EX-10.1






Exhibit 10.1




PURCHASE AND ASSUMPTION AGREEMENT




WHOLE BANK




AMONG




FEDERAL DEPOSIT INSURANCE CORPORATION,

RECEIVER OF WASHINGTON MUTUAL BANK,

HENDERSON, NEVADA




FEDERAL DEPOSIT INSURANCE CORPORATION




and




JPMORGAN CHASE BANK, NATIONAL ASSOCIATION




DATED
AS OF


SEPTEMBER 25, 2008




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	ARTICLE I
	 	DEFINITIONS	 	 	2	 
	 
	 	 	 	 	 	 
	ARTICLE II
	 	ASSUMPTION OF LIABILITIES	 	 	8	 
	 
	 	 	 	 	 	 
	2.1
	 	Liabilities Assumed by Assuming Bank	 	 	8	 
	2.2
	 	Interest on Deposit Liabilities	 	 	8	 
	2.3
	 	Unclaimed Deposits	 	 	8	 
	2.4
	 	Omitted	 	 	9	 
	2.5
	 	Borrower Claims	 	 	9	 
	 
	 	 	 	 	 	 
	ARTICLE III
	 	PURCHASE OF ASSETS	 	 	9	 
	 
	 	 	 	 	 	 
	3.1
	 	Assets Purchased by Assuming Bank	 	 	9	 
	3.2
	 	Asset Purchase Price	 	 	9	 
	3.3
	 	Manner of Conveyance; Limited
Warranty; Nonrecourse; Etc.	 	 	10	 
	3.4
	 	Puts of Assets to the Receiver	 	 	10	 
	3.5
	 	Assets Not Purchased by Assuming Bank	 	 	11	 
	3.6
	 	Assets Essential to Receiver	 	 	11	 
	 
	 	 	 	 	 	 
	ARTICLE IV
	 	ASSUMPTION OF CERTAIN DUTIES AND OBLIGATIONS	 	 	13	 
	 
	 	 	 	 	 	 
	4.1
	 	Continuation of Banking Business	 	 	13	 
	4.2
	 	Agreement with Respect to Credit Card Business	 	 	13	 
	4.3
	 	Agreement with Respect to Safe Deposit Business	 	 	13	 
	4.4
	 	Agreement with Respect to Safekeeping Business	 	 	13	 
	4.5
	 	Agreement with Respect to Trust Business	 	 	13	 
	4.6
	 	Agreement with Respect to Bank Premises	 	 	14	 
	4.7
	 	Agreement with Respect to Leased
Data Processing Equipment	 	 	16	 
	4.8
	 	Agreement with Respect to Certain Existing Agreements	 	 	16	 
	4.9
	 	Informational Tax Reporting	 	 	17	 
	4.10
	 	Insurance	 	 	17	 
	4.11
	 	Office Space for Receiver and Corporation	 	 	17	 
	4.12
	 	Omitted	 	 	18	 
	4.13
	 	Omitted	 	 	18	 






			
	 	 	 
	Execution Copy 

Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






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	ARTICLE V
	 	DUTIES WITH RESPECT TO
DEPOSITORS OF THE FAILED BANK	 	 	18	 
	 
	 	 	 	 	 	 
	5.1
	 	Payment of Checks, Drafts and Orders	 	 	18	 
	5.2
	 	Certain Agreements Related to Deposits	 	 	18	 
	5.3
	 	Notice to Depositors	 	 	18	 
	 
	 	 	 	 	 	 
	ARTICLE VI
	 	RECORDS	 	 	19	 
	 
	 	 	 	 	 	 
	6.1
	 	Transfer of Records	 	 	19	 
	6.2
	 	Delivery of Assigned Records	 	 	20	 
	6.3
	 	Preservation of Records	 	 	20	 
	6.4
	 	Access to Records; Copies	 	 	20	 
	 
	 	 	 	 	 	 
	ARTICLE VII
	 	BID; INITIAL PAYMENT	 	 	20	 
	 
	 	 	 	 	 	 
	ARTICLE VIII
	 	PROFORMA	 	 	21	 
	 
	 	 	 	 	 	 
	ARTICLE IX
	 	CONTINUING COOPERATION	 	 	21	 
	 
	 	 	 	 	 	 
	9.1
	 	General Matters	 	 	21	 
	9.2
	 	Additional Title Documents	 	 	21	 
	9.3
	 	Claims and Suits	 	 	21	 
	9.4
	 	Payment of Deposits	 	 	22	 
	9.5
	 	Withheld Payments	 	 	22	 
	9.6
	 	Proceedings with Respect to Certain
Assets and Liabilities	 	 	22	 
	9.7
	 	Information	 	 	23	 
	 
	 	 	 	 	 	 
	ARTICLE X
	 	CONDITION PRECEDENT	 	 	23	 
	 
	 	 	 	 	 	 
	ARTICLE XI
	 	REPRESENTATIONS AND WARRANTIES
OF THE ASSUMING BANK	 	 	23	 
	 
	 	 	 	 	 	 
	ARTICLE XII
	 	INDEMNIFICATION	 	 	25	 
	 
	 	 	 	 	 	 
	12.1
	 	Indemnification of Indemnitees	 	 	25	 
	12.2
	 	Conditions Precedent to Indemnification	 	 	27	 
	12.3
	 	No Additional Warranty	 	 	28	 
	12.4
	 	Indemnification of Corporation and Receiver	 	 	29	 
	12.5
	 	Obligations Supplemental	 	 	29	 
	12.6
	 	Criminal Claims	 	 	29	 
	12.7
	 	Limited Guaranty of the Corporation	 	 	29	 
	12.8
	 	Subrogation	 	 	30	 






			
	 	 	 
	Execution Copy 

Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






iii









 






	 	 	 	 	 	 	 
	ARTICLE XIII
	 	MISCELLANEOUS	 	 	30	 
	 
	 	 	 	 	 	 
	13.1
	 	Entire Agreement	 	 	30	 
	13.2
	 	Headings	 	 	30	 
	13.3
	 	Counterparts	 	 	30	 
	13.4
	 	Governing Law	 	 	30	 
	13.5
	 	Successors	 	 	30	 
	13.6
	 	Modification; Assignment	 	 	31	 
	13.7
	 	Notice	 	 	31	 
	13.8
	 	Manner of Payment	 	 	31	 
	13.9
	 	Costs, Fees and Expenses	 	 	32	 
	13.10
	 	Waiver	 	 	32	 
	13.11
	 	Severability	 	 	32	 
	13.12
	 	Term of Agreement	 	 	32	 
	13.13
	 	Survival of Covenants, Etc.	 	 	32	 
	 
	 	 	 	 	 	 
	SCHEDULES
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	2.1
	 	Certain Liabilities Not Assumed	 	 	34	 
	3.2
	 	Purchase Price of Assets or Assets	 	 	35	 
	3.5
	 	Certain Assets Not Purchased	 	 	37	 
	 
	 	 	 	 	 	 
	EXHIBIT
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	3.2(c)
	 	Valuation of Certain Qualified Financial Contracts	 	 	38	 






			
	 	 	 
	Execution Copy 

Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






iv









 






PURCHASE AND ASSUMPTION AGREEMENT




WHOLE BANK




     THIS AGREEMENT, made and entered into as of the 25th day of September, 2008, by and
among the FEDERAL DEPOSIT INSURANCE CORPORATION, RECEIVER of WASHINGTON MUTUAL BANK, HENDERSON,
NEVADA (the “Receiver”), JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, organized under the laws of the
United States of America, and having its principal place of business in Seattle, Washington (the
“Assuming Bank”), and the FEDERAL DEPOSIT INSURANCE CORPORATION, organized under the laws of the
United States of America and having its principal office in Washington, D.C., acting in its
corporate capacity (the “Corporation”).



WITNESSETH:




     WHEREAS, on Bank Closing, the Chartering Authority closed Washington Mutual Bank (the “Failed
Bank”) pursuant to applicable law and the Corporation was appointed Receiver thereof; and



     WHEREAS, the Assuming Bank desires to purchase substantially all of the assets and assume all
deposit and substantially all other liabilities of the Failed Bank on the terms and conditions set
forth in this Agreement; and



     WHEREAS,
pursuant to 12 U.S.C. Section 1823(c)(2)(A), the Corporation may provide assistance
to the Assuming Bank to facilitate the transactions contemplated by this Agreement, which
assistance may include indemnification pursuant to Article XII; and



     WHEREAS, the Board of Directors of the Corporation (the “Board”) has determined to provide
assistance to the Assuming Bank on the terms and subject to the
conditions set forth in this Agreement; and



     WHEREAS,
the Board has determined pursuant to 12 U.S.C.
Section 1823(c)(4)(A) that such
assistance is necessary to meet the obligation of the Corporation to provide insurance coverage for
the insured deposits in the Failed Bank and is the least costly to the deposit insurance fund of
all possible methods for meeting such obligation.



     NOW THEREFORE, in consideration of the mutual promises herein set forth and other valuable
consideration, the parties hereto agree as follows:



			
	 	 	 






 









 






ARTICLE I

DEFINITIONS




     Capitalized terms used in this Agreement shall have the meanings set forth in this Article I,
or elsewhere in this Agreement. As used herein, words imparting the singular include the plural and vice versa.



          “Accounting Records” means the general ledger and subsidiary ledgers and
supporting schedules which support the general ledger balances.



          “Acquired
Subsidiaries” means Subsidiaries of the Failed Bank acquired pursuant
to Section 3.1.



          “Adversely
Classified” means, with respect to any Loan or security, a Loan or
security which has been designated in the most recent report of examination as “Substandard,”
“Doubtful” or “Loss” by the Failed Bank’s appropriate Federal or State Chartering Authority or
regulator.



          “Affiliate” of any Person means any director, officer, or employee of that Person and
any other Person (i) who is directly or indirectly controlling, or controlled by, or under direct
or indirect common control with, such Person, or (ii) who is an affiliate of such Person as the
term “affiliate” is defined in Section 2 of the Bank Holding Company Act of 1956, as amended,
12 U.S.C. Section 1841.



          “Agreement” means this Purchase and Assumption Agreement by and among the Assuming
Bank, the Corporation and the Receiver, as amended or otherwise modified from time to time.



          “Assets” means all assets of the Failed Bank purchased pursuant to Section 3.1. Assets
owned by Subsidiaries of the Failed Bank are not “Assets” within the meaning of this definition.



          “Assumed Deposits” means Deposits.



          “Bank
Closing” means the close of business of the Failed Bank on the date on which
the Chartering Authority closed such institution.



          “Bank
Premises” means the banking houses, drive-in banking facilities, and teller
facilities (staffed or automated) together with appurtenant parking, storage and service facilities
and structures connecting remote facilities to banking houses, and land on which the foregoing are
located, that are owned or leased by the Failed Bank and that are occupied by the Failed Bank as of
Bank Closing.



          “Bid Amount” has the meaning provided in Article VII.



