In re Washington Mutual, Inc., Case No. 08-12229 (MFW) United States Bankruptcy Court, District of Delaware FINAL REPORT OF THE EXAMINER JOSHUA R. HOCHBERG http://www.mckennalong.com/news-advisories-2411.html
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WAMU Investigation Question 2: Separate Return State Amounts
Total Separate Return State Refunds Outstanding -71.994.898
Page 8 of 8
WAMU Investigation Question 10: Total Aggregate Federal and State Refund Amounts to be Split Between JPMCB and WMIEstimated Refunds as of August 1, 2010Non-C/B Refund to WMI 20%Non-Homeownership C/B to WMI 20%
15 362.631.149 (c) 240.730.715 121.900.434 20% 24.380.087 97.520.347 Interest on Refunds: interest on gross receivable (Category I & II) and interest on net receivable(interest calculated through 9/30/2010, with no interest on NOL Carrybacks)
Category III : Refunds Received by WMI
16 9.322.104 - 9.322.104 20% 1.864.421 7.457.684 99-'01 Dime Capital Loss Carryback, Net of Termination Fee (received by WMI post 9/25)17 234.526.524 - 234.526.524 20% 46.905.305 187.621.219 2007 Federal Overpayment (received by WMI post 9/25)18 2.964.868 - 2.964.868 20% 592.974 2.371.895 State Tax Refunds from Prior Years Overpayments (received by WMI post 9/25)19 127.945 - 127.945 20% 25.589 102.356 State Tax Refunds from 2004 and Prior Years Amended Returns (received by WMI post 9/25)20 3.580.143 - 3.580.143 20% 716.029 2.864.114 Other State Tax Refunds Received by WMI (not reconciled b/w overpayments and amended returns)
1 Risk Weighting accounts for legacy WMI state FIN 48 of 393.511.000$ , less state tax principal amounts (not interest) received to date.2 Joint Committee Approved Refunds.3 Difference between Gross Receivable Amount and Risk Weighted Amount = 784.753.102 , which highly uncertain litigation items and state tax receivables.
WAMU Investigation Question 10: Total Aggregate Federal and State Refund Amounts to be Split Between JPMCB and WMIEstimated Refunds as of August 1, 2010Non-C/B Refund to WMI 20%Non-Homeownership C/B to WMI 20%
15 362.631.149 (c) 240.730.715 121.900.434 20% 24.380.087 97.520.347 Interest on Refunds: interest on gross receivable (Category I & II) and interest on net receivable(interest calculated through 9/30/2010, with no interest on NOL Carrybacks)
Category III : Refunds Received by WMI
16 9.322.104 - 9.322.104 20% 1.864.421 7.457.684 99-'01 Dime Capital Loss Carryback, Net of Termination Fee (received by WMI post 9/25)17 234.526.524 - 234.526.524 20% 46.905.305 187.621.219 2007 Federal Overpayment (received by WMI post 9/25)18 2.964.868 - 2.964.868 20% 592.974 2.371.895 State Tax Refunds from Prior Years Overpayments (received by WMI post 9/25)19 127.945 - 127.945 20% 25.589 102.356 State Tax Refunds from 2004 and Prior Years Amended Returns (received by WMI post 9/25)20 3.580.143 - 3.580.143 20% 716.029 2.864.114 Other State Tax Refunds Received by WMI (not reconciled b/w overpayments and amended returns)
1 Risk Weighting accounts for legacy WMI state FIN 48 of 393.511.000$ , less state tax principal amounts (not interest) received to date.2 Joint Committee Approved Refunds.3 Difference between Gross Receivable Amount and Risk Weighted Amount = 784.753.102 , which highly uncertain litigation items and state tax receivables.
Gaby - Chairman Guo just called me to discuss the US state of the world, BS,concern re
some of the investments in their portfolio, whether another investment bank would fail
etc and I took the occasion to discuss my pending move. He was personally quite
supportive and I made the distinction of being in the IB, which he said he had no problem
with and we agreed to discuss it further and he said he would personally talk to CBRC on
my behalf as he said it would be better for CCB to have me in Beijing.
The real reason for his call however was to pick my brain on CIT and WaMu. Given that I
am not yet on board and don't know whom to contact can you tell me whether we have any
involvement or axe on either of these two companies ? Quality of management etc. This
was a most unusual call for him to initiate and definitely one focused on acquisition or
investment. I promised to get back to him and also to send him some "street " insights
Confidential WMCD_000003220.00001
also
Olivier X de Grivel
03/2012008 01:56 AM
cc:
to
From: Olivier X de Grivel Sent: 03/20/2008 01: 7 PM ZE8
Abdelnour
A
Re: Chairman Guo - CCB
over
. Re. Chairman Guo - CCB
From: A Abdelnour Sent: 03/20 2008 01:42 PM ZE8 To: Olivier de Grivel
Chairman
2 names
From: elaine la roche [melaroche@hotmail Sent: 03 20 2008 01:30 AM GMT To: Abdelnour
Chairman Guo CCB
or
Chairman Guo just called me to discuss the US state of the world, BS,concern re some of the investments in their portfolio, whether another investment bank would fail etc and I took the occasion to discuss my move. He was
and I made the distinction f in the IB, he had no with and we to discuss it further and he said he tal to CBRC on my behalf as he said it be better for CCB
The real reason for his call however was to my brain on CIT and 1iiTaMu. Given that I
am not yet board and 't know whom to contact tell me whether we have any involvement axe either of these two of management etc. This was a most unusual call for him to initiate and de focused on sition or investment. I sed to get back to him and also to send some "street " ins
Wamu is off-limits and not advisable to discuss it with ccb (or any other clien)
Cit very much something we can engage ccb on. We are pitching for strategic advisory role, mandate to be
awarded soon so delicate timing.
Fig ny to put together an info pack.
Can come back to ccb mid this week
Tim Main
Original Message
From: Tim Main
Sent: 03/21/2008 02:34 PM CST
To: Olivier de Grivel
Subject: Re: Wamu cit
We can have dialogue
Let's try to set a time
Don't think we could work for them on either, close to both
Olivier X de Grivel
Original Message
From: Olivier X de Grivel
Sent: 03/20/2008 10:31 PM ZE8
To: Tim Main
Subject: Re: Wamu cit
Tried and left voice mail
"::" Tim Main
Original Message
From: Tim Main
Sent: 03/20/2008 07:48 AM CST
To: Olivier de Grivel; John Chrin; John Simmons
Subject: Re: Wamu cit
On cell now 917 593 6069
Main
Original Message
From: Tim Main
Sent: 03/20/2008 01:55 AM CDT
To: Olivier de Grivel; John Chrin; John Simmons
Confidential WMCD_000003224.00001 Confidential
Olivier X To de Grivel cc
From: Tim Main
03/23/2008 09:03 PM
Sent: 03/21 2008 02:34 PM eST To: Olivier de Grivel
: Re: Wamu + cit
on
From: Olivier de Grivel Sent· 03/20/ 008 10· 1 PM ZE To: Tim Main
: Re: Wamu + cit
From: Tim Main Sent: 03/20/2008 07: 8 AM eST
AhdclnOllr"
Fw: Wamll + cit
to
To. Olivier de Grivel; John ehrin; John Simmons : Re: Wamu + cit
now 917
From: Tim Main Sent: 03/20 2008 01:5 AM eDT To: Olivier de Grivel; John ehrin; John Simmons
Subject: Re: Wamu cit
Yes
Call me live
X de Grivel
Original Message
From: Olivier X de Grivel
Sent: 03/20/2008 01:58 PM ZE8
To: Tim Main; John Chrin; John Simmons
Subject: Wamu cit
We are being questionned by chinese bank (ccb - keep it for yourself) on wamu + cit. They are not asking to
advise on anything but want our views But body language is thinking of investing.
Can we engage dialogue with them on these ?
Am reachable on mobile +852 6343 9888
Confidential WMCD_000003224.00002 Confidential
Re: liJamu + cit
From: Olivier X de Grivel Sent: 03/20/2008 01:58 PM ZE To: Tim Main; John Chrin; John Simmons
. Wamu + cit
on
are not to
-f
Confidential
Confidential
answer i was
Enrico Bombieri IB floor 0
Tel: +44-207-3251967 Mob:
Confidential OOOO0l341.00()() )
Tim To: Kevin D WillseyIJPMCHASE, Scott M AlbinsonlJPMCHASE, Fernando [email protected]
u;: Ddill X SdClI/JPMCHASE, Ginll B PlIntllno/JPMCHASE, Gt':rrnllim: X 0711512008 II :38 Hams/JPMCHASE. John E Sinunons/JPMCHASE, .!ohn R ChrinlJPMCHASE PM Subject: Re : FDIC/OCC Meetings
This is about 100x more important in my humble opinion
From: Kevin D Willsey To : Tim Main; Scott M Albinson; Fernando Rivas Cc: Delia X Selca; Gina B Pantano; Germaine X Harris; John E Simmons; John R Chrin Sent: Tue lullS 23:33:49 2008 Subject: Re: FDIC/DCC Meetings
NY Bancorp pitch currently on that date in Long: Island
Kevin D. Willsey Managing Director Head of EqU1ty CapItal Markets .J.P, Morgan Securities Inc. 277 Park Avenue - 8th Floor New York, NY 10172 Tel: (212) 622-5574 Fax: (212) 622-0839 Email: [email protected]
----- Original Message ----From: Tim Main Sent : 07/15/2008 11: 14 PM AST To: Scan Albinson: Fernando Rivas Cc: Delia Selca: Gina Panl3llo; Germaine Harris: John Simmons: John Chrin: Kevin Willsey Subject: Re: FDIC/OCC Meetings
Three of us plus Willsey if he can
From : Scott M Albinson To: Tim Main; Femando Rivas Cc: Delia X Selca; Gina B Pantano; Germaine X Harris; John E Simmons; John R Chrin Sent: Tue lullS 14: 17:562008 Subject: FDIC/OCC Meetings
TimlFem,
I have confi rmed meetings on Friday, July 18, in DC with both the ace and FDIC.
ace
Confidential JPMCD 00000335500001
10 am
250 E Street, SW
Attendees:
John Dugan, Comptroller (tentative - he is getting in from a flight but will try to make it)
John Watsh, Chief of Staff
D oug Roeder, Senior Deputy Comptroll er, Large Bank Supervision
Jennifer Kelly, Senior Deputy Comptroller, Mid-size and Community Bank Supervision
Mark Levonian, Chief Economist
Others TBD
FDIC
Ipm
550 t 7th Street, NW
Attendees:
Shei la Bair, Chainnan
Jesse Villarreal , Chief of Staff
Others TBD
Any word from Steve Black's office on whether he can join li S?
Confidential JPMCD 00000335500002
March
Mr. LJ'UUV'''.
to approve at 5>nr'rn1"p" at
The Chainnan said that lU,,",''''''''!!!> was to a the ...... ,,'"'''''" """" ........ ,"" .. referred to in these
EPS (S6 .• Z) $1.<16 (omTIO<l «lVI, ~ $11 ,192 $111,021 $19,511 (oom:m «IV11 y $15,52) ,16,543 i ""1I1bio '''''''''''''" «IV"Y 9,835 10,532 12,0&~ Ta"1lible CO<TlITOI'I equity 1,\164 ',054 TeE I TA un un> 4.41'11 TeE I TA 2.141 3.26' ---.--(apot..tdehcl""'y I <ushlOn'
Capita.! dehc;c,ocy I cushIOn'
Source: West projections Nole: We~t Nllproj&ctiool do not account fIK Increa>ed non·accrual loans and greater write-offs. Assumes 00 dillldend In 2008, $0.30 2009 and 30% payout riltlO from 2010 to 2012. West's WlStMldlng S3.000 of Series R Convertible Preferred. S4.Obn ot REIT Preferred and SO.5bn of preferred would add -Z.61. 10 TCE/TA. As'>Umes no share boybacils
"" EPS ($6.<421 S 1.44 $2.52 EPS (SUOI ($0.391 Coomoo""'"Y 515.521 516.5d $\1,127 COO11I::l<\equlty S16,ll5 5H,$6) T~flIillCc_equIlY 7.%b 9,054 10,695 Taflllillll! (00lfI100 eqully 8,158 1,014 TCE I TA 1.1~1 1.11>" 3.92:1> TCE I TA 1.On. 2.551 ...... "..,-"--~,.,.... ....... "'--......... -~ . ' ~ 4"~'''F""D :
C3pitaldefKIeI1<:yi cU$/iloo'
Source: West prO}et:llOflS NOle: WltSt HII jlfu}octioos do nut acoount fOf increased noo·accrualloans and greater wrlte-Qffs. A5sumes 00 diYiaefld In 2008. 50.30 iii 2009 and )OS payout ratio frOOl 2010 to 2012. West's oulStaodlng Sl.Obn of Series R Convertible Preferred. $4.Obn of REIT Preferred and SO.5bn of preferred wool.d add -2.6i1i to TCE/TA. Assumes 00 share buybacb , Above 4.75:11; TCEITA
PRO lEe
$15,1"
1,~
&,I\)
)05
{50,
($0.04)
51<1,381
6,955
2551
\Ai [ " 14
u w
i>:
Q
0\
12131/07 Tangible common equity less: 2008 losse~ and dividends
12131/08 Tangible common equity at closing
loan reserve adjustment Conforming LLR
Purchase Accounting Total
Tangible common equity at close
, As>Uffies $10.2bn reduction (rom B/S downsizing
I
Pre-tax
6,632
(2,414)
After-tax
<$2,(46)
I Excludes. hybrids In 15" restricted Fed bucket when Park (apaol), is fully utilized
"~'II!_'iII::IlIl.,£lIIlf
12131/2008 Total assets Risk weighted assets at closing'
Capital required at 8.0%
West hybrids! Tier 1 needed
Tier 1 sources
Hybrid capacity Reduce Park balan.ce sheet Common issuances
Single branch in NV holdS $62.400 of Source: SNl DataSource (BriIf>Ch data as
J
... it f. ') 9
I-V<
W
~
I
J
w
o oc 0..
. 1
2007 Braocnel> % of total bfilfIChe$ 1,002 13.~
1,030 14.2% {' ~ 6.l!J i1.~ Wachovla 167 2.~
Los Angeles·Long Beach·Santa Ana 13.2 2 San frand$Co-Oakland-Fremont 4.3 3 San Marcos 3.1 4 San Jose·SunnyvaLe-Santa Clara 1.6 5 Rlverside-San Bernardino-Ontalio 4.2
Source: s.Hl FinanCIal (Branch oata as of 3125/08; deposit data a~ of 6/30107)
Park 65-1 12.3% 221.318 3U" 1 Park <41;0 6.l1:li; 68,1'15 IS.ft 2 HS6C 392 7.3% 70.<468 10.1% 2 Sank or America 463 6.ft 48,113 I3.G ) CIUgroup 259 4.9% 51.,425 8.2% 1 Wells filfgo &; Co. 564 8.311; 28,1+4 7.7% " 8ank of Amen;;:<1 37'5 7./1lI; 37.n7 S.4ll> ... Banco Bilbao \lizcaya 329 ~.ft 20.90-4 S.G 5 Capital One flnaodill 285 5.3% 34,563 5.~ 5 Wacholfia 211 J.2lIIi 12.2<18 J.G
iI!iI!!~llill!i1ll1i! 1iIl>lt !~Iin r.1!I1 ~bani!
1 Bank of Amer1<a 397 u.ft $34,304 16.G 2 Wilchovla 323 9.6% 28,7'19 13.8% 1 Bank of Amer1<a 220 4 . .no 39.763 11. '" 3 Toronto-Oomlnioo 323 9.6% 26,213 11.5" 2 Park 1<17 6.9li> 38.619 II lIS <4 PMC Finane ial 339 10.0% 18.282 8.7lIi 3 SMO flnlllicial 184 J.6% 29.116 B.9li> 5 Hudson City 8i1l)(orp 91 2.7lIi 12.732 6.1:11; " Natiooal City ll1l J.6S 12.982 4.~
5 Northern Trust 19 O • .no 8,950 1.7%
u
o Source: SNl OiItaSource (6rarxh data as 3/25/08, deposjt data as of 6/30J01) a.
PR T 23
BAC Park WFC Network
U.S. Households
Households 74.8% 48.3%
Income
53.4% 25.5% 27.9%
Total It of Branches
Growth
5 Year Growth 5.3% 3.5% 6.7%
% of Growth 17.7% 36.2%
% of Hisoaoic Growth 71.4% 30.1% 47.1% -----, --,--
Branch count before consolidations; assuming 440 consolidations branch count would be 4,843 I- Note: Analysis based on 3 mile radius around each branch; assumes no new branches after Jut\! 2007 VI
"-'
3:
l
V
W -,
o a:: Q
WB Wait STI
3% 12.4%
.6%
26.7% 32.7% 3.5%
5.5% 5.8% 6.8%
53. 15.9%
( T IN f ~ T 24
'""' 3:
u
Q
Retail
Home loans Card
Commercial
Corpora te I Other
Total
Investments In fAs &: Business and Commercial Bankers
Net change in expense '07 • '11 --~------------------,.------~---~---~------------
Total HIE less intangible aroonrzatlOO and 4Q goodwill impairment charge for Mortgage Banking realized mergel' s.aviog~ as of 2011 'As 01 2011
Source: W~t repon to Finance Commitlee of the Board ot Directors: (redit Deep Dive; January IS, 2008
~
f I
(4 '
<t ! JPMorgan 0 I ~ that borrower setecu minimum payment option every time. Representative loan is an MIA· indexed Option AAM, S350k loan amount, no IIltroductory period, 115X negam cap
PROJECT W[5T 34
James V. Futter
to <linlnr ... V,. at
transaction .... 1· ....... • .. 11 to as
1
continue to pursue a
no
OTS.Ji429594-v ]·JP!l<fC _2aoS _September _1900<:
OQ
o o
.... N
Confidential
..., III QJ
ci ~ - U 0 c: 0<3 0
"'-l ::::; '>ij (/)
< ·s ...... ....... a' u
() 10
~ Z 'P -< c: QJ () ...
~ 0 0-
~ .x. .... 10
Q. ~ "J
11111N30l:lNO) ONI1 31VAIlld All)IiilS
JPJ\;ICD _ 000003491.00001
NOllV' N353t1d
1
o c:. "-
o
• • •
NOI1~lN3S3 d 5~O~J3~IO 30 a~~09
1
-
o
I
« Iz w
'" W
<Y
Q.
VI
Q(
o l
V w
o Q(
<[
o w
1
o 1
Note: assumes no capital raISe
$ •.
I Required capital to readl 8.0% target Tier I for West post marlls and purchase accounting
&Co.
$1.
$1
8
$1.10
$1
2
p OJt:(1 WE T 3
(j o = ::i Q.. ~ = e. ~
:a ~ (j 0
I Q Q Q Q Q ~ ~ \.C -. Q Q Q Q ~
z 0
I-0<{
I-
Z .... VI .... cr: Q.
VI
cr: 0 l-
u w ex:
CJ
..... 0
CJ
IX
.q:
0 <D
Capital required
,l~
TeE
REI T and Debt
Acquired TeE
Marks
Purchase accounting adjustments Other tier 1 adjustments'
Note: Deposit data as of June 30, 2007; excludes dep05it~ greater than S500mm in a single branch; <lemo£raphic data dep05it·we iihted by county '2007·2012
Source: SNL finafl(lai HQte: Deposit data,u of June 30, 2007, branch data as of September 16, 2006; excludes deposits greater than $5OOmm in a single branch; demoiriPf\1c datAl ~it'weiShled by county i Single branch itl NV hold5 $62.4bn of deposits
JPMORGA:\ Clf:\SE,&CO. PRO J £ (T WE. S 1 10
--N
z o
0.
V)
IX
o I
u w oc
o
w..
3 San
4 San
179
379
5 Riverside-San Bernardino-Ontario
Source: SNl Flnarloai Note: Branch dilta as of September 17, 2008, depo~it data as of
Source: FOIC and Financial Note: Data as of June 30, 2008. Analysis based on 3 mile radius around each branch; assumes no new branches after July 2007 I Branch count before consolidations; assuming 440 consolidations branch count would be 4,970
CHASE&
32.7%
38.3%
2.4%
11.6%
3.5%
16.8%
15.9%
PRj[ (')1 15
It was milrlutles to <1"",,,,,,",, at be "nr,,.n,/ .. f1 at
Ul"'''u;);)lV'Ul. upon lUI.'U,",'" sc(:onoe.ll, it was
I
J ofl
U'~''''U':>''''IJU, upon mCltlo'n it was
as 15, such amendment to be effective from and after S .. ,..,tPlm
"",,, .... ,,,,,,'vu, there no
as of ::selDtemt)e 2008
.J
10000"£6t£00000 a31~dr
STRICTLY PRIVATE ANO CONFIOENTIAL
r,:..:
N o ,':. o 00 ,.
PRESENTATION TO THE BOARD OF 0 RECTORS
E:<:ECUTIV( SUMMARY
." lO
o
• • •
).
a:: « :l: ~
V>
w
>
t
=> u w X
process over
model with income statement at a
review of West and and nrnrpn,
with statement and balance sheet ~n~I\1<:I<:
w I JPMORGAN CHASE&CO.
unft
rh,,,",,",,,, to credit ",.,..-I'''''r~
", .. o",,,,..orll at a business unit
PROJECT wEST J
XECUTIVE SUMMARY
•
.., Xl
0
I"'l ,..., til> '"'I '"'I 0 ~ ...,
M
'" -I
..
"'0 ;0
o
P ESEHTATION TO THE BOARD OF DIRECTORS
wE S T OVERVIEW
(,...,
"'0 ;s::
!~ 0 6 .. 11 >
!~ 'L
U'I .. w N (') _. ~ ."
:~ en r-: R"
Ii. (":)
f 9
-l{ -!"" j
t ;:;;
2-Iii IX Ii.
i .~ ..., i! w
."
0
"" ,..., -:
:l'; r
~ ~
'"
0'
(j o = :a Q. ~
= e. ~
~ "'C :: (j 0
I = = = = = c..; ~ ~ c..; • = = 0 0 QO
Creates broader branch network
• Pari( branches - 3,203
* West branches - 2,207
~I Total combined branches - 5,410
• Branch overlap
'" ~I • New markets 0
:1 Source: SHl fltunc \at
Kate: DaY IS 04 September ll, 20011 w
~I JPMORGAN CHASE &CO. PIlOHCT WlST 7
. .- .. .. ' I
. -.;; !.~
~ o = ::c c. ~ = -_. ~ -
~ ~
~ ~ 0 1= Q Q Q <= ~ ..... ~ ~ . <= Q <= = ~
Provides significant expansion of retail deposit base
Source: SHl FINneIaI Note: DepasJt dillias of ~ 30, 2.007; excludes <IeposIts !lreater than $500mm in a single branch; delllOifllphlc data deposlt·welillted by county , 2.007·2012
. .. 0 S :" " ,::, ~." ,,!f'o6 . t '.'~ "1",:1 '."AJ . JO ·.f : '"
Hispanic Households ':-\?'< ~
Average Income
Businesses
T otalll of Branches
Population Growth (2006-11)
5 Year Growth
% of Population Growth
% of Hispanic Growth
Soorce: FDIC and SHL flnanclal
33.4%
$70,652
25.5%
3,203
-- .. " 3.5% " I
, I
\ ... 17.7: ... "
30.1%
Hote: Dlta as 0( June 30, 2008. Anal~ts based on 3 mile radius around each branch; assumes 00 new bf-anches after July 2007
I Branch count before consolidations; assuming 400 consolidations branch count would be 5,010
JPMORGAI\ CHASE&CO.
58.6%
$74,238
32.7%
2,207
5.8%
38.3%
53.7%
PROJECT wlST
,.,1', :
9
II
PRESENTATION TO THE BOARD Or: D RECTORS
-0.
..0
"t:
:c :::J ~
"", r,
:l':
.. ~
0
Zl
INTEGRATION
• • • • • (j
~ "" g g g I:t: r;:o ,..... .... ,...,. ,..... (') 0 P Q.>
.... n 0 0 3 n g 3 0
~ ::l
3 rp ....
,.... R
..... 0 0-
"0 ::J. < 0 ro
'-...... (""\
.....
M ...., -;
r'":l o :::s :::"i Q. ~ :::s :-. ~ -
=--e ~ -r'":l 0
I = = = Q = ("H
""" \C ("H
b = = -("H
West provides significant branch cross-sell opportunities
z 0
t-<t 0<
" w t- i zi -i
• Branch network provides opportunity to cross-sell more products, particularly credit card and investment sales:
• Credit card In 2007, Park produced 2x the per branch credit card production of West Achieving this productivity with West would generate an additional 500,000 credit cards sold annually through the branches
• Investment sales
'.'t-
--- Park's % of retail bank households that have an investment product is 2x greater than West Park's Financial Advisors produce on average 60% more investment sales per year Achieving Park investment sales productivity and increasing Financial Advisors could lead to an additional $8-10 billion in sales annually through the branches
'. 'Wftl.'Pad< ;...... " -<.,,,,~~.rr.'
--~--~-~~-------- -------------.~~~ -----
'": :...; ~'
';f ~ .
JPMORGAN CIIASE&CO. PIlOHCl Wl~T 12
(j o = =s Q.. ~ = :t. ~
~ ~
~ (j o 1= = = = = ~ ..... \C ~ = = o -.....
:z o
I
<f
'" .., \oJ
t
'Z
Park has a solid track record in enhancing branch productivity
• Park successfully increased branch productivity for credit card and investment sales after the Bank of New York branch acquisition
vI Soun:e: Company factSet. I/I/E/S. re-seMch, Park and West estimates Note: Park pro rOOlla Sl.8bn~e ORO Preferred In August 2008
<l[ ... <t QC
.- l'PUn""A'" CIIASE&CO . PRO E( T WEST 2J
f
TRANSACTION DESCRIPTION
• • • • • •
. CJI
o
z o to..
0::
U v>
w o
o
..:
'"
Park GAAP
Park GAAP EPS
Pro forma contribution from West
Pro forma GAAP net income
Pro forma GAAP EPS
2009 201.0
$11.7 $15.8
53.29 $4.41
S2A
$1<4.2 $18.8
$3.79 $5.01
error
z Note: Cast ~)I!1ef8~ and iIIIIlonlzation of intNllllble assets ina:Iqlorated In We.t eafolngl.. Par\( eamln!l!O bas.ed 00 C~$ lInil1vst estimates <l
I>::
I- CIIASE&Co.
$16.7
$4.67
53.'!
1
$5.37
PRO fCr WEST 25
o
0:
U
'" w o
z o l
V q
"" Z <t a::
2009 2011
West assets .2 1.5
JPMORGAN CIiASE&CO. PROJECT we" 26
Tim To: RDouglas L Braunslein" <douglas.braunstein@jpmorgan .com> Main@JPMCHAS[Cc:
SubjlXl: AnoLhcr updalt:
03/181200811:58 AM
Fyi
Santander said if Bear occupying us, would like our fig team to advise them on W AMU. Said they would only work with us .
Talked to Steve and agreed
- tell them not able to do right now (not say conflict) - appreciate call and want to advi se them on all US deals we can and they should not assume connicted on any situation - not tell peopl e in bank beyond Enrico, Fern, you, me ... .. too sensitive.
thrift put into Section 2.1 how will liabilities for benefit
with David] assumed/transfer of
relevant ; what are with bank vs with the company and thrift, etc
respect
Article 2 liabilities Section 4.8(b) - what i
arrangements intended to
mortgage agreements which are the business?
Dan
Daniel Dan. ( 12) (312) (212) (212)
Article XI to consents rep? Article XII Indemnification [raised Confirm treatment of REIT preferred Non-thrift subsidiaries where in structure
s/notices
thru the agreement we have some dra
P. Cooney .com
732 3171 voice) 7 5976 fax)
70-7094 (New York voice) 70-96 (New York fax)
with David]
red
tweaks but I think these are the
This transmission may contain information that is confidential, y or exempt from disclosure under law. If you are not the
are fied that , di or use the information contained herein ( any reliance thereon) is STRICTLY PROHIBITED. this transmission and attachments are believed to be free f
other defect that affect any computer system into it is received and of the to ensure that it is virus free and no
., its subsidiaries and affiliates, as in from its use If received s
transmission in error, contact the sender and the material in its entirety, whether in electronic or hard copy format. Thank you.
From: Frode X Riksfjord To: Vishal X Idnani; Fernando Rivas; Gregg B Gunselman; Genevieve E Hovde; Scott RHynes Sent: Sat Sep 13 15 :55 :50 2008 Subject: Re: TIME CHANGE: West Call @4pm Today
Need a few more mins to make powerpoint. New time: 4: 15 pm.
Frode Riksfjord, CFA Financial Institutions and Governments Group J.P. Morgan 383 Madison Avenue, 36th Floor New York, NY 10179 212-622-6321 646-284-8926 (mobile) 917-464-5886 (e-fax) [email protected]
From: Vishal X Idnani To: Fernando Rivas; Gregg B Gunselman; Frode X Riksfjord; Genevieve E Hovde; Scott RHynes Sent: Sat Sep 13 14:47:39 2008 Subject: TIME CHANGE: West Call @4pm Today
Just received card update in last few mins and still working to complete earlier changes. Call now at 4pm today. Same dial-in.
From: Fernando Rivas Sent: Saturday, September 13, 2008 2:14 PM To: Vishal X Idnani; Gregg B Gunselman; Frode X Riksfjord; Genevieve E Hovde; Scott RHynes Subject: Re: West Call @3pm Today
Thanks
From: Vishal X Idnani To: Fernando Rivas; Gregg B Gunselman; Frode X Riksfjord; Genevieve E Hovde; Scott RHynes Sent: Sat Sep 13 14:00:232008 Subject: West Call @3pm Today All:
We are targeting 3pm for a West call this afternoon. If we need to push-back start time, we will send another note. Dial-in details are below.
Dial-in: 866-870-8212 Pass: 779-36248
Confidential JPMCD 000003849.00001
To: OlivierXde GrivelLTPMCHASEWPMCHASE
Tim cc:
mainwpmcHAsESubject Re: Wamu + eit
03/21/2008 04:34
PM
We can have dialogue
Let's try to set a time
Don't think we could work for them on either, close to both
Olivier X de Grivel
Original Message
From: Olivier X de Grivel
Sent: 03/20/2008 10:31 PM ZE8
To: Tim Main
Subject: Re: Wamu cit
Tried and left voice mail
Tim Main
Original Message
From: Tim Main
Sent: 03/20/2008 07:48 AM CST
To: Olivier de Grivel; John Chrin; John Simmons
Subject: Re: Wamu cit
On cell now 917 593 6069
Tim Main
Original Message
From: Tim Main
Sent: 03/20/2008 01:55 AM CDT
To: Olivier de Grivel; John Chrin; John Simmons
Subject: Re: Wamu cit
Yes
Call me live
Olivier X de Grivel
Original Message
From: Olivier X de Grivel
Sent: 03/20/2008 01:58 PM ZE8
To: Tim Main; John Chrin; John Simmons
Subject: Wamu cit
We are being questionned by chinese bank (ccb - keep it for yourself) on wamu + cit. They are not asking to
Confidential WMCD_000003978.00001 Confidential
Tim
03/21120080434 PM
on
From: Olivier de Grivel Sent: 03/20 2008 10:31 ZE8 To· Tim Main
: Re: Wamu + cit
From: Tim Main Sent: 03/20/2008 07: 8 AM CST
To ee:
To: Olivier de Grivel; ehrin; + cit
now 917
From: Tim Main Sent: 03/ 0/ 008 01:55 AM eDT
de
Re: Wamu + cit
to
Simmons
To: Olivier de Grivel; John ehrin; John Simmons : Re: Wamu + cit
me
From: Olivier X de Grivel Sent: 03/20 2008 01:58 ZE8 To· Tim Main; John ehrin; John Simmons
: Wamu + cit
are it on wamu are not to
advise on anything but want our views But body language is thinking of investing.
