elsewhere
in this Agreement shall not be reasonably satisfactory in form and substance to the Placement
Agents, this Agreement may be terminated by the Placement Agents by notice to the Offerors at any
time at or prior to the Closing Date. Notice of such termination shall be given to the Offerors in
writing or by telephone or facsimile confirmed in writing.


Section 4. Conditions to the Offerors’ Obligations. The obligations of the Offerors to sell the
Capital Securities to the Purchaser and consummate the transactions contemplated by this Agreement
shall be subject to the accuracy, at and as of the Closing Date, of the representations and
warranties of the Placement Agents contained in this Agreement and to the following further
conditions:




     4.1. Executed Agreement. The Offerors shall have received from the Placement Agents an
executed copy of this Agreement.



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     4.2. Fulfillment of Other Obligations. The Placement Agents shall have fulfilled all
of their other obligations and duties required to be fulfilled under this Agreement prior to or at
the Closing.


Section 5. Representations and Warranties of the Offerors. Except as set forth on the
Disclosure Schedule (as defined in Section 11.1) attached hereto, if any, the Offerors jointly and
severally represent and warrant to the Placement Agents and the Purchaser as of the date hereof and
as of the Closing Date as follows:




     5.1. Securities Law Matters. 



          (a) Neither the Company nor the Trust, nor any of their “Affiliates” (as defined in Rule
501(b) of Regulation D under the Securities Act (“Regulation D”)), nor any person acting on any of
their behalf has, directly or indirectly, made offers or sales of any security, or solicited offers
to buy any security, under circumstances that would require the registration under the Securities
Act of any of the Capital Securities, the Guarantee or the Debentures (collectively, the
“Securities”) or any other securities to be issued, or which may be issued, by the Purchaser.




          (b) Neither the Company nor the Trust, nor any of their Affiliates, nor any person acting on
its or their behalf has (i) other than the Placement Agents, offered for sale or solicited
offers to purchase the Securities, or (ii) engaged in any form of offering, general
solicitation or general advertising (within the meaning of Regulation D) in connection with any
offer or sale of any of the Securities.




          (c) The Securities satisfy the eligibility requirements of Rule 144A(d)(3) under the
Securities Act.




          (d) Neither the Company nor the Trust is or, after giving effect to the offering and sale of
the Capital Securities and the consummation of the transactions described in this Agreement, will
be an “investment company” or an entity “controlled” by an “investment company,” in each case
within the meaning of Section 3(a) of the Investment Company Act of 1940, as amended (the
“Investment Company Act”), without regard to Section 3(c) of the Investment Company Act.




          (e) Neither the Company nor the Trust has paid or agreed to pay to any person or entity (other
than the Placement Agents) any compensation for soliciting another to purchase any of the
Securities.




     5.2. Organization, Standing and Qualification of the Trust. The Trust has been duly
created and is validly existing in good standing as a statutory trust under the Delaware Statutory
Trust Act (the “Statutory Trust Act”) with the power and authority to own property and to conduct
the business it transacts and proposes to transact and to enter into and perform its obligations
under the Operative Documents. The Trust is duly qualified to transact business as a foreign entity
and is in good standing in each jurisdiction in which such qualification is necessary, except where
the failure to so qualify or be in good standing would not have a material adverse effect on the
Trust. The Trust is not a party to or otherwise bound by any agreement other than the Operative
Documents. The Trust is and will, under current law, be classified for federal income tax purposes
as a grantor trust and not as an association taxable as a corporation.



     5.3. Trust Agreement. The Trust Agreement 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 of the Trust, and, assuming due authorization, execution and delivery by the
Delaware Trustee and the Institutional Trustee, will be a valid and binding obligation of the
Company and such Administrators, enforceable against them in accordance with its terms, subject to
(a) applicable bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and
other laws relating to or affecting creditors’



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rights generally, and (b) general principles of equity (regardless of whether considered and
applied in a proceeding in equity or at law) (“Bankruptcy and Equity”). Each of the Administrators
of the Trust is an employee or a director of the Company or of a financial institution subsidiary
of the Company and has been duly authorized by the Company to execute and deliver the Trust
Agreement.




     5.4. Guarantee Agreement and the Indenture. Each of the Guarantee and 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 by the
Guarantee Trustee, in the case of the Guarantee, and by the Indenture Trustee, in the case of the
Indenture, will be a valid and binding obligation of the Company enforceable against it in
accordance with its terms, subject to Bankruptcy and Equity.



     5.5. Capital Securities and Common Securities. The Capital Securities and the Common
Securities have been duly authorized by the Trust Agreement and, when issued and delivered against
payment therefor on the Closing Date to the Purchaser, in the case of the Capital Securities, and
to the Company, in the case of the Common Securities, will be validly issued and represent
undivided beneficial interests in the assets of the Trust. None of the Capital Securities or the
Common Securities is subject to preemptive or other similar rights. On the Closing Date, all of
the issued and outstanding Common Securities will be directly owned by the Company free and clear
of any pledge, security interest, claim, lien or other encumbrance.



     5.6. Debentures. The Debentures have been duly authorized by the Company and, at the
Closing Date, will have been duly executed and delivered to the Indenture Trustee for
authentication in accordance with the Indenture, and, when authenticated in the manner provided for
in the Indenture and delivered against payment therefor by the Trust, will constitute valid and
binding obligations of the Company entitled to the benefits of the Indenture enforceable against
the Company in accordance with their terms, subject to Bankruptcy and Equity.



     5.7. Power and Authority. This Agreement has been duly authorized, executed and delivered
by the Company and the Trust and constitutes the valid and binding obligation of the Company and
the Trust, enforceable against the Company and the Trust in accordance with its terms, subject to
Bankruptcy and Equity.



     5.8. No Defaults. The Trust is not in violation of the Trust Agreement or, to the
knowledge of the Administrators, any provision of the Statutory Trust Act. The execution, delivery
and performance by the Company or the Trust of this Agreement or the Operative Documents to which
it is a party, and the consummation of the transactions contemplated herein or therein and the use
of the proceeds therefrom, will not conflict with or constitute a breach of, or a default under, or
result in the creation or imposition of any lien, charge or other encumbrance upon any property or
assets of the Trust, the Company or any of the Company’s Subsidiaries (as defined in Section 5.11
hereof) pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Trust, the Company or any of its Subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of any of them is subject,
except for a conflict, breach, default, lien, charge or encumbrance which could not, singly or in
the aggregate, reasonably be expected to have a Material Adverse Effect nor will such action result
in any violation of the Trust Agreement or the Statutory Trust Act or require the consent,
approval, authorization or order of any court or governmental agency or body. As used herein, the
term “Material Adverse Effect” means any one or more effects that individually or in the aggregate
are material and adverse to the Offerors’ ability to consummate the transactions contemplated
herein or in the Operative Documents or any one or more effects that individually or in the
aggregate are material and adverse to the condition (financial or otherwise), earnings, affairs,
business, prospects or results of



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operations of the Company and its Subsidiaries taken as whole, whether or not occurring in the
ordinary course of business.




     5.9. Organization, Standing and Qualification of the Company. The Company has been
duly incorporated and is validly existing as a corporation in good standing under the laws of
Florida, with all requisite corporate power and authority to own its properties and conduct the
business it transacts and proposes to transact, and is duly qualified to transact business and is
in good standing as a foreign corporation in each jurisdiction where the nature of its activities
requires such qualification, except where the failure of the Company to be so qualified would not,
singly or in the aggregate, have a Material Adverse Effect.



     5.10. Subsidiaries of the Company. Each of the Company’s significant subsidiaries (as
defined in Section 1-02(w) of Regulation S-X to the Securities Act (the “Significant
Subsidiaries”)) is listed in Exhibit C attached hereto and incorporated herein by this reference.
Each Significant Subsidiary has been duly organized and is validly existing and in good standing
under the laws of the jurisdiction in which it is chartered or organized, with all requisite power
and authority to own its properties and conduct the business it transacts and proposes to transact,
and is duly qualified to transact business and is in good standing as a foreign entity in each
jurisdiction where the nature of its activities requires such qualification, except where the
failure of any such Significant Subsidiary to be so qualified would not, singly or in the
aggregate, have a Material Adverse Effect. All of the issued and outstanding shares of capital
stock of the Significant Subsidiaries (a) have been duly authorized and are validly issued, (b) are
fully paid and nonassessable, and (c) are wholly owned, directly or indirectly, by the Company free
and clear of any security interest, mortgage, pledge, lien, encumbrance, restriction upon voting or
transfer, preemptive rights, claim, equity or other defect.



     5.11. Permits. The Company and each of its subsidiaries (as defined in Section 1-02(x)
of Regulation S-X to the Securities Act) (the “Subsidiaries”) have all requisite power and
authority, and all necessary authorizations, approvals, orders, licenses, certificates and permits
of and from regulatory or governmental officials, bodies and tribunals, to own or lease their
respective properties and to conduct their respective businesses as now being conducted, except
such authorizations, approvals, orders, licenses, certificates and permits which, if not obtained
and maintained, would not, singly or in the aggregate, have a Material Adverse Effect, and neither
the Company nor any of its Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such authorizations, approvals, orders, licenses, certificates or
permits which, singly or in the aggregate, if the failure to be so licensed or approved is the
subject of an unfavorable decision, ruling or finding, would, singly or in the aggregate, have a
Material Adverse Effect; and the Company and its Subsidiaries are in compliance with all applicable
laws, rules, regulations and orders and consents, the violation of which would, singly or in the
aggregate, have a Material Adverse Effect.



     5.12. Conflicts, Authorizations and Approvals. Neither the Company nor any of its
Subsidiaries is in violation of its respective articles or certificate of incorporation, charter or
by-laws or similar organizational documents or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which either the Company or any of its
Subsidiaries is a party, or by which it or any of them may be bound or to which any of the property
or assets of the Company or any of its Subsidiaries is subject, the effect of which violation or
default in performance or observance would have, singly or in the aggregate, a Material Adverse
Effect.



     5.13. Holding Company Registration and Deposit Insurance. The Company is duly
registered (i) as a bank holding company or financial holding company under the Bank Holding
Company Act of 1956, as amended, and the regulations of the Board of Governors of the Federal
Reserve System



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(the “Federal Reserve”) or (ii) as a savings and loan holding company under the Home Owners’ Loan
Act of 1933, as amended, and the regulations of the Office of Thrift Supervision (the “OTS”), and
the deposit accounts of the Company’s Subsidiary depository institutions are insured by the Federal
Deposit Insurance Corporation (“FDIC”) to the fullest extent permitted by law and the rules and
regulations of the FDIC, and no proceedings for the termination of such insurance are pending or
threatened.




     5.14. Financial Statements. 



          (a) The consolidated balance sheets of the Company and all of its Subsidiaries as of December
31, 2004 and December 31, 2003 and related consolidated income statements and statements of changes
in shareholders’ equity for the three years ended December 31, 2004 together with the notes
thereto, and the consolidated balance sheets of the Company and all of its Subsidiaries as of June
30, 2005 and the related consolidated income statements and statements of changes in shareholders’
equity for the six months then ended, copies of each of which have been provided to the Placement
Agents (together, the “Financial Statements”), have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis (except as may be disclosed therein)
and fairly present in all material respects the financial position and the results of operations
and changes in shareholders’ equity of the Company and all of its Subsidiaries as of the dates and
for the periods indicated (subject, in the case of interim financial statements, to normal
recurring year-end adjustments, none of which shall be material). The books and records of the
Company and all of its Subsidiaries have been, and are being, maintained in all material respects
in accordance with generally accepted accounting principles and any other applicable legal and
accounting requirements and reflect only actual transactions.




          (b) The information in the Company’s most recently filed (i) FR Y-9C filed with the Federal
Reserve if the Company is a bank holding company, (ii) FR Y-9SP filed with the Federal Reserve if
the Company is a small bank holding company or (iii) H-(b)11 filed with the OTS if the Company is a
savings and loan holding company (the “Regulatory Report”), previously provided to the Placement
Agents fairly presents in all material respects the financial position of the Company and, where
applicable, all of its Subsidiaries as of the end of the period represented by such Regulatory
Report.




          (c) Since the respective dates of the Financial Statements and the Regulatory Report, there
has been no material adverse change or development with respect to the financial condition or
earnings of the Company and all of its Subsidiaries, taken as a whole.




          (d) The accountants of the Company who certified the Financial Statements are independent
public accountants of the Company and its Subsidiaries within the meaning of the Securities Act and
the rules and regulations thereunder.




     5.15. Exchange Act Reporting. The reports filed with the Securities and Exchange
Commission (the “Commission”) by the Company under the Securities Exchange Act of 1934, as amended
(the “1934 Act”) and the regulations thereunder at the time they were filed with the Commission
complied as to form in all material respects with the requirements of the 1934 Act and such reports
did not contain 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 light of the circumstances in
which they were made, not misleading.



