EXHIBIT 4.2  Subordinated Loan Agreementbetweenmetrocorp, inc.andmetrocorp capital trust iDated as of November 1, 2001  
 

 
**Table of Contents**       Page **Article I Definitions**  1 Board of Directors  1 Capitalized Lease  1 Capitalized Lease Obligation  1 Capital Securities  1 Capital Stock  2 Default  2 Deferred Amount  2 ERISA  2 Event of Default  2 Exchange Act  2 GAAP  3 Governmental Authority  3 Lien  3 Loan  4 Material  4 Material Adverse Effect  4 Multiemployer Plan  4 Officer’s Certificate  4 Past Due Amount  4 Property  4 Required Holders  4 Responsible Officer  4 Restricted Payment  4 Scheduled Rate  5 Senior and Subordinated Debt  5 Subordinated Note  5 Subsidiary  5 Suspension Event  6 Trust  6 Trust Agreement  6 Trust Preferred Security  6 Voting Stock  6 Wholly Owned Subsidiary  6      **Article II The Loan**  7 Section 2.01. The Loan  7 Section 2.02. Voluntary Prepayment Due to Occurrence of Special Event  7 Section 2.03. Voluntary Prepayment Under Circumstances Other Than Special Events  7 Section 2.04. Other Prepayment Matters  7      **Article III Interest**  8 Section 3.01. Interest on the Loan  8 Section 3.02. Deferral of Interest Payment  8 
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       Page **Article IV Payments**  9 Section 4.01. Method and Date of Payment  9 Section 4.02. Set-Off  9      **Article V Subordination**  9 Section 5.01. Agreement to Subordinate  9 Section 5.02. Default on Senior and Subordinated Debt  9 Section 5.03. Liquidation; Dissolution; Bankruptcy  10 Section 5.04. Subrogation  11 Section 5.05. Notice by the Company  12 Section 5.06. Rights of the Property Trustee; Holders of Senior and Subordinated Debt  13 Section 5.07. Subordination May Not Be Impaired  13      **Article VI Representations and Warranties**  14 Section 6.01. Representations and Warranties  14      **Article VII Covenants**  15 Section 7.01. Existence  15 Section 7.02. Insurance  15 Section 7.03. Taxes, Claims for Labor and Materials, Compliance with Laws  16 Section 7.04. Limitation on Consolidations, Mergers, etc  16 Section 7.05. Limitation on Restricted Payments  17 Section 7.06. Capital Adequacy  17 Section 7.07. Ownership of the Trust  17 Section 7.08. Financial and Business Information  17 Section 7.09. Limitation on Certain Restrictive Agreements  19      **Article VIII Events of Default**  20 Section 8.01. Events of Default  20 Section 8.02. Acceleration  20 Section 8.03. Other Remedies  21 Section 8.04. No Waivers or Election of Remedies, etc  21      **Article IX Miscellaneous**  21 Section 9.01. Notices  21 Section 9.02. Binding Effect  22 Section 9.03. Governing Law  22 Section 9.04. Counterparts  22 Section 9.05. Amendments and Waivers  22 Exhibit A B Form of Subordinated Note
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     Subordinated Loan Agreement dated as of November 1, 2001 between metrocorp,inc., a Delaware corporation (the **“*Company*”**), and MetroCorp Capital Trust I, a statutorybusiness trust formed under the laws of the State of Delaware (the **“*Trust*”**) and governed by theAmended and Restated Trust Agreement dated as of even date herewith among the Company, asDepositor, Wilmington Trust Company, as Property Trustee, Wilmington Trust Company, as DelawareTrustee, and Gary D. Andersen and Julius J. Van Paemel, not in their individual capacities butsolely as Administrators of the Trust (the **“*Trust Agreement*”**).     Whereas, the sole purpose for which the Trust was formed is to issue CapitalSecurities and Common Securities pursuant to the Trust Agreement and to lend the net proceedsthereof to the Company (the Company guaranteeing, among other things in connection therewith, thepayment obligations of the Trust with respect to such Capital Securities to the extent set forth inthe Guarantee Agreement referred to herein); and     Whereas, the Trust has on the date hereof issued Common Securities and CapitalSecurities and the Company has requested the Trust to make a loan to the Company in the aggregateprincipal amount of $10,309,278, representing the proceeds received by the Trust from the issuanceof such securities;     Now, Therefore, the Trust agrees to lend and the Company agrees to borrow such amounton the terms and conditions set forth herein:**Article I****Definitions**     As used in this Agreement, the terms set forth below shall have the following meanings.Capitalized terms used but not otherwise defined herein shall have the meanings assigned to suchterms in the Trust Agreement.     **“*Board of Directors*”** means the managers comprising the Board of Directors of the Company, anybody performing similar functions on behalf of the Company, or any duly authorized committeethereof.     **“*Capitalized Lease*”** shall mean any lease with respect to which the lessee is required torecognize concurrently the acquisition of an asset and the incurrence of a liability in accordancewith GAAP.     **“*Capitalized Lease Obligation*”** means any rental obligation with respect to a Capitalized Leaseor for which the amount of the asset and liability thereunder as if so capitalized should bedisclosed in a note to such balance sheet, taken at the amount thereof accounted for asindebtedness (net of interest expense) in accordance with GAAP.     **“*Capital Securities*”** shall mean the Floating Rate Cumulative Capital Securities (InitialLiquidation Preference $1,000 per Capital Security) issued by the Trust, theproceeds of which have
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provided a portion of the funds for the Loan and for which the interestand principal payments on the Loan will provide the distributions and redemptions thereof.     **“*Capital Stock*”** in any Person means any and all shares, interests, participations or otherequivalents in the equity interest (however designated) in such Person and any rights (other thandebt securities convertible into an equity interest, unless and until so converted), warrants oroptions to acquire an equity interest in such Person.     **“*Capital Treatment Event*”** means the receipt by the Company and the Trust of an opinion ofcounsel, experienced in such matters and reasonably acceptable to the Required Holders, to theeffect that, as a result of any change to laws and regulations currently in effect, there exists amaterial risk that the Company will be unable to treat the Capital Securities as “Tier I Capital”for purposes of the capital adequacy guidelines of the Federal Reserve.     **“*Debt*”** means with respect to any Person, whether recourse is to all or a portion of the assetsof such Person and whether or not contingent: (i) every obligation of such Person for moneyborrowed; (ii) every obligation of such Person evidenced by bonds, debentures, notes or othersimilar instruments, including obligations incurred in connection with the acquisition of property,assets or businesses; (iii) every reimbursement obligation of such Person with respect to lettersof credit, bankers’ acceptances or similar facilities issued for the account of such Person; (iv)every obligation of such Person issued or assumed as the deferred purchase price of property orservices (but excluding trade accounts payable or accrued liabilities arising in the ordinarycourse of business); (v) every Capitalized Lease Obligation of such Person; and (vi) everyobligation of the type referred to in clauses (i) through (v) of another Person and all dividendsof another Person the payment of which, in either case, such Person has guaranteed or for whichsuch Person is responsible or liable, directly or indirectly, as obligor or otherwise.     **“*Default*”** shall mean any event, act or condition, the occurrence of which would, with thelapse of time or the giving of notice, or both, constitute an Event of Default.     **“*Deferred Amount*”** shall mean, in relation to the Loan, that portion of the interest which isdue for payment and which is not, by reason of deferral pursuant to Section 3.02 hereof, paid onthe due date. Interest on the Deferred Amount shall accrue from the scheduled due date until paidin full at the Scheduled Rate and shall accrue as interest on a separate loan rather than beingadded to the outstanding principal of the Loan.     **“*ERISA*”** shall have the meaning set forth in the Subscription Agreement.     **“*Event of Default*”** is defined in Section 8.01.     **“*Exchange Act”***means the Securities Exchange Act of 1934, as amended from time to time, andthe rules and regulations promulgated thereunder.     **“*Federal Reserve*”**means the Board of Governors of the Federal Reserve System or any successorthereto.     **“*GAAP*”** shall mean generally accepted accounting principles in effect in the United States atthe time of application thereof, as set forth in the opinions and pronouncements ofthe Financial