Wednesday, April 2, 2008121234567891011121234567891011
OCC / FRB Preview Meeting for Annual Roll-up Reports (Ned Pollock, Barbara Yelcich, Jamie, Frank, Steve Cutler, John Bradley,Barry, Steve Black, Bill Winters, Tony Horan, John Hogan, John Watkins, Alex Hatzopolous, Martha) -- Location: 8/270 Park -
Wednesday, July 16, 2008121234567891011121234567891011
Quarterly Earnings Meeting with Fed & OCC (Scott Waterhouse, Barbara Yelcich, Jeff Levine, Theonilla Lee-Chan) Location: 48/270 Park - conference room A
Tuesday, October 14, 2008121234567891011121234567891011
Quarterly Earnings Meeting with OCC: Scott Waterhouse, Fred Crumlish & Fed: Barbara Yelcich, Theonilla Lee-Chan, JenniferTranter, Vicky White -- Location: 48/270 Park - conference room B
John Mahoney Spoke to Cell: 914-260-6470 Goldman Scharf
9124120 I 0 I I :22 AM
CO
NFI
DE
NT
IAL
JPM
CD
_000
0048
56.0
0002
TUESDAY, MARCH 11, 2008 PHONE CALLS
I First Last Name Action Numbers
I Kerry Kill inger LM 206-5C
9/24120 1011 :05 AM
CO
NFI
DE
NT
IAL
JPM
CD
_000
0048
56.0
0003
WEDNESDAY, MARCH 12,2008 PHONE CALLS
[ First Last Name Action , ___ N:..:u::::m~be::.:r:..::s~_---I'---___________________ _
Kerry Kill inger RYC 206-931-3784 cell Call on his cell. If he doesn't answer send an email and he'll see it on ___________ +-____ --t_:..:ke"'r.:..ry'-.:,killinger@wamu,net his blackberry and ca"ll-,Y-"o-"u-=b:..:a:..:c",k.c.' ______________ _
9124/201 0 I I :06 AM
CO
NFI
DE
NT
IAL
JPM
CD
_000
0048
56.0
0004
THURSDAY, MARCH 13,2008 PHONE CALLS
I FirsC---cast Name Action Numbers
--
I Kerrv Killin~er X 206-5 00-31
I --=l
9124120 I 0 I I :06 AM
CO
NFI
DE
NT
IAL
JPM
CD
_000
0048
56.0
0005
MONDAY, MARCH 17,2008 PHONE CALLS
First Last Name Action Numbers
Kerry Killinger x 206-500-3139
c
~
9/24/20 I 0 II :07 AM
CO
NFI
DE
NT
IAL
JPM
CD
_000
0048
56.0
0006
MONDAY, MARCH 24, 2008 PHONE CALLS
I First Last Name Action Numbers
t Tom Baxter X 212-720-5035
r
912412010 5:28 PM
CO
NFI
DE
NT
IAL
JPM
CD
_000
0048
56.0
0007
TUESDAY, MARCH 25, 2008 PHONE CALLS
First Last Name Action Numbers
Ned Pollack 9:30 am 212-789-4501 Would like to spend 5 min w/you whenever you have time
9/24/2010 5:39 PM
CONFIDENTIAL JPMCD_000004856.00008
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0009
PHONE
First Last Name
Sheila Bair
9124/201011 :17 AM
CALLS
Action Numbers
WZ -898-6974
THURSDA Y, APRIL 03, 2008
She is calling to see if you would speak at a conf_ on July 8th_ Bernanke is opening and she wants you to be the lunchtime speaker
CO
NFI
DE
NT
IAL
JPM
CD
_000
0048
56.0
0010
FRIDAY, APRIL 04, 2008 PHONE CALLS
First Last Name Action Numbers
Ned Pollock T x T 212-789 __ -:.:..45::..:0:.:..1 __ -+ _____________________ _
-
Nancy x
912412010 1\ : 17 AM
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FRIDAY, SEPTEMBER 05,2008 PHONE CALLS
I First Last Name . - .. --T-Action --,-
Sheila Bair X 202·898·6974 or
571·213·6836
I
9124120 1012: 11 PM
CONFIDENTIAL JPMCD_000004856.00013
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MONDA Y, SEPTEMBER 15, 2008 PHONE CALLS
I First Last Name Action
I I
l-f-,
Alan Fishman I LM 206-500-8781
- ~-
~ -~ -~ -
- I I I -
9124120 10 12:12 PM
CO
NFI
DE
NT
IAL
JPM
CD
_000
0048
56.0
0015
TUESDAY, SEPTEMBER 16, 2008 PHONE CALLS
First Last Name Action Numbers
Sheila Bair x 202-898-6974
Alan Fishman T x I 206-500-8781
9/24nO lO 12:13 PM
CO
NFI
DE
NT
IAL
JPM
CD
_000
0048
56.0
0016
THURSDAY, SEPTEMBER 18, 2008 PHONE CALLS
I First Last Name- Action Numbers
John Rich
9/24120 1012:14 PM
x 202-253-3680 (Scott Polakoff I Office of Thrift Supervision - he and Scott Polakoff wi ll be in NY 202-746 -3 803 (John Rich ) tomorrow and would like to meet with you regarding Washington
Mutual.
CO
NFI
DE
NT
IAL
JPM
CD
_000
0048
56.0
0017
MONDAY, SEPTEMBER 22, 2008 PHONE CALLS
First Last Name Action Numbers Sheila Bair X 202 -898-697 4
9124/20 101 2: 16 PM
CO
NFI
DE
NT
IAL
JPM
CD
_000
0048
56.0
0018
PHONE CALLS
I First Last Name Action Numbers--I
FYI
r
FRIDAY, OCTOBER 03, 2008
Monday's 9 am mtg w/OCC has been cancel led because some of the participants have been called out of town. They will call to reschedule.
I Nancy FYI I Deb Horvath (Wamu CIO) added to your calendar on Monday at 9:15
9124120 10 12: 17 PM
CO
NFI
DE
NT
IAL
JPM
CD
_000
0048
56.0
0001
THURSDAY, MARCH 06, 2008 PHONE CALLS
[ First Last Name Action Numbers
John Mahoney Spoke to Cell: 914-260-6470 Goldman Scharf
9124120 I 0 I I :22 AM
CO
NFI
DE
NT
IAL
JPM
CD
_000
0048
56.0
0002
TUESDAY, MARCH 11, 2008 PHONE CALLS
I First Last Name Action Numbers
I Kerry Kill inger LM 206-5C
9/24120 1011 :05 AM
CO
NFI
DE
NT
IAL
JPM
CD
_000
0048
56.0
0003
WEDNESDAY, MARCH 12,2008 PHONE CALLS
[ First Last Name Action , ___ N:..:u::::m~be::.:r:..::s~_---I'---___________________ _
Kerry Kill inger RYC 206-931-3784 cell Call on his cell. If he doesn't answer send an email and he'll see it on ___________ +-____ --t_:..:ke"'r.:..ry'-.:,killinger@wamu,net his blackberry and ca"ll-,Y-"o-"u-=b:..:a:..:c",k.c.' ______________ _
9124/201 0 I I :06 AM
CO
NFI
DE
NT
IAL
JPM
CD
_000
0048
56.0
0004
THURSDAY, MARCH 13,2008 PHONE CALLS
I FirsC---cast Name Action Numbers
--
I Kerrv Killin~er X 206-5 00-31
I --=l
9124120 I 0 I I :06 AM
CO
NFI
DE
NT
IAL
JPM
CD
_000
0048
56.0
0005
MONDAY, MARCH 17,2008 PHONE CALLS
First Last Name Action Numbers
Kerry Killinger x 206-500-3139
c
~
9/24/20 I 0 II :07 AM
CO
NFI
DE
NT
IAL
JPM
CD
_000
0048
56.0
0006
MONDAY, MARCH 24, 2008 PHONE CALLS
I First Last Name Action Numbers
t Tom Baxter X 212-720-5035
r
912412010 5:28 PM
CO
NFI
DE
NT
IAL
JPM
CD
_000
0048
56.0
0007
TUESDAY, MARCH 25, 2008 PHONE CALLS
First Last Name Action Numbers
Ned Pollack 9:30 am 212-789-4501 Would like to spend 5 min w/you whenever you have time
9/24/2010 5:39 PM
CONFIDENTIAL JPMCD_000004856.00008
xx
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a o ::J
~ t.'!'j ~ z t.'!'j r.n ~ > -< ... ~
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IAL
JPM
CD
_000
0048
56.0
0009
PHONE
First Last Name
Sheila Bair
9124/201011 :17 AM
CALLS
Action Numbers
WZ -898-6974
THURSDA Y, APRIL 03, 2008
She is calling to see if you would speak at a conf_ on July 8th_ Bernanke is opening and she wants you to be the lunchtime speaker
CO
NFI
DE
NT
IAL
JPM
CD
_000
0048
56.0
0010
FRIDAY, APRIL 04, 2008 PHONE CALLS
First Last Name Action Numbers
Ned Pollock T x T 212-789 __ -:.:..45::..:0:.:..1 __ -+ _____________________ _
-
Nancy x
912412010 1\ : 17 AM
CONFIDENTIAL JPMCD_000004856.00011
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CD
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56.0
0012
FRIDAY, SEPTEMBER 05,2008 PHONE CALLS
I First Last Name . - .. --T-Action --,-
Sheila Bair X 202·898·6974 or
571·213·6836
I
9124120 1012: 11 PM
CONFIDENTIAL JPMCD_000004856.00013
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CD
_000
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56.0
0014
MONDA Y, SEPTEMBER 15, 2008 PHONE CALLS
I First Last Name Action
I I
l-f-,
Alan Fishman I LM 206-500-8781
- ~-
~ -~ -~ -
- I I I -
9124120 10 12:12 PM
CO
NFI
DE
NT
IAL
JPM
CD
_000
0048
56.0
0015
TUESDAY, SEPTEMBER 16, 2008 PHONE CALLS
First Last Name Action Numbers
Sheila Bair x 202-898-6974
Alan Fishman T x I 206-500-8781
9/24nO lO 12:13 PM
CO
NFI
DE
NT
IAL
JPM
CD
_000
0048
56.0
0016
THURSDAY, SEPTEMBER 18, 2008 PHONE CALLS
I First Last Name- Action Numbers
John Rich
9/24120 1012:14 PM
x 202-253-3680 (Scott Polakoff I Office of Thrift Supervision - he and Scott Polakoff wi ll be in NY 202-746 -3 803 (John Rich ) tomorrow and would like to meet with you regarding Washington
Mutual.
CO
NFI
DE
NT
IAL
JPM
CD
_000
0048
56.0
0017
MONDAY, SEPTEMBER 22, 2008 PHONE CALLS
First Last Name Action Numbers Sheila Bair X 202 -898-697 4
9124/20 101 2: 16 PM
CO
NFI
DE
NT
IAL
JPM
CD
_000
0048
56.0
0018
PHONE CALLS
I First Last Name Action Numbers--I
FYI
r
FRIDAY, OCTOBER 03, 2008
Monday's 9 am mtg w/OCC has been cancel led because some of the participants have been called out of town. They will call to reschedule.
I Nancy FYI I Deb Horvath (Wamu CIO) added to your calendar on Monday at 9:15
9124120 10 12: 17 PM
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4
MLA_EXAMINER_BG001
BRACEWELL &CIlILIANI
MEMORANDUM
New York Connecticut Texas Washington. DC Kazakhstan LOIldon Dubal
TO: The Federal Deposit Insurance Corporation, as Receiver of Washington Mutual Bank
FROM: Bracewell & Giuliani LLP
DATE: November 25, 2008
RE: Anticipated Tax Refund
I. Bllckgl'oulld
Evan D. Flaschen Partner
860.256.8537 Office 660.760.6310 Fax 860.518.6799 Mobile
Washington Mutual Bank ("WMB"), a federal savings and loan association and
direct, wholly-owned subsidiary of Washington Mutual, Inc. ("WMllt), was placed into
receivership ("Receivership ") by the Office of Thrift Supervision (the "OTS") on September
25, 2008. On the same date, after the Receivership was effective, the Federal Deposit
Insurance Corporation, in its capacity as statutory receiver for WMB (the "FDIC" or
"ReceiveI'"), entered into a Purchase and Assumption Agreement (the ''Purchase Agreement")
with JPMorgan Chase Bank, National Association ("JPM"), whereby JPM acquired
substantially all of the assets of WMB, including the stock of its subsidiary, Washington
Mutual Bank fsb ("WMBfsb"), in exchange for $1.9 billion and the assumption of certain
liabilities of WMB. Under the terms of the Purchase Agreement, JPM did not assume the
approximately $6.1 billion of senior notes or $7.6 billion of subordinated notes issued by
WMB.
NEWYORK\34195.1
MLA_EXAMINER_BG002
BRACEWELL &CIULIANI
Memorandum to FDIC November 25, 2008 Page 2
The purpose of this memorandum is to explain why the anticipated tax refund
resulting from the carryback of WMB's 2008 losses to 2006 and 2007 income taxes paid was
not sold to JPMorgan Chase pursuant to the Purchase Agreement.' The sh0l1 answer is that
the Purchase Agreement excludes claims that WMB has against WMI, and the anticipated tax
refund is, from WMB's perspective, a claim by WMB against WMI under their tax sharing
agreement.
II. The Purchase Agreement
The Purchase Agreement states that JPM shall acquire all of the assets of
WMB from the Receiver, subject to celtain exclusions. Specifically, the Purchase
Agreement, in Section 3.1, provides:
[T]he Receiver hereby sells, assigns, transfers, conveys, and delivers to [JPM], all right, tide and interest of the Receiver in and to all of the assets (real, personal and mixed, wherever located and however acquired) including all subsidiaries, joint ventures, partnerships, and any and all other business combinations or arrangements, whether active, inactive, dissolved or tenninated, of [WMB] whether or not reflected on the books of [WMB] as of[the close of business on the date the OTS closed WMB (the "WMB Closing")].
The Purchase Agreement fUlther provides, in Section 3.5, that:
JPM does not purchase, acquire or assume, or (except as otherwise expressly provided in this Agreement) obtain an option to purchase, acquire or assume under this Agreement the assets or Assets listed on the attached Schedule 3.5.
, This memorandum focuses on federal income tax law but there may also be relevant . anticipated state tax refunds, recognizing that many states (unlike federal) do not pelmit the carryback of losses.
NEWYORK.\34 I 95.1
MLA_EXAMINER_BG003
BRACEWELL &CILILIANI
Memorandum to FOI C November 25, 2008 Page 3
Schedule 3.5 to the Purchase Agreement specifically provides that assets so excluded from
the sale to JPM incJude:
[A]ny interest, right, action, claim, or judgment against. .. any shareholder or holding cqmpany of [WMB] ... provided, that for the purposes hereof, the acts, omissions, or other events giving rise to such cJaim shall have occurred on or before [the WMB Closing], regardless of when any such claim is discovered ....
The Purchase Agreement does not specifically identify any tax-related items of WMB as
being incJuded in or excluded from the assets sold to JPM.
For the years ended December 31, 2006 and 2007, WMB reported, in the aggregate,
profits of approximately $4 billion and over $2 billion in income tax expense.2 In 2008,
however, WMB incurred losses in excess of $3 billion in the first six-months of 2008.3
Although there is no publicly-available infonnation regarding V.S. federal taxable income of,
01' taxes paid by or on behalf of, WMB for these years, it is reasonable to conclude that WMB
had significant taxable income in 2006 and 2007 and incUlTed substantial tax losses in 2008
prior to the Receivership (the "WMB Pre-Closing Losses"). It is also believed that WMB
incuned losses as a result of the Receiver's sale of WMB's assets to JPM (the "Sale Losses")
3 Washington Mutual Inc., Quarterly Report (Fonn 10-Q) (Period Ended June 30, 2008).
NEWYORK\34195.1
MLA_EXAMINER_BG004
BRACEWELL &CrULfANI
Memorandum to FDIC November 25, 2008 . Page 4
and has and wiH continue to generate tax losses from the disposition of its retained assets
until the Receivership terminates (the "WMB Post-Sale Losses").
For U.S. federal income tax purposes, WMI and WMB are members ofa consolidated
group that files a single U.S. federal income tax return (the "WMI Group"). WMI has been
the common parent of such group for at least the past three years, and WMB was a whol1y-
owned direct subsidiary ofWMI during such time. WMI files tax returns, and pays the taxes
owing, on behalf of the WMI Group.
WMI and WMB are parties to a Tax Sharing Agreement dated August 31, 1999 by
and between WMI and its subsidiaries (the "Tax Sharing Agreement"). The Tax Sharing
Agreement generally provides that each subsidiary that is a party to the agreement shall pay
to WMI its share of the taxes, and WMI will pay to each such subsidiary its share of the
refunds, of the WMI Group. A subsidiary'S share of the group's tax liability or tax refunds is
determined as the tax liability it would have incllned or the refund it would have earned had
such subsidiary filed tax returns separately and not as a member of the consolidated group.
Specifically, the Tax Sharing Agreement provides, in relevant part, that:
WMI shall pay to [its subsidiaries] amounts that may be due them on account of (i) any overpayment of their said tax Hability for a taxable year or (ii) any credit that may result from the utilization of their net operating loss for a taxable year, such credit being detennined in accordance with the provisions of item 1 abovel] within 30
4 Item 1 of the Tax Sharing Agreement provides, in relevant pati, that "[t]or all taxable years during which [any of its subsidiaries] is a member of an 'affiliated group' of WMI as defined in Section 1504 of the Internal Revenue Code and is required to join in the
N/>WYORK\34195.1
MLA_EXAMINER_BG005
BRACEWELL &CJLILIANI
Memorandum to FDIC November 25, 2008 Page 5
days after the consolidated return is filed for that taxable year or, to the extent any such amount due must be recovered from the IRS, within 30 days after payment is received from the IRS.[5]
1II. Summary of U.S. Federal Income Tax Law With Respect to Net Operating Losses
The Internal Revenue Code of ] 986, as amended (the "Code") allows a
deduction for certain net operating loss ("NOL") carrybacks and carryforwards by corporate
taxpayers.6 An NOL, generally the excess of allowable deductions ovel' gross income of a
corporation,7 is computed for each taxable year of a corporate taxpayer.8 An NOL may be
carried back two taxable years and forward twenty taxable years to offset taxable income of
the corporation in such years.9 Absent an affirmative election, an NOL must first be carried
back to tbe second prior year, then the first prior year to obtain refunds for taxes paid in those
years, with any remaining NOL carried forward to the next following taxable year 01' years to
filing of a consolidated federal income tax return of WMI and its consolidated subsidiaries, the federal income tax liability Of such consolidated group shall be allocated and shared among [the subsidiaries] as if such entities filed a separate or consolidated return, as the case may be,"
5 Tax Sharing Agreement, at Section 2(b).
6 Code Section 172.
7 Code Section 172( c).
8 Treasury Regulation Section 1. 172-2(a).
9 Code Section 172(b)(I).
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offset taxable income. tO A corporation's "taxable year" generally is the calendar year or
fiscal year ending during such calendar year, for which the taxpayer computes taxable
income and files a tax return. Such period generally is the twelve month period properly
adopted by the corporation for tax reporting purposes, but can be less than twelve months as
corporate reorganizations and liquidations can cause an early termination of a tax yeaL l1 The
taxable year of a subsidiary of a consolidated group does not end solely because it is placed
into bankruptcy or receivership or upon a sale of substantial1y aU of its assets, and its tax year
continues until the tax year of its consolidated group ends.12
The NOL for a corporate consolidated group generalJy is the excess, if any, of the
aggregate allowable deductions over aggregate gross income of all members of a group for
the taxable year.13 The consolidated NOL can be carried back and carried forward by the
taxpayer to other consolidated return years under the principles of Code Section 172. If a
consolidated group has an NOL in a taxable year, then the common parent corporation, or its
designated agent, may file for a tentative carryback adjustment to apply such NOL against
10 Code Section 172Cb )(2).
tllQ.
12 Treasury Regulation Section 1.1502-75 and Rev. Rul. 63-104, 1963-1 CB 172. See also IRS PLR 200643001 (July 26, 2006).
\3 Treasury Regulation Section 1.1502-11 (a).
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prior year consolidated taxable income to obtain a refund. 14 A tentative application for an
NOL carryback to adjust the taxes paid by a taxpayer during prior taxable years may be filed
with Internal Revenue Service (the "IRS") only on or after the due date for filing such
taxpayer's tax return for the year in which the NOL is generated. ls Any refund due is then
paid to the common parent ofthe consolidated group, or its designated agent. 16
Notwithstanding the generalmle that tax refunds attributable to a consolidated group
are applied for by, and payable to, the common parent of such group, when a subsidiary of
the consolidated group is an insolvent financial institution for which the FDIC is authorized
to act as receiver, the FDIC may also file a canyback claim and receive the refund directly as
an agent of the consolidated groUp.17 While the FDIC, as receiver for a subsidiary of a
consolidated group, may file for the direct receipt of a refund with respect to the consolidated
14 Treasury Regulation Section 1. 1502-78(a).
15 Code Section 6411. Because claims for refunds often trigger a complete audit of the return(s) for the relevant tax years prior to payment of the refund, a taxpayer may be required to wait a substantial amount of time to obtain a refund. To expedite the process, Code Section 6411 enables a taxpayer to apply for a tentative carryback adjustment where the cash payment may be made prior to a full audit. The amount received by the taxpayer, however, is only a tentative allowance of any overpayment. Any overpayment made by the IRS pursuant to a tentative carryback adjustment can later be pursued by the IRS through a deficiency claim, whereas an overpayment of a refund can only obtained if the IRS commence an action to recover the refund from the taxpayer. For purposes of this letter both tentative calTyback adjustments and refund claims will be referred to as refund claims.
16 Treasury Regulation Section 1.1502M 78(b).
17 Treasury Regulation Section 301.6402-7.
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group, the IRS is not obligated to pay the FDIC all 01' any portion of such refund and may use
its sole discretion to determine the amount, if any, paid to the FDIC with respect to such
claim.I8
If a corporation is acquired through an acquisition of its stock, such corporation
retains its NOLs (generally subject to limitation on future utilization).19 In contrast, if the
assets of a corporation are purchased, the purchaser cannot acquire such corporation's
NOLs.20 A corporation can, however, sell its right to receive a tax refund in connection with
the asset sale?'
Accordingly, the WMB Pre~Closing Losses can be carried back to the two prior tax
years of the WMI Group to obtain a refund of prior years' taxes paid by the WMI Group with
any remaining amount of such losses being carried forward up to twenty years to offset
future taxable income of the WMI Group. Any refund received by WMI and attributable to
the WMB Pre-Closing Losses is payable to WMB as determined under the terms of the Tax
Sharing Agreement (the "WMB Tax Payment").
18 Treasury Regulation Section 30 1.6402~ 7(g).
19 Code Sections 381, 382.
20Mergers, Acquisitions. and Buyouts, Martin D. Ginsburg and Jack S. Levin, Vol. 3 at J 205 (January 2008).
21 See infra footnote 27.
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N. Treatment of Consolidated Group Tax Refunds under the Bankrll'ptcy Law
A. A Debtor's Accrued Losses Create an Inchoate Right to a Tax Refund which is Prope11y of the Debtor's Bankruptcy Estate.
Although under the tax law a corporate taxpayer cannot obtain a refund in connection
with the carryback of NOLs until after the tax year of such losses closes, the U.S. Supreme
Court has interpreted the bankruptcy law to include as property in a debtor's bankruptcy
estate a debtor's inchoate right to receive a loss carryback refund.22 In Segal the debtors had
incurred net tax losses for the taxable year through the date of the bankruptcy petition, which
did not coincide with the end of the debtors' taxable year. The Court acknowledged that the
tax law provides for calculation of tax refunds only on a full year's experience after the tax
year has closed and, as of the date of bankruptcy, the amount of any tax claim with respect to
losses of the debtors for such year could not be ascertained nol' could any claim for payment
from the IRS be made. Neve11heless, the Court held that the combination of the losses
22 Segal v. Rochelle, 382 U.S. 375, 379-381 (1966). Bankruptcy law is relevant with respect to an FDIC receivership. The FDIC has stated that "[i]n many ways the powers of the FDIC as receiver of a failed institution are similar to those of a bankruptcy trustee." The FDIC's Role as Receiver, in The FDIC Resolution Handbook at 67-68 (Apr. 2, 2003), available at, <http://www.fdic.govlbanklhistorical/reshandbookl>. See also Hightstown Rug Co. v. Nat'l Sav. & Trust Co., 186 F.2d 10, 12 (D.C. App. 1947) (stating that because similar considerations apply to the administration of both bankruptcy and receivership estates, "the legal principles applying to them naturally should follow a similar pattern"); In re Merctll'y Engineering Co., 60 F. Supp. 786, 788 (S.D. Cal. 1945) (noting that the same principles apply to bankruptcy and receivership cases); In re Riggs, 51 F. Supp. 961, 962 (E.D. Pa. 1943) (same); and Beck v. FOlt James Corp. an re Crown Vantage, Inc.). 421 F.3d 963, 971 (9th Cir. 2005) (finding that a receiver stands in the same capacity as a trustee in bankruptcy).
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incurred by the debtors as of the date. of bankruptcy and the payment of taxes in years to
which such losses could be carried back for a refund was sufficient to find that there was an
inchoate claim for refund that was transferable property of the bankmptcy estate. Although
no refund with respect to such losses could be collected from the IRS until the following
year, the "postponed enjoyment does not disqualify an interest as propelty. 1f23 The Court
found a property interest in the inchoate right to a refund despite acknowledging that post-
petition earnings of the debtors in the same tax year could offset the losses previously
incurred, eliminating the opportunity fol' a refund. Further, the Court noted that had the
debtors incurred additional losses in the same tax year after the date of bankruptcy, the
proration of such refund would be made between the pre and post-petition periods.24
The Ninth Circuit has stated its acceptance of the holding in Segal. In In re Wade
Cook Financial Corp.,25 a petition for bankruptcy was filed before the end of the debtor's tax
year and the debtor had incurred a tax loss for such tax year as of the date of the petition.
After the debtor's tax year ended, a claim for a cal1'yback of such losses was filed to obtain a
23 Id.
24 The practice of prorating tax refunds based upon the amount of losses inClined before and after a petition for bankmptcy filed before the end of the debtor's tax year has been followed in numerous cases. See, ~ Kokoszka v. Belford, 417 U.S. 642 (1974); In re Barowsky,946 F.2d at 1518 (cites nine cases and notes that "[e]very court that has considered [the] issue has held that the pOliion of an income tax refund that is based upon the pre-petition poliion of a taxable year constitutes property of the bankruptcy estate.") (citations omitted).
25 375 B.R. 580 (9th Cir. 2007).
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tax refund. The court determined that the claim for the tax refund with respect to losses
incurred prior to the petition was a prepetition claim and not a postpetition claim even though
the claim may have been contingent, unliquidated or unmatured when the petition was filed.
To resolve any doubt about the applicability of Segal, the cOUli noted "[t]hough Segal was
decided under the prior Bankruptcy Act, it remains good law under the Bankruptcy Code
applicable to the instant case.,,26
An inchoate tight to a future tax refi.md is assignable by a debtor. In Danningv.
Mintz,27 the court held that a taxpayer's right to its tax refund is generally assignable. As
long as the assignment of a tax refund is made pursuant to a valid, enforceable, contract
between the parties, the assignee obtains all of the assignor's rights to receive the refund.
B. A Subsidiary Debtor's Right to its Share of a Consolidated Group Tax Refund is a Claim against its Parent in Bankruptcy.
The courts have considered the nature of an inchoate right to a refund of a subsidiary
in a consolidated group when refi.mds payable with respect to taxes of a consolidated group
generally are payable by the IRS to the common parent of such group. The courts have
evaluated the subsidiary debtor's claim for tax refi.mds received by its parent with and
26 Id. at 597-598. See also U.S. v. Sims (In re Feiler), 218 F.3d 948, 955 (9th Cir. 2000); Chappel v. Proctor (In re Chapel), 189 B.R. 489, 493 (9th Cir. 1995).
27 367 F.2d 304 (9th Cir. 1966). See also In re Lagerstrom, 300 F. Supp. 538 (S.D. Illinois 1969) and Puget Sound Nat. Bank v. State, 123 Wash. 2d 284,292 (1994) (holding that a sales tax refund is generally assignable, because to hold would be contrary to the general principles of assignment).
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without a tax sharing agreement. In the absence of tax sharing agreement between the
parties, the courts generally find that if a subsidiary would have been entitled to a refund in
connection with a carryback ofNOLs had it always filed as a separate company, the refund
received by the parent inures to the benefit of the subsidiary that incuned the loss and the
parent holds such refund as an agent of such subsidiary. To permit the parent to retain such
refund would result in its unjust eru·ichment.28
When a subsidiary and the parent of a consolidated group are parties to a tax sharing
agreement that addresses the treatment of tax refunds, absent a clear agreement that the
parent holds refunds attributable to losses generated by a subsidiary in trust for, 01' as an
agent of, such subsidiary, the cOUl1s find the parties to have a debtor-creditor relationship
with respect to refunds.29 A tax sharing agreement generally will be found to create a trustee
28 Westem Dealer Mgmt, Inc. v. England (In re Bob Richards Chrysler-Plymouth Corp.), 473 F.2d 262, 265 (9th Cir. 1973). See also, Jump v. Manchester Life & Cas. Mgmt. Corp., 438 F. Supp. t 85, 189 (E.D. Mo. 1977) ("subsidiary has a right to recover an income tax refund channeled through a parent company filing a consolidated return, and... this right is limited to the recovery which the subsidiary would have had if it had filed individual returns throughollt"); U.S. v. Revco D.S., Inc. (In re Revco), 111 B.R. 631, 639 (Bania'. N.D. Oh. 1990) (held that subsidiary was entitled to loss-carryback refund based on In re Bob Richards holding, noting that where the parties made no agreement, the parent corporation acted as an agent for the consolidated group); FDIC v. Brandt (In re Florida Park Banks), 110 B.R. 986, 989 (Bankr. M.D. Fla. 1990) (held that FDIC, as receiver of subsidiary bank, was entitled to the tax refund received by debtor parent that was generated through the subsidiaries' operating losses).
29 Franklin Savings Corp. v. Franklin Savings Ass'n (In re Franklin Savings Corp.), 182 B.R. 859, 862-863 (D. Kan. 1993), affd 31 F.3d 1020 (lOth Cir. 2004) (holding that a debtor-creditor relationship existed where "[u]nder the tenns of the agreement, the taxes were not held in trust for the benefit of the subsidiary to be automatically turned ovel' to it").
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or agency relationship between a parent corporation in possession of a tax refund and its
subsidiary if it (i) requires the parent to segregate the tax refund from its other funds; or
(ii) restricts the parent's use of the cash tax refund.3o If the tax sharing agreement does not
explicitly or implicitly create a tmst or agency relationship between the parent and
subsidiary, the court will not deem such relationship to exist.
In In re MCorp Financial, Inc.,ll the court specifically addressed the rights of a bank
subsidiary in receivership to collect its share ofa tax refund received by its parent, a debtor in
bankruptcy, pursuant to the terms of a tax sharing agreement. The bank subsidiary and its
parent were parties to a tax sharing agreement that did not characterize the parent as
receiving any refunds attributable to the subsidiary's losses as an agent or nominee for the
subsidiary. Thus, the obligation of the parent to remit any portion of a tax refund it received
to its subsidiary created a debtor-creditor relationship between the parties. Accordingly, the
Similarly, in U.S. v. MCorp Financial, Inc. (In re MCorp Financial, Inc.), 170 B.R. 899, 903 (S.D. Tex. 1994), the court held that where the tax allocation agreement did not contain language creating a trustee relationship or provide that the parent held a "mere nominal claim to the refund," the agreement created a debtor-creditor relationship between the parent and subsidiary.
30 Superintendent ofIns. v. First Central Financial Corp. (In re First Central Financial Corp.), 269 B.R. 481, 496 (Bankr. E.D.N.Y. 2001), affd 377 F.3d 209 (2d Cit'. 2004).
31 170 B.R. 899,903 (S.D. Tex. 1994).
