EXECUTION VERSION SC1:4110136.12 REGISTRATION RIGHTS AGREEMENT by and between FLAGSTAR BANCORP, INC. and J.P. MORGAN SECURITIES LLC SANDLER O’NEILL & PARTNERS, L.P. Dated as of July 11, 2016
EXECUTION VERSION
SC1:4110136.12
REGISTRATION RIGHTS AGREEMENT
by and between
FLAGSTAR BANCORP, INC.
and
▇.▇. ▇▇▇▇▇▇ SECURITIES LLC
SANDLER ▇’▇▇▇▇▇ & PARTNERS, L.P.
Dated as of July 11, 2016
SC1:4110136.12
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this “Agreement”) is made and entered into as of
July 11, 2016, by and between Flagstar Bancorp, Inc., a Michigan corporation (the “Company”),
and ▇.▇. ▇▇▇▇▇▇ Securities LLC and Sandler ▇’▇▇▇▇▇ & Partners, L.P., as representatives (the
“Representatives”) of the other several initial purchasers named in Schedule 1 to the Purchase
Agreement (as defined below) dated June 29, 2016 (collectively, the “Initial Purchasers”), each
of whom has agreed to purchase the Company’s 6.125% Senior Notes due 2021 (the “Initial
Notes”) pursuant to the Purchase Agreement.
This Agreement is made pursuant to the Purchase Agreement, dated June 29, 2016 (the
“Purchase Agreement”), among the Company and the Representatives on behalf of the Initial
Purchasers (i) for the benefit of the Initial Purchasers and (ii) for the benefit of the holders from
time to time of the Initial Notes, including the Initial Purchasers. In order to induce the Initial
Purchasers to purchase the Initial Notes, the Company has agreed to provide the registration
rights set forth in this Agreement. The execution and delivery of this Agreement is a condition
to the obligations of the Initial Purchasers set forth in Section 6(k) of the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following capitalized terms shall
have the following meanings:
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: Any day other than a Saturday, Sunday or U.S. federal holiday or
a day on which banking institutions or trust companies located in New York, New York are
authorized or obligated to be closed.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A registered Exchange Offer shall be deemed “Consummated” for
purposes of this Agreement upon the occurrence of (i) the filing and effectiveness under the
Securities Act of the Exchange Offer Registration Statement relating to the Exchange Notes to be
issued in the Exchange Offer, (ii) the maintenance of such Exchange Offer Registration
Statement as continuously effective and the keeping of the Exchange Offer open for a period not
less than the minimum period required pursuant to Section 3(b) hereof, and (iii) the delivery by
the Company to the Registrar under the Indenture of Exchange Notes in the same aggregate
principal amount as the aggregate principal amount of Initial Notes that were tendered during
such period by Holders thereof pursuant to the Exchange Offer.
Effectiveness Target Date: As defined in Section 5 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
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Exchange Offer: The registration by the Company under the Securities Act of the
Exchange Notes pursuant to a Registration Statement pursuant to which the Company offers the
Holders of all outstanding Transfer Restricted Notes the opportunity to exchange all such
outstanding Transfer Restricted Notes held by such Holders for Exchange Notes in an aggregate
principal amount equal to the aggregate principal amount of the Transfer Restricted Notes
tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement relating to
the Exchange Offer, including the related Prospectus.
Exchange Notes: The 6.125% Senior Notes due 2021 to be issued to Holders in
exchange for Transfer Restricted Notes pursuant to this Agreement.
Exempt Resales: The transactions in which the Initial Purchasers propose to sell
the Initial Notes to certain “qualified institutional buyers,” as such term is defined in Rule 144A
under the Securities Act, to certain institutional “accredited investors,” as such term is defined in
Rule 501(a)(1), (2), (3) and (7) of Regulation D under the Securities Act and to certain non-U.S.
persons pursuant to Regulation S under the Securities Act.
FINRA: Financial Industry Regulatory Authority, Inc.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of July 11, 2016, by and between the
Company and Wilmington Trust, National Association, as trustee (the “Trustee”), pursuant to
which the Notes are to be issued, as such Indenture has been or is amended or supplemented
from time to time in accordance with the terms thereof.
Initial Notes: As defined in the preamble hereto.
Initial Placement: The issuance and sale by the Company of the Initial Notes to
the Initial Purchasers pursuant to the Purchase Agreement.
Initial Purchasers: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the Notes.
Person: An individual, partnership, corporation, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, as amended or
supplemented by any prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into such prospectus.
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Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company relating to (a)
an offering of Exchange Notes pursuant to an Exchange Offer or (b) the registration for resale of
Transfer Restricted Notes pursuant to the Shelf Registration Statement, which is filed pursuant to
the provisions of this Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and all exhibits and
material incorporated by reference therein.
Notes: The Initial Notes together with the Exchange Notes.
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4(a) hereof.
Shelf Registration Statement: As defined in Section 4(a) hereof.
Suspension Period: As defined in Section 6 hereof.
Transfer Restricted Notes: Each Initial Note, until the earliest to occur of (a) the
date on which such Initial Note is exchanged in the Exchange Offer for an Exchange Note
entitled to be resold to the public by the Holder thereof without complying with the prospectus
delivery requirements of the Securities Act, (b) the date on which such Initial Note has been
effectively registered under the Securities Act and disposed of in accordance with a Shelf
Registration Statement and (c) the date on which such Initial Note is distributed to the public by
a Broker-Dealer pursuant to the “Plan of Distribution” contemplated by the Exchange Offer
Registration Statement (including delivery of the Prospectus contained therein).
