Table of Contents

As filed with the Securities and Exchange Commission on June 20, 2011

Registration No. 333-173980

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

AMENDMENT NO. 2

TO

FORM S-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

HOMESTREET, INC.

(Exact Name of Registrant as Specified in its Charter)

 

 

 

Washington   6036   91-0186600

(State or other jurisdiction of

incorporation or organization)

 

(Primary Standard Industrial

Classification Code Number)

 

(I.R.S. Employer

Identification No.)

601 Union Street, Suite 2000

Seattle, WA 98101

(206) 623-3050

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

 

Mark K. Mason

Chief Executive Officer

HomeStreet, Inc.

601 Union Street, Suite 2000

Seattle, WA 98101

(206) 623-3050

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copy to:

 

Marcus J. Williams

Donna M. Cochener

Davis Wright Tremaine LLP

1201 Third Avenue, Suite 2200

Seattle, WA 98101

(206) 622-3150

(206) 757-7700 – Facsimile

 

Godfrey B. Evans

HomeStreet, Inc.

601 Union Street, Suite 2000

Seattle, WA 98101

(206) 623-3050

(206) 389-7703 – Facsimile

 

John C. Grosvenor

James J. Vieceli

Manatt, Phelps & Phillips, LLP

695 Town Center Drive, 14 th Floor

Costa Mesa, CA 92626

(714) 371-2500

(714) 371-2550 – Facsimile

As soon as practicable after the effective date of this Registration Statement.

(Approximate date of commencement of proposed sale to the public)

 

 

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box.     ¨

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.     ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer

 

¨

     Accelerated filer   ¨

Non-accelerated filer

 

x

     Smaller reporting company   ¨

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of Each Class of

Securities to be Registered

 

Proposed Maximum

Aggregate Offering
Price(1)

  Amount of
Registration Fee

Common Stock, no par value per share

  $210,000,000.00   $24,381(2)
 
 
(1) Estimated solely for the purpose of determining the amount of the registration fee in accordance with Rule 457(o) promulgated under the Securities Act of 1933, as amended. Includes offering price of additional shares that the underwriters have the option to purchase to cover over-allotments, if any. See “Underwriting.”
(2) Previously paid.

 

 

THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.

 

 

 


Table of Contents

The information in this preliminary prospectus is not complete and may be changed. We may not sell these securities or accept any offer to buy these securities until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell these securities and we are not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.

 

PROSPECTUS (SUBJECT TO COMPLETION) DATED                     , 2011

             Shares of Common Stock

LOGO

 

 

This is our initial public offering. Prior to this offering, there has been no public market for our common stock. We currently expect the initial public offering price to be between $              and $              per share. See “Underwriting” for a discussion of the factors to be considered in determining the initial public offering price. The market price of the shares after the offering may be higher or lower than the initial offering price.

We have applied to have our common stock listed on the Nasdaq Global Market under the symbol “HMST.”

We and our wholly owned subsidiary Home Street Bank (the “Bank”) are currently operating under orders to cease and desist issued by the Office of Thrift Supervision, or the OTS, and by the Federal Deposit Insurance Corporation, or the FDIC, and the Washington State Department of Financial Institutions, Division of Banks, or the DFI, respectively. As a result of these orders, we and the Bank are required to augment regulatory capital and reduce problem assets, and are subject to certain restrictions on our operations.

 

 

Investing in our common stock is speculative and involves a significant degree of risk. You should consider carefully the risks and uncertainties in the section entitled “ Risk Factors ” beginning on page 19 of this prospectus before investing in our common stock.

The shares of our common stock are not deposits, bank accounts or obligations of any bank, are not insured by the FDIC or any other governmental agency and are subject to investment risks, including possible loss of the entire amount invested.

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.

 

 

 

     Per Share      Total  

Initial public offering price

   $                    $                

Underwriting discounts and commission

   $         $     

Proceeds to us, before expenses

   $         $     

We have granted an over-allotment option which will allow the underwriters to purchase up to an additional              shares of our common stock from us at the initial offering price within 30 days following the date of this prospectus solely to cover over-allotments, if any.

The underwriters expect to deliver our common stock in book entry form only, through the facilities of The Depository Trust Company, against payment therefor on or about              , 2011.

FBR C APITAL M ARKETS  & C O .

The date of this prospectus is                     , 2011


Table of Contents

TABLE OF CONTENTS

 

     Page  

Summary

     1   

Risk Factors

     19   

Use of Proceeds

     46   

Capitalization

     47   

Dilution

     48   

Dividend Policy

     49   

Selected Historical Consolidated Financial and Other Data

     50   

Management’s Discussion and Analysis of Financial Condition and Results of Operations

     53   

Business

     128   

Regulation and Supervision

     152   

Management

     176   

Executive Compensation

     190   

Certain Relationships and Related Transactions

     203   

Principal Shareholders

     204   

Description of Capital Stock

     208   

Shares Available for Future Sale

     213   

Material United States Federal Income Tax Considerations

     215   

Underwriting

     220   

Validity of Common Stock

     223   

Experts

     223   

Where You Can Find More Information

     223   

Index of Consolidated Financial Statements

     F-1   

Notes to Consolidated Financial Statements

     F-52   

 

 

You should rely only on the information contained in this prospectus. Neither we nor the underwriters have authorized any other person to provide you with different information. We and the underwriters are offering to sell, and seeking offers to buy, shares of our common stock only in jurisdictions where offers and sales are permitted. The information contained in this prospectus is accurate only as of the date on the front cover of this prospectus or such other date stated in this prospectus. You should assume that the information appearing in this prospectus is accurate only as of that date. Our business, financial condition, results of operations and prospects may have changed since that date.

Unless we state otherwise or the context otherwise requires, references in this prospectus to “HomeStreet” “we,” “our,” “us” and the “Company” refer to HomeStreet, Inc., a Washington corporation, HomeStreet Bank (“Bank”), HomeStreet Capital Corporation (“HomeStreet Capital”) and HomeStreet Inc.’s other direct and indirect subsidiaries.

 

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SUMMARY

The following summary highlights information contained elsewhere in this prospectus. This summary is not intended to be complete and does not contain all the information you should consider before investing in our common stock. We encourage you to read carefully this entire prospectus, including the section entitled “Risk Factors” and our financial statements and related notes appearing elsewhere in this prospectus, before deciding to invest in our common stock.

Our Company

We are a 90-year-old diversified financial services company headquartered in Seattle, Washington, that has grown from a small mortgage bank to a full-service community bank serving consumers and businesses in the Pacific Northwest and Hawaii. In 1986 we established the Bank to fund our lending activities and to offer a broader range of products and services. Our banking strategy has allowed us to expand our lending activities while building stable core deposits and a more diversified core customer base that offers better cross-selling opportunities. The Bank has the oldest continuous relationship of all Fannie Mae seller servicers in the nation, having been the second company approved by Fannie Mae at its founding in 1938.

Our primary subsidiaries are HomeStreet Bank and HomeStreet Capital Corporation. HomeStreet Bank is a Washington state-chartered savings bank that provides deposit and investment products and cash management services. The Bank also provides loans for single family homes, commercial real estate, construction, land development and commercial businesses. HomeStreet Capital Corporation, a Washington corporation, originates, sells and services multifamily mortgage loans under the Fannie Mae Delegated Underwriting and Servicing Program (“DUS”) in conjunction with HomeStreet Bank. We also provide insurance products and services for consumers and businesses as HomeStreet Insurance and loans for single family homes through a joint venture, Windermere Mortgage Services Series LLC (“WMS”). At March 31, 2011, we had total assets of $2.34 billion, net loans held for investment of $1.50 billion, deposits of $2.07 billion, and shareholders’ equity of $51.2 million. At December 31, 2010, we had total assets of $2.49 billion, net loans held for investment of $1.54 billion, deposits of $2.13 billion and shareholders’ equity of $58.8 million.

We have a network of 20 bank branches and nine stand-alone lending centers located in the Puget Sound, Olympia, Vancouver and Spokane regions of Washington, the Portland and Salem regions of Oregon, and the Hawaiian Islands of Oahu, Maui and Hawaii. Our bank branches have average deposits per branch of $106.5 million as of March 31, 2011. WMS provides point-of-sale loan origination services through 44 Windermere Real Estate offices in Washington and Oregon.

We operate four primary lines of business: Community Banking, Single Family Lending, Income Property Lending and Residential Construction Lending.

Community Banking . We provide diversified financial products and services to our consumer and business customers, including deposit products, investment products, insurance products, cash management services and consumer and business loans.

Single Family Lending . We originate, sell and service residential mortgage loans both directly and through our relationship with WMS. We also originate and service loans for our portfolio on a selective basis.

Income Property Lending . We originate commercial real estate loans with a focus on multifamily lending through Fannie Mae’s DUS program. These loans are sold to or securitized by Fannie Mae, and we generally retain the right to service them. We also originate commercial real estate construction, land, bridge and permanent loans for our own portfolio.

 

 

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Residential Construction Lending . We originate residential construction and land development loans primarily for our own portfolio.

Recent Developments

As the economic downturn began in late 2007 and continued into mid-2009, our business experienced a series of interrelated negative events, the combination of which led to significant operating losses that diminished our capital and weakened our financial condition. During this period, home prices and the volume of home sales decreased significantly along with occupancy and rental rates on commercial real estate. Related declines in the value of residential and commercial real estate, especially residential land and finished lots, significantly impacted the economic viability of many of our borrowers’ construction projects and investments and reduced the value of our collateral.

The impact of the foregoing events on our asset quality, results of operations, financial condition and regulatory capital ratios has been severe. Our classified assets increased from $114.8 million at December 31, 2007 to a peak of $759.7 million at June 30, 2009 and nonperforming assets increased from $35.7 million at December 31, 2007 to their peak of $482.0 million at December 31, 2009. For the years ended December 31, 2010 and December 31, 2009, we recognized net losses of $34.2 million and $110.3 million, respectively. Additionally, despite our efforts to decrease total assets to mitigate the impact of losses on our regulatory capital ratios, our Tier 1 and total risk-based capital ratios fell from 9.0% and 11.2% at December 31, 2007, to 4.5% and 8.5% at December 31, 2009, respectively.

As a result of the deterioration in our asset quality, operating performance and capital adequacy, on May 8, 2009, we entered into an agreement with HomeStreet Bank’s primary banking regulators, the Federal Deposit Insurance Corporation, or FDIC, and the Washington State Department of Financial Institutions, or DFI, pursuant to which we consented to the entry of an Order to Cease & Desist from certain allegedly unsafe and unsound banking practices. On May 18, 2009, we entered into a similar agreement with HomeStreet, Inc.’s primary regulator, the Office of Thrift Supervision, or OTS. We refer to the Order to Cease & Desist with the FDIC and DFI as the Bank Order, the Order to Cease & Desist with the OTS as the Company Order, and to the Bank Order and Company Order collectively as the Orders. Among other things, the Orders directed us to increase our capital to certain specified levels, improve management, reduce classified assets and improve earnings.

Pursuant to the Company Order, the Company has agreed, among other things, to refrain from engaging in all unsafe and unsound practices that have resulted in the Company’s low earnings and inadequate capital. The Company Order does not contain specific minimum capital ratios or asset quality measures.

Pursuant to the Bank Order, the Bank was directed, among other things, to have and maintain a Tier 1 capital ratio that equals or exceeds 10% and a total risk-based capital ratio that equals or exceeds 12% by October 5, 2009, as well as to develop and adopt a plan to reduce the Bank’s exposure to adversely classified assets.

The Bank has not yet satisfied the capital ratios mandated by the Bank Order. This offering is intended to help us satisfy these requirements. As of March 31, 2011, the minimum amount of additional capital necessary to satisfy the capital ratio requirements of the Bank Order was $132.2 million.

While we have implemented a plan for the Bank to reduce loans classified as “substandard” or “doubtful” as of December 31, 2008, to which the FDIC and DFI issued a letter of nonobjection, the Bank did not achieve the target reduction of classified assets to 40.0% of Tier 1 capital plus allowance for loan losses by February 28, 2010, primarily due to lower than projected capital. As of February 28, 2010 that ratio was 91.6%. As of March 31, 2011, our ratio of remaining substandard and doubtful assets was 45.1% of Tier 1 capital plus allowance for loan losses.

 

 

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The Bank has taken several other actions to comply with the requirements of the Bank Order including:

 

   

retained a new Chief Executive Officer and other senior management who possess the qualifications, experience and proven ability to manage a bank of comparable size and experience in upgrading a low-quality loan portfolio, raising capital and improving earnings;

 

   

enhanced the infrastructure for the Bank’s credit administration functions; and

 

   

implemented revised lending, loan concentration and collection policies and procedures.

Similarly, HomeStreet, Inc., is not in compliance with the Company Order’s requirement to increase capital. But for the exceptions noted above, we believe that we are in compliance in all material respects with the Orders.

We have reviewed with our regulators the parameters of this offering and the proposed accelerated asset resolution plan, or “AARP,” including pro forma capital ratios and asset quality measures. Based on those discussions, we believe the actions taken to date, together with the successful completion of this offering and the subsequent contribution of $150.0 million of the proceeds to the Bank, followed by implementation of the AARP, will satisfy the requirements of the Orders. See “ — Turnaround Plan” and “Business — Turnaround Plan — Recapitalize the Company — Accelerated Asset Resolution Plan.” We expect to continue to incur operating losses in the near term, but if we incur higher than anticipated operating losses or experience further deterioration in asset quality, the proceeds of the offering and the results of the AARP may not be sufficient to satisfy the capital ratio and asset quality requirements of the Orders.

The Orders and material actions taken to date are described in more detail under “Regulation and Supervision — Cease and Desist Orders.”

Management Changes

In light of the then-prevailing economic conditions confronting our organization and to develop and implement a bank turnaround strategy, the boards of directors of the Company and the Bank recruited and retained a new executive management team. Starting in August of 2009, we added the following executives:

Mark K. Mason , Director, Chief Executive Officer and President of HomeStreet, Inc.; Director, Chairman of the Board, Chief Executive Officer and President of HomeStreet Bank . Mr. Mason has over 25 years of experience in credit, lending, operations and finance. A substantial portion of Mr. Mason’s career has been spent resolving or recapitalizing troubled institutions, restructuring operations and upgrading troubled loan portfolios. Since joining the Company in late 2009, Mr. Mason has led the Company’s significant turnaround. Prior to that, Mr. Mason has served as an executive officer, director and consultant to banks and mortgage companies, most significantly as the chairman of the board, chief executive officer and chief lending officer of Fidelity Federal Bank.

David E. Hooston , Executive Vice President and Chief Financial Officer of HomeStreet, Inc. and HomeStreet Bank. Mr. Hooston has over 30 years of experience in the financial services industry. He has extensive experience in turning around troubled institutions, raising public and private capital and negotiating and executing mergers and acquisitions. Mr. Hooston has served as president and chief operating officer, chief financial officer and as a director of banks and bank holding companies including Placer Sierra Bancshares, Belvedere Capital Partners, LLC and ValliCorp Holdings, Inc.

Jay C. Iseman , Executive Vice President and Chief Credit Officer of HomeStreet, Inc. and HomeStreet Bank . Mr. Iseman has 20 years of credit management experience at major national banks in commercial and real estate lending. This includes significant experience in troubled loan workouts, special assets and credit administration.

 

 

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Prior to joining the Bank, Mr. Iseman served as a senior vice president and senior portfolio manager of commercial special assets with Bank of America.

Godfrey B. Evans, Executive Vice President, General Counsel, Chief Administrative Officer and Corporate Secretary of HomeStreet, Inc. and HomeStreet Bank . Mr. Evans has 29 years of experience in banking and corporate securities law, including significant roles in the recapitalization and restructuring of financial institutions. Mr. Evans is an experienced public company general counsel. Prior to joining the Company, Mr. Evans served as the general counsel, chief administrative officer and corporate secretary to Fidelity Federal Bank and prior to that was a corporate lawyer for Gibson, Dunn & Crutcher, LLP in Los Angeles.

Turnaround Plan

Under the leadership of our new management team, we have implemented a plan to stabilize and turn around the institution. The principal elements of this plan are to improve asset quality, upgrade our credit culture, restructure the balance sheet, improve core earnings, control noninterest expense, maintain satisfactory regulatory relations and recapitalize the Company. Notwithstanding the progress we have made under our turnaround plan, there can be no assurance that we can successfully execute the remaining aspects of our plan with favorable results or within the scheduled timeline.

Improve Asset Quality and Upgrade Credit Culture

We have addressed the risks that contributed to the deterioration in our asset quality and earnings, including reducing and limiting loan concentrations in higher risk loan types and market segments where we have continuing concerns about deterioration in collateral values. Since 2007, we have dramatically curtailed most types of lending in response to deteriorating economic conditions and in order to preserve regulatory capital ratios. We have also implemented or are implementing a number of additional measures aimed at improving our asset quality, including:

 

   

Aggressively managing troubled loans . Where appropriate, we have restructured loans to improve our position, including negotiated principal reductions and additional collateral, aggressively collected on loans and guaranties, and obtained and enforced writs of attachment on bank accounts and personal property when necessary. Where restructuring has proven impossible or impracticable, we have negotiated deeds in lieu of foreclosure or have foreclosed on real property.

 

   

Actively marketing and selling other real estate owned (“OREO”) . We have actively marketed and sold OREO to end users, such as developers and investors, who make direct and immediate use of such properties. We have generally avoided selling to financial buyers or other intermediaries who typically hold properties for a limited period of time and who do not usually improve or add value to the properties.

 

   

Restructuring our credit administration and approval infrastructure . We restructured our credit administration infrastructure to create more oversight at the board level and to better manage our loan approval process and credit exposure. We hired a Chief Credit Officer and centralized all credit approval, administration and portfolio monitoring functions under his authority. We also established a special assets department of our credit administration group to manage troubled loans and OREO.

 

   

Upgrading our underwriting policies and procedures . We revised our lending policies and procedures to reflect more conservative underwriting standards, such as lower loan-to-value ratios, increased cash equity requirements and debt service coverage, lower maximum loan sizes, more restrictive financial covenants, including total debt, leverage and minimum cash flow, minimum net worth, liquidity and experience requirements, lower loan-to-one borrower limits, global financial reviews of borrowers and their credit histories and use of inter-creditor agreements when appropriate.

 

 

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Balance Sheet Restructuring and Core Earnings Improvement

We are restructuring our balance sheet by increasing loan yields, extending the duration of our investment securities and diversifying our credit risk by reducing the relative size and concentration of our loan portfolio in residential construction and land loans. In addition, because our net interest margin had been negatively affected by variable rate loans originated without interest rate floors, management has instituted interest rate floors upon the renewal, restructuring or origination of new loans. Between September 30, 2009, and March 31, 2011, loans without interest rate floors have decreased by $789.0 million, or 78.2%.

We have also focused on reducing our noncore funding and improving our core deposit base. As the banking system began to stabilize in 2009, we began moving to a more normalized liquidity management and investment strategy, reducing noncore deposits and wholesale funding while retaining and increasing core deposit balances and customers. Between September 30, 2009 and March 31, 2011, advances from the Federal Home Loan Bank of Seattle, or FHLB, and brokered deposits have decreased from $1.01 billion to $175.9 million. This funding has been generally replaced with retail deposits or retired with proceeds from the sales of investment securities. The composition of our deposit portfolio continues to improve. We have initiated marketing strategies to attract and retain relationship-based customers and eliminate rate-sensitive time deposit customers, which has the dual effect of creating a more stable funding base representative of a relationship-based institution and helping us return to a more normalized liquidity profile. Between September 30, 2009, and March 31, 2011, core deposits consisting of checking, savings and certificates of deposits with balances less than $250,000 have increased from 72.0% of total deposits to 83.8% of total deposits.

Improving our deposit mix and increasing loan yields have significantly improved our net interest margin. Our net interest margin has increased from 0.85% for the quarter ended September 30, 2009 to 2.17% for the quarter ended March 31, 2011.

Controlling Noninterest Expense

We have experienced, and we expect in the near term to continue to experience, higher than normal noninterest expense associated with loan resolution activities, dispositions of OREO, increased deposit insurance costs and efforts associated with compliance with the Orders. However, during this time we have reduced other core banking compensation and general and administrative expenses by streamlining operations and reducing unnecessary staff, freezing salaries, temporarily suspending our 401(k) match and reducing travel and entertainment budgets. Going forward, we plan to manage future changes in all noninterest expense categories based on changes in revenue growth, reductions in problem assets and removal of the Orders. Upon satisfaction and removal of the Orders, we anticipate lower regulatory-related expenses, deposit insurance assessments, professional fees, and time devoted by management and staff to the compliance with the Orders.

Maintain Satisfactory Regulatory Relations

Maintaining the confidence of our regulators is an integral part of our turnaround plan. Beginning in the fourth quarter of 2009, management initiated monthly conference calls with our regulators to present and discuss progress on management changes, problem asset reduction, capital adequacy, interest rate risk, liquidity maintenance, funding restructuring and earnings. These meetings have produced transparency in our relationship with our regulators and have facilitated current reporting of the status of management’s turnaround plan.

Recapitalize the Company

Upon the successful completion of this offering and after contributing $         million of the net proceeds of this offering to the Bank, we believe that we will have the capital necessary to meet the requirements of the Orders, address our remaining asset quality issues, and be positioned to take advantage of what we believe are substantial business opportunities in our target markets. The Bank is required by the Bank Order to maintain a

 

 

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Tier 1 capital ratio of at least 10% and a risk-based capital ratio of at least 12%. Our pro forma capital ratios will be in excess of the minimum levels to be considered “well capitalized” by our regulators. The table below presents the Bank’s Tier 1 leverage and total risk-based capital ratios, as of March 31, 2011, both actual and on a pro forma basis giving effect to the anticipated contribution to the Bank of $150.0 million from the proceeds of this offering, as well as the Company’s consolidated pro forma capital ratios reflecting the condition of both the Bank and the Company after giving effect to such events, but without giving effect to the accelerated asset resolution plan described below. It also compares our ratios to the median ratios of peer banks in the Pacific Northwest with assets greater than or equal to $1.0 billion.

 

     Bank
Actual
    Pro Forma
Bank(1)
    Peer
Median
    Well
Capitalized
 

Tier 1 Leverage Capital Ratio

     4.5     10.7     11.0     5.0

Total Risk-Based Capital Ratio

     8.3     19.5     18.3     10.0

 

(1) Reflects an anticipated contribution to the Bank of $150.0 million from the proceeds of this offering. Actual contribution will be based upon management’s assessment of the amounts needed to comply with the capital adequacy provisions of the Bank Order.

Third Party Loan Review . In preparation for this offering, and to provide an independent assessment of the adequacy of our allowance for loan losses, confirm the accuracy and timeliness of our asset classifications, and assess the accuracy of management’s carrying values of our loan portfolio and other real estate owned, or “OREO,” we retained Unicon Financial Services, Inc., an independent third-party loan review consultant. As of March 31, 2011, and without giving effect to the AARP, Unicon reviewed a sample of our loan portfolio with a particular focus on our largest and highest-risk loans. Unicon reviewed approximately 81% of our commercial and commercial real estate loans, as well as 86% of our OREO, including 100% of “pass” graded loans in excess of $2.5 million and 100% of adversely classified loans in excess of $1.0 million. Additionally, Unicon performed a macroanalysis of our single family loan and home equity loan portfolios. Based upon this review, Unicon reported that management’s allowance for loan losses as of March 31, 2011 was adequate; that our current risk rating system was reasonable and accurately reflects the significant risks associated with individual credits; and that the collateral values used in estimating the carrying values of our loans and OREO were materially correct.

Accelerated Asset Resolution Plan. An important component of our turnaround plan is an accelerated reduction of credit and market risk in our loan and OREO portfolios. By accelerating the resolution of problem assets, we believe that we can more quickly return to normalized profitability and provide greater certainty as to the cost and timing of resolving problem assets. Additionally, the accelerated asset resolution plan, which we refer to as the “AARP,” is intended to reduce management resources devoted to problem asset resolution, allow management to focus on executing our business plan, and accelerate reductions of direct and indirect costs of credit administration, problem asset management and regulatory compliance. These objectives are consistent with the requirements contained in the Orders, which require that the Bank reduce its risk exposure in adversely classified assets.

Contingent upon the successful completion of this offering, we expect to adopt the AARP to resolve a pool of problem assets that will be selected upon adoption of the AARP, which we refer to collectively as the “AARP Pool,” through a range of alternative methods and strategies for collection, default management and asset disposition. The AARP reflects acceleration in estimated timing of resolution of assets within the AARP Pool, resulting from a change in recovery methods from those which would be anticipated in the ordinary course of business. These methods may include restructuring loan terms, forgiving principal and/or interest, selling individual loans or loan pools, permitting short sales, negotiating compromises of guaranties and deeds in lieu of foreclosure, and selling OREO at discounts to fair value. These methods are outside of our normal collection, default management and asset resolution process and by their nature will expedite the resolution of the AARP Pool of assets and increase the losses we would otherwise incur to resolve these assets. We plan to resolve all AARP assets in a 90- to 180-day period after completion of this offering.

 

 

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To identify problem assets that might be included in the AARP Pool, we considered all classified assets as of March 31, 2011, and selected individual assets that we believe will not qualify for upgrading to an unimpaired, non-classified status in the near term. We also included all OREO except those properties subject to sales agreements that we believe will close at agreed upon prices, and except for foreclosed single family homes, which we excluded because we have historically sold these OREO properties at market prices in a relatively short period of time after foreclosure and control of the properties.

Contingent upon the successful completion of this offering, and as a consequence of adoption of the AARP, we expect to record loan and OREO portfolio valuation charges totaling $                 million, of which $                 million would be recorded as additional loan loss provisions and $                 million would be recorded as OREO valuation losses and which would address a pool of assets valued at                  million as of March 31, 2011.

AARP Pool loan valuation charges and existing asset specific reserves would represent                 % of the net carrying value of those loans as of March 31, 2011. AARP Pool OREO charges represent                 % of the net carrying value of OREO as of that date. These valuation charges are intended to represent our estimated additional losses that we would expect to recognize as a consequence of adopting and executing the AARP and reflect amounts that we believe would be realized by us in selling a otherwise resolving these loans as of March 31, 2011. Our estimates of losses under the AARP do not impact our current carrying values because the AARP loss estimates are based on valuation methodologies that assume significant concessions which would not be granted unless and until the AARP is adopted.

The actual AARP Pool, and losses to be recognized to resolve these assets, will differ from our estimates. The final pool of assets and the actual charges recognized will depend on many factors including the final size of the AARP Pool at the date of adoption of the AARP. Assets identified for inclusion in the AARP Pool may change prior to adoption of the AARP, as we will continue to resolve problem assets in the ordinary course of business, and some AARP Pool assets will be resolved prior to adoption of the AARP. Additionally, in the ordinary course of resolving problem assets, we may incur some of the losses that we expect to recognize upon adoption of the AARP.

In estimating the recovery values of AARP Pool loans, we excluded any potential recoveries or contributions from loan guarantors. As such, the resulting valuations are recovery estimates based on the real estate collateral only. We also did not include the tax benefit we believe will result from the implementation of the AARP. We currently estimate that the operating losses that will be triggered by implementing the AARP will generate tax benefits of approximately $                 million, the ultimate realizable value of which will depend, among other things, on our ability to generate future taxable income against which such losses may be offset.

We cannot offer assurances that the AARP valuation charges will be sufficient to absorb the losses that actually will be realized as a consequence of executing the AARP or that additional loan or OREO loss provisions will not be required on the AARP Pool assets in the future.

 

 

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The pro forma impacts of the AARP on certain HomeStreet Bank financial metrics are reflected in the table below, including actual results as of March 31, 2011, and on a pro forma basis giving effect to the completion of this offering and the adoption of the AARP, as well as on a pro forma basis giving effect to the completion of this offering and the completion of the AARP, in each case assuming the completion of such events as of March 31, 2011:

Asset Quality Measures

 

     HomeStreet
Bank

March 31,  2011
    Pro forma
upon Completion
of the Offering
and Adoption
of AARP
    Pro forma Post
Closing of the
Offering and
Completion of
AARP
 

Classified Assets/Total Assets

     12.8                                  

Classified Assets/Tier 1 Capital Plus Allowance for Loan Losses

     175.9                                  

Nonperforming Assets/Total Assets

     9.6                                  

Nonperforming Assets/Tier 1 Capital Plus Allowance for Loan Losses

     131.3                                  

Allowance for Loan Losses/Nonperforming Loans

     50.1                                  

Classified Assets

   $ 298,741      $        $     

Nonperforming Assets

     222,981       

Total Assets

     2,324,831       

Tier 1 Capital

     107,664       

Allowance for Loan Losses

   $ 62,156      $        $     

Selected Turnaround Plan Results

As illustrated below, we believe that as a direct result of the effective execution of certain elements of our turnaround plan, described above, we have made significant progress to date toward reducing our credit risk and improving our financial condition and results of operations. We believe part of this success is demonstrated by our results of operations, which have improved from a net loss of $110.3 million in 2009 to a net loss of $14.4 million in the three months ended December 31, 2010 and a net loss of $34.2 million in 2010. For the three months ended March 31, 2011 we incurred a net loss of $7.4 million as compared to a net loss of $5.1 million in the three months ended March 31, 2010.

The following selected turnaround results reflect improvements since September 30, 2009, which coincides with the commencement of our turnaround plan.

 

     Three Months Ended  
     $ Thousands  
     31-Mar-11     31-Dec-10     30-Sep-09  

Total Construction Loans

   $ 271,676      $ 285,131      $ 733,394   

Provision for Loan Losses

            8,200        35,555   

Classified Assets

     298,741        363,947        737,925   

Nonperforming Loans

     124,118        113,210        388,663   

OREO

     98,863        170,455        63,321   

Nonperforming Assets

     222,981        283,665        451,984   

Total Delinquencies and Nonaccruing Loans

     188,013        178,286        495,168   

Total Assets

     2,342,639        2,485,697        3,224,464   

Nonperforming Assets/Total Assets

     9.5     11.4     14.0

Nonperforming Loans/Loans

     7.94     7.06     17.7

Total Delinquencies and Nonaccruing Loans/Loans

     12.0     11.1     22.6

 

 

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     Three Months Ended  
     $ Thousands  
     31-Mar-11     31-Dec-10     30-Sep-09  

Net Interest Margin

     2.17     2.34     0.85

Operating Efficiency Ratio*

     83.31     69.51     116.01

 

* We include an operating efficiency ratio which is not calculated based on accounting principles generally accepted in the United States (“GAAP”), but which we believe provides important information regarding our result of operations. Our calculation of the operating efficiency ratio is computed by dividing noninterest expense less costs related to OREO (gains (losses) on sales, valuation allowance adjustments, and maintenance and taxes) by total revenue (net interest income and noninterest income). Management uses this non-GAAP measurement as part of its assessment of performance in managing noninterest expense. We believe that costs related to OREO are more appropriately considered as credit-related costs rather than as an indication of the operating efficiency of the Company. The following table provides a reconciliation of non-GAAP to GAAP measurement.

 

     Three Months Ended  
     31-Mar-11     31-Dec-10     30-Sep-09  

Efficiency ratio

     128.42     111.77     123.66

Less impact of OREO expenses

     45.11     42.26     7.65
                        

Operating efficiency ratio

     83.31     69.51     116.01

Our Growth Strategy

Our growth strategy is comprised of the following:

Integrated Consumer and Business Financial Services Delivery Strategy

Our community banking strategy involves the development of an integrated consumer and business financial services delivery platform. We seek to meet our customers’ financial services needs by providing consumer and business banking products, investment advice and products, and insurance products through our bank branches and our dedicated investment advisors, insurance agents and business banking officers. We have historically offered a limited line of investment, cash management and insurance products; however, we are currently in the process of significantly enhancing and expanding our products and services by:

 

   

expanding our investment product offerings through a third-party broker dealer, building a staff of dedicated investment advisors and sales representatives and licensing additional qualified branch personnel for annuity sales;

 

   

enhancing our business cash management service offerings and building a team of business cash management sales and support personnel; and

 

   

expanding our insurance product offerings and further integrating sales of these products into our consumer and business financial advisory activities.

Expand Core Deposit Base

We plan to grow our consumer core deposit base through limited media advertising, effective deposit product design, account cash incentives, cash referral bonuses and relationship incentives. To attract new business customers, we offer money market and business savings accounts as well as a competitive array of cash management products and services.

Our growth strategy will be limited by our regulatory status, which generally would preclude us from obtaining the required consent from the FDIC and the DFI in order to open new bank branches. However, once the Orders are lifted, we intend to expand our bank branch network to support core deposit growth, expand our consumer and business financial services customer base and increase access to our services and products for our current customers. We may also open additional stand-alone loan production offices to support growth in our single family lending and income property lending businesses.

 

 

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Business Banking Growth

During our turnaround, we have focused on retaining our existing customers and developing new deposit-oriented customer relationships. As the economy improves, we believe we will be well positioned to attract new middle-market business customers requiring commercial business and owner-occupied real estate loans. The number of competitors for middle-market business customers has decreased since the economic downturn as a result of bank failures and market consolidation. In recent years, national banks have focused on larger customers in order to achieve economies of scale in lending and depository relationships and have also consolidated business banking operations and support and reduced service levels in the Pacific Northwest. Additionally, high levels of problem loans at many local banks combined with low levels of capital have significantly impaired competitors’ capacity to make new loans.

New loan demand is generally weak because of the economic downturn and has resulted in increased competition for good customers in spite of industry consolidation. However, as the economy improves and new loan demand increases, we believe our community banking focus will distinguish us from our competitors because we are able to offer quicker, local decision making and to provide customers with direct access to our senior managers. At the same time, our larger capital base and broader offering of products and services will enable us to compete effectively against smaller banks. As a result, we believe we have a substantial opportunity to attract additional borrowers and depositors and expand our presence and market share, especially in the high-growth Puget Sound area.

Single Family Mortgage Origination and Servicing Portfolio Growth

During the real estate boom of 2004 through 2007, we maintained our historical focus on originating conforming conventional and FHA and VA loans for sale in the secondary market while supplementing those products with some portfolio lending. Our adherence to traditional credit standards limited our loan originations during the peak of the expansion of the subprime and option adjustable rate mortgage lending boom, and we lost market share to competitors during this time. However, our conventional conforming mortgage banking expertise positioned us to expand our originations when market conditions changed as a result of the tightening of lending standards and the market’s reliance on government sponsored entities and agencies for secondary market liquidity. As a result, we have grown our single family origination and servicing business substantially since 2007. We originated $1.43 billion, $1.53 billion, $1.45 billion and $1.57 billion in home loans in 2004, 2005, 2006 and 2007, respectively, followed by $1.74 billion, $2.73 billion and $2.07 billion in 2008, 2009 and 2010, respectively. Because we retain servicing rights on substantially all of the single family residential mortgages that we sell into the secondary markets, our portfolio of single family loans serviced for others has grown significantly during this period and stood at $6.34 billion at December 31, 2010.

We intend to grow our market share and continue to focus on conventional conforming single family mortgage banking and use portfolio lending to complement, but not replace, secondary market lending, particularly for well qualified borrowers with loan sizes greater than the conventional conforming limits. In addition, we plan to open a correspondent lending channel and to increase our Internet-based lending.

Multifamily Mortgage Banking Growth

As market conditions improve we plan to grow our multifamily mortgage banking business, particularly through our status as an approved Fannie Mae Delegated Underwriting and Servicing, or “DUS,” lender. We expect to expand beyond our current markets by forming strategic alliances with producers and underwriters in the Western Region of the United States.

We intend to expand our multifamily residential mortgage lending business by targeting strong apartment markets and experienced borrowers with whom we have had prior working relationships. We expect to continue

 

 

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to benefit from being one of approximately 25 companies nationally that is an approved Fannie Mae DUS lender. The Fannie Mae DUS program has become a key multifamily funding source nationally due to the turmoil in the financial services industry and the resulting loss of other financing sources. We have historically supported our DUS program by providing short-term bridge loans to experienced borrowers who purchase apartment buildings for renovation, which we would then seek to replace with permanent takeout financing through the Fannie Mae DUS program upon completion of the renovations. As market conditions warrant, we will also originate for our portfolio permanent loans and construction loans.

Strategic Acquisitions

The economic downturn and related banking crisis have led to increased regulatory and compliance burdens, management fatigue and limited access to capital. As a result, we anticipate there will be opportunities to acquire smaller institutions in the Pacific Northwest that would enhance our franchise and complement our branch network. Following this recapitalization, we may consider such strategic opportunities to acquire other institutions or branches. We may need to raise more equity or additional capital to implement this strategy.

Competitive Strengths

The Bank has a number of competitive strengths and advantages that position the institution for continued growth.

Established and Well-respected Seattle-based Franchise

We have developed a footprint in the Pacific Northwest, including the highly attractive Puget Sound region in Washington and the greater Portland region in Oregon, as well as selected markets in Hawaii. Through our 90-year history, we have developed a highly skilled and dedicated workforce who understand our business and have long-standing relationships with our customers. Furthermore, we have a strong tradition of involvement in our communities, and promote management participation in charitable, civic and social organizations that we believe enhance the visibility and reputation of the HomeStreet brand in our target markets. We are a leading single family mortgage originator in the markets we serve. For example, according to MortgageDataWeb , www.mortgagedataweb.com, in the Seattle area we had market share rankings of #8 and #6 among originators of conventional and government-sponsored loan programs, respectively, in 2010.

Experienced and Talented Management Team

We have assembled an executive management team that possesses significant depth of knowledge and expertise in bank turnaround situations and in operating and growing community banks. Additionally, the Bank has significant depth and experience in its senior management ranks. The five senior managers in our lending units average 33 years of industry experience and average 25 years with the Bank. In our mortgage banking units, each of the managers has built strong working relationships with our investor partners, particularly Fannie Mae. Three managers currently serve on four of Fannie Mae’s primary advisory boards and councils. Our Retail Banking Director has 32 years of industry experience, including 26 years with the Bank. Our Chief Credit Officer, Risk & Regulatory Oversight Director and Treasurer have an average of 24 years of industry experience and 11 years on average with the Bank.

Disciplined Underwriting and Credit Culture

Since 2008, we have made significant modifications to our credit policies and procedures designed to foster disciplined underwriting practices and create a strong credit culture. Our CEO has significant credit management

 

 

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experience, and we have bolstered our credit and underwriting expertise at the board and management levels. We have restructured our credit administration infrastructure to create more oversight at the board level and better manage our loan approval process and credit exposure and have centralized all credit approval, administration and portfolio monitoring functions under the authority of our Chief Credit Officer. We have also revised our lending policies and procedures to reflect more conservative underwriting standards, such as lower loan-to-value ratios and increased cash equity and debt service coverage requirements.

Significant Sources of Noninterest Income

Our noninterest income is substantially higher than traditional banks.

 

   

Highly Profitable Single Family Mortgage Origination and Servicing Business . Throughout the economic downturn, our mortgage origination and servicing business has provided us with a continuing source of profitability and internal capital generation. In 2009, we generated higher relative retail origination revenue per loan (338 basis points) compared to a peer group of regional banks and exceeded the average for independent and large lenders participating in a study conducted by MBA/STRATMOR. Additionally, the study also shows our retail net origination income per loan (161 basis points) was the highest among our peer group and significantly exceeded the average for all independent and large lenders. Our mortgage banking expertise has positioned us well to take advantage of current market conditions. HomeStreet has been primarily a conventional conforming loan originator, making mortgage loans conforming to Fannie Mae, Freddie Mac, and FHA and VA guidelines, supplemented by a small menu of portfolio products. As noted earlier, the Bank has the oldest continuous relationship of all Fannie Mae seller-servicers in the nation. We have been an FHA-approved lender continuously since 1937 and a VA approved lender continuously since that program was founded in 1944. We possess the product expertise and servicing infrastructure to originate and service government guaranteed loans and specialized products such as 203(k) rehabilitation loans and Department of Hawaiian Home Lands loans that require specific product knowledge and servicing expertise. The Bank derives significant competitive benefits from the scale and longevity of WMS, its joint venture with Windermere Real Estate (“Windermere”), the largest real estate brokerage company in the Pacific Northwest by sales volume. A primary benefit is the diversification of loan origination capabilities through mortgage consultants located in Windermere real estate offices, who can reach potential purchase customers and referral sources early in the home-buying process. We also benefit from increased loan production, which improves the efficiency and profitability of our mortgage origination infrastructure and helps us achieve better pricing and terms with Fannie Mae, Freddie Mac and other correspondent lenders. Windermere’s focus on the purchase market adds significantly to volume, loan quality and profits during strong purchase markets.

 

   

Multifamily Mortgage Origination and Servicing Expertise . Our HomeStreet Capital subsidiary was one of the first DUS lenders approved by Fannie Mae and we remain one of only 25 approved lenders nationally. We are the only approved lender headquartered in the Pacific Northwest.

 

   

Growth Opportunity in Fee-Generating Banking Services . We are currently expanding our cash management, investment and insurance product and service offerings. We believe our integrated approach to the delivery of these products and services will enhance customers’ sales experience and enable growth in our customer base and fee revenues.

Compliance Culture

Historically, we have emphasized compliance in all of our activities. In addition to general banking regulations, our single family lending and loan servicing businesses and our investment advisory and product

 

 

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sales businesses are subject to complex regulations. In particular, our single family mortgage and multifamily origination and servicing businesses are highly dependent upon successful compliance with underwriting and servicing guidelines of Fannie Mae, Freddie Mac and Ginnie Mae as well as a myriad of federal and state consumer compliance regulations. Additionally, our significant volume of lending to low- and moderate-income areas and direct community investment contribute to our uninterrupted record of “outstanding” CRA ratings since the inception of the Bank in 1986. The financial services industry generally, and the single family mortgage banking industry in particular, is experiencing consolidation caused, in part, by the ever-increasing operational and cost burden of compliance. We believe our ability to maintain our historically strong regulatory compliance culture and our track record of compliance with regulations and guidelines are significant competitive advantages.

Our Structure

HomeStreet, Inc. was established in 1921 as Continental Mortgage and Loan Company, initially offering financing for commercial real estate and home mortgages. Continental Savings Bank was established in 1986 and changed its name to HomeStreet Bank in 2000. Our activities are conducted through the following consolidated subsidiaries:

LOGO

 

   

HomeStreet, Inc. operates a personal lines insurance agency offering home, auto, life, umbrella, boat, motorcycle, recreational vehicle, earthquake, difference in conditions and notary bond insurance products. It is licensed to do business in Washington and Oregon under the name “HomeStreet Insurance” and is licensed to do business in Hawaii for life insurance only.

   

HomeStreet Bank, a regional state-chartered savings bank headquartered in Seattle, Washington.

   

We hold common securities in four statutory business trusts, which have, in turn, issued trust preferred securities. We have previously commenced tender offers for all of the outstanding trust preferred securities issued by these trusts; however, we recently terminated those tender offers. See “Dividend Policy” below for a further description of the trust preferred securities.

   

HomeStreet Capital Corporation has been selling and servicing multifamily residential loans made through the Fannie Mae DUS program since 2000.

   

Union Street Holdings LLC, a Washington limited liability company holds title to, markets and disposes of real estate acquired through foreclosure.

   

HomeStreet Reinsurance, Ltd. was established in 2000 as a limited-purpose reinsurance company. It is incorporated in the Turks and Caicos Islands and reinsures private mortgage insurance solely with

 

 

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respect to mortgage loans originated by the Bank. We discontinued all new reinsurance business at the end of 2008 and we are monitoring market conditions to determine if and when we will begin writing new reinsurance risk.

   

Continental Escrow Company provides reconveyance services solely for the Bank in connection with deeds of trust on one-to-four family residential loans, or single family residential loans, originated by the Bank.

   

HomeStreet/WMS, Inc. holds a joint venture interest in Windermere Mortgage Services Series LLC, or WMS. The remaining equity interest in WMS is held by certain franchisees of Windermere Real Estate Services Company, the largest real estate brokerage company in the Pacific Northwest by sales volume. Through WMS, we provide point-of-sale loan origination services in 44 Windermere Real Estate offices in Washington and Oregon.

Risk Factors

An investment in our common stock involves certain risks. You should carefully consider the risks described under “Risk Factors” beginning on page 19 of this prospectus as well as other information included in this prospectus, including our financial statements and the notes thereto, before making an investment decision.

Corporate Information

Our principal executive offices are located at 601 Union Street, Suite 2000, Seattle, WA 98101. Our telephone number is (206) 623-3050. Our Internet address is www.homestreet.com. The information on our website does not constitute a part of this prospectus.

 

 

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The Offering

 

Common stock offered

             shares of our common stock(1)

 

Common stock to be outstanding after this offering

             shares of our common stock(2)

 

Price per share of our common stock

$             

 

Use of Proceeds

We estimate that we will receive net proceeds from this offering of approximately $              , assuming no exercise of the over-allotment option and after deducting the underwriters’ discounts and commission and estimated offering expenses payable by us. We intend to contribute approximately $150.0 million of the net proceeds of this offering to the Bank for regulatory capital requirements, loss provision and OREO valuation expenses associated with the AARP, balance sheet growth, expanding operations through new branch offices and the Bank’s general corporate purposes, and to use the remainder for the Company’s general corporate purposes. Readers should note that the actual contribution to the Bank of proceeds from this offering will be an amount management determines to be adequate to bring the Bank into compliance with the capital adequacy provisions of the Bank Order (see “Regulation and Supervision – Cease and Desist Orders – Bank Order”), but that the amount contributed will take into account, among other things, changes in average assets and variations in the Bank’s net income that affect our actual regulatory capital ratios between March 31, 2011 and the completion of this offering. See “Use of Proceeds.”

 

Dividends

We do not intend to pay cash dividends on our common stock in the near future and the Orders prohibit the payment of dividends. Any determination to pay dividends in the future will be at the discretion of our board of directors and will depend upon our earnings, financial condition, results of operations, capital requirements, regulatory restrictions, contractual restriction and other factors that our board of directors may deem relevant. Any dividends paid by us would be subject to various federal and state regulatory limitations as well as the ability of the Bank to pay dividends to us. See “Dividend Policy.”

 

Ownership Restrictions

The acquisition of 10.0% or more of the voting stock of a savings association or its holding company may, under certain circumstances, constitute the acquisition of control under OTS guidelines. An investor wishing to acquire and hold more than 10.0% of our common stock after this offering may be required to file a change of control application with the OTS that would need to be approved before such investor could acquire more than 10.0% of our common stock. See “Description of Capital Stock.”

 

Proposed Nasdaq symbol

We have applied for listing of our common stock on the Nasdaq Global Market under the symbol “HMST.”

 

 

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Risk Factors

Investment in our common stock involves risk. See “Risk Factors” beginning on page  19 and other information included in this prospectus for a discussion of factors you should consider carefully before deciding whether to invest in shares of our common stock.

 

(1) Assumes the underwriter’s option to purchase up to an additional              shares of our common stock to cover over-allotments is not exercised.

 

(2) The number of shares of our common stock to be outstanding after this offering excludes (a) a number of shares equal to 10.0% of the number of our issued and outstanding shares of common stock following the closing of this offering on a fully diluted basis, which shares will be issuable upon exercise of options not yet granted under our 2010 equity incentive plan, and (b) 105,000 shares of our common stock issuable to our non-employee directors under a director equity compensation plan to be implemented following the closing of this offering.

NON-GAAP FINANCIAL MEASURES

In this prospectus, we sometimes use certain non-GAAP financial measures as a supplemental measure of our performance that is not required by, or presented in accordance with, accounting principles generally accepted in the United States (“GAAP”). Examples of non-GAAP measures used in this prospectus include certain profitability, such as operating segment results and interest income on a taxable-equivalent basis, and performance metrics, such as the operating efficiency ratio.

These are not a measurement of our financial performance or condition under GAAP and should not be considered in isolation or as an alternative to net income or any other performance measure derived in accordance with GAAP or as an alternative to cash flows from operating activities as a measure of our liquidity.

Summary Selected Historical Consolidated Financial and Other Data

The following table sets forth selected historical consolidated financial and other data for us at the dates and for each of the periods ended as described below. The selected historical consolidated financial data as and for the three month periods ended March 31, 2011 and 2010 have been derived from our unaudited consolidated financial statements and related notes included in this prospectus. The selected historical consolidated financial data as of December 31, 2010 and 2009 and for each of the years ended December 31, 2010, 2009 and 2008 have been derived from, and should be read together with, our audited consolidated financial statements and related notes included elsewhere in this prospectus. The selected historical consolidated financial data as of December 31, 2008, 2007 and 2006 for each of the years ended December 31, 2007 and 2006 have been derived from our audited consolidated financial statements for those years, which are not included in this prospectus.

You should read the summary selected historical consolidated financial and other data presented below in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our financial statements and the notes thereto, which are included elsewhere in this prospectus. We have prepared our unaudited information on the same basis as our audited consolidated financial statements and have included the adjustments that we consider necessary for a fair presentation of the financial information set forth in that information.

Our historical consolidated financial results may not be indicative of our future performance.

 

 

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     At or for the Three Months
Ended March 31,
    At or for the Year Ended December 31,  
      
     2011     2010     2010     2009     2008     2007     2006  

(in thousands, except share data)

              

Income Statement (for the period ended):

              

Net interest income

   $ 11,590      $ 7,115      $ 39,034      $ 31,502      $ 75,885      $ 90,037      $ 86,779   

Provision for loan losses

     -        7,000        37,300        153,515        34,411        10,955        6,471   

Noninterest income

     14,465        15,734        96,931        59,230        40,346        23,298        19,313   

Noninterest expense

     33,461        20,940        132,215        94,448        70,189        71,253        68,131   
                                                        

Net (loss) income before taxes

     (7,406     (5,091     (33,550     (157,231     11,631        31,127        31,490   

Income taxes

     43        -        697        (46,955     3,202        10,663        10,173   
                                                        

Net (loss) income

   $ (7,449   $ (5,091   $ (34,247   $ (110,276   $ 8,429      $ 20,464      $ 21,317   
                                                        

Basic earnings per common share

   $ (2.21   $ (1.51   $ (10.14   $ (32.65   $ 2.50      $ 6.06      $ 6.30   

Diluted earnings per common share

   $ (2.21   $ (1.51   $ (10.14   $ (32.65   $ 2.50      $ 6.04      $ 6.24   

Shareholders’ equity per share

   $ 15.16      $ 28.53      $ 17.41      $ 27.21      $ 61.03      $ 58.80      $ 53.36   

Dividends per share

   $ -      $ -      $ -      $ -      $ 0.90      $ 0.90      $ 0.85   

Financial position (at period end):

              

Cash and cash equivalents

   $ 170,795      $ 220,468      $ 72,639      $ 217,103      $ 270,577      $ 43,635      $ 53,972   

Investment securities available for sale

     304,404        643,324        313,513        657,840        56,337        111,621        115,327   

Loans held for sale

     82,803        53,280        212,602        57,046        48,636        77,969        67,914   

Loans held for investment, net

     1,500,550        1,907,489        1,538,521        1,964,994        2,425,887        2,428,214        2,067,247   

Mortgage servicing rights (1)

     95,952        83,402        87,232        78,372        57,699        53,422        50,270   

Other real estate owned

     98,863        123,411        170,455        107,782        20,905        1,974        1   

Total assets

     2,342,639        3,169,749        2,485,697        3,209,536        2,958,911        2,793,935        2,428,054   

Deposits

     2,066,842        2,293,093        2,129,742        2,332,333        1,911,311        1,717,681        1,536,768   

FHLB advances

     114,544        674,715        165,869        677,840        705,764        746,386        575,063   

Shareholders’ equity

     51,214        96,365        58,789        91,896        206,103        198,052        180,322   

Financial position (averages):

              

Investment securities available for sale

     141,309        201,937        457,930        372,320        119,720        113,333        133,424   

Loans held for investment

     1,589,182        2,046,590        1,868,039        2,307,215        2,519,811        2,239,639        1,901,996   

Total interest earning assets

     2,145,093        2,956,932        2,642,693        3,056,755        2,762,723        2,435,145        2,103,862   

Total interest bearing deposits

     1,889,742        2,106,716        2,071,237        2,012,971        1,557,533        1,452,742        1,255,402   

FHLB advances

     159,829        375,791        382,083        685,715        734,989        617,225        520,881   

Total interest bearing liabilities

   $ 2,114,062      $ 2,849,547      $ 2,522,767      $ 2,776,163      $ 2,485,786      $ 2,170,807      $ 1,863,969   

Shareholders’ equity

   $ 58,130      $ 94,798      $ 90,732      $ 150,866      $ 199,058      $ 190,590      $ 169,977   

Financial performance:

              

Return on average common shareholder

              

equity (2)

     (51.26 )%      (18.76 )%      (38.00 )%      (68.90 )%      4.23     10.74     12.54

Return on average assets

     (1.25 )%      (0.56 )%      (1.19 )%      (3.47 )%      0.29     0.79     0.96

Net interest margin (3)

     2.17     0.96     1.49     1.04     2.78     3.68     4.16

Efficiency ratio (4)

     128,42     91.65     97.24     104.10     60.39     62.87     64.22

Operating efficiency ratio (5)

     83.31     58.60     73.56     92.55     59.06     62.82     64.17

Credit quality:

              

Allowance for loan losses

   $ 62,156      $ 104,724      $ 64,177      $ 109,472      $ 58,587      $ 38,804      $ 27,834   

Allowance for loan losses/Total loans

     3.98     5.20     4.00     5.28     2.36     1.57     1.33

Allowance for loan losses/Nonperforming loans

     50.08     32.03     56.69     29.25     77.72     114.95     2181.35

Total classified assets

   $ 298,742      $ 525,792      $ 363,947      $ 570,013      $ 376,424      $ 114,797      $ 34,418   

Classified assets/total assets

     12.75     16.59     14.64     17.76     12.72     4.11     1.42

Total nonaccrual loans (6)

   $ 124,118      $ 327,007      $ 113,210      $ 374,218      $ 75,386      $ 33,757      $ 1,276   

Nonaccrual loans/Total loans

     7.94     16.25     7.06     18.04     3.03     1.37     0.06

Total nonperforming assets

   $ 222,981      $ 450,417      $ 283,665      $ 482,000      $ 96,289      $ 35,731      $ 1,277   

Nonperforming assets/total assets

     9.52     14.21     11.41     15.02     3.25     1.28     0.05

Net charge-offs

   $ 2,100      $ 11,748      $ 83,156      $ 101,680      $ 14,628      $ (15   $ 117   

Regulatory capital ratios for the bank:

              

Tier 1 capital to total assets (leverage)

     4.50     4.60     4.50     4.50     8.70     9.00     9.90

Tier 1 risk-based capital

     7.00     7.30     6.90     7.20     10.50     9.90     11.00

Total risk-based capital

     8.30     8.60     8.20     8.50     11.80     11.20     12.30

SUPPLEMENTAL DATA:

              

Loans serviced for others:

              

Single family

   $ 6,521,284      $ 5,911,904      $ 6,343,158      $ 5,820,946      $ 4,695,804      $ 3,775,362      $ 3,389,050   

Multifamily

     784,445        798,907        776,671        810,910        822,512        715,946        729,715   

Other

     58,150        69,392        58,765        69,839        74,230        77,329        53,682   
                                                        

Total loans serviced for others

   $ 7,363,879      $ 6,780,203      $ 7,178,594      $ 6,701,695      $ 5,592,546      $ 4,568,637      $ 4,172,447   
                                                        

Loan origination activity:

              

Single family

   $ 276,894      $ 335,317      $ 2,069,144      $ 2,727,457      $ 1,735,897      $ 1,568,834      $ 1,445,218   

Other

     11,276        27,114        120,058        124,433        817,438        1,332,147        1,650,072   
                                                        

Total loan origination activity

   $ 288,170      $ 362,431      $ 2,189,202      $ 2,851,890      $ 2,553,335      $ 2,900,981      $ 3,095,290   
                                                        

 

 

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(1) On January 1, 2010, we elected to carry mortgage servicing rights related to single family loans at fair value, and elected to carry single family mortgage loans held for sale using the fair value option.

 

(2) Net earnings (loss) available to common shareholders divided by average common shareholders’ equity.

 

(3) Net interest income divided by total average earning assets on a tax equivalent basis.

 

(4) The efficiency ratio is noninterest expense divided by total revenue (net interest income and noninterest income).

 

(5) We include an operating efficiency ratio which is not calculated based on accounting principles generally accepted in the United States (“GAAP”), but which we believe provides important information regarding our result of operations. Our calculation of the operating efficiency ratio is computed by dividing noninterest expense less costs related to OREO (gains (losses) on sales, valuation allowance adjustments, and maintenance and taxes) by total revenue (net interest income and noninterest income). Management uses this non-GAAP measurement as part of its assessment of performance in managing noninterest expense. We believe that costs related to OREO are more appropriately considered as credit-related costs rather than as an indication of our operating efficiency. The following table provides a reconciliation of non-GAAP to GAAP measurement.

 

    At or for the
Three Months
Ended March 31,
    At or for the Year Ended December 31,  
      2011         2010       2010     2009     2008     2007     2006  

Efficiency ratio

    128.42     91.65     97.24     104.10     60.39     62.87     64.22

Less impact of OREO expenses

    45.11     33.04     23.68     11.55     1.33     0.05     0.05
                                                       

Operating efficiency ratio

    83.31     58.60     73.56     92.55     59.06     62.82     64.17

 

(6) Generally, loans are placed on nonaccrual status when they are 90 or more days past due.

 

 

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RISK FACTORS

An investment in our common stock is speculative and involves a high degree of risk. The risks described below represent some of the material risks you should carefully consider before making an investment decision. If any of these risks occur, our business, capital, liquidity, financial condition and results of operations could be materially and adversely affected, in which case the price of our common stock could decline significantly and you could lose all or a part of your investment. The risk factors described below are not the only risks that may affect us. Additional risks and uncertainties not presently known to us, or that we currently deem immaterial, may also become important factors that materially adversely affect our business, capital, liquidity, financial condition and results of operations. You should carefully consider the following risk factors, together with the other information contained in this prospectus, before purchasing our common stock.

Risks Related to our Business

We are operating under cease and desist orders from the OTS, the FDIC and the DFI that prohibit us, among other things, from paying dividends without the consent of our regulators and that place other limitations and obligations on the Company and Bank. We are not in full compliance with the Bank Order, and noncompliance may subject us to additional enforcement action.

On May 8, 2009, the Bank consented to the issuance by the FDIC and the DFI of a supervisory order, which we refer to as the Bank Order, following a review of the Bank’s financial and lending data. The Bank Order alleges that the Bank had engaged in certain unsafe or unsound banking practices and had violated federal and state law and/or regulations, and orders the Bank to cease and desist from certain practices relating to poor management, inadequate board oversight, inadequate liquidity and capital for our assets, excessive poor quality loans, operating losses and failure to comply with certain laws or regulations.

The Bank Order places certain restrictions on the Bank, including, but not limited to, prohibiting cash dividends and limiting our ability to solicit or renew brokered deposits and to extend additional credit to borrowers who have outstanding, uncollected loans or credit agreements that have been charged off or classified as a “loss.” Additionally, the Bank cannot extend additional credit to any borrower with outstanding, uncollected loans or credit agreements that have been classified as “substandard” or “doubtful” without prior approval of a majority of the Bank’s board of directors or the credit committee of the board. Moreover, the Bank Order requires the Bank to adopt and adhere to certain policies relating to, among other things, reduction of classified assets and reliance on noncore funding sources.

The Bank Order also requires the Bank to take certain affirmative actions, including, but not limited to, increasing the Bank’s Tier 1 and risk-based capital ratios to specified levels, improving lending and collection policies, reducing outstanding commercial real estate and acquisition, development and construction loans, reducing the level of classified assets, and retaining qualified management. At March 31, 2011, the Bank was not in compliance with the Bank Order in two areas. The first is the requirement to achieve and thereafter maintain a Tier I capital ratio of at least 10.0% and a risk-based capital ratio of at least 12.0%. Second, while we met the terms of the Bank Order by submitting a plan for the reduction of adversely classified loans on the Bank’s books as of December 31, 2008, we did not meet the Bank Order’s requirement to comply fully with that plan. The plan contained a target reduction of the specified adversely classified assets to 40.0% of risk-based capital by February 28, 2010, which we did not achieve. At February 28, 2010, the level of adversely classified assets to risk-based capital was 91.6%. At March 31, 2011, this ratio was 45.1%.

While we have complied with the additional requirement of the Bank Order to develop and submit a plan for reducing our commercial real estate and land acquisition and development and construction loans, we did not achieve our internally established targets of 355.0% of risk-based capital and 178.0% of risk-based capital, respectively, as of March 31, 2011.

We are also operating under an order to cease and desist issued by the OTS on May 18, 2009, which we refer to as the Company Order (and together with the Bank Order, the “Orders”), which requires the Company to

 

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refrain from engaging in all unsafe and unsound practices that have resulted in the operation of HomeStreet, Inc. with low earnings and inadequate capital. The Company Order requires the consent of the OTS for the Company to pay dividends, make capital distributions, incur, issue, renew, repurchase, make payments on or roll over any debt (including our trust preferred securities, or “TruPS”), increase any current lines of credit, guarantee the debt of any entity, make certain severance or indemnification payments and make any change in directors or senior executive officers without the prior approval of the OTS.

Pursuant to the Company Order, we have developed a plan to manage our liquidity, capital and risk profile, and to address our financial obligations, including interest payments on the TruPS, without relying on dividends from the Bank for 2009 through 2011. The Company Order will remain in effect until terminated, modified or suspended by the OTS. We believe we are currently in compliance with the Company Order other than as to capital ratio requirements and our undertaking to establish and comply with a plan to reduce adversely classified assets.

Because of the restrictions contained in Orders, we may be limited in our ability to take certain actions and pursue certain operating strategies that might otherwise have resulted in greater benefits to our earnings and results of operations. Moreover, both the pendency of the Orders and the circumstances that gave rise to their issuance may place other limitations on our business, such as making it more difficult to attract and retain depositors, increasing the burdens required to satisfy our contractual obligations and increasing our operating and general and administrative expenses. In addition, failure to comply with these regulatory actions or any future actions could result in further regulatory actions or restrictions, including monetary penalties and the potential closure of the Bank. The Orders are described in more detail in this prospectus under “Regulation and Supervision — Cease and Desist Orders.” For a summary of additional restrictions that may be placed on the Bank, see “Regulation and Supervision — Regulation of HomeStreet Bank — Capital and Prompt Corrective Action Requirements.”

Our auditor’s opinions on our 2009 and 2010 financial statements include a “going concern” explanatory paragraph.

Our consolidated financial statements have been prepared assuming that the Company will continue as a going concern. Accordingly, our consolidated financial statements do not include any adjustments to reflect the possible future effects that may result from the outcome of various uncertainties as discussed below.

The effects of the severe economic contraction caused HomeStreet to incur net losses for the years ended December 31, 2010 and 2009. HomeStreet and the Bank are operating under significant regulatory restrictions including a requirement to achieve certain capital requirements, enhance liquidity and improve assets. In response, management is conducting this offering in order to raise capital to meet the requirements of the Orders.

Based upon its plans and expectations, management believes HomeStreet has sufficient capital and liquidity to achieve realization of assets and the discharge of liabilities in the normal course of business. However, uncertainties exist as to future economic conditions, regulatory actions and the successful implementation of plans to improve our financial condition and meet the requirements of the Orders. These circumstances raise substantial doubt about our ability to continue as a going concern. The consolidated financial statements do not include any adjustments that might result from the lack of success in implementing our plans or the occurrence of other events that could adversely affect its condition or operations.

We may be subject to continuing enhanced supervision by our regulators even if we achieve compliance with the cease and desist orders.

Following the completion of this offering and our contribution of capital to the Bank of a substantial portion of the net proceeds, we expect that the Bank will achieve capital ratios that exceed the minimum ratios required under the Bank Order. However, we cannot guarantee that we will continue to meet our capital requirements under the Bank Order or that we will not suffer additional increases in classified assets or other adverse

 

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developments in the foreseeable future. If we do not meet the capital requirements of the Bank Order, due to continued adverse consequences from the downturn in real estate and the capital markets or otherwise, our regulators may continue to monitor our business more closely and may keep in effect all or some of the existing restrictions or adopt new or additional restrictions on our operations. Such restrictions could limit our ability to grow our earning assets, increase our operating expenses and make it more difficult to raise additional capital if needed in the future. Any such measures, if taken, may have an adverse effect upon the value of our common stock. Even if we are able to restore our capital ratios to the level required by the Bank Order, we may be subject to additional supervision and restrictions imposed by the regulatory authorities. Other banks that have had cease and desist orders similar to ours often have subsequently been required to enter into informal supervisory agreements with the FDIC and the DFI. These arrangements have included increased capital requirements and asset quality targets, restrictions on payment of dividends and indebtedness, limits on appointment and compensation of directors and senior executive officers and other limitations on operations. As a result, we may face continuing restrictions on our operations and increased compliance costs even if we are successful in getting the Orders lifted.

We expect to maintain capital levels higher than many of our peers did before the financial crisis, which may cause us to be less profitable.

The Orders require us to maintain capital levels in excess of what would normally be required for an adequately capitalized or well capitalized bank, and significantly above the levels maintained by many of our peers prior to the financial crisis. If the Orders are lifted, we expect to maintain capital levels higher than those that may be required of some of our peers, in part because we expect to be subject to continued enhanced regulatory oversight that may mandate such increased capital levels. While decreasing our leverage by maintaining higher capital levels will cause us to be less sensitive to adverse economic changes in our markets, it will also result in lower profits for the Company as we will not be able to grow our lending as quickly as we might otherwise be able to do if we were to maintain lower capital levels.

We have incurred substantial losses and cannot assure you that we will become profitable.

Our profitability depends primarily on our ability to originate loans and either sell them into the secondary market or hold them in our loan portfolio and collect interest and principal as they come due. When loans become nonperforming or their ultimate collection is in doubt, our income is adversely affected. Our provisions for loan losses of $34.4 million in the year ended December 31, 2008, $153.5 million in the year ended December 31, 2009 and $37.3 million in the year ended December 31, 2010, and $0 for the three months ending March 31, 2011, and our net interest income has declined, reflecting the significant increase in our nonaccrual loans. This resulted in net income of $8.4 million in 2008 and net losses of $110.3 million and $34.2 million being reported for the years ended December 31, 2009 and 2010, respectively, and a net loss of $7.4 million for the three months ended March 31, 2011. Our ability to return to profitability will significantly depend on the successful resolution of nonperforming assets and the subsequent stabilization of our loan portfolio, the timing and certainty of which cannot be predicted. No assurance can be given that we will be successful in such efforts.

The completion of this offering will cause certain limitations on our ability to use our accumulated net operating losses to offset future income for federal income tax purposes.

As of December 31, 2010, we had a net operating loss carryforward amounting to $13.2 million, which under certain circumstances could be used to offset future taxable income for U.S. federal income tax purposes. We recognized a valuation allowance for financial statement purposes against the carrying value of that tax benefit, and the current carrying value of our net operating loss carryforward on our financial statements is zero. Ordinarily, the book value of that asset would not limit our ability to offset our existing operating loss carryforward against future income. However, the completion of this offering will result in an ownership change of HomeStreet within the meaning of Section 382 of the Internal Revenue Code of 1986, as amended. Section

 

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382 substantially limits the ability of a corporate taxpayer to offset operating loss carryforwards incurred prior to an ownership change against income earned after an ownership change. The Treasury Regulations adopted under Section 382 are complex, and the actual amount of such limitation varies depending on a variety of factors. In our case, we expect the residual benefit of our accumulated net operating loss carryforward to be nominal immediately following the completion of this offering. We do not expect that any tax benefit derived after the completion of this offering from the implementation of the AARP, as discussed elsewhere in this prospectus, would be affected by the ownership change that will result from this offering.

HomeStreet, Inc. primarily relies on dividends from the Bank and payment of dividends by the Bank is restricted under the Orders.

HomeStreet, Inc. is a separate legal entity from the Bank, and although we do receive some dividends from HomeStreet Capital, the primary source of our funds from which we service our debt, pay dividends and otherwise satisfy our obligations is the receipt of dividends from the Bank. The availability of dividends from the Bank is limited by various statutes and regulations. Depending upon the financial condition of the Bank and other factors, the applicable regulatory authorities could assert that payment of dividends or other payments, including payments to us, is an unsafe or unsound practice. In this regard, the Bank Order currently prohibits the Bank from paying dividends to us without the prior written approval of the FDIC and the DFI. If the Bank’s ability to pay dividends continues to be restricted or is restricted in the future, we may be limited in our ability to service our debts and fund operations.

Our turnaround plan has been designed and is being implemented in a period of unpredictable market conditions, and there can be no assurance that the turnaround plan can be implemented with positive or the anticipated results or on the schedule forecasted by management.

In 2009, the Company recruited and retained a new executive management team who designed and are implementing a turnaround plan for the Company to address its weakened financial condition. The success of this turnaround plan depends in part on the ability of our new management team to implement the plan and on economic conditions in our markets, which in recent years have been and continue to be unpredictable. A worsening of current economic indicators, such as real estate property values and continued high unemployment, will slow, limit or otherwise negatively affect the success of the turnaround plan. In addition, the executive management team responsible for implementing the turnaround plan is relatively new to the Company and may not have anticipated all of the issues that may face the Company and its geographic marketplace with regard to the plan. As a result, there can be no assurance that the turnaround plan can be implemented with positive or the anticipated results or on the schedule forecasted by management.

Difficult market conditions have adversely affected and may continue to have an adverse effect on our business.

Since late 2008, the capital and credit markets have experienced difficulty stemming in part from dramatic declines in the housing market, increasing foreclosures and rising unemployment. These difficulties have negatively impacted residential and commercial real estate values and the performance of mortgage, residential construction and other loans and required significant write-downs of asset values by financial institutions. As a result, many financial institutions, including the Company and the Bank, have been faced with the choice of seeking additional capital, merging with stronger institutions or failing. Many lenders and institutional investors have curtailed lending due to concern for the stability of the market, including lending to other financial institutions. This market turmoil and tightening of credit have led to an increased level of loan defaults and delinquencies, lack of consumer confidence, increased market volatility and widespread reduction of business activity generally, all of which has adversely affected our business, financial condition and results of operations. We expect that these difficult conditions in the financial markets will improve, if at all, slowly, and that a

 

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worsening of these conditions may prolong or exacerbate the adverse effects already felt by us and the rest of the financial institutions industry. In particular, we may face risks related to market conditions that may negatively impact our business opportunities and plans, such as:

 

   

uncertainty related to increased regulation and enforcement in the financial sector, including increased costs of compliance;

 

   

the models we use to assess the creditworthiness of our customers may become less reliable in predicting future behaviors which may impair our ability to effectively make underwriting decisions;

 

   

challenges in accurately estimating the ability of our borrowers to repay their loans if our forecasts of economic conditions and other economic predictions are not accurate;

 

   

further increases in FDIC insurance premiums due to additional depletion of that agency’s insurance funds;

 

   

restrictions in our ability to engage in routine funding transactions due to the commercial soundness of other financial institutions and government sponsored entities; and

 

   

increased competition from further consolidation in the financial services industry.

If recovery from the economic recession slows or if we experience another recessionary dip, our ability to access capital and our business, financial condition and results of operations may be adversely impacted.

Adverse economic conditions in the Pacific Northwest and other regions where we have operations have caused and could continue to cause us to incur losses.

Our mortgage banking and retail and commercial banking operations are currently concentrated in the Puget Sound area of Washington, and to a lesser extent, the Vancouver, Washington and Portland, Oregon regions and Hawaii. We also have lending offices in Spokane and Aberdeen, Washington, and Salem, Oregon. As a result of this geographic concentration, our results of operations currently depend largely upon economic conditions in these areas. Deterioration in economic conditions in these markets, including decreasing real estate values and sales and increasing unemployment and commercial real estate vacancy rates, are having and may continue to have a material adverse impact on the quality of our loan portfolio and the demand for retail and commercial banking products and services. In particular, the economic slowdown in our markets has resulted in many of the following conditions, which have had, and may continue to have, an adverse impact on the Bank’s business:

 

   

an increase in loan delinquencies, problem assets and foreclosures;

 

   

a decline in the demand for products and services, including a material reduction in the volume of our single family purchase loan transactions and commercial real estate loan transactions;

 

   

a decline in the value of loan collateral, especially real estate, which in turn may reduce customers’ borrowing power;

 

   

a decline in the demand for loans; and

 

   

a decline in the origination of loans, especially residential construction, income property and business banking loans.

Each of these conditions has had and may continue to have a material adverse effect on our results of operations, including but not limited to a decrease in fee income and net interest income.

In addition, as a result of the significant deterioration in economic conditions in our markets, our loan portfolio suffered substantial deterioration during 2008, 2009 and 2010 . During 2010, we experienced continuing

 

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high provisions for loan losses and charge-offs but at a declining rate in comparison to 2009. Total “classified assets,” which comprise the outstanding balance of all loans classified as substandard or doubtful and the carrying value of all other real estate owned (“OREO”), totaled $ 363.9 million, or 14.6% of total assets, as of December 31, 2010 and totaled $298.7 million, or 12.8%, of total assets as of March 31, 2011. We had an additional $ 162.6 million, or 6.9%, of total assets, of “special mention” assets as of March 31, 2011. At December 31, 2010 and March 31, 2011, our nonaccrual loans totaled $ 113.2 million, or 7.0%, and $124.1 million, or 7.9%, of gross loans, respectively. No assurance can be given that additional loans will not be added to “classified” or “special mention” status or that existing classified or special mention loans will not migrate into lower classifications and that additional provisions for loan losses may not be required. Additionally, we cannot assure you that we can foreclose on and sell real estate collateral without incurring additional losses.

A substantial portion of our revenue is derived from residential mortgage and residential construction and land lending which are market sectors that have experienced significant volatility.

Approximately 56.2%, 66.0% and 58.1% of our consolidated revenues (interest income plus noninterest income) in the three months ended March 31, 2011 and the years ended December 31, 2010 and 2009, respectively, were derived from originating, selling and servicing residential mortgages, and 29.8%, 28.5% and 24.9% of our consolidated total assets as of the end of each of those periods, respectively, represented residential mortgage loans held for investment. An additional 3.1%, 3.4% and 8.2% of our revenues for the three months ended March 31, 2011 and the years ended 2010 and 2009, respectively, were derived from residential construction and land lending, and as of March 31, 2011 and December 31, 2010, residential construction loans represented 5.5% and 5.7% of our consolidated total assets. Residential mortgage lending in general, and residential construction and land lending in particular, has experienced substantial volatility in recent years, and each of our primary geographic market areas has recorded more significant declines in real estate values and higher levels of foreclosures and mortgage defaults than the national averages for those statistical categories. Were these trends to be protracted or exacerbated, our financial condition and result of operations may be affected materially and adversely.

The significant concentration in our portfolio of real estate secured loans has had and may continue to have a negative impact on our asset quality and profitability as a result of continued or worsening conditions on the real estate market and higher than normal delinquency and default rates.

Substantially all of our loans are secured by real property. As of March 31, 2011, 94.9% of all of our outstanding loans, totaling $ 1.49 billion, were secured by real estate, including $ 522.9 million in single family residential loans, $414.3 million in commercial real estate loans (including $124.6 million in owner-occupied loans underwritten based on the cash flows of the business), $102.5 million in multifamily residential loans, $271.7 million in construction and land development loans and $175.9 million in home equity loans.

Our real estate secured lending is generally sensitive to regional and local economic conditions, making loss levels difficult to predict. Declines in real estate sales and prices, as well as the adverse impacts of the economic slowdown and recession and an associated increase in unemployment, have resulted in higher than expected loan delinquencies and foreclosures, problem loans and OREO, net charge-offs and provisions for credit and OREO losses. We may continue to incur losses and may suffer additional adverse impacts to our capital ratios and our business. If the significant decline in market values continues, the collateral for our loans will provide less security and our ability to recover the principal, interest and costs due on defaulted loans by selling the underlying real estate will be diminished, leaving us more likely to suffer additional losses on defaulted loans. Such declines may have a greater effect on our earnings and capital than on the earnings and capital of financial institutions whose loan portfolios are more diversified.

 

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Continued or worsening conditions in the real estate market and higher than normal delinquency and default rates on loans could cause other adverse consequences for us, including:

 

   

the reduction of cash flows and capital resources, as we are required to make cash advances to meet contractual obligations to investors, process foreclosures, and maintain, repair and market foreclosed properties;

 

   

declining mortgage servicing fee revenues because we recognize these revenues only upon collection;

 

   

increasing loan servicing costs;

 

   

declining fair value on our mortgage servicing rights; and

 

   

declining fair values and liquidity of securities held in our investment portfolio that are collateralized by mortgage obligations.

Our loans held for investment have historically been concentrated in construction and residential land acquisition, development and construction loans which have a higher risk of loss than residential mortgage loans and we have experienced increased delinquencies and loan losses related to those loans.

Construction and residential land acquisition, development and construction loans (“ADC loans”) represented 17.3%, 17.7% and 30.3% of our total loan portfolio at March 31, 2011 and December 31, 2010 and 2009, respectively. Such loans represented 62.7%, 58.3% and 79.1% of our nonperforming loans at those dates. In 2010 and 2009, 82.5% and 80.7% of our charge-offs came from construction and ADC loans. If current downward trends in the housing and real estate markets continue, we expect that we will continue to experience increased delinquencies and credit losses from these loans. An increase in our delinquencies and credit losses would adversely affect our financial condition and results of operations, perhaps materially.

Our allowance for loan losses may prove inadequate or we may be negatively affected by credit risk exposures. Future additions to our allowance for loan losses will reduce our earnings.

Our business depends on the creditworthiness of our customers. As with most lending institutions, we maintain an allowance for loan losses to provide for defaults and nonperformance, which is a reserve established through a provision for loan losses charged to expense that represents management’s best estimate of probable incurred losses inherent in the loan portfolio. Such allowance may not be adequate to cover actual losses, and future provisions for losses could adversely affect our financial condition, results of operations and cash flows.

The level of the allowance for loan losses reflects management’s continuing evaluation of specific credit risks and loan loss experience, current loan portfolio quality, present economic, political and regulatory conditions, industry concentrations and other unidentified losses inherent in the current loan portfolio. The determination of the appropriate level of the allowance for loan losses inherently involves a high degree of subjectivity and judgment and requires us to make significant estimates of current credit risks and future trends, all of which may undergo material changes. Generally, our nonperforming loans and OREO reflect operating difficulties of individual borrowers and weaknesses in the economies of the markets we serve.

If the credit quality of our customer base materially decreases, if the risk profile of a market, industry or group of customers changes materially or if our allowance for loan losses is not adequate, our business, financial condition, including our liquidity and capital, and results of operations could be materially adversely affected. A significant source of risk arises from the possibility that we could sustain losses caused by the failure of borrowers, guarantors and related parties to perform in accordance with the terms of their respective loans. The underlying credit monitoring polices and procedures that we have adopted to address this risk may not prevent

 

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unexpected losses that could have a significant adverse effect on our financial condition, results of operations and cash flows. Unexpected losses may arise from a variety of specific systematic factors, many of which are beyond our ability to predict, influence or control.