     5.16. Regulatory Enforcement Matters. Neither the Company nor any of its Subsidiaries
is subject or is party to, or has received any notice or advice that any of them may become subject
or party to, any investigation with respect to, any 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 since January 1, 2002, a recipient of any supervisory letter from, or
since January 1, 2002, has adopted



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any board resolutions at the request of, any Regulatory Agency (as defined below) that currently
restricts in any material respect the conduct of their business or that in any material manner
relates to their capital adequacy, their credit policies, their ability or authority to pay
dividends or make distributions to their shareholders or make payments of principal or interest on
their debt obligations, their management or their business (each, a “Regulatory Agreement”), nor
has the Company or any of its Subsidiaries been advised since January 1, 2002, by any Regulatory
Agency that it is considering issuing or requesting any such Regulatory Agreement. There is no
material 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. As
used herein, the term “Regulatory Agency” means any federal or state agency charged with the
supervision or regulation of depository institutions, bank, financial or savings and loan holding
companies, or engaged in the insurance of depository 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.
Neither the Company nor any of the Subsidiaries is currently unable to pay dividends or make
distributions to its shareholders with respect to any class of its equity securities, or prohibited
from paying principal or interest on its debt obligations, due to a restriction or limitation,
whether by statute, contract or otherwise, and, in the reasonable judgment of the Company’s
management, neither the Company nor any of the Subsidiaries will be unable in the foreseeable
future to pay dividends or make distributions with respect to any class of equity securities, or be
prohibited from paying principal or interest on its debt obligations, due to a restriction or
limitation, whether by statute, contract or otherwise.




     5.17. No Material Change. Since December 31, 2004, there has been no material adverse
change or development with respect to the condition (financial or otherwise), earnings, affairs,
business, prospects or results of operations of the Company or its Subsidiaries on a consolidated
basis, whether or not arising in the ordinary course of business.



     5.18. 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 and (ii) normal fluctuation 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 the Financial Statements.



     5.19. Litigation. No charge, investigation, action, suit or proceeding is pending or,
to the knowledge of the Offerors, threatened against or affecting the Company or its Subsidiaries
or any of their respective properties before or by any courts or any regulatory, administrative or
governmental official, commission, board, agency or other authority or body, or any arbitrator,
wherein an unfavorable decision, ruling or finding could have, singly or in the aggregate, a
Material Adverse Effect.



     5.20. Deferral of Interest Payments on Debentures. The Company has no present
intention to exercise its option to defer payments of interest on the Debentures as provided in the
Indenture. The Company believes that the likelihood that it would exercise its right to defer
payments of interest on the Debentures as provided in the Indenture at any time during which the
Debentures are outstanding is remote because of the restrictions that would be imposed on the
Company’s ability to declare or pay dividends or distributions on, or to redeem, purchase, acquire
or make a liquidation payment with respect to, any of the Company’s capital stock and on the
Company’s ability to make any payments of principal, interest or premium on, or repay, repurchase
or redeem, any of its debt securities that rank pari passu in all respects with, or junior in
interest to, the Debentures.



9









 




Section 6. Representations and Warranties of the Placement Agents. Each Placement Agent
represents and warrants to the Offerors as to itself (but not as to the other Placement Agent) as
follows:




     6.1. Organization, Standing and Qualification. 



          (a) FTN Financial Capital Markets is a division of First Tennessee Bank National Association,
a national banking association duly organized, validly existing and in good standing under the laws
of the United States, with full power and authority to own, lease and operate its properties and
conduct its business as currently being conducted. FTN Financial Capital Markets is duly qualified
to transact business as a foreign corporation and is in good standing in each other jurisdiction in
which it owns or leases property or conducts its business so as to require such qualification and
in which the failure to so qualify would, individually or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), earnings, business, prospects or results of
operations of FTN Financial Capital Markets.




          (b) Keefe, Bruyette & Woods, Inc. is a corporation duly organized, validly existing and in
good standing under the laws of the State of New York, with full power and
authority to own, lease and operate its properties and conduct its business as currently being
conducted. Keefe, Bruyette & Woods, Inc. is duly qualified to transact business as a foreign
corporation and is in good standing in each other jurisdiction in which it owns or leases property
or conducts its business so as to require such qualification and in which the failure to so qualify
would, individually or in the aggregate, have a material adverse effect on the condition (financial
or otherwise), earnings, business, prospects or results of operations of Keefe, Bruyette & Woods,
Inc.




     6.2. Power and Authority. The Placement Agent has all requisite power and authority to
enter into this Agreement, and this Agreement has been duly and validly authorized, executed and
delivered by the Placement Agent and constitutes the legal, valid and binding agreement of the
Placement Agent, enforceable against the Placement Agent in accordance with its terms, subject to
Bankruptcy and Equity and except as any indemnification or contribution provisions thereof may be
limited under applicable securities laws.



     6.3. General Solicitation. In the case of the offer and sale of the Capital
Securities, no form of general solicitation or general advertising was used by the Placement Agent
or its representatives including, but not limited to, advertisements, articles, notices or other
communications published in any newspaper, magazine or similar medium or broadcast over television
or radio or any seminar or meeting whose attendees have been invited by any general solicitation or
general advertising.



     6.4. Purchaser. The Placement Agent has made such reasonable inquiry as is necessary
to determine that the Purchaser is acquiring the Capital Securities for its own account, except as
contemplated in Section 7.8 hereto, and that the Purchaser does not intend to distribute the
Capital Securities in contravention of the Securities Act or any other applicable securities laws.



     6.5. Qualified Purchasers. The Placement Agent has not offered or sold and will not
arrange for the offer or sale of the Capital Securities except (i) to those the Placement Agent
reasonably believes are “accredited investors” (as defined in Rule 501 of Regulation D), or (ii) in
any other manner that does not require registration of the Capital Securities under the Securities
Act. In connection with each such sale, the Placement Agent has taken or will take reasonable steps
to ensure that the Purchaser is aware that (a) such sale is being made in reliance on an exemption
under the Securities Act and (b) future transfers of the Capital Securities will not be made except
in compliance with applicable securities laws.



     6.6. Offering Circulars. Neither the Placement Agent nor its representatives will
include any non-public information about the Company, the Trust or any of their Affiliates in any
registration



10









 




statement, prospectus, offering circular or private placement memorandum used in connection with
any purchase of Capital Securities without the prior written consent of the Trust and the Company.



Section 7. Covenants of the Offerors. The Offerors covenant and agree with the Placement
Agents and the Purchaser as follows:




     7.1. Compliance with Representations and Warranties. During the period from the date
of this Agreement to the Closing Date, the Offerors shall use their best efforts and take all
action necessary or appropriate to cause their representations and warranties contained in Section
5 hereof to be true as of the Closing Date, after giving effect to the transactions contemplated by
this Agreement, as if made on and as of the Closing Date.



     7.2. Sale and Registration of Securities. The Offerors and their Affiliates shall not
nor shall any of them permit any person acting on their behalf (other than the Placement Agents),
to directly or indirectly (i) sell, offer for sale or solicit offers to buy or otherwise negotiate
in respect of any security (as defined in the Securities Act) that would or could be integrated
with the sale of the Capital Securities in a manner that would require the registration under the
Securities Act of the Securities or (ii) make offers or sales of any such Security, or solicit
offers to buy any such Security, under circumstances that would require the registration of any of
such Securities under the Securities Act.



     7.3. Use of Proceeds. The Trust shall use the proceeds from the sale of the Capital
Securities and the Common Securities to purchase the Debentures from the Company.



     7.4. Investment Company. The Offerors shall not engage, or permit any Subsidiary to
engage, in any activity which would cause it or any Subsidiary to be an “investment company” under
the provisions of the Investment Company Act.



     7.5. Reimbursement of Expenses. If the sale of the Capital Securities provided for
herein is not consummated (i) because any condition set forth in Section 3 hereof is not satisfied,
or (ii) because of any refusal, inability or failure on the part of the Company or the Trust to
perform any agreement herein or comply with any provision hereof other than by reason of a breach
by the Placement Agents, the Company shall reimburse the Placement Agents upon demand for all of
their pro rata share of out-of-pocket expenses (including reasonable fees and disbursements of
counsel) in an amount not to exceed $50,000.00 that shall have been incurred by them in connection
with the proposed purchase and sale of the Capital Securities. Notwithstanding the foregoing, the
Company shall have no obligation to reimburse the Placement Agents for their out-of-pocket expenses
if the sale of the Capital Securities fails to occur because the Placement Agents fail to fulfill a
condition set forth in Section 4.



     7.6. Solicitation and Advertising. In connection with any offer or sale of any of the
Securities, the Offerors shall not, nor shall either of them permit any of their Affiliates or any
person acting on their behalf, other than the Placement Agents, to engage in any form of general
solicitation or general advertising (as defined in Regulation D).



     7.7. Compliance with Rule 144A(d)(4) under the Securities Act. So long as any of the
Securities are outstanding and are “restricted securities” within the meaning of Rule 144(a)(3)
under the Securities Act, the Offerors will, during any period in which they are not subject to and
in compliance with Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), or the Offerors are not exempt from such reporting requirements pursuant to and in
compliance with Rule 12g3-2(b) under the Exchange Act, provide to each holder of such restricted
securities and to each prospective purchaser (as designated by such holder) of such restricted
securities, upon the request of such holder or prospective purchaser in connection with any
proposed transfer, any information required to be provided by Rule 144A(d)(4) under the Securities
Act, if applicable. This covenant is intended to be



11









 




for the benefit of the holders, and the prospective purchasers designated by such holders, from
time to time of such restricted securities. The information provided by the Offerors pursuant to
this Section 7.7 will not, at the date thereof, contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.




     7.8. Transfer Notice. The Offerors acknowledge that the Purchaser may transfer the
Capital Securities, in whole or in part, at any time and from time to time following the Closing
Date by delivering the notice (the “Transfer Notice”) attached as Exhibit B to the Master Custodian
Agreement, dated May 27, 2004, as amended, and attached as Exhibit A to the Subscription Agreement.
In order to facilitate such transfer, the Company shall execute in blank five additional Capital
Securities certificates, to be delivered at Closing, such certificates to be completed with the
name of the transferee(s) to which the Capital Securities, in whole or in part, will be transferred
upon the receipt of a Transfer Notice and authenticated by the Institutional Trustee at the time of
each such transfer.



     7.9. Quarterly Reports. Within 50 days of the end of each calendar year quarter and
within 100 days of the end of each calendar year during which the Debentures are issued and
outstanding and Purchaser holds any of the Capital Securities, the Offerors shall submit to
Purchaser a completed quarterly report in the form attached hereto as Exhibit D as well as a copy
of the applicable Regulatory Report for the Company. If the Purchaser transfers the Capital
Securities as contemplated under Section 7.8, in addition to the reporting obligations of the
Offerors to Purchaser provided for in this Section 7.9, the Offerors shall submit to the trustee
designated in the Transfer Notice such periodic reports as may be required by such trustee in the
form and at such times as such trustee may require. The Offerors acknowledge and agree that such
designated trustee and its successors and assigns are third party beneficiaries of this Section
7.9.


Section 8. Covenants of the Placement Agents. The Placement Agents covenant and agree with
the Offerors that, during the period from the date of this Agreement to the Closing Date, the
Placement Agents shall use their best efforts and take all action necessary or appropriate to cause
their representations and warranties contained in Section 6 to be true as of the Closing Date,
after giving effect to the transactions contemplated by this Agreement, as if made on and as of the
Closing Date. The Placement Agents further covenant and agree not to engage in hedging
transactions with respect to the Capital Securities unless such transactions are conducted in
compliance with the Securities Act.



Section 9. Indemnification. 




     9.1. Indemnification Obligation. The Offerors shall jointly and severally indemnify
and hold harmless the Placement Agents and the Purchaser and each of their respective agents,
employees, officers and directors and each person that controls either of the Placement Agents or
the Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, and agents, employees, officers and directors or any such controlling person of either of the
Placement Agents or the Purchaser (each such person or entity, an “Indemnified
Party”) from and against any and all losses, claims, damages, judgments, liabilities or
expenses, joint or several, to which such Indemnified Party may become subject under the Securities
Act, the Exchange Act or other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such settlement is effected with the
written consent of the Offerors), insofar as such losses, claims, damages, judgments, liabilities
or expenses (or actions in respect thereof) arise out of, or are based upon, or relate to, in whole
or in part, (a) any untrue statement or alleged untrue statement of a material fact contained in
any information (whether written or oral) or documents executed in favor of, furnished or made
available to the Placement Agents or the Purchaser by the Offerors, or (b) any omission or alleged
omission to state in any information (whether written or oral) or documents executed in favor of,
furnished or made available



12









 




to the Placement Agents or the Purchaser by the Offerors a material fact required to be stated
therein or necessary to make the statements therein not misleading, and shall reimburse each
Indemnified Party for any legal and other expenses as such expenses are reasonably incurred by such
Indemnified Party in connection with investigating, defending, settling, compromising or paying any
such loss, claim, damage, judgments, liability, expense or action described in this Section 9.1. In
addition to their other obligations under this Section 9, the Offerors hereby agree that, as an
interim measure during the pendency of any claim, action, investigation, inquiry or other
proceeding arising out of, or based upon, or related to the matters described above in this Section
9.1, they shall reimburse each Indemnified Party on a quarterly basis for all reasonable legal or
other expenses incurred in connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of a judicial determination
as to the propriety and enforceability of the possibility that such payments might later be held to
have been improper by a court of competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, each Indemnified Party shall promptly
return such amounts to the Offerors together with interest, determined on the basis of the prime
rate (or other commercial lending rate for borrowers of the highest credit standing) announced from
time to time by First Tennessee Bank National Association (the “Prime Rate”). Any such interim
reimbursement payments which are not made to an Indemnified Party within 30 days of a request for
reimbursement shall bear interest at the Prime Rate from the date of such request.