			
	 	 	 
	Execution Copy 

Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






2









 






          “Book
Value” means, with respect to any Asset and any Liability Assumed, the
dollar amount thereof stated on the Accounting Records of the Failed Bank. The Book Value of any
item shall be determined as of Bank Closing after adjustments made by the Assuming Bank for normal
operational and timing differences in accounts, suspense items, unposted debits and credits, and
other similar adjustments or corrections and for setoffs, whether voluntary or involuntary. The
Book Value of a Subsidiary of the Failed Bank acquired by the Assuming Bank shall be determined
from the investment in subsidiary and related accounts on the “bank only” (unconsolidated) balance
sheet of the Failed Bank based on the equity method of accounting. Without limiting the generality
of the foregoing, (i) the Book Value of a Liability Assumed shall include all accrued and unpaid
interest thereon as of Bank Closing, and (ii) the Book Value of a Loan shall reflect adjustments
for earned interest, or unearned interest (as it relates to the “rule of 78s” or add-on-interest
loans, as applicable), if any, as of Bank Closing, adjustments for the portion of earned or
unearned loan-related credit life and/or disability insurance premiums, if any, attributable to the
Failed Bank as of Bank Closing, and adjustments for Failed Bank Advances, if any, in each case as
determined for financial reporting purposes. The Book Value of an Asset shall not include any
adjustment for loan premiums, discounts or any related deferred income or fees, or general or
specific reserves on the Accounting Records of the Failed Bank.



          “Business
Day” means a day other than a Saturday, Sunday, Federal legal holiday or
legal holiday under the laws of the State where the Failed Bank is located, or a day on which the
principal office of the Corporation is closed.



          “Chartering
Authority” means (i) with respect to a national bank, the Office of the
Comptroller of the Currency, (ii) with respect to a Federal savings association or savings bank,
the Office of Thrift Supervision, (iii) with respect to a bank or savings institution chartered by
a State, the agency of such State charged with primary responsibility for regulating and/or closing
banks or savings institutions, as the case may be, (iv) the Corporation in accordance with 12
U.S.C. Section 1821(c), with regard to self appointment, or (v) the appropriate Federal banking
agency in accordance with 12 U.S.C. 1821(c)(9).



          “Commitment” means the unfunded portion of a line of credit or other commitment
reflected on the books and records of the Failed Bank to make an extension of credit (or additional
advances with respect to a Loan) that was legally binding on the Failed Bank as of Bank Closing,
other than extensions of credit pursuant to the credit card business and overdraft protection plans
of the Failed Bank, if any.



          “Credit
Documents” mean the agreements, instruments, certificates or other documents
at any time evidencing or otherwise relating to, governing or executed in connection with or as
security for, a Loan, including without limitation notes, bonds, loan agreements, letter of credit
applications, lease financing contracts, banker’s acceptances, drafts, interest protection
agreements, currency exchange agreements, repurchase agreements, reverse repurchase agreements,
guarantees, deeds of trust, mortgages, assignments, security agreements, pledges, subordination or
priority agreements, lien priority agreements, undertakings, security instruments, certificates,
documents, legal opinions, participation agreements and intercreditor agreements, and all
amendments, modifications, renewals, extensions, rearrangements, and substitutions with respect to
any of the foregoing.



			
	 	 	 
	Execution Copy 

Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






3









 






          “Credit
File” means all Credit Documents and all other credit, collateral, or
insurance documents in the possession or custody of the Assuming Bank, or any of its Subsidiaries
or Affiliates, relating to an Asset or a Loan included in a Put Notice, or copies of any thereof.



          “Data
Processing Lease” means any lease or licensing agreement, binding on the Failed
Bank as of Bank Closing, the subject of which is data processing equipment or computer hardware or
software used in connection with data processing activities. A lease or licensing agreement for
computer software used in connection with data processing activities shall constitute a Data
Processing Lease regardless of whether such lease or licensing agreement also covers data
processing equipment.



          “Deposit”
means a deposit as defined in 12 U.S.C. Section 1813(l), including without
limitation, outstanding cashier’s checks and other official checks and all uncollected items
included in the depositors’ balances and credited on the books and records of the Failed Bank;
provided, that the term “Deposit” shall not include all or any portion of those
deposit balances which, in the discretion of the Receiver or the Corporation, (i) may be required
to satisfy it for any liquidated or contingent liability of any depositor arising from an
unauthorized or unlawful transaction, or (ii) may be needed to provide payment of any liability of
any depositor to the Failed Bank or the Receiver, including the liability of any depositor as a
director or officer of the Failed Bank, whether or not the amount of the liability is or can be
determined as of Bank Closing.



          “Failed
Bank Advances” means the total sums paid by the Failed Bank to (i) protect its
lien position, (ii) pay ad valorem taxes and hazard insurance, and (iii) pay credit life insurance,
accident and health insurance, and vendor’s single interest insurance.



          “Fixtures” means those leasehold improvements, additions, alterations and
installations constituting all or a part of Bank Premises and which were acquired, added, built,
installed or purchased at the expense of the Failed Bank, regardless of the holder of legal title
thereto as of Bank Closing.



          “Furniture
and Equipment” means the furniture and equipment (other than leased data
processing equipment, including hardware and software), leased or owned by the Failed Bank and
reflected on the books of the Failed Bank as of Bank Closing, including without limitation
automated teller machines, carpeting, furniture, office machinery (including personal computers),
shelving, office supplies, telephone, surveillance and security systems, and artwork.



          “Indemnitees” means, except as provided in paragraph (11) of Section 12.1(b), (i) the Assuming
Bank, (ii) the Subsidiaries and Affiliates of the Assuming Bank
other than any Subsidiaries
or Affiliates of the Failed Bank that are or become Subsidiaries or Affiliates of the Assuming
Bank, and (iii) the directors, officers, employees and agents of the Assuming Bank and its
Subsidiaries and Affiliates who are not also present or former directors, officers, employees or
agents of the Failed Bank or of any Subsidiary or Affiliate of the Failed Bank.



			
	 	 	 
	Execution Copy 

Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






4









 






          “Initial
Payment” means the payment made pursuant to
Article VII, the amount of
which shall be either (i) if the Bid Amount is positive, the Bid Amount plus the Required Payment
or (ii) if the Bid Amount is negative, the Required Payment minus the Bid Amount. The Initial
Payment shall be payable by the Corporation to the Assuming Bank if the Initial Payment is a
negative amount. The Initial Payment shall be payable by the Assuming Bank to the Corporation if
the Initial Payment is positive.



          “Legal
Balance” means the amount of indebtedness legally owed by an Obligor with
respect to a Loan, including principal and accrued and unpaid interest, late fees, attorneys’ fees
and expenses, taxes, insurance premiums, and similar charges, if any.



          “Liabilities
Assumed” has the meaning provided in Section 2.1.



          “Lien” means any mortgage, lien, pledge, charge, assignment for security purposes,
security interest, or encumbrance of any kind with respect to an Asset, including any conditional
sale agreement or capital lease or other title retention agreement relating to such Asset.



          “Loans” means all of the following owed to or held by the Failed Bank as of Bank
Closing:



          (i) loans (including loans which have been charged off the Accounting Records of the
Failed Bank in whole or in part prior to Bank Closing), participation agreements, interests in
participations, overdrafts of customers (including but not limited to overdrafts made pursuant to
an overdraft protection plan or similar extensions of credit in connection with a deposit account),
revolving commercial lines of credit, home equity lines of credit, Commitments, United States
and/or State-guaranteed student loans, and lease financing contracts;



          (ii) all Liens, rights (including rights of set-off), remedies, powers, privileges,
demands, claims, priorities, equities and benefits owned or held by, or accruing or to accrue to or
for the benefit of, the holder of the obligations or instruments referred to in clause (i) above,
including but not limited to those arising under or based upon Credit Documents, casualty insurance
policies and binders, standby letters of credit, mortgagee title insurance policies and binders,
payment bonds and performance bonds at any time and from time to time existing with respect to any
of the obligations or instruments referred to in clause (i) above; and



          (iii) all amendments, modifications, renewals, extensions, refinancings, and refundings of
or for any of the foregoing;



provided,
that there shall be excluded from the definition of “Loans” amounts
owing under Qualified Financial Contracts.



          “Obligor” means each Person liable for the full or partial payment or
performance of any Loan, whether such Person is obligated directly, indirectly, primarily,
secondarily, jointly, or severally.




			
	 	 	 
	Execution Copy 

Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






5









 






          “Other
Real Estate” means all interests in real estate (other than Bank Premises
and Fixtures), including but not limited to mineral rights, leasehold rights, condominium and
cooperative interests, air rights and development rights that are owned by the Failed Bank.



          “Payment
Date” means the first Business Day after Bank Closing.



          “Person” means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, or government or any
agency or political subdivision thereof, excluding the Corporation.



          “Primary
Indemnitor” means any Person (other than the Assuming Bank or any of its
Affiliates) who is obligated to indemnify or insure, or otherwise make payments (including payments
on account of claims made against) to or on behalf of any Person in connection with the claims
covered under Article XII, including without limitation any insurer issuing any directors and
officers liability policy or any Person issuing a financial institution bond or banker’s blanket
bond.



          “Proforma” means producing a balance sheet that reflects a reasonably accurate
financial statement of the Failed Bank through the date of closing. The Proforma financial
statements serve as a basis for the opening entries of both the Assuming Bank and the Receiver.



          “Put
Date” has the meaning provided in Section
3.4.



          “Put
Notice” has the meaning provided in
Section 3.4.



          “Qualified
Financial Contract” means a qualified financial contract as defined in 12
U.S.C. Section 1821(e)(8)(D).



          “Record” means any document, microfiche, microfilm and computer records (including but
not limited to magnetic tape, disc storage, card forms and printed copy) of the Failed Bank
generated or maintained by the Failed Bank that is owned by or in the possession of the Receiver at
Bank Closing.



          “Related
Liability” with respect to any Asset means any liability existing and
reflected on the Accounting Records of the Failed Bank as of Bank Closing for (i) indebtedness
secured by mortgages, deeds of trust, chattel mortgages, security
interests or other liens on or
affecting such Asset, (ii) ad valorem taxes applicable to such Asset, and (iii) any other
obligation determined by the Receiver to be directly related to such Asset.



          “Related
Liability Amount” with respect to any Related Liability on the books of the
Assuming Bank, means the amount of such Related Liability as stated on the Accounting Records of
the Assuming Bank (as maintained in accordance with generally accepted accounting principles) as of
the date as of which the Related Liability Amount is being determined. With respect to a liability
that relates to more than one asset, the amount of such Related Liability shall be allocated among
such assets for the purpose of determining the Related Liability Amount with



			
	 	 	 
	Execution Copy 

Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






6









 





respect to any one of such assets. Such allocation shall be made by specific allocation,
where determinable, and otherwise shall be pro rata based upon the dollar amount of such assets
stated on the Accounting Records of the entity that owns such asset.



          “Required Payment” means $50,000,000.00.



          “Repurchase
Price” means with respect to any Asset or asset, which shall be determined
by the Receiver, the lesser of (a) or (b):



          (a) (i) in the event of a negative Bid Amount, the amount paid by the
Assuming Bank, discounted by a percentage equal to the quotient produced by dividing the
Assuming Bank’s Bid Amount by the aggregate Book Value of the Risk Assets of the Failed
Bank;



                (ii) in the event of a negative Bid Amount, the amount resulting from
(a)(i), above, or in the event of a positive Bid Amount, the amount paid by the Assuming Bank, (x)
for a Loan, shall be decreased by any portion of the Loan classified “loss” and by one-half of any
portion of the Loan classified “doubtful” as of the date of Bank Closing, and (y) for any Asset or
asset, including a Loan, decreased by the amount of any money received with respect thereto since
Bank Closing and, if the Asset is a Loan or other interest bearing or earning asset, the resulting
amount shall then be increased or decreased, as the case may be, by interest or discount (whichever
is applicable) accrued from and after Bank Closing at the lower of: (i) the contract rate with
respect to such Asset, or (ii) the Settlement Interest Rate; net proceeds received by or due to the
Assuming Bank from the sale of collateral, any forgiveness of debt, or otherwise shall be deemed
money received by the Assuming Bank; or



          (b) the dollar amount thereof stated on the Accounting Records of the
Assuming Bank as of the date as of which the Repurchase Price is being determined, as
maintained in accordance with generally accepted accounting principles, and, if the asset is a
Loan, regardless of the Legal Balance thereof and adjusted in the same manner as the Book
Value of a Failed Bank Loan would be adjusted hereunder.



