exv10w1






Exhibit 10.1




	 	 	 
	

	 	100 Pine Street, Suite 900, San Francisco, CA 94111

Phone: 415.490.2300 Fax: 415.837.1684

www.alvarezandmarsal.com







October 11, 2008




Stewart M. Landefeld

Executive Vice President

Washington Mutual, Inc.

1301 Second Avenue

Seattle, WA, 98101




Dear Mr. Landefeld:



This letter confirms and sets forth the terms and conditions of the engagement between
Alvarez & Marsal North America, LLC (“A&M”) and Washington Mutual, Inc. and subsidiaries
(collectively the “Company”), including the scope of the services to be performed and the
basis of compensation for those services. Upon execution of this letter by each of the
parties below and receipt of the retainer described below, this letter will constitute an
agreement between the Company and A&M.





	 	1.	 	Description of Services






	 	a.	 	Officers. In connection with this engagement,
A&M shall make
available to the Company:






	 	(i)	 	William Kosturos to serve as the Chief
Restructuring Officer (the “CRO”); and
	 
	 	(ii)	 	Upon the mutual agreement of A&M and
the Board of Directors of the Company (the “Board”), such
additional personnel as are necessary to assist in the
performance of the duties set forth in clause 1.b below (the
“Additional Personnel”). Such Additional Personnel shall be
designated by the Company as executive officers.






	 	b.	 	Duties.






	 	(i)	 	The CRO together with any Additional
Personnel shall perform a financial review of the Company,
including but not limited to a review and assessment of
financial





 









 





Washington Mutual,
Inc.
 October 6, 2008

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	 	 	 	information that has been, and that will be, provided by the
Company to its creditors, including without limitation its short
and long-term projected cash flows;
	 
	 	(iii)	 	The CRO and Additional Personnel shall
assist in developing for the Board’s review possible restructuring
plans or strategic alternatives for maximizing the enterprise value
of the Company’s various business lines;
	 
	 	(iv)	 	The CRO shall serve as the principal contact
with the Company’s creditors with respect to the Company’s financial
and operational matters; and
	 
	 	(v)	 	The CRO and Additional Personnel shall
perform such other services as requested or directed by the Board and
agreed to by such officer.






	 	c.	 	Reporting. The CRO shall report to the Board and
Additional
Personnel will report to the CRO until a successor CEO or other
executive officer function as CEO or other title with direct board
responsibility for the Chapter 11 is appointed. Upon the
appointment of a CEO or other board officer, the CRO shall report
to the CEO or other board officer and the Board.
	 
	 	d.	 	Employment by A&M. The CRO and Additional Personnel
will
continue to be employed by A&M and while rendering services to
the Company will continue to work with other personnel at A&M
in connection with other unrelated matters, which will not unduly
interfere with services pursuant to this engagement. With respect
to the Company, however, the CRO and Additional Personnel shall
operate under the direction of the Board and A&M shall have no
liability to the Company for any acts or omissions of such officers.
	 
	 	e.	 	Projections; Reliance; Limitation of Duties. You
understand that
the services to be rendered by the CRO and Additional Personnel
may include the preparation of projections and other forward-looking statements, and that numerous factors can affect the actual
results of the Company’s operations, which may materially and
adversely differ from those projections and other forward-looking
statements. In addition, the CRO and Additional Personnel will be
relying on information provided by other members of the
Company’s management in the preparation of those projections
and other forward-looking statements. Neither the CRO,
Additional Personnel nor A&M makes any representation or
guarantee that an appropriate restructuring proposal or strategic
alternative can be formulated for the Company, that any





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Washington Mutual, Inc.

October 6, 2008

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	 	 	 	restructuring proposal or strategic alternative presented to the Board will
be more successful than all other possible restructuring proposals or
strategic alternatives, that restructuring is the best course of action for
the Company or, if formulated, that any proposed restructuring plan or
strategic alternative will be accepted by any of the Company’s creditors,
shareholders and other constituents. Further, neither the CRO, Additional
Personnel nor A&M assumes responsibility for the selection of any
restructuring proposal or strategic alternative that any such officer
assists in formulating and presenting to the Board, and the CRO and
Additional Personnel shall be responsible for implementation only of the
proposal or alternative approved by the Board and only to the extent and in
the manner authorized and directed by the Board.






	 	f.	 	Additional Responsibilities. Upon
the mutual agreement of the
Company and A&M, A&M may provide such additional
personnel as the Company may request to assist in performing
the services described above and such other services as may be
agreed to, on such terms and conditions and for such
compensation as the Company and A&M shall agree.
	 
	 	g.	 	In connection with the services to be
provided hereunder, from
time to time A&M may utilize the services of employees of its
affiliates. Such affiliates are wholly owned by A&M’s parent
company and employees.