Subsequent evaluations of our loan portfolios may reveal that estimated levels of loss frequency and or severity used in determining the allowance for loan losses differed significantly from actual experience, and in such circumstances we may have to record an increased provision for loan losses in subsequent periods, thereby reducing earnings in those periods. As an integral part of the examination process, our independent accountants, federal and state regulatory agencies all review our loans, loan-related commitments and allowance for loan loss methodology. As of March 31, 2011, December 31, 2010 and December 31 2009, our allowance for loan losses was $62.2 million, $64.2 million and $109.5 million, respectively, and as of those same dates, the allowance for loan losses as a percentage of nonperforming loans was 50.1%, 56.7% and 29.3%, respectively. While we believe that our allowance for loan losses is adequate to cover losses inherent in the Bank’s loan portfolios, we cannot guarantee that we will not need to increase further the allowance for loan losses or that regulators will not require such an increase. An increase in the level of loan loss allowance, whether voluntary or compelled by regulators, may have a material adverse effect on our financial condition, results of operations and cash flows.

Nonperforming assets take significant time to resolve and adversely affect our financial condition and results of operations.

At March 31, 2011 and December 31, 2010, nonperforming loans totaled $124.1 million, or 7.9%, and $113.2 million, or 7.0%, respectively, of our total loan portfolio. At March 31, 2011 and December 31, 2010, our nonperforming assets (which include OREO) were $ 223.0 million, or 9.5%, and $283.7 million, or 11.4%, respectively, of our total assets. In addition, we had $44.1 million at March 31, 2011 and $43.5 million at December 31, 2010 in loans that were 90 or more days past due and still held on accrual status and $19.8 million at March 31, 2011 and $21.6 million at December 31, 2010 in loans 30 to 89 days delinquent. Until economic and market conditions improve, we may continue to incur additional losses relating to an increase in nonperforming assets. We do not record interest income on nonaccrual loans, which adversely affects our income. Additionally, higher levels of nonperforming assets increase our loan administration and legal expenses.

In addition, when we take possession of collateral through foreclosure or other similar proceedings, we are required to record the related collateral at the then fair value of the collateral less selling costs, which may result in a loss. Nonperforming assets increase our risk profile and the level of capital we and our regulators believe is adequate in light of such risks. Impairment of the value of these assets, the value of the underlying collateral, the liquidity and net worth of guarantors, or our borrowers’ performance or financial conditions, whether or not due to economic and market conditions beyond our control, have adversely affected, and may continue to adversely affect, our business, results of operations and financial condition. See discussion below regarding additional risks associated with other real estate owned.

Our OREO may be subject to additional impairment and expense associated with ownership, and such properties may ultimately be sold at below appraised values.

Real estate owned by the Bank and not used in the ordinary course of its operations is referred to as other real estate owned, or OREO. We foreclose on and take title to the real estate collateral for defaulted loans as part of our business. We obtain appraisals on these assets prior to taking title to the properties and periodically thereafter. However, due to the rapid and severe deterioration in our markets, there can be no assurance that such valuations will reflect the amount which may be paid by a willing purchaser in an arms-length transaction at the time of the final sale. Moreover, we cannot assure investors that the losses associated with OREO will not exceed the estimated amounts, which would adversely affect future results of our operations. The calculation for the adequacy of write-downs of our OREO is based on several factors, including the appraised value of the real property, economic conditions in the property’s sub-market, comparable sales, current buyer demand, availability of financing,

 

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entitlement and development obligations and costs and historic loss experience. All of these factors have caused further write-downs in recent periods and can change without notice based on market and economic conditions.

In addition, our earnings may be affected by various expenses associated with OREO, including personnel costs, insurance, taxes, completion and repair costs and other costs associated with property ownership, as well as by the funding costs associated with assets that are tied up in OREO. Moreover, our ability to sell OREO properties is affected by public perception that banks are inclined to accept large discounts from market value in order to quickly liquidate properties. Any decrease in market prices may lead to OREO write-downs, with a corresponding expense in our statement of operations. Further write-downs on OREO or an inability to sell OREO properties could have a material adverse effect on our results of operations and financial conditions. Furthermore, the management and resolution of nonperforming assets, which include OREO, increases our costs and requires significant commitments of time from our management and directors, which can be detrimental to the performance of their other responsibilities. There can be no assurance that we will not experience further increases in nonperforming assets in the future.

Our underwriting practices may not have adequately captured the risk inherent in our loan portfolio and our past underwriting practices may result in loans that expose us to a greater risk of loss.

We seek to mitigate the risks inherent in our loan portfolio by adhering to specific underwriting practices. These practices will often include analysis of a borrower’s prior credit history, financial statements, tax returns and cash flow projections; valuation of collateral; obtaining personal guarantees of loans to businesses; and verification of liquid assets. If our underwriting process fails to capture accurate information or proves to be inadequate, we may incur losses on loans that meet our underwriting criteria, and those losses may exceed the amounts set aside as reserves in the allowance for loan losses.

Prior to the revision of our lending policies in September 2008, which are further described in “Business—Risk Management—Credit Risk Management,” we granted exceptions to our loan-to-value limits, and our current aggregate loan-to-value exceptions exceed regulatory guidelines. As a result, some of our single family residential loans are secured by liens on mortgage properties in which the borrowers have little or no equity. During 2008 we began originating up to 100.0% loan-to-value loans to qualifying consumers to purchase select properties on which we hold a construction lien and also converted some of our construction loans to permanent investor rental property loans, many of which are in excess of 85.0% loan-to-value. We also originated first mortgage loans of up to an 80.0% loan-to-value ratio and a concurrent purchase money second mortgage with a combined loan-to-value ratio of up to 100.0% for purchase borrowers select properties. In addition, certain of our home equity lines of credit may have, when added to existing senior lien balances, a post-funding combined loan-to-value ratio of greater than 100.0% of the value of the property securing the loan. We do not consider the level of these high loan-to-value loans to be material to the Bank’s operations. Residential loans with high combined loan-to-value ratios are more sensitive to declining property values than those with lower combined loan-to-value ratios and, therefore, may experience a higher incidence of default and severity of losses. In addition, if the borrowers sell their homes, such borrowers may be unable to repay their loans in full from the sale.

A substantial amount of our residential mortgage loans and home equity lines of credit also have adjustable interest rates, and these loans may experience a higher rate of default in a rising interest rate environment. In addition, loans with combined loan-to-values in excess of 90.0% for owner-occupied property loans and 85.0% for investor rental property loans may experience higher rates of delinquencies, defaults and losses. In declining real estate or rental markets, investor property borrowers may not have the incentive to carry the burden of negative cash flow and thus may have higher default rates. We are actively working to reduce our concentrations of those loans with a higher risk of default; however, we are still subject to an increased exposure of loss due to those loans.

 

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Our proposed accelerated asset resolution plan ( AARP ) is designed to accelerate the reduction of credit and market risk in our loan and OREO portfolios. If we adopt this plan, we will incur additional losses to dispose of the assets included in the plan. Our estimate of these additional losses relies in part upon various valuation estimates and asset resolution strategies, and there can be no assurance that we can execute these strategies successfully or that our valuation estimates will prove accurate.

If this offering is successful, we expect to adopt the AARP to address $                 million of selected classified loans and OREO by employing a variety of alternative methods and strategies for default management, loan collection and asset disposition. The AARP reflects the acceleration in estimated timing of resolution of assets within a pool of identified assets, which we refer to collectively as the “AARP Pool,” that we expect would result from a change in recovery methods from those which we utilize in the ordinary course of business. These methods and strategies by their nature will expedite the resolution of the AARP Pool assets, but also will increase resolution-related losses. Consequently, giving effect to the AARP on a pro forma basis as of March 31, 2011, we would we record estimated loan and OREO portfolio valuation charges under the AARP totaling $                 million, of which $                 million would be recorded as additional loan loss provision and $                 million would be recorded as OREO valuation losses.

The identity of the AARP pool assets, and the losses incurred to resolve these assets, will differ from our estimates. The actual charges taken will depend on many factors, including the final size and composition of the AARP Pool assets at the date of adoption of the AARP. The AARP valuation charges are not based on market value appraisals of the individual loan collateral or OREO properties, and while we believe the assumptions used to estimate the recovery values of the AARP assets are reasonable, such assumptions and estimates are subject to greater variability than in the normal course. Had we used different assumptions, materially different valuation estimates may have resulted. However, there can be no assurance that our estimates will prove accurate, that we will be able to dispose of the AARP assets at the times or for the values we have estimated, or that we will not experience additional loan losses or OREO valuation reserves.

We may incur significant losses as a result of ineffective hedging of interest rate risk related to our single family loans held for sale and single family mortgage servicing rights.

A substantial portion of our single family loans are sold into the secondary market. We generally retain the right to service these loans. We are exposed to the risk of decreases in the fair value of our single family loans held for sale and our single family mortgage servicing rights as a result of changes in interest rates. We use derivative financial instruments to hedge these risks; however our hedging strategies, techniques and judgments may not be effective and may not anticipate every event that would affect the fair value of our single family loans held for sale and single family servicing rights. Our inability to effectively reduce the risk of fluctuations in the fair value of our single family loans and single family mortgage servicing rights could negatively affect our results of operations due to decreases in the fair value of these assets.

Our real estate lending also exposes us to the risk of environmental liabilities.

In the course of our business, it is necessary to foreclose and take title to real estate, which could subject us to environmental liabilities with respect to these properties. Hazardous substances or waste, contaminants, pollutants or sources thereof may be discovered on properties during our ownership or after a sale to a third party. We could be held liable to a governmental entity or to third parties for property damage, personal injury, investigation and clean-up costs incurred by these parties in connection with environmental contamination, or may be required to investigate or clean up hazardous or toxic substances or chemical releases at such properties. The costs associated with investigation or remediation activities could be substantial and could substantially exceed the value of the real property. In addition, as the owner or former owner of a contaminated site, we may be subject to common law claims by third parties based on damages and costs resulting from environmental contamination emanating from the property. We may be unable to recover costs from any third party. These occurrences may materially reduce the value of the affected property, and we may find it difficult or impossible

 

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to use or sell the property prior to or following any environmental remediation. If we ever become subject to significant environmental liabilities, our business, financial condition and results of operations could be materially and adversely affected.

If we breach any of the representations or warranties we make to a purchaser when we sell mortgage loans or mortgage loan servicing rights, we may be liable to the purchaser for unpaid principal and interest on the loan.

When we sell mortgage loans in the ordinary course of business, we are required to make certain representations and warranties to the purchaser about the mortgage loans and the manner in which they were originated. Our loan sale agreements require us to repurchase mortgage loans if we have breached any of these representations or warranties, in which case we may be required to repurchase such loan and/or bear any subsequent loss on the loan. We may not have any remedies available to us against an originating broker or other third party for such losses, or the remedies available to us may not be as broad as the remedies available to the purchaser of the mortgage loan against us. In addition, if there are remedies against a third party available to us, we face further risk that such third party may not have the financial capacity to perform remedies that otherwise may be available to us. Therefore, if a purchaser enforces remedies against us, we may not be able to recover our losses from a third party and may be required to bear the full amount of the related loss. If repurchase and indemnity demands increase, our liquidity, results of operations and financial condition will be adversely affected. In the aggregate, from January 1, 2006 through March 31, 2011, we sold $8.60 billion of mortgage loans subject to repurchase obligations. During that same period, we incurred $0.5 million of indemnification losses. As of March 31 2011, our reserve for loan recourse losses was $0.5 million.

We may face risk of loss if we purchase loans from a seller that fails to satisfy its indemnification obligations.

We generally receive representations and warranties from the originators and sellers from whom we purchase loans and servicing rights such that if a loan defaults and there has been a breach of such representations and warranties, we may be able to pursue a remedy against the seller of the loan for the unpaid principal and interest on the defaulted loan. However, if the originator and/or seller breach such representations and warranties and does not have the financial capacity to pay the related damages, we may be subject to the risk of loss for such loan as the originator or seller may not be able to pay such damages or repurchase loans when called upon by us to do so. Currently, we only purchase loans from Windermere Mortgage Services Series LLC, a joint venture with certain Windermere real estate brokerage franchise owners.

We may be subject to claims relating to documentation and procedures under various foreclosure laws.

In 2010, concerns surfaced among state attorneys general, federal regulators and government-sponsored entities that some mortgage loan servicers have commenced foreclosure proceedings in reliance on affidavits and other documents that were not signed or completed by persons with personal knowledge of the facts asserted in the documents (a practice commonly referred to as “robo-signing”). Similarly, some loan servicers have not been able to establish their legal standing to foreclose under applicable state law because they have not been able to demonstrate possession of the note evidencing the underlying debt or that they are the legal owner of the lien that is in default and the subject of a foreclosure action (problems commonly referred to as “chain of title” defects). Loan servicers that initiate foreclosures where there are chain of title defects or that are based on faulty affidavits may be exposed to litigation and regulatory risk for violating state and federal consumer protection laws, for breach of contract under servicing agreements and/or repurchase or indemnification obligations if the servicer was also the originator of the mortgage loans. In addition, these servicers then incur a loss because of an inability to foreclose on the collateral due to non-compliance with foreclosure statutes. Because of our substantial mortgage servicing activities and the current regulatory and economic environment related to the housing markets, it is possible that the Bank may be subject to future complaints, lawsuits or regulatory or investor challenges relating to foreclosure laws.

 

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The proposed restructuring of Fannie Mae and Freddie Mac and changes in existing government-sponsored and federal mortgage programs could negatively affect our business.

We originate and purchase, sell and thereafter service single family and multifamily mortgages under the Fannie Mae, and to a lesser extent the Freddie Mac, single family purchase programs and the Fannie Mae multifamily Delegated Underwriting and Servicing , or DUS, program. These activities represented 58.3%, 67.5% and 59.9% of our consolidated revenues (interest income plus noninterest income) in the three months ended March 31, 2011 and for the years ended 2010 and 2009, respectively. Since the nationwide downturn in residential mortgage lending that began in 2008 and the placement of Fannie Mae and Freddie Mac into conservatorship, Congress and various executive branch agencies have offered a wide range of proposals aimed at restructuring these agencies. None of these proposals have yet been defined with any specificity, and so we cannot predict how any such initiative would impact our business. However, any restructuring of Fannie Mae and Freddie Mac that restricts their loan repurchase programs may have a material adverse effect on our business and results of operations. Moreover, we have recorded on our balance sheet an intangible asset relating to our right to service single and multifamily loans sold to Fannie Mae and Freddie Mac. That asset was valued at $96.0 million and $87.2 million at March 31, 2011 and December 31, 2010, respectively. Changes in Fannie Mae’s and Freddie Mac’s policies and operations that adversely affect our single family residential loan and DUS mortgage servicing assets may require us to record impairment charges to the value of these assets, and significant impairment charges could be material and adversely affect our business.

Through our wholly owned subsidiary Home Street Capital Corporation, we participate as a lender in the Fannie Mae Delegated Underwriting and Servicing program, or DUS. Fannie Mae delegates responsibility for originating, underwriting and servicing mortgages, and we assume a limited portion of the risk of loss during the remaining term on each commercial mortgage loan that we sell to Fannie Mae. In the three months ended March 31, 2011 and the year ended December 31, 2010, we originated $ 1.4 million and $55.8 million in loans through the DUS program, respectively.

Fannie Mae and Freddie Mac are under conservatorship with the Federal Housing Finance Agency. On February 11, 2011, the Obama administration presented Congress with a report titled “ Reforming America’s Housing Finance Market, A Report to Congress ,” outlining its proposals for reforming America’s housing finance market with the goal of scaling back the role of the U.S. government in, and promoting the return of private capital to, the mortgage markets and ultimately winding down Fannie Mae and Freddie Mac. Without mentioning a specific time frame, the report calls for the reduction of the role of Fannie Mae and Freddie Mac in the mortgage markets by, among other things, reducing conforming loan limits, increasing guarantee fees and requiring larger down payments by borrowers. The report presents three options for the long-term structure of housing finance, all of which call for the unwinding of Fannie Mae and Freddie Mac and a reduced role of the government in the mortgage market. We cannot be certain if or when Fannie Mae and Freddie Mac will be wound down, if or when reform of the housing finance market will be implemented or what the future role of the U.S. government will be in the mortgage market, and, accordingly, we will not be able to determine the impact that any such reform may have on us until a definitive reform plan is adopted.

In addition, our ability to generate income through mortgage sales to institutional investors depends in part on programs sponsored by Fannie Mae, Freddie Mac and the FHA, which facilitate the issuance of mortgage-backed securities in the secondary market. These programs have been reduced in recent periods due to current economic conditions. Any discontinuation of, or significant reduction in, the operation of those programs could have a material adverse effect on our loan origination and mortgage sales as well as our results of operations. Also, any significant adverse change in the level of activity in the secondary market or the underwriting criteria of these entities could negatively impact our results of business, operations and cash flows.

 

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The lending qualification and limits of FHA and VA may also be subject to changes that may limit our origination of loans guaranteed or insured by the agencies in the future.

We originate and sell FHA and VA loans. The origination of FHA and VA loans represented 31.6%, 29.3% and 28.4% of the dollar value of loans originated the three months ended March 31, 2011 and the years ended in 2010 and 2009, respectively. The housing finance reform contemplated by the current presidential administration may impact the lending qualification and limits of these programs. The details of the changes outlined in the Obama administration report to Congress in February 2011 are not yet known; however, resulting legislation may adversely impact the Bank’s volume of FHA and VA loan originations in the future and may increase in the price of our mortgage insurance premiums or otherwise ultimately negatively affect the Bank’s business and results of operations.

Fluctuations in interest rates could adversely affect the value of our assets and reduce our net interest income and noninterest income thereby adversely affecting our earnings and profitability.

Our earnings are highly dependent on the difference between the interest earned on loans and investments and the interest paid on deposits and borrowings. Changes in market interest rates impact the rates earned on loans and investment securities and the rates paid on deposits and borrowings. In addition, changes to market interest rates may impact the level of loans, deposits and investments and the credit quality of existing loans. Changes in interest rates also affect demand for our residential loan products and the revenue realized on the sale of loans. A decrease in the volume of loans sold can decrease our revenues and net income. These rates may be affected by many factors beyond our control, including general and economic conditions and the monetary and fiscal policies of various governmental and regulatory authorities. Changes in interest rates may negatively impact our ability to attract deposits, make loans and achieve satisfactory interest rate spreads, which could adversely affect our financial condition or results of operations. Changes in interest rates may reduce our mortgage revenues, which would negatively impact our noninterest income.

Our net interest margin, which represents the effective yield on interest earning assets, declined steadily from 4.16% for the year 2006 to 1.04% for the year 2009 before improving to 1.49% for the year 2010 and to 2.17% for the first quarter 2011. We have taken certain actions that have improved our net interest margin, and our business plan contains certain additional business initiatives intended to further improve our net interest margin. These actions may not prove to be successful.

Our securities portfolio includes securities that are insured or guaranteed by U.S. government agencies or government-sponsored enterprises and other securities that are sensitive to interest rate fluctuations. The unrealized gains or losses in our available-for-sale portfolio are reported as a separate component of shareholders’ equity until realized upon sale. As a result, future interest rate fluctuations may impact shareholders’ equity, causing material fluctuations from quarter to quarter. Failure to hold our securities until maturity or until market conditions are favorable for a sale could adversely affect our financial condition.

A significant portion of our noninterest income is derived from originating residential mortgage loans and selling them into the secondary market. That business has benefited from a long period of historically low interest rates. To the extent interest rates rise, particularly if they rise substantially or quickly, we may experience a reduction in mortgage refinancing and financing of new home purchases. These factors may negatively affect our mortgage loan origination volume and adversely affect our noninterest income.

Our mortgage servicing rights carry interest rate risk because the total amount of servicing fees earned, as well as the amortization of the investment in the servicing rights, fluctuates based on loan prepayments (affecting the expected average life of a portfolio of residential mortgage servicing rights). At March 31, 2011, we were servicing $ 6.52 billion of residential loans for third parties. The rate of prepayment of residential mortgage loans may be influenced by changing national and regional economic trends, such as recessions or depressed real estate markets, as well as the difference between interest rates on existing residential mortgage loans relative to

 

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prevailing residential mortgage rates. Changes in prepayment rates are therefore difficult for us to predict. An increase in the general level of interest rates may adversely affect the ability of some borrowers to pay the interest and principal of their obligations. During periods of declining interest rates, many residential borrowers refinance their mortgage loans. The loan administration fee income related to the residential mortgage loan servicing rights corresponding to a mortgage loan ceases as mortgage loans are prepaid. Consequently, the fair value of portfolios of residential mortgage loan servicing rights tend to decrease during periods of declining interest rates, because greater prepayments can be expected and, as a result, the amount of loan administration income received also decreases.

We may be required, in the future, to recognize impairment with respect to investment securities, including the FHLB stock we hold.

Our securities portfolio currently includes securities with unrecognized losses. We may continue to observe declines in the fair market value of these securities. We evaluate the securities portfolio for any other than temporary impairment each reporting period, as required by generally accepted accounting principles in the United States, and as of March 31, 2011 and December 31, 2010, we did not recognize any securities as other-than-temporarily impaired. There can be no assurance, however, that future evaluations of the securities portfolio will not require us to recognize an impairment charge with respect to these and other holdings.

In addition, as a condition of membership in the FHLB, we are required to purchase and hold a certain amount of FHLB stock. Our stock purchase requirement is based, in part, upon the outstanding principal balance of advances from the FHLB. At March 31, 2011 and December 31, 2010, we had stock in the FHLB totaling $ 37.0 million. The FHLB stock held by us is carried at cost and is subject to recoverability testing under applicable accounting standards. The FHLB has discontinued the repurchase of their stock and discontinued the distribution of dividends. As of March 31, 2011 and December 31, 2010, we have not recognized an impairment charge related to our FHLB stock holdings. There can be no assurance, however, that future negative changes to the financial condition of the FHLB may not require us to recognize an impairment charge with respect to such holdings.

Inability to access and maintain liquidity could impair our ability to fund operations and jeopardize our financial condition.

Liquidity is essential to our business. An inability to raise funds through deposits, borrowings, the sale of loans and other sources could have a material adverse effect on our liquidity that would negatively impact our ability to fund continued loan growth and may negatively affect asset growth and, therefore, our earnings capability.

The termination or restructuring of Fannie Mae or Freddie Mac may have an adverse impact on our ability to fund and sell loans and to generate loan fees and gains on sales and create servicing income.

Our main sources of liquidity are loan sales, deposits, payments of principal and interest received on loans and investment securities. In addition, we also rely on borrowing lines with the FHLB and the Federal Reserve Bank of San Francisco, or FRBSF. However, the FHLB has discontinued the repurchase of its stock and discontinued the distribution of dividends. Based on the foregoing, there can be no assurance the FHLB will have sufficient resources to continue to fund our borrowings at their current levels. In the event of a deterioration in our financial conditions or a further downturn in the economy, particularly in the housing market, our ability to access these funding resources could be negatively affected, which could limit the funds available to us and make it difficult for us to maintain adequate funding for loan growth. In addition, our customers’ ability to raise capital and refinance maturing obligations could be adversely affected, resulting in a further unfavorable impact on our business, financial condition and results of operations.

In addition, if we were to suffer a significant drop in our capital levels due to a decrease in our business activity or other factors such that we were no longer considered “adequately capitalized,” we would no longer be

 

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eligible to borrow from the FRBSF. Interest rate competition, negative views and expectations about the prospects for the financial services industry as a whole, continued turmoil in the domestic and worldwide credit markets or a severe disruption of the financial markets may also impact the ability to access capital markets and maintain necessary liquidity levels. Our business is also impacted by the fiscal and monetary policies of the U.S. federal government and its agencies, including the Federal Reserve Board.

At present, under the Bank Order, we may not solicit, retain or rollover any brokered deposits without the approval of the FDIC. At March 31, 2011 we held $10.0 million in brokered deposits, and in the past we have used brokered deposits. If we need brokered deposits in the future for liquidity purposes, we may be unable to accept such brokered deposits, which may materially and adversely affect our liquidity position. In addition, as a result of the Bank and Company Orders, we have been designated as a “less than well capitalized” institution under applicable regulations. As a result of being designated “less than well capitalized,” effective January 1, 2010, we were required to price our deposit interest rates based on national average rates. If local competitors are able to offer higher rates, our ability to attract deposits as a source of liquidity may also be adversely impacted.

We have relied heavily in the past, and may continue to rely, on wholesale borrowing and brokered deposits to fund our lending activities.

We have historically relied on a high level of wholesale borrowings and brokered deposits to fund our lending activities. We borrow on a collateralized basis from the FHLB, and, as back-up, the FRBSF. In the past, we have also used brokered deposits; however, pursuant to the Bank Order we are not presently permitted to solicit, retain or rollover brokered deposits, which has required us to run off that portfolio. Our liquidity has been negatively affected because of limitations on our access to these funds. The FHLB and the FRBSF are not contractually bound to continue to offer credit to us, and our access to credit from either or both of these agencies for future borrowings may be discontinued at any time. There can be no assurance that actions by the FHLB or the FRBSF, limitations on our available collateral or adverse regulatory action against us would not reduce or eliminate our borrowing capacity or that we would be able to continue to attract nonbrokered deposits at competitive rates. To this end, the FHLB recently changed its collateral requirements for the Bank, moving away from blanket custody towards physical custody and eliminating loans held for sale as eligible collateral. These changes in policy have constrained our additional borrowing capacity from the FHLB. We also may not be in compliance with certain covenants in our borrowing agreement with the FHLB relating to safe and sound banking practices, and without a waiver of such covenants, we may not be able to obtain future advances from the FHLB, or we may be required to satisfy additional conditions or may face limitations as to the timing or amounts of such advances, until the Bank Order is lifted. Such events have and could continue to have a material adverse impact on our results of operations and financial condition.

Adverse operating results or changes in industry conditions could lead to difficulty or an inability to access additional funding sources. Our financial flexibility will be severely constrained if we are unable to maintain our access to funding or if adequate financing is not available to accommodate future growth at acceptable interest rates. Finally, if we are required to rely more heavily on more expensive funding sources to support future growth, our revenues may not increase proportionately to cover our costs. In this case, our operating margins and profitability would be adversely affected.

We may have reduced access to wholesale funding sources, which may adversely affect our liquidity and cost of funds.

As part of liquidity management, we use a number of funding sources in addition to core deposit growth and repayments and maturities of loans and investments. We generally select funding sources based on decisions regarding cost and liquidity. If we lose access to one or more wholesale funding sources, our liquidity may be impaired and our cost of borrowing may increase. If we are required to rely more heavily on costlier funding sources, our revenues may not increase proportionately to cover our costs, and our earnings and profitability would be adversely affected. Changes in accounting standards could materially impact our consolidated financial statements.

 

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Emergency measures designed to stabilize the U.S. financial markets are beginning to wind down.

Since mid-2008, a host of government actions have been implemented in response to the financial crisis and the recession. Some of the programs are beginning to expire and the impact of the wind-down of these programs on the financial sector and on the economic recovery is unknown. As government support programs are cancelled, changed or withdrawn, there is a possibility that we, as well as other financial institutions, may have insufficient access to, or incur higher costs associated with, deposit or other funding alternatives, which could have a material adverse effect on our business, financial condition, results of operations and prospects. In particular, although the Dodd-Frank Act provides a full FDIC guarantee for certain non-interest bearing transaction accounts for an unlimited amount of coverage through the end of 2012, some accounts previously covered under the voluntary Transaction Account Guarantee (“TAG”) program, such as Negotiable Order of Withdrawal, or NOW, checking accounts, did not benefit from the coverage extension that took effect upon the TAG program’s expiration on December 31, 2010. This change could adversely affect us, especially in light of the concerns about our financial viability. In addition, a stall in the economic recovery or continuation or worsening of current financial market conditions could exacerbate these effects.

We are subject to extensive regulation that has restricted and could further restrict our activities, including capital distributions, and impose financial requirements or limitations on the conduct of our business.

Our operations are subject to extensive regulation by federal, state and local governmental authorities, including the FDIC, the DFI and the OTS, and are subject to various laws and judicial and administrative decisions imposing requirements and restrictions on part or all of our operations. Because our business is highly regulated, the laws, rules and regulations to which we are subject are evolving and change frequently. Changes to those laws, rules and regulations are also sometimes retroactively applied. Furthermore, the on-site examination cycle for an institution in our circumstances is frequent and extensive. Examination findings by the regulatory agencies may result in adverse consequences to the Company. Regulatory authorities have extensive discretion in their supervisory and enforcement activities, including the authority to restrict our operations, adversely reclassify our assets, determine the level of deposit premiums assessed and require us to increase our allowance for loan losses.

Legislative action regarding foreclosures or bankruptcy laws may negatively impact our business.

Legislation and regulations have been proposed which, among other things, could allow judges to modify the terms of residential mortgages in bankruptcy proceedings and could hinder our ability to foreclose promptly on defaulted mortgage loans or expand assignee liability for certain violations in the mortgage loan origination process, any or all of which could adversely affect our business or result in our being held responsible for violations in the mortgage loan origination process. These legislative and regulatory proposals generally have focused primarily, if not exclusively, on residential mortgage origination, but we cannot offer assurances as to what, if any, of these initiatives may be adopted or, if adopted, to what extent they would affect our business. Such legislation may limit our ability to take actions that may be essential to preserve the value of the mortgage loans we service or hold for investment. Any restriction on our ability to foreclose on a loan, any requirement that we forego a portion of the amount otherwise due on a loan or any requirement that we modify any original loan terms may require us to advance principal, interest, tax and insurance payments, which would negatively impact our business, financial condition, liquidity and results of operations. Given the relatively high percentage of our business that derives from originating residential mortgages, any such actions are likely to have a significant impact on our business, and the effects we experience will likely be disproportionately high in comparison to financial institutions whose residential mortgage lending is more attenuated.

We are unable to predict whether U.S. federal, state or local authorities, or other pertinent bodies, will enact legislation, laws, rules, regulations, handbooks, guidelines or similar provisions that will affect our business or require changes in our practices in the future, and any such changes could adversely affect our cost of doing business and profitability. See “Regulation and Supervision — Regulation and Supervision of HomeStreet Bank.”

 

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The Dodd-Frank Act is expected to increase our costs of operations and may have a material negative effect on us.

The Dodd-Frank Act significantly changes the laws as they apply to financial institutions and revises and expands the rulemaking, supervisory and enforcement authority of federal banking regulators. It is also expected to have a material impact on our relationships with current and future customers. Although the statute will have a greater impact on larger institutions than regional bank holding companies such as the Company, many of its provisions will apply to us. Among other things, the Dodd-Frank Act:

 

   

transfers supervision of HomeStreet, Inc. from the OTS to the FRB, which has higher capital requirements for bank holding companies, potentially limiting our ability to deploy our capital into earning assets, which would serve to limit our own earnings;

 

   

grants the FDIC back-up supervisory authority with respect to depository institution holding companies that engage in conduct that poses a foreseeable and material risk to the Deposit Insurance Fund and heightens the Federal Reserve’s authority to examine, prescribe regulations and take action with respect to all subsidiaries of a bank holding company;

 

   

prohibits insured state-chartered banks such as ours from engaging in certain derivatives transactions unless the chartering state’s lending limit laws take into consideration credit exposure to derivatives transactions;

 

   

subjects both large and small financial institutions to data and information gathering by a newly created Office of Financial Research;

 

   

creates a new Consumer Bureau given rulemaking, examination and enforcement authority over consumer protection matters and contains provisions on mortgage-related matters such as steering incentives, determinations as to a borrowers’ ability to repay and prepayment penalties; and

 

   

imposes certain corporate governance and executive compensation standards that may increase costs of operation and adversely affect our ability to attract and retain management.

Some of these changes are effective immediately, though most will be phased in gradually. In addition, the statute in many instances calls for future rulemaking to implement its provisions, so the precise contours of the law and its effects on us cannot yet be fully understood. The provisions of the Dodd-Frank Act and the subsequent exercise by regulators of their revised and expanded powers thereunder could materially and negatively impact the profitability of our business, the value of assets we hold or the collateral available for our loans, require changes to business practices or force us to discontinue businesses and expose us to additional costs, taxes, liabilities, enforcement actions and reputational risk.

The short-term and long-term impacts of the new Basel III capital standards and the forthcoming new capital rules to be proposed for non-Basel III U.S. banks is uncertain.

The Basel Committee on Banking Supervision (Basel Committee) recently announced new standards that, if adopted, could lead to significantly higher capital requirements, higher capital charges, a cap on the level of mortgage servicing rights that can be included in capital, and more restrictive leverage and liquidity ratios. These new Basel III capital standards will be phased in from January 1, 2013 until January 1, 2019, and it is not yet known how these standards will be implemented by U.S. regulators or applied to community banks of our size. Implementation of these standards, or any other new regulations, might adversely affect our ability to pay dividends or require us to reduce business levels or raise capital, including in ways that may adversely affect our results of operations or financial condition.

 

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The loss of our key management or the inability to attract and retain key employees could result in a material adverse effect on our business.

The Bank Order requires us to attract and retain qualified management, including a chief executive officer and chief credit officer with the qualifications and experience to manage a bank of comparable size, upgrading low-quality loan portfolios, improving earnings and other matters needing particular attention. We depend on our executive officers and key personnel to continue the implementation of our business strategy and could be harmed by the loss of their services. We believe that our growth and future success will depend in large part upon the skills of our management team. Additionally, our future success and growth will depend upon our ability to recruit and retain highly skilled employees with strong community relationships and specialized knowledge in the financial services industry. The competition for qualified personnel in the financial services industry is intense, and the loss of our key personnel or an inability to continue to attract, retain and motivate key personnel could adversely affect our business. We cannot assure you that we will be able to retain our existing key personnel or attract additional qualified personnel.

The financial services industry is highly competitive.

We face heavy competition in virtually all aspects of our business, and the number and character of our competitors are continuing to increase. Among other things, investment accounts may cause clients to consider higher-earning alternatives to bank deposits, particularly during periods such as now, when deposit interest rates are near historic lows. Moreover, technology allows customers and prospective customers much greater access to accounts with other institutions that pay higher rates on deposits, which may limit our ability to raise deposits or increase the associated interest expense. Likewise, we face competition on loans from other commercial banks, as well as from credit unions, insurance companies, mutual funds, and other institutional investors; this competition may limit our earning capacity by limiting our ability to generate loans or by reducing the interest rates we can charge on our loans.

The strength and stability of other financial institutions may adversely affect our business.

Our counterparty risk exposure is affected by the actions and creditworthiness of other financial institutions with which we do business. Negative impacts to our counterparty financial institutions could affect our ability to engage in routine funding transactions. Financial services institutions are interrelated as a result of trading, clearing, counterparty or other relationships. Many of these types of transactions can expose us to credit risk in the event of default by a direct or indirect counterparty or client.

If other financial institutions in our markets dispose of real estate collateral at below-market or distressed prices, such actions may increase our losses and have a material adverse effect our financial condition and results of operations.

Our accounting policies and methods are fundamental to how we report our financial condition and results of operations, and we use estimates in determining the fair value of certain of our assets, which estimates may prove to be imprecise and result in significant changes in valuation.

A portion of our assets are carried on the balance sheet at fair value, including investment securities available for sale, mortgage servicing rights related to single family loans and single family loans held for sale. Generally, for assets that are reported at fair value, we use quoted market prices or internal valuation models that utilize observable market data inputs to estimate their fair value. In certain cases, observable market prices and data may not be readily available or their availability may be diminished due to market conditions. We use financial models to value certain of these assets. These models are complex and use asset-specific collateral data and market inputs for interest rates. Although we have processes and procedures in place governing internal valuation models and their testing and calibration, such assumptions are complex as we must make judgments

 

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about the effect of matters that are inherently uncertain. Different assumptions could result in significant changes in valuation, which in turn could affect earnings or result in significant changes in the dollar amount of assets reported on the balance sheet.

Our independent public accounting firm has identified certain significant deficiencies in our internal controls. If we fail to remediate these internal control deficiencies, address the potential for future deficiencies and maintain an effective system of internal controls over financial reporting, we may not be able to accurately report our financial results.

During their audit of our financial statements for the year ended December 31, 2010, our independent registered public accounting firm, identified certain deficiencies in our internal controls, including deficiencies considered to be significant deficiencies. A significant deficiency is a deficiency, or a combination of deficiencies, in internal controls over financial reporting that is less severe than a material weakness, yet important enough to merit attention by those responsible for oversight of the registrant’s financial reporting.

Specifically, our independent auditors identified a significant deficiency relating to a monitoring control over the adoption of new accounting policies. They also identified a significant deficiency relating to a monitoring control over the identification and ongoing evaluation of our non-GAAP accounting methods for materiality.

Management has taken steps to address these identified deficiencies through implementation of additional internal control procedures. However, it is possible that these deficiencies may not be fully remediated by these actions, or that we or our independent auditors may identify significant deficiencies in our internal control over financial reporting in the future. Any failure or difficulties in implementing and maintaining these controls could cause us to fail to meet the periodic reporting obligations that we will be subject to after this offering or result in material misstatements in our financial statements.

Our operations could be interrupted if our third-party service providers experience difficulty, terminate their services or fail to comply with banking regulations.

We depend, and will continue to depend, to a significant extent, on a number of relationships with third-party service providers. Specifically, we receive core systems processing, essential web hosting and other Internet systems and deposit and other processing services from third-party service providers. If these third-party service providers experience difficulties or terminate their services and we are unable to replace them with other service providers, our operations could be interrupted. If an interruption were to continue for a significant period of time, our business financial condition and results of operations could be materially adversely affected.

We continually encounter technological change, and we may have fewer resources than many of our competitors to continue to invest in technological improvements.

The financial services industry is undergoing rapid technological changes with frequent introductions of new technology-driven products and services. The effective use of technology increases efficiency and enables financial institutions to better serve customers and to reduce costs. Our future success will depend, in part, upon our ability to address the needs of our clients by using technology to provide products and services that will satisfy client demands for convenience, as well as to create additional efficiencies in our operations. Many national vendors provide turn-key services to community banks, such as internet banking and remote deposit capture that allow smaller banks to compete with institutions that have substantially greater resources to invest in technological improvements. We may not be able, however, to effectively implement new technology-driven products and services or be successful in marketing these products and services to our customers.

In addition, because of the demand for technology-driven products, banks are increasingly contracting with outside vendors to provide data processing and core banking functions. The use of technology-related products,

 

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services, delivery channels and processes exposes a bank to various risks, particularly transaction, strategic, reputation and compliance risks. There can be no assurance that we will be able to successfully manage the risks associated with our increased dependency on technology.

The network and computer systems on which we depend could fail or experience a security breach.

Our computer systems could be vulnerable to unforeseen problems. Because we conduct a part of our business over the Internet and outsource several critical functions to third parties, operations will depend on our ability, as well as the ability of third-party service providers, to protect computer systems and network infrastructure against damage from fire, power loss, telecommunications failure, physical break-ins or similar catastrophic events. Any damage or failure that causes interruptions in operations could have a material adverse effect on our business, financial condition and results of operations.

In addition, a significant barrier to online financial transactions is the secure transmission of confidential information over public networks. Our Internet banking system relies on encryption and authentication technology to provide the security and authentication necessary to effect secure transmission of confidential information. Advances in computer capabilities, new discoveries in the field of cryptography or other developments could result in a compromise or breach of the algorithms our third-party service providers use to protect customer transaction date. If any such compromise of security were to occur, it could have a material adverse effect on our business, financial condition and results of operations.

The cost of additional finance and accounting systems, procedures and controls in order to satisfy our new public company reporting requirements will increase our expenses.

As a result of the completion of this offering, we will become a public reporting company. We expect that the obligations of being a public company, including the substantial public reporting obligations and compliance with related regulations, will require significant expenditures and place additional demands on our management team. Compliance with these rules will, among other things, require us to assess our internal controls and procedures and evaluate our accounting systems. We have made, and will continue to make, changes to our internal controls and procedures for financial reporting and accounting systems to meet our reporting obligations as a public company. However, the measures we take may not be sufficient to satisfy these obligations. In addition, we have hired, and may need to hire further additional compliance, accounting and financial staff with appropriate public company experience and technical knowledge, and we may not be able to do so in a timely fashion. As a result, we may need to rely on outside consultants to provide these services for us until qualified personnel are hired. These obligations will increase our operating expenses, although we cannot predict or estimate the amount of additional costs we may incur in order to comply with these requirements, and could divert our management’s attention from our operations.

An interruption in or breach of our information systems could impair our ability to originate loans on a timely basis and may result in lost business.

We rely heavily upon communications and information systems to conduct our lending business. Any failure or interruption or breach in security of our information systems or the third-party information systems that we rely on could cause delays in our operations. We cannot assure you that no failures or interruptions will occur or, if they do occur, that we or the third parties on which we rely will adequately address them. The occurrence of any failures or interruptions could significantly harm our business, financial condition and results of operations.

Our growth or future losses may require us to raise additional capital in the future, but that capital may not be available when it is needed and that capital may be dilutive to shareholders.

We are required by federal and state regulatory authorities to maintain adequate levels of capital to support our operations. We believe the net proceeds of this offering will be sufficient to permit us to attain regulatory

 

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capital compliance, but we cannot guarantee that we will continue to meet our capital requirements. We may need to raise additional capital, and our ability to raise additional capital will depend on conditions in the capital markets at that time, which are outside our control, and on our financial condition and performance. Accordingly, we may not be able to raise additional capital on terms that are acceptable to us, if at all. If we cannot raise additional capital when needed, our operations could be materially impaired and our financial condition and liquidity could be materially and adversely affected. In addition, if we are unable to raise additional capital when required by the FDIC and the DFI, we may be subject to additional adverse regulatory action. We may be subject to more severe future regulatory enforcement actions if our financial condition or performance weakens further.

Hedging strategies that we use to manage various risks may be ineffective in mitigating those risks.

We typically use derivatives and other instruments to hedge against certain financial risks. Hedging is a complex process, requiring our managers to be highly qualified to design and manage sophisticated models that require constant monitoring. We use a variety of derivative financial instruments including futures, options, forward sales and interest rate swaps, among others. Our models and the related instruments may not fully correlate with the risks being hedged. If we fail to appropriately manage our hedging, our financial results may be adversely affected.

Federal, state and local consumer lending laws may restrict our ability to originate or increase our risk of liability with respect to certain mortgage loans and could increase our cost of doing business.

Federal, state and local laws have been adopted that are intended to eliminate certain lending practices considered “predatory.” These laws prohibit practices such as steering borrowers away from more affordable products, selling unnecessary insurance to borrowers, repeatedly refinancing loans, and making loans without a reasonable expectation that the borrowers will be able to repay the loans irrespective of the value of the underlying property. It is our policy not to make predatory loans, but these laws create the potential for liability with respect to our lending, servicing and loan investment activities. They increase our cost of doing business, and ultimately may prevent us from making certain loans and cause us to reduce the average percentage rate or the points and fees on loans that we do make.

Risks Associated with our Securities

There has been no trading market for our common stock and an active market may not be developed or maintained, and the market price of our common stock may be volatile.

Before this offering, there has been no public market for our common stock. Although we have applied for listing of our common stock on the Nasdaq Global Market, an active trading market for our common stock may never develop or be sustained. In addition, you will pay a price for our common stock in this offering that was not established in a competitive market. Instead, you will pay a price that we negotiated with the underwriter. See “Underwriting” for factors considered in determining the initial public offering price. The initial public offering price does not necessarily bear any relationship to our book value or the fair market value of our assets and may be higher than the market price of our common stock after this offering. In particular, we cannot assure you as to:

 

   

the likelihood that an active public trading market for the shares of our common stock will develop after this offering, or, if developed, that a public trading market can be sustained;

 

   

the liquidity of any such market;

 

   

the ability of our shareholders to sell their shares of our common stock; or

 

   

the price that our shareholders may obtain for their shares of our common stock.

 

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If no public market develops, it may be difficult or impossible to resell our common stock if you should desire to do so. Even if an active trading market develops, the market price for shares of our common stock may be highly volatile and could be subject to wide fluctuations after this offering. We cannot predict how the shares of our common stock will trade in the future. Some of the factors that could negatively affect our share price include:

 

   

actual or anticipated variations in our quarterly operating results and, in particular, further deterioration of asset quality;

 

   

changes in revenue or financial estimates or publication of research reports and recommendations by financial analysts;

 

   

publication of research reports about us or the commercial and residential real estate industry;

 

   

our ability to continue as a going concern;

 

   

fluctuations in the stock price and operating results of our competitors;

 

   

our ability to execute our business plan and forecasted growth;

 

   

additions or departures of key management personnel;

 

   

proposed or adopted regulatory changes or developments;

 

   

speculation in the press or investment community;

 

   

issuances of new equity pursuant to future offerings; and

 

   

general market and economic conditions.

The stock market and, in particular, the market for financial institution stocks, has experienced significant volatility recently. As a result, the market price of our common stock may be volatile. The trading price of our common stock will depend on many factors, which may change from time to time, including, without limitation, our financial condition, performance, creditworthiness and prospects, future sales of our equity or equity related securities and other factors identified in the Summary above under the heading “Forward-Looking Statements.” Accordingly, the shares of our common stock that an investor purchases, whether in this offering or in the secondary market, may trade at a price lower than that at which they were purchased. In some cases, the markets have produced downward pressure on stock prices and credit availability for certain issuers without regard to those issuers’ underlying financial strength.

A significant decline in our stock price could result in substantial losses for individual stockholders and could lead to costly and disruptive securities litigation.

Your interest in us may be diluted if we issue additional shares.

Existing shareholders and potential investors in this offering do not have preemptive rights to purchase or subscribe for any common stock issued by us in the future. Subject to market conditions, we may take further capital raising actions in addition to the issuance of our common stock offered by this prospectus. Such actions could include, among other things, the issuance of additional shares of our common stock in public or private transactions. In addition, we face significant regulatory and other governmental risk as a financial institution, and it is possible that capital requirements and directives could in the future require us to change the amount or composition of our current capital, including common equity.

 

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Therefore, investors purchasing shares in this offering may experience dilution of their equity investment if we sell additional common stock in the future, sell securities that are convertible into common stock or issue options or warrants exercisable for shares of common stock. In addition, we could sell securities at a price less than the then-current net asset value per share.

Shortly after this offering, we intend to file a registration statement on Form S-8 to register shares of our common stock issuable under our 2010 Equity Incentive Plan as well as shares to be issued as awards under a director equity compensation plan, and a registration statement to register the resale of shares held in our Employee Stock Ownership Plan. All of these shares of our common stock will be freely tradable without restriction or further registration under the federal securities laws except to the extent purchased by one of our affiliates. See “Shares Eligible for Future Sale.”

If the proceeds from this offering are not sufficient to satisfy our capital and liquidity needs or to satisfy changing regulatory requirements, we may need even more capital and could be subject to further regulatory restrictions, either of which could significantly adversely affect us and the trading price of our stock.

We must maintain certain minimum regulatory capital ratios. While we believe that the capital expected to be raised through this offering should be sufficient capital for our operations, including satisfaction of the capital requirements set forth in the Bank Order, if we are unable to meet our minimum capital ratios, we may be forced to raise additional capital. In addition, we may elect to raise additional capital to support our business or to finance potential acquisitions, if any, or we may otherwise elect to raise additional capital. No assurance can be given that sufficient additional capital would be available on acceptable terms or at all. Factors affecting whether we would need to raise additional capital include, among others, changing requirements of regulators, additional provisions for loan losses and loan charge-offs and other risks discussed in this “Risk Factors” section.

Our ability to raise additional capital will depend on conditions in the capital markets at such time that are outside our control, as well as on our financial performance. If sufficient capital were not available, we would consider a variety of alternatives, including the sale of assets. Under such forced-sale conditions, we may not be able to realize the fair value of the assets sold. Other alternatives would include changing our business practices or entering into additional equity transactions. Even if capital is available, the terms and pricing of such securities may be dilutive to existing shareholders and cause the price of our outstanding securities to decline.

Some provisions of our articles of incorporation and bylaws and certain provisions of Washington law may deter takeover attempts, which may limit the opportunity of our shareholders to sell their shares at a favorable price.

Some provisions of our articles of incorporation and bylaws may have the effect of deterring or delaying attempts by our shareholders to remove or replace management, to commence proxy contests, or to effect changes in control. These provisions include:

 

   

a classified board of directors so that only approximately one third of our board of directors is elected each year;

 

   

elimination of cumulative voting in the election of directors;

 

   

procedures for advance notification of shareholder nominations and proposals;

 

   

the ability of our board of directors to amend our bylaws without shareholder approval; and

 

   

the ability of our board of directors to issue shares of preferred stock without shareholder approval upon the terms and conditions and with the rights, privileges and preferences as the board of directors may determine.

 

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In addition, as a Washington corporation, we are subject to Washington law which imposes restrictions on some transactions between a corporation and certain significant shareholders. These provisions, alone or together, could have the effect of deterring or delaying changes in incumbent management, proxy contests or changes in control.

There are substantial regulatory limitations on ownership of our common stock and changes of control.

Federal regulations place limitations on the level of ownership of our common stock. Under the Federal Change in Bank Control Act and the Savings and Loan Holding Company Act, a notice must be submitted to the OTS if any person (including a company), or group acting in concert, seeks to acquire “control” of a savings and loan holding company or savings association. An acquisition of “control” can occur upon the acquisition of 10.0% or more of any class of the voting stock of a savings and loan holding company or savings institution or as otherwise defined by the OTS. Under the Change in Bank Control Act, the OTS has 60 days from the filing of a complete notice to act, taking into consideration certain factors, including the financial and managerial resources of the acquirer and the antitrust effects of the acquisition. Any company that so acquires control would then be subject to regulation as a savings and loan holding company.

We have deferred payment of the interest on our outstanding TruPS for each quarter since December 15, 2008 and, accordingly, we are prohibited from declaring or paying dividends or distributions on, and from making liquidation payments with respect to, our common stock.

There are currently four separate series of the TruPS outstanding, each issued under a separate indenture and with a separate guarantee. Each of these indentures, together with the related guarantee, prohibits us, subject to limited exceptions, from declaring or paying any dividends or distributions on, or redeeming, repurchasing, acquiring or making any liquidation payments with respect to, any of our capital stock at any time when (a) there is an event of default under such indenture (including a default that will occur solely with passage of time); (b) we are in default with respect to payment of any obligations under such guarantee; or (c) we have deferred payment of interest on the debentures outstanding under that indenture. We are entitled, at our option but subject to certain conditions, to defer payments of interest on each series of debentures from time to time for up to five years.

Events of default under each indenture generally consist of our failure to pay interest on the TruPS (except in certain circumstances, including a deferral of interest described in (c) above), our failure to pay any principal of, or premium, if any, on, such TruPS when due, our failure to comply with certain covenants under such indenture, and certain events of bankruptcy, insolvency or liquidation relating to us or, in some cases certain of our significant subsidiaries.

Because we have deferred payments of interest on each series of the TruPS, we are prohibited by the indentures from declaring or paying any dividends on our common stock, repurchasing or otherwise acquiring our common stock and making any payments to holders of our common stock in the event of our liquidation. These restrictions, which will continue until we are current on interest payments with respect to these indentures, may have a material adverse effect on the market value of our common stock. This will cause us to incur increasing interest expense as deferred interest payments are capitalized to principal, and may limit our ability to raise additional capital.

The proceeds of this offering are intended to be used, in part, to pay deferred interest payments and to provide liquidity at HomeStreet, Inc. for the payment of future interest on TruPS in the event that HomeStreet Bank is unable to make sufficient dividend distributions to HomeStreet, Inc. to make future interest payments. No assurance can be given that the proceeds from the successful completion of this offering will be sufficient for these purposes.

 

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Moreover, without notice to or consent from the holders of our common stock, we may issue additional series of TruPS in the future with terms similar to those of the existing debentures, or enter into other financing agreements that limit our ability to purchase or to pay dividends or distributions on our capital stock, including our common stock.

Management and the board of directors have significant discretion over the investment of the offering proceeds and may not be able to achieve acceptable returns on the proceeds from the offering.

We will have significant flexibility in determining how to apply the net proceeds of this offering, and you will not be able to influence how we deploy this capital in the near term. If we do not apply these funds effectively, we may lose significant business opportunities. Our management may use the proceeds from this offering for corporate purposes that may not increase our market value or make us profitable. Our failure to utilize these funds effectively could reduce our profitability and our stock price could decline if the market does not view our use of the net proceeds from this offering favorably. We have not established a timetable for the effective deployment of the proceeds, and we cannot predict how long it will take to deploy the proceeds. Investing the offering proceeds in securities until we are able to deploy the proceeds will provide lower margins than we generally earn on loans, potentially adversely affecting shareholder returns, including earnings per share, return on assets and return on equity.

An investment in our common stock is not an insured deposit.

Our common stock is not a bank savings account or deposit and, therefore, is not insured against loss by the FDIC, any other deposit insurance fund or any other public or private entity. As a result, if you acquire our common stock, you could lose some or all of your investment.

 

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FORWARD-LOOKING STATEMENTS

This prospectus, including statements under “Summary,” “Risk Factors,” “Dividend Policy,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Business” and elsewhere, contains forward-looking statements concerning the Company, the Bank, and their respective subsidiaries, operations, performance, financial conditions and likelihood of success. Forward-looking statements are based on many beliefs, assumptions, estimates and expectations of our future performance, taking into account information currently available to us, and include statements about the competitiveness of the banking industry. When used in this prospectus, the words “anticipate,” “believe,” “could,” “estimate,” “expect,” “intend,” “may,” “plan,” “potential,” “should,” “will” and “would” and similar expressions (or the negative of these terms) generally identify forward-looking statements. Statements regarding the following subjects, among others, are forward-looking by their nature:

 

   

our business strategy and projected operating results;

 

   

our ability to effectively implement and manage our turnaround plan;

 

   

the removal of the Orders, including the date by which the Orders will be removed, if at all;

 

   

our ability to effectively use the proceeds of this offering;

 

   

our ability to grow, including managing that growth;

 

   

the quality of our loan and investment portfolios;

 

   

our ability to compete in the marketplace;

 

   

market trends; and

 

   

projected capital and operating expenditures.

Our beliefs, assumptions and expectations can change as a result of many possible events or factors, not all of which are known to us or within our control. If a change occurs, our business, financial condition, liquidity and results of operations may vary materially from those expressed in our forward-looking statements. You should carefully consider these risks before you make an investment decision with respect to our common stock, along with, among others, the following factors that could cause actual results to vary from our forward-looking statements:

 

   

the factors referenced in this prospectus, including those set forth under the sections captioned “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Business”;

 

   

our ability to manage the credit risks of our lending activities, including potential increases in loan delinquencies, nonperforming assets and write offs, decreased collateral values, inadequate loan reserve amounts and the effectiveness of our hedging strategies;

 

   

general economic conditions, either nationally or in our market area, including a continuation or worsening of the housing market, employment trends, business contraction, consumer confidence, real estate values and other recessionary pressures;

 

   

changes in the levels of general interest rates, deposit interest rates, our net interest margin and funding sources;

 

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potential changes in interest rates which may affect demand for our products as well as the success of our interest rate risk management strategies;

 

   

compliance with regulatory requirements, including new laws and regulations such as the Dodd-Frank Act as well as restrictions that may be imposed by the OTS, the FDIC, the DFI, the Federal Reserve Board or other regulatory authorities pursuant to the cease and desist orders or other discretionary enhanced supervision which could adversely affect our capital, liquidity and earnings;

 

   

our ability to control costs while meeting operational needs and retaining key members of our senior management team and other key managers and business producers;

 

   

the possibility of a significant reduction in our mortgage banking profitability if we are not able to or are limited in our ability to resell mortgages; and

 

   

increased competition in our industry due in part to consolidation.

Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future results, levels of activity, performance or achievements. You should not place undue reliance on these forward-looking statements, which apply only as of the date of this prospectus. We are not obligated to update any forward-looking statements, whether as a result of new information, future events or otherwise.

Nothing contained in this prospectus is, or should be relied upon as, a promise, a guaranty or representation as to our future performance. You may lose some or all of your investment if you invest in our common stock.

NOTE REGARDING MARKET AND INDUSTRY DATA

This prospectus contains market and industry data that we have obtained from independent industry sources and publications as well as from research and third party and governmental reports and publications prepared for other purposes. Although we believe that these sources are reliable, neither we nor the underwriters have independently verified the data obtained from these sources.

 

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USE OF PROCEEDS

We estimate that the net proceeds that we will receive in this offering will be approximately $              , based upon the expected sale of              shares of our common stock by us in this offering at an assumed offering price of $              per share and after deducting the underwriter’s discounts and commissions and estimated offering expenses payable by us. This estimated amount of net proceeds assumes that the underwriters’ over allotment option is not exercised. If the over allotment option is exercised in full, our net proceeds are expected to be approximately $              .

We intend to contribute approximately $ 150.0 million of net proceeds from this offering to the Bank as equity capital in order to help us comply with the minimum capital ratio requirements of the Orders. We have reviewed with our regulators our expectations regarding this offering and the implementation of our accelerated asset resolution plan, or “AARP,” including pro forma capital ratios and asset quality measures. Based on those discussions, we believe the actions taken to date, the successful completion of this offering and the contribution of $150.0 million of the proceeds hereof, and the successful execution of the AARP will allow us to satisfy the requirements of the Orders. The actual contribution to the Bank of proceeds from this offering will be an amount management determines to be adequate to bring the Bank into compliance with the capital adequacy provisions of the Bank Order (see “Regulation and Supervision – Cease and Desist Orders – Bank Order”), but the amount contributed will take into account, among other things, changes in average assets and variations in the Bank’s net income that affect our actual regulatory capital ratios between March 31, 2011 and the completion of this offering. While we expect to continue to incur operating losses in the near term, should we incur higher than anticipated operating losses or significant further deterioration in asset quality, the proceeds of the offering and results of the AARP may not be sufficient to satisfy the capital ratio and asset quality requirements of the Bank Order. If the proceeds of the offering and the results of the AARP are insufficient to satisfy the Orders, we will continue to execute the elements of our turnaround plan until such time as we have satisfied the requirements of the Orders. If either or both of the Orders remain in effect we will continue to face significant restrictions on our operations. See “Business — Turnaround Plan.”

We intend to utilize a portion of the net proceeds from this offering to pay deferred interest on our TruPs. Since December 2008, we have elected to defer interest payments totaling $9.1 million as of March 31, 2011 on our TruPs as allowed under the related agreements.

The remaining proceeds will be used by HomeStreet, Inc., for general corporate purposes.

The amount and timing of the actual use of proceeds described above may vary significantly and depend on a number of factors. See “Risk Factors,” “Regulation and Supervision — Cease and Desist Order.”

 

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CAPITALIZATION

The following table sets forth, among other things, our cash and cash equivalents, liabilities, capitalization and regulatory capital ratios as of March 31, 2011:

 

   

on an actual basis; and

 

   

on a pro forma basis to give effect to, and show the impact of, the issuance of our common stock in this offering at $             per share, net of the underwriters’ discounts and commissions and other offering expenses paid by us in connection with this offering and, as to the Bank’s capital ratios, the contribution of $150.0 million from the proceeds of this offering to the Bank.

This table should be read in conjunction with the more detailed information contained elsewhere in this prospectus, including “Use of Proceeds,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Selected Historical Consolidated Pro Forma and Separate Financial and Other Data” and the audited annual and unaudited interim financial statements and other financial information and related notes included elsewhere in this prospectus. Proforma capital ratios depicted below assume a contribution to the Bank of $150.0 million from the proceeds of this offering. The actual contribution will be an amount management determines to be adequate to bring the Bank into compliance with the capital adequacy provisions of the Bank Order (see “Regulation and Supervision – Cease and Desist Orders – Bank Order”), but the amount contributed will take into account, among other things, changes in average assets and variations in the Bank’s net income that affect our actual regulatory capital ratios between March 31, 2011 and the completion of this offering.

 

    As reported     Adjustments  
      Offering of the
Common Stock
Pursuant to this
Prospectus
    Pro Forma  

Liabilities

     

Deposits

  $ 2,066,842       

FHLB Advances

  $ 114,544       

Senior debentures

  $ 61,857       

Accrued expenses and other liabilities

  $ 48,182       
                       

Total liabilities

  $ 2,291,425       
                       

Shareholders’ Equity

     

Preferred stock, no par value; 10,000 shares authorized; no shares issued and outstanding

     

Common stock, no par value; 100,000,000 shares authorized; 3,377,186 shares issued and outstanding, actual; and             shares issued and outstanding, pro forma

  $ 511       

Additional paid in capital

  $ 20       

Retained earnings

  $ 58,178       

Treasury stock

     

Accumulated other comprehensive loss, net of taxes

  $ (7,495    
                       

Total shareholders’ equity

  $ 51,214       
                       

Per Common Share

     

Common book value per share

  $ 15.16       

Tangible common book value per share

  $ 15.04       
                       

Regulatory Capital Ratios for the Bank:

     

Tier 1 Core Capital Ratio

    4.5    

Tier 1 Risk-Based Capital Ratio

    7.0    

Total Risk-Based Capital Ratio

    8.3    

 

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DILUTION

If you invest in our common stock, your interest will be diluted to the extent of the difference between the price per share you pay and our net tangible book value per share immediately after this offering.

Our net tangible book value per share represents the amount of our total tangible assets reduced by the amount of our total liabilities and divided by the total number of shares of common stock outstanding. Dilution in net tangible book value per share represents the difference between the amount per share paid by purchasers of shares of our common stock in this offering and the pro forma net tangible book value per share of our common stock as adjusted for the expected sale of              shares of our common stock by us in this offering at an assumed offering price of $              per share and for our receipt of the estimated net proceeds of that sale after deducting the estimated underwriter’s discounts and commissions and estimated offering expenses payable by us.

Our net tangible book value as of March 31, 2011 was $ 50.8 million, or $ 15.04 per share of our common stock. Based on the foregoing, our pro forma, net tangible book value as adjusted and as of the completion of this offering would be approximately $              , or $              per share of our common stock. This amount represents an immediate increase in net tangible book value of $              per share to our shareholders as of December 31, 2010, and an immediate dilution in net tangible book value of $              per share of our common stock to purchasers in this offering. The following table illustrates this per share dilution:

 

Assumed initial public offering price before any transaction costs

      $                

Pro forma net tangible book value of each share of our common stock as of              , 2011

   $                   

Increase in net tangible book value of each share of our common stock attributable to new investors

   $        

Pro forma, as adjusted net tangible book value of each share of our common stock assuming the completion of this offering

      $     

Dilution in pro forma net tangible book value of each share of our common stock to new investors

      $     

If the underwriters exercise in full their over-allotment option, dilution per share to new investors would be approximately $              based on the assumptions set forth above.

The following table summarizes, as of March 31, 2011, on the pro forma basis, as adjusted, described above, the differences between existing shareholders and new investors with respect to the number of shares of our common stock purchased from us, the total consideration paid and the average price per share paid before deducting the underwriter’s discounts and commissions and our estimated offering expenses.

 

     Shares Purchased      Total Consideration      Average Price
Per Share
 
     Number      Percentage      Amount      Percentage     

Existing shareholders

              

New investors in this offering

              

Total

              

As of March 31, 2011, there were options outstanding to purchase an aggregate of 279,000 shares of our common stock with exercise prices ranging from $0.90 to $1.20 per share. Following the closing of this offering, we will also have available for issuance as awards under our 2010 Equity Incentive Plan an additional number of shares of common stock equal to 10.0% of the number of issued and outstanding shares of our common stock following the closing of this offering calculated on a fully diluted basis. We also will have available for issuance up to 105,000 shares of common stock that will be issuable to our non-employee directors as part of their annual compensation under our 2011 Director Equity Incentive Plan.

 

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DIVIDEND POLICY

The board of directors of HomeStreet, Inc. has in the past authorized an annual cash dividend. The most recent dividend it declared was paid on April 15, 2008 to shareholders of record as of April 1, 2008 at a rate of $0.90 per share, which equated to $3.0 million, or 14.8% of our net income for the year ended December 31, 2007.

The amount and timing of any future dividends has not been determined. The payment of dividends will depend upon a number of factors, including capital requirements, the Company’s and the Bank’s financial condition and results of operations, tax considerations, statutory and regulatory limitations, general economic conditions and certain restrictions described below.

We are currently subject to a cease and desist order issued by the OTS that prohibits us from declaring, making or paying any dividends on our common stock without the prior written consent of the OTS. See “Regulation and Supervision — Cease and Desist Orders” for information on that regulatory restriction.

Our outstanding trust preferred securities, or TruPS, also restrict the payment of dividends under the terms of their indentures. We have issued $61.9 million in junior subordinated debentures in connection with the sale of TruPS by the HomeStreet Statutory Trusts. The related indenture agreements, guarantees and declarations of trust for each statutory trust prohibit us, subject to limited exceptions, from declaring or paying any dividends or distributions on, or redeeming, repurchasing, acquiring or making any liquidation payments with respect to, any of our capital stock at any time when (1) an event of default has occurred or is occurring under such debentures (2) we are in default with respect to payment of any obligations under such guarantee or (3) we have deferred payment of interest on the outstanding junior subordinated debentures, which deferral of interest is permitted by the terms of the indentures from time to time for up to five years. We have deferred payment of interest on all of the junior subordinated debentures for each quarter since December 15, 2008. Accordingly, the restrictions on dividends and repurchases described in this paragraph are effective and will continue to be effective until we are current on our interest payments with respect to the junior subordinated debentures. See “Business — Our Structure.”

Our ability to pay dividends will also depend, in large part, upon receipt of dividends from the Bank. We will have limited sources of income other than dividends from the Bank and earnings from the investment of proceeds from this offering that we retain. The Bank is also currently subject to a cease and desist order issued by the FDIC and the DFI that prohibits the Bank from declaring, making or paying any dividends on its common stock without prior written consent of the FDIC and the DFI. See “Regulation and Supervision — Cease and Desist Orders” for more information on that regulatory restriction.

For the foregoing reasons, there can be no assurance that we will pay dividends on our common stock in any future period.

 

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SELECTED HISTORICAL CONSOLIDATED FINANCIAL AND OTHER DATA

The following table sets forth selected historical consolidated financial and other data for us at and for each of the periods ended as described below. The selected historical consolidated financial data as of and for the three months ended March 31, 2011 and 2010 have been derived from our unaudited consolidated financial statements and related notes included in this prospectus. The selected historical consolidated financial data as of December 31, 2010 and 2009 and for each of the years ended December 31, 2010, 2009 and 2008 have been derived from, and should be read together with, our audited consolidated financial statements and related notes included elsewhere in this prospectus. The selected historical consolidated financial data as of December 31, 2008, 2007 and 2006 for each of the years ended December 31, 2007 and 2006 have been derived from our audited consolidated financial statements for those years, which are not included in this prospectus. You should read the summary selected historical consolidated financial and other data presented below in conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and our financial statements and the notes thereto, which are included elsewhere in this prospectus. We have prepared our unaudited information on the same basis as our audited consolidated financial statements and have included, in our opinion, all adjustments that we consider necessary for a fair presentation of the financial information set forth in that information.

 

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    At or for the Three Months
Ended March 31,
    At or for the Year Ended December 31,  
    2011     2010     2010     2009     2008     2007     2006  

(in thousands, except share data)

  

           

Income Statement (for the period ended):

             

Net interest income

  $ 11,590      $ 7,115      $ 39,034      $ 31,502      $ 75,885      $ 90,037      $ 86,779   

Provision for loan losses

           7,000        37,300        153,515        34,411        10,955        6,471   

Noninterest income

    14,465        15,734        96,931        59,230        40,346        23,298        19,313   

Noninterest expense

    33,461        20,940        132,215        94,448        70,189        71,253        68,131   
                                                       

Net (loss) income before taxes

    (7,406     (5,091     (33,550     (157,231     11,631        31,127        31,490   

Income taxes

    43               697        (46,955     3,202        10,663        10,173   
                                                       

Net (loss) income

  $ (7,449   $ (5,091   $ (34,247   $ (110,276   $ 8,429      $ 20,464      $ 21,317   
                                                       

Basic earnings per common share

  $ (2.21   $ (1.51   $ (10.14   $ (32.65   $ 2.50      $ 6.06      $ 6.30   

Diluted earnings per common share

  $ (2.21   $ (1.51   $ (10.14   $ (32.65   $ 2.50      $ 6.04      $ 6.24   

Common share outstanding

    3,377,186        3,377,186        3,377,186        3,377,186        3,377,186        3,368,204        3,379,606   

Weighted average common shares

             

Basic

    3,377,186        3,377,186        3,377,186        3,377,186        3,371,622        3,376,351        3,384,162   

Diluted

    3,377,186        3,377,186        3,377,186        3,377,186        3,375,894        3,390,692        3,416,195   

Shareholders’ equity per share

  $ 15.16      $ 28.53      $ 17.41      $ 27.21      $ 61.03      $ 58.80      $ 53.36   

Dividends per share

  $      $      $      $      $ 0.90      $ 0.90      $ 0.85   

Dividend payout ratio

                                36.00     14.85     13.49

Financial position (at period end):

  

           

Cash and cash equivalents

  $ 170,795      $ 220,468      $ 72,639      $ 217,103      $ 270,577      $ 43,635      $ 53,972   

Investment securities available for sale

    304,404        643,324        313,513        657,840        56,337        111,621        115,327   

Loans held for sale

    82,803        53,280        212,602        57,046        48,636        77,969        67,914   

Loans held for investment, net

    1,500,550        1,907,489        1,538,521        1,964,994        2,425,887        2,428,214        2,067,247   

Mortgage servicing rights (1)

    95,952        83,402        87,232        78,372        57,699        53,422        50,270   

Other real estate owned

    98,863        123,411        170,455        107,782        20,905        1,974        1   

Total assets

    2,342,639        3,169,749        2,485,697        3,209,536        2,958,911        2,793,935        2,428,054   

Deposits

    2,066,842        2,293,093        2,129,742        2,332,333        1,911,311        1,717,681        1,536,768   

FHLB advances

    114,544        674,715        165,869        677,840        705,764        746,386        575,063   

Shareholders’ equity

    51,214        96,365        58,789        91,896        206,103        198,052        180,322   

Financial position (averages):

             

Investment securities available for sale

    141,309        201,937        457,930        372,320        119,720        113,333        133,424   

Loans held for investment

    1,589,182        2,046,590        1,868,039        2,307,215        2,519,811        2,239,639        1,901,996   

Total interest earning assets

    2,145,093        2,956,932        2,642,693        3,056,755        2,762,723        2,435,145        2,103,862   

Total interest bearing deposits

    1,889,742        2,106,716        2,071,237        2,012,971        1,557,533        1,452,742        1,255,402   

FHLB advances

    159,829        375,791        382,083        685,715        734,989        617,225        520,881   

Total interest bearing liabilities

  $ 2,114,062      $ 2,849,547      $ 2,522,767      $ 2,776,163      $ 2,485,786      $ 2,170,807      $ 1,863,969   

Shareholders’ equity

  $ 58,130      $ 94,798      $ 90,732      $ 150,866      $ 199,058      $ 190,590      $ 169,977   

Financial performance:

             

Return on average common shareholder equity (2)

    (51.26 )%      (18.76 )%      (38.00 )%      (68.90 )%      4.23     10.74     12.54

Return on average assets

    (1.25 )%      (0.56 )%      (1.19 )%      (3.47 )%      0.29     0.79     0.96

Net interest margin (3)

    2.17     0.96     1.49     1.04     2.78     3.68     4.16

Efficiency ratio (4)

    128.42     91.65     97.24     104.10     60.39     62.87     64.22

Operating efficiency ratio (5)

    83.31     58.60     73.56     92.55     59.06     62.82     64.17

 

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    At or for the Three Months
Ended March 31,
    At or for the Year Ended December 31,  
    2011     2010     2010     2009     2008     2007     2006  

Credit quality:

             

Allowance for loan losses

  $ 62,156      $ 104,724      $ 64,177      $ 109,472      $ 58,587      $ 38,804      $ 27,834   

Allowance for loan losses/Total loans

    3.98     5.20     4.00     5.28     2.36     1.57     1.33

Allowance for loan losses/nonperforming loans

    50.08     32.03     56.69     29.25     77.72     114.95     2,181.35

Total classified assets

  $ 298,742      $ 525,792      $ 363,947      $ 570,013      $ 376,424      $ 114,797      $ 34,418   

Classified assets/total assets

    12.75     16.59     14.64     17.76     12.72     4.11     1.42

Total nonaccrual loans (6)

  $ 124,118      $ 327,007      $ 113,210      $ 374,218      $ 75,386      $ 33,757      $ 1,276   

Nonaccrual loans/Total loans

    7.94     16.25     7.06     18.04     3.03     1.37     0.06

Total nonperforming assets

  $ 222,981      $ 450,417      $ 283,665      $ 482,000      $ 96,289      $ 35,731      $ 1,277   

Nonperforming assets/total assets

    9.52     14.21     11.41     15.02     3.25     1.28     0.05

Net charge-offs

  $ 2,100      $ 11,748      $ 83,156      $ 101,680      $ 14,628      $ (15   $ 117   

Regulatory capital ratios for the bank:

             

Tier 1 capital to total assets (leverage)

    4.50     4.60     4.50     4.50     8.70     9.00     9.90

Tier 1 risk-based capital

    7.00     7.30     6.90     7.20     10.50     9.90     11.00

Total risk-based capital

    8.30     8.60     8.20     8.50     11.80     11.20     12.30

SUPPLEMENTAL DATA:

             

Loans serviced for others:

             

Single-family

  $ 6,521,284      $ 5,911,904      $ 6,343,158      $ 5,820,946      $ 4,695,804      $ 3,775,362      $ 3,389,050   

Multifamily

    784,445        798,907        776,671        810,910        822,512        715,946        729,715   

Other

    58,150        69,392        58,765        69,839        74,230        77,329        53,682   
                                                       

Total loans serviced for others

  $ 7,363,879      $ 6,780,203      $ 7,178,594      $ 6,701,695      $ 5,592,546      $ 4,568,637      $ 4,172,447   
                                                       

Loan origination activity:

             

Single-family

  $ 276,894      $ 335,317      $ 2,069,144      $ 2,727,457      $ 1,735,897      $ 1,568,834      $ 1,445,218   

Other

    11,276        27,114        120,058        124,433        817,438        1,332,147        1,650,072   
                                                       

Total loan origination activity

  $ 288,170      $ 362,431      $ 2,189,202      $ 2,851,890      $ 2,553,335      $ 2,900,981      $ 3,095,290   
                                                       

 

(1) On January 1, 2010, we elected to carry mortgage servicing rights related to single family loans at fair value, and elected to carry single family mortgage loans held for sale using the fair value option.

 

(2) Net earnings (loss) available to common shareholders divided by average common shareholders’ equity.

 

(3) Net interest income divided by total average earning assets on a taxable-equivalent basis.

 

(4) The efficiency ratio is noninterest expense divided by total revenue (net interest income and noninterest income).

 

(5) We include an operating efficiency ratio which is not calculated based on accounting principles generally accepted in the United States (“GAAP”), but which we believe provides important information regarding our result of operations. Our calculation of the operating efficiency ratio is computed by dividing noninterest expense less costs related to OREO (gains (losses) on sales, valuation allowance adjustments, and maintenance and taxes) by total revenue (net interest income and noninterest income). Management uses this non-GAAP measurement as part of its assessment of performance in managing noninterest expense. We believe that costs related to OREO are more appropriately considered as credit-related costs rather than as an indication of our operating efficiency. The following table provides a reconciliation of non-GAAP to GAAP measurement.

 

     At or for the Three Months
Ended March 31,
    At or for the Year Ended December 31,  
         2011             2010         2010     2009     2008     2007     2006  

Efficiency ratio

     128.42     91.65     97.24     104.10     60.39     62.87     64.22

Less impact of OREO expenses

     45.11     33.04     23.68     11.55     1.33     0.05     0.05
                                                        

Operating efficiency ratio

     83.31     58.60     73.56     92.55     59.06     62.82     64.17
                                                        

 

(6) Generally, loans are placed on nonaccrual status when they are 90 or more days past due.

 

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MANAGEMENT’S DISCUSSION AND ANALYSIS OF

FINANCIAL CONDITION AND RESULTS OF OPERATIONS

This section presents management’s perspective on the financial condition and results of operations of HomeStreet, Inc. The following discussion and analysis is intended to highlight and supplement data and information presented elsewhere in this prospectus, including the consolidated financial statements and related notes, and should be read in conjunction with the accompanying tables and our annual audited and quarterly unaudited financial statements. To the extent this discussion describes prior performance, the descriptions relate only to the periods listed and readers are cautioned that prior performance may not be indicative of our future financial outcomes. In addition, some of the information contained in this section or set forth elsewhere in this prospectus, including discussions about our plans and strategy for our business and our expectations for the effects of those plans, includes forward-looking statements that involve risks, uncertainties and assumptions. See “Forward-Looking Statements” described in the Summary section above. Actual results could differ materially from the results described in or implied by the forward-looking statements contained in the following discussion and analysis as a result of many factors, including those discussed in “Risk Factors.”

Overview

We are a 90-year-old diversified financial services company headquartered in Seattle, Washington, that has grown from a small mortgage bank to a full-service community bank serving consumers and businesses in the Pacific Northwest and Hawaii. In 1986 we established the Bank to fund our lending activities and to offer a broader range of products and services. Our banking strategy has allowed us to expand our lending activities while building stable core deposits and a more diversified core customer base that offers cross-selling opportunities. The Bank has the oldest continuous relationship of all Fannie Mae seller servicers in the nation, having been the second company approved by Fannie Mae at its founding in 1938.

Our primary subsidiaries are HomeStreet Bank and HomeStreet Capital Corporation. HomeStreet Bank is a Washington state-chartered savings bank that provides deposit and investment products and cash management services. The Bank also provides loans for single family homes, commercial real estate, construction, land development and commercial businesses. HomeStreet Capital Corporation, a Washington corporation, originates, sells and services multifamily mortgage loans under the Fannie Mae Delegated Underwriting and Servicing Program (“DUS”) in conjunction with HomeStreet Bank. We also provide insurance products and services for consumers and businesses as HomeStreet Insurance and loans for single family homes through a joint venture, Windermere Mortgage Services Series LLC (“WMS”). At March 31, 2011, we had total assets of $2.34 billion, net loans held for investment of $1.50 billion, deposits of $2.07 billion, and shareholders’ equity of $51.2 million. At December 31, 2010, we had total assets of $2.49 billion, net loans held for investment of $1.54 billion, deposits of $2.13 billion and shareholders’ equity of $58.8 million.

We earn a profit by generating positive “net interest income” which is primarily the difference between our interest income earned on loans and investment securities less the interest we pay on deposits, Federal Home Loan Bank advances, and other borrowings. Our net interest income does not include “noninterest income” from origination, sale and servicing of loans, and fees earned on deposit services and investment and insurance sales.

Beginning in approximately 2004, we increased our concentration in construction lending in an effort to offset the earnings volatility of our single family lending. We also expanded our branch network in order to grow our deposit base to help fund these loans. However, driven by our opportunities to lend in the fast-growing residential construction sector, we also continued to supplement the funding provided by our growing core deposit base with higher cost and potentially more volatile noncore retail and brokered certificates of deposits and with borrowings that included increasing advances on our line of credit with the Federal Home Loan Bank of Seattle (the “FHLB”). Additionally, to fund the scheduled maturity of our $30.0 million senior credit facility with USAA Life Insurance Company and to augment working capital at HomeStreet, Inc. and regulatory capital at the Bank, between 2005 and 2007 we issued approximately $61.9 million in trust preferred securities. The global

 

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recession, which began in 2007 and continued until June 2009, caused our business to experience a series of interrelated events, the combination of which triggered significant loan and operating losses, eroded capital, seriously weakened our financial condition, challenged our ability to maintain liquidity and strained our regulatory relations.