Provided, however, (b), above, shall not be applicable and the Bid Amount shall be considered to
have been positive for Loans repurchased pursuant to Section 3.4(a).



          “Risk
Assets” means (i) all Loans purchased hereunder, excluding (a) New Loans and (b)
Loans to the extent secured by Assumed Deposits (and not included in
(i)(a)), plus (ii) the Accrued Interest Receivable, Prepaid Expense, and Other Assets.



          “Safe Deposit Boxes” means the safe deposit boxes of the Failed Bank, if any,
including the removable safe deposit boxes and safe deposit stacks in the Failed Bank’s vault(s),
all rights and benefits (other than fees collected prior to Bank Closing) under rental agreements
with respect to such safe deposit boxes, and all keys and combinations thereto.



          “Settlement
Date” means the first Business Day immediately prior to the day which is
one hundred eighty (180) days after Bank Closing, or such other date prior thereto as



			
	 	 	 
	Execution Copy 

Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






7









 





may be agreed upon by the Receiver and the Assuming Bank. The Receiver, in its discretion, may
extend the Settlement Date.



          “Settlement
Interest Rate” means, for the first calendar quarter or portion thereof
during which interest accrues, the rate determined by the Receiver to be equal to the equivalent
coupon issue yield on twenty-six (26)-week United States Treasury Bills in effect as of Bank
Closing as published in The Wall Street Journal; provided, that if no such
equivalent coupon issue yield is available as of Bank Closing, the equivalent coupon issue yield
for such Treasury Bills most recently published in The Wall Street Journal prior to Bank
Closing shall be used. Thereafter, the rate shall be adjusted to the rate determined by the
Receiver to be equal to the equivalent coupon issue yield on such Treasury Bills in effect as of
the first day of each succeeding calendar quarter during which interest accrues as published in
The Wall Street Journal.



          “Subsidiary”
has the meaning set forth in Section 3(w)(4) of the Federal Deposit
Insurance Act, 12 U.S.C. Section 1813(w)(4), as amended.



ARTICLE II

ASSUMPTION OF LIABILITIES




     2.1
Liabilities Assumed by Assuming Bank. Subject to Sections 2.5 and 4.8, the
Assuming Bank expressly assumes at Book Value (subject to adjustment pursuant to Article
VIII) and agrees to pay, perform, and discharge, all of the liabilities of the Failed Bank
which are reflected on the Books and Records of the Failed Bank as of Bank Closing, including the
Assumed Deposits and all liabilities associated with any and all employee benefit plans,
except as listed on the attached Schedule 2.1, and as otherwise provided in this Agreement (such
liabilities referred to as “Liabilities Assumed”). Notwithstanding Section 4.8, the Assuming
Bank specifically assumes all mortgage servicing rights and obligations of the Failed Bank.



     2.2
Interest on Deposit Liabilities. The Assuming Bank agrees that it will assume all
deposit contracts as of Bank Closing, and it will accrue and pay interest on Deposit
liabilities assumed pursuant to Section 2.1 at the same rate(s) and on the same terms as agreed to by the
Failed Bank as existed as of Bank Closing. If such Deposit has been pledged to secure an
obligation of the depositor or other party, any withdrawal thereof shall be subject to the
terms of the agreement governing such pledge.



     2.3
Unclaimed Deposits. If, within eighteen (18) months after Bank Closing, any
depositor of the Failed Bank does not claim or arrange to continue such depositor’s Deposit
assumed pursuant to Section 2.1 at the Assuming Bank, the Assuming Bank shall, within fifteen
(15) Business Days after the end of such eighteen (18)-month period, (i) refund to the
Corporation the full amount of each such Deposit (without reduction for service charges), (ii)
provide to the Corporation an electronic schedule of all such refunded Deposits in such form
as may be prescribed by the Corporation, and (iii) assign, transfer, convey and deliver to the
Receiver all right, title and interest of the Assuming Bank in and to Records previously
transferred to the Assuming Bank and other records generated or maintained by the Assuming
Bank pertaining to such Deposits. During such eighteen (18)-month period, at the request of
the



			
	 	 	 
	Execution Copy 

Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






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Corporation, the Assuming Bank promptly shall provide to the Corporation schedules of
unclaimed deposits in such form as may be prescribed by the Corporation.



     2.4 Omitted.



     2.5 Borrower Claims. Notwithstanding anything to the contrary in this Agreement,
any liability associated with borrower claims for payment of or liability to any borrower for
monetary relief, or that provide for any other form of relief to any borrower, whether or not
such liability is reduced to judgment, liquidated or unliquidated, fixed or contingent, matured or
unmatured, disputed or undisputed, legal or equitable, judicial or extra-judicial, secured or
unsecured, whether asserted affirmatively or defensively, related in any way to any loan or
commitment to lend made by the Failed Bank prior to failure, or to any loan made by a third
party in connection with a loan which is or was held by the Failed Bank, or otherwise arising
in connection with the Failed Bank’s lending or loan purchase activities are specifically not
assumed by the Assuming Bank.



ARTICLE III

PURCHASE OF ASSETS




     3.1
Assets Purchased by Assuming Bank. Subject to Sections 3.5, 3.6 and 4.8, the
Assuming Bank hereby purchases from the Receiver, and the Receiver hereby sells, assigns,
transfers, conveys, and delivers to the Assuming Bank, all right, title, 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 terminated, of the Failed
Bank whether or not reflected on the books of the Failed Bank as of Bank Closing. Assets are
purchased hereunder by the Assuming Bank subject to all liabilities for indebtedness
collateralized by Liens affecting such Assets to the extent provided in Section 2.1. The
subsidiaries, joint ventures, partnerships, and any and all other business combinations or
arrangements, whether active, inactive, dissolved or terminated being purchased by the
Assuming Bank includes, but is not limited to, the entities listed on Schedule 3.1a. Notwithstanding
Section 4.8, the Assuming Bank specifically purchases all mortgage servicing rights and
obligations of the Failed Bank.



     3.2
Asset Purchase Price.



     (a) All Assets and assets of the Failed Bank subject to an option to purchase by the Assuming
Bank shall be purchased for the amount, or the amount resulting from the method specified for
determining the amount, as specified on Schedule 3.2, except as otherwise may be provided herein.
Any Asset, asset of the Failed Bank subject to an option to purchase or other asset purchased for
which no purchase price is specified on Schedule 3.2 or otherwise herein shall be purchased at its
Book Value. Loans or other assets charged off the Accounting Records of the Failed Bank prior to
the date of Bank Closing shall be purchased at a price of zero.



			
	 	 	 
	Execution Copy 

Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






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     (b) The purchase price for securities (other than the capital stock of any Acquired
Subsidiary) purchased under Section 3.1 by the Assuming Bank shall be the market value thereof
as of Bank Closing, which market value shall be (i) the
“Mid/Last”, or “Trade” (as
applicable), market price for each such security quoted at the close of the trading day effective on Bank
Closing as published electronically by Bloomberg, L.P.; (ii) provided,
that if such market price is not available for any such security, the Assuming Bank will submit a bid for each such
security within three days of notification/bid request by the Receiver (unless a different time period
is agreed to by the Assuming Bank and the Receiver) and the Receiver, in its sole discretion will
accept or reject each such bid; and (iii) further provided in the absence of an
acceptable bid from the Assuming Bank, each such security shall not pass to the Assuming Bank and shall be deemed
to be an excluded asset hereunder.



     (c) Qualified Financial Contracts shall be purchased at market value determined in
accordance with the terms of Exhibit 3.2(c). Any costs associated with such valuation shall be
shared equally by the Receiver and the Assuming Bank.



     3.3
Manner of Conveyance; Limited Warranty; Nonrecourse; Etc. THE
CONVEYANCE OF ALL ASSETS, INCLUDING REAL AND PERSONAL PROPERTY INTERESTS, PURCHASED BY THE ASSUMING
BANK UNDER THIS AGREEMENT SHALL BE MADE, AS NECESSARY, BY RECEIVER’S DEED OR RECEIVER’S BILL OF
SALE, “AS IS”, “WHERE IS”, WITHOUT RECOURSE AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS
AGREEMENT, WITHOUT ANY WARRANTIES WHATSOEVER WITH RESPECT TO SUCH ASSETS, EXPRESS OR IMPLIED, WITH
RESPECT TO TITLE, ENFORCEABILITY, COLLECTIBILITY, DOCUMENTATION OR FREEDOM FROM LIENS OR
ENCUMBRANCES (IN WHOLE OR IN PART), OR ANY OTHER MATTERS.



     3.4 Puts of Assets to the Receiver.



     (a) Omitted.



     (b) Puts
Prior to the Settlement Date. During the period from Bank Closing to and
including the Business Day immediately preceding the Settlement Date, the Assuming Bank shall
be entitled to require the Receiver to purchase any Asset which the Assuming Bank can
establish is evidenced by forged or stolen instruments as of Bank Closing. The Assuming Bank shall
transfer all such Assets to the Receiver without recourse, and shall indemnify the Receiver
against any and all claims of any Person claiming by, through or under the Assuming Bank with
respect to any such Asset, as provided in Section 12.4.



     (c) Notices
to the Receiver. In the event that the Assuming Bank elects to require the
Receiver to purchase one or more Assets, the Assuming Bank shall deliver to the Receiver a
notice (a “Put Notice”) which shall include:




	 	(i)	 	a list of all Assets that the Assuming Bank
requires the Receiver to purchase;





			
	 	 	 
	Execution Copy 

Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






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	 	(ii)	 	a list of all Related Liabilities with respect to the
Assets identified pursuant to (i) above; and
	 
	 	(iii)	 	a statement of the estimated Repurchase Price of each Asset
identified pursuant to (i) above as of the applicable Put Date.




Such notice shall be in the form prescribed by the Receiver or such other form to which the
Receiver shall consent. As provided in Section 9.6, the Assuming Bank shall deliver to the Receiver
such documents, Credit Files and such additional information relating to the subject matter of the
Put Notice as the Receiver may request and shall provide to the Receiver full access to all other
relevant books and records.



     (d) Purchase by Receiver. The Receiver shall purchase Loans that are specified in
the Put Notice and shall assume Related Liabilities with respect to such Loans, and the
transfer of such Loans and Related Liabilities shall be effective as of a date determined by the Receiver
which date shall not be later than thirty (30) days after receipt by the Receiver of the
Credit Files with respect to such Loans (the “Put Date”).



