EXHIBIT 10.1(b)
FORM OF
EMPLOYMENT AGREEMENT
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THIS AGREEMENT is made effective as of ______ __, 1997 (the "Effective
Date"), by and between Flagstar Bank, FSB (the "Bank") and _____________________
(the "Employee").
WHEREAS, the Bank wishes to assure retention of the services of the
Employee for the period provided in this Agreement; and
WHEREAS,the Employee is willing to serve in the employ of the Bank for
said period.
NOW, THEREFORE, it is AGREED as follow:
1. Employment. The Employee is employed as the ______________ of the
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Bank. The Employee shall render such administrative and management services for
the Bank as are currently rendered and as are customarily performed by persons
situated in a similar executive capacity. The Employee shall also promote, by
entertainment or otherwise, as and to the extent permitted by law, the business
of the Bank. The Employee's other duties shall be such as the Board of Directors
of the Bank ("Board") may from time to time reasonably direct, including normal
duties as an officer of the Bank.
2. Base Compensation. The Bank agrees to pay the Employee during the
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term of this Agreement a salary at the rate of $____ per annum, payable in cash
not less frequently than monthly; provided, however, that such salary shall be
reduced by any salary paid to the Employee by the Bank's holding company,
Pinnacle Bancshares, Inc. (the "Company"), under the employment agreement of
even date herewith the Company and the Employee. The Board shall review, not
less often than annually, the rate of the Employee's salary, and in its sole
discretion may decide to increase his salary. If the Employee's salary is
reduced to less than $____ per annum subsequent to a change in control of the
Bank, as defined in Section 11(a)(4) hereof, the Employee may within 90 days of
such reduction terminate this Agreement.
3. Discretionary Bonuses. The Employee may be entitled to annual
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bonuses at the sole discretion of the Board. No other compensation provided for
in this Agreement shall be deemed a substitute for the Employee's right to
participate in such discretionary bonuses. In the event the Bank and/or the
Company executes a definitive agreement providing for a change in control of
the Bank, as defined in Section 11(a)(4) hereof, the Employee shall be paid a
bonus equal to ___ his then current annual salary. Such bonus shall be paid
immediately prior to consummation of the change in control and shall be deducted
from the Maximum Amount if determined to be a parachute payment, as such terms
are defined in Section 11(a)(1) hereof.
4. (a) Participation in Retirement, Medical and Other Plans. The
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Employee shall participate in any plan that the Bank maintains for the benefit
of its employees if the plan relates to (i) pension, profit-sharing, or other
retirement benefits, (ii) medical insurance or the reimbursement of medical or
dependent care expenses, or (iii) other group benefits, including disability and
life insurance plans.
(b) Employee Benefits: Expenses. (1) The Employee shall
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participate in any fringe benefits which are or may become available to the
Bank's senior management employees and which are commensurate with the
responsibilities and functions to be performed by the Employee under this
Agreement. The Employee shall be reimbursed for all reasonable out-of-pocket
business expenses which he shall incur in connection with his services under
this Agreement upon substantiation of such expenses in accordance with the
policies of the Bank.
(2) The Board recognizes the Employee's need for an
automobile, including all related maintenance, repairs,
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insurance and other costs. The make and model of the automobile shall be
mutually agreed upon by the Employee and the Board.
(c) Liability Insurance: Indemnification. The Bank shall provide the
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Employee (including his heirs, executors, and administrators) with coverage
under a standard directors' and officers' liability insurance
policy at the Bank's expense, or in lieu thereof, shall indemnify the Employee
(and his heirs, executors, and administrators) to the fullest extent permitted
under Federal law against all expenses and liabilities reasonably incurred by
him in connection with or arising out of any action, suit or proceeding in which
he may be involved by reason of his having been a director or officer of the
Bank (whether or not he continues to be a director or officer at the time of
incurring such expenses or liabilities); such expenses and liabilities to
include, but not limited to, judgments, court costs and attorneys' fees and the
cost of reasonable settlements, and such settlements to be approved by the Board
of Directors of the Bank; provided, however, that such indemnification shall not
extend to matters as to which the Employee is finally adjudged to be liable for
willful misconduct or gross negligence in the performance of his duties as a
director or officer of the Bank.
5. Term. The Bank hereby employs the Employees, and the Employee
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hereby accepts such employment under this Agreement, for the period commencing
on the Effective Date and ending thirty six (36) months thereafter (or such
earlier date as is determined in accordance with Section 9). Additionally, on
each annual anniversary date from the Effective Date the Employee's term of
employment may be extended for an additional one-year period beyond the then
effective expiration date, provided the Board determines in a duly adopted
resolution that the performance of the Employee has net the Board's requirements
and standards and that this Agreement shall be extended.
