Exhibit 10.1


 


MASTER AGREEMENT


 


FEDERAL DEPOSIT INSURANCE CORPORATION


 


TEMPORARY LIQUIDITY GUARANTEE PROGRAM – DEBT GUARANTEE PROGRAM


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I DEFINITIONS 

  	
  1

  
	
   

  	
   

  
	
   

  	
  1.01.

  	
  Certain Defined Terms

  	
  1

  
	
   

  	
  1.02.

  	
  Terms Generally

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II SENIOR DEBT GUARANTEE

  	
  2

  
	
   

  	
   

  
	
   

  	
  2.01.

  	
  Acknowledgement of Guarantee

  	
  2

  
	
   

  	
  2.02.

  	
  Guarantee Payments

  	
  2

  
	
   

  	
  2.03.

  	
  Issuer Make-Whole Payments

  	
  3

  
	
   

  	
  2.04.

  	
  Waiver of Defenses

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE ISSUER

  	
  4

  
	
   

  	
   

  
	
   

  	
  3.01.

  	
  Organization and Authority

  	
  4

  
	
   

  	
  3.02.

  	
  Authorization, Enforceability

  	
  4

  
	
   

  	
  3.03.

  	
  Reports

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV NOTICE AND REPORTING

  	
  5

  
	
   

  	
   

  
	
   

  	
  4.01.

  	
  Reports of Existing and Future Guaranteed Debt

  	
  5

  
	
   

  	
  4.02.

  	
  On-going Reporting

  	
  5

  
	
   

  	
  4.03.

  	
  Notice of Defaults

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V COVENANTS AND ACKNOWLEDGMENTS OF THE ISSUER

  	
  6

  
	
   

  	
   

  
	
   

  	
  5.01.

  	
  Terms to be included in Future Guaranteed Debt

  	
  6

  
	
   

  	
  5.02.

  	
  Breaches; False or Misleading Statements

  	
  6

  
	
   

  	
  5.03.

  	
  No Modifications

  	
  6

  
	
   

  	
  5.04.

  	
  Waiver by the Issuer

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI GENERAL PROVISIONS

  	
  6

  
	
   

  	
   

  
	
   

  	
  6.01.

  	
  Amendment and Modification of this Master Agreement

  	
  6

  
	
   

  	
  6.02.

  	
  Notices

  	
  7

  
	
   

  	
  6.03.

  	
  Counterparts

  	
  7

  
	
   

  	
  6.04.

  	
  Severability

  	
  7

  
	
   

  	
  6.05.

  	
  Governing Law

  	
  7

  
	
   

  	
  6.06.

  	
  Venue

  	
  7

  
	
   

  	
  6.07.

  	
  Assignment

  	
  7

  
	
   

  	
  6.08.

  	
  Headings

  	
  8

  
	
   

  	
  6.09.

  	
  Delivery Requirement

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  Annex A

  	
  Terms to be Included in Future Issuances of FDIC Guaranteed Senior Unsecured
  Debt

  	
   

  
	
   

  	
   

  	
   

  
	
  Annex B

  	
  Form of Assignment

  	
   

  



 

















 


MASTER AGREEMENT


 


THIS MASTER AGREEMENT (this
“Master Agreement”) is being entered into as of the date set forth on
the signature page hereto by and between THE FEDERAL DEPOSIT INSURANCE
CORPORATION, a corporation
organized under the laws of the United States of America and having its
principal office in Washington, D.C. (the “FDIC”), and the entity whose
name appears on the signature page hereto (the “Issuer”).


 


RECITALS


 


WHEREAS, on November 21,
2008, the FDIC issued its Final Rule, 12 C.F.R. Part 370 (as may be
amended from time to time, the “Rule”), establishing the Temporary
Liquidity Guarantee Program (the “Program”); and


 


WHEREAS, pursuant to
the Rule, the FDIC will guarantee the payment of certain newly-issued “senior
unsecured debt” (as defined in the Rule, hereinafter “Senior Unsecured Debt”)
issued by an “eligible entity” (as defined in the Rule); and


 


WHEREAS, the Issuer
is an eligible entity for purposes of the Rule and has elected to
participate in the debt guarantee component of the Program.