     (e) Purchase Price and Payment Date. Each Loan purchased by the Receiver
pursuant to this Section 3.4 shall be purchased at a price equal to the Repurchase Price of
such Loan less the Related Liability Amount applicable to such Loan, in each case determined as of
the applicable Put Date. If the difference between such Repurchase Price and such Related
Liability Amount is positive, then the Receiver shall pay to the Assuming Bank the amount of
such difference; if the difference between such amounts is negative, then the Assuming Bank
shall pay to the Receiver the amount of such difference. The Assuming Bank or the Receiver, as
the case may be, shall pay the purchase price determined pursuant to this Section 3.4(e) not
later than the twentieth (20th) Business Day following the applicable Put Date, together with
interest on such amount at the Settlement Interest Rate for the period from and including such Put Date
to and including the day preceding the date upon which payment is made.



     (f) Servicing. The Assuming Bank shall administer and manage any Asset subject to
purchase by the Receiver in accordance with usual and prudent banking standards and business
practices until such time as such Asset is purchased by the Receiver.



     (g) Reversals. In the event that the Receiver purchases an Asset (and assumes the
Related Liability) that it is not required to purchase pursuant to this Section 3.4, the
Assuming Bank shall repurchase such Asset (and assume such Related Liability) from the Receiver at a
price computed so as to achieve the same economic result as would apply if the Receiver had
never purchased such Asset pursuant to this Section 3.4.



     3.5 Assets Not Purchased by Assuming Bank. The Assuming Bank 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.



     3.6 Assets Essential to Receiver.



			
	 	 	 
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Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






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     (a) The Receiver may refuse to sell to the Assuming Bank, or the Assuming Bank
agrees, at the request of the Receiver set forth in a written notice to the Assuming Bank, to
assign, transfer, convey, and deliver to the Receiver all of the Assuming Bank’s right, title
and interest in and to, any Asset or asset essential to the Receiver as determined by the Receiver
in its discretion (together with all Credit Documents evidencing or pertaining thereto), which may
include any Asset or asset that the Receiver determines to be:




	 	(i)	 	made to an officer, director, or other Person engaging in the
affairs of the Failed Bank, its Subsidiaries or Affiliates or any related
entities of any of the foregoing;
	 
	 	(ii)	 	the subject of any investigation relating to any claim
with respect to any item described in Section 3.5(a) or (b), or the subject of,
or potentially the subject of, any legal proceedings;
	 
	 	(iii)	 	made to a Person who is an Obligor on a loan owned by the
Receiver or the Corporation in its corporate capacity or its capacity as
receiver of any institution;
	 
	 	(iv)	 	secured by collateral which also secures any asset owned by
the Receiver; or
	 
	 	(v)	 	related to any asset of the Failed Bank not purchased by the Assuming
Bank under this Article III or any liability of the Failed Bank not assumed
by the Assuming Bank under Article II.





     (b) Each such Asset or asset purchased by the Receiver shall be purchased at a price
equal to the Repurchase Price thereof less the Related Liability Amount with respect to any
Related Liabilities related to such Asset or asset, in each case determined as of the date of
the notice provided by the Receiver pursuant to Section 3.6(a). The Receiver shall pay the
Assuming Bank not later than the twentieth (20th) Business Day following receipt of related Credit
Documents and Credit Files together with interest on such amount at the Settlement Interest
Rate for the period from and including the date of receipt of such documents to and including the
day preceding the day on which payment is made. The Assuming Bank agrees to administer and
manage each such Asset or asset in accordance with usual and prudent banking standards and
business practices until each such Asset or asset is purchased by the Receiver. All transfers
with respect to Asset or assets under this Section 3.6 shall be made as provided in Section 9.6.
The Assuming Bank shall transfer all such Asset or assets and Related Liabilities to the Receiver
without recourse, and shall indemnify the Receiver against any and all claims of any Person
claiming by, through or under the Assuming Bank with respect to any such Asset or asset, as
provided in Section 12.4.



			
	 	 	 
	Execution Copy 

Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






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ARTICLE IV

ASSUMPTION OF CERTAIN DUTIES AND OBLIGATIONS




     The Assuming Bank agrees with the Receiver and the Corporation as follows:



     4.1
Continuation of Banking Business. The Assuming Bank agrees to provide full
service banking in the trade area of the Failed Bank commencing on the first banking business
day (including a Saturday) after Bank Closing. At the option of the Assuming Bank, such
banking services may be provided at any or all of the Bank Premises, or at other premises
within such trade area.



     4.2 Agreement with Respect to Debit and Credit Card Business. The Assuming
Bank agrees to honor and perform, from and after Bank Closing, all duties and obligations with
respect to the Failed Bank’s debit and credit card business, and/or processing related to
debit and credit cards, if any, and assumes all outstanding extensions of credit with respect thereto.



     4.3
Agreement with Respect to Safe Deposit Business. The Assuming Bank
assumes and agrees to discharge, from and after Bank Closing, in the usual course of
conducting a banking business, the duties and obligations of the Failed Bank with respect to all Safe
Deposit Boxes, if any, of the Failed Bank and to maintain all of the necessary facilities for the use
of such boxes by the renters thereof during the period for which such boxes have been rented and the
rent therefor paid to the Failed Bank, subject to the provisions of the rental agreements between
the Failed Bank and the respective renters of such boxes; provided, that the
Assuming Bank may relocate the Safe Deposit Boxes of the Failed Bank to any office of the Assuming Bank located
in the trade area of the Failed Bank. Fees related to the safe deposit business collected
prior to Bank Closing shall be for the benefit of the Receiver and fees collected after Bank Closing
shall be for the benefit of the Assuming Bank.



     4.4 Agreement with Respect to Safekeeping Business. The Receiver transfers,
conveys and delivers to the Assuming Bank and the Assuming Bank accepts all securities and
other items, if any, held by the Failed Bank in safekeeping for its customers as of Bank
Closing. The Assuming Bank assumes and agrees to honor and discharge, from and after Bank Closing,
the duties and obligations of the Failed Bank with respect to such securities and items held
in safekeeping. The Assuming Bank shall be entitled to all rights and benefits heretofore accrued
or hereafter accruing with respect thereto; provided, that, fees related to the
safe keeping business collected prior to Bank Closing shall be for the benefit of the Receiver and fees collected
after Bank Closing shall be for the benefit of the Assuming Bank. The Assuming Bank shall provide
to the Receiver written verification of all assets held by the Failed Bank for safekeeping
within sixty (60) days after Bank Closing.



     4.5
Agreement with Respect to Trust Business.



     (a) The Assuming Bank shall, without further transfer, substitution, act or deed, to the
full extent permitted by law, succeed to the rights, obligations, properties, assets, investments,
deposits, agreements, and trusts of the Failed Bank under trusts, executorships, administrations,
guardianships, and agencies, and other fiduciary or representative capacities, all to the same
extent as though the Assuming Bank had assumed the same from the Failed Bank prior to Bank



			
	 	 	 
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Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






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Closing;
provided, that any liability based on the misfeasance, malfeasance or
nonfeasance of the Failed Bank, its directors, officers, employees or agents with respect to the
trust business is not assumed hereunder.



     (b) The Assuming Bank shall, to the full extent permitted by law, succeed to, and be
entitled to take and execute, the appointment to all executorships, trusteeships,
guardianships and other fiduciary or representative capacities to which the Failed Bank is or maybe named in
wills, whenever probated, or to which the Failed Bank is or may be named or appointed by any other
instrument.



     (c) In the event additional proceedings of any kind are necessary to accomplish the
transfer of such trust business, the Assuming Bank agrees that, at its own expense, it will
take whatever action is necessary to accomplish such transfer. The Receiver agrees to use
reasonable efforts to assist the Assuming Bank in accomplishing such transfer.



     (d) The Assuming Bank shall provide to the Receiver written verification of the assets
held in connection with the Failed Bank’s trust business within sixty (60) days after Bank
Closing.



     4.6 Agreement with Respect to Bank Premises.



     (a) Option to Lease. The Receiver hereby grants to the Assuming Bank an exclusive
option for the period of ninety (90) days commencing the day after Bank Closing to cause the
Receiver to assign to the Assuming Bank any or all leases for leased Bank Premises, if any,
which have been continuously occupied by the Assuming Bank from Bank Closing to the date it
elects to accept an assignment of the leases with respect thereto to the extent such leases
can be assigned; provided, that the exercise of this option with respect to any lease must be
as to all premises or other property subject to the lease. If an assignment cannot be made of any such
leases, the Receiver may, in its discretion, enter into subleases with the Assuming Bank
containing the same terms and conditions provided under such existing leases for such leased
Bank Premises or other property. The Assuming Bank shall give notice to the Receiver within
the option period of its election to accept or not to accept an assignment of any or all leases
(or enter into subleases or new leases in lieu thereof). The Assuming Bank agrees to assume all leases
assigned (or enter into subleases in lieu thereof) pursuant to this Section 4.6.



     (b) Facilitation. The Receiver agrees to facilitate the assumption, assignment or
sublease of leases or the negotiation of new leases by the Assuming Bank; provided,
that neither the Receiver nor the Corporation shall be obligated to engage in litigation, make payments to
the Assuming Bank or to any third party in connection with facilitating any such assumption,
assignment, sublease or negotiation or commit to any other obligations to third parties.



     (c) Occupancy.
The Assuming Bank shall give the Receiver fifteen (15) days’ prior written notice of its intention to vacate prior to vacating any leased Bank Premises with
respect to which the Assuming Bank has not exercised the option provided in Section 4.6(a). Any such
notice shall be deemed to terminate the Assuming Bank’s option with respect to such leased
Bank Premises.



			
	 	 	 
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Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






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     (d) Occupancy Costs.




          (i) The
Assuming Bank agrees, during the period of any occupancy by it of leased Bank
Premises, to pay to the Receiver, or to appropriate third parties at the direction of the Receiver,
all operating costs with respect thereto and to comply with all relevant terms of applicable leases
entered into by the Failed Bank, including without limitation the timely payment of all rent,
taxes, fees, charges, utilities, insurance and assessments.



          (ii)
The Assuming Bank agrees during the period of occupancy by it of leased Bank
Premises to pay to the Receiver rent for the use of all leased Furniture and Equipment and all
owned or leased Fixtures located on such Bank Premises for the period of such occupancy. Rent for
such property owned by the Failed Bank shall be the market rental value thereof, as determined by
the Receiver within sixty (60) days after Bank Closing. Rent for such leased property shall be an
amount equal to any and all rent and other amounts which the Receiver incurs or accrues as an
obligation or is obligated to pay for such period of occupancy pursuant to all leases and contracts
with respect to such property. If the Assuming Bank purchases any owned Fixtures in accordance with
Section 4.6(f), the amount of any rents paid by the Assuming Bank with respect thereto shall be
applied as an offset against the purchase price thereof.



     (e) Certain Requirements as to Furniture, Equipment and Fixtures. If the
Assuming Bank accepts an assignment of the lease (or enters into a sublease or a new lease in lieu
thereof) for leased Bank Premises, or if the Assuming Bank does not exercise such option but within
twelve (12) months following Bank Closing obtains the right to occupy such premises (whether by
assignment, lease, sublease, purchase or otherwise), other than in accordance with Section 4.6(a),
the Assuming Bank shall (i) accept an assignment or a sublease of the leases or negotiate new
leases for all Furniture and Equipment and Fixtures leased by the Failed Bank and located thereon,
and (ii) if applicable, accept an assignment or a sublease of any ground lease or negotiate a new
ground lease with respect to any land on which such Bank Premises are located; provided,
that the Receiver shall not have disposed of such Furniture and Equipment and Fixtures or
repudiated the leases specified in clause (i) or (ii).