Trust Indenture Act: The Trust Indenture Act of 1939, as amended, which term,
as used herein, includes the rules and regulations of the Commission promulgated thereunder.
Underwritten Registration or Underwritten Offering: A registration in which
securities of the Company are sold to an underwriter for re-offering to the public.
2. Notes Subject to this Agreement.
(a) Transfer Restricted Notes. The securities entitled to the benefits of this
Agreement are the Transfer Restricted Notes.
(b) Holders of Transfer Restricted Notes. A Person is deemed to be a holder of
Transfer Restricted Notes (each, a “Holder”) whenever such Person owns Transfer Restricted
Notes.
3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permissible under applicable law or
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Commission policy (after the procedures set forth in Section 6(a) hereof have been complied
with), the Company shall (i) cause to be filed with the Commission no later than 120 days after
the Closing Date (or if such 120th day is not a Business Day, the next succeeding Business Day),
a Registration Statement under the Securities Act relating to the Exchange Notes and the
Exchange Offer, (ii) use its commercially reasonable efforts to cause such Registration Statement
to become effective no later than 210 days after the Closing Date (or if such 210th day is not a
Business Day, the next succeeding Business Day), (iii) in connection with the foregoing, use its
commercially reasonable efforts to file (A) all pre-effective amendments to such Registration
Statement as may be necessary in order to cause such Registration Statement to become
effective, (B) if applicable, a post-effective amendment to such Registration Statement pursuant
to Rule 430A under the Securities Act and (C) cause all necessary filings in connection with the
registration and qualification of the Exchange Notes to be made under the state securities or blue
sky laws of such jurisdictions as are necessary to permit Consummation of the Exchange Offer,
and (iv) upon the effectiveness of such Registration Statement, commence the Exchange Offer.
The Exchange Offer Registration Statement shall be on the appropriate form permitting
registration of the Exchange Notes to be offered in exchange for the Transfer Restricted Notes
and to permit resales of Initial Notes held by Broker-Dealers as contemplated by Section 3(c)
hereof.
(b) The Company shall use commercially reasonable efforts to cause the Exchange
Offer Registration Statement to be effective continuously and shall keep the Exchange Offer
open for a period of not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided, however, that in no event shall
such period be less than 20 Business Days after the date notice of the Exchange Offer is mailed
to the Holders. The Company shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the Exchange Notes shall be included
in the Exchange Offer Registration Statement. The Company shall use its commercially
reasonable efforts to cause the Exchange Offer to be Consummated as promptly as reasonably
practicable after the Exchange Offer Registration Statement has become effective, but in no
event later than 240 days after the Closing Date (or if such 240th day is not a Business Day, the
next succeeding Business Day).
(c) The Company shall indicate in a “Plan of Distribution” section contained in the
Prospectus forming a part of the Exchange Offer Registration Statement that any Broker-Dealer
who holds Initial Notes that are Transfer Restricted Notes and that were acquired for its own
account as a result of market-making activities or other trading activities (other than Transfer
Restricted Notes acquired directly from the Company), may exchange such Initial Notes
pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be an
“underwriter” within the meaning of the Securities Act and must, therefore, deliver a prospectus
meeting the requirements of the Securities Act in connection with any resales of the Exchange
Notes received by such Broker-Dealer in the Exchange Offer, which prospectus delivery
requirement may be satisfied by the delivery by such Broker-Dealer of the Prospectus contained
in the Exchange Offer Registration Statement. Such “Plan of Distribution” section shall also
contain all other information with respect to such resales by Broker-Dealers that the Commission
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may require in order to permit such resales pursuant thereto, but such “Plan of Distribution” shall
not name any such Broker-Dealer or disclose the amount of Initial Notes held by any such
Broker-Dealer except to the extent required by the Commission.
(d) The Company shall use its commercially reasonable efforts to keep the Exchange
Offer Registration Statement continuously effective, supplemented and amended as required by
the provisions of Section 6(c) hereof to the extent necessary to ensure that it is available for
resales of Initial Notes acquired by Broker-Dealers for their own accounts as a result of market-
making activities or other trading activities, and to ensure that it conforms with the requirements
of this Agreement, the Securities Act and the policies, rules and regulations of the Commission
as announced from time to time, for a period ending on the earlier of (i) 180 days from the date
on which the Exchange Offer Registration Statement is declared effective and (ii) the date on
which a Broker-Dealer is no longer required to deliver a prospectus in connection with market-
making or other trading activities.
(e) The Company shall provide sufficient copies of the latest version of the
Prospectus to Broker-Dealers promptly upon request at any time during such 180-day (or shorter
as provided in the foregoing sentence) period in order to facilitate such resales.