     9.2. Conduct of Indemnification Proceedings. Promptly after receipt by an Indemnified
Party under this Section 9 of notice of the commencement of any action, such Indemnified Party
shall, if a claim in respect thereof is to be made against the Offerors under this Section 9,
notify the Offerors in writing of the commencement thereof; but, subject to Section 9.4, the
omission to so notify the Offerors shall not relieve them from any liability pursuant to Section
9.1 which the Offerors may have to any Indemnified Party unless and to the extent that the Offerors
did not otherwise learn of such action and such failure by the Indemnified Party results in the
forfeiture by the Offerors of substantial rights and defenses. In case any such action is brought
against any Indemnified Party and such Indemnified Party seeks or intends to seek indemnity from
the Offerors, the Offerors shall be entitled to participate in, and, to the extent that they may
wish, to assume the defense thereof with counsel reasonably satisfactory to such Indemnified Party;
provided, however, if the defendants in any such action include both the Indemnified Party and the
Offerors and the Indemnified Party shall have reasonably concluded that there may be a conflict
between the positions of the Offerors and the Indemnified Party in conducting the
defense of any such action or that there may be legal defenses available to it and/or other
Indemnified Parties which are different from or additional to those available to the Offerors, the
Indemnified Party shall have the right to select separate counsel to assume such legal defenses and
to otherwise participate in the defense of such action on behalf of such Indemnified Party. Upon
receipt of notice from the Offerors to such Indemnified Party of their election to so assume the
defense of such action and approval by the Indemnified Party of counsel, the Offerors shall not be
liable to such Indemnified Party under this Section 9 for any legal or other expenses subsequently
incurred by such Indemnified Party in connection with the defense thereof unless (i) the
Indemnified Party shall have employed such counsel in connection with the assumption of legal
defenses in accordance with the proviso in the preceding sentence (it being understood, however,
that the Offerors shall not be liable for the expenses of more than one separate counsel
representing the Indemnified Parties who are parties to such action), or (ii) the Offerors shall
not have employed counsel reasonably satisfactory to the Indemnified Party to represent the
Indemnified Party within a reasonable time after notice of commencement of the action, in each of
which cases the fees and expenses of counsel of such Indemnified Party shall be at the expense of
the Offerors.



     9.3. Contribution. If the indemnification provided for in this Section 9 is required
by its terms, but is for any reason held to be unavailable to or otherwise insufficient to hold
harmless an Indemnified Party under Section 9.1 in respect of any losses, claims, damages,
liabilities or expenses referred to herein or therein, then the Offerors shall contribute to the
amount paid or payable by such



13









 




Indemnified Party as a result of any losses, claims, damages, judgments, liabilities or expenses
referred to herein (i) in such proportion as is appropriate to reflect the relative benefits
received by the Offerors, on the one hand, and the Indemnified Party, on the other hand, from the
offering of such Capital Securities, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the Offerors, on the one
hand, and the Placement Agents, on the other hand, in connection with the statements or omissions
or inaccuracies in the representations and warranties herein or other breaches which resulted in
such losses, claims, damages, judgments, liabilities or expenses, as well as any other relevant
equitable considerations. The respective relative benefits received by the Offerors, on the one
hand, and the Placement Agents, on the other hand, shall be deemed to be in the same proportion, in
the case of the Offerors, as the total price paid to the Offerors for the Capital Securities sold
by the Offerors to the Purchaser (net of the compensation paid to the Placement Agents hereunder,
but before deducting expenses), and in the case of the Placement Agents, as the compensation
received by them, bears to the total of such amounts paid to the Offerors and received by the
Placement Agents as compensation. The relative fault of the Offerors and the Placement Agents shall
be determined by reference to, among other things, whether the untrue statement or alleged untrue
statement of a material fact or the omission or alleged omission of a material fact or the
inaccurate or the alleged inaccurate representation and/or warranty relates to information supplied
by the Offerors or the Placement Agents and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. The provisions set
forth in Section 9.2 with respect to notice of commencement of any action shall apply if a claim
for contribution is made under this Section 9.3; provided, however, that no additional notice shall
be required with respect to any action for which notice has been given under Section 9.2 for
purposes of indemnification. The Offerors and the Placement Agents agree that it would not be just
and equitable if contribution pursuant to this Section 9.3 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable considerations
referred to in this Section 9.3. The amount paid or payable by an Indemnified Party as a result of
the losses, claims, damages, judgments, liabilities or expenses referred to in this Section 9.3
shall be deemed to include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating or defending any
such action or claim. In no event shall the liability of the Placement Agents hereunder be greater
in amount than the dollar amount of the compensation (net of payment of all expenses) received by
the Placement Agents upon the sale of the Capital Securities giving rise to such obligation. No
person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not found guilty of such
fraudulent misrepresentation.




     9.4. Additional Remedies. The indemnity and contribution agreements contained in this
Section 9 are in addition to any liability that the Offerors may otherwise have to any Indemnified
Party.



     9.5. Additional Indemnification. The Company shall indemnify and hold harmless the
Trust against all loss, liability, claim, damage and expense whatsoever, as due from the Trust
under Sections 9.1 through 9.4 hereof.


Section 10. Rights and Responsibilities of Placement Agents. 




     10.1. Reliance. In performing their duties under this Agreement, the Placement Agents
shall be entitled to rely upon any notice, signature or writing which they shall in good faith
believe to be genuine and to be signed or presented by a proper party or parties. The Placement
Agents may rely upon any opinions or certificates or other documents delivered by the Offerors or
their counsel or designees to either the Placement Agents or the Purchaser.



14









 





     10.2. Rights of Placement Agents. In connection with the performance of their duties
under this Agreement, the Placement Agents shall not be liable for any error of judgment or any
action taken or omitted to be taken unless the Placement Agents were grossly negligent or engaged
in willful misconduct in connection with such performance or non-performance. No provision of this
Agreement shall require the Placement Agents to expend or risk their own funds or otherwise incur
any financial liability on behalf of the Purchaser in connection with the performance of any of
their duties hereunder. The Placement Agents shall be under no obligation to exercise any of the
rights or powers vested in them by this Agreement.


Section 11. Miscellaneous. 




     11.1. Disclosure Schedule. The term “Disclosure Schedule,” as used herein, means the
schedule, if any, attached to this Agreement that sets forth items the disclosure of which is
necessary or appropriate as an exception to one or more representations or warranties contained in
Section 5 hereof; provided, that any item set forth in the Disclosure Schedule as an exception to a
representation or warranty shall be deemed an admission by the Offerors that such item represents
an exception, fact, event or circumstance that is reasonably likely to result in a Material
Adverse Effect. The Disclosure Schedule shall be arranged in paragraphs corresponding to the
section numbers contained in Section 5. Nothing in the Disclosure Schedule shall be deemed adequate
to disclose an exception to a representation or warranty made herein unless the Disclosure Schedule
identifies the exception with reasonable particularity and describes the relevant facts in
reasonable detail. Without limiting the generality of the immediately preceding sentence, the mere
listing (or inclusion of a copy) of a document or other item in the Disclosure Schedule shall not
be deemed adequate to disclose an exception to a representation or warranty made herein unless the
representation or warranty has to do with the existence of the document or other item itself.
Information provided by the Company in response to any due diligence questionnaire shall not be
deemed part of the Disclosure Schedule and shall not be deemed to be an exception to one or more
representations or warranties contained in Section 5 hereof unless such information is specifically
included on the Disclosure Schedule in accordance with the provisions of this Section 11.1.



     11.2. Legal Expenses. At Closing, the Placement Agents shall provide a credit for the
Offerors’ transaction-related legal expenses in the amount of $10,000.00.



     11.3. Non-Disclosure. Except as required by applicable law, including without
limitation securities laws and regulations promulgated thereunder, (i) the Offerors shall not, and
will cause their advisors and representatives not to, issue any press release or other public
statement regarding the transactions contemplated by this Agreement or the Operative Documents
prior to or on the Closing Date and (ii) following the Closing Date, the Offerors shall not include
in any press release, other public statement or other communication regarding the transactions
contemplated by this Agreement or the Operative Documents, any reference to the Placement Agents,
WTC, the Purchaser, the term “PreTS” or any derivations thereof, or the terms and conditions of
this Agreement or the Operative Documents. Notwithstanding anything to the contrary, the Offerors
may (1) consult any tax advisor regarding U.S. federal income tax treatment or tax structure of the
transaction contemplated under this Agreement and the Operative Documents and (2) disclose to any
and all persons, without limitation of any kind, the U.S. Federal income tax structure (in each
case, within the meaning of Treasury Regulation § 1.6011-4) of the transaction contemplated under
this Agreement and the Operative Documents and all materials of any kind (including opinions or
other tax analyses) that are provided to you relating to such tax treatment and tax structure. For
this purpose, “tax structure” is limited to any facts relevant to the U.S. federal income tax
treatment of the transaction and does not include information relating to identity of the parties.



     11.4. Notices. Prior to the Closing, and thereafter with respect to matters pertaining
to this Agreement only, all notices and other communications provided for or permitted hereunder
shall be made



15









 




in writing by hand-delivery, first-class mail, telex, telecopier or overnight air courier
guaranteeing next day delivery:




     if to the Placement Agents, to:



	 	 	 
	 

	 	FTN Financial Capital Markets
	 

	 	845 Crossover Lane, Suite 150
	 

	 	Memphis, Tennessee 38117
	 

	 	Telecopier: 901-435-4706
	 

	 	Telephone: 800-456-5460
	 

	 	Attention: James D. Wingett
	 
	 	 
	 

	 	               and
	 
	 	 
	 

	 	Keefe, Bruyette & Woods, Inc.
	 

	 	787 7th Avenue
	 

	 	4th Floor
	 

	 	New York, New York 10019
	 

	 	Telecopier: 212-403-2000
	 

	 	Telephone: 212-403-1004
	 

	 	Attention: Mitchell Kleinman, General Counsel






     with a copy to:



	 	 	 
	 

	 	Lewis, Rice & Fingersh, L.C.
	 

	 	500 North Broadway, Suite 2000
	 

	 	St. Louis, Missouri 63102
	 

	 	Telecopier: 314-241-6056
	 

	 	Telephone: 314-444-7600
	 

	 	Attention: Thomas C. Erb, Esq.
	 
	 	 
	 

	 	               and
	 
	 	 
	 

	 	Sidley Austin Brown & Wood LLP
	 

	 	787 7th Avenue
	 

	 	New York, New York 10019
	 

	 	Telecopier: 212-839- 5599
	 

	 	Telephone: 212-839-5300
	 

	 	Attention: Renwick Martin, Esq.






     if to the Offerors, to:



	 	 	 
	 

	 	Peoples Community Bancshares, Inc.
	 

	 	25 South Links Avenue
	 

	 	Sarasota, Florida 34236
	 

	 	Telecopier: 941-955-6578
	 

	 	Telephone: 941-373-0426
	 

	 	Attention: Dorothy S. Barth






16









 





     with a copy to:



	 	 	 
	 

	 	Smith Mackinnon, P.A.
	 

	 	Citrus Center
	 

	 	255 South Orange Avenue, Suite 800
	 

	 	Orlando, Florida 32081
	 

	 	Telecopier: 407-843-2448
	 

	 	Telephone: 407-843-7300
	 

	 	Attention: John P. Greeley, Esq.






     All such notices and communications shall be deemed to have been duly given (i) at the time
delivered by hand, if personally delivered, (ii) five business days after being deposited in the
mail, postage prepaid, if mailed, (iii) when answered back, if telexed, (iv) the next business day
after being telecopied, or (v) the next business day after timely delivery to a courier, if sent by
overnight air courier guaranteeing next day delivery. From and after the Closing, the foregoing
notice provisions shall be superseded by any notice provisions of the Operative Documents under
which notice is given. The Placement Agents, the Offerors, and their respective counsel, may
change their respective notice addresses from time to time by written notice to all of the
foregoing persons.



     11.5. Parties in Interest, Successors and Assigns. Except as expressly set forth
herein, this Agreement is made solely for the benefit of the Placement Agents, the Purchaser and
the Offerors and any person controlling the Placement Agents, the Purchaser or the Offerors and
their respective successors and assigns; and no other person shall acquire or have any right under
or by virtue of this Agreement. This Agreement shall inure to the benefit of and be binding upon
the successors and assigns of each of the parties.



     11.6. Counterparts. This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.



     11.7. Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.



     11.8. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (AND NOT THE LAWS PERTAINING TO CONFLICTS OF LAWS) OF THE STATE OF NEW YORK.



     11.9. Entire Agreement. This Agreement, together with the Operative Documents and the
other documents delivered in connection with the transactions contemplated by this Agreement, is
intended by the parties as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in respect of the
subject matter contained herein and therein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and therein. This Agreement,
together with the Operative Documents and the other documents delivered in connection with the
transaction contemplated by this Agreement, supersedes all prior agreements and understandings
between the parties with respect to such subject matter.



     11.10. Severability. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable
in any
respect for any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions hereof shall not be in any way impaired or
affected, it being intended that all of the



17









 




Placement Agents’ and the Purchaser’s rights and privileges shall be enforceable to the fullest
extent permitted by law.




     11.11. Survival. The Placement Agents and the Offerors, respectively, agree that the
representations, warranties and agreements made by each of them in this Agreement and in any
certificate or other instrument delivered pursuant hereto shall remain in full force and effect and
shall survive the delivery of, and payment for, the Capital Securities.