     (f) Vacating Premises. If the Assuming Bank elects not to accept an assignment of
the lease or sublease any leased Bank Premises, the notice of such election in accordance with
Section 4.6(a) shall specify the date upon which the Assuming Bank’s occupancy of such leased
Bank Premises shall terminate, which date shall not be later than the date which is one
hundred eighty (180) days after Bank Closing. Upon vacating such premises, the Assuming Bank shall
relinquish and release to the Receiver such premises and the Fixtures located thereon in the
same condition as at Bank Closing, normal wear and tear excepted. By failing to provide notice of
its intention to vacate such premises prior to the expiration of the option period specified in
Section 4.6(a), or by occupying such premises after the one hundred eighty (180)-day period specified
above in this paragraph, the Assuming Bank shall, at the Receiver’s option, (x) be deemed to
have assumed all leases, obligations and liabilities with respect to such premises (including
any ground lease with respect to the land on which premises are located), and leased Furniture and
Equipment and leased Fixtures located thereon in accordance with this Section 4.6 (unless the



			
	 	 	 
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Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






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Receiver previously repudiated any such lease), and (y) be required to purchase all
Fixtures owned by the Failed Bank and located on such premises as of Bank Closing.



     (g) Omitted.



     4.7 Agreement with Respect to Leased Data Processing Equipment



     (a) The Receiver hereby grants to the Assuming Bank an exclusive option for the
period of ninety (90) days commencing the day after Bank Closing to accept an assignment from
the Receiver of any or all Data Processing Leases to the extent that such Data Processing
Leases can be assigned.



     (b) The Assuming Bank shall (i) give written notice to the Receiver within the option
period specified in Section 4.7(a) of its intent to accept an assignment or sublease of any or
all Data Processing Leases and promptly accept an assignment or sublease of such Data Processing
Leases, and (ii) give written notice to the appropriate lessor(s) that it has accepted an
assignment or sublease of any such Data Processing Leases.



     (c) The Receiver agrees to facilitate the assignment or sublease of Data Processing
Leases or the negotiation of new leases or license agreements by the Assuming Bank;
provided, that neither the Receiver nor the Corporation shall be obligated to engage in litigation or
make payments to the Assuming Bank or to any third party in connection with facilitating any such
assumption, assignment, sublease or negotiation.



     (d) The Assuming Bank agrees, during its period of use of any property subject to a
Data Processing Lease, to pay to the Receiver or to appropriate third parties at the direction
of the Receiver all operating costs with respect thereto and to comply with all relevant terms of the
applicable Data Processing Leases entered into by the Failed Bank, including without
limitation the timely payment of all rent, taxes, fees, charges, utilities, insurance and assessments.



     (e) The Assuming Bank shall, not later than fifty (50) days after giving the notice
provided in Section 4.7(b), (i) relinquish and release to the Receiver all property subject to
the relevant Data Processing Lease, in the same condition as at Bank Closing, normal wear and tear
excepted, or (ii) accept an assignment or a sublease thereof or negotiate a new lease or
license agreement under this Section 4.7.



     4.8
Agreement with Respect to Certain Existing
Agreements.



     With respect to agreements existing as of Bank Closing which provide for the rendering of
services by or to the Failed Bank, within one hundred twenty (120) days after Bank Closing, the
Assuming Bank shall give the Receiver written notice specifying whether it elects to assume or not
to assume each such agreement. Except as may be otherwise provided in this Article IV, the Assuming
Bank agrees to comply with the terms of each such agreement for a period commencing on the day
after Bank Closing and ending on: (i) in the case of an agreement that provides for the rendering
of services by the Failed Bank, the date which is ninety (90) days after Bank Closing, and (ii) in
the case of an agreement that provides for the rendering of services to



			
	 	 	 
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Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






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the Failed Bank, the date which is thirty (30) days after the Assuming Bank has given notice
to the Receiver of its election not to assume such agreement; provided, that the
Receiver can reasonably make such service agreements available to the Assuming Bank. The Assuming
Bank shall be deemed by the Receiver to have assumed agreements for which no notification is timely
given. The Receiver agrees to assign, transfer, convey, and deliver to the Assuming Bank all right,
title and interest of the Receiver, if any, in and to agreements the Assuming Bank assumes
hereunder. In the event the Assuming Bank elects not to accept an assignment of any lease (or
sublease) or negotiate a new lease for leased Bank Premises under Section 4.6 and does not
otherwise occupy such premises, the provisions of this Section 4.8 shall not apply to service
agreements related to such premises. The Assuming Bank agrees, during the period it has the use or
benefit of any such agreement, promptly to pay to the Receiver or to appropriate third parties at
the direction of the Receiver all operating costs with respect thereto and to comply with all
relevant terms of such agreement. This paragraph shall not apply with respect to deposit contracts
which are expressly assumed by the Assuming Bank under Section 2.2 of this Agreement.



     4.9
Informational Tax Reporting. The Assuming Bank agrees to perform all
obligations of the Failed Bank with respect to Federal and State income tax informational
reporting related to (i) the Assets and the Liabilities Assumed, (ii) deposit accounts that
were closed and loans that were paid off or collateral obtained with respect thereto prior to Bank
Closing, (iii) miscellaneous payments made to vendors of the Failed Bank, and (iv) any other
asset or liability of the Failed Bank, including, without limitation, loans not purchased and
Deposits not assumed by the Assuming Bank, as may be required by the Receiver.


Under a private letter ruling (PLR) issued to the FDIC in January of 1988, the Internal Revenue
Service will allow the Assuming Bank to report for the Failed Bank transactions under its own TIN
for the entire year 2008; there is no need to dual-report for different payors in pre- v.
post-closing date periods.


The Assuming Bank agrees to prepare on behalf of the Receiver all required Federal and State
compliance and income/franchise tax returns for the Failed Bank and acquired subsidiary entities as
of Bank Closing. The returns will be provided to the Receiver within the statutorily required
filing timeframe.



     4.10
Insurance. The Assuming Bank agrees to
obtain insurance coverage effective from and after Bank Closing,
including public liability, fire and extended coverage insurance acceptable to the Receiver with respect to leased Bank Premises that it occupies, and all
leased Furniture and Equipment and Fixtures and leased data processing equipment (including hardware
and software) located thereon, in the event such insurance coverage is not already in force
and effect with respect to the Assuming Bank as the insured as of Bank Closing. All such insurance
shall, where appropriate (as determined by the Receiver), name the Receiver as an additional
insured.



     4.11
Office Space for Receiver and Corporation. For the period commencing on the
day following Bank Closing and ending on the one hundred eightieth (180th) day thereafter, the
Assuming Bank agrees to provide to the Receiver and the Corporation, without charge, adequate



			
	 	 	 
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Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






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and suitable office space (including parking facilities and vault space), furniture, equipment
(including photocopying and telecopying machines) and utilities (including local telephone service
and a dedicated broadband or T-1 internet service) at the Bank Premises occupied by the Assuming
Bank for their use in the discharge of their respective functions with respect to the Failed Bank.
In the event the Receiver and the Corporation determine that the space provided is inadequate or
unsuitable, the Receiver and the Corporation may relocate to other quarters having adequate and
suitable space and the costs of relocation and any rental and utility costs for the balance of the
period of occupancy by the Receiver and the Corporation shall be borne by the Assuming Bank.



     4.12 Omitted.



     4.13 Omitted.



ARTICLE V

DUTIES WITH RESPECT TO DEPOSITORS OF THE FAILED BANK




     5.1 Payment of Checks. Drafts and Orders. Subject to Section 9.5, the Assuming
Bank agrees to pay all properly drawn checks, drafts and withdrawal orders of depositors of
the Failed Bank presented for payment, whether drawn on the check or draft forms provided by the
Failed Bank or by the Assuming Bank, to the extent that the Deposit balances to the credit of
the respective makers or drawers assumed by the Assuming Bank under this Agreement are
sufficient to permit the payment thereof, and in all other respects to discharge, in the usual
course of conducting a banking business, the duties and obligations of the Failed Bank with respect
to the Deposit balances due and owing to the depositors of the Failed Bank assumed by the
Assuming Bank under this Agreement.



     5.2
Certain Agreements Related to Deposits. Subject to Section 2.2, the Assuming
Bank agrees to honor the terms and conditions of any written escrow or mortgage servicing
agreement or other similar agreement relating to a Deposit liability assumed by the Assuming
Bank pursuant to this Agreement.



     5.3
Notice to Depositors.



     (a) Within
thirty (30) days after Bank Closing, the Assuming Bank shall give (i) notice to depositors of the Failed Bank of its assumption of the Deposit liabilities of the
Failed Bank, and (ii) any notice required under Section 2.2, by mailing to each such depositor a
notice with respect to such assumption and by advertising in a newspaper of general circulation in
the county or counties in which the Failed Bank was located. The Assuming Bank agrees that it will
obtain prior approval of all such notices and advertisements from counsel for the Receiver and
that such notices and advertisements shall not be mailed or published until such approval is
received.



     (b) The Assuming Bank shall give notice by mail to depositors of the Failed Bank
concerning the procedures to claim their deposits, which notice shall be provided to the



			
	 	 	 
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Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






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Assuming Bank by the Receiver or the Corporation. Such notice shall be included with the
notice to depositors to be mailed by the Assuming Bank pursuant to Section 5.3(a).



     (c) If the Assuming Bank proposes to charge fees different from those charged by the
Failed Bank before it establishes new deposit account relationships with the depositors of the
Failed Bank, the Assuming Bank shall give notice by mail of such
changed fees to such depositors.



ARTICLE VI

RECORDS




     6.1
Transfer of Records.




     (a) In accordance with Section 3.1, the Receiver assigns, transfers, conveys and
delivers to the Assuming Bank the following Records pertaining to the Deposit liabilities of
the Failed Bank assumed by the Assuming Bank under this Agreement, except as provided in
Section 6.4:




	 	(i)	 	signature cards, orders, contracts between the
Failed Bank and its depositors and Records of similar character;
	 
	 	(ii)	 	passbooks of depositors held by the Failed Bank, deposit
slips, cancelled checks and withdrawal orders representing charges to accounts
of depositors;




and the following Records pertaining to the Assets:




	 	(iii)	 	records of deposit balances carried with other
banks, bankers or trust companies;
	 
	 	(iv)	 	Loan and collateral records and Credit Files and other documents;
	 
	 	(v)	 	deeds, mortgages, abstracts, surveys, and other
instruments or records of title pertaining to real estate or real estate
mortgages;
	 
	 	(vi)	 	signature cards, agreements and records pertaining to Safe
Deposit Boxes, if any; and
	 
	 	(vii)	 	records pertaining to the credit card business, trust
business or safekeeping business of the Failed Bank, if any.





     (b) The Receiver, at its option, may assign and transfer to the Assuming Bank by a
single blanket assignment or otherwise, as soon as practicable after Bank Closing, any other
Records not assigned and transferred to the Assuming Bank as provided in this Agreement,
including but not limited to loan disbursement checks, general ledger tickets, official bank
checks, proof transactions (including proof tapes) and paid out loan files.



			
	 	 	 
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Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






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     6.2 Delivery of Assigned Records. The Receiver shall deliver to the Assuming
Bank all Records described in (i) Section 6.1(a) as soon as practicable on or after the date of
this Agreement, and (ii) Section 6.1(b) as soon as practicable after making any assignment
described therein.