 


ARTICLE I

DEFINITIONS


 


1.01.                     Certain
Defined Terms. As used in this Master Agreement, the following terms
shall have the following meanings:


 


“Business Day” means any day that is not a Saturday, a Sunday or
a day on which banks are required or authorized by law to be closed in the
State of New York.


 


“FDIC” has the meaning ascribed to such term in the introductory
paragraph to this Master Agreement.


 


“FDIC Guarantee” means the guarantee of payment by the FDIC of
the Senior Unsecured Debt of the Issuer in accordance with the terms of the
Program.


 


“Guarantee Payment” means any payment made by the FDIC under the
Program with respect to Senior Unsecured Debt of the Issuer.


 


“Guarantee Payment Notice” has the meaning ascribed to such term
in Section 2.02.


 


“Issuer” has the meaning ascribed to such term in the
introductory paragraph to this Master Agreement.


 


“Issuer Make-Whole Payments” has the meaning ascribed to such
term in Section 2.03.


 

















 


“Issuer Reports” means reports, registrations, documents,
filings, statements and submissions, together with any amendments thereto, that
the Issuer or any subsidiary of the Issuer is required to file with any
governmental entity.


 


“Master Agreement” means this Master Agreement, together with
all Annexes and amendments hereto.


 


“Material Adverse Effect” means a material adverse effect on the
business, results of operations or financial condition of the Issuer and its
consolidated subsidiaries taken as a whole.


 


“Program” has the meaning ascribed to such term in the Recitals.


 


“Reimbursement Payment” has the meaning ascribed to such term in
Section 2.03.


 


“Relevant Provision” means any provision that is related to the
principal, interest, payment, default or ranking of the Senior Unsecured Debt,
any provision contained in Annex A or any other provision the amendment
of which would require the consent of any or all of the holders of such debt.


 


“Representative” means the trustee, administrative agent, paying
agent or other fiduciary or agent designated as the “Representative” under the
governing documents for any Senior Unsecured Debt of the Issuer subject to the
FDIC Guarantee for purposes of submitting claims or taking other actions under
the Program.


 


“Rule” has the meaning ascribed to such term in the Recitals.


 


“Senior Unsecured Debt” has the meaning ascribed to such term in
the Recitals.


 


1.02.                     Terms
Generally. Words in the singular shall be held to include the plural
and vice versa and words of one gender shall be held to include the other
gender as the context requires, the terms “hereof”, “herein” and “herewith” and
words of similar import shall, unless otherwise stated, be construed to refer
to this Master Agreement and not to any particular provision of this Master
Agreement, and Article, Section and paragraph references are to the
Articles, Sections and paragraphs of this Master Agreement unless otherwise
specified, and the word “including” and words of similar import when used in
this Master Agreement shall mean “including, without limitation”, unless
otherwise specified.


 


ARTICLE II

SENIOR DEBT GUARANTEE


 


2.01.                     Acknowledgement
of Guarantee. The FDIC hereby acknowledges that the Issuer has elected
to participate in the debt guarantee component of the Program and that, as a
result, the Issuer’s Senior Unsecured Debt is guaranteed by the FDIC to the
extent set forth in, and subject to the provisions of, the Rule, and subject to
the terms hereof.


 


2.02.                     Guarantee
Payments. The Issuer understands and acknowledges that any Guarantee
Payment with respect to a particular issue of Senior Unsecured Debt shall be
paid by the FDIC directly to:


 


2

















 


(a)                                  the Representative
with respect to such Senior Unsecured Debt if a Representative has been
designated; or


 


(b)                                 the registered holder(s) of
such Senior Unsecured Debt if no Representative has been designated; or


 


(c)                                  any registered holder
of such Senior Unsecured Debt who has opted out of being represented by the
designated Representative;


 


in each case, pursuant to the claims procedure set forth in the Rule.
In no event shall the FDIC make any Guarantee Payment to the Issuer directly.
The FDIC will provide prompt written notice to the Issuer of any Guarantee
Payment made by the FDIC with respect to any of the Issuer’s Senior Unsecured
Debt (the “Guarantee Payment Notice”).