Signatures appear on the following page





18









 








     If this Agreement is satisfactory to you, please so indicate by signing the acceptance of this
Agreement and deliver such counterpart to the Offerors whereupon this Agreement will become binding
between us in accordance with its terms:



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	PEOPLES COMMUNITY BANCSHARES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Dorothy S. Barth	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Dorothy S. Barth	 	 
	 

	 	Title:
	 	CFO	 	 
	 
	 	 	 	 	 	 
	 	 	PEOPLES COMMUNITY STATUTORY TRUST I	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Dorothy S. Barth	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Dorothy S. Barth	 	 
	 

	 	Title:
	 	Administrator	 	 






	 	 	 	 	 
	CONFIRMED AND ACCEPTED,	 	 
	as of the date first set forth above	 	 
	 
	 	 	 	 
	FTN FINANCIAL CAPITAL MARKETS,	 	 
	a division of First Tennessee Bank National Association,	 	 
	as a Placement Agent	 	 
	 
	 	 	 	 
	By:

	 	/s/ James D. Wingett	 	 
	 

	 	 	 	 
	Name:

	 	James D. Wingett	 	 
	Title:

	 	Senior Vice President	 	 
	 
	 	 	 	 
	KEEFE, BRUYETTE & WOODS, INC.,	 	 
	a New York corporation, as a Placement Agent	 	 
	 
	 	 	 	 
	By:

	 	/s/ Peter J. Wirth	 	 
	 

	 	 	 	 
	Name:

	 	Peter J. Wirth	 	 
	Title:

	 	Managing Director	 	 






19









 





EXHIBIT A




FORM OF SUBSCRIPTION AGREEMENT 




PEOPLES COMMUNITY STATUTORY TRUST I

PEOPLES COMMUNITY BANCSHARES, INC.




SUBSCRIPTION AGREEMENT




December 15, 2005




     THIS SUBSCRIPTION AGREEMENT (this “Agreement”) made among Peoples Community Statutory Trust I
(the “Trust”), a statutory trust created under the Delaware Statutory Trust Act (Chapter 38 of
Title 12 of the Delaware Code, 12 Del. C. §§ 3801, et seq.), Peoples Community Bancshares, Inc., a
Florida corporation, with its principal offices located at 25 South Links Avenue, Sarasota, Florida
34236 (the “Company” and, collectively with the Trust, the “Offerors”), and First Tennessee Bank
National Association (the “Purchaser”).



RECITALS:




     A. The Trust desires to issue 4,000 of its Fixed/Floating Rate Capital Securities (the
“Capital Securities”), liquidation amount $1,000.00 per Capital Security, representing an undivided
beneficial interest in the assets of the Trust (the “Offering”), to be issued pursuant to an
Amended and Restated Declaration of Trust (the “Declaration”) by and among the Company, Wilmington
Trust Company (“WTC”), the administrators named therein, and the holders (as defined therein),
which Capital Securities are to be guaranteed by the Company with respect to distributions and
payments upon liquidation, redemption and otherwise pursuant to the terms of a Guarantee Agreement
between the Company and WTC, as trustee (the “Guarantee”); and



     B. The proceeds from the sale of the Capital Securities will be combined with the proceeds
from the sale by the Trust to the Company of its common securities, and will be used by the Trust
to purchase an equivalent amount of Fixed/Floating Rate Junior Subordinated Deferrable Interest
Debentures of the Company (the “Debentures”) to be issued by the Company pursuant to an indenture
to be executed by the Company and WTC, as trustee (the “Indenture”); and



     C. In consideration of the premises and the mutual representations and covenants hereinafter
set forth, the parties hereto agree as follows:



ARTICLE I




PURCHASE AND SALE OF CAPITAL SECURITIES




     1.1. Upon the execution of this Agreement, the Purchaser hereby agrees to purchase from the
Trust 4,000 Capital Securities at a price equal to $1,000.00 per Capital Security (the “Purchase
Price”) and the Trust agrees to sell such Capital Securities to the Purchaser for said Purchase
Price. The rights and preferences of the Capital Securities are set forth in the Declaration. The
Purchase Price is payable in immediately available funds on December 15, 2005, or such other
business day as may be designated by the Purchaser, but in no event later than December 30, 2005
(the “Closing Date”). The Offerors shall provide the Purchaser wire transfer instructions no later
than 1 day following the date hereof.



     1.2. As a condition to its purchase of the Capital Securities, Purchaser shall enter into the
Joinder Agreement to the Master Custodian Agreement, the form of which is attached hereto as
Exhibit A



A-1









 




(the “Custodian Agreement”) and, in accordance therewith, the certificate for the Capital
Securities shall be delivered by the Trust on the Closing Date to the custodian in accordance with
the Custodian Agreement. Purchaser shall not transfer the Capital Securities to any person or
entity except in accordance with the terms of the Custodian Agreement.




     1.3. The Placement Agreement, dated December 7, 2005 (the “Placement Agreement”), among the
Offerors and the placement agents identified therein (the “Placement Agents”) includes certain
representations and warranties, covenants and conditions to closing and certain other matters
governing the Offering. The Placement Agreement is hereby incorporated by reference into this
Agreement and the Purchaser shall be entitled to each of the benefits of the Placement Agents and
the Purchaser under the Placement Agreement and shall be entitled to enforce the obligations of the
Offerors under such Placement Agreement as fully as if the Purchaser were a party to such Placement
Agreement.



     1.4. Anything herein or in the Placement Agreement notwithstanding, the Offerors acknowledge and
agree that, so long as Purchaser holds some or all of the Capital Securities, the Purchaser may in
its discretion from time to time transfer or sell, or sell or grant participation interests in,
some or all of such Capital Securities to one or more parties, provided that any such transaction
complies, as applicable, with the registration requirements of the Securities Act of 1933, as
amended (the “Securities Act”) and any other applicable securities laws, is pursuant to an
exemption therefrom, or is otherwise not subject thereto.



ARTICLE II




REPRESENTATIONS AND WARRANTIES OF PURCHASER




     2.1. The Purchaser understands and acknowledges that none of the Capital Securities, the
Debentures or the Guarantee have been registered under the Securities Act or any other applicable
securities law, are being offered for sale by the Trust in transactions not requiring registration
under the Securities Act, and may not be offered, sold, pledged or otherwise transferred by the
Purchaser 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.



     2.2. The Purchaser represents and warrants that, except as contemplated under Section 1.4
hereof, it is purchasing the Capital Securities for its own account, for investment, and not with a
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 pursuant to an effective registration statement under the Securities Act or
under Rule 144A or any other exemption from registration available under the Securities Act or any
other applicable securities law.



     2.3. The Purchaser represents and warrants that neither the Offerors nor the Placement Agents
are acting as a fiduciary or financial or investment adviser for the Purchaser.



     2.4. The Purchaser represents and warrants that it is not relying (for purposes of making any
investment decision or otherwise) upon any advice, counsel or representations (whether written or
oral) of the Offerors or of the Placement Agents.



     2.5. The Purchaser represents and warrants that (a) it has consulted with its own legal,
regulatory, tax, business, investment, financial and accounting advisers in connection herewith to
the extent it has deemed necessary, (b) it has had a reasonable opportunity to ask questions of and
receive answers from officers and representatives of the Offerors concerning their respective
financial condition and results of operations and the purchase of the Capital Securities, and any
such questions have been



A-2









 




answered to its satisfaction, (c) it has had the opportunity to review all publicly available
records and filings concerning the Offerors and it has carefully reviewed such records and filings
that it considers relevant to making an investment decision, and (d) it has made its own investment
decisions based upon its own judgment, due diligence and advice from such advisers as it has deemed
necessary and not upon any view expressed by the Offerors or the Placement Agents.




     2.6. The Purchaser represents and warrants that it is a “qualified institutional buyer” as
defined under Rule 144A under the Securities Act. If the Purchaser is a dealer of the type
described in paragraph (a)(1)(ii) of Rule 144A under the Securities Act, it owns and invests on a
discretionary basis not less than U.S. $25,000,000.00 in securities of issuers that are not
affiliated with it. The Purchaser is not a participant-directed employee plan, such as a 401(k)
plan, or any other type of plan referred to in paragraph (a)(1)(i)(D) or (a)(1)(i)(E) of Rule 144A,
or a trust fund referred to in paragraph (a)(1)(i)(F) of Rule 144A that holds the assets of such a
plan, unless investment decisions with respect to the plan are made solely by the fiduciary,
trustee or sponsor of such plan.



     2.7. The Purchaser represents and warrants that on each day from the date on which it acquires
the Capital Securities through and including the date on which it disposes of its interests in the
Capital Securities, either (i) it is not (a) an “employee benefit plan” (as defined in Section 3(3)
of the United States Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) which
is subject to the provisions of Part 4 of Subtitle B of Title I of ERISA, or any entity whose
underlying assets include the assets of any such plan (an “ERISA Plan”), (b) any other “plan” (as
defined in Section 4975(e)(1) of the United States Internal Revenue Code of 1986, as amended (the
"Code”)) which is subject to the provisions of Section 4975 of the Code or any entity whose
underlying assets include the assets of any such plan (a “Plan”), (c) an entity whose underlying
assets include the assets of any such ERISA Plan or other Plan by reason of Department of Labor
regulation section 2510.3-101 or otherwise, or (d) a governmental or church plan that is subject to
any federal, state or local law which is substantially similar to the provisions of Section 406 of
ERISA or Section 4975 of the Code (a “Similar Law”); or (ii) the purchase, holding and disposition
of the Capital Securities by it will satisfy the requirements for exemptive relief under Prohibited
Transaction Class Exemption (“PTCE”) 84-14, PTCE 90-1, PTCE 91-38, PTCE 95-60, PTCE 96-23 or a
similar exemption, or, in the case of a plan subject to a Similar Law, will not result in a
non-exempt violation of such Similar Law.



     2.8. The Purchaser represents and warrants that it is acquiring the Capital Securities as
principal for its own account for investment and, except as contemplated under Section 1.4
hereof, not for sale in connection with any distribution thereof. It was not formed solely for
the purpose of investing in the Capital Securities, and additional capital or similar contributions
were not specifically solicited from any person owning a beneficial interest in it for the purpose
of enabling it to purchase any Capital Securities. The Purchaser is not a (i) partnership, (ii)
common trust fund or (iii) special trust, pension, profit sharing or other retirement trust fund or
plan in which the partners, beneficiaries or participants, as applicable, may designate the
particular investments to be made or the allocation of any investment among such partners,
beneficiaries or participants, and except as contemplated under Section 1.4 hereof, it agrees that
it shall not hold the Capital Securities for the benefit of any other person and shall be the sole
beneficial owner thereof for all purposes and that it shall not sell participation interests in the
Capital Securities or enter into any other arrangement pursuant to which any other person shall be
entitled to a beneficial interest in the distribution on the Capital Securities. The Capital
Securities purchased directly or indirectly by the Purchaser constitute an investment of no more
than 40% of its assets. The Purchaser understands and agrees that any purported transfer of the
Capital Securities to a purchaser which would cause the representations and warranties of Section
2.6 and this Section 2.8 to be inaccurate shall be null and void ab initio and the Offerors retain
the right to resell any Capital Securities sold to non-permitted transferees.



A-3









 





     2.9. The Purchaser represents and warrants that it has full power and authority to execute and
deliver 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 subscribe for
Capital Securities and perform its obligations pursuant to this Agreement.



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



     2.11. The Purchaser represents and warrants that this Agreement has been duly authorized,
executed and delivered by the Purchaser.



     2.12. The Purchaser understands and acknowledges that the Company will rely upon the truth and
accuracy of the foregoing acknowledgments, representations, warranties and agreements and agrees
that, if any of the acknowledgments, representations, warranties or agreements deemed to have been
made by it by its purchase of the Capital Securities are no longer accurate, it shall promptly
notify the Company.



     2.13. The 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.



ARTICLE III




MISCELLANEOUS




     3.1. Any notice or other communication given hereunder shall be deemed sufficient if in
writing and sent by registered or certified mail, return receipt requested, international
courier or delivered by hand against written receipt therefor, or by facsimile transmission and
confirmed by telephone, to the following addresses, or such other address as may be furnished to
the other parties as herein provided:



	 	 	 
	To the Offerors:

	 	Peoples Community Bancshares, Inc.
	 

	 	25 South Links Avenue
	 

	 	Sarasota, Florida 34236
	 

	 	Attention: Dorothy S. Barth
	 

	 	Fax: 941-955-6578
	 
	 	 
	To the Purchaser:

	 	First Tennessee Bank National Association
	 

	 	845 Crossover Lane, Suite 150
	 

	 	Memphis, Tennessee 38117
	 

	 	Attention: David Work
	 

	 	Fax: 901-435-7983






          Unless otherwise expressly provided herein, notices shall be deemed to have been given on the
date of mailing, except notice of change of address, which shall be deemed to have been given when
received.




     3.2. This Agreement shall not be changed, modified or amended except by a writing signed by
the parties to be charged, and this Agreement may not be discharged except by performance in
accordance with its terms or by a writing signed by the party to be charged.



A-4









 





     3.3. Upon the execution and delivery of this Agreement by the Purchaser, this Agreement shall
become a binding obligation of the Purchaser with respect to the purchase of Capital Securities as
herein provided.



     3.4. NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE PARTIES HERETO,
THE PARTIES EXPRESSLY AGREE THAT ALL THE TERMS AND PROVISIONS HEREOF SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.



     3.5. The parties agree to execute and deliver all such further documents, agreements and
instruments and take such other and further action as may be necessary or appropriate to carry out
the purposes and intent of this Agreement.



     3.6. This Agreement may be executed in one or more counterparts each of which shall be deemed
an original, but all of which shall together constitute one and the same instrument.



     3.7. In the event that any one or more of the provisions contained herein, or the application
thereof in any circumstances, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired or affected, it
being intended that all of the Offerors’ and the Purchaser’s rights and privileges shall be
enforceable to the fullest extent permitted by law.