     6.3 Preservation of Records. The Assuming Bank agrees that it will preserve and
maintain for the joint benefit of the Receiver, the Corporation and the Assuming Bank, all Records
of which it has custody for such period as either the Receiver or the Corporation in its discretion
may require, until directed otherwise, in writing, by the Receiver or Corporation. The
Assuming Bank shall have the primary responsibility to respond to subpoenas, discovery requests,
and other similar official inquiries with respect to the Records of which it has custody.



     6.4 Access to Records; Copies. The Assuming Bank agrees to permit the Receiver
and the Corporation access to all Records of which the Assuming Bank has custody, and to use,
inspect, make extracts from or request copies of any such Records in the manner and to the extent
requested, and to duplicate, in the discretion of the Receiver or the Corporation, any Record in
the form of microfilm or microfiche pertaining to Deposit account relationships; provided,
that in the event that the Failed Bank maintained one or more duplicate copies of such
microfilm or microfiche Records, the Assuming Bank hereby assigns, transfers, and conveys to the
Corporation one such duplicate copy of each such Record without cost to the Corporation, and agrees
to deliver to the Corporation all Records assigned and transferred to the Corporation under this
Article VI as soon as practicable on or after the date of this Agreement. The party requesting a
copy of any Record shall bear the cost (based on standard accepted industry charges to the extent
applicable, as determined by the Receiver) for providing such duplicate Records. A copy of each
Record requested shall be provided as soon as practicable by the party having custody thereof.



ARTICLE VII

BID; INITIAL PAYMENT





	 	 	The Assuming Bank has submitted to the Receiver a positive bid of $1,888,000,000.00 for the Assets
purchased and Liabilities Assumed hereunder (the “Bid Amount”). On the Payment Date, the Assuming
Bank will pay to the Corporation, or the Corporation will pay to the Assuming Bank, as the case may
be, the Initial Payment, together with interest on such amount (if the Payment Date is not the day
following the day of Bank Closing) from and including the day following Bank Closing to and
including the day preceding the Payment Date at the Settlement Interest Rate.









			
	 	 	 
	Execution Copy 

Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada








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ARTICLE
VIII

PROFORMA



The Assuming Bank, as soon as practical after Bank Closing, in accordance with the best
information then available, shall provide to the Receiver a Proforma Statement of Condition
indicating all assets and liabilities of the Failed Bank as shown on the Failed Bank’s books and
records as of Bank Closing and reflecting which assets and liabilities are passing to the Assuming
Bank and which assets and liabilities are to be retained by the Receiver. In addition, the Assuming
Bank is to provide to the Receiver, in a standard data request as defined by the Receiver, an
electronic database of all loans, deposits, and subsidiaries and other business combinations owned
by the Failed Bank as of Bank Closing. See Schedule 3.1a.



ARTICLE IX

CONTINUING COOPERATION




     9.1 General Matters. The parties hereto agree that they will, in good faith and with
their best efforts, cooperate with each other to carry out the transactions contemplated by this
Agreement and to effect the purposes hereof.



     9.2 Additional Title Documents. The Receiver, the Corporation and the Assuming
Bank each agree, at any time, and from time to time, upon the request of any party hereto, to
execute and deliver such additional instruments and documents of conveyance as shall be
reasonably necessary to vest in the appropriate party its full legal or equitable title in and
to the property transferred pursuant to this Agreement or to be transferred in accordance herewith.
The Assuming Bank shall prepare such instruments and documents of conveyance (in form and
substance satisfactory to the Receiver) as shall be necessary to vest title to the Assets in the
Assuming Bank. The Assuming Bank shall be responsible for recording such instruments and
documents of conveyance at its own expense.



     9.3 Claims and Suits.



     (a) The Receiver shall have the right, in its discretion, to (i) defend or settle any claim
or suit against the Assuming Bank with respect to which the Receiver has indemnified the
Assuming Bank in the same manner and to the same extent as provided in Article XII, and (ii)
defend or settle any claim or suit against the Assuming Bank with respect to any Liability
Assumed, which claim or suit may result in a loss to the Receiver arising out of or related to this
Agreement, or which existed against the Failed Bank on or before Bank Closing. The exercise by
the Receiver of any rights under this Section 9.3(a) shall not release the Assuming Bank with
respect to any of its obligations under this Agreement.



     (b) In the event any action at law or in equity shall be instituted by any Person against
the Receiver and the Corporation as codefendants with respect to any asset of the Failed Bank
retained or acquired pursuant to this Agreement by the Receiver, the Receiver agrees, at the
request of the Corporation, to join with the Corporation in a petition to remove the action to the
United States District Court for the proper district. The Receiver agrees to institute, with or
without joinder of the Corporation as coplaintiff, any action with respect to any such
retained or acquired asset or any matter connected therewith whenever notice requiring such action shall
be given by the Corporation to the Receiver.



			
	 	 	 
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Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






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     9.4
Payment of Deposits. In the event any depositor does not accept the
obligation of the Assuming Bank to pay any Deposit liability of the Failed Bank assumed by the Assuming
Bank pursuant to this Agreement and asserts a claim against the Receiver for all or any
portion of any such Deposit liability, the Assuming Bank agrees on demand to provide to the Receiver
funds sufficient to pay such claim in an amount not in excess of the Deposit liability reflected on
the books of the Assuming Bank at the time such claim is made. Upon payment by the Assuming
Bank to the Receiver of such amount, the Assuming Bank shall be discharged from any further
obligation under this Agreement to pay to any such depositor the amount of such Deposit liability paid to the Receiver.



     9.5 Withheld Payments. At any time, the Receiver or the Corporation may, in its
discretion, determine that all or any portion of any deposit balance assumed by the Assuming
Bank pursuant to this Agreement does not constitute a “Deposit” (or otherwise, in its
discretion, determine that it is the best interest of the Receiver or Corporation to withhold all or any
portion of any deposit), and may direct the Assuming Bank to withhold payment of all or any portion of
any such deposit balance. Upon such direction, the Assuming Bank agrees to hold such deposit
and not to make any payment of such deposit balance to or on behalf of the depositor, or to itself,
whether by way of transfer, set-off, or otherwise. The Assuming Bank agrees to maintain the
“withheld payment” status of any such deposit balance until directed in writing by the
Receiver or the Corporation as to its disposition. At the direction of the Receiver or the Corporation,
the Assuming Bank shall return all or any portion of such deposit balance to the Receiver or the
Corporation, as appropriate, and thereupon the Assuming Bank shall be discharged from any
further liability to such depositor with respect to such returned deposit balance. If such
deposit balance has been paid to the depositor prior to a demand for return by the Corporation or the
Receiver, and payment of such deposit balance had not been previously withheld pursuant to
this Section, the Assuming Bank shall not be obligated to return such deposit balance to the
Receiver or the Corporation. The Assuming Bank shall be obligated to reimburse the Corporation or the
Receiver, as the case may be, for the amount of any deposit balance or portion thereof paid by the
Assuming Bank in contravention of any previous direction to withhold payment of such deposit
balance or return such deposit balance the payment of which was withheld pursuant to this Section.




     9.6 Proceedings with Respect to Certain Assets and Liabilities.



     (a) In connection with any investigation, proceeding or other matter with respect to
any asset or liability of the Failed Bank retained by the Receiver, or any asset of the Failed Bank
acquired by the Receiver pursuant to this Agreement, the Assuming Bank shall cooperate to the
extent reasonably required by the Receiver.



     (b) In addition to its obligations under Section 6.4, the Assuming Bank shall provide
representatives of the Receiver access at reasonable times and locations without other
limitation or qualification to (i) its directors, officers, employees and agents and those of the Subsidiaries
acquired by the Assuming Bank, and (ii) its books and records, the books and records of such
Subsidiaries and all Credit Files, and copies thereof. Copies of books, records and Credit
Files



			
	 	 	 
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	 	Washington Mutual Bank

Henderson, Nevada






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shall be provided by the Assuming Bank as requested by the Receiver and the costs
of duplication thereof shall be borne by the Receiver.



     (c) Not later than ten (10) days after the Put Notice pursuant to Section 3.4 or the
date of the notice of transfer of any Loan by the Assuming Bank to the Receiver pursuant to Section
3.6, the Assuming Bank shall deliver to the Receiver such documents with respect to such Loan as
the Receiver may request, including without limitation the following: (i) all related Credit
Documents (other than certificates, notices and other ancillary documents), (ii) a certificate
setting forth the principal amount on the date of the transfer and the amount of interest, fees and
other charges then accrued and unpaid thereon, and any restrictions on transfer to which any such
Loan is subject, and (iii) all Credit Files, and all documents, microfiche, microfilm and computer
records (including but not limited to magnetic tape, disc storage, card forms and printed copy)
maintained by, owned by, or in the possession of the Assuming Bank or any Affiliate of the Assuming
Bank relating to the transferred Loan.



     9.7 Information. The Assuming Bank promptly shall provide to the Corporation such
other information, including financial statements and computations, relating to the performance of
the provisions of this Agreement as the Corporation or the Receiver may request from time to time,
and, at the request of the Receiver, make available employees of the Failed Bank employed or
retained by the Assuming Bank to assist in preparation of the pro forma statement pursuant to
Section 8.1.



ARTICLE X

CONDITION PRECEDENT




     The obligations of the parties to this Agreement are subject to the Receiver and the
Corporation having received at or before Bank Closing evidence reasonably satisfactory to each of
any necessary approval, waiver, or other action by any governmental authority, the board of
directors of the Assuming Bank, or other third party, with respect to this Agreement and the
transactions contemplated hereby, the closing of the Failed Bank and the appointment of the
Receiver, the chartering of the Assuming Bank, and any agreements, documents, matters or
proceedings contemplated hereby or thereby.



ARTICLE XI

REPRESENTATIONS AND WARRANTIES OF THE ASSUMING BANK




     The Assuming Bank represents and warrants to the Corporation and the Receiver as follows:



     (a) Corporate Existence and Authority. The Assuming Bank (i) is duly organized,
validly existing and in good standing under the laws of its Chartering Authority and has full power
and authority to own and operate its properties and to conduct its business as now conducted by it,
and (ii) has full power and authority to execute and deliver this Agreement and to perform its
obligations hereunder. The Assuming Bank has taken all necessary corporate



			
	 	 	 
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Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






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action to authorize the execution, delivery and performance of this Agreement and
the performance of the transactions contemplated hereby.



     (b) Third Party Consents. No governmental authority or other third party consents
(including but not limited to approvals, licenses, registrations or declarations) are required
in connection with the execution, delivery or performance by the Assuming Bank of this
Agreement, other than such consents as have been duly obtained and are in full force and
effect.



     (c) Execution and Enforceability. This Agreement has been duly executed and
delivered by the Assuming Bank and when this Agreement has been duly authorized, executed
and delivered by the Corporation and the Receiver, this Agreement will constitute the legal,
valid and binding obligation of the Assuming Bank, enforceable in accordance with its terms.



     (d) Compliance with Law.



            (i) Neither the Assuming Bank nor any of its Subsidiaries is in violation of any
statute, regulation, order, decision, judgment or decree of, or any restriction imposed by, the
United States of America, any State, municipality or other political subdivision or any agency of
any of the foregoing, or any court or other tribunal having jurisdiction over the Assuming Bank or
any of its Subsidiaries or any assets of any such Person, or any foreign government or agency
thereof having such jurisdiction, with respect to the conduct of the business of the Assuming Bank
or of any of its Subsidiaries, or the ownership of the properties of the Assuming Bank or any of
its Subsidiaries, which, either individually or in the aggregate with all other such violations,
would materially and adversely affect the business, operations or condition (financial or
otherwise) of the Assuming Bank or the ability of the Assuming Bank to perform, satisfy or observe
any obligation or condition under this Agreement.