6. Loyalty: Noncompetition.
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(a) During the period of his employment hereunder and except for
illnesses, reasonable vacation periods, and reasonable leaves of absence, the
Employee shall devote all his full business time, attention, skill, and efforts
to the faithful performance of his duties to the Bank hereunder and/or to its
affiliates; provided, however, that from time to time, the Employee may serve on
the boards of directors of, and hold any other offices or positions in,
companies or organizations which will not present, in the reasonable opinion of
the Board, any conflict of interest with the Bank or any of its subsidiaries or
affiliates, or unfavorably affect the performance of the Employee's duties
pursuant to this Agreement, or will not violate any applicable statute or
regulation. "Full business time" is hereby defined as that amount of time
usually devoted to like companies by similarly situated executive officers.
During the term of his employment under this Agreement, the Employee shall not
engage in any business or activity contrary to the business affairs or interests
of the Bank and/or its affiliates, or be gainfully employed in any other
position or job other than as provided above.
(b) Nothing contained in this Paragraph 6 shall be deemed to
prevent or limit the Employee's right to invest in the capital stock or other
securities of any business dissimilar from that of the Bank, or, solely as a
passive or minority investor, in any business.
7. Standards. The Employee shall perform his duties under this
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Agreement in accordance with such reasonable standards as the Board may
establish from time to time. The Bank will provide the Employee with the working
facilities and staff customary for similar executives and necessary for him to
perform his duties.
8. Vacation and Sick Leave. At such reasonable times as the Board shall
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in its discretion permit, the Employee shall be entitled, without loss of pay,
to absent himself voluntarily from the performance of his employment under this
Agreement, all such voluntary absences to count as vacation time; provided that:
(a) The Employee shall be entitled to an annual in accordance
with the policies that the Board periodically establishes for senior management
employees of the Bank. The timing of vacations shall be scheduled in a
reasonable manner by the Board of Directors. The Employee shall not be entitled
to receive any additional compensation from the Bank on account of his failure
to take a vacation; nor shall he be entitled to
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accumulate unused vacation from one fiscal year to the next except to the extent
authorized by the Board of Directors for senior management officials of the
Bank.
(b) The Employee shall not receive any additional compensation from
the Bank on account of his failure to take a vacation or sick leave, and the
Employee shall not accumulate unused vacation or sick leave from one fiscal year
to the next, except in either case to the extent authorized by the Board.
(c) In addition to the aforesaid paid vacation, the Employee shall be
entitled without loss of pay, to absent himself voluntarily from the performance
of his employment with the Bank for such additional periods of time and for such
valid and legitimate reasons as the Board may in its discretion determine.
Further, the Board may grant to the Employee a leave or leaves of absence, with
or without pay, at such time or times and upon such terms and conditions as such
Board in its discretion may determine.
(d) In addition, the Employee shall be entitled to an annual sick
leave benefit as established by the Board for senior management officials of the
Bank.
9. Termination and Termination Pay. Subject to Section 11 hereof, the
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Employee's employment hereunder may be terminated under the following
circumstances:
(a) Death. The Employee's employment under this Agreement shall
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terminate upon his death during the term of this Agreement, in which event the
Employee's estate shall be entitled to receive the compensation due the
Employee for the remaining term of the contract, payable in a lump sum if
election is made by the spouse within 30 days of Employee's death or otherwise
on a monthly basis, plus any accrued and unpaid discretionary bonus due Employee
at the time of his death, payable in a lump sum amount within 30 days of the
Employee's death. In addition, the Bank shall maintain the existing medical
insurance for the Employee's spouse for six months after the Employee's death.
(b) Disability. (1) The Bank may terminate the Employee's employment
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after having established the Employee's Disability. For purposes of this
Agreement, "Disability" means a physical or mental infirmity which impairs the
Employee's ability to substantially perform his duties under this Agreement and
which results in the Employee becoming eligible for long-term disability
benefits under the Banks long-term disability plan (or, if the Bank has no such
plan in effect, which impairs, or which can be expected to impair, the
Employee's ability to substantially perform his duties under this Agreement for
a period of 180 consecutive days). The Employee shall be entitled to the
compensation and benefits provided for under this Agreement for (i) any period
not to exceed twelve (12) months during the term of this Agreement and prior to
the establishment of the Employee's Disability during which the Employee is
unable to work due to the physical or mental infirmity, or (ii) any period not
to exceed twelve (12) months of Disability which is prior to the Employee's
termination of employment pursuant to this Section 9(b).