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court held that if the subsidiary bank, 01' the purchaser of its assets in receivership, wanted to
enforce its right to such refund against the parent it must file a claim in bankruptcy.32
The agreement for the sale of the bank subsidiary's assets between the FDIC and the
purchaser provided that the FDIC retained aU claims against the parent corporation. Thus,
the court found that the bank's claim against its parent for the tax refund pursuant to the tax
sharing agreement was a claim retained by the FDIC. Further, the purchaser of the bank's
assets could not claim any p0l1ion of the refund received by the parent on the equities of
unjust enrichment because such right does not exist between a post-bankruptcy purchaser out
of a receivership and a creditor of the estate.
The courts' interpretation of subsidiades' rights to refunds received by their parent in
bankruptcy is consistent with the FDIC's policy statement regarding tax allocations in a
holding company structure (the "Interagency Tax Policy,,).3) The Interagency Tax Policy
provides that a parent company that receives a tax refund obtains such funds as agent for the
consolidated group on behalf of the group members.34 If a refund is not paid by a parent
)2 Id.
33 Interagency Policy Statement On Income Tax Allocation In A Holding Company Structure, 64758 Interagency Policy Stmt., Federal Register/Vol. 63, No. 225 (Nov. 23, 1998).
34 Citing Treasury Regulation Section 1.1502-77(a) that states, except as othelwise provided, the common parent for a consolidated return year is the sole agent (agent for the group) that is authorized to act in its own name with respect to all matters relating to the tax liability for that consolidated return year, for each member in the group ... [t]he common parent files claims for refund, and any refund is made directly to and in the name of the
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company within a reasonable time period, the receivable should be treated as either an
extension of credit or a dividend from the subsidiary to the parent. The Interagency Tax
Policy also encourages holding companies and subsidiary financial institutions to enter into
written, comprehensive tax allocation agreements and recommends parameters for such
agreements including allocating each member's liabilities and benefits as if it had always
filed on a separate entity basis.35 The Interagency Tax Policy ful1her provides that an
institution incul1'ing a loss for tax purposes should receive a refund fi'om its parent in an
amount that is no less than the amount the institution would have been entitled to receive as a
separate entity. The Interagency Tax Policy is thus consistent with the bankruptcy law that a
tax refund paid to a parent corporation inures to the benefit of the subsidiary that incurred the
loss resulting in such refund; however, if a fair and reasonable tax sharing agreement exists
among the pa11ies, it should be followed to determine the rights of the parties with respect to
tax refunds.
common parent and discharges any liability of the Government to any member with respect to such refund.
35 Interagency Tax Policy, at 64758. Moreover, one of the primary purposes of a written tax sharing agreement in banking organizations is to govem the rights and responsibilities of the consolidated group's members in order to comport with banking laws and regulations regarding transactions between an insured depository institution and its affiliates. In the absence of a written agreement among the parties of a consolidated group, intercompany tax payments may not be properly recorded and are subject to potential abuse. For example, under Section 11(a) of the Home Owners' Loan Act (12 U.S.C. § 1468(a), transactions between WMI and WMB, as affiliates, are subject to the requirements of the provisions of Sections 23A and 23B of the Federal Reserve Act (12 U.S.C. § 371c and 12 U.S.C. § 37Ic-l) and the related regulations of the OTS.
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V. JPM's Entitlement to the WMB Tax Payment under the Purchase Agl'eement
A. The Plain Language of the Purchase Agreement.
Under the Purchase Agreement, JPM acquired from the Receiver all right, title and
interest of the Receiver in and to all of the assets of WMB as of the WMB Closing.
Specifically excluded from that transfer, however, was any interest, right, action, claim, or
judgment against any shareholder or holding company of WMB; provided, that, the acts,
omissions, 01' other events giving rise to such claim occurred on or before the WMB Closing.
The critical questions then are: what is the nature of WMB's rights to the tax refund
attributable to the WMB Pre-Closing Losses and did JPM acquire such rights?
Prior to undertaking the substantive analysis, the procedural rules for applying the
Purchase Agreement must be considered. The Purchase Agreement provides that its
interpretation will be governed by federal law and, in the absence of controlling federal law,
the law of the state in which the main office of WMB is 10cated.36 WMB is a Washington
corporation and its main office is in Seattle, Washington. Under Washington law, whenever
possible, the plain language of a contract should be considered firse7 and words should be
given their ordinary, usual, and popular meaning unless the agreement, as a whole, clearly
demonstrates a contrary intent,38 Intent should be detelmined by objective manifestations
36 Purchase Agreement, at Section 13.4.
37 Flores v. American Seafood Co., 335 F.3d 904, 910 (9th Cir. 2003).
38 Id. (intemal citations omitted).
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rather than the pmties' unexpressed subjective intent.3? Accordingly, to the extent the plain
language of the Purchase Agreement provides a clear expression of intent, such expression
should be followed without consideration of other potentially conflicting expressions of the
pmties' intentions not memolialized in the agreement.
B. WMB's Right to a Tax Refund Attributable to the Carryback of WMB PreClosing Losses is in the Form of an Accrued Claim Against WMI under the Tax Sharing Agreement.
As discussed in Section IV of this memorandum, NOLs are computed only with
respect to completed taxable years and no refunds can be claimed in connection with an NOL
carryback until after the taxable year of such losses has ended. WMB's tax year did not end
as a result of the WMB Closing. Accol'dingly, none ofWMI, the Receiver or WMB had the
absolute right to receive a cash refund directly or indirectly from the illS with respect to
WMB Pre-Closing Losses as of the WMB Closing. Thus, no tax receivable existed with
respect to such losses as of the WMB Closing to be conveyed to JPM.
The accmal of losses together with the payment of taxes in the years to which such
losses would be carried back, however, results in an inchoate right to a refund which is
transferable propelty ofa bankruptcy estate. The WMB Pre-Closing Losses were all incurred
prior to the WMB Closing, and WMB paid taxes in the two carryback years (pursuant to the
terms oftlle Tax Sharing Agreement). Accordingly, the Receiver should include the inchoate
right to a tax refund relating to the WMB Pre-Closing Losses as propel1y ofthe Receivership.
As previously described, a subsidimy in a consolidated group generally is not entitled
to receive any refund directly from the IRS with respect to the canyback of its NOLs by the
group. Instead, such refund is payable to the parent, and the subsidiaty is entitled to seek
recovery of its share in equity or, if a tax sharing agreement exists, as a creditor of the parent,
unless the agreement otherwise provides. Because WMI and WMB are parties to the Tax
Sharing Agreement as of the WMB Closing, such agreement should govern the rights of the
parties with respect to any tax refund paid to WMI. The Tax Sharing Agreement does not
indicate that refunds with respect to the group paid to WMI are held by WMI as an agent or
nominee of its subsidiaries. Therefore, WMB's entitlement to coJlect any portion of a refund
from WMI under the Tax Sharing Agreement constitutes a creditor claim against WMI.
As noted above, under the Treasury Regulations, the FDIC, as Receiver for WMB,
has the right to request that the IRS pay WMB's share of any refund with respect to the
carryback of WMB Pre-Closing Losses directly to it ~s Receiver. However, such right did
not vest in the FDIC until it became the Receiver of WMB. The Purchase Agreement is clear
that the rights and claims conveyed to JPM are determined as of the WMB Closing, which
occurred when WMB was closed by the OTS. The FDIC did not become the Receiver until
after such time. Thus, as of the WMB Closing, the FDIC had no right to seek a direct refund
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of taxes from the IRS, thus it could not convey such right to JPM nor could it have agreed to
remit to JPM any proceeds it received as a result of the exercise of such right.
Accordingly, as of the WMB Closing, the inchoate right to a tax refund with respect
to the WMB Pre-Closing Losses accrued to WMB and WMB's ability to collect such refund
was limited to establishing a claim as a creditor of WMI. Thus, the WMB Tax Payment is
properly characterized as a fully accrued claim against WMI as of the WMB Closing which
is expressly excluded from the assets conveyed to JPM under the plain language of the
Purchase Agreement and the Purchase Agreement must be interpreted to provide that the
WMB Tax Payment is retained by the Receiver.
Further, JPM has no right to any refund arising with respect to the Sale Losses or the
WMB Post-Sale Losses since they were not accrued as of the WMB Closing. Accordingly,
the right to such refunds is also retained by the FDIC for the benefit of the WMB creditors.
VI. The FDIC Can Collect the Tax Refund in One of Two Ways
As noted, the FDIC is entitled to request that the IRS pay the tax refund directly to the
FDIC. However, as also noted, it is within the IRS's sole discretion to determine the amount,
jf any, that it will pay directly to the FDIC.
The creditors of wMB urge the FDIC, in its capacity as Receiver with the statutory
obligation generally to maximize the return on the sale or disposition of the receivership
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estate's assets;1O to expediently seek direct payment from the IRS of the refunds attributable
to the WMB Pre-Closing Losses, the Sale Loss and the WMB Post-Sale Losses from the IRS.
In making such request, we urge the FDIC to emphasize to the IRS the impot1ance of the
refund to the Receivership and the highly inequitable results that would occur were the IRS
to make the payment to WMI instead and then for WMI to successfully persuade the
bankruptcy court that the Receivership should be accorded only an unsecured claim under the
Tax Sharing Agreement. As a creditor of WMI, WMB wOllld likely have a far lesser
recovery of such refund for the benefit of WMB's creditors than it would have if the FDIC
had successfully applied to receive such amounts directly.
Even if the IRS unjustly refuses to honor the FDIC's request, we would urge the
FDIC to enforce an altemative payment mechanism that would ensure that the Receivership
receives its full share of the refund, rather than merely an unsecured dividend. The FDIC is
well aware of WMI's assel1ion that it had bank "deposits" with WMB and WMBfsb of not
less than $4.4 billion. The FDIC is also aware that we have questioned whether the accounts
should properly be characterized as WMI deposits. However, if the accounts are so
characterized and if the IRS does not honor the FDIC's direct payment request, we urge the
FDIC to invoke its duties as Receiver to exercise its legal rights to offset the tax refund
40 FDIC Resolution Handbook, Introduction at 2, available at <http://www.fdic.gov/bank/historicaJ/reshandbookJindex.html>. See generalJy Golden Pac. Bancorp. v. FDIC. 375 F.3d 196,201 (2d Cir. 2004); Phelan v. Middle States Oil Corp., 154 F.2d 978,991 (2d Cir. 1946).
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against the accounts, which will ensme payment in fuIJ to the Receivership that is rightly
entitled to the refunds for the pre-Receivership taxes paid by WMB.
*****
We are grateful for your consideration of these issues and are willing, at your
convenience, to meet with you to discuss these matters or provide any other assistance
needed in interpreting the rights and obligations of the parties with respect to the tax refunds
at issue. Please do not hesitate to contact us with any questions or comments you may have.
Re: In re Washington Mutual, Inc .. et ai, Docket No. 08-12229 (MFW) (Bankr. Del.)
Dear Brad:
As you know, I represent Standard & Poor's ("S&P") in connection with the abovereferenced Washington Mutual ("WaMu") bankruptcy case. I am writing in response to the request for information that you recently made to S&P on behalf of your client, Mr. Hochberg, in his capacity as the Court-appointed Examiner in the WaMu bankruptcy case.
You requested that S&P provide you with information regarding (1) whether there was a meeting between representatives of S&P and representatives of J.P. Morgan Chase ("JPMC") regarding WaMu in March or April 2008; and (2) whether there was a meeting between representatives of S&P and representatives of JPMC regarding WaMu on September 24, 2008.
In response to your requests, I am authorized to represent to you on behalf of S&P that: (1) no meeting between representatives of S&P and representatives of JPMC regarding WaMu took place in March or April 2008; and (2) a meeting between representatives of S&P and representatives of JPMC regarding WaMu took place on September 24,2008.
As you know, documents and information regarding S&P's research and publication of credit ratings are protected by the journalist's privilege under the First Amendment to the U.S. Constitution. The information provided in this letter does not waive, and is not intended to waive, the protections of the journalist'S privilege or any other applicable privileges.
ny-946975
MLA_EXAMINER_SP002
MORRISON I FOERSTER
Brad Samuels, Esq. October 27, 2010 Page Two
Please feel free to contact me if you have any questions.
Sincerely,
~4.~ Ronald G. White
ny-946975
OTS HIGHLY CONFIDENTIAL
OFFICE OF THRIFT SUPERVISION
Receivership Of A Federal Savings Association
Date September
Order No 200836
OTS No 08551
The Director of the Office of Thrift Supervision OTS or his designee in
cooperation with the Federal Deposit Insurance Corporation FDIC has determined to
appoint the FDIC as receiver of Washington Mutual Bank Henderson Nevada SavingsBank
GROUNDS FOR APPOINTMENT OF FDIC AS RECEIVERFOR THE SAVINGS BANK
The Director or his designee based upon the administrative record finds anddetermines the following
depositors demands
in the normal course of business and
The Institution
is in an unsafe or unsound condition to transact business
The Savings Bank is likely to be unable to pay its obligations or meet its
The Savings Bank
is a Federally chartered savings bank the accounts of whichare insured by the Deposit Insurance Fund DIF The Savings Bank has its home office
in Henderson Nevada As of June 30 2008 the Savings Bank reported total assets of$307 billion
DISCUSSION OF GROUNDS FOR APPOINTMENTOF A RECEIVER FOR THE SAVINGS BANK
Section 5d2A of the Home Owners Loan Act HOLA 12 USC §1464d 2A provides that the Director may appoint a receiver for any insured savings
i iassoc at on if tine Director determines that one or more grounds specified in section
11c5 of the Federal Deposit Insurance Act FDIA 12 USC § 1821c5 exist
Under section 1 Ic5F of the FDIA the Director may appoint a receiver if asavings association is likely to be unable to pay its obligations or meet its depositorsdemands
in the normal course of business because it does not have sufficient liquid asse
to fund expected withdrawals The Savings Bank has insufficient cash and liquid assetsconvertible to cash necessary to pay its obligations and the expected withdrawal demandsof its depositors The Savings Bank has suffered significant cash outflows exceeding
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S22 billion since July 2008 in part because of adverse publicity The Savings Bank haslimited and diminishing liquidity sources available to it and the current rate of outflowWill vines Banks cash i
Therefore the Director concludes that the Savings Base is likely to be unable
obligations or meet its depositors demands in the normal course of business
toes not have sufficient liquid assets to pay those obligations and fund the
expected withdrawals
Under section I lc5C of the FDIA the Director may appoint a receiver if asavings association
is in an unsafe or unsound condition to transact business TheSavings Bank is in an unsafe and unsound condition as a result of its severe liquiditystrain deteriorating asset quality and continuing significant negative operating earningswith no realistic prospects for raising capital to ensure that it can repay all of its
liabilities including deposits
The Director or his designee therefore has determined that grounds for the
appointment for a receiver for the Savings Bank exist under section 5d2 of the HOLAand sections I Ic5C and F of the FDIA 12 USC
§§ 182 1 c5C and F
ACTIONS ORDERED OR APPROVED
Appointment of a Receiver
The Director or his designee hereby appoints the FDIC as receiver for the
Savings Bank for the purpose of liquidation pursuant to section 5d2 of the IIOLAand section I I c6B of the FDIA 12 USC
§ 1821c6B
Delegation of Authority to Act for OTS
The Director or his designee hereby authorizes the OTS West Regional Directoror his designee and the Deputy ChiefCounsel for the Business Transactions Division ofthe ChiefCounsels office or his designee to i certify orders ii sign execute attestor certify other documents of OTS issued or authorized by this Order iii designate the
persons or entity that hill give notice of the appointment of a receiver for the SavingsBank and serve the Savings Bank with a copy of this Order pursuant to 12 CFR §
5582 and iv perform such other functions of OTS necessary or appropriate for
implementation of this Order All documents to be issued under the authority of this
Order must be first approved in form and content by the ChiefCounsels Office In
addition the Director or his designee hereby authorizes the Deputy ChiefCounsel forthe Business Transactions Division ofthe Chief Counsels office or his designee
2
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make any subsequent technical corrections that might be necessary to this Order or and
documents issued under the authority of this Order
S effective September 25 20
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i Street NW Washington DC 20552 202 9066372
September 25 2008
Deputy Director and Chief Counsel
CONFIDENTIALATTORNEY CLIENT PRIVILEGE
LEGAL OPINION
MEMORANDUM FOR John M Reich Directo
Office of Thrift Supervision
FROM
Office of Thrift Supervision
Department of the Treasury
John E Bowman
Deputy Director andhief Counsel
SUBJECT Proposed appointment of the Federal Deposit Insurance Corporation FDIC as
Receiver for Washington Mutual Bank Henderson Nevada the Institution
OTS NO 08551
FORM Federal Stock
ASSETS $3070 billion as per 63008 TFRLIABIL $2787 billion as per 63008 TFRCORE CAP $212 billion as per 63008 TFRCORE CAPASSETS 707 as per 63008 TFR
I INTRODUCTION AND SUMMARY CONCLUSION
In the SMemorandum dated September 25 12008 the West Regional Office RegionalOffice explains that the Institution is beset with serious problems relating to asset qualityearnings and its ability to pay its obligations and meet its depositors demands TheSMemorandum
sets forth two statutory provisions as providing grounds for appointing a receiverfor the Institution under the standards set forth in section 11 c5 of the Federal DepositInsurance Act FDIA
The Institution is likely to be unable to pay its obligations or meet its depositorsdemands
in the normal course of business 12 USC § 1821c5F and
4
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2TheInstitution is in an unsafe or unsound condition to transact business 12 USC §
182 1 c5F
appoint the FDIC as receiver for the Institution
ce otl itt Supervision OTS
We have reviewed the record and in our opinion there
is an adequate legal basis forOTS to conclude that each of the foregoing standards for appointing a receiver for the Institutionhas been satisfied Moreover grounds exist for OTS to appoint a receiver when any of theforegoing standards has been satisfied Accordingly in our opinion on the basis of the recordthe Director or his designee has the legal authority to appoint the FDIC as receiver for theInstitution
BACKGROUND
The Institution
is a Deposit Insurance Fund DIFinsured federally chartered stock
savings bank with its home office in Henderson Nevada and its primary executive and businessoffice in Seattle Washington The Institution
operates primarily in major metropolitan areas onboth the east and west coasts and
in selected middle states with four primarybusiness lines 1the home loans group which engages in nationwide singlefamily residential SFR lendingservicing and capital market activities 2 the card services group which operates a nationwidecredit card lending business 3 the commercial group which conducts a multifamily andcommercial real estate lending business and 4 the retail banking group which
operates a retailbank network of 2239 offices in California Florida Texas New York Washington IllinoisOregon New Jersey Georgia Arizona Colorado Nevada Utah Idaho and Connecticut As ofJune 30 2008 the Institution reported that
it had $307 billion in assets The InstitutionsOTScharteredoperating subsidiary Washington Mutual Bank fsb Park City Utah holds the
Institutions investmentportfolio Washington Mutual Inc Seattle Washington Holding
Company its toptier holding company is mainly a shell holding company Based on its
consolidated assets at December 31 2007 the Holding Company was the seventh largest amongall USbased bank and thrift holding companies
Beginning in 2005 the Institution embarked on astrategy to remix assets liabilities and
capital Management began to portfolio higher yielding though riskier assets whilediversifying
liabilities and equity via preferred stock and hybrid issuances As the credit environment startedto deteriorate in late 2006 and early 2007 management began tightening credit standards withrespect to credit card and subprime lending and shifted focus to a more retail
strategy through itsretail branches As more fully addressed
in the SMemorandum the Institution has institutedsignificant operational changes since the third
quarter of 2007 including exiting all subprimeSFR lending discontinuing certain loan purchasesale operations tightening underwriting of all
portfolios closing allfreestanding home loan offices exiting the wholesale lending channel
increasing reliance on Federal Home Loan Bank FHLB advances releasing approximately $30billion
in available collateral issuing $3 billion and $7 billion in preferred and common stockrespectively with $4 billion of the proceeds infused into the Institution curtailing dividendsfrom the Institution to the Holding Company and from the Holding Company to shareholders
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3ceasingoption ARM and stated income lending and infusing the Institution with an additional
$2 billion and $500 million in capital in July and September 2008 respectively
On September 7 2008 the Holding Company and the Institution entered into a
Memorandum of Understanding MOU which required among other things a submission of a
threeyear business plan on a consolidated and unconsolidated basis and a contingency capital
plan within ninety days On September 18 2008 the Regional Office provided notice to the
Institution that its CAMELS Composite and Liquidity ratings were downgraded to a4The SMemorandum describes the decline in the Institutions asset quality and earnings
over the last year As the SMemorandum recounts nonperforming assets rose to 38 percent of
total assets as of June 30 2008 compared to 14 percent for the same period in 2007 The ratio
of classified assets to core capital plus loan allowances increased to 433 percent at June 302008 an 85 percent increase in the ratio from the same period in 2007 with the level of
classified assets increasing over the last severalyears from $26 billion 08 percent of total
assets as of December 31 2005 to $82 billion 25 percent of total assets as of December 312007 to $107 billion 34 percent of total assets as of March 31 2008 to $129 billion as of
June 30 2008 Total chargeoffs through for the yeartodate June 30 2008 were $38 billion as
compared to $23 billion for the year ended December 31 2007 The Institutions asset quality
has materiallyaffected its earnings For the first six months of 2008 the Institution reported a
net loss total of $43 billion with a projected net loss of approximately $6 billion for 2008
Further recent events have nearly eliminated the Institutions ability to meet its operating
liquidity needs Cash outflows in July and August primarily related to withdrawal of deposits
approximated $91 billion put strain on the Institutions liquidity Thereafter the Institution had
a net inflow of approximately $43 billion in deposits through promotional deposit pricing at
relatively high rates As noted above on September 8 2008 the Institution entered into an
MOU and another deposit outflow that gained momentum following media speculation about
the future of the Institution and a possible sale which combined with payments on other
obligations resulted in a net cash outflow of over $173 billion in fourteen business days The
largest single day had a net cash outflow of $36 billion
As of September 23 2008 the Institution had only $46 billion in cash to meet its liquidity
obligations Its core earnings are insufficient to supplement its cash base and it is dependent
upon borrowings from the FHLB of San Francisco the FHLB of Seattle and the Federal Reserve
Bank of San Francisco FRB to meet its funding needs The FHLB of San Francisco recently
decreased the amount of daily funding it had been providing the Institution and may not provide
any significant additional funds In addition marketbased funding sources are not immediatelyavailable to supplement liquidity As the S Memorandum states in the current market sales of
new unsecured debt and securitizations are generally unavailable Moreover most of the assets
that the Bank has that are not now collateralizing the borrowings at either the FHLBs or the
Federal Reserve Bank are of either insufficientquality or lack documentation to make them
readily saleable Those that may be saleable require time to arrange financing and sale
6
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4Poorearnings performance and less than satisfactory asset quality create additional
liquidity concerns since continued deterioration in these areas could significantly reduce the levelof available
uncertain value ofthe collateral supporting its borrowings from both the FHLBs a d th FRB in e t appears unlikelythat the funds the Institution projected will
actually be available in the amounts and in the timingrequired by the Institution to meet its obligations
The current outflow rate has declined from the one day high noted above but as noted
in
the S Memorandum the current rate of outflow will stilldeplete the Institutions cash resources
and liquidity within a short period of time
III DISCUSSION OF LEGAL ISSUES FOR APPOINTMENTOF A RECEIVER FOR THE INSTITUTION
Section 5d2A of the Home Owners Loan Act HOLAZ provides that the Director
may appoint a receiver for any insured savings association
if the Director determines that one or
more of the grounds specified in section 11c5 of the FDIA 12 USC § 1821c5 exist
A Inability to Pay Obligations or Meet Depositors Demands
Under section 11 c5F of the FDIA the Director may appoint a receiver if a savingsassociation is likely to be unable to pay its obligations or meet its depositors demands in the
normal course of business As noted above the Institution has suffered significant depositoutflows in excess of $22 billion since July 2008 in part because of adverse publicity relating to
IndyMac media speculation about the future of the Institution and deteriorating asset qualityand poor earnings The Regional Office expects these factors to continue to cause significantdeposit outflows into the foreseeable future
The Regional Office also has indicated the Institution has limited and diminishingliquidity sources available to it Further the Institution has been unable to find anyone who is
willing and able to invest sufficient capital to alleviate the Institutions problems Based on the
foregoing in our opinion there
is an adequate legal basis to conclude that
it is likely that the
Institution will be unable to pay itsobligations or meet its depositors demands in the normal
course of business
B Unsafe or Unsound Condition to Transact Business
Under section I Ic5C of the FDIA the Director may appoint a receiver if a savingsassociation is in an unsafe or unsound condition to transact business An unsafe or unsoundcondition has been identified as one where an institution
is operated in a manner that causes an
OTS has been informed that the FHLB of San Francisco will advance $500 million to the Institution forfiber 25 but will not commit to any further advances
12 USC § 1464d2A
7
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unacceptable risk to its depositors funds See= Franklin Savings Association v Director OTS934 F2d 1127 1145 10th Cir 1991 cert denied 503 US 937 1992
In our opinion the record supports a finding by the Director that a receiver may be
appointed for the Institution under this standard As detailed in the SMemorandum for the first
six months of 2008 the Institution reported a net loss of $43 billion with a projected net loss ofapproximately $6 billion for 2008 The Institution
is in an unsafe and unsound condition as aresult of its severe liquidity strain deteriorating asset quality and continuing significant negative
operating earnings with no realistic prospects for raising capital to ensure that it can repay all ofits liabilities including deposits
Therefore there is an adequate legal basis for the Director to appoint a receiver for the
Institution under either of the two standards described above
BUSINESS TRANSACTIONS DIVISION CONTACT Frances C Augello
PHONE 9066151
cc West Region Director
West Regional Counsel
John E Bowman
Kevin A Corcoran
Aaron B Kahn
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Office of Thrift Supervision
Department of the Treasury
Pacific Plaza 2001 Junipero Serra Boulevard Suite 650 Daly City CA 940141976
PO Box 7165 San Francisco CA 94 1 207 1 65 Telephone 650 7467000 Fax 650 7
PRIVILEGED AND CONFIDENTIAL
MEMORANDUM FOR Scott M Polakoff Senior Deputy Director and
Operating Officer
THROUGH Timothy T Ward Deputy Director
Examinations Supervision and Consumer Protection
FROM Darrel W Dochow Regional Director
West Region
DATE September 25 2008
SUBJECT Recommendation for Appointment of the Federal Deposit
Insurance Corporation FDIC as Receiver for
Washington Mutual Bank Henderson NV OTS No 08551
1 RECOMMENDATION AND SUMMARY
The West Regional Office recommends that the Director of the OTS appoint the FDIC as
receiver for Washington Mutual Bank Henderson Nevada WMB or the Bank We believe that
grounds exist for the appointment pursuant to Section 5d2 of the Home Owners Loan Act
HULA 12 USC § 1464d2 and Section 11c5 of the Federal Deposit Insurance Act
FDIA 12 USC § 1821c5
As explained below we believe the following grounds exist for the appointment of a receiver
1 The Bank is likely to be unable to pay its obligations or meet its depositors demands in
the normal course of business and
2 The Bank is in an unsafe and unsound condition to transact business
9
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West Region Receivership Recommendation
Washington Mutual Bank Henderson NV 08551tember 25 2008
II KEY FINANCIAL AND SUPERVISORY INFOR•MIATION
e ecte ounce tote 30 208 F •1 PCA Capital Cate o Well Ca italzed June 30 2t08Tier I Core CapitalAdjusted Total Assets FDICIA Cap Adequacy 7 07
Total RiskBased CapitallRisk d Assets FDICIA Cap Adequacy 2
Selected Supe rvisory Information
Date of Most Recent Safety and Soundness Examination 191102007
CAMELS Ratings Ratings Date September 19 2008 Report
Composite C A M E L S4 3 4 3 4 4 2
YIN Comments if applicable
Consent Agreement YN N
Open Issues or Applications YN YDenied Capital Plan YN N
Capital Disputes YIN NEnforcement Issues YIN yPCA Directive YN N
III OVERVIEW AND KEY FINANCIAL INFORMATION
Corporate Structure and General Background
WMB is a stockform federally chartered savings association The FDIC insures the Banks
deposits through its Deposit Insurance Fund WMBs home office
is in Henderson Nevada
while its primary executive and business segment headquarters are in Seattle Washington As of
June 30 2008 The bank had 2239 retail branches operating in 15 states WMB operates
primarily in major metropolitan areas on both coasts and in selected middle states with four
primary business lines 1 Home Loans 2 Card Services 3 MultifamilyCommercial Loansand 4 Retail BankingProduction and Operations
WMBs toptier holding company Washington Mutual Inc WMI is a unitary thrift holding
company It
is mainly a shell Washington Mutual Bank fsb WMBfsb is the BanksOTScharteredoperating subsidiary and it holds WMBs investment portfolio
CAMELS = Capital Asset Quality Ma agement Earnings Liquidity and Sensitivity to Market Risk
10
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Washington Mutual Bank Henderson NV 08551
September 25 2008
Pare 3 of 10
Senior management of the Bank consists of Chairman of the Board Stephen E Frank Chief
Executive Officer Alan Fishman Chief Operating Officer Steve Rotella and Chief Financial
Officer Tom Casey
The following table contains additional information about the Bank
Home Office Address 2273 North Green Valley Pkwy Ste 14 Henderson NVAdministrative Office Address 1301 Second Avenue Seattle WA 98101
Date of Federal Deposit Insurance December 27 1988
In 2005 the Bank began a strategy to remix assets liabilities and capital Management began to