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Accounting Standards Board and the American Institute of Certified PublicAccountants, consistently applied. Unless otherwise specified herein, all accounting terms usedherein shall be interpreted, all determinations with respect to accounting matters hereunder shallbe made, and all unaudited financial statements and certificates and reports as to financialmatters required to be furnished hereunder shall be prepared, in accordance with GAAP, applied on abasis consistent with the most recent audited consolidated financial statements of the Company andits Subsidiaries delivered pursuant to Section 7.09(b).     **“*Governmental Authority*”** means:     (a) the government of (i) the United States of America and any State or other politicalsubdivision thereof, or (ii) any jurisdiction in which the Company or any of its Affiliatesconducts all or any part of its business, or which asserts jurisdiction over any propertiesof the Company or any of its Affiliates, or     (b) any entity exercising executive, legislative, judicial, regulatory oradministrative functions of, or pertaining to, any such government.     **“*Investment Company Act*”** means the Investment Company Act of 1940, as amended.     **“*Investment Company Event*”** means the receipt by the Company and the Trust of an opinion ofcounsel, experienced in such matters and reasonably acceptable to the Required Holders, to theeffect that, as a result of the occurrence of a change in law or regulation or a change ininterpretation or application of law or regulation by anyGovernmental Authority (a **“****Change inInvestment Company Act Law”**), the Trust is or will be considered an “investment company” that isrequired to be registered under the Investment Company Act, which Change in Investment Company ActLaw becomes effective on or after the date of original issuance of the Capital Securities under theTrust Agreement.     **“*Lien*”** means, with respect to any Person, any mortgage, lien, pledge, adverse claim, charge,security interest or other encumbrance (including, without limitation, any banker’s lien or rightof offset), or any interest or title of any vendor, lessor, lender or other secured party to or ofsuch Person under any conditional sale or other title retention agreement or Capitalized Lease,upon or with respect to any Property of such Person (including, in the case of Capital Stock,stockholder agreements, voting trust agreements and all similar arrangements), or any other type ofpreferential arrangement for the purpose, or having the effect, of protecting a creditor againstloss or securing the payment or performance of an obligation, and any agreement to provide any suchLien.     **“*Loan*”** is defined in Section 2.01.     **“*Material*”**, when capitalized, shall mean material in relation to the business, operations,affairs, financial condition, assets, properties or prospects of the Company and its Subsidiariestaken as a whole.     **“*Material Adverse Effect*”** shall mean a material adverse effect on (a) the business,operations, affairs, financial condition, assets, or properties of the Company and itsSubsidiaries, taken as a whole, (b) the ability of the Company to perform its obligations underthis Agreement, the Guarantee Agreement, the Expense Agreement, the Subordinated Note, theSubscription Agreement
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or the Trust Agreement, (c) the ability of the Trust to perform itsobligations under, or to enforce against the Company any of the provisions of, the ExpenseAgreement, the Subordinated Note, the Subscription Agreement or the Trust Agreement, or (d) thevalidity or enforceability of this Agreement, the Guarantee Agreement, the Expense Agreement, theSubordinated Note, the Subscription Agreement, the Trust Agreement or the Capital Securities.     **“*Multiemployer Plan*”** shall have the meaning set forth in the Subscription Agreement.     **“*Officer’s Certificate***” means a certificate signed by the President or a Vice President, andby the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company.     **“*Past Due Amount*”** shall mean, in relation to the Loan, that portion of the interest orprincipal which is due for payment and which is not, by reason of default (but not deferralpursuant to Section 3.02 hereof), paid on the due date. Interest on the Past Due Amount shallaccrue from the scheduled due date until paid in full. Interest on the Past Due Amount shallaccrue at the Scheduled Rate.     **“*Property*”** means, with respect to any Person, any interest of such Person in any kind ofproperty or asset, whether real, personal or mixed, or tangible or intangible, including, withoutlimitation, Capital Stock in any other Person.     **“*Required Holders*”** shall mean, at any time, the Holders of at least a majority of theLiquidation Preference of the Capital Securities outstanding at such time, excluding CapitalSecurities then owned or held by, for the account of or for the benefit or interest of, the Companyor any of its Affiliates.     **“*Responsible Officer*”** means the chief executive officer, chief operating officer, chieffinancial officer or chief accounting officer of the Company or any other officer of the Companyinvolved principally in its financial administration or its controllership function.     **“*Restricted Payment*”** means (a) the declaration or payment of any dividend on, or the making ofany distribution in respect of, any Capital Stock or any Trust Preferred Security of the Company orany of its Subsidiaries, otherthan dividends or distributions payable solely inCapital Stock of the Company or, in the case of a Subsidiary, dividends or other payments ordistributions in respect of its Capital Stock paid to the Company or a Wholly Owned Subsidiary, (b)the purchase, redemption, retirement or other acquisition, whether direct or indirect, of anyCapital Stock of the Company or its Subsidiaries, or (c) the purchase, redemption, retirement orother acquisition, whether direct or indirect, of any Trust Preferred Security prior to anyregularly scheduled redemption thereof; *provided*, that **“Restricted Payment”** shall not include (i)the declaration or payment of any dividend in respect of the Capital Securities; (ii) dividends ordistributions in common stock of the Company; (iii) any declaration of a non-cash dividend inconnection with the implementation of a stockholder’s right plan, or the issuance of stock underany such plan in the future or the redemption or repurchase of any such rights pursuant thereto; or(iv) any purchase of common stock of the Company related to rights under any of the Company’sbenefit plans for its directors, officers or employees.     **“*Scheduled Rate*”** shall have the meaning set forth in Section 3.01(a).