Signatures appear on the following page









A-5









 








     IN WITNESS WHEREOF, this Agreement is agreed to and accepted as of the day and year first
written above.



	 	 	 	 	 
	FIRST TENNESSEE BANK NATIONAL ASSOCIATION
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 
	Print Name:
	 	 	 	 
	 

	 	 	 
	Title:
	 	 	 	 
	 

	 	 	 





	 	 	 	 	 	 	 
	 	 	PEOPLES COMMUNITY BANCSHARES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	PEOPLES COMMUNITY STATUTORY TRUST I	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:
	 	Administrator	 	 







A-6












 





EXHIBIT A TO SUBSCRIPTION AGREEMENT




MASTER CUSTODIAN AGREEMENT




     This Master Custodian Agreement (this “Agreement”) is made and entered into as of May 27, 2004
by and among each purchaser (each a “Purchaser” and collectively the “Purchasers”) that enters into
a Joinder Agreement attached hereto as Exhibit A (the “Joinder Agreement”), Wilmington Trust
Company, a Delaware banking corporation (the “Custodian”) and each issuing entity (each an “Issuer”
and collectively the “Issuers”) that enters into a Joinder Agreement. The Purchasers and the
Issuers are sometimes referred to herein as the “Interested Parties”.



RECITALS




     A. The Purchasers intend to purchase from the Issuers or their respective statutory business
trust subsidiaries Securities issued by such Issuers (the “Securities”).



     B. In order to facilitate any future transfer of all or any portion of the Securities by the
Purchasers, the Interested Parties intend to provide for the custody of the Securities and certain
other securities on the terms set forth herein.



     C. The Custodian is willing to hold and administer such securities and to distribute the
securities held by it in accordance with the agreement of the Interested Parties and/or arbitral or
judicial orders and decrees as set forth in this Agreement.



     NOW, THEREFORE, in consideration of the foregoing, the mutual covenants herein contained and
other good and valuable consideration (the receipt, adequacy and sufficiency of which are hereby
acknowledged by the parties by their execution hereof), the parties agree as follows:


1.  Joinder Agreement. On or before the delivery to the Custodian of any Securities
issued by an Issuer, such Issuer and the applicable Purchaser or Purchasers shall enter into a
Joinder Agreement substantially in the form of Exhibit A attached hereto, with such additional
provisions as the Interested Parties may wish to add from time to time. An executed copy of
each such Joinder Agreement shall be delivered to the Custodian on or before the date on which
such Issuer’s Securities are issued. This Agreement and each Joinder Agreement constitute the
entire agreement among the Purchasers, Issuers and the Custodian pertaining to the subject
matter hereof.



2. Delivery of Securities. On or before each date on which an Issuer enters into a Joinder
Agreement:





(a) The applicable Issuer shall deliver to the Custodian a signed, authenticated
certificate representing a beneficial interest in such Issuer’s Securities, with the
Purchaser designated as owner thereof (the “Original Securities”). The Custodian shall
have no responsibility for the genuineness, validity, market value, title or sufficiency
for any intended purpose of the Original Securities.




(b) The applicable Issuer shall deliver to the Custodian five signed, unauthenticated and
undated certificates with no holder designated, each of which when completed representing a
beneficial interest in such Issuer’s Securities (the “Replacement Securities”). The
Custodian shall have no responsibility for the genuineness, validity,
market value, title or sufficiency for any intended purpose of the Replacement Securities.



A-A-1









 




3. Timing of Release from Custody. Upon receipt of a signed transfer notice in the form of
Exhibit B to be delivered in connection with the Purchaser’s transfer of all or any portion of an
Issuer’s Securities, on the effective date set forth in such transfer notice, the Custodian shall:





(a) Deliver the Original Securities certificate corresponding to the Issuer identified in
the transfer notice to Wilmington Trust Company, as Institutional Trustee under the Amended
and Restated Declaration of Trust, dated as of the date of the applicable Joinder
Agreement, among the Institutional Trustee, the Issuer and the administrators named therein
(the “Declaration”) or as Trustee under the Indenture, dated as of the date of the
applicable Joinder Agreement, between the Issuer and the Trustee (the “Indenture”), as
applicable, for the purpose of canceling the applicable Original Securities certificate in
accordance with the terms of the Issuer’s Amended and Restated Declaration of Trust or
Indenture, as applicable; and




(b) Deliver the Replacement Securities certificate(s) corresponding to the Issuer
identified in the transfer notice in the amount designated in and in accordance with the
transfer notice for the purpose of completing and authenticating the applicable Replacement
Securities certificate(s) in accordance with the terms of the Issuer’s Declaration or
Indenture, as applicable.




The initial term of this Agreement shall be one year (the “Initial Term”). Unless FTN
Financial Capital Markets or Keefe, Bruyette & Woods, Inc. shall otherwise notify the
Custodian in writing, upon expiration of the Initial Term, this Agreement shall
automatically renew for an additional one-year term and shall continue to automatically
renew for succeeding one-year terms until terminated. Upon termination of this Agreement,
the Custodian and the Interested Parties shall be released from all obligations hereunder,
except for the indemnification obligations set forth in paragraphs 5(b) and 5(c) hereof.



4. Concerning the Custodian.





(a) Each Interested Party acknowledges and agrees that the Custodian (i) shall not be
responsible for any of the agreements referred to or described herein (including without
limitation any Issuer’s Declaration or Indenture relating to such Issuer’s Securities), or
for determining or compelling compliance therewith, and shall not otherwise be bound
thereby, (ii) shall be obligated only for the performance of such duties as are expressly
and specifically set forth in this Agreement on its part to be performed, each of which are
ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties
or obligations of any kind shall be read into this Agreement against or on the part of the
Custodian, (iii) shall not be obligated to take any legal or other action hereunder which
might in its judgment involve or cause it to incur any expense or liability unless it shall
have been furnished with acceptable indemnification, (iv) may rely on and shall be
protected in acting or refraining from acting upon any written notice, instruction,
instrument, statement, certificate, request or other document furnished to it hereunder and
believed by it to be genuine and to have been signed or presented by the proper person, and
shall have no responsibility for determining the accuracy thereof, and (v) may consult
counsel satisfactory to it, including in-house counsel, and the opinion or advice of such
counsel in any instance shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and in accordance
with the opinion or advice of such counsel.




(b) The Custodian shall not be liable to anyone for any action taken or omitted to be taken
by it hereunder except in the case of the Custodian’s negligence or willful misconduct in
breach of the terms of this Agreement. In no event shall the Custodian be liable for
indirect, punitive, special or consequential damage or loss (including but not limited to
lost profits) whatsoever,



A-A-2









 







even if the Custodian has been informed of the likelihood of such loss or damage and
regardless of the form of action.




(c) The Custodian shall have no more or less responsibility or liability on account of any
action or omission of any book-entry depository, securities intermediary or other
subcustodian employed by the Custodian than any such book-entry depository, securities
intermediary or other subcustodian has to the Custodian, except to the extent that such
action or omission of any book-entry depository, securities intermediary or other
subcustodian was caused by the Custodian’s own negligence, bad faith or willful misconduct
in breach of this Agreement.




(d) The recitals contained herein shall be taken as the statements of each of the Issuers
and the Purchaser, and the Custodian assumes no responsibility for the correctness of the
same. The Custodian makes no representations as to the validity or sufficiency of this
Agreement or the Securities. The Custodian shall not be accountable for the use or
application by any of the Issuers or the Purchaser of any Securities or the proceeds of any
Securities.



5. Compensation, Expense Reimbursement and Indemnification. 





(a) The Custodian shall be compensated pursuant to a separate fee agreement.




(b) Each of the Interested Parties agrees, jointly and severally, to reimburse the
Custodian on demand for all costs and expenses incurred in connection with the
administration of this Agreement or the performance or observance of its duties hereunder
which are in excess of its customary compensation for normal services hereunder, including
without limitation, payment of any legal fees and expenses incurred by the Custodian in
connection with resolution of any claim by any party hereunder.




(c) Each of the Interested Parties covenants and agrees, jointly and severally, to
indemnify the Custodian (and its directors, officers and employees) and hold it (and such
directors, officers and employees) harmless from and against any loss, liability, damage,
cost and expense of any nature incurred by the Custodian arising out of or in connection
with this Agreement or with the administration of its duties hereunder, including but not
limited to attorney’s fees and other costs and expenses of defending or preparing to defend
against any claim of liability unless and except to the extent such loss, liability,
damage, cost and expense shall be caused by the Custodian’s negligence, bad faith, or
willful misconduct. The provisions in this paragraph 5 shall survive the expiration of this
Agreement and the resignation or removal of the Custodian.


6. Voting Rights. The Custodian shall be under no obligation to preserve, protect or
exercise rights in the Original Securities, and shall be responsible only for reasonable measures
to maintain the physical safekeeping thereof, and otherwise to perform and observe such duties on
its part as are expressly set forth in this Agreement. The Custodian shall not be responsible for
forwarding to any Interested Party, notifying any Interested Party with respect to, or taking any
action with respect to, any notice, solicitation or other document or information, written or
otherwise, received from an issuer or other person with respect to the Original Securities,
including but not limited to, proxy material, tenders, options, the pendency of calls and
maturities and expiration of rights.



7. Resignation. The Custodian may at any time resign as Custodian hereunder by giving
thirty (30) days’ prior written notice of resignation to each of the Interested Parties. Prior to
the effective date of the resignation as specified in such notice, the Interested Parties will
issue to the Custodian a written instruction authorizing redelivery of the Original Securities and
the Replacement Securities to a bank or trust company that they select as successor to the
Custodian hereunder. If, however, the Interested Parties shall fail to name such a successor
custodian within twenty days after the notice of resignation from the


A-A-3









 






Custodian, the Purchasers shall be entitled to name such successor custodian. If no successor
custodian is named by the Interested Parties or the Purchasers, the Custodian may apply to a court
of competent jurisdiction for appointment of a successor custodian.



8. Dispute Resolution. It is understood and agreed that should any dispute arise with
respect to the delivery, ownership, right of possession, and/or disposition of the Original
Securities or the Replacement Securities, or should any claim be made upon the Custodian, the
Original Securities or the Replacement Securities by a third party, the Custodian upon receipt of
notice of such dispute or claim is authorized and shall be entitled (at its sole option and
election) to retain in its possession without liability to anyone, all or any of said Original
Securities and Replacement Securities until such dispute shall have been settled either by the
mutual written agreement of the parties involved or by a final order, decree or judgment of a court
in the United States of America, the time for perfection of an appeal of such order, decree or
judgment having expired. The Custodian may, but shall be under no duty whatsoever to, institute or
defend any legal proceedings which relate to the Original Securities and Replacement Securities.



9. Consent to Jurisdiction and Service. Each of the Interested Parties hereby absolutely
and irrevocably consents and submits to the jurisdiction of the courts in the State of Delaware and
of any Federal court located in said State in connection with any actions or proceedings brought
against any of the Interested Parties (or each of them) by the Custodian arising out of or relating
to this Agreement. In any such action or proceeding, the Interested Parties each hereby absolutely
and irrevocably (i) waives any objection to jurisdiction or venue, (ii) waives personal service of
any summons, complaint, declaration or other process, and (iii) agrees that the service thereof may
be made by certified or registered first-class mail directed to such party, as the case may be, at
their respective addresses in accordance with paragraph 10 hereof.



10. Force Majeure. The Custodian shall not be responsible for delays or failures in
performance resulting from acts beyond its control. Such acts shall include but not be limited to
acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental regulations
superimposed after the fact, fire, communication line failures, computer viruses, power failures,
earthquakes or other disasters.



11. Notices. 





(a) Any notice permitted or required hereunder shall be in writing, and shall be sent by
personal delivery, overnight delivery by a recognized courier or delivery service, mailed
by registered or certified mail, return receipt requested, postage prepaid, or by confirmed
facsimile accompanied by mailing of the original on the same day by first class mail,
postage prepaid, in each case the parties at their address set forth below (or to such
other address as any such party may hereafter designate by written notice to the other
parties).




If to an Issuer, to the address appearing on such Issuer’s Joinder Agreement



     If to the Purchaser, to the address appearing on such Purchaser’s Joinder Agreement



     If to the Custodian:


Wilmington Trust Company

Rodney Square North 
1100 North
Market Street 
Wilmington, Delaware
19890-1600

Attention: Chris Slaybaugh — Corporate Trust Administration

Fax: 302-636-4140




A-A-4









 








12. Miscellaneous.





(a) Binding Effect. This Agreement shall be binding upon the respective parties
hereto and their heirs, executors, successors and assigns.




(b) Modifications. This Agreement may not be altered or modified without the
express written consent of the parties hereto. No course of conduct shall constitute a
waiver of any of the terms and conditions of this Agreement, unless such waiver is
specified in writing, and then only to the extent so specified. A waiver of any of the
terms and conditions of this Agreement on one occasion shall not constitute a waiver of the
other terms of this Agreement, or of such terms and conditions on any other occasion.




(c) Governing Law. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Delaware.




(d) Reproduction of Documents. This Agreement and all documents relating thereto,
including, without limitation, (a) consents, waivers and modifications which may hereafter
be executed, and (b) certificates and other information previously or hereafter furnished,
may be reproduced by any photographic, photostatic, microfilm, optical disk, micro-card,
miniature photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any judicial or
administrative proceeding, whether or not the original is in existence and whether or not
such reproduction was made by a party in the regular course of business, and that any
enlargement, facsimile or further reproduction of such reproduction shall likewise be
admissible in evidence.