The U.S. economic recession resulted in deteriorating conditions in the U.S. housing market that have continued to depress real estate values. We believe these conditions will continue to improve slowly for the foreseeable future. As a result, many lenders have been forced out of business or have severely curtailed their operations and most remaining lenders have tightened underwriting standards. As a consequence of these changing conditions in real estate loan availability and the reduction in owners’ equity due to falling real estate values, many borrowers have been unable either to refinance existing loans or sell their homes. Similarly, many prospective home buyers have found it harder to obtain credit. Unemployment rates remain elevated, foreclosure rates have increased, housing inventories have ballooned and home prices have declined. Affected borrowers have struggled to keep their loans current or to refinance into lower interest rate products. These forces have combined to result in significant credit deterioration, particularly in our residential construction and land loan portfolio.

Primarily as a result of rising defaults on residential construction and land loans, our ratio of nonperforming loans to total loans increased from 1.4% at December 31, 2007 to 3.0% at December 31, 2008 and 18.0% at December 31, 2009.

Moreover, although our average interest earning assets increased from $2.44 billion during 2007 to $3.06 billion during 2009, our average loans held for investment remained relatively constant over that period, increasing from $2.24 billion during 2007 to $2.31 billion during 2009. Additionally, due to rising levels of problem assets, nonperforming assets increased from $35.7 million at December 31, 2007 to $482.0 million at December 31, 2009. During this same period, we established and maintained a high level of liquidity and invested this liquidity in short duration, low-yielding investments. At the same time, in response to the economic turmoil in the national economy, the Federal Reserve Open Market Committee reduced the target interest rate for Federal Funds to its lowest level since 1955 and market interest rates, including the prime rate and LIBOR, decreased accordingly. Most of our loans are variable interest rate loans tied to these indexes. The impact of declining interest rates has been more significant than with our peer institutions as a result of the absence of interest rate floors on many of our loans. At December 31, 2007, $1.35 billion of loans, or 54.8% of net loans, did not have interest rate floors. This combination of circumstances led to a substantial decline in our net interest income, which declined from $90.0 million for the year ended December 31, 2007, to $75.9 million for 2008 and to $31.5 million for 2009. In addition, due to deteriorating credit quality, our provision for loan losses increased from $11.0 million for the year ended December 31, 2007 to $34.4 million and $153.5 million for the years ended December 31, 2008 and 2009, respectively. The economic impact of the foregoing on our results of operations, financial condition and regulatory capital ratios has been severe. For the year ended December 31, 2009, we recognized a net loss of $110.3 million. Additionally, despite our efforts to decrease total assets to mitigate the impact of losses on our regulatory capital ratios, our Tier 1 and total risk based capital ratios fell from 9.0% and 11.2% at December 31, 2007, to 4.5% and 8.5% at December 31, 2009.

As a result of the deterioration in our asset quality, operating performance and capital adequacy, on May 8, 2009, we entered into an agreement with HomeStreet Bank’s primary banking regulators, the Federal Deposit Insurance Corporation, or FDIC, and the Washington State Department of Financial Institutions, or DFI, pursuant to which we consented to the entry of an Order to Cease & Desist from certain allegedly unsafe and unsound banking practices. On May 18, 2009, we entered into a similar agreement with HomeStreet, Inc.’s primary regulator, the Office of Thrift Supervision, or OTS. We refer to the Order to Cease & Desist with the FDIC and the DFI as the Bank Order, the Order to Cease & Desist with the OTS as the Company Order, and to the Bank Order and Company Order collectively as the Orders. Among other things, the Orders required us to increase our capital to certain specified levels, improve management, reduce classified assets and improve earnings. The Orders are described in more detail under “Regulation and Supervision — Cease and Desist Orders.”

 

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In light of the then-prevailing economic conditions confronting our organization and to acquire management experienced in bank turnaround and capital raising, the boards of directors of the Company and the Bank recruited a management team that has proven expertise in raising capital and in turning around troubled financial institutions. Beginning in late 2009, we hired Mark Mason, our Chief Executive Officer, David Hooston, our Chief Financial Officer, Jay Iseman, our Chief Credit Officer, and Godfrey Evans, our General Counsel and Chief Administrative Officer. These executives have developed and implemented a plan to manage and reduce our credit risk, reduce other real estate owned, or OREO, and associated loan and real estate loss exposures, improve our asset yields, maintain liquidity, increase and improve our core deposit base, reduce noncore funding dependence, reduce noninterest expenses, raise capital, and improve our relationships with our federal and state banking regulators. See “Business — Turnaround Plan.”

As discussed below in greater detail, our new management team has improved our business since joining us, substantially improving our financial condition, results of operations and credit risk profile. Among other things, under our new management team:

 

   

Classified assets have declined from $737.9 million, or 22.9% of total assets, at September 30, 2009, to $298.7 million, or 12.8% of total assets, at March 31, 2011, and our nonperforming assets declined from $452.0 million, or 14.0% of total assets, to $223.0 million, or 9.5% of total assets, during that same period. More significantly, nonperforming loans have decreased from $388.7 million, or 17.7% of total loans, at September 30, 2009, to $124.1 million, or 7.9% of total loans, at March 31, 2011, and our ratio of total delinquent and nonaccruing loans to total loans has declined from 22.6% to 12.0% over the same period.

 

   

Construction and land loans, the type of loans from which we have experienced the highest default and losses during this economic downturn, have decreased from $733.4 million, or 33.4% of total loans, at September 30, 2009, to $271.7 million, or 17.4% of total loans, at March 31, 2011.

 

   

Loan loss provisions and net charge-offs have decreased from $153.5 million and $101.7 million for 2009 to $37.3 million and $83.2 million, respectively, for 2010. We recorded no provision expense during the first quarter of 2011 as charge-offs were substantially offset by loan recoveries.

 

   

Bank noncore funding (retail certificates of deposit greater than $250,000, brokered deposits and FHLB advances) has decreased from $1.09 billion, or 36.5% of Bank funding, at September 30, 2009, to $213.7 million, or 9.8% of Bank funding, at March 31, 2011.

 

   

Bank core funding (checking, savings and core retail certificates of deposit less than $250,000) has increased from $1.70 billion, or 63.5% of Bank funding, at September 30, 2009 to $1.73 billion, or 90.2% of Bank funding, at March 31, 2011, and in particular, total consumer and business checking accounts have increased from $172.8 million and 19,572 accounts to $183.8 million and 21,643 accounts during that same period.

 

   

The yield on earning assets has increased from 3.40% for the third quarter of 2009 to 3.87% for the first quarter of 2011. This increase is due to the combined effect of: (1) establishing interest rate floors on loans at origination, extension, renewal or restructuring, (2) reducing our nonperforming assets and (3) changing the composition and extending the average duration of the investment securities portfolio.

 

   

The net interest margin has increased from 0.85% for the third quarter of 2009 to 2.17% for the first quarter of 2011.

 

   

Full time equivalent staff has been reduced by 6.1% in areas other than the single family lending segment between September 2009 and March 31, 2011. This includes a 45.3% reduction in residential construction lending staff and a 5.2% decrease in corporate operations overhead departments.

 

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Our net loss decreased from $110.3 million for the year ended 2009 to $34.2 million for the year ended 2010, of which $14.4 million was recorded in the fourth quarter, and $7.4 million for the three months ended March 31, 2011. The 2009 net loss was mitigated by the recognition of $40.0 million of tax benefit related to the carry back of 2009 net operating losses to prior periods.

 

   

We have also continued to improve and expand our single family mortgage banking operations. In 2009 and 2010, as a consequence of low and falling interest rates, we experienced high levels of residential loan refinancings. This expansion of our single family mortgage business has produced unanticipated increases in loan volumes and expanded profit margins despite the burdens of increased compliance responsibilities. Loan origination momentum slowed during the first quarter of 2011, reflecting slight increases in mortgage interest rates during that period. For the periods ended December 31, 2009 and 2010, the Bank originated $2.73 billion and $2.07 billion of single family loans, respectively, and originated $276.9 million and $335.3 million for the three months ended March 31, 2011 and 2010, respectively.

 

   

Notwithstanding the net losses incurred in 2009, 2010 and in the first quarter of 2011, the Bank’s regulatory capital ratios have remained sufficient to be considered “adequately capitalized” within the meaning of the FDIC’s “prompt corrective action” guidelines, in part as a result of our efforts to reduce total assets, which decreased from $3.22 billion at September 30, 2009 to $2.49 billion at December 31, 2010 and $2.34 billion at March 31, 2011. Our Tier 1 leverage capital and total risk-based capital ratios stood at 4.5% and 8.3%, respectively, at March 31, 2011, as compared to 4.5% and 8.2% at December 31, 2010, 4.5% and 8.5% at December 31, 2009 and 8.7% and 11.8% at December 31, 2008.

This offering reflects one of management’s primary initiatives to improve our regulatory capital ratios. Based upon our discussions with the OTS, the FDIC, the DFI and the Federal Reserve, if we achieve our projected capital ratios and asset quality levels, we believe we will qualify for termination of the Orders upon the successful completion of the offering and adoption and successful execution of our accelerated asset resolution plan. See “Business—Turnaround Plan—Accelerated Asset Resolution Plan”. Our regulators have not given us, and we cannot give any assurances, that the Orders will be lifted, nor can we determine what might be the terms, if any, of substitute agreements regarding minimum capital levels with the banking regulators if the Orders were terminated.

Critical Accounting Policies and Estimates

The preparation of financial statements in accordance with the accounting principles generally accepted in the United States (GAAP) requires management to make a number of judgments, estimates and assumptions that affect the reported amount of assets, liabilities, income and expense in the financial statements. Various elements of our accounting policies, by their nature, involve the application of highly sensitive and judgmental estimates and assumptions. Some of these policies and estimates relate to matters that are highly complex and contain inherent uncertainties. It is possible that, in some instances, different estimates and assumptions could reasonably have been made and used by management, instead of those we applied, which might have produced different results that could have had a material effect on the financial statements.

We have identified the following accounting policies and estimates that, due to the judgments and assumptions inherent in those policies and estimates and the potential sensitivity of its financial statements to those judgments and assumptions, are critical to an understanding of our financial statements. We believe that the judgments, estimates and assumptions used in the preparation of its financial statements are appropriate.

Allowance for Loan Losses

The allowance for loan losses represents management’s estimate of incurred credit losses inherent within our loan portfolio. Determining the appropriateness of the allowance is complex and requires judgment by

 

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management about the effect of matters that are inherently uncertain. Subsequent evaluations of the loan portfolio, in light of the factors then prevailing, may result in significant changes in the allowance for loan losses in those future periods.

We employ a disciplined process and methodology to establish our allowance for loan losses including a specific allowance for impaired loans equal to the amount of impairment calculated on those loans, charging off amounts determined to be uncollectible. A loan is considered impaired when it is probable that all contractual principal and interest payments due will not be collected substantially in accordance with the terms of the loan agreement. Factors we consider in determining whether a loan is impaired include payment status, collateral value, borrower financial condition, guarantor support, and the probability of collecting scheduled principal and interest payments when due.

When a loan is identified as impaired, impairment is measured as the difference between the recorded investment in the loan and the present value of expected future cash flows discounted at the loan’s effective interest rate or the loan’s observable market price. For impaired collateral dependent loans, impairment is measured as the difference between the recorded investment in the loan and the fair value of the underlying collateral, less disposal cost. The fair value of impaired collateral dependent loans is determined utilizing current appraisals, generally obtained annually, or based on interim collateral valuations, in accordance with our appraisal policy. Upon the receipt of an updated appraisal or collateral valuation, loan impairments are remeasured and recorded. If the calculated impairment is determined to be permanent, fixed or nonrecoverable, the impairment will be charged off. See “Management’s Discussion and Analysis – Credit Risk Management – Appraisal Policy.”

The provision for loan losses recorded through earnings is based on management’s assessment of the amount necessary to maintain the allowance for loan losses at a level appropriate to cover probable incurred losses inherent within the loans held for investment portfolio. The amount of provision and the corresponding level of allowance for loan losses are based on our evaluation of the collectability of the loan portfolio based on historical loss experience and other significant qualitative factors, including:

 

   

the level and trends of delinquencies;

 

   

variability in collateral valuations;

 

   

regional economic activity, including trends in regional unemployment;

 

   

the time periods during which the loans were originated;

 

   

the ability of the customer to continue to make payments as interest rates change;

 

   

changes in the experience, ability and depth of lending management;

 

   

the volume of nonaccrual and adversely classified loans; and

 

   

the results of internal and external loan reviews.

The methodology for evaluating the adequacy of the allowance for loan losses has two basic elements: first, the identification of impaired loans and the measurement of impairment for each individual loan identified; and second, a method for estimating an allowance for all other loans.

In estimating the general allowance for loan losses for unimpaired loans, such loans are segregated into loan portfolio segments. Loans are designated into homogeneous pools based on product types and similar risk characteristics or areas of risk concentration.

For each homogeneous loan pool, we estimate inherent losses by applying a rate of loss equal to four trailing quarters of historical losses. Additional incurred losses are also estimated for these same pools of loans based

 

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upon key risk indicators. Key risk indicators for each pool include the following: (1) loan delinquency trends, (2) variability in collateral valuation, (3) regional economic activity and trends, (4) current levels of interest rates and (5) the vintage of loans at origination. Key risk indicators are expressed in basis points and are adjusted downward or upward based on management’s judgment as to the potential loss impact of each qualitative factor to a particular loan pool at the date of the analysis.

The FDIC and the DFI, as an integral part of their examination process, review the allowance for loan losses. These agencies may require changes in the classification of criticized or adversely classified loans and additions to the allowance for loan losses based on their judgment about information available at the time of their examinations.

The allowance for loan losses, as reported in our consolidated statements of financial condition, is increased by a provision for loan losses, which is recognized in earnings, and reduced by the charge off of loan amounts, net of recoveries.

Fair Value

A portion of our assets are carried at fair value, including mortgage servicing rights, loans held for sale, interest rate lock commitments, investment securities available for sale and derivatives used in our hedging programs. Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. The degree of management judgment involved in estimating the fair value of a financial instrument or other asset generally correlates to the level of observable pricing. Fair value measured from observable quoted market prices in an active market will generally require less management judgment. Conversely, financial instruments or other assets rarely traded or not quoted will generally require a higher degree of judgment from management to estimate fair value by choosing and applying valuation models to estimate the fair value. These valuation models may use inputs such as forward yield curves, loan prepayment assumptions, expected loss assumptions, market volatilities and pricing spreads using market-based inputs where available. While we believe that these inputs are comparable to those that would be used by other market participants, different assumptions could result in significant changes in valuation. Estimated fair value cannot be determined with precision and may not be realized in the actual sale or transfer of the asset or liability being valued in a current market exchange.

The following financial instruments and other assets require the management’s most complex judgments and assumptions when estimating fair value:

Mortgage Servicing Rights

Mortgage servicing rights, or MSRs are recorded as separate assets through the purchase of the rights or upon the sale of mortgage loans with servicing rights retained. Net gains on mortgage loan origination and sale activities depend, in part, on the fair value of servicing rights. We value mortgage servicing rights based on quoted market prices, other observable market data, or a discounted cash flow model depending on the availability of market information.

On January 1, 2007, we adopted Accounting Standards Codification 860, Transfers and Servicing (ASC 860). ASC 860 requires that an MSR resulting from the sale or securitization of loans be initially measured at fair value at the date of transfer and permits an election between fair value and the lower of amortized cost or fair value for subsequent measurement. As of January 1, 2010, management elected to account for single family mortgage servicing rights at fair value during the life of the MSR, with subsequent changes in fair value recorded through current period earnings. Fair value adjustments encompass market-driven valuation changes as well as run-off of value that occurs due to the passage of time. We continue to value multifamily MSRs at the lower of amortized cost or fair value.

 

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Subsequent fair value measurements of single family MSRs are determined by calculating the present value of estimated future net servicing income because MSRs are not traded in an active market with readily observable market prices. The discounted cash flow model uses several significant assumptions, such as market interest rates, projected prepayment speeds, discount rates, estimated costs of servicing and other income and additional expenses associated with the collection of delinquent loans. In addition, third-party valuations estimating the fair value of the mortgage servicing asset portfolio are obtained at least annually and compared to the carrying values of our MSRs.

Market expectations of the life of loans, and correspondingly the expected future servicing cash flows, may vary from time to time due to changing prepayment activity by borrowers, especially when interest rates rise or fall. Market expectations of increased loan prepayment speeds may negatively impact the fair value of the single family mortgage servicing rights. Fair value is also dependent on the discount rate used in calculating present value, which is imputed from observable market activity and market participants. Management reviews and adjusts the discount rate on an ongoing basis. An increase in the discount rate would reduce the estimated fair value of the single family mortgage servicing rights asset.

The mortgage servicing assets are reported in our consolidated statements of financial condition. The changes in fair value for the single family mortgage servicing assets and the amortization of the multifamily mortgage servicing assets are reported in our consolidated statements of operations.

Investment Securities

Investment securities are classified as available for sale and are carried at fair value. Amortization of premiums and accretion of discounts are recognized in interest income using the interest method, adjusted for anticipated prepayments where applicable. Unrealized holding gains and losses, net of income taxes, are excluded from earnings and reported as a separate component of accumulated other comprehensive income and reclassified into earnings when realized, such as upon sale of the security.

Management monitors the portfolio of securities classified as available for sale for impairment, which may result from credit deterioration of the issuer, changes in market interest rates relative to the rate of the instrument, or changes in prepayment speeds. An evaluation of each investment security is performed no less frequently than quarterly to assess if impairment is considered other-than-temporary. In conducting this evaluation, management considers many factors, including but not limited to whether we expect to recover the entire amortized cost basis of the security in light of adverse changes in expected future cash flows, the length of time the security has been impaired and the severity of the unrealized loss. Management also considers whether we intend to sell the security or if it is more likely than not that we will be required to sell the security prior to recovery. The determination of other-than-temporary impairment is a subjective process, requiring the use of judgments and assumptions in interpreting relevant market data. Other-than-temporary valuation losses on securities classified as available for sale are reported in our consolidated statements of operations.

Derivatives and Hedging Activities

We enter into contracts to manage the various risks associated with certain assets, liabilities or probable forecasted transactions. When we enter into derivative contracts, the derivative instrument is designated as: (1) a hedge of the fair value of a recognized asset or liability or of an unrecognized firm commitment (a fair value hedge), (2) a hedge of the variability in expected future cash flows associated with an existing recognized asset or liability or a probable forecasted transaction (a cash flow hedge) or (3) held for other risk management purposes (risk management derivatives).

All derivatives, whether designated in hedging relationships or not, are recorded at fair value as either assets or liabilities in our consolidated statements of financial condition. Changes in fair value of derivatives that are not in hedge accounting relationships, such as risk management derivatives, are recorded in our consolidated

 

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statements of operations in the period in which the change occurs. Changes in the fair value of derivatives in qualifying fair value hedge accounting relationships are recorded each period in earnings along with the change in fair value of the hedged item attributable to the risk being hedged. Changes in fair value of derivatives that are designated as cash flow hedges, to the extent such hedges are deemed highly effective, are recorded as a separate component of accumulated other comprehensive income and reclassified into earnings when the earnings effect of the hedged cash flows is recognized.

The determination of whether a derivative qualifies for hedge accounting requires complex judgments about the application of ASC 815, Derivatives and Hedging . Additionally, this standard requires contemporaneous documentation of our hedging relationships. Such documentation includes the nature of the risk being hedged, the identification of the hedged item, or the group of hedged items that share the risk exposure that is designated as being hedged, the selection of the instrument that will be used to hedge the identified risk and the method used to assess effectiveness of the hedge relationship. The assessment of hedge effectiveness must support the determination that the hedging relationship is expected to be highly effective in achieving offsetting changes in fair value or cash flows attributable to the hedged risk during the period that the hedge is designated. If our assessment of effectiveness is not considered to be adequate to achieve hedge accounting treatment, the derivative is treated as a free-standing risk management instrument.

Income Taxes

In establishing an income tax provision, we must make judgments and interpretations about the application of these inherently complex tax laws. We must also make estimates about when in the future certain items will affect taxable income. Our interpretations may be subjected to review during examination by taxing authorities and disputes may arise over the respective tax positions. We monitor tax authorities and revise our estimates of accrued income taxes due to changes in income tax laws and their interpretation by the courts and regulatory authorities on a quarterly basis. Revisions of our estimate of accrued income taxes also may result from our own income tax planning and from the resolution of income tax controversies. Such revisions in our estimates may be material to our operating results for any given quarter.

Income taxes are accounted for using the asset and liability method, which requires the recognition of deferred tax assets and liabilities for the expected future tax consequences of events that have been included in the financial statements. Under this method, a deferred tax asset or liability is determined based on the differences between the financial statements and tax basis of assets and liabilities using enacted tax rates in effect for the year in which the differences are expected to reverse. The effect of a change in tax rates on deferred tax assets and liabilities is recognized in income in the period that includes the enactment date.

The Company records net deferred tax assets to the extent it is believed that these assets will more likely than not be realized. In making such determination, management considers all available positive and negative evidence, including future reversals of existing taxable temporary differences, projected future taxable income, tax planning strategies, and recent financial operations. After reviewing and weighing all of the positive and negative evidence, if the positive evidence outweighs the negative evidence, then the Company does not record a valuation allowance for deferred tax assets. If the negative evidence outweighs the positive evidence, then a valuation allowance for all or a portion of the deferred tax assets is recorded.

The Company recognizes interest and penalties related to unrecognized tax benefits as income tax expense in the consolidated statements of operations. Accrued interest and penalties are included within the related tax liability line in the consolidated statements of financial condition.

 

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Results of Operations

 

     At or for the Three Months
Ended March 31,
    At or for the Year Ended December 31,  
         2011             2010             2010             2009             2008      

Net income (loss), in thousands

   $ (7,449   $ (5,091   $ (34,247   $ (110,276   $ 8,429   

Basic and Diluted earnings per common share

   $ (2.21   $ (1.51   $ (10.14   $ (32.65   $ 2.50   

Return on average assets

     (1.25 )%      (0.56 )%      (1.19 )%      (3.47 )%      0.29

Return on average common shareholder equity

     (51.26 )%      (18.76 )%      (38.00 )%      (68.90 )%      4.23

Comparison of the three months ended March 31, 2011 to March 31, 2010

For the first quarter 2011, we reported a net loss of $7.4 million, compared with a net loss of $5.1 million in the first quarter 2010.

Average Balances and Rates

Average balances, together with the total dollar amounts of interest income and expense, on a taxable-equivalent basis related to such balances and the weighted average rates, for the three months ended March 31, 2011 and 2010 were as follows:

 

    Three Months Ended March 31,  
    2011     2010  
    Average
Balance
    Interest     Average
Yield/Cost
    Average
Balance
    Interest     Average
Yield/Cost
 
(in thousands)                                    

Assets:

           

Interest-earning assets(1):

           

Cash & cash equivalents

  $ 141,309      $ 82        0.23   $ 201,936      $ 200        0.40

Investment securities

    308,015        1,891        2.46     633,900        2,376        1.50

Loans held for sale

    106,587        1,131        4.24     74,506        1,139        6.11

Loans held for investment

    1,589,182        17,577        4.45     2,046,590        20,734        4.08
                                   

Total interest-earning assets(2)

    2,145,093        20,680        3.87     2,956,932        24,449        3.32

Noninterest-earning assets(3)

    239,126            217,010       
                       

Total assets

  $ 2,384,219          $ 3,173,942       
                       

Liabilities and Stockholders’ Equity:

           

Deposits:

           

Interest-bearing demand accounts

  $ 122,175        156        0.52   $ 104,680        171        0.66

Savings accounts

    52,646        90        0.69     65,676        157        0.97

Money market accounts

    420,200        776        0.75     374,300        1,079        1.17

Certificate accounts

    1,294,721        6,019        1.89     1,562,060        9,748        2.53
                                   

Deposits

    1,889,742        7,041        1.51     2,106,716        11,155        2.15

FHLB advances

    159,829        1,308        3.31     675,791        4,998        3.00

Securities sold under agreements to repurchase

                  0.00                   0.00

Long-term debt

    64,491        671        4.16     66,857        1,104        6.61

Other borrowings

                  0.00     183        1        3.18
                                   

Total interest-bearing liabilities(2)

    2,114,062        9,020        1.74     2,849,547        17,258        2.45

Other noninterest-bearing liabilities

    212,027            229,597       
                       

Total liabilities

    2,326,089            3,079,144       
                       

Stockholder’s equity

    58,130            94,798       
                       

Total liabilities and stockholders’ equity

  $ 2,384,219          $ 3,173,942       
                       

Net interest income(4)

    $ 11,660          $ 7,191     
                       

Net interest spread

        2.15         0.87

Impact of noninterest-bearing sources

        0.02         0.09

Net interest margin

        2.17         0.96

 

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(1) The daily average balances of nonaccrual assets and related income, if any, are included in their respective categories.

 

(2) Average interest-earning assets and interest-bearing liabilities were computed using daily average balances.

 

(3) Includes loans balances that have been foreclosed and are now reclassified to other real estate owned.

 

(4) Includes taxable-equivalent adjustments primarily related to tax-exempt income on certain loans and securities of $70,000 and $76,000 for the quarters ended March 31, 2011 and 2010, respectively. The federal statutory tax rate was 35% for the periods presented.

We have not included interest income from nonaccrual loans in the table presented above. The additional interest income that would have been recorded during the period if the loans had been accruing was $1.5 million and $3.4 million for the first quarter 2011 and 2010, respectively. The primary reason for this decline is a decrease of $202.9 million, or 62.0%, in nonaccrual loans, to $124.1 million at March 31, 2011 from $327.0 million at March 31, 2010.

Rate and Volume Analysis

The following table presents the extent to which changes in interest rates and changes in the volume of our interest-earning assets and interest-bearing liabilities have affected our interest income and interest expense, excluding interest income from nonaccrual loans. Information is provided in each category with respect to: (1) changes attributable to changes in volume (changes in volume multiplied by prior rate), (2) changes attributable to changes in rate (changes in rate multiplied by prior volume), (3) changes attributable to changes in rate and volume (changes in rate multiplied by changes in volume), which were allocated in proportion to the percentage change in average volume and average rate and included in the relevant column and (4) the net change.

 

     Three Months Ended March 31,  
     2011 vs. 2010  
     Increase (Decrease)
Due to
    Total
Change
 
     Rate     Volume    

(in thousands)

      

Assets:

      

Interest-earning assets:

      

Cash & cash equivalents

   $ (69   $ (50   $ (119

Investment securities

     1,084        (1,569     (485

Loans held for sale

     (411     403        (8

Loans held for investment

     1,751        (4,908     (3,157
                        

Total interest-earning assets

   $ 2,355      $ (6,124   $ (3,769
                        

Liabilities:

      

Deposits:

      

Interest-bearing demand accounts

   $ (41   $ 26      $ (15

Savings accounts

     (40     (27     (67

Money market accounts

     (423     120        (303

Certificate accounts

     (2,231     (1,498     (3,729
                        

Deposits

     (2,735     (1,379     (4,114

FHLB advances

     475        (4,165     (3,690

Long-term debt

     (395     (38     (433

Other borrowings

            (1     (1
                        

Total interest-bearing liabilities

     (2,655     (5,583     (8,238
                        

Total changes in net interest income

   $ 5,010      $ (541   $ 4,469   
                        

 

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Net Interest Income

Our profitability depends partially on our level of net interest income, which is the difference between income earned on our interest-earning assets, primarily loans and investment securities, and the rate paid on interest-bearing liabilities, primarily deposits and borrowed funds, including our outstanding trust preferred securities, interest paid on our recently retired senior notes, and advances from the FHLB of Seattle.

Net interest income, on a tax equivalent basis, for the quarter ended March 31, 2011 was $11.7 million, an increase of $4.5 million, or 62.1%, compared with $7.2 million in the first quarter of 2010. The net interest margin for the first quarter of 2011 was 2.17% compared to 0.96% in for the first quarter of 2010. Our balance sheet restructuring activities, which began in 2010, included strategies designed to decrease our dependence on high-cost, noncore, high-balance retail certificates of deposit, brokered certificates of deposit and FHLB borrowings and attract more stable, relation-based, lower-cost consumer and business transaction account deposits. These actions resulted in a decrease in interest expense. These results were partially offset by a decrease in our portfolio of loans held for investment, which reduced our net interest income. Also, during this time we have established interest rate floors, or minimum interest rates, on our variable-rate loans upon extension, renewal or restructuring. As we continue to restructure our balance sheet focusing on improving interest margins, we expect continued improvement in net interest income and net interest margin.

We experienced a significant change in the components of net interest income from the first quarter of 2010 to the first quarter of 2011. Total interest income, on a tax equivalent basis, decreased $3.8 million, or 15.4%, to $20.7 million. Our average balances of outstanding loans held for investment declined $457.4 million, which had the effect of lowering our interest income by $4.9 million. Partially offsetting this decrease was an increase in the average yield on loans in our held for investment portfolio, reflecting the impact of lower average nonaccrual loan balances and higher interest rates upon loan renewal or extension, all of which had the effect of increasing interest income by $1.8 million. As a result, our net interest income decreased by $3.2 million. Our average balances of investment securities available for sale declined $325.9 million, which had the effect of lowering our interest income by $1.6 million. Partially offsetting this decrease was an increase in the weighted-average yield on investment securities available for sale balances, reflecting an increase in the average duration of the portfolio, which had the effect of increasing interest income by $1.1 million. We expect this shift to continue to benefit net interest income over future periods.

At the same time total interest expense decreased $8.2 million, or 47.7% to $9.0 million. Our average balance of FHLB borrowings declined $516.0 million, which had the effect of lowering interest expense by $4.2 million. During 2010 and continuing through the first quarter of 2011, we reduced wholesale funding by pre-paying or allowing FHLB borrowings and higher cost noncore and brokered certificate accounts to mature without renewal. Our average certificate account balances declined $267.3 million with a corresponding decrease in the weighted-average cost of these deposits, which had a combined effect of decreasing interest expense by $3.7 million. As we continue to emphasize consumer deposits over higher cost brokered or wholesale funding sources, we also expect this shift to benefit net interest income over future periods.

Provision for Loan Losses

We recorded no loan loss provision expense for the first quarter 2011 compared with $7.0 million in the first quarter 2010. This decline resulted primarily from reductions in classified and nonperforming assets and related reductions in net loan charge-offs. Additionally, in the first quarter 2011, we recorded a $4.0 million recovery on a previously charged-off lending relationship. This decline reflects an overall improvement in our asset quality in 2010 and through the first quarter of 2011 as we began to experience what we believe was the bottom of the economic cycle in late 2009 and early 2010. The provision for loan losses is discussed in greater detail below in “—Risk Management—Credit Risk Management”.

 

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Noninterest Income

Noninterest income was $14.4 million for the first quarter 2011, a decrease of $1.3 million, or 8.1%, from $15.7 million in the first quarter 2010. Our noninterest income is heavily dependent upon our single family mortgage banking activities. The level of our mortgage banking activity fluctuates and is influenced by mortgage interest rates, the economy, employment and housing affordability, among other factors. The decrease in noninterest income reflects decreases in net gains on mortgage loan origination and sales activities and mortgage servicing, partially offset by a gain recorded in the first quarter of 2011 related to the early retirement of our USAA long-term debt, reported as other noninterest income. Our single family mortgage banking loan origination volumes decreased in the first quarter of 2011, as compared with the same period in the prior year.

Noninterest income consisted of the following:

 

     Three Months Ended March 31,      Dollar Change  
         2011             2010          2011 vs. 2010  

(in thousands)

       

Noninterest income

       

Net gains on mortgage loan origination and sales activities

   $ 4,944      $ 7,601       $ (2,657

Mortgage servicing

     5,848        6,377         (529

(Loss) income from Windermere Mortgage Services

     (25     209         (234

Gain on debt extinguishment

     2,000                2,000   

Depositor and other retail banking fees

     740        806         (66

Insurance commissions

     363        274         89   

Gain on sale of investment securities available for sale

            161         (161

Other

     595        306         289   
                         

Total noninterest income

   $ 14,465      $ 15,734       $ (1,269
                         

The significant components of our noninterest income are described in greater detail, as follows:

Net gains on mortgage loan origination and sales activities were $4.9 million in the first quarter of 2011, a decrease of $2.7 million, or 35.0%, from $7.6 million in the first quarter 2010. The decrease was primarily due to a decrease in single family loan origination volume, which decreased from $335.3 million for the first quarter of 2010 to $276.9 million for the first quarter of 2011, a decrease of 17.5%. Also contributing to reduced revenue was a decline in the average profit margin on a per loan basis in the first quarter of 2011 compared to 2010. During the first quarter of 2010, profit margins per loan remained at 2009 levels as refinancing loan volume offset decreased purchase loan volumes as a result of the sunset of the first-time home buyers’ tax credit, which was a part of the Federal economic stimulus. Due to the economic downturn and elimination of and consolidation of many mortgage originators, high single family loan volumes in 2009 and 2010 stressed the capacity of the nation’s mortgage origination systems to fulfill qualified borrower’s desires to take advantage of the first-time homebuyers’ tax credit and historically low interest rates. This stress on the capacity of the origination system generally resulted in increased margins as originators balanced their ability to process loan requests through higher pricing. Beginning in the latter part of the fourth quarter of 2010 and continuing into the first quarter of 2011, interest rates increased and demand for single family mortgages decreased, resulting in a reduction in overall loan volume as well as profit margins available in our markets.

 

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Mortgage Servicing

Mortgage servicing income consisted of the following:

 

    Three Months Ended March 31,     Dollar Change  
    2011     2010     2011 vs. 2010  
    Single family     Multifamily     Total     Single family     Multifamily     Total     Total  
(in thousands)                                          

Servicing fees and other

  $ 5,242      $ 836      $ 6,078      $ 4,908      $ 812      $ 5,720      $ 358   

Changes in fair value, single family mortgage servicing rights:

             

Due to changes in model or assumptions(1)

    5,543        n/a        5,543        (1,747     n/a        (1,747     7,290   

Due to payments on loan balances and other(2)

    (3,864     n/a        (3,864     (3,071     n/a        (3,071     (793

Amortization

    n/a        (321     (321     n/a        (414     (414     93   

Net (loss) gain from derivatives economically hedging MSR

    (1,588            (1,588     5,889               5,889        (7,477
                                                       

Mortgage servicing

  $ 5,333      $ 515      $ 5,848      $ 5,979      $ 398      $ 6,377      $ (529
                                                       

 

(1) Principally reflects changes in discount rates and prepayment speed assumptions, mostly due to changes in interest rates.

 

(2) Represents changes due to collection/realization of expected cash flows and curtailments over time.

For the first quarter 2011, mortgage servicing income was $5.8 million, a decrease of $.5 million, or 8.3%, from $6.4 million in the first quarter 2010. Servicing fees and other increased $358,000, or 6.3%, primarily as a result of growth in our portfolio of single family loans serviced for others, which increased to $6.52 billion as of March 31, 2011, as compared with $5.91 billion as of March 31, 2010. Substantially all of our new loan originations are designated as held for sale, much of which are sold with servicing retained. Mortgage servicing income also includes changes in the fair value of single family mortgage servicing rights, or MSRs, during the period as well as changes in value of derivatives (economic hedges) used to hedge single family MSRs. Multifamily MSRs are recorded at the lower of amortized cost or fair value. In the first quarter 2011, we recognized a $91,000 net valuation gain ($1.7 million increase in fair value of single family MSRs offset by a $1.6 million hedge loss), and in the first quarter 2010 we recognized a $1.1 million net MSR valuation gain ($4.8 million decrease in fair value of single family MSRs offset by a $5.9 million hedge gain).

Windermere Mortgage Services, Inc. was a loss of $25,000 for the first quarter of 2011, a decrease of $234,000, or more than 100%, from income of $209,000 for the first quarter of 2010. This decrease was primarily due to a 7.7% decrease in loans originated by our WMS joint venture.

Gain on debt extinguishment was $2.0 million for the first quarter of 2011, compared with $0 for the first quarter of 2010. This increase was due to the negotiated settlement of the long-term debt arrangement with USAA during the first quarter of 2011 for $3.0 million, a $2.0 million discount recorded as a gain from the $5.0 million carrying value of the debt.

Depositor and other retail banking fees were $740,000 for the first quarter of 2011, a decrease of $66,000, or 8.2%, from $806,000 in the first quarter of 2010. The decrease principally relates to the decrease in insufficient funds fees associated with the impacts of regulatory changes, partially offset by an increase in the number of customer transaction accounts. The following table presents the composition of depositor and other retail banking fees for the periods indicated.

 

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     Three Months Ended March 31,      Dollar Change  
         2011              2010          2011 vs. 2010  
(in thousands)                     

Fees:

        

Monthly maintenance and deposit — related fees

   $ 415       $ 489       $ (74

Debit Card/ATM fees

     289         271         18   

Other fees

     36         46         (10
                          

Total depositor and related fees

   $ 740       $ 806       $ (66
                          

Insurance commissions income was $363,000, an increase of $89,000, or 32.5%, from $274,000 in the first quarter of 2010. This increase was primarily a result of increased annuity sales resulting from increased marketing and licensing of retail branch personnel as a part of the initial stages of our investment products sales business initiative.

Gain on sale of securities available for sale was $0 for the first quarter of 2011, a decrease of $161,000, or 100%, from $161,000 in the first quarter of 2010. This decrease reflects no sales of investment securities during the first quarter of 2011.

Other income was $595,000 million for the first quarter of 2011, an increase of $289,000, or 94.4%, from $306,000 in the first quarter of 2010. This increase was primarily due to upward valuation adjustments on free-standing swap derivative instruments reflecting increases in mortgage interest rates during the first quarter of 2011.

Noninterest Expense

Noninterest expense was $33.5 million for the first quarter of 2011, an increase of $12.5 million, or 59.8%, from $20.9 million in the first quarter of 2010. Noninterest expense increased primarily due to an increase in other real estate owned (OREO) expense as a result of increases in OREO valuation reserves as well as a related increase in legal expenses associated with problem asset resolution activities, partially offset by decreases in Federal Deposit Insurance Corporation assessments and consulting expenses.

Noninterest expense consisted of the following:

 

     Three Months Ended March 31,     Dollar Change  
         2011              2010         2011 vs. 2010  
(in thousands)                    

Noninterest expense

       

Salaries and related costs

   $ 12,139       $ 11,888      $ 251   

General and administrative

     3,601         3,475        126   

Legal

     904         476        428   

Consulting

     166         324        (158

Federal Deposit Insurance Corporation assessments

     1,749         1,969        (220

Occupancy

     1,668         1,638        30   

Information services

     1,480         1,375        105   

Other real estate owned expense (income)

     11,754         (205     11,959   
                         

Total noninterest expense

   $ 33,461       $ 20,940      $ 12,521   
                         

Salaries and related costs were $12.1 million in the first quarter of 2011, an increase of $251,000 in the first quarter of 2011, or 2.1%, from $11.9 million in the first quarter of 2010. This increase was primarily due to the resumption of the employee 401(k) contribution match, which was temporarily suspended during 2009 through June of 2010, as well as a modest increase in full time equivalent staff.

 

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General and administrative expense was $3.6 million in the first quarter of 2011, an increase of $126,000, or 3.6%, from $3.5 million in the first quarter of 2010. This increase was primarily due to an increase of $159,000 in loan repurchase reserves.

Legal expense was $904,000 in the first quarter of 2011, an increase of $428,000, or 89.9%, from $476,000 in the first quarter of 2010. This increase was primarily due to increased legal activity associated with ongoing problem asset resolution efforts.

Consulting expense was $166,000 in the first quarter of 2011, a decrease of $158,000, or 48.8%, from $324,000 in the first quarter of 2010. During the first quarter of 2010, higher consulting expenses included services related to enhancing our hedging strategies as well as pre-employment compensation of certain members of our executive management team prior to the approval of their appointments by our regulators.

FDIC Assessments were $1.7 million in the first quarter of 2011, a decrease of $220,000, or 11.2%, from $2.0 million in the first quarter of 2010. This decrease was due to declines in deposit balances over the one-year period.

Occupancy expense was $1.7 million in the first quarter of 2011, an increase of $30,000, or 1.8%, from $1.6 million in the first quarter of 2010. This increase was primarily due to higher common area and maintenance expenses period over period.

Information services expense was $1.5 million in the first quarter of 2011, an increase of $105,000, or 7.6%, from $1.4 million in the first quarter of 2010. This increase was primarily due to lower depreciation expense, partially offset by higher maintenance and service costs.

Other real estate owned expense (income) was $11.8 million in the first quarter of 2011, an increase of $12.0 million, or more than 100%, from $(205,000) in the first quarter of 2010. This increase primarily reflects $10.6 million of valuation losses in the first quarter of 2011 compared to $1.2 million in valuation gains in the first quarter of 2010.

Income Tax Expense (Benefit)

Income tax expense (benefit) for the quarters ended March 31, 2011 and 2010 was $43,000 and $0, respectively. Our effective tax rate for the quarters ended March 31, 2011 and 2010 varied from the Federal statutory rate due to valuation allowances established on deferred tax assets due to uncertainty as to our ability to realize these assets in the future.

In 2009 and 2010 we recorded a valuation allowance for financial statement purposes against the carrying value of our deferred tax asset, so the current carrying value of our net operating loss carryforwards on our financial statements is zero. Ordinarily, the book value of that asset would not limit our ability to offset accumulated operating losses against future income. However, the completion of this offering will result in a change of control of HomeStreet within the meaning of Section 382 of the Internal Revenue Code of 1986, as amended. Section 382 substantially limits the ability of a corporate taxpayer to use operating loss carryforwards incurred prior to a change of control against income earned after a change of control. The rules adopted by the Internal Revenue Service under Section 382 are complex, and the actual amount of such limitation varies depending on a variety of factors, but in our case, we expect the residual benefit of our accumulated net operating loss carryforward to be nominal immediately following the completion of this offering.

Notwithstanding the impact of this offering upon our accumulated net operating carryforwards, we also expect that the adoption and implementation of our accelerated asset resolution plan, or “AARP,” discussed elsewhere in this prospectus, will generate operating losses that can be used to offset taxable income earned in the future. Assuming we recognize expenses of $                 million in 2011 associated with the AARP, and without giving effect to any other income or loss we may record for tax purposes in this year, we expect that the AARP will give rise to a tax benefit of $                 million. However, the value of any such deferred tax asset for purposes of GAAP will be limited by our ability to generate future taxable income against which such accrued losses may be offset.

 

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Capital Expenditures . We had no significant capital expenditures in the first quarters of 2011 or 2010.

Comparison of the year ended 2010 to the year ended 2009

For the year ended 2010, we reported a net loss of $34.3 million, compared with a net loss of $110.3 million for 2009.

Average Balances and Rates

Average balances, together with the total dollar amounts of interest income and expense, on a tax equivalent basis related to such balances and the weighted average rates, for years ended December 31, 2010 and 2009 were as follows:

 

     Year Ended December 31,  
     2010     2009  
     Average
Balance
     Interest      Average
Yield/Cost
    Average
Balance
     Interest     Average
Yield/Cost
 
(in thousands)                                        

Assets:

               

Interest-earning assets(1):

               

Cash & cash equivalents

   $ 196,109       $ 538         0.27   $ 259,665       $ 584        0.23

Investment securities

     457,930         7,831         1.71     372,320         4,376        1.18

Loans held for sale

     120,619         6,263         5.19     117,555         7,647        6.51

Loans held for investment

     1,868,035         79,266         4.24     2,307,215         99,130        4.30
                                       

Total interest-earning assets(2)

     2,642,693         93,898         3.55     3,056,755         111,738        3.66

Noninterest-earning assets(3)

     239,051              82,068        
                           

Total assets

   $ 2,881,744            $ 3,138,823        
                           

Liabilities and Stockholders’ Equity:

               

Deposits:

               

Interest-bearing demand accounts

   $ 110,637         686         0.62   $ 99,884         1,259        1.26

Savings accounts

     54,340         479         0.88     112,562         2,900        2.58

Money market accounts

     381,054         3,973         1.04     304,832         4,515        1.48

Certificate accounts

     1,525,206         33,912         2.22     1,495,693         45,679        3.05
                                       

Deposits

     2,071,237         39,050         1.89     2,012,971         54,353        2.70

Fed discount borrowings

                     0.00     688         3        0.50

FHLB advances

     382,083         11,682         3.06     685,715         21,068        3.07

Securities sold under agreements to repurchase

     2,521         11         0.43     9,317         267        2.87

Long-term debt

     66,857         3,824         5.72     66,857         4,270        6.39

Other borrowings

     69         2         3.03     615         (92     -14.97
                                       

Total interest-bearing liabilities(2)

     2,522,767         54,569         2.16     2,776,163         79,869        2.88

Other noninterest-bearing liabilities

     268,245              211,794        
                     

Total liabilities

     2,791,012              2,987,957        
                           

Stockholder’s equity

     90,732              150,866        
                           

Total liabilities and stockholders’ equity

   $ 2,881,744            $ 3,138,823        
                           

Net interest income(4)

      $ 39,329            $ 31,869     
                           

Net interest spread

           1.39          0.78

Impact of noninterest-bearing sources

           0.10          0.26

Net interest margin

           1.49          1.04

 

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(1) The daily average balances of nonaccrual assets and related income, if any, are included in their respective categories.

 

(2) Average interest-earning assets and interest-bearing liabilities were computed using daily average balances.

 

(3) Includes loans balances that have been foreclosed and are now reclassified to other real estate owned.

 

(4) Includes taxable-equivalent adjustments primarily related to tax-exempt income on certain loans and securities of $295,000 and $380,000 for the years ended 2010 and 2009, respectively. The federal statutory tax rate was 35% for the periods presented.

We have not included interest income from nonaccrual loans in interest income. The additional interest income that would have been recorded during the period if the loans had been accruing was $10.1 million and $15.1 million for the years ended December 31, 2010 and 2009, respectively.

Rate and Volume Analysis

The following table presents the extent to which changes in interest rates and changes in the volume of our interest-earning assets and interest-bearing liabilities have affected our interest income and interest expense, excluding interest income from nonaccrual loans. Information is provided in each category with respect to: (1) changes attributable to changes in volume (changes in volume multiplied by prior rate), (2) changes attributable to changes in rate (changes in rate multiplied by prior volume), (3) changes attributable to changes in rate and volume (change in rate multiplied by change in volume), which were allocated in proportion to the percentage change in average volume and average rate and included in the relevant column and (4) the net change.

     2010 vs. 2009  
     Increase (Decrease) Due to        
         Rate             Volume         Total Change  
      
      
(in thousands)                   

Assets:

      

Interest-earning assets:

      

Cash & cash equivalents

   $ 113      $ (160   $ (47

Investment securities

     2,294        1,160        3,454   

Loans held for sale

     (1,579     195        (1,384

Total loans held for investment

     (1,213     (18,650     (19,863
                        

Total interest-earning assets

     (385     (17,455     (17,840

Liabilities:

      

Deposits:

      

Interest-bearing demand accounts

     (696     124        (573

Savings accounts

     (1,356     (1,066     (2,421

Money market accounts

     (1,518     976        (542

Certificate accounts

     (12,652     885        (11,767
                        

Deposits

     (16,222     919        (15,303

Fed discount borrowings

            (3     (3

FHLB advances

     (102     (9,285     (9,387

Securities sold under agreements to repurchase

     (138     (118     (256

Long-term debt

     (446            (446

Other borrowings

     54        40        94   
                        

Total interest-bearing liabilities

     (16,854     (8,447     (25,301
                        

Total changes in net interest income

   $ 16,469      $ (9,008   $ 7,461   
                        

 

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Net Interest Income

Our profitability depends partially on net interest income, which is the difference between income earned on our interest-earning assets, primarily loans and investment securities and the rate paid on interest-bearing liabilities. Our interest-bearing liabilities consist primarily of deposits and borrowed funds, including our outstanding trust preferred securities, interest paid on our recently retired senior credit facility and advances from the FHLB.

Net interest income on a tax equivalent basis for the year ended December 31, 2010, was $39.3 million, an increase of $7.5 million, or 23.4%, compared with $31.9 million for 2009. The net interest margin for the year ended December 31, 2010 was 1.49% compared to 1.04% for 2009. Our balance sheet restructuring activities during 2010 included a shift away from high-cost noncore high balance retail certificates of deposit, brokered certificates of deposit and FHLB borrowings toward more stable, lower-cost consumer- and business-based local deposits, resulting in an increase to our net interest income. This trend was partially offset by decreases in our loans held for investment balances which reduced our net interest income. At the same time we have begun to establish floors, or minimum interest rates, on our variable-rate loans upon extension, renewal or restructuring. As we continue to restructure our balance sheet focusing on improving interest margins, we expect a significant improvement in net interest income and our net interest margin.

We experienced a significant change in the components of net interest income from 2009 to 2010. Total interest income, on a tax equivalent basis, decreased $17.8 million, or 16.0%, in 2010 to $93.9 million. Our average balances of outstanding loans held for investment declined by $439.2 million, which had the effect of lowering our interest income by $18.7 million and decreasing the related yield on the loans held for investment portfolio. As a result, our net interest income decreased by $1.2 million. Declines in the yield on loans held for sale balances, resulting from decreased interest rates, also decreased net interest income by $1.6 million in 2010. Partially offsetting these declines was an increase in yield and average balances of investment securities available for sale, increasing net interest income by $2.3 million and $1.2 million, respectively. The increase in the yield of investment securities reflects a shift from shorter- to longer-term instruments as part of our balance sheet restructuring activities. We expect this shift to continue to benefit net interest income over future periods.

At the same time, total interest expense decreased $25.3 million or 31.7% to $54.6 million during 2010, from $79.9 million during 2009, primarily due to a $12.7 million decline interest paid on certificate accounts resulting from a general decline in interest rates and a change in our pricing strategy. During 2010, we allowed higher cost noncore and brokered certificate accounts to mature without renewal. Also driving the decline in interest expense was the maturity and prepayment of $512.0 million of FHLB balances, which generally carry a higher cost than other funding sources such as consumer deposits, resulting in a decrease of $9.3 million in interest expense during 2010. As we continue to emphasize consumer deposits over higher cost brokered or wholesale funding sources, we also expect this shift to benefit net interest income over future periods.

Provision for Loan Losses

Our loan loss provision expense for 2010 was $37.3 million, compared with $153.5 million for 2009, a decline of $116.2 million, or 75.7%. This decline resulted primarily from reductions in classified and nonperforming assets and related reductions in loan charge offs. This improvement reflects an improvement in our overall asset quality in 2010 as we began to experience what we believe was the bottom of the economic cycle in late 2009 and early 2010. We expect to continue recognizing higher than normal provisions for loan losses in the near term as we continue to work through our remaining problem loans; however, in the absence of further economic turmoil, we do not expect a return to the levels of loan loss provisions experienced in recent years. The provision for loan losses is discussed in greater detail below in “— Credit Risk Management.”

 

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Noninterest Income

Noninterest income was $96.9 million for the year ended December 31, 2010, an increase of $37.7 million, or 63.7%, from $59.2 million in 2009. Our noninterest income is heavily dependent upon our single family mortgage banking activities. The level of our mortgage banking activity fluctuates and is influenced by mortgage interest rates, the economy, employment and housing affordability, among other factors. Noninterest income in 2010 benefited from growth in our portfolio of loans serviced for others as well as an improved hedging strategy for single family mortgage servicing rights enabled by our change in accounting to carry single family mortgage servicing assets at fair value, as of January 1, 2010. See “— Critical Accounting Policies and Estimates — Mortgage Servicing Rights.” Our mortgage banking origination volumes decreased in 2010 as compared with 2009; however, our revenues per loan increased during the same period. While mortgage origination volume decreased from 2009, our origination volume continued to be high in comparison to historic levels as a result of a sustained period of historically low interest rates in 2010 and a one-time federal tax credit to first time home buyers. In addition, our revenues per loan increased as a result of continued higher profit margins available in the market place due to a continued contraction in competition resulting from the economic downturn and increased regulation. Revenues per loan also increased due to somewhat higher purchase volumes as a percentage of overall loan origination because purchase loans have a higher value of retained servicing.

Noninterest income consisted of the following:

 

     Year ended
December 31,
    Dollar Change  
(in thousands)    2010      2009     2010 vs. 2009  

Noninterest income

       

Net gains on mortgage loan origination and sales activities

   $ 57,127       $ 52,831      $ 4,296   

Mortgage servicing

     26,226         (4,495     30,721   

Income from Windermere Mortgage Services

     2,162         4,663        (2,501

Depositor and other retail banking fees

     3,397         3,352        45   

Insurance commissions

     1,164         792        372   

Gain on sale of investment securities available for sale

     6,016         237        5,779   

Other

     839         1,850        (1,011
                         

Total noninterest income

   $ 96,931       $ 59,230      $ 37,701   
                         

The significant components of our noninterest income are described in greater detail, as follows:

Net gains on mortgage loan origination and sales activities were $57.1 million in 2010, an increase of $4.3 million, or 8.1%, from $52.8 million in 2009, and primarily reflects the impact of a change in accounting to carry loans held for sale at fair value and an increase in the profit margin on loans sold offset by a decrease in loan origination and sales volume.

As of January 1, 2010, management elected to carry single family loans held for sale at fair value. Using this methodology, $8.3 million of 2010 origination costs that otherwise would have been deferred and recognized as a reduction to net gain on loan origination and sales activities was instead recognized as noninterest expense. Had 2009 been recorded under the fair value method, thereby excluding these origination costs, net gain on loan origination and sales activities would have been $63.6 million, or $10.7 million higher than reported, which reflects a decrease of $6.4 million between 2009 and 2010 principally associated with a reduction in single family loan origination volume.

On this comparable basis, net gains on mortgage loan origination and sales activities for single family loans decreased to $56.0 million in 2010, from $62.4 million in 2009. This $7.1 million decline was the net result of two factors: volume and rate. A decrease in volume, to $1.88 billion for 2010 compared to $2.55 billion in 2009,

 

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was partly offset by higher revenue per loan sold during 2010. The drop in loan sales volumes contributed $16.5 million to the year-over-year decrease in revenue while a partially offsetting increase of $9.4 million was due to an improvement in our net revenue per loan sold. The rate for 2010 was 295 basis points while the comparable rate for 2009 was 245 basis points.

Net gains on mortgage loan origination and sales activities of Fannie Mae Delegated Underwriting and Servicing Program, or DUS, loans was $1.1 million in 2010, down from $1.2 million in 2009. This decrease was primarily due to reduced loan volumes, which were $43.4 million in 2010, down 12.7% from $50.0 million in 2009.

Mortgage servicing income consisted of the following:

 

    Year Ended December 31,     Dollar Change  
    2010     2009     2010 vs. 2009  
    Single
family
    Multifamily     Total     Single
family
    Multifamily     Total     Total  
(in thousands)                                          

Servicing fees and other

  $ 20,112      $ 3,167      $ 23,279      $ 15,612      $ 3,477      $ 19,089      $ 4,190   

Changes in fair value, single family mortgage servicing rights:

             

Due to changes in model or assumptions(1)

    (7,594     n/a        (7,594     n/a        n/a               (7,594

Due to payments on loan balances and other(2)

    (13,513     n/a        (13,513     n/a        n/a               (13,513

Amortization

    n/a        (1,370     (1,370     (17,576     (1,302     (18,878     17,508   

Recovery/(impairment)(3)

    n/a                      1,335               1,335        (1,335

Net gain (loss) from derivatives economically hedging MSRs

    25,424               25,424        (6,041            (6,041     31,465   
                                                       

Total Mortgage servicing

  $ 24,429      $ 1,797      $ 26,226      $ (6,670   $ 2,175      $ (4,495   $ 30,721   
                                                       

 

(1) Principally reflects changes in discount rates and prepayment speed assumptions, mostly due to changes in interest rates.

 

(2) Represents changes due to collection and realization of expected cash flows and curtailments over time.

 

(3) Represents adjustments to the carrying value of MSRs due to temporary (impairment) or recovery in accordance with the lower of amortized cost or fair value methodology.

For the year ended December 31, 2010, mortgage servicing income was $26.2 million, an increase of $30.7 million from a loss of $4.5 million in 2009. During 2010, mortgage servicing income benefited from our election as of January 1, 2010 to value single family mortgage servicing rights, or MSRs, at fair value. As a result of this change, we recognized a $6.5 million increase to carrying value and a corresponding increase in the 2010 beginning shareholders’ equity. Recording single family MSRs at fair value allows for all changes in value to be fully realized in the period of change, whereas the prior accounting method (lower of amortized cost or fair value) limited upward changes in value to a maximum of amortized cost. This change in valuation methodology allowed us to more closely align offsetting changes in value between single family MSRs and hedging derivatives resulting in more effective hedging results.

Prior to 2010 the objective of our hedging strategy was to mitigate the risk associated with deterioration in MSR value due to factors other than normal amortization of loan balances underlying the MSR, including modest levels of loan prepayments. As of January 1, 2010, our strategy shifted to be more comprehensive in considering factors that influence MSR asset values, and now include normal amortization and prepayments of loans underlying the MSR assets as well as appreciation in the MSR above amortized cost. These changes in hedging

 

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strategy reduce the volatility in earnings due to changes in MSR values allowing for the declining value due to normal amortization of the loans underlying the MSRs. MSRs resulting from the sale of multifamily loans continue to be valued at fair value at the date of transfer and subsequently valued at the lower of amortized cost or fair value.

During 2009 and 2010 we experienced significant volatility in MSR values because of a significant increase in loan payoffs due to a low interest rate environment followed by an increased rate environment near each year end. To mitigate the impact of changes in the fair value of our single family MSRs, we use a variety of derivative financial instruments as economic hedges, including positions in futures, options on treasury securities, forward sales commitments on mortgage-backed securities and interest rate swap contracts. In 2010 the net change in the fair value of single family MSRs and related hedging instruments was a gain of $4.3 million as compared to a loss of $22.3 in 2009.

The loans serviced for others portfolio increased to $7.18 billion at December 31, 2010, as compared with $6.70 billion as of December 31, 2009. Substantially all of our new loan originations are designated as held for sale, much of which are sold with servicing retained. Also contributing to the increase in servicing fees was a shift in the composition of loans sold with servicing retained. Ginnie Mae conforming loans generally benefit from a higher servicing fee. During 2008, 2009 and 2010 13.0%, 18.4% and 20.9%, respectively, of loans sold with servicing retained conformed to Ginnie Mae guidelines thereby increasing the average servicing fee per loan sold, from 29 basis points during 2008 to 30 basis points during 2009 and 33 basis points during 2010.

Income from Windermere Mortgage Services was $2.2 million, a decrease of $2.5 million, or 53.6%, from $4.7 million in 2009. This decrease was primarily due to a 24.9% decrease in loans originated by our WMS joint venture. Loan origination fee income also decreased due to the decrease in loan volume, from 83 basis points for 2009 to 58 basis points for 2010.

Depositor and other retail banking fees were $3.4 million, a slight increase from 2009. The following table presents the composition of depositor and other retail banking fees for the periods indicated.

 

     Year Ended December 31,      Dollar Change  
(in thousands)        2010              2009          2010 vs. 2009  

Fees:

        

Monthly maintenance and deposit — related fees

   $ 1,978       $ 2,184       $ (206

Debit Card/ATM fees

     1,217         957         260   

Other fees

     202         211         (9
                          

Total depositor and related fees

   $ 3,397       $ 3,352       $ 45   
                          

Insurance commissions income was $1.2 million in 2010 and $0.8 million in 2009. These commissions increased as a result of increased annuity sales resulting from increased licensing of Bank personnel.

Gain on sale of investment securities available for sale was $6.0 million, as compared to $237,000 in 2009. This increase was predominantly due to the sale of $693.5 million of investment securities at a gain of $5.7 million during 2010, as compared with sales of $93.2 million in 2009. These securities sales were part of our balance sheet restructuring activities during 2010. Balance sheet restructuring is discussed in greater detail in “— Liquidity Risk and Capital Resources—HomeStreet Bank” below.

Other noninterest income was $0.8 million in 2010, down from $1.9 million in 2009. 2009 income included gains on interest rate swaps not repeated in 2010.

 

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Noninterest Expense

Noninterest expense was $132.2 million in 2010, an increase of $37.8 million or 40.0% from $94.5 million in 2009. Noninterest expense increased primarily due to an increase in other real estate owned (OREO) expenses as a result of higher levels of OREO balances and increases in OREO valuation reserves as well as increases in salaries and related costs, general and administrative expenses and FHLB prepayment penalties. These increases were partially offset by decreases in consulting expenses and a FHLB debt extension fee paid in 2009.

Noninterest expense consisted of the following:

 

     Year ended December 31,      Dollar Change  
(in thousands)    2010      2009      2010 vs. 2009  
Noninterest expense         

Salaries and related costs

   $ 49,816       $ 39,926       $ 9,890   

General and administrative

     18,213         12,772         5,441   

Federal Home Loan Bank prepayment penalty

     5,458                 5,458   

Legal

     3,573         3,353         220   

Consulting

     2,761         5,163         (2,402

Federal Deposit Insurance Corporation assessments

     7,618         8,757         (1,139

Occupancy

     7,356         6,486         870   

Information services

     5,223         5,503         (280

Other real estate owned

     32,197         10,479         21,718   

Federal Home Loan Bank debt extension fee

             2,009         (2,009
                          

Total noninterest expense

   $ 132,215       $ 94,448       $ 37,767   
                          

The significant components of our noninterest expense are described in greater detail, as follows:

Salaries and related costs were $49.8 million in 2010, an increase of $9.9 million or 24.8%, from $39.9 million in 2009. Salaries and related costs for 2010 include $8.3 million of direct origination costs that prior to 2010 would have been deferred and recognized as a decrease to net gain on loan origination/sales activities. Upon management’s election to carry single family loans held for sale at fair value, as of January 1, 2010, these costs are no longer deferred and are expensed as incurred. Had 2009 reflected fair value accounting for loans held for sale, salaries and related costs and total noninterest expense would have been $50.7 million and $105.1 million, respectively. After consideration of the foregoing, the remaining decrease in salaries and related costs was due to reduced commissions on lower single family loan production and staff reductions offset by increased health insurance costs.

General and administrative expense was $18.2 million in 2010, an increase of $5.4 million, or 42.6%, from $12.8 million in 2009. This increase was primarily due to increases in collection and foreclosure expenses. Additionally general and administrative expenses in 2009 included a credit of $1.9 million from a refund of prior year business and occupancy tax.

Federal Home Loan Bank (“FHLB”) prepayment penalty was $5.5 million in 2010 as compared with $0 in 2009. The Company pre-paid $391.0 million of FHLB advances in 2010, incurring a prepayment penalty of $5.5 million, as part of our balance sheet restructuring activities during 2010.

Legal expense was $3.6 million in 2010, an increase of $0.2 million, or 6.6%, from $3.4 million in 2009. This increase was primarily due to our efforts to resolve problem loans and other real estate owned.

Consulting expense was $2.8 million in 2010, a decrease of $2.4 million, or 46.5%, from $5.2 million in 2009. This decrease was primarily due to higher expenses related to our unsuccessful capital raising efforts in 2009.

 

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FDIC Assessments were $7.6 million in 2010, a decrease of $1.1 million or 13.0% from $8.8 million in 2009, predominantly due to a one-time special assessment fee of $1.5 million during 2009, partially offset by an increase in the FDIC fee rate for 2010.

Occupancy expense was $7.4 million in 2010, an increase of $0.9 million, or 13.4%, from $6.5 million in 2009 primarily due to the impacts of lease expenses associated with the Company’s branches and corporate office.

Information services expense was $5.2 million in 2010, a decrease of $0.3 million or 5.1% from $5.5 million in 2009. This decrease was primarily due to a decrease in maintenance related expenses.

Other real estate owned expense was $32.2 million in 2010, an increase of $21.7 million from $10.5 million in 2009. This increase was primarily due to higher levels of other real estate owned (OREO) balances and related increases in OREO valuation reserves, which increased by $18.6 million. This increase reflects ongoing declines in real estate values resulting from continued deterioration in the housing market, as well as an increase of $2.5 million in maintenance and operating expenses, including payment of delinquent property taxes. The remaining annual variance was due to declines in the gains on sale of OREO.

FHLB debt extension fee was $0 in 2010 as compared with $2.0 million in 2009. We paid a debt extension fee to the Seattle FHLB in 2009 to extend maturities on certain FHLB advances.

Income Tax Expense (Benefit)

Income tax expense (benefit) for the years ended December 31, 2010 and 2009 was $697,000 and $(47.0) million, respectively. Our effective tax rate was less than 2.1% and 29.9% for the same periods. As a result of the Worker, Homeownership and Business Assistance Act of 2009, we were able to carry back net operating losses incurred in 2009 to prior taxable years, which had been previously unavailable for carry back. Predominately due to this change, in 2010 and 2009 we recognized current tax benefits of $6.5 million and $41.0 million, respectively. Our effective tax rate in 2010 and 2009 varied from the Federal statutory rate due to valuation allowances established on deferred tax assets because of uncertainty as to our ability to realize these assets in the future.

In 2009 and 2010, we recorded a valuation allowance for financial statement purposes against the carrying value of our deferred tax asset, and the current carrying value of our net operating loss carryforwards on our financial statements is zero. Ordinarily, the book value of that asset would not limit our ability to offset accumulated operating losses against future income. However, the completion of this offering will result in an ownership change of HomeStreet within the meaning of Section 382 of the Internal Revenue Code of 1986, as amended. Section 382 substantially limits the ability of a corporate taxpayer to use operating loss carryforwards incurred prior to an ownership change against income earned after an ownership change. The Treasury Regulations adopted under Section 382 are complex, and the actual amount of such limitation varies depending on a variety of factors, but in our case, we expect the residual benefit of our accumulated net operating loss carryforward to be nominal immediately following the completion of this offering.

Notwithstanding the impact of this offering upon our accumulated net operating carryforwards, we also expect that the adoption and implementation of our accelerated asset resolution plan, or “AARP,” discussed elsewhere in this prospectus, will generate net operating losses that can be used to offset taxable income earned in the future. Assuming we recognize expenses of $                 million in 2011 associated with the AARP, and without giving effect to any other income or loss we may recognize for tax purposes in this year, we expect that the AARP will give rise to a tax benefit of $                 million. However, the value of any such deferred tax asset for purposes of GAAP will be limited by our ability to generate future taxable income against which such accrued losses may be offset.

 

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Capital Expenditures

We had no material capital expenditures in 2009 or 2010. We expect a modest increase in capital expenditures during 2011 targeted to advance strategic initiatives such as branch expansions, new retail and single family products and new methods of product distribution.

Comparison of the year ended 2009 to the year ended 2008

For the year ended December 31, 2009, we reported a net loss of $110.3 million, compared with a net gain of $8.4 million for 2008.

 

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Average Balances and Rates

Average balances, together with the total dollar amounts of interest income and expense, on a tax equivalent basis related to such balances and the weighted average rates, for years ended December 31, 2009 and 2008 were as follows:

 

     Year Ended December 31,  
     2009     2008  
     Average
Balance
     Interest     Average
Yield/
Cost
    Average
Balance
     Interest      Average
Yield/
Cost
 
(in thousands)                                        

Assets:

               

Interest-earning assets(1):

               

Cash & cash equivalents

   $ 259,665       $ 584        0.23   $ 32,070       $ 524         1.63

Investment securities

     372,320         4,376        1.18     119,720         5,503         4.60

Loans held for sale

     117,555         7,647        6.51     91,123         5,190         5.70

Loans held for investment

     2,307,215         99,130        4.30     2,519,811         156,920         6.23
                                       

Total interest-earning assets(2)

     3,056,755         111,738        3.66     2,762,723         168,138         6.09

Noninterest-earning assets(3)

     82,068             96,226         
                           

Total assets

   $ 3,138,823           $ 2,858,949         
                           

Liabilities and Stockholders’ Equity:

               

Deposits:

               

Interest-bearing demand accounts

   $ 99,884         1,259        1.26   $ 82,033         1,254         1.53

Savings accounts

     112,562         2,900        2.58     31,302         631         2.02

Money market accounts

     304,832         4,515        1.48     304,550         7,827         2.57

Certificate accounts

     1,495,693         45,679        3.05     1,139,648         44,953         3.94
                                       

Deposits

     2,012,971         54,353        2.70     1,557,533         54,665         3.51

Fed discount borrowings

     688         3        0.50     86,594         1,940         2.24

FHLB advances

     685,716         21,068        3.07     734,989         29,030         3.95

Securities sold under agreements to repurchase

     9,317         267        2.87     24,159         672         2.78

Long-term debt

     66,857         4,270        6.39     78,890         5,205         6.60

Other borrowings

     615         (92     -14.97     3,621         212         5.86
                                       

Total interest-bearing liabilities(2)

     2,776,163         79,869        2.88     2,485,786         91,723         3.69

Other noninterest-bearing liabilities

     211,794             174,105         
                           

Total liabilities

     2,987,957             2,659,891         
                           

Stockholder’s equity

     150,866             199,058         
                           

Total liabilities and stockholders’ equity

   $ 3,138,823           $ 2,858,949         
                           

Net interest income(4)

      $ 31,869           $ 76,414      
                           

Net interest spread

          0.78           2.40

Impact of noninterest-bearing sources

          0.26           0.38

Net interest margin

          1.04           2.78

 

(1) The daily average balances of nonaccrual assets and related income, if any, are included in their respective categories.

 

(2) Average interest-earning assets and interest-bearing liabilities were computed using daily average balances.

 

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(3) Includes loan balances that have been foreclosed and are now reclassified to other real estate owned.

 

(4) Includes taxable-equivalent adjustments primarily related to tax-exempt income on certain loans and securities of $380,000 and $529,000 for the years ended 2009 and 2008, respectively. The federal statutory tax rate was 35% for the periods presented.

We have not included interest income from nonaccrual loans in interest income. The additional interest income that would have been recorded during the period if the loans had been accruing was $15.1 million and $3.0 million for the years ended December 31, 2009 and 2008, respectively.

Rate and Volume Analysis

The following table presents the extent to which changes in interest rates and changes in the volume of our interest-earning assets and interest-bearing liabilities have affected our interest income and interest expense, excluding interest income from nonaccrual loans. Information is provided in each category with respect to: (1) changes attributable to changes in volume (changes in volume multiplied by prior rate), (2) changes attributable to changes in rate (changes in rate multiplied by prior volume), (3) changes attributable to changes in rate and volume (change in rate multiplied by change in volume), which were allocated in proportion to the percentage change in average volume and average rate and included in the relevant column and (4) the net change.

 

     2009 vs. 2008  
     Increase (Decrease)
Due to
       
     Rate     Volume     Total
Change
 
(in thousands)                   

Assets:

      

Interest-earning assets:

      

Cash & cash equivalents

   $ (8   $ 68      $ 60   

Investment securities

     614        (1,741     (1,127

Loans held for sale

     808        1,649        2,457   

Total loans held for investment

     (45,429     (12,361     (57,790
                        

Total interest-earning assets

     (44,015     (12,385     (56,400

Liabilities:

      

Deposits:

      

Interest-bearing demand accounts

     (241     246        5   

Savings accounts

     220        2,049        2,269   

Money market accounts

     (3,319     7        (3,312

Certificate accounts

     (11,478     12,204        726   
                        

Deposits

     (14,818     14,506        (312

Fed discount borrowings

     (850     (1,086     (1,936

FHLB advances

     (6,116     (1,846     (7,962

Securities sold under agreements to repurchase

     20        (425     (405

Long-term debt

     (162     (773     (935

Other borrowings

     (247     (57     (304
                        

Total interest-bearing liabilities

     (22,173     10,319        (11,854
                        

Total changes in net interest income

   $ (21,842   $ (22,704   $ (44,546
                        

Net Interest Income

Net interest income on a tax equivalent basis for the year ended December 31, 2009 was $31.9 million, a decrease of $44.5 million, or 58.4%, from $76.4 million in 2008, largely reflecting a decrease in the net interest

 

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margin which declined from 2.78% as of December 31, 2008 to 1.04% as of December 31, 2009. The decline in net interest income is comprised of a decline in total interest income of $56.4 million, or 33.6%, which was partially offset by a decline in interest expense of $11.9 million, or 12.9%. Interest income decreased to $111.7 million for 2009, compared with $168.1 million in 2008. The reduction in interest income is primarily due to a $57.8 million decline in interest earned on loans held for investment, which is comprised of a $45.4 million decline associated with the reduction in average yield from 6.23% to 4.30%, and a $12.4 million decline in interest income associated with the decrease in our average portfolio of loans held for investment from $2.52 billion in 2008 to $2.31 billion in 2009. The decline in yield on loans held for investment reflects the significant decline in market interest rates experienced during the periods compounded by the absence of interest rate floors on a substantial amount of our loans and an increase in nonperforming loans, which increased to $374.2 million as of December 31, 2009 compared with $75.4 million as of December 31, 2008. The decline in interest expense between 2008 and 2009 primarily reflects the significant decline in market interest rates experienced during the periods and, in turn, the rates we paid on deposits and borrowings, offset by an increase in the average balance of certificate accounts, which increased from $1.14 billion in 2008 to $1.50 billion in 2009.

Provision for Loan Losses

Our loan loss provision expense for 2009 was $153.5 million, an increase of $119.1 million, or more than 100.0%, from $34.4 million in 2008 which resulted primarily from increases in classified and nonperforming assets and related increases in loan charge offs. This deterioration reflects the impact of the economic downturn on our borrowers’ ability to service our loans, declining collateral values and the diminished capacity of our guarantors. The provision for loan losses is discussed in greater detail below in “— Credit Risk Management.”

Noninterest Income

Noninterest income was $59.2 million for the year ended December 31, 2009, an increase of $18.9 million, or 46.8%, from $40.3 million in 2008. The increase in noninterest income was the result of several factors. Our noninterest income is heavily dependent upon loan volumes from our mortgage banking activities. The level of mortgage banking activity fluctuates and is influenced significantly by mortgage interest rates, the health of the general economy and housing affordability among other factors. Our mortgage banking volumes, as well as revenues per loan, increased in 2009 as compared to 2008. Loan volumes increased in 2009 over 2008 due to falling and historically low interest rates on mortgage loans. Revenues per loan increased in 2009 over 2008 due to increased profit margins available in the marketplace because of a reduction in competition in the mortgage industry resulting from the economic downturn and related regulation requirements. The significant components of our noninterest income were:

 

     Year ended December 31,      Dollar Change  
(in thousands)        2009             2008          2009 vs. 2008  

Noninterest income

       

Net gains on mortgage loan origination and sales activities

   $ 52,831      $ 15,833       $ 36,998   

Mortgage servicing

     (4,495     13,025         (17,520

Income from Windermere Mortgage Services

     4,663        2,423         2,240   

Debt extinguishment

            2,451         (2,451

Federal Home Loan Bank dividend

            352         (352

Depositor and other retail banking fees

     3,352        2,885         467   

Insurance commissions

     792        807         (15

Gain on sale of investment securities available for sale

     237        1,067         (830

Other

     1,850        1,503         347   
                         

Total noninterest income

   $ 59,230      $ 40,346       $ 18,884   
                         

Net gains on mortgage loan origination and sales activities was $52.8 million in 2009, an increase of $37.0 million, or more than 100.0%, from $15.8 million in 2008. The increase resulted from higher loan origination

 

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volumes and improved revenue per loan on single family loans originated and sold into the secondary market. Lower mortgage interest rates, government stimulus programs for first time home buyers, and reduced competition due to dislocations in the financial services industry influenced our increase in single family residential loan sales volume, which increased to $2.55 billion in 2009 from $1.45 billion in 2008.

In addition, we originated $45.2 million in multifamily residential loans and sold $49.7 million of such loans in 2009 (including some loans originated in 2008 and sold in 2009), compared to $265.6 million originated and $211.6 million sold during 2008. The decline in multifamily origination volume in 2009 was due primarily to decreases in the value of multifamily properties generally and the related decline in the number of purchases and sales of multifamily properties.

Mortgage servicing income consisted of the following:

 

     Year Ended December 31,     Dollar Change  
     2009     2008     2009 vs. 2008  
(in thousands)    Single
family
    Multifamily     Total     Single
family
    Multifamily     Total     Total  

Servicing fees and other

   $ 15,612      $ 3,477      $ 19,089      $ 13,275      $ 3,635      $ 16,910      $ 2,179   

Amortization

     (17,576     (1,302     (18,878     (7,992     (1,282     (9,274     (9,604

Recovery/(impairment)

     1,335               1,335        (9,197            (9,197     10,532   

Net gain (loss) from derivatives economically hedging MSR

     (6,041            (6,041     14,586               14,586        (20,627
                                                        

Mortgage servicing

   $ (6,670   $ 2,175      $ (4,495   $ 10,672      $ 2,353      $ 13,025      $ (17,520
                                                        

 

(1) Principally reflects changes in discount rates and prepayment speed assumptions, mostly due to changes in interest rates.

 

(2) Represents changes due to collection/realization of expected cash flows over time.

 

(3) Represents adjustments to the carrying value of multifamily MSRs due to temporary (impairment) or recovery in accordance with the lower of amortized cost or fair value methodology.

Mortgage servicing revenues , net of amortization and impairment, includes servicing fee income and related fees less amortization of mortgage servicing rights and mortgage servicing rights impairment charges or recoveries, net of hedging gains and losses. We recognized a loss of $4.5 million for 2009 for mortgage servicing, net of amortization and impairment, as compared to income of $13.0 million for 2008.

The decrease of $17.5 million in mortgage servicing income was due to a $9.6 million increase in amortization of servicing rights, which was caused by a high level of prepayments on the loans in our portfolio of loans serviced for others resulting from low mortgage rates in 2009 and a $10.1 million decrease in net servicing impairment or recovery and hedging gains and losses reflecting the volatility in the financial markets during these periods. These decreases in mortgage servicing income in 2009 were partially offset by an increase in loan servicing fees and other fees of $2.2 million as a result of growth in our average portfolio of loans serviced for others. The loans serviced for others portfolio increased to $6.70 billion at December 31, 2009 from $5.59 billion at December 31, 2008. Also contributing to the increase in servicing fees was an increase in the average servicing fee per loan which increased from 29 basis points in 2008 to 30 basis points in 2009, reflecting a shift in the composition of loans sold with servicing retained to a higher composition of Ginnie Mae conforming loans, which carry a higher servicing fee.

Income from Windermere Mortgage Services — Income derived from the Bank’s Windermere Mortgage Services affiliate was $4.7 million, an increase of $2.2 million, or 92.4%, in 2009 from $2.4 million in 2008. The improvement in income was primarily attributable to a 28.2% increase in loan origination volume between 2008 and 2009.

 

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Debt extinguishment — For 2008, we recorded a gain of $2.5 million on the early extinguishment of long-term debt. We prepaid $25.0 million of our senior notes due to USAA at a discount of 10.0% and extended the maturity of the remaining $5.0 million of senior notes from March 1, 2009, to March 1, 2011. This debt was retired for $3.0 million in the first quarter of 2011.

Federal Home Loan Bank (FHLB) dividend — HomeStreet received no dividend income from the FHLB in 2009. In 2008, the Company recorded $0.4 million in FHLB dividends.

Depositor and other retail banking fees was $3.4 million for 2009, an increase of $0.5 million or 16.2% from $2.9 million in 2008. This increase is a reflection of continued growth in our deposits and the related transaction fee income.

 

     Year Ended December 31,      Dollar Change  
(in thousands)        2009              2008          2009 vs. 2008  

Fees:

        

Monthly maintenance and deposit — related fees

   $ 2,184         1,868       $ 316   

Debit Card/ATM fees

     957         799         158   

Other fees

     211         218         (7
                          

Total depositor and related fees

   $ 3,352       $ 2,885       $ 467   
                          

Insurance commissions income was $0.8 million in 2009 and 2008. Agency commissions were generally unchanged during these periods due to limited marketing efforts and market conditions.