4. Shelf Registration.
(a) Shelf Registration. If (i) the Company is not required to file an Exchange Offer
Registration Statement or to consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy (after the procedures set forth in Section 6(a)
hereof have been complied with), (ii) for any reason the Exchange Offer is not Consummated
within 240 days after the Closing Date (or if such 240th day is not a Business Day, the next
succeeding Business Day), or (iii) with respect to any Holder of Transfer Restricted Notes (A)
such Holder is prohibited by applicable law or Commission policy from participating in the
Exchange Offer, or (B) such Holder may not resell the Exchange Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and that the Prospectus contained
in the Exchange Offer Registration Statement is not appropriate or available for such resales by
such Holder, or (C) such Holder is a Broker-Dealer and holds Initial Notes acquired directly
from the Company or one of their affiliates, then, upon such Holder’s request, the Company
shall:
(x) cause to be filed a shelf registration statement pursuant to Rule 415 under the
Securities Act, which may be an amendment to the Exchange Offer Registration Statement (in
either event, the “Shelf Registration Statement”), no later than the later of (i) the 90th day after
the date such filing obligation arises and (ii) the 240th day after the Closing Date (or if such 240th
day is not a Business Day, the next succeeding Business Day) (such earliest date being the
“Shelf Filing Deadline”), which Shelf Registration Statement shall provide for resales of all
Transfer Restricted Notes the Holders of which shall have provided the information required
pursuant to Section 4(b) hereof; and
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(y) use its commercially reasonable efforts to cause such Shelf Registration Statement
to be declared effective by the Commission on or before the 90th day after the Shelf Filing
Deadline (or if such 90th day is not a Business Day, the next succeeding Business Day).
The Company shall use its commercially reasonable efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended as required by the
provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is available for
resales of Initial Notes by the Holders of Transfer Restricted Notes entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the Commission as announced from time
to time, for a period of at least one year following the effective date of such Shelf Registration
Statement (or shorter period that will terminate when all the Initial Notes covered by such Shelf
Registration Statement have been sold pursuant to such Shelf Registration Statement).
(b) Provision by Holders of Certain Information in Connection with the Shelf
Registration Statement. No Holder of Transfer Restricted Notes may include any of its Transfer
Restricted Notes in any Shelf Registration Statement pursuant to this Agreement unless and until
such Holder furnishes to the Company in writing, within 10 Business Days after receipt of a
request therefor, such information as the Company may reasonably request for use in connection
with any Shelf Registration Statement or Prospectus or preliminary Prospectus included therein.
Each Holder as to which any Shelf Registration Statement is being effected agrees to furnish
promptly to the Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not materially misleading.
5. Additional Interest. If (i) any of the Registration Statements required by this
Agreement is not filed with the Commission on or prior to the last date specified for such filing
in this Agreement, (ii) any of such Registration Statements has not been declared effective by the
Commission on or prior to the last date specified for such effectiveness in this Agreement (the
“Effectiveness Target Date”), (iii) the Exchange Offer has not been Consummated within 30
Business Days after the Effectiveness Target Date with respect to the Exchange Offer
Registration Statement or (iv) any Registration Statement required by this Agreement is filed and
declared effective but shall thereafter cease to be effective or fail to be usable for its intended
purpose (except as specifically permitted herein, including with respect to any Suspension Period
as provided in Section 6(a) hereof) without being succeeded immediately by a post-effective
amendment to such Registration Statement that cures such failure and that is itself immediately
declared effective (each such event referred to in clauses (i) through (iv), a “Registration
Default”), the Company hereby agrees that the interest rate borne by the Transfer Restricted
Notes shall be increased by 0.25% per annum during the 90-day period immediately following
the occurrence of any Registration Default and shall increase by 0.25% per annum at the end of
each subsequent 90-day period, but in no event shall such increase exceed 1.00% per annum.
Following the earlier of (x) the cure of all Registration Defaults relating to any particular
Transfer Restricted Notes and (y) the day on which there are no outstanding Transfer Restricted
Notes, the interest rate borne by the relevant Transfer Restricted Notes will be reduced to the
original interest rate borne by such Transfer Restricted Notes; provided, however, that, if after
any such reduction in interest rate, a different Registration Default occurs, the interest rate borne
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by the relevant Transfer Restricted Notes shall again be increased pursuant to the foregoing
provisions.
All obligations of the Company set forth in the preceding paragraph that are
outstanding with respect to any Transfer Restricted Note at the time such note ceases to be a
Transfer Restricted Note shall survive until such time as all such obligations with respect to such
note shall have been satisfied in full.
Notwithstanding the foregoing, (i) the amount of additional interest payable shall
not increase because more than one Registration Default has occurred and is pending and (ii) a
Holder of Transfer Restricted Notes that has not timely delivered all information to the Company
pursuant to Section 4(b) hereof shall not be entitled to additional interest with respect to a
Registration Default that pertains to such Shelf Registration Statement following the time such
Holder elects not to include information or following the deadline to timely deliver information
to the Company pursuant to Section 4(b) hereof.
6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with the Exchange Offer,
the Company shall comply with all of the provisions of Section 6(c) hereof, shall use its
commercially reasonable efforts to effect such exchange to permit the sale of Transfer Restricted
Notes being sold in accordance with the intended method or methods of distribution thereof, and
shall comply with the following provision:
(i) As a condition to its participation in the Exchange Offer pursuant to the
terms of this Agreement, each Holder of Transfer Restricted Notes shall furnish, upon the request
of the Company, prior to the Consummation thereof, a written representation to the Company
(which may be contained in the letter of transmittal contemplated by the Exchange Offer
Registration Statement) to the effect that (A) it is not an affiliate of the Company, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement or understanding with any
Person to participate in, a distribution of the Exchange Notes to be issued in the Exchange Offer
and (C) it is acquiring the Exchange Notes in its ordinary course of business. In addition, all
such Holders of Transfer Restricted Notes shall otherwise cooperate in the Company’s
preparations for the Exchange Offer. Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Exchange Offer to participate in a distribution of
the notes to be acquired in the Exchange Offer (1) could not under Commission policy as in
effect on the date of this Agreement rely on the position of the Commission enunciated in
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the Commission’s letter to Shearman & Sterling dated
July 2, 1993, and similar no-action letters (which may include any no-action letter obtained
pursuant to clause (i) above), and (2) must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary resale transaction and that
such a secondary resale transaction should be covered by an effective registration statement
containing the selling note holder information required by Item 507 or 508, as applicable, of
Regulation S-K if the resales are of Exchange Notes obtained by such Holder in exchange for
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Initial Notes acquired by such Holder directly from the Company.