(e) Counterparts. This Agreement may be executed in several counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the
same instrument.



signatures appear on the following page




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     IN WITNESS WHEREOF, the parties have executed this Agreement as of the day first above
written.



	 	 	 	 	 	 	 
	 	 	WILMINGTON TRUST COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Christopher J. Slaybaugh
	 	 
	 

	 	 	 	 	 	 
	 	 	Print Name: Christopher J. Slaybaugh	 	 
	 	 	Title: Financial Services Officer	 	 






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EXHIBIT A TO MASTER CUSTODIAN AGREEMENT 




FORM OF JOINDER AGREEMENT 




December 15, 2005




     This Joinder Agreement (this “Agreement”) is entered into as of December 15, 2005 by First
Tennessee Bank National Association (the “Purchaser”) and Peoples Community Bancshares, Inc. (the
“Issuer”).



RECITALS




     A. Wilmington Trust Company (the “Custodian”) is party to that certain Master Custodian
Agreement dated as of May 27, 2004, as amended (the “Custodian Agreement”).



     B. The Custodian Agreement provides that certain financial institutions that have issued
securities (or whose statutory trust subsidiaries have issued securities) and the Purchaser of such
securities will join into the Custodian Agreement pursuant to the terms of a joinder agreement.



     C. On the date hereof, Issuer is issuing securities to the Purchaser and the Issuer and the
Purchaser desire to enter into this Agreement to facilitate the subsequent transfer of the Issuer’s
securities by the Custodian.



     NOW, THEREFORE, in consideration of the foregoing, the mutual covenants herein contained and
other good and valuable consideration (the receipt, adequacy and sufficiency of which are hereby
acknowledged by the Issuer by its execution hereof), the Issuer agrees as follows:



     1. Joinder. The Issuer and Purchaser hereby join in the Custodian Agreement and agree
to be subject to, and bound by, the terms and provisions of the Custodian Agreement that are
ascribed to “Issuers” and “Purchasers” respectively therein to the same extent as if the Issuer and
Purchaser had signed the Custodian Agreement as an original party thereto.



     2. Notice. Any notice permitted or required to be sent to an Issuer under the
Custodian Agreement shall be sent to the following address:


Peoples Community Bancshares, Inc.

25 South Links Avenue

Sarasota, Florida 34236

Attention: Dorothy S. Barth




     Any notice permitted or required to be sent to a Purchaser under the Custodian Agreement shall
be sent to the following address:


First Tennessee Bank National Association

845 Crossover Lane, Suite 150

Memphis, Tennessee 38117

Attention: David Work




     3. Termination. This Agreement and the Purchaser’s and Issuer’s respective rights and
obligations under the Custodian Agreement shall terminate upon the transfer of all of Issuer’s
securities pursuant to the Custodian Agreement.



A-A-A-1









 





     4. Entire Agreement. This Agreement and the Custodian Agreement constitute the entire
agreement among the Purchaser, Issuer and the Custodian pertaining to the subject matter hereof.



     IN WITNESS WHEREOF, the Issuer and Purchaser have executed this Agreement as of the day first
above written.



	 	 	 	 	 	 	 
	 	 	PEOPLES COMMUNITY BANCSHARES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	FIRST TENNESSEE BANK NATIONAL

ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





A-A-A-2









 





EXHIBIT B TO MASTER CUSTODIAN AGREEMENT 




FORM OF TRANSFER NOTICE




[DATE]




Wilmington Trust Company

Rodney Square North

1100 North Market Street

Wilmington, Delaware 19890-1600

Attention: Corporate Trust Administration




Dear Sir or Madam:




     The undersigned hereby notifies you of the transfer of [                    ] of the Capital Securities of
Peoples Community Statutory Trust I, such transfer to be effective on [DATE OF TRANSFER]. In
accordance with Section 7.9 of the Placement Agreement dated December 7, 2005 between the Offerors
and the placement agents named therein (the “Placement Agreement”), periodic reports shall be
delivered to [                                        ] in accordance with such Section 7.9 during the term of the Capital
Securities, in the form attached thereto. Capitalized terms used in this notice and not otherwise
defined shall have the meanings ascribed to such terms in the Placement Agreement.



     The undersigned hereby instructs you as Custodian to deliver the Original Securities
certificate to Wilmington Trust Company, as Institutional Trustee (the “Trustee”) under the Amended
and Restated Trust Agreement dated December 15, 2005 among the Trustee, Peoples Community
Bancshares, Inc. and the administrative trustees named therein (the “Trust Agreement”) for
cancellation in accordance with the terms of the Trust Agreement and to deliver the Replacement
Securities certificate to the Trustee for authentication in accordance with the terms of the Trust
Agreement.



     By copy of this notice, the Institutional Trustee is hereby instructed to make the Replacement
Securities certificate registered to [NAME, ADDRESS AND IDENTITY OF TRANSFEREE] in the liquidation
amount of [                    ] and bearing the identification number “CUSIP NO. [                    ]” and to
authenticate and deliver the Replacement Securities certificate to [                    ].



	 	 	 	 	 	 	 
	 	 	FIRST TENNESSEE BANK NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





	 	 	 
	cc:

	 	Peoples Community Bancshares, Inc.
	 

	 	Wilmington Trust Company, as Trustee






A-A-B-1









 





EXHIBIT B-1 




FORM OF COMPANY COUNSEL OPINION 




December 15, 2005




	 	 	 
	First Tennessee Bank National Association

	 	FTN Financial Capital Markets
	845 Crossover Lane, Suite 150

	 	845 Crossover Lane, Suite 150
	Memphis, Tennessee 38117

	 	Memphis, Tennessee 38117
	 
	 	 
	Wilmington Trust Company

	 	Keefe, Bruyette & Woods, Inc.
	Rodney Square North

	 	787 7th Avenue, 4th Floor
	1100 North Market Street

	 	New York, New York 10019
	Wilmington, Delaware 19890-1600
	 	 






Ladies and Gentlemen:




     We have acted as counsel to Peoples Community Bancshares, Inc. (the “Company”), a Florida
corporation in connection with a certain Placement Agreement, dated December 7, 2005, (the
“Placement Agreement”), between the Company and Peoples Community Statutory Trust I (the “Trust”),
on one hand, and FTN Financial Capital Markets and Keefe, Bruyette & Woods, Inc. (the “Placement
Agents”), on the other hand. Pursuant to the Placement Agreement, and subject to the terms and
conditions stated therein, the Trust will issue and sell to First Tennessee Bank National
Association (the “Purchaser”), $4,000,000.00 aggregate principal amount of Fixed/Floating Rate
Capital Securities (liquidation amount $1,000.00 per capital security) (the “Capital Securities”).



     Capitalized terms used herein and not otherwise defined shall have the same meanings ascribed
to them in the Placement Agreement.



     The law covered by the opinions expressed herein is limited to the law of the United States of
America and of the State of Florida.



     We have made such investigations of law as, in our judgment, were necessary to render the
following opinions. We have also reviewed (a) the Company’s Articles of Incorporation, as amended,
and its By-Laws, as amended; and (b) such corporate documents, records, information and
certificates of the Company and the Subsidiaries, certificates of public officials or government
authorities and other documents as we have deemed necessary or appropriate as a basis for the
opinions hereinafter expressed. As to certain facts material to our opinions, we have relied, with
your permission, upon statements, certificates or representations, including those delivered or
made in connection with the above-referenced transaction, of officers and other representatives of
the Company and the Subsidiaries and the Trust.



     As used herein, the phrases “to the best of our knowledge” or “known to us” or other similar
phrases mean the actual knowledge of the attorneys who have had active involvement in the
transactions described above or who have prepared or signed this opinion letter, or who otherwise
have devoted substantial attention to legal matters for the Company.



     Based upon and subject to the foregoing and the further qualifications set forth below, we are
of the opinion as of the date hereof that:



B-1-1









 





     1. The Company is validly existing and in good standing under the laws of the State of
Florida and is duly registered as a bank holding company under the Bank Holding Company Act of
1956, as amended. Each of the Significant Subsidiaries is validly existing and in good standing
under the laws of its jurisdiction of organization. Each of the Company and the Significant
Subsidiaries has full corporate power and authority to own or lease its properties and to conduct
its business as such business is currently conducted in all material respects. To the best of our
knowledge, all outstanding shares of capital stock of the Significant Subsidiaries have been duly
authorized and validly issued, and are fully paid and nonassessable except to the extent such
shares may be deemed assessable under 12 U.S.C. Section 1831o or 12 U.S.C. Section 55, and are
owned of record and beneficially, directly or indirectly, by the Company.



     2. The issuance, sale and delivery of the Debentures in accordance with the terms and
conditions of the Placement Agreement and the Operative Documents have been duly authorized by all
necessary actions of the Company. The issuance, sale and delivery of the Debentures by the Company
and the issuance, sale and delivery of the Capital Securities and the Common Securities by the
Trust do not give rise to any preemptive or other rights to subscribe for or to purchase any shares
of capital stock or equity securities of the Company or the Significant Subsidiaries pursuant to
the corporate Articles of Incorporation or Charter, By-Laws or other governing documents of the
Company or the Significant Subsidiaries, or, to the best of our knowledge, any agreement or other
instrument to which either the Company or the Subsidiaries is a party or by which the Company or
the Significant Subsidiaries may be bound.



     3. The Company has all requisite corporate power to enter into and perform its obligations
under the Placement Agreement and the Subscription Agreement, and the Placement Agreement and the
Subscription Agreement have been duly and validly authorized, executed and delivered by the Company
and constitute the legal, valid and binding obligations of the Company enforceable in accordance
with their terms, except as the enforcement thereof may be limited by general principles of equity
and by bankruptcy or other laws affecting creditors’ rights generally, and except as the
indemnification and contribution provisions thereof may be limited under applicable laws and
certain remedies may not be available in the case of a non-material breach.



     4. Each of the Indenture, the Trust Agreement and the Guarantee Agreement has been duly
authorized, executed and delivered by the Company, and is a valid and legally binding obligation of
the Company enforceable in accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws affecting the rights and
remedies of creditors generally and of general principles of equity.



     5. The Debentures have been duly authorized, executed and delivered by the Company, are
entitled to the benefits of the Indenture and are legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, subject to the effect of
bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the
rights and remedies of creditors generally and of general principles of equity.



     6. To the best of our knowledge, neither the Company, the Trust, nor any of the Subsidiaries
is in breach or violation of, or default under, with or without notice or lapse of time or both,
its Articles of Incorporation or Charter, By-Laws or other governing documents (including without
limitation, the Trust Agreement). The execution, delivery and performance of the Placement
Agreement and the Operative Documents and the consummation of the transactions contemplated by the
Placement Agreement and the Operative Documents do not and
will not (i) result in the creation or imposition of any material lien, claim, charge,
encumbrance or restriction upon any property or assets of the Company or the Subsidiaries, or (ii)
conflict with, constitute a material breach or violation of, or constitute a material default
under,



B-1-2









 







with or without notice or lapse of time or both, any of the terms, provisions or conditions of (A)
the Articles of Incorporation or Charter, By-Laws or other governing documents of the Company or
the Subsidiaries, or (B) to the best of our knowledge, any material contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease, franchise, license or any other agreement or
instrument to which the Company or the Subsidiaries is a party or by which any of them or any of
their respective properties may be bound or (C) any order, decree, judgment, franchise, license,
permit, rule or regulation of any court, arbitrator, government, or governmental agency or
instrumentality, domestic or foreign, known to us having jurisdiction over the Company or the
Subsidiaries or any of their respective properties which, in the case of each of (i) or (ii) above,
is material to the Company and the Subsidiaries on a consolidated basis.



     7. Except for filings, registrations or qualifications that may be required by applicable
securities laws, no authorization, approval, consent or order of, or filing, registration or
qualification with, any person (including, without limitation, any court, governmental body or
authority) is required under the laws of the State of Florida in connection with the transactions
contemplated by the Placement Agreement and the Operative Documents in connection with the offer
and sale of the Capital Securities as contemplated by the Placement Agreement and the Operative
Documents.



     8. To the best of our knowledge (i) no action, suit or proceeding at law or in equity is
pending or threatened to which the Company, the Trust or the Subsidiaries are or may be a party,
and (ii) no action, suit or proceeding is pending or threatened against or affecting the Company,
the Trust or the Subsidiaries or any of their properties, before or by any court or governmental
official, commission, board or other administrative agency, authority or body, or any arbitrator,
wherein an unfavorable decision, ruling or finding could reasonably be expected to have a material
adverse effect on the consummation of the transactions contemplated by the Placement Agreement and
the Operative Documents or the issuance and sale of the Capital Securities as contemplated therein
or the condition (financial or otherwise), earnings, affairs, business, or results of operations of
the Company, the Trust and the Subsidiaries on a consolidated basis.



     9. Assuming the truth and accuracy of the representations and warranties of the Placement
Agents in the Placement Agreement and the Purchaser in the Subscription Agreement, it is not
necessary in connection with the offering, sale and delivery of the Capital Securities, the
Debentures and the Guarantee Agreement (or the Guarantee) to register the same under the Securities
Act of 1933, as amended, under the circumstances contemplated in the Placement Agreement and the
Subscription Agreement.



     10. Neither the Company nor the Trust is or after giving effect to the offering and sale of
the Capital Securities and the consummation of the transactions described in the Placement
Agreement will be, an “investment company” or an entity “controlled” by an “investment company,” in
each case within the meaning of the Investment Company Act of 1940, as amended, without regard to
Section 3(c) of such Act.