 


2.03.                     Issuer
Make-Whole Payments. In consideration of the FDIC providing the FDIC
Guarantee with respect to the Senior Unsecured Debt of the Issuer, the Issuer
hereby irrevocably and unconditionally covenants and agrees:


 


(a)                                  to reimburse the FDIC
immediately upon receipt of the Guarantee Payment Notice for all Guarantee
Payments set forth in the Guarantee Payment Notice (the “Reimbursement
Payment”) (without duplication of any amounts actually received by the FDIC
as subrogee or assignee under the governing documents of the relevant Senior
Unsecured Debt of the Issuer);


 


(b)                                 beginning as of the
date of the Issuer’s receipt of the Guarantee Payment Notice, to pay interest
on any unpaid Reimbursement Payments until such Reimbursement Payments shall
have been paid in full by the Issuer, at an interest rate equal to one percent
(1%) per annum above the non-default interest rate payable on the Senior
Unsecured Debt with respect to which the relevant Guarantee Payments were made,
as calculated in accordance with the documents governing such Senior Unsecured
Debt; and


 


(c)                                  to reimburse the FDIC
for all reasonable out-of-pocket expenses, disbursements and advances incurred
or made by it, including costs of collection or other enforcement of the Issuer’s
payment obligations hereunder. Such
expenses shall include the reasonable compensation and expenses, disbursements and
advances of the FDIC’s agents, counsel, accountants and experts.


 


Clauses (a), (b) and (c) above are collectively referred to
herein as the “Issuer Make-Whole Payments”. The indebtedness of the
Issuer to the FDIC arising under this Section 2.03 constitutes a
senior unsecured general obligation of the Issuer, ranking pari passu with other senior unsecured
indebtedness of the Issuer, including without limitation Senior Unsecured Debt
of the Issuer that is subject to the FDIC Guarantee.


 


2.04.                     Waiver of
Defenses. The Issuer hereby waives any defenses it might otherwise have
to its payment obligations under any of the Issuer’s Senior Unsecured Debt or
under Section 2.03 hereof, in each case beginning at such time as
the FDIC has made any Guarantee


 


3

















 


Payment with respect to such Senior Unsecured Debt and continuing until
such time as all Issuer Make-Whole Payments have been received by the FDIC.


 


ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE ISSUER


 


3.01.                     Organization
and Authority. The Issuer
has been duly organized and is validly existing and in good standing under the
laws of its jurisdiction of organization, with the necessary power and
authority to own its properties and conduct its business in all material
respects as currently conducted, except as has not had, or would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse
Effect.


 


3.02.                     Authorization,
Enforceability.


 


(a)                                       The Issuer has
the power and authority to execute and deliver this Master Agreement and to
carry out its obligations hereunder. The execution, delivery and performance by
the Issuer of this Master Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of the Issuer, and no further approval or authorization is required
on the part of the Issuer. This Master Agreement is a valid and binding
obligation of the Issuer enforceable against the Issuer in accordance with its
terms, subject to (i) bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws now or hereafter in effect relating
to creditors’ rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or
in equity).


 


(b)                                      The execution,
delivery and performance by the Issuer of this Master Agreement and the
consummation of the transactions contemplated hereby and compliance by the
Issuer with the provisions hereof, will not (i) violate, conflict with, or
result in a breach of any provision of, or constitute a default (or an event
which, with notice or lapse of time or both, would constitute a default) under,
or result in the termination of, or accelerate the performance required by, or
result in a right of termination or acceleration of, or result in the creation
of, any lien, security interest, charge or encumbrance upon any of the
properties or assets of the Issuer or any subsidiary of the Issuer under, any
of the terms, conditions or provisions of, as applicable, (X) its
organizational documents or (Y) any note, bond, mortgage, indenture, deed
of trust, license, lease, agreement or other instrument or obligation to which
the Issuer or any subsidiary of the Issuer may be bound, or to which the Issuer
or any subsidiary of the Issuer may be subject, or (ii) violate any
statute, rule or regulation or any judgment, ruling, order, writ,
injunction or decree applicable to the Issuer or any subsidiary of the Issuer
or any of their respective properties or assets except, in the case of clauses
(i)(Y) and (ii), for those occurrences that, individually or in the
aggregate, have not had and would not reasonably be expected to have a Material
Adverse Effect.