Gain on sale of investment securities available for sale was $0.2 million in 2009, a decrease of $0.8 million, or 77.8%, from $1.1 million in 2008. The gains in 2008 were the result of repositioning securities to reduce the portfolio’s risk weighting.

Other noninterest income was $1.9 million in 2009, an increase of $0.3 million, or 23.1% from $1.5 million in 2008. The increase was largely due to gains on interest rate swaps.

Noninterest Expense

Noninterest expense increased to $94.4 million in 2009, an increase of $24.3 million, or 34.5% from $70.2 million in 2008. Our levels of noninterest expense in 2009 were significantly impacted by the deterioration in our asset quality, capital, and regulatory status. The significant components of noninterest expense in 2009 and explanations of changes from 2008 are discussed below:

 

     Year ended December 31,      Dollar Change  
(in thousands)        2009              2008          2009 vs. 2008  

Noninterest expense

        

Salaries and related costs

   $ 39,926       $ 38,784       $ 1,142   

General and administrative

     12,772         13,936         (1,164

Legal

     3,353         1,541         1,812   

Consulting

     5,163         985         4,178   

Federal Deposit Insurance Corporation assessments

     8,757         1,606         7,151   

Occupancy

     6,486         6,743         (257

Information services

     5,503         5,051         452   

Other real estate owned

     10,479         1,543         8,936   

Federal Home Loan Bank debt extension fee

     2,009                 2,009   
                          

Total noninterest expense

   $ 94,448       $ 70,189       $ 24,259   
                          

 

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Salaries and related costs was $39.9 million for 2009, an increase of $1.1 million, or 2.9%, from $38.8 million in 2008. The increases were primarily due to increased staffing needs related to credit administration functions and the increased commissions related to the high level of single family loan production. Offsetting these higher compensation expenses were the deferral of direct costs of loan production of $12.2 million for 2009 and $10.0 million for 2008. Retirement contributions decreased to $0.1 million in 2009 from $0.7 million in 2008 due to the elimination of 401(k) matching contributions in mid-2009.

General and administrative expenses was $12.8 million in 2009, a decrease of $1.2 million, or 8.4%, from $13.9 million in 2008. The decrease is primarily due to a $2.1 million decrease in business and occupation tax expense as a result of a favorable outcome from litigation with the State of Washington to exempt payment of business and occupation tax on loan servicing fees. Offsetting this decrease were increases in other general and administrative expenses.

Legal expenses was $3.4 million for 2009, an increase of $1.8 million, or more than 100.0%, from $1.5 million for 2008. These increases were primarily the result of the increased volume of problem loans and other real estate owned and management’s efforts to raise capital.

Consulting expense was $5.2 million in 2009, an increase of $4.2 million, or more than 100.0%, from $1.0 million in 2008. The increase was due primarily to unsuccessful capital raising initiatives in 2009. These items reflect costs that would have been capitalized had the offering proved successful.

Federal Deposit Insurance Corporation assessments was $8.8 million for 2009, an increase of $7.2 million, or more than 100.0%, from $1.6 million in 2008. The increase was due to a one-time special assessment of $1.5 million to replenish the insurance fund as well as increases in risk premium charges due to the Bank’s financial condition.

Occupancy expense was $6.5 million in 2009, a decrease of $0.3 million or 3.8% from $6.7 million in 2008. This decrease was primarily due to the completion of the amortization period for which certain tenant improvement expenses were recognized.

Information services expense was $5.5 million in 2009, an increase of $0.5 million or 8.9% from $5.1 million in 2008. This increase was primarily due to the replacement of certain hardware systems, increasing maintenance related expenses.

Other real estate owned expenses were $10.5 million for 2009, an increase of $8.9 million, or more than 100.0%, from $1.5 million for 2008. The increase of $8.9 million in 2009 was primarily related to the increase in other real estate owned balances. Specifically, OREO valuation provisions increased $8.0 million, while OREO maintenance expenses increased $2.5 million. Partly offsetting these expenses, gains on OREO sales increased $1.6 million.

Federal Home Loan Bank debt extension fee . In 2009, the Bank paid a debt extension fee of $2.0 million to the Federal Loan Bank of Seattle (FHLB) to extend the maturities on certain FHLB advances to strengthen the Company’s long-term liquidity position.

Income Tax Expense (Benefit)

Income tax expense (benefit) for the years ended December 31, 2009 and 2008 was $(47.0) million and $3.2 million, respectively. Our effective tax rate was (29.9)% and 27.5% for the same periods. As a result of the Worker, Homeownership and Business Assistance Act of 2009, we were able to carry back net operating losses incurred in 2009 to prior taxable years, which had been previously unavailable for carry back. Predominately due to this change, in 2009 we recognized current tax benefits of $41.0 million. Our effective tax rate in 2009 and 2008 varied from the Federal statutory rate due to valuation allowances established on deferred tax assets due to uncertainty as to our ability to realize these assets in the future.

 

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Review of Financial Condition

Total assets were $2.34 billion at March 31, 2011, $2.49 billion at December 31, 2010 and $3.21 billion at December 31, 2009. The decreases in total assets are predominately due to decreases in our portfolio of loans held for investment and our balance sheet restructuring activities during 2010. The portfolio of loans held for investment has declined as a direct result of our ongoing problem loan resolution activities. These activities have resulted in accelerated repayments, charge-offs and transfers to OREO as a result of foreclosures and deed-in-lieu agreements. We have also been an active seller of OREO properties during these periods. During the first quarter of 2011, we also sold a significant portion of our OREO, including our largest OREO property, known as the Cascadia project, which we sold for $49.1 million. To ensure our ability to fund unexpected deposit outflows and to provide confidence to our deposit customers and regulators, in 2008 and 2009 we increased our on-balance sheet liquidity through increased FHLB borrowings and brokered deposits. We invested some of these funds in highly liquid, short duration government securities and we increased our cash position. While this strategy was effective for liquidity risk management purposes, this high level of liquidity adversely affected our net interest income and margin. During 2010, with the stabilization of the Company and changing depositors’ attitudes toward the risk of deposits in troubled banks, we began reducing on-balance sheet liquidity. We do not anticipate reducing on-balance sheet liquidity to normalized levels until the Orders are terminated and our overall risk profile returns to normal.

Cash and Cash Equivalents totaled $170.8 million as of March 31, 2011, compared with $72.6 million as of December 31, 2010 and $217.1 million as of December 31, 2009. The increase during the first quarter of 2011 reflects proceeds of $67.3 million from recent sales of OREO properties, including the Cascadia project, as well as the settlement of loans sold. The decrease during 2010 reflects our decision to maintain lower on-balance sheet liquidity.

Securities Available for Sale totaled $304.4 million as of March 31, 2011, compared with $313.5 million at December 31, 2010, and $657.8 million as of December 31, 2009. These balances remained relatively constant during the latter half of 2010 and the first quarter of 2011. The decrease in the securities portfolio during 2010 is a result of our decision to maintain lower on-balance sheet liquidity.

We primarily hold investment securities for liquidity purposes, while providing a relatively stable source of interest income. Substantially all securities held are designated as available for sale. We hold two securities having a face amount and a fair value of approximately $200,000, which are designated as held-to-maturity.

We carry our available-for-sale securities at fair value. The following table sets forth certain information regarding the amortized cost and fair values of our investment securities available for sale for the periods indicated.

 

    At March 31,     At December 31,  
    2011     2010     2009     2008  
(in thousands)   Amortized
Cost
    Fair Value     Amortized
Cost
    Fair Value     Amortized
Cost
    Fair Value     Amortized
Cost
    Fair Value  

Available for sale:

               

Mortgage-backed securities

               

FNMA

  $ 1,455      $ 1,514      $ 1,519      $ 1,585      $ 2,151      $ 2,218      $ 3,171      $ 3,148   

GNMA

    2,660        2,850        2,915        3,112        3,863        3,984        5,235        5,258   

U.S. Government sponsored enterprises

                          10,227        10,284   

Municipal bonds(1)

    5,846        5,832        6,648        6,549        8,650        8,535        16,249        15,862   

Collateralized mortgage obligations

    225,678        217,938        229,415        221,921        157,971        155,900        21,798        21,785   

Corporate Debt Securities(2)

            20,039        20,196                 

US Treasury Securities

    76,260        76,270        80,384        80,346        467,017        467,007                 
                                                               

Total available for sale

  $ 311,899      $ 304,404      $ 320,881      $ 313,513      $ 659,691      $ 657,840      $ 56,680      $ 56,337   
                                                               

 

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(1) Comprised of general obligation bonds (i.e., backed by the general credit of the issuer) and revenue bonds (i.e., backed by revenues from the specific project being financed) issued by various municipal corporations. As of March 31, 2011 no bonds were rated below “A”.

 

(2) As of March 31, 2011, the corporate debt securities portfolio consisted of debt securities issued under the Temporary Liquidity Guarantee Program, or TLGP.

The following tables present the fair value of investment securities available for sale by contractual maturity along with the associated contractual yield, at March 31, 2011 and December 31, 2010. Contractual maturities for mortgage backed securities and collateralized mortgage obligations were determined assuming no prepayments. Remaining expected maturities will differ from contractual maturities as borrowers may have the right to prepay obligations before the underlying mortgages mature. The weighted average yield is computed using the contractual coupon of each security weighted based on the fair value of each security and does not include adjustments to a tax equivalent basis.

 

    March 31, 2011  
    Within one year     After one year
through five

years
    After five years
through ten
years
    After ten years     Total  
(in thousands)   Fair
Value
    Weighted
Average
Yield
    Fair
Value
    Weighted
Average
Yield
    Fair
Value
    Weighted
Average
Yield
    Fair Value     Weighted
Average
Yield
    Fair Value     Weighted
Average
Yield
 

Available for sale:

                   

Mortgage-backed securities

  $        $        $        $ 4,364        4.49   $ 4,364        4.49

Municipal bonds

             1,274        3.64     498        5.30     4,060        4.01     5,832        4.04

Collateralized mortgage obligations

             1,446        4.85              216,492        3.14     217,938        3.15

US Treasury Securities

    76,270        0.26                                76,270        0.26
                                                 

Total available for sale

  $ 76,270        0.26   $ 2,720        4.28   $ 498        5.30   $ 224,916        3.18   $ 304,404        2.46
                                                 

 

    At December 31, 2010  
    Within one year     After one year
through five

years
    After five years
through ten
years
    After ten years     Total  
(in thousands)   Fair
Value
    Weighted
Average
Yield
    Fair
Value
    Weighted
Average
Yield
    Fair
Value
    Weighted
Average
Yield
    Fair Value     Weighted
Average
Yield
    Fair Value     Weighted
Average
Yield
 

Available for sale:

                   

Mortgage-backed securities

  $        $        $        $ 4,697        4.51   $ 4,697        4.51

Municipal bonds

    930        3.66     1,271        3.64     503        3.60     3,845        4.12     6,549        3.92

Collateralized mortgage obligations

             1,556        4.77            0.00     220,365        3.16     221,921        3.17

US Treasury Securities

    80,346        0.25                                80,346        0.25
                                                 

Total available for sale

  $ 81,276        0.29   $ 2,827        4.26   $ 503        3.60   $ 228,907        3.20   $ 313,513        2.46
                                                 

 

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Each of the mortgage-backed securities and the collateralized mortgage obligations in our investment portfolio are insured or guaranteed by Fannie Mae, Ginnie Mae or Freddie Mac. Investments in these instruments involve a risk that actual prepayments will vary from the estimated prepayments over the life of the security. This may require adjustments to the amortization of premium or accretion of discount relating to such instruments, thereby changing the net yield on such securities. At March 31, 2011 and December 31, 2010, the aggregate net premium associated with our MBS portfolio was $0.04 million and $0.04 million, or 1.0% and 0.9% of the aggregate unpaid principal balance of our MBS, respectively. The aggregate net premium associated with our collateralized mortgage portfolio as of March 31, 2011 and December 31, 2010 was $1.1 million and $680,000, or 4.6% and 3.0% of the aggregate unpaid principal balance, respectively. There is also reinvestment risk associated with the cash flows from such securities and the market value of such securities may be adversely affected by changes in interest rates.

Management monitors the portfolio of securities classified as available for sale for impairment, which may result from credit deterioration of the issuer, changes in market interest rates relative to the rate of the instrument or changes in prepayment speeds. We evaluate each investment security at least once a quarter to assess if impairment is considered other than temporary. In conducting this evaluation, management considers many factors, including but not limited to whether we expect to recover the entire amortized cost basis of the security in light of adverse changes in expected future cash flows, the length of time the security has been impaired and the severity of the unrealized loss. We also consider whether we intend to sell the security (or whether we will be required to sell the security) prior to recovery of its amortized cost basis, which may be at maturity.

Based on this evaluation, management concluded that unrealized losses as of March 31, 2011 and December 31, 2010 were the result of changes in interest rates. Management does not intend to sell such securities nor is it likely it will be required to sell such securities prior to recovery of the security’s amortized cost basis. Accordingly, none of the unrealized losses as of March 31, 2011 and December 31, 2010 were considered other than temporary.

Loans Held for Sale totaled $82.8 million as of March 31, 2011, compared with $212.6 million as of December 31, 2010 and $57.0 million at December 31, 2009. Loans held for sale includes single family and multifamily residential loans that are intended for sale, typically within 30 days of closing the loan. The decrease in loans held for sale during the first quarter of 2011 is primarily due to a decrease in our loan origination volume, which has declined significantly from the levels experienced in the fourth quarter of 2010 as a result of rising mortgage interest rates. The increase during 2010 is primarily due to higher sales of loans near the end of 2009, which served to increase cash balances and decrease the balance of loans held for sale as of December 31, 2009. Substantially all loan originations during the first quarter of 2011 and for the year ended 2010 were designated for sale.

Loans Held for Investment, net totaled $1.50 billion as of March 31, 2011, compared with $1.54 billion as of December 31, 2010 and $1.96 billion at December 31, 2009. Our loans held for investment continue to decline as we resolve problem loans through payoff, pay-down, charge off or default and foreclosure on collateral. During the first quarter of 2011 transfers from loans held for investment to OREO as a result of foreclosures totaled $6.0 million, net of charge-offs of $3.5 million. For the full year 2010, loans held for investment balances decreased $426.5 million, or 21.7%. This decrease is primarily a result of transfers of $182.7 million to OREO along with charge-offs and repayment of loans. We generally stopped all new loan origination for investment in 2008 to enable the Company to focus on problem loan resolution and to decrease total assets to aid in the maintenance of regulatory capital ratios.

 

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The following table details the composition of our loans held for investment portfolio by dollar amount and as a percentage of our total loan portfolio as of the periods indicated:

 

                At December 31,  
    At March 31, 2011     2010     2009     2008     2007     2006  
    Amount     Percent     Amount     Percent     Amount     Percent     Amount     Percent     Amount     Percent     Amount     Percent  
(in
thousands)
                                                                       

Single family

  $ 522,904        33.4   $ 526,462        32.8   $ 590,695        28.4   $ 568,974        22.9   $ 493,483        20.0   $ 406,298        19.3

Commercial real estate(1)

    414,343        26.4     426,879        26.5     449,373        21.6     469,527        18.9     348,721        14.1     306,163        14.6

Multifamily residential

    102,450        6.5     104,497        6.5     85,522        4.3     94,857        3.9     117,173        4.8     93,191        4.5

Construction/land development

    271,676        17.4     285,131        17.7     631,525        30.3     959,309        38.4     1,135,170        45.9     984,453        46.8

Commercial business

    80,057        5.1     82,959        5.2     109,322        5.3     150,924        6.1     134,339        5.4     88,388        4.2

Home equity

    175,896        11.2     181,537        11.3     209,944        10.1     243,909        9.8     242,499        9.8     223,134        10.6
                                                                                               

Total loans held for investment

  $ 1,567,326        100.0   $ 1,607,465        100.0   $ 2,076,381        100.0   $ 2,487,500        100.0   $ 2,471,385        100.0   $ 2,101,627        100.0
                                                                                               

Less:

                       

Allowance for loan losses

  $ 62,156        $ 64,177        $ 109,472        $ 58,587        $ 38,804        $ 27,834     

Net deferred loan fees and discounts

    4,620          4,767          1,915          3,026          4,367          6,546     
                                                           

Total loans held for investment, net

  $ 1,500,550        $ 1,538,521        $ 1,964,994        $ 2,425,887        $ 2,428,214        $ 2,067,247     
                                                           

 

(1) March 31, 2011 and December 31, 2010 balances comprised of $124.6 million and $133.7 million of owner occupied loans, respectively, and $289.8 million and $293.2 million of non-owner occupied loans, respectively.

 

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The following tables show the composition of the loan portfolio by fixed-rate and adjustable-rate loans at the dates indicated and the repricing characteristics as of December 31, 2010.

 

                At December 31,  
    At March 31, 2011     2010     2009     2008  
(in thousands)   Amount     Percent     Amount     Percent     Amount     Percent     Amount     Percent  

FIXED-RATE LOANS

               

Single family

  $ 202,295        12.9   $ 194,775        12.1   $ 189,998        9.2   $ 150,332        6.0

Commercial

    171,848        11.0     181,372        11.3     207,255        10.0     221,398        8.9

Commercial business

    53,118        3.4     58,767        3.7     74,869        3.6     89,447        3.6

Home Equity

    67,554        4.3     69,586        4.3     84,103        4.1     109,566        4.4
                                                               

Total fixed-rate loans

    494,815        31.6     504,500        31.4     556,225        26.8     570,743        22.9

ADJUSTABLE-RATE LOANS

               

Single family

    320,609        20.5     331,687        20.6     400,697        19.3     418,641        16.8

Commercial

    242,495        15.5     245,507        15.3     242,118        11.7     248,129        10.0

Multifamily residential

    102,450        6.5     104,497        6.5     85,522        4.1     94,857        3.8

Construction/land development, net (1)

    271,676        17.3     285,131        17.7     631,525        30.4     959,309        38.6

Commercial business

    26,939        1.7     24,192        1.5     34,453        1.7     61,478        2.5

Home Equity

    108,342        6.9     111,951        7.0     125,841        6.1     134,343        5.4
                                                               

Total adjustable-rate loans

    1,073,716        68.4     1,102,965        68.6     1,520,156        73.2     1,916,757        77.1
                                                               

Total loans

  $ 1,567,326        100.0   $ 1,607,465        100.0   $ 2,076,381        100.0   $ 2,487,500        100.0
                                                               

Less:

               

Deferred loan fees

  $ (4,620     $ (4,767     $ (1,915     $ (3,026  

Allowance for loan losses

    (62,156       (64,177       (109,472       (58,587  
                                       

Loans receivable, net

  $ 1,500,550        $ 1,538,521        $ 1,964,994        $ 2,425,887     
                                       

 

(1) Construction/land development is presented net of the undisbursed portion of the loan commitment.

 

     December 31, 2010  
(in thousands)    Balance      Percent of
Gross Loans
 

Repricing Characteristic

     

Adjustable Rates

     

LIBOR

   $ 677,163         42

Prime Rate

     216,956         13

FHLB

     135,790         8

Treasury

     73,056         5
                 

Total Adjustable

     1,102,965         69

Fixed Rates

     504,500         31
                 

Total Gross Loans

   $ 1,607,465         100
                 

 

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The following table shows the contractual maturity of our loan portfolio by loan type at December 31, 2010:

 

     At December 31, 2010      Loans Over One Year
by Rate Sensitivity
 

(in thousands)

   One Year
or Less
     One Through
Five Years
     Over Five
Years
     Total      Fixed Rate      Floating
Rate
 

Single family residential

   $ 1,478       $ 997       $ 523,987       $ 526,462       $ 196,732       $ 328,252   

Commercial real estate

     75,476         138,247         213,156         426,879         133,974         217,429   

Multifamily residential

     36,352         59,283         8,862         104,497         8,477         59,668   

Construction/land development

     214,462         70,669                 285,131         2,024         68,645   

Commercial business

     20,019         40,194         22,746         82,959         59,390         3,550   

Home Equity

     68         566         180,903         181,537         68,967         112,502   
                                                     

Total loans held for investment

   $ 347,855       $ 309,956       $ 949,654       $ 1,607,465       $ 469,564       $ 790,046   
                                                     

The following table presents the loan portfolio by loan type and region as of March 31, 2011:

 

    Washington        
    Puget Sound                 Idaho  
(in thousands)   King(1)     Snohomish(2)     Pierce(1)     Thurston(1)     Vancouver(2)(3)     Spokane(2)     Boise(2)  

Single family

  $ 172,124      $ 84,933      $ 60,636      $ 15,974      $ 40,545      $ 30,146      $ 7,662   

Commercial real estate

    180,997        83,912        22,527               30,077        4,410        762   

Multifamily residential

    56,926        2,440        6,830                      9,358        948   

Construction/land development

    78,243        17,654        51,033        54,390        10,305        14,029        2,602   

Commercial business

    59,518        6,865        4,038               2,079        87          

Home Equity

    71,570        23,255        15,103        4,840        16,284        3,801        147   
                                                       

Total loans

  $ 619,378      $ 219,059      $ 160,167      $ 75,204      $ 99,290      $ 61,831      $ 12,121   
                                                       
    Oregon                    
(in thousands)   Portland(2)     Bend(2)     Eugene(2)     Salem(2)     Hawaii     Other(4)     Total  

Single family

  $ 54,515      $ 6,180      $ 1,735      $ 27,991      $ 20,463      $      $ 522,904   

Commercial real estate

    60,009        669        6,887        1,716        14,428        7,949        414,343   

Multifamily residential

    22,289        2,791                             868        102,450   

Construction/land development

    21,244        2,594        10,411        1,126        8,045               271,676   

Commercial business

    7,367        64               39                      80,057   

Home Equity

    19,497        281        473        11,866        8,779               175,896   
                                                       

Total loans

  $ 184,921      $ 12,579      $ 19,506      $ 42,738      $ 51,715      $ 8,817      $ 1,567,326   
                                                       

 

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The following table presents the loan portfolio by loan type and region as of December 31, 2010:

 

    Washington     Idaho  
    Puget Sound                    
(in thousands)   King(1)     Snohomish(2)     Pierce(1)     Thurston(1)     Vancouver(2)(3)     Spokane(2)     Boise(2)  

Single family

  $ 180,385      $ 86,099      $ 54,614      $ 14,631      $ 40,991      $ 29,383      $ 7,519   

Commercial real estate

    186,036        84,494        25,136               33,417        4,456        769   

Multifamily residential

    58,387        2,456        6,830        508        1,080        9,358        951   

Construction/land development

    82,159        20,028        54,373        54,966        10,471        14,111        2,678   

Commercial business

    61,763        7,135        4,285               2,433        556          

Home Equity

    74,359        23,909        14,880        4,930        16,899        3,855        145   
                                                       

Total loans

  $ 643,089      $ 224,121      $ 160,118      $ 75,035      $ 105,291      $ 61,719      $ 12,062   
                                                       
     Oregon                       
(in thousands)    Portland(2)      Bend(2)      Eugene(2)      Salem(2)      Hawaii      Other(4)      Total  

Single family

   $ 56,333       $ 6,592       $ 1,520       $ 20,324       $ 28,071       $       $ 526,462   

Commercial real estate

     60,566         677         6,937         14,621         1,734         8,036         426,879   

Multifamily residential

     21,244         2,822                                 861         104,497   

Construction/land development

     22,462         3,053         10,540         8,983         1,307                 285,131   

Commercial business

     6,680         64                         43                 82,959   

Home Equity

     20,237         357         483         9,266         12,217                 181,537   
                                                              

Total loans

   $ 187,522       $ 13,565       $ 19,480       $ 53,194       $ 43,372       $ 8,897       $ 1,607,465   
                                                              

 

(1) Refers to a specific county.

 

(2) Refers to a specific city.

 

(3) Also includes surrounding counties.

 

(4) Includes Alaska and Florida in commercial real estate and Washington Community Reinvestment Association participation pool loans in multifamily residential.

The following table presents the loan portfolio as of December 31, 2010 by loan type and year of origination:

 

     December 31, 2010  
(in thousands)    Prior to
2000
     2000-2004      2005-2006      2007-2008      2009      2010      Total  

Single family

   $ 11,375       $ 45,292       $ 66,602       $ 257,118       $ 116,937       $ 29,138       $ 526,462   

Commercial real estate

     740         61,803         110,057         238,933         5,279         10,067         426,879   

Multifamily residential

             3,469         3,153         66,165                 31,710         104,497   

Construction/land development

                     86,493         173,046         15,900         9,692         285,131   

Commercial business

             1,885         22,405         35,559         7,581         15,529         82,959   

Home equity

     32         27,837         65,765         81,403         4,238         2,262         181,537   
                                                              

Total loans

   $ 12,147       $ 140,286       $ 354,475       $ 852,224       $ 149,935       $ 98,398       $ 1,607,465   
                                                              

 

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The following table presents loan origination volume and loan sales during the periods indicated:

 

     Three Months  Ended
March 31, 2011
     Year Ended December 31,  
(in thousands)       2010      2009      2008  

Loans Originated:

           

Real estate:

           

Single family:

           

Originated by HomeStreet

   $ 177,164       $ 1,446,850       $ 1,898,622       $ 1,089,416   

Originated by Windermere Mtge Services

     99,730         622,294         828,835         646,481   
                                   

Single family

     276,894         2,069,144         2,727,457         1,735,897   

Multifamily residential

     5,292         60,690         45,205         265,584   

Commercial

             26,595         13,988         131,451   

Construction/land development

     4,364         24,484         52,517         288,532   
                                   

Total real estate

     286,550         2,180,913         2,839,167         2,421,464   

Commercial business

     1,620         8,049         11,570         64,613   

Home equity

             240         1,153         67,258   
                                   

Total loans originated by HomeStreet or mortgage affiliates

     288,170         2,189,202         2,851,890         2,553,335   
                                   

Loans sold:

           

Single family

   $ 386,174       $ 1,875,430       $ 2,547,742       $ 1,450,682   

Multifamily residential

     13,862         43,358         49,678         211,610   
                                   

Total

   $ 400,036       $ 1,918,788       $ 2,597,420       $ 1,662,292   
                                   

Other real estate owned totaled $98.9 million as of March 31, 2011, compared with $170.5 million as of December 31, 2010 and $107.8 million as of December 31, 2009. OREO balances decreased during the first quarter of 2011 primarily due to management’s continued efforts to resolve problem assets. In the first quarter of 2011, we completed the sale of several large properties, including our largest OREO property, known as the Cascadia project, which had a book value of $48.0 million as of December 31, 2010. First quarter 2011 sales of OREO totaled $67.0 million. During the first quarter of 2011, we acquired through foreclosure real estate with a fair value, less estimated costs to sell, of $5.7 million. For the year 2010, OREO balances increased $62.7 million, or 58.2%. During 2010, we acquired through foreclosure real estate with a fair value, less estimated costs to sell, of $189.0 million, and we sold $98.9 million of OREO properties. As of March 31, 2011 and December 31, 2010, 14.9% and 60.6% of OREO properties have been held less than six months.

Federal Home Loan Bank Stock totaled $37.0 million as of March 31, 2011, December 31, 2010 and 2009, which is used to collateralize advances from the FHLB. FHLB stock is carried at par value and can only be purchased or redeemed at par value in transactions between FHLB and its member institutions. Both cash and stock dividends received on FHLB stock are reported in earnings.

On November 6, 2009, the FHLB’s regulator reaffirmed its capital classification as undercapitalized. Under Housing Finance Agency regulations, an FHLB that fails to meet any regulatory capital requirement may not declare a dividend or redeem or repurchase capital stock. As such, the FHLB will not be able to redeem, repurchase or declare dividends on stock outstanding while the risk-based capital deficiency exists. Accordingly, even though our FHLB borrowings have significantly declined, there has not been a corresponding decrease in the value of our FHLB stock.

Management periodically evaluates FHLB stock for other than temporary impairment based on its assessment of ultimate recoverability of par value, rather than recognizing temporary declines in value. The determination of whether the decline affects the ultimate recoverability is influenced by criteria such as (1) the significance of the decline in net assets of the FHLB as compared to the capital stock amount for the FHLB and the length of time this

 

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situation has persisted, (2) commitments by the FHLB to make payments required by law or regulation and the level of such payments in relation to the operating performance of the FHLB, (3) the impact of legislative and regulatory changes on institutions and, accordingly, on the customer base of the FHLB and (4) the liquidity position of the FHLB. The FHLB continues to benefit from an AAA credit rating from Standard & Poor’s, which allows the FHLB to secure funding for its activities at attractive rates and terms, further supporting continued access to liquidity. Based on its evaluation, management determined there is not other-than-temporary impairment on the FHLB stock investment as of March 31, 2011, December 31, 2010 or December 31, 2009.

We may also borrow, on a collateralized basis, from the FRBSF. At March 31, 2011, December 31, 2010 and 2009, we did not have any outstanding borrowings from the FRBSF. Based on the amount of qualifying collateral available, borrowing capacity from the FRBSF was $175.2 million and $192.9 million at March 31, 2011 and December 31, 2010. The FRBSF is also not contractually bound to offer credit to us, and our access to this source for future borrowings may be discontinued at any time.

Deposits

Through our 20 bank branches, we offer various types of deposit accounts to consumers and businesses, including savings accounts, checking accounts, money market accounts and a variety of certificate of deposit accounts (“CDs”). We also offer cash management services to businesses. Deposits at March 31, 2011 were $2.07 billion compared to $2.13 billion at December 31, 2010 and $2.33 billion at December 31, 2009. For the first quarter of 2011 deposit balances decreased $62.9 million, or 3.0%, as we continued to manage reductions in noncore retail CD balances through offering less competitive rates. These decreases were partially offset by increases in core consumer and business deposits. Similarly, for the year 2010 deposit balances decreased $202.6 million, or 8.7% as a result of our integrated consumer and business financial services delivery strategy.

Deposit balances and average rates paid were as follows for the period indicated:

 

                At December 31,  
(in thousands)   At March 31, 2011     2010     2009     2008  

Noninterest bearing accounts

  $ 180,441        0.00   $ 235,890        0.00   $ 182,155        0.00   $ 154,789        0.00

NOW accounts

    127,529        0.52     121,534        0.52     107,210        0.75     92,081        1.34

Statement savings accounts due on demand

    52,743        0.69     51,075        0.69     88,597        2.41     83,998        2.63

Money market accounts due on demand

    427,698        0.75     413,401        0.75     374,577        1.21     265,810        1.79

Time, under $100,000

    778,568        1.78     811,409        1.80     1,059,921        2.80     774,994        3.78

Time, $100,000 to $250,000

    415,101        1.92     409,070        2.03     441,642        2.69     272,486        3.71

Time, $250,000 or more

    84,762        2.00     87,363        2.03     78,231        2.55     267,153        2.90
                                       
  $ 2,066,842        1.34   $ 2,129,742        1.35   $ 2,332,333        2.19   $ 1,911,311        2.90
                                       

Borrowings

We had no outstanding securities sold under repurchase agreements at March 31, 2011, December 31, 2010 and 2009 and no outstanding federal funds purchased at March 31, 2011, December 31, 2010 or 2009.

 

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FHLB advances totaled $114.5 million as of March 31, 2011, compared with $165.9 million as of December 31, 2010 and $677.8 million as of December 31, 2009. FHLB advances are collateralized by stock in the FHLB, pledged mortgage-backed securities and unencumbered qualifying mortgage loans. As of March 31, 2011, December 31, 2010, 2009 and 2008, FHLB borrowings had weighted average interest rates of 3.3%, 3.3%, 3.0% and 3.5%, respectively. Of the total FHLB borrowings outstanding as of December 31, 2010, $108.0 million mature prior to December 31, 2011. We had $281.0 million, $72.8 million and $1.0 million of additional borrowing capacity with the FHLB as of March 31, 2011, December 31, 2010 and 2009, respectively. Our lending agreement with the FHLB permits the FHLB to refuse to make advances under that agreement during periods in which an “event of default” (as defined in that agreement) is continuing. An “event of default” occurs when the FHLB gives notice to the Bank of an intention to take any of a list of permissible actions following the occurrence of specified events or conditions affecting the Bank. Among those events is the issuance or entry of “any supervisory or consent order pertaining to” the Bank, which would include the Bank Order. To date the FHLB has not declared a default under this agreement, and has not notified the Bank that future advances would not be made available, although it has required the Bank to deliver physical possession of certain negotiable instruments and related documentation as collateral for borrowings under that agreement.

Long-term debt totaled $61.9 million at March 31, 2011, compared with $66.9 million at December 31, 2010 and 2009. During the first quarter of 2011, we repurchased and retired our long-term debt arrangement with USAA for $3.0 million, a $2.0 million discount from the $5.0 million carrying value of the debt. The $2.0 million discount was recognized as noninterest income. The remaining long-term debt is $61.9 million of trust preferred securities (TruPS) issued by HomeStreet Statutory Trust, a subsidiary of HomeStreet, Inc. TruPS allow investors to buy subordinated debt through a variable interest entity trust which issues preferred securities to third-party investors and invests the cash received to purchase subordinated debt from the issuer. That debt is the sole asset of the trust and the coupon on the debt mirrors the dividend payment on the preferred securities. These securities are nonvoting and are not convertible into capital stock, and the trust is not consolidated in our financial statements.

We elected to defer the payment of interest on our outstanding TruPS that was due on December 15, 2008. Subsequent to December 31, 2008, we elected to continue the deferral of interest payments commencing on March 15, 2009. We are entitled, at our option, subject to certain conditions, to defer payments of interest up to five years under the related TruPS agreements. Under these agreements, as a consequence of electing the deferral of interest payments, we are prohibited from declaring or paying dividends or distributions on, and from making liquidation payments with respect to, our common stock until we are current on all interest payments due on the TruPS. As of March 31, 2011, December 31, 2010 and 2009, total deferred interest was $9.1 million, $8.5 million and $4.8 million, respectively.

Capital

Shareholders’ equity on a per share basis decreased to $15.16 as of March 31, 2011, from $17.41 as of December 31, 2010 and $27.21 as of December 31, 2009.

Return on Equity and Assets

The negative return on equity and assets ratios for 2009 through the first quarter of 2011 reflect the net losses we incurred for those periods . The positive changes in these ratios from 2009 to 2010 and the first quarter of 2011 reflect the reduction in net loss for those periods, offset by decreases in total assets and shareholder’s equity.

 

     Three Months Ended
March 31, 2011
    Year ended December 31,  
(in thousands)      2010     2009     2008  

Return on assets (1)

     (1.25 )%      (1.19 )%      (3.47 )%      0.29

Return on equity (2)

     (51.26 )%      (38.00 )%      (68.90 )%      4.23

Dividend payout ratio (3)

                          36.00

Equity assets ratio (4)

     2.44     3.13     4.81     6.96

 

(1) Net income divided by average total assets.

 

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(2) Net income divided by average equity.

 

(3) Dividends declared per share divided by net income per share.

 

(4) Average equity divided by average total assets.

Business Lines

HomeStreet has four lines of business we report as operational segments: Community Banking, Single Family Lending, Income Property Lending and Residential Construction Lending. The results for these segments are based on a management accounting process that assigns income statement items to each responsible line of business. This process is dynamic and, unlike financial accounting, there is no comprehensive, authoritative guidance for management accounting equivalent to GAAP. The management accounting process measures the performance of the lines of business based on our management structure and is not necessarily comparable with similar information for other financial services companies. We define our lines of business by product type and customer segment. If the management structure or the allocation process changes, allocations, transfers and assignments may change.

We use various management accounting methodologies to assign certain balance sheet and income statements items to the responsible lines of business, including:

 

   

a funds transfer pricing system, which allocates interest income credits and funding charges between the lines of business and our treasury division, with that division assigning to each such line of business a funding credit for its liabilities, such as deposits, and a charge to fund its assets; and

 

   

an allocation of charges for services rendered to the lines of business by centralized functions, such as corporate overhead, which are generally based on each segment’s consumption patterns.

 

   

income taxes for the Company on a consolidated basis, which are allocated based on the effective tax rate applied to the segment’s pretax income or loss.

Financial highlights by line of business were as follows:

Community Banking

We provide diversified financial products and services to our consumer and business customers, including deposit products, investment products, insurance products, cash management services and consumer and business loans. In 1986 we established our bank to fund our lending activities and to offer a broader range of products and services to our customers. In 2000, we began offering commercial business loans as well as business deposit products and cash management services. We have expanded our bank branch network to 20 branches, primarily in the historically higher growth Puget Sound area. At March 31, 2011 and December 31, 2010, our core deposits totaled $1.73 billion and $1.74 billion and our business banking loan portfolio totaled $245.5 million and $259.3 million respectively.

 

     Three Months Ended
March 31, 2011
    Year ended December 31,  
(in thousands)    2011     2010     2010     2009     2008  

Net interest income

   $ 8,047      $ 7,135      $ 32,316      $ 24,557      $ 22,134   

Provision for loan losses

            (2,062     (3,434     (4,685     (4,023

Noninterest income

     1,134        1,063        4,631        4,147        3,681   

Noninterest expense

     (6,219     (5,722     (22,479     (23,487     (18,135

Inter-segment expense

     (2,189     (1,868     (7,820     (7,651     (5,978
                                        

Income/(loss) before income taxes

     773        (1,454     3,214        (7,119     (2,321

Income tax expense (benefit)

     (4            (67     (2,126     (639
                                        

Net income/(loss)

   $ 777      $ (1,454   $ 3,281      $ (4,993   $ (1,682
                                        

 

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Community banking net income was $777,000 in the first quarter of 2011, an increase of $2.2 million from a loss of $1.5 million in the first quarter of 2010. Net income improved primarily due to a decrease in the provision for loan losses of $2.1 million reflecting an improvement in the segment’s asset quality as well as an increase in net interest income, reflecting an increase in consumer deposit balances for which the segment receives a funds transfer pricing credit as well as lower time deposit costs.

Community banking net income was $3.3 million in 2010, an increase of $8.3 million from a loss of $5.0 million in 2009. Net income improved primarily due to an increase in net interest income, reflecting an increase in consumer deposit balances for which the segment receives a funds transfer pricing credit as well as lower deposit costs.

Single Family Lending

We originate and sell into the secondary market residential mortgage loans both directly and through our relationship with Windermere Mortgage Services. This segment also originates and services loans for our portfolio on a selective basis including home equity loans and lines of credit. We originate mortgages using secondary market standards, and the majority are sold to or securitized by Fannie Mae, Freddie Mac or Ginnie Mae, while we retain the right to service these loans. A small percentage of the loans are brokered or sold on a servicing-released basis to correspondent lenders.

 

     Three Months Ended
March 31, 2011
    Year ended December 31,  
(in thousands)    2011     2010     2010     2009     2008  

Net interest income

   $ 4,885      $ 5,045      $ 22,004      $ 22,365      $ 22,250   

Provision for loan losses

            (2,979     (11,793     (8,887     (2,134

Noninterest income

     10,219        13,927        83,436        50,739        27,034   

Noninterest expense

     (8,787     (7,763     (40,941     (19,463     (20,737

Inter-segment expense

     (3,459     (2,838     (11,877     (11,620     (9,080
                                        

Income before income taxes

     2,858        5,392        40,829        33,134        17,333   

Income tax expense (benefit)

     (17            (848     9,895        4,772   
                                        

Net income

   $ 2,875      $ 5,392      $ 41,677      $ 23,239      $ 12,561   
                                        

Single family lending net income was $2.9 million in the first quarter of 2011, a decrease of $2.5 million from $5.4 million in the first quarter of 2010. Net income decreased primarily due to decreases in net gains on mortgage loan origination and sales activities and mortgage servicing revenue as well as an increase in noninterest expense. Partially offsetting this decrease in net income was a decrease in the provision for loan losses, reflecting an improvement in the segment’s asset quality.

Single family lending net income was $41.7 million in 2010, an increase of $18.4 million from $23.2 million in 2009. Net income increased primarily due to an increase in mortgage servicing revenue. Partially offsetting this increase was an increase in noninterest expense due to increases in other real estate owned expenses as well as an increase in foreclosure and collection expenses.

 

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Income Property Lending

We originate commercial real estate loans with a focus on multifamily lending through our Fannie Mae DUS business. These loans are sold to or securitized by Fannie Mae, and we generally continue to service them after the sale. At March 31, 2011 and December 31, 2010, we serviced $784.4 million and $776.7 million of loans we had originated through the Fannie Mae DUS program. We also originate commercial construction and land loans, bridge loans and permanent loans for our own portfolio.

 

     Three Months Ended
March 31, 2011
    Year ended December 31,  
(in thousands)        2011             2010         2010     2009     2008  

Net interest income

   $ 1,957      $ 973      $ 6,114      $ 2,776      $ 12,463   

Provision for loan losses

            (1,865     (810     (34,275     (2,825

Noninterest income

     852        570        2,952        3,339        5,774   

Noninterest expense

     (999     (1,379     (4,894     (4,338     (4,515

Inter-segment expense

     (747     (594     (2,487     (2,434     (1,902
                                        

Income/(loss) before income taxes

     1,063        (2,295     875        (34,932     8,995   

Income tax expense (benefit)

     (6            (18     (10,432     2,476   
                                        

Net income/(loss)

   $ 1,069      $ (2,295   $ 893      $ (24,500   $ 6,519   
                                        

Income Property net income was $1.1 million in the first quarter of 2011, an increase of $3.4 million from a loss of $2.3 million in the first quarter of 2010. Net income improved primarily due to a decrease the provision for loan losses of $1.9 million as well an increase in net interest income, reflecting a decrease in nonaccrual loan balances.

Income Property net income was $0.9 million in 2010, an increase of $25.4 million from a loss of $24.5 million in 2009. Net income improved primarily due to a decrease the provision for loan losses of $33.5 million.

Residential Construction Lending

We originate residential construction and land loans primarily for our own portfolio. Beginning in 2007, we substantially curtailed new originations in order to reduce our concentration in this category.

 

     Three Months Ended
March 31, 2011
    Year ended December 31,  
       2010     2009     2008  
(in thousands)        2011             2010            

Net interest income

   $ 165      $ (1,263   $ (2,386   $ (6,279   $ 19,169   

Provision for loan losses

            (94     (21,263     (105,668     (25,429

Noninterest income

     3        2        8        12        (198

Noninterest expense

     (10,142     183        (32,371     (18,396     (7,562

Inter-segment expense

     (634     (516     (2,163     (2,116     (1,654
                                        

Loss before income taxes

     (10,608     (1,688     (58,175     (132,447     (15,674

Income tax expense (benefit)

     61               1,209        (39,554     (4,315
                                        

Net loss

   $ (10,669   $ (1,688   $ (59,384   $ (92,893   $ (11,359
                                        

Residential construction lending reported a loss of $10.7 million in the first quarter of 2011, a further decline of $9.0 million from a loss of $1.7 million in the first quarter of 2010. The net loss increased primarily due to an increase in noninterest expense, reflecting an increase in OREO expenses as the first quarter of 2010 included OREO property value recoveries compared with downward valuation adjustments of $8.7 million during the first quarter of 2011 as well as an increase in maintenance and operating expenses, which include payment of delinquent property taxes. This decline was partially offset by an increase in net interest income, reflecting decreases in nonaccrual loan balances.

 

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Residential construction lending reported a loss of $59.4 million in 2010, an improvement from a loss of $92.9 million in 2009. Net income improved primarily due to a decrease in the provision for loan losses of $84.4 million.

Off-Balance Sheet Arrangements

In the normal course, we are a party to financial instruments with off-balance-sheet risk. These financial instruments (which consist of commitments to originate loans and commitments to purchase loans) include elements of credit risk in excess of the amount recognized in the accompanying consolidated financial statements as discussed below. The contractual amounts of those instruments reflect the extent of our involvement in those particular classes of financial instruments.

 

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Commitments, Guarantees and Contingencies

We may incur liabilities under certain contractual agreements contingent upon the occurrence of certain events. Our known contingent liabilities include:

 

   

Credit agreements. We have made commitments to lend to customers in accordance with predetermined contractual provisions, some of which may not be terminated without payment of a fee. The total amount of unused commitments do not necessarily represent future credit exposure or cash requirements, in that commitments often expire without being drawn upon. The following table presents unfunded commitments to extend credit for the periods indicated:

 

     At
March 31,
2011
     At December 31,  
        2010      2009      2008  

Commitments to originate loans:

           

Variable-rate

   $ 1,839       $ 4,953       $ 13,300       $ 10,283   

Fixed-rate

     166,897         132,599         149,633         321,485   
                                   

Total

   $ 168,736       $ 137,552       $ 162,933       $ 331,768   
                                   

Commitments to originate loans increased as of March 31, 2011, as compared with December 31, 2010, as we committed to originate a single income property loan totaling $35.0 million under our DUS program during the first quarter of 2011. The decrease of $25.4 million between December 31, 2010 and 2009 and $168.8 million from December 31, 2008 to December 31, 2009 reflects the inability of borrowers to access or qualify for credit facilities.

 

   

Options . The Bank writes options such as interest rate lock commitments on mortgage loans that are exercisable at the option of the borrower. Interest rate lock commitment options are exercised when a borrower “locks” an offered interest rate for a loan application that requires closing of that loan within a specified time frame, typically within 90 days. We are exposed to market risk on interest rate lock commitments if interest rates rise between the effective date of the interest rate lock and the sale date of the loan. The fair value of interest rate lock commitments existing at March 31, 2011 and December 31, 2010, was a gain of $1.8 million and a gain of $2.3 million, respectively. We mitigate the risk of future changes in the fair value of interest rate lock commitments through the use of options and forward sale commitments.

 

   

Leases . The Company is obligated under noncancelable leases for office space. The office leases also contain renewal and space options. Rental expense under noncancelable operating leases totaled $6.5 million, $5.4 million and $5.4 million for the years ended December 31, 2010, 2009 and 2008, respectively.

 

   

Loss sharing. We originate, sell and service multifamily loans through HomeStreet Capital, our Fannie Mae DUS multifamily (“DUS”) origination business. Loans are sold to Fannie Mae with limited recourse. HomeStreet Capital services the loans for Fannie Mae and shares in the risk of loss with Fannie Mae under the terms of the DUS contracts. Under the DUS program, the DUS lender is contractually responsible for the first 5% of losses and then shares in the remainder of losses with Fannie Mae with a maximum lender loss of 20% of the original principal balance of each DUS loan. The total principal balance of loans outstanding under the DUS program as of March 31, 2011 and December 31, 2010 was $784.4 million and $776.7 million, respectively, and our reserve related to our 20% loss share risk was $4.1 million as of March 31, 2011 and December 31, 2010.

 

   

Origination defect claims . In our single family lending business, we sell loans we originate without recourse, however, if such loans had defects in the origination process, such as documentation errors, underwriting errors and judgments, early payment default and fraud, we may be required under the terms of our loan sale agreements with investors to either repurchase the loan on default or indemnify the investor for losses

 

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sustained if the investor incurs losses in the collection or foreclosure process. We call these claims origination defect claims. As of March 31, 2011 and December 31, 2010, the total principal balance of loans sold without recourse under these terms and conditions totaled $6.58 billion and $6.40 billion. We have established a reserve of $0.7 million and $0.5 million as of March 31, 2011 and December 31, 2010, respectively, to provide for estimated future losses on origination defect claims by investors. Actual origination defect claim losses of $20,000, $0.4 million, $0.1 million and $0 were incurred for the first quarter of 2011 and the years ended December 31, 2010, 2009 and 2008, respectively.

Derivative Counterparty Credit Risk

Derivative financial instruments expose us to credit risk in the event of nonperformance by counterparties to such agreements. This risk consists primarily of the termination value of agreements where we are in a favorable position. Credit risk related to derivative financial instruments is considered within the fair value measurement of the instrument. We manage the credit risk associated with our various derivative agreements through counterparty credit review, counterparty exposure limits and monitoring procedures. From time to time, we may provide or obtain collateral from certain counterparties for amounts in excess of exposure limits due to the counterparty credit policies of the parties. We have entered into agreements with derivative counterparties which include netting arrangements whereby the counterparties are entitled to settle their positions on a net basis. As a result of our weakened financial condition and regulatory status, we have been required to provide certain derivative counterparties collateral against derivative financial instruments. As of December 31, 2010 and 2009, counterparties held $58.6 million and $9.0 million of our investment securities as collateral which was in excess of the credit exposure to those counterparties.

Contractual Obligations

The following table summarizes our significant fixed and determinable contractual obligations, within the categories described below, by payment date or contractual maturity as of December 31, 2010. The payment amounts for financial instruments shown below represent principal amounts contractually due to the recipient and do not include any unamortized premiums or discounts, or other similar carrying value adjustments.

 

     Within
one year
     After one but
within three years
     After three but
within five years
     More than
five years
     Total  
(in thousands)       

Deposits(1)

   $ 1,353,340       $ 745,679       $ 30,723       $       $ 2,129,742   

FHLB advances

     107,950         35,834         5,700         16,385         165,869   

Senior Notes(2)

     5,000                                 5,000   

Trust preferred securities

                             61,857         61,857   

Operating leases

     5,096         9,495         7,998         7,820         30,409   

Purchase obligations(3)

     3,273         3,206         843         2,852         10,174   
                                            

Total

   $ 1,474,659       $ 794,214       $ 45,264       $ 88,914       $ 2,403,051   
                                            

 

(1) Deposits with indeterminate maturities, such as demand, savings and money market accounts, are reflected as obligations due within one year.

 

(2) Represents $5.0 million in senior credit facility repurchased by the Company in March 2011.

 

(3) Represents agreements to purchase goods or services.

Enterprise Risk Management

All financial institutions must manage and control a variety of business risks that can significantly affect their financial performance. Among these risks are credit risk, market risk, which includes interest rate and price, liquidity risk and operational risk. We are also subject to risks associated with compliance/regulatory, strategic and reputational matters.

 

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Historically, we have managed risk in a decentralized manner, with senior managers and management-level and board-level committees overseeing the management of various risks. We use internal audits, quality control and loan review functions to assess the strength of and adherence to risk management policies, internal controls and regulatory requirements. Similarly, external reviews, examinations and audits are conducted by independent accountants, regulators and others. In addition, our compliance, appraisal, corporate security and information security personnel provide additional risk management services in their areas of expertise.

Management recommends the appropriate level of risk in our strategic and business plans and in our board-approved credit and operating policies. The Bank’s board of directors and its committees oversee the monitoring and controlling of significant risk exposures, including the policies governing risk management. Under the terms of the Bank Order, the actions taken by board committees are subsequently ratified by the full board. These committees include:

 

   

Audit Committee. The audit committee oversees our financial reporting process and compliance activities on behalf of our board of directors. Specifically, the audit committee reviews our financial reporting and the controls over financial reporting; reviews the adequacy of the allowance for loan losses; appoints, oversees and terminates the independent auditor and the Chief Audit Officer; oversees the internal audit activity; and oversees our management of legal, regulatory and compliance risks. The Audit Committee approves the following policies: Allowance for Loan Loss Policy, Code of Conduct, Audit Services Pre-Approval Policy, Internal Audit Policy, Compliance Policy, Corporate Business Resumption Plan Policy, Bank Secrecy Act Policy, Branch Opening, Closing and Relocating Policy, Corporate Information Security Policy, Security Program Policy, Pandemic Policy and Consecutive Time Off Policy.

 

   

Finance Committee. The finance committee oversees the consolidated companies’ activities related to balance sheet management, interest rate risk management, counterparty risk management, including approval of broker/dealer relationships and open trade limits and liquidity risk management. The finance committee approves the Asset Liability Management Policy, which includes policies related to liquidity and liquidity contingency planning.

 

   

Credit Committee. The credit committee reviews new lending activity, loan portfolio credit performance, concentrations of risk, charge-off activity, adequacy of loan loss reserves, measurement of losses on impaired loans, certain large loans, loan workouts and have approval authority over new loans or increases in large loans that are recommended by management within the restrictions of the Bank Order and Bank policies. The credit committee also approves credit policies, products and programs subject to ratification by the full board of directors.

 

   

Human Resources and Corporate Governance Committee . The human resources and corporate governance committee, or HRCG, of HomeStreet, Inc., on behalf of the board of directors, reviews all matters concerning our human resources, compensation, benefits, and corporate governance. HRCG’s policy objectives are to ensure that HomeStreet and its operating subsidiaries meet their corporate objectives of attracting and retaining a well-qualified workforce, to oversee our human resource strategies and policies and to ensure processes are in place to assure compliance with employment laws and regulations. HRCG is authorized by the board of directors to take any action on the board’s behalf as described in its charter or as otherwise delegated by the board, except as otherwise specifically reserved by law, regulation, other committees’ charters or the Bank’s charter documents for action solely by the full board or another board committee.

As part of the strategic planning process, in the fall of 2010 we conducted a structured enterprise-wide risk assessment to further our understanding of our risk profile, provide a benchmark against which to evaluate proposed future initiatives and strategies and assess the potential impact of initiatives and strategies on overall company risk. The enterprise-wide risk assessment was conducted under the leadership of the Risk and

 

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Regulatory Oversight Director who reports to the General Counsel and Chief Administrative Officer. We plan to create an enterprise risk management framework to support future enterprise risk assessments and ongoing monitoring and reporting structures.

Using the risk assessment model espoused by the Office of the Comptroller of the Currency, or OCC, in its examination handbook, we assessed risk in the following areas: credit, interest rate, price, liquidity, operational, compliance and regulatory, strategic and reputation. To assess the risks, we reviewed and documented our assessment of the quantity of risk and the quality of risk management to determine an aggregate level of risk (high, moderate or low) as well as the direction of each risk (increasing, decreasing or stable). Our risk profile based on the risk assessment is summarized in the following table.

 

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RISK PROFILE

 

Risk Category

  

Quantity of Risk

(Low, Mod, High)

  

Quality of Risk

Management

(Weak, Satisfactory,
Strong)

  

Aggregate Level of
Risk

(Low, Mod, High)

  

Direction of Risk

(Increasing, Stable,
Decreasing)

Credit

   High    Strong    High    Stable

Interest Rate

   Moderate    Satisfactory    Moderate    Stable

Price

   High    Strong    High    Stable

Liquidity

   Moderate    Strong    Moderate    Stable

Operational

   High    Satisfactory    Moderate    Stable

Compliance/Regulatory

   High    Strong    Moderate    Stable/increasing

Strategic

   High    Satisfactory    High    Increasing

Reputation

   Moderate    Satisfactory    Moderate    Stable/decreasing

The following is a discussion of our risk management practices for these risk categories. The risks related to credit, liquidity, interest rate and price warrant in-depth discussion due to the significance of these risks and the impact they have had on our business in the recent past.

Credit Risk Management

Credit risk is defined as the risk to current or anticipated earnings or capital arising from an obligor’s failure to meet the terms of any contract with the bank, including those in the lending, securities and derivative portfolios, or otherwise perform as agreed. Factors relating to the degree of credit risk include the size of the asset or transaction, the contractual terms of the related documents, the credit characteristics of the borrower, the channel through which assets are acquired, the features of loan products or derivatives, the existence and strength of guarantor support, the availability, quality and adequacy of any underlying collateral and the economic environment after the loan is originated or the asset is acquired. Our overall portfolio credit risk is also impacted by asset concentrations within the portfolio.

Our credit risk management process is governed centrally. Our overall credit process includes comprehensive credit policies, judgmental or statistical credit underwriting, frequent and detailed risk measurement and modeling and continual loan review, quality control and audit processes. In addition, we have an independent loan review function that reports to the credit committee of our board of directors and regulatory examiners and internal and external auditors review and perform detailed tests of our credit underwriting, loan administration and allowance processes.

The Chief Credit Officer’s primary responsibilities include directing the activities of the credit risk management function as it relates to the loan portfolio, overseeing loan portfolio performance and ensuring compliance with established credit policies, standards and limits, determining the reasonableness of the our allowance for loan losses, reviewing and approving large credit exposures, and delegating credit approval authorities. Senior credit administrators who oversee the lines of business have both transaction approval authority and governance authority for the approval of procedures within established policies, standards and limits. The Chief Credit Officer reports directly to the President and Chief Executive Officer.

The Bank loan committee, established by the credit committee of the Bank’s board of directors, provides direction and oversight within our risk management framework. The committee seeks to ensure effective portfolio risk analysis and policy review and to support sound implementation of defined business and risk strategies. The members of the committee are the President and Chief Executive Officer, Chief Credit Officer and Chief Financial Officer.

The loan review officer’s primary responsibility includes the review of our loan portfolios to provide an independent assessment of credit quality, portfolio oversight and credit management, including accuracy of loan grading. Loan review also conducts targeted credit-related reviews and credit process reviews at the request of

 

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the board of directors and management and reviews a sample of newly originated loans for compliance with closing conditions and accuracy of loan grades. Loan review reports directly to the Bank board’s credit committee and administratively to the Risk and Regulatory Oversight Director.

The treasury function’s primary responsibilities include directing the activities of the credit risk management function as it relates to securities and derivative portfolios, overseeing derivative portfolio performance and ensuring compliance with established credit policies, standards and limits. The Treasurer reports directly to the Chief Financial Officer, who reports to the President and Chief Executive Officer.

Appraisal Policy

An integral part of our credit risk management process is the valuation of the collateral supporting the loan portfolio, which is primarily comprised of loans secured by real estate. We maintain a board-approved appraisal policy for real estate appraisals that conforms to the Uniform Standards of Professional Appraisal Practice (“USPAP”) and the FDIC regulatory requirements. Our Chief Appraiser, who is independent of the business unit and credit administration departments, is responsible for maintaining the appraisal policy and recommending changes to the policy subject to Bank loan committee and board credit committee approval.

Real Estate

Our appraisal policy requires that market value appraisals be prepared at loan origination, extension and periodically thereafter, and for impaired, collateral dependent loans and OREO we adjust our carrying value of those assets to reflect changes in appraised value. Our appraisals are prepared by independent third-party appraisers and our staff appraisers. We use state certified and licensed appraisers with appropriate expertise as it relates to the subject property type and location. All appraisals contain “as is” values based upon the definition of market value as set forth in the FDIC appraisal regulations. For commercial properties we may also obtain “upon completion” and “upon stabilization” values as appropriate to the loan type and status. The appraisal standard for the non-tract development properties (four units or less) is retail value of individual units. For tract development properties with five or more units, the appraisal standard is the bulk value of the tract as a whole.

Appraisals are generally considered current for a period of up to six months subject to final determination by the Chief Appraiser. The decision whether an appraisal is current depends on market conditions and other factors such as changes to the property or its intended use.

We review all appraisals prior to approval of a loan transaction. Commercial real estate appraisals are reviewed by our in-house appraisal staff. Single family appraisal reviews are generally conducted by our single family loan underwriters. Complex single family appraisals or appraisals with unusual characteristics are referred to our appraisal department for review.

For loan monitoring and problem loan management purposes our appraisal requirements are as follows:

 

   

For loans graded substandard or doubtful and for all OREO properties, we require an independent third party appraisal every 12 months until disposition or loan upgrade.

At the intervening six month point, we prepare a collateral valuation. A collateral valuation is an in-house restricted use appraisal report prepared by our staff appraisers.

 

   

For loans graded special mention an annual appraisal or collateral valuation is performed depending upon property complexity, market area, market conditions, intended use and other considerations.

 

   

We generally do not perform valuation monitoring for pass graded credits due to minimal credit risk.

 

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Other

Our appraisal requirements for loans not secured by real estate-secured loans such as business loans secured by equipment include valuation methods ranging from evidence of sales price or verification with a recognized guide for new equipment to a valuation opinion by a professional appraiser for multiple pieces of used equipment.

Asset Quality and Nonperforming Assets

The primary markets in which we do business have been especially impacted by the deterioration in the U.S. housing market that began in 2007. In response to the current challenges in our operating environment, we have and will continue to revise our credit risk policies and monitoring, including revising the limits on credit exposure by geographical region, product type and borrower. We generally stopped our new loan origination for investment in 2008 to enable us to focus on problem loan resolution and improving overall asset quality. During 2009, 2010 and through the first quarter of 2011, our lending practices and underwriting standards tightened as we shifted to primarily originating single family loans that conform to government-sponsored enterprise parameters and Fannie Mae Delegated Underwriting and Servicing multifamily loans, substantially all of which was designated for sale.

Faced with unfavorable market conditions, more borrowers have defaulted on their loans, thereby contributing to an increase in delinquency rates which peaked in our loan portfolio during 2009. Furthermore, the rate at which delinquent loans moved to foreclosure increased during 2010 as we resolved problem loans. Nonaccrual loans totaled $113.2 million, $374.2 million and $75.4 million as of December 31, 2010, 2009 and 2008, respectively, and OREO balances totaled $170.5 million, $107.8 million and $20.9 million at the same dates.

Primarily as a result of these economic factors, our loan portfolio experienced accelerated credit deterioration during the latter part of 2008 and 2009. To provide for the growing loss potential, we substantially increased our provisions for loan losses during this period. As of December 31, 2009, we increased our allowance for loan losses, both in absolute terms and as a percentage of loans held in portfolio, to $109.5 million or 5.28%, up from $58.6 million or 2.36 % as of the end of 2008. During 2009 and to a lesser extent in 2010, we realized a significant amount of the anticipated credit losses as troubled loans were modified, paid down, charged-off or migrated to OREO status. Total charge offs were $83.2 million and $101.7 million in 2010 and 2009. During 2010, as problem loans were resolved and credit losses are realized, the balance of and the credit risk inherent within the loans held for investment portfolio declined. Consequently, the level of our allowance for loan losses also declined. Our loan portfolio, excluding the allowance for loan losses, decreased $471.8 million or 23.0% during 2010 and decreased $410.0 million or 17.0% during 2009. As of December 31, 2010, the allowance for loan losses decreased to $64.6 million or 4.0% of the loans held for investment portfolio.

These credit trends are reflected in the decrease in our provision for loan losses during 2010, compared with an increase during 2009. Provision expense was $37.3 million for the year ended December 31, 2010, a decrease of $116.2 million, compared to $153.5 million for 2009. Provision amounts for 2009 increased $119.1 million from 2008 levels.

During the first quarter of 2011, we experienced further improvement in our overall asset quality with lower net charge-offs and lower classified and nonperforming assets. For the first quarter of 2011, net charge-offs totaled $2.1 million, comprised of charge-offs of $6.6 million offset by loan recoveries of $4.5 million, compared with net charge-offs of $14.6 million in the fourth quarter of 2010, comprised of charge-offs of $15.2 million offset by recoveries of $634,000. In the first quarter of 2011 loan recoveries were predominately related to one borrower.

Classified assets have decreased to $298.7 million or 12.8% of total assets, as of March 31, 2011, compared with $363.9 million, or 14.6% of total assets, as of December 31, 2010. Nonperforming assets also improved, decreasing to $223.0 million, or 9.5% of total assets, as of March 31, 2011, compared with $283.7 million, or 11.4% of total assets, as of December 31, 2010. As of March 31, 2011, nonperforming loans increased $10.9 million, or 9.6%, to $124.1

 

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million compared with $113.2 million as of December 31, 2010 and OREO balances decreased $71.6 million, or 42.0%, to $98.9 million compared with $170.5 million for the same periods. OREO sales during the first quarter of 2011 included the $49.1 million sale of Cascadia.

Our loans held for investment portfolio, net of allowance for loan losses, decreased $38.0 million, or 2.5%, to $1.50 billion as of March 31, 2011, compared with $1.54 billion as of December 31, 2010. As of March 31, 2011 the allowance for loan losses was $62.2 million, or 4.0% of the loans held for investment balance, compared with $64.2 million, or 4.0% of the loans held for investment balance at December 31, 2010.

Impaired loans totaling $78.5 million, $71.8 million, $243.3 million and $94.8 million had valuation allowances of $22.1 million, $18.1 million, $28.5 million and $12.8 million at March 31, 2011, December 31, 2010, 2009 and 2008, respectively. Interest payments on impaired loans, applied against loan principal or recognized as interest income, of $1.1 million, $5.3 million, $13.2 million and $9.1 million were recorded for cash payments received during the quarter ended March 31, 2011 and the years ended December 31, 2010, 2009 and 2008, respectively.

We maintain an allowance for loan loss policy that is approved by the board of directors of the Bank annually. The policy includes our methodology for determining the adequacy of the allowance for loan losses.

The following table presents the allowance for credit losses, including reserves for unfunded commitments, by loan class for the periods indicated:

 

                      December 31,  
    At March 31, 2011     2010     2009     2008  
    Amount     Percent of
Allowance
to Total
Allowance
    Loan
category
(1) as a
% of
Total
loans
    Amount     Percent of
Allowance
to Total
Allowance
    Loan
category
(1) as a
% of
Total
loans
    Amount     Percent of
Allowance
to Total
Allowance
    Loan
category
(1) as a
% of
Total
loans
    Amount     Percent of
Allowance
to Total
Allowance
    Loan
category
(1) as a
% of
Total
loans
 
(in thousands)                                                                        

Single family

  $ 11,445        18.3     33.4   $ 11,977        18.6     32.8   $ 17,308        15.7     28.5   $ 7,768        13.3     23.0

Commercial real estate

    6,051        9.7     26.4     10,060        15.6     26.6     10,761        9.7     21.6     9,785        16.7     19.0

Multifamily Residential

    842        1.3     6.5     1,795        2.8     6.5     1,947        1.8     4.1     1,389        2.4     4.0

Construction/Land Development

    36,751        58.8     17.4     33,478        51.9     17.8     67,764        61.4     30.5     33,511        57.2     38.0

Commercial Business

    2,780        4.5     5.1     2,761        4.3     5.2     5,794        5.2     5.2     4,806        8.2     6.0

Home Equity

    4,597        7.4     11.2     4,495        7.0     11.3     6,848        6.2     10.2     1,329        2.3     10.0
                                                                                               

Total allowance for credit losses

  $ 62,466        100.0     100.0   $ 64,566        100.0     100.0   $ 110,422        100.0     100.0   $ 58,588        100.0     100.0
                                                                                               

 

(1) Excludes loans held for sale

 

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     At December 31,  
     2007     2006  
     Amount      Percent of
Allowance
to Total
Allowance
    Loan category
(1) as a % of
Total loans
    Amount      Percent of
Allowance
to Total
Allowance
    Loan category
(1) as a % of
Total loans
 
(in thousands)                                       

Single family

   $ 4,466         11.5     20.0   $ 2,472         8.9     19.0

Commercial real estate

     5,156         13.3     14.0     5,482         19.7     15.0

Multifamily Residential

     1,059         2.7     6.0     876         3.1     4.0

Construction/Land Development

     21,840         56.3     45.0     15,326         55.1     47.0

Commercial Business

     4,741         12.2     5.0     2,530         9.1     4.0

Home Equity

     1,542         4.0     10.0     1,148         4.1     11.0
                                                  

Total allowance for credit losses

   $ 38,804         100.0     100.0   $ 27,834         100.0     100.0
                                                  

 

(1) Excludes loans held for sale

The following table presents activity in our allowance for loan losses for the periods indicated:

 

    Three Months  Ended
March 31, 2011
    For the Year Ended December 31,  
      2010     2009     2008     2007     2006  
(in thousands)                                    

Allowance at the beginning of period

  $ 64,566      $ 110,422      $ 58,587      $ 38,804      $ 27,834      $ 21,480   

Provision for loan losses

           37,300        153,515        34,411        10,955        6,471   

Recoveries:

           

Single family residential

      607           

Construction/land development

    4,294        2,010        31        44                 

Commercial business

    170        243        257        91        243        49   

Home equity

    8        37        42        3        2          
                                               

Total recoveries

    4,472        2,897        330        138        245        49   

Charge-offs:

           

Single family residential

    1,713        9,103        8,244        397                 

Commercial real estate

    69        1,187        4,160         

Construction/land development:

           

Residential

    77        64,026        71,241        10,454        220     

Commercial

    3,391        6,998        11,114         
                                               

Construction/land development charge-offs

    3,468        71,024        82,355        10,454        220          

Commercial business

    417        1,652        3,943        3,615        8        159   

Home equity

    905        3,087        3,308        300        2        7   
                                               

Total charge-offs

    6,572        86,053        102,010        14,766        230        166   

(Charge-offs), net of recoveries

    (2,100     (83,156     (101,680     (14,628     15        (117
                                               

Balance at end of period

  $ 62,466      $ 64,566      $ 110,422      $ 58,587      $ 38,804      $ 27,834   
                                               

Allowance for loan losses as a percentage of total loans

    3.98     4.02     5.32     2.36     1.57     1.33

Net charge-offs to average loans receivable, net

    0.41     4.46     4.41     0.58            0.01

Nonperforming loans as a percentage of total loans

    7.94     7.06     18.03     3.03     1.47     0.16

 

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We manage asset quality and control credit risk by diversifying our loan portfolio and by applying policies designed to promote sound underwriting and loan monitoring practices. The Bank’s credit group is charged with monitoring asset quality, establishing credit policies and procedures, and enforcing the consistent application of these policies and procedures across the organization.

We regularly review loans in our portfolio to assess credit quality indicators and determine appropriate loan classification and grading in accordance with applicable regulations. We assign these grades as follows:

 

   

Pass. We have five pass classification grades which represent a level of credit quality that ranges from no well-defined deficiency or weakness to some noted weakness, however the risk of default on any loan classified as pass is expected to be remote.

 

   

Watch. An asset graded as watch has a remote risk of default, but is exhibiting deficiency or weakness that requires monitoring.

 

   

Special Mention. A special mention loan does not currently expose us to a sufficient degree of risk to warrant an adverse classification, but does possess a correctable deficiency or potential weakness deserving management’s close attention.

 

   

Substandard. A substandard asset is inadequately protected by the current secured worth and paying capacity of the borrower or of collateral pledged on the loan, if any. Assets so classified must have a well-defined weakness or weaknesses that jeopardize the liquidation of the debt, such as a high probability of payment default and are characterized by the distinct possibility that the institution will sustain some loss if deficiencies are not corrected.

 

   

Doubtful. An asset classified as doubtful has all of the weaknesses inherent in those classified substandard, with the added characteristic that the weaknesses make collection or liquidation in full, on the basis of currently existing facts, conditions and values, highly questionable or improbable. Doubtful is considered to be a temporary classification until resolution of pending weaknesses enables us to more fully evaluate the potential for loss.

 

   

Loss. That portion of an asset classified as loss is considered uncollectible and of so little value that its characterization as an asset is not warranted. A loss classification does not mean that an asset has absolutely no recovery or salvage value, but rather it is not reasonable to defer charging off all or that portion of the asset deemed uncollectible even though partial recovery may occur in the future.

As of March 31, 2011 and December 31, 2010, $322.3 million and $323.0 million of loans were graded watch, $162.6 million and $156.5 million of loans were graded special mention and $199.9 million and $193.5 million of loans were graded substandard, respectively; no loans were graded doubtful. In 2010, $86.1 million of loans were graded loss, and charged off. “Classified assets” include loans graded as substandard, doubtful and loss as well as OREO. The total amount of classified assets was $298.7 million, $363.9 million and $570.0 million as of March 31, 2011, December 31, 2010 and 2009, respectively.

 

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The following table sets forth our loans held for investment portfolio and loans graded special mention, substandard and designated as nonaccrual as of March 31, 2011. There were no loans graded doubtful at March 31, 2011.

 

(in thousands)                                               
                 Special Mention      Substandard         

Loan Category

   Committed
Balance
(1)
    Recorded
Investment

(2)
    Committed
Balance
(1)
     Recorded
Investment

(2)
     Committed
Balance
(1)(3)
     Recorded
Investment
(2)(3)
     Nonaccrual
(2)
 

Single family

   $ 522,904      $ 522,904      $ 18,034       $ 18,034       $ 14,732       $ 14,732       $ 14,732   

Commercial real estate

     414,343        414,343        67,197         67,197         48,877         48,877         19,815   

Multifamily residential

     102,450        102,450        -         -         8,093         8,093         5,302   

Construction/land development

     290,898        271,767        77,893         69,344         122,064         116,144         77,811   

Commercial business

     99,502        80,057        6,333         6,333         8,930         8,930         3,355   

Home equity

     190,016        175,896        1,644         1,644         3,103         3,103         3,103   
                                                            

Total

     1,620,113        1,567,326      $ 171,101       $ 162,552       $ 205,799       $ 199,879       $ 124,118   
                                                

Undisbursed construction loan funds

     (19,222     n/a                 

Undisbursed home equity and business banking line funds

     (33,565     n/a                 

Net deferred loan fees and discounts

     (4,620     (4,620              

Allowance for loan and lease losses (4)

     (62,156     (62,156              
                              

Loans held for investment, net

   $ 1,500,550      $ 1,500,550                 
                              

 

(1) Includes undisbursed construction loan funds and home equity and business banking lines.

 

(2) Excludes undisbursed construction loan funds. Reflects the disbursed loan amount net of any direct write-down of the loan.

 

(3) Balances have been reduced by amounts of charge-offs.

 

(4) Allowance for loan losses includes specific valuation allowances of $23.8 million.

 

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The following table sets forth our loans held for investment portfolio and loans graded special mention, substandard and designated as nonaccrual as of December 31, 2010. There were no loans graded Doubtful at December 31, 2010.

 

(in thousands)                                               
                 Special Mention      Substandard         

Loan Category

   Committed
Balance
(1)
    Recorded
Investment

(2)
    Committed
Balance
(1)
     Recorded
Investment
(2)
     Committed
Balance
(1)(3)
     Recorded
Investment
(2)(3)
     Nonaccrual
(2)
 

Single family

   $ 526,462      $ 526,462      $ 5,216       $ 5,216       $ 13,938       $ 13,938       $ 13,938   

Commercial real estate

     426,879        426,879        69,862         69,862         47,285         47,285         20,259   

Multifamily residential

     104,497        104,497                        8,167         8,167         8,167   

Construction/land development

     312,229        285,131        90,502         75,863         118,172         111,532         65,952   

Commercial business

     105,203        82,959        4,926         4,926         10,035         10,035         2,359   

Home equity

     194,734        181,537        596         596         2,535         2,535         2,535   
                                                            

Total

     1,670,004        1,607,465      $ 171,102       $ 156,463       $ 200,132       $ 193,492       $ 113,210   
                                                

Undisbursed construction loan funds

     (27,098     n/a                 

Undisbursed home equity and business banking line funds

     (35,441     n/a                 

Net deferred loan fees and discounts

     (4,767     (4,767              

Allowance for loan and lease losses (4)

     (64,177     (64,177              
                              

Loans held for investment, net

   $ 1,538,521      $ 1,538,521                 
                              

 

(1) Includes undisbursed construction loan funds and home equity and business banking lines.

 

(2) Excludes undisbursed construction loan funds. Reflects the disbursed loan amount net of any direct write-down of the loan.

 

(3) Balances have been reduced by amounts of charge-offs.

 

(4) Allowance for loan losses includes specific valuation allowances of $18.1 million.

Loans are placed on nonaccrual, and designated as impaired, when collection of principal or interest is doubtful, generally when a loan becomes 90 days or more past due. See “Management s Discussion and Analysis — Critical Accounting Policies and Estimates — Allowance for Loan Losses.” All payments received on nonaccrual loans are accounted for using the cash method. Under the cash method, all payments are applied to the principal balance until all principal and interest payments are brought current and the prospects for future payments in accordance with the loan agreement are reasonably assured, at which point the loan is returned to accrual status and no longer designated as impaired. Loans that are well-secured and in the collection process are maintained on accrual status, even if they are 90 days or more past due. FHA insured and VA guaranteed single family loans that are 90 days or more past due are maintained on accrual status as they have little to no risk of loss.

Loans are reported as troubled debt restructurings (“TDR”) when the Company grants concessions that we would not otherwise consider to borrowers experiencing financial difficulty. Concessions to borrowers that represent an insignificant delay in performance are not designated TDRs. TDRs are designated as impaired

 

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because interest and principal payments will not be received in accordance with original contract terms. TDRs that are performing and on accrual status as of the date of the modification remain on accrual status. TDRs that are nonperforming as of the date of modification generally remain as nonaccrual until the prospect of future payments in accordance with the modified loan agreement is reasonably assured, generally demonstrated when the borrower maintains compliance with the restructured terms for a predetermined period, normally at least six months. TDRs placed on accrual status and reported as a TDR as of year end are identified as performing TDRs as are TDRs in accrual status where the borrower has received below-market interest rate concessions. TDRs with temporary below-market concessions remain designated as a TDR until the concession expires, and the loan performs for a period of at least six months and has passed one annual reporting period.

When there is a well-conceived and prudent workout plan that supports the ultimate collection of principal and interest, we may enter into TDRs to help maximize the likelihood of success for a given workout strategy. In each case we also assess whether it is in the best interests of the Bank or the borrower to foreclose or modify the terms. For example, we may make concessions such as interest-only payment terms for income property borrowers in order to allow time for properties to achieve full occupancy. In the past, we also have granted concessions such as interest rate reductions and payment restructures for construction and land development borrowers to allow time for plat completion and sell out. Since mid-2009, concessions to this segment have been focused primarily on forgiveness of principal in conjunction with settlement activities so as to allow us to acquire control of the real estate collateral. For single family mortgage borrowers, we may grant interest rate reductions for periods of three years or less to reduce payments and provide the borrower time to resolve their financial difficulties. In each case, we carefully analyze the borrower’s current financial condition to assure that they can make the modified payment. Additionally, the Bank Order limits our ability to enter into loan modifications with delinquent borrowers, and we comply with each of these limitations in considering whether to enter into a TDR.

 

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The table below contains TDRs reported as of the indicated dates, types of concessions granted and the current status of such TDRs as of March 31, 2011.

 

(dollars in thousands)

At March 31, 2011

                       Status            

Concession Type

   Balance      % TDR
current on
restructured
terms
     % Upgraded
or Paid Off
     % Failed  

Interest Rate Reduction

   $ 40,985         100                   

Payment Restructure

   $ 15,770         100                   

Forgiveness of Principal

   $ 2,688         100                   
                                   
   $ 59,443            
                 

At December 31, 2010

                       Status            

Concession Type

   Balance      % TDR
current on
restructured
terms
     % Upgraded
or Paid Off
     % Failed  

Interest Rate Reduction

   $ 39,347         100                   

Payment Restructure

   $ 15,770         100                   

Forgiveness of Principal

   $ 1,752         100                   
                                   

Total

   $ 56,869            
                 

At December 31, 2009

                       Status            

Concession Type

   Balance      % TDR
current on
restructured
terms
     % Upgraded
or Paid Off
     % Failed  

Interest Rate Reduction

   $ 58,575         19         53         28   

Payment Restructure

   $ 3,240                           
                                   

Total

   $ 61,815            
                 

At December 31, 2008

                       Status            

Concession Type

   Balance      % TDR
current on
restructured
terms
     % Upgraded
or Paid Off
     % Failed  

Payment Restructure

   $ 51,585                 13         87   
                                   

Total

   $ 51,585            
                 

At December 31, 2007

                       Status            

Concession Type

   Balance      % TDR
current on
restructured
terms
     % Upgraded
or Paid Off
     % Failed  

Interest Rate Reduction

   $ 2,778                         100   
                                   

Total

   $ 2,778            
                 

TDRs during 2007 and 2008 have had a lower success rate than those executed in the subsequent years. Through March 31, 2011 we have not experienced any TDRs whose borrowers failed to adhere to the restructured terms (a situation we refer to as failed TDRs) executed subsequent to 2009.

 

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The following table contains the amount of TDRs by loan type on accrual and nonaccrual as of the indicated dates.

