Exhibit 10.2
U NITED S TATES D EPARTMENT OF THE T REASURY
1500 Pennsylvania Avenue, NW
Washington, D.C. 20220
March 13, 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 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
executive officer and chief financial officer shall provide the
written certification of compliance by the Company with the
requirements of Section 111 of EESA in the manner specified by
Se