 


(c)                                       No prior notice
to, filing with, exemption or review by, or authorization, consent or approval
of, any governmental entity is required to be made or obtained by the Issuer in
connection with the execution of this Master Agreement, except for any such
notices, filings, exemptions, reviews, authorizations, consents and approvals
which have been made or obtained


 


4

















 


or the failure of which to make or obtain would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.


 


3.03.                     Reports.
Since December 31, 2007, the Issuer and each subsidiary of the Issuer has
timely filed all Issuer Reports and has paid all fees and assessments due and
payable in connection therewith, except, in each case, as would not
individually or in the aggregate have a Material Adverse Effect. As of their
respective dates of filing, the Issuer Reports complied in all material
respects with all statutes and applicable rules and regulations of all
applicable governmental entities. In the case of each such Issuer Report filed
with or furnished to the Securities and Exchange Commission, if any, such
Issuer Report (a) did not, as of its date, or if amended prior to the date
of this Master Agreement, as of the date of such amendment, contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements made therein, in light of the circumstances under
which they were made, not misleading, (b) complied as to form in all material
respects with all applicable requirements of the Securities Act of 1933, as
amended, and the Securities Exchange Act of 1934, as amended, and (c) no
executive officer of the Issuer or any subsidiary of the Issuer has failed in
any respect to make the certifications required by him or her under Section 302
or 906 of the Sarbanes-Oxley Act of 2002. With respect to all other Issuer
Reports, the Issuer Reports were complete and accurate in all material respects
as of their respective dates.


 


ARTICLE IV

NOTICE AND REPORTING


 


4.01.                     Reports of
Existing and Future Guaranteed Debt. The Issuer shall provide reports
to the FDIC of the amount of all Senior Unsecured Debt subject to the FDIC
Guarantee in accordance with the reporting requirements of the Rule.


 


4.02.                     On-going
Reporting. The Issuer covenants and agrees that, for so long as it has
outstanding Senior Unsecured Debt that is subject to the FDIC Guarantee, it
shall furnish or cause to be furnished to the FDIC (a) monthly reports, in
such form as specified by the FDIC, containing information relating to the
Issuer’s outstanding Senior Unsecured Debt that is subject to the FDIC
Guarantee and such other information as may be requested in such form, and (b) such
other information that the FDIC may reasonably request, such other information
to be delivered within ten (10) Business Days of receipt by the Issuer of
any such request.


 


4.03.                     Notice of
Defaults. The Issuer covenants and agrees that it shall notify the FDIC
within one (1) Business Day of any default in the payment of any principal
or interest when due, without giving effect to any cure period, with respect to
any indebtedness of the Issuer (including debt that is not subject to the FDIC
Guarantee), whether such debt is existing as of the date of this Master
Agreement or is issued subsequent to the date hereof, if such default would
result, or would reasonably be expected to result, in an event of default under
any Senior Unsecured Debt of the Issuer that is subject to the FDIC Guarantee.


 


5
















 


ARTICLE V

COVENANTS AND ACKNOWLEDGMENTS OF THE ISSUER


 


5.01.                     Terms to
be included in Future Guaranteed Debt.  The governing documents for the issuance of
any Senior Unsecured Debt of the Issuer that is subject to the FDIC Guarantee
shall contain each of the provisions set forth in Annex A. If a
particular issue of Senior Unsecured Debt is evidenced solely by a trade
confirmation, the Issuer shall use commercially reasonable efforts to cause the
holder of such debt to execute a written instrument setting forth the holder’s
agreement to be bound by the provisions set forth in Annex A. No
document governing the issuance of Senior Unsecured Debt of the Issuer that is
subject to the FDIC Guarantee shall contain any provision that would result in
the automatic acceleration of the debt upon a default by the Issuer at any time
during which the FDIC Guarantee is in effect or during which Guarantee Payments
are being made in accordance with Section 370.12(b)(2) of the Rule.