(b) Shelf Registration Statement. In connection with any requirement to file a Shelf
Registration Statement, the Company shall comply with all the provisions of Section 6(c) hereof
and shall use its commercially reasonable efforts to effect such registration to permit the sale of
the Transfer Restricted Notes being sold in accordance with the intended method or methods of
distribution thereof, and pursuant thereto the Company will use commercially reasonable efforts
to prepare and file with the Commission a Registration Statement relating to the registration on
any appropriate form under the Securities Act, which form shall be available for the offer and
sale of the Transfer Restricted Notes in accordance with the intended method or methods of
distribution thereof.
(c) General Provisions. In connection with any Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of Transfer Restricted Notes
(including, without limitation, any Registration Statement and the related Prospectus required to
permit resales of Initial Notes by Broker-Dealers), the Company shall:
(i) use its commercially reasonable efforts to keep such Registration
Statement continuously effective and provide all requisite financial statements as required by the
Securities Act or any regulation thereunder for the period specified in Section 3 or 4 hereof, as
applicable; upon the occurrence of any event that would cause any such Registration Statement
or the Prospectus contained therein (A) to contain a material misstatement or omission or (B) not
to be effective and usable for resale of Transfer Restricted Notes during the period required by
this Agreement, the Company shall file promptly an appropriate amendment to such Registration
Statement (or, if permitted, file with the Commission a document incorporated by reference into
the Registration Statement), in the case of clause (A), correcting any such misstatement or
omission, and, in the case of either clause (A) or (B), use its commercially reasonable efforts to
cause such amendment to be declared effective and such Registration Statement and the related
Prospectus to become usable for their intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and post-effective
amendments to the applicable Registration Statement as may reasonably be necessary to keep the
Registration Statement effective for the applicable period set forth in Section 3 or 4 hereof, as
applicable, or such shorter period as will terminate when all Transfer Restricted Notes covered
by such Registration Statement have been sold; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under
the Securities Act, and to comply with the applicable provisions of Rules 424 and 430A under
the Securities Act in a timely manner; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Registration Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders reasonably promptly
and, if requested by such Persons, to confirm such advice in writing, (A) when the Prospectus or
any Prospectus supplement or post-effective amendment has been filed, and, with respect to any
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Registration Statement or any post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement under the Securities Act or of the suspension by any state securities
commission of the qualification of the Transfer Restricted Notes for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes any statement of a material fact
made in the Registration Statement, the Prospectus, any amendment or supplement thereto, or
any document incorporated by reference therein untrue, or that requires the making of any
additions to or changes in the Registration Statement or the Prospectus in order to make the
statements therein not misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state securities commission or
other regulatory authority shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Notes under state securities or blue sky laws, the
Company shall use its commercially reasonable efforts to obtain the withdrawal or lifting of such
order as soon as practicable thereafter;
(iv) furnish without charge to each selling Holder named in any Registration
Statement and each of the underwriter(s), if any, before filing with the Commission, copies of
any Registration Statement or any Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus (including all documents
incorporated by reference after the initial filing of such Registration Statement but excluding
exhibits thereto to the extent such documents are available through the Commission’s ▇▇▇▇▇
system), which documents will be subject to the review and comment of such Holders and
underwriter(s), if any, in connection with such sale, if any, for a period of at least three Business
Days, and the Company shall use its commercially reasonable efforts to reflect in any such
Registration Statement or Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus (including all such documents incorporated by reference) any
reasonable comments that such Holders and underwriters, if any, propose;
(v) promptly prior to the filing of any document that is to be incorporated by
reference into a Registration Statement or Prospectus, provide copies of such document to each
selling Holder named in any such Registration Statement, and to the underwriter(s), if any, make
the Company’s representatives available for discussion of such document prior to the filing
thereof as such selling Holders or underwriter(s), if any, reasonably may request;
(vi) make available, subject to customary confidentiality agreements, at
reasonable times for inspection by the managing underwriter(s), if any, participating in any
disposition pursuant to such Registration Statement and any attorney or accountant retained by
any of the underwriter(s) in connection therewith, all financial and other records, pertinent
corporate documents and properties of the Company and cause the Company’s officers, directors
and employees to supply all information reasonably requested by any such Holder, underwriter,
attorney or accountant in connection with such Registration Statement or any post-effective
amendment thereto subsequent to the filing thereof and prior to its effectiveness and to
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participate in meetings with investors to the extent requested by the managing underwriter(s), if
any;
(vii) if requested by any selling Holders or the underwriter(s), if any, promptly
incorporate in any Registration Statement or Prospectus, pursuant to a supplement or post-
effective amendment if necessary, such information as such selling Holders and underwriter(s), if
any, may reasonably request to have included therein, including, without limitation, information
relating to the “Plan of Distribution” of the Transfer Restricted Notes, information with respect
to the principal amount of Transfer Restricted Notes being sold to such underwriter(s), the
purchase price being paid therefor and any other terms of the offering of the Transfer Restricted
Notes to be sold in such offering; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Company is notified of the matters to
be incorporated in such Prospectus supplement or post-effective amendment;
(viii) use commercially reasonable efforts to cause the Transfer Restricted Notes