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     **“*Senior and Subordinated Debt*”** means the principal of (and premium, if any) and interest, ifany (including interest accruing on or after the filing of any petition in bankruptcy or forreorganization relating to the Company whether or not such claim for post-petition interest isallowed in such proceeding), on Debt, whether incurred on or prior to the date of this Agreement orthereafter incurred, unless, in the instrument creating or evidencing the same or pursuant to whichthe same is outstanding, it is provided that such obligations are not superior in right of paymentto the Subordinated Note or to other Debt which is *pari passu*with, or subordinated to, theSubordinated Note; *provided, however,*that Senior and Subordinated Debt shall not be deemed toinclude (i) any Debt of the Company which when incurred and without respect to any election undersection 1111(b) of the United States Bankruptcy Code of 1978, as amended, was without recourse tothe Company, (ii) any Debt of the Company to any of its Subsidiaries, (iii) any Debt to anyemployee, officer or director of the Company or any of its Subsidiaries, (iv) any Debt which by itsterms is subordinated to trade accounts payable or accrued liabilities arising in the ordinarycourse of business to the extent that payments made to the holders of such Debt by the holders ofthe Subordinated Note as a result of the subordination provisions of this Agreement would begreater than they otherwise would have been as a result of any obligation of such holders to payamounts over to the obligees on such trade accounts payable or accrued liabilities arising in theordinary course of business as a result of subordination provisions to which such Debt is subject,(v) the Guarantee Agreement, and (vi) any Trust Preferred Securities.     **“*Special Event*”** means a Tax Event, an Investment Company Event or a Capital Treatment Event.     **“*Subordinated Note*”** is defined in Section 2.01.     **“*Subsidiary*”** means, with respect to any Person, any corporation, association or otherbusiness entity in which such Person or one or more of its subsidiaries or such Person and one ormore of its subsidiaries owns sufficient equity or voting interests to enable it or them (as agroup) ordinarily, in the absence of contingencies, to elect a majority of the directors (orPersons performing similar functions) of such entity, and any partnership, limited liabilitycompany, joint venture or similar entity if more than a 50% interest in the profits or capitalthereof is owned by such Person or one or more of its subsidiaries or such Person and one or moreof its subsidiaries (unless such partnership, limited liability company, joint venture or similarentity can and does ordinarily take major business actions without the prior approval of suchPerson or one or more of its subsidiaries). Unless the context otherwise clearly requires, anyreference to a **“Subsidiary”** is a reference to a Subsidiary of the Company. For the avoidance ofdoubt, the Trust and any other trust issuing Trust Preferred Securities shall be consideredSubsidiaries to the extent and for so long as they are considered to be subsidiaries of the Companyunder GAAP.     **“*Suspension Event*”** is defined in Section 5.02.     **“*Tax Event*”** means the receipt by the Company and the Trust of an opinion of counsel,experienced in such matters and reasonably acceptable to the Required Holders, to the effect that,as a result of any amendment to, or change (including any announced prospective change) in, thelaws (or any regulations thereunder) of the United States or any political subdivision or taxingauthority thereof or therein, or as a result of any official administrative pronouncement orjudicial decision interpreting or applying such laws or regulations, which amendment or change iseffective or which pronouncement or decision is announced on or after the date of issuance of theSubordinated Note,
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there exists a material risk that interest payable by the Company on theSubordinated Note is not, or within 90 days after the date of such opinion of counsel will not be,deductible by the Company, in whole or in part, for United States federal income tax purposes.     **“*Trust*”** is defined in the introductory paragraph of this Agreement.     **“*Trust Agreement*”** is defined in the introductory paragraph of this Agreement.     **“*Trust Preferred Security*”** shall mean any trust preferred security (other than the CapitalSecurities and the Common Securities) that is issued by a statutory business trust and the proceedsof which are loaned by such trust to the Company on a subordinated basis.     **“*Voting Stock*”** means, with respect to any Person, securities of any class or classes ofCapital Stock in such Person entitling the holders thereof under ordinary circumstances to vote inthe election of members of the board of directors (or Persons performing similar functions) of suchPerson (irrespective of whether at the time stock of any other class or classes shall have or mighthave voting power or rights by reason of the happening of any contingency).     **“*Wholly Owned Subsidiary*”** means any Subsidiary of which 100% of the total Voting Stock is atthe time owned by the Company, either directly or indirectly through ownership of one or moreWholly Owned Subsidiaries.**Article II****The Loan**Section 2.1. **The Loan**. Subject to the terms and conditions herein, the Trust agrees to make asubordinated loan to the Company on the date hereof in the principal amount of $10,309,278 (the**“*Loan*”**). Subject to the provisions of this Agreement relating to prepayment or acceleration of thematurity of the Loan, the Loan shall mature on November 1, 2031. The Loan shall be evidenced by asubordinated promissory note (together with all Exchange Notes issued pursuant to the TrustAgreement, collectively, the **“*Subordinated Note*”**) of the Company to the Trust, substantially in theform of Exhibit A hereto.Section 2.2. **Voluntary Prepayment Due to Occurrence of Special Event**. Subject to the Companyhaving received the prior approval of the Federal Reserve if then required under the applicablecapital guidelines or policies of the Federal Reserve, if a Special Event has occurred and iscontinuing, the Company shall have the right upon not less than 30 days nor more than 60 daysnotice to the Trust to prepay the Loan, in whole but not in part (together with any accrued butunpaid interest, on any Past Due Amounts, if any, and interest at the Scheduled Rate on anyDeferred Amounts, if any, on theportion being prepaid), within 90 days following the occurrence of such Special Event (the **“90-DayPeriod”**), *provided that*if at the time there is available to the Company the opportunity toeliminate, within the 90-Day Period, the Special Event by taking some ministerial action(**“Ministerial Action”**), such as filing a form or making an election, or pursuing some other similarreasonable measure which has no adverse effect on the Company, the Trust or the holders of theCapital Securities issued by the Trust, the Company shall pursue such Ministerial Action in lieu ofprepayment, and, *provided, further,*that the Company shall have no right to prepay the Loan