 


5.02.                     Breaches;
False or Misleading Statements. The Issuer acknowledges and agrees that
(a) if it is in breach of any provision of this Master Agreement or (b) if
it makes any false or misleading statement or representation in connection with
the Issuer’s participation in the Program, or makes any statement or
representation in bad faith with the intent to influence the actions of the
FDIC, the FDIC may take the enforcement actions provided in Section 370.11
of the Rule, including termination of the Issuer’s participation in the
Program. As set forth in the Rule, any termination of the Issuer’s
participation in the Program would solely have prospective effect, and would in
no event affect the FDIC Guarantee with respect to Senior Unsecured Debt of the
Issuer that is issued and outstanding prior to the termination of the Issuer’s
participation in the Program.


 


5.03.                     No
Modifications. The Issuer covenants and agrees that it shall not amend,
modify, or consent to any amendment or modification, or waive any Relevant
Provision, without the express written consent of the FDIC.


 


5.04.                     Waiver by
the Issuer. The Issuer acknowledges and agrees that if any covenant,
stipulation or other provision of this Master Agreement that imposes on the
Issuer the obligation to make any payment is at any time void under any provision
of applicable law, the Issuer will not make any claim, counterclaim or
institute any proceedings against the FDIC or any of its assignees or subrogees
for any amount paid by the Issuer at any time, and the Issuer waives
unconditionally and absolutely any rights and defenses, legal or equitable,
which arise under or in connection with any such provision and which might
otherwise be available to it for recovery of any amount due under this Master
Agreement.


 


ARTICLE VI

GENERAL PROVISIONS


 


6.01.                     Amendment
and Modification of this Master Agreement. This Master Agreement may be
amended, modified and supplemented in any and all respects, but only by a
written instrument signed by the parties hereto expressly stating that such
instrument is intended to amend, modify or supplement this Master Agreement.


 


6

















 


6.02.       Notices.
Unless otherwise provided herein, all notices and other communications
hereunder shall be in writing and shall be deemed given when mailed, delivered
personally, telecopied (which is confirmed) or sent by an overnight courier
service, such as FedEx, to the parties at the following addresses (or at such
other address for a party as shall be specified by such party by like notice):


 


if to the Issuer, to the address appearing on the signature page hereto


 


	
  if to the
  FDIC, to:

  	
   

  	
  The Federal Deposit Insurance Corporation

  Deputy Director, Receivership Operations Branch

  
	
   

  	
   

  	
  Division of Resolutions and Receiverships

  Attention: Master Agreement

  
	
   

  	
   

  	
  550 17th Street, N.W.

  
	
   

  	
   

  	
  Washington, DC 20429

  



 


6.03.                     Counterparts.
This Master Agreement may be executed in counterparts, which, together, shall
be considered one and the same agreement. Copies of executed counterparts
transmitted by telecopy or other electronic transmission service shall be
considered original, executed counterparts, provided receipt of such
counterparts is confirmed.


 


6.04.                     Severability.
Any term or provision of this Master Agreement that is held by a court of
competent jurisdiction or other authority to be invalid, void or unenforceable
in any situation in any jurisdiction shall not affect the validity or
enforceability of the remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other situation or in
any other jurisdiction. If the final judgment of a court of competent
jurisdiction or other authority declares that any term or provision hereof is
invalid, void or unenforceable, the parties agree that the court making such
determination shall have the power to reduce the scope, duration or
applicability of the term or provision, to delete specific words or phrases, or
to replace any invalid, void or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing
the intention of the invalid or unenforceable term or provision.


 


6.05.                     Governing
Law. Federal law of the United States shall control this Master
Agreement. To the extent that federal law does not supply a rule of
decision, this Master Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York without giving
effect to principles of conflicts of law other than Section 5-1401 of the
New York General Obligations Law. Nothing in this Master Agreement will require
any unlawful action or inaction by either party.