portfolio higher yielding higher risk assets while diversifying liabilities and equity via preferred
stock and hybrid issuances During late 2006 and early 2007 as the credit environment started to
deteriorate management began tightening credit standards with respect to credit card and
subprime lending In the first half of 2007 management shrank the balance sheet by selling
certain loweryielding loans Total assets shrank to $3111 billion by June 30 2007 In July
2007 given the disruption of the secondary mortgage market management cut back on loans
originated for sale and began transferring held for sale loans to the held for investment portfolio
at a mark to market loss The lack of loan sale activity along with the transfer of loans into the
held for investment portfolio resulted in total assets increasing to $3288 billion at September 302007 Since 4Q07 management has discontinued the former strategy to focus on a more retail
oriented lending strategy through the branches At June 30 2008 total assets declined to $3070
billion and are projected to continue to decline due to a severe curtailment in singlefamily
residential SFR related lending
FW 1B `SM 63010$ 63007Total Assets $307022
33208 123107M
$317824 $325809
Significant operational changes since Q307 include
$328805 1 $311053
33107
$318295
Exiting all subprime SFR lending
Discontinuation of WaMu Capital Corp and its associated conduit loan purchasesale
operation
Continued wind down of the Mortgage Banker Finance warehouse lending unit
Tightened underwriting of all portfolios including a program to contractually limit
outstanding home equity lines in instances where collateral or borrower financial
condition has deteriorated
Closing all remaining freestanding home loan offices and exiting the wholesale broker
lending channel
11
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September 25 2008
Page 4 of 10
Increasing reliance on FHLB advances by using classes of assets for collateral not
previously used February 2008
Releasing an estimated $300 billion in available collateral from REIT reorgan
the second quarter of 2008
issuance of $30 billion in perpetual convertible preferred stock in December 2007
0 billion infused into WMBReducing the WMI dividend from $056 to $001 per quarter and discontinuance of
WMB dividends to WMIWM issuance of $70 billion in common stock in April 2008 with $30 billion infused
into WMBCeasing option ARM and stated income lending
A WMI infusion of an additional $20 billion to raise capital levels at WMB in July 2008
A WMI infusion of $5000 million in September 2008
Current Condition
Asset Quality
Notwithstanding the numerous operational changes undertaken by WMB management asset
quality has deteriorated significantly Nonperforming assets NPA rose to 38percent
of total
assets as of June 30 2008 compared to 14 percent for the same period in 2007 The increase in
NPAs is concentrated primarilyin permanent SFR loans primesubprime option ARM and
home equity lines of credit HELOCs Loans secured by SFRs are WMBs primary asset
representing approximately 600 percent of total assets at June 30 2008
Problem assets have also increased significantly The ratio of classified assets to core capital
plus loss allowances increased to 433 percent at June 30 2008 an 85 percent increase in the
ratio from the same period one year earlier The absolute level of classified assets has steadily
increased over the last several years from $26 billion 08 percent of total assets as of December
31 2005 to $129 billion as of June 30 2008 42 percent of total assets
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West Region Receivership Recommendation
Washington Mutual Bank Henderson NV 0855
September 25 2008
5 of 10
The following table
June 302008
WUS
hts W MBs problem asset trend
12131105 1 12131106
8000s
•m Decembe
1213107
Delinquent Loans 3389 days 1793237 071 2836771 105
WMB reported total chargeoffs of $381 billion through yeartodate YTD June 30 2008
$146 billion for 1Q08 and $235 billion for 2Q08 or 24 percent of average assets annualized
This compares unfavorably to the $241billion 075 percent of average assets annualized
reported for the year ended December 31 2007 and the $106 billion 030 percent of average
assets reported for theyear ended December 31 2006 As with problem loans most of the
chargeoffs are in the SFR portfolio which accounted for $32 billion of YTD chargeoffs
through June 30 2008
The Bank predicts a high loss case of $19 billion in residential mortgages before lost interest and
foreclosure costs Current performance tracking is in line with the high end of the Companysestimates at the time of the April capital raise At $1894 billion the residential mortgage
exposure includes $525 billion in option ARMs $607 billion in HELOCs and $174 billion insubprime loans
WMBs asset quality problems have materially affected the Banks earnings and they are
projected to have a continuing negative impact at least through the second quarter of 2009
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West Region Receivership Recommendation
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September 25 2008
Page 6 of 10
iings
Primarily because of the asset quality trends in the SFR mortgage loan portfolios net income for
the Bank has declined considerably with nominal income reported for 2007 and significant net
losses reported through June 2008 The following table illustrates the affect of the decline in
credit quality on the earnings of the Bank The table displays key financial performance figures
for 2006 2007 and YTD June 30 2008
2006
°I°
2007
°lo
YTD 613008
°lo
lEA Yield 641 684 611
Cost of Funds 372 388 275
Net Interest Spread 269 296 337
Net Interest Mar in 257 280 313
Loss Provisions avg assets 023 096 755
Noninterest Income 242 225 074
Noninterest Expense 321 382 307
ROAA 100 008 407ROAE 1192 099 5219Note Except for yieldspread information and ROAE above ratios are expressed as annualized percentage
of average assets
Source OTS Uniform Thrift Performance Report U TPR
In the first and second quarter of 2008 the Bank recorded a net loss of $11 billion and $32
billion respectively The most recent earnings projection by the Bank forecasts an annual total
net loss of approximately $60 billion for 2008 While actual credit losses through the second
quarterof 2008 remained within the forecasted range a decline in housing prices beyond the
levels assumed could produce a material increase in credit losses further depressing the
projected negative earnings
Management predicts a return to profitability in the third quarter of 2009 In the meantime the
Bank continues to report core operating earnings of approximately $16 billion per quarter This
amount is insufficient to fully offset projected increased loan losses provide sufficient funds to
meet significant deposit outflows and supplement capital
Liquidity
Recent events have significantly limited the Banks ability to meet its operating liquidity needs
As of September 25 2008 the Bank projected that it had $134 billion to meet liquidity
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September 25 2008
Pate 7 of 10
obligations A review of the sources that make up that total reveals that the Banks liqut
position is far less than the projected number suggests
The Bank estimated having $38 billion in cash and investments to meet liquidity obligations as
of September 25 2008 Core earnings are insufficient to supplement its cash base In addition
most of the Banks assets are not readily saleable Accordingly the Bank is dependent upon
borrowings from the Federal Home Loan Banks of San Francisco and Seattle FHLBSF and
FHLBSEA and Federal Reserve Bank of San Francisco to meet funding needs The Bank
projected that it
had borrowing capacity of $29 billion from the FHLBSF and the FHLBSEA
on September 25 2008 Also as of that date the Bank projected that it
had $67 billion available
for borrowing from the Feds discount window
Given the Banks current ratings and the uncertain value of the collateral supporting its
borrowings from both the FHLBs and the Federal Reserve Bank there is no assurance that the
projected funds will be available in the amounts and in the timing needed by the Bank to meet its
obligations The Federal Housing Finance Agency notified OTS that FHLBSF has agreed to
fund $05 billion on September 25 2008 but there is no guarantee that it will provide further
funds The Federal Reserve lowered the Bank to secondary credit status on September 25 2008
which resulted in an additional reduction of $1 billion in borrowing capacity Under secondary
status the Bank is subject to increased haircuts and pricing The Bank will also likely lose
access to the 28day term auction facility TAF program
Moreover even if available borrowings from the FHLBs are subject to system funding
constraints Under those constraints the FHLBSEA is limited to providing approximately $05
to $10 billion maximum advances per day on the remaining line Similarly should theFHLBSFdetermine that the collateral is adequate to supportcontinued borrowing by the Bank it is
limited to providing approximately $20 to $30 billion per day At this time it is uncertain what
if any additional advances the FHLBSF will make2
In addition marketbased funding sources are not immediately available to supplement liquidity
Sales of new unsecured debt and securitizations are generally unavailable Moreover most of
the Banks unpledged assets ie that are not now collateralizing the borrowings at either the
FHLBs or the Federal Reserve Bank are of either insufficient quality or lack documentation to
make them readily saleable Those that may be saleable require time to arrange financing and
sale
2For example the FLHBSF has informed the OTS that as of September 23 they will advance $ t billion to the Bank
for September 24 but will not commit to any further advances The FHLBSF subsequently agreed to advance $5CO
million on September 25 The FHLBSF also stated that they have received additional data on the loan cools
collateralizing the borrowings and are in the process of evaluating it for future lending decisions
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West Region Receivership Recommendation
Washington Mutual Bank Henderson N 08551
September 25 2008
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Significant deposit outflows are compounding the liquidity challenge facing the Bank The first
significant deposit outflow occurred after the closure of IndyMac Bank W 1B lost
approximately $91 billion in interest bearing and small business deposits from July 14 2008
through August 6 2008 Thereafter the Bank had a net inflow of approximately $43 billion in
deposits through promotional deposit pricing at relatively high rates
Starting with the Banks disclosure on September 8 2008 that it entered into an enforcement
action Memorandum of Understanding with the OTS a more significant deposit outflow
started This outflow gained momentum following media speculationabout the future of the
company disclosures that the company was considering a sale adverse events in the financial
sector as a whole and further rating agency downgrades of the company and the Bank resulting
in a net deposit loss of approximately $187 billion between September 8 and September 24
2008
While the current outflow rate has declined from its peak itwill deplete the Banks available
cash resources and eliminate the Banks total projected liquidity in the short term absent
additional extraordinary events Given the Banks limited sources of funds and significant
ongoing deposit outflows it is highly unlikely that it
will be able to meet its operating liquidity
needs including paying interest on deposits
IV DESCRIPTION OF MAJOR PROBLEMSGROUNDS FOR TRANSFER
The OTS Director is authorized to appoint the FDIC as receiver for any savings association if the
Director determines that grounds exist under 12 USC § 1821c5 See 12 USC §
1464d2A The specific grounds applicable include
A The Bank is likely to be unable to pay its obligations or meet its depositors demands in the
normal course of business
As described above giventhe continuing significant deposit outflows from the Bank and the
limited and diminishing available sources of liquidity it is highly likely that the bank will not
meet its funding needs in the very near future As a result the Bank is likely to be unable to pay
its obligations or meet its depositors demands in the normal course of business Therefore in
accordance with 12 USC§ 1821c5f the Director may appoint a receiver for the Bank
B The Bank is in an unsafe and unsound condition to transact business
Pursuant to 12 USG § 1821c5C the Director may appoint a receiver for the Bank if it is in
an unsafe and unsound condition to transact business For all of the reason detailed above
including the Banks severe liquidity strain deteriorating asset qualityand conti
16
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West Region Receivership Recommendation
Washington Mutual Bank Henderson NV 08
September 25 2008
Pafle 9 of 10
551
earnings the Bank is in an unsafe and unsound condition to transact business Therefore in
accordance with 12 USC § 182Ic5C the Director may appoint a receiver for the Bank
V ENFORCE ME l EIt ORY ACTIONS
OTS has taken the following supervisory or enforcement actions formal and informal with
respect to WMB
Cease and Desist Order CD On October 17 2007 OTS issued a CD order related to
weaknesses in WMBs Bank Secrecy ActAntimoney Laundering BSAJAML programs
Management has submitted a plan for compliance with the CD which OTS monitors as part of
the continuous exam process
Civil Money Penalty CMP On October 17 2007 OTS issued an order for CMPs totaling
$60448 related to WMBs violation of flood insurance regulations in its Commercial Loan
pup
Board resolution In response to a supervisory ratings downgrade letter from the Regional
Director on February 27 2008 the Board resolved on March 27 2008 to undertake strategic
initiatives to improve weaknesses related to asset quality earnings and liquidity
WMI Memorandum of Understanding OU On September 7 200$ WMI entered into an
MOLT Action items include 1 submission of a consolidated 3year business plan within 30
days for OTS review and nonobjection followed by quarterly variance reports and 2 a
contingency capital plan within 90 days
WMB Memorandum of Understanding On September 7 2008 WMB entered into a separate
MOLT Action items include 1 submission of a 3year business plan both base case and
stressed scenarios within 30 days for OTS review and nonobjection followed by quarterly
variance reports 2 a contingency capital plan within 90 days 3 a classified asset reduction
plan incorporated into the business plan 4 engaging an outside consultant to review risk
management practices 45 days and submitting a report to OTS 75 days 5 engaging an
outside consultant to review the underwriting process for the Home Loans Group 45 days and
submitting a report to OTS 75 days 6 submitting a report to OTS to address the consultants
recommendations within 30 days of receipt of the consultants reports 7 reviewing alerts for
the period April 1 2006 through June 30 2008 and filing SARs where required no later than
October 31 2008 and 8 ensuring that management corrects all OTS findings specified in the
Report of Examination and Findings Memoranda Within 55 days of the end of each quarter the
Board shall certify compliance with the MOU and submit a certified copy to the OTS
17
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West Region Receivership Recommendation
Washington Mutual Bank Henderson NV 08551
September 25 2008
Paae 10 of 10
CQNCLUSIO AND CONTACTS
Statutory grounds exist for the appointment of a receiver for the Bank We believe that the
appointment of a receiver for the Bank under these circumstances will protect the interests of the
Banks depositors and the Deposit Insurance Fund Therefore we recommend that the Director
take action to appoint the FDIC as receiver for WMB as soon as possible
The following personnel available to answer any additional questions
Name Title Phone
Benjamin D Franklin Regional Examiner 909 827 0066
James A Hendriksen Regional Counsel 650 746704I
Darrel W Dochow
Regional Director
Exhibit List Attached
18
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Office of Thrift Supervision
Department of the Treasury
Pacific Plaza 2001 Junipero Serra Boulevard Suite 650 Daly City CA 940141976
PO Box 7165 San Francisco CA 94 1 207 1 65 Telephone 650 7467000 Fax 650 7
PRIVILEGED AND CONFIDENTIAL
MEMORANDUM FOR Scott M Polakoff Senior Deputy Director and
Operating Officer
THROUGH Timothy T Ward Deputy Director
Examinations Supervision and Consumer Protection
FROM Darrel W Dochow Regional Director
West Region
DATE September 25 2008
SUBJECT Recommendation for Appointment of the Federal Deposit
Insurance Corporation FDIC as Receiver for
Washington Mutual Bank Henderson NV OTS No 08551
1 RECOMMENDATION AND SUMMARY
The West Regional Office recommends that the Director of the OTS appoint the FDIC as
receiver for Washington Mutual Bank Henderson Nevada WMB or the Bank We believe that
grounds exist for the appointment pursuant to Section 5d2 of the Home Owners Loan Act
HULA 12 USC § 1464d2 and Section 11c5 of the Federal Deposit Insurance Act
FDIA 12 USC § 1821c5
As explained below we believe the following grounds exist for the appointment of a receiver
1 The Bank is likely to be unable to pay its obligations or meet its depositors demands in
the normal course of business and
2 The Bank is in an unsafe and unsound condition to transact business
9
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West Region Receivership Recommendation
Washington Mutual Bank Henderson NV 08551tember 25 2008
II KEY FINANCIAL AND SUPERVISORY INFOR•MIATION
e ecte ounce tote 30 208 F •1 PCA Capital Cate o Well Ca italzed June 30 2t08Tier I Core CapitalAdjusted Total Assets FDICIA Cap Adequacy 7 07
Total RiskBased CapitallRisk d Assets FDICIA Cap Adequacy 2
Selected Supe rvisory Information
Date of Most Recent Safety and Soundness Examination 191102007
CAMELS Ratings Ratings Date September 19 2008 Report
Composite C A M E L S4 3 4 3 4 4 2
YIN Comments if applicable
Consent Agreement YN N
Open Issues or Applications YN YDenied Capital Plan YN N
Capital Disputes YIN NEnforcement Issues YIN yPCA Directive YN N
III OVERVIEW AND KEY FINANCIAL INFORMATION
Corporate Structure and General Background
WMB is a stockform federally chartered savings association The FDIC insures the Banks
deposits through its Deposit Insurance Fund WMBs home office
is in Henderson Nevada
while its primary executive and business segment headquarters are in Seattle Washington As of
June 30 2008 The bank had 2239 retail branches operating in 15 states WMB operates
primarily in major metropolitan areas on both coasts and in selected middle states with four
primary business lines 1 Home Loans 2 Card Services 3 MultifamilyCommercial Loansand 4 Retail BankingProduction and Operations
WMBs toptier holding company Washington Mutual Inc WMI is a unitary thrift holding
company It
is mainly a shell Washington Mutual Bank fsb WMBfsb is the BanksOTScharteredoperating subsidiary and it holds WMBs investment portfolio
CAMELS = Capital Asset Quality Ma agement Earnings Liquidity and Sensitivity to Market Risk
10
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West Region Receivership Recommendation
Washington Mutual Bank Henderson NV 08551
September 25 2008
Pare 3 of 10
Senior management of the Bank consists of Chairman of the Board Stephen E Frank Chief
Executive Officer Alan Fishman Chief Operating Officer Steve Rotella and Chief Financial
Officer Tom Casey
The following table contains additional information about the Bank
Home Office Address 2273 North Green Valley Pkwy Ste 14 Henderson NVAdministrative Office Address 1301 Second Avenue Seattle WA 98101
Date of Federal Deposit Insurance December 27 1988
In 2005 the Bank began a strategy to remix assets liabilities and capital Management began to
portfolio higher yielding higher risk assets while diversifying liabilities and equity via preferred
stock and hybrid issuances During late 2006 and early 2007 as the credit environment started to
deteriorate management began tightening credit standards with respect to credit card and
subprime lending In the first half of 2007 management shrank the balance sheet by selling
certain loweryielding loans Total assets shrank to $3111 billion by June 30 2007 In July
2007 given the disruption of the secondary mortgage market management cut back on loans
originated for sale and began transferring held for sale loans to the held for investment portfolio
at a mark to market loss The lack of loan sale activity along with the transfer of loans into the
held for investment portfolio resulted in total assets increasing to $3288 billion at September 302007 Since 4Q07 management has discontinued the former strategy to focus on a more retail
oriented lending strategy through the branches At June 30 2008 total assets declined to $3070
billion and are projected to continue to decline due to a severe curtailment in singlefamily
residential SFR related lending
FW 1B `SM 63010$ 63007Total Assets $307022
33208 123107M
$317824 $325809
Significant operational changes since Q307 include
$328805 1 $311053
33107
$318295
Exiting all subprime SFR lending
Discontinuation of WaMu Capital Corp and its associated conduit loan purchasesale
operation
Continued wind down of the Mortgage Banker Finance warehouse lending unit
Tightened underwriting of all portfolios including a program to contractually limit
outstanding home equity lines in instances where collateral or borrower financial
condition has deteriorated
Closing all remaining freestanding home loan offices and exiting the wholesale broker
lending channel
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West Region Receivership Recommendation
Washington Mutual Bank Henderson NV 08551
September 25 2008
Page 4 of 10
Increasing reliance on FHLB advances by using classes of assets for collateral not
previously used February 2008
Releasing an estimated $300 billion in available collateral from REIT reorgan
the second quarter of 2008
issuance of $30 billion in perpetual convertible preferred stock in December 2007
0 billion infused into WMBReducing the WMI dividend from $056 to $001 per quarter and discontinuance of
WMB dividends to WMIWM issuance of $70 billion in common stock in April 2008 with $30 billion infused
into WMBCeasing option ARM and stated income lending
A WMI infusion of an additional $20 billion to raise capital levels at WMB in July 2008
A WMI infusion of $5000 million in September 2008
Current Condition
Asset Quality
Notwithstanding the numerous operational changes undertaken by WMB management asset
quality has deteriorated significantly Nonperforming assets NPA rose to 38percent
of total
assets as of June 30 2008 compared to 14 percent for the same period in 2007 The increase in
NPAs is concentrated primarilyin permanent SFR loans primesubprime option ARM and
home equity lines of credit HELOCs Loans secured by SFRs are WMBs primary asset
representing approximately 600 percent of total assets at June 30 2008
Problem assets have also increased significantly The ratio of classified assets to core capital
plus loss allowances increased to 433 percent at June 30 2008 an 85 percent increase in the
ratio from the same period one year earlier The absolute level of classified assets has steadily
increased over the last several years from $26 billion 08 percent of total assets as of December
31 2005 to $129 billion as of June 30 2008 42 percent of total assets
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West Region Receivership Recommendation
Washington Mutual Bank Henderson NV 0855
September 25 2008
5 of 10
The following table
June 302008
WUS
hts W MBs problem asset trend
12131105 1 12131106
8000s
•m Decembe
1213107
Delinquent Loans 3389 days 1793237 071 2836771 105
WMB reported total chargeoffs of $381 billion through yeartodate YTD June 30 2008
$146 billion for 1Q08 and $235 billion for 2Q08 or 24 percent of average assets annualized
This compares unfavorably to the $241billion 075 percent of average assets annualized
reported for the year ended December 31 2007 and the $106 billion 030 percent of average
assets reported for theyear ended December 31 2006 As with problem loans most of the
chargeoffs are in the SFR portfolio which accounted for $32 billion of YTD chargeoffs
through June 30 2008
The Bank predicts a high loss case of $19 billion in residential mortgages before lost interest and
foreclosure costs Current performance tracking is in line with the high end of the Companysestimates at the time of the April capital raise At $1894 billion the residential mortgage
exposure includes $525 billion in option ARMs $607 billion in HELOCs and $174 billion insubprime loans
WMBs asset quality problems have materially affected the Banks earnings and they are
projected to have a continuing negative impact at least through the second quarter of 2009
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West Region Receivership Recommendation
Washington Mutual Bank Henderson NV 08551
September 25 2008
Page 6 of 10
iings
Primarily because of the asset quality trends in the SFR mortgage loan portfolios net income for
the Bank has declined considerably with nominal income reported for 2007 and significant net
losses reported through June 2008 The following table illustrates the affect of the decline in
credit quality on the earnings of the Bank The table displays key financial performance figures
for 2006 2007 and YTD June 30 2008
2006
°I°
2007
°lo
YTD 613008
°lo
lEA Yield 641 684 611
Cost of Funds 372 388 275
Net Interest Spread 269 296 337
Net Interest Mar in 257 280 313
Loss Provisions avg assets 023 096 755
Noninterest Income 242 225 074
Noninterest Expense 321 382 307
ROAA 100 008 407ROAE 1192 099 5219Note Except for yieldspread information and ROAE above ratios are expressed as annualized percentage
of average assets
Source OTS Uniform Thrift Performance Report U TPR
In the first and second quarter of 2008 the Bank recorded a net loss of $11 billion and $32
billion respectively The most recent earnings projection by the Bank forecasts an annual total
net loss of approximately $60 billion for 2008 While actual credit losses through the second
quarterof 2008 remained within the forecasted range a decline in housing prices beyond the
levels assumed could produce a material increase in credit losses further depressing the
projected negative earnings
Management predicts a return to profitability in the third quarter of 2009 In the meantime the
Bank continues to report core operating earnings of approximately $16 billion per quarter This
amount is insufficient to fully offset projected increased loan losses provide sufficient funds to
meet significant deposit outflows and supplement capital
Liquidity
Recent events have significantly limited the Banks ability to meet its operating liquidity needs
As of September 25 2008 the Bank projected that it had $134 billion to meet liquidity
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West Region Receivership Recommendation
Washington Mutual Bank Henderson NV 08551
September 25 2008
Pate 7 of 10
obligations A review of the sources that make up that total reveals that the Banks liqut
position is far less than the projected number suggests
The Bank estimated having $38 billion in cash and investments to meet liquidity obligations as
of September 25 2008 Core earnings are insufficient to supplement its cash base In addition
most of the Banks assets are not readily saleable Accordingly the Bank is dependent upon
borrowings from the Federal Home Loan Banks of San Francisco and Seattle FHLBSF and
FHLBSEA and Federal Reserve Bank of San Francisco to meet funding needs The Bank
projected that it
had borrowing capacity of $29 billion from the FHLBSF and the FHLBSEA
on September 25 2008 Also as of that date the Bank projected that it
had $67 billion available
for borrowing from the Feds discount window
Given the Banks current ratings and the uncertain value of the collateral supporting its
borrowings from both the FHLBs and the Federal Reserve Bank there is no assurance that the
projected funds will be available in the amounts and in the timing needed by the Bank to meet its
obligations The Federal Housing Finance Agency notified OTS that FHLBSF has agreed to
fund $05 billion on September 25 2008 but there is no guarantee that it will provide further
funds The Federal Reserve lowered the Bank to secondary credit status on September 25 2008
which resulted in an additional reduction of $1 billion in borrowing capacity Under secondary
status the Bank is subject to increased haircuts and pricing The Bank will also likely lose
access to the 28day term auction facility TAF program
Moreover even if available borrowings from the FHLBs are subject to system funding
constraints Under those constraints the FHLBSEA is limited to providing approximately $05
to $10 billion maximum advances per day on the remaining line Similarly should theFHLBSFdetermine that the collateral is adequate to supportcontinued borrowing by the Bank it is
limited to providing approximately $20 to $30 billion per day At this time it is uncertain what
if any additional advances the FHLBSF will make2
In addition marketbased funding sources are not immediately available to supplement liquidity
Sales of new unsecured debt and securitizations are generally unavailable Moreover most of
the Banks unpledged assets ie that are not now collateralizing the borrowings at either the
FHLBs or the Federal Reserve Bank are of either insufficient quality or lack documentation to
make them readily saleable Those that may be saleable require time to arrange financing and
sale
2For example the FLHBSF has informed the OTS that as of September 23 they will advance $ t billion to the Bank
for September 24 but will not commit to any further advances The FHLBSF subsequently agreed to advance $5CO
million on September 25 The FHLBSF also stated that they have received additional data on the loan cools
collateralizing the borrowings and are in the process of evaluating it for future lending decisions
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West Region Receivership Recommendation
Washington Mutual Bank Henderson N 08551
September 25 2008
8 of 10
Significant deposit outflows are compounding the liquidity challenge facing the Bank The first
significant deposit outflow occurred after the closure of IndyMac Bank W 1B lost
approximately $91 billion in interest bearing and small business deposits from July 14 2008
through August 6 2008 Thereafter the Bank had a net inflow of approximately $43 billion in
deposits through promotional deposit pricing at relatively high rates
Starting with the Banks disclosure on September 8 2008 that it entered into an enforcement
action Memorandum of Understanding with the OTS a more significant deposit outflow
started This outflow gained momentum following media speculationabout the future of the
company disclosures that the company was considering a sale adverse events in the financial
sector as a whole and further rating agency downgrades of the company and the Bank resulting
in a net deposit loss of approximately $187 billion between September 8 and September 24
2008
While the current outflow rate has declined from its peak itwill deplete the Banks available
cash resources and eliminate the Banks total projected liquidity in the short term absent
additional extraordinary events Given the Banks limited sources of funds and significant
ongoing deposit outflows it is highly unlikely that it
will be able to meet its operating liquidity
needs including paying interest on deposits
IV DESCRIPTION OF MAJOR PROBLEMSGROUNDS FOR TRANSFER
The OTS Director is authorized to appoint the FDIC as receiver for any savings association if the
Director determines that grounds exist under 12 USC § 1821c5 See 12 USC §
1464d2A The specific grounds applicable include
A The Bank is likely to be unable to pay its obligations or meet its depositors demands in the
normal course of business
As described above giventhe continuing significant deposit outflows from the Bank and the
limited and diminishing available sources of liquidity it is highly likely that the bank will not
meet its funding needs in the very near future As a result the Bank is likely to be unable to pay
its obligations or meet its depositors demands in the normal course of business Therefore in
accordance with 12 USC§ 1821c5f the Director may appoint a receiver for the Bank
B The Bank is in an unsafe and unsound condition to transact business
Pursuant to 12 USG § 1821c5C the Director may appoint a receiver for the Bank if it is in
an unsafe and unsound condition to transact business For all of the reason detailed above
including the Banks severe liquidity strain deteriorating asset qualityand conti
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West Region Receivership Recommendation
Washington Mutual Bank Henderson NV 08
September 25 2008
Pafle 9 of 10
551
earnings the Bank is in an unsafe and unsound condition to transact business Therefore in
accordance with 12 USC § 182Ic5C the Director may appoint a receiver for the Bank
V ENFORCE ME l EIt ORY ACTIONS
OTS has taken the following supervisory or enforcement actions formal and informal with
respect to WMB
Cease and Desist Order CD On October 17 2007 OTS issued a CD order related to
weaknesses in WMBs Bank Secrecy ActAntimoney Laundering BSAJAML programs
Management has submitted a plan for compliance with the CD which OTS monitors as part of
the continuous exam process
Civil Money Penalty CMP On October 17 2007 OTS issued an order for CMPs totaling
$60448 related to WMBs violation of flood insurance regulations in its Commercial Loan
pup
Board resolution In response to a supervisory ratings downgrade letter from the Regional
Director on February 27 2008 the Board resolved on March 27 2008 to undertake strategic
initiatives to improve weaknesses related to asset quality earnings and liquidity
WMI Memorandum of Understanding OU On September 7 200$ WMI entered into an
MOLT Action items include 1 submission of a consolidated 3year business plan within 30
days for OTS review and nonobjection followed by quarterly variance reports and 2 a
contingency capital plan within 90 days
