THIS
AMENDMENT AND WAIVER AGREEMENT, dated as of January 30, 2009
(this “ Closing Agreement ”), by and between
Flagstar Bancorp, Inc., a corporation organized under the laws of
the State of Michigan (the “ Company ”) and MP
Thrift Investments L.P. a Delaware limited partnership (“
Purchaser ”, and together with the Company, the
“ Closing Parties ”).
WHEREAS,
the Closing Parties entered into that certain Investment Agreement,
dated as of December 17, 2008 (the “ Original
Agreement ”);
WHEREAS,
in accordance with Section 6.3 of the Original Agreement, the
Closing Parties wish to waive certain closing conditions as and to
the extent provided in Section 2 of this Closing Agreement
(the “ Waiver ”);
WHEREAS,
in accordance with Section 6.3 of the Original Agreement, the
Closing Parties desire to amend certain provisions of the Original
Agreement as and to the extent provided in Sections 3 and 4 of
this Closing Agreement; and
WHEREAS,
in connection with the agreement to grant the Waiver, the Closing
Parties have agreed to the terms of Additional Capital (as defined
below) on the terms set forth herein.
NOW,
THEREFORE, in consideration of the foregoing and the agreements
herein contained, the Closing Parties agree as follows:
1. Pursuant
to Section 1.2(a), the Closing Parties agree that, subject to
the satisfaction of all conditions to Closing set forth in the
Original Agreement or waiver thereof (as set forth herein), the
Closing Date shall be January 30, 2009.
2. The
Closing Parties hereby waive compliance with the closing condition
set forth in Section 1.2(c)(1)(B) of the Original Agreement, solely
with respect to the timing ( i.e. , “prior to the
Closing Date”) of the receipt of proceeds of TARP
Transaction, and hereby amend such section by adding the words
“or on” directly following the words “prior
to”.
3. The
Closing Parties hereby agree to replace the words “not more
than $5 million” in Recital G (Management Purchase) of
the Original Agreement with “not more than approximately
$5.32 million”.
4. The
Closing Parties hereby agree to a delete the following consents and
determinations from the definition of Required Approval in the
Original Agreement: (a) the Required Approval specified in
Company Disclosure Schedule 2.2(f)(k) to the Original
Agreement and (b) the written determination by each of the
FDIC and the OTS as to “institution affiliated party”
status specified in Section 2.2(f) of the Original
Agreement.