	 	2.	 	Compensation






	 	a.	 	A&M will be paid by the Company for the services of the CRO
and any Additional Personnel at the following hourly billing rates. The
hourly billing rate for the CRO is $695. The current hourly billing rates for
other A&M personnel, based on the position held by such A&M personnel in A&M,
are:





	 	 	 	 	 
	i. Managing Director
	 	$	550 - $750	 
	ii. Directors
	 	$	450 - $550	 
	iii. Associates
	 	$	300 - $450	 
	iv. Analysts
	 	$	175 - $300	 







	 	 	 	Such rates shall be subject to adjustment annually at such time as A&M
adjusts its rates generally.






	 	b.	 	In addition, A&M will be reimbursed by the Company for the
reasonable out-of-pocket expenses of the CRO and any Additional Personnel,
and if applicable, other A&M personnel, incurred in





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Washington Mutual,
Inc.
 October 6, 2008

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	 	 	 	connection with this assignment, such as travel, lodging, duplications,
computer research, messenger and telephone charges. In addition, A&M shall
be reimbursed by the Company for the reasonable fees and expenses of its
counsel incurred in connection with the preparation, negotiation, and
approval of this Agreement. All fees and expenses due to A&M will be
billed on a monthly basis or, at A&M’s discretion, more frequently.
	 
	 	c.	 	The Company shall promptly remit to A&M a retainer in
the amount of $250,000, which shall be credited against any amounts due at the
termination of this engagement and returned upon the satisfaction of all
obligations hereunder.






	 	3.	 	Term
	 
	 	 	 	The engagement will commence as of the date hereof and may be terminated by either
party without cause by giving 30 days’ written notice to the other party during
which notice period A&M will cooperate with the Company to facilitate an orderly
transfer of duties to Company personnel. A&M normally does not withdraw from an
engagement unless the Company misrepresents or fails to disclose material facts,
fails to pay fees or expenses, or makes it unethical or unreasonably difficult for
A&M to continue to represent the Company, or unless other just cause exists. In the
event of any such termination, any fees and expenses due to A&M shall be remitted
promptly (including fees and expenses that accrued prior to but were invoiced
subsequent to such termination). The Company may immediately terminate A&M’s
services hereunder at any time for Cause by giving written notice to A&M. Upon any
such termination, the Company shall be relieved of all of its payment obligations
under this Agreement, except for the payment of fees and expenses through the
effective date of termination (including fees and expenses that accrued prior to
but were invoiced subsequent to such termination) and its obligations under
paragraphs 7 and 8. For purposes of this Agreement, “Cause” shall mean if (i) the
CRO or any of the Additional Personnel is convicted of, admits guilt in a written
document filed with a court of competent jurisdiction to, or enters a plea of nolo
contendere to, an allegation of fraud, embezzlement, misappropriation or any
felony; (ii) the CRO or any of the Additional Personnel willfully disobeys a lawful
direction of the Board, CEO or responsible executive; or (iii) a material breach of
any of A&M’s or the CRO’s or any of the Additional Personnel’s material obligations
under this Agreement which is not cured within 30 days of the Company’s written
notice thereof to A&M describing in reasonable detail the nature of the alleged
breach. For purposes of this Agreement, termination for “Good Reason” shall mean
either its resignation caused by a breach by the Company of any of its





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Washington Mutual, Inc.

October 6, 2008

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	 	 	 	material obligations under this Agreement that is not cured within 30 days of A&M
having given written notice of such breach to the Company describing in reasonable
detail the nature of the alleged breach.
	 
	 	4.	 	No Audit, Duty to Update.
	 
	 	 	 	It is understood that the CRO, any Additional Personnel and A&M are not being
requested to perform an audit, review or compilation, or any other type of
financial statement reporting engagement that is subject to the rules of the AICPA,
SEC or other state or national professional or regulatory body. They are entitled
to rely on the accuracy and validity of the data disclosed to them or supplied to
them by employees and representatives of the Company. The CRO, any Additional
Personnel and A&M are under no obligation to update data submitted to them or
review any other areas unless specifically requested by the Board to do so.
	 