WMB Memorandum of Understanding On September 7 2008 WMB entered into a separate
MOLT Action items include 1 submission of a 3year business plan both base case and
stressed scenarios within 30 days for OTS review and nonobjection followed by quarterly
variance reports 2 a contingency capital plan within 90 days 3 a classified asset reduction
plan incorporated into the business plan 4 engaging an outside consultant to review risk
management practices 45 days and submitting a report to OTS 75 days 5 engaging an
outside consultant to review the underwriting process for the Home Loans Group 45 days and
submitting a report to OTS 75 days 6 submitting a report to OTS to address the consultants
recommendations within 30 days of receipt of the consultants reports 7 reviewing alerts for
the period April 1 2006 through June 30 2008 and filing SARs where required no later than
October 31 2008 and 8 ensuring that management corrects all OTS findings specified in the
Report of Examination and Findings Memoranda Within 55 days of the end of each quarter the
Board shall certify compliance with the MOU and submit a certified copy to the OTS
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West Region Receivership Recommendation
Washington Mutual Bank Henderson NV 08551
September 25 2008
Paae 10 of 10
CQNCLUSIO AND CONTACTS
Statutory grounds exist for the appointment of a receiver for the Bank We believe that the
appointment of a receiver for the Bank under these circumstances will protect the interests of the
Banks depositors and the Deposit Insurance Fund Therefore we recommend that the Director
take action to appoint the FDIC as receiver for WMB as soon as possible
The following personnel available to answer any additional questions
Name Title Phone
Benjamin D Franklin Regional Examiner 909 827 0066
James A Hendriksen Regional Counsel 650 746704I
Darrel W Dochow
Regional Director
Exhibit List Attached
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M MORAN13 OF UNDERSTANDING
ective Date by and between Washington Mutual Bank Savings
Association or WaMu OTS Docket No 08551 acting through its Board of Directors Board
and the Office of Thrift Supervision OTS or Agency acting through its West Regional
Director The Board agrees to take or direct management to take the actions set forth below to
address the supervisory issues identified in the OTS examination of WaMu completed June 30
2008
1 Business Plan
A Within thirty 30 calendar days ofthe Effective Date of this Memon
Board shall review and approve a comprehensive three 3 year business plan Business Plan
and submit such Plan to the OTS for review and written nonobjection The Business Plan shall
1 provide an analysis of the earnings profitability and stability of all existing and projected
business lines 2 present comprehensive business line strategic goals and objectives
3 provide a detailed financial forecast including a forecasted levels or ratios of Tier I Core
Capital and Total RiskBased capital for the Savings Association in the scenario reasonably
believed by management to have the highest probability of occurrence the Base Scenario
b forecasted levels or ratios of Tier I Core Capital and Total RiskBased capital in a scenario
where projected credit losses materially exceed those forecast in the Base Scenario the Stressed
Scenario c minimum levels or ratios of Tier I Core Capital and Total RiskBased capital for
the Savings Association and d plans under both the Base Scenario and the Stressed Scenario to
reduce Classified Assets The Plans submitted shall include supporting documentation for all
assumptions and projections
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Following receipt of the nonobjection of the OTS the Board shall immediately
the Business Plan The Board shall cause management to sr
deviate he Bur the OTS thirty 30 s prior to the
proposed date for implementation of such change unless the OTS waives such time period
WaMu may make such change only after the OTS provides its written nonobjection
C Management shall prepare and submit to the Board and to the OTS reports
regarding the Savings Associations compliance with the Business Plan including the Classified
Asset Reduction Plan on at least a quarterly basis within thirty 30 calendar days after the close
of each quarter starting with the first quarter after the Effective Date of this Memorandum Such
reports shall 1 detail actual operating results as compared with projected results and
2 provide an explanation for any material deviation The Boards review of the Business Plan
and related reports shall be fully documented in the Board minutes
2 Capital
A The Savings Association shall remain in compliance with the minimum capital
ratios contained in the approved Business Plan discussed in Paragraph l which shall provide that
in no event shall Tier 1 Core capital fall below 675 percent and Total RiskBased capital ratio
fall below 1125 percent
B The Board shall not declare a dividend or authorize any other capital distribution
as defined at 12 CFR § 563141 without the Savings Association filing a notice with the OTS
at least thirty 30 calendar days prior to the proposed dividend or distribution and receiving the
written nonobjection of the OTS
C The Savings Association shall review and revise as appropriate its methodology
for assuring an adequate level of Allowance for Loan and Lease Losses ALLL and shall
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maintain such adequate levels taking into consideration the OTS findings specified in the OTS
D The Board shall review and approve a contingency capital plan and submit a copy
days of the Effective Date that specifies how
the Savings Association would continue to meet the minimum capital ratios contained in the
approved Business Plan under additional stress scenarios where loss and other projections
become materially incorrect
3 Classified Asset Reduction Plan
A The Savings Association shall incorporate into the approved Business Plan
discussed in Paragraph I a written comprehensive Classified Asset Reduction Plan The
Classified Asset Reduction Plan shall 1 set targets acceptable to the OTS 2 specify the
manner and methods for reducing the Savings Associations level of classified assets to the
targets set therein and 3 include supporting documentation for all assumptions and projections
B Management shall prepare and submit to the Board and the OTS variance reports
regarding the Savings Associations compliance with the Classified Asset Reduction Plan as part
of its reporting required by Paragraph 1C hereof
4 Risk Management
A Within fortyfive 45 calendar days of the Effective Date of this Memorandum
the Savings Association shall engage an independent outside consultant acceptable to the OTS to
review the Savings Associations risk management structure reporting relationships to
Management and the Board and related policies procedures and practices The consultant shall
identify the major credit market and operational risks ofthe Savings Association and assess the
risk measures limits and controls for
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Within seventyfive 75 calendar days of the Effective Date of this Memorandum
d
5 Asset Quality
A Within fortyfive 45 calendar days of the Effective Date of this Memorandum
the Savings Association shall engage an independent outside consultant to review the Savings
Associations underwriting process for the Home Loans Group including the verification and
boarding of customer information loan quality goals incentives to production staff monitoring
and addressing sources of poor quality loans use of automated underwriting systems fraud
detection and elevation and correction of internallyor externally identified process
shortcomings
B Within seventyfive 75 calendar days of the Effective Date of this Memorandum
the consultant shall prepare a written report containing findings and recommendations for asset
quality practices arising out of its review required by Paragraph 5A above and provide a copy of
the report to the Board and the OTS
6 Responses to Consultant Reports
Within thirty 30 calendar days of receipt of the independent consultant reports required
by Paragraphs 4 and 5 of this Memorandum the Board shall provide to the OTS its response to
each report including the actions proposed to be taken to address the specific recommendations
contained therein The OTS shall determine in its sole discretion whether the responses are
acceptable If the OTS determines that the responses are not acceptable the OTS shall provide
the Board with written comments Thereafter the Board shall after taking into consideration any
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comments received by the OTS submit a revised response acceptable to the OTS within thirty
7
endar days of the receipt of such
let views and SAR Ff9s
A The Board shall cause mar g meat to complete by no later than October 31
2008 its review of all look back alerts generated during the period between April 1 2006 and
April 1 2007 all steady state tail alerts generated during the second half of 2007 and all
steady state alerts generated during the first two quarters of 2008 and to file Suspicious Activity
Reports SARs with the Financial CrimesEnforcement Network where required by the
Currency and Foreign Transactions Reporting Act the Bank Secrecy Act or BSA 31 USC
§ 5311 etq and the related BSA regulations issued by the United States Department of the
Treasury 31 CFR Part 103 and the OTS 12 CFR§ 563177 The Board shall require that
management certify to the Board immediatelyupon completion of all reviews and investigations
arising out of the look back and tail alerts that such reviews and investigations have been
completed and that all required SARs have been filed The Board will provide to the OTS a
copy of managements certification within five 5 days of receipt by the Board
8 OTS Findings
The Board shall ensure that management corrects all OTS findings specified in the
Report of Examination and in the Findings Memoranda from the OTS examination ofWaltMu
completed June 30 2008 by the specified due dates therein The Board shall receive written
reports detailing the status of the corrective actions monthly
9 Definitions
All technical words or terms used in this Memorandum for which meanings are not
specified or otherwise provided by the provisions of this Memorandum shall insofar as
applicable have meanings as defined in Chapter V of Title 12 of the Code of Federal
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an Act HOLA Federal Deposit Insuranc
f Fede l Re l ons
s used in this Memorandum and undef
r OTS Publications shall have mean
OTS
accordance with the best custom and usage in the savings and loan industry
10 Compliance with the Memorandum
A All policies procedures corrective actions plans programs and reviews required
by this Memorandum collectively referred to as Plans and Policies shall conform to all
applicable statutes regulations and written OTS policy and guidance that has been published by
the OTS or distributed by the OTS to OTSregulated institutions The Board shall cause
management to revise such Plans and Policies as required by the OTS The Savings Association
shall comply with all Plans and Policies required by this Memorandum including any revisions
or amendments required by the OTS or to which the OTS provided a written notice ofnonobjectionB This Memorandum requires the Savings Association to receive approval notice of
nonobjection ornotice of acceptability from the OTS for certain actions The Board affirms
that such regulatory oversight does not derogate or supplant each individual members
continuing fiduciary duty The Board shall have the ultimate responsibility for overseeing the
safe and sound operation of the Savings Association at all times including but not limited to
compliance with this Memorandum
D The Board shall require that Board minutes and Board Committee minutes reflect
fully all matters presented to and discussed by the Board at Board and Board Committee
meetings related to this Memorandum in accordance with 12 CFR § 563170c
E By the fiftyfifth 55th calendar day ater the end of each calendar quarter
beginning with the first quarter after the Effective Date of this Memorandum the Board shall
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and the Se
I
tinquiryof relevant information inc sensations or certifications frot
aMus management regarding the Savings Associations compliance with each provi
this Memorandum to the best of the Boards knowledge and belief during the immediately
preceding calendarquarter the Savings Association complied with each provision of this
Memorandum currently in effect except as otherwise stated If there are any areas ofnoncompliancethe Compliance Resolution shall 1 specify in detail how if at all full compliance
was found not to exist and 2 identify all notices of exemption ornonobjection issued by the
OTS that were outstanding as of the date of its adoption In the event that one or more directors
do not agree with the representations set forth in a Compliance Resolution such disagreement
shall be noted in the Board meeting minutes
11 Submission of Documents
The Savings Association shall submit copies of all required documents to
Mr Darrel W Dochow Regional Director
West Region
Office of Thrift Supervision
2001 Junipero Serra Blvd Suite 650
Daly City CA 940143897
Mr Dale R Blackburn Assistant Director
West Region
Office of Thrift Supervision
101 Stewart Street Suite 1414
Seattle WA 981412419
12 Miscellaneous Provisions
A Upon receipt of a written request by the Savings Association the Regional
Director may in the sole discretion of the Agency extend the timeframes and deadlines set forth
in this Memorandum by written notice of nonobjection to the Savings Association
7
oard shall provide a certified
dution shall provide that following a diligent
OTSWMIBKRCY00000143
HIGHLY CONFIDENTIAL
Restricted For Use in Connection with Plan Confirmation Only
OTS HIGHLY CONFIDENTIAL
co
iscretion to be
which it is subject or
auowrng the Savtugs
appropriate in ling the responsibilities placed upon it by law
C The provisions of this Memorandum shall remain effective except to the extent
that and until such time as any provision of this Memorandum is modified terminated
suspended or set aside by the OTS acting through the Regional Director
D The Board shall not adopt a resolution rescinding any obligations to comply with
the provisions of this Memorandum without the prior written nonobjection of the OTS
13 Counterparts
This Memorandum may be executed in counterparts
Signatures appear on next page
140
OTSWMIBKRCY00000144
HIGHLY CONFIDENTIAL
Restricted For Use in Connection with Plan Confirmation Only
OTS HIGHLY CONFIDENTIAL
IN WITNESS WHEREOF OTS acting by and through its Regional Director and the
Savings Association authorized and directed by the Board hereby execute this Memorandum as
of the Effective Date
OFFICE OF THRIFT SUPERVISION
By
Darrel W Dochow Date
Regional Director West Region
WASHINGTON MUTUAL BANK
By
Stephen E Frank Date
Chair
The undersigned Directors of Washington Mutual Bank attest that on September 7 2008the Board unanimously adopted a res€ilution authorizing and directing Stephen Frank to
execute this MOU on behalf of the Savings Association
David Bonderman
Thomas C Leppert
Charles M Lillis Phillip D Matthews
gnatures continued on next page
141
OTSWMIBKRCY00000145
HIGHLY CONFIDENTIAL
Restricted For Use in Connection with Plan Confirmation Only
OTS HIGHLY CONFIDENTIAL
SEP 82008 254PM TEXAS PACIFIC NO 156
IN WIT E S WHEREOF OTS acting by and through its Regional Director and the
Savings Association authorized and directed by the Board hereby execute this Memorandum as
ofthe Effective Date
OFFICE OF THRIFT SUPERVISION
By
Darrel W Dochow
Regional Director West Region
Date
WASHINGTON MUTUAL LANK
By
Stephen E Frank
Chair
Date
The undersigned Directors of Washington Mutual Bank attest that on September 7 2008the Board unanimously adopted a resolution authorizing and directing Stephen Frank toexecute this MOU on behalf of the Savings Association
David Bonderman
omas C
Charles M Lillis
ppertt
Phillip D Matthews
atures continued on next page
9142
OTSWMIBKRCY00000146
HIGHLY CONFIDENTIAL
Restricted For Use in Connection with Plan Confirmation Only
OTS HIGHLY CONFIDENTIAL
2008 1149 3032091906 LONE REE PAGE 0303
IN WITNESS WHEREOF OTS acting by and through its Regional Director and the
of the Effe
OFFICE OF THRIFT SUPERVISION
ByD
arr
el
W Dochow Date
Regional Director West Region
WASHINGTON MUTUAL BANK
Stephen E Frank Date
Chair
am a
The undersigned Directors of Washington M ttual Bank attest that on September 7 2008the Board unanimously adopted a resolution authorizing and directing Stephen Frank toexecute this MOU on behalf of the Savings Association
Alan H Fishman
Stephen
David Bonderman
Thomas C Leppert
Charles M LillisPhiliip D Matthews
atures continued on nextna
9143
OTSWMIBKRCY00000147
HIGHLY CONFIDENTIAL
Restricted For Use in Connection with Plan Confirmation Only
OTS HIGHLY CONFIDENTIAL
Sep 15 2008 544PM Cite of Dallas 214S700646 p2
IN WITNESS WHEREOF OTS acting by and through its Regional Di cto
Savings Association authori=d and directed by the Board hereby execute this Memorai
of the Effective Date
OFFICE OF THRIFT SUPERVISION
By
Darrel W Dochow
Regional Director West Region
GTON MUTUAL BANK
By
Stephen E Frank
Chair
Date
nd the
The undersigned Directors of Washington Mutual Bank attest that on September 7 2008the Board unanimously adopted a resolution authorizing and directing Stephen Frank to
execute this MOU on behalf of the Savings Association
Alan H Fishman
Stephen E Frank
Charles M Lillis Phillip D Matthews
Signatures continued an next page
OTSWMIBKRCY00000148
HIGHLY CONFIDENTIAL
Restricted For Use in Connection with Plan Confirmation Only
OTS HIGHLY CONFIDENTIAL
Z04 311 213 0
IN WITNESS WHEREOF OTS acting by and through its Regional Director and the
Savings Association authorized and directed by the Board hereby execute this l iemorandum as
of the Effective Date
OFFICE OF TFT SUPERVISION
By
Darrel W Dochow Date
Regional Director West Region
WASHINGTON MUTUAL BANK
By
Stephen E Frank Date
Chair
The undersigned Directors of Washington Mutual Bank attest that on September 7 2008the Board unanimously adopted a resolution authorizing and directing Stephen Frank to
execute this MOU on behalf of the Savings Association
Alan H Fishman David Bonderman
Stephen E Frank Thomas C Leppert
Charles M Lillis
Signatures continued on next page
91
45
OTSWMIBKRCY00000149
HIGHLY CONFIDENTIAL
Restricted For Use in Connection with Plan Confirmation Only
OTS HIGHLY CONFIDENTIAL
09082008 1343 FAX 509 534 3839 CENTRAL PREMIX CORP
Michael K Murp
Stephen I Chazen
Orin C Smith
Regina T Montoya1
01
46
Margaret Osmer M1cQuade
William G Reed Jr
James H Stever
a002003
OTSWMIBKRCY00000150
HIGHLY CONFIDENTIAL
Restricted For Use in Connection with Plan Confirmation Only
OTS HIGHLY CONFIDENTIAL
d
Stephen I Chen
Orin C Smith
Regis T Montoya
147n•RqGrR09 apenooW Rajej WUL• = I Boca so Jas
OTSWMIBKRCY00000151
HIGHLY CONFIDENTIAL
Restricted For Use in Connection with Plan Confirmation Only
OTS HIGHLY CONFIDENTIAL
20080908 0714ai FromCPC LA President 4 CFO
Michae Murphy
810 443 8812 7522 P003003 F223
d Jr
Orin C Smith
Regina T Montoya
10
Ja
me
s H Stever
148
OTSWMIBKRCY00000152
HIGHLY CONFIDENTIAL
Restricted For Use in Connection with Plan Confirmation Only
OTS HIGHLY CONFIDENTIAL
SEF092006 1622 SIMPSON 206 224 5470 P0303
Michael K Murphy Margaret Omer McQuade
tephen I Chazen
Orin C Smith
Regina T Montoya10149
awes H Stever
TOTAL P03
OTSWMIBKRCY00000153
HIGHLY CONFIDENTIAL
Restricted For Use in Connection with Plan Confirmation Only
OTS HIGHLY CONFIDENTIAL
p 15 08 1038a Orin Smith 1234567
Michael K Murphy
Stephen 1 Chazen
Regina T Montoya
150
Margaret OsTnerMcQuade
G Reed Jr
ames H Stever
p1
OTSWMIBKRCY00000154
HIGHLY CONFIDENTIAL
Restricted For Use in Connection with Plan Confirmation Only
OTS HIGHLY CONFIDENTIAL
Sep 08 08 0643p Jim Stever 425 392 3748 p2
I K Murphy Margaret Osmer McQuade
Stephen L Chazen
Orin C Smith
Regina T Montoya
William G Reed Jr
OTSWMIBKRCY00000155
HIGHLY CONFIDENTIAL
Restricted For Use in Connection with Plan Confirmation Only
OTS HIGHLY CONFIDENTIAL
09092008 1153 2148260741 WORKRiLES
Michael K Murphy
f I Chaaen
Orin C Smith
Io
Margaret Osmer McQuade
William G Reed Jr
ver
152
PAGE 02
OTSWMIBKRCY00000156
HIGHLY CONFIDENTIAL
Restricted For Use in Connection with Plan Confirmation Only
OTS HIGHLY CONFIDENTIAL
Augello Frances
FromSentToCcSubject
Fran
Jim asked me to send
Ben
Franklin Benjamin D
Thursday September 25 2008 1159 AMAugello Frances
Hendriksen James AFW Saleable assets
OriginalMessageFromFreilinger Peter ea lltopeterfreilinger wamunetjSent Tuesday September 23 2008 550 AMTo Franklin Benjamin D Stearns Steve Bjorklund BobCc Doperalski Cathy L Bisset John K Wu Vicky Smith ChadSubject Re Saleable assets
Ben
Note that the pool Robert mentioned is actually not particularly saleable its simplyunencumbered in other collateralized borrowing programs The quality of that collateralis generally quite poor or else documentation issues exist that would preclude easy saleor transfer
Our most easily saleable collateral pools consist of about $2bln in MERS electroniccollateral file registry SFR loans and the roughly $8bin in performing subprime loans inWM Specialty Mortgage Finance Steve can give you more pool level detail on those butthey would require ab out 30 days to turn around and finance
Otherwise we could sell traditional SFR loans or MF loans as long as we maintain assetcoverage at the FHLB We have some excess capacity there obviously loan sales would eatinto that capacity but to the extent we generate more proceeds than current haircutlevels we would increase liquidity
It would be possible as well to free up the collateral associated with the WM PreferredFunding program This would require a regulatory order to convert the current WMPreferred Funding series into their associated series of WMI preferred stock which isdesigned typically to occur only in PCA It would also significantly increase the netdividend cost after tax but it would release the closed end 1st lien FELOC hybrid ARMand option ARM collateral in the program I believe the current balances there are around$9 billion Vicky can get you more information on the collateral and the program exchangedynamics
To the exte^ there was liquidity in the securitlies markets we could also sell CMBS ourcorporate and our muri bond portfolios We use some of those for Fed capacity butgenerally do not draw on it and those portfolios in aggregate represent around $7bill io
is makes sense
crrglnal messageFromBenjamin D <penjeminfranklinotstreasgov>To Freilinger Peter Stearns Steve Bjorklund BobCc Doperalskr Cathy L Bisset John K <johnbissetotstreasgov>
2008
1269
OTSWMIBKRCY00000278
HIGHLY CONFIDENTIAL
Restricted For Use in Connection with Plan Confirmation Only
OTS HIGHLY CONFIDENTIAL
Peter Steve Boo
Peter I understaso I have address Steve and
on a well
to help us
served vaca
n you absenion if so bon voyage
We would ake aisting of all such assets including the current book and market valuethe likelihood that these could be sold if cant sell explain why estimated proceedsitent sale and gnat impact this would have on capital and liquidity
Give me a call is you need further details
Thanks
Ben
270
OTSWMIBKRCY00000279
HIGHLY CONFIDENTIAL
Restricted For Use in Connection with Plan Confirmation Only
OTS HIGHLY CONFIDENTIAL
Augello Frances
FromSentToCcSubject
Fran
Jim asked me to send
Ben
Franklin Benjamin D
Thursday September 25 2008 1159 AMAugello Frances
Hendriksen James AFW Saleable assets
OriginalMessageFromFreilinger Peter ea lltopeterfreilinger wamunetjSent Tuesday September 23 2008 550 AMTo Franklin Benjamin D Stearns Steve Bjorklund BobCc Doperalski Cathy L Bisset John K Wu Vicky Smith ChadSubject Re Saleable assets
Ben
Note that the pool Robert mentioned is actually not particularly saleable its simplyunencumbered in other collateralized borrowing programs The quality of that collateralis generally quite poor or else documentation issues exist that would preclude easy saleor transfer
Our most easily saleable collateral pools consist of about $2bln in MERS electroniccollateral file registry SFR loans and the roughly $8bin in performing subprime loans inWM Specialty Mortgage Finance Steve can give you more pool level detail on those butthey would require ab out 30 days to turn around and finance
Otherwise we could sell traditional SFR loans or MF loans as long as we maintain assetcoverage at the FHLB We have some excess capacity there obviously loan sales would eatinto that capacity but to the extent we generate more proceeds than current haircutlevels we would increase liquidity
It would be possible as well to free up the collateral associated with the WM PreferredFunding program This would require a regulatory order to convert the current WMPreferred Funding series into their associated series of WMI preferred stock which isdesigned typically to occur only in PCA It would also significantly increase the netdividend cost after tax but it would release the closed end 1st lien FELOC hybrid ARMand option ARM collateral in the program I believe the current balances there are around$9 billion Vicky can get you more information on the collateral and the program exchangedynamics
To the exte^ there was liquidity in the securitlies markets we could also sell CMBS ourcorporate and our muri bond portfolios We use some of those for Fed capacity butgenerally do not draw on it and those portfolios in aggregate represent around $7bill io
is makes sense
crrglnal messageFromBenjamin D <penjeminfranklinotstreasgov>To Freilinger Peter Stearns Steve Bjorklund BobCc Doperalskr Cathy L Bisset John K <johnbissetotstreasgov>
2008
1269
OTSWMIBKRCY00000278
HIGHLY CONFIDENTIAL
Restricted For Use in Connection with Plan Confirmation Only
OTS HIGHLY CONFIDENTIAL
Peter Steve Boo
Peter I understaso I have address Steve and
on a well
to help us
served vaca
n you absenion if so bon voyage
We would ake aisting of all such assets including the current book and market valuethe likelihood that these could be sold if cant sell explain why estimated proceedsitent sale and gnat impact this would have on capital and liquidity
Give me a call is you need further details
Thanks
Ben
270
OTSWMIBKRCY00000279
HIGHLY CONFIDENTIAL
Restricted For Use in Connection with Plan Confirmation Only
OTS HIGHLY CONFIDENTIAL
Page I of 1
Augello Frances
From Hendriksen James A
Sent Thursday September 25 2008 1158 AM
To Augello Frances
Subject FW Ending Liquidity Totals for 922
Importance High
From Franklin Benjamin D
Sent Monday September 22 2008 558 PMTo Reich John M Polakoff Scott M Ward Timothy T Quigley Lori G Dochow Darrel W Blackburn Dale RBrickman Michael R Chow Edwin L
Cc Bisset John K Rook Christopher D Hendriksen James ASubject FW Ending Liquidity Totals for 922Importance High
The table below is the Banks estimate of Liquidity sources The earlier table sent out that estimated $2078 in
available sources was put together by George Doerr FDIC The difference is that George discounted the Banksestimated available line from the FHLB SF from $85 B to $10 billion because of the uncertainty at presentregarding whether the FHLB will continue to advance funds We understand that WaMu is still in discussion withFHLB SF in this regard and do not yet know how this will turn out
Ben
From Bjorklund Bob mailtobobbjorklundwamunetSent Monday September 22 2008 537 PMTo PatrickJLoncarsffrborg JudyPlocksffrborg Bisset John K sfunarofdicgov Franklin Benjamin DRook Christopher D
Cc Freilinger Peter Stearns Steve Doperalski Cathy LSubject Ending Liquidity Totals for 922
Sources Friday Today
919 0922
FHLB $161 $135DW $92 $92
Repo $4 $4
Ffds $025 $025Cash $62 $46
Ffds 517 $08
DNs$16 $161MM $29 S22Rev $00 $00
Total $322 $280
CommentaryWe had $2B in advances settle $500mm u
down
in
the morning Redeemed $650 fror
morning And when you t
Please email we with al
9252008
as a reduction in capacity due to some price changes at SF We will be chasing that
Is and left 5800mm on deposit in
the fed account to ensure the ACH wiresget sent out in the
in
ffds sold you have the drop in capacity from Friday
272
OTSWMIBKRCY00000283
HIGHLY CONFIDENTIAL
Restricted For Use in Connection with Plan Confirmation Only
HIGHLY
OTS -- HIGHLY CONFIDENTIAL
...., lVI1N1QI..:l:-·~O) (iN1 31'1Aib'd A1LJ!H1S
OTS-WMI-BKRCY-00001016
HIGHLY r.OI\lFH1FN
OTS HIGHLY CONFIDENTIAL
V1 ------- ~---------------------"- ~
lS-;M lJJ"Oi:ld
OTS-WMI-BKRCY-OOOO1017
"" ,
"' "' ~
r
w
" ,L
~
Headquarter:;:
MarKet capitalb:ation
EfllIloyees 49,403
TotatAssets lmanaged) $346,313
$24,51!4
C:allfornfa
Option Arms 558,870 Florida
Prirre Horne Equity 60,962 Texas New York
Subprime 18,617 Washington Other 63,267 IUina!!') Total Oregon
Source; SNL financial, FactSet Note: M.arket data as of March 26, 2008, Financial data as of December 31, 2007 ! GAAP assets of 532Sbn
0 -I Ul
I -Gl I
'< n 0 z ;:!l 0 m Z
266 -I -249 » r
215 186
144
105 86
b8 64 40 37
l4 22 13
PROJECT WEST 2
,0
w
" V
"' 0
'" ,e
Arm;
Prim? Home
Other
Total
Corrrrercial
Credit card (l1l,"a,~e,d)
Goodwi[ & inta",: lb."
MSRs
Cash &: securities
Other .. ",ts .
Totalassets (managed)
T~"";<hle common equity
Total (ammn
TeE/TA'
60,962
18,617
63,267
,716
31,754
27,231
7,675
6,278
45,096
24,683
3
23,718
4.69%
TCE/Tangible managed assets of 3.9%
$13,964
4.36%
Wholesale
FHlB Other borrowin!,!s
Trust ore'ferred
Other Habinties'
Total.abilities
Preferred
Common
Total Habibties &
12.131 $13,517
21,192
4.22%
22,604
63,852
62,279
1,230
$321,729
3,392
21
$346,313
PROJEO WEST 3
~ I G) I
'< n o z ;!l o m z ;j l> r
s
Line of business
Card services 165 724 540 Commerdal 462 396 315
Home loan (50) (2,4601 0 Other 200 -I
U1
Total I ~
Gl I r::;:
Noninterest income
T otat revenue
Provislon for loan losses $816 Total noninterest
Total expense $13,910
Pre~tal( proHt $4,710 $309 Taxes 1,656 376
Income from contlnuing operations ,.")
Income from discontinued operations $38 $444 SO 5: Net income
~
u ~
Note: as of D;:cember 31, 2007 , 1 Includes minority interest expense ()
~
~ .,JIIIFIV11Ui !:;jIGII \.J PROJE'CT WEST 4
'"" ~"
I", i
3:! ." i '-' w
<0 ~
0"
Provision 1
Pre~orovision incomE.' 1.751
Net income to common
EPS
Common T",noih!p comrron
TCE/TA 4.2%
shortfa~' 51
Source: W6t management I Midpoint of $1.8 2,0 biUkm guidance given OIl 4Q conference caU • Versus. 4.15% target TCEITA j At 12131/07 a 4.75% refITA target required $15,211 of TCE
0 1.635 -I
!fl
::J: -Gl ::J:
(1.66) '<
11
4.0% 3.8%
PROJECT WE'ST 5
HIGHLY CONFIDENTIAL
OTS -- HIGHLY CONFIDENTIAL
LS]N, .!...)](Odd
OTS-WMI-BKRCY-OOOO1D22
OTS -- HIGHLY CONFIDENTIAL
OTS-WMI-BKRCY-OOOO1023
Prime Home 63 3 ~ if)
Prime Mortgage 55 2 2 12 22
Sub Prime 1 st lien 7 37 43 I
35 5 ~
Gl
Sub Prime 2nd lien 34 66 67 77 76 I r:;:
Total 3% 6% 23% 35% n 0 z " ~ 0 m z ;:j J> r
,-~,
;;
,-u
-, 0 ,< Q
PROJECT WEST 8
>,
~I " '.J ~
0 ~
0.
• Accrual rate each month
• Minimum Oilvment adjusts year
• Monthly payment oplUo/lS
~ Minimum {selected of borrowersl
~ Interest
C"rt~ilinp {f,,<ter amortization, typically 15
• Recast ~ Earlier of 5 years or amortization
cap
Increase in minimum can substantial
• Jmentation; most ARMs limited
• Preo"vmpnt: many Option ARMs have pr.ep,lyrneinl
• 2/3 rds
• Primary risks:
.. shock at recast
.. Increased leverage
• Recast and magnitude driven
" Intra minimum payment rate and amortization
30 versus 40
iii
.. Interest rate "paths" and spreads
" the
.. Borrower behavior
Preoilliment (refinancing, property
• Limited history, in context to the current
less
environment. makes it very difficult to future
I
intro rates 1
PROJECT WE5.T 9
~ (fJ
::r -Gl I
'<
;;;;::: -'
~
3
r v
~
~I ,
Consumer mort282e
Home
f1n.tinn ARM
Other
Home 1st lien
Home EQuitv: 2nd Lien
Subnrimf' Channel
SubPrime: 1st Lien
SubPrime: 2nd lien
Totalliome Loans 8:
Sourte: West management p""""tatio"
$1
862
757
6.3% 1.5
2.0% 10.8
13.2%
28.9
, . ,
40.5
PROJECT WEST 10
~ Ul
::c -Gl ::c '< n 0 z ;:n 0 m z -1 -:<> r
a -l Ul , ~ :;: ~ , (JJ
A
i!i -< , 0 0 0 0 .... a N
"
f-~
" '" ~
u
4' ~
0
'" 0.
Home
Prime MortoaQe
Total
• ,~
1 ru,sumes , As.sumes
CAft &
FL
13.1
21.4
..-
/)9, , n"', V c --.;;..<:'
'" e;? ~~ ~ ,
11,700
6,417
--'.'
'?' if
19.2
34.5
PROJ[CT I'/<IT
a -l (f)
:I -Gl :I ~
11
HIGHLY
OTS -- HIGHLY CONFIDENTIAL
I § ~ ~ 0
~
11 ~ t i E .~ ~ .. ~ ]! ~
€ l: I ~ ~ " ' -l .l: z
1£ w • ~ • u u
~
~ 1;1 ~ '" ~
~ ~ ;;: ci '" ~ ~ a ~ ~ ~ .
;;; .;;;
M II ~ N ~
~ ". II ::l ~ i ;:;- .. e I;! ~ ~
-'j; s· ;;:
~ M § N "
~
g i ~ g ~ oJ i " '" "
~1
i ~ ~ II
i ~ .~
~ ~ e i ~ ~
~ I ii ,
~ .~
~ .$ 3
0
.~ • ~ .~ ~ ~ ;0 0 .~ :j • " ~ ~ > g ~ z i£ " w j! 0
~ ;e z u u
lS_]iA l).JrOl:!d
OTS-WMI-BKRCY-00001028
w
3: ,... v ,,, . , o oc ~
Revenue
ProvIsion
NorHnter-a.t e;(~
Minority Interest ex~e
f're-taJol incQmt
Ml'tm;;:!.X'I!e
"'" CQI11n::l11 equity
hngiD!.f. c!}mwn equity
TCE! TA
Cllpitaldeiitiel'lty I (lJ~ioo'
$14,928 515,418
15,500 5,000
a,no 8,105
lOS )"
19,0'97) 2,008
(56A2) 51.46
S15.523 516,543 1,96(:, 9,0$4
2.74% ),26%
$tS,76a
],700
8,11)
lOS
3,650
~Z.52
513,117
10,6\1~
3.92%
Revenue
"'''''''100 Noo-ifltff€'1t a;;pe1'l~
Mln«lty interest expens-e
Pre-till( income
Net Income
El'S
COll11ll'OO equlty
Tangible corrrron equ[ty
mlTA
$1",9lR
'1011,300
a,220
lO>
{$2.80)
$'11:.,]15
8,Hl5
)"
W'i,n8
7,<00
8,10
lOS
"0,)" / {SO.OfI)
$'14,)87 SH,563
8,758 1,074 6/.$5
.",j.<ti."" do not account for im::reased r;on-accrualloans; and Assumes no dNidend in 2008, $0.30 in. 2[){)'11 and 30% payout ratio from to West's outstanding $3.0bn of Series R Coovertlble S.tQtm of REIT Preferred and SO.5bn of preferred would add ~2.6% to TCE/TA. Assumes, 00 share buyback • I Above 4,]5% TCEJTA
PROJECT WEST 13
~ :c Gi I
'< n o z :::l o m z ;::j
f'.
0"
~
" u
;1
-$1
Tangibte corrunon equj~
1'2131/07 Tangtbte common equity
less: 2008 tosses and dividends 12/31 J08 Tangible common equity at dosing
Adjustments Credit lmpajrment
loan reserve adjustment
Conforming LlR
Purchase Accounting
Pre-tax
($20,415)
6,631
(2,414)
r $13,517'/
./
After~tax
4,377
(1,593, (1,326)
($11,023,
(51,646)
Park capacity is, futly utiUzed
1213112008 Total assets Risk weighted assets at ctosing t
Capital requIred at 8.0%
West qualifying hybrids!
Tier i needed
Hybrid capacity
Reduce Park balance sheet Common issuances
5197,585 213,560
~ I
Gi I !:;:
HIGHLY CONFIDENTIAL
OTS -- HIGHLY CO,NFJIOENll
co --' :I: IJ..
C
'" 0
'" (I) u u
'" >-U It! ::I c:r <l! (I) ....