(2) During any period that the Employee shall receive disability
benefits and to the extent that the Employee shall be physically and mentally
able to do so, he shall furnish such information, assistance and documents so as
to assist in the continued ongoing business of the Bank and, if able, shall make
himself available to the Bank to undertake reasonable assignments consistent
with his prior position and his physical and mental health. The Bank shall pay
all reasonable expenses incident to the performance of any assignment given to
the Employee during the disability period.
(c) Just Cause. The Board may, by written notice to the Employee,
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immediately terminate his employment at any time, for Just Cause. The Employee
shall have no right to receive compensation or other benefits for any period
after termination for Just Cause. Termination for "Just Cause" shall mean
termination because of, in good faith determination of the Board, the Employee's
personal dishonesty, incompetence, willful misconduct, breach of fiduciary duty
involving personal profit, failure to perform stated duties, willful violation
of any law, rule or regulation (other than traffic violations or similar
offenses) or final cease-and-desist order, or material breach of any provision
of this Agreement. No act, or failure to act, on the Employee's part shall be
considered "willful" unless he has acted, or failed to act, with an absence of
good faith and without a reasonable
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belief that his action or failure to act was in the best interest of the Bank.
Notwithstanding the foregoing, the Employee shall not be deemed to have been
terminated for Just Cause unless there shall have been delivered to the Employee
a copy of a resolution duly adopted by the affirmative vote of not less than a
majority of the entire membership of the Board at a meeting of the Board called
and held for that purpose (after reasonable notice to the Employee and an
opportunity for the Employee to be heard before the Board), finding that in the
good faith opinion of the Board the Employee was guilty of conduct set forth
above in the third sentence of this Subsection (c) and specifying the
particulars thereof in detail. If following such meeting the Employee is
reinstated, he shall be entitled to receive back pay for the period following
termination and continuing through reinstatement.
(d) Without Just Cause; Constructive Discharge. (1) The Board may,
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by written notice to the Employee, immediately terminate his employment at any
time for a reason other than Just Cause, in which event the Employee shall be
entitled to receive the following compensation and benefits (unless such
termination occurs within the time period set forth in Section 11(b) hereof in
which event the benefits and compensation provided for in Section 11 shall
apply): (i) the salary provided pursuant to Section 2 hereof, up to the date of
termination of the term as provided in Section 5 hereof (including any renewal
term) of this Agreement (the "Expiration Date"), plus said salary for an
additional 12-month period, but in no event more than the amount specified in
the first sentence of Section 11(a)(1) and (ii) at the Employee's election,
either (A) cash in an amount equal to the cost to the Employee of obtaining all
health, life, disability and other benefits which the Employee would have been
eligible to participate in through the Expiration Date based upon the benefit
levels substantially equal to those that the Bank benefit plans through the
Expiration Date, but only to the extent the Employee continues to qualify for
participation therein. All amounts payable to the Employee shall be paid, at the
option of the Employee, either (I) in periodic payments through the Expiration
Date, or (II) in one lump sum within 10 days of such termination.
(2) The Employee may voluntarily terminate his employment
under this Agreement, and the Employee shall thereupon be entitled to receive
the compensation and benefits payable under Section 9(d)(1) hereof, within 90
days following the occurrence of any of the following events, wich has not been
consented to in advance by the Employee in writing (unless such voluntary
termination occurs within the time period set forth in Section 11(b) hereof in
which event the benefits and compensation provided for in Section 11 shall
apply): (i) the requirement that the Employee move his personal residence, or
perform his principal executive functions, more than 30 miles from his primary
office; (ii) a material reduction without reasonable cause in the Employee's
base compensation; (iii) the failure by the Bank to continue to provide the
Employee with compensation and benefits provided for under this Agreement, as
the same may be increased from time to time, or with benefits substantially
similar to those provided to him under any of the employee benefit plans in
which the Employee now or hereafter becomes a participant, or the taking of any
action by the Bank which would directly or indirectly reduce any of such
benefits or deprive the Employee of any material fringe benefit enjoyed by him;
(iv) the assignment to the Employee of duties and responsibilities materially
different from those normally associated with his position as referenced at
Section 1; (v) a failure to reelect the Employee to the Board if he is then
serving on the Board; (vi) a material diminution or reduction in the Employee's
responsibilities or authority (including reporting responsibilities) in
connection with his employment with the Bank; or (vii) a material reduction in
the secretarial or other administrative support of the Employee.