 


6.06.                     Venue.
Each of the parties hereto irrevocably and unconditionally agrees that any
legal action arising under or in connection with this Master Agreement is to be
instituted in the United States District Court in and for the District of
Columbia or in any United States District Court in the jurisdiction where the
Issuer’s principal office is located.


 


6.07.                     Assignment.
Neither this Master Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto (whether by operation
of law or otherwise) without the prior written consent of the other party, and
any purported assignment


 


7

















 


without such consent shall be void. Subject to the preceding sentence,
this Master Agreement shall be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.


 


6.08.                     Headings. The headings and subheadings of the
Table of Contents, Articles and Sections contained in this Master Agreement,
except the terms identified for definition in Article I and elsewhere in
this Master Agreement, are inserted for convenience only and shall not affect
the meaning or interpretation of this Master Agreement or any provision hereof.


 


6.09.                     Delivery
Requirement. The Issuer shall submit a completed, executed and dated
copy of the signature page hereto to the FDIC within five (5) business
days of the date of the Issuer’s election to continue participating in the debt
guarantee component of the Program in accordance with the delivery instructions
set forth on the signature page.


 


[SIGNATURES BEGIN ON NEXT PAGE]


 


8

















 


IN WITNESS WHEREOF,
the Issuer and the FDIC have caused this Master Agreement to be executed by
their respective officers thereunto duly authorized.


 


 


	
   

  	
  THE FEDERAL DEPOSIT INSURANCE

  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NAME OF ISSUER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address of Issuer:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FDIC Certificate Number:

  	
   

  
	
   

  	
   

  
	
   

  	
  RSSD ID or

  
	
   

  	
  OTS Docket Number:

  	
   

  
	
   

  	
   

  
	
   

  	
  Date:

  	
   

  
							



 


Delivery Instructions


 


Please deliver a completed, executed and dated copy of this Signature Page to
the FDIC within five (5) business days of the date of the Issuer’s
election to continue participating in the Debt Guarantee Program. Email is the
preferred method of delivery to MasterAgreement@fdic.gov, or you may
send it by an overnight courier service such as FedEx to Senior Counsel,
Special Issues Unit, E7056, Attention: Master Agreement, 3501 Fairfax Drive,
Arlington, Virginia, 22226.


 

















 


Annex
A


 


Terms to be Included in Future Issuances of
FDIC Guaranteed Senior Unsecured Debt


 


The following provisions shall be included in the governing documents
for the issuance of Senior Unsecured Debt of the Issuer that is subject to the
FDIC Guarantee, in substantially the form presented below, unless otherwise
specified. The appropriate name of the governing document(s) shall be
inserted in place of the term “Agreement” where it appears in this Annex A.


 


Acknowledgement of the FDIC’s Debt Guarantee Program


 


The parties to this Agreement acknowledge that the Issuer has not opted
out of the debt guarantee program (the “Debt Guarantee Program”)
established by the Federal Deposit Insurance Corporation (“FDIC”) under
its Temporary Liquidity Guarantee Program. As a result, this debt is guaranteed under the FDIC Temporary
Liquidity Guarantee Program and is backed by the full faith and credit of the
United States. The details of the FDIC guarantee are provided in the FDIC’s
regulations, 12 CFR Part 370, and at the FDIC’s website,
www.fdic.gov/tlgp. The expiration date of the FDIC’s guarantee is the earlier
of the maturity date of this debt or June 30, 2012. [The
italicized portion of the above provision shall be included exactly as written
above]


 


Representative


 


The [insert name of the: trustee, administrative agent, paying agent or
other fiduciary or agent to be designated as the duly authorized representative
of the debt holders] is designated under this Agreement as the duly authorized
representative of the holder[s] for purposes of making claims and taking other
permitted or required actions under the Debt Guarantee Program (the “Representative”).
Any holder may elect not to be represented by the Representative by providing
written notice of such election to the Representative.


 


Subrogation


 


The FDIC shall be subrogated to all of the rights of the holder[s] and the
Representative, if there shall be one, under this Agreement against the Issuer
in respect of any amounts paid to the holder[s], or for the benefit of the
holder[s], by the FDIC pursuant to the Debt Guarantee Program.