covered by the Registration Statement to be rated by the same rating agency or agencies that
rated the Initial Notes at issuance, if so requested by the Holders of a majority in aggregate
principal amount of Notes covered thereby or the underwriter(s), if any;
(ix) furnish or otherwise make available to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the Registration Statement, as first
filed with the Commission, and of each amendment thereto, including financial statements and
schedules, all documents incorporated by reference therein and all exhibits (including exhibits
incorporated therein by reference);
(x) deliver to each selling Holder and each of the underwriter(s), if any,
without charge, as many copies of the Prospectus (including each preliminary prospectus) and
any amendment or supplement thereto as such Persons reasonably may request; the Company
hereby consents to the use of the Prospectus and any amendment or supplement thereto by each
of the selling Holders and each of the underwriter(s), if any, in connection with the offering and
the sale of the Transfer Restricted Notes covered by the Prospectus or any amendment or
supplement thereto;
(xi) enter into such agreements (including an underwriting agreement), and
make such representations and warranties, and take all such other reasonable actions in
connection therewith in order to expedite or facilitate the disposition of the Transfer Restricted
Notes pursuant to any Registration Statement contemplated by this Agreement, all to such extent
as may be reasonably requested by the Holders of at least 20% aggregate principal amount of the
Transfer Restricted Notes or any underwriter in connection with any sale or resale pursuant to
any Registration Statement contemplated by this Agreement; and, whether or not an
underwriting agreement is entered into and whether or not the registration is an Underwritten
Registration, the Company shall:
(A) furnish to each selling Holder and each underwriter, if any, in such
substance and scope as they may request and as are customarily made by the Company to
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underwriters in similar underwritten offerings, upon the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated the date of effectiveness of the Shelf
Registration Statement, signed by appropriate officers of the Company,
confirming, as of the date thereof, the matters set forth in paragraphs (i), (ii) and
(iii) of Section 6(d) of the Purchase Agreement and such other matters as such
parties may reasonably request;
(2) opinions and a disclosure letter, each dated the date of
effectiveness of the Shelf Registration Statement, as the case may be, in
customary form, of counsel for the Company, covering the matters set forth in
Section 6(f) and (g) of the Purchase Agreement and such other matter as such
parties may reasonably request; and
(3) customary comfort letters, dated the date of effectiveness of the
Shelf Registration Statement, of PricewaterhouseCoopers LLP and ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP, the independent registered public accounting firms for the
Company, with respect to audited financial statements included or incorporated
by reference in the Shelf Registration Statement, in the customary form and
covering matters of the type customarily requested to be covered in comfort
letters by underwriters in connection with similar underwritten offerings, and
covering or affirming the matters set forth in the comfort letters delivered
pursuant to Section 6(e) of the Purchase Agreement;
(B) set forth in full or incorporate by reference in the underwriting agreement,
if any, the indemnification provisions and procedures of Section 8 hereof with respect to
all parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be reasonably
requested by such parties to evidence compliance with Section 6(c)(xi)(A) hereof and
with any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company pursuant to this Section 6(c)(xi), if any.
If at any time the representations and warranties of the Company contemplated in
Section 6(c)(xi)(A)(1) hereof cease to be true and correct, the Company shall so advise the
underwriter(s), if any, and each selling Holder promptly and, if requested by such Persons, shall
confirm such advice in writing;
(xii) prior to any public offering of Transfer Restricted Notes, cooperate with
the selling Holders, the underwriter(s), if any, and their respective counsel in connection with the
registration and qualification of the Transfer Restricted Notes under the state securities or blue
sky laws of such jurisdictions as the selling Holders or underwriter(s), if any, may request and do
any and all other acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Notes covered by the Shelf Registration Statement;
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provided, however, that the Company shall not be required to register or qualify as a foreign
corporation where it is not then so qualified or to take any action that would subject it to the
service of process in suits or to taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not then so subject;
(xiii) shall issue, upon the request of any Holder of Initial Notes covered by the
Shelf Registration Statement, Exchange Notes having an aggregate principal amount equal to the
aggregate principal amount of Initial Notes surrendered to the Company by such Holder in
exchange therefor or being sold by such Holder; such Exchange Notes to be registered in the
name of such Holder or in the name of the purchaser(s) of such Exchange Notes, as the case may
be; in return, the Initial Notes held by such Holder shall be surrendered to the Company for
cancellation;
(xiv) cooperate with the selling Holders and the underwriter(s), if any, to
facilitate the timely preparation and delivery of certificates representing Transfer Restricted
Notes to be sold and not bearing any restrictive legends; and enable such Transfer Restricted
Notes to be in such denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least two Business Days prior to any sale of Transfer
Restricted Notes made by such Holders or underwriter(s);
(xv) use its commercially reasonable efforts to cause the Transfer Restricted
Notes covered by the Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or
the underwriter(s), if any, to consummate the disposition of such Transfer Restricted Notes,
subject to the proviso contained in Section 6(c)(xii) hereof;
(xvi) if any fact or event contemplated by Section 6(c)(iii)(D) hereof shall exist
or have occurred, prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers of Transfer Restricted
Notes, the Prospectus will not contain an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein not misleading;
(xvii) use its commercially reasonable efforts to provide a CUSIP number for all
Notes not later than the effective date of the Registration Statement covering such Notes, provide
the Trustee under the Indenture with printed certificates for such Notes which are in a form
eligible for deposit with the Depository Trust Company and take all other action necessary to
ensure that all such Notes are eligible for deposit with the Depository Trust Company;