"0 to ctj III
;... (I)
"" 0 '-
'" z --' l 1 ] I ! :1 ,
• • • • • • •
lSJ/'.:\ 1)3rO}Jd
OTS-WMI-BKRCY-OOOOI031
CONFIDENTIAL
OTS -- HIGHLY CONFIDENTIAL
B
lSJN,lJ3fOdd
OTS-WMI-BKRCY-00001032
HIGHLY
OTS -- HIGHLY CONFIDENTIAL
'~J:,\ IJ]rn}10
OTS-WMI-BKRCY-00001033
I
Ncvada 1 2 37 63,683 36.2% 43.2~
New York B 235 15,691 2.3% 664 211,318 31.7%
Washington 2 1&\ 13,002 12.3% 12.4% 0 -1
Florida 5 266 11,880 3.2% 59 13 568 19.4% IJl
Texas 7 ,.9 9,062 2.5% <00 63,1.45 18.8%
Oregon J 'OS 5,696 11.9% 18.:;% ::c ~
New Jer'£.ey ,2 8. 3,lOO 1.6% 8 ,64 7,052 16,4% Gl I
, Total N:lE less intang.ible a.mortization and 4Q goodwtU tmpairment charge (Of'Mortgage Banking 1 iIO"i!" reaU:;;:<ed merger saving::. as of 2011
2011
PROJECT WElT 24
0 -l Ul
:r: -G) :r: '=< n 0 :z '11 -0 ~
>-~
~
~
r V
.. ., ~
01 "'[
Home Lenrl1nD
Commerdal
Card
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WaMu Investment Review
New Investment
TPG Highlights
On April 8 2008 TPG signed a definitive agreement to invest $2
billion in WaMu as the lead investor in a $7 billion capital raise
Investment is representative of TPG thesis on premium value
of deposits and culmination of 6+ month firmwide proactive
effort targeting finance services assets
TPG well positioned vs other sponsors given its historical relationship
with WaMu and CEO Kerry Killinger
Experience investing in financial services assets and banks
specifically allowed us to complete diligence very quickly including
an extensive review of WaMus mortgage portfolio
TPG value added to WaMu
Encouraged management to raise a sufficient equity capital
cushion ultimately resulting in $7bn raise
After setting the terms of the deal TPG as the sole sponsor
marketed the deal to other investors Lead to an incredibly
successful and oversubscribed offering
Key Transaction Terms
Committed Capital $20 billion
BuyIn Price $875
Common Shares 2286 million shares
Warrants 25 warrant coverage or 571 million warrants
Warrant strike price of $1006 115 of buyin
price
Pro Forma Ownership 13 basic ownership
Board of Directors David Bonderman to join Board
Larry Kellner to serve as observer
Placement Fee 25 or $50 million
Reset Provision 18 months duration triggered in the event of a
down round or down sale
Warrant strike price resets in the event of a
down round down sale
WaMU
Stock Price Performance Last Two Years
$5000
700
600
500
400
300
200
100
0
TPG BuyIn =
$875 14 Discount
$800 21 Discount w warrants
MR
> C 5 0 Q V > 0 C0 C6 7 N O N 6 N O Q 6 7
Q n O Z 0 LL • Q
awA
TPG Announced
Capital Raise
I
0 Q V > 0 C T6 6
Q co 0 z 0 U$4000
$3000
$2000
$1000
$000
0
Confidential TP000002318
HIGHLY CONFIDENTIAL
Restricted For Use in Connection with Plan Confirmation Only
WaMu Investment Review
New Investment
Investment Thesis
Security Offers Compelling RiskReward Profile
25 warrant coverage at 115 of our common equity buyin price
offers incremental upside economics
18 month reset provision
14 unadjusted buyin discount 21 discount including value of
warrants
Strong Retail Banking Franchise in Attractive Markets
Sixth largest US bank thrift in the US with over 2200 branches
Powerful national retail banking brand with innovative products
such as signature free checking
Attractive footprint California Florida and NYC projected to grow
households at 16x the national average
Significant Opportunity for Operational Improvement
Management estimates significant incremental opportunity for cost
savings in the nearterm
Introduction of highly complementary products could drive deeper
household penetration within the retail bank
David Bonderman will rejoin the Board of Directors and Larry Kellner
will take an observer seat
Attractive Valuation and Exit Multiple Upside
Need for capital and valueadded partnership created opportunity to
invest substantial capital at a significant discount to longterm
trading averages
WaMus strong brand and positioning in high growth markets make
it an attractive acquisition target for larger banks
Strategic interest could generate exit multiple upside
Strong Earnings Power
We believe that WaMu has the potential to generate substantial
earnings in a more normalized environment
Such an earnings base would yield an attractive valuation several
years down the road even with conservative multiples
Experienced Management Team
Kerry Killinger CEO has 32 years of industry experience 26 years
at WaMuKillinger has significantly upgraded the ranks of his direct reports
with several individuals with over 20 years of industry experience at
large financial institutions
Depository Landscape
1 Bank of America $633B
2 JPMorgan Chase $440B
3 Wachovia $393B
4 Wells Fargo $292B
5 Citigroup $209B
6 Washington Mutual $1828
7 SunTrust $116B
8 US Bancorp $113B
Note Deposit data as of 123107
1
TP000002319
HIGHLY CONFIDENTIAL
Restricted For Use in Connection with Plan Confirmation Only
097471-0033-10033-NY02.2652717.3 09/19/2008 2:27 AM
PERSONAL AND CONFIDENTIAL
September 15, 2008
Mr. Todd H. Baker Executive Vice President of Corporate Strategy & Development Washington Mutual, Inc. 1301 Second Avenue Seattle, WA 98101
Dear Mr. Baker:
We refer to our engagement as financial advisor to Washington Mutual, Inc. (the "Company") pursuant to the engagement letter (the “Engagement Letter”), dated March 30, 2008, between Company and Goldman, Sachs & Co. ("Goldman Sachs"). The Company and Goldman Sachs hereby agree that the Engagement Letter shall be amended and restated as set forth herein. We are pleased to confirm the arrangements under which Goldman Sachs is exclusively engaged by the Company as financial advisor (i) in connection with the possible sale of all or a portion of the Company (a “Sale Transaction”) and (ii) to assist the Company in its analysis and consideration of various financial alternatives available to it, and such other matters as to which you and we may agree during the course of our engagement. Such financial alternatives and other matters may include [investments, [acquisitions,] divestitures, financial restructurings, liability management transactions, public or private financings (including the offering of securities), mergers or other business combination transactions, sale transactions involving all or a portion of the Company, stock or debt repurchases, joint ventures, or other operations involving the Company. This engagement is exclusive to Goldman Sachs except that it is understood and agreed that the Company may also engage Morgan Stanley in connection with this transaction pursuant to a separate engagement letter with comparable fee arrangements.
During the term of our engagement, we will provide you with financial advice and assistance in connection with this potential transaction, which may include performing financial analyses, searching for a purchaser or investors acceptable to you, coordinating visits of potential purchasers and investors and assisting you in negotiating the financial aspects of the transaction.
CONFIDENTIAL WAMUBKEXAM-GS-000001
Washington Mutual, Inc. September 15, 2008 Page Two
097471-0033-10033-NY02.2652717.3 09/19/2008 2:27 AM
At your request we also will undertake a study to enable us to render our opinion as to the fairness from a financial point of view of the financial consideration to be received by stockholders of the Company in connection with the sale of 50% or more of the outstanding common stock of the Company. The nature and scope of our investigation as well as the scope, form and substance of our opinion shall be such as we consider appropriate. If requested our opinion will be in written form.
The fees for our engagement will depend on the outcome of this assignment. Upon announcement of, or execution of a definitive agreement with respect to, a sale of 50% or more of the outstanding common stock or assets (based on the book value thereof) of the Company, the Company agrees to pay us a fee of $4,000,000 (the “Initial Fee”). If the purchase of 50% or more of the outstanding common stock or the assets (based on the book value thereof) of the Company is accomplished in one or a series of transactions, including, but not limited to, private or open market purchases of stock, a tender offer, an exchange offer, a merger or a sale by the Company of its stock or assets, we will charge a transaction fee (the “Sale Completion Fee”) equal to the greater of (i) $18,750,000 and (ii) 0.1875% of the aggregate consideration paid in such transactions, less, to the extent paid, the Initial Fee, subject to a maximum transaction fee of $50.0 million. If less than 50% of the outstanding common stock or the assets (based on the book value thereof) is acquired in the manner set forth in the preceding sentence, will charge a transaction fee to be mutually agreed upon by Goldman Sachs and the Company; provided, however, in the event such transaction takes the form of a private placement of the Company’s common stock, preferred securities or other capital securities to one or more financial sponsors or investors who were contacted in connection with the transactions referenced in the preceding sentence, we will charge a transaction fee (the “Investor Completion Fee”) equal to 1.375% of the gross proceeds received by the Company from a sale of such securities. Except as provided herein, a transaction fee will be paid to us in cash upon consummation of each transaction.
The aggregate consideration for purposes of calculating a Sale Completion Fee shall be:
(i) in the case of the sale, exchange or purchase of the Company's equity securities, the total consideration paid for such securities (including amounts paid, distributed or issued to holders of options, warrants and convertible securities); provided, that for purposes of calculating aggregate consideration pursuant to this clause (i), the consideration paid for options and warrants shall be deemed to equal the spread value of such options or warrants (the difference between the exercise price and the amount paid for the underlying shares as calculated in accordance with this letter), and
(ii) in the case of a sale or disposition by the Company of assets, the total consideration paid for such net assets, plus the net value of any current assets not sold by the Company.
CONFIDENTIAL WAMUBKEXAM-GS-000002
Washington Mutual, Inc. September 15, 2008 Page Three
097471-0033-10033-NY02.2652717.3 09/19/2008 2:27 AM
Amounts paid into escrow and contingent payments in connection with any transaction will be included as part of the aggregate consideration. Fees on amounts paid into escrow will be payable upon the establishment of such escrow. If the consideration in connection with any transaction may be increased by payments related to future events, the portion of our fee relating to such contingent payments will be calculated and paid if and when such contingent payments are made. Aggregate consideration also shall include the aggregate amount of any (i) dividends or other distributions declared by the Company with respect to its stock after the date hereof, other than normal recurring cash dividends in amounts not materially greater than currently paid, and (ii) amounts paid by the Company to repurchase any securities of the Company outstanding on the date hereof.
In connection with a sale of 50% or more of the outstanding common stock of the Company, the Sale Completion Fee will be payable and calculated under the definition of aggregate consideration set forth above as though 100% of the outstanding common stock on a fully diluted basis had been acquired for the same per share amount paid in the transaction in which 50% or more of the Company's outstanding common stock is acquired by a purchaser or group of affiliated purchasers. Nevertheless, our services pursuant to this letter will continue after control is obtained to assist you with a second step merger or similar transaction.
If any portion of the aggregate consideration is paid in the form of securities, the value of such securities, for purposes of calculating the transaction fee, will be determined by the average of the last sales prices for such securities on the five trading days ending five trading days prior to the date of the consummation of the transaction. If such securities do not have an existing public trading market, the value of the securities shall be the mutually agreed upon fair market value on the day prior to the consummation of the transaction.
If the Company or any of its affiliates enters into an agreement with respect to a transaction in respect of which a Sale Completion Fee would be payable upon consummation thereof (the “Agreement”) and the Agreement provides for a payment at any time to the Company in the event the transaction contemplated thereby is terminated or otherwise not consummated (the “Payment”), the Company agrees to pay to Goldman Sachs a transaction fee, in cash if and when such Payment is made to the Company, equal to the lesser of (i) 10% of such Payment and (ii) the amount that would otherwise have been payable by the Company to Goldman Sachs if such transaction had been consummated in accordance with its terms.
In the event that the Company determines to undertake a public or private offering of its common stock, preferred securities or any securities linked to the Company’s common stock or preferred stock other than any transaction for which a fee is payable pursuant to paragraph four of this letter (an “Offering”), the Company shall offer Goldman Sachs the right to act (i) as the joint (with other investment banks) lead book-running manager and (ii) as the joint (with other investment banks) lead agent in such offering, in each case with a fee of not
CONFIDENTIAL WAMUBKEXAM-GS-000003
Washington Mutual, Inc. September 15, 2008 Page Four
097471-0033-10033-NY02.2652717.3 09/19/2008 2:27 AM
less than 2.75% of the amount of the aggregate offering price of such securities and at least 40% of the total economics. If Goldman Sachs agrees to act in such capacity, the Company and Goldman Sachs will enter into an appropriate form of underwriting or other applicable agreement containing customary terms and conditions, including customary fee provisions and provisions relating to our indemnity. However, unless specifically covered by a separate agreement setting forth such arrangement, the provisions in the attached Annex A shall apply to each such transaction. The Company acknowledges that this letter is neither an expressed nor an implied commitment by Goldman Sachs to act in any capacity in any such transaction, to provide financing or to purchase or place any securities, which commitment shall only be set forth in a separate agreement.
The above fee does not include any services Goldman Sachs may render in the future to the Company with respect to any specific transaction of the type referred to in the first paragraph of this letter other than a Sale Transaction or an Offering. In the event that the Company determines to undertake a specific transaction of such type, the Company shall offer Goldman Sachs the right to act in such transaction as (i) sole lead arranger and book-runner, sole syndication agent and administrative agent in the case of a syndicated bank loan or bridge loan, (ii) sole dealer manager, sole agent, sole counterparty or exclusive financial advisor, as applicable, in the case of any exchange or tender offer, or consent solicitation undertaken by the Company or any repurchase of debt or equity securities by the Company including any open market repurchase, Dutch tender offer, forward purchase or accelerated stock buyback, and (iii) exclusive financial advisor or dealer manager, as applicable, in the case of any other transaction. If Goldman Sachs agrees to act in such capacity, the Company and Goldman Sachs will enter into an appropriate form of agreement relating to the type of transaction involved and containing customary terms and conditions, including customary fee provisions and provisions relating to our indemnity. However, unless specifically covered by a separate agreement setting forth such arrangement, the provisions in the attached Annex A shall apply to each such transaction. In addition, the Company shall offer Goldman Sachs the right to act as sole principal or sole counterparty in the case of any foreign exchange or commodities transaction, currency or interest rate swap or other hedging or derivative transaction related to the financing of any transaction referred to in the first paragraph hereof. Where Goldman Sachs agrees to act as the principal or counterparty in a swap, hedging, derivative, stock buyback or any other transaction with the Company, such transactions will be based on customary documentation for such transactions and Goldman Sachs will not be acting as an agent of or advisor to the Company with respect to such transactions or the terms thereof. The Company acknowledges that this letter agreement is neither an expressed nor an implied commitment by Goldman Sachs to act in any capacity in any such transaction, to provide financing or to purchase or place any securities, which commitment shall only be set forth in a separate agreement.
CONFIDENTIAL WAMUBKEXAM-GS-000004
Washington Mutual, Inc. September 15, 2008 Page Five
097471-0033-10033-NY02.2652717.3 09/19/2008 2:27 AM
You also agree to reimburse us periodically, upon request, and upon consummation of the transaction or transactions contemplated hereby or upon termination of our services pursuant to this agreement, for our reasonable expenses, excluding expenses incurred in connection with a public offer that is consummated, including the reasonable fees and disbursements of our attorneys, plus any sales, use or similar taxes (including additions to such taxes, if any) arising in connection with any matter referred to in this letter.
In order to coordinate most effectively our efforts together to effect a transaction satisfactory to you during the term of our engagement, the Company and its management will promptly inform us of any discussions they may have or of inquiry they may receive concerning the availability of all or a portion of the stock or assets of the Company for purchase.
Please note that any written or oral opinion or advice provided by Goldman Sachs in connection with our engagement is exclusively for the information of the Board of Directors and senior management of the Company, and such opinion, such advice and the terms of this letter may not be disclosed to any third party (other than Simpson Thacher & Bartlett LLP and Deloitte & Touche LLP, or another of the Company’s outside legal counsel or independent accountants specified by you in writing who have been informed by you of the confidential nature of such opinion, such advice and the terms of this letter and have agreed to treat such information confidentially) or circulated or referred to publicly without our prior written consent. If reference to our opinion and our firm is required to be made in a proxy statement of the Company required to be filed under the federal securities laws, we will not unreasonably withhold our consent thereto so long as the full text of our opinion is reproduced therein and we have approved in advance the text of any accompanying disclosure.
In connection with engagements such as this, it is our firm policy to receive indemnification. The Company agrees to the provisions with respect to our indemnity and other matters set forth in Annex A which is incorporated by reference into this letter.
As you know, Goldman Sachs is a full service securities firm engaged, either directly or through its affiliates in various activities, including securities trading, investment banking and financial advisory, investment management, principal investment, hedging, financing and brokerage activities and financial planning and benefits counseling for both companies and individuals. In the ordinary course of these activities, Goldman Sachs and its affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities) and financial instruments (including bank loans) for their own account and for the accounts of their customers and may at any time hold long and short positions in such securities and instruments. Such investment and securities activities may involve securities and instruments of the Company, as well as of other entities and persons and their affiliates which may (i) be involved in transactions arising from or relating to the engagement contemplated by this letter, (ii) be customers or competitors of the Company, or
CONFIDENTIAL WAMUBKEXAM-GS-000005
Washington Mutual, Inc. September 15, 2008 Page Six
097471-0033-10033-NY02.2652717.3 09/19/2008 2:27 AM
(iii) have other relationships with the Company. In addition, Goldman Sachs and its affiliates may provide investment banking, underwriting and financial advisory services to such other entities and persons. Goldman Sachs and its affiliates may also co-invest with, make direct investments in, and invest or co-invest client monies in or with funds or other investment vehicles managed by other parties, and such funds or other investment vehicles may trade or make investments in securities of the Company or such other entities. The engagement contemplated by this letter may have a direct or indirect impact on the investments, securities or instruments referred to in this paragraph.
Our services may be terminated by you or us at any time with or without cause effective upon receipt of written notice to that effect. We will be entitled to the applicable transaction fee set forth above in the event that at any time prior to the expiration of twelve months after such termination (i) an agreement is entered into with respect to a sale of all or a portion of the Company which is eventually consummated or (ii) an Agreement is entered into pursuant to which a Payment is eventually made; provided, however, that in the event that Goldman Sachs terminates its services hereunder without cause, the foregoing provisions of this sentence shall not apply. The Company’s obligations to offer Goldman Sachs the right to act in the capacities set forth above in connection with an Offering shall survive any such termination for a period of twelve months from the date of such termination.
The Company recognizes that, in providing our services pursuant to this letter, we will rely upon and assume the accuracy and completeness of all of the financial, accounting, tax and other information discussed with or reviewed by us for such purposes, and we do not assume responsibility for the accuracy or completeness thereof. Goldman Sachs will have no obligation to conduct any independent evaluation or appraisal of the assets or liabilities of the Company or any other party or to advise or opine on any related solvency issues. It is understood and agreed that Goldman Sachs will act under this letter as an independent contractor with duties solely to the Company and nothing in this letter or the nature of our services in connection with this engagement or otherwise shall be deemed to create a fiduciary duty or fiduciary or agency relationship between us and the Company or its stockholders, employees or creditors, and the Company agrees that it shall not make, and hereby waives, any claim based on an assertion of such a fiduciary duty or relationship. Except as set forth in Annex A hereto, nothing in this letter is intended to confer upon any other person (including stockholders, employees or creditors of the Company) any rights or remedies hereunder or by reason hereof.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), Goldman Sachs is required to obtain, verify and record information that identifies its clients, including the Company, which information may include the name and address of its clients, as well as other information that will allow Goldman Sachs to properly identify its clients.
CONFIDENTIAL WAMUBKEXAM-GS-000006
Washington Mutual, Inc. September 15, 2008 Page Seven
097471-0033-10033-NY02.2652717.3 09/19/2008 2:27 AM
Goldman Sachs does not provide accounting, tax or legal advice. Notwithstanding anything herein to the contrary, you are authorized to disclose to any person the U.S. federal and state income tax treatment and tax structure of the potential transaction and all materials of any kind (including tax opinions and other tax analyses) provided to you relating to that treatment and structure, without Goldman Sachs imposing any limitation of any kind. However, any information relating to the tax treatment and tax structure shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to enable any person to comply with securities laws. For this purpose, “tax structure” is limited to any facts that may be relevant to that treatment.
CONFIDENTIAL WAMUBKEXAM-GS-000007
Washington Mutual, Inc. September 15, 2008 Page Eight
097471-0033-10033-NY02.2652717.3 09/19/2008 2:27 AM
Please confirm that the foregoing is in accordance with your understanding by signing and returning to us the enclosed copy of this letter, which shall become a binding agreement upon our receipt. We are delighted to accept this engagement and look forward to working with you on this assignment.
Very truly yours, Confirmed:
(GOLDMAN, SACHS & CO.) WASHINGTON MUTUAL, INC.
By: Name: Title:
Date:
CONFIDENTIAL WAMUBKEXAM-GS-000008
Washington Mutual, Inc. September 15, 2008 Page Nine
097471-0033-10033-NY02.2652717.3 09/19/2008 2:27 AM
Annex A
In the event that Goldman Sachs becomes involved in any capacity in any action, proceeding or investigation brought by or against any person, including stockholders of the Company, in connection with or as a result of either our engagement or any matter referred to in this letter, the Company periodically will reimburse Goldman Sachs for its legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith; provided, however, that if it is found in any such action, proceeding or investigation that any loss, claim, damage or liability to any such person has resulted from the gross negligence or bad faith of Goldman Sachs in performing the services which are the subject this letter, Goldman Sachs shall repay such portion of the reimbursed amounts that is attributable to expenses incurred in relation to the act or omission of Goldman Sachs which is the subject of such finding. The Company also will indemnify and hold Goldman Sachs harmless against any and all losses, claims, damages or liabilities to any such person in connection with or as a result of either our engagement or any matter referred to in this letter, except to the extent that any such loss, claim, damage or liability results from the gross negligence or bad faith of Goldman Sachs in performing the services that are the subject of this letter. If for any reason the foregoing indemnification is unavailable to Goldman Sachs or insufficient to hold it harmless, then the Company shall contribute to the amount paid or payable by Goldman Sachs as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of the Company and its stockholders on the one hand and Goldman Sachs on the other hand in the matters contemplated by this letter as well as the relative fault of the Company and Goldman Sachs with respect to such loss, claim, damage or liability and any other relevant equitable considerations. The reimbursement, indemnity and contribution obligations of the Company under this paragraph shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to any affiliate of Goldman Sachs and the partners, directors, agents, employees and controlling persons (if any), as the case may be, of Goldman Sachs and any such affiliate, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Company, Goldman Sachs, any such affiliate and any such person. The Company shall not be required to indemnify Goldman Sachs for any amount paid or payable by Goldman Sachs in the settlement of any action, proceeding or investigation without the written consent of the Company, which consent shall not be unreasonably withheld. The Company also agrees that neither Goldman Sachs nor any of such affiliates, partners, directors, agents, employees or controlling persons shall have any liability to the Company or any person asserting claims on behalf of or in right of the Company in connection with or as a result of either our engagement or any matter referred to in this letter except to the extent that any losses, claims, damages, liabilities or expenses incurred by the Company result from the gross negligence or bad faith of Goldman Sachs in performing the services that are the subject of this letter. Prior to entering into any agreement or arrangement with respect to, or effecting, any proposed sale, exchange, dividend or other distribution or liquidation of all or a significant portion of its assets in one or a series of transactions or any significant recapitalization or reclassification of its outstanding securities that does not directly or indirectly provide for the assumption of the obligations of the Company set forth in this Annex A, the Company will notify Goldman Sachs in writing thereof (if not previously so notified) and, if requested by Goldman Sachs, shall arrange in connection therewith alternative means of providing for the obligations of the Company set forth in this paragraph, including the assumption of such obligations by another party, insurance, surety bonds or the creation of an escrow, in each case in an amount and upon terms and
CONFIDENTIAL WAMUBKEXAM-GS-000009
Washington Mutual, Inc. September 15, 2008 Page Ten
097471-0033-10033-NY02.2652717.3 09/19/2008 2:27 AM
conditions satisfactory to Goldman Sachs. Promptly after receipt by Goldman Sachs of notice of its involvement in any action, proceeding or investigation, Goldman Sachs shall, if a claim for indemnification in respect thereof is to be made against the Company under this Annex A, notify the Company of such involvement. Failure by Goldman Sachs to so notify the Company shall relieve the Company from the obligation to indemnify Goldman Sachs under this Annex A only to the extent that the Company suffers actual prejudice as a result of such failure, but shall not relieve the Company from its obligation to provide reimbursement and contribution to Goldman Sachs. If any person is entitled to indemnification under this Annex A (the "Indemnified Person") with respect to any action or proceeding brought by a third party that is also brought against the Company, the Company shall be entitled to assume the defense of any such action or proceeding with counsel reasonably satisfactory to the Indemnified Person. Upon assumption by the Company of the defense of any such action or proceeding, the Indemnified Person shall have the right to participate in such action or proceeding and to retain its own counsel but the Company shall not be liable for any legal expenses of other counsel subsequently incurred by such Indemnified Person in connection with the defense thereof unless (i) the Company has agreed to pay such fees and expenses, (ii) the Company shall have failed to employ counsel reasonably satisfactory to the Indemnified Person in a timely manner, or (iii) the Indemnified Person shall have been advised by counsel that there are actual or potential conflicting interests between the Company and the Indemnified Person, including situations in which there are one or more legal defenses available to the Indemnified Person that are different from or additional to those available to the Company, provided, however, that the Company shall not, in connection with any one such action or proceeding or separate but substantially similar actions or proceedings arising out of the same general allegations, be liable for the fees and expenses of more than one separate firm of attorneys at any time for all Indemnified Persons, including Goldman Sachs, except to the extent that local counsel, in addition to its regular counsel, is required in order to effectively defend against such action or proceeding. The Company shall not consent to the terms of any compromise or settlement of any action defended by the Company in accordance with the foregoing without the prior written consent of the Indemnified Person. Any right to trial by jury with respect to any action or proceeding arising in connection with or as a result of either our engagement or any matter referred to in this letter is hereby waived by the parties hereto. The Company agrees that any suit or proceeding arising in respect to this letter or our engagement will be tried exclusively in the U.S. District Court for the Southern District of New York or, if that court does not have subject matter jurisdiction, in any state court located in the City of New York, and the Company agrees to submit to the jurisdiction of, and to venue in, such courts. The provisions of this Annex A shall survive any termination or completion of the engagement provided by this letter agreement, and this letter agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of laws.
CONFIDENTIAL WAMUBKEXAM-GS-000010
CONFIDENTIAL WAMUBKEXAM-GS-000011
PERSONAL AND CONFIDENTIAL
September 24, 2008
Mr. Robert Williams Senior Vice President and Treasurer Washington Mutual, Inc. Washington Mutual Bank 1301 Second Avenue Seattle, WA 98101
Dear Mr. Williams:
GS Comments of September 24, 2008
We are pleased to confirm the arrangements under which Goldman, Sachs & Co. ("Goldman Sachs") is engaged by Washington Mutual, Inc. (the "Company") and Washington Mutual Bank (the "Bank") as financial advisor relating to the possible sale of all or a portion of the Company and/or the Bank and to explore capital raising alternatives.
I. During the term of our engagement, we will provide you with financial advice and assistance in connection with this potential transaction, which may include performing financial analyses, searching for a purchaser or investors acceptable to you, coordinating visits of potential purchasers and investors and assisting you in negotiating the fmancial aspects of the transaction.
2. At your request we also will undertake a study to enable us to render our opinion as to the fairness from a financial point of view of the financial consideration to be received by shareholders of the Company in connection with the sale of 50% or more of the outstanding common stock of the Company. The nature and scope of our investigation as well as the scope, form and substance of our opinion shall be such as we consider appropriate. If requested our opinion will be in written form.
3. The fees for our engagement will depend on the outcome of this assignment. Upon execution of the engagement letter, the Company agrees to pay us a fee of $3,000,000 for services provided to date. Upon armouncement of, or execution of a definitive agreement with respect to, a sale of 50% or more of the outstanding common stock or assets (based on the book value thereof) of the Company, the Company agrees to pay us a fee of $5,000,000 (the "Initial Fee"), less the fee paid upon execution of the engagement letter. If the purchase of50% or more of the outstanding common stock or the assets (based on the book value thereof) of the Company is accomplished in one or a series of transactions, including, but not limited to, private or open market purchases of stock, a tender offer, an exchange offer, a merger or a sale by the Company of its stock or assets, we will charge a transaction fee (the "Sale Completion Fee") equal to $30,000,000 less, to the extent paid, the Initial Fee, subject to a maximum transaction fee of $30,000,000 million. Ifless than 50% of the outstanding common stock or the assets (based on the book value thereof) is acquired in the marmer set forth in the preceding sentence, we will charge a transaction fee to be mutually agreed upon by Goldman Sachs and the Company; provided, however, in the event such transaction takes the form of a private placement of the Company's common stock, preferred securities or other capital securities to one or more
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financial sponsors or investors who were contacted in connection with the transactions referenced in the preceding sentence, we will charge a transaction fee (the "Investor Completion Fee") equal to 1.375% of the gross proceeds received by the Company from a sale of such securities; provided, however, that Goldman Sachs' entitlement to the Investor Completion Fee shall be suspended following the execution of a definitive agreement for a transaction in respect of which a Sale Completion Fee would be payable upon consummation thereof and shall terminate upon consummation of such transaction. Except as provided herein, a transaction fee will be paid to us in cash upon consummation of each transaction.
4. If the Company or any of its affiliates enters into an agreement with respect to a transaction in respect of which a Sale Completion Fee would be payable upon consummation thereof (the "Agreement') and the Agreement provides for a payment at any time to the Company in the event the transaction contemplated thereby is terminated or otherwise not consummated (the "Payment"), the Company agrees to pay to Goldman Sachs a transaction fee, in cash if and when such Payment is made to the Company, equal to the lesser of (i) 10% of such Payment and (ii) the amount that would otherwise have been payable by the Company to Goldman Sachs if such transaction had been consummated in accordance with its terms, in each case less, to the extent paid, the Initial Fee.
5. In the event that the Company determines to undertake a public or private offering of its common stock, preferred securities or any securities linked to the Company's common stock or preferred stock other than any transaction for which a fee is payable pursuant to paragraph 3 of this letter (an "Offering"), the Company shall offer Goldman Sachs the right to act in a non-exclusive capacity to be agreed between the Company and Goldman Sachs in such offering, with a fee (the "Offering Fee") of not less than 1.375% of the amount of the aggregate offering price of such securities and at least 50% of the total economics. If Goldman Sachs agrees to act in such capacity, the Company and Goldman Sachs will enter into an appropriate form of underwriting or other applicable agreement containing customary terms and conditions, including customary fee provisions and provisions relating to our indemnity. However, unless specifically covered by a separate agreement setting forth such arrangement, the provisions in the attached Annex A shall apply to each such transaction. The Company acknowledges that this letter is neither an expressed nor an implied commitment by Goldman Sachs to act in any capacity in any such transaction, to provide financing or to purchase or place any securities, which commitment shall only be set forth in a separate agreement.
6. You also agree to reimburse us periodically, upon request, and upon consummation of the transaction or transactions contemplated hereby or upon termination of our services pursuant to this agreement, for our reasonable expenses, excluding expenses incurred in connection with a public offer that is consummated, including the reasonable fees and disbursements of our attorneys, plus any sales, use or similar taxes (including additions to such taxes, if any) arising in connection with any matter referred to in this letter.
7. In order to coordinate most effectively our efforts together to effect a transaction satisfactory to you during the term of our engagement, the Company and its management will
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promptly inform us of any discussions they may have or of inquiries they may receive concerning the availability of all or a portion of the stock or assets of the Company for purchase.
8. Please note that any written or oral opinion or advice provided by Goldman Sachs in connection with our engagement is exclusively for the information of the Board of Directors and senior management of the Company, and such opinion, such advice and the terms of this letter may not be disclosed to any third party (other than the Office of Thrift Supervision, the Federal Deposit Insurance Corporation, Simpson Thacher & Bartlett LLP and Deloitte & Touche LLP, or another of the Company's outside legal counselor independent accountants specified by you in writing who have been informed by you of the confidential nature of such opinion, such advice and the terms of this letter and have agreed to treat such information confidentially) or circulated or referred to publicly without our prior written consent. If reference to our opinion and our firm is required to be made in a proxy statement of the Company required to be filed under the federal securities laws, we will not unreasonably withhold our consent thereto so long as the full text of our opinion is reproduced therein and we have approved in advance the text of any accompanying disclosure.
9. In connection with engagements such as this, it is our firm policy to receive indemnification. The Company, jointly and severally, and the Bank, severally and not jointly, agree to the provisions with respect to our indemnity and other matters set forth in Annex A which is incorporated by reference into this letter. The Bank shall not be responsible for any obligations of the Company and this letter is not a guarantee of any obligations of the Company by the Bank.
10. As you know, Goldman Sachs is a full service securities firm engaged, either directly or through its affiliates in various activities, including securities trading, investment banking and fmancial advisory, investment management, principal investment, hedging, financing and brokerage activities and financial planning and benefits counseling for both companies and individuals. In the ordinary course of these activities, Goldman Sachs and its affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities) and financial instruments (including bank loans) for their own account and for the accounts of their customers and may at any time hold long and short positions in such securities and instruments. Such investment and securities activities may involve securities and instruments of the Company, as well as of other entities and persons and their affiliates which may (i) be involved in transactions arising from or relating to the engagement contemplated by this letter, (ii) be customers or competitors of the Company, or (iii) have other relationships with the Company. In addition, Goldman Sachs and its affiliates may provide investment banking, underwriting and financial advisory services to such other entities and persons. Goldman Sachs and its affiliates may also co-invest with, make direct investments in, and invest or co-invest client monies in or with funds or other investment vehicles managed by other parties, and such funds or other investment vehicles may trade or make investments in securities of the Company or such other entities. The engagement contemplated by this letter may have a direct or indirect impact on the investments, securities or instruments referred to in this paragraph.