(3) Notwithstanding the foregoing, but only to the extent
required under federal banking law, the amount payable under clause (d)(1)(i)
hereof shall be reduced to the extent that on the date of the Employee's
termination of employment, the present value of the benefits payable under
clauses (d)(1)(i)and (ii) hereof exceeds the limitation on severance benefits
that is set forth in Regulatory Bulletin 27a of the Office of Thrift Supervision
("OTS"), as in effect on the Effective Date. In the event that Section 280G of
the Internal Revenue Code of 1986, as amended (the "Code") becomes applicable to
payments made under this Section 9(d), and the payments exceed the "Maximum
Amount" as defined in Section 11(a)(1) hereof, the payments shall be reduced as
provided by Section 11(a)(2) of this Agreement.
(e) Termination or Suspension Under Federal Law. (1) If the
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Employee is removed and/or permanently prohibited from participating in the
conduct of the Bank's affairs by an order issued under Sections 8(e)(4) or
8(g)(1) of the Federal Deposit Insurance Act ("FDIA")(12 U.S.C. 1818(e)(4) and
(g)(1)), all obligations
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of the Bank under this Agreement shall terminate, as of the effective date of
the order, but vested rights of the parties shall not be affected.
(2) If the Bank is in default (as defined in Section 3(x)(1)
of FDIA), all obligations under this Agreement shall terminate as of the date of
default; however, this Paragraph shall not affect the vested rights of the
parties.
(3) All obligations under this Agreement shall terminate,
except to the extent that continuation of this Agreement is necessary for the
continued operation of the Bank: (i) by the Director of the OTS, or his or her
designee, at the time that the Federal Deposit Insurance Corporation ('FDIC") or
the Resolution Trust Corporation enters into an agreement to provide assistance
to or on behalf of the Bank under the authority contained in Section 13(c) of
the FDIA; or (ii) by the Director of the OTS, or his or her designee approves a
supervisory merger to resolve problems related to operation of the Bank or when
the Bank is determined by the Director of the OTS to be in an unsafe or unsound
condition. Such action shall not affect any vested rights of the parties.
(4) If a notice served under Section 8(e)(3) or (g)(1) of the
FDIA (12 U.S.C. 1818(e)(3) or (g)(1) suspends and/or temporarily prohibits the
Employee from participating in the conduct of the Bank's affairs, the Bank's
obligations under this Agreement shall be suspended as of the date of such
service, unless stayed by appropriate proceedings. If the charges in the notice
are dismissed, the Bank may in its discretion (i) pay the Employee all or part
of the compensation withheld while its contract obligations were suspended, and
(ii) reinstate (in whole or in part) any of its obligations which were
suspended.
(f) Voluntary Termination by Employee. Subject to Section 11
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hereof, the Employee may voluntarily terminate employment with the Bank during
the term of this Agreement, upon at least 60 days' prior written notice to the
Board of Directors, in which case the Employee shall receive only his
compensation, vested rights and employee benefits up to the date of his
termination (unless such termination occurs pursuant to Section 9(d)(2) hereof
or within the time period set forth in Section 11(a) hereof, in which event the
benefits and compensation provided for in the Section 9(d) or 11, as applicable,
shall apply).
10. No Mitigation. The Employee shall not be required to mitigate the
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amount of any payment provided for in this Agreement by seeking other employment
or otherwise and no such payment shall be offset or reduced by the amount of any
compensation or benefits provided to the Employee in any subsequent employment.
11. Change in Control.
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(a) Charge in Control:Involuntary Termination. (1) Notwithstanding
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any provision herein to the contrary, if the Employee's employment under this
Agreement is terminated by the Bank, without the Employee's prior written
consent and for a reason other than Just Cause, in connection with or within 12
months after any change in control of the Bank or the Company, the Employee
shall, subject to paragraph (2) of this Section 11(a), be paid an amount equal
to the difference between (i) the product of 2.99 times his "base amount" as
defined in Section 280G(b)(3) of the Code and regulations promulgated thereunder
(the "Maximum Amount"), and (ii) the sum of any other parachute payments (as
defined under Section 280G(b)(2) of the Code) that the Employee receives on
account of the change in control. Said sum shall be paid in one lump sum within
10 days of such termination, and shall be paid in lieu of the payment of any
benefits under Section 9 hereof. The Bank shall also maintain existing insurance
for six months after termination of the Employee's employment, or if Employee
dies within such six months, the Bank shall maintain health insurance for the
Employee's spouse, if living, for the remainder of the six month period. At the
election of the Employee, which election is to be made within 30 days of the
Employee's termination, such payments shall be made in a lump sum or paid
monthly during the remaining term of this Agreement following the Employee's
termination, and shall be payable, in the event of the Employee's death before
full payment is made, to the Employee's surviving spouse, if any, and otherwise
to his estate. In the event that no election is made, payment to the Employee
will be made on a monthly basis during the remaining term of this Agreement.