            (ii) Neither the execution and delivery nor the performance by the Assuming Bank of this
Agreement will result in any violation by the Assuming Bank of, or be in conflict with, any
provision of any applicable law or regulation, or any order, writ or decree of any court or
governmental authority.



     (e) Representations Remain True. The Assuming Bank represents and warrants that
it has executed and delivered to the Corporation a Purchaser Eligibility Certification and
Confidentiality Agreement and that all information provided and representations made by or on
behalf of the Assuming Bank in connection with this Agreement and the transactions contemplated
hereby, including, but not limited to, the Purchaser Eligibility Certification and Confidentiality
Agreement (which are affirmed and ratified hereby) are and remain true and correct in all material
respects and do not fail to state any fact required to make the information contained therein not
misleading.



			
	 	 	 
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Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






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ARTICLE XII

INDEMNIFICATION



     12.1
Indemnification of Indemnitees. From and after Bank Closing and subject
to the limitations set forth in this Section and Section 12.6 and compliance by the Indemnitees
with Section 12.2, the Receiver agrees to indemnify and hold harmless the Indemnitees against any
and all costs, losses, liabilities, expenses (including attorneys’ fees) incurred prior to the
assumption of defense by the Receiver pursuant to paragraph (d) of Section 12.2, judgments, fines
and amounts paid in settlement actually and reasonably incurred in connection with claims against
any Indemnitee (1) based on liabilities of the Failed Bank that are not assumed by the Assuming Bank
pursuant to this Agreement or subsequent to the execution hereof by the Assuming Bank or any
Subsidiary or Affiliate of the Assuming Bank for which indemnification is provided hereunder in (a)
of this Section 12.1 or (2) described in Section 12.1(a) below subject in each case to certain
exclusions as provided in (b) of this Section 12.1:



     (a)



          (1) claims
based on the rights of any shareholder or former shareholder as such
of (x) the Failed Bank, or (y) any Subsidiary or Affiliate
of the Failed Bank;



          (2) claims
based on the rights of any creditor as such of the Failed Bank, or any
creditor as such of any director, officer, employee or agent of the
Failed Bank or any  Affiliate of the Failed Bank, with respect to any
indebtedness or other obligation of the Failed Bank or any Affiliate
of the Failed Bank arising prior to Bank Closing;



          (3) claims based on the rights of any present or former director, officer, employee
or agent as such of the Failed Bank or of any Subsidiary or Affiliate of the Failed Bank;



          (4) claims
based on any action or inaction prior to Bank Closing of the Failed
Bank, its directors, officers, employees or agents as such, or any Subsidiary or Affiliate of
the Failed Bank, or the directors, officers, employees or agents as such of such Subsidiary or Affiliate;



          (5) claims
based on any malfeasance, misfeasance or nonfeasance of the Failed
Bank, its directors, officers, employees or agents with respect to
the trust business of the Failed Bank, if any;



          (6) claims based on any failure or alleged failure (not in violation of law) by the
Assuming Bank to continue to perform any service or activity previously performed by the Failed
Bank which the Assuming Bank is not required to perform pursuant to this Agreement or which
arise under any contract to which the Failed Bank was a party which the Assuming Bank elected
not to assume in accordance with this Agreement and which neither the Assuming Bank nor any
Subsidiary or Affiliate of the Assuming Bank has assumed subsequent to the execution hereof;



          (7) claims arising from any action or inaction of any Indemnitee, including for
purposes of this Section 12.1(a)(7) the former officers or
employees of the Failed Bank or of any
Subsidiary or Affiliate of the Failed Bank that is taken upon the specific written direction of the
Corporation or the Receiver, other than any action or inaction taken in a manner constituting bad
faith, gross negligence or willful misconduct; and



			
	 	 	 
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Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






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          (8) claims based on the rights of any depositor of the Failed Bank whose deposit
has been accorded “withheld payment” status and/or returned to the Receiver or Corporation in
accordance with Section 9.5 and/or has become an “unclaimed deposit” or has been returned to
the Corporation or the Receiver in accordance with Section 2.3;



          (9) claims asserted by, or derivatively by any shareholder on behalf of, the Failed
Bank’s parent company based on the process of bidding, negotiation, execution and
consummation of the transactions contemplated by this Agreement, provided that (x) the amount
of the indemnification paid or payable pursuant to this clause (9) shall not exceed $500,000,000,
and (y) the indemnification provided by this clause (9) shall cover only those claims specifically
enumerated in the FDIC’s approval of the transactions contemplated by this Agreement.



     (b) provided, that, with respect to this Agreement, except for paragraphs (7),
(8) and (9) of Section 12.1(a), no indemnification will be provided under this Agreement for any:



          (1) judgment or fine against, or any amount paid in settlement (without the written
approval of the Receiver) by, any Indemnitee in connection with any action that seeks damages
against any Indemnitee (a “counterclaim”) arising with respect to any Asset and based on any
action or inaction of either the Failed Bank, its directors, officers, employees or agents as such
prior to Bank Closing, unless any such judgment, fine or amount paid in settlement exceeds the
greater of (i) the Repurchase Price of such Asset, or (ii) the monetary recovery sought on such
Asset by the Assuming Bank in the cause of action from which the counterclaim arises; and in
such event the Receiver will provide indemnification only in the amount of such excess; and no
indemnification will be provided for any costs or expenses other than any costs or expenses
(including attorneys’ fees) which, in the determination of the Receiver, have been actually and
reasonably incurred by such Indemnitee in connection with the defense of any such counterclaim;
and it is expressly agreed that the Receiver reserves the right to intervene, in its discretion, on its
behalf and/or on behalf of the Receiver, in the defense of any such counterclaim;



          (2) claims with respect to any liability or obligation of the Failed Bank that is
expressly assumed by the Assuming Bank pursuant to this Agreement or subsequent to the
execution hereof by the Assuming Bank or any Subsidiary or Affiliate of the Assuming Bank;



          (3) claims with respect to any liability of the Failed Bank to any present or former
employee as such of the Failed Bank or of any Subsidiary or Affiliate of the Failed Bank, which
liability is expressly assumed by the Assuming Bank pursuant to this Agreement or subsequent to
the execution hereof by the Assuming Bank or any Subsidiary or Affiliate of the Assuming Bank;



          (4) claims based on the failure of any Indemnitee to seek recovery of damages
from the Receiver for any claims based upon any action or inaction of the Failed Bank, its
directors, officers, employees or agents as fiduciary, agent or custodian prior to Bank Closing;



          (5) claims based on any violation or alleged violation by any Indemnitee of the
antitrust, branching, banking or bank holding company or securities laws of the United States of
America or any State thereof;



			
	 	 	 
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Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






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          (6) claims based on the rights of any present or former creditor, customer, or
supplier as such of the Assuming Bank or any Subsidiary or Affiliate of the Assuming Bank;



          (7) claims based on the rights of any present or former shareholder as such of the
Assuming Bank or any Subsidiary or Affiliate of the Assuming Bank regardless of whether any
such present or former shareholder is also a present or former shareholder of the Failed Bank;



          (8) claims, if the Receiver determines that the effect of providing such
indemnification would be to (i) expand or alter the provisions of any warranty or
disclaimer thereof provided in Section 3.3 or any other provision of this Agreement, or (ii) create
any warranty not expressly provided under this Agreement;



          (9) claims
which could have been enforced against any Indemnitee had the
Assuming Bank not entered into this Agreement;



          (10) claims based on any liability for taxes or fees assessed with respect to the
consummation of the transactions contemplated by this Agreement, including without limitation
any subsequent transfer of any Assets or Liabilities Assumed to any Subsidiary or Affiliate of the
Assuming Bank;



          (11) except as expressly provided in this Article XII, claims based on any action
or inaction of any Indemnitee, and nothing in this Agreement shall be construed to provide
indemnification for (i) the Failed Bank, (ii) any Subsidiary or Affiliate of the Failed Bank,
or (iii) any present or former director, officer, employee or agent of the Failed Bank or its
Subsidiaries or Affiliates; provided, that the Receiver, in its discretion, may provide
indemnification hereunder for any present or former director, officer, employee or agent of the Failed Bank or
its Subsidiaries or Affiliates who is also or becomes a director, officer, employee or agent of
the Assuming Bank or its Subsidiaries or Affiliates;



          (12) claims or actions which constitute a breach by the Assuming Bank of the
representations and warranties contained in Article XI;



          (13) claims arising out of or relating to the condition of or generated by an Asset
arising from or relating to the presence, storage or release of any
hazardous or toxic
substance, or any pollutant or contaminant, or condition of such Asset which violate any applicable Federal,
State or local law or regulation concerning environmental protection;



          (14) claims based on, related to or arising from any asset, including a loan,
acquired or liability assumed by the Assuming Bank, other than pursuant to this Agreement; and



          (15) claims based on, related to or arising from any liability specifically not
assumed by the Assuming Bank pursuant to Section 2.5 of this Agreement.



     12.2
Conditions Precedent to Indemnification. It shall be a condition precedent to
the obligation of the Receiver to indemnify any Person pursuant to this Article XII that such



			
	 	 	 
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Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






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Person shall, with respect to any claim made or threatened against such Person for which
such Person is or may be entitled to indemnification hereunder:



     (a) give written notice to the Regional Counsel (Litigation Branch) of the
Corporation in the manner and at the address provided in Section 13.7 of such claim as soon as
practicable after such claim is made or threatened; provided, that notice must be given on or
before the date which is six (6) years from the date of this Agreement;



     (b) provide to the Receiver such information and cooperation with respect to such claim as the Receiver may reasonably require;



     (c) cooperate and take all steps, as the Receiver may reasonably require, to preserve and protect any defense to such claim;



     (d) in the event suit is brought with respect to such claim, upon reasonable prior
notice, afford to the Receiver the right, which the Receiver may exercise in its sole
discretion, to conduct the investigation, control the defense and effect settlement of such claim, including
without limitation the right to designate counsel and to control all negotiations, litigation,
arbitration, settlements, compromises and appeals of any such claim, all of which shall be at the
expense of the Receiver; provided, that the Receiver shall have notified the
Person claiming indemnification in writing that such claim is a claim with respect to which the Person
claiming indemnification is entitled to indemnification under this Article XII;



     (e) not incur any costs or expenses in connection with any response or suit with respect to such claim, unless such costs or expenses were incurred upon the written direction of
the Receiver; provided, that the Receiver shall not be obligated to reimburse the amount of any such costs or expenses unless such costs or expenses were incurred upon the written direction
of the Receiver;



     (f) not release or settle such claim or make any payment or admission with respect
thereto, unless the Receiver consents in writing thereto, which
consent shall not be unreasonably withheld; provided, that the Receiver shall not be obligated to reimburse the amount
of any such settlement or payment unless such settlement or payment was effected upon the written
direction of the Receiver; and



     (g) take reasonable action as the Receiver may request in writing as necessary to
preserve, protect or enforce the rights of the indemnified Person against any Primary Indemnitor.