(xviii) cooperate and assist in any filings required to be made with FINRA and in
the performance of any due diligence investigation by any underwriter that is required to be
retained in accordance with the rules and regulations of FINRA;
(xix) otherwise use its commercially reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make generally available to its note
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holders, as soon as practicable, a consolidated earnings statement meeting the requirements of
Rule 158 (which need not be audited) for the twelve-month period (A) commencing at the end of
any fiscal quarter in which Transfer Restricted Notes are sold to underwriters in a firm
commitment or best efforts Underwritten Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Company’s first fiscal quarter commencing after
the effective date of the Registration Statement; and
(xx) cause the Indenture to be qualified under the Trust Indenture Act not later
than the effective date of the first Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the Holders of Notes to effect such changes
to the Indenture as may be required for such Indenture to be so qualified in accordance with the
terms of the Trust Indenture Act; and to execute and use its commercially reasonable best efforts
to cause the Trustee to execute, all documents that may be required to effect such changes and all
other forms and documents required to be filed with the Commission to enable such Indenture to
be so qualified in a timely manner;
(xxi) provide promptly to each Holder upon request each document filed with
the Commission pursuant to the requirements of Section 13 and Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Note that the Company
may suspend the use or effectiveness of the applicable Registration Statement, or extend the time
period in which it is required to file the applicable Registration Statement, for up to 60
consecutive days and up to 120 days in the aggregate, in each case in any 12-month period (a
“Suspension Period”), if the Company determines that any fact of the kind described in Section
6(c)(iii)(D) hereof exists, and that upon receipt of any notice to such effect from the Company
such Holder will forthwith discontinue disposition of Transfer Restricted Notes pursuant to the
applicable Registration Statement until such Holder’s receipt of the copies of the supplemented
or amended Prospectus contemplated by Section 6(c)(xvi) hereof, or until it is advised in writing
(the “Advice”) by the Company that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Company, each Holder will deliver to the Company (at the
Company’s expense) all copies, other than permanent file copies then in such Holder’s
possession, of the Prospectus covering such Transfer Restricted Notes that was current at the
time of receipt of such notice. In the event the Company shall give any such notice, the time
period regarding the effectiveness of such Registration Statement set forth in Section 3 or 4
hereof, as applicable, shall be extended by the number of days during the Suspension Period;
provided, however, that no such suspension or extension shall be taken into account in
determining whether additional interest is due pursuant to Section 5 hereof or the amount of such
additional interest, it being agreed that the Company’s option to suspend use of a Registration
Statement pursuant to this paragraph shall be treated as a Registration Default for purposes of
Section 5 hereof.
(d) Following the Consummation of the Exchange Offer or the effectiveness of an
applicable Shelf Registration Statement and for so long as the Notes are outstanding, if, in the
judgment of the Representatives, the Initial Purchasers or any of their affiliates (as such term is
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defined in the Securities Act) are required to deliver a prospectus in connection with sales of, or
market-making activities with respect to, the Notes, the Company agrees to periodically amend
the applicable Registration Statement so that the information contained therein complies with the
requirements of Section 10 of the Securities Act, to amend the applicable Registration Statement
or supplement the related prospectus or the documents incorporated therein when necessary to
reflect any material changes in the information provided therein so that the Registration
Statement and the prospectus will not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in the light of the
circumstances existing as of the date the prospectus is so delivered, not misleading and to
provide the Initial Purchasers with copies of each amendment or supplement filed and such other
documents as the Initial Purchasers may reasonably request. The Company hereby expressly
acknowledges that the indemnification and contribution provisions of Section 8 hereof are
specifically applicable and relate to each offering memorandum, Registration Statement,
prospectus, amendment or supplement referred to in this Section 6(d).
7. Registration Expenses.
(a) All reasonable and documented expenses incident to the Company’s performance
of or compliance with this Agreement will be borne by the Company, regardless of whether a
Registration Statement becomes effective, including, without limitation: (i) all registration and
filing fees and expenses (including filings made by any Initial Purchaser or Holder with FINRA
(and, if applicable, the fees and expenses of any “qualified independent underwriter” and one
counsel that may be required by the rules and regulations of FINRA)); (ii) all fees and expenses
of compliance with federal securities and state securities or blue sky laws; (iii) all expenses of
printing (including printing certificates for the Exchange Notes to be issued in the Exchange
Offer and printing of Prospectuses), messenger and delivery services and telephone; (iv) all fees
and disbursements of counsel for the Company and, as provided in Section 7(b) hereof, the
Holders of Transfer Restricted Notes; (v) all application and filing fees in connection with listing
the Exchange Notes on a securities exchange or automated quotation system pursuant to the
requirements thereof; and (vi) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Company will, in any event, bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing legal or accounting
duties), the expenses of any annual audit and the fees and expenses of any Person, including
special experts, retained by the Company.
(b) In connection with any Registration Statement required by this Agreement
(including, without limitation, the Exchange Offer Registration Statement and the Shelf
Registration Statement), the Company will reimburse the Initial Purchasers and the Holders of
Transfer Restricted Notes being tendered in the Exchange Offer and/or resold pursuant to the
“Plan of Distribution” contained in the Exchange Offer Registration Statement or registered
pursuant to the Shelf Registration Statement, as applicable, for the reasonable fees and
disbursements not to exceed $27,500 of not more than one counsel as may be chosen by the
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Holders of a majority in principal amount of the Transfer Restricted Notes for whose benefit
such Registration Statement is being prepared.