 

(in thousands)                     
At March 31, 2011                     

Loan Type

   Accrual      Nonaccrual      Total  

Single Family

   $ 15,684       $ 527       $ 16,211   

Commercial Real Estate

   $ 15,770       $ 47       $ 15,817   

Multifamily Residential

   $ 2,791       $ 2,862       $ 5,653   

Construction/Land Development

   $       $ 19,907       $ 19,907   

Commercial Business

   $       $ 24       $ 24   

Home Equity

   $ 1,643       $ 188       $ 1,831   
                          
   $ 35,888       $ 23,555       $ 59,443   
                          

At December 31, 2010

        

Loan Type

   Accrual      Nonaccrual      Total  

Single Family

   $ 13,836       $ 194       $ 14,030   

Commercial Real Estate

   $ 15,770       $ 329       $ 16,099   

Multifamily Residential

   $       $ 5,711       $ 5,711   

Construction/Land Development

   $ 367       $ 18,666       $ 19,033   

Commercial Business

   $       $ 163       $ 163   

Home Equity

   $ 1,833       $       $ 1,833   
                          
   $ 31,806       $ 25,063       $ 56,869   
                          
At December 31, 2009                     

Loan Type

   Accrual      Nonaccrual      Total  

Single Family

   $ 14,951       $ 3,035       $ 17,986   

Commercial Real Estate

   $ 25,871       $       $ 25,871   

Multifamily Residential

   $       $       $   

Construction/Land Development

   $ 1,924       $ 16,034       $ 17,958   

Commercial Business

   $       $       $   

Home Equity

   $       $       $   
                          
   $ 42,746       $ 19,069       $ 61,815   
                          
At December 31, 2008                     

Loan Type

   Accrual      Nonaccrual      Total  

Single Family

   $ 8,698       $ 44       $ 8,742   

Commercial Real Estate

   $       $       $   

Multifamily Residential

   $       $       $   

Construction/Land Development

   $ 29,117       $ 13,726       $ 42,843   

Commercial Business

   $       $       $   

Home Equity

   $       $       $   
                          
   $ 37,815       $ 13,770       $ 51,585   
                          
At December 31, 2007                     

Loan Type

   Accrual      Nonaccrual      Total  

Single Family

   $       $       $   

Commercial Real Estate

   $       $       $   

Multifamily Residential

   $       $       $   

Construction/Land Development

   $       $ 2,778       $ 2,778   

Commercial Business

   $       $       $   

Commercial Land

   $       $       $   

Home Equity

   $       $       $   
                          
   $       $ 2,778       $ 2,778   
                          

 

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The following table presents the composition of nonperforming assets at the dates indicated.

 

     At March 31, 2011     At December 31,  
       2010     2009     2008     2007     2006  

(in thousands)

            

Loans accounted for on a nonaccrual basis: (1)

            

Single family

   $ 14,732      $ 13,938      $ 48,400      $ 14,874      $ 6,153      $ 3,247   

Commercial real estate

     19,815        20,259        15,981        857        4,071          

Multifamily residential

     5,302        8,167        8,489                        

Construction/land development

     77,811        65,952        295,968        57,306        23,257          

Commercial business

     3,355        2,359        3,195        642                 

Home Equity

     3,103        2,535        2,186        1,706        276        114   
                                                

Total loans on nonaccrual

   $ 124,118      $ 113,210      $ 374,219      $ 75,385      $ 33,757      $ 3,361   
                                                

Other real estate owned (2)

     98,863        170,455        107,782        20,905        1,974        1   
                                                

Total nonperforming assets

   $ 222,981      $ 283,665      $ 482,001      $ 96,290      $ 35,731      $ 3,362   
                                                

Loans 90 days or more past due and accruing

   $ 44,066      $ 43,504      $ 11,439      $ 21,068      $ 362      $   

Performing TDR loans (3)

   $ 35,888      $ 31,806      $ 42,746      $ 37,815      $      $   

Nonperforming TDR loans (3)

     23,555        25,063        19,069        13,770        2,778          
                                                

Total TDR loans

   $ 59,443      $ 56,869      $ 61,815      $ 51,585      $ 2,778      $   
                                                

Allowance for loan losses as a percent of nonperforming loans

     50.1     56.7     29.5     77.7     115.0     828.1

Nonaccrual loans as a percentage of total loans

     7.9     7.04     18.0     3.0     1.5     0.2

Nonperforming assets as a percentage of total assets

     9.5     11.4     15.0     3.3     1.4     0.1

 

(1) If interest on nonaccrual loans under the original terms had been recognized, such income is estimated to have been $1.5 million in March 31, 2011, and $10.1 million in December 31, 2010.
(2) Other real estate owned is shown net of related charge-offs.
(3) At March 31, 2011, TDRs (performing and nonperforming), are comprised of 27 loan relationships totaling $59.4 million, including $18.5 million of commercial construction and land development loans and $18.0 million of single family residential loans.

As indicated in the table above, OREO increased from $20.9 million at December 31, 2008, to $107.8 million at December 31, 2009 and to $170.5 million at December 31, 2010. These increases were due primarily to transfers from the construction and land development loan portfolios. OREO decreased to $98.9 million as of March 31, 2011 as we sold $66.6 million of OREO properties during the first quarter of 2011 for a gain of $236,000, including our largest OREO property, Cascadia.

 

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Delinquent loans and other real estate owned by loan type consisted of the following:

 

     March 31, 2011  
(in thousands)    30-59 Days
Past Due
     60-89 Days
Past Due
     Nonaccrual      90 Days or More
and Accruing
     Total Past
Due Loans
     Other
Real Estate
Owned
 

Single family

   $ 9,949       $ 7,885       $ 14,732       $ 31,584       $ 64,150       $ 14,897   

Commercial real estate

                     19,815                 19,815         8,045   

Multifamily residential

                     5,302                 5,302           

Construction/land development

                     77,811         11,575         89,386         75,688   

Commercial business

                     3,355         907         4,262           

Home equity

     1,386         609         3,103                 5,098         233   
                                                     

Total

   $ 11,335       $ 8,494       $ 124,118       $ 44,066       $ 188,013       $ 98,863   
                                                     

 

     December 31, 2010  
(in thousands)    30-59 Days
Past Due
     60-89 Days
Past Due
     Nonaccrual      90 Days or More
and Accruing
     Total Past
Due Loans
     Other
Real Estate
Owned
 

Single family

   $ 6,743       $ 6,223       $ 13,938       $ 30,173       $ 57,077       $ 18,839   

Commercial real estate

             4,871         20,259                 25,130         6,257   

Multifamily residential

                     8,167                 8,167           

Construction/land development

                     65,952         12,955         78,907         145,359   

Commercial business

             907         2,359         375         3,641           

Home equity

     1,645         1,184         2,535                 5,364           
                                                     

Total

   $ 8,388       $ 13,185       $ 113,210       $ 43,503       $ 178,286       $ 170,455   
                                                     

 

     At December 31, 2009  
(in thousands)    30-59 Days
Past Due
     60-89 Days
Past Due
     Nonaccrual      90 Days or More
and Accruing
     Total Past
Due Loans
     Other
Real Estate
Owned
 

Single family

   $ 10,921       $ 6,569       $ 48,400       $       $ 65,890       $ 13,612   

Commercial real estate

                     15,981                 15,981           

Multifamily residential

                     8,489                 8,489           

Construction/land development

     27,935         24,847         295,966         11,439         360,189         94,170   

Commercial business

     41         477         3,195                 3,713           

Home equity

     903         927         2,187                 4,017           
                                                     

Total

   $ 39,802       $ 32,820       $ 374,218       $ 11,439       $ 458,279       $ 107,782   
                                                     

 

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The following table presents nonperforming assets by loan type by region at March 31, 2011.

 

    Washington     Idaho  
    Puget Sound                    
    King (1)     Snohomish (2)     Pierce (1)     Thurston (1)     Vancouver &
Other (2)(3)
    Spokane (2)     Boise (2)  
             
             
(in thousands)                                          

Loans on nonaccrual status:

             

Single family

  $ 3,351      $ 2,509      $ 3,658      $ 340      $ 299      $ 288      $   

Commercial real estate

    5,783        723        9,820                               

Multifamily residential

           2,440                                      

Construction/land development

    5,993        670        7,784        31,463        5,970                 

Commercial business

    2,943               224               188            

Home equity

    1,716        105        407        46        284        115          
                                                       

Total loans on nonaccrual status

  $ 19,786      $ 6,447      $ 21,893      $ 31,849      $ 6,741      $ 403      $   
                                                       

Other real estate owned:

             

Single family

  $ 3,799      $ 3,401      $ 1,123      $      $ 1,177      $ 165      $ 138   

Commercial real estate

    4,317        1,576                      2,152                 

Multifamily residential

                                                

Construction/land development

    12,502        7,556        23,465        17,984        6,976               1,876   

Commercial business

                                                

Home equity

           233                                      
                                                       

Total other real estate owned

  $ 20,618      $ 12,766      $ 24,578      $ 17,984      $ 10,305      $ 165      $ 2,014   
                                                       

Total nonperforming assets

  $ 40,404      $ 19,213      $ 46,471      $ 49,833      $ 17,046      $ 568      $ 2,014   
                                                       
    Oregon                    
    Portland (2)     Bend (2)     Eugene (2)     Salem (2)     Hawaii     Other (4)     Total  
(in thousands)                                          

Loans on nonaccrual status:

             

Single family

  $ 3,108      $      $ 108      $ 130      $ 941      $      $ 14,732   

Commercial real estate

    2,912               577                             19,815   

Multifamily residential

    2,862                                           5,302   

Construction/land development

    10,248               10,411        5,272                      77,811   

Commercial business

                                              3,355   

Home equity

    167        11        12        38        202               3,103   
                                                       

Total loans on nonaccrual status

  $ 19,297      $ 11      $ 11,108      $ 5,440      $ 1,143      $      $ 124,118   
                                                       

Other real estate owned:

             

Single family

  $ 1,647      $ 355      $      $ 899      $ 2,193      $      $ 14,897   

Commercial real estate

                                              8,045   

Multifamily residential

                                                

Construction/land development

    3,342        1,766               231                      75,688   

Commercial business

                                                

Home equity

                                              233   
                                                       

Total other real estate owned

  $ 4,989      $ 2,121      $      $ 1,130      $ 2,193      $      $ 98,863   
                                                       

Total nonperforming assets

    24,286      $ 2,132      $ 11,108      $ 6,570      $ 3,336      $      $ 222,981   
                                                       

 

(1) Refers to a specific county.

 

(2) Refers to a specific city.

 

(3) Also includes surrounding counties.

 

(4) Includes Florida.

 

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The following table presents nonperforming assets by loan type by region as of December 31, 2010.

 

    Washington     Idaho  
    Puget Sound                    
    King(1)     Snohomish(1)     Pierce(1)     Thurston(1)     Vancouver(2)(3)     Spokane(2)(3)     Idaho  
(in thousands)                                          

Loans on nonaccrual status:

             

Single family

  $ 4,707      $ 2,726      $ 3,914      $ 341      $ 185      $ 288      $   

Commercial real estate

    6,200        723        10,020               2,237                 

Multifamily residential

           2,456                                      

Construction/land development

    7,487        678        10,423        21,810        5,985               277   

Commercial business

    1,873               298               188                 

Home equity

    1,139        37        446        75        194        51          
                                                       

Total loans on nonaccrual status

  $ 21,406      $ 6,620      $ 25,101      $ 22,226      $ 8,789      $ 339      $ 277   
                                                       

Other real estate owned:

             

Single family

  $ 5,511      $ 4,314      $ 828      $      $ 1,056      $ 275      $ 700   

Commercial real estate

    4,318        1,939                                      

Multifamily residential

                                                

Construction/land development

    25,262        10,514        72,690        18,603        7,462               2,417   

Commercial business

                                                

Home equity

                                                
                                                       

Total other real estate owned

  $ 35,091      $ 16,767      $ 73,518      $ 18,603      $ 8,518      $ 275      $ 3,117   
                                                       

Total nonperforming assets

  $ 56,497      $ 23,387      $ 98,619      $ 40,829      $ 17,307      $ 614      $ 3,394   
                                                       

 

    Oregon                    
    Portland (2)(3)     Bend (2)(3)     Eugene (2)(3)     Salem (2)(3)     Hawaii     Other (4)     Total  
(in thousands)                                          

Loans on nonaccrual status:

             

Single family

  $ 560      $      $      $ 130      $ 1,087      $      $ 13,938   

Commercial real estate

    501               578                             20,259   

Multifamily residential

    2,889        2,822                                    8,167   

Construction/land development

    8,890        30        10,372                             65,952   

Commercial business

                                              2,359   

Home equity

    87        89               81        336               2,535   
                                                       

Total loans on nonaccrual status

  $ 12,927      $ 2,941      $ 10,950      $ 211      $ 1,423      $      $ 113,210   
                                                       

Other real estate owned:

             

Single family

  $ 1,839      $ 561      $      $ 1,266      $ 2,489      $      $ 18,839   

Commercial real estate

                                              6,257   

Multifamily residential

                                                

Construction/land development

    4,764        2,391               231               1,025        145,359   

Commercial business

                                                

Home equity

                                                
                                                       

Total other real estate owned

  $ 6,603      $ 2,952      $      $ 1,497      $ 2,489      $ 1,025      $ 170,455   
                                                       

Total nonperforming assets

  $ 19,530      $ 5,893      $ 10,950      $ 1,708      $ 3,912      $ 1,025      $ 283,665   
                                                       

 

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(1) Refers to a specific county.

 

(2) Refers to a specific city.

 

(3) Also includes surrounding counties.

 

(4) Includes Alaska and Florida in commercial real estate and Washington Community Reinvestment Association participation pool loans in multifamily residential.

The following table presents the single family loan portfolio by FICO score as of March 31, 2011.

 

Greater Than

  Less Than or
Equal To
    Percentage¹  
N/A     N/A        7.4
<     500        0.1
500     549        0.2
550     599        1.6
600     649        5.8
650     699        20.2
700     749        30.6
750     >        34.1
         
    TOTAL        100.0

 

¹ Percentages based on aggregate loan amounts.

The following table presents our single family loan held for investment portfolio by FICO score as of December 31, 2010.

Single Family Residential Loan Portfolio as of December 31, 2010

- FICO Score Distributions

 

Greater Than

  Less Than or
Equal To
    Percentage¹  
N/A     N/A        7.2
<     500        0.0
500     549        0.3
550     599        1.6
600     649        5.6
650     699        20.1
700     749        30.6
750     >        34.6
         
    TOTAL        100.0

 

1  

Percentages based on aggregate loan amounts.

From the latter part of 2008 through March 31, 2011, substantially all of the loans we originated were single family mortgages that conform to government-sponsored enterprise underwriting standards and were designated for sale.

Our underwriting standards for single family and home equity loans require evaluating and understanding a borrower’s credit, collateral and ability to repay the loan. Credit is determined based on how well a borrower manages their current and prior debts, documented by a credit report that provides credit scores and the borrower’s current and past information about their credit history. Collateral is based on the type and use of property, occupancy and market value, largely determined by property appraisals. Ability to repay the loan is

 

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based on several factors, including the borrower’s employment, income, current debt, assets and level of equity in the property. We also consider loan-to-property value and debt-to-income ratios, loan amount and lien position in assessing whether to originate a loan. Single family and home equity borrowers are particularly susceptible to downturns in economic trends that negatively affect housing prices and demand and levels of unemployment.

For commercial, multifamily residential and construction lending, we consider the same factors with regard to the borrower and the guarantors. In addition, we evaluate liquidity, net worth, leverage, other outstanding indebtedness of the borrower, an analysis of cash expected to flow through the borrower (including the outflow to other lenders) and prior experience with the borrower. We use this information to assess financial capacity, profitability and experience. Ultimate repayment of these loans is sensitive to interest rate changes, general economic conditions, liquidity and availability of long-term financing.

Liquidity Risk and Capital Resources

Liquidity risk management is primarily intended to ensure we are able to maintain cash flows adequate to fund operations and meet our obligations, including demands of depositors, draws on lines of credit and paying any creditors, on a timely and cost-effective basis in various market conditions. Our liquidity profile is influenced by changes in market conditions, the composition of the balance sheet and risk tolerance levels. We establish liquidity guidelines for HomeStreet, Inc. as well as for its banking subsidiaries.

HomeStreet, Inc. and the Bank have separate liquidity risk management policies as each has different funding needs and sources of liquidity and separate regulatory capital requirements. In addition, the Bank Order requires the Bank to maintain a minimum primary liquidity ratio (net cash plus short term and marketable assets divided by net deposits plus short-term liabilities) of 15.0%.

HomeStreet, Inc.

The main source of liquidity for HomeStreet, Inc. is proceeds from dividends from the Bank and HomeStreet Capital. In the past, we have raised longer-term funds through the issuance of senior debt and trust preferred securities. The main cash outflows are distributions to shareholders, interest and principal payments to creditors and operating expenses. HomeStreet, Inc.’s ability to pay dividends to shareholders depends substantially on dividends received from the Bank. Our federal and state regulators have prohibited both HomeStreet, Inc. and the Bank from paying dividends without consent, and HomeStreet, Inc. is also contractually restricted from paying dividends to shareholders under the terms of our TruPS. As a result, no dividends were paid to shareholders in 2009 and 2010, and we have deferred all interest payments on the TruPS since December 2008.

HomeStreet Bank

The Bank’s primary short-term sources of funds include deposits, advances from the FHLB, repayments and prepayments of loans, proceeds from the sale of loans and investment securities and interest from our loans and investment securities. We have also raised short-term funds though the sale of securities under agreements to repurchase and advances from the Federal Reserve Bank of San Francisco, or FRBSF. While scheduled principal repayments on loans are a relatively predictable source of funds, deposit inflows and outflows and loan prepayments are greatly influenced by interest rates, economic conditions and competition.

As of March 31, 2011 and December 31, 2010, the Bank had borrowing capacity of $281.0 million and $72.8 million, and $175.2 million and $192.9 million from the FHLB and the FRBSF, respectively.

Our lending agreement with the FHLB permits the FHLB to refuse to make advances under that agreement during periods in which an “event of default” (as defined in that agreement) is continuing. An event of default

 

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occurs when the FHLB gives notice to the Bank of an intention to take any of a list of permissible actions following the occurrence of specified events or conditions affecting the Bank. Among those events is the issuance or entry of “any supervisory or consent order pertaining to” the Bank, which would include the Bank Order. To date the FHLB has not declared a default under this agreement, and has not notified the Bank that future advances would not be made available, although it has required the Bank to deliver physical possession of certain negotiable instruments and related documentation as collateral for borrowings under that agreement.

Further, we have been notified by the FRBSF that due to our financial and regulatory condition, we face increases in borrowing costs and increases in administration and oversight by FRBSF. As a practical matter, this limitation may serve to increase our costs of funding or may make it more difficult for us to take the steps necessary to preserve this source of financing.

During 2007, 2008 and 2009, in response to the credit crisis and general economic downturn, we secured our availability to funds through increased FHLB borrowings and brokered deposits and invested these funds in highly liquid investment securities as well as carrying elevated levels of cash and cash equivalent balances, enabling us to quickly react to changes in the risk environment. In November 2008, we adopted a revised liquidity policy for the Bank that required us to increase and maintain the Bank’s primary liquidity ratio to 15.0% by June 30, 2009, which was achieved and surpassed. The primary liquidity ratio is defined as net cash, short-term investments and other marketable assets as a percent of net deposits and short-term borrowings. While this strategy was effective for risk management purposes, this high level of liquidity has also adversely affected our net interest income and margin. With the stabilization of the Company and changing depositors’ attitude toward the risk of deposits in troubled banks as a consequence of, among other things, government programs insuring noninterest bearing accounts including provisions of the Dodd-Frank Act, we believe it is no longer necessary to sustain such a position. Going forward we anticipate reducing on-balance sheet liquidity further as we continue to reduce non-core funding. As of March 31, 2011, December 31, 2010 and 2009, our primary liquidity ratio was 25.0%, 23.9% and 32.1% respectively.

As part of our funding strategy, we increased the Bank’s FHLB borrowings to $575.1 million and $746.4 million as of December 31, 2006 and 2007, respectively. As of December 31, 2008, 2009, 2010 and March 31, 2011, FHLB borrowings declined to $705.8 million, $677.8 million, $165.9 million and $114.5 million, respectively.

Deposit balances increased from $1.54 billion as of December 31, 2006 to $1.72 billion, $1.92 billion and $2.33 billion as of December 31, 2007, 2008 and 2009, respectively, and declined to $2.13 billion and $2.07 billion as of December 31, 2010 and March 31, 2011, respectively. As of March 31, 2011, brokered CD balances decreased $284.1 million to $10.0 million, from $291.8 million as of December 31, 2009. As part of our balance sheet restructuring activities and in order to comply with the Bank Order, brokered CD balances were allowed to mature without renewal.

Cash balances as of March 31, 2011 increased $98.2 million to $170.8 million, from $72.6 million as of December 31, 2010. The increase reflects proceeds totaling $67.3 million from the sale of OREO properties during the first quarter of 2011 as well as the settlement of loans sold. As of December 31, 2010 cash balances declined $144.5 million to $72.6 million, from $217.1 million as of December 31, 2009 reflecting our decision to reduce our primary liquidity.

Capital Resources

Shareholders’ equity was $51.2 million as of March 31, 2011, compared with $58.8 million as of December 31, 2010, a decrease of $7.6 million or 12.9%. The decline is primarily due to the result of a net loss of $7.4 million. Shareholders’ equity was $58.8 million as of December 31, 2010, compared with $91.9 million as of December 31, 2009, a decrease of $33.1 million or 36.0%. The decline is primarily due to the result of a net

 

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loss of $34.2 million and a loss of $5.4 million in accumulated other comprehensive income, partially offset by an upward fair value adjustment of $6.5 million related to management’s election to record and carry its single family MSR assets at fair value as of January 1, 2010. There were no dividends declared or paid, share repurchases or deferred compensation recorded during the quarter ended March 31, 2011 or the years ended 2010 and 2009.

Federally insured depository institutions, such as the Bank, are required to maintain a minimum level of regulatory capital. The FDIC regulations recognize two types, or tiers, of capital: “core capital,” or Tier 1 capital, and “supplementary capital,” or Tier 2 capital. The FDIC currently measures a bank’s capital using (1) total risk-based capital ratio, (2) Tier 1 risk-based capital ratio and (3) Tier 1 leverage ratio. In order to qualify as “well capitalized,” a bank must have a total risk-based capital ratio of at least 10.0%, a Tier 1 risk-based capital ratio of at least 6.0% and a leverage ratio of at least 5.0%. In order to be deemed “adequately capitalized,” a bank generally must have a total risk-based capital ratio of at least 8.0%, a Tier 1 risk-based capital ratio of at least 4.0% and a leverage ratio of at least 4.0%. The FDIC retains the right to require a depository institution to maintain a higher capital level based on its particular risk profile. Under the Bank Order, we are required to maintain a total risk-based capital ratio of at least 12.0% and a Tier 1 leverage capital ratio of at least 10.0%.

As of March 31, 2011, the Bank had a total risk-based capital ratio, Tier 1 risk-based capital ratio and Tier 1 leverage capital ratio of 8.3%, 7.0% and 4.5%, respectively. As of December 31, 2010, the Bank had a total risk-based capital ratio, Tier 1 risk-based capital ratio and Tier 1 leverage capital ratio of 8.2%, 6.9% and 4.5%, respectively. As such, the Bank is currently “adequately capitalized” within the meaning of the FDIC’s “prompt corrective action” guidance. The Bank’s current ratios do not satisfy the requirements of the Bank Order, although a successful completion of this offering is expected to result in the Bank attaining capital levels in excess of those necessary to be considered “well capitalized.”

The Bank’s actual capital amounts and ratios are included in the following table:

 

(in thousands)    Actual     For Minimum
Capital

Adequacy Purposes
    To Be Categorized
As “Well Capitalized”
Under Prompt
Corrective Action
Provisions
 
     Amount      Ratio     Amount      Ratio     Amount      Ratio  

As of March 31, 2011:

               

Total risk-based capital
(to risk-weighted assets)

   $ 127,447         8.3   $ 123,197         8.0   $ 153,997         10.0

Tier I risk-based capital
(to risk-weighted assets)

     107,664         7.0     61,599         4.0     92,398         6.0

Tier I leverage capital
(to average assets)

     107,664         4.5     95,955         4.0     119,944         5.0

As of December 31, 2010:

               

Total risk-based capital
(to risk-weighted assets)

   $ 138,924         8.2   $ 136,154         8.0   $ 170,193         10.0

Tier I risk-based capital
(to risk-weighted assets)

     117,115         6.9     68,077         4.0     102,116         6.0

Tier I leverage capital
(to average assets)

     117,115         4.5     103,608         4.0     129,509         5.0

 

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(in thousands)    Actual     For Minimum
Capital

Adequacy Purposes
    To Be Categorized
As “Well Capitalized”
Under Prompt
Corrective Action
Provisions
 
     Amount      Ratio     Amount      Ratio     Amount      Ratio  

As of December 31, 2009:

               

Total risk-based capital
(to risk-weighted assets)

   $ 170,364         8.5   $ 160,413         8.0   $ 200,517         10.0

Tier I risk-based capital
(to risk-weighted assets)

     144,245         7.2     80,207         4.0     120,310         6.0

Tier I leverage capital
(to average assets)

     144,245         4.5     127,484         4.0     159,356         5.0

The following table presents the Bank’s capital as compared to the regulatory capital requirements at March 31, 2011:

 

     The Bank’s Capital     Capital Ratio
Requirement
    Capital
Shortfall
 
(in thousands)                                 

Tier 1 leverage capital

   $ 107,664         4.49   $ 239,887         10.00   $ (132,223

Total risk-based capital

     127,447         8.28     184,796         12.00     (57,349

The following table presents the Bank’s capital as compared to the regulatory requirements at December 31, 2010:

 

     The Bank’s Capital     Capital Ratio
Requirement
    Capital
Shortfall
 
(in thousands)                                 

Tier 1 leverage capital

   $ 117,115         4.52   $ 259,019         10.00   $ (141,904

Total risk-based capital

     138,924         8.16     204,232         12.00     (65,308

Impact of Inflation

The consolidated financial statements presented in this prospectus have been prepared in accordance with accounting principles generally accepted in the United States, which require the measurement of financial position and operating results in terms of historical dollar amounts or market value without considering the changes in the relative purchasing power of money over time due to inflation. The impact of inflation is reflected in the increased cost of our operations. Unlike industrial companies, nearly all of our assets and liabilities are monetary in nature. As a result, interest rates have a greater impact on our performance than do the effects of general levels of inflation.

Market Risk Management

Market risk is defined as the sensitivity of income, fair market values and capital to changes in interest rates, foreign currency exchange rates, commodity prices and other relevant market rates or prices. The primary market risks to which we are exposed are price and interest rate risk. Price risk is defined as the risk to current or anticipated earnings or capital arising from changes in the value of either trading portfolios or other obligations that are entered into as part of distributing or managing risk. Interest rate risk is defined as risk to current or anticipated earnings or capital arising from movements in interest rates.

For HomeStreet, price and interest rate risks arise from the financial instruments and positions we hold. This includes loans, mortgage servicing rights, securities, deposits, borrowings, long-term debt and derivative

 

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financial instruments. Due to the nature of our operations, we are not subject to foreign currency exchange or commodity price risk. Our real estate loan portfolio is subject to risks associated with the local economies of our various markets and, in particular, the regional economy of the Pacific Northwest.

Our price and interest rate risks are managed by the Bank’s Asset/Liability Management Committee (ALCO), a management committee that identifies and manages the sensitivity of net income to changing interest rates to achieve our overall financial objectives. ALCO is a management-level committee whose members include the Chief Financial Officer, acting as the chair, the Chief Executive Officer and President, the Treasurer and a senior financial analyst. The committee meets monthly, and is responsible for:

 

   

understanding the nature and level of interest rate risk we take;

 

   

assessing how that risk fits within our overall business strategies;

 

   

ensuring an appropriate level of formality and sophistication of the risk management process given the overall level of risk;

 

   

developing asset/liability management policy;

 

   

formulating and implementing strategies to improve balance sheet mix and earnings; and

 

   

reviewing interest rate sensitivity.

The finance committee provides oversight of the asset/liability management process, reviews the results of interest rate risk analysis and approves policies.

The spread between the yield on interest-earning assets and the cost of interest-bearing liabilities and the relative dollar amounts of these assets and liabilities are the principal items affecting net interest income. Changes in net interest spread, or interest rate risk, are influenced to a significant degree by the repricing characteristics of assets and liabilities (timing risk), the relationship between various rates (basis risk), customer options and changes in the shape of the yield curve. From mid-2008 to mid-2010, our balance sheet management was focused primarily on liquidity management and secondarily on earnings. As our financial condition stabilizes and improves, we have changed our liquidity and funding strategy placing more emphasis on growing earnings.

We estimate the sensitivity of our net interest income to changes in market interest rates using an interest rate simulation model that assumes the level of balance sheet growth, deposit repricing characteristics and the rate of prepayments for each interest rate change scenario. Interest rate sensitivity depends on certain repricing characteristics in our interest-earnings assets and interest-bearing liabilities, including the maturity structure of assets and liabilities and their repricing characteristics during the periods of changes in market interest rates. Effective interest rate sensitivity management seeks to ensure both assets and liabilities respond to changes in interest rates within an acceptable timeframe, minimizing the impact of interest rate changes on net interest income and capital. Interest rate sensitivity is measured as the difference between the volume of assets and liabilities at a point in time that are subject to repricing at various time horizons: immediate to three months; more than three months to six months; more than six months to twelve months; more than twelve months to three years; more than three years to five years; more than five years; and on a cumulative basis. The differences are known as interest sensitivity gaps.

 

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The following table presents sensitivity gaps for these different intervals as of December 31, 2010:

 

    December 31, 2010  
    3 Mos or
Less
    More
Than 3
Mos to
6 Mos
    More
Than 6
Mos to
12 Mos
    More
Than 12
Mos to
3 yrs
    More
Than 3
Yrs to
5 yrs
    More
Than
5 Yrs
    Non-Rate-
Sensitive
    Total  
    (Dollar in thousands)  

Interest-earning assets:

               

Cash & cash equivalents

  $ 72,639      $      $      $      $      $      $      $ 72,639   

FHLB Stock

                                       37,027               37,027   

Investment securities(1)

    9,903        12,878        89,671        56,346        49,063        95,652               313,513   

Mortgage loans held for sale

    212,602                                                  212,602   

Loans held for investment(1)(2)

    948,892        167,027        88,427        183,404        99,405        115,543               1,602,698   
                                                               

Total interest-earning assets

    1,244,036        179,905        178,098        239,750        148,468        248,222               2,238,479   

Non-interest-earning assets

                                              247,218        247,218   
                                                               

Total Assets

  $ 1,244,036      $ 179,905      $ 178,098      $ 239,750      $ 148,468      $ 248,222      $ 247,218      $ 2,485,697   
                                                               

Interest-bearing liabilities:

               

NOW accounts(3)

  $ 121,534      $      $      $      $      $      $      $ 121,534   

Statement savings accounts(3)

    51,075                                                  51,075   

Money market accounts(3)

    413,402                                                  413,401   

Certificates of deposit

    114,621        172,413        244,909        746,220        29,630        48               1,307,842   

FHLB advances

    51,325        36,625        20,000        35,834        5,700        16,385               165,869   

Long-term debt(4)

    30,000        20,000               15,000               1,857               66,857   
                                                               

Total interest-bearing liabilities

    781,957        229,038        264,908        797,054        35,330        18,290               2,126,578   

Non-interest bearing liabilities

                                              300,330        300,330   

Equity

                58,789        58,789   
                                                               
  $ 781,957      $ 229,038      $ 264,908      $ 797,054      $ 35,330      $ 18,290      $ 359,119      $ 2,485,697   
                                                               

Interest sensitivity gap

  $ 462,079      $ (49,133   $ (86,809   $ (557,304   $ 113,138      $ 229,932       
                                                   

Cumulative interest sensitivity gap

  $ 462,079      $ 412,944      $ 326,133      $ (231,171   $ (118,033   $ 111,899       
                                                   

Cumulative interest sensitivity gap as a percentage of total assets

    18.6     16.6     13.1     (9.3 )%      (4.7 )%            
                     

Cumulative interest-earning assets as a percentage of cumulative interest-bearing liabilities

    159     141     126     89     94     105    

 

(1) Based on contractual maturities, repricing dates and forecasted principal payments assuming normal amortization and, where applicable, prepayments.

 

(2) Projected average constant prepayment rates for the next twelve months are 15.0%.

 

(3) Assumes 100% of interest bearing non-maturity deposits are subject to repricing in three months or less.

 

(4) Based on contractual maturity.

As of December 31, 2010, the Bank was asset sensitive overall, but liability sensitive in the “more than three months to six months” “more than six months to 12 months” and “more than 12 months to three years” periods. The positive gap in the interest rate sensitivity analysis indicates that our net interest income would rise in the long term if market interest rates increase and generally fall in the long term if market interest rates decline.

Changes in the mix of earning assets or supporting liabilities can either increase or decrease the net interest margin, without affecting interest rate sensitivity. In addition, the interest rate spread between an asset and its

 

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supporting liability can vary significantly, while the timing of repricing for both the asset and the liability remains the same, thereby impacting net interest income. This characteristic is referred to as basis risk. Varying interest rate environments can create unexpected changes in prepayment levels of assets and liabilities that are not reflected in the interest rate sensitivity analysis. These prepayments may have a significant impact on our net interest margin. Because of these factors, an interest sensitivity gap analysis may not provide an accurate assessment or our exposure to changes in interest rates.

The estimated impact on our net interest income over a time horizon of one year as of December 31, 2010 is provided in the table below. For the scenarios shown, the interest rate simulation assumes an instantaneous and sustained shift in market interest rates ratably over a twelve-month period and no change in the composition or size of the balance sheet.

 

     December 31, 2010            December 31, 2009  

Change in Interest Rates

(basis points)

   Percentage Change  
   Net Interest Income(1)     Net Portfolio Value(2)            Net Interest Income(1)     Net Portfolio Value(2)  

+200

     14     -44%           8     -44

+100

     7     -20%           4     -13

-100

     -3     3%           7     -4

-200

     -8     -5%           -1     -1

 

(1) This percentage change represents the impact to net interest income for a one-year period, assuming there is no change in the structure of the balance sheet.

 

(2) This percentage change represents the impact to the net present value of equity, assuming there is no change in the structure of the balance sheet.

At December 31, 2010, we believe our net interest income was in an “asset-sensitive” position, as the repricing characteristics were such that an increase in market interest rates would have a positive effect on net interest income and a decrease in market interest rates would have a negative effect on net interest income. At December 31, 2009, net interest income was asset sensitive in three of the four scenarios. Some of the assumptions made in the simulation model may not materialize and unanticipated events and circumstances will occur. In addition, the simulation model does not take into account any future actions which we could undertake to mitigate an adverse impact due to changes in interest rates from those expected, in the actual level of market interest rates or competitive influences on our deposit base.

Risk Management Instruments

We originate fixed-rate residential home mortgages primarily for sale into the secondary market. These loans are economically hedged against interest rate fluctuations from the time of the loan commitment until the loans are sold (typically 30 to 60 days).

We have been able to manage interest rate risk by matching both on- and off-balance sheet assets and liabilities within reasonable limits through short-term maturities and variable interest rates. Where appropriate, we also use hedging techniques including the use of forward sale commitments and option contracts on mortgage-backed securities and interest rate swaps.

In order to reduce our exposure to changes in the value of mortgage servicing rights as interest rates change, we have taken long positions with forward sale commitments as well as some U.S. Treasury contracts and forward interest rate swaps. These contracts are economic hedges, and as a result changes in fair value of the underlying positions are recognized in current income as a component of mortgage servicing income and do not qualify for hedge accounting treatment.

 

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On a periodic basis, our management reports to our board of directors regarding the results of our hedging strategies. The financial instruments we used for hedging purposes consisted of the following:

 

(in thousands)                                                
March 31, 2011:   Notional
Amount
    Fair Value     Hedged Risk  
          Asset
Derivatives
    Liability
Derivatives
    Asset(1)
Interest
rate
locks
    Asset(1)
Loans
held for
sale
    Asset(1)
MSR
    Asset(2)
Loans
held for
investment
    Liabilities(2)
Certificates
of deposit
 

Forward sale commitments

  $ 151,606      $ 267      $      $      $ 267      $      $      $   

Interest rate locks on loans

    126,255        1,830               1,830                               

Interest rate swaps

    339,003               (8,429                   (2,206     (6,223     n/a   
                                                               
  $ 616,864      $ 2,097      $ (8,429   $ 1,830      $ 267      $ (2,206   $ (6,223   $   
                                                               
As of December 31, 2010:   Notional
Amount
    Fair Value     Hedged Risk  
          Asset
Derivatives
    Liability
Derivatives
    Asset(1)
Interest
rate
locks
    Asset(1)
Loans
held for
sale
    Asset(1)
MSR
    Asset(2)
Loans
held for
investment
    Liabilities(2)
Certificates
of deposit
 

Forward sale commitments

  $ 308,973      $ 2,263      $      $      $ 2,263      $      $      $   

Interest rate locks on loans

    129,287        2,302               2,302                               

Interest rate swaps

    367,910               (22,221                   (14,447     (7,774     n/a   
                                                               
  $ 806,170      $ 4,565      $ (22,221   $ 2,302      $ 2,263      $ (14,447   $ (7,774   $   
                                                               
As of December 31, 2009:   Notional
Amount
    Fair Value     Hedged Risk  
          Asset
Derivatives
    Liability
Derivatives
    Asset(1)
Interest
rate
locks
    Asset(1)
Loans
held for
sale
    Asset(1)
MSR
    Asset(2)
Loans
held for
investment
    Liabilities(2)
Certificates
of deposit
 

Forward sale commitments

  $ 315,246      $ 1,805      $      $      $ 3,033      $ (1,228   $      $   

Futures

    85,000               (648                   (648              

Interest rate locks on loans

    119,654               (994     (994                            

Interest rate swaps

    266,770        339        (5,506                          (5,506     339   
                                                               
  $ 786,670      $ 2,144      $ (7,148   $ (994   $ 3,033      $ (1,876   $ (5,506   $ 339   
                                                               

 

(1) Economic fair value hedge.

 

(2) Fair value hedge in accordance with hedge accounting standards.

We determine the fair value of financial instruments used for hedging purposes using broker-quoted prices or other observable market data. We may implement other hedge transactions using forward loan sales, futures, option contracts and interest rate swaps or possibly interest rate floors, financial futures, forward rate agreements and U.S. Treasury options on futures or bonds. Prior to considering any hedging activities, we analyze the costs and benefits of the hedge in comparison to other viable alternative strategies.

Operational Risk Management

Operational risk is defined as the risk to current or anticipated earnings or capital arising from inadequate or failed internal processes or systems, the misconduct or errors of people, and adverse external events.

Each line of business has primary responsibility for identifying, monitoring and controlling its operational risks. In addition, centralized departments such as our risk and regulatory oversight, legal, compliance, security,

 

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information security and finance provide support to the business lines as they develop and implement risk management practices specific to their needs. Our audit team provides independent feedback on the strength of operational risk controls and compliance with Company policies and procedures. Additionally, we maintain mature change management, business resumption and data and customer information security processes. We also maintain a code of conduct with periodic training, setting a “tone from the top” that articulates a strong focus on ethical standards and a zero tolerance approach to unethical or fraudulent behavior.

Compliance/Regulatory Risk Management

Compliance risk is the risk to current or anticipated earnings or capital arising from violations of, or nonconformance with, laws, rules, regulations, prescribed practices, internal policy and procedures or ethical standards.

As a regulated financial institution with a significant mortgage banking operation we have significant compliance and regulatory risk. Historically, we have maintained a strong compliance culture and compliance management processes as evidenced by minimal compliance issues. Each business unit is responsible for compliance with laws and regulations and has identified an individual to participate on our compliance committee which is chaired by the Compliance Officer. The Compliance Officer monitors all new regulations and changes to existing regulations and the new requirements are discussed at the compliance committee to determine impact to the business units and to assign responsibilities and timelines for implementation.

The level of compliance risk is increasing, primarily due to the enactment of the Dodd-Frank Act and the significant amount of new regulation that will be created to implement the requirements in that Act. Management has established a tracking process for monitoring the status of pending regulations and for implementing the regulatory requirements as they are published and become effective.

Strategic Risk Management

Strategic risk is the risk to current or anticipated earnings, capital or enterprise value arising from adverse business decisions, improper implementation of decisions, or lack of responsiveness to industry changes.

Strategic risk is managed by the board of directors and senior management through development of strategic plans and successful implementation of business initiatives. The aggregate level of strategic risk is expected to increase based on the board’s and management’s plans to launch new business initiatives following successful capital-raising activities. We believe that the new senior management team is comprised of individuals with strong leadership skills and requisite experience in the banking industry to manage strategic risk.

Reputation Risk Management

Reputation risk is defined as the risk to current or anticipated earnings, capital, or enterprise value arising from negative public opinion.

We believe that we have an excellent reputation in the community primarily due to our longevity and significant outreach to the communities we serve. The Bank has earned “Outstanding” ratings on every Bank Community Reinvestment Act (CRA) examination since the inception of the Bank in 1986. Of late, our reputation has been challenged due to the publicity surrounding the Orders, although we believe negative customer reaction was limited, partially due to ongoing U.S. government support of the overall financial system and actions taken to strengthen deposit insurance. We anticipate that reputation risk will moderate when credit problems are resolved, we are successful in raising capital, and the Orders have been removed.

 

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Accounting Standards Adopted in 2010

Effective January 1, 2010 we adopted Accounting Standards Update (“ASU”) 2009-16 Accounting for Transfers of Financial Assets (Statement of Financial Accounting Standards (FAS) 166, Accounting for Transfers of Financial Assets – an amendment of Financial Accounting Standards Board (FASB) Statement No. 140) which amends certain guidance contained in Accounting Standards Codification 860, Transfers and Servicing . This update eliminates the concept of qualifying special purpose entities and provides additional criteria transferors must use to evaluate transfers of financial assets. The adoption of ASU 2009-16 did not have a material impact on our consolidated financial statements.

Effective January 1, 2010 we adopted ASU 2009-17, Improvements to Financial Reporting by Enterprises Involved with Variable Interest Entities (FAS 167, Amendments to FASB Interpretation No. 46(R) which amends several key consolidation provisions related to variable interest entities (“VIEs”) included in ASC 810, Consolidation . The update changes the approach we must use to identify VIEs for which we are deemed to be the primary beneficiary and are required to consolidate. Under the new guidance, a VIE’s primary beneficiary is the entity that has the power to direct the activities of the VIE that most significantly impact the VIE’s economic performance, and has an obligation to absorb losses or the right to receive benefits that could be potentially significant to the VIE. In addition, we are required to continually reassess whether we are the primary beneficiary of a VIE, whereas the previous rules only required reconsideration upon the occurrence of certain triggering events. The adoption of ASU 2009-17 did not have a material impact on our consolidated financial statements.

Effective January 1, 2010 we adopted ASU 2010-06, Improving Disclosures about Fair Value Measurements which amends the disclosure requirements for fair value measurements. We are required to disclose significant transfers in and out of Levels 1 and 2 of fair value hierarchy, whereas the previous rules only required the disclosure of transfers in and out of Level 3. Additionally, in the rollforward of Level 3 activity, we must present information on purchases, sales, issuances and settlements on a gross basis rather than on a net basis. The update also clarifies that fair value measurement disclosures should be presented for each class of assets and liabilities. A class is typically a subset of a line item in the statement of financial condition. We should also provide information about the valuation techniques and inputs used to measure fair value for recurring and nonrecurring instruments classified as either Level 2 or Level 3. The adoption of ASU 2010-06 had no impact on our consolidated financial statements since it amends only the disclosure requirements.

Effective for the year ended December 31, 2010 we adopted ASU 2010-20, Disclosures about the Credit Quality of Financing Receivables and the Allowance for Credit Losses which provides disclosures that facilitate financial statement users’ evaluation of (1) the nature of credit risk inherent in our portfolio of financing receivables, (2) how that risk is analyzed and assessed in arriving at the allowance for credit losses and (3) the changes and reasons for those changes in the allowance for credit losses. This update presents disclosure on a disaggregated basis and defines two levels of disaggregation, portfolio segment and class of financing receivable. A portfolio segment is defined as the level at which an entity develops and documents a systematic method for determining its allowance for credit losses. Classes of financing receivables generally are a disaggregation of a portfolio segment.

Accounting Changes in 2010

Effective January 1, 2010 we elected to measure and carry our mortgage servicing rights (MSRs) related to single family loans at fair value. Under this election, purchased single family MSRs and MSRs resulting from the sale or securitization of single family loans are capitalized and carried at fair value. Prior to this election, we capitalized purchased single family MSRs at cost, and MSRs resulting from the sale or securitization of single family loans were initially measured at fair value at the date of transfer and subsequently carried at the lower of amortized cost or fair value. Upon the remeasurement of our MSRs related to single family loans at fair value on January 1, 2010, we recorded a cumulative effect adjustment to increase the 2010 beginning balance of retained

 

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earnings by $6.5 million in stockholders’ equity. We continue to measure MSRs resulting from the sale of multifamily loans at fair value at the date of transfer and subsequently measured at the lower of amortized cost or fair value.

Effective January 1, 2010 we also elected to carry our single family residential mortgage loans held for sale using the fair value option. Under the fair value option, single family residential mortgage loans held for sale will be stated at fair value and any changes in fair value will be recognized in current earnings. Prior to this election, single family residential mortgage loans held for sale were stated at the lower of amortized cost or fair value. At December 31, 2009 we stated our single family residential mortgage loans held for sale at fair value, thus there was no impact to the 2010 beginning balance of retained earnings.

Current Accounting Developments

ASU 2010-06, Improving Disclosures about Fair Value Measurements , amends the disclosure requirements for fair value measurements. Companies are required to disclose significant transfers in and out of Levels 1 and 2 of fair value hierarchy, whereas the previous rules only required the disclosure of transfers in and out of Level 3. In the rollforward of Level 3 activity, companies must present information on purchases, sales, issuances, and settlements on a gross basis rather than on a net basis. ASU 2010-06 also clarifies that fair value measurement disclosures should be presented for each class of assets and liabilities. A class is typically a subset of a line item in the statement of financial condition. Companies should also provide information about the valuation techniques and inputs used to measure fair value for recurring and nonrecurring instruments classified as either Level 2 or Level 3. In first quarter 2011, we adopted the requirement for gross presentation in the Level 3 rollforward with prospective application. The remaining provisions were effective for the Company January 1, 2010. The adoption of ASU 2010-06 had no impact on the Company’s consolidated financial statements since it amends only the disclosure requirements.

ASU 2011-02, A Creditor’s Determination of Whether a Restructuring is a Troubled Debt Restructuring, provides an update for factors to be considered when evaluating whether a restructuring constitutes a troubled debt restructuring. ASU 2011-02 provides that a creditor must separately conclude that both of the following exist: (1) the restructuring constitutes a concession; and (2) the debtor is experiencing financial difficulties. In addition, the amendments to Topic 310 clarify that a creditor is precluded from using the effective interest rate test in the debtor’s guidance on restructuring of payables (paragraph 470-60-55-10) when evaluating whether a restructuring constitutes a troubled debt restructuring. The amendments in this Update are effective for the first interim or annual period beginning on or after June 15, 2011 (third quarter of 2011), and will be applied retrospectively to the beginning of the year. The Company is currently assessing the potential impact of adopting this guidance.

ASU 2011-04, Amendments to Achieve Common Fair Value Measurement and Disclosure Requirements in U.S. GAAP and IFRS , amends requirements for measuring fair value and for disclosing information about fair value measurements. ASU 2011-04 clarifies how a principal market is determined, addresses the fair value measurement of instruments with offsetting market or counterparty credit risks and the concept of valuation premise and highest and best use and extends the prohibition on blockage factors to all three levels of the fair value hierarchy. Companies are required to disclose all transfers between Level 1 and Level 2 of the fair value hierarchy, whereas the previous rules only required the disclosure of significant transfers between those levels. For Level 3 fair value measurements, quantitative information about significant unobservable inputs used, a qualitative discussion about the sensitivity of the fair value measurement to changes in unobservable inputs and the interrelationship between inputs and a description of the Company’s valuation process should be disclosed. For financial instruments not measured at fair value but for which disclosure of fair value is required, companies are required to disclose the fair value hierarchy level in which the fair value measurements were determined. The amendments in this ASU are effective for interim and annual periods beginning on or after December 15, 2011. The Company is currently assessing the potential impact of adopting this guidance.

 

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BUSINESS

Overview

Description of Business and Company History

We are a 90-year-old diversified financial services company headquartered in Seattle, Washington, that has grown from a small mortgage bank to a full-service community bank serving consumers and businesses in the Pacific Northwest and Hawaii. Our banking strategy has allowed us to expand our lending activities while building stable core deposits and a more diversified core customer base that provides greater cross-selling opportunities. The Bank has the oldest continuous relationship of all Fannie Mae seller servicers in the nation, having been the second company approved by Fannie Mae at its founding in 1938.

Our primary subsidiaries are HomeStreet Bank and HomeStreet Capital Corporation. HomeStreet Bank is a Washington state-chartered savings bank that provides deposit and investment products and cash management services. The Bank also provides loans for single family homes, commercial real estate, construction, land development and commercial businesses. HomeStreet Capital Corporation, a Washington corporation, originates, sells and services multifamily mortgage loans under the Fannie Mae Delegated Underwriting and Servicing Program (“DUS”) in conjunction with HomeStreet Bank. We also provide insurance products and services for consumers and businesses as HomeStreet Insurance and loans for single family homes through a joint venture, Windermere Mortgage Services Series LLC (“WMS”). At March 31, 2011 and December 31, 2010, we had total assets of $2.34 billion and $2.49 billion, net loans held for investment of $1.50 billion and $1.54 billion, deposits of $2.07 billion and $2.13 billion and stockholders’ equity of $51.2 million and $58.8 million, respectively.

We have a network of 20 bank branches and nine stand-alone lending centers located in the Puget Sound, Olympia, Vancouver and Spokane regions of Washington, the Portland and Salem regions of Oregon, and the Hawaiian Islands of Oahu, Maui and Hawaii. Our bank branches have average deposits per branch of $106.5 million as of December 31, 2010. WMS provides point-of-sale loan origination services through 44 Windermere Real Estate offices in Washington and Oregon.

LOGO

 

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We operate four primary lines of business: Community Banking, Single Family Lending, Income Property Lending and Residential Construction Lending.

Community Banking . We provide diversified financial products and services to our consumer and business customers, including deposit products, investment products, insurance products, cash management services and consumer and business loans. In 1986 we established our bank to fund our lending activities and to offer a broader range of products and services to our customers. In 2000, we began offering commercial business loans as well as business deposit products and cash management services. We have expanded our bank branch network to 20 branches, primarily in the historically higher growth Puget Sound area. At March 31, 2011 and December 31, 2010, our core funding totaled $1.73 billion and $1.74 billion, respectively, and our business banking loan portfolio totaled $245.5 million and $259.3 million, respectively.

Single Family Lending . We originate and sell into the secondary market residential mortgage loans both directly and through our relationship with WMS. This segment also originates and services loans for our portfolio on a selective basis including home equity loans and lines of credit. Our single family lending business is one of our long-established strengths. We originate mortgages using secondary market standards, and the majority are sold to or securitized Fannie Mae, Freddie Mac or Ginnie Mae, while we retain the right to service these loans. A small percentage of the loans are brokered or sold on a servicing-released basis to correspondent lenders. This part of our business predates the creation of the FHA, Fannie Mae or Freddie Mac, and it has evolved with the many changes to the industry. During 2009 and 2010 we originated $2.73 billion and $2.07 billion, respectively, of single family loans and during the quarter ended March 31, 2011, we originated 276.9 million. At March 31, 2011 and December 31, 2010, our portfolio of single family loans serviced for others totaled $6.52 billion and $6.34 billion, respectively.

Income Property Lending . We originate commercial real estate loans with a focus on multifamily lending through our Fannie Mae DUS business. These loans are sold to or securitized by Fannie Mae and we generally continue to service those loans after the sale. At March 31, 2011 and December 31, 2010, we serviced $784.4 million and $776.7 million of loans, respectively, we originated through the Fannie Mae DUS program. We also originate commercial construction and land development loans, bridge loans and permanent loans for our own portfolio. Beginning in 2007, we substantially curtailed our portfolio loan origination, while continuing to originate loans under the Fannie Mae DUS program. Going forward, we plan to resume portfolio lending, but with a reduced concentration in commercial construction and land development lending.

Residential Construction Lending . We originate residential construction and land development loans primarily for our own portfolio. Beginning in 2007, we substantially curtailed new originations in order to reduce our concentration in this category. Going forward we plan to resume originating residential construction loans with a significantly reduced portfolio concentration and a focus on home construction as opposed to land development.

Recent Developments

As a result of the economic downturn, which began in mid-to-late 2007 and continued until June 2009, our business experienced a series of interrelated adverse events, the combination of which led to significant operating losses that diminished our capital and weakened our financial condition. During this period, home prices and the volume of home sales decreased significantly along with occupancy and rental rates on commercial real estate. Related declines in the value of residential and commercial real estate, especially residential land and finished lots, significantly impacted the economic viability of many of our borrowers’ construction projects and investments and reduced the value of our collateral. Our classified assets increased from $110.9 million at December 31, 2007 to a peak of $759.7 million at June 30, 2009 and nonperforming assets increased from $35.7 million at December 31, 2007 to their peak of $482.0 million at December 31, 2009.

Although our average interest-earning assets increased from $2.44 billion during 2007, to $3.06 billion during 2009, our average loans held for investment remained relatively constant over that period, increasing from

 

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$2.24 billion during 2007, to $2.31 billion during 2009. Additionally, due to rising levels of problem assets, nonperforming assets increased from $35.7 million at December 31, 2007, to $482.0 million at December 31, 2009. During this same period, we established and maintained a high level of liquidity and invested this liquidity in short-duration, low-yielding investments. At the same time, in response to the economic turmoil in the national economy, the Federal Reserve reduced the target interest rate for Federal Funds to its lowest level since 1955 and market interest rates including the prime rate and LIBOR decreased accordingly. Most of our loans are variable interest rate loans tied to these indexes. The impact of declining interest rates has been more significant than with our peer institutions as a result of the absence of interest rate floors on many of our loans. At December 31, 2007, $1.35 billion of our loans, or 54.8% of our total loans, did not have interest rate floors. This combination of circumstances led to a substantial decline in our net interest income, which declined from $90.0 million for the year ended December 31, 2007 to $75.9 million for 2008 and to $31.5 million for 2009.

As a result of the deterioration in our asset quality, operating performance and capital adequacy, on May 8, 2009, we entered into an agreement with HomeStreet Bank’s primary banking regulators, the Federal Deposit Insurance Corporation, or FDIC, and the Washington State Department of Financial Institutions, or DFI, pursuant to which we consented to the entry of an Order to Cease & Desist from certain allegedly unsafe and unsound banking practices. On May 18, 2009, we entered into a similar agreement with HomeStreet, Inc.’s primary regulator, the Office of Thrift Supervision, or OTS. Among other things, the Orders directed us to increase our capital to certain specified levels, improve management, reduce classified assets and improve earnings. The Orders are described in more detail under “Regulation and Supervision — Cease and Desist Orders.”

Pursuant to the Company Order, the Company has agreed, among other things, to refrain from engaging in all unsafe and unsound practices that have resulted in the Company’s low earnings and inadequate capital. The Company Order does not contain specific minimum capital ratios or asset quality measures.

Pursuant to the Bank Order, the Bank was directed, among other things, to have and maintain a Tier 1 capital ratio that equals or exceeds 10% and a total risk-based capital ratio that equals or exceeds 12% by October 5, 2009, as well as to develop and adopt a plan to reduce the Bank’s exposure to adversely classified assets.

The Bank has not yet satisfied the capital ratios mandated by the Bank Order. This offering is intended to help us satisfy these requirements. As of March 31, 2011, the minimum amount of additional capital necessary to satisfy the capital ratio requirements of the Bank Order was $132.2 million.

While we have formulated a plan for the Bank to reduce loans classified as “substandard” or “doubtful” as of December 31, 2008, to which the FDIC and DFI issued a letter of nonobjection, the Bank did not achieve the target reduction of classified assets to 40.0% of Tier 1 capital plus allowance for loan losses by February 28, 2010, primarily due to lower than projected capital. As of February 28, 2010 that ratio was 91.6%. As of March 31, 2011, our ratio of remaining substandard and doubtful assets was 45.1% of Tier 1 capital plus allowance for loan losses.

The Bank has taken several other actions to comply with the requirements of the Bank Order including:

 

   

retained a new Chief Executive Officer and other senior management who possess the qualifications, experience and proven ability to manage a bank of comparable size and experience in upgrading a low quality loan portfolio, raising capital and improving earnings;

 

   

enhanced the infrastructure for the Bank’s credit administration functions; and

 

   

implemented revised lending, loan concentration and collection policies and procedures.

Similarly, HomeStreet, Inc., is not in compliance with the Company Order’s requirement to increase capital. But for the exceptions noted above, we believe that we are in compliance in all material respects with the Orders.

 

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We have reviewed with our regulators the parameters of this offering and the proposed accelerated asset resolution plan, or “AARP,” discussed under “— Turnaround Plan” below) including pro forma capital ratios and asset quality measures. Based on those discussions, we believe the actions taken to date, together with the successful completion of this offering and the subsequent contribution of $150.0 million of the proceeds to the Bank, followed by the implementation of the AARP, will satisfy the requirements of the Orders. We expect to continue to incur operating losses in the near term, but if we incur higher than anticipated operating losses or experience further deterioration in asset quality, the proceeds of the offering and the results of the AARP may not be sufficient to satisfy the capital ratio and asset quality requirements of the Orders. There can be no assurance that our turnaround plan will be successful.

The Orders and material actions taken to date are described in more detail under “Regulation and Supervision — Cease and Desist Orders.”

Management Changes

In light of the then-prevailing economic conditions confronting our organization and to acquire bank turnaround and capital raising experience, the boards of directors of the Company and the Bank recruited and retained a management team that has proven expertise in raising capital and in turning around troubled financial institutions. Beginning in late 2009, additional executives were added: Mark Mason, our Chief Executive Officer, David Hooston, our Chief Financial Officer, Jay Iseman, our Chief Credit Officer and Godfrey Evans, our General Counsel and Chief Administrative Officer. These executives immediately began to implement a plan to reduce our credit risk and associated loan loss provisions, increase loan yields, maintain liquidity, restructure our high-cost deposit and funding structure, reduce operating costs, raise capital, and maintain our relationships with our federal and state banking regulators. See “Management — Executive Officers.”

Turnaround Plan

Under the leadership of our new management team, we have implemented a plan to stabilize and turn around the institution. The principal elements of this plan are to improve asset quality and upgrade our credit culture, restructure the balance sheet and improve core earnings, control non-interest expense, maintain satisfactory regulatory relations and recapitalize the Company.

Improve Asset Quality and Upgrade Credit Culture

We have addressed the risks that contributed to the deterioration in our asset quality and earnings, including reducing and limiting loan concentrations in higher risk loan types and market segments where we have continuing concerns about deterioration in collateral values. Since 2007, we have dramatically curtailed most types of lending in response to deteriorating economic conditions and to preserve our regulatory capital ratios. We have also implemented or are implementing a number of additional measures aimed at improving our asset quality, including:

 

   

Aggressively managing troubled loans . Where appropriate, we have restructured loans to improve our position, including negotiating principal reductions and additional collateral; aggressively collected on

  loans and guaranties; and obtained and enforced writs of attachment on bank accounts and personal property when necessary. Where restructuring has proven impossible or impracticable, we have negotiated deeds in lieu of foreclosure or have foreclosed on real property.

 

   

Actively marketing and selling other real estate owned (“OREO”) . We have actively marketed and sold OREO to end users, such as developers and investors, who make direct and immediate use of such properties. We have generally avoided selling to financial buyers or other intermediaries who typically hold properties for a limited period of time and who do not generally improve or add value to the properties.

 

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Restructured our credit administration and approval infrastructure . We restructured our credit administration infrastructure to create more oversight at the board level and to better manage our loan approval process and credit exposure. We hired a Chief Credit Officer and centralized all credit approval, administration and portfolio monitoring functions under his authority. We also established a special assets department of our credit administration group to manage troubled loans and OREO. In addition, we hired an internal loan review officer who reports to the Bank board’s credit committee.

 

   

Upgraded our underwriting policies and procedures . We revised our lending policies and procedures to reflect more conservative underwriting standards, such as lower loan-to-value ratios, increased cash equity requirements and debt service coverage, lower maximum loan sizes, more restrictive financial covenants, including total debt, leverage and minimum cash flow, minimum net worth, liquidity and experience requirements, lower loan-to-one borrower limits, global financial reviews of borrowers and their credit histories and use of inter-creditor agreements when appropriate.

Balance Sheet Restructuring and Core Earnings Improvement

Our net interest margin had been negatively affected by variable rate loans originated without interest rate floors. To improve our net interest margin, management has instituted interest rate floors upon the renewal, restructuring or origination of loans. Between September 30, 2009, and March 31, 2011, loans without interest rate floors have decreased by $789.0 million, or 78.2%.

Historically, we had funded a portion of our asset growth by using FHLB borrowing facilities. To address potential liquidity risks related to the economic crisis, we had increased our reliance on FHLB borrowings and also used brokered deposits starting in late 2007 through 2009 to boost liquidity and provide coverage for potential deposit withdrawals. This increased liquidity was invested in short-term, highly liquid investment securities or carried as cash and cash equivalents, preparing us to react quickly to potential changes in the risk environment. While this strategy provided funding to address the liquidity concerns of regulators and depositors, it also had an adverse impact on our net interest income and net interest margin.

As the banking system began to stabilize in early 2010, we began moving to a more normalized liquidity management and investment strategy, reducing non-core deposits and wholesale funding while retaining and increasing core deposit balances and customers. In the second quarter of 2010 we sold $406.0 million of investment securities (predominately U.S. Treasury securities and Ginnie Mae backed collateralized mortgage obligations), resulting in a $5.7 million gain. We used the proceeds from this transaction to pay down $390.7 million of FHLB borrowings, resulting in prepayment penalties of $5.5 million. We replaced an additional $121.3 million of FHLB borrowings that matured during 2010 with retail deposits. Management moderately lengthened the duration of the remaining investment securities portfolio such that current liquidity investments produce a positive net interest margin. Between September 30, 2009, and March 31, 2011, FHLB advances and brokered deposits have decreased from $1.01 billion to $124.5 million. This noncore funding has been generally replaced with retail deposits or retired with proceeds from the sales of investment securities.

The composition of our deposit portfolio continues to improve. We have changed our certificate of deposit interest rate strategy to position ourselves as neither the highest nor the lowest rate in our markets and to also provide our bank branch managers with the ability to negotiate limited rate exceptions on new certificates of deposit to reward those customers who currently have or bring their primary checking account to the Bank. Additionally, we have initiated a marketing strategy to attract new consumer checking account relationships through cash payments available to new customers for the use of certain services such as direct deposit. Through this strategy we are attracting and retaining relationship-based customers and eliminating rate-sensitive time deposit customers, which has the dual effect of creating a more stable funding base that is representative of a relationship-based institution and returning us to a more normalized liquidity profile. Our ability to reduce excess liquidity has been dependent on our ability to reduce deposits. The results of our strategy to increase core deposit relationships while encouraging the outflow of non-core deposit relationships through lower interest rates on

 

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certificates of deposit has been effective. Between September 30, 2009 and March 31, 2011, core deposits (checking, savings and certificates of deposits with balances less than $250,000) have increased from 72.0% of total deposits to 83.8% of total deposits.

As a result of the actions we have taken, our net interest margin has increased from 0.85% for the quarter ended September 30, 2009 to 2.17% for the quarter ended March 31, 2011.

Control Noninterest Expense

We have experienced, and we expect in the near term to continue to experience, higher than normal noninterest expense associated with loan resolution activities, dispositions of OREO, increased deposit insurance costs and costs associated with compliance with the Orders. However, during this time we have reduced other core banking compensation and general and administrative expenses by streamlining operations and reducing unnecessary staff, freezing salaries, suspending our 401(k) plan employer match from July 2009 to July 2010 and reducing travel and entertainment budgets. Going forward, we plan to manage future changes in all noninterest expense categories based on changes in revenue growth, reductions in problem assets and removal of the Orders. Upon satisfaction and removal of the Orders, we anticipate lower regulatory-related expenses, deposit insurance assessments, professional fees, and time devoted by management and staff to compliance with the Orders.

Maintain Satisfactory Regulatory Relations

Maintaining the confidence of our regulators is an integral part of our turnaround plan. Beginning in the fourth quarter of 2009, management initiated monthly conference calls with our regulators to present and discuss progress on management changes, problem asset reduction, capital adequacy, interest rate risk, liquidity maintenance, funding restructuring and earnings. These meetings have produced transparency in our relationship with our regulators and have facilitated current reporting of the status of management’s turnaround plan.

In order to maintain satisfactory regulatory capital ratios, we have to the extent practicable, reduced total assets. Our Tier 1 leverage capital and Tier 1 risk-based capital ratios stood at 4.5% and 8.3%, respectively, at March 31, 2011, as compared to 4.5% and 8.2% at December 31, 2010, 4.5% and 8.5% at December 31, 2009, and 8.7% and 11.8% at December 31, 2008. This offering reflects one of management’s primary initiatives to strengthen our regulatory capital. We expect to be able to satisfy the requirements of the Orders if this offering and our continuing efforts to reduce our problem assets are successful. We have reviewed with our regulators the parameters of this offering, including the pro forma capital ratios and asset quality measures. Based on those discussions, absent material deterioration in other parts of our business, we believe the completion of this offering will qualify us for termination of the Orders.

Recapitalize the Company

Capital

Upon the successful completion of this offering and after contributing $150.0 million of the net proceeds to the Bank, we expect to have the capital necessary to meet the requirements of the Orders, address our remaining asset quality issues, and be positioned to take advantage of what we believe are substantial business opportunities in our target markets. The Bank is required by the Bank Order to maintain a Tier 1 Capital ratio of at least 10% and a risk-based capital ratio of at least 12%. Our pro forma capital ratios will be in excess of the minimum levels to be considered “well capitalized” by our regulators. The table below presents the Bank’s Tier 1 leverage and total risk-based capital ratios, as of March 31, 2011, both actual and on a pro forma basis giving effect to the anticipated contribution in the Bank of $150.0 million from the proceeds of this offering, as well as the Company’s consolidated pro forma capital ratios reflecting the condition of both the Bank and the Company after giving effect to such events, but without giving effect to the accelerated asset reduction plan described below. It also compares our ratios to the median ratios of peer banks in the Pacific Northwest with assets greater than or equal to $1.0 billion.

 

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     Bank
Actual
    Pro Forma
Bank(1)
    Peer
Median
    Well
Capitalized
 

Tier 1 Leverage Capital Ratio

     4.5     10.7     11.0     5.0

Total Risk-Based Capital Ratio

     8.3     19.5     18.3     10.0

 

(1) Reflects an anticipated contribution to the Bank of $150.0 million from the proceeds of this offering. Actual contribution will be based upon management’s assessment of the amounts needed to comply with the capital adequacy provisions of the Bank Order.

Third Party Loan Review

In preparation for this offering and to provide an independent assessment of the adequacy of our allowance for loan losses, confirm the accuracy and timeliness of our asset classifications, and assess the accuracy of management’s carrying values of our loan portfolio and OREO, we retained Unicon Financial Services, Inc., an independent third party loan review consultant. Based upon its review, the scope of which is described below, Unicon reported that management’s allowance for loan losses as of March 31, 2011, and without giving effect to subsequent events, was adequate; that our current risk rating system was reasonable and accurately reflected the significant risks associated with individual credits; and the carrying values of our loans and OREO were materially correct.

Commercial Loan and Commercial Real Estate Loan Portfolios . Unicon conducted detailed reviews of selected commercial and commercial real estate loans and of all OREO, as well as a macroanalysis of the two homogenous portfolios (single family residential loans and home equity lines of credit). In the commercial and commercial real estate “pass” loan portfolio, Unicon sampled 100% of the loans with funded amounts and unfunded loan commitments greater than $2.5 million; 40% of loans of $1.0 million to $2.5 million, 15% of loans of $0.5 million to $1.0 million, and a sample of loans with balances of less than $0.5 million. Of the loans internally graded special mention, substandard or doubtful, Unicon sampled all loans with funded amounts and unfunded loan commitments greater than $1.0 million; 50% of the loans of $0.5 million to $1.0 million, and a sample of loans less than $0.5 million. Unicon also sampled loans with balances greater than $250,000 that were past due or on nonaccrual status. Unicon also sampled the remainder of the portfolio including new and renewed loans originated in the last 12 months, restructured loans, loans with approved loan policy exceptions, construction loans, asset based lending facilities and other loans whose terms may give rise to elevated risk. Overall, Unicon reviewed 372 commercial and commercial real estate loans totaling $905 million in loan commitments (funded amounts are from funded loan amounts) which represents approximately 80.0% of the total loans in the commercial and commercial real estate loan portfolio as of March 31, 2011.

Single Family Residential Loans and Home Equity Lines of Credit . Unicon conducted a macroanalysis of the entire single family residential loan and home equity line of credit portfolios. The total loan commitments for these two portfolios (funded amounts are from funded loan amounts) were $729 million. Unicon reviewed the Bank’s statistical analysis and the raw data to develop their view of these loans.

OREO. Unicon conducted a detailed review of the Bank’s carrying value of the OREO portfolio. Unicon’s sample included 100% of the OREO with a book balance of $300,000 or more. In total, Unicon reviewed 62 OREO properties with a total book balance of $92 million, which represented 86% of the Bank’s total OREO portfolio at March 31, 2011. Unicon reviewed each OREO property to determine if the Bank’s carrying value was accurate and complied with regulatory guidelines.

With respect to the allowance for loan losses, Unicon concluded that the allowance for loan losses was adequate as of March 31, 2011. Unicon found that the amount of allowance for loan losses was adequate to absorb losses inherent in our portfolio of loans held for investment based on the information currently available to Bank management. In reaching its conclusions, Unicon considered the results of its risk rating review and the bank regulatory agencies’ policy statements on factors to be used to determine the appropriate level for the allowance for loan losses.

 

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Unicon reviewed the adequacy of management’s forward-looking assessment of the Bank’s loan portfolio over the next 12 months. In reviewing that assessment, Unicon reported that management’s evaluation was reasonable. In the course of their review Unicon applied assumptions over a range of scenarios that could have potential adverse effects on the loan portfolio including assumptions about borrowers’ ability to repay, potential liquidation values that could be achieved and the economy. This forward-looking assessment, according to Unicon, took a more aggressive approach than required by applicable regulatory guidance or the Bank’s policy for establishing the amount of the allowance for loan losses.

Unicon assessed the accuracy of the management’s risk rating system for the Bank’s loans. Unicon determined that management’s current risk rating system was reasonable and accurately reflected the significant risks associated with individual credits. Unicon agreed with management’s ratings for individual loans and any grading differences noted during their review were insignificant and were not considered material. In the course of assessing credit quality, Unicon considered the underwriting of each commercial and commercial real estate credit, as well as the borrower’s financial capacity based on the available financial information, payment performance and estimated collateral values.

Unicon found that collateral values used in establishing the Bank’s reserves for impaired, collateral dependent real estate loans were materially correct. In reaching this conclusion, Unicon considered the likelihood that the borrowers would be able to meet their contractual obligations and repay both the principal and interest. In addition, Unicon’s review of the carrying values of the Bank’s OREO revealed no material discrepancies.

Unicon reviewed the reasonableness of management’s assessment of the recoverability of its loans. Unicon found that on an overall basis, management’s assessments regarding the potential recovery of the loans to be reasonable and supported by sufficient documented analysis. Unicon’s conclusions were based on various documents in the Bank’s files including problem loan reports as well as interviews with management regarding the assessment of troubled loans along with their collection strategies.

Unicon was not engaged to verify borrower information provided and was not in position to assess the Bank’s loan files and loan portfolios for bank fraud. Unicon’s findings and views are based on review of the Bank’s records and discussions with management, which Unicon assumed to be accurate and reliable. Unicon’s findings are subject to changes in the condition and operations of the Bank, and as such, future changes may affect Unicon’s conclusions. Factors that could alter Unicon’s conclusions include: changes in management, changes in management’s collection strategies, changes in the allowance methodology, changes in the economy, new regulatory requirements and/or potential actions or inactions. Unicon stated that reliance on their report should diminish with the passage of time.

Accelerated Asset Resolution Plan

An important component of our turnaround plan is to accelerate the reduction of credit and market risk in our loan and OREO portfolios. By accelerating the resolution of problem assets, we believe that we can more quickly return to normalized profitability and provide greater certainty as to the cost and timing of resolving problem assets. Additionally, the accelerated asset resolution plan, which we refer to as the AARP, is intended to reduce management resources devoted to problem asset resolution, allow management to focus on executing our business plan, and accelerate reductions of direct and indirect costs of credit administration, problem asset management and regulatory compliance. These objectives are consistent with the requirements contained in the Orders, which require that the Bank reduce its risk exposure in adversely classified assets.

Contingent upon the successful completion of this offering, we expect to implement the AARP to divest a pool of problem assets valued at $                 million as of March 31, 2011. This pool of assets, which we refer to as the AARP Pool, consists of selected classified loans, as well as all of our OREO except for properties already subject to sale agreements that we believe will close at agreed-upon prices, and except for foreclosed single-family homes, which we excluded because we have historically sold those OREO properties at fair value in a relatively short period of time after foreclosure and control of the properties. We would dispose of these assets by

 

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employing a variety of alternative methods and strategies for collection, default management, and loan and asset disposition. The AARP contemplates an acceleration in estimated timing of resolution of the AARP Pool assets that we expect would result from a change in recovery methods from those which we use in the ordinary course of business. The accelerated resolution methods and strategies may include:

 

   

Restructuring loans to include partial forgiveness of principal and/or interest, adjustment of interest rates (which may be adjusted to below market rates) or lengthening of loan terms. Most, if not all, of these loan restructurings will result in such loans being designated and accounted for as troubled debt restructurings.

 

   

Sales of individual loans or pools of loans to unrelated third parties.

 

   

Accelerated collection activities including short sales, short payoffs, deeds in lieu of foreclosure and guarantor settlements resulting in losses which are anticipated to be higher than losses based on collection in the normal course of business.

 

   

Sales of OREO properties at discounts to appraised fair values designed to accelerate the timing of sales.

These methods and strategies are outside of our normal collection, default management and asset resolution process and by their nature will expedite the resolution of the AARP Pool of assets, but we also expect to incur increased losses by causing us to recognize more substantial valuation allowances than we might take in the ordinary course of business. The AARP calls for us to resolve all AARP assets in a 90- to 180-day period following the completion of this offering.

AARP Pool Selection Process : To identify problem assets that might be included in the AARP Pool, we considered all classified assets as of March 31, 2011, and selected individual assets for possible inclusion in the AARP Pool based upon the following criteria: (i) impaired loans that we believe will not qualify for upgrading to an unimpaired, non-classified status in the near term; and (ii) all OREO except those properties subject to sales agreements that we believe will close at agreed upon prices and foreclosed single family homes. We excluded foreclosed single family homes from the AARP Pool as we have historically sold these OREO properties at fair value in a relatively short period of time after foreclosure and control of the properties. The AARP Pool as of March 31, 2011 and the pro forma impact on classified assets as of March 31, 2011, are as follows:

 

     March 31, 2011
Classified
Assets
     AARP
Pool
     Pro Forma
Classified
Assets Post
Resolution of
AARP Pool
Assets
 

LOANS

        

Single family

   $ 14,732       $                    $                

Commercial real estate

     48,877         

Multifamily residential

     8,093         

Construction/land development

     116,144         

Commercial business

     8,930         

Home equity

     3,103         
                          
   $ 199,879       $         $     
                          

OREO

        

Single family

   $ 14,897       $         $     

Commercial real estate

     8,045         

Multifamily residential

             

Construction/land development

     75,688         

Commercial business

             

Home equity

     233         
                          
   $ 98,863       $         $     
                          

Total

   $ 298,742       $         $     
                          

 

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AARP Valuation Charges : Contingent upon the successful completion of the offering, and as a consequence of adoption of the AARP, we estimate that loan and OREO portfolio valuation charges totaling $                 million would be recorded for the AARP Pool assets shown above, of which $                 million would be recorded as additional loan loss provisions and $                 million would be recorded as OREO valuation losses.

For the AARP Pool loans shown above, the AARP Pool valuation charges and existing asset-specific reserves would represent                  % of the net carrying value of those loans as of March 31, 2011. AARP Pool OREO charges represent                  % of the net carrying value of those properties as of that date. These valuation charges are intended to represent our estimated additional losses that we would expect to recognize as a consequence of adopting and executing the AARP, and reflect amounts that we believe would be realized by us in selling or otherwise resolving these loans as of March 31, 2011. Our estimates of losses under the AARP do not impact our current carrying values because the AARP loss estimates are based on valuation methodologies that assume significant concessions which would not be granted unless and until the AARP is adopted. The actual AARP Pool, and losses to be recognized to resolve these assets, will differ from our estimates, which were calculated utilizing the methodologies described below. The final pool of assets and the actual charges recognized will depend on many factors including the final size of the AARP pool at the date of adoption of the AARP. Assets identified for inclusion in the AARP Pool may change prior to execution of the AARP, as we will continue to manage these assets in the ordinary course of business, and some AARP Pool assets will be resolved in the normal course prior to adoption of the AARP. Additionally, in the ordinary course of resolving problem assets, we may incur some of the losses that we expect to recognize upon adoption of the AARP. However, we cannot provide assurances that the additional valuation adjustments recorded upon adoption of the AARP will be sufficient to absorb all losses that be inherent in the AARP assets, or that additional valuation adjustments will not be necessary during the implementation of the AARP.

AARP Pool Asset Recovery Valuation : To estimate the potential resolution values of AARP Pool assets we used one or more of the following valuation methodologies:

 

   

offers received to purchase certain AARP Pool assets at less than appraised market value;

 

   

higher capitalization rates for income property consistent with comparable distressed property sales and investor survey parameters reflecting longer holding periods;

 

   

higher cash flow discount rate assumptions consistent with comparable sales of distressed projects and investor survey parameters reflecting longer holding periods;

 

   

comparable sales values of distressed assets;

 

   

borrower or guarantor settlement offers received on individual loans; and

 

   

estimated additional loss on contracted sales subject to closing contingencies.

All of the above valuation approaches and methodologies reflect the application of higher return requirements for investors in liquidation or distressed real estate sales. Such return requirements are necessarily higher than those of end users for transactions in the normal course due to the higher risks associated with limited due diligence, distressed nature of properties or markets and longer holding periods.

In estimating the recovery values of AARP Pool loans, we excluded any potential recoveries or contributions from loan guarantors. As such, the resulting valuations are estimates of the real estate collateral only. We also did not include the tax benefit we believe will result from the implementation of the AARP. We currently estimate that the operating losses that will be triggered by implementing the AARP will generate tax benefits amounting to approximately $                 million, the ultimate value of which will depend, among other things, on our ability to generate future taxable income against which such accumulated losses may be offset.