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whilethe Trust is pursuing any Ministerial Action pursuant to its obligations under the Trust Agreement.Section 2.3. **Optional Voluntary Prepayment Under Circumstances Other Than Special Events**. Subjectto the Company having received prior approval of the Federal Reserve if then required under theapplicable capital guidelines or policies of the Federal Reserve, the Company shall have the rightat any time on or after January 1, 2007 to prepay the Loan, in whole or in part (together with anyaccrued but unpaid interest on any Past Due Amounts, if any, and interest at the Scheduled Rate onany Deferred Amounts, if any on the portion being prepaid), in an amount not less than $1,000,000in the case of a partial prepayment and in amounts in integral multiples of $100,000 in excessthereof.Section 2.4. **Other Prepayment Matters**. The Company shall give notice in writing to the Trust atsuch times and within such period prior to the proposed date of prepayment pursuant to Section 2.2or Section 2.3, as the case may be, as shall permit the Trust to call for an Unscheduled Redemptionof Capital Securities in the amount of the proposed prepayment in accordance with the terms of theTrust Agreement. The amount of such prepayment specified in such notice will become due andpayable on the date specified in such notice.**Article III****Interest**Section 3.1. **Interest on the Loan**.     (a) **Scheduled Interest**. Except as set forth below, the Loan shall bear interest at rate equalto the prime rate of interest as last reported in the “Money Rate” section of the Wall StreetJournal adjusted on the first Business Day of each month, plus seventy-five (75) basis points (the**“*Scheduled Rate*”**) from the date it is made until maturity. Such interest shall be payable on eachMarch 31, June 30, September 30 and December 31 commencing December 31, 2001. Interest will becomputed on the basis of a 360-day year and twelve 30-day months and, for any interest period thatis shorter than a full calendar quarter, will be calculated on the basis of the number of dayselapsed in a 360-day year of twelve 30-day months. If any date on which interest is payable on theLoan is not a Business Day, then payment of the interest due on such date will be made on the nextsucceeding day which is a Business Day (and without any interest or other payment in respect of anysuch delay), except that, if such Business Day is in the next calendar year, such payment shall bemade on the immediately preceding Business Day.     (b) **Deferral Interest**. In the event of a deferral of the payment of interest as provided inSection 3.2, interest shall accrue on the Deferred Amount during the deferral period at theScheduled Rate.Section 3.2. **Deferral of Interest Payment**. Notwithstanding the provisions of Section 3.1(a), solong as no Default or Event of Default has occurred and is continuing, the Company shall have theright, upon notice in writing to the Trust not less than fifteen Business Days prior to therelevant interest payment date, to elect to defer payment of interest (but not to defer anyinterest payable in connection with the prepayment, in whole or in part, of the Loan) until thenext following interest payment date, upon which date the Company shall pay interest accrued on theLoan at the Scheduled
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Rate. Interest shall accrue on the Deferred Amount at the Scheduled Rate,until the Deferred Amount due at the end of such deferral period has been paid in full, after whichtime the Company may again elect to defer payments of interest, subject to the provisions of thisSection 3.02. The Company may elect to defer interest on the Loan in accordance with this Section3.02 for not more than twenty (20) consecutive interest payment dates, but in no event beyond thestated maturity date of the Subordinated Note.**Article IV****Payments**Section 4.1. **Method and Date of Payment**. Each payment by the Company of principal and interest onthe Loan shall be made to the Trust in United States Dollars to the Payment Account (as defined inthe Trust Agreement) or such other place or account as may be designated by the Trust.Section 4.2. **Set-Off**. Notwithstanding anything to the contrary herein, the Company shall have theright to set-off any payment it is otherwise required to make hereunder (a **“*relevant payment*”**) withand to the extent the Company has theretofore made, or is concurrently on the date of such paymentmaking, a corresponding payment in the same amount under the Guarantee Agreement in respect of suchrelevant payment.**Article V****Subordination**Section 5.1. **Agreement to Subordinate**. The Company covenants and agrees, and the Trust and eachholder of the Subordinated Note by such holder’s acceptance thereof likewise covenants and agrees,that the Subordinated Note shall be issued subject to the provisions of this Article V, and eachholder of the Subordinated Note, whether upon original issue or upon transfer or assignmentthereof, accepts and agrees to be bound by such provisions.     The payment by the Company of the principal of and interest on the Subordinated Note shall, tothe extent and in the manner hereinafter set forth, be subordinated and junior in right of paymentto the prior payment in full of all Senior and Subordinated Debt, whether outstanding at the dateof this Agreement or thereafter incurred.Section 5.2. **Default on Senior and Subordinated Debt**. In the event and during the continuation ofany default by the Company in the payment of principal, premium or interest due on any Senior andSubordinated Debt of theCompany or in the event that the maturity of any Senior and Subordinated Debt of the Company hasbeen accelerated because of a default, then, in either case (any such event being herein referredto as a **“Suspension Event”**), no payment shall be made by the Company with respect to the principalof or interest on the Subordinated Note unless and until such default shall have been cured orwaived in writing or shall have ceased to exist or such Senior and Subordinated Debt shall havebeen discharged or paid in full, after which the Company (subject to its right to defer the paymentof interest as provided in Section 3.2) shall resume making any and all payments in respect of theSubordinated Note, including any payments that would have been required by this Agreement to bemade by the Company, but for the provisions of this Section 5.2.
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     In the event that, notwithstanding the foregoing, any payment shall be received by the holderof the Subordinated Note when such payment is prohibited by the preceding paragraph of this Section5.2, such payment shall be held in trust for the benefit of, and shall be paid over or deliveredto, the holders of Senior and Subordinated Debt or their respective representatives, or to thetrustee or trustees under any indenture pursuant to which any of such Senior and Subordinated Debtmay have been issued, as their respective interests may appear, but only to the extent that theholders of the Senior and Subordinated Debt (or their representative or representatives or atrustee) notify such holder in writing within 90 days after such payment of the amounts then dueand owing on the Senior and Subordinated Debt and only the amounts specified in such notice to suchholder shall be paid to the holders of Senior and Subordinated Debt.Section 5.3. **Liquidation; Dissolution; Bankruptcy**. Upon any payment by the Company or distributionof assets of the Company of any kind or character, whether in cash, property or securities, tocreditors upon any dissolution or winding-up or liquidation or reorganization of the Company,whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings,all amounts due upon all Senior and Subordinated Debt of the Company shall first be paid in full,or payment thereof provided for in money in accordance with its terms, before any payment is madeby the Company on account of the principal or interest on the Subordinated Note; and upon any suchdissolution or winding-up or liquidation or reorganization, any payment by the Company, ordistribution of assets of the Company of any kind or character, whether in cash, property orsecurities, which the holder of the Subordinated Note would be entitled to receive from theCompany, except for the provisions of this Article V, shall be paid by the Company or by anyreceiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment ordistribution, or by such holder if received by it, directly to the holders of Senior andSubordinated Debt of the Company (pro rata to such holders on the basis of the respective amountsof Senior and Subordinated Debt held by such holders, as calculated by the Company) or theirrepresentative or representatives, or to the trustee or trustees under any indenture pursuant towhich any instruments evidencing such Senior and Subordinated Debt may have been issued, as theirrespective interests may appear, to the extent necessary to pay such Senior and Subordinated Debtin full, in money or money’s worth, after giving effect to any concurrent payment or distributionto or for the holders of such Senior and Subordinated Debt, before any payment or distribution ismade to the holder of the Subordinated Note.     In the event that, notwithstanding the foregoing, any payment or distribution of assets of theCompany of any kind or character, whether in cash, property or securities, prohibited by theforegoing, shall be received by the holder of the Subordinated Note before all Senior andSubordinated Debt of the Company is paid in full, or provision is made for such payment in money inaccordance with its terms, such payment or distribution shall, subject to Section 5.5, be held intrustfor the benefit of and shall be paid over or delivered to the holders of such Senior andSubordinated Debt or their representative or representatives, or to the trustee or trustees underany indenture pursuant to which any instruments evidencing such Senior and Subordinated Debt mayhave been issued, and their respective interests may appear, as calculated by the Company, forapplication to the payment of all Senior and Subordinated Debt of the Company, as the case may be,remaining unpaid to the extent necessary to pay such Senior and Subordinated Debt in full in moneyin accordance with its terms, after giving effect to any concurrent payment or distribution to orfor the benefit of the holders of such Senior and Subordinated Debt.     For purposes of this Article V, the words **“cash, property or securities”** shall not be deemedto include equity securities of the Company as reorganized or readjusted, or securities of the