 


Agreement to Execute Assignment upon Guarantee Payment 


 


[If there is a Representative, insert the following:]


 


The holder[s] hereby authorize the Representative, at such time as the
FDIC shall commence making any guarantee payments to the Representative for the
benefit of the holder[s] pursuant to the Debt Guarantee Program, to execute an
assignment in the form attached to this Agreement as Exhibit [      ]
[See Annex B to Master Agreement] pursuant to which the Representative
shall assign to the FDIC its right as Representative to receive any and all
payments from the Issuer under this Agreement on behalf of the holder[s]. The
Issuer hereby consents and agrees that the FDIC is an acceptable transferee for
all or any portion of the indebtedness hereunder for all purposes of this
Agreement and upon any such assignment, the


 

















 


FDIC shall be deemed a holder under this Agreement for all purposes
hereof, and the Issuer hereby agrees to take such reasonable steps as are
necessary to comply with any relevant provision of this Agreement as a result
of such assignment.


 


[or, if (i) there is no Representative or (ii) the holder has
exercised its right not to be represented by the Representative, insert the
following:]


 


The holder[s] hereby agree that, at such time as the FDIC shall
commence making any guarantee payments to the holder[s] pursuant to the Debt
Guarantee Program, the holder[s] shall execute an assignment in the form
attached to this Agreement as Exhibit [    ] [See Annex
B to Master Agreement] pursuant to which the holder[s] shall assign to the
FDIC [its/their] right to receive any and all payments from the Issuer under
this Agreement. The Issuer hereby consents and agrees that the FDIC is an
acceptable transferee for all or any portion of the indebtedness hereunder for
all purposes of this Agreement and upon any such assignment, the FDIC shall be
deemed a holder under this Agreement for all purposes thereof, and the Issuer
hereby agrees to take such reasonable steps as are necessary to comply with any
relevant provision of this Agreement as a result of such assignment.


 


Surrender of Senior Unsecured Debt Instrument to the FDIC


 


If, at any time on or prior to the expiration of the period during
which senior unsecured debt of the Issuer is guaranteed by the FDIC under the
Debt Guarantee Program (the “Effective Period”), payment in full hereunder
shall be made pursuant to the Debt Guarantee Program on the outstanding
principal and accrued interest to such date of payment, the holder shall, or
the holder shall cause the person or entity in possession to, promptly
surrender to the FDIC the security certificate, note or other instrument
evidencing such debt, if any.


 


Notice Obligations to FDIC of Payment Default


 


If, at any time prior to the earlier of (a) full satisfaction of
the payment obligations hereunder, or (b) expiration of the Effective
Period, the Issuer is in default of any payment obligation hereunder, including
timely payment of any accrued and unpaid interest, without regard to any cure
period, the Representative covenants and agrees that it shall provide written
notice to the FDIC within one (1) Business Day of such payment default.


 


Ranking


 


Any indebtedness of the Issuer to the FDIC arising under Section 2.03
of the Master Agreement entered into by the Issuer and the FDIC in connection
with the Debt Guarantee Program will constitute a senior unsecured general
obligation of the Issuer, ranking pari passu
with any indebtedness hereunder.


 


No Event of Default during Time of Timely FDIC Guarantee Payments


 


There shall not be deemed to be an event of default under this
Agreement which would permit or result in the acceleration of amounts due
hereunder, if such an event of default is due solely to the failure of the
Issuer to make timely payment hereunder, provided that the FDIC is


 


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making timely guarantee payments with respect to the debt obligations
hereunder in accordance with 12 C.F.R Part 370.


 


No Modifications without FDIC Consent


 


Without the express written consent of the FDIC, the parties hereto
agree not to amend, modify, supplement or waive any provision in this Agreement
that is related to the principal, interest, payment, default or ranking of the
indebtedness hereunder or that is required to be included herein pursuant to the
Master Agreement executed by the Issuer in connection with the Debt Guarantee
Program.