8. Indemnification.
(a) The Company agrees to indemnify and hold harmless (i) each Holder and (ii) each
Person, if any, who controls (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) any Holder (any of the Persons referred to in this clause (ii) being
hereinafter referred to as a “controlling person”) and (iii) the respective officers, directors,
partners, employees, representatives and agents of any Holder or any controlling person (any
Person referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an “Indemnified
Holder”), to the fullest extent lawful, from and against any and all losses, claims, damages,
liabilities, judgments, actions and expenses (including, without limitation, and as incurred,
reimbursement of all reasonable costs of investigating, preparing, pursuing, settling,
compromising, paying or defending any claim or action, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, including the reasonable fees and
expenses of counsel to any Indemnified Holder), joint or several, directly or indirectly caused by,
related to, based upon, arising out of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or Prospectus (or any
amendment or supplement thereto), or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made in the case of the Prospectus, not misleading,
except insofar as such losses, claims, damages, liabilities or expenses are caused by an untrue
statement or omission or alleged untrue statement or omission that is made in reliance upon and
in conformity with information relating to any of the Holders furnished in writing to the
Company by any of the Holders expressly for use therein. This indemnity agreement shall be in
addition to any liability which the Company may otherwise have.
In case any action or proceeding (including any governmental or regulatory
investigation or proceeding) shall be brought or asserted against any of the Indemnified Holders
with respect to which indemnity may be sought against the Company, such Indemnified Holder
(or the Indemnified Holder controlled by such controlling person) shall promptly notify the
Company in writing; provided, however, that the failure to give such notice shall not relieve the
Company of its obligations pursuant to this Agreement except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure.
Notwithstanding the foregoing sentence, in case any such action or proceeding shall be brought
against any Indemnified Holder and it shall notify the Company of the commencement thereof,
the Company shall be entitled to participate therein and, to the extent that the Company shall
elect, jointly with any other indemnifying party similarly notified, by written notice delivered to
the indemnified party promptly after receiving the aforesaid notice from such Indemnified
Holder, to assume the defense thereof with counsel reasonably satisfactory to such Indemnified
Holder (who shall not, except with the consent of the Indemnified Holder, be counsel to the
Company); provided, however, if the defendants in any such action include both the Indemnified
Holder and the indemnifying party and an Indemnified Holder shall have reasonably concluded
that a conflict may arise between the positions of the indemnifying party and the Indemnified
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Holder in conducting the defense of any such action or that there may be legal defenses available
to it and/or other Indemnified Holders which are different from or additional to those available to
the indemnifying party, the Indemnified Holder or Holders shall have the right to select separate
counsel to assume such legal defenses and to otherwise participate in the defense of such action
on behalf of such Indemnified Holder or Holders. After notice from the Company to such
Indemnified Holder of its election so to assume the defense thereof, the Company shall not be
liable under this Section 8 to such Indemnified Holder for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by such Indemnified Holder, in
connection with the defense thereof other than reasonable costs of investigation unless (i) the
Indemnified Holder shall have employed separate counsel in accordance with the proviso to the
immediately preceding sentence representing the Indemnified Holders who are parties to such
action or (ii) the indemnifying party shall not have employed counsel satisfactory to the
Indemnified Holder to represent the Indemnified Holder within a reasonable time after notice of
commencement of the action, in each of which cases the fees and expenses of counsel shall be at
the expense of the indemnifying party. The Company shall not be liable for any settlement
effected without its prior written consent, which will not be unreasonably withheld. The
Company shall not, without the prior written consent of each Indemnified Holder, settle or
compromise or consent to the entry of judgment in or otherwise seek to terminate any pending or
threatened action, claim, litigation or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not any Indemnified Holder is a party
thereto), unless such settlement, compromise, consent or termination (i) includes an
unconditional release of each Indemnified Holder from all liability arising out of such action,
claim, litigation or proceeding and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of the Indemnified Holder.
(b) Each Holder of Transfer Restricted Notes agrees, severally and not jointly, to
indemnify and hold harmless the Company and its directors and officers who sign a Registration
Statement, and any Person controlling (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) the Company and the respective officers, directors, partners,
employees, representatives and agents of each such Person, to the same extent as the foregoing
indemnity from the Company to each of the Indemnified Holders, but only with respect to claims
and actions based on information relating to such Holder furnished in writing by such Holder
expressly for use in any Registration Statement. In case any action or proceeding shall be
brought against the Company, or their respective directors or officers or any such controlling
person in respect of which indemnity may be sought against a Holder of Transfer Restricted
Notes, such Holder shall have the rights and duties given the Company, its directors and officers
and such controlling person shall have the rights and duties given to each Holder by the
preceding paragraph.
(c) If the indemnification provided for in this Section 8 is unavailable to an
indemnified party under Section 8(a) or (b) hereof (other than by reason of exceptions provided
in those Sections) in respect of any losses, claims, damages, liabilities, judgments, actions or
expenses referred to therein, then each applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such indemnified party
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as a result of such losses, claims, damages, liabilities or expenses in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one hand, and the
Holders, on the other hand, from the Initial Placement (which in the case of the Company shall
be deemed to be equal to the gross proceeds to the Company from the Initial Placement (before
deducting expenses)), or if such allocation is not permitted by applicable law, the relative fault of
the Company, on the one hand, and the Holders, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages, liabilities or expenses,
as well as any other relevant equitable considerations. The relative fault of the Company on the
one hand and of the Indemnified Holder on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the Company, on the
one hand, or the Indemnified Holders, on the other hand, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include, subject to the limitations set
forth in the second paragraph of Section 8(a) hereof, any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending any action or
claim.