     12.3 No Additional Warranty. Nothing in this Article XII shall be construed or
deemed to (i) expand or otherwise alter any warranty or disclaimer thereof provided under Section
3.3 or any other provision of this Agreement with respect to, among other matters, the title,
value, collectibility, genuineness, enforceability or condition of any (x) Asset, or (y) asset of
the Failed Bank purchased by the Assuming Bank subsequent to the execution of this Agreement by the
Assuming Bank or any Subsidiary or Affiliate of the Assuming Bank, or (ii) create any warranty not
expressly provided under this Agreement with respect thereto.



			
	 	 	 
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	 	Washington Mutual Bank

Henderson, Nevada






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     12.4
Indemnification of Receiver and Corporation. From and after Bank Closing,
the Assuming Bank agrees to indemnify and hold harmless the Corporation and the Receiver and
their respective directors, officers, employees and agents from and against any and all costs,
losses, liabilities, expenses (including attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with any of the following:



     (a) claims based on any and all liabilities or obligations of the Failed Bank assumed
by the Assuming Bank pursuant to this Agreement or subsequent to the execution hereof by the
Assuming Bank or any Subsidiary or Affiliate of the Assuming Bank, whether or not any such
liabilities subsequently are sold and/or transferred, other than any claim based upon any
action or inaction of any Indemnitee as provided in paragraph (7) or (8) of Section 12.1(a); and



     (b) claims based on any act or omission of any Indemnitee (including but not limited
to claims of any Person claiming any right or title by or through the Assuming Bank with
respect to Assets transferred to the Receiver pursuant to Section 3.4 or 3.6), other than any action
or inaction of any Indemnitee as provided in paragraph (7) or (8) of Section 12.1(a).



     12.5 Obligations Supplemental. The obligations of the Receiver, and the Corporation
as guarantor in accordance with Section 12.7, to provide indemnification under this Article
XII are to supplement any amount payable by any Primary Indemnitor to the Person indemnified
under this Article XII. Consistent with that intent, the Receiver agrees only to make payments
pursuant to such indemnification to the extent not payable by a Primary Indemnitor. If the
aggregate amount of payments by the Receiver, or the Corporation as guarantor in accordance
with Section 12.7, and all Primary Indemnitors with respect to any item of indemnification under
this Article XII exceeds the amount payable with respect to such item, such Person being
indemnified shall notify the Receiver thereof and, upon the request of the Receiver, shall
promptly pay to the Receiver, or the Corporation as appropriate, the amount of the Receiver’s (or
Corporation’s) payments to the extent of such excess.



     12.6 Criminal Claims. Notwithstanding any provision of this Article XII to the
contrary, in the event that any Person being indemnified under this Article XII shall become
involved in any criminal action, suit or proceeding, whether judicial, administrative or
investigative, the Receiver shall have no obligation hereunder to indemnify such Person for
liability with respect to any criminal act or to the extent any costs or expenses are attributable to
the defense against the allegation of any criminal act, unless (i) the Person is successful on the
merits or otherwise in the defense against any such action, suit or proceeding, or (ii) such action,
suit or proceeding is terminated without the imposition of liability on such Person.



     12.7 Limited Guaranty of the Corporation. The Corporation hereby guarantees
performance of the Receiver’s obligation to indemnify the Assuming Bank as set forth in this
Article XII. It is a condition to the Corporation’s obligation hereunder that the Assuming
Bank shall comply in all respects with the applicable provisions of this Article XII. The
Corporation shall be liable hereunder only for such amounts, if any, as the Receiver is obligated to pay
under the terms of this Article XII but shall fail to pay. Except as otherwise provided above in
this Section 12.7, nothing in this Article XII is intended or shall be construed to create any
liability or obligation on the part of the Corporation, the United States of America or any department or



			
	 	 	 
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Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






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agency thereof under or with respect to this Article XII, or any provision hereof, it being
the intention of the parties hereto that the obligations undertaken by the Receiver under this
Article XII are the sole and exclusive responsibility of the Receiver and no other Person or
entity.



     12.8
Subrogation. Upon payment by the Receiver, or the Corporation as guarantor in
accordance with Section 12.7, to any Indemnitee for any claims indemnified by the Receiver under
this Article XII, the Receiver, or the Corporation as appropriate, shall become subrogated to all
rights of the Indemnitee against any other Person to the extent of such payment.



ARTICLE XIII

MISCELLANEOUS




     13.1 Entire Agreement. This Agreement embodies the entire agreement of the parties
hereto in relation to the subject matter herein and supersedes all prior understandings or
agreements, oral or written, between the parties.



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



     13.3 Counterparts. This Agreement may be executed in any number of counterparts
and by the duly authorized representative of a different party hereto on separate
counterparts, each of which when so executed shall be deemed to be an original and all of which when taken
together shall constitute one and the same Agreement.



     13.4
GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE FEDERAL LAW OF THE UNITED STATES OF AMERICA,
AND IN THE ABSENCE OF CONTROLLING FEDERAL LAW, IN ACCORDANCE WITH
THE LAWS OF THE STATE IN WHICH THE MAIN OFFICE OF THE FAILED BANK IS
LOCATED.



     13.5 Successors. All terms and conditions of this Agreement shall be binding on the
successors and assigns of the Receiver, the Corporation and the Assuming Bank. Except as
otherwise specifically provided in this Agreement, nothing expressed or referred to in this
Agreement is intended or shall be construed to give any Person other than the Receiver, the
Corporation and the Assuming Bank any legal or equitable right, remedy or claim under or with
respect to this Agreement or any provisions contained herein, it being the intention of the
parties hereto that this Agreement, the obligations and statements of responsibilities hereunder, and
all other conditions and provisions hereof are for the sole and exclusive benefit of the Receiver,
the Corporation and the Assuming Bank and for the benefit of no other Person.



			
	 	 	 
	Execution Copy 

Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






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     13.6 Modification; Assignment. No amendment or other modification, rescission,
release, or assignment of any part of this Agreement shall be effective except pursuant to a
written agreement subscribed by the duly authorized representatives of the parties hereto.



     13.7 Notice. Any notice, request, demand, consent, approval or other communication
to any party hereto shall be effective when received and shall be
given in writing,
and delivered in person against receipt therefore, or sent by certified mail, postage prepaid, courier
service, telex or facsimile transmission to such party (with copies as indicated below) at its address
set forth below or at such other address as it shall hereafter furnish in writing to the other
parties. All such notices and other communications shall be deemed given on the date received by the
addressee.



Assuming Bank




JPMorgan Chase Bank, National Association
270 Park Avenue

New York, New York 10017




Attention: Brian A. Bessey




with a copy to: Stephen M. Cutler




Receiver and Corporation




Federal Deposit Insurance Corporation,

Receiver of Washington Mutual Bank, Henderson, Nevada

1601 Bryan St., Suite 1700

Dallas, Texas 75201




Attention: Deputy Director (DRR-Field Operations Branch)




with copy to: Regional Counsel (Litigation Branch)




and with respect to notice under Article XII:




Federal Deposit Insurance Corporation

Receiver of Washington Mutual Bank, Henderson, Nevada

1601 Bryan St., Suite 1700

Dallas, Texas 75201

Attention: Regional Counsel (Litigation Branch)




     13.8 Manner of Payment. All payments due under this Agreement shall be in lawful
money of the United States of America in immediately available funds as each party hereto may
specify to the other parties; provided, that in the event the Receiver or the
Corporation is obligated to make any payment hereunder in the amount of $25,000.00 or less, such
payment may be made by check.



			
	 	 	 
	Execution Copy 

Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada






31









 






     13.9 Costs, Fees and Expenses. Except as otherwise specifically provided herein,
each party hereto agrees to pay all costs, fees and expenses which it has incurred in connection
with or incidental to the matters contained in this Agreement, including without limitation any fees
and disbursements to its accountants and counsel; provided, that the Assuming Bank
shall pay all fees, costs and expenses (other than attorneys’ fees incurred by the Receiver) incurred in
connection with the transfer to it of any Assets or Liabilities
Assumed hereunder or in accordance herewith.




     13.10 Waiver. Each of the Receiver, the Corporation and the Assuming Bank may
waive its respective rights, powers or privileges under this Agreement; provided,
that such waiver shall be in writing; and
further provided, that no failure or delay on the part
of the Receiver, the Corporation or the Assuming Bank to exercise any right, power or privilege under
this Agreement shall operate as a waiver thereof, nor will any single or partial exercise of
any right, power or privilege under this Agreement preclude any other or further exercise thereof
or the exercise of any other right, power or privilege by the Receiver, the Corporation, or the
Assuming Bank under this Agreement, nor will any such waiver operate or be construed as a
future waiver of such right, power or privilege under this Agreement.



     13.11 Severability. If any provision of this Agreement is declared invalid or
unenforceable, then, to the extent possible, all of the remaining provisions of this Agreement
shall remain in full force and effect and shall be binding upon the parties hereto.



     13.12
Term of Agreement. This Agreement shall continue in full force and effect until
the sixth (6th) anniversary of Bank Closing; provided, that the provisions of
Section 6.3 and 6.4 shall survive the expiration of the term of this Agreement. Provided, however, the
receivership of the Failed Bank may be terminated prior to the expiration of the term of this Agreement; in
such event, the guaranty of the Corporation, as provided in and in accordance with the provisions
of Section 12.7 shall be in effect for the remainder of the term. Expiration of the term of this
Agreement shall not affect any claim or liability of any party with respect to any (i) amount
which is owing at the time of such expiration, regardless of when such amount becomes payable,
and (ii) breach of this Agreement occurring prior to such expiration, regardless of when such
breach is discovered.



     13.13 Survival of Covenants, Etc. The covenants, representations, and warranties in
this Agreement shall survive the execution of this Agreement and the consummation of the
transactions contemplated hereunder.


[Signature Page Follows]








			
	 	 	 
	Execution Copy 

Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada





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     IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their duly authorized representatives as of the date first above written.



	 	 	 	 	 
	 	 	FEDERAL DEPOSIT INSURANCE CORPORATION,

RECEIVER OF: WASHINGTON MUTUAL BANK,

HENDERSON, NEVADA
	 
	 	 	 	 
	 

	 	BY:
	 	/Mitchell L. Glassman
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	NAME:
	 	Mitchell L. Glassman
	 

	 	TITLE:
	 	Director
	 
	 	 	 	 
	Attest:
	 	 	 	 
	 
	 	 	 	 
	/David M. Gearin
	 	 	 	 
	 
	 	 	 	 
	 	 	FEDERAL DEPOSIT INSURANCE CORPORATION
	 
	 	 	 	 
	 

	 	BY:
	 	/Mitchell L. Glassman
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	NAME:
	 	Mitchell L. Glassman
	 

	 	TITLE:
	 	Director
	 
	 	 	 	 
	Attest:
	 	 	 	 
	 
	 	 	 	 
	/David M. Gearin
	 	 	 	 
	 	 	JPMORGAN CHASE BANK, NATIONAL

ASSOCIATION
	 
	 	 	 	 
	 

	 	BY:
	 	/Brian A. Bessey
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	NAME:
	 	Brian A. Bessey 
	 

	 	TITLE:
	 	Senior Vice President
	Attest:
	 	 	 	 
	 
	 	 	 	 
	/Michael Lipsitz
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 





			
	 	 	 
	Execution Copy 

Whole Bank P&A
	 	Washington Mutual Bank

Henderson, Nevada







33