 


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Annex
B


 


FORM OF ASSIGNMENT(1)


 


This Assignment is made pursuant to the terms of Section [ ] of
the [ ], dated as of      ,
20    , as amended from time to time (the “Agreement”),
between [Representative] (the “Representative”), acting on behalf
of the holders of the debt issued under the Agreement who have not opted out of
representation by the Representative (the “Holders”), and the
[Issuer] (the “Issuer”) with respect to the debt obligations of the
Issuer that are guaranteed under the Debt Guarantee Program. Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned
thereto in the Agreement.


 


For value received, the Representative, on behalf of the Holders (the “Assignor”),
hereby assigns to the Federal Deposit Insurance Corporation (the “FDIC”),
without recourse, all of the Assignor’s respective rights, title and interest
in and to: (a) the promissory note or other instrument evidencing
the debt issued under the Agreement (the “Note”); (b) the
Agreement pursuant to which the Note was issued; and (c) any other
instrument or agreement executed by the Issuer regarding obligations of the
Issuer under the Note or the Agreement (collectively, the “Assignment”).


 


The Assignor hereby certifies that:


 


1.                                       Without
the FDIC’s prior written consent, the Assignor has not:


 


(a)                                       agreed
to any material amendment of the Note or the Agreement or to any material
deviation from the provisions thereof; or


 


(b)                                      accelerated
the maturity of the Note.


 


[Instructions to the Assignor:
If the Assignor has not assigned or transferred any interest in the Note and
related documentation, such Assignor must include the following
representation.]


 


2.                                       The
Assignor has not assigned or otherwise transferred any interest in the Note or
Agreement;


 


[Instructions to the Assignor:
If the Assignor has assigned a partial interest in the Note and related
documentation, the Assignor must include the following representation.]


 


2.                                       The Assignor has
assigned part of its rights, title and interest in the Note and the Agreement
to              pursuant
to the
              agreement,
dated as of             
, 20    ,
between          , as
assignor,
and             ,
as assignee, an executed copy of which is attached hereto.


 


The Assignor acknowledges and agrees that this Assignment is subject to
the Agreement and to the following:


 






(1) This Form of Assignment shall be
modified as appropriate if the assignment is being made by an individual debt
holder rather than the Representative or if the debt being assigned is not in
certificated form or otherwise represented by a written instrument.


 

















 


1.                                       In the event the
Assignor receives any payment under or related to the Note or the Agreement
from a party other than the FDIC (a “Non-FDIC Payment”):


 


(a)                                       after
the date of demand for a guarantee payment on the FDIC pursuant to 12 CFR Part 370,
but prior to the date of the FDIC’s first guarantee payment under the Agreement
pursuant to 12 CFR Part 370, the Assignor shall promptly but in no event
later than five (5) Business Days after receipt notify the FDIC of the
date and the amount of such Non-FDIC Payment and shall apply such payment as
payment made by the Issuer, and not as a guarantee payment made by the FDIC,
and therefore, the amount of such payment shall be excluded from this
Assignment; and


 


(b)                                      after
the FDIC’s first guarantee payment under the Agreement, the Assignor shall
forward promptly to the FDIC such Non-FDIC Payment in accordance with the
payment instructions provided in writing by the FDIC.


 


2.                                       Acceptance by
the Assignor of payment pursuant to the Debt Guarantee Program on behalf of the
Holders shall constitute a release by such Holders of any liability of the FDIC
under the Debt Guarantee Program with respect to such payment.


 


The Person who is executing this Assignment on behalf of the Assignor
hereby represents and warrants to the FDIC that he/she/it is duly authorized to
do so.


 


******


 


IN WITNESS WHEREOF, the Assignor has caused
this instrument to be executed and delivered this
         day
of     , 20    .


 


	
   

  	
  Very truly yours, 

  
	
   

  	
   

  
	
   

  	
  [ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  (Signature)

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  (Print)

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
  (Print)

  
					



 


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Consented to and acknowledged by this
         day of           ,
20    :


 


	
  THE FEDERAL DEPOSIT INSURANCE CORPORATION

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  (Signature)

  	
   

  
	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  (Print)

  	
   

  
	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
  (Print)

  	
   

  
					



 


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