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(2) In the event that the Employee and the Bank jointly
determine and agree that the total parachute payments under clauses (i) and (ii)
of Section 11(a)(1) hereof exceed the Maximum Amount, notwithstanding the
payment procedure set forth in Section 11(a)(1) hereof, the Employee shall
determine which and how much, if any, of the parachute payments to which he is
entitled shall be eliminated or reduced so that the total parachute payments to
be received by the Employee do not exceed the Maximum Amount. If the Employee
does not make his determination within 10 business days after receiving a
written request from the Bank, the Bank may make such determination and shall
notify the Employee promptly thereof. Within five business days of the earlier
of the Bank's receipt of the Employees's determination pursuant to this
paragraph or the Bank's determination in lieu of a determination by the
Employee, the Bank shall pay to or distribute to or for the benefit of the
Employee such amounts as are then due the Employee under this Agreement.
(3) As a result of uncertainty in application of Section 280G
of the Code at the time of payment hereunder, it is possible that such payments
will have been made by the Bank which should not have been made ("Overpayment")
or that additional payments will not have been made by the Bank which should
have been made ("Underpayment"), in each case, consistent with the calculations
required to be made under Section 11(a)(1) hereof. In the event that the
Employee, based upon the assertion by the Internal Revenue Service against the
Employee of a deficiency which the Employee believes has a high probability of
success, determines that an Overpayment has been made, any such Overpayment paid
or distributed by the Bank to or for the benefit of Employee shall be treated
for all purposes as a loan ab initio which the Employee shall repay to the Bank
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together with interest at the applicable federal rate provided for in Section
7872(f)(2)(B) of the Code; provided, however, that no such loan shall be deemed
to have been made and no amount shall be payable by the Employee to the Bank if
and to the extent such deemed loan and payment would not either reduce the
amount on which the Employee is subject to tax under Section 1 and Section 4999
of the Code or generate a refund of such taxes. In the event that the Employee
and the Bank determine, based upon controlling precedent or other substantial
authority, that an Underpayment has occurred, any such Underpayment shall be
promptly paid by the Bank to or for the benefit of the Employee together with
interest at the applicable federal rate provided for in Section 78 72(f)(2)(B)
of the Code .
(4) The term "change in control" shall mean any one of the
following events: (i) the acquisition of ownership, holding or power to vote
more than 25% of the Bank's or the Company's voting stock, (ii) acquisition of
the ability to control the election of a majority of the Bank's or the Company's
directors, (iii) the acquisition of a controlling influence over the management
or policies of the Bank or the Company by any person or by persons acting as a
"group" (within the meaning of Section 13(d) of the Securities Exchange Act of
1934, as amended), (iv) the acquisition of control of the Bank or the Company
within the meaning of 12 C.F.R. Part 574 or its applicable equivalent (except in
the case of (i), (ii), (iii) and (iv) hereof, ownership or control of the Bank
by the Company itself shall not constitute a "change in control"), or (v) during
any period of two consecutive years, individuals who at the beginning of such
period constitute the Board of Directors of the Company or the Bank (the
"Existing Board") (the "Continuing Directors") cease for any reason to
constitute at least a majority thereof, provided that any individual whose
election or nomination for election as a member of the Existing Board was
approved by a vote of at least a majority of the Continuing Directors then in
office shall be considered a Continuing Director. For purposes of this
subparagraph only, the term "person" refers to an individual or a corporation,
partnership, trust, association, joint venture, pool, syndicate, sole
proprietorship, unincorporated organization or any other form of entity not
specifically listed herein.
Notwithstanding the foregoing, but only to the extent required under
federal banking law, the amount payable under Subsection (a) of this Section 11
shall be reduced to the extent that on the date of the Employee's termination of
employment, the amount payable under Subsection (a) of this Section 11 exceeds
the limitation on severance benefits that is set forth in Regulatory Bulletin
27a of the OTS, as in effect on the Effective Date.
