Exhibit
10.2
United States
Department of the Treasury
1500
Pennsylvania Avenue, NW
Washington,
D.C. 20220
February 27,
2009
Ladies and
Gentlemen:
Reference is made to that certain Letter Agreement incorporating
the Securities Purchase Agreement – Standard Terms dated of
as of the date of this letter agreement (the “ Securities
Purchase Agreement ”) between United States Department of
Treasury (“ Investor ”) and the company named on
the signature page hereto (the “ Company
”). Capitalized terms used but not defined herein shall
have the meanings assigned to them in the Securities Purchase
Agreement.
The American Recovery and Reinvestment Act of 2009, as it may be
amended from time to time (the “Act” ), includes
provisions relating to executive compensation and other matters
that may be inconsistent with the Securities Purchase Agreement,
the Warrant and the Certificate[s] of Designation (the
“Transaction Documents” ). Accordingly,
Investor and the Company desire to confirm their understanding as
follows:
1. Notwithstanding
anything in the Transaction Documents to the contrary, in the event
that the Act or any rules or regulations promulgated thereunder are
inconsistent with any of the terms of the Transaction Documents,
the Act and such rules and regulations shall control.
2. For the
avoidance of doubt (and without limiting the generality of
Paragraph 1):
(a) the provisions of
Section 111 of the Emergency Economic Stabilization Act of 2008, as
amended by the Act or otherwise from time to time (
“EESA” ), shall apply to the Company;
(b) the waiver to be
delivered by each of the Company’s Senior Executive Officers
pursuant to Section 1.2(d)(v) of the Securities Purchase Agreement
shall, in addition, be delivered by any additional highly
compensated employees required by applicable rules or regulations
under EESA;
(c) the Company’s
chief ex