The Company and each Holder of Transfer Restricted Notes agree that it would
not be just and equitable if contribution pursuant to this Section 8(c) were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations referred to in
the immediately preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions of this
▇▇▇▇▇▇▇ ▇, ▇▇▇▇ of the Holders (and its related Indemnified Holders) shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the dollar amount of
the proceeds received by such Holder with respect to any Transfer Restricted Notes exceeds the
amount of any damages which such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders’ obligations to contribute pursuant to this Section 8(c) are
several in proportion to the respective principal amount of Initial Notes held by each of the
Holders hereunder and not joint.
9. Rule 144A. The Company hereby agrees with each Holder, if any time during the
period of one year from the date of this Agreement the Company is not subject to the information
requirements of the Exchange Act, for so long as any Transfer Restricted Notes remain
outstanding, to make available to any Holder or beneficial owner of Transfer Restricted Notes in
connection with any sale thereof and any prospective purchaser of such Transfer Restricted
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Notes from such Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Securities Act in order to permit resales of such Transfer Restricted Notes pursuant to Rule
144A under the Securities Act.
10. Participation in Underwritten Registrations. No Holder may participate in any
Underwritten Registration hereunder unless such Holder (a) agrees to sell such Holder’s Transfer
Restricted Notes on the basis provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up
letters and other documents required under the terms of such underwriting arrangements.
11. Selection of Underwriters. The Holders of Transfer Restricted Notes covered by
the Shelf Registration Statement who desire to do so may sell such Transfer Restricted Notes in
an Underwritten Offering. In any such Underwritten Offering, the investment banker(s) and
managing underwriter(s) that will administer such offering will be selected by the Holders of a
majority in aggregate principal amount of the Transfer Restricted Notes included in such
offering; provided, however, that such investment banker(s) and managing underwriter(s) must
be reasonably satisfactory to the Company.
12. Miscellaneous.
(a) Remedies. The Company hereby agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agree to waive the defense in any action for specific performance that a
remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not on or after the date of this
Agreement enter into any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company’s securities under any
agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. The Company will not take any action, or
permit any change to occur, with respect to the Notes that would materially and adversely affect
the ability of the Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given unless the Company has (i) in the case of Section 5 hereof
and this Section 12(d)(i), obtained the written consent of Holders of all outstanding Transfer
Restricted Notes and (ii) in the case of all other provisions hereof, obtained the written consent
of Holders of a majority of the outstanding principal amount of Transfer Restricted Notes
(excluding any Transfer Restricted Notes held by the Company or its respective Affiliates).
Notwithstanding the foregoing, a waiver or consent to departure from the provisions hereof that
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relates exclusively to the rights of Holders whose notes are being tendered pursuant to the
Exchange Offer and that does not affect directly or indirectly the rights of other Holders whose
notes are not being tendered pursuant to such Exchange Offer may be given by the Holders of a
majority of the outstanding principal amount of Transfer Restricted Notes being tendered or
registered; provided, however, that, with respect to any matter that directly or indirectly affects
the rights of any Initial Purchaser hereunder, the Company shall obtain the written consent of
each such Initial Purchaser with respect to which such amendment, qualification, supplement,
waiver, consent or departure is to be effective.
(e) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail (registered or certified,
return receipt requested), facsimile, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the Registrar under
the Indenture, with a copy to the Registrar under the Indenture; and
(ii) if to the Company:
Flagstar Bancorp, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
With a copy, which shall not constitute notice, to each of:
Flagstar Bancorp, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
and
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
All such notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; five Business Days after being deposited in
the mail, postage prepaid, if mailed; when receipt acknowledged, if facsimiled; and on the next
Business Day, if timely delivered to an air courier guaranteeing overnight delivery.
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Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the address specified in
the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including, without limitation, and
without the need for an express assignment, subsequent Holders of Transfer Restricted Notes;
provided, however, that this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Notes from such Holder.
(g) Counterparts. This Agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this Agreement by
facsimile or other electronic transmission (i.e., a “pdf” or “tif”) shall be effective as delivery of a
manually executed counterpart thereof.
(h) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY
OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW RULES
THEREOF.
(j) Submission to Jurisdiction. Each party hereto hereby submits to the non-
exclusive jurisdiction of the U.S. federal and New York state courts in the Borough of Manhattan
in The City of New York in any suit or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby. Each party hereto waives any objection which it may now
or hereafter have to the laying of venue of any such suit or proceeding in such courts. Each party
hereto agrees that final judgment in any such suit, action or proceeding brought in such court
shall be conclusive and binding upon it and may be enforced in any court to the jurisdiction of
which it is subject by a suit upon such judgment.
(k) Severability. In the event that any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
(l) Entire Agreement. This Agreement is intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained herein. There are
no restrictions, promises, warranties or undertakings, other than those set forth or referred to
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herein with respect to the registration rights granted by the Company with respect to the Transfer
Restricted Notes. This Agreement supersedes all prior agreements and understandings between
the parties with respect to such subject matter.
[Remainder of page intentionally left blank]
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President &
Chief Financial Officer