(b) Change in Control: Voluntary Termination. Notwithstanding any other
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provision of this Agreement to the contrary, but subject to Section 11(a)(2)
hereof, the Employee may voluntarily terminate his employment under this
Agreement within 12 months following a change in control of the Bank or the
Company, as defined in paragraph (a)(4) of this Section 11, and the Employee
shall thereupon be entitled to receive the payment described in Section 11(a)
(1) of this Agreement, within 90 days following the occurrence of any of the
following events, which has not been consented to in advance by the Employee in
writing: (i) the requirement that the
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Employee perform his principal executive functions more than 30 miles from his
primary office as of the date of the change in control; (ii) a material
reduction in the Employee's base compensation as in effect on the date of the
change in control or as the same may be changed by mutual agreement from time
to time; (iii) the failure by the Bank to continue to provide the Employee with
compensation and benefits provided for under this Agreement, as the same may be
increased from time to time, or with benefits substantially similar to those
provided to him under any employee benefit in which the Employee is a
participant at the time of the change in control, or the taking of any action
which would materially reduce any of such benefits or deprive the Employee of
any material fringe benefit enjoyed by him at the time of the change in control;
(iv) the assignment to the Employee of duties and responsibilities materially
different from those normally associated with his position as referenced at
Section 1; (v) a failure to elect or reelect the Employee to the Board of
Directors of the Bank, if the Employee is serving on the Board on the date of
the change in control; (vi) a material diminution or reduction in the Employee's
responsibilities or authority (including reporting responsibilities) in
connection with his employment with the Bank; or (vii) a material reduction in
the secretarial or other administrative support of the Employee.
(c) Compliance with 12 U.S.C. Section 1828(k). Any payments made to
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the Employee pursuant to this Agreement, or otherwise, are subject to and
conditioned upon their compliance with 12 U.S.C. Section 1828(k) and any
regulations promulgated thereunder.
12. Arbitration. Any dispute or controversy arising under or in
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connection with this Agreement shall be settled exclusively by arbitration in
accordance with the rules of the American Arbitration Association then in
effect. Judgement may be entered on the arbitration award in any court having
jurisdiction; provided, however, that until the Expiration Date the Employee
shall be entitled to seek specific performance of his right to be paid during
the pendency of any dispute or controversy arising under or in connection with
this Agreement. Any arbitration proceeding shall be governed by and subject
to Alabama arbitration law.
13. Federal Income Tax Withholding. The Bank may withhold all Federal
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and State income or other taxes from any benefit payable under this Agreement
as shall be required pursuant to any law or government regulation or ruling.
14. Successors and Assigns.
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(a) Bank. This Agreement shall not be assignable by the Bank,
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provided that this Agreement shall inure to the benefit of and be binding upon
any corporate or other successor of the Bank which shall acquire, directly or
indirectly, by merger, consolidation, purchase or otherwise, all or
substantially all of the assets or stock of the Bank.
(b) Employee. Since the Bank is contracting for the unique and
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personal skills of the Employee, the Employee shall be precluded from assigning
or delegating his rights or duties hereunder without first obtaining the
written consent of the Bank; provided, however, that nothing in this paragraph
shall preclude (i) the Employee from designating a beneficiary to receive any
benefit payable hereunder upon his death, or (ii) the executors, administrators,
or other legal representatives of the Employee or his estate from assigning any
rights hereunder to the person or persons entitled thereunto.
(c) Attachment. Except as required by law, no right to receive
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payments under this Agreement shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge, or hypothecation or
to exclusion, attachment, levy or similar process or assignment by operation
of law, and any attempt, voluntary or involuntary, to effect any such action
shall be null, void and of no effect.
15. Amendments. No amendments or additions to this Agreement shall be
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binding unless made in writing and signed by all of the parties, except as
herein otherwise specifically provided.
16. Applicable Law. Except to the extent preempted by Federal law, the
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laws of the State of Michigan shall govern this Agreement in all respects,
whether as to its validity, construction, capacity, performance or otherwise.
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17. Severability. The provisions of this Agreement shall be deemed
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severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
18. Entire Agreement. This Agreement, together with any understanding
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or modifications thereof as agreed to in writing by the parties, shall
constitute the entire agreement between the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first hereinabove written.
ATTEST: FLAGSTAR BANK, FSB
By:
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Secretary --------------
WITNESS:
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9088
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