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Company or any other corporation provided for by a plan of reorganization or readjustment, thepayment of which is subordinated in right of payment to all Debt of the Company issued to theholders of Senior and Subordinated Debt of the Company in the plan of reorganization orreadjustment to substantially the same extent as, or to a greater extent than, the SubordinatedNote is so subordinated as provided in this Article V. The consolidation of the Company with, orthe merger of the Company into, another corporation or the liquidation or dissolution of theCompany following the conveyance or transfer of its property as an entirety, or substantially as anentirety, to another corporation upon the terms and conditions provided for in Section 7.4 of thisAgreement shall not be deemed a dissolution, winding-up, liquidation or reorganization for thepurposes of this Section 5.03 if such other corporation shall, as a part of such consolidation,merger, conveyance or transfer, comply with the conditions stated in Section 7.4 of this Agreement.     Nothing in Section 5.2 or in this Section 5.3 shall apply to or limit claims of, or paymentsto, the Trustees or any other Person entitled to indemnification by the Company under or pursuantto Section 8.6 of the Trust Agreement.Section 5.4. **Subrogation**. Subject to the payment in full of all Senior and Subordinated Debt ofthe Company, the rights of the holder of the Subordinated Note shall be subrogated to the rights ofthe holders of such Senior and Subordinated Debt to receive payments or distributions of cash,property or securities of the Company, as the case may be, applicable to such Senior andSubordinated Debt until the principal of and interest on the Subordinated Note shall be paid infull; and, for the purposes of such subrogation, no payments or distributions to the holders ofsuch Senior and Subordinated Debt of any cash, property or securities to which the holder of theSubordinated Note would be entitled except for the provisions of this Article V, and no paymentover pursuant to the provisions of this Article V to or for the benefit of the holders of suchSenior and Subordinated Debt by the holder of the Subordinated Note, shall, as between the Company,its creditors other than holders of Senior and Subordinated Debt of the Company, and the holder ofthe Subordinated Note, be deemed to be a payment by the Company to or on account of such Senior andSubordinated Debt. It is understood that the provisions of this Article V are and are intendedsolely for the purposes of defining the relative rights of the holder of the Subordinated Note, onthe one hand, and the holders of such Senior and Subordinated Debt on the other hand.     Nothing contained in this Article V or elsewhere in this Agreement or in the Subordinated Noteis intended to or shall impair, as between the Company, its creditors other than the holders ofSenior and Subordinated Debt of the Company, and the holder of the Subordinated Note, theobligation of the Company, which is absolute and unconditional, to pay to the holder of theSubordinated Note the principal of and interest on the Subordinated Note as and when the sameshall become due and payable in accordance with their terms, or is intended to or shall affect therelative rights of the holder of the Subordinated Note and creditors of the Company, other than theholders of Senior and Subordinated Debt of the Company, nor shall anything herein or thereinprevent the holder of the Subordinated Note from exercising all remedies otherwise permitted byapplicable law upon default under this Agreement, subject to the rights, if any, under this ArticleV of the Holders of such Senior and Subordinated Debt in respect of cash, property or securities ofthe Company, as the case may be, received upon the exercise of any such remedy.     Upon any payment or distribution of assets of the Company referred to in this Article V, theholder of the Subordinated Note shall be entitled to rely conclusively upon any order or decreemade by any court of competent jurisdiction in which such dissolution, winding-up, liquidation orreorganization proceedings are pending, or a certificate of the receiver, trustee in bankruptcy,
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liquidation trustee, agent or other Person making such payment or distribution, delivered to theholder of the Subordinated Note, for the purposes of ascertaining the Persons entitled toparticipate in such distribution, the holders of Senior and Subordinated Debt and otherindebtedness of the Company, as the case may be, the amount thereof or payable thereon, the amountor amounts paid or distributed thereon and all other facts pertinent thereto or to this Article V.Section 5.5. **Notice by the Company**. The Company shall give prompt written notice to a ResponsibleOfficer of the Property Trustee and the holder of the Subordinated Note of any fact known to theCompany that would prohibit the making of any payment of monies in respect of the Subordinated Notepursuant to the provisions of this Article V. Notwithstanding the provisions of this Article V orany other provision of this Agreement or the Trust Agreement, the holder of the Subordinated Noteshall not be charged with knowledge of the existence of any facts that would prohibit the making ofany payment of monies to such holder in respect of the Subordinated Note pursuant to the provisionsof this Article V, unless and until the holder of the Subordinated Note shall have received writtennotice thereof from the Company or a holder or holders of Senior and Subordinated Debt or from anytrustee therefor; and before the receipt of any such written notice, such holder shall be entitledin all respects to assume that no such facts exist; *provided, however*, that if the Property Trusteeshall not have received the notice provided for in this Section 5.5 at least two Business Daysprior to the date upon which by the terms hereof any money may become payable for any purpose(including, without limitation, the payment of the principal of or interest on the SubordinatedNote), then, anything herein contained to the contrary notwithstanding, the Property Trustee shallhave full power and authority to receive such money and to make the corresponding Distributionpursuant to the Trust Agreement, and shall not be affected by any notice to the contrary that maybe received by it within two Business Days prior to such date.     The holder of the Subordinated Note, if acting in good faith, shall be entitled to relyconclusively on the delivery to it of a written notice by a Person representing himself to be aholder of Senior and Subordinated Debt of the Company (or a trustee on behalf of such holder), toestablish that such notice has been given by a holder of such Senior and Subordinated Debt or atrustee on behalf of any such holder or holders. In the event that the holder of the SubordinatedNote determines in good faith that further evidence is required with respect to the right of anyPerson as a holder of such Senior and Subordinated Debt to participate in any payment ordistribution pursuant to this Article V, the holder of the Subordinated Note may request suchPerson to furnish evidence to the reasonable satisfaction of the holder of the Subordinated Note asto the amount of such Senior and Subordinated Debt held by such Person, the extent to which suchPerson is entitled to participatein such payment or distribution and any other facts pertinent to the rights of such Personunder this Article V, and, if such evidence is not furnished, the holder of the Subordinated Notemay defer any payment to such Person pending judicial determination as to the right of such Personto receive such payment.Section 5.6. **Rights of the Property Trustee; Holders of Senior and Subordinated Debt**. The PropertyTrustee in its individual capacity shall be entitled to all the rights set forth in this Article Vin respect of any Senior and Subordinated Debt at any time held by it, to the same extent as anyother holder of Senior and Subordinated Debt, and nothing in this Agreement shall deprive theTrustee of any of its rights as such holder.     With respect to the holders of Senior and Subordinated Debt of the Company, the PropertyTrustee and each other holder of the Subordinated Note undertake to perform or to observe only suchof its covenants and obligations as are specifically set forth in this Article V, and no implied