     The opinion expressed in the first two sentences of numbered paragraph 1 of this opinion is
based solely upon certain certificates and confirmations issued by the applicable governmental
officer or authority with respect to each of the Company and the Significant Subsidiaries.



     With respect to the foregoing opinions, since no member of this firm is actively engaged
in the practice of law in the States of Delaware or New York, we do not express any opinions
as to the laws of such states and have (i) relied, with your approval, upon the opinion of
Richards, Layton & Finger, P.A. with respect to matters of Delaware law and (ii) assumed, with your
approval and without rendering any



B-1-3









 







opinion to such effect, that the laws of the State of New York, in all respects material to this
opinion, are substantively identical to the laws of the State of Florida, without regard to
conflict of law provisions.



     The opinions expressed herein are rendered to you solely pursuant to Section 3.1(a) of the
Placement Agreement. As such, they may be relied upon by you only and may not be used or relied
upon by any other person for any purpose whatsoever without our prior written consent.



	 	 	 	 	 
	 	Very truly yours,

 	 
	 	 	 
	 	 	 
	 	 	 
	 



	 	 	 	 	 



B-1-4









 






	 	 	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 



EXHIBIT B-2 




FORM OF DELAWARE COUNSEL OPINION 




To Each of the Persons Listed

on Schedule A Hereto




          Re:      Peoples Community Statutory Trust I 




Ladies and Gentlemen:




          We have acted as special Delaware counsel for Peoples Community Statutory Trust I, a Delaware
statutory trust (the “Trust”), in connection with the matters set forth herein. At your request,
this opinion is being furnished to you.




          For purposes of giving the opinions hereinafter set forth, our examination of documents has
been limited to the examination of originals or copies of the following:




          (a) The Certificate of Trust of the Trust (the “Certificate of Trust”), as filed in the office
of the Secretary of State of the State of Delaware (the “Secretary of State”) on December 5, 2005;




          (b) The Declaration of Trust, dated as of December 5, 2005, among Peoples Community
Bancshares, Inc., a Florida corporation (the “Company”), Wilmington Trust Company, a Delaware
banking corporation (“WTC”), as trustee and the administrators named therein (the
“Administrators”);




          (c) The Amended and Restated Declaration of Trust of the Trust, dated as of December 15, 2005
(including the form of Capital Securities Certificate attached thereto as Exhibit A-1 and the terms
of the Capital Securities attached as Annex I) (the “Declaration of Trust”), among the Company, as
sponsor, WTC, as Delaware trustee (the “Delaware Trustee”) and institutional trustee (the
“Institutional Trustee”), the Administrators and the holders, from time to time, of undivided
beneficial interests in the assets of the Trust;




          (d) The Placement Agreement, dated December 7, 2005 (the “Placement Agreement”), among the
Company, the Trust, and FTN Financial Capital Markets and Keefe, Bruyette & Woods, Inc., as
placement agents;




          (e) The Subscription Agreement, dated December 15, 2005 (the “Subscription Agreement”), among
the Trust, the Company and First Tennessee Bank National Association (the documents identified in
items (c) through (e) being collectively referred to as the “Operative Documents”);




          (f) The Capital Securities being issued on the date hereof (the “Capital Securities”);




          (g) The Common Securities being issued on the date hereof (the “Common Securities”) (the
documents identified in items (f) and (g) being collectively referred to as the “Trust
Securities”); and




          (h) A Certificate of Good Standing for the Trust, dated December 14, 2005, obtained from the
Secretary of State.




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          Capitalized terms used herein and not otherwise defined are used as defined in the Declaration
of Trust, except that reference herein to any document shall mean such document as in effect on the
date hereof. This opinion is being delivered pursuant to Section 3.1 of the Placement Agreement.




          For purposes of this opinion, we have not reviewed any documents other than the documents
listed in paragraphs (a) through (h) above. In particular, we have not reviewed any document (other
than the documents listed in paragraphs (a) through (h) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed that there exists no
provision in any document that we have not reviewed that is inconsistent with the opinions stated
herein. We have conducted no independent factual investigation of our own but rather have relied
solely upon the foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be true, complete and
accurate in all material respects.




          With respect to all documents examined by us, we have assumed (i) the authenticity of all
documents submitted to us as authentic originals, (ii) the conformity with the originals of all
documents submitted to us as copies or forms, and (iii) the genuineness of all signatures.




          For purposes of this opinion, we have assumed (i) that the Declaration of Trust constitutes
the entire agreement among the parties thereto with respect to the subject matter thereof,
including with respect to the creation, operation, and termination of the Trust, and that the
Declaration of Trust and the Certificate of Trust are in full force and effect and have not been
amended further, (ii) that there are no proceedings pending or contemplated, for the merger,
consolidation, liquidation, dissolution or termination of the Trust, (iii) except to the extent
provided in paragraph 1 below, the due creation, due formation or due organization, as the case may
be, and valid existence in good standing of each party to the documents examined by us under the
laws of the jurisdiction governing its creation, formation or organization, (iv) that each party to
the documents examined by us is qualified to do business in each jurisdiction where such
qualification is required generally or necessary in order for such party to enforce its rights
under the documents examined by us, (v) the legal capacity of each natural person who is a party to
the documents examined by us, (vi) except to the extent set forth in paragraph 2 below, that each
of the parties to the documents examined by us has the power and authority to execute and deliver,
and to perform its obligations under, such documents, (vii) except to the extent provided in
paragraph 3 below, that each of the parties to the documents examined by us has duly authorized,
executed and delivered such documents, (viii) the receipt by each Person to whom a Capital Security
is to be issued by the Trust (the “Capital Security Holders”) of a Capital Security Certificate for
the Capital Security and the payment for the Capital Securities acquired by it, in accordance with
the Declaration of Trust and the Subscription Agreement, (ix) that the Capital Securities are
issued and sold to the Holders of the Capital Securities in accordance with the Declaration of
Trust and the Subscription Agreement, (x) the receipt by the Person (the “Common Securityholder”)
to whom the common securities of the Trust representing common undivided beneficial interests in
the assets of the Trust (the “Common Securities” and, together with the Capital Securities, the
“Trust Securities”) are to be issued by the Trust of a Common Security Certificate for the Common
Securities and the payment for the Common Securities acquired by it, in accordance with the
Declaration of Trust, (xi) that the Common Securities are issued and sold to the Common
Securityholder in accordance with the Declaration of Trust, (xii) that each of the parties to the
documents reviewed by us has agreed to and received the stated
consideration for the incurrence of its obligations under such documents, (xiii) that each of the
documents reviewed by us (other than the Declaration of Trust) is a legal, valid, binding and
enforceable obligation of the parties thereto in accordance with the terms thereof and (xiv) that
the Trust derives no income from or connected with sources within the State of Delaware and has no
assets, activities (other than having a trustee and the filing of documents with the Secretary of
State) or employees in the State of Delaware. We have not participated in the preparation of any
offering materials with respect to the Trust Securities and assume no responsibility for its
contents.




B-2-2









 








          This opinion is limited to the laws of the State of Delaware (excluding the securities laws of
the State of Delaware), and we have not considered and express no opinion on the laws of any other
jurisdiction, including federal laws and rules and regulations relating thereto. Our opinions are
rendered only with respect to Delaware laws and rules, regulations and orders thereunder that are
currently in effect.




          We express no opinion as to (i) the effect of suretyship defenses, or defenses in the nature
thereof, with respect to the obligations of any applicable guarantor, joint obligor, surety,
accommodation party, or other secondary obligor or any provisions of the Declaration of Trust with
respect to indemnification or contribution and (ii) the accuracy or completeness of any exhibits or
schedules to the Operative Documents. No opinion is given herein as to the choice of law or
internal substantive rules of law that any court or other tribunal may apply to the transactions
contemplated by the Operative Documents.




          We express no opinion as to the enforceability of any particular provision of the Declaration
of Trust or the other Operative Documents relating to remedies after default.




          We express no opinion as to the enforceability of any particular provision of any of the
Operative Documents relating to (i) waivers of rights to object to jurisdiction or venue, or
consents to jurisdiction or venue, (ii) waivers of rights to (or methods of) service of process, or
rights to trial by jury, or other rights or benefits bestowed by operation of law, (iii) waivers of
any applicable defenses, setoffs, recoupments, or counterclaims, (iv) waivers or variations of
provisions which are not capable of waiver or variation under the Uniform Commercial Code (“UCC”)
of the State, (v) the grant of powers of attorney to any person or entity, or (vi) exculpation or
exoneration clauses, indemnity clauses, and clauses relating to releases or waivers of unmatured
claims or rights.




          We have made no examination of, and no opinion is given herein as to the Trustee’s or the
Trust’s title to or other ownership rights in, or the existence of any liens, charges or
encumbrances on, or adverse claims against, any asset or property held by the Institutional Trustee
or the Trust. We express no opinion as to the creation, validity, attachment, perfection or
priority of any mortgage, security interest or lien in any asset or property held by the
Institutional Trustee or the Trust.




          We express no opinion as to the effect of events occurring, circumstances arising, or changes
of law becoming effective or occurring, after the date hereof on the matters addressed in this
opinion letter, and we assume no responsibility to inform you of additional or changed facts, or
changes in law, of which we may become aware.




          We express no opinion as to any requirement that any party to the Operative Documents (or any
other persons or entities purportedly entitled to the benefits thereof) qualify or register to do
business in any jurisdiction in order to be able to enforce its rights thereunder or obtain the
benefits thereof.




          Based upon the foregoing, and upon our examination of such questions of law and statutes of
the State of Delaware as we have considered necessary or appropriate, and subject to the
assumptions, qualifications, limitations and exceptions set forth herein, we are of the opinion
that:




          1. The Trust has been duly created and is validly existing in good standing
as a statutory trust under the Delaware Statutory Trust Act (12 Del. C. § 3801, et seq.) (the
“Act”). All filings required under the laws of the State of Delaware with respect to the creation
and valid existence of the Trust as a statutory trust have been made.




B-2-3









 








          2. Under the Declaration of Trust and the Act, the Trust has the trust power and authority to
(A) execute and deliver the Operative Documents, (B) perform its obligations under such Operative
Documents and (C) issue the Trust Securities.




          3. The execution and delivery by the Trust of the Operative Documents, and the performance by
the Trust of its obligations thereunder, have been duly authorized by all necessary trust action on
the part of the Trust.




          4. The Declaration of Trust constitutes a legal, valid and binding obligation of the Company,
the Trustees and the Administrators, and is enforceable against the Company, the Trustees and the
Administrators, in accordance with its terms.




          5. Each of the Operative Documents constitutes a legal, valid and binding obligation of the
Trust, enforceable against the Trust, in accordance with its terms.




          6. The Capital Securities have been duly authorized for issuance by the Declaration of Trust,
and, when duly executed and delivered to and paid for by the purchasers thereof in accordance with
the Declaration of Trust, the Subscription Agreement and the Placement Agreement, the Capital
Securities will be validly issued, fully paid and, subject to the qualifications set forth in
paragraph 8 below, nonassessable undivided beneficial interests in the assets of the Trust and will
entitle the Capital Securities Holders to the benefits of the Declaration of Trust. The issuance of
the Capital Securities is not subject to preemptive or other similar rights under the Act or the
Declaration of Trust.




          7. The Common Securities have been duly authorized for issuance by the Declaration of Trust
and, when duly executed and delivered to the Company as Common Security Holder in accordance with
the Declaration of Trust, will be validly issued, fully paid and, subject to paragraph 8 below and
Section 9.1(b) of the Declaration of Trust (which provides that the Holder of the Common Securities
are liable for debts and obligations of Trust), nonassessable undivided beneficial interests in the
assets of the Trust and will entitle the Common Security Holder to the benefits of the Declaration
of Trust. The issuance of the Common Securities is not subject to preemptive or other similar
rights under the Act or the Declaration of Trust.




          8. Under the Declaration of Trust and the Act, the Holders of the Capital Securities, as
beneficial owners of the Trust, 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 that the Holders of the Capital Securities and the Holder of
the Common Securities may be obligated, pursuant to the Declaration of Trust, (A) to provide
indemnity and/or security in connection with and pay taxes or governmental charges arising from
transfers or exchanges of Capital Security Certificates and the issuance of replacement Capital
Security Certificates, and (B) to provide security or indemnity in connection with requests of or
directions to the Institutional Trustee to exercise its rights and powers under the Declaration of
Trust.




          9. Neither the execution, delivery and performance by the Trust of the Operative Documents,
nor the consummation by the Trust of any of the transactions contemplated thereby, requires the
consent or approval of, the authorization of, the withholding of objection on the part of, the
giving of notice to, the filing, registration or qualification with, or the taking of any other
action in respect of, any governmental authority or agency of the State of Delaware,
other than the filing of the Certificate of Trust with the Secretary of State (which Certificate of
Trust has been duly filed).




          10. Neither the execution, delivery and performance by the Trust of the Trust Documents, nor
the consummation by the Trust of the transactions contemplated thereby, (i) is in


B-2-4









 







violation of the Declaration of Trust or of any law, rule or regulation of the State of Delaware
applicable to the Trust or (ii) to the best of our knowledge, without independent investigation,
violates, contravenes or constitutes a default under, or results in a breach of or in the creation
of any lien (other than as permitted by the Operative Documents) upon any property of the Trust
under any indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract, bank
loan or credit agreement, license or other agreement or instrument to which the Trust is a party or
by which it is bound.




          11. Assuming that the Trust will not be taxable as a corporation for federal income tax
purposes, but rather will be classified for such purposes as a grantor trust under Subpart E, Part
I of Subchapter J of the Internal Revenue Code of 1986, as amended, the Trust will not be subject
to any tax, fee or governmental charge under the laws of the State of Delaware.