 

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Asset Quality Measures

The pro forma impacts of the AARP on certain HomeStreet Bank financial metrics are reflected in the table below, including actual results as of March 31, 2011, and on a pro forma basis giving effect to the completion of this offering and the adoption of the AARP, and on a pro forma basis giving effect to the completion of this offering and the completion of the AARP, in each case assuming the completion of such events as of March 31, 2011:

 

     HomeStreet
Bank

March 31,  2011
    Pro forma upon
Completion of
the Offering
and Adoption
of AARP
    Pro forma Post
Closing of the
Offering and Completion
of AARP
 

Classified Assets/Total Assets

     12.8                                  

Classified Assets/Tier 1 Capital Plus Allowance for Loan Losses

     175.9                                  

Nonperforming Assets/Total Assets

     9.6                                  

Nonperforming Assets/Tier 1 Capital Plus Allowance for Loan Losses

     131.3                                  

Allowance for Loan Losses/Nonperforming Loans

     50.1                                  

Classified Assets

   $ 298,741      $        $     

Nonperforming Assets

     222,981       

Total Assets

     2,324,831       

Tier 1 Capital

     107,664       

Allowance for Loan Losses

   $ 62,156      $        $     

The AARP does not represent a change in our view of our overall credit risk profile or the specific credit risk inherent in AARP Pool loans. The AARP will be adopted only upon the successful closing of the offering. Absent a successful closing of the offering, we will continue to resolve problem loans and sell OREO using the methods and strategies in the normal course as we have historically done. The estimated recovery values of the AARP Pool assets which were used to estimate the AARP valuation charges are not market value appraisals of individual loan collateral or OREO properties. While we believe the assumptions used to estimate the recovery values of the AARP Pool assets to be reasonable, such assumptions are inherently judgmental and our estimates are subject to greater variability than in the normal course. Had we used different assumptions, materially different valuation estimates may have resulted. Additionally, if we used different methods and strategies for resolution of AARP Pool assets, materially different recovery values may have been estimated. There can be no assurance that the AARP valuation charges will be sufficient to provide for the additional resolution losses actually realized as a consequence of executing the AARP or that additional loan or OREO loss provisions will not be required in the future.

As illustrated below, we believe our turnaround plan is dramatically reducing our credit risk and improving our financial condition and results of operations.

 

     Quarter Ended  
     $ Thousands  
     31-Mar-11     31-Dec-10     30-Sep-09  

Total Construction Loans

   $ 271,676      $ 285,131      $ 733,394   

Provision for Loan Losses

            8,200        35,555   

Classified Assets

     298,741        363,947        737,925   

Nonperforming Loans

     124,118        113,210        388,663   

OREO

     98,863        170,455        63,321   

Nonperforming Assets

     222,981        283,665        451,984   

Total Delinquencies and Nonaccruing Loans

     188,013        178,286        495,168   

Total Assets

     2,342,639        2,485,697        3,224,464   

Net Interest Margin

     2.17     2.34     0.85

Nonperforming Assets/Total Assets

     9.5     11.4 %     14.0 %

Nonperforming Loans/Loans

     7.94     7.06     17.7

Total Delinquencies and Nonaccruing Loans /Loans

     12.0     11.1     22.6

 

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Our Growth Strategy

Integrated Consumer and Business Financial Services Delivery Strategy

Our Community Banking strategy involves the development of an integrated consumer and business financial services delivery platform. We seek to meet the financial services needs of our consumer and business customers by providing targeted banking products, investment advice and products, and insurance products through our bank branches and through dedicated investment advisors, insurance agents and business banking officers. We have historically offered a limited line of investment, cash management and insurance products. We are currently in the process of significantly enhancing and expanding our products and services by:

 

   

expanding our investment product offerings through a third-party broker dealer, building a staff of dedicated investment advisors and sales representatives and licensing additional qualified branch personnel for annuity sales;

 

   

providing a comprehensive investment product offering that includes mutual funds, annuities and individual securities;

 

   

providing comprehensive succession planning, estate planning and financial planning to individuals and business owners using a third-party financial services company;

 

   

enhancing our business cash management service offerings and building a team of business cash management sales and support personnel; and

 

   

expanding our insurance product offerings and integrating sales of these products into our consumer and business financial advisory activities.

Expand Core Deposit Base

We plan to grow our bank branch core deposit base through limited media advertising, effective deposit product design, consumer account cash incentives, cash referral bonuses and relationship incentives. For example, we promote special usage-based offers to reward consumers for opening their primary checking account at HomeStreet Bank. We also have enhanced our deposit interest rate strategy so that our rates are neither the highest nor the lowest in the market, and we promote rate incentives for customers who have more than just certificates of deposit with us. We expect this strategy to help us attract and retain customers who are less rate-sensitive and more relationship-oriented.

Our growth strategy will be limited by our regulatory status, which generally would preclude consent from the FDIC and the DFI in order to open new bank deposit branches. However, once the Orders are lifted we intend to expand our bank branch network to support core deposit growth and expand our consumer and business financial services customer base as well as to increase access to our services and products for our current customers. In the near term, we will concentrate this growth in the Puget Sound area to create greater branch density. Longer term, we intend to increase our bank branch density in all of our current markets. We may also open additional stand-alone loan production offices to support our mortgage and business banking activities.

We also intend to grow our core deposits by increasing business deposits from local businesses near our branches and from our existing business banking clients. To attract new business customers, we offer money market and business savings accounts as well as a competitive array of cash management products including business online banking, automated clearing house, wire transfer, remote deposit capture and courier and merchant card services.

 

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Business Banking Growth

During our turnaround, we have focused on retaining our existing customers and developing new deposit-oriented customer relationships. As the economy improves, we believe we will be well positioned to attract new middle market business customers requiring commercial business and owner-occupied real estate loans. The number of competitors for middle-market business customers has decreased in recent years due to bank failures and consolidations. In recent years national banks have focused on larger customers in order to achieve economies of scale in lending and depository relationships and have also consolidated business banking operations and support, and reduced service levels in the Pacific Northwest. Additionally, high levels of problem loans at many local banks combined with low levels of capital have significantly impaired reduced competitors’ capacity to make new loans.

New loan demand is generally weak because of the economic downturn, resulting in increased competition for good customers in spite of industry consolidation. However, as the economy improves and new loan demand increases we believe our community banking focus will distinguish us from our competitors, because we are able to offer quicker, local decision making and provide customers with direct access to our senior managers. At the same time, our larger capital base and broader offering of products and services enables us to compete effectively against smaller banks. As a result, we believe we have a substantial opportunity to attract additional borrowers and depositors and expand our presence and market share, especially in the high-growth Puget Sound area.

Single Family Mortgage Origination and Servicing Portfolio Growth

During the real estate boom of 2004 to 2007 we maintained our historical focus on originating conforming conventional and FHA and VA loans for sale in the secondary market while supplementing those products with some portfolio lending. Our adherence to traditional credit standards limited our loan originations during the peak of the expansion of the subprime and option adjustable rate mortgage lending boom, and we lost market share to competitors during this time. However, our conventional mortgage banking expertise positioned us to expand our originations when market conditions changed as a result of the tightening in lending standards and the market’s reliance on government sponsored entities and agencies for secondary market liquidity, and we believe that our high quality standards for lending documentation has limited our exposure to some of the difficulties in enforcing foreclosures that have faced other mortgage lenders. As a result, we have grown our single family origination and servicing business substantially since 2007. We originated $1.43 billion, $1.53 billion, $1.45 billion and $1.57 billion in home loans in 2004, 2005, 2006 and 2007, respectively, followed by $1.74 billion, $2.73 billion, and $2.07 billion in 2008, 2009, and 2010, respectively. For the three months ended March 31, 2011, we originated $276.9 million. At December 31, 2008, 2009 and 2010 our portfolio of single family residential loans serviced for others stood at $4.70 billion, $5.82 billion, and $6.34 billion, respectively, and was $6.52 billion at March 31, 2011.

The Obama Administration and Congress have offered several proposals for reducing the role of the federal government in housing finance, including the eventual unwinding of Fannie Mae and Freddie Mac. These proposals are intended to protect taxpayers from risk and to attract private capital to home financing. We are following these proposals very closely, and we plan to adapt to the changes and seize opportunities to lend and sell into the secondary market as it evolves beyond its over-reliance on government guaranteed lending.

The loan quality of our single family mortgage originations has historically been better than the averages for government sponsored entity investors to whom we sell loans and who insure our loans. Our two largest relationships are with Fannie Mae and with HUD/FHA. As of January 2011, our Fannie Mae single family serious delinquency rate (loans over 90 days delinquent) was 1.0%, compared with Fannie Mae’s serious delinquency rate of 3.4% on their book of non-credit enhanced loans. Our FHA Compare Ratio as of December 2010 was 60.0%, which means our serious delinquency plus claims rate was 60.0% of FHA’s average.

We have taken advantage of market dislocations since mid-2007 to add many new loan originators, and we plan to continue to grow our single family mortgage banking business in the near term by adding experienced

 

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loan originators and managers and opening additional branch offices in our current markets. We also continue to add offices and loan originators to WMS. We have been able to leverage these additional originators, along with our reputation for high quality service and reliable loan closing, to increase our market share significantly over the last three years. In that regard, we have added underwriting, processing and funding capacity to support this growth in loan volume.

We intend to continue focusing on conventional conforming single family mortgage banking and use portfolio lending to complement, but not replace, secondary market lending, particularly for well qualified borrowers with loan sizes greater than the conventional conforming limits. In addition, we plan to open a correspondent lending channel to purchase loans originated by credit unions and small community banks, and we are exploring strategies to increase our Internet lending.

Multifamily Mortgage Banking Growth

We plan to grow our multifamily mortgage banking business, particularly through our Fannie Mae DUS origination and servicing relationships. We plan to expand beyond our current markets by forming strategic alliances with producers and underwriters in the Western Region of the United States.

We intend to expand our multifamily residential mortgage lending business by targeting strong apartment markets and experienced borrowers with whom we have had prior working relationships. We expect to continue to benefit from being one of only approximately 25 companies nationally that has Fannie Mae DUS selling and servicing approval. The Fannie Mae DUS program has become a key multifamily funding source nationally, due to the turmoil in the financial services industry and the resulting loss of other financing sources. We have historically supported our DUS program by providing short-term bridge loans to experienced borrowers who purchase apartment buildings for renovation, which we then seek to replace with permanent takeout financing through the Fannie Mae DUS program upon completion of the renovations. As market conditions warrant, we also may originate permanent loans and construction loans. Historically, our Fannie Mae multifamily DUS loan portfolio has had strong credit quality. Since we began originating Fannie Mae DUS loans in 1988 we have never experienced a material delinquency or credit loss, nor have we been required to buy back any loans.

Strategic Acquisitions

The economic downturn and related banking crisis have led to increased regulatory and compliance burdens, management fatigue and limited access to capital. As a result, we anticipate there will be opportunities to acquire small institutions in the Pacific Northwest that would enhance our franchise and complement our branch network. Following this recapitalization we may consider such strategic opportunities to acquire other institutions or branches. We may need to raise more equity or additional capital to implement this strategy.

Competitive Strengths

The Bank has a number of competitive strengths and advantages that position the institution for continued growth.

Established and Well-Respected Seattle-based Franchise

Through our 90-year history, we have developed a highly skilled, dedicated workforce who understand our business and have long-standing relationships with our customers. Furthermore, we have a strong tradition of involvement in our communities, and promote management participation in charitable, civic and social organizations that we believe enhance the visibility of the HomeStreet brand in each of our communities. We have developed a footprint in the Pacific Northwest, that includes the highly attractive Puget Sound region in Washington and the greater Portland region in Oregon, as well as selected markets in Hawaii. We are a leading

 

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mortgage originator in the markets we serve. For example, according to MortgageDataWeb , www.mortgagedataweb.com, in the Seattle area we had a conventional and government market share ranking of #8 and #6, respectively, in 2010.

Experienced and Talented Management Team

We have assembled an executive management team that possesses significant depth of knowledge and expertise in bank turnaround situations and in operating and growing community banks. Additionally, the Bank has significant depth and experience in its senior management ranks. The five senior managers in our lending units average 33 years of industry experience and average 25 years with the Bank. In our mortgage banking units, each of the managers has built strong working relationships with our investor partners, particularly Fannie Mae. Three managers currently serve on four of Fannie Mae’s primary advisory boards/councils. Our Retail Banking Director has 32 years of industry experience, including 26 years with the Bank. Our Chief Credit Officer, Risk & Regulatory Oversight Director, and Treasurer have an average of 24 years of industry experience and 11 years on average with the Bank.

Disciplined Underwriting and Credit Culture

Since 2008, we have made significant modifications to our credit policies and procedures designed to foster disciplined underwriting practices and create a strong credit culture. Our Chief Executive Officer has significant credit management experience, and we bolstered our added credit and underwriting expertise at the board and management levels. We have restructured our credit administration infrastructure to create more oversight at the board level and to better manage our loan approval process and credit exposure and centralized all credit approval, administration and portfolio monitoring functions under the authority of our Chief Credit Officer. We also revised our lending policies and procedures to reflect more conservative underwriting standards, such as lower loan-to-value ratios, and increased cash equity and debt service coverage requirements.

Significant Sources of Noninterest Income

Our noninterest income is substantially higher than traditional banks.

 

   

Highly Profitable Single Family Mortgage Origination and Servicing Business .    Throughout the economic downturn, our mortgage origination and servicing business has provided us with a continuing source of profitability and internal capital generation. In 2009, we generated higher relative retail origination revenue per loan (338 basis points) compared to a peer group of regional banks and exceeded the average for independent and large lenders participating in a study conducted by MBA/STRATMOR. Additionally, the study also shows our retail net origination income per loan (161 basis points) was the highest among our peer group and significantly exceeded the average for all independent and large lenders. Our mortgage banking expertise has positioned us well to take advantage of current market conditions. HomeStreet has been primarily a conventional conforming loan originator, making mortgage loans conforming to Fannie Mae, Freddie Mac, and FHA and VA guidelines, supplemented by a small menu of portfolio products. As noted earlier, the Bank has the oldest continuous relationship of all Fannie Mae seller-servicers in the nation. We have been an FHA-approved lender continuously since 1937 and a VA approved lender continuously since its founding in 1944. We possess the product expertise and servicing infrastructure to originate and service government guaranteed loans and specialized products such as 203(k) rehabilitation loans and Department of Hawaiian Home Lands (“DHHL”) loans that require specific product knowledge and servicing expertise. The Bank derives significant competitive benefits from the scale and longevity of WMS, its joint venture, with Windermere Real Estate Services Company, the largest real estate brokerage company in the Pacific Northwest by sales volume. A primary benefit is the diversification of loan origination capabilities through mortgage consultants located in Windermere Real Estate offices, who can reach potential purchase customers and referral sources early in the home-buying process. We also benefit from increased loan production, which improves the efficiency and profitability of our mortgage origination

 

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infrastructure and helps us achieve better pricing and terms with Fannie Mae, Freddie Mac and other correspondent lenders. Windermere’s focus on the purchase market adds significantly to volume, loan quality and profits during strong purchase markets.

 

   

Multifamily Mortgage Origination and Servicing Expertise .    The Company was one of the first lenders approved by Fannie Mae as a DUS lender and we remain one of only 25 DUS lenders nationally. We are the only organization headquartered in the Pacific Northwest with DUS approval.

 

   

Growth Opportunity in Fee-generating Banking Services .    We are currently expanding our cash management, investment and insurance product and service offerings. We believe our integrated approach to the delivery of these products and services will enhance customers’ sales experience and enable growth in our customer base and fee revenues.

Compliance Culture

Historically, we have emphasized compliance in all of our activities. In addition to the general banking regulations, our single family lending, loan servicing businesses and our investment advisory and product sales businesses are subject to complex regulations. In particular, our single family mortgage and multifamily origination and servicing businesses are highly dependent upon successful compliance with underwriting and servicing guidelines of Fannie Mae, Freddie Mac and Ginnie Mae as well as a myriad of federal and state consumer compliance regulations. Additionally, these activities, together with our significant volume of lending to low- and moderate-income areas and direct community investment, contribute to our uninterrupted record of “Outstanding” CRA ratings since the inception of the Bank in 1986. The financial services industry generally, and the single family mortgage banking industry in particular, is experiencing consolidation caused, in part, by the ever-increasing operational and cost burden of compliance. We believe our ability to maintain our historically strong regulatory compliance culture and our track record of compliance with regulations and guidelines are significant competitive advantages.

Moreover, a number of mortgage servicing enterprises and banks have experienced claims, defenses and counterclaims from consumers and borrowers relating to loan collection practices, particularly associated with mortgage collection and foreclosure activities. We have not received notice of any complaint, threat, or allegation relating to faulty affidavits or chain of title concerns relating to our mortgage servicing and residential mortgage foreclosure activities. Based on our current residential mortgage foreclosure practices and the applicable statutory and case law, we are aware of no material contingency, nor quantifiable estimated loss, relating to “robosigning” or chain-of-title concerns in our foreclosure activities.

 

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Our Structure

HomeStreet, Inc. was established in 1921 as Continental Mortgage and Loan Company, initially offering financing for commercial real estate and home mortgages. Continental Savings Bank was established in 1986 and changed its name to HomeStreet Bank in 2000. Our activities are conducted through the following consolidated subsidiaries:

LOGO

 

   

HomeStreet, Inc. operates a personal lines insurance agency offering home, auto, life, umbrella, boat, motorcycle, recreational vehicle, earthquake, difference in conditions and notary bond insurance products. It is licensed to do business in Washington and Oregon under the name “HomeStreet Insurance” and is licensed to do business in Hawaii for life insurance only.

 

   

HomeStreet Bank, a regional state-chartered savings bank headquartered in Seattle, Washington.

 

   

We hold common securities in four statutory business trusts, which have, in turn, issued trust preferred securities. We have previously commenced tender offers for all of the outstanding trust preferred securities issued by these trusts; however, we recently terminated those tender offers. See “Dividend Policy” above for a further description of the trust preferred securities.

 

   

HomeStreet Capital Corporation has been originating, selling and servicing multifamily residential loans made through the Fannie Mae DUS program since 2000.

 

   

Union Street Holdings LLC, a Washington limited liability company holds title to, markets and disposes of real estate acquired through foreclosure.

 

   

HomeStreet Reinsurance, Ltd. was established in 2000 as a limited-purpose reinsurance company. It is incorporated in the Turks and Caicos Islands and reinsures private mortgage insurance solely with respect to mortgage loans originated by the Bank. We discontinued all new reinsurance business at the end of 2008 and we are monitoring market conditions to determine if and when we will begin writing new reinsurance risk.

 

   

Continental Escrow Company provides reconveyance services solely for the Bank in connection with deeds of trust on one-to-four family residential loans, or single family residential loans, originated by the Bank.

 

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HomeStreet/WMS, Inc. holds joint venture interest in Windermere Mortgage Services Series LLC, or WMS. The remaining equity interest in WMS is held by certain franchisees of Windermere Real Estate Services Company, one of the largest real estate brokerage companies in the Pacific Northwest by sales volume. Through WMS, we provide point-of-sale loan origination services in 44 Windermere Real Estate offices in Washington and Oregon.

Market Opportunities

Pacific Northwest Market

The Pacific Northwest has experienced dramatic dislocations in its banking and real estate markets that are similar in severity and duration to the national downturns in these markets. For example, according to the Case-Shiller Housing Prices Index, Seattle, our largest market, experienced a decline of approximately 27.9% from the market peak of late 2007 through December 2010, down 6% overall since December 2009 and down 2% since October 2010, reflecting average values last experienced in December 2004. Residential mortgage delinquencies remained elevated, with 5.28% of Washington State residential mortgages being delinquent during the fourth quarter of 2010 according to published reports.

Economic recovery has been hampered by a variety of factors in our markets, most prominently including continuing poor trends in employment statistics, with Washington State’s unemployment rate increasing from 9.8% in November 2010 as compared to 9.6% in November 2009, according to statistics published by the Federal Reserve Board. These declines had a significant adverse impact on our residential construction borrowers, which limited their ability to pay while at the same time reducing the value of our development and construction property collateral. Moreover, our markets continue to be affected adversely by increasing residential foreclosures, with the three-county Metropolitan Seattle area experiencing a 69.7% increase in foreclosures from February 2010 through February 2011, according to RealtyTrac.

While the path of the national economic recovery remains unclear, we believe our market areas have unique strengths that will support a faster recovery than the national economy.

 

   

The greater Seattle and the Portland metropolitan areas have higher median household incomes than both the national average and their respective state averages. The U.S. Bureau of Economic Analysis ranked the Seattle-Tacoma-Bellevue areas number 16 in the country for per capita personal income in 2009.

 

   

We expect population to grow in Seattle and Portland metropolitan areas through a combination of organic growth and net in-migration.

Moreover, we believe that job growth and recovery will outpace the national recovery in our Pacific Northwest markets, in part due to:

 

   

the Seattle area’s port, aircraft and high-tech industries, well-educated workforce, high incomes, and strong population trends;

 

   

the stabilizing presence of a large military base in the Tacoma area; and

 

   

a continued influx of young, educated workers in the Portland market and the presence there of high-tech industries, especially chip manufacturers.

 

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Regional economic forecasts estimate that housing prices in our Pacific Northwest markets will rise approximately 32.5% through 2014 after declining in 2011, as depicted below.

LOGO

Based on these same forecasts, single family permits in our Pacific Northwest markets are anticipated to increase on average 163.7% through 2014.

LOGO

 

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These same data reflect that multifamily construction permits in our Pacific Northwest markets will increase three-fold through 2014.

LOGO

In October 2010, The Urban Land Institute and PricewaterhouseCoopers evaluated real estate markets in their 2011 Emerging Trends in Real Estate report. Seattle is ranked number five overall. Seattle was among the markets described as “preeminent gateway cities with attractive coastal (or near-coast) locations, barriers to entry, superior transportation hubs linked directly to global business centers, and concentrations of brainpower jobs.”

Industry Dislocations

We have taken advantage of the failures and takeovers of certain of our competitors by recruiting well-qualified employees and attracting new customers who seek long term stability, quality products and expertise. We believe there is a significant opportunity for a well-capitalized, community-focused bank that emphasizes responsive and personalized service to provide a full range of financial services to small and middle-market commercial and retail customers in those markets where we do business. In particular, the 2008 failure of Washington Mutual, Seattle’s largest financial institution prior to its failure, has created significant opportunities for locally managed consumer and business banks. As the second largest locally headquartered bank in Seattle, HomeStreet Bank has been in a strong position to fill this vacuum.

Barriers to Entry – Single Family Mortgage Origination and Servicing

Compliance burden. The mortgage industry is compliance-intensive and requires significant expertise and internal control systems to ensure origination and servicing of mortgages that meet all origination, processing, underwriting, servicing and disclosure requirements. New entrants to the industry must make significant investments in experienced personnel and specialized systems to manage this process. These investments represent a significant barrier to entry.

Capital requirements. Lending in conventional mortgage products, including FHA and VA loans, requires significantly higher capitalization than had previously been required for mortgage brokers and non-bank mortgage bankers. This has reduced competition as mortgage brokers have been forced to liquidate when their capital has been exhausted by the requirement to fund mortgage buy-backs required by investors. This has also limited new entry into the markets.

 

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Warehouse line availability. Beginning in mid-2007, the number of lenders providing warehouse funding to non-bank mortgage companies shrank dramatically. Over the last 12 to 18 months, capacity has grown but credit standards are much higher, making it more difficult for existing or prospective non-bank mortgage companies to secure warehouse lines. This has created an opportunity for banking institutions such as HomeStreet to increase market share due to our capacity to fund our mortgage originations through our deposit and wholesale funding sources. The market for warehouse lines for Fannie Mae DUS lenders experienced similar disruptions; recently a limited amount of warehouse line capacity has been made available in the market to Fannie Mae DUS lenders.

Multifamily Opportunities

Demographic changes. We expect that demographic changes over the next decade will spur demand for multifamily housing. The following information is reprinted from The State of the Nation’s Housing 2010 with permission from the Joint Center for Housing Studies of Harvard University. All rights reserved.

 

   

The aging of the echo-boom generation into young adulthood, augmented by immigration, will increasingly drive household growth over the next 15 years. The sheer size of the echo-boom generation will produce record numbers of households headed by young adults . At 80.8 million strong, this generation is even larger than the baby-boom generation is now.

 

   

Under the Census Bureau’s current estimate about immigration, the number of echo boomers will swell to 92.9 million by 2025. Even with immigration at half that pace, their numbers will grow to 86.5 million. This highly diverse generation will give demand for apartments and smaller starter homes a lift over the next 15 years.

 

   

The large share of second-generation Americans (children born in the US to immigrant parents) among the echo boomers — more than twice the share in the baby-bust generation and more than three times that in the baby-boom generation — will be important in shaping the characteristics of future households. This is good news in that US-born children of immigrants have incomes and education levels more like those of other native-born Americans than of their parents. In fact, among householders aged 25–64, second-generation Americans typically have higher household incomes than both foreign-born and other native-born households of all races and ethnicities.

 

   

Meanwhile, the baby boomers will boost demand for senior housing. The units built over the next 10–20 years that intentionally cater to older Americans will be the housing available for generations to come, given that growth of the over-65 population will slow dramatically as the now similarly sized babybust generation moves into retirement. So far, however, federal support for senior housing is limited to minimal new construction of subsidized units. Moreover, the current funding system encourages expensive trips to skilled nursing facilities to the detriment of lower-cost, less institutional assisted living options and programs that allow elders to remain in their homes. Senior housing issues will therefore gain much greater urgency over the coming decade.

Affordability index. Although low interest rates and falling house prices have significantly increased the number of borrowers who would be able to qualify to purchase a home nationally, selected markets with higher relative real estate prices are attractive multifamily markets. According to Trulia Real Estate Research it is cheaper to rent than to buy in only three major metropolitan markets in the United States (New York, Fort Worth and Kansas City). However, Seattle was the sixth least affordable place to buy, while Portland was in ninth place. (Trulia Real Estate Search Rent vs Buy Index – Q2 2011). This points to continued demand for multifamily housing in our core markets.

Loan Approval Procedures and Authority

The Bank’s board of directors approves our lending policies and delegates lending authority and responsibility to its credit committee, the bank loan committee, the Chief Credit Officer, the Chief Executive

 

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Officer and specified officers of the Bank, including business unit credit administrators and the Single Family Operations Director. The Bank’s Income Property Lending Director also has limited loan approval authority for multifamily loans originated under the Fannie Mae DUS program. See “ Credit Risk Management” below.

Credit Risk Management

Credit risk is the risk of loss from adverse changes in a borrower’s or counterparty’s actual or perceived ability to meet its financial obligations under agreed-upon terms and exists primarily in lending, securities and derivative portfolios. The degree of credit risk is determined by factors including the size of the asset or transaction, the contractual terms of the related documents, the credit characteristics of the borrower, the channel through which assets are acquired, the features of loan products or derivatives, the existence and strength of guarantor support, the availability, quality and adequacy of any underlying collateral and the economic environment after the loan is originated or the asset is acquired. Our overall portfolio credit risk is also impacted by asset concentrations within the portfolio.

Our credit risk management process is governed centrally. Our overall credit process includes comprehensive credit policies, judgmental or statistical credit underwriting, detailed risk measurement and modeling and periodic loan review, loan quality control and internal audit. In addition, regulatory examiners review and perform detailed tests of our credit underwriting, loan administration and allowance processes.

The Chief Credit Officer’s primary responsibilities include directing the activities of the credit risk management function as it relates to the loan portfolio, overseeing loan portfolio performance and ensuring compliance with established credit policies, standards and limits, determining the reasonableness of the Company’s allowance for loan losses, reviewing and approving large credit exposures and delegating credit approval authorities. Senior credit administrators who oversee the lines of business have both transaction approval authority and governance authority for the approval of credit procedures within established policies, standards and limits. The Chief Credit Officer reports directly to the President and Chief Executive Officer.

The Bank loan committee, established by the credit committee of the board of directors, provides direction and oversight for the Company within our risk management framework. The loan committee seeks to ensure effective portfolio risk analysis and policy review and to support sound implementation of defined business and risk strategies. The members of the Bank loan committee consist of the Chief Executive Officer, Chief Credit Officer and Chief Financial Officer.

The Loan Review Officer’s primary responsibility includes the review of the Company’s loan portfolios to provide an independent assessment of credit quality, portfolio oversight and credit management, including accuracy of loan grading. Loan review also conducts targeted credit-related reviews and credit process reviews at the request of the board and management and reviews a sample of newly originated loans for compliance with closing conditions and accuracy of loan grades. Loan review reports directly to the board credit committee and administratively to the Risk and Regulatory Oversight Director.

The Treasury function’s primary responsibilities include directing the activities of the credit risk management function as it relates to securities and derivative portfolios, overseeing derivative portfolio performance and ensuring compliance with established credit policies, standards and limits. The Treasurer reports directly to the Chief Financial Officer, who reports to the President and Chief Executive Officer.

Subsidiaries and Other Activities

HomeStreet Capital Corporation, a wholly owned subsidiary of HomeStreet, Inc., has been servicing multifamily loans sold through the Fannie Mae DUS program since 2000. HomeStreet, Inc. also operates a personal lines insurance agency licensed to do business in Washington and Oregon, and in Hawaii for life

 

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insurance products, under the name “HomeStreet Insurance” and holds common securities in four statutory business trusts referred to herein as the HomeStreet Statutory Trusts. For further information regarding the HomeStreet Statutory Trusts, see “Dividend Policy.”

The Bank’s principal subsidiaries consist of HomeStreet/WMS, Inc., HomeStreet Reinsurance, Ltd., Continental Escrow Company and Union Street Holdings LLC. HomeStreet/WMS, Inc. holds a 50% equity interest in WMS. HomeStreet Reinsurance, Ltd. reinsured private mortgage insurance solely with respect to mortgage loans originated by the Bank. We discontinued all new reinsurance business at the end of 2008 and we are monitoring market conditions to determine if and when we will continue this line of business. Continental Escrow Company provides reconveyance services solely for HomeStreet Bank in connection with deeds of trust on single family residential loans originated by the Bank. For more information on our subsidiaries, see “— Our Structure.”

Competition

We face intense competition in originating loans and in attracting deposits within our targeted geographic market. We compete by consistently delivering high quality, personal service to our customers that results in a high level of customer satisfaction.

We attract our deposits through our branch office system. Competition for those deposits is principally from other savings institutions, commercial banks and credit unions located in the same community, as well as mutual funds and other alternative investments. We are facing increasing competition for deposits and other financial products from non-bank institutions such as brokerage firms and insurance companies in such areas as short-term money market funds, mutual funds and annuities. Our key competitors within our largest market area, the Seattle-Tacoma-Bellevue MSA, include Bank of America, JPMorgan Chase & Co. (as the successor to Washington Mutual Bank) and Key Bank. These competitors controlled approximately 44.0% of the deposit market share with $30.9 billion of the $69.6 billion total deposits in the Seattle MSA as of June 30, 2010.

Our competition for loans comes principally from banks with a nationwide presence along with mortgage bankers, commercial banks, thrift institutions, credit unions and finance companies. Our market area has a high concentration of financial institutions, many of which are branches of large money center and regional banks that have resulted from the consolidation of the banking industry in Washington and other western states. These include such large national lenders as Bank of America, JPMorgan Chase & Co., U.S. Bancorp, Wells Fargo and others in our market area that have greater resources than we do and compete with us for banking business in our targeted market area. Among the advantages of some of these institutions are their ability to make larger loans, finance extensive advertising campaigns, access lower cost funding sources and allocate investment assets to regions of highest yield and demand. Despite these advantages, we believe we can compete with larger financial institutions by offering a value proposition based on outstanding customer service, strong values and integrity, real estate expertise, local knowledge and faster decision-making and a commitment to the communities we serve.

Regulation

Cease and Desist Orders

We are currently operating under cease and desist orders issued by our primary federal banking regulator, the Office of Thrift Supervision (OTS), and the Bank’s primary regulators, the Federal Deposit Insurance Corporation (FDIC) and the Washington Department of Financial Institutions (DFI). Under the cease and desist orders, we are required to notify and in certain cases receive the permission of our regulators prior to taking certain actions including paying cash dividends, making payments on any existing debt, incurring, renewing or guaranteeing debt and changing the composition or compensation of our directors and senior executive officers.

 

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Under the Bank Order, the Bank has agreed to certain restrictions and affirmative obligations regarding its management structure and oversight, plans and policies, capital and liquidity requirements, reductions in classified assets and loan concentrations, ability to make loans and other aspects of its business. See “Regulation and Supervision – Cease and Desist Orders.”

Employees

As of March 31, 2011, we had 534 full-time employees and 66 part-time employees compared with 520, 523 and 520 full-time and 62, 74 and 63 part-time employees as of December 31, 2010, 2009 and 2008, respectively. Our employees are not represented by any collective bargaining group. Management believes our employee relations to be good. Information regarding employment agreements with our executive officers is discussed further in “Executive Compensation.”

We intend to continue to be opportunistic in hiring employees who bring expertise, endorse our value proposition and bring with them an existing portfolio or customer base. We have taken advantage of the failures, takeovers and recapitalizations of certain of our competitors by recruiting well qualified employees and attracting new customers who seek long term stability, quality products and expertise. We have also attracted highly qualified credit administration employees to have enhanced our credit management functions.

Properties

We lease principal offices, which are located in office space in downtown Seattle at 601 Union Street, Suite 2000, Seattle, WA 98101. This office lease provides sufficient space to conduct the management of our business. In addition, we currently lease space for all 29 of our office locations. Our branches include separate lending and retail banking facilities, as well as combined facilities, located in Washington, Oregon and Hawaii.

Legal Proceedings

Because the nature of our business involves the collection of numerous accounts, the validity of liens and compliance with various state and federal lending laws, we are subject to various legal proceedings in the ordinary course of our business related to foreclosures, bankruptcies, condemnation and quiet title actions and alleged statutory and regulatory violations. We are also subject to legal proceedings in the ordinary course of business related to employment matters. We do not expect that these proceedings, taken as a whole, will have a material adverse effect on our business, financial position or our results of operations. There are currently no matters that, in the opinion of management, would have a material adverse effect on our consolidated financial position, results of operation or liquidity, or that there is a reasonable possibility that a loss or additional loss may have been incurred. However, it is possible that an unfavorable resolution of one or more such proceedings could in the future materially affect our future liquidity, consolidated financial position and/or results of operations.

 

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REGULATION AND SUPERVISION

The following is a brief description of certain laws and regulations that are applicable to us. The description of these laws and regulations, as well as descriptions of laws and regulations contained elsewhere in this prospectus, does not purport to be complete and is qualified in its entirety by reference to the applicable laws and regulations. We believe, however, that we have included all descriptions of laws and regulations applicable to us that an investor needs to consider in making an investment decision.

The bank regulatory framework to which we are subject is intended primarily for the protection of bank depositors and the Deposit Insurance Fund and not for the protection of shareholders or other security holders.

General

The Company is a savings and loan holding company and is regulated by the Office of Thrift Supervision, or OTS, and the Washington State Department of Financial Institutions, Division of Banks, or DFI. The Company is required to register and file reports with, and otherwise comply with, the rules and regulations of the OTS and the DFI.

Under the Dodd-Frank Act, the OTS is scheduled to cease to exist as a separate entity as of July 21, 2011. Its authority to regulate the Company and its non-bank subsidiaries will be transferred to the Federal Reserve Board. References to the OTS in this prospectus should be read to mean the Federal Reserve Board as of the date of the transfer.

The Bank is a Washington state-chartered savings bank. The Bank is subject to regulation, examination and supervision by the DFI and the FDIC.

As a result of the financial crisis, regulation of the financial services industry has been undergoing major changes. Among these is the Dodd-Frank Act, which makes significant modifications to and expansions of the rulemaking, supervisory and enforcement authority of the federal banking regulators. Some of the changes were effective immediately, but others are to be phased in over time. The Dodd-Frank Act requires various regulators, including the banking regulators, to adopt numerous regulations, not all of which have yet been finalized. Accordingly, in many instances, the precise requirements of the Dodd-Frank Act are not yet known.

Further, new statutes, regulations and guidance are considered regularly and are currently being proposed that contain wide-ranging potential changes to the statutes, regulations and competitive relationships of financial institutions operating and doing business in the United States. We cannot predict whether or in what form any proposed statute, regulation or other guidance will be adopted or promulgated, or the extent to which our business may be affected. Any change in such policies, whether by the OTS, the DFI, the FDIC, the Washington legislature or the United States Congress, could have a material adverse impact on us and our operations and shareholders. In addition, the OTS, the DFI and the FDIC have significant discretion in connection with their supervisory and enforcement activities and examination policies, including, among other things, policies with respect to the Bank’s capital levels, the classification of assets and establishment of adequate loan loss reserves for regulatory purposes.

Our operations and earnings will be affected by domestic economic conditions and the monetary and fiscal policies of the United States government and its agencies. The Federal Reserve has, and is likely to continue to have, an important impact on the operating results of financial institutions through its power to implement national monetary policy including, among other things, actions taken in order to curb inflation or combat a recession. The Federal Reserve affects the levels of bank loans, investments and deposits through its control over the issuance of United States government securities, its regulation of the discount rate applicable to member banks and its influence over reserve requirements to which banks are subject. We cannot predict the nature or impact of future changes in monetary and fiscal policies.

 

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We are also currently operating under cease and desist orders issued by our primary federal regulator, the OTS, and the Bank’s primary regulators, the FDIC and the DFI, as described below under “— Cease and Desist Orders.” Under the cease and desist orders, we are required to notify, and in certain cases receive the permission of, the OTS prior to taking certain actions, including completing this offering. In addition, the Bank is required to maintain Tier 1 capital in an amount that equals or exceeds 10.0% of the Bank’s total assets and total risk-based capital in an amount that equals or exceeds 12.0% of the Bank’s total risk-weighted assets, and to meet certain scheduled reductions in classified assets. Despite diligent efforts, the Bank is currently not in compliance with the above-described capital ratios and our classified asset reduction plan targets. We are in frequent communication with the OTS, the FDIC and the DFI on the status of our efforts to comply with the cease and desist orders. While we have not been advised of any additional regulatory action with respect to the cease and desist orders or the Bank’s current noncompliance with the cease and desist orders, we cannot assure you that no further action will be taken by our regulators. See “Risk Factors” for a discussion of some of the actions that our regulators could take as a result of our failure to comply with the cease and desist orders.

Cease and Desist Orders

Company Order

We are currently operating under an Order to Cease and Desist issued by our primary federal regulator, the OTS, on May 18, 2009. We refer to this order as the Company Order. Under the Company Order, HomeStreet, Inc. has agreed to refrain from engaging in all unsafe and unsound practices that have resulted in the operation of HomeStreet, Inc. with low earnings and inadequate capital. In addition, HomeStreet, Inc. has also agreed to not do any of the following without the consent of the OTS:

 

   

pay dividends or make any other capital distributions;

 

   

incur, issue, renew, repurchase, make payments on (including payments on trust preferred securities, “TruPS,”) or roll over any debt;

 

   

increase any current lines of credit;

 

   

guarantee the debt of any entity;

 

   

refrain from making any “golden parachute” or “prohibited indemnification payments” unless we have complied with certain statutory requirements; and

 

   

comply with certain prior notification requirements for changes in directors or senior executive officers (including the director nominees proposed to be added upon completion of this offering).

As required by the Company Order, we have submitted to and received approval from the OTS for an operations plan (“Operations Plan”) that addresses how we will meet all our financial obligations including, but not limited to, payments on our senior notes, dividend payments on preferred stock and interest payments on TruPS without relying on dividends from the Bank for the calendar years 2009 through 2011. The Operations Plan contains all of the elements required by the Company Order. We are required to submit quarterly reports describing any material deviations from our Operations Plan and we have submitted variance reports and required documentation to the OTS for each quarter beginning with the second quarter of 2009. The Company Order will remain in effect until terminated, modified or suspended by the OTS. We believe we are currently in compliance with the Company Order.

 

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Bank Order

The Bank is also currently operating under an Order to Cease and Desist issued by the FDIC and the DFI on May 8, 2009. We refer to this order as the Bank Order. Under the Bank Order, we have agreed to certain restrictions and affirmative obligations regarding its management structure and oversight, plans and policies, capital and liquidity requirements, reductions in classified assets and certain loan concentrations, ability to make loans and other aspects of its business.

We have implemented certain actions at the Bank and intend to continue to comply with each of the following requirements of the Bank Order:

 

   

The board of directors reviewed the qualifications of the management team and implemented the following changes:

 

   

Retained a new Chief Executive Officer in September 2009 who possesses the qualifications and experience commensurate with his duties and responsibilities at the Bank. Specifically, the Bank’s new chief executive officer has proven ability to manage a bank of comparable size, as well as experience in upgrading a low quality loan portfolio and improving earnings. The FDIC, DFI and OTS approved the new Chief Executive Officer in January 2010.

 

   

Retained a new Chief Credit Officer in January 2009 who had significant and appropriate lending, collection and loan supervision experience, as well as experience in upgrading a low quality loan portfolio. The initial Chief Credit Officer resigned in June 2010 and was replaced by the manager of the Special Assets Group, whose appointment was approved by the FDIC, DFI and OTS in November 2010.

 

   

Retained a new Chief Financial Officer in August 2009 who possesses significant capital raising knowledge and experience. The FDIC, DFI and OTS approved the new Chief Financial Officer in January 2010.

 

   

Each member of the Bank’s management has been provided written authority to implement the provisions of the Bank Order.

 

   

On a quarterly basis, the Bank’s board of directors is assessing the qualifications of management on its ability to comply with the Bank Order, operate the Bank in a safe and sound manner, comply with applicable laws and regulations and restore the Bank to a safe and sound condition.

 

   

The Bank will notify the FDIC and the DFI 30 days in advance whenever it proposes to add any new board member or senior executive officer.

 

   

The Bank’s board of directors has increased its participation in the affairs of the Bank, including holding meetings no less than monthly and reviewing and approving all required reports and actions.

We have to date completed the following:

 

   

Developed an infrastructure for its credit administration function that we believe is appropriate to the size and complexity of the Bank and that ensures oversight by officers with appropriate credit qualifications and expertise. Those officers have been hired and have implemented the new credit administration infrastructure.

 

   

Assessed the function of its loan committee and, as a result, created a board-level credit committee with qualified directors and an approved charter that details its appropriate duties and responsibilities.

 

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Implemented revised lending and collection policies to provide effective guidance and control over the Bank’s lending function, including policies for placing loans on nonaccrual basis, obtaining adequate and current documentation for all loans in the Bank’s portfolio and various other loan policy provisions detailed in the Bank Order.

 

   

Revised its concentrations policy to limit concentrations for commercial real estate and acquisition, development and construction loans, and adopted a plan for reducing the amount of such loans in compliance with the concentration policy and restricting any such new loans or new loans to existing borrowers unless they are in compliance with the plan, not currently classified substandard and past due on interest and approved by the credit committee.

 

   

Submitted a three-year strategic plan, which includes specific goals for the dollar volume of total loans, total investment securities and total deposits as of December 31, 2009, 2010 and 2011. At the request of our regulators, management submitted a revised three-year strategic plan for the Bank in May 2010. The plan contains all of the specific information required by the Bank Order.

 

   

Implemented a profit plan for 2009 to address the goals and strategies for improving and sustaining the earnings of the Bank and coordinated the plan with the Bank’s funds management policy and loan, investment and operating policies. The plan contains all of the specific information required by the Bank Order. Beginning in 2010, we have monitored our operations at the Bank based on a forecast that was updated monthly and reported to the board and our regulators. For 2011, we developed a budget and a forecast to which we monitor against and report monthly to the board and our regulators.

 

   

Implemented a liquidity and funds management policy that addresses specific contingency plans and details actions to be implemented under various liquidity scenarios, with a minimum primary liquidity ratio of at least 15.0%.

 

   

Submitted a liquidity and funds management plan to reduce its reliance on non-core funding sources, including brokered deposits and borrowings, and to reduce its non-core funding dependency ratio to not more than 20.0%.

 

   

Implemented a plan to reduce its interest rate sensitivity, established prudent limits on the impact of interest rate changes on earnings and implemented processes to mitigate risks from interest rate changes. We continue to focus on mitigation of risk from interest rate changes.

 

   

Eliminated use of irrevocable Federal Home Loan Bank standby letters of credit collateralized with Bank assets to secure private deposits in the Bank and revised processes designed to ensure future compliance with all applicable laws and regulations.

 

   

Ceased payment of cash dividends and the solicitation and rollover of brokered deposits.

 

   

Established a process for submitting written progress reports to the FDIC, DFI and OTS within 30 days of each quarter end. We have submitted progress reports on the Bank for each quarter beginning with the second quarter of 2009.

 

   

Provided the Bank’s shareholder, HomeStreet, Inc., with a copy of the Bank Order.

We have also implemented the following restrictions for the Bank in the management of its loan portfolio:

 

   

No extension, directly or indirectly, of any additional credit to, or for the benefit of, any borrower who has a loan or other extension of credit from the Bank that has been charged off or classified, in whole or in part, as “Loss” and is uncollected.

 

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No extension, directly or indirectly, of any additional credit to, or for the benefit of, any borrower who has a loan or other extension of credit from the Bank that has been classified, in whole or part, as “substandard” or “doubtful” without the prior approval of a majority of the Bank’s board of directors or the credit committee, which may not be approved without first collecting all past due interest in cash.

 

   

The above restrictions do not apply to single family residential mortgage loans modified in accordance with loan modification programs and practices sponsored or approved by the FDIC or other government agencies.

We have not yet satisfied the following requirements of the Bank Order:

 

   

We were required to achieve and maintain Tier 1 capital at the Bank that equals or exceeds 10.0% of its total assets within 150 days of the Bank Order, or by October 5, 2009. This level of Tier 1 capital is in addition to a fully funded allowance for loan losses, the adequacy of which must be satisfactory to the FDIC and the DFI. Increases in Tier 1 capital may only be accomplished through certain specified means and may not be accomplished through a deduction from the Bank’s allowance for loan losses. Additionally, the Bank must maintain total risk-based capital in such an amount as to equal or exceed 12.0% of its total risk-weighted assets within the same 150 days. Despite diligent efforts, we were not successful in raising capital within the prescribed timeframe due to the extraordinary conditions in the capital markets that have resulted in the markets being effectively closed to capital-raising efforts for open-bank recapitalizations and for banks in troubled condition. To date we have not yet complied with this requirement. Management is maintaining close communication with the FDIC, the DFI and the OTS on the status of our efforts to raise capital. While our regulators have indicated that further action will not be initiated as long as we make significant efforts to raise capital, see “Risk Factors — We are operating under cease and desist orders from the OTS, the FDIC and the DFI that prohibit us, among other things, from paying dividends without the consent of our regulators and that place other limitations and obligations on the Company and Bank. We are not in full compliance with the Bank Order, and noncompliance may subject us to additional enforcement action” and “Risk Factors — We may be subject to continuing enhanced supervision by our regulators even if we achieve compliance with the cease and desist orders” for actions that our regulators could take, including the imposition of civil money penalties on directors, for failure to comply with the Bank Order.

 

   

While we have formulated a plan for the Bank to reduce (i.e., collect, charge off or improve the quality of an asset) our risk exposure in each asset, and the aggregate balance of assets, adversely classified as “substandard” or “doubtful” as of December 31, 2008, to which the FDIC and the DFI issued a letter of non-objection, the Bank did not achieve the target reduction of classified assets to 40.0% of Tier 1 capital plus allowance for loan losses by February 28, 2010, primarily due to lower than projected capital. The plan included all items required by the Bank Order and is supported by individual problem loan reports for each OREO asset. Management is submitting the required monthly progress reports to the board of directors and is keeping our regulators informed, including the inability to meet the February 28, 2010, target. Management also formulated a plan to reduce the total volume of all adversely classified assets, with monthly progress reports to the board of directors.

 

   

While we have complied with the additional requirement of the Bank Order to develop and submit a plan for the reduction of its commercial real estate and land acquisition and development and construction loans, we did not achieve our internally established targets of 355.0% of risk-based capital and 178.0% of risk-based capital, respectively, as of December 31, 2010. Management is keeping our board of directors and regulators apprised on a monthly basis on the status of reducing these loan concentrations.

The form and manner of the Bank’s compliance with the Bank Order is subject to review and determination at subsequent regulatory examinations and/or visitations. Additionally, the OTS, the FDIC and the DFI each has the authority to impose additional restrictions on us in the event it again determines that we are operating in an

 

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unsafe or unsound condition, or if we are engaging in an unsafe or unsound practice. These restrictions could involve the limitation of our asset growth so that our average total assets during any calendar quarter do not exceed our average total assets during the preceding calendar quarter. The OTS, the FDIC or the DFI, as applicable, may also require prior approval for acquisitions, branching and new lines of business, and the FDIC and the DFI have the authority to impose additional discretionary and mandatory sanctions upon us if we were to become undercapitalized. For example, we could be required to implement a capital restoration plan. See “— Regulation and Supervision of HomeStreet Bank — Capital and Prompt Corrective Action Requirements.”

Regulation of the Company

General

Because we have made an election under Section 10(1) of the Home Owners’ Loan Act (“HOLA”) for the Bank to be treated as a “savings association” for purposes of Section 10 of HOLA, the Company is registered as a savings and loan holding company with the OTS and is subject to OTS regulations, examinations, supervision and reporting requirements relating to savings and loan holding companies. Among other things, this authority permits the OTS to restrict or prohibit activities that are determined to be a serious risk to the financial safety, soundness or stability of a subsidiary savings bank. Unlike bank holding companies, savings and loan holding companies have not been subject to any specific regulatory capital ratios, although they have been subject to OTS review and approval of capital levels as part of its examination process. However, under the Dodd-Frank Act, the Company will be subject to capital requirements beginning July 21, 2015. Our continued ability to use the provisions of Section 10(1) of HOLA – which allow the Company to be registered as a savings and loan holding company rather than as a bank holding company – is conditioned upon the Bank’s continued qualification as a qualified thrift lender under the Qualified Thrift Lender test set forth in HOLA. See “— Regulation and Supervision of HomeStreet Bank — Qualified Thrift Lender Test.” Since the Bank is chartered under Washington law, the DFI has authority to regulate the Company generally relating to its conduct affecting the Bank. As a subsidiary of a savings and loan holding company, the Bank is subject to certain restrictions in its dealings with the Company and affiliates thereof.

Numerous provisions of the Dodd-Frank Act will affect the Company and its business and operations. Some of the provisions are:

 

   

Federal banking regulation of the Company will be transferred from the OTS to the Federal Reserve on the Transfer Date.

 

   

The Federal Reserve is to issue capital requirements for savings and loan holding companies, although it has not done so yet and such requirements will not become effective until July 21, 2015.

 

   

All holding companies of depository institutions are required to serve as a source of strength for their depository subsidiaries.

 

   

The FDIC is given back-up supervisory authority over holding companies engaging in conduct that poses a foreseeable and material risk to the Deposit Insurance Fund.

 

   

The Federal Reserve is given heightened authority to examine, regulate and take action with respect to all of a holding company’s subsidiaries.

The Company is a diversified unitary savings and loan holding company within the meaning of federal law. Generally, companies that become savings and loan holding companies following the May 4, 1999 grandfather date in the Gramm-Leach-Bliley Act of 1999 may engage only in the activities permitted for financial institution holding companies as well as activities that are permitted for multiple savings and loan holding companies. Because the Company became a savings and loan holding company prior to that grandfather date, the activities in

 

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which the Company and its subsidiaries (other than the Bank and its subsidiaries) may engage generally are not restricted by HOLA. If, however, we are acquired by a non-financial company, or if we acquire another savings association subsidiary (and become a multiple savings and loan holding company), we will terminate our “grandfathered” unitary savings and loan holding company status and become subject to certain limitations on the types of business activities in which we could engage. The Company may not engage in any activity or render any service for or on behalf of the Bank for the purpose of or with the effect of evading any law or regulation applicable to the Bank.

Although savings and loan holding companies are not currently subject to specific capital requirements or specific restrictions on the payment of dividends or other capital distributions, because the Bank is treated as a savings association subsidiary of a savings and loan holding company, we must give the OTS at least 30 days’ advance notice of the proposed declaration of a dividend on its guaranty, permanent or other non-withdrawable stock. In addition, the financial impact of a holding company on its subsidiary institution is a matter that is evaluated by the OTS, and the OTS has authority to order cessation of activities or divestiture of subsidiaries deemed to pose a threat to the safety and soundness of the Bank.

As described above, the Company Order prohibits us, among other things, from (1) paying any dividends or making any other capital distributions, (2) incurring, issuing, renewing, repurchasing, making payment on or rolling over any debt, (3) increasing any current lines of credit or (4) guaranteeing the debt of any entity, in each case without the prior written approval of the OTS.

Capital / Source of Strength

Under the Dodd-Frank Act, capital requirements will be imposed on savings and loan holding companies such as the Company. The leverage and risk-based capital requirements to be imposed by the appropriate regulator cannot be lower than the minimum leverage and risk-based requirements imposed on depository institutions as of July 21, 2010. Under the Dodd-Frank Act, these requirements will not apply to the Company until July 21, 2015. No regulations governing the Company’s capital requirements have been proposed or issued.

The Dodd-Frank Act also placed restrictions on the ability of depository institution holding companies to use trust preferred securities, or TruPS, as capital. However, since the Company’s TruPS were issued prior to May 19, 2010 and the Company had consolidated assets of less than $15 billion as of December 31, 2009, these restrictions will not apply to the Company’s currently outstanding TruPS.

Regulations and historical practice of the Federal Reserve have required bank holding companies to serve as a “source of strength” for their subsidiary banks. The Dodd-Frank Act codifies this requirement and extends it to all companies that control an insured depository institution. Accordingly, the Company is now required to act as a source of strength for the Bank. The appropriate federal banking regulators are required by the Dodd-Frank Act to issue final rules to carry out this requirement no later than July 21, 2011. No rules have been yet proposed or issued.

Restrictions Applicable to Savings and Loan Holding Companies

Federal law prohibits a savings and loan holding company, including us, directly or indirectly (or through one or more subsidiaries), from acquiring:

 

   

control (as defined under HOLA) of another savings institution (or a holding company parent) without prior written approval of the OTS;

 

   

through merger, consolidation or purchase of assets, another savings institution or a holding company thereof, or acquiring all or substantially all of the assets of such institution (or a holding company) without prior OTS approval;

 

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with certain exceptions, more than 5.0% of the voting shares of a non-subsidiary savings association or a non-subsidiary holding company; or

 

   

control of any depository institution not insured by the FDIC (except through a merger with and into the holding company’s savings institution subsidiary that is approved by the FDIC).

In evaluating applications by holding companies to acquire savings associations, the OTS must consider the financial and managerial resources and future prospects of the company and institution involved, the effect of the acquisition on the risk to the insurance funds, the convenience and needs of the community and competitive factors.

A savings and loan holding company may not acquire as a separate subsidiary an insured institution that has a principal office outside of the state where the principal office of its subsidiary institution is located, except:

 

   

in the case of certain emergency acquisitions approved by the FDIC;

 

   

if such holding company controls a savings institution subsidiary that operated a home or branch office in such additional state as of March 5, 1987; or

 

   

if the laws of the state in which the savings institution to be acquired is located specifically authorize a savings institution chartered by that state to be acquired by a savings institution chartered by the state where the acquiring savings institution or savings and loan holding company is located, or by a holding company that controls such a state-chartered association.

Acquisition of Control

Under the federal Change in Bank Control Act, a notice must be submitted to the OTS if any person (including a company), or group acting in concert, seeks to acquire “control” of a savings and loan holding company or savings institution. An acquisition of control can occur upon the acquisition of 10.0% or more of the voting stock of a savings and loan holding company or savings institution or as otherwise defined by the OTS. Under the Change in Bank Control Act, the OTS has 60 days from the filing of a complete notice to act (the 60-day period may be extended), taking into consideration certain factors, including the financial and managerial resources of the acquirer and the antitrust effects of the acquisition. Any company that so acquires control would then be subject to regulation as a savings and loan holding company. Washington law also imposes certain limitations on the ability of persons and entities to acquire control of banking institutions and their parent companies. Control can also exist if an individual or company has, or exercises, directly or indirectly or by acting in concert with others, a controlling influence over the Bank.

Change in Management

A savings and loan holding company or bank in a “troubled condition,” as defined in the OTS regulations, is required to give 30 days’ prior written notice to the OTS before adding or replacing a director, employing any person as a senior executive officer or changing the responsibility of any senior executive officer so that such person would assume a different senior executive position. The OTS then has the opportunity to disapprove any such appointment. Pursuant to the Company Order, we are currently required to comply with the prior notification requirements of OTS for changes in directors and senior executive officers.

Convicted Persons

Except with the prior written approval of the OTS, no individual who has been convicted of any criminal offense involving dishonesty, breach of trust or money laundering may serve or act as a director, officer or

 

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trustee of, or become a partner in, any savings and loan holding company. The DFI has statutory authority to seek to remove any director, officer or employee of a holding company in various circumstances, including a material violation of law where the subsidiary depository institution has suffered or is likely to suffer substantial damage.

Dividend Policy

Under Washington law, the Company is generally permitted to make a distribution, including payments of dividends, only if, after giving effect to the distribution, in the judgment of the board of directors, (1) the Company would be able to pay its debts as they become due in the ordinary course of business and (2) the Company’s total assets would at least equal the sum of its total liabilities plus the amount that would be if the Company were to be dissolved at the time of the distribution to satisfy the preferential rights upon dissolution of shareholders whose preferential rights are superior to those receiving the distribution.

The Company Order prohibits us from paying dividends or making other capital distributions without the prior written consent of the OTS Regional Director for the Western Region.

In addition, the Company’s ability to pay dividends is significantly dependent on the Bank’s ability to pay dividends to the Company. The Bank is subject to regulatory restrictions with respect to its payment of dividends and is currently prohibited by order from paying them.

Compensation Policies

Compensation policies and practices at HomeStreet, Inc. and HomeStreet Bank are subject to regulation by their respective banking regulators and, upon HomeStreet, Inc. becoming a public company, the SEC.

Guidance on Sound Incentive Compensation Policies. Effective on June 25, 2010, the Office of the Comptroller of the Currency, the Federal Reserve, the FDIC and the OTS adopted Sound Incentive Compensation Policies Final Guidance (the “Final Guidance”) designed to help ensure that incentive compensation policies at banking organizations do not encourage imprudent risk-taking and are consistent with the safety and soundness of the organization. The Final Guidance is based on three key principles:

 

  (1) Incentive compensation arrangements at a banking organization should provide employees incentives that appropriately balance risk and financial results in a manner that does not encourage employees to expose their organizations to imprudent risk.

 

  (2) These arrangements should be compatible with effective controls and risk-management.

 

  (3) These arrangements should be supported by strong corporate governance, including active and effective oversight by the organization’s board of directors.

These principles and Final Guidance apply to senior executives and others who are responsible for oversight of HomeStreet’s company-wide activities and material business lines, as well as other employees who, either individually or as a part of a group, have the ability to expose the Bank to material amounts of risk.

The implications of the Final Guidance to HomeStreet are that a reassessment of our current incentive compensation plan designs was conducted and a process for developing, modifying and monitoring our incentive compensation arrangements was established to ensure they are balanced and in compliance with the Final Guidance. HomeStreet hired an independent consultant to review our incentive plans in light of the Final Guidance. As a result of this review, we believe that our compensation policies and practices do not encourage excessive risk-taking and are not reasonably likely to have a material adverse effect on the Company. We will continue to conduct regular internal reviews to help ensure the process is followed, and internal audits to ensure compliance with established policies and controls relating to incentive compensation arrangements, with oversight both by appropriate management and by the board of directors.

 

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Dodd-Frank Act . In addition to the Final Guidance, the Dodd-Frank Act contains a number of provisions relating to compensation applying to public companies such as HomeStreet after this offering. The Dodd-Frank Act added a new Section 14A(a) to the Exchange Act that requires companies to include a separate non-binding resolution subject to shareholder vote in their proxy materials approving the executive compensation disclosed in the materials. In addition, a new Section 14A(b) to the Exchange Act requires any proxy or consent solicitation materials for a meeting seeking shareholder approval of an acquisition, merger, consolidation or disposition of all or substantially all of the company’s assets to include a separate non-binding shareholder resolution approving certain “golden parachute” payments made in connection with the transaction. A new Section 10D to the Exchange Act requires the SEC to direct the national securities exchanges to require companies to implement a policy to “claw back” certain executive payments that were made based on improper financial statements. In addition, Section 956 of the Dodd-Frank Act requires certain regulators (including the FDIC, SEC and OTS) to adopt requirements or guidelines prohibiting excessive compensation or compensation that could lead to material loss as well as rules relating to disclosure of compensation. On February 7, 2011, the board of directors of the FDIC approved a joint proposed rulemaking to implement Section 956 of Dodd-Frank for depository institutions with $1 billion or more in assets. Section 956 prohibits incentive-based compensation arrangements that encourage inappropriate risk taking by covered financial institutions and are deemed to be excessive, or that may lead to material losses. The proposed rule would move the U.S. closer to aspects of international compensation standards by (1) requiring deferral of a substantial portion of incentive compensation for executive officers of particularly large institutions described above, (2) prohibiting incentive-based compensation arrangements for covered persons that would encourage inappropriate risks by providing excess compensation, (3) prohibiting incentive-based compensation arrangements for covered persons that would expose the institution to inappropriate risks by providing compensation that could lead to a material financial loss, (4) requiring policies and procedures for incentive-based compensation arrangements that are commensurate with the size and complexity of the institutions and (5) requiring annual reports on incentive compensation structures to the institution’s appropriate federal regulator. A joint rule-making proposal will be published for comment by all of the banking agencies and the SEC, among other agencies.

FDIC Regulations. We are further restricted in our ability to make certain “golden parachute” and “indemnification” payments under Part 359 of the FDIC regulations, and the FDIC also regulates payments to executives under Part 364 of its regulations relating to excessive executive compensation. Lastly, as mentioned else where in this registration statement, the Orders restrict our ability to hire new executive officers without the prior notice to the FDIC, the DFI or the OTS, and in connection with such notice, our regulators may review the compensation proposals for any such officers.

In addition to ensuring compliance with the Final Guidance, we will continue to closely monitor the status of regulations relating to compensation in the process of being adopted under the Dodd-Frank Act, and we will work to ensure compliance with other regulations relating to compensation, including Parts 359 and 364 of the FDIC’s regulations.

Regulation and Supervision of HomeStreet Bank

General

As a savings bank chartered under the laws of the State of Washington, HomeStreet Bank is subject to applicable provisions of Washington law and regulations of the Washington State Department of Financial Institutions, or DFI. As a state-chartered savings bank that is not a member of the Federal Reserve System, the Bank’s primary federal regulator is the FDIC. It is subject to regulation and examination by the DFI and the FDIC, as well as enforcement actions initiated by the DFI and the FDIC, and its deposits are insured by the FDIC.

 

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Washington Banking Regulation

As a Washington savings bank, the Bank’s operations and activities are substantially regulated by Washington law and regulations, which govern, among other things, the Bank’s ability to take deposits and pay interest, to make loans on or invest in residential and other real estate, to make consumer and commercial loans, to invest in securities, to offer various banking services to its customers and to establish branch offices. Under state law, savings banks in Washington also generally have, subject to certain limitations or approvals, all of the powers that Washington chartered commercial banks have under Washington law and that federal savings banks and national banks have under federal laws and regulations.

Washington law also governs numerous corporate activities relating to the Bank, including the Bank’s ability to pay dividends, to engage in merger activities and to amend its articles of incorporation, as well as limitations on change of control of the Bank. Under Washington law, the board of directors of the Bank may not declare a cash dividend on its capital stock if payment of such dividend would cause its net worth to be reduced below the net worth requirements, if any, imposed by the DFI and dividends may not be paid in an amount greater than its retained earnings without the approval of the DFI. These restrictions are in addition to restrictions imposed by federal law and the Bank Order. Mergers involving the Bank and sales or acquisitions of its branches are generally subject to the approval of the DFI. No person or entity may acquire control of the Bank until 30 days after filing an application with the DFI, who has the authority to disapprove the application. Washington law defines “control” of an entity to mean directly or indirectly, alone or in concert with others, to own, control or hold the power to vote 25.0% or more of the outstanding stock or voting power of the entity. Any amendment to the Bank’s articles of incorporation requires the approval of the DFI.

The Bank is subject to periodic examination and reporting requirements by the DFI, as well as enforcement actions initiated by the DFI. The DFI’s enforcement powers include the issuance of orders compelling or restricting conduct by the Bank and the authority to bring actions to remove the Bank’s directors, officers and employees. The DFI has authority to place the Bank under supervisory direction or to take possession of the Bank and to appoint the FDIC as receiver.

Dodd-Frank Act

Numerous provisions of the Dodd-Frank Act will affect the Bank and its business and operations. Some of these changes are effective immediately, though most will be phased in gradually. For example, one year after the date of enactment is a provision of the Dodd-Frank Act that eliminates the federal prohibitions on paying interest on demand deposits, thus allowing businesses to have interest-bearing checking accounts. Depending on competitive responses, this significant change to existing law could have an adverse impact on our interest expense. The Dodd-Frank Act also broadens the base for Federal Deposit Insurance Corporation insurance assessments. Assessments will now be based on the average consolidated total assets less tangible equity capital of a financial institution. The Dodd-Frank Act also permanently increases the maximum amount of deposit insurance for banks, savings institutions and credit unions to $250,000 per depositor, retroactive to January 1, 2009, and non-interest-bearing transaction accounts have unlimited deposit insurance through December 31, 2013.

The newly created Bureau of Consumer Financial Protection (“Consumer Bureau”) has broad rule-making authority for a wide range of consumer protection laws that apply to all banks and savings institutions, including the authority to prohibit “unfair, deceptive or abusive” acts and practices. The Consumer Bureau has examination and enforcement authority over all banks and savings institutions with more than $10 billion in assets. Financial institutions such as the Bank with $10 billion or less in assets will continue to be examined for compliance with the consumer laws by their primary bank regulators.

In addition, the statute in many instances calls for future rulemaking to implement its provisions, so the precise contours of the law and its effects on us cannot yet be fully understood. The Dodd-Frank Act requires

 

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various federal agencies to adopt a broad range of new implementing rules and regulations and to prepare numerous studies and reports for Congress. The federal agencies are given significant discretion in drafting the implementing rules and regulations, and consequently, many of the details and much of the impact of the Dodd-Frank Act may not be known for many months or years.

In addition, under the Dodd-Frank Act:

 

   

The requirements relating to the Bank’s capital have been modified.

 

   

The Federal Reserve is required to restrict interchange fees on debit card transactions.

 

   

In order to prevent abusive residential lending practices, new responsibilities are imposed on parties engaged in residential mortgage origination, brokerage and lending.

 

   

Restrictions on affiliate and insider transactions are expanded.

 

   

Restrictions on management compensation and related governance.

 

   

New rules which require banks that securitize mortgages to retain an economic interest in the credit risk for any asset transferred, sold or conveyed to third parties.

It is difficult to predict at this time what specific impact the Dodd-Frank Act and the yet-to-be written implementing rules and regulations will have on community banks. However, it is expected that at a minimum they will increase our operating and compliance costs and could increase our interest expense. Any additional changes in our regulation and oversight, whether in the form of new laws, rules and regulations could make compliance more difficult or expensive or otherwise materially adversely affect our business, financial condition or prospects. The provisions of the Dodd-Frank Act and the subsequent exercise by regulators of their revised and expanded powers thereunder could materially and negatively impact the profitability of our business, the value of assets we hold or the collateral available for our loans, require changes to business practices or force us to discontinue businesses and expose us to additional costs, taxes, liabilities, enforcement actions and reputational risk.

Insurance of Deposit Accounts and Regulation by the FDIC

The FDIC is the Bank’s principal federal bank regulator. As such, the FDIC is authorized to conduct examinations of and to require reporting by the Bank. The FDIC may prohibit the Bank from engaging in any activity determined by law, regulation or order to pose a serious risk to the institution, and may take a variety of enforcement actions in the event the Bank violates a law, regulation or order, engages in an unsafe or unsound practice or under certain other circumstances. The FDIC also has the authority to appoint itself as receiver of the Bank or to terminate the Bank’s deposit insurance if it were to determine that the Bank has engaged in unsafe or unsound practices or is in an unsafe or unsound condition. See “— Cease and Desist Orders” for a summary of the Bank Order.

The Bank is a member of the Deposit Insurance Fund (“DIF”) administered by the FDIC, which insures customer deposit accounts. Under the Dodd-Frank Act, the amount of federal deposit insurance coverage has been permanently increased from $100,000 to $250,000, per depositor, for each account ownership category at each depository institution. This change makes permanent temporary coverage increases that had been in effect since October 2008. In November 2008, in order to provide additional stability to the financial system, the FDIC also expanded its deposit coverage to provide a full guarantee of all amounts in non-interest bearing transaction accounts held in insured depository institutions that participated in the Transaction Account Guarantee Program (“TAGP”) of its Temporary Liquidity Guarantee Program (“TLGP”). The Bank participated in the TAGP. The TAGP expired on December 31, 2010. The Dodd-Frank Act, however, provides substantially similar unlimited

 

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FDIC insurance for non-interest bearing transaction accounts at all banks effective as of December 31, 2010 and continuing through December 31, 2012. This generally extends the coverage offered by the TAGP, although some accounts covered by the TAGP, such as NOW accounts, are not covered by this extension.

In order to maintain the DIF, member institutions, such as the Bank, are assessed insurance premiums. In light of the stresses that have occurred on the DIF in recent years and increases in insurance coverage, assessments have risen sharply. The FDIC imposed a special assessment on insured institutions in June 2009, has generally increased the assessment rates on insured institutions and required insured institutions to prepay on December 30, 2009 premiums that were expected to become due over the next three years. Because of its weak financial condition, the Bank received an exemption from the requirement to prepay its 2010, 2011 and 2012 assessments and continues to pay those quarterly.

The Dodd-Frank Act requires the FDIC to make numerous changes to the DIF and the manner in which assessments are calculated. The minimum ratio of assets in the DIF to the total of estimated insured deposits was increased from 1.15% to 1.35%, and the FDIC is given until September 30, 2020 to meet the reserve ratio. In December 2010, the FDIC adopted a final rule setting the reserve ratio of the DIF at 2.0%. In February 2011, the FDIC adopted a final rule covering assessments on insured institutions. As required by the Dodd-Frank Act, the February rule provides that assessments will be based on an insured institution’s average consolidated assets less tangible equity capital, instead of being based on deposits.

For the purpose of determining an institution’s assessment rate, each institution is provided an assessment risk assignment, which is generally based on the risk that the institution presents to the DIF. Insured institutions with assets of less than $10.0 billion are placed in one of four risk categories. These risk categories are generally determined based on an institution’s capital levels and its supervisory evaluation. Under the FDIC’s February rule, effective April 1, 2011, these institutions will generally have an assessment rate that can range from 2.5 to 45 basis points. However, the FDIC does have flexibility to adopt assessment rates without additional rule-making provided that (1) no quarterly adjustment is in excess of 2 basis points and (2) the cumulative adjustment cannot exceed 2 basis points. In the future, if the reserve ratio reaches certain levels, these assessment rates will generally be lowered. As of December 31, 2010, the Bank’s assessment rate was 32.0% of assessable deposits.

In addition, all FDIC-insured institutions are required to pay a pro rata portion of the interest due on obligations issued by the Financing Corporation to fund the closing and disposal of failed thrift institutions by the Resolution Trust Corporation. The Financing Corporation rate is adjusted quarterly to reflect changes in assessment bases of the DIF. These assessments will continue until the Financing Corporation bonds mature in 2019. The annual rate for the first quarter of 2011 is 1.02 basis points.

The FDIC may terminate the deposit insurance of any insured depository institution, including the Bank, if it determines after a hearing that the institution has engaged or is engaging in unsafe or unsound practices, is in an unsafe or unsound condition to continue operations or has violated any applicable law, regulation, order or any written condition imposed by the FDIC in connection with an application or other request or in connection with a written agreement with the FDIC. It also may suspend deposit insurance temporarily during the hearing process for the permanent termination of insurance if the FDIC finds that the institution has no tangible capital. If insurance of accounts is terminated, the accounts at the institution at the time of the termination, less subsequent withdrawals, shall continue to be insured for a period of six months to two years, as determined by the FDIC.

Qualified Thrift Lender Test

A savings association can comply with the Qualified Thrift Lender test either by meeting the Qualified Thrift Lender test set forth in the HOLA and its implementing regulations or by qualifying as a domestic building and loan association as defined in Section 7701(a)(19) of the Internal Revenue Code of 1986 and implementing regulations.

 

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To qualify under the HOLA test, the Bank is required to maintain at least 65% of its “portfolio assets” in at least three months of the most recent 12-month period. “Portfolio assets” are total assets less (1) specified liquid assets up to 20% of total assets, (2) intangibles, including goodwill, and (3) the value of the property used to conduct business in certain “qualified thrift investments” (primarily residential mortgages and related investments, including certain mortgage-backed securities, credit card loans, student loans and small business loans).

To qualify under the Internal Revenue Code test, a savings association must meet both a “business operations” test and a “60% of assets” test. The business operations test requires the business of a savings association to consist primarily of acquiring the savings of the public and investing in loans. The 60% of assets test requires that at least 60% of a savings association’s assets must consist of residential real property loans and certain other traditional thrift assets. While the Bank is eligible to qualify as a qualified thrift lender under the HOLA test, it is not clear due to statutory ambiguities that the Bank is eligible to qualify under the Internal Revenue Code test. As noted above, it is necessary for the Bank to qualify as a qualified thrift lender only under one of these two tests.

As of December 31, 2010, the Bank held approximately 88% of its portfolio assets in qualified thrift investments and had more than $1.82 billion of its portfolio assets in qualified thrift investments for each of the 12 months ending December 31, 2010. Therefore, the Bank qualified under the HOLA test. A savings association subsidiary of a savings and loan holding company that does not meet the Qualified Thrift Lender test must comply with the following restrictions on its operations:

 

   

the association may not engage in any new activity or make any new investment, directly or indirectly, unless the activity or investment is also permissible for a national bank;

 

   

the branching powers of the association are restricted to those of a national bank located in the association’s home state; and

 

   

payment of dividends by the association are subject to the rules regarding payment of dividends by a national bank and certain other restrictions.

Further, under the Dodd-Frank Act, an institution which fails to comply with the qualified thrift lender test is also subject to possible agency enforcement action as a violation of law under the HOLA. In addition, if the institution does not requalify under HOLA test within three years after failing the test, the institution would be prohibited from engaging in any activity not permissible for a national bank and would have to repay any outstanding advances from the FHLB as promptly as possible. Within one year of the date that a savings association ceases to meet the Qualified Thrift Lender test, any company that controls the association must register as and be deemed to be a bank holding company subject to all of the provisions of the Bank Holding Company Act of 1956 and other statutes applicable to bank holding companies. There are certain limited exceptions to these requirements.

Capital and Prompt Corrective Action Requirements

Capital Requirements

Federally insured depository institutions, such as the Bank, are required to maintain a minimum level of regulatory capital. The FDIC regulations recognize two types, or tiers, of capital: “core capital,” or Tier 1 capital, and “supplementary capital,” or Tier 2 capital. Tier 1 capital generally includes common shareholders’ equity and noncumulative perpetual preferred stock, less most intangible assets. Tier 2 capital, which is recognized up to 100% of Tier 1 capital for risk-based capital purposes (after any deductions for disallowed intangibles and disallowed deferred tax assets), includes such items as qualifying general loan loss reserves (up to 1.25% of risk-weighted assets), cumulative perpetual preferred stock, long-term preferred stock (original maturity of at least

 

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20 years), certain perpetual preferred stock, hybrid capital instruments including mandatory convertible debt, term subordinated debt, intermediate-term preferred stock (original average maturity of at least five years) and net unrealized holding gains on equity securities (subject to certain limitations); provided, however, the amount of term subordinated debt and intermediate term preferred stock that may be included in Tier 2 capital for risk-based capital purposes is limited to 50.0% of Tier 1 capital.

The FDIC currently measures a bank’s capital using the (1) total risk-based capital ratio, (2) Tier 1 risk-based capital ratio and (3) Tier 1 capital leverage ratio. The risk-based measures are based on ratios of qualifying capital to risk-weighted assets. To determine risk-weighted assets, assets are placed in one of five categories and given a percentage weight based on the relative risk of that category. In addition, certain off-balance-sheet items are converted to balance-sheet credit equivalent amounts, and each amount is then assigned to one of the five categories. In evaluating the adequacy of a bank’s capital, the FDIC may also consider other factors that may affect the bank’s financial condition, such as interest rate risk exposure, liquidity, funding and market risks, the quality and level of earnings, concentration of credit risk, risks arising from nontraditional activities, loan and investment quality, the effectiveness of loan and investment policies, and management’s ability to monitor and control financial operating risks.

Prompt Corrective Action Regulations

Section 38 of the Federal Deposit Insurance Act establishes a framework of supervisory actions for insured depository institutions that are not adequately capitalized, also known as “prompt corrective action” regulations. All of the federal banking agencies have promulgated substantially similar regulations to implement a system of prompt corrective action. The framework for the type of supervisory action is based on a determination of a bank’s capital category as follows:

 

   

in order to be considered “well capitalized,” a bank must have a total risk-based capital ratio of 10.0% or more, a Tier 1 risk-based capital ratio of 6.0% or more, a leverage capital ratio of 5.0% or more, and must not be subject to specified requirements to meet and maintain a specific capital level for any capital measure;

 

   

in order to be considered “adequately capitalized,” a bank must have a total risk-based capital ratio of 8.0% or more, a Tier 1 risk-based capital ratio of 4.0% or more, and a leverage capital ratio of 4.0% or more (or, a leverage ratio of at least 3.0%, but a composite CAMELS (Capital adequacy, asset quality, management quality, earnings, liquidity and sensitivity to market risk) rating of 1 at the last examination, and not be experiencing or anticipating any significant growth) and not meet the definition of “well capitalized”;

 

   

a bank is “undercapitalized” if it has a total risk-based capital ratio that is less than 8.0%, a Tier 1 risk-based capital ratio that is less than 4.0%, or a leverage capital ratio that is less than 4.0% (or a leverage ratio of at least 3.0% under certain circumstances);

 

   

a bank is “significantly undercapitalized” if it has a total risk-based capital ratio that is less than 6.0%, a Tier 1 risk-based capital ratio that is less than 3.0% or a leverage capital ratio that is less than 3.0%; and

 

   

a bank is “critically undercapitalized” if it has a ratio of tangible equity to total assets that is equal to or less than 2.0%.

Additionally, a bank, based upon its capital levels, that is classified as “well capitalized,” “adequately capitalized” or “undercapitalized” may be treated as though it were in the next lower capital category if the appropriate federal banking agency, after notice and opportunity for a hearing, determines that an unsafe or unsound condition, or an unsafe or unsound practice, warrants such treatment.

 

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At each successive lower capital category, an insured bank is subject to increasingly severe supervisory actions. These actions include, but are not limited to, restrictions on asset growth, interest rates paid on deposits, branching, allowable transactions with affiliates, ability to pay bonuses and raises to senior executives and pursuing new lines of business. Additionally, all “undercapitalized” banks are required to implement capital restoration plans to restore capital to at least the “adequately capitalized” level, and the FDIC is generally required to close “critically undercapitalized” banks within a 90-day period.