	 	5.	 	No Third Party Beneficiary.
	 
	 	 	 	The Company acknowledges that all advice (written or oral) given by A&M to the
Company in connection with this engagement is intended solely for the benefit and
use of the Company (limited to its Board and management) in considering the
matters to which this engagement relates. The Company agrees that no such advice
shall be used for any other purpose or reproduced, disseminated (other than to its
advisers and accountants), quoted or referred to at any time in any manner or for
any purpose other than accomplishing the tasks referred to herein without A&M’s
prior approval (which shall not be unreasonably withheld), except as required by
law.
	 
	 	6.	 	Conflicts.
	 
	 	 	 	A&M is not currently aware of any relationship that would create a conflict of
interest with the Company. Because A&M is a consulting firm that serves clients on
an international basis in numerous cases, both in and out of court, it is possible
that A&M may have rendered or will render services to or have business associations
with other entities or people which had or have or may have relationships with the
Company, including creditors of the Company. In the event you accept the terms of
this engagement, A&M will not represent, and A&M has not represented, the interests
of any such entities or people in connection with this matter. Each of the
Companies acknowledges and agrees that the services being provided hereunder are
being provided on behalf of each of them and each of them hereby waives any and all
conflicts of interest that may arise on





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Washington Mutual, Inc.

October 6, 2008

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	 	 	 	account of the services being provided on behalf of any other Company. Each
Company represents that it has taken all corporate action necessary and is
authorized to waive such potential conflicts of interest.
	 
	 	7.	 	Confidentiality / Non-Solicitation.
	 
	 	 	 	The CRO, Additional Personnel, A&M and its affiliates’ employees and agents shall
keep as confidential all non-public information received from the Company in
conjunction with this engagement, except (i) as requested by the Company or its
legal counsel; (ii) as required by legal proceedings (provided that the Company be
given sufficient notice and an opportunity to intervene on its own behalf) or (iii)
as reasonably required in the performance of this engagement. All obligations as to
non-disclosure shall cease as to any part of such information to the extent that
such information is or becomes public other than as a result of a breach of this
provision. Except as specifically provided for in this letter, the Company on
behalf of itself and its subsidiaries and affiliates and any person which may
acquire all or substantially all of its assets agrees that, until two (2) years
subsequent to the termination of this engagement, it will not solicit, recruit,
hire or otherwise engage any employee of A&M who worked on this engagement while
employed by A&M (“Solicited Person”). Should the Company or any of its subsidiaries
or any person who acquires all or substantially all of its assets extend an offer
of employment to or otherwise engage any Solicited Person and should such offer be
accepted, A&M shall be entitled to a fee from the party extending such offer equal
to the Solicited Person’s hourly client billing rate at the time of the offer
multiplied by 4,000 hours for a Managing Director, 3,000 hours for a Senior
Director and 2,000 hours for any other A&M employee. The fee shall be payable at
the time of the Solicited Person’s acceptance of employment or engagement.
	 
	 	8.	 	Indemnification.
	 
	 	 	 	The Company shall indemnify the CRO and all Additional Personnel to the same
extent as the most favorable indemnification it extends to its officers or
directors, whether under the Company’s bylaws, its certificate of incorporation,
by contract or otherwise, and no reduction or termination in any of the benefits
provided under any such indemnities shall affect the benefits provided to the CRO
or Additional Personnel. The CRO and each Additional Personnel shall be covered as
an officer under the Company’s existing director and officer liability insurance
policy to the extent allowed under such policy. As a condition of A&M accepting
this engagement, a Certificate of Insurance evidencing such coverage shall be
furnished to A&M prior to the effective date of this Agreement. To the





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Washington Mutual, Inc.

October 6, 2008

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	 	 	 	extent practicable, the Company shall give thirty (30) days’ prior written notice
to A&M of cancellation, non-renewal, or material change in coverage, scope, or
amount of such director and officer liability policy. The Company shall also
maintain such insurance coverage for the CRO, CFO, Treasurer and each Additional
Personnel for a period of not less than two years following the date of the
termination of such officer’s services hereunder. The provisions of this section 8
are in the nature of contractual obligations and no change in applicable law or the
Company’s charter, bylaws or other organizational documents or policies shall
affect the CRO’s or any Additional Personnel’s rights hereunder. The attached
indemnity provisions are incorporated herein and the termination of this agreement
or the engagement shall not affect those provisions, which shall survive
termination.
	 