          The opinions expressed in paragraph 4, 5, 6, 7 and 8 above are subject, as to enforcement, to
the effect upon the Declaration of Trust of (i) bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance and transfer, and other similar laws relating to
or affecting the rights and remedies of creditors generally, (ii) principles of equity, including
applicable law relating to fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.




          Circular 230 Notice. Any advice contained in this communication with respect to any federal
tax matter was not intended or written to be used, and it cannot be used by any taxpayer, for the
purpose of avoiding penalties that the Internal Revenue Service may impose on the taxpayer. If any
such advice is made to any person other than to our client for whom the advice was prepared, the
advice expressed above is being delivered to support the promotion or marketing (by a person other
than Richards, Layton & Finger) of the transaction or matter discussed or referenced, and such
taxpayer should seek advice based on the taxpayer’s particular circumstances from an independent
tax advisor.




          In basing the opinions set forth herein on “our knowledge,” the words “our knowledge” signify
that no information has come to the attention of the attorneys in the firm who are directly
involved in the representation of the Trust in this transaction that would give us actual knowledge
that any such opinions are not accurate. Except as otherwise stated herein, we have undertaken no
independent investigation or verification of such matters.




          We consent to your relying as to matters of Delaware law upon this opinion in connection with
the Placement Agreement. We also consent to Lewis, Rice & Fingersh, L.C.’s and Smith Mackinnon,
P.A.’s relying as to matters of Delaware law upon this opinion in connection with opinions to be
rendered by them on the date hereof pursuant to the Placement Agreement. Except as stated above,
without our prior written consent, this opinion may not be furnished or quoted to, or relied upon
by, any other Person for any purpose.




	 	 	 	 	 
	 	Very truly yours,

 	 
	 	 	 
	 	 	 
	 	 	 



B-2-5









 






	 	 	 	 	 



SCHEDULE A 




Wilmington Trust Company




FTN Financial Capital Markets




Keefe, Bruyette & Woods, Inc.




First Tennessee Bank National Association




Peoples Community Bancshares, Inc.





B-2-6









 





EXHIBIT B-3 




TAX COUNSEL OPINION ITEMS 





	1.	 	The Debentures will be classified as indebtedness of the Company for U.S. federal income tax
purposes.
	 
	2.	 	The Trust will be characterized as a grantor trust and not as an association taxable as a
corporation for U.S. federal income tax purposes.




B-3-1









 











Lewis, Rice & Fingersh, L.C.

500 N. Broadway, Suite 2000

St. Louis, Missouri 63102




	 	 	 	 	 
	 

	 	Re:
	 	Representations Concerning the Issuance of Junior Subordinated Deferrable
Interest Debentures (the “Debentures”) to Peoples Community Statutory Trust I (the
“Trust”) and Sale of Trust Securities (the “Trust Securities”) of the Trust






Ladies and Gentlemen:




     In accordance with your request, Peoples Community Bancshares, Inc. (the “Company”) hereby
makes the following representations in connection with the preparation of your opinion letter as to
the United States federal income tax consequences of the issuance by the Company of the Debentures
to the Trust and the sale of the Trust Securities.



     Company hereby represents that:



     1. The sole assets of the Trust will be the Debentures, any interest paid on the Debentures to
the extent not distributed, proceeds of the Debentures, or any of the foregoing.



     2. The Company intends to use the net proceeds from the sale of the Debentures for general
corporate purposes.



     3. The Trust was not formed to conduct any trade or business and is not authorized to conduct
any trade or business. The Trust exists for the exclusive purposes of (i) issuing and selling the
Trust Securities, (ii) using the proceeds from the sale of Trust Securities to acquire the
Debentures, and (iii) engaging only in activities necessary or incidental thereto.



     4. The Company has not entered into an agency agreement with the Trust or authorized the
trustee to act as its agent in dealing with third parties. To Company’s knowledge, after due
inquiry, the Trust has not acted as the agent of the Company or of anyone else in dealing with
third parties.



     5. The Trust was formed to facilitate direct investment in the assets of the Trust, and the
existence of multiple classes of ownership is incidental to that purpose. There is no intent to
provide holders of such interests in the Trust with diverse interests in the assets of the Trust.



     6. The Company intends to create a debtor-creditor relationship between the Company, as
debtor, and the Trust, as a creditor, upon the issuance and sale of the Debentures to the Trust by
the Company. The Company will (i) record and at all times continue to reflect the Debentures as
indebtedness on its separate books and records for financial accounting purposes, and (ii) treat
the Debentures as indebtedness for all United States tax purposes.



     7. During each year, the Trust’s income will consist solely of payments made by
the Company with respect to the Debentures. Such payments will not be derived from the active conduct
of a financial business by the Trust. Both the Company’s obligation to make such payments and the
measurement of the amounts payable by the Company are defined by the terms
of the Debentures. Neither the Company’s obligation to make such payments nor the measurement of
the amounts payable by the Company is dependent on income or profits of Company or any affiliate of
the Company.



B-3-2









 





     8. The Company expects that it will be able to make, and will make, timely payment of amounts
identified by the Debentures as principal and interest in accordance with the terms of the
Debentures with available capital or accumulated earnings.



     9. The Company presently has no intention to defer interest payments on the Debentures, and it
considers the likelihood of such a deferral to be remote because, if it were to exercise its right
to defer payments of interest with respect to the Debentures, it would not be permitted to declare
or pay any dividends or distributions on, or redeem, purchase, acquire, or make a liquidation
payment with respect to, any capital stock of the Company or any affiliate of the Company (other
than payments of dividends or distributions to the Company or payments of dividends from direct or
indirect subsidiaries of the Company to their parent corporations, which also shall be direct or
indirect subsidiaries of the Company) or make any payment of principal of or interest or premium,
if any, on or repay, repurchase, or redeem any debt securities of the Company or any affiliate of
the Company that rank pari passu in all respects with or junior in interest to the Debentures, in
each case subject to limited exceptions stated in Section 2.11 of the Indenture to be entered into
in connection with the issuance of the Debentures.



     10. The Company has no present intention (a) to take the position that a deferral of interest
payments on the Debentures is not a remote contingency, or (b) to make an explicit disclosure on
the Company’s tax return, under Reg. § 1.1275-2(h)(5) that its determination as holder with respect
to remote contingency status is different from its determination as issuer.



     11. Immediately after the issuance of the Debentures, the debt-to-equity ratio of the Company
(as determined for financial accounting purposes, but excluding deposit liabilities from the
Company’s debt) will be within standard depository institution industry norms and, in any event,
will be no higher than four to one (4 : 1).



     12. To the best of our knowledge, the Company is currently in compliance with all federal,
state, and local capital requirements, except to the extent that failure to comply with any such
requirements would not have a material adverse effect on the Company and its affiliates.



     13. The Company will not issue any class of common stock or preferred stock senior to the
Debentures during their term.



     14. The Internal Revenue Service has not challenged the interest deduction on any class of the
Company’s subordinated debt in the last ten (10) years on the basis that such debt constitutes
equity for federal income tax purposes.



     The above representations are accurate as of the date below and will continue to be accurate
through the issuance of the Trust Securities, unless you are otherwise notified by us in writing.
The undersigned understands that you will rely on the foregoing in connection with rendering
certain legal opinions, and possesses the authority to make the representations set forth in this
letter on behalf of the Company.



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	PEOPLES COMMUNITY BANCSHARES, INC.	 	 
	 
	 	 	 	 	 	 
	Date: December 14, 2005

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





B-3-3









 





EXHIBIT C 




SIGNIFICANT SUBSIDIARIES 



People’s Community Bank of the West Coast




C-1









 








EXHIBIT D 




FORM OF QUARTERLY REPORT 




First Tennessee Bank National Association

845 Crossover Lane, Suite 150

Memphis, Tennessee 38117

Attention: David Work




BANK HOLDING COMPANY




As of [March 31, June 30, September 30 or December 31], 20__




	 	 	 	 	 
	Tier 1 to Risk Weighted Assets
	 	 	                     	%
	 
	 	 	 	 
	Ratio of Double Leverage
	 	 	                     	%
	 
	 	 	 	 
	Non-Performing Assets to Loans and OREO
	 	 	                     	%
	 
	 	 	 	 
	Ratio of Reserves to Non-Performing Loans
	 	 	                     	%
	 
	 	 	 	 
	Ratio of Net Charge-Offs to Loans
	 	 	                     	%
	 
	 	 	 	 
	Return on Average Assets (annualized)**
	 	 	                     	%
	 
	 	 	 	 
	Net Interest Margin (annualized)**
	 	 	                    	%
	 
	 	 	 	 
	Efficiency Ratio
	 	 	                    	%
	 
	 	 	 	 
	Ratio of Loans to Assets
	 	 	                     	%
	 
	 	 	 	 
	Ratio of Loans to Deposits
	 	 	                     	%
	 
	 	 	 	 
	Total Assets
	 	$	                    	 
	 
	 	 	 	 
	Year to Date Income
	 	$	                    	 








 




			
	*	 	A table describing the quarterly report calculation procedures is provided on page D-2
	 
	**	 	To annualize Return on Average Assets and Net Interest Margin do the following:
	 
	1st	 	Quarter-multiply income statement item by 4, then divide by
balance sheet item(s)
	 
	2nd	 	Quarter-multiply income statement item by 2,then divide by balance
sheet item(s)
	 
	3rd	 	Quarter-divide income statement item by 3, then multiply by 4, then divide by
balance sheet item(s)
	 
	4th	 	Quarter-should already be an annual number




NO ADJUSTMENT SHOULD BE MADE TO BALANCE SHEET ITEMS




D-1









 








Financial Definitions




	 	 	 	 	 
		 	Corresponding FRY-9C or LP Line Items	 	 
	Report Item	 	with Line Item corresponding Schedules	 	Description of Calculation
	“Tier 1 Capital” to
Risk Weighted
Assets

	 	BHCK7206

Schedule HC-R
	 	Tier 1 Risk Ratio: Core Capital (Tier 1)/ Risk-

Adjusted Assets
	 
	 	 	 	 
	Ratio of Double
Leverage

	 	(BHCP0365)/(BHCP3210)

Schedule PC in the LP
	 	Total equity investments in subsidiaries divided
by the total equity capital. This field is calculated
at the parent company level. “Subsidiaries”
include bank, bank holding company, and
nonbank subsidiaries.
	 
	 	 	 	 
	Non-Performing
Assets to Loans
and OREO

	 	(BHCK5525-BHCK3506+BHCK5526-

BHCK3507+BHCK2744)/(BHCK2122+BHCK2

744) Schedules HC-C, HC-M & HC-N
	 	Total Nonperforming Assets (NPLs+Foreclosed

Real Estate+Other Nonaccrual & Repossessed

Assets)/ Total Loans + Foreclosed Real Estate
	 
	 	 	 	 
	Ratio of Reserves
to Non-Performing
Loans

	 	(BHCK3123+BHCK3128)/(BHCK5525-

BHCK3506+BHCK5526-BHCK3507)

Schedules HC & HC-N
	 	Total Loan Loss and Allocated Transfer Risk
Reserves/ Total Nonperforming Loans
(Nonaccrual + Restructured)
	 
	 	 	 	 
	Ratio of Net
Charge-Offs to
Loans

	 	(BHCK4635-BHCK4605)/(BHCK3516)

Schedules HI-B & HC-K
	 	Net charge offs for the period as a percentage of
average loans.
	 
	 	 	 	 
	Return on Assets

	 	(BHCK4340/BHCK3368)

Schedules HI & HC-K
	 	Net Income as a percentage of Assets.
	 
	 	 	 	 
	Net Interest 

Margin

	 	(BHCK4519)/(BHCK3515+BHCK3365+BHCK
3516+BHCK3401+BHCKB985)

Schedules HI Memorandum and HC-K
	 	(Net Interest Income Fully Taxable Equivalent, if

available / Average Earning Assets)
	 
	 	 	 	 
	Efficiency Ratio

	 	(BHCK4093)/(BHCK4519+BHCK4079)

Schedule HI
	 	(Noninterest Expense)/ (Net Interest Income

Fully Taxable Equivalent, if available, plus

Noninterest Income)
	 
	 	 	 	 
	Ratio of Loans to
Assets

	 	(BHCKB528+BHCK5369)/BHCK2170)
Schedule HC
	 	Total Loans & Leases (Net of Unearned Income &
Gross of Reserve)/ Total Assets
	 
	 	 	 	 
	Ratio of Loans to
Deposits

	 	(BHCKB528+BHCK5369)/(BHDM6631+BHD
M6636+BHFN6631+BHFN6636)

Schedule HC
	 	Total Loans & Leases (Net of Unearned Income &
Gross of Reserve)/ Total Deposits (Includes
Domestic and Foreign Deposits)
	 
	 	 	 	 
	Total Assets

	 	(BHCK2170)

Schedule HC
	 	The sum of total assets. Includes cash and
balances due from depository institutions;
securities; federal funds sold and securities
purchased under agreements to resell; loans and
lease financing receivables; trading assets;
premises and fixed assets; other real estate owned;
investments in unconsolidated subsidiaries and
associated companies; customer’s liability on
acceptances outstanding; intangible assets; and
other assets.
	 
	 	 	 	 
	Net Income

	 	(BHCK4300)

Schedule HI
	 	The sum of income (loss) before extraordinary
items and other adjustments and extraordinary
items; and other adjustments, net of income taxes.







D-2