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11. Our services may be terminated by you or us at any time with or without cause effective upon receipt of written notice to that effect. We will be entitled to the applicable transaction fee set forth above in the event that (A) none of the Sale Completion Fee, the Investor Completion Fee or the Offering Fee has been paid prior to the time of such termination and (B) at any time prior to the expiration of twelve months after such termination (i) an agreement is entered into with respect to a sale of all or a portion of the Company (excluding an Offering) which is eventually consummated or (ii) an Agreement is entered into pursuant to which a Payment is eventually made; provided, however, that in the event that Goldman Sachs terminates its services hereunder without cause, the foregoing provisions of this sentence shall not apply. In the event that our services are terminated by you or us before any of the Sale Completion Fee, the Investor Completion Fee or the Offering Fee has become payable, the Company's obligations to offer Goldman Sachs the right to act in the capacities set forth above in connection with an Offering shall survive for a period of twelve months following the date of such termination; provided, however, that in the event that Goldman Sachs terminates its services hereunder without cause, the foregoing provisions of this sentence shall not apply
12. The Company recognizes that, in providing our services pursuant to this letter, we will rely upon and assume the accuracy and completeness of all of the fmancial, accounting, tax and other information discussed with or reviewed by us for such purposes, and we do not assume responsibility for the accuracy or completeness thereof. Goldman Sachs will have no obligation to conduct any independent evaluation or appraisal of the assets or liabilities of the Company or any other party or to advise or opine on any related solvency issues. It is understood and agreed that Goldman Sachs will act under this letter as an independent contractor with duties solely to the Company and nothing in this letter or the nature of our services in connection with this engagement or otherwise shall be deemed to create a fiduciary duty or fiduciary or agency relationship between us and the Company or its stockholders, employees or creditors, and the Company agrees that it shall not make, and hereby waives, any claim based on an assertion of such a fiduciary duty or relationship. Except as set forth in Annex A hereto, nothing in this letter is intended to confer upon any other person (including stockholders, employees or creditors of the Company) any rights or remedies hereunder or by reason hereof.
13. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001», Goldman Sachs is required to obtain, verify and record information that identifies its clients, including the Company, which information may include the name and address of its clients, as well as other information that will allow Goldman Sachs to properly identify its clients.
14. Goldman Sachs does not provide accounting, tax or legal advice. Notwithstanding anything herein to the contrary, you are authorized to disclose to any person the US. federal and state income tax treatment and tax structure of the potential transaction and all materials of any kind (including tax opinions and other tax analyses) provided to you relating to that treatment and structure, without Goldman Sachs imposing any limitation of any kind. However, any information relating to the tax treatment and tax structure shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to enable any person to comply with
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securities laws. For this purpose, "tax structure" is limited to any facts that may be relevant to that treatment.
15. This letter contains the entire agreement of the parties with respect to the performance by Goldman Sachs of services for the Company and the Bank described herein and supersedes any prior understandings and agreements.
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Please confirm that the foregoing is in accordance with your understanding by signing and returning to us the enclosed copy of this letter, which shall become a binding agreement upon our receipt. We are delighted to accept this engagement and look forward to working with you on this assignment.
Ve truly yours, C rt.l.~ ~ ~l c..
Confirmed
(GOLDMAN, SACHS & 0.) WASHINGTON MUTUAL, INC.
By: _________ _
Name: Title:
WASHINGTON MUTUAL BANK
By: ________ _ Name: Title:
Date: _________ _
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AnnexA
In the event that Goldman Sachs becomes involved in any capacity in any action, proceeding or investigation brought by or against any person, including stockholders of the Company, in connection with or as a result of either our engagement or any matter referred to in this letter, the Company periodically will reimburse Goldman Sachs for its legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith; provided. however, that if it is found in any such action, proceeding or investigation that any loss, claim, damage or liability to any such person has resultedfrom the gross negligence or bad faith of Goldman Sachs in performing the services which are the subject this letter, Goldman Sachs shall repay such portion of the reimbursed amounts that is attributable to expenses incurred in relation to the act or omission of Goldman Sachs which is the subject of such finding. The Company, jointly and severally, and the Bank, severally and not jointly, will indemnifY and hold Goldman Sachs harmless against any and all losses, claims, damages or liabilities to any such person in connection with or as a result of either our engagement or any matter referred to in this letter, except to the extent that any such loss, claim, damage or liability results from the gross negligence or bad faith of Goldman Sachs in performing the services that are the subject of this letter. If for any reason the foregoing indemnification is unavailable to Goldman Sachs or insufficient to hold it harmless, then the Company and the Bank shall contribute to the amount paid or payable by Goldman Sachs as a result of such loss, claim, damage or liability in such proportion as is appropriate to refiect the relative economic interests of the Company, the Bank and their stockholders on the one hand and Goldman Sachs on the other hand in the matters contemplated by this letter as well as the relative fault of the Company, the Bank and Goldman Sachs with respect to such loss, claim, damage or liability and any other relevant equitable considerations. The reimbursement, indemnity and contribution obligations of the Company under this paragraph and the indemnity and contribution obligations of the Bank under this paragraph shall be in addition to any liability which the Company or the Bank may otherwise have, shall extend upon the same terms and conditions to any affiliate of Goldman Sachs and the partners, directors, agents, employees and controlling persons (if any), as the case may be, of Goldman Sachs and any such affiliate, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Company, the Bank, Goldman Sachs, any such affiliate and any such person. Neither the Company nor the Bank shall be required to indemnifY Goldman Sachs for any amount paid or payable by Goldman Sachs in the settlement of any action, proceeding or investigation without the written consent of the Company or the Bank, as applicable, which consent shall not be unreasonably withheld. Each of the Company and the Bank also agrees that neither Goldman Sachs nor any of such affiliates, partners, directors, agents, employees or controlling persons shall have any liability to the Company or the Bank or any person asserting claims on behalf of or in right of the Company or the Bank in connection with or as a result of either our engagement or any matter referred to in this letter except to the extent that any losses, claims, damages, liabilities or expenses incurred by the Company or the Bank result from the gross negligence or bad faith of Goldman Sachs in performing the services that are the subject of this letter. Prior to entering into any agreement or arrangement with respect to, or efficting, any proposed sale, exchange, dividend or other
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distribution or liquidation of all or a significant portion of its assets in one or a series of transactions or any significant recapitalization or reclassification of its outstanding securities that does not directly or indirectly provide for the assumption of the obligations of the Company and the Bank set forth in this Annex A, the Company will notifY Goldman Sachs in writing thereof (if not previously so notified) and, if requested by Goldman Sachs, shall arrange in connection therewith alternative means of providing for the obligations of the Company and the Bank set forth in this paragraph, including the assumption of such obligations by another party, insurance, surety bonds or the creation of an escrow, in each case in an amount and upon terms and conditions satisfactory to Goldman Sachs. Promptly after receipt by Goldman Sachs of notice of its involvement in any action, proceeding or investigation, Goldman Sachs shall, if a claim for indemnification in respect thereofis to be made against the Company or the Bank under this Annex A, notifY the Company or the Bank, as applicable, of such involvement. Failure by Goldman Sachs to so notifY the Company shall relieve the Company and the Bank, as applicable, from the obligation to indemnifY Goldman Sachs under this Annex A only to the extent that the Company or the Bank, as applicable, suffers actual prejudice as a result of such failure, but shall not relieve the Company from its obligation to provide reimbursement and the Company and the Bankfrom its obligations to provide contribution to Goldman Sachs. If any person is entitled to indemnification under this Annex A (the "Indemnified Person ") with respect to any action or proceeding brought by a third party that is also brought against the Company or the Bank, the Company shall be entitled to assume the defense of any such action or proceeding with counsel reasonably satisfactory to the Indemnified Person. Upon assumption by the Company of the defense of any such action or proceeding, the Indemnified Person shall have the right to participate in such action or proceeding and to retain its own counsel but the Company shall not be liable for any legal expenses of other counsel subsequently incurred by such Indemnified Person in connection with the defense thereof unless (i) the Company has agreed to pay such fees and expenses, (ii) the Company shall have failed to employ counsel reasonably satisfactory to the Indemnified Person in a timely manner, or (iii) the Indemnified Person shall have been advised by counsel that there are actual or potential conjlicting interests between the Company or the Bank and the Indemnified Person, including situations in which there are one or more legal defenses available to the Indemnified Person that are different from or additional to those available to the Company or the Bank, provided, however, that the Company shall not, in connection with anyone such action or proceeding or separate but substantially similar actions or proceedings arising out of the same general allegations, be liable for the fees and expenses of more than one separate firm of attorneys at any time for all Indemnified Persons, including Goldman Sachs, except to the extent that local counsel, in addition to its regular counsel, is required in order to effictively defend against such action or proceeding. Neither the Company nor the Bank shall consent to the terms of any compromise or settlement of any action defended by it in accordance with the foregoing without the prior written consent of the Indemnified Person unless such compromise or settlement (i) includes an unconditional release of the Indemnified Person from all liability arising out of such action 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 any Indemnified Person. Any right to trial by jury with respect to any action or proceeding arising in connection with or as a result of either our engagement or any matter referred to in this
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letter is hereby waived by the parties hereto. The Company and the Bank agree that any suit or proceeding arising in respect to this letter or our engagement will be tried exclusively in the U.S. District Court for the Southern District of New York or, if that court does not have subject matter jurisdiction, in any state court located in the City of New York and the Company and the Bank agree to submit to the jurisdiction of, and to venue in, such courts. The provisions of this Annex A shall survive any termination or completion of the engagement provided by this letter agreement, and this letter agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of laws. The Bank shall not be responsible for any obligations of the Company and this Annex A is not a guarantee of any obligations of the Company by the Bank.
097471-0033-10033-NY02.2652717.3 09/19/2008 2:27 AM
PERSONAL AND CONFIDENTIAL
September 15, 2008
Mr. Todd H. Baker Executive Vice President of Corporate Strategy & Development Washington Mutual, Inc. 1301 Second Avenue Seattle, WA 98101
Dear Mr. Baker:
We refer to our engagement as financial advisor to Washington Mutual, Inc. (the "Company") pursuant to the engagement letter (the “Engagement Letter”), dated March 30, 2008, between Company and Goldman, Sachs & Co. ("Goldman Sachs"). The Company and Goldman Sachs hereby agree that the Engagement Letter shall be amended and restated as set forth herein. We are pleased to confirm the arrangements under which Goldman Sachs is exclusively engaged by the Company as financial advisor (i) in connection with the possible sale of all or a portion of the Company (a “Sale Transaction”) and (ii) to assist the Company in its analysis and consideration of various financial alternatives available to it, and such other matters as to which you and we may agree during the course of our engagement. Such financial alternatives and other matters may include [investments, [acquisitions,] divestitures, financial restructurings, liability management transactions, public or private financings (including the offering of securities), mergers or other business combination transactions, sale transactions involving all or a portion of the Company, stock or debt repurchases, joint ventures, or other operations involving the Company. This engagement is exclusive to Goldman Sachs except that it is understood and agreed that the Company may also engage Morgan Stanley in connection with this transaction pursuant to a separate engagement letter with comparable fee arrangements.
During the term of our engagement, we will provide you with financial advice and assistance in connection with this potential transaction, which may include performing financial analyses, searching for a purchaser or investors acceptable to you, coordinating visits of potential purchasers and investors and assisting you in negotiating the financial aspects of the transaction.
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At your request we also will undertake a study to enable us to render our opinion as to the fairness from a financial point of view of the financial consideration to be received by stockholders of the Company in connection with the sale of 50% or more of the outstanding common stock of the Company. The nature and scope of our investigation as well as the scope, form and substance of our opinion shall be such as we consider appropriate. If requested our opinion will be in written form.
The fees for our engagement will depend on the outcome of this assignment. Upon announcement of, or execution of a definitive agreement with respect to, a sale of 50% or more of the outstanding common stock or assets (based on the book value thereof) of the Company, the Company agrees to pay us a fee of $4,000,000 (the “Initial Fee”). If the purchase of 50% or more of the outstanding common stock or the assets (based on the book value thereof) of the Company is accomplished in one or a series of transactions, including, but not limited to, private or open market purchases of stock, a tender offer, an exchange offer, a merger or a sale by the Company of its stock or assets, we will charge a transaction fee (the “Sale Completion Fee”) equal to the greater of (i) $18,750,000 and (ii) 0.1875% of the aggregate consideration paid in such transactions, less, to the extent paid, the Initial Fee, subject to a maximum transaction fee of $50.0 million. If less than 50% of the outstanding common stock or the assets (based on the book value thereof) is acquired in the manner set forth in the preceding sentence, will charge a transaction fee to be mutually agreed upon by Goldman Sachs and the Company; provided, however, in the event such transaction takes the form of a private placement of the Company’s common stock, preferred securities or other capital securities to one or more financial sponsors or investors who were contacted in connection with the transactions referenced in the preceding sentence, we will charge a transaction fee (the “Investor Completion Fee”) equal to 1.375% of the gross proceeds received by the Company from a sale of such securities. Except as provided herein, a transaction fee will be paid to us in cash upon consummation of each transaction.
The aggregate consideration for purposes of calculating a Sale Completion Fee shall be:
(i) in the case of the sale, exchange or purchase of the Company's equity securities, the total consideration paid for such securities (including amounts paid, distributed or issued to holders of options, warrants and convertible securities); provided, that for purposes of calculating aggregate consideration pursuant to this clause (i), the consideration paid for options and warrants shall be deemed to equal the spread value of such options or warrants (the difference between the exercise price and the amount paid for the underlying shares as calculated in accordance with this letter), and
(ii) in the case of a sale or disposition by the Company of assets, the total consideration paid for such net assets, plus the net value of any current assets not sold by the Company.
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Amounts paid into escrow and contingent payments in connection with any transaction will be included as part of the aggregate consideration. Fees on amounts paid into escrow will be payable upon the establishment of such escrow. If the consideration in connection with any transaction may be increased by payments related to future events, the portion of our fee relating to such contingent payments will be calculated and paid if and when such contingent payments are made. Aggregate consideration also shall include the aggregate amount of any (i) dividends or other distributions declared by the Company with respect to its stock after the date hereof, other than normal recurring cash dividends in amounts not materially greater than currently paid, and (ii) amounts paid by the Company to repurchase any securities of the Company outstanding on the date hereof.
In connection with a sale of 50% or more of the outstanding common stock of the Company, the Sale Completion Fee will be payable and calculated under the definition of aggregate consideration set forth above as though 100% of the outstanding common stock on a fully diluted basis had been acquired for the same per share amount paid in the transaction in which 50% or more of the Company's outstanding common stock is acquired by a purchaser or group of affiliated purchasers. Nevertheless, our services pursuant to this letter will continue after control is obtained to assist you with a second step merger or similar transaction.
If any portion of the aggregate consideration is paid in the form of securities, the value of such securities, for purposes of calculating the transaction fee, will be determined by the average of the last sales prices for such securities on the five trading days ending five trading days prior to the date of the consummation of the transaction. If such securities do not have an existing public trading market, the value of the securities shall be the mutually agreed upon fair market value on the day prior to the consummation of the transaction.
If the Company or any of its affiliates enters into an agreement with respect to a transaction in respect of which a Sale Completion Fee would be payable upon consummation thereof (the “Agreement”) and the Agreement provides for a payment at any time to the Company in the event the transaction contemplated thereby is terminated or otherwise not consummated (the “Payment”), the Company agrees to pay to Goldman Sachs a transaction fee, in cash if and when such Payment is made to the Company, equal to the lesser of (i) 10% of such Payment and (ii) the amount that would otherwise have been payable by the Company to Goldman Sachs if such transaction had been consummated in accordance with its terms.
In the event that the Company determines to undertake a public or private offering of its common stock, preferred securities or any securities linked to the Company’s common stock or preferred stock other than any transaction for which a fee is payable pursuant to paragraph four of this letter (an “Offering”), the Company shall offer Goldman Sachs the right to act (i) as the joint (with other investment banks) lead book-running manager and (ii) as the joint (with other investment banks) lead agent in such offering, in each case with a fee of not
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less than 2.75% of the amount of the aggregate offering price of such securities and at least 40% of the total economics. If Goldman Sachs agrees to act in such capacity, the Company and Goldman Sachs will enter into an appropriate form of underwriting or other applicable agreement containing customary terms and conditions, including customary fee provisions and provisions relating to our indemnity. However, unless specifically covered by a separate agreement setting forth such arrangement, the provisions in the attached Annex A shall apply to each such transaction. The Company acknowledges that this letter is neither an expressed nor an implied commitment by Goldman Sachs to act in any capacity in any such transaction, to provide financing or to purchase or place any securities, which commitment shall only be set forth in a separate agreement.
The above fee does not include any services Goldman Sachs may render in the future to the Company with respect to any specific transaction of the type referred to in the first paragraph of this letter other than a Sale Transaction or an Offering. In the event that the Company determines to undertake a specific transaction of such type, the Company shall offer Goldman Sachs the right to act in such transaction as (i) sole lead arranger and book-runner, sole syndication agent and administrative agent in the case of a syndicated bank loan or bridge loan, (ii) sole dealer manager, sole agent, sole counterparty or exclusive financial advisor, as applicable, in the case of any exchange or tender offer, or consent solicitation undertaken by the Company or any repurchase of debt or equity securities by the Company including any open market repurchase, Dutch tender offer, forward purchase or accelerated stock buyback, and (iii) exclusive financial advisor or dealer manager, as applicable, in the case of any other transaction. If Goldman Sachs agrees to act in such capacity, the Company and Goldman Sachs will enter into an appropriate form of agreement relating to the type of transaction involved and containing customary terms and conditions, including customary fee provisions and provisions relating to our indemnity. However, unless specifically covered by a separate agreement setting forth such arrangement, the provisions in the attached Annex A shall apply to each such transaction. In addition, the Company shall offer Goldman Sachs the right to act as sole principal or sole counterparty in the case of any foreign exchange or commodities transaction, currency or interest rate swap or other hedging or derivative transaction related to the financing of any transaction referred to in the first paragraph hereof. Where Goldman Sachs agrees to act as the principal or counterparty in a swap, hedging, derivative, stock buyback or any other transaction with the Company, such transactions will be based on customary documentation for such transactions and Goldman Sachs will not be acting as an agent of or advisor to the Company with respect to such transactions or the terms thereof. The Company acknowledges that this letter agreement is neither an expressed nor an implied commitment by Goldman Sachs to act in any capacity in any such transaction, to provide financing or to purchase or place any securities, which commitment shall only be set forth in a separate agreement.
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You also agree to reimburse us periodically, upon request, and upon consummation of the transaction or transactions contemplated hereby or upon termination of our services pursuant to this agreement, for our reasonable expenses, excluding expenses incurred in connection with a public offer that is consummated, including the reasonable fees and disbursements of our attorneys, plus any sales, use or similar taxes (including additions to such taxes, if any) arising in connection with any matter referred to in this letter.
In order to coordinate most effectively our efforts together to effect a transaction satisfactory to you during the term of our engagement, the Company and its management will promptly inform us of any discussions they may have or of inquiry they may receive concerning the availability of all or a portion of the stock or assets of the Company for purchase.
Please note that any written or oral opinion or advice provided by Goldman Sachs in connection with our engagement is exclusively for the information of the Board of Directors and senior management of the Company, and such opinion, such advice and the terms of this letter may not be disclosed to any third party (other than Simpson Thacher & Bartlett LLP and Deloitte & Touche LLP, or another of the Company’s outside legal counsel or independent accountants specified by you in writing who have been informed by you of the confidential nature of such opinion, such advice and the terms of this letter and have agreed to treat such information confidentially) or circulated or referred to publicly without our prior written consent. If reference to our opinion and our firm is required to be made in a proxy statement of the Company required to be filed under the federal securities laws, we will not unreasonably withhold our consent thereto so long as the full text of our opinion is reproduced therein and we have approved in advance the text of any accompanying disclosure.
In connection with engagements such as this, it is our firm policy to receive indemnification. The Company agrees to the provisions with respect to our indemnity and other matters set forth in Annex A which is incorporated by reference into this letter.
As you know, Goldman Sachs is a full service securities firm engaged, either directly or through its affiliates in various activities, including securities trading, investment banking and financial advisory, investment management, principal investment, hedging, financing and brokerage activities and financial planning and benefits counseling for both companies and individuals. In the ordinary course of these activities, Goldman Sachs and its affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities) and financial instruments (including bank loans) for their own account and for the accounts of their customers and may at any time hold long and short positions in such securities and instruments. Such investment and securities activities may involve securities and instruments of the Company, as well as of other entities and persons and their affiliates which may (i) be involved in transactions arising from or relating to the engagement contemplated by this letter, (ii) be customers or competitors of the Company, or
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(iii) have other relationships with the Company. In addition, Goldman Sachs and its affiliates may provide investment banking, underwriting and financial advisory services to such other entities and persons. Goldman Sachs and its affiliates may also co-invest with, make direct investments in, and invest or co-invest client monies in or with funds or other investment vehicles managed by other parties, and such funds or other investment vehicles may trade or make investments in securities of the Company or such other entities. The engagement contemplated by this letter may have a direct or indirect impact on the investments, securities or instruments referred to in this paragraph.
Our services may be terminated by you or us at any time with or without cause effective upon receipt of written notice to that effect. We will be entitled to the applicable transaction fee set forth above in the event that at any time prior to the expiration of twelve months after such termination (i) an agreement is entered into with respect to a sale of all or a portion of the Company which is eventually consummated or (ii) an Agreement is entered into pursuant to which a Payment is eventually made; provided, however, that in the event that Goldman Sachs terminates its services hereunder without cause, the foregoing provisions of this sentence shall not apply. The Company’s obligations to offer Goldman Sachs the right to act in the capacities set forth above in connection with an Offering shall survive any such termination for a period of twelve months from the date of such termination.
The Company recognizes that, in providing our services pursuant to this letter, we will rely upon and assume the accuracy and completeness of all of the financial, accounting, tax and other information discussed with or reviewed by us for such purposes, and we do not assume responsibility for the accuracy or completeness thereof. Goldman Sachs will have no obligation to conduct any independent evaluation or appraisal of the assets or liabilities of the Company or any other party or to advise or opine on any related solvency issues. It is understood and agreed that Goldman Sachs will act under this letter as an independent contractor with duties solely to the Company and nothing in this letter or the nature of our services in connection with this engagement or otherwise shall be deemed to create a fiduciary duty or fiduciary or agency relationship between us and the Company or its stockholders, employees or creditors, and the Company agrees that it shall not make, and hereby waives, any claim based on an assertion of such a fiduciary duty or relationship. Except as set forth in Annex A hereto, nothing in this letter is intended to confer upon any other person (including stockholders, employees or creditors of the Company) any rights or remedies hereunder or by reason hereof.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), Goldman Sachs is required to obtain, verify and record information that identifies its clients, including the Company, which information may include the name and address of its clients, as well as other information that will allow Goldman Sachs to properly identify its clients.
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Goldman Sachs does not provide accounting, tax or legal advice. Notwithstanding anything herein to the contrary, you are authorized to disclose to any person the U.S. federal and state income tax treatment and tax structure of the potential transaction and all materials of any kind (including tax opinions and other tax analyses) provided to you relating to that treatment and structure, without Goldman Sachs imposing any limitation of any kind. However, any information relating to the tax treatment and tax structure shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to enable any person to comply with securities laws. For this purpose, “tax structure” is limited to any facts that may be relevant to that treatment.
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Please confirm that the foregoing is in accordance with your understanding by signing and returning to us the enclosed copy of this letter, which shall become a binding agreement upon our receipt. We are delighted to accept this engagement and look forward to working with you on this assignment.
Very truly yours, Confirmed:
(GOLDMAN, SACHS & CO.) WASHINGTON MUTUAL, INC.
By: Name: Title:
Date:
CONFIDENTIAL WAMUBKEXAM-GS-000008
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097471-0033-10033-NY02.2652717.3 09/19/2008 2:27 AM
Annex A
In the event that Goldman Sachs becomes involved in any capacity in any action, proceeding or investigation brought by or against any person, including stockholders of the Company, in connection with or as a result of either our engagement or any matter referred to in this letter, the Company periodically will reimburse Goldman Sachs for its legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith; provided, however, that if it is found in any such action, proceeding or investigation that any loss, claim, damage or liability to any such person has resulted from the gross negligence or bad faith of Goldman Sachs in performing the services which are the subject this letter, Goldman Sachs shall repay such portion of the reimbursed amounts that is attributable to expenses incurred in relation to the act or omission of Goldman Sachs which is the subject of such finding. The Company also will indemnify and hold Goldman Sachs harmless against any and all losses, claims, damages or liabilities to any such person in connection with or as a result of either our engagement or any matter referred to in this letter, except to the extent that any such loss, claim, damage or liability results from the gross negligence or bad faith of Goldman Sachs in performing the services that are the subject of this letter. If for any reason the foregoing indemnification is unavailable to Goldman Sachs or insufficient to hold it harmless, then the Company shall contribute to the amount paid or payable by Goldman Sachs as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative economic interests of the Company and its stockholders on the one hand and Goldman Sachs on the other hand in the matters contemplated by this letter as well as the relative fault of the Company and Goldman Sachs with respect to such loss, claim, damage or liability and any other relevant equitable considerations. The reimbursement, indemnity and contribution obligations of the Company under this paragraph shall be in addition to any liability which the Company may otherwise have, shall extend upon the same terms and conditions to any affiliate of Goldman Sachs and the partners, directors, agents, employees and controlling persons (if any), as the case may be, of Goldman Sachs and any such affiliate, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Company, Goldman Sachs, any such affiliate and any such person. The Company shall not be required to indemnify Goldman Sachs for any amount paid or payable by Goldman Sachs in the settlement of any action, proceeding or investigation without the written consent of the Company, which consent shall not be unreasonably withheld. The Company also agrees that neither Goldman Sachs nor any of such affiliates, partners, directors, agents, employees or controlling persons shall have any liability to the Company or any person asserting claims on behalf of or in right of the Company in connection with or as a result of either our engagement or any matter referred to in this letter except to the extent that any losses, claims, damages, liabilities or expenses incurred by the Company result from the gross negligence or bad faith of Goldman Sachs in performing the services that are the subject of this letter. Prior to entering into any agreement or arrangement with respect to, or effecting, any proposed sale, exchange, dividend or other distribution or liquidation of all or a significant portion of its assets in one or a series of transactions or any significant recapitalization or reclassification of its outstanding securities that does not directly or indirectly provide for the assumption of the obligations of the Company set forth in this Annex A, the Company will notify Goldman Sachs in writing thereof (if not previously so notified) and, if requested by Goldman Sachs, shall arrange in connection therewith alternative means of providing for the obligations of the Company set forth in this paragraph, including the assumption of such obligations by another party, insurance, surety bonds or the creation of an escrow, in each case in an amount and upon terms and
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conditions satisfactory to Goldman Sachs. Promptly after receipt by Goldman Sachs of notice of its involvement in any action, proceeding or investigation, Goldman Sachs shall, if a claim for indemnification in respect thereof is to be made against the Company under this Annex A, notify the Company of such involvement. Failure by Goldman Sachs to so notify the Company shall relieve the Company from the obligation to indemnify Goldman Sachs under this Annex A only to the extent that the Company suffers actual prejudice as a result of such failure, but shall not relieve the Company from its obligation to provide reimbursement and contribution to Goldman Sachs. If any person is entitled to indemnification under this Annex A (the "Indemnified Person") with respect to any action or proceeding brought by a third party that is also brought against the Company, the Company shall be entitled to assume the defense of any such action or proceeding with counsel reasonably satisfactory to the Indemnified Person. Upon assumption by the Company of the defense of any such action or proceeding, the Indemnified Person shall have the right to participate in such action or proceeding and to retain its own counsel but the Company shall not be liable for any legal expenses of other counsel subsequently incurred by such Indemnified Person in connection with the defense thereof unless (i) the Company has agreed to pay such fees and expenses, (ii) the Company shall have failed to employ counsel reasonably satisfactory to the Indemnified Person in a timely manner, or (iii) the Indemnified Person shall have been advised by counsel that there are actual or potential conflicting interests between the Company and the Indemnified Person, including situations in which there are one or more legal defenses available to the Indemnified Person that are different from or additional to those available to the Company, provided, however, that the Company shall not, in connection with any one such action or proceeding or separate but substantially similar actions or proceedings arising out of the same general allegations, be liable for the fees and expenses of more than one separate firm of attorneys at any time for all Indemnified Persons, including Goldman Sachs, except to the extent that local counsel, in addition to its regular counsel, is required in order to effectively defend against such action or proceeding. The Company shall not consent to the terms of any compromise or settlement of any action defended by the Company in accordance with the foregoing without the prior written consent of the Indemnified Person. Any right to trial by jury with respect to any action or proceeding arising in connection with or as a result of either our engagement or any matter referred to in this letter is hereby waived by the parties hereto. The Company agrees that any suit or proceeding arising in respect to this letter or our engagement will be tried exclusively in the U.S. District Court for the Southern District of New York or, if that court does not have subject matter jurisdiction, in any state court located in the City of New York, and the Company agrees to submit to the jurisdiction of, and to venue in, such courts. The provisions of this Annex A shall survive any termination or completion of the engagement provided by this letter agreement, and this letter agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of laws.
CONFIDENTIAL WAMUBKEXAM-GS-000010
CONFIDENTIAL WAMUBKEXAM-GS-000011
PERSONAL AND CONFIDENTIAL
September 24, 2008
Mr. Robert Williams Senior Vice President and Treasurer Washington Mutual, Inc. Washington Mutual Bank 1301 Second Avenue Seattle, WA 98101
Dear Mr. Williams:
GS Comments of September 24, 2008
We are pleased to confirm the arrangements under which Goldman, Sachs & Co. ("Goldman Sachs") is engaged by Washington Mutual, Inc. (the "Company") and Washington Mutual Bank (the "Bank") as financial advisor relating to the possible sale of all or a portion of the Company and/or the Bank and to explore capital raising alternatives.
I. During the term of our engagement, we will provide you with financial advice and assistance in connection with this potential transaction, which may include performing financial analyses, searching for a purchaser or investors acceptable to you, coordinating visits of potential purchasers and investors and assisting you in negotiating the fmancial aspects of the transaction.
2. At your request we also will undertake a study to enable us to render our opinion as to the fairness from a financial point of view of the financial consideration to be received by shareholders of the Company in connection with the sale of 50% or more of the outstanding common stock of the Company. The nature and scope of our investigation as well as the scope, form and substance of our opinion shall be such as we consider appropriate. If requested our opinion will be in written form.
3. The fees for our engagement will depend on the outcome of this assignment. Upon execution of the engagement letter, the Company agrees to pay us a fee of $3,000,000 for services provided to date. Upon armouncement of, or execution of a definitive agreement with respect to, a sale of 50% or more of the outstanding common stock or assets (based on the book value thereof) of the Company, the Company agrees to pay us a fee of $5,000,000 (the "Initial Fee"), less the fee paid upon execution of the engagement letter. If the purchase of50% or more of the outstanding common stock or the assets (based on the book value thereof) of the Company is accomplished in one or a series of transactions, including, but not limited to, private or open market purchases of stock, a tender offer, an exchange offer, a merger or a sale by the Company of its stock or assets, we will charge a transaction fee (the "Sale Completion Fee") equal to $30,000,000 less, to the extent paid, the Initial Fee, subject to a maximum transaction fee of $30,000,000 million. Ifless than 50% of the outstanding common stock or the assets (based on the book value thereof) is acquired in the marmer set forth in the preceding sentence, we will charge a transaction fee to be mutually agreed upon by Goldman Sachs and the Company; provided, however, in the event such transaction takes the form of a private placement of the Company's common stock, preferred securities or other capital securities to one or more
CONFIDENTIAL WAMUBKEXAM-GS-000012
Washington Mutual, Inc. September 24, 2008 Page 2
financial sponsors or investors who were contacted in connection with the transactions referenced in the preceding sentence, we will charge a transaction fee (the "Investor Completion Fee") equal to 1.375% of the gross proceeds received by the Company from a sale of such securities; provided, however, that Goldman Sachs' entitlement to the Investor Completion Fee shall be suspended following the execution of a definitive agreement for a transaction in respect of which a Sale Completion Fee would be payable upon consummation thereof and shall terminate upon consummation of such transaction. Except as provided herein, a transaction fee will be paid to us in cash upon consummation of each transaction.