	 	9.	 	Miscellaneous.
	 
	 	 	 	This Agreement shall (together with the attached indemnity provisions) be: (a)
governed and construed in accordance with the laws of the State of New York,
regardless of the laws that might otherwise govern under applicable principles of
conflict of laws thereof; (b) incorporates the entire understanding of the parties
with respect to the subject matter thereof; and (c) may not be amended or modified
except in writing executed by each of the signatories hereto. The Company and A&M
agree to waive trial by jury in any action, proceeding or counterclaim brought by
or on behalf of the parties hereto with respect to any matter relating to or
arising out of the performance or non-performance of the Company or A&M hereunder.
The Company and A&M agree that the Bankruptcy Court having jurisdiction over the
Company’s Chapter 11 case (or any case into which it may be converted) shall have
exclusive jurisdiction over any and all matters arising under or in connection
with their obligations hereunder. Notwithstanding anything herein to the contrary,
A&M may reference or list the Company’s name and/or a general description of the
services in A&M’s marketing materials, including, without limitation, on A&M’s
website upon the termination of the engagement for any reason other than Cause.





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Washington Mutual, Inc.

October 6, 2008

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	 	 	 	If the foregoing is acceptable to you, kindly sign the enclosed copy to acknowledge
your agreement with its terms.





	 	 	 	 	 
	 	Very truly yours,



Alvarez & Marsal North America, LLC

 	 
	 	By:  	/s/ William C. Kosturos
 	 
	 	 	William C. Kosturos  	 
	 	 	Managing Director 	 
	 



	 	 	 	 	 	 	 
	 	 	Accepted and Agreed:	 	 
	 
	 	 	 	 	 	 
	 	 	Washington Mutual, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Stewart M. Landefeld
 

Stewart M. Landefeld
	 	 
	 

	 	 	 	Executive Vice President	 	 






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INDEMNIFICATION AGREEMENT



This indemnity is made part of an agreement, dated October 6, 2008 (which together with any
renewals, modifications or extensions thereof, is herein referred to as the “Agreement”) by and
between Alvarez & Marsal North America, LLC (“A&M”) and Washington Mutual, Inc (the “Company”), for
services to be rendered to the Company by A&M.



A. The Company agrees to indemnify and hold harmless each of A&M, its affiliates and
their respective shareholders, members, managers, employees, agents, representatives and
subcontractors (each, an “Indemnified Party” and collectively, the “Indemnified Parties”) against
any and all losses, claims, damages, liabilities, penalties, obligations and expenses, including
the
costs for counsel or others (including employees of A&M, based on their then current hourly
billing rates) in investigating, preparing or defending any action or claim, whether or not in
connection with litigation in which any Indemnified Party is a party, or enforcing the Agreement
(including these indemnity provisions), as and when incurred, caused by, relating to, based upon
or arising out of (directly or indirectly) the Indemnified Parties’ acceptance of or the
performance
or nonperformance of their obligations under the Agreement; provided, however, such indemnity
shall not apply to any such loss, claim, damage, liability or expense to the extent it is found in
a
final judgment by a court of competent jurisdiction (not subject to further appeal) to have
resulted primarily and directly from such Indemnified Party’s gross negligence or willful
misconduct. The Company also agrees that no Indemnified Party shall have any liability
(whether direct or indirect, in contract or tort or otherwise) to the Company for or in connection
with the engagement of A&M, except to the extent that any such liability for losses, claims,
damages, liabilities or expenses are found in a final judgment by a court of competent
jurisdiction (not subject to further appeal) to have resulted primarily and directly from such
Indemnified Party’s gross negligence or willful misconduct. The Company further agrees that it
will not, without the prior consent of an Indemnified Party, settle or compromise or consent to
the entry of any judgment in any pending or threatened claim, action, suit or proceeding in
respect of which such Indemnified Party seeks indemnification hereunder unless such settlement,
compromise or consent includes an unconditional release of such Indemnified Party from all
liabilities arising out of such claim, action, suit or proceeding.



B. These indemnification provisions shall be in addition to any liability which the Company
may otherwise have to the Indemnified Parties. In the event that, at any time whether before or
after termination of the engagement or the Agreement, as a result of or in connection with the
Agreement or A&M’s and its personnel’s role under the Agreement, A&M or any Indemnified
Party is required to produce any of its personnel (including former employees) for examination,
deposition or other written, recorded or oral presentation, or A&M or any of its personnel
(including former employees) or any other Indemnified Party is required to produce or otherwise
review, compile, submit, duplicate, search for, organize or report on any material within such
Indemnified Party’s possession or control pursuant to a subpoena or other legal (including
administrative) process, the Company will reimburse the Indemnified Party for its out of pocket
expenses, including the reasonable fees and expenses of its counsel, and will compensate the




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Indemnified Party for the time expended by its personnel based on such personnel’s then current
hourly rate.