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covenants or obligations with respect to the holders of such Senior and Subordinated Debt shall beread into this Agreement against the Property Trustee or any other holder of the Subordinated Note.The Property Trustee and each other holder of the Subordinated Note shall not be deemed to owe anyfiduciary duty to the holders of such Senior and Subordinated Debt and, so long as it is acting ingood faith, the Property Trustee or such other holder of the Subordinated Note shall not be liableto any holder of such Senior and Subordinated Debt if it shall receive or pay over or deliver toany other holders of Subordinated Note, the Company or any other Person money or assets to whichany holder of such Senior and Subordinated Debt shall be entitled by virtue of this Article V orotherwise.Section 5.7. **Subordination May Not Be Impaired**. No right of any present or future holder of anySenior and Subordinated Debt of the Company to enforce subordination as herein provided shall atany time in any way be prejudiced or impaired by any act or failure to act on the part of theCompany or by any act or failure to act, in good faith, by any such holder, or by any noncomplianceby the Company with the terms, provisions and covenants of this Agreement, regardless of anyknowledge thereof that any such holder may have or otherwise be charged with.     Without in any way limiting the generality of the foregoing paragraph, the holders of Seniorand Subordinated Debt of the Company may, at any time and from time to time, without the consent ofor notice to the Property Trustee or any other holder of the Subordinated Note, without incurringresponsibility to the Property Trustee or to any other holder of the Subordinated Note and withoutimpairing or releasing the subordination provided in this Article V or the obligations hereunder ofthe Property Trustee or any other holder of the Subordinated Note to the holders of such Senior andSubordinated Debt, do any one or more of the following: (i) change the manner, place or terms ofpayment or extend the time of payment of, or renew or alter, such Senior and Subordinated Debt, orotherwise amend or supplement in any manner such Senior and Subordinated Debt or any instrumentevidencing the same or any agreement under which such Senior and Subordinated Debt is outstanding;(ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwisesecuring such Senior and Subordinated Debt; (iii) release any Person liable in any manner for thecollection of such Senior and Subordinated Debt; and (iv) exercise or refrain from exercising anyrights against the Company and any other Person.**Article VI****Representations and Warranties**Section 6.1. **Representations and Warranties**. The Company represents and warrants to the Trust asfollows:     (a) **Good Standing**. The Company is a corporation duly organized, validly existing andin good standing under the laws of Delaware and is duly qualified as a foreign corporationin each other jurisdiction where such qualification is necessary. The Company has allrequisite power and authority to own or hold under lease the properties it purports to ownor hold under lease, to transact its business, to execute and deliver this Agreement, theGuarantee Agreement, the Trust Agreement, the Expense Agreement, the Subscription Agreementand the Subordinated Note and to perform its obligations under the provisions hereof andthereof.
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     (b) **Authorization, etc.**     (i) This Agreement has been duly authorized by the Company, and this Agreementconstitutes a valid and binding obligation of the Company, enforceable against the Companyin accordance with its terms, except as enforcement thereof may be limited by bankruptcy,insolvency, reorganization, moratorium, or similar laws affecting enforcement of creditors’rights generally.     (ii) The Subordinated Note has been duly authorized by the Company and, when executed,issued and delivered in the manner provided for herein and sold to and paid for by theTrust, the Subordinated Note will constitute a valid and binding obligation of the Companyand will be enforceable against the Company in accordance with its terms, except asenforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium orsimilar laws affecting enforcement of creditors’ rights generally.     (c) **Compliance With Laws, Other Instruments, etc.**(i) The execution, delivery andperformance by the Company of this Agreement, the Subscription Agreement, the GuaranteeAgreement, the Trust Agreement, the Expense Agreement and the Subordinated Note will not (a)contravene, result in a breach of or constitute a default under, or result in the creationof any Lien in respect of any property of the Company or any Subsidiary under any indenture,mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter,bylaws or other constituent documents, or any other agreement or instrument to which theCompany or any Subsidiary is bound or by which the Company or any Subsidiary or any of theirrespective properties may be bound or affected, (b) conflict with or result in a breach ofany of the terms, conditions or provisions of any order, judgment, decree, or ruling of anycourt, arbitrator or Governmental Authority applicable to the Company or any Subsidiary or(c) violate any provision of any statute or other rule or regulation of any GovernmentalAuthority applicable to the Company or any Subsidiary.     (ii) Neither the Company nor any Subsidiary is in violation or breach of or defaultunder any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease,corporate charter or bylaws or any other agreement or instrument to which it is bound or bywhich its properties are bound or affected, which violation, breach or default,individually or in the aggregate, would reasonably be expected to have a Material AdverseEffect.     (d) **Governmental Authorizations, etc.**No consent, approval or authorization of, orregistration, filing or declaration with, any Governmental Authority is required inconnection with the execution, delivery or performance by the Company of this Agreement, theGuarantee Agreement, the Trust Agreement, the Subscription Agreement, the Expense Agreementor the Subordinated Note.**Article VII****Covenants**Section 7.1. **Existence**. (a) The Company will at all times preserve and keep in full force andeffect the existence of the Trust as a statutory business trust under the laws of Delaware andqualify