As of December 31, 2010, the Bank had a total risk-based capital ratio, Tier 1 risk-based capital ratio and Tier 1 leverage capital ratio of 8.2%, 6.9% and 4.5%, respectively. As such, the Bank is currently “adequately capitalized.” Pursuant to the Bank Order, by October 5, 2009, the Bank was required to have met and maintained a total risk-based capital ratio of at least 12.0% and a Tier 1 (leverage) capital ratio of at least 10.0%. Given the Bank’s current ratios, it has failed to satisfy the requirements of the Bank Order. Although the Bank is considered to be “adequately capitalized,” the FDIC retains the right to require a depository institution to maintain a higher capital level based on its particular risk profile. Given the Bank’s overall asset quality and risk profile, the FDIC and the DFI have required that the Bank achieve and maintain a higher level of capital due to its concentrations in commercial real estate and acquisition, development and construction lending and in loans where the loan-to-value ratios exceed applicable regulatory guidelines. See “Risk Factors — We are operating under cease and desist orders from the OTS, the FDIC and the DFI that prohibit us, among other things, from paying dividends without the consent of our regulators and that place other limitations and obligations on the Company and the Bank. We are not in full compliance with the Bank Order, and noncompliance may subject us to additional enforcement action.” The Dodd-Frank Act contains provisions intended to strengthen the capital of banks and their holding companies. Among other things, the federal banking agencies are directed to establish minimum leverage capital requirements and minimum risk-based capital requirements for insured institutions and holding companies. Such minimums cannot be less than those in effect July 21, 2010. The Dodd-Frank Act capital requirements on savings and loan holding companies do not become effective until July 21, 2015. In December 2010, the federal banking agencies issued a proposed rule which generally proposed a floor for capital of a 4.0% leverage ratio and an 8.0% risk-based ratio. These proposed regulations have not become effective, and we cannot predict what changes may be made prior to their final adoption.

In December 2010, the Basel Committee on Banking Supervision (the “BCBS”) finalized new capital standards. The BCBS is a committee of banking supervisory authorities of various countries, including the United States. The standards adopted by the BCBS in December 2010 are commonly referred to as “Basel III” and will be phased in over a number of years. Basel III, among other things, imposes more restrictive eligibility requirements for Tier 1 and Tier 2 capital and establishes a minimum Tier 1 common equity (generally common stock, stock surplus and retained earnings) to risk-weighted assets ratio of 4.5%, a minimum Tier 1 capital to risk-weighted assets ratio of 6.0% and a minimum total capital (Tier 1 and Tier 2) to risk-weighted assets ratio of 8.0%. In addition, Basel III imposes constraints on dividends and other distributions if the Tier 1 common equity to risk-weighted assets ratio is less than 7.0%, the Tier 1 capital to risk-weighted assets ratio is less than 8.5% or the total capital to risk-weighted assets ratio is less than 10.5%. Basel III also imposes a Tier 1 leverage ratio of 3.0% based on a measure of total exposure rather than total assets, permits regulators to impose an additional 2.5% common equity buffer during periods of excessive credit growth, caps the level of mortgage servicing rights that can be included in capital and introduces new liquidity standards. If adopted by the United States banking regulators, Basel III could result in more stringent capital and liquidity requirements for the Company and the Bank.

Limitations on Transactions with Affiliates

Transactions between the Bank and any affiliate are governed by Sections 23A and 23B of the Federal Reserve Act. An affiliate of the Bank is any company or entity which controls, is controlled by or is under common control with the Bank but which is not a subsidiary of the Bank. The Company and its non-bank subsidiaries are affiliates of the Bank. Generally, Section 23A limits the extent to which the Bank or its subsidiaries may engage in “covered transactions” with any one affiliate to an amount equal to 10.0% of the

 

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Bank’s capital stock and surplus, and imposes an aggregate limit on all such transactions with all affiliates in an amount equal to 20.0% of such capital stock and surplus. Section 23B applies to “covered transactions” as well as certain other transactions and requires that all transactions be on terms substantially the same, or at least as favorable, to the Bank as those provided to a non-affiliate. The term “covered transaction” includes the making of loans to an affiliate, the purchase of or investment in the securities issued by an affiliate, the purchase of assets from an affiliate, the acceptance of securities issued by an affiliate as collateral security for a loan or extension of credit to any person or company, or the issuance of a guarantee, acceptance or letter of credit on behalf of an affiliate.

In addition, Sections 22(g) and (h) of the Federal Reserve Act place restrictions on loans to executive officers, directors and principal shareholders of the Bank and its affiliates. Under Section 22(h), loans to a director, executive officer or greater than 10.0% shareholder of the Bank or its affiliates and certain related interests may generally not exceed, together with all other outstanding loans to such person and related interests, 15.0% of the Bank’s unimpaired capital and surplus, plus an additional 10.0% of unimpaired capital and surplus for loans that are fully secured by readily marketable collateral having a value at least equal to the amount of the loan. Section 22(h) also requires that loans to directors, executive officers and principal shareholders be made on terms substantially the same as those offered in comparable transactions to other persons, and not involve more than the normal risk of repayment or present other unfavorable features. There is an exception for loans that are made pursuant to a benefit or compensation program that (1) is widely available to employees of the Bank or its affiliate and (2) does not give preference to any director, executive officer or principal shareholder or certain related interests over other employees of the Bank or its affiliate. Section 22(h) also requires prior board approval for certain loans. In addition, the aggregate amount of all loans to all of the executive officers, directors and principal shareholders of the Bank or its affiliates and certain related interests may not exceed 100.0% of the institution’s unimpaired capital and surplus. Furthermore, Section 22(g) places additional restrictions on loans to executive officers. The Bank believes it is in compliance with the limitations on transactions with affiliates.

The Dodd-Frank Act expands the affiliate transaction rules and the lending rules applicable to executive officers, directors and principal shareholders by, among other things, applying the affiliate transaction rules to securities lending, repurchase agreements and derivatives to transactions and by adding derivatives, repurchase agreements and securities lending transactions with executive officers, directors and principal shareholders to the transactions covered by Sections 22(g) and (h) of the Federal Reserve Act.

Standards for Safety and Soundness

The federal banking regulatory agencies have prescribed, by regulation, a set of guidelines for all insured depository institutions prescribing safety and soundness standards. These guidelines establish general standards for internal controls, information systems, internal audit systems, loan documentation, credit underwriting, interest rate risk exposure, asset growth, asset quality, earnings standards, compensation, fees and benefits. In general, the guidelines require appropriate systems and practices to identify and manage the risks and exposures specified in the guidelines before capital becomes impaired. The guidelines prohibit excessive compensation as an unsafe and unsound practice and describe compensation as excessive when the amounts paid are unreasonable or disproportionate to the services performed by an executive officer, employee, director, or principal shareholder. The Bank was required to strengthen certain of these standards under the Bank Order, as described above. See “— Cease and Desist Orders.”

Each insured depository institution must implement a comprehensive written information security program that includes administrative, technical and physical safeguards appropriate to the institution’s size and complexity and the nature and scope of its activities. The information security program also must be designed to ensure the security and confidentiality of customer information, protect against any unanticipated threats or hazards to the security or integrity of such information, protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to any customer and ensure the proper disposal of customer and consumer information. Each insured depository institution must also develop and implement a

 

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risk-based response program to address incidents of unauthorized access to customer information in customer information systems. If the FDIC determines that the Bank fails to meet any standard prescribed by the guidelines, it may require the Bank to submit an acceptable plan to achieve compliance with the standard. The Bank maintains a program to meet the information security requirements and believes it is currently in compliance with this regulation.

Real Estate Lending Standards

FDIC regulations require the Bank to adopt and maintain written policies that establish appropriate limits and standards for real estate loans. These standards, which must be consistent with safe and sound banking practices, must establish loan portfolio diversification standards, prudent underwriting standards (including loan-to-value ratio limits) that are clear and measurable, loan administration procedures and documentation, approval and reporting requirements. The Bank is obligated to monitor conditions in its real estate markets to ensure that its standards continue to be appropriate for current market conditions. The Bank’s board of directors is required to review and approve the Bank’s standards at least annually. The Bank was required to strengthen certain of these standards under the Bank Order, and the Bank’s board of directors is required to increase its participation in the affairs and supervision of the Bank. See “— Cease and Desist Orders” above. The Bank believes that it is currently in compliance with these requirements of the Bank Order.

The FDIC has published guidelines for compliance with these regulations, including supervisory limitations on loan-to-value ratios for different categories of real estate loans. Under the guidelines, the aggregate amount of all loans in excess of the supervisory loan-to-value ratios should not exceed 100.0% of total capital, and the total of all loans for commercial, agricultural, multifamily or other non-one-to-four family residential properties should not exceed 30.0% of total capital. Loans in excess of the supervisory loan-to-value ratio limitations must be identified in the Bank’s records and reported at least quarterly to the Bank’s board of directors. As of December 31, 2010 and 2009, the Bank’s aggregate loans in excess of the supervisory loan-to-value ratios were 122.0% and 129.0% of total capital, respectively, and the Bank’s loans on commercial, agricultural, multifamily or other non- one-to-four family residential properties in excess of the supervisory loan-to-value ratios were 9.0% and 9.0% of total capital, respectively. The Bank has consistently operated above the aggregate 100.0% of capital guideline limit since these standards were imposed. In 2009, the regulators directed the Bank to reduce these levels to conform to the 100.0% of capital guideline level. Total supervisory loan-to-value exception exposure decreased $50.3 million, from $219.9 million at December 31, 2009 to $169.6 million at December 31, 2010. The Bank’s goal was 100.0% of risk-based capital by December 31, 2009, however, we did not achieve that goal. We will need additional capital in order to meet this goal.

Guidance on Real Estate Concentrations

On December 6, 2006, the federal banking agencies issued guidance on sound risk management practices for concentrations in commercial real estate lending. The particular focus is on exposure to commercial real estate loans that are dependent on the cash flow from the real estate held as collateral and that are likely to be sensitive to conditions in the commercial real estate market (as opposed to real estate collateral held as a secondary source of repayment or as an abundance of caution). The purpose of the guidance is not to limit a bank’s commercial real estate lending but to guide banks in developing risk management practices and capital levels commensurate with the level and nature of real estate concentrations. The FDIC and other bank regulatory agencies will be focusing their supervisory resources on institutions that may have significant commercial real estate loan concentration risk. A bank that has experienced rapid growth in commercial real estate lending, has notable exposure to a specific type of commercial real estate loan or is approaching or exceeding the following supervisory criteria may be identified for further supervisory analysis with respect to real estate concentration risk:

 

   

total reported loans for construction, land development and other land represent 100.0% or more of the bank’s risk-based capital; or

 

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total commercial real estate loans (as defined in the guidance) represent 300.0% or more of the bank’s risk-based capital and the outstanding balance of the bank’s commercial real estate loan portfolio has increased 50.0% or more during the prior 36 months.

The strength of an institution’s lending and risk management practices with respect to such concentrations will be taken into account in supervisory evaluation of capital adequacy.

On March 17, 2008, the FDIC issued a release to re-emphasize the importance of strong capital and loan loss allowance levels and credit risk management practices for institutions with concentrated commercial real estate exposures. The FDIC suggested that institutions with significant construction and development and commercial real estate loan concentrations (1) increase or maintain strong capital levels, (2) ensure that loan loss allowances are appropriately strong, (3) manage construction and development and commercial real estate loan portfolios closely, (4) maintain updated financial and analytical information on their borrowers and collateral and (5) bolster the loan workout infrastructure.

As required by the Bank Order, the Bank has implemented a plan to reduce its concentrations in construction, land development and other land loans, and in total commercial real estate loans, to be in compliance with regulatory guidance limits and to improve its related risk management practices. The Bank amended its policies to lower its exposure to construction and land-related loans, re-balance its loan portfolio diversification, establish geographic diversification standards and reduce single borrower exposure. The Bank’s plan calls for a reduction in the concentration of construction and land-related loans to 100.0% of Tier 1 capital plus allowance for loan losses, and a reduction in the concentration of all commercial real estate loans, including construction and land, to 300.0% of Tier 1 capital plus allowance for loan losses. Due to the Bank’s significant commercial real estate concentrations, the plan calls for the reductions in these concentrations to be achieved by the end of 2011 based on the assumption that the Bank does not raise additional capital. At December 31, 2010, the dollar level of the construction and land-related concentration had been reduced by $596.9 million since December 31, 2008. The ratio for this time period decreased from 342.0% to 259.8% of risk-based capital. The dollar level of our total commercial real estate concentration had been reduced by $613.1 million from December 31, 2008 to December 31, 2010, however the ratio increased to 562.3% from 498.0% of risk-based capital. We expect to achieve the targeted concentration levels upon receiving the additional capital in this offering.

As part of the concentration reduction plan, the Bank revised its loan portfolio diversification standards, reducing reliance on construction and land loans and establishing geographic limits. The geographic limits set a maximum percentage for each type of loan in our portfolio that may be originated within the lending areas of Washington, Oregon, Idaho and Hawaii and also for lending outside of its market area.

Additionally, the Bank reduced its single borrower limits to a more conservative level. Under its state savings bank charter, the Bank does not have prescriptive single borrower limits. Prior to September 2008, the Bank’s policies permitted lending up to 25.0% of capital to a single borrower without board of directors approval and up to 30.0% of capital with board of directors approval. In June 2010, the Bank lowered its single borrower limit to $20.0 million. During the transition period while the Bank is working to reduce these exposures, no loans will be made without board of director approval to borrowers currently in excess of the $20.0 million limit unless such action serves to strengthen the Bank’s position.

Activities and Investments of Insured State-Chartered Financial Institutions

Federal law generally prohibits FDIC-insured state banks from engaging as a principal in activities, and from making equity investments, other than those that are permissible for national banks. An insured state bank is not prohibited from, among other things, (1) acquiring or retaining a majority interest in certain subsidiaries, (2) investing as a limited partner in a partnership the sole purpose of which is direct or indirect investment in the acquisition, rehabilitation or new construction of a qualified housing project, provided that such limited

 

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partnership investments may not exceed 2.0% of the bank’s total assets, (3) acquiring up to 10.0% of the voting stock of a company that solely provides or reinsures directors’, trustees’ and officers’ liability insurance coverage or bankers’ blanket bond group insurance coverage for insured depository institutions and (4) acquiring or retaining the voting shares of a depository institution if certain requirements are met.

Washington State has enacted a law regarding financial institution parity. The law generally provides that Washington-chartered savings banks may exercise any of the powers of Washington-chartered commercial banks, national banks and federally-chartered savings banks, subject to the approval of the Director of the DFI in certain situations.

Environmental Issues Associated With Real Estate Lending

The Comprehensive Environmental Response, Compensation and Liability Act, or the CERCLA, is a federal statute that generally imposes strict liability on all prior and present “owners and operators” of sites containing hazardous waste. However, Congress has acted to protect secured creditors by providing that the term “owner and operator” excludes a person whose ownership is limited to protecting its security interest in the site. Since the enactment of the CERCLA, this “secured creditor” exemption has been the subject of judicial interpretations which have left open the possibility that lenders could be liable for cleanup costs on contaminated property that they hold as collateral for a loan. To the extent that legal uncertainty exists in this area, all creditors, including the Bank, that have made loans secured by properties with potential hazardous waste contamination (such as petroleum contamination) could be subject to liability for cleanup costs, which costs often substantially exceed the value of the collateral property.

Reserves Requirements

The Bank is subject to Federal Reserve Board regulations pursuant to which depositary institutions may be required to maintain non-interest-earning reserves against their deposit accounts and certain other liabilities. Currently, reserves must be maintained against transaction accounts (primarily negotiable order of withdrawal and regular checking accounts). The regulations generally require that reserves be maintained in the amount of 3.0% of the aggregate of transaction accounts over $10.7 million up to $58.8 million. Net transaction accounts up to $10.7 million are exempt from reserve requirements. The amounts of transaction accounts subject to the various reserve ratios are generally adjusted by the Federal Reserve annually. The amount of aggregate transaction accounts in excess of $58.8 million is subject to a reserve ratio of 10.0%.

The Bank is in compliance with the foregoing reserve requirements. Because required reserves must be maintained in the form of vault cash, a non interest-bearing account at a Federal Reserve Bank or a pass-through account as defined by the FRBSF, the effect of this reserve requirement is to reduce the Bank’s interest-earning assets. The balances maintained to meet the reserve requirements imposed by the FRBSF may be used to satisfy liquidity requirements. FHLB System members are also authorized to borrow from the Federal Reserve discount window, but FRBSF regulations require such institutions to exhaust all FHLB sources before borrowing from a Federal Reserve Bank.

Federal Home Loan Bank System

The FHLB system consists of twelve regional FHLBs. Among other benefits, each FHLB serves as a reserve or central bank for its members within its assigned region. Each FHLB is financed primarily from the sale of consolidated obligations of the FHLB system. Each FHLB makes available loans or advances to its members in compliance with the policies and procedures established by the board of directors of the individual FHLB. The Bank is a member of the FHLB. As a member, the Bank is required to own stock in the FHLB and currently owns stock in the FHLB with $ 37.0 million of paid-in capital. The Federal Housing Finance Agency (the “Finance Agency”) is the primary regulator of the FHLB, and the Finance Agency currently classifies the FHLB

 

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as undercapitalized. In October 2010, the FHLB entered into a Stipulation and Consent to the issuance of a Consent Order with the Finance Agency, which sets forth requirements for capital management, asset composition and other operating and risk management improvements.

Community Reinvestment Act of 1977

Banks are subject to the provisions of the Community Reinvestment Act of 1977, or the CRA, which requires the appropriate federal bank regulatory agency to assess a bank’s record in meeting the credit needs of the assessment areas serviced by the bank, including low and moderate income neighborhoods. The regulatory agency’s assessment of the bank’s record is made available to the public. Further, these assessments are considered by regulators when evaluating mergers, acquisitions and applications to open or relocate a branch or facility. The Bank currently has a rating of “Outstanding” under the CRA.

Dividends

Dividends from the Bank constitute the major source of funds for dividends that may be paid by the Company to shareholders. The amount of dividends payable by the Bank to the Company depends upon the Bank’s earnings and capital position and is limited by federal and state laws. According to Washington law, the Bank may not declare or pay a cash dividend on its capital stock if this would cause its net worth to be reduced below the net worth requirements, if any, imposed by the Director of the DFI. In addition, dividends on the Bank’s capital stock may not be paid in an amount greater than its retained earnings without the approval of the Director of the DFI. The Bank Order prohibits the Bank from paying any cash dividends without the prior written consent of the Regional Director of the FDIC’s San Francisco Regional Office and the Director of Banks of the DFI.

The amount of dividends actually paid during any one period will be strongly affected by the Bank’s policy of maintaining a strong capital position. Because the Bank is treated as a savings association subsidiary of a savings and loan holding company, it must give the OTS at least 30 days’ advance notice of the proposed declaration of a dividend on its guaranty, permanent or other non-withdrawable stock. Federal law prohibits an insured depository institution from paying a cash dividend if this would cause the institution to be “undercapitalized,” as defined in the prompt corrective action regulations. Moreover, the federal bank regulatory agencies have the general authority to limit the dividends paid by insured banks if such payments are deemed to constitute an unsafe and unsound practice.

Liquidity

The Bank is required to maintain a sufficient amount of liquid assets to ensure its safe and sound operation. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations — Liquidity Risk and Capital Resources.”

Compensation

The Bank is subject to regulation of its compensation practices. See “Regulation and Supervision — Regulation of the Company — Compensation Policies.”

Bank Secrecy Act and USA Patriot Act

The Company and the Bank are subject to the Bank Secrecy Act, as amended by the USA PATRIOT Act, which gives the federal government powers to address money laundering and terrorist threats through enhanced domestic security measures, expanded surveillance powers and mandatory transaction reporting obligations. By way of example, the Bank Secrecy Act imposes an affirmative obligation on the Bank to report currency transactions that exceed certain thresholds and to report other transactions determined to be suspicious.

 

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Title III of the USA PATRIOT Act takes measures intended to encourage information sharing among financial institutions, bank regulatory agencies and law enforcement bodies. Further, certain provisions of Title III impose affirmative obligations on a broad range of financial institutions, including banks, thrifts, brokers, dealers, credit unions, money transfer agents and parties registered under the Commodity Exchange Act. Among other requirements, the USA PATRIOT Act imposes the following obligations:

 

   

financial institutions must establish anti-money laundering programs that include, at minimum: (1) internal policies, procedures and controls, (2) specific designation of an anti-money laundering compliance officer, (3) ongoing employee training programs and (4) an independent audit function to test the anti-money laundering program;

 

   

financial institutions must establish and meet minimum standards for customer due diligence, identification and verification;

 

   

financial institutions that establish, maintain, administer or manage private banking accounts or correspondent accounts in the United States for non-United States persons or their representatives (including foreign individuals visiting the United States) must establish appropriate, specific and, where necessary, enhanced due diligence policies, procedures and controls designed to detect and report money laundering through those accounts;

 

   

financial institutions are prohibited from establishing, maintaining, administering or managing correspondent accounts for foreign shell banks (foreign banks that do not have a physical presence in any country), and are subject to certain recordkeeping obligations with respect to correspondent accounts of foreign banks; and

 

   

bank regulators are directed to consider a bank or holding company’s effectiveness in combating money laundering when ruling on various regulatory applications.

Like all United States companies and individuals, the Company and the Bank are prohibited from transacting business with certain individuals and entities named on the Office of Foreign Asset Control’s list of Specially Designated Nationals and Blocked Persons. Failure to comply may result in fines and other penalties. The Office of Foreign Asset Control (“OFAC”) has issued guidance directed at financial institutions in which it asserted that it may, in its discretion, examine institutions determined to be high-risk or to be lacking in their efforts to comply with these prohibitions.

The Bank maintains a program to meet the requirements of the Bank Secrecy Act, USA PATRIOT Act and OFAC and believes it is currently in compliance with these requirements.

Identity Theft

The federal banking agencies finalized a joint rule implementing Section 315 of the Fair and Accurate Credit Transactions Act, or FACT Act, requiring each financial institution or creditor to develop and implement a written Identity Theft Prevention Program to detect, prevent and mitigate identity theft “red flags” in connection with the opening of certain accounts or certain existing accounts. The rule became effective on January 1, 2008 and mandatory compliance for financial institutions commenced on November 1, 2008. Among the requirements under the rule, the Bank was required to adopt “reasonable policies and procedures” to:

 

   

identify relevant red flags for covered accounts and incorporate those red flags into the program;

 

   

detect red flags that have been incorporated into the program;

 

   

respond appropriately to any red flags that are detected to prevent and mitigate identity theft; and

 

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ensure the program is updated periodically, to reflect changes in risks to customers or to the safety and soundness of the financial institution or creditor from identity theft.

The Bank maintains a program to meet the requirements of Section 315 of the FACT Act and believes it is currently in compliance with these requirements.

Consumer Protection Laws and Regulations

The Bank and its affiliates are subject to a broad array of federal and state consumer protection laws and regulations that govern almost every aspect of its business relationships with consumers. While this list is not exhaustive, these include the Truth-in-Lending Act, the Truth in Savings Act, the Electronic Fund Transfer Act, the Expedited Funds Availability Act, the Equal Credit Opportunity Act, the Fair Housing Act, the SAFE Act, the Real Estate Settlement Procedures Act, the Home Mortgage Disclosure Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the Service Members’ Civil Relief Act, the Right to Financial Privacy Act, the Home Ownership and Equity Protection Act, the Consumer Leasing Act, the Fair Credit Billing Act, the Homeowners Protection Act, the Check Clearing for the 21st Century Act, laws governing flood insurance, laws governing consumer protections in connection with the sale of insurance, federal and state laws prohibiting unfair and deceptive business practices, foreclosure laws and various regulations that implement some or all of the foregoing. These laws and regulations mandate certain disclosure requirements and regulate the manner in which financial institutions must deal with customers when taking deposits, making loans, collecting loans and providing other services. Failure to comply with these laws and regulations can subject the Bank to various penalties, including but not limited to, enforcement actions, injunctions, fines, civil liability, criminal penalties, punitive damages and the loss of certain contractual rights. The Bank has a compliance governance structure in place to help insure its compliance with these requirements.

The Dodd-Frank Act establishes the Bureau of Consumer Financial Protection as a new independent bureau within the Federal Reserve system that will be responsible for regulating consumer financial products and services under federal consumer financial laws. The Bureau will have broad rulemaking authority with respect to these laws and exclusive examination and primary enforcement authority with respect to banks with assets of $10 billion or more.

The Dodd-Frank Act also contains a variety of provisions intended to reform consumer mortgage practices. The provisions include (1) a requirement that lenders make a reasonable determination that at the time a residential mortgage loan is consummated the consumer has a reasonable ability to repay the loan and related costs, (2) a ban on loan originator compensation based on the interest rate or other terms of the loan (other than the amount of the principal), (3) a ban on prepayment penalties for certain types of loans, (4) bans on arbitration provisions in mortgage loans and (5) requirements for enhanced disclosures in connection with the making of a loan. The Act also imposes a variety of requirements on entities that service mortgage loans.

The Dodd-Frank Act contains provisions further regulating the payment card transactions. The Act requires the Federal Reserve to adopt regulations limiting any interchange fee for a debt transaction to an amount which is “reasonable and proportioned” to the costs incurred by the issuer. The Federal Reserve has issued proposed regulations which would significantly reduce the fee and thereby reduce fees received by banks that issue debit cards. While there is an exemption from the required reduction for issuers with assets less than $10 billion, it is unclear whether such smaller issuers will, as a practical matter, be able to avoid the reductions.

The Americans with Disabilities Act requires employers with 15 or more employees and all businesses operating “commercial facilities” or “public accommodations” to accommodate disabled employees and customers. The Americans with Disabilities Act has two major objectives (1) to prevent discrimination against disabled job applicants, job candidates and employees and (2) to provide disabled persons with ready access to commercial facilities and public accommodations. Commercial facilities, such as the Bank, must ensure that all new facilities are accessible to disabled persons, and in some instances may be required to adapt existing facilities to make them accessible.

 

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Future Legislation or Regulation

The Dodd-Frank Act authorizes or requires substantial rulemakings by the various banking agencies. Since many of these rules have not been proposed or finalized, it is difficult to determine what the impacts of the Act will be on the Company and the Bank, and future rulemakings under the Act could have an adverse effect on the Company, the Bank and our business, operations or financial conditions.

In addition, in light of recent conditions in the United States economy and the financial services industry, the Obama administration, Congress, the regulators and various states continue to focus attention on the financial services industry. Additional proposals that affect the industry have been and will likely continue to be introduced. We cannot predict whether any of these proposals will be enacted or adopted or, if they are, the effect they would have on our business, our operations or our financial condition.

 

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MANAGEMENT

Directors, Executive Officers and Significant Employees

The following tables set forth certain information with respect to persons who are, or upon consummation of this offering will be, members of the board of directors (including our director nominees named below), executive officers and other significant employees of each of HomeStreet, Inc. and the Bank, including their ages as of December 31, 2010 and positions:

New and Continuing Directors of HomeStreet, Inc.

 

Name

   Age      Director
Since
   

Class

  

Term Expiration

David A. Ederer, Chairman

     68         2005      Class II    2011 Annual Meeting

Mark K. Mason, Vice Chairman

     51         2010      Class I    2013 Annual Meeting

Brian P. Dempsey

     73         2008 (1)    Class III    2012 Annual Meeting

Gerhardt Morrison

     72         2003 (2)    Class III    2012 Annual Meeting

Bruce W. Williams

     57         1994      Class I    2013 Annual Meeting

 

(1) Mr. Dempsey also served on the board of directors of HomeStreet, Inc. from 1999 to 2001.
(2) Mr. Morrison did not serve on the board of directors of HomeStreet, Inc. from May 2008 to October 2008.

New and Continuing Directors of HomeStreet Bank

 

Name

   Age      Director
Since
    

Class

  

Term Expiration

Mark K. Mason, Chairman

     51         2010       Class I    2013 Annual Meeting

Glory C. Beijar(1)

     34         2007      

Class I

  

2013 Annual Meeting

Brian P. Dempsey

     73         1996       Class II    2011 Annual Meeting

David A. Ederer

     68         2004       Class I    2013 Annual Meeting

Gerhardt Morrison

     72         1986       Class III    2012 Annual Meeting

Scott M. Boggs

     55         2006       Class III    2012 Annual Meeting

Thomas E. King

     66         2010       Class II    2011 Annual Meeting

George “Judd” Kirk

     65         2008       Class II    2011 Annual Meeting

Mary H. Oldshue

     59         2007       Class III    2012 Annual Meeting

 

(1) pending regulatory approval

Current Directors of HomeStreet, Inc.

 

Name

   Age      Director
Since
    Class    Term Expiration  

David A. Ederer, Chairman

     68         2005      Class II      2011 Annual Meeting   

Mark K. Mason, Vice Chairman

     51         2010      Class I      2013 Annual Meeting   

Glory C. Beijar

     34         2006      Class III      2012 Annual Meeting   

Brian P. Dempsey

     73         2008 (1)    Class II      2011 Annual Meeting   

Gerhardt Morrison

     72         2003 (2)    Class III      2012 Annual Meeting   

Janet L. Westling

     65         2000      Class III      2012 Annual Meeting   

Bruce W. Williams

     57         1994      Class I      2013 Annual Meeting   

Kathryn A. Williams

     64         1994      Class II      2011 Annual Meeting   

Marcia F. Williams

     61         2001      Class I      2013 Annual Meeting   

Wendy S. Williams

     56         2001      Class III      2012 Annual Meeting   

Karen M. Zimmerman

     62         2001      Class II      2011 Annual Meeting   

Steven W. Zimmerman

     60         2001      Class I      2013 Annual Meeting   

 

(1) Mr. Dempsey also served on the board of directors of HomeStreet, Inc. from 1999 to 2001.
(2) Mr. Morrison did not serve on the board of directors of HomeStreet, Inc. from May 2008 to October 2008.

Current Directors of HomeStreet Bank

 

Name

   Age      Director
Since
    

Class

  

Term Expiration

Mark K. Mason, Chairman

     51         2010       Class I    2013 Annual Meeting

Brian P. Dempsey

     73         1996       Class II    2011 Annual Meeting

David A. Ederer

     68         2004       Class I    2011 Annual Meeting

Gerhardt Morrison

     72         1986       Class III    2012 Annual Meeting

Janet L. Westling

     65         2000       Class III    2012 Annual Meeting

Kathryn A. Williams

     64         1999       Class II    2011 Annual Meeting

Scott M. Boggs

     55         2006       Class III    2012 Annual Meeting

Thomas E. King

     66         2010       Class II    2011 Annual Meeting

George “Judd” Kirk

     65         2007       Class II    2011 Annual Meeting

Mary H. Oldshue

     59         2007       Class III    2012 Annual Meeting

Cynthia P. Sonstelie

     64         1995       Class I    2013 Annual Meeting

 

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Executive Officers and Significant Employees

 

Name

   Age     

Position at HomeStreet, Inc.

  

Position at HomeStreet Bank

Mark K. Mason

     51       Chief Executive Officer, President    Chief Executive Officer, President

David E. Hooston

     54       Executive Vice President, Chief Financial Officer    Executive Vice President, Chief Financial Officer

Jay C. Iseman

     51       Executive Vice President, Chief Credit Officer    Executive Vice President, Chief Credit Officer

Godfrey B. Evans

     56       Executive Vice President, Chief Administrative Officer, General Counsel and Corporate Secretary    Executive Vice President, Chief Administrative Officer; General Counsel, and Corporate Secretary

Richard W.H. Bennion

     61          Executive Vice President, Residential Lending Director

Patricia A. Leach

     59       Executive Vice President    Executive Vice President, Income Property Lending Director

Paul J. Battaglia

     47          Senior Vice President, Credit Counsel

Susan C. Greenwald

     52          Senior Vice President, Single Family Lending Operations Director

Mark C. Gregory

     46          Senior Vice President, Chief Information Officer

Kathleen A. Kanealii

     61          Senior Vice President, Business Banking Director

Paulette Lemon

     54          Senior Vice President, Retail Banking Director

Pamela J. Taylor

     59          Senior Vice President, Human Resources Director

Jeffrey L. Todhunter

     55          Senior Vice President, Residential Construction Lending Director

Darrell van Amen

     45       Senior Vice President, Treasurer    Senior Vice President, Asset/Liability Manager, Treasurer

Mary L. Vincent

     52          Senior Vice President, Risk & Regulatory Oversight Director

Kathryn A. Williams

     64          Senior Vice President, Community Relations Director

Directors

HomeStreet, Inc. currently has a 12-member board of directors and the Bank has an 11-member board. Following the closing of this offering, we expect to reduce the size of each board to nine directors. In 2010, the Company’s board of directors met 16 times. The Company’s board of directors is divided into three classes and, therefore, one-third of our directors are elected each year to serve for a three year term or until a successor is duly elected and qualified. Under our bylaws, each of the Company’s directors must be a U.S. residents and shareholder of HomeStreet, Inc. Certain directors have resigned from the HomeStreet, Inc. board of directors, effective as of the closing of this offering, whereupon certain directors from the Bank board will join the board of the Company and additional new directors will be appointed to fill the resulting vacancies. The primary purpose of these resignations is to enable HomeStreet, Inc. to meet the director independence and committee composition requirements set forth in the applicable Nasdaq Stock Market corporate governance rules upon the closing of this offering. The director nominees will not become directors of HomeStreet, Inc. unless and until they receive the approval of the OTS, Federal Reserve and DFI.

The number of directors may be increased or decreased from time to time by our board of directors, provided that a reduction in the number of directors may not shorten the term of an incumbent. Newly created directorships resulting from any increase in the authorized number of directors or any vacancies in the board of directors may be filled solely by the affirmative vote of a majority of the remaining directors then in office, unless otherwise provided by law or by resolution of the board of directors. Immediately after this offering, a majority of our directors will satisfy the definition of “independent director” under the corporate governance rules of Nasdaq.

Mark K. Mason, Director, Vice Chairman, Chief Executive Officer and President of HomeStreet, Inc.; Director, Chairman of the Board, Chief Executive Officer and President of the Bank . Mr. Mason has been the

 

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Company’s Vice Chairman and Chief Executive Officer and the Bank’s Chairman and Chief Executive Officer since January 19, 2010. Mr. Mason was hired as a consultant beginning September 28, 2009, and we announced in October 2009 that he would be named Chief Executive Officer and a member of the boards of directors subject to regulatory approval. We received those approvals on January 19, 2010. Mr. Mason received regulatory approval to serve as the President of the Bank on July 31, 2010 and as the President of the Company on August 16, 2010. From 1998 to 2002, Mr. Mason was president, chief executive officer and chief lending officer for Bank Plus Corporation and its wholly owned banking subsidiary, Fidelity Federal Bank, where Mr. Mason also served as the chief financial officer from 1994 to 1995 and as chairman of the board of directors from 1998 to 2002. From 1995 to 1998, Mr. Mason served as chief financial officer for First Alliance Corporation. Prior to 1994, Mr. Mason managed consulting, accounting and auditing services for Deloitte and Touche and served as a director and chief financial officer for The Eadington Companies, a diversified commercial real estate development, agriculture and lumber products company. Most recently, Mr. Mason served as president of a startup energy company, TEFCO, LLC, and he served on the boards of directors of Hanmi Financial Corp., San Diego Community Bank, and The Bjurman Barry Family of Mutual Funds. Mr. Mason is a certified public accountant (inactive) and holds a bachelor’s degree in Business Administration with an emphasis in Accounting from California State Polytechnic University. Mr. Mason brings extensive business, managerial and leadership experience to our board of directors. Mr. Mason was selected to serve as a director because of his significant experience as an executive officer, director and consultant to banks and mortgage companies, his credit and lending experience, finance and accounting education and experience, distressed institution turnaround experience and relationships in the banking industry and the capital markets.

Glory C. Beijar, Director of HomeStreet , Inc. Ms. Beijar joined the Company’s board in 2006. Ms. Beijar will become a member of the board of directors of the Bank, subject to applicable regulatory approval, and has resigned as a director of HomeStreet, Inc. effective upon the completion of this offering. Since 2005, Ms. Beijar has served as chief financial officer and chief operating officer and as a member of the board of directors of the Anatec Group of Companies. Prior to joining the Anatec Group of Companies, she was a strategy and marketing consultant for CESMO/DevoTeam, a consulting firm based in Paris, France, from 2001 to 2004. She received a bachelor’s degree in International Economics and French from the University of California at Los Angeles and a master’s degree in Managing Technology and Innovation from the Universite de Dauphine, Paris IV. Ms. Beijar is the niece of director Janet Westling. Ms. Beijar was selected to serve as a director because of her financial education and experience in finance, business and management.

Brian P. Dempsey, Director of HomeStreet, Inc. and the Bank . Mr. Dempsey joined the Bank as a member of the board of directors in 1996. From 1999 until 2001, he also served as a member of the board of directors of the Company. Mr. Dempsey rejoined the board of directors of the Company in 2008 and currently serves as a member of the board of directors of the Company and as lead director of the Bank. Mr. Dempsey previously served as vice chairman of the Bank from 1996 to 2001. Between 1991 and 2002, Mr. Dempsey served as a member of the board of directors of Golden State Bancorp. He also served as president and chairman of University Savings Bank from 1984 to 1994. Mr. Dempsey previously served as a member of the board of directors of the Federal Home Loan Bank of Seattle, as president of Talmadge Hamilton House (a United Way Agency) and as chairman of the Washington Savings League. Mr. Dempsey received a bachelor’s degree in Business Administration and a masters of business administration from the University of Washington. Mr. Dempsey was selected to serve as a director because of his significant experience as an executive officer and director of several financial institutions, his experience as a director on several public company boards, his experience on board committees and his professional degrees and training in business and management.

David A. Ederer, Director and Chairman of the Board of HomeStreet, Inc. and director of the Bank . Mr. Ederer joined the Bank in 2004 as a member of its board of directors and in 2005 also became a member of the board of directors of HomeStreet, Inc. Mr. Ederer was elected chairman in 2009. Since 1974 Mr. Ederer has served as the chairman of Ederer Investment Company, a private investment company, and he currently serves on the board of directors of the Prostate Cancer Foundation (formerly CaPCURE), PONCHO, CRISTA Ministries and the University of Washington Medical Institute for Prostate Cancer Research. Mr. Ederer has previously

 

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served as a director of a number of public and private companies, organizations and institutions, including Cascade Natural Gas, University Savings Bank, Farmers New World Life Insurance Company, Children’s Hospital and Seattle Pacific University. Mr. Ederer is a certified public accountant (inactive) and managed consulting, accounting and auditing services for Price Waterhouse from 1965 to 1974. Mr. Ederer received a bachelor’s degree in Business Administration from the University of Washington. Mr. Ederer was selected to serve as a director because of his experience as a director on public company boards, his experience on board committees, his financial expertise and his professional degrees and training in business and management.

Gerhardt Morrison, Director of HomeStreet, Inc. and the Bank . Mr. Morrison joined the Bank in 1986 as a member of the board of directors. He served as a member of the board of directors of HomeStreet, Inc. from 2003 until May 2008, and rejoined the board of directors of the Company in October 2008. Mr. Morrison is a retired business attorney. He previously served as chairman of the Bogle & Gates’ Business Law Department until his retirement on December 31, 1997. He has also served as a trustee of the Northwest Hospital and as chairman of its audit committee, as a director and treasurer of Citizens for Smart Growth (Blaine County, Idaho), a trustee of Zion Preparatory Academy, chairman and trustee of Big Brothers of Seattle, a trustee of the Overlake School, and as a trustee of the Seattle Repertory Theatre. Mr. Morrison received a bachelor’s degree in Business Administration and Accounting from the University of Washington and a law degree from Stanford Law School. Mr. Morrison was selected to serve as a director of HomeStreet, Inc. and HomeStreet Bank because of his significant financial and legal experience, business, accounting and legal degrees, and significant relationships in the business and legal communities in Seattle.

Janet L. Westling, Director of HomeStreet Inc. and the Bank . Ms. Westling has served as a member of the board of directors for both the Bank and the Company since 2000. Ms. Westling has resigned as a director of HomeStreet, Inc. and HomeStreet Bank effective upon the completion of this offering. Ms. Westling retired in 2000. Prior to that she was the administrative manager in a family business, Good Earth Construction Company, from 1995 to 2000. From 1992 to 1995, she was a health insurance agent and financial advisor for New York Life Insurance Company. Ms. Westling received a bachelor’s degree in Art from the University of California, Berkeley. Ms. Westling is the first cousin of directors Bruce Williams, Marcia Williams, Wendy Williams, Karen Zimmerman and Steven Zimmerman as well as director and executive officer Kathryn Williams. She is also aunt to director Glory Beijar. Ms. Westling was selected to serve as a director because of her general business experience and civic and community involvement.

Bruce W. Williams, Director of HomeStreet, Inc. Mr. Williams has served as a member of the board of directors for HomeStreet, Inc. since 1994. Mr. Williams began serving as an officer of the Company in 1990, first as our general counsel and then as a senior vice president. In 2000, he was promoted to president and chief operating officer and then to chief executive officer in 2002, a position that he held until January 2010 when we received regulatory approval of Mr. Mason’s appointment as Chief Executive Officer. Mr. Williams resigned as president on January 19, 2010. Mr. Williams holds a bachelor’s degree in History from Stanford University and a law degree from the University of Washington School of Law. Mr. Williams is the brother of director and executive officer Kathryn Williams and directors Marcia Williams and Wendy Williams, and is the first cousin of directors Janet Westling, Steven Zimmerman and Karen Zimmerman. Mr. Williams was selected to serve as a director of the Company because of his experience as an executive officer, director of the Bank, legal degree and experience and involvement in local community affairs in Seattle.

Kathryn A. Williams, Director of HomeStreet, Inc.; Director and Senior Vice President and Community Relations Director of the Bank . Ms. Williams has served as a member of the board of HomeStreet, Inc. since 1994 and as a member of the board of the Bank since 1999. Ms. Williams has resigned as a director of HomeStreet, Inc. and HomeStreet Bank effective upon the completion of this offering. She has also served as Senior Vice President of the Bank since 1988, and as Vice President of Loan Administration at the Bank from 1978 through 1985. She returned to the Bank in 1988 as Senior Vice President and Director of Communications and Marketing, subsequently moving to her current position of Senior Vice President, Director of Community Relations in 2000. Ms. Williams has also held leadership roles with a number of community organizations,

 

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including serving on the Advisory Board for the University of Washington, School of Social Work, the board of directors of the Woodland Park Zoo, the board of directors of the Mountain-to-Sound Greenway, the board of trustees of Seattle Rotary, and the board of directors of the Downtown Seattle Association. Ms. Williams received a bachelor’s degree in Sociology from University of Washington, a master’s degree in social work from University of Washington School of Social Work, a master’s of business administration in Finance from University of Puget Sound, and is a graduate of the School of Mortgage Banking and an Accredited Mortgage Professional (AMP). Ms. Williams is the sister of directors Bruce Williams, Wendy Williams and Marcia Williams. She is also the first cousin of directors Janet Westling, Steven Zimmerman and Karen Zimmerman. Ms. Williams was selected to serve as a director of HomeStreet, Inc. and HomeStreet Bank because of her experience in loan administration and her industry banking education, business degree, and leadership roles in educational and charitable organizations in Seattle.

Marcia F. Williams, Director of HomeStreet, In c . Ms. Williams joined HomeStreet, Inc. in 2001 as a member of its board of directors. Ms. Williams has resigned as a director of HomeStreet, Inc. effective upon the completion of this offering. Ms. Williams has been a member of the faculty of the Department of Rehabilitation Medicine at the University of Washington and as a physical therapy specialist at the Center on Human Development & Disability at the University of Washington since 1977. She is a senior lecturer in the Department of Epidemiology at the School of Public Health & Department of Rehabilitation Medicine within the School of Medicine at the University of Washington. Ms. Williams received a bachelor’s degree in Biological Science from Wellesley College, a physical therapy certification from Simmons College, a master’s degree in public health and Maternal & Child Health from the University of Washington and a Ph.D in Epidemiology from the University of Washington. Ms. Williams is the sister of directors Bruce Williams and Wendy Williams and of director and executive officer Kathryn Williams. She is also the first cousin of directors Janet Westling, Steven Zimmerman and Karen Zimmerman. Ms. Williams was selected to serve as a director because of her significant education and background as an educator, researcher, and author and civic and community involvement.

Wendy S. Williams, Director of HomeStreet, Inc. Ms. Williams joined HomeStreet, Inc. in 2001 as a member of the board of directors. Ms. Williams has resigned as a director of HomeStreet, Inc. effective upon the completion of this offering. Ms. Williams specializes in marketing of business-to-business Internet products. She also has more than twenty years of marketing and sales experience with software and Internet start-ups. Ms. Williams received a bachelor’s degree in Japan Area Studies from the University of Washington and a masters of business administration in Marketing and Finance from the University of Chicago. Ms. Williams is the sister of director and executive officer Kathryn Williams and directors Bruce Williams and Marcia Williams. She is also the first cousin of directors Janet Westling, Steven Zimmerman and Karen Zimmerman. Ms. Williams was selected to serve as a director because of her business degree and marketing and business experience, primarily in the technology industry.

Karen M. Zimmerman, Director of HomeStreet, Inc . Ms. Zimmerman joined HomeStreet, Inc. in 2001 as a member of its board of directors. Ms. Zimmerman has resigned as a director of HomeStreet, Inc. effective upon the completion of this offering. Prior to joining the Company, Ms. Zimmerman worked in several industries, including as a law librarian, legal support staff member, and independent consultant with Avon International since 1999, and secretary to the Assistant Dean of the University of California-San Francisco. She has also served as a vice president of the East Clark County Great Artists Series. Ms. Zimmerman studied at Whitworth College and the University of San Francisco. Ms. Zimmerman is the first cousin of directors Bruce Williams, Marcia Williams, Wendy Williams and Janet Westling and director and executive officer Kathryn Williams. She is also the sister of Steven Zimmerman. Ms. Zimmerman was selected to serve as a director because of her civic and community service.

Steven W. Zimmerman, Director of HomeStreet, Inc . Mr. Zimmerman joined the HomeStreet, Inc. board of directors in 2001. Mr. Zimmerman has resigned as a director of HomeStreet, Inc. effective upon completion of this offering. Since 1979, Mr. Zimmerman has served as the president of Zimco Construction Company, specializing in new home construction and remodeling. Mr. Zimmerman received a bachelor’s degree in

 

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Sociology from the University of Puget Sound and a master’s degree in Divinity from the Iliff School of Theology at the University of Denver. Mr. Zimmerman is the first cousin of directors Bruce Williams, Marcia Williams, Wendy Williams and Janet Westling and director and executive officer Kathryn Williams. He is also the brother of Karen Zimmerman. Mr. Zimmerman was selected to serve as a director because of his experience as a builder and his civic and community service and educational background.

Scott M. Boggs, Director of the Bank. Mr. Boggs joined the Bank in 2006 as a member of the board of directors. Prior to joining the Bank, Mr. Boggs was employed by Microsoft Corporation from 1993 to 2008 where he served in a variety of positions including vice president, corporate controller form 1998 to 2003. Mr. Boggs was also an adjunct professor for the Seattle University Albers School of Business and Economics teaching accounting and information systems from 2004 until 2009. Mr. Boggs previously served as a trustee and chair of the audit committee and budget and investments committee of the Financial Executives Research Foundation from 2002 to 2008, as director, chair of the pension committee and audit committee and designated financial expert of the Cascade Natural Gas Corporation from 2004 to 2007, and director, vice chair of audit committee and designated financial expert of the Safeco family of mutual funds from 2002 to 2004. He is a former member of the King County Strategic Technology Advisory Council, the Seattle University Accounting Advisory Board and the Financial Executives International. Mr. Boggs started his career as a certified public accountant with Deloitte, Haskins & Sells form 1977 to 1985, and he received his bachelor’s degree in Accounting from the University of Washington. Mr. Boggs was selected to serve as a director of HomeStreet Bank because of his significant accounting and financial experience, his accounting credentials and degree as well as his experience as a designated financial expert on audit committees.

Thomas E. King, Director of the Bank . Mr. King joined the Bank in 2010 as a member of the board of directors. Prior to joining the Bank’s board, Mr. King served as president and chief executive officer, chief credit officer and director of San Diego Community Bank from 2001 to 2006. Since retiring from San Diego Community Bank following its sale to First Banks, Inc. in 2006, Mr. King has provided consulting services to banks and other financial services companies. Prior to joining San Diego Community Bank, he served as executive vice president and chief operating officer of Fullerton Community Bank from 1997 to 1998, president and chief executive officer and director of the Bank of Southern California from 1994 to 1996, and president, chief executive officer and director of CapitolBank Sacramento from 1992 to 1994. From 1969 to 1992, Mr. King held various senior positions in commercial lending, real estate lending, credit administration, corporate and merchant banking and retail banking at Security Pacific National Bank. He received a bachelor’s degree in Business Administration from California State University, Northridge. Mr. King was chosen to serve as a director of HomeStreet Bank because of his experience as an executive officer, director and consultant to banks and financial services companies, his commercial banking relationships, his financial experience, commercial lending and credit administration experience and distressed institution turnaround experience.

George Judd” Kirk, Director of the Bank . Mr. Kirk has served as a member of the board of directors of the Bank since 2008. Mr. Kirk has served as president of Port Blakely Communities, Inc. from 1997 to 2007 and as its Chief Executive Officer from 2007 to 2008. Prior to joining Port Blakely Communities, he served as president of Skinner Development Company and until 1986, chaired the Real Estate Department of Davis Wright Tremaine LLP in Seattle. Mr. Kirk is a member of the Washington State Bar Association (WSBA). He has previously served as a member of the Urban Land Institute (CDC Council), American College of Real Estate Lawyers, and the Pacific Real Estate Institute. He is also a member of the boards of directors of several community organizations, including University of Washington Physicians, and the Cascade Land Conservancy Advisory Board. Mr. Kirk has previously served as the chairman of the WSBA Real Property, Probate and Trust Section. He has been a speaker at seminars for the Urban Land Institute, Pacific Coast Builders Conference, Practicing Law Institute and WSBA. Mr. Kirk received a bachelor’s degree in Finance from the University of Washington, School of Business, and a law degree cum laude from Harvard Law School. Mr. Kirk was selected to serve as a director of HomeStreet Bank because of his business and management experience, his real estate development experience, his knowledge of real estate and real estate finance and his legal experience, as well as his civic and community service involvement.

 

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Mary H. Oldshue, Director of the Bank . Ms. Oldshue joined the Bank’s board of directors in 2007. Ms. Oldshue previously has served as a member of the boards of directors for a number of for-profit and non-profit organizations, including Metro One, a publicly held telecommunications company, from 2006 to 2009, the board of trustees of Marylhurst University from 2000 to 2009, the board of the Alumnae and Alumni of Vassar College from 2006 to 2010. Ms. Oldshue has served as an advisory council member of the Center for Ethics in Healthcare at Oregon Health & Sciences University since 1990 and was appointed life trustee at Marylhurst University in 2009. Ms. Oldshue began her career in 1973 with Chemical Bank in New York City (now a part of JP Morgan Chase) in their officer training program, advancing to credit analyst and then commercial and real estate lending officer. In 1980 she became treasurer of NERCO, a natural resources company wholly owned by PacifiCorp, until its public offering in 1984. In 1987, she became the chief financial officer of Pacific Development Inc., a company founded by PacifiCorp to acquire over 70 blocks in Portland’s central business district. In 1993 she became an independent consultant in finance and business development. Ms. Oldshue received a bachelor’s degree from Vassar College. Ms. Oldshue was selected to serve as a director of HomeStreet Bank because of her general business knowledge, her finance and banking experience and her service on several boards as a director, as well as her civic and community involvement.

Cynthia P. Sonstelie, Director of the Bank. Ms. Sonstelie joined HomeStreet, Inc. in 1994 as a member of the board of directors and served until 2004. Beginning in 1995, she has served as a member of the board of directors of the Bank. Ms. Sonstelie is retired and has resigned as a director of HomeStreet Bank effective upon the completion of this offering. Prior to her retirement, she was an independent human resources consultant from 1997 to 2005, and she served as vice president of human resources for Simpson Investment Company from 1984 to 1997. She is also a member of the Advisory Board for Buerk Dale Victor LLC and a lifetime member of the board of directors of the YMCA of Greater Seattle. Ms. Sonstelie has previously served on the board of directors of Calla Bay, Inc., Seattle University, Forest Ridge School, United Way of King County, Timber Operators’ Council, HealthPlus, Camp Fire and the Azimuth Foundation. Ms. Sonstelie received a bachelor degree in History and Social Science from Southern Methodist University and a master’s degree in International Studies from Johns Hopkins University. Ms. Sonstelie was selected to serve as a director of HomeStreet Bank because of her general business knowledge and her experience in human resources and executive compensation matters as well as her civic and community involvement.

Executive Officers

David E. Hooston, Executive Vice President and Chief Financial Officer of HomeStreet, Inc. and the Bank . Mr. Hooston has been the Chief Financial Officer for both HomeStreet, Inc. and the Bank since January 20, 2010. Mr. Hooston was engaged to act as a consultant for the Company and the Bank beginning August 31, 2009. Prior to that, Mr. Hooston was managing partner of Granite Bay Partners, LLC, a private equity firm focused on the financial services industry. From 1994 to 2007, Mr. Hooston worked for Belvedere Capital Partners, LLC, a private equity firm focused on investing in banking institutions on the West Coast. Concurrently, he served in various roles with Belvedere’s owned investments, including chief financial officer, president and chief operating officer, and director of Placer Sierra Bancshares, its subsidiaries and predecessor institutions. From 1990 to 1995 Mr. Hooston was a financial consultant to banking institutions. From 1984 to 1990, Mr. Hooston was the chief financial officer of ValliCorp Holdings, Inc. From 1979 to 1984, Mr. Hooston was with the accounting firm of Price Waterhouse & Company. Mr. Hooston is a certified public accountant (inactive) and holds a bachelor’s degree in Business Economics from the University of California, Santa Barbara.

Jay C. Iseman, Executive Vice President and Chief Credit Officer of HomeStreet, Inc. and the Bank. Mr. Iseman joined the Bank in August 2009 and currently serves as the Executive Vice President and Chief Credit Officer of the Company and the Bank. Prior to his current position and since joining the Company in 2009, Mr. Iseman has served as Senior Vice President, Credit Administration and Vice President, Special Assets Group and OREO Group Manager and Income Property Credit Administrator. Mr. Iseman served as senior vice president and senior portfolio manager of commercial special assets with Bank of America between 2008 and 2009 and as vice president and client manager with Bank of America from 2000 to 2007. During 2008, prior to

 

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returning to Bank of America, Mr. Iseman served as vice president and senior relationship manager with Key Bank Real Estate Capital. Mr. Iseman holds a bachelor’s degree in Business Administration and Economics from Seattle Pacific University and a certificate of advanced study in International Finance and Marketing from the American Graduate School of International Management.

Godfrey B. Evans, Executive Vice President, General Counsel, Chief Administrative Officer and Corporate Secretary of HomeStreet, Inc. and the Bank . Mr. Evans joined HomeStreet in November 2009 and currently serves as the Executive Vice President, General Counsel and Chief Administrative Officer. From 2008 until joining HomeStreet, Mr. Evans was the managing director of the bankruptcy and restructuring practice group at Marshall & Stevens. Prior to this, Mr. Evans served as interim general counsel and chief restructuring officer for Chapeau, Inc. From 2005 to 2008, Mr. Evans served as a practicing attorney and as a project professional for Resources Global Professionals, and from 1987 to 2002, Mr. Evans served as executive vice president, chief administrative officer, general counsel and corporate secretary for Fidelity Federal Bank and its holding companies. Mr. Evans also served as an attorney for Gibson, Dunn & Crutcher LLP from 1982 to 1987. Mr. Evans is admitted to practice in California and is a member of the California state bar. Mr. Evans holds bachelor’s degree and master’s degree in Architecture from the University of California, Berkeley and a law degree from Loyola Law School in Los Angeles.

Richard W.H. Bennion, Executive Vice President of HomeStreet, Inc; Executive Vice President and Residential Lending Director of the Bank . Mr. Bennion joined HomeStreet in 1977 and currently serves as the Bank’s Executive Vice President and residential lending director. Prior to his current position, Mr. Bennion managed the Bank’s Seattle Metro, Tacoma and Federal Way mortgage branches in various positions over a 14-year period from 1981 to 1995. He has been a member of the Fannie Mae Western Business Center Advisory Board since 2004, Chair of the Housing Partnership, a nonprofit organization, from 2001 to 2007 and a member of the University of Washington Milgard School of Business Advisory Board since 2004. Mr. Bennion is the past director of the Homebuilders Association of Tacoma-Pierce County, the past director and president of Puget Sound Mortgage Lenders Association and Washington Mortgage Lenders Association. Mr. Bennion holds a bachelor’s degree in History and China Regional Studies from the University of Washington and a masters of business administration from the University of Washington and is a graduate of the School of Mortgage Banking.

Patricia A. Leach, Executive Vice President of Home Street, Inc.; Executive Vice President and Income Property Lending Director of the Bank . Ms. Leach joined the Bank in 1985 and since 1998 has served as the Executive Vice President and Income Property Lending Director. Since 1985 Ms. Leach has also served as Senior Vice President and Manager of Income Property Finance, Vice President and Income Property Loan officer, and income property loan closer. Ms. Leach is a member of the board of directors of the Seattle Housing Resources Group, member of Commercial Real Estate Women, member of National Association of Industrial and Office Parks, past chair and member of Embers, an industry peer group, and a member of the mortgage banking committee of the Mortgage Bankers Association of America. She is also treasurer of the Urban Land Institute of Seattle. Ms. Leach previously served as chairperson of Embers, chairperson of the Affordable Housing Committee, co-chairperson of the Multifamily Committee, a member of the board of directors of Common Ground, a member of the Income Property Committee of Seattle Mortgage Bankers, a member of the Fannie Mae Housing Impact Advisory Council and a member of the Fannie Mae Partnership Office Advisory Council. Ms. Leach received her bachelor’s degree in Anthropology from the University of New Hampshire and a Master Urban & Regional Planning degree in Housing and Real Estate Finance from George Washington University.

Paul J. Battaglia, Senior Vice President, Credit Counsel of the Bank. Mr. Battaglia has served the Bank since 2010. Mr. Battaglia’s career in both private practice and as in-house bank counsel has focused on commercial, real property, bank litigation issues and mortgage default servicing issues. Prior to joining the Bank, Mr. Battaglia was of counsel to Williams, Kastner & Gibbs from 2009 to 2010, senior in-house counsel at Washington Mutual Bank and JP Morgan Chase from 2005 to 2009, of counsel to Graham & Dunn from 2001 to 2004 and an associate and member of Smith Smart from 1991 to 2000. Mr. Battaglia holds a bachelor’s degree in English from the University of Puget Sound, a J.D. from the University of Washington and is a member of the Washington State and Federal Bar Associations.

 

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Susan C. Greenwald, Senior Vice President, Single Family Lending Operations Director of HomeStreet Bank . Ms. Greenwald joined the Bank in 1984 and currently serves as Senior Vice President, Single Family Lending Operations Director. Ms. Greenwald began her career at the Bank as a secondary marketing assistant and has served in a number of lending-related management roles. Ms. Greenwald has also served as a director and treasurer of Common Ground and a legislative and legal affairs committee member of Seattle Mortgage Bankers Association. Ms. Greenwald has been a member of Seattle Mortgage Bankers since approximately 1987 and is an active participant on various industry committees. She holds a bachelor’s degree in Economics from Southern Oregon College.

Mark C. Gregory, Senior Vice President and Chief Information Officer of the Bank . Mr. Gregory joined the Bank in 2007 as Chief Information Officer. Prior to joining the Bank, he held various positions at Safeco Corporation, including vice president, application solution delivery from 2006 to 2007, vice president, IT infrastructure operations from 2003 to 2006, assistant vice president, enterprise and corporate systems from 2001 to 2003, and assistant vice president, corporate and financial systems. Mr. Gregory holds a bachelor’s degree in Mathematics and Computer Science from Park College, Kansas City.

Kathleen A. Kanealii, Senior Vice President, Business Banking Director of the Bank . Ms. Kanealii joined the Bank in 2002 as Senior Vice President and Business Banking Director. Prior to joining the Bank, Ms. Kanealii served Bank of America as senior vice president and senior relationship manager for middle market commercial lending between 1999 and 2002, and vice president, business banking between 1996 and 1999. Ms. Kanealii also held managerial positions with Puget Sound Bank from 1982 to 1992. She has served as treasurer at Northwest Associated Arts since 1995, and holds a bachelor’s degree in Business Administration and Accounting from the University of Washington.

Paulette Lemon, Senior Vice President, Retail Banking Director of the Bank . Ms. Lemon joined the Bank in 1985 and since 2001 has served as Senior Vice President, Retail Banking Director and as Vice President, Retail Bank Operations Manager prior to 2001. From 1979 to 1985, Ms. Lemon served as Senior Vice President, Operations Officer and Branch Manager/Single Family Loan Officer of Home Savings and Loan Association. She holds a bachelor’s degree in Business Administration from Western Washington University and she has completed graduate work in banking at National School of Banking through Fairfield University. She is an associate member for the Corporate Council of the Arts.

Pamela J. Taylor, Senior Vice President, Human Resources Director of the Bank . Ms. Taylor joined the Bank in 1998 as senior vice president and human resources director. She holds a senior professional human resource certification from the Society for Human Resource Management and a bachelor’s degree in English from California State University, Northridge.

Jeffrey L. Todhunter, Senior Vice President, Residential Construction Lending Director of the Bank. Mr. Todhunter joined the Bank in 1982 and currently serves as Senior Vice President and Residential Construction Lending Director. Prior to his current position with the Bank, he served as vice president and branch manager of the Bellevue lending branch from 1990 to 1997 and construction department manager of the Bellevue lending branch from 1982 to 1989. Prior to joining HomeStreet, Mr. Todhunter was assistant vice president and permanent loan department manager for Old Stone Mortgage Corporation from 1980 to 1982. He holds a bachelor’s degree in Business Administration from the University of Washington.

Darrell van Amen, Senior Vice President, Asset/Liability Manager, Treasurer of the Bank; Senior Vice President and Treasurer of HomeStreet, Inc . Mr. van Amen joined the Bank in 2003 and currently serves as Senior Vice President and Treasurer. Prior to his current position with the Bank, he was the Vice President, Asset/Liability Manager and Treasurer of the Bank and the Company from 2003 to 2010. Prior to that, Mr. van Amen was the Quantitative Analytics Manager for the Royal Bank of Canada from 2001 to 2003. From 1999 to 2001, Mr. van Amen was Vice President and Balance Sheet Manager at Old Kent Financial in Michigan. He holds a bachelor’s degree in Economics from Weber State University and a master’s degree in Economics from Claremont Graduate University.

 

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Mary L. Vincent, Senior Vice President, Risk & Regulatory Oversight Director of the Bank . Ms. Vincent joined the Bank in 1987 and currently serves as Senior Vice President, Risk and Regulatory Oversight Director. Prior to her current position, she served as an assistant vice president, compliance officer from 1987 to 1991, a vice president, internal auditor from 1991 to 1998 and a senior vice president, internal audit director from 1998 to 2004. Ms. Vincent has been a member of the Seattle chapter of the Risk Management Association since 2003 and a member of the Enterprise Risk Management working group of the American Bankers Association since 2009. She holds a bachelor’s degree in Business Administration, Finance from the University of Washington and is a graduate of the Pacific Coast Banking School.

The current terms of the executive officers will expire at such time as their successors are elected.

Committees of the Board of Directors

Committee Membership of Board of Directors of HomeStreet, Inc. Post-Offering

 

Director

  

Audit Committee

   Human Resources and Corporate
Governance Committee

David A. Ederer

   Chair   

Mark K. Mason

     

Brian P. Dempsey

   X    X

Gerhardt Morrison

      X

Bruce W. Williams

     

Committee Membership of Current Board of Directors of HomeStreet, Inc.

 

Director

  

Audit Committee

   Human Resources and Corporate
Governance Committee

David A. Ederer

   Chair   

Mark K. Mason

     

Glory C. Beijar

     

Brian P. Dempsey

   X    X

Gerhardt Morrison

      X

Janet L. Westling

   X   

Bruce W. Williams

     

Kathryn A. Williams

     

Marcia F. Williams

      X

Wendy S. Williams

     

Karen M. Zimmerman

     

Steven W. Zimmerman

     

Audit Committee

Prior to the closing of this offering, the audit committee of HomeStreet, Inc. has been composed solely of independent directors as required by the Nasdaq corporate governance standards, including Mr. Dempsey, Mr. Ederer and Ms. Westling. Immediately following closing of this offering, the audit committee of the Company’s board is expected to be composed of at least three directors who will each be an independent director, in full compliance with all Nasdaq corporate governance standards and Rule 10A-3 under the Exchange Act with respect to director independence. At least one of those audit committee members will qualify as an “audit committee financial expert.”

 

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The Company’s board of directors has adopted a written audit committee charter that meets the requirements of the applicable Exchange Act rules and the applicable Nasdaq corporate governance standards. A copy of this charter will be available on our website at www.homestreet.com. Among other things, the audit committee charter requires the audit committee to:

 

   

oversee the financial reporting process on behalf of our board of directors, review and discuss the audited financial statements with management and the Company’s auditors and report the results of its activities to the board;

 

   

be responsible for the appointment, retention, compensation, oversight, evaluation and termination of our auditors and review the engagement and independence of our auditors;

 

   

review and approve non-audit services, including a reconciliation of fees actually paid for non-credit services as compared to fees previously approved for such services;

 

   

review the adequacy of our internal accounting controls and financial reporting processes; and

 

   

review and enforce our code of ethics.

Human Resources and Corporate Governance Committee

The Company’s human resources and corporate governance committee, or HRCG, acts as both our nominating and corporate governance committee and our compensation committee. The HRCG has the authority to establish and implement our corporate governance practices, nominate individuals for election to the board of directors, and evaluate and set compensation with respect to our executive officers, among other things.

Our board of directors has adopted a written charter for the HRCG that satisfies the applicable standards of Nasdaq corporate governance rules as to both compensation and nominating committee requirements. A copy of this charter will be available on our website at www.homestreet.com. Among other things, this charter calls upon HRCG to:

 

   

develop criteria for selecting new directors and to identify individuals qualified to become board members;

 

   

select, or to recommend that the board select, the director nominees for each annual meeting of stockholders;

 

   

develop and recommend to the board a set of corporate governance principles applicable to the corporation, including periodic review and reassessment of such principles;

 

   

administer our equity incentive plans, pursuant to the authority delegated to it by our board of directors;

 

   

set the corporate goals and objectives, if any, relevant to our executive officers’ compensation and evaluate our executive officers’ performance in light of those goals and objectives, if any;

 

   

establish and oversight of compensation philosophy and programs; and

 

   

oversee and make decisions regarding executive management salaries, incentive compensation, long-term compensation plans and equity plans for our employees and consultants.

Each member of the HRCG also meets the independence standards established under the newly adopted Section 10C of the Exchange Act and the proposed rules adopted by the SEC directing the national securities exchanges (including the Nasdaq Stock Market) relating to members of compensation committees.

 

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Code of Ethics

Our board of directors has established a code of ethics as defined under the Exchange Act that applies to all HomeStreet directors, officers and employees, including our principal executive officer, principal financial officer and principal accounting officer. A copy of our code of ethics will be available on our website at www.homestreet.com. We will post on our website any amendments to, or waivers (with respect to our principal executive officer, principal financial officer and principal accounting officer) from, this code of ethics within four business days of any such amendment or waiver. Among other things, the Code of Ethics addresses the following principles:

 

   

complying with laws and regulations;

 

   

prohibiting insider trading;

 

   

avoiding conflicts of interest;

 

   

avoiding questionable gifts or favors;

 

   

maintaining accurate and complete records;

 

   

treating others in an ethical manner;

 

   

maintaining integrity of consultants, agents and representatives; and

 

   

protecting proprietary information and proper use of assets.

Director Compensation

Current Non-employee Director Compensation

Non-employee directors of HomeStreet, Inc. receive an annual retainer of $4,600, board of directors meeting fees of $800 per meeting and committee meeting fees of $650 per meeting; provided, however that if the committee meeting is held jointly with the Bank committee, fees for such meeting will be paid in accordance with Bank committee fee policies discussed below. For board or committee meetings less than two hours in duration, fees are reduced to $400.

Non-employee directors of the Bank receive an annual retainer of $13,500, board of director meeting fees of $1,000 and committee meeting fees of $900. For board and committee meetings of less than two hours in duration, fees are reduced to $400.

For both boards of directors, a retainer of $1,500 is paid to the lead director and each committee chair. The committee chairs for each board and the Bank’s lead director are also paid $250 for each meeting chaired in addition to the standard board meeting fee. Board members and committee chairs receive $2,000 for attendance at the annual two-day (or longer) planning retreat. Ad hoc meetings are paid at the same rate as regularly scheduled meetings for board members and committee chairs.

Non-employee Director Compensation After Closing

Following the closing of this offering, we intend to pay non-employee directors of HomeStreet, Inc. and the Bank an annual retainer of $20,000, other than for committee chairs and the Bank’s lead director, who will each earn an annual retainer of $30,000, and the chairman of the HomeStreet board of directors, who will earn an annual retainer of $40,000. In addition, each director will earn a fee of $1,000 per board meeting, and each committee member will earn an additional fee of $500 per committee meeting (other than for telephonic

 

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committee meetings less than an hour in duration, for which the fee will be $250). Fifty percent of the annual retainer will be paid in cash and the remaining fifty percent will be paid in common stock under our 2011 equity incentive plan for non-employee directors described below. All meeting fees will be paid in cash.

In addition, we will make equity grants to our directors. The chairman of HomeStreet will receive a one-time grant of 3,000 shares under the 2010 Equity Incentive Plan and all other directors will receive 2,000 shares. One-third of these grants will consist of restricted stock and will vest in equal installments over each of the first three anniversaries of the grant date.

Directors’ Deferred Compensation Plan

In 1999, we adopted a plan to permit directors to defer all or a portion of their fees received for services as a director that would otherwise be payable in cash (with a minimum $2,500 deferral in a plan year for those who elect to make such deferrals). Interest earned on participant deferrals is equal to the average five year daily treasury rate for the quarter. A participant or his or her beneficiary will begin receiving a distribution of his or her deferrals for a particular plan year upon the earliest of (1) a future date specified by the participant, (2) the participant’s death or (3) the date the participant ceases to be a director. The form of payment includes either a single lump sum payment or annual installment payments over a period of up to ten years. The participant has a limited ability to change these elections. We do not intend to continue this plan following the closing of the offering.

2011 Equity Incentive Plan for Non-Employee Directors

Prior to the completion of this offering, but contingent upon its closing, we expect our shareholders to approve the 2011 HomeStreet, Inc., Equity Incentive Plan for Non-Employee Directors. This plan reserves for issuance awards of up to 105,000 shares of our common stock in order to provide for compensation to directors for one-half of the annual board compensation as described above in “—Non-employee Director Compensation After Closing.” All such awards are fully vested immediately upon issuance.

Compensation for Employee Directors

Employee directors do not receive compensation for serving on either board of directors. We intend to continue this practice following the closing of the offering.

 

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Director Compensation Table

The following table shows the compensation paid to our non-employee directors for 2010. All compensation paid to non-employee directors in 2010 was paid in cash. Employee directors are not compensated separately for their services as directors. Bruce W. Williams served as our principal executive officer for a portion of 2010; he received non-employee director compensation beginning in March 2010 as described in the table below. Information regarding his compensation as an executive officer is provided under “Executive Compensation.”

 

Name

   Fees Earned
or Paid in
Cash($)
 

Glory C. Beijar(1)

     16,608   

Brian P. Dempsey(1)

     59,150   

David A. Ederer(1)

     44,025   

Gerhardt Morrison(1)

     51,925   

Janet L. Westling(1)

     40,200   

Bruce W. Williams

     18,340   

Marcia F. Williams

     20,008   

Wendy S. Williams

     17,008   

Karen M. Zimmerman

     16,608   

Steven W. Zimmerman

     16,208   

 

(1) Directors paid based on Bank compensation policy for individuals who serve as directors of both HomeStreet and the Bank.

 

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EXECUTIVE COMPENSATION

Our compensation philosophy and programs have been directly impacted by the recent economic downturn and we expect we will continue to be impacted by this for the foreseeable future. Generally, we implemented compensation practices consistent with our complementary goals of preserving the Bank’s safety and soundness, assuring the survival and success of HomeStreet, fairly compensating existing and terminated employees, and attracting and retaining management and other employees whom we believe to be capable of addressing the regulatory and business challenges confronting the Company and the Bank and of taking the steps necessary to promote the termination of the Orders and execute our go-forward business plans. More specifically:

 

   

In order to counter the impact of the downturn and comply with the Orders, the Bank hired a new Chief Executive Officer and Chief Financial Officer with turnaround skills and experience we believe are necessary to resolve problem assets and recapitalize HomeStreet. The unique circumstances of the Bank required special compensation arrangements to attract individuals with these specialized skills. Our human resources and corporate governance committee, or HRCG, which acts as our compensation committee, hired Towers Watson, an independent third-party compensation consultant, to review and advise HRCG in connection with such compensation arrangements. As a result of that review, the HRCG determined that the compensation packages offered to the Chief Executive Officer and Chief Financial Officer were appropriate and commensurate with the services required. Subsequently, the regulators posed no objection to the arrangements for those officers.

 

   

In 2008, we suspended our 2002 Long-Term Incentive Plan, or LTIP, for our executives and rescinded unpaid but accrued awards. Beginning in 2009, we imposed a general freeze on salary increases and in 2009 and 2010 we also temporarily suspended contributions to the Employee Stock Ownership Plan (“ESOP”). In addition, we suspended our employer matching contribution under our 401(k) plan from July 2009 to July 2010.

 

   

We awarded a special, one-time performance and retention incentive bonus to certain key executives in the second half of 2010 to incentivize and retain such key executives and to recognize their efforts in improving HomeStreet’s financial and regulatory condition. In addition, we granted nonqualified stock options, which we refer to as the “2010 retention grants,” to certain senior officers to focus management on stabilizing and recapitalizing the Bank.

Following this offering, we expect to continue our established compensation philosophy, described below, consistent with a financially stable and well capitalized financial institution.

Compensation Program Objectives and Philosophy

We believe it is critical to HomeStreet’s success to attract, retain and incentivize highly qualified executives and to promote a high-performance culture. We have therefore adopted compensation policies that we believe reward executives for achieving and maintaining short- and long-term performance that builds shareholder value. The principles underlying our executive compensation policies and programs include:

 

   

provide levels of compensation competitive with those offered by our peers and competitors and consistent with our level of performance;

 

   

attract and retain the most qualified and experienced individuals available to further our success;

 

   

align the interests of executives and shareholders by linking a significant portion of an executive’s compensation to HomeStreet’s short- and long-term financial performance; and

 

   

reward and motivate appropriate executive behavior that produces strong financial results while managing risks and promoting regulatory compliance.

 

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This philosophy pertains to executive compensation as well as employee compensation at all other levels throughout our organization.

Notwithstanding our overall compensation objectives, incentive compensation opportunities for specific individuals may vary based on a number of factors, including competing compensation programs available for similar positions, scope of duties, tenure, specialized experience, institutional knowledge and performance. With the exception of our Chief Executive Officer, whose incentive compensation is tied exclusively to corporate performance, we believe a portion of each executive’s potential compensation should be tied to individual performance as evaluated by the HRCG and (other than for our Chief Executive Officer) by senior management. In addition, we believe a meaningful portion of each executive’s total compensation opportunity should be linked to our long-term company-wide goals of safety and soundness, increased shareholder value and risk management. Actual compensation in a given year will vary from the target compensation levels based primarily on the attainment of operating goals, the Company’s overall performance, and changes in shareholder value. In some instances, the amount and structure of compensation results from arm’s-length negotiations with executives, which terms reflect an increasingly competitive market for proven expertise and managerial talent. We design our compensation programs and make individual pay decisions and adjustments in the context of this philosophy.

Decision Making and Policy Making

The HRCG is responsible for setting the policies and compensation levels for our directors and named executive officers and for determining the compensation of our Chief Executive Officer. See “Management — Committees of the Board of Directors — Human Resources and Corporate Governance Committee.” Certain members of senior management, including the Chief Executive Officer, Chief Human Resources Officer, General Counsel and Risk and Regulatory Oversight Director regularly participate in the HRCG process for compensating named executive officers. Executive officers in attendance may provide their insights and suggestions, but only independent committee members may vote on decisions regarding executive compensation, and executive officers are excluded from deliberations regarding their own compensation. In particular, the Chief Executive Officer provides recommendations relating to other executive officers; however, after the HRCG reviews and discusses the Chief Executive Officer’s compensation with him, final deliberations and all votes regarding his compensation are made in executive session, without the Chief Executive Officer present. The committee also ordinarily reviews recommendations and input from compensation consultants regarding executive officers’ compensation.

Participation levels in all incentive programs for named executive officers are established by the HRCG at the beginning of each fiscal year. These participation levels may be increased or decreased after the beginning of a fiscal year at the discretion of the committee. However, it has been the practice of the HRCG to do so only in the event of a material change in an executive officer’s responsibilities. In establishing incentive plan participation levels, the HRCG considers market data relating to compensation practice of our peers as well as internal parity. We do not follow formal guidelines for establishing internal parity, but we do seek to correlate organizational responsibility with participation level. We generally do not pay bonuses under any of our incentive programs for any of our officers, including the Chief Executive Officer and Chief Financial Officer, until our independent public accountants have completed their annual audit.

Interaction with Consultants

The HRCG periodically solicits advice from outside compensation consultants on its compensation policies and practices. In 2010, the HRCG retained Amalfi Consulting, LLC, now McLagan, as an independent third-party consulting company specializing in providing compensation consulting services to financial institutions, to assess our compensation programs and policies. In 2010 and early 2011, McLagan assessed our incentive compensation programs and made recommendations with respect to the new Sound Incentive Compensation Policy Final Guidelines as adopted by our regulators effective June 2010 and the guidelines to be implemented

 

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under the Dodd-Frank Wall Street Reform and Consumer Protection Act. The HRCG reviewed the McLagan report and took it into consideration in determining its 2011 incentive plan arrangements for the entire organization.

Based upon a review of the assessment conducted by McLagan and an internal review by our human resources department, we believe that our compensation policies and practices do not encourage excessive risk-taking and are not reasonably likely to have a material adverse effect on HomeStreet. We have implemented certain compensation practices to comply with these guidelines such as:

 

   

We have designed incentives tied to short-term revenue and profits with elements that include qualitative components such as credit quality, and we retain the discretion to adjust awards should an employee’s activities expose HomeStreet to excessive or inappropriate risk.

 

   

We eliminated incentive payments on terms and conditions of the loans from our single family loan officer incentive plans.

 

   

We have created strong controls over the process for designing, implementing and monitoring incentive pay, which are incorporated into the overall compliance framework. All incentive compensation plans are approved by the HRCG as required by regulatory guidelines.

CEO & CFO Peer Group Benchmarking

In 2009, the HRCG, with the assistance of outside compensation consultants, established peer group benchmarks for the new Chief Executive Officer and Chief Financial Officer positions. Peer group benchmarking was not used over the three preceding years for other management positions because we were not increasing base salaries for those other officers. After completion of the offering, we expect to conduct an updated peer group benchmarking study for all of our executive officers. For determining competitive pay for our Chief Executive Officer and Chief Financial Officer in 2009, we considered compensation information for equivalent positions of the following banks:

 

Banner Corp

   Glacier Bancorp

Cascade Bancorp

   Pacific Capital Bancorp

Central Pacific Financial, Inc.

   Pacwest Bancorp

CoBiz Financial Inc

   Sterling Financial Corporation

Columbia Banking System Inc

   TriCo Bancshares

CVB Financial Corp.