C. If any action, proceeding or investigation is commenced to which any Indemnified Party
proposes to demand indemnification hereunder, such Indemnified Party will notify the Company
with reasonable promptness; provided, however, that any failure by such Indemnified Party to
notify the Company will not relieve the Company from its obligations hereunder, except to the
extent that such failure shall have actually prejudiced the defense of such action. The Company
shall promptly pay expenses reasonably incurred by any Indemnified Party in defending,
participating in, or settling any action, proceeding or investigation in which such Indemnified
Party is a party or is threatened to be made a party or otherwise is participating in by reason of
the engagement under the Agreement, upon submission of invoices therefor, whether in advance
of the final disposition of such action, proceeding, or investigation or otherwise. Each
Indemnified Party hereby undertakes, and the Company hereby accepts its undertaking, to repay
any and all such amounts so advanced if it shall ultimately be determined that such Indemnified
Party is not entitled to be indemnified therefor. If any such action, proceeding or investigation
in
which an Indemnified Party is a party is also against the Company, the Company may, in lieu of
advancing the expenses of separate counsel for such Indemnified Party, provide such
Indemnified Party with legal representation by the same counsel who represents the Company,
provided such counsel is reasonably satisfactory to such Indemnified Party, at no cost to such
Indemnified Party; provided, however, that if such counsel or counsel to the Indemnified Party
shall determine that due to the existence of actual or potential conflicts of interest between such
Indemnified Party and the Company such counsel is unable to represent both the Indemnified
Party and the Company, then the Indemnified Party shall be entitled to use separate counsel of its
own choice, and the Company shall promptly advance its reasonable expenses of such separate
counsel upon submission of invoices therefor. Nothing herein shall prevent an Indemnified Party
from using separate counsel of its own choice at its own expense. The Company will be liable
for any settlement of any claim against an Indemnified Party made with the Company’s written
consent, which consent shall not be unreasonably withheld.



D. In order to provide for just and equitable contribution if a claim for indemnification
pursuant to these indemnification provisions is made but it is found in a final judgment by a
court of competent jurisdiction (not subject to further appeal) that such indemnification may not
be enforced in such case, even though the express provisions hereof provide for indemnification,
then the relative fault of the Company, on the one hand, and the Indemnified Parties, on the other
hand, in connection with the statements, acts or omissions which resulted in the losses, claims,
damages, liabilities and costs giving rise to the indemnification claim and other relevant
equitable considerations shall be considered; and further provided that in no event will the
Indemnified Parties’ aggregate contribution for all losses, claims, damages, liabilities and
expenses with respect to which contribution is available hereunder exceed the amount of fees
actually received by the Indemnified Parties pursuant to the Agreement. No person found liable
for a fraudulent misrepresentation shall be entitled to contribution hereunder from any person
who is not also found liable for such fraudulent misrepresentation.




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E. In the event the Company and A&M seek judicial approval for the assumption of the
Agreement or authorization to enter into a new engagement agreement pursuant to either of
which A&M would continue to be engaged by the Company, the Company shall promptly pay
expenses reasonably incurred by the Indemnified Parties, including attorneys’ fees and expenses,
in connection with any motion, action or claim made either in support of or in opposition to any
such retention or authorization, whether in advance of or following any judicial disposition of
such motion, action or claim, promptly upon submission of invoices therefor and regardless of
whether such retention or authorization is approved by any court. The Company will also
promptly pay the Indemnified Parties for any expenses reasonably incurred by them, including
attorneys’ fees and expenses, in seeking payment of all amounts owed it under the Agreement (or
any new engagement agreement) whether through submission of a fee application or in any other
manner, without offset, recoupment or counterclaim, whether as a secured claim, an
administrative expense claim, an unsecured claim, a prepetition claim or a postpetition claim.



F. Neither termination of the Agreement nor termination of A&M’s engagement nor the
filing of a petition under Chapter 7 or 11 of the United States Bankruptcy Code (nor the
conversion of an existing case to one under a different chapter) shall affect these
indemnification
provisions, which shall hereafter remain operative and in full force and effect.



G. The rights provided herein shall not be deemed exclusive of any other rights to which the
Indemnified Parties may be entitled under the certificate of incorporation or bylaws of the
Company, any other agreements, any vote of stockholders or disinterested directors of the
Company, any applicable law or otherwise.




	 	 	 	 	 	 	 	 	 
	WASHINGTON MUTUAL, INC.	 	ALVAREZ & MARSAL
NORTH AMERICA, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Stewart M. Landefeld	 	By:
	 	/s/ William C. Kosturos	 	 
	 

	 	 	 	 	 	 

	 	 







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