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and maintain its qualification to do business and good standing in any jurisdiction wherefailure to do so would have a Material Adverse Effect. The Company will at all times preserve andkeep in full force and effect all rights and franchises of the Trust, unless in the good faithjudgment of the Trust, the termination of or failure to preserve and keep in full force and effectsuch right or franchise would not have a Material Adverse Effect. For so long as the CapitalSecurities remain outstanding, the Company will use its reasonable efforts (i) to cause the Trustto continue not to be treated as an association taxable as a corporation or a partnership forUnited States federal income tax purposes and (ii) to cause each Holder of Capital Securities to betreated as owning an individual beneficial interest in the Subordinated Note.     (b) Except as otherwise permitted by Section 7.4, the Company will, and will cause each of itsSubsidiaries to preserve and keep in full force and effect its corporate or other applicableorganizational existence and all its rights and franchises, except in the case of such rights andfranchises where the failure to do so could not, individually or in the aggregate, reasonably beexpected to have a Material Adverse Effect.Section 7.2. **Insurance**. The Company will maintain and will cause each of its Subsidiaries tomaintain, with financially sound and reputable insurers, insurance with respect to their respectiveProperty and businesses against such casualties and contingencies, of such types, on such terms andin such amounts (including deductibles and co-insurance, if adequate reserves are maintained withrespect thereto) as is customary in the case of entities of established reputations engaged in thesame or a similar business and similarly situated.Section 7.3. **Taxes, Claims for Labor and Materials, Compliance with Laws**. The Company will, andwill cause each of its Subsidiaries to, file all tax returns required to be filed in anyjurisdiction and to pay and discharge (or cause to be paid and discharged) all taxes shown to bedue and payable on such returns and all other taxes imposed on them or any of their properties,assets, income or franchises, to the extent such taxes have become due and payable and before theyhave become delinquent and all claims for labor, material, supplies or other claims for which sumshave become due and payable that have or might become a Lien on properties or assets of the Companyor any Subsidiary, *provided*that neither the Company nor any Subsidiary need pay any such taxes orclaims if (a) the amount, applicability or validity thereof is contested by the Company or such Subsidiary on a timely basis in goodfaith and in appropriate proceedings, and the Company or such Subsidiary has established adequatereserves therefor on its books, to the extent required by GAAP, or (b) the nonpayment of such taxesand claims could not, individually or in the aggregate, reasonably be expected to have a MaterialAdverse Effect. The Company will comply and will cause each Subsidiary to comply with all laws andordinances to which it is subject, including without limitation, and as applicable, theOccupational Safety and Health Act of 1970, ERISA and all laws, ordinances, governmental rules andregulations relating to environmental protection in all applicable jurisdictions, unless theviolation of such laws, ordinances, rules or regulations would not have a Material Adverse Effect.Section 7.4. **Limitation on Consolidations, Mergers, etc.**The Company will not, and will not permitany of its Subsidiaries to, merge or consolidate with or into any Person or convey, transfer orotherwise dispose of all or substantially all of its assets to any Person, except that:     (a) The Company may merge or consolidate with or into any other Person or convey,transfer or otherwise dispose of all or substantially all of its assets to any other
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Person;*provided*, *that*(i) the successor formed by such consolidation or the survivor of suchmerger or the Person that acquires by conveyance, transfer or other disposition all orsubstantially all of the assets of the Company, as the case may be, shall be a corporationorganized and existing under the laws of a state of the United States or the United States;(ii) if the Company is not such successor or survivor, the successor, survivor or acquirershall have expressly assumed all obligations of the Company under or with respect to theLoan, this Agreement, the Guarantee Agreement and any other agreement entered into inconnection with the transactions contemplated hereby (pursuant to such agreements andinstruments as shall be reasonably satisfactory to the Required Holders), and such Personshall have caused to be delivered to each Holder an opinion of independent counselreasonably acceptable to the Required Holders, to the effect that all agreements andinstruments effecting such assumption are enforceable in accordance with their terms andcomply with the terms hereof; and (iii) no Default or Event of Default or Suspension Eventshall exist, either prior to or immediately after giving effect to such merger,consolidation or asset conveyance, transfer or other disposition; and     (b) any Subsidiary may merge with the Company or a Wholly Owned Subsidiary, or mayconvey, transfer or otherwise dispose of all or substantially all of its assets to theCompany or to a Wholly Owned Subsidiary; *provided*, that no Default or Event of Default orSuspension Event shall exist.Section 7.5. **Limitation on Restricted Payments**. The Company will not, and will not permit anySubsidiary to, directly or indirectly, declare, make or incur any liability or obligation to makeany Restricted Payment if (i) a Default or Event of Default or Suspension Event has occurred and iscontinuing or if a Default or Event of Default or Suspension Event would result therefrom, (ii) theCompany has deferred the payment of interest on the Loan pursuant to Section 3.02 and any DeferredAmount or interest thereon remains unpaid, or (iii) the Company is for any reason unwilling orunable to make a payment or payments under the Guarantee Agreement.Section 7.6. **Capital Adequacy.**The Company will comply, and will cause each of its Subsidiaries tocomply, with all applicable capital adequacy, minimum capital and similar requirements orguidelines (whether or not having the force of law) of the Federal Reserve, the Office of theComptroller of the Company, the Federal Deposit Insurance Corporation and relevant state bankingauthorities.Section 7.7. **Ownership of the Trust**. The Company agrees that it shall maintain legal andbeneficial ownership of 100% of the Common Securities, free and clear of any Lien, *provided*,*however*, that any successor of the Company permitted pursuant to Section 7.4 may succeed to theCompany’s ownership of the Common Securities.Section 7.8. **Financial and Business Information**. The Company shall deliver in duplicate to eachHolder of Capital Securities:     (a) **Quarterly Statements of the Company**. As soon as practicable and in any eventwithin 50 days after the end of each quarterly period (other than the last quarterly period)in each fiscal year, unaudited consolidated (and consolidating, if requested by such Holder)statements of income, stockholders’ equity and cash flows of the Company and itsSubsidiaries for the period from the beginning of the current fiscal year to the end of suchquarterly period, and an unaudited consolidated (and consolidating, if requested by suchHolder) balance sheet of the Company and its Subsidiaries as at the end of such
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quarterlyperiod, setting forth in each case in comparative form figures for the corresponding periodin the preceding fiscal year, all in reasonable detail and satisfactory in form to theRequired Holders and certified by an authorized financial officer of the Company, subjectto changes resulting from year-end adjustments;     (b) **Annual Statements of the Company**. As soon as practicable and in any event within105 days after the end of each fiscal year, consolidated (and consolidating, if requested bysuch Holder) statements of income, stockholders’ equity and cash flows of the Company andits Subsidiaries for such year, and a consolidated (and consolidating, if requested by suchHolder) balance sheet of the Company and its Subsidiaries as at the end of such year,setting forth in each case in comparative form corresponding consolidated figures from thepreceding annual audit, all in reasonable detail and satisfactory in form to the RequiredHolders and, as to the consolidated statements, reported on by independent publicaccountants of recognized standing reasonably acceptable to the Required Holders andselected by the Company, whose report shall be without limitation as to the scope of theaudit and satisfactory in substance to such Required Holders and certified (in the case ofany such coordinating financial statements) by an authorized financial officer of theCompany;     (c) **SEC and Other Reports**. Promptly upon their becoming available, one copy of eachfinancial statement, report, notice or proxy statement sent by either Trust or the Companyto securities holders generally and of each regular or periodic report, and any registrationstatement or prospectus filed by the Trust, the Company or any of its Subsidiaries with anysecurities exchange or the Securities and Exchange Commission or any successor agency, andcopies of any orders in any proceedings to which the Trust, the Company or any of