4. If the Company or any of its affiliates enters into an agreement with respect to a transaction in respect of which a Sale Completion Fee would be payable upon consummation thereof (the "Agreement') and the Agreement provides for a payment at any time to the Company in the event the transaction contemplated thereby is terminated or otherwise not consummated (the "Payment"), the Company agrees to pay to Goldman Sachs a transaction fee, in cash if and when such Payment is made to the Company, equal to the lesser of (i) 10% of such Payment and (ii) the amount that would otherwise have been payable by the Company to Goldman Sachs if such transaction had been consummated in accordance with its terms, in each case less, to the extent paid, the Initial Fee.
5. In the event that the Company determines to undertake a public or private offering of its common stock, preferred securities or any securities linked to the Company's common stock or preferred stock other than any transaction for which a fee is payable pursuant to paragraph 3 of this letter (an "Offering"), the Company shall offer Goldman Sachs the right to act in a non-exclusive capacity to be agreed between the Company and Goldman Sachs in such offering, with a fee (the "Offering Fee") of not less than 1.375% of the amount of the aggregate offering price of such securities and at least 50% of the total economics. If Goldman Sachs agrees to act in such capacity, the Company and Goldman Sachs will enter into an appropriate form of underwriting or other applicable agreement containing customary terms and conditions, including customary fee provisions and provisions relating to our indemnity. However, unless specifically covered by a separate agreement setting forth such arrangement, the provisions in the attached Annex A shall apply to each such transaction. The Company acknowledges that this letter is neither an expressed nor an implied commitment by Goldman Sachs to act in any capacity in any such transaction, to provide financing or to purchase or place any securities, which commitment shall only be set forth in a separate agreement.
6. You also agree to reimburse us periodically, upon request, and upon consummation of the transaction or transactions contemplated hereby or upon termination of our services pursuant to this agreement, for our reasonable expenses, excluding expenses incurred in connection with a public offer that is consummated, including the reasonable fees and disbursements of our attorneys, plus any sales, use or similar taxes (including additions to such taxes, if any) arising in connection with any matter referred to in this letter.
7. In order to coordinate most effectively our efforts together to effect a transaction satisfactory to you during the term of our engagement, the Company and its management will
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Washington Mutual, Inc. September 24, 2008 Page 3
promptly inform us of any discussions they may have or of inquiries they may receive concerning the availability of all or a portion of the stock or assets of the Company for purchase.
8. Please note that any written or oral opinion or advice provided by Goldman Sachs in connection with our engagement is exclusively for the information of the Board of Directors and senior management of the Company, and such opinion, such advice and the terms of this letter may not be disclosed to any third party (other than the Office of Thrift Supervision, the Federal Deposit Insurance Corporation, Simpson Thacher & Bartlett LLP and Deloitte & Touche LLP, or another of the Company's outside legal counselor independent accountants specified by you in writing who have been informed by you of the confidential nature of such opinion, such advice and the terms of this letter and have agreed to treat such information confidentially) or circulated or referred to publicly without our prior written consent. If reference to our opinion and our firm is required to be made in a proxy statement of the Company required to be filed under the federal securities laws, we will not unreasonably withhold our consent thereto so long as the full text of our opinion is reproduced therein and we have approved in advance the text of any accompanying disclosure.
9. In connection with engagements such as this, it is our firm policy to receive indemnification. The Company, jointly and severally, and the Bank, severally and not jointly, agree to the provisions with respect to our indemnity and other matters set forth in Annex A which is incorporated by reference into this letter. The Bank shall not be responsible for any obligations of the Company and this letter is not a guarantee of any obligations of the Company by the Bank.
10. As you know, Goldman Sachs is a full service securities firm engaged, either directly or through its affiliates in various activities, including securities trading, investment banking and fmancial advisory, investment management, principal investment, hedging, financing and brokerage activities and financial planning and benefits counseling for both companies and individuals. In the ordinary course of these activities, Goldman Sachs and its affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities) and financial instruments (including bank loans) for their own account and for the accounts of their customers and may at any time hold long and short positions in such securities and instruments. Such investment and securities activities may involve securities and instruments of the Company, as well as of other entities and persons and their affiliates which may (i) be involved in transactions arising from or relating to the engagement contemplated by this letter, (ii) be customers or competitors of the Company, or (iii) have other relationships with the Company. In addition, Goldman Sachs and its affiliates may provide investment banking, underwriting and financial advisory services to such other entities and persons. Goldman Sachs and its affiliates may also co-invest with, make direct investments in, and invest or co-invest client monies in or with funds or other investment vehicles managed by other parties, and such funds or other investment vehicles may trade or make investments in securities of the Company or such other entities. The engagement contemplated by this letter may have a direct or indirect impact on the investments, securities or instruments referred to in this paragraph.
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Washington Mutual, Inc. September 24, 2008 Page 4
11. Our services may be terminated by you or us at any time with or without cause effective upon receipt of written notice to that effect. We will be entitled to the applicable transaction fee set forth above in the event that (A) none of the Sale Completion Fee, the Investor Completion Fee or the Offering Fee has been paid prior to the time of such termination and (B) at any time prior to the expiration of twelve months after such termination (i) an agreement is entered into with respect to a sale of all or a portion of the Company (excluding an Offering) which is eventually consummated or (ii) an Agreement is entered into pursuant to which a Payment is eventually made; provided, however, that in the event that Goldman Sachs terminates its services hereunder without cause, the foregoing provisions of this sentence shall not apply. In the event that our services are terminated by you or us before any of the Sale Completion Fee, the Investor Completion Fee or the Offering Fee has become payable, the Company's obligations to offer Goldman Sachs the right to act in the capacities set forth above in connection with an Offering shall survive for a period of twelve months following the date of such termination; provided, however, that in the event that Goldman Sachs terminates its services hereunder without cause, the foregoing provisions of this sentence shall not apply
12. The Company recognizes that, in providing our services pursuant to this letter, we will rely upon and assume the accuracy and completeness of all of the fmancial, accounting, tax and other information discussed with or reviewed by us for such purposes, and we do not assume responsibility for the accuracy or completeness thereof. Goldman Sachs will have no obligation to conduct any independent evaluation or appraisal of the assets or liabilities of the Company or any other party or to advise or opine on any related solvency issues. It is understood and agreed that Goldman Sachs will act under this letter as an independent contractor with duties solely to the Company and nothing in this letter or the nature of our services in connection with this engagement or otherwise shall be deemed to create a fiduciary duty or fiduciary or agency relationship between us and the Company or its stockholders, employees or creditors, and the Company agrees that it shall not make, and hereby waives, any claim based on an assertion of such a fiduciary duty or relationship. Except as set forth in Annex A hereto, nothing in this letter is intended to confer upon any other person (including stockholders, employees or creditors of the Company) any rights or remedies hereunder or by reason hereof.
13. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001», Goldman Sachs is required to obtain, verify and record information that identifies its clients, including the Company, which information may include the name and address of its clients, as well as other information that will allow Goldman Sachs to properly identify its clients.
14. Goldman Sachs does not provide accounting, tax or legal advice. Notwithstanding anything herein to the contrary, you are authorized to disclose to any person the US. federal and state income tax treatment and tax structure of the potential transaction and all materials of any kind (including tax opinions and other tax analyses) provided to you relating to that treatment and structure, without Goldman Sachs imposing any limitation of any kind. However, any information relating to the tax treatment and tax structure shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to enable any person to comply with
CONFIDENTIAL WAMUBKEXAM-GS-000015
Washington Mutual, Inc. September 24, 2008 Page 5
securities laws. For this purpose, "tax structure" is limited to any facts that may be relevant to that treatment.
15. This letter contains the entire agreement of the parties with respect to the performance by Goldman Sachs of services for the Company and the Bank described herein and supersedes any prior understandings and agreements.
CONFIDENTIAL WAMUBKEXAM-GS-000016
Washington Mutual, Inc. September 24, 2008 Page 6
Please confirm that the foregoing is in accordance with your understanding by signing and returning to us the enclosed copy of this letter, which shall become a binding agreement upon our receipt. We are delighted to accept this engagement and look forward to working with you on this assignment.
Ve truly yours, C rt.l.~ ~ ~l c..
Confirmed
(GOLDMAN, SACHS & 0.) WASHINGTON MUTUAL, INC.
By: _________ _
Name: Title:
WASHINGTON MUTUAL BANK
By: ________ _ Name: Title:
Date: _________ _
CONFIDENTIAL WAMUBKEXAM-GS-000017
Washington Mutual, Inc. September 24, 2008 Page 7
AnnexA
In the event that Goldman Sachs becomes involved in any capacity in any action, proceeding or investigation brought by or against any person, including stockholders of the Company, in connection with or as a result of either our engagement or any matter referred to in this letter, the Company periodically will reimburse Goldman Sachs for its legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith; provided. however, that if it is found in any such action, proceeding or investigation that any loss, claim, damage or liability to any such person has resultedfrom the gross negligence or bad faith of Goldman Sachs in performing the services which are the subject this letter, Goldman Sachs shall repay such portion of the reimbursed amounts that is attributable to expenses incurred in relation to the act or omission of Goldman Sachs which is the subject of such finding. The Company, jointly and severally, and the Bank, severally and not jointly, will indemnifY and hold Goldman Sachs harmless against any and all losses, claims, damages or liabilities to any such person in connection with or as a result of either our engagement or any matter referred to in this letter, except to the extent that any such loss, claim, damage or liability results from the gross negligence or bad faith of Goldman Sachs in performing the services that are the subject of this letter. If for any reason the foregoing indemnification is unavailable to Goldman Sachs or insufficient to hold it harmless, then the Company and the Bank shall contribute to the amount paid or payable by Goldman Sachs as a result of such loss, claim, damage or liability in such proportion as is appropriate to refiect the relative economic interests of the Company, the Bank and their stockholders on the one hand and Goldman Sachs on the other hand in the matters contemplated by this letter as well as the relative fault of the Company, the Bank and Goldman Sachs with respect to such loss, claim, damage or liability and any other relevant equitable considerations. The reimbursement, indemnity and contribution obligations of the Company under this paragraph and the indemnity and contribution obligations of the Bank under this paragraph shall be in addition to any liability which the Company or the Bank may otherwise have, shall extend upon the same terms and conditions to any affiliate of Goldman Sachs and the partners, directors, agents, employees and controlling persons (if any), as the case may be, of Goldman Sachs and any such affiliate, and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Company, the Bank, Goldman Sachs, any such affiliate and any such person. Neither the Company nor the Bank shall be required to indemnifY Goldman Sachs for any amount paid or payable by Goldman Sachs in the settlement of any action, proceeding or investigation without the written consent of the Company or the Bank, as applicable, which consent shall not be unreasonably withheld. Each of the Company and the Bank also agrees that neither Goldman Sachs nor any of such affiliates, partners, directors, agents, employees or controlling persons shall have any liability to the Company or the Bank or any person asserting claims on behalf of or in right of the Company or the Bank in connection with or as a result of either our engagement or any matter referred to in this letter except to the extent that any losses, claims, damages, liabilities or expenses incurred by the Company or the Bank result from the gross negligence or bad faith of Goldman Sachs in performing the services that are the subject of this letter. Prior to entering into any agreement or arrangement with respect to, or efficting, any proposed sale, exchange, dividend or other
CONFIDENTIAL WAMUBKEXAM-GS-000018
Washington Mutual, Inc. September 24, 2008 Page 8
distribution or liquidation of all or a significant portion of its assets in one or a series of transactions or any significant recapitalization or reclassification of its outstanding securities that does not directly or indirectly provide for the assumption of the obligations of the Company and the Bank set forth in this Annex A, the Company will notifY Goldman Sachs in writing thereof (if not previously so notified) and, if requested by Goldman Sachs, shall arrange in connection therewith alternative means of providing for the obligations of the Company and the Bank set forth in this paragraph, including the assumption of such obligations by another party, insurance, surety bonds or the creation of an escrow, in each case in an amount and upon terms and conditions satisfactory to Goldman Sachs. Promptly after receipt by Goldman Sachs of notice of its involvement in any action, proceeding or investigation, Goldman Sachs shall, if a claim for indemnification in respect thereofis to be made against the Company or the Bank under this Annex A, notifY the Company or the Bank, as applicable, of such involvement. Failure by Goldman Sachs to so notifY the Company shall relieve the Company and the Bank, as applicable, from the obligation to indemnifY Goldman Sachs under this Annex A only to the extent that the Company or the Bank, as applicable, suffers actual prejudice as a result of such failure, but shall not relieve the Company from its obligation to provide reimbursement and the Company and the Bankfrom its obligations to provide contribution to Goldman Sachs. If any person is entitled to indemnification under this Annex A (the "Indemnified Person ") with respect to any action or proceeding brought by a third party that is also brought against the Company or the Bank, the Company shall be entitled to assume the defense of any such action or proceeding with counsel reasonably satisfactory to the Indemnified Person. Upon assumption by the Company of the defense of any such action or proceeding, the Indemnified Person shall have the right to participate in such action or proceeding and to retain its own counsel but the Company shall not be liable for any legal expenses of other counsel subsequently incurred by such Indemnified Person in connection with the defense thereof unless (i) the Company has agreed to pay such fees and expenses, (ii) the Company shall have failed to employ counsel reasonably satisfactory to the Indemnified Person in a timely manner, or (iii) the Indemnified Person shall have been advised by counsel that there are actual or potential conjlicting interests between the Company or the Bank and the Indemnified Person, including situations in which there are one or more legal defenses available to the Indemnified Person that are different from or additional to those available to the Company or the Bank, provided, however, that the Company shall not, in connection with anyone such action or proceeding or separate but substantially similar actions or proceedings arising out of the same general allegations, be liable for the fees and expenses of more than one separate firm of attorneys at any time for all Indemnified Persons, including Goldman Sachs, except to the extent that local counsel, in addition to its regular counsel, is required in order to effictively defend against such action or proceeding. Neither the Company nor the Bank shall consent to the terms of any compromise or settlement of any action defended by it in accordance with the foregoing without the prior written consent of the Indemnified Person unless such compromise or settlement (i) includes an unconditional release of the Indemnified Person from all liability arising out of such action 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 any Indemnified Person. Any right to trial by jury with respect to any action or proceeding arising in connection with or as a result of either our engagement or any matter referred to in this
CONFIDENTIAL WAMUBKEXAM-GS-000019
Washington Mutual, Inc. September 24, 2008 Page 9
letter is hereby waived by the parties hereto. The Company and the Bank agree that any suit or proceeding arising in respect to this letter or our engagement will be tried exclusively in the U.S. District Court for the Southern District of New York or, if that court does not have subject matter jurisdiction, in any state court located in the City of New York and the Company and the Bank agree to submit to the jurisdiction of, and to venue in, such courts. The provisions of this Annex A shall survive any termination or completion of the engagement provided by this letter agreement, and this letter agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of laws. The Bank shall not be responsible for any obligations of the Company and this Annex A is not a guarantee of any obligations of the Company by the Bank.
Indications of Interest / Initial Management Meetings (March 10-14)
— JP Morgan, Wells Fargo
Second Round Management Meetings / Final Bids (March 17 – April 1) — JP Morgan – Offered $5.00 / share with upside of $3.00 / share via a contingent value security
if the low end of losses in home equity portfolio (8.5% cumulative losses on $60.6bn home equity portfolio) proved to be correct
− Based on current assumptions of losses in home equity portfolio, aforementioned contingent value security would be worth $0
— Wells Fargo declined second round meetings due to concerns over mortgage portfolio and geographic overlap in higher-risk states (i.e. California)
Mark on portfolio at closing will be the primary driver for sizing the capital requirement of the acquiring institutions
Likely to be calculated based on a discounted cash flow methodology (expected prepayments, interest, losses, etc) as level 3 assets
BAC / CFC provides one recent data point on “accountant-approved” methodology
Form of Consideration
Contingent value security may be a form of consideration for potential acquirors Likely to be linked to performance of some subset of higher risk residential real
estate portfolio (or all of it) — JPMorgan linked to low-end of loss range on home equity portfolio to obtain
full value of CVS
Capturing Discount in Debt / Preferred
WaMu’s debt and preferred outstandings are currently trading at a significant discount to par — Aggregate discount of approximately $10.0 billion on $24.0 billion liability /
preferred base Capturing this discount in some fashion prior to executing a strategic transaction
would potentially improve the ability to pay of a potential partner due to decreased goodwill creation / capital needed
Transaction contingent on exchange / tender of debt / preferred may also be structured
Illustrative Impact at Close Moody's Stress Case Company Stress Case
Credit Impact Discount Rate Illustrative Mark Credit Impact Discount Rate Illustrative Markon Mark Impact on Mark to Market on Mark Impact on Mark to Market
Financial Assumptions — Financial data as of June 30, 2008. Market data as of August 8, 2008 — Acquirer IBES standalone financial assumptions — $5.00 purchase price
Transaction Assumptions — 100% stock financed — Company High Stress Case: $14.4 billion total pre-tax mark in excess of allowance at closing — Moody’s Stress Case: $18.5 billion total pre-tax mark at closing in excess of allowance at closing — Pro Forma Capital ratios
− Wells Fargo, USB, BBVA, SMBC maintain current Tier 1 RBC ratio − JPMorgan, Barclays and TD allowed 60 bps of Tier 1 capital flexibility − Santander allowed ~15 bps of Tier 1 capital flexibility − Acquirer issues shares at 10% discount to recapitalize entity
— Identifiable intangibles created: 1.5% of core deposits (CDI), 3.0% of managed credit card receivables (PCCR) — Restructuring charge of 1.5x run-rate synergies, over three years
Synergies detailed below (phased in 50% in 2009, 75% in 2010 and 100% thereafter)
A bank holding company (“Acquiror”) is seeking to acquire another bank holding company (“Target”) which holds a portfolio of higher risk assets (“Assets”) on its balance sheet
In addition to cash and other consideration the Acquiror can deliver to Target shareholders Contingent Value Securities (“CVS”) which track the performance of the Assets and convert into common stock of the Acquiror based on Asset performance
CVS return will be based on asset performance post purchase accounting mark
Initial value of the CVS would be based on the size of the Asset portfolio, and the purchase accounting mark on the Assets
Dividends would be non-cumulative and paid based on an arms length fixed annual rate
Conversion into Acquiror common stock would be mandatory and occur upon the earlier of [5 yrs] and the date on which [80%] of the assets have paid off — Investors receive a variable number of shares
to return a fixed value within a range based on (i) performance of the asset portfolio and (ii) Acquiror stock price on the conversion date
— Alternately, upside can be capped or shared between Acquiror and Target shareholders
Contingent Value Securities Regulatory, Rating Agency & Accounting Considerations
Regulatory & Rating Agency
The securities will be non-cumulative perpetual preferred stock with a mandatory conversion feature, and will qualify as Tier 1 and unrestricted core capital at the Federal Reserve
Rating Agencies will likely treat the security as a mandatory convertible preferred, which would achieve Basket E (100%) at Moody’s and 100% equity credit at S&P (up to 50% of ACE)
Accounting The value of the CVS will vary based on the value of the underlying assets, and will therefore likely be viewed as a
derivative — FAS 133 requires that the derivative should be marked to market on an ongoing basis. Consistent with the
guidance on contingent consideration in FAS141R, the change in fair value would be recorded in current earnings or OCI
— Changes in value in the CVS may be offset by electing fair value accounting on the underlying assets
− Size and timing of mark-to-market adjustments on the CVS may differ from adjustments on the underlying assets due to different assumptions underlying the valuation of each1
Since there is a requirement to deliver a variable number of shares within a range, the CVS will likely receive “if-converted” accounting treatment
To avoid EITF 00-19 issues, the CVS will require a share cap to limit the amount of common shares that could potentially be issued
1 Including volatility of the Acquiror’s share price, shifts in interest rates and shifts in credit spreads
Assets A portfolio of higher-risk mortgage related assets with starting aggregate face or principal amount of $● (the “Starting Unpaid Principal Balance”)
Securities Offered Contingent Value Securities (“The Securities”)
Liquidation Preference Initially $● in the aggregate, or $● per share,
Conversion Date The earlier of (i) the date which is [5] yrs from the issue date, and (ii) the Asset Disposition Date
“Asset Disposition Date” means the last day of the first calendar quarter as of which the Unpaid Principal Balance is [20]% or less of the Starting Unpaid Principal Balance
“Unpaid Principal Balance” means, on any date, the aggregate principal amount of the loans that are part of the Assets on such date
Conversion On the Conversion Date, the Securities will convert into a number of shares of Acquiror common stock equal to the Conversion Valuedivided by the volume weighted average price of Acquiror common stock over the ten day period preceding the Conversion Date,provided that the Acquiror shall in no event be obligated to deliver more shares than the Maximum Share Cap
The “Conversion Value” will equal the sum of (a) the Liquidation Preference minus (b) Aggregate Asset Gains and Losses minus (c) Remaining Expected Losses
“Aggregate Asset Gains and Losses” means the aggregate sum of realized losses and realized gains minus the aggregate sum of expected losses as reflected on the Acquiror’s consolidated balance sheet at inception of the transaction as calculated on theConversion Date by an independent investment banking firm of international standing (the “Calculation Agent”)
“Remaining Expected Losses” means, with respect to Assets still outstanding on the Conversion Date, the aggregate sum ofexpected future losses as calculated on the Conversion Date by the Calculation Agent
“Maximum Share Cap” means [2 times] the Liquidation Preference divided by the volume weighted average price of Acquiror common stock over the ten day period preceding the date of issuance
Dividends Non-Cumulative Dividends will be payable on the Securities as and if declared by the Board of Directors at a rate equal to [8]% per annum applied to the Liquidation Preference of the Securities quarterly on ●,●,● and ● of each year, commencing on ●, 2008 (each, a “Dividend Payment Date”). The period from, and including, a Dividend Payment Date to, but excluding, the next succeedingDividend Payment Date is referred to herein as a “Dividend Period”.
Dividends on the Securities are not cumulative. Accordingly, if for any reason the Acquiror does not declare a dividend on theSecurities before the Dividend Payment Date for a Dividend Period, that dividend will not accumulate and holders of the Securities will have no right to receive, and the Acquiror will have no obligation to pay, a dividend for that period, whether or not dividends onthe Securities are paid in full or in part in the future.
If full dividends on the Securities are not paid for a particular Dividend Period, the Acquiror will not declare or pay dividends on orredeem or purchase any common stock or other junior securities during the next succeeding Dividend Period.
Ranking The Securities will rank junior to all debt of the Acquiror, senior to common equity, and pari passu with all other preferred shares of the Acquiror
Covenants In the charter document setting forth the terms of the Securities (the “Issuance Document”), the Acquiror will covenant as follows:
the Calculation Agent will calculate, for relevant periods and as of relevant dates, the Aggregate Gains and Losses andRemaining Expected Losses (and related definitions used in computing defined amounts) in accordance with the definitions ofthose terms set forth in the Issuance Document; and
at all relevant times, the Acquiror will have entered into and have in full force and effect a “Servicing Agreement” with an “Eligible Servicer”. “Eligible Servicer” means ●; each such Servicing Agreement shall have at least the following terms: ●
adopt a policy to manage the Assets with the objective of maximizing the gains on the Assets, and to adopt that standard as thecore servicing standard in the Servicing Agreement
Servicing Commencing upon issuance of the Securities and continuing through the Redemption Date, there shall at all times be a “Servicer” who shall be an Eligible Servicer. The Servicer shall be responsible for collecting on and otherwise servicing the Assets including assets that are ● or more days delinquent or are characterized as non-performing assets. The initial Servicer shall be jointly agreed upon and appointed by the Acquiror and the Target.
Issuance • The Securities will be issued in registered, global form The Securities will be registered under the Securities Act of 1933, as amended, and listed on NYSE
Contingent Value Securities Illustrative Impact – Wells Fargo Acquires WaMu
CVS has original notional value $4,000 mm ($2.35 / share) — Initially calculated as ~40% of mark on Option ARM portfolio at closing (mark on portfolio is 19% of 12/31/08E
balance of $51.8 billion)
Value of security contingent upon performance of reference pool (Option ARM portfolio) — Full value if portfolio performs as marked — Value adjusts on linear basis based on portfolio performance
Overview of Payment Pro Forma Impact 2009 2010 2011
As Expected: Moody's StressGain / (Loss) on Marked Portfolio $ 0.0 $ 0.0 $ 0.0Gain / (Loss) on CVS 0.0 0.0 0.0Value of CVS 4,000 4,000 4,000Wells Fargo Stock Price $ 32.57 $ 42.02 $ 45.28Number of Shares Issued 122.8 95.2 88.4Accretion / Dilution 34.3 % 36.6 % 36.3 %
Stronger Performance: Company StressGain / (Loss) on Marked Portfolio $ 276.1 $ 276.1 $ 276.1Gain / (Loss) on CVS (276.1) (276.1) (276.1)Value of CVS 4,276 4,552 4,828Wells Fargo Stock Price $ 32.57 $ 42.02 $ 45.28Number of Shares Issued 131.3 108.3 106.6Accretion / Dilution 34.1 % 36.1 % 35.7 %
Debt for Equity Exchange Exchanging Extant Debt and/or Preferred for Common Equity
Washington Mutual’s debt and preferred stock is trading at a significant discount to par
Similar to recent senior debt repurchases, a repurchase of discounted debt creates an after tax gain
A further extension to this strategy would be for WaMu to exchange equity for some of its existing subordinated debt and / or preferred stock
An equity exchange increases equity by — The price paid for the debt or preferred redeemed, plus — The aggregate discount less tax leakage
− Tax leakage only applies to debt and trust preferred – there is no tax leakage on Series K DRD Preferred, Series R Convertible Preferred, and REIT Preferred securities)
In addition, can re-balance capital structure by reducing hybrids outstanding, which could improve regulatory and rating agency sentiment
The most likely route for an exchange would be through a Section 3(a)(9) exemption — A direct solicitation by Washington Mutual to investors can avoid SEC filing but must conform to tender rules
and may be subject to the same disclosure requirements as a public common equity raise
Overview of Countrywide Mark to Market WM vs. CFC Asset Quality Comparison ($ in billions)
BofA announced a total mark to market on their Countrywide assets of $14.3bn, or 15.6% of the $91bn HTM loan portfolio — BofA officials said marks range across asset classes from single digits to mid-20s
Underlying assumptions on these marks is peak-to-trough nationwide HPD of 25-30%, with ~38-40% in FL and CA resulting in 17.3% cumulative loss on Countrywide Financial loans
Comparing loan portfolios suggests WM’s performance is dramatically better than CFC’s, although higher proportion of subprime loans increases loss content
Loans: Held for sale $11.8 $15.7 Held for investment 99.3 98.6
Total Loans 111.1 114.3
Allowance for loan losses (5.1) (3.4) Securities purchased under agreement to resell,
securities borrowed and fed funds sold 6.6 7.8 Investments in other financial instruments 18.8 20.9 MSR, at estimated fair value 18.4 17.2 Other assets 22.3 42.2
Total Assets $172.1 $199.0
Deposits $62.8 $63.3 Securities sold under agreement to repurchase 3.5 17.9 Notes payable 82.3 87.7 Other liabilities 13.1 16.9
Total liabilities 161.7 185.8 Shareholders' equity 10.4 13.2
Total Liabilities and Shareholders' Equity $172.1 $199.0
Purchase Price Countrywide common stock exchanged (in millions) 583 Exchange ratio 0.1822
Corporation's common stock exchanged (in millions) 106 Purchase price per share of the corporation's common stock1 $38.73
Total Purchase Price $4.1
Preliminary Allocation of the Purchase Price Countrywide stockholder's equity2 8.4 Pretax adjustments to reflect assets acquired and liabilities assumed at fair value3
Loans4 (8.1) Mortgage servicing rights (1.7) Deferred costs and currency adjustments on loans and debt 1.6 All other (4.6) Pretax total adjustments (12.8) Deferred income taxes 4.5
After tax total adjustments (8.3) Fair value of net assets acquired 0.1
Preliminary Goodwill Resulting from the Countrywide Merger $4.0
1 The value of the shares of common stock exchanged with Countrywide shareholders was based upon the average of the closing prices of the corporation's common stock for the period commencing two
trading days before, and ending two trading days after January 11, 2008, the date of the Countrywide merger agreement. 2 The value of the remaining Countrywide shareholder's equity after the cancellation of the Series B convertible preferred shares owned by the corporation prior to the merger. 3 Adjustments shown in the preliminary purchase price allocation are based on values within current estimated ranges. 4 Loan portfolio credit adjustment of $14.3 billion less the allowance for loan and lease losses of $5.1 billion less $1.1 billion of loss exposure for non-impaired loans that will flow through consolidated
Total Mark-To-Market $ 24.2(-) 12/31 Reserve (9.7)(-) Estimated 2H 2008 NCOs (5.7)Estimated Pre-Tax Mark at 12/31 $ 8.8
1 Bank of America indicated a range from single digits to mid twenties for the mark on the Prime First and Subprime. Mark for Prime Pay Option, HELOC and Fixed Rate Second are GS estimates. 2 GS estimates.
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Indications of Interest / Initial Management Meetings (March 10-14)
— JP Morgan, Wells Fargo
Second Round Management Meetings / Final Bids (March 17 – April 1) — JP Morgan – Offered $5.00 / share with upside of $3.00 / share via a contingent value security
if the low end of losses in home equity portfolio (8.5% cumulative losses on $60.6bn home equity portfolio) proved to be correct
− Based on current assumptions of losses in home equity portfolio, aforementioned contingent value security would be worth $0
— Wells Fargo declined second round meetings due to concerns over mortgage portfolio and geographic overlap in higher-risk states (i.e. California)
Mark on portfolio at closing will be the primary driver for sizing the capital requirement of the acquiring institutions
Likely to be calculated based on a discounted cash flow methodology (expected prepayments, interest, losses, etc) as level 3 assets
BAC / CFC provides one recent data point on “accountant-approved” methodology
Form of Consideration
Contingent value security may be a form of consideration for potential acquirors Likely to be linked to performance of some subset of higher risk residential real
estate portfolio (or all of it) — JPMorgan linked to low-end of loss range on home equity portfolio to obtain
full value of CVS
Capturing Discount in Debt / Preferred
WaMu’s debt and preferred outstandings are currently trading at a significant discount to par — Aggregate discount of approximately $10.0 billion on $24.0 billion liability /
preferred base Capturing this discount in some fashion prior to executing a strategic transaction
would potentially improve the ability to pay of a potential partner due to decreased goodwill creation / capital needed
Transaction contingent on exchange / tender of debt / preferred may also be structured
Illustrative Impact at Close Moody's Stress Case Company Stress Case
Credit Impact Discount Rate Illustrative Mark Credit Impact Discount Rate Illustrative Markon Mark Impact on Mark to Market on Mark Impact on Mark to Market
Financial Assumptions — Financial data as of June 30, 2008. Market data as of August 8, 2008 — Acquirer IBES standalone financial assumptions — $5.00 purchase price
Transaction Assumptions — 100% stock financed — Company High Stress Case: $14.4 billion total pre-tax mark in excess of allowance at closing — Moody’s Stress Case: $18.5 billion total pre-tax mark at closing in excess of allowance at closing — Pro Forma Capital ratios
− Wells Fargo, USB, BBVA, SMBC maintain current Tier 1 RBC ratio − JPMorgan, Barclays and TD allowed 60 bps of Tier 1 capital flexibility − Santander allowed ~15 bps of Tier 1 capital flexibility − Acquirer issues shares at 10% discount to recapitalize entity
— Identifiable intangibles created: 1.5% of core deposits (CDI), 3.0% of managed credit card receivables (PCCR) — Restructuring charge of 1.5x run-rate synergies, over three years
Synergies detailed below (phased in 50% in 2009, 75% in 2010 and 100% thereafter)