itsSubsidiaries is a party, issued by any Governmental Authority;     (d) **Reports of Auditors**. Promptly upon receipt thereof, a copy of each other reportsubmitted to the Company or any of its Subsidiaries by independent accountants in connectionwith any annual, interim or special audit or review made by them of the books of the Companyor any of its Subsidiaries;     (e) **Requested Information**. With reasonable promptness, such other data and informationas any such Institutional Investor may reasonably request, including, without limitation, tothe extent that the same may be provided to such Holder under applicable law, call reportsand statements of condition with respect to the Company or any of its Subsidiaries;     (f) **Officer’s Certificates**. Within the periods provided in paragraphs (a) and (b)above, a certificate of an authorized financial officer of the Company stating that suchofficer has reviewed the provisions of this Agreement and the Subscription Agreement andsetting forth: (i) the information and computations (in sufficient detail) required inorder to establish whether the Company was in compliance with the requirements of Section7.5 of this Agreement, at the end of the period covered by the financial statements thenbeing furnished, and (ii) whether there existed as of the date of such financial statementsand whether, to the best of such officer’s knowledge, there exists on the date of thecertificate or existed at any time during the period covered by such financial statementsany Default or
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Event of Default or Suspension Event and, if any such condition or eventexisted during such period or then exists on the date of the certificate, specifying thenature and period of existence thereof and the action the Company has taken, is taking andproposes to take with respect thereto;     (g) **Accountants’ Certificates**. Within the period provided in paragraph (b) above, acertificate of the accountants who render an opinion with respect to such financialstatements, stating that they have reviewed this Agreement and stating further, whether inmaking their audit, such accountants have become aware of any Default or Event of Default orSuspension Event insofar as the terms or provisions of this Agreement pertain to or involveaccounting matters or determinations, and if any such condition or event existed or thenexists, specifying the nature and period of existence thereof;     (h) **Notice of Default or Event of Default or Suspension Event**. Immediately upon (andin any event within three Business Days after) any Responsible Officer’s becoming aware ofthe existence of any condition or event which constitutes any Default or Event of Default orSuspension Event, a written notice specifying the nature and period of existence thereof andwhat action the Company is taking or proposes to take with respect thereto; and     (i) **Notice of Claimed Default**. Immediately upon (and in any event within threeBusiness Days after) any Responsible Officer’s becoming aware that the holder or holders ofany evidences of Debt of the Company and/or one or more Subsidiaries aggregating $1,000,000or more has or have given notice or taken any other action with respect to a claimeddefault, a written notice specifying the notice given or action taken by such holder orholders and the nature of the claimed default, and what action the Company is taking orproposes to take with respect thereto.Section 7.9. **Limitation on Certain Restrictive Agreements**. The Company will not, and will notpermit any Subsidiary to, enter into or suffer to exist any contractual obligation in connectionwith any Debt which obligation in any way restricts the ability of any Subsidiary (a) to make anydividends, distributions or other payments, including, without limitation, repayments of loans andadvances to the Subsidiary or Subsidiaries that own the Capital Stock of such Subsidiary or (b) totransfer any of its Property to the Company or to such Subsidiary or Subsidiaries.**Article VIII****Events of Default**Section 8.1.**Events of Default**. An **“*Event of Default*”** shall exist if one or more of the followingevents shall occur and be continuing:     (a) default in the payment of interest on the Loan for more than three Business Daysafter the same has become due; *provided*, *however*, that a timely deferral of any interestpayment by the Company pursuant to Section 3.02 shall not constitute a default in thepayment of interest; or     (b) default in the payment of principal on the Loan when due; or
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     (c) any Company Bankruptcy Event, any Significant Bank Subsidiary Bankruptcy Event orany Trust Bankruptcy Event; or     (d) the making of any distributions, redemptions, purchases, acquisitions or paymentsin violation of the provisions of Section 7.5; or     (e) the breach by the Company of any other covenant or obligation contained herein andsuch breach continues for 30 days after any Responsible Officer obtains actual knowledgethereof; or     (f) any representation or warranty made by the Company herein, in the Trust Agreementor the Subscription Agreement by the Trust in the Subscription Agreement, in Section 7.1 ofthe Trust Agreement or by the Company or any of its officers in any writing furnished inconnection with or pursuant to this Agreement, the Subscription Agreement or the TrustAgreement shall be false or misleading in any material respect on the date as of which made.Section 8.2. **Acceleration**. (a) If an Event of Default described in clause (c) of Section 8.1 hasoccurred with respect to the Company or the Trust, the Loan shall automatically become immediatelydue and payable.     (b) If an Event of Default described in clause (a), (b) or (d), of Section 8.1 has occurredand is continuing, the Trust may at any time, subject to the rights of the Holders under the TrustAgreement, declare the Loan to be immediately due and payable.     Upon the Loan becoming due and payable under this Section 8.2, whether automatically or bydeclaration, the Loan will forthwith mature and the entire unpaid principal amount of the Loan,plusall accrued and unpaid interest thereon, shall be immediately due and payable, in each andevery case without presentment, demand, protest or further notice, all of which are hereby waived.Section 8.3. **Other Remedies**. (a) If any Default or Event of Default has occurred and iscontinuing, and irrespective of whether the Loan has become or has been or may be declaredimmediately due and payable under Section 8.2, the Trust may proceed to protect and enforce itsrights by an action at law, suit in equity or other appropriate proceeding, whether for thespecific performance of any agreement contained herein, or for an injunction against a violation ofany of the terms hereof, or in aid of the exercise of any power granted hereby or by law orotherwise.     (b) The Company expressly acknowledges that under the terms of the Trust Agreement and theCapital Securities the Holders of the outstanding Capital Securities shall have the rights andpowers described in the Trust Agreement, including the right to instruct the Trust to acceleratethe principal amount of the Loan and to enforce the Trust’s other rights under this Agreement.Section 8.4. **No Waivers or Election of Remedies, etc.**No course of dealing and no delay on thepart of the Trust or any Holder of any Capital Security in exercising any right, power or remedyshall operate as a waiver thereof or otherwise prejudice the Trust or such Holder’s rights, powersor remedies. No right, power or remedy conferred by this Agreement or by the Trust Agreement upon
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the Trust or any such Holder shall be exclusive of any other right, power or remedy referred toherein or therein or now or hereafter available at law, in equity, by statute or otherwise.**Article IX****Miscellaneous**Section 9.1. **Notices**. Any notice, request or other communication required or permitted to be givenhereunder shall be given in writing by delivering the same against receipt therefor by facsimiletransmission (if the sender on the same day sends a confirming copy of such notice by a recognizedovernight delivery service, charges prepaid), telex or by a recognized overnight delivery service(charges prepaid), addressed as follows (and if so given, shall be deemed given when sent or uponreceipt of an answer-back, if sent by telex):If to the Company or the Trust:MetroCorp Capital Trust I