   Umpqua Holdings Corporation

Firstfed Financial Corp.

   Washington Fed Inc

Washington Trust Bancorp

   WestCoast Bancorp

Westamerica Bancorporation

   Western Alliance Bancorp

Frontier Financial Corp

  

Summary Components of Compensation

Currently, the compensation package for our named executive officers is comprised of base salary, an annual short-term cash incentive plan, stock option awards granted in 2010, a 401(k) plan, health and welfare benefits plan and perquisites.

Base Salary

Named Executive Officers . A base salary is provided to HomeStreet executives to pay for the basic day-to-day job performance and to provide some level of security and consistency. HomeStreet’s executive base salaries are intended to be competitive with our peers. With the exception of the base salaries for our newly hired

 

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Chief Executive Officer and Chief Financial Officer, which are discussed below, aggregate base salaries for our named executive officers are established at approximately the median of competitive market data. The HRCG typically considers several factors when setting the base salaries of each named executive officer. These factors include compensation surveys, the officer’s level of experience and responsibilities, parity of positions with similar responsibilities and the officer’s performance. We evaluate each named executive officer on an annual basis and may adjust his or her base salary based on such evaluation. Salary increases ordinarily are effective on January 1 of each year. Salary surveys have been performed on an ad hoc basis for the purposes of hiring employees but as no base salary increases have been granted to any named executive officers since 2008, no base salary surveys were conducted during 2009 or 2010. After the offering, and subject to the terms of the Orders and other regulatory requirements, the HRCG expects to evaluate base salaries across the board and in comparison to an updated peer group.

2010 Chief Executive Officer and Chief Financial Officer . As discussed above, in January 2010 we hired a new Chief Executive Officer and Chief Financial Officer to help us turn around and recapitalize the Company. The unique circumstances presented by the Bank’s financial condition and the market downturn had a direct impact on the compensation packages for those individuals and resulted in a higher than median base salary in comparison to executives at comparable but healthy institutions. In setting the base salaries for our Chief Executive Officer and Chief Financial Officer, the HRCG considered the peer group benchmarks suggested by our outside compensation consultant. All elements of compensation were reviewed including base salary, short-term incentive, long-term incentives and supplemental benefits/perquisites for the years 2003 to 2008.

Short-Term Incentive Compensation

2011 Management/Support Performance-Based Annual Incentive Plan

HomeStreet executives participate in a short-term cash incentive plan in order to increase performance and to achieve annual goals. We have implemented a Management/Support Performance-Based Annual Incentive Plan (the “Management/Support Plan”) which will apply to certain eligible employees, including the named executive officers. The annual incentive awards granted under this plan will provide payments based upon attainment of specified goals that are intended to align the interests of employees with the interests of HomeStreet. We do not believe any element of the Management/Support Plan encourages participants to incur excessive or unnecessary risks to HomeStreet’s assets or reputation.

The Management/Support Plan design incorporates a tiered approach with annual incentive awards linked to the achievement of pre-defined corporate, department and individual performance goals. The incentive ranges are designed to provide market-competitive payouts for the achievement of target and maximum performance goals. Award opportunity levels, expressed as a percent of salary, have been set for each eligible employee for each plan year. The actual payouts will be calculated as a proportion of minimum, target and maximum performance levels. HomeStreet’s performance will be based on overall success as measured by criteria determined by the HRCG, with input from our Chief Executive Officer. In establishing the specific metrics for the Management/Support Plan, the HRCG focuses, among other things, on mitigating the possibility that such metrics will encourage participants to incur excessive or unnecessary risk. The department and/or individual performance will be based on the department and/or plan participant’s individual success as measured against the predetermined goals. The percentage of payout for overall performance of HomeStreet and for department and/or individual performance will be allocated based on the specific weighting of the goals, the participant’s annual incentive award tier, and the actual performance compared to the pre-determined minimum, target and maximum performance levels. The established incentive targets as a percentage of base salary are: 50.0% for the Chief Executive Officer, 40.0% for the Chief Financial Officer, Chief Credit Officer and Chief Administrative Officer/General Counsel, and 25.0 to 50.0% for business unit executive officers.

For all Management/Support Plan participants other than our Chief Executive Officer, Chief Financial Officer and Chief Credit Officer, incentive awards are based solely upon operating income, which takes into

 

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consideration pretax income plus loan loss provision and OREO expenses; gains and losses on sales of nonperforming assets; OREO valuation adjustments; and accruals for incentive payments. For Chief Executive Officer, Chief Financial Officer and Chief Credit Officer, incentive awards are based on operating income as well as on the following asset quality and performance metrics:

 

   

decreases in the ratio of nonperforming assets to total assets;

 

   

decreases in the ratio of classified assets to total assets;

 

   

improvements in net interest margin;

 

   

growth in core deposits; and

 

   

a discretionary component that takes into account other key business results.

Specific weighting and targets among these components have not yet been established for 2011 and will depend, among other things, upon the successful completion of this offering.

Adjustment or Recovery of Awards

The Management/Support Plan includes a provision allowing for the reduction or recovery of awards if the HRCG determines that materially inaccurate financial information was used in setting that award or if the recipient’s activities posed risk to the Company. The HRCG will determine the amount of any award that was overpaid as a result of inaccurate information and will send the participant a recovery notice specifying the overpayment amount and the terms for repayment. This clawback period has a rolling three-year look back.

In addition, Section 304 of the Sarbanes-Oxley Act of 2002 provides a basis to recover incentive awards in certain circumstances. If HomeStreet is required to restate its financials due to noncompliance with any financial reporting requirements as a result of misconduct, the Chief Executive Officer and Chief Financial Officer must reimburse the Company for: (1) any bonus or other incentive or equity-based compensation received during the 12 months following the first public issuance of the non-complying document, and (2) any profits the executive realized from sales of HomeStreet securities during that period.

Cash Incentive Awards

Chief Executive Officer and Chief Financial Officer 2010 Cash Incentive Awards. The Chief Executive Officer and Chief Financial Officer received cash incentive compensation in 2010 based on attaining the following objectives: (1) maintaining a primary liquidity ratio at or above 28.0% in the first quarter, 19.0% in the second quarter and 17.0% in the third and fourth quarters; (2) reducing the net noncore funding dependency ratio to 47.0% or less, in the first quarter, 45.0% in the second quarter, 42.0% in the third quarter and 40.0% in the fourth quarter; (3) improving net interest margin to 1.1% in the first quarter, 1.2% in the second quarter, 1.5% in the third quarter, 1.9% in the fourth quarter and 1.5% for the fiscal year; (4) maintaining an efficiency ratio of at least 90.0% in the first and second quarters and 85.0% in each of the third quarter, the fourth quarter and for the fiscal year and, (5) in the case of the Chief Executive Officer only, reducing nonperforming assets so that outstanding levels did not exceed $475.0 million in the first and second quarters, $425.0 million in the third quarter and $315.0 million in the fourth quarter. Bonuses paid based on the reduction in noncore funding, profitability, efficiency and problem assets were subject to clawbacks if subsequent quarter end amounts did not meet the preceding quarter’s milestones.

Other Named Executive Officers 2010 Cash Incentive Award. A special performance-based incentive arrangement was adopted in the second half of 2010 to reward certain executive officers and key employees, not including the Chief Executive Officer and Chief Financial Officer, to recognize their efforts in improving

 

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HomeStreet’s financial condition. The award opportunities were limited to approximately one-half of the incentive targets established for these executive officers and key employees in prior year periods ranging from 8.0% to 50.0% of base salary. These incentive payments were paid on March 15, 2011.

Equity Incentive Compensation

2010 Equity Incentive Plan. On January 20, 2010, the shareholders approved the 2010 Equity Incentive Plan (the “2010 Plan”), which authorizes the grant of nonqualified and incentive stock options, stock appreciation rights (“SARs”), restricted stock awards, restricted stock units, stock bonus awards and cash incentive bonus awards. The 2010 Plan will become effective upon the closing of this offering. The maximum number of shares of our common stock issuable under the 2010 Plan is equal to 10.0% of our outstanding shares of common stock on a fully diluted basis and measured immediately after the closing of this offering subject to certain limitations. The purpose of the 2010 Plan is to give us a competitive position in attracting, retaining and motivating officers, employees, directors and consultants and to provide a means whereby officers, employees, directors and consultants can acquire common stock or earn incentive compensation based on the value of our common stock, thereby strengthening their commitment to HomeStreet and promoting an identity of interest with our shareholders. We do not believe that any element of the 2010 Plan encourages excessive or unnecessary risks to HomeStreet’s assets or reputation. The 2010 Plan will be administered by the HRCG. The 2010 Equity Incentive Plan was adopted subject to the condition that no awards be made under the plan until after the Company’s initial public offering: therefore, the HRCG Committee did not define specific performance metrics for 2010.

For all Equity Incentive Plan participants other than our Chief Executive Officer, Chief Financial Officer and Chief Credit Officer, incentive awards are based solely upon operating income, which takes into consideration pretax income plus loan loss provision and OREO expenses; gains and losses on sales of nonperforming assets; OREO valuation adjustments; and accruals for incentive payments. For Chief Executive Officer, Chief Financial Officer and Chief Credit Officer, incentive awards are based on operating income as well as on the following asset quality and performance metrics:

 

   

decreases in the ratio of nonperforming assets to total assets;

 

   

decreases in the ratio of classified assets to total assets;

 

   

improvements in net interest margin;

 

   

growth in core deposits; and

 

   

a discretionary component that takes into account other key business results and individual performance.

Specific weighting and targets among these components have not yet been established for 2011 and will depend, among other things, upon the successful completion of this offering.

Under the 2010 Plan, the HRCG may determine that the grant, vesting or settlement of an award may be subject to one or more performance goals. In addition, the 2010 Plan authorizes the HRCG to award restricted stock or restricted stock units, stock bonuses or incentive bonus awards that are conditioned on the satisfaction of pre-established performance criteria.

Promptly following the offering, we expect to make equity grants to our named executive officers under the 2010 Plan. Equity will be granted at the initial public offering price and will have terms and conditions consistent with other equity awards to executives as determined by the HRCG. Each named executive officer will be granted the number of options or restricted stock, as determined by the HRCG, such that the named executive officer’s percentage ownership in the Company (assuming full vesting and exercise of all stock options held by such named executive officer) upon receipt of such equity award is the same as such named executive officer’s percentage ownership immediately prior to the offering (again assuming full vesting and exercise of all stock options and/or restricted stock held by such named executive officer). The employment agreements we are entering into with our named executive officers also provide for such equity compensation awards as described under “—Executive Employment Agreements” below.

 

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2010 Retention Grants . In 2010, the HRCG approved a one-time grant of nonqualified stock option awards that were made outside of the 2010 Plan. We sometimes refer to these awards in this prospectus as the “2010 retention grants.” These awards were granted to retain certain key executives and to focus management on our restructuring and recapitalization. The Chief Executive Officer and Chief Financial Officer each received one-time grant of nonqualified stock options for their efforts in improving our financial condition and reducing overall credit risk and nonperforming assets. On October 22, 2010, our Chief Executive Officer received 125,000 options, our Chief Financial Officer received 35,000 options and our Executive Vice President, Chief Administrative Officer/General Counsel received 25,000 options. Each of these options had an exercise price of $1.20 per share. In addition, on November 19, 2010, other of our executive officers received 2010 retention grants with an exercise price ranging from $0.90 to $1.20 per share. As part of those grants, our Executive Vice President, Chief Credit Officer received a grant of 5,000 options related to his prior position as Senior Vice President, Credit Administration Manager at an exercise price of $1.20 per share and an additional 20,000 options at an exercise price of $0.90 per share. Our Executive Vice President, Residential Lending also received a grant of 10,000 options at a price per share of $1.20. All of the 2010 retention grants have an exercise price equal to or greater than the fair market value of the underlying stock on the date of grant as determined by the Company’s board of directors.

The 2010 retention grants vest as follows: 25% vested immediately upon grant, 25% will vest on the earlier of one year from the date of grant or upon completion of a capital raise, 25% will vest on the earlier of two years from the date of grant or upon termination of the Orders and the remaining 25% will vest upon the third anniversary of the grant. The 2010 retention grants will terminate on the tenth anniversary of the date of grant provided they have not been exercised in full before that time. All unvested options will be cancelled upon resignation or termination without cause, and all vested options will expire 90 days after termination except as may be modified by employment agreements between HomeStreet and the individual executive officers. In the event of termination for cause, all unvested options will be immediately cancelled except as provided for under individual employment agreements of executive officers. All 2010 retention grants will become vested and exercisable immediately upon a change of control of HomeStreet, Inc., as defined in the 2010 retention grant agreements. Shares acquired pursuant to an exercise of these options are subject to a right of first refusal by the Company and can only be transferred to a third party if the Company elects not to exercise its option to purchase. We intend to terminate this right of first refusal upon the closing of this offering.

The level of awards was based on an analysis conducted by Towers Watson, an independent compensation consultant. This analysis provided competitive data on long-term awards expressed as a multiple of base salary. Based on the information provided by Towers Watson, we determined that the award levels provided for the executive officers and key employees were appropriate and consistent with the regional banking industry.

401(k) Savings and Employee Stock Ownership Plan & Trust. We have a 401(k) Savings and Employee Stock Ownership Plan, a defined contribution plan, which we separated into two plans in January 2011, the 40l(k) Savings Plan (the “401(k) Plan”) and the Employee Stock Ownership Plan & Trust (the “ESOP”). Employer Matching contributions for the 401(k) Plan were suspended from July 2009 to July 2010, and no employer contributions have been made to employee ESOP accounts since 2009 due to our financial condition. In addition, all employees, including our named executive officers, are eligible to make pre-tax 401(k) Plan contributions and may be eligible to receive a discretionary matching contribution. Any such discretionary matching contribution matches a participant’s pre-tax 40l(k) Plan contributions at a percentage we determine of the first 6.0% of eligible compensation (subject to IRS limits). Employees are eligible to participate in the 401(k) Plan if they meet the applicable service requirements and are at least 18 years old.

Before contributions were suspended, employer ESOP contributions were determined based on the attainment of goals for overall company financial performance set annually by our board of directors. The contribution was credited to each eligible participant’s ESOP account as a percentage of that participant’s eligible compensation. ESOP stock accounts are invested in our common stock. ESOP employer-directed investment accounts are invested in stocks, bonds and other investments selected by the ESOP fiduciary.

 

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Executive Deferred Compensation. In 2004, we adopted a deferred compensation plan which allows designated executive officers to defer annually all or part of their incentive bonus and to receive an employer contribution equal to the additional employer contributions, if any, that would have been made to the 40l(k) Plan and ESOP based on participants’ eligible compensation if certain IRS limitations on compensation and benefits did not apply. Interest earned on participant deferrals and employer contributions under the plan is equal to the average five year daily treasury rate for the relevant quarter.

A participant or his/her beneficiary receives a distribution of his or her plan deferrals and Company contributions for a particular plan year upon the earliest of: (1) a future date specified by the participant, (2) the participant’s death, (3) the participant’s permanent disability, (4) the participant’s retirement on or after age 65 or (5) the participant’s termination of employment. The form of payment includes either a single lump sum payment or annual installment payments over a period of years, but not more than ten years.

We have suspended this plan at present due to HomeStreet’s financial condition. We anticipate that upon completion of this offering, this plan will be reinstated.

Perquisites and other Personal Benefits. HomeStreet provides the named executive officers with benefits that we believe are reasonable and consistent with our overall compensation program and beneficial to the Company in attracting and retaining qualified executives. Perquisites include health club membership and parking. We have also provided reimbursement for temporary housing, relocation and personal travel for the new Chief Executive Officer, Chief Financial Officer and Chief Administrative Officer/General Counsel who were recruited from out of state.

Health and Welfare Benefits. All named executive officers are provided with the same medical, dental, vision and life insurance programs as all other benefited employees of HomeStreet on the same terms and conditions as applicable to employees generally.

Executive Employment Agreements

We use employment agreements to retain certain executives and the talent, skills, experience and expertise that they provide to HomeStreet, with a goal of protecting the Company and the shareholders and to provide the stability and skilled leadership needed in our current environment. We have approved the principal terms and we intend to enter into two sets of executive employment agreements with each of Messrs. Mason, Hooston, Evans and Iseman. In this section we refer to these individuals as the “contracted executives.” The first set of agreements, which we refer to in this prospectus as the “pre-offering agreements,” will become effective upon execution by the Company and the contracted executive and terminate upon the lifting of the Bank Order, at which point those agreements will be supplanted by the second set of agreements which we refer to as the “post-offering agreements.”

Pre-Offering Executive Employment Agreements

The pre-offering agreements will be effective as of May 3, 2011 and the contracted executives’ employment thereunder will continue until the first to occur of (1) the lifting of the Bank Order; (2) the contracted executive’s resignation, which may or may not be made for “good reason” (as defined in the employment agreements); (3) a notice of termination by HomeStreet, which may be made with or without cause; or (4) the contracted executive’s death or permanent disability. The pre-offering agreements provide for base salaries of not less than $600,000 for Mr. Mason, $300,000 for Mr. Hooston, $240,000 for Mr. Evans and $200,000 for Mr. Iseman. The pre-offering agreements also provide for annual incentive payments of no less than 50.0% of Mr. Mason’s salary and 40.0% of the other contracted executives’ salaries, as well as specified and discretionary equity compensation awards. The equity compensation awards represent a pre-established percentage of the Company’s outstanding common stock as measured on a pre-offering basis: 3.7% (125,000 shares) for Mr. Mason, 1.0% (35,000 shares) for Mr. Hooston, and 0.7% (25,000 shares) for each of Messrs. Evans and Iseman. We sometimes refer in this prospectus to these awards as the initial executive awards.

 

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In the event of a termination of a contracted executive for cause or resignation without good reason, the individual will receive upon termination an amount equal to the sum of: (1) earned but unpaid salary and incentive compensation, (2) the value of any earned but unused vacation and (3) certain unreimbursed expenses. In addition, in the case of a termination by HomeStreet other than for cause, or by the contracted executive with good reason following execution of a release by the contracted executive, he will receive any severance under a non-discriminatory plan approved by our regulatory authorities, and all of the individual’s vested equity grants will remain exercisable for the period of 90 days, other than for awards which, by their terms, provide for a later expiry. In the event of termination of a contracted executive’s employment within one year after or during the ninety (90) days immediately preceding a change of control, as defined in the agreement, then in conjunction with a mutual release, the individual will also receive a severance payment equal to twelve months of his then-current base salary.

Each of the pre-offering agreements also prohibits the contracted executive from soliciting any employee, executive, board member or independent contractor of HomeStreet during the six-month period following termination. Additionally, during the term of employment and for six months thereafter, a contracted executive may not divert, appropriate or accept on behalf of any other person any business or account from any customer.

Post-Offering Executive Employment Agreements

We also intend to enter into new employment agreements (the “post-offering agreements”) with each of the contracted executives that become effective upon the termination of the pre-offering agreements and continue for a term of three years from the effective date, with an automatic renewal for additional one year periods thereafter unless either party gives notice of termination 180 days prior to the expiration of the then-current term. Other than as set forth in this section, the principal terms of the post-offering agreements are the same as those of the pre-offering agreements.

Mr. Mason’s post-offering agreement provides for a base salary of not less than $500,000; salaries for the other contracted executives will remain the same as under the pre-offering agreements. In addition, the post-offering agreements require the Company to grant to each of the contracted executives additional equity awards representing a number of shares equal to the product obtained by multiplying the percentage of our pre-offering common stock reflected by the contracted executive’s initial executive award, by the number of shares of our common stock as measured immediately after the completion of this offering, and subtracting from that result the number of shares represented in the initial executive awards. Seventy-five percent of these awards will take the form of stock options, with an exercise price equal to the initial public offering price; the remaining 25.0% will take the form of restricted stock awards. Stock options will vest ratably in thirds over each of the first three anniversaries of the completion of this offering. Restricted stock awards will vest upon the occurrence of certain events based upon an increase in the price of our common stock in comparison to the price at which this offering is consummated: one-third of the restricted stock awards vest upon an increase in our stock price of 25.0% from the initial public offering price; an additional one-third vest upon an increase of 40.0% from the initial public offering price; and the remaining one-third vest upon an increase of 50.0% from the initial public offering price.

In addition to the payment of earned and unpaid salary and incentive compensation, unused vacation time, and unreimbursed expenses, in the event of termination of a contracted executive’s employment within one year or during the 90 days immediately preceding a “change of control” by the Company other than for “cause” or by the contracted executive for “good reason,” in conjunction with a mutual release agreement, the contracted executive will receive an amount equal to the sum of: (1) two-and-one-half times (in Mr. Mason’s case) or two times (in the case of the other contracted executives) his then current base salary, (2) an amount equal to two-and-one-half times (in Mr. Mason’s case) or two times (in the case of the other contracted executives) the greater of his annual incentive payment earned by the executive in the year prior to termination or the contracted executive’s target incentive payment for the current year and (3) payment of health insurance premiums for executive and his dependents for up to 18 months. In addition, all of the contracted executive’s unvested restricted stock and stock options will immediately vest and will remain exercisable according to any stock option grant or plan.

In addition to the payment of accrued and unpaid salary and incentive compensation, unused vacation time, and unreimbursed expenses, in the event of a termination without cause or resignation for good reason not involving a

 

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change in control, in exchange for executing a release, a contracted executive will receive: (1) two times his then current base salary, (2) an amount equal to two times the greater of (a) his annual incentive payment earned in the year prior to termination or (b) his target incentive payment for the current year and (3) payment of health insurance premiums for executive and his dependents for up to 18 months. In addition, all of the contracted executive’s unvested restricted stock and stock options will immediately vest and will remain exercisable according to any stock option grant or plan.

In addition to the prohibitions against solicitation of customers and employees and the diversion of corporate opportunities, the contracted executives’ agreements also contain a six-month non-competition agreement which restricts certain competitive acts on behalf of another bank or thrift located in Washington, Oregon, Idaho or Hawaii.

The post-offering agreements further provide that if any payments received by a contracted executive would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code, the Company will pay that individual an additional amount so that his net payment will not be diminished in any respect by the additional excise or other tax due pursuant to Section 280G of the Internal Revenue Code.

Severance and Change in Control Arrangements

We adopted a broad-based, non-discretionary severance plan following approval by the regulators on February 25, 2009. The plan provides one week of pay for every year of service with a minimum payment of two weeks and a maximum payment of 24 weeks. This plan was adopted to further reduce expenses and preserve capital. The plan modification brought HomeStreet’s severance plan within the definition of a “non-discriminatory” severance plan, pursuant to 12 C.F.R §359.1(j), for purposes of the FDIC’s Golden Parachute rules.

Tax Deductibility

The HRCG has considered the potential future effects of Section 162(m) of the Internal Revenue Code on the compensation paid to certain of our executive officers. Section 162(m) places a $1.0 million limit on the amount of compensation that a publicly held corporation may deduct in any one year with respect to its chief executive officer and each of the next three most highly compensated executive officers (other than its chief financial officers). In general, certain performance-based compensation approved by shareholders is not subject to this deduction limit. As we are not currently publicly-traded, the HRCG has not previously taken this deductibility limit into consideration in making compensation decisions. We expect that following this offering, the committee will adopt a policy that, where reasonably practicable, we will seek to qualify the variable compensation paid to our named executive officers for an exemption from the deductibility limits of Section 162(m). However, we may authorize compensation payments that do not comply with the exemptions in Section 162(m) when we believe that such payments are appropriate to attract and retain executive talent.

Human Resources and Corporate Governance Committees Report

The HRCG has reviewed the Compensation Discussion and Analysis included in this prospectus and discussed it with management. Based on such review and discussion, the members of the HRCG have recommended to the board of directors that the Compensation Discussion and Analysis be included in this prospectus.

This report is submitted by the Company’s Human Resource and Corporate Governance Committee consisting of Gerhardt Morrison (Chair), Brian Dempsey and Marcia Williams.

 

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Summary Compensation Table

 

Name and Principal Positions

  Year     Salary(1)
($)
    Non-Equity
Incentive Plan
Compensation(2)
($)
    Change in Pension
Value and

Nonqualified
Deferred
Compensation
Earnings(3)
($)
    All Other
Compensation(4)
($)
    Total
($)
 

Mark K. Mason(5)

    2010        601,030        300,000               78,247        979,277   

Chief Executive Officer

           

David E. Hooston(5)

    2010        302,618        150,000               67,963        520,581   

Executive Vice President, Chief Financial Officer

           
           

Godfrey B. Evans

    2010        240,000        114,668               79,846        434,514   

Executive Vice President, Chief Administrative Officer, General Counsel & Corporate Secretary

           
           
           

Richard W. H. Bennion

    2010        203,000        100,000               8,973        311,973   

Executive Vice President, Residential Lending Director

           
           

Patricia A. Leach

    2010        213,890        28,592        14        9,078        251,574   

Executive Vice President, IP Lending Director

           
           

Bruce W. Williams(6)

    2010        158,557                             158,557   

Former Principal Executive Officer

           

Debra L. Johnson(7)

    2010        126,039               214               126,253   

Former Executive Vice President, Chief Financial Officer

           
           

Joan Enticknap(8)

    2010        212,536                             212,536   

Former President, Chief Financial Officer

           
           

 

(1) The figures shown for salary represent amounts earned for the fiscal year, whether or not actually paid during such year. Deferred compensation balance is also included for Ms. Leach – $10,380 and Ms. Johnson – $40,979.

 

(2) Represents amounts earned for services rendered during the fiscal year, whether or not actually paid during such fiscal year under the annual incentive plans.

 

(3) In fiscal year 2010, no named executive officer (or other employee) accrued benefits (whether or not vested) under any tax-qualified or non-qualified defined benefit or actuarial plan, as determined in accordance with Statement of Financial Accounting Standard 87 (“FAS 87”). The $14.00 attributable to Ms. Leach represents interest paid on her deferred compensation balance. There were no amounts of interest accrued on defined contribution deferred compensation balances at a rate in excess of 120% of the applicable federal long-term rate Section 1274(d) of the Internal Revenue Code of 1986 (“Code”).

 

(4)

The named executive officers participate in certain group life, health, disability insurance and medical reimbursement plans, not disclosed in the Summary Compensation Table, that are generally available to salaried employees and do not discriminate in scope, terms and operation. The figure shown for each named executive officer includes: (i) 401k matching contributions as follows: Mr. Bennion – $3,045, Ms. Leach – $3,150; (ii) automobile allowance as follows: Mr. Evans – $1,200; (iii) club membership as follows: Mr. Mason – $1,908, Mr. Hooston – $1,908, Mr. Evans – $1,908; (iv) parking as follows: Mr. Mason – $2,220, Mr. Hooston

 

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– $2,220, Mr. Evans – $2,220; (v) housing expense as follows: Mr. Mason – $23,648, Mr. Hooston – $35,850, Mr. Evans – $43,843; (vi) relocation expense for Mr. Mason – $31,852; (vii) personal travel expenses as follows: Mr. Mason – $12,175; Mr. Hooston – $26,523; Mr. Evans – $30,675 (viii) tax gross up for Mr. Mason – $5,891. We provide certain non-cash perquisites and personal benefits to each named executive officer that do not exceed $10,000 in the aggregate for any individual, and are not included in the reported figures.

 

(5) Includes $30,645 of consulting income earned by Mr. Mason and $17,426 of consulting income earned by Mr. Hooston prior to their approval as officers of HomeStreet by our regulators.

 

(6) Mr. Williams resigned as Chairman and Chief Executive Officer of HomeStreet effective January 20, 2010.

 

(7) Ms. Johnson resigned her position effective February 5, 2010.

 

(8) Ms. Enticknap resigned her position effective June 30, 2010.

GRANTS OF PLAN-BASED AWARDS

 

Name (a)

   Grant Date
(b)
     All Other
Option Awards
Number of Securities
Underlying Options

(#) (j)
     Exercise or
Base Price
of Option Awards
($/Sh) (k)
     Grant Date
Fair Value
of Stock and
Option
Awards (l)
 

Mark K. Mason

     10/22/2010         125,000       $ 1.20       $ 43,750   

David E. Hooston

     10/22/2010         35,000       $ 1.20       $ 12,250   

Godfrey B. Evans

     10/22/2010         25,000       $ 1.20       $ 8,750   

Richard W.H. Bennion

     11/19/2010         10,000       $ 1.20       $ 3,500   

Patricia A. Leach

     11/19/2010         8,000       $ 1.20       $ 2,800   

The 2010 Plan was not in place for the named executive officers for 2010. Therefore, no specific target and maximum award opportunities were defined. No awards were earned for 2010 performance results. Options granted in 2010 were discretionary awards.

OUTSTANDING EQUITY AWARDS AT FISCAL YEAR-END

 

Name(a)

   Number of
Securities
Underlying
Unexercised
Options (#)
Exercisable
(b)
     Number of
Securities
Underlying
Unexercised
Options (#)
Unexercisable
(c)
     Equity
Incentive
Plan
Awards:
Number of
Securities
Underlying
Unexercised
Unearned
Options (#)
(d)
     Option
Exercise
Price
($) (e)
     Option
Expiration
Date

(f)
 

Mark K. Mason

     31,250         93,750          $ 1.20         10/22/2020   

David E. Hooston

     8,750         26,250          $ 1.20         10/22/2020   

Godfrey B. Evans

     6,250         18,750          $ 1.20         10/22/2020   

Richard W.H. Bennion

     2,500         7,500          $ 1.20         11/19/2020   

Patricia A. Leach

     2,000         6,000          $ 1.20         11/19/2020   

 

All awards held by our named executive officers at fiscal year end were option awards.

 

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NON-QUALIFIED DEFERRED COMPENSATION TABLE

 

Name

   Executive
Contributions
in Last FY
($)(1)
     Registrant
Contributions
in Last FY
($)
     Aggregate
Earnings
in Last FY
($)(2)
     Aggregate
Withdrawals/
Distributions
($)
     Aggregate
Balance
at Last FYE
($)
 

Patricia A. Leach

                     14         10,380           

Debra L. Johnson

                     214         40,979           

 

(1) Non-qualified deferred compensation includes benefits provided under our Employee Deferred Compensation Plan.

 

(2) Executive contributions would include amounts earned in 2010 that were deferred even if the actual deferral occurred in 2011. There were no deferrals of compensation earned in 2010.

 

(3) Earnings did not accrue at above-market or preferential rates and are not reflected in the Summary Compensation Table.

 

(4) Debra L. Johnson was the Chief Financial Officer for HomeStreet until February 5, 2010.

 

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CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS

In addition to the compensation arrangements with directors and executive officers described in “Executive Compensation” above, the following is a description of each transaction since January 1, 2008, and each proposed transaction in which:

 

   

we have been or are to be a participant;

 

   

the amount involved exceeds or will exceed $120,000; and

 

   

any of our directors, executive officers or beneficial holders of more than 5% of our capital stock, or any immediate family member of or person sharing the household with any of these individuals (other than tenants or employees), had or will have a direct or indirect material interest.

Loan Transactions

From time to time, the Bank makes loans to directors, executive officers and other affiliates in compliance with Regulation O of the Federal Reserve Board Regulations. These loans are made in the ordinary course of business on substantially the same terms, including interest rates and collateral, as those prevailing at the time for comparable loans with persons not related to us, and do not involve more than the normal risk of collectability or present other features unfavorable to us.

Indemnification Agreements

We have entered into indemnification agreements with each of the current and former directors and executive officers of HomeStreet, Inc. Subject to certain limitations, these agreements require us to indemnify these individuals to the fullest extent permitted under applicable law against liabilities that may arise by reason of their service to us, and to advance expenses incurred as a result of any proceedings against them as to which they could be indemnified. We also intend to enter into indemnification agreements with our future directors and executive officers.

Procedures for Approval of Related Party Transactions

The Bank is subject to the requirements of Regulation O, which places certain restrictions on loan transactions between the Bank and its directors and executive and senior officers (or any of their related interests). The Bank surveys Company and Bank directors and senior and executive officers each year to identify their related interests. The board of directors has adopted a policy for lending to our employees, directors and executive officers to ensure compliance with Regulation O loans by the Bank to our employees, directors and executive officers that exceed $500,000 in aggregate require the approval of the Bank’s board of directors.

Prior to this offering, in addition to the application of Regulation O to certain related-party transactions, we have followed formal conflict of interest policies requiring the review and pre-approval of transactions with a related party by the chief executive officer and audit committee where the related party is a director or by the chairman, chief executive officer or general counsel for non-director employees. Following this offering, in accordance with the audit committee’s charter, the audit committee will review and pre-approve in writing any proposed related party transactions; however, certain types of transactions, including Regulation O Loans, executive officer employment arrangements and director compensation required to be disclosed in our proxy statements, certain charitable contributions, transactions where all shareholders receive a proportional benefit and transaction entered into through a competitive bid prices, may be automatically deemed pre-approved under our Related Persons Transaction Policies and Procedures, a copy of which will be available on our website at www.homestreet.com.

 

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PRINCIPAL SHAREHOLDERS

The following table sets forth the beneficial ownership of our common stock as of April 30, 2011 by:

 

   

each of the directors and executive officers of HomeStreet, Inc. and the Bank;

 

   

all of our directors and executive officers as a group; and

 

   

each person known to us to be the beneficial owner of more than 5% of any class of our securities.

The amounts and percentage of our common stock beneficially owned are reported on the basis of regulations of the SEC governing the determination of beneficial ownership of securities. The SEC has defined “beneficial” ownership of a security to mean, generally, the possession, including shared possession, directly or indirectly, of voting power or investment power. A shareholder is also deemed to be, as of any date, the beneficial owner of all securities that such shareholder has the right to acquire within 60 days after that date through (1) the exercise of any option, warrant or right, (2) the conversion of a security, (3) the power to revoke a trust, discretionary account or similar arrangement or (4) the automatic termination of a trust, discretionary account or similar arrangement. Under these rules, more than one person may be deemed a beneficial owner of the same securities, and a person may be deemed a beneficial owner of securities as to which he has no economic interest. Unless otherwise indicated, we believe that each of the shareholders listed has sole voting and investment power with respect to their beneficially owned shares of our common stock.

Prior to this offering we have been substantially owned by descendants of Continental Mortgage Company’s first employee, W. Walter Williams, and by an employee stock ownership plan, or ESOP, operated for the benefit of our employees. Directors Janet Westling, Bruce Williams, Wendy Williams, Marcia Williams, Kathryn Williams, Steven Zimmerman and Karen Zimmerman are grandchildren of W. Walter Williams, and director Glory Beijar is a great-grandchild of W. Walter Williams. Prior to the completion of this offering, the Williams family has owned its shares in HomeStreet subject to a shareholder agreement that requires each family member shareholder to vote his or her shares in a manner determined at a meeting of a family council, thus assuring that all family members vote their shares collectively as the family members have determined. That voting agreement also restricted family members’ transfers of shares to persons outside the Williams family and placed other restrictions on ownership for the shares of HomeStreet. The voting agreement terminates upon completion of this offering.

The percentages reflect beneficial ownership as of April 30, 2011, as determined under Rule 13d-3 under the Exchange Act and are based on 3,377,186 shares of our common stock outstanding immediately prior to this offering, and              shares of our common stock outstanding as of the date immediately following completion of this offering, assuming no exercise of the over-allotment option and no purchase of shares of our common stock by these persons in this offering. In addition, any options exercisable within 60 days of April 30, 2011 will be included in the beneficial ownership of the holder of such option, and the percentage ownership for that holder will be calculated by adding the aggregate number of options exercisable within 60 days of April 30, 2011 to both the number of shares held by that specific shareholder and the total number of shares outstanding. Unless otherwise set forth in the following table, the address of the listed shareholders is c/o HomeStreet, Inc., 601 Union Street, Seattle, Washington 98101.

 

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Name of Beneficial Owner

  Shares Beneficially Owned
Prior to Offering
    Shares Beneficially Owned
After to Offering
 
      Number of Shares
of Common Stock
    Ownership
Percentage
    Number of Shares
of Common Stock
    Ownership
Percentage
 

Five Percent Shareholders:

       

The ESOP(1)

    649,824        19.2%       

Williams Family Group(2)

    2,181,780        64.6%       

Directors and Executive Officers:

       

Mark K. Mason(3)

    31,250        *%       

Glory C. Beijar(4)

    21,627        *%       

Brian Dempsey(5)

    11,383        *%       

David A. Ederer

    4,666        *%       

Gerhardt Morrison

    3,166        *%       

Bruce Williams(6)

    638,355        18.9%       

Janet L. Westling(7)

    185,066        5.5%       

Kathryn A. Williams(8)

    237,954        7.0%       

Marcia F. Williams(9)

    216,991        6.4%       

Wendy S. Williams(10)

    202,244        6.0%       

Karen M. Zimmerman(11)

    26,273        *%       

Steven W. Zimmerman(12)

    232,056        6.9%       

Scott M. Boggs

    1,759        *%       

Thomas E. King

                 

George “Judd” Kirk

    189        *%       

Mary H. Oldshue

    480        *%       

Cynthia P. Sonstelie(13)

    6,559        *%       

David E. Hooston(3)

    8,750        *%       

Jay Iseman(3)

    6,250        *%       

Godfrey B. Evans(3)

    6,250        *%       

Richard W.H. Bennion(14)

    31,926        *%       

Patricia A. Leach(15)

    21,309        *%       
       

All executive officers and directors as a group
(32 persons)(16)

    1,966,603        56.2    

 

 * less than 1.0%
(1) ESOP participants have the authority to direct voting of shares they hold through ESOP in certain circumstances.

 

(2) Pursuant to the Family Stockholder Agreement, certain members of the Williams Family Group are subject to a voting agreement as described above.

 

(3) Represents options exercisable within 60 days of April 30, 2011.

 

(4) Excludes 2,160,153 shares attributable to Glory Beijar by virtue of the Williams Family Shareholder Agreement. Ms. Beijar disclaims beneficial ownership of those shares except to the extent of her pecuniary interest therein.

 

(5) Includes 7,000 shares of common stock held by Brian P. Dempsey and Cairns C. Dempsey as joint tenants with right of survivorship.

 

(6)

Includes 12,033 shares held through the ESOP. ESOP participants have the authority to direct voting of shares they hold through the ESOP in certain circumstances. Also includes (a) 16,967 shares held by Bruce Williams and Gro A. Buer, husband and wife, (b) 117,580 shares held as co-trustee with Ms. Buer for the Marina Sonja Williams Trust dated 12/25/95, (c) 1367.75 shares held as sole trustee for the Marina Sonja Williams Trust dated 12/23/03, (d) 100,048 shares held as executor of the estate of Walter B. Williams;

 

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(e) 100,046 shares held as executor of the estate of Marie W. Williams; (f) 20,107 shares held as the sole trustee of the Walter B. Williams Interim Trust; (g) 34,551 shares held as the sole trustee of the 2000 Karen M. Zimmerman Trust; (h) 34,551 shares held as the sole trustee of the Steven W. Zimmerman Trust; (h) 469 shares held as the sole trustee for the Andrew Alvaro Mullins-Williams 2005 Trust and (i) 97,784 shares held as the sole trustee of the Myers Irrevocable Trust #1. Excludes 1,555,458.25 shares attributable to Bruce Williams by virtue of the Williams Family Shareholder Agreement. Mr. Williams disclaims beneficial ownership of those shares except to the extent of his pecuniary interest therein.

 

(7) Includes: (a) 104,021 shares of common stock held as co-trustee for the Westling Family Trust, as Janet Westling’s separate property; (b) 5,220 shares of common stock held as co-trustee for the Westling Family Trust, as community property; (c) 32,430 shares of common stock held as trustee of the John Dale Westling Trust dated 12/22/05; (d) 32,430 shares of common stock held as trustee of the Justin M. Westling Trust dated 12/22/05 and (e) 10,965 shares of common stock held as co-trustee of the Westling Family Trust, as Michael Westling’s Separate Property. Excludes 1,996,714 shares attributable to Ms. Westling by virtue of the Williams Family Shareholder Agreement. Ms. Westling disclaims beneficial ownership of those shares except to the extent of her pecuniary interest therein.

 

(8) Includes 750 shares of common stock issuable on exercise of options vested within 60 days of April 30, 2011, and 18,891 shares held through the ESOP. ESOP participants have the authority to direct voting of shares they hold through the ESOP only in certain circumstances. Also includes: (a) 1,367.75 shares of common stock held as trustee for the Andrew Alvaro Mullins-Williams Trust; (b) 10,000 shares of common stock held as trustee for the Andrew A. Mullins-Williams Trust dated 12/27/88 and (c) 51,102 shares of common stock held as trustee for the Mullins-Williams Children’s Trust dated 7/28/93. Excludes 1,951,467.25 shares attributable to Kathryn Williams by virtue of the Williams Family Shareholder Agreement. Ms. Williams disclaims beneficial ownership of those shares except to the extent of her pecuniary interest therein.

 

(9) Includes: (a) 1,367.75 shares of common stock held as trustee for the Annika Marie Swanson Trust; (b) 78,660 shares held as co-trustee for the Trust U/A dated 7/7/84 and (c) 1,367.75 shares of common stock held as trustee for the Jordan Williams Swanson Trust. Excludes 1,964,789.50 shares attributable to Marcia Williams by virtue of the Williams Family Shareholder Agreement. Ms. Williams disclaims beneficial ownership of those shares except to the extent of her pecuniary interest therein.

 

(10) Excludes 1,979,536 shares attributable to Wendy Williams by virtue of the Williams Family Shareholder Agreement. Ms. Williams disclaims beneficial ownership of those shares except to the extent of her pecuniary interest therein.

 

(11) Excludes (a) 34,551 shares of common stock held for the benefit of Karen Zimmerman by Bruce Williams as trustee under the 2000 Karen M. Zimmerman Trust dated 12/22/00 and (b) 2,155,507 shares attributable to Ms. Zimmerman by virtue of the Williams Family Shareholder Agreement. Ms. Zimmerman disclaims beneficial ownership of those shares except to the extent of her pecuniary interest therein.

 

(12) Includes: (a) 985 shares of common stock held as trustee for the Kevin Mark Zimmerman Trust Dated 12/20/07; (b) 985 shares of common stock held as trustee for the Hannah Abbey Zimmerman Trust dated 12/20/07; (c) 18,000 shares of common stock held as trustee for the Zimmerman Grandchildren Trust dated 12/25/91; (d) 985 shares of common stock held as trustee for the David John Zimmerman Trust dated 12/20/07; (e) 10,000 shares of common stock held as trustee for the Zimmerman Trust U/A dated 12/84; (f) 985 shares of common stock held as trustee for the Brian Paul Zimmerman Trust dated 12/20/07; (g) 528 shares of common stock held as trustee for the Brook Vanderhoogt Trust Dated 3/13/08 and (h) 528 shares of common stock held as trustee for the Brittney Vanderhoogt Trust dated 3/13/08 and (i) 95,595 shares of common stock held a trustee for Zimmerman Living Trust dated 11/12/97. Excludes (x) 34,551 shares of common stock held for the benefit of Steven Zimmerman by Bruce Williams as trustee for the 2000 Steven W. Zimmerman Trust Dated 12/22/00 and (y) 2,045,319 shares attributable to Mr. Zimmerman by virtue of the Williams Family Shareholder Agreement. Mr. Zimmerman disclaims beneficial ownership of those shares except to the extent of his pecuniary interest therein.

 

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(13) Includes 3,350 shares held jointly with Ms. Sonstelie’s husband, Richard Sonstelie.

 

(14) Includes 2,500 shares issuable on exercise of options vested within 60 days of April 30, 2011 and 23,132 shares held through the ESOP. ESOP participants have the authority to direct voting of shares they hold through the ESOP only in certain circumstances.

 

(15) Includes 2,000 shares issuable on exercise of options vested within 60 days of April 30, 2011 and 10,775 shares held through the ESOP. ESOP participants have the authority to direct voting of shares they hold through the ESOP only in certain circumstances.

 

(16) Includes an aggregate 68,500 shares issuable on exercise of options vested within 60 days of April 30, 2011, and 115,862 shares held through the ESOP. ESOP participants have the authority to direct voting of shares they hold through the ESOP only in certain circumstances.

HomeStreet, Inc. 401(k) Savings and Employee Stock Ownership Plan & Trust

Our Employee Stock Ownership Plan, or ESOP, is our largest single stockholder. Charles Schwab Trust Company is the trustee for all Plan assets except our common stock. The Bank is the directed trustee for our common stock owned by the Plan. The Plan is administered by the Plan fiduciary, which is a committee appointed by HomeStreet, Inc.’s board of directors and is comprised of Pamela J. Taylor, Richard W.H. Bennion and Patricia A. Leach .

Participants in the ESOP may direct the Plan trustee as to how to vote their shares of our common stock in their ESOP stock accounts with regard to approval or disapproval of any of the following events: (1) corporate merger of HomeStreet, Inc., (2) recapitalization of HomeStreet, Inc., (3) reclassifications of our common stock, (4) liquidation or dissolution of HomeStreet, Inc., or (5) sale of substantially all assets of HomeStreet, Inc. For all other matters, the directed trustee votes the shares of our common stock as a bloc, as directed by the Plan fiduciary.

 

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DESCRIPTION OF CAPITAL STOCK

The following summary of our capital stock is based on our articles of incorporation, our bylaws, Washington law, and certain orders applicable to HomeStreet or the Bank. The summary is not complete and is subject to, and qualified in its entirety by reference to, the terms of our articles of incorporation and bylaws, copies of which we have filed as exhibits to the registration statement of which this prospectus is a part, and the provisions of applicable Washington law and orders applicable to HomeStreet or the Bank. You should read our articles of incorporation, our bylaws, and the applicable Washington law and orders for the provisions that are important to you.

General

Our authorized capital stock consists of 100,010,000 shares, no par value, of which 100,000,000 shares are common stock and 10,000 shares are preferred stock. The rights and preferences of our preferred stock may be established from time to time by our board of directors. Immediately upon completion of this offering, we expect that there will be              shares of our common stock outstanding, assuming the underwriter does not exercise its option to purchase additional shares of our common stock, and no shares of preferred stock outstanding. We will reserve additional shares of our common stock equal to 10.0% of our outstanding common stock after the closing of this offering on a fully diluted basis for issuance of awards to our employees pursuant to our 2010 Equity Incentive Plan and additional shares for awards to our non-employee directors based on their annual compensation under a separate plan.

Common Stock

Except as otherwise required by law or provided in any amendment to our articles of incorporation setting forth the designation for any series of preferred stock, the holders of our common stock possess all voting power for the election of our directors and all other matters requiring shareholder action, except with respect to amendments to our articles of incorporation that alter or change the powers, preferences, rights or other terms of any outstanding preferred stock if the holders of such affected series of preferred stock are entitled to vote on such an amendment. Holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of shareholders and do not have cumulative voting rights in connection with the election of directors.

Except as otherwise provided by law, our articles of incorporation or our bylaws, all matters to be voted on by our shareholders must be approved by a majority of the shares present in person or by proxy at a meeting of shareholders and entitled to vote on the subject matter. Our articles of incorporation require the approval by affirmative vote of 2/3 of the outstanding stock of HomeStreet, Inc. to take the following actions:

 

   

amend the articles of incorporation;

 

   

adopt a plan of merger or plan of share exchange;

 

   

sell, lease, exchange or otherwise dispose of all or substantially all of the property of HomeStreet, Inc., other than in the usual and regular course of business; or

 

   

dissolve the company.

In the case of the election of directors, where a quorum is present, a plurality of the votes cast shall be sufficient to elect each director.

Holders of our common stock are entitled to receive dividends only when, as and if dividends are approved by our board of directors out of legally available funds. Subject to any preferential rights of any then outstanding preferred stock and to the requirements of Washington law and any order applicable to us, holders of our

 

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common stock are entitled to receive the holder’s proportionate share of any such dividends that may be declared by our board of directors. We are subject to various regulatory restrictions relating to the payment of dividends, and at present are precluded from declaring, making or paying any dividends on our common stock without the prior written consent of the OTS under the Company Order. We rely on dividends from the Bank in order to pay dividends to holders of our common stock; however, the Bank is currently prohibited from declaring, making or paying any dividends on its common stock without the prior written consent of the FDIC and DFI under the Bank Order.

In the event of our liquidation, dissolution or winding up, holders of common stock will be entitled to receive proportionately any of our assets remaining after the payment of liabilities and any preferential rights to holders of our then outstanding preferred stock, if any.

Holders of common stock have no preemptive, subscription, redemption or conversion rights. The outstanding shares of our common stock are, and the shares of common stock offered by us in this offering, when issued, will be, validly issued, fully paid and nonassessable. The rights, preferences and privileges of holders of our common stock will be subject to those of the holders of any shares of our preferred stock we may issue in the future.

There are, at present, no plans, understandings, agreements or arrangements concerning the issuance of additional shares of our common stock, except for the shares of common stock offered pursuant to this offering or that our board of directors authorizes for issuance on an annual basis under the terms of the 2010 Equity Incentive Plan and in the form of stock grants to directors as part of their annual compensation. Authorized but unissued shares of our common stock may be issued from time to time to such persons and for such consideration as our board of directors may determine.

Preferred Stock

None of our shares of authorized preferred stock has been issued or designated as a particular class or series. Our board of directors may, from time to time and without shareholder approval, authorize the issuance of one or more classes or series of preferred stock. Though we have no current intention to issue any shares of preferred stock, our articles of incorporation permit us to issue up to 10,000 shares of preferred stock. Subject to limitations prescribed by law and by our articles of incorporation, our board of directors is authorized to determine the preferences, limitations, voting powers and relative rights for each series of preferred stock that may be issued, including dividend rights, redemption rights, conversion rights and liquidation preferences, and to fix the number of shares of such series. Thus, our board of directors, without shareholder approval, could authorize the issuance of up to 10,000 shares of preferred stock with voting, liquidation, dividend, conversion and other rights that could be superior to the voting and other rights of the holders of our common stock or that could make it more difficult for another company to effect certain business combinations with us.

Our board of directors may at any time authorize the issuance of additional shares of the same series (up to the number of authorized shares of preferred stock), subject to the rights of the holders of any then outstanding preferred stock. Any preferred stock converted, redeemed, exchanged, cancelled or otherwise reacquired by us will, upon such conversion, redemption, exchange, cancellation or reacquisition, have the status of authorized but unissued preferred stock, designated as to series and subject to reissuance by our board of directors.

The issuance of preferred stock may adversely affect the rights of our common shareholders by, among other things:

 

   

restricting dividends on our common stock;

 

   

diluting the voting power of our common stock;

 

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eliminating the ability of our common stock to elect each of our directors;

 

   

impairing the liquidation rights of our common stock; or

 

   

delaying or preventing a change in control without further action by the shareholders.

We believe that our board of directors’ ability to issue preferred stock on such a wide variety of terms will enable the preferred stock to be used for important corporate purposes, such as financing acquisitions or raising additional capital. However, were it inclined to do so, our board of directors could issue all or part of the preferred stock with, among other things, substantial voting power or advantageous conversion rights. This stock could be issued to persons deemed by our board of directors likely to support our current management in a context for control of us, either as a precautionary measure or in response to a specific takeover threat.

Restrictions on Ownership and Transfer

Under a rebuttable presumption established by the OTS, it is possible that the acquisition of 10% or more of the voting stock of a savings association or its holding company, would, under certain circumstances set forth in the presumption, constitute the acquisition of control. As such, an investor wishing to acquire and hold more than 10% of our common stock after this offering may be required to file a change of control application with the OTS that would need to be approved before such investor could acquire such shares.

Transfer Agent and Registrar

The Transfer Agent and Registrar for our common stock is American Stock Transfer & Trust Company, LLC . Its address is 6201 15 th Avenue, Brooklyn, NY 11219 , and its telephone number is (800) 937-5449.

Nasdaq Listing

We have applied for listing of our common stock on the Nasdaq Global Market under the symbol “HMST.”

Material Anti-Takeover Effects of our Charter and Bylaws and of Washington Law

Our charter documents and the Washington Business Corporation Act, or WBCA, contain provisions that may have the effect of discouraging, delaying or preventing a change in control or an unsolicited acquisition proposal that a shareholder might consider favorable, including a proposal that might result in the payment of a premium over the market price for the shares held by our shareholders. Certain of these provisions are summarized in the following paragraphs.

Authorized but Unissued Shares of Common Stock and Preferred Stock

We believe that the availability of the preferred stock under our articles of incorporation provides us with flexibility in addressing corporate issues that may arise. Having these authorized shares available for issuance will allow us to issue shares of preferred stock without the expense and delay of a special shareholders meeting. The authorized shares of preferred stock, as well as the authorized but unissued shares of our common stock, will be available for issuance without further action by our shareholders, unless action is required by applicable law or the rules of any stock exchange on which our securities may be listed. Our board of directors has the power, subject to applicable law, to issue additional shares of common stock or a new series of preferred stock that could impede the completion of a merger, tender offer or other takeover attempt that some, or a majority, of our shareholders might believe to be in their best interests or in which shareholders might receive a premium for their stock over the then prevailing market price of the stock.

 

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Cumulative Voting

The WBCA provides that shareholders have the right to cumulate votes in the election of directors unless our articles of incorporation provide otherwise. Our articles of incorporation expressly disallow cumulative voting in the election of directors.

Increase in the Number of Directors

Our bylaws, which are incorporated into our charter, provide for a range of nine to 13 directors and grants the board of directors authority to increase the number of directors within that range by resolution adopted by the affirmative vote of a majority of the directors then in office. In addition, the board of directors currently has the authority to amend the bylaws to increase the maximum number of directors without seeking shareholder approval. Newly created directorships resulting from an increase in the number of authorized directors, or any vacancies in our board of directors resulting from death, resignation, retirement, disqualification, removal from office or other cause, are filled solely by the affirmative vote of a majority of the remaining directors then in office. An increase in the number of authorized directors could have the effect of discouraging a takeover by restricting the ability of a shareholder (or group of shareholders) from changing the majority composition of the board of directors.

Staggered Board of Directors; Removal of Directors

Our articles of incorporation divide our board of directors into three classes with staggered three-year terms. In addition, pursuant to the Company’s bylaws a director may be removed only for good cause and only by an affirmative vote of the shareholders. Any vacancy on our board of directors, including a vacancy resulting from an enlargement of our board of directors, may be filled by vote of a majority of our directors then in office.

Advance Notice Requirements for Shareholder Proposals and Director Nominations

Our bylaws provide that shareholders seeking to bring business before an annual meeting of shareholders must provide timely notice of their proposal in writing to the corporate secretary. Our bylaws also specify requirements as to the form and content of a shareholder’s notice. These provisions may impede shareholders’ ability to bring matters before an annual meeting of shareholders or make nominations for directors at an annual meeting of shareholders.

Special Meetings of Shareholders

Our bylaws provide that special meetings of shareholders may be called only by the holders of shares entitled to cast not less than 10.0% of the votes at that meeting, the board of directors, the Chairman of the board of directors, or the Chief Executive Officer. This limited ability to call a special meeting of shareholders may have an anti-takeover effect because a potential acquirer may be impeded from calling a special meeting of shareholders to consider removing directors or to consider an acquisition offer.

Anti-Takeover Effects of Washington Law

Washington law contains certain provisions that may have the effect of delaying, deterring or preventing a change in control of the Company. Chapter 23B.19 of the WBCA prohibits us, with certain exceptions, from engaging in certain significant business transactions with an “acquiring person” (defined as a person or group of persons who acquire 10.0% or more of our voting securities without the prior approval of the our board of directors) for a period of five years following the acquiring person’s share acquisition date. The prohibited

 

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transactions include, among others, a merger or consolidation with, disposition of assets to, or issuance or redemption of stock to or from, the acquiring person, or otherwise allowing the acquiring person to receive a disproportionate benefit as a shareholder. Exceptions to this statutory prohibition include approval of the transaction at a shareholders meeting by holders of not less than a two-thirds of the shares held by each voting group entitled to vote on the transaction, not counting shares as to which the acquiring person has beneficial ownership or voting control, transactions approved by the board of directors prior to the acquiring person first becoming an acquiring person, or, with respect to a merger, share exchange, consolidation, liquidation or distribution entered into with the acquiring person, transactions where certain other requirements regarding the fairness of the consideration to be received by the shareholders have been met. We may not exempt ourselves from coverage of this statute. These statutory provisions may have the effect of delaying, deterring or preventing a change in control of the Company.

 

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SHARES AVAILABLE FOR FUTURE SALE

Upon the completion of this offering, we will have                          shares of our common stock outstanding, assuming the underwriter does not exercise its overallotment option. All of the shares of our common stock sold in the offering will be freely tradable under the Securities Act.

No assurance can be given as to (1) the likelihood that an active market for our common stock will develop, (2) the liquidity of any such market, (3) the ability of our shareholders to sell the securities or (4) the prices that shareholders may obtain for any of the securities. No prediction can be made as to the effect, if any, that future sales of shares, or the availability of shares for future sale, will have on the market price prevailing from time to time. Sales of substantial amounts of our common stock, or the perception that such sales could occur, may affect adversely prevailing market prices of our common stock. See “Risk Factors — Risks Relating to This Offering.”

We intend to file with the SEC a registration statement on Form S-8 to register shares of our common stock issuable under our 2010 Equity Incentive Plan equal to 10.0% of our issued and outstanding shares of common stock on a fully diluted basis as well as 105,000 shares issuable to non-employee directors as part of their annual compensation pursuant to a separate plan, as described under “Executive Compensation — 2010 Equity Incentive Plan.” Following such registration, all shares of our common stock issuable upon exercise of options granted or to be granted under the 2010 Plan will be freely tradable without restrictions under the Securities Act, except to the extent held by one of our affiliates (in which case they will be subject to the limitations of Rule 144 of the Securities Act described below). Additionally, promptly after completing this offering we expect to file a registration statement and reoffer prospectus under Rule 415 relating to shares held in the ESOP.

All of the 3,377,186 shares of our common stock owned by our current shareholders will become eligible for sale, subject to compliance with Rule 144 of the Securities Act as described below and, with respect to shares held by our executive officers, management and certain holders of a significant number of shares of our common stock, upon the expiration of lock-up agreements.

Rule 144

In general, under Rule 144 as currently in effect, a person (or persons whose shares are aggregated) who has beneficially owned shares of our common stock for at least one year, will be entitled to sell in any three-month period a number of shares that does not exceed the greater of: (1) 1% of the number of shares of our common stock then outstanding (              shares immediately after the offering or              if the underwriter’s over-allotment is exercised in full) or (2) the average weekly trading volume of our common stock on the Nasdaq Global Market during the four calendar weeks immediately preceding the date on which the notice of sale is filed with the SEC with respect to such sale (or the date of receipt of the order to execute the transaction if no such notice is required). As of the date of this prospectus, a ll of the shares of our common stock held by our current shareholders have been held for over one year. Sales pursuant to Rule 144 are subject to requirements relating to manner of sale, notice and availability of current public information about us. A person (or persons whose shares are aggregated) who is not deemed to be an affiliate of ours preceding the sale and who has beneficially owned shares for at least one year is entitled to sell such shares pursuant to Rule 144(b)(1) without regard to the limitations and requirements described above.

Rule 144 also generally provides that if (1) six months have elapsed since the date of acquisition of common shares from us or any of our affiliates, (2) we have been a reporting company under the Exchange Act for at least 90 days and (3) the holder is not, and has not been, an affiliate of ours at any time during the three months preceding the proposed sale, such holder may sell such common shares in the public market under Rule 144(b)(1) subject to satisfaction of Rule 144’s public information requirements but without regard to the volume limitations, manner of sale provisions or notice requirements under such rule.

 

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Lock-Up Agreements

We, and each of our directors, senior executive officers and significant shareholders, including the ESOP, have agreed, for a period of 180 days beginning on and including the date of this prospectus, not to, directly or indirectly:

 

   

offer, pledge, sell, contract to sell, solicit offers to purchase, hypothecate, sell any option or contract to purchase, purchase any option or contract to sell, make any short sale, grant any option, right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly, any shares of our common stock or securities similar to our common stock, or any securities convertible into or exercisable or exchangeable for any shares of our common stock or securities similar to our common stock, or any right to acquire shares of our common stock or securities similar to our common stock; or

 

   

establish or increase any put equivalent position or liquidate or decrease any call equivalent position with respect to our common stock, or otherwise enter into any swap, derivative or other transaction or arrangement that transfers to another, in whole or in part, any economic consequences of ownership of our common stock, whether or not such transaction would be settled by delivery of our common stock or other securities, in cash or otherwise, without, in each case, the prior written consent of FBR Capital Markets & Co., subject to certain specified exceptions.

Exceptions in the lockup agreement permit us to, among other things, (1) issue our common stock to the underwriter pursuant to the underwriting agreement, (2) issue our common stock or options pursuant to existing stock option and incentive plans, including the 2010 retention grants, the 2010 Plan and the director compensation plan, (3) issue our common stock upon exercise of options or warrants that are outstanding as of the date of this prospectus and (4) issue shares of our common stock upon the exercise of stock options issued after the date of this prospectus under stock option plans referred to in clause (2) of this sentence.

Exceptions in the lockup agreement permit our directors, officers and those shareholders who have entered into such agreements to transfer any of our securities (including, without limitation, our common stock) as follows: (1) as a bona fide gift or gifts, provided that the donee or donees thereof agree to be bound in writing by the restrictions of the lock-up agreement, (2) to a pledgee with respect to any pledge or hypothecation of such shares outstanding at the time the lock-up agreement was signed and disclosed in writing to the underwriters, (3) by will or testamentary trust, provided the recipient, trustee or executor as the case may be agrees in writing to be bound by the restrictions of the agreement or (4) to any trust for the direct or indirect benefit of that officer, director or shareholder or his or her immediate family, provided that the trustee of the trust agrees to be bound in writing by such restrictions and provided further that any such transfer shall not involve a disposition for value. For purposes of this paragraph, “immediate family” shall mean any relationship by blood, marriage or adoption not more remote than first cousin.

The underwriter does not intend to release early any portion of the shares of our common stock subject to the foregoing lock-up agreements. However, the underwriter, in its sole discretion, may release any of our shares of common stock from the lock-up agreements prior to expiration of the 180-day period without notice. In considering a request to release shares from a lock-up agreement, the underwriter will consider a number of factors, including the impact that such a release would have on this offering and the market for our common stock and the equitable considerations underlying the request for releases.

The 180-day restricted period described in the preceding paragraphs will be automatically extended if: (1) during the last 17 days of the 180-day restricted period we issue an earnings release or announce material news or a material event or (2) prior to the expiration of the 180-day restricted period, we announce that we will release earnings results during the 16-day period following the last day of the 180-day period, in which case the restrictions described in the preceding paragraph will continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the announcement of the material news or material event. This automatic extension is waivable only by FBR Capital Markets & Co.

 

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MATERIAL UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS

The following is a general discussion of material U.S. federal income tax consequences of the purchase, ownership and disposition of our common stock as of the date hereof. Except where noted, this summary deals only with shares of our common stock held as capital assets. As used herein, the term “U.S. holder” means a beneficial owner (as defined under U.S. tax laws) of our common stock that is for U.S. federal income tax purposes:

 

   

an individual citizen or resident of the United States;

 

   

a corporation (or any other entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States, any state thereof or the District of Columbia;

 

   

an estate, the income of which is subject to U.S. federal income taxation regardless of its source; or

 

   

a trust if it (a) is subject to the primary supervision of a court within the United States and one or more U.S. persons have the authority to control all substantial decisions of the trust or (b) has a valid election in effect under applicable U.S. Treasury regulations (“Treasury Regulations”) to be treated as a U.S. person.

As used herein, the term “non-U.S. holder” means a beneficial owner of our common stock that is neither a U.S. holder nor a partnership (or other entity treated as a partnership for U.S. federal income tax purposes).

This summary is not a detailed description of the U.S. federal income tax consequences applicable to you if you are subject to special treatment under the U.S. federal income tax laws, including if you are:

 

   

a dealer in securities or currencies;

 

   

a financial institution;

 

   

a regulated investment company;

 

   

a real estate investment trust;

 

   

an insurance company;

 

   

a tax-exempt organization, qualified retirement plan, individual retirement account or other tax-deferred account;

 

   

a person holding our common stock as part of a hedging, integrated, conversion or constructive sale transaction or a straddle;

 

   

a trader in securities that has elected the mark-to-market method of accounting;

 

   

a person liable for alternative minimum tax;

 

   

a partnership or other pass-through entity for U.S. federal income tax purposes;

 

   

a person who is an investor in a pass-through entity;

 

   

a U.S. holder whose “functional currency” is not the U.S. dollar;

 

   

a “controlled foreign corporation”;

 

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a “passive foreign investment company”; or

 

   

a U.S. expatriate.

This summary is based upon the provisions of the Internal Revenue Code of 1986, as amended (the “Code”), Treasury Regulations (whether final, temporary or proposed), published rulings of the Internal Revenue Service (the “IRS”), published administrative positions of the IRS, and U.S. court decisions that are applicable and, in each case, as in effect and available as of the date of this registration statement. Any of the authorities on which this summary is based could be changed in a material and adverse manner at any time, and any such change could be applied on a retroactive basis. This summary does not discuss the potential effects, whether adverse or beneficial, of any proposed legislation that, if enacted, could be applied on a retroactive basis.

If a partnership holds our common stock, the tax treatment of a partner will generally depend upon the status of the partner and the activities of the partnership. If you are a partner of a partnership holding our common stock, you should consult your own tax advisors.

This summary does not take into account the individual facts and circumstances of any particular taxpayer and does not address the effects of any state, local or non-U.S. tax laws, or U.S. federal estate and gift tax laws. If you are considering the purchase, ownership or disposition of our common stock, you should consult your own tax advisors concerning the U.S. federal income tax consequences to you in light of your particular situation, as well as any consequences arising under the laws of any other taxing jurisdiction.

This summary is not binding on the IRS, and the IRS is not precluded from taking a position that is different from, and contrary to, the positions taken in this summary. In addition, because the authorities on which this summary is based are subject to various interpretations, the IRS and the U.S. courts could disagree with one or more of the positions taken in this summary.

U.S. Holders

Dividends

Distributions (including any constructive distributions), if any, on our common stock will be dividends for U.S. federal income tax purposes to the extent paid out of our current or accumulated earnings and profits, as determined for U.S. federal income tax purposes, and will be taxable as ordinary income, although possibly at reduced rates, as discussed below. To the extent that the amount of any distribution paid on a share of our common stock exceeds our current and accumulated earnings and profits attributable to that share of common stock, the distribution will be treated first as a tax-free return of capital and will be applied against and will reduce the U.S. holder’s adjusted tax basis (but not below zero) in that share of common stock. This reduction in basis will increase any gain, or reduce any loss, realized by the U.S. holder on the subsequent sale, redemption or other disposition of our common stock. The amount of any such distribution in excess of the U.S. holder’s adjusted tax basis will be taxed as capital gain. For purposes of the remainder of the discussion under this heading, it is assumed that distributions paid on our common stock will constitute dividends for U.S. federal income tax purposes.

If a U.S. holder is a corporation, dividends that are received by it will generally be eligible for a 70% dividends-received deduction under the Code. The Code disallows this dividends-received deduction in its entirety, however, if the common stock with respect to which the dividend is paid is held by the U.S. holder for less than 46 days during the 91-day period beginning on the date that is 45 days before the ex-dividend date.

Under current law, if a U.S. holder is an individual or other non-corporate holder, dividends received by such U.S. holder generally will be subject to a reduced maximum tax rate of 15%. The reduced rate does not

 

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apply to dividends received to the extent that U.S. holders elect to treat the dividends as “investment income,” for purposes of the rules relating to the limitation on the deductibility of investment-related interest. The reduced rate also does not apply to dividends paid to holders of our common stock that have held the stock for fewer than 61 days during the 121-day period beginning on the date that is 60 days before the ex-dividend date.

In general, for purposes of meeting the holding period requirements for both the dividends-received deduction and the reduced maximum tax rate on dividends described above, U.S. holders may not count towards their holding period any period in which they (1) have the option to sell, are under a contractual obligation to sell, or have made (and not closed) a short sale of shares of our common stock, as the case may be, or substantially identical stock or securities, (2) are the grantor of an option to buy our common stock, as the case may be, or substantially identical stock or securities, or (3) otherwise have diminished their risk of loss on our common stock, as the case may be, by holding one or more other positions with respect to substantially similar or related property. In addition, the Code disallows the dividends-received deduction and the reduced maximum tax rate on dividends if the recipient of a dividend is obligated to make related payments with respect to positions in substantially similar or related property. This disallowance applies even if the minimum holding period has been met. U.S. holders are advised to consult their own tax advisors regarding the implications of these rules in light of their particular circumstances.

U.S. holders that are corporations should consider the effect of Section 246A of the Code, which reduces the dividends-received deduction allowed with respect to “debt-financed portfolio stock.” In addition, a corporate shareholder may be required to reduce its basis in stock with respect to certain “extraordinary dividends,” as provided under Section 1059 of the Code. U.S. holders should consult their own tax advisors in determining the application of these rules in light of their particular circumstances.

Sale or Other Disposition

A sale, exchange or other disposition of our common stock will generally result in gain or loss equal to the difference between the amount realized upon the disposition (not including any amount attributable to declared and unpaid dividends, which will be taxable as described above to U.S. holders of record who have not previously included such dividends in income) and a U.S. holder’s adjusted tax basis in our common stock. Such gain or loss will be capital gain or loss, and such capital gain or loss will be long-term capital gain or loss if the U.S. holder’s holding period for the common stock exceeds one year. Under current law, if a U.S. holder is an individual or other non-corporate holder, net long-term capital gain realized by such U.S. holder is subject to a reduced maximum tax rate of 15%. The deduction of capital losses is subject to complex limitations.

Information Reporting and Backup Withholding

In general, information reporting will apply to dividends in respect of our common stock and the proceeds from the sale, exchange or other disposition of our common stock that are paid to a U.S. holder within the United States (and in certain cases, outside the United States), unless a U.S. holder is an exempt recipient. Backup withholding at the current rate of 28% may apply to such payments if a U.S. holder fails to provide a taxpayer identification number or otherwise fails to comply with, or establish an exemption from, such backup withholding requirements.

Backup withholding is not an additional income tax. Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against a U.S. holder’s U.S. federal income tax liability, provided that the required information is furnished to the IRS in a timely manner.

 

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Non-U.S. Holders

Dividends

Dividends (including any constructive distributions taxable as dividends) paid to a non-U.S. holder of our common stock generally will be subject to withholding of U.S. federal income tax at a 30% rate or such lower rate as may be specified by an applicable income tax treaty. Dividends that are effectively connected with the conduct of a trade or business within the United States by the non-U.S. holder (and, if required by an applicable income tax treaty, are attributable to a U.S. permanent establishment) are not subject to the withholding tax, provided certain certification and disclosure requirements are satisfied. Instead, such dividends are subject to U.S. federal income tax on a net income basis in the same manner as if the non-U.S. holder were a U.S. person as defined under the Code. Any such effectively connected dividends received by a foreign corporation may be subject to an additional “branch profits tax” at a 30% rate, or such lower rate as may be specified by an applicable income tax treaty.

A non-U.S. holder of our common stock who wishes to claim the benefit of an applicable treaty rate and avoid backup withholding, as discussed below, for dividends will be required (1) to complete IRS Form W-8BEN (or other applicable form) and certify under penalty of perjury that such holder is not a U.S. person as defined under the Code and is eligible for treaty benefits or (2) if our common stock is held through certain foreign intermediaries, to satisfy the relevant certification requirements of applicable Treasury Regulations. Special certification and other requirements apply to certain non-U.S. holders that are pass-through entities rather than corporations or individuals.

A non-U.S. holder of our common stock eligible for a reduced rate of U.S. withholding tax pursuant to an income tax treaty may obtain a refund of any excess amounts withheld by filing an appropriate claim for refund with the IRS.

Sale or Other Disposition

Any gain realized on the disposition of our common stock generally will not be subject to U.S. federal income tax unless:

 

   

the gain is effectively connected with a trade or business of the non-U.S. holder in the United States (and, if required by an applicable income tax treaty, is attributable to a U.S. permanent establishment of the non-U.S. holder);

 

   

the non-U.S. holder is an individual who is present in the United States for 183 days or more in the taxable year of that disposition and certain other conditions are met; or

 

   

we are or have been a “U.S. real property holding corporation” for U.S. federal income tax purposes at any time within the shorter of the five-year period preceding such disposition or such non-U.S. holder’s holding period for our common stock.

If your gain is described in the first bullet point above, you generally will be subject to U.S. federal income tax on the net gain derived from the sale. If you are a corporation, then any such effectively connected gain may also, under certain circumstances, be subject to the branch profits tax at a 30% rate, or such lower rate as may be prescribed under an applicable income tax treaty. If you are an individual described in the second bullet point above, you will be subject to a flat 30% U.S. tax on the gain derived from the sale, which may be offset by U.S.-source capital losses.

We believe we are not and do not anticipate becoming a “U.S. real property holding corporation” for U.S. federal income tax purposes.

 

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Information Reporting and Backup Withholding

We must report annually to the IRS and to each non-U.S. holder the amount of dividends paid to such holder and the tax withheld with respect to such dividends, regardless of whether withholding was required. Copies of the information returns reporting such dividends and withholding may also be made available to the tax authorities in the country in which the non-U.S. holder resides under the provisions of an applicable income tax treaty or exchange of information agreement.

A non-U.S. holder will be subject to backup withholding, currently at the rate of 28%, for dividends paid to the holder unless such holder certifies under penalty of perjury that it is a non-U.S. holder (and the payor does not have actual knowledge or reason to know that such holder is a U.S. person as defined under the Code), or such holder otherwise establishes an exemption from backup withholding.

Information reporting and, depending on the circumstances, backup withholding will apply to the proceeds of a sale of our common stock within the United States or conducted through certain U.S.-related financial intermediaries, unless the beneficial owner certifies under penalty of perjury that it is a non-U.S. holder (and the payor does not have actual knowledge or reason to know that the beneficial owner is a U.S. person as defined under the Code), or such owner otherwise establishes an exemption.

Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules will be allowed as a refund or a credit against a non-U.S. holder’s U.S. federal income tax liability, provided that the required information is furnished to the IRS in a timely manner.

 

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UNDERWRITING

Subject to the terms and conditions set forth in the underwriting agreement between us and the underwriters named below, for whom FBR is acting as representative, we have agreed to sell to the underwriters, and each underwriter has severally agreed to purchase, at the public offering price less the underwriting discounts and commissions shown on the cover page of this prospectus, the number of shares of common stock listed next to its name in the following table:

 

Underwriter

   Number of
Shares
 

FBR Capital Markets & Co.

  

Under the terms and conditions of the underwriting agreement, the underwriters are committed to purchase all of the shares offered by this prospectus (other than the shares subject to the underwriters’ option to purchase additional shares), if the underwriters buy any of such shares. We have agreed to indemnify the underwriters against certain liabilities, including certain liabilities under the Securities Act, or to contribute to payments the underwriters may be required to make in respect of such liabilities.

The underwriters initially propose to offer the common stock directly to the public at the public offering price set forth on the cover page of this prospectus and to certain dealers at such offering price less a concession not to exceed $              per share. The underwriters may allow, and such dealers may re-allow, a discount not to exceed $              per share to certain other dealers. After the public offering of the shares of common stock, the offering price and other selling terms may be changed by the underwriters.

Over-Allotment Option.     We have granted to the underwriters an option to purchase up to              additional shares of our common stock at the same price per share as they are paying for the shares shown in the table above. The underwriters may exercise this option in whole or in part at any time within 30 days after the date of the underwriting agreement. To the extent the underwriters exercise this option, each underwriter will be committed, so long as the conditions of the underwriting agreement are satisfied, to purchase a number of additional shares proportionate to that underwriter’s initial commitment as indicated in the table at the beginning of this section plus, in the event that any underwriter defaults in its obligation to purchase shares under the underwriting agreement, certain additional shares.

Discounts and Commissions.     The following table shows the per share and total underwriting discounts and commissions we will pay to the underwriters. These amounts are shown assuming both no exercise and full exercise of the underwriters’ option to purchase additional shares of our common stock.

 

     No
Exercise
     Full
Exercise
 

Per Share

   $                    $                

Total

   $         $     

In addition to the underwriting discounts and commissions to be paid by us, we have agreed to reimburse FBR for certain of its out-of-pocket expenses incurred in connection with this offering, including road show costs and expenses incurred in connection with this offering, and FBR’s disbursements for the fees and expenses of underwriters’ counsel up to $             , subject to a total expense reimbursement cap of $             . We have paid FBR a $              advance against its out-of-pocket expenses. We estimate that the total expenses of the offering payable by us, excluding underwriting discounts and commissions, will be approximately $              million.

Listing.     We have applied to list our common stock on the Nasdaq Global Market. We have reserved the trading symbol “HMST”. In order to meet the requirements for listing on that exchange, the underwriters intend to sell at least the minimum number of shares to at least the minimum number of beneficial owners as required by that exchange.

 

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Stabilization.     In accordance with Regulation M under the Exchange Act, the underwriters may engage in activities that stabilize, maintain or otherwise affect the price of our common stock, including short sales and purchases to cover positions created by short positions, stabilizing transactions, syndicate covering transactions, penalty bids and passive market making.

 

   

Short positions involve sales by the underwriters of shares in excess of the number of shares the underwriters are obligated to purchase, which creates a syndicate short position. The short position may be either a covered short position or a naked short position. In a covered short position, the number of shares involved in the sales made by the underwriters in excess of the number of shares they are obligated to purchase is not greater than the number of shares that they may purchase by exercising their option to purchase additional shares. In a naked short position, the number of shares involved is greater than the number of shares in their option to purchase additional shares. The underwriters may close out any short position by either exercising their option to purchase additional shares or purchasing shares in the open market.

 

   

Stabilizing transactions permit bids to purchase the underlying security as long as the stabilizing bids do not exceed a specific maximum price.

 

   

Syndicate covering transactions involve purchases of our common stock in the open market after the distribution has been completed to cover syndicate short positions. In determining the source of shares to close out the short position, the underwriters will consider, among other things, the price of shares available for purchase in the open market as compared to the price at which they may purchase shares through the underwriters’ option to purchase additional shares. If the underwriters sell more shares than could be covered by their option to purchase additional shares, thereby creating a naked short position, the position can only be closed out by buying shares in the open market. A naked short position is more likely to be created if the underwriters are concerned that there could be downward pressure on the price of the shares in the open market after pricing that could adversely affect investors who purchase in the offering.

 

   

Penalty bids permit the representative to reclaim a selling concession from a syndicate member when the common stock originally sold by the syndicate member is purchased in a stabilizing or syndicate covering transaction to cover syndicate short positions.

 

   

In passive market making, market makers in the common stock who are underwriters or prospective underwriters may, subject to limitations, make bids for or purchase shares of our common stock until the time, if any, at which a stabilizing bid is made.

These activities may have the effect of raising or maintaining the market price of our common stock or preventing or retarding a decline in the market price of our common stock. As a result of these activities, the price of our common stock may be higher than the price that might otherwise exist in the open market. These transactions may be effected on the Nasdaq Global Market or otherwise and, if commenced, may be discontinued at any time.

Neither we nor any of the underwriters make any representation or prediction as to the direction or magnitude of any effect that the transactions described above may have on the price of our common stock. In addition, neither we nor any of the underwriters make any representation that the representative of the underwriters will engage in these stabilizing transactions or that any transaction, once commenced, will not be discontinued without notice.

Lock-Up Agreements.     We, all of our current executive officers and directors and certain of our significant shareholders have entered into lock-up agreements restricting sales of our common stock during the 180 days following the date of the offering. See “Shares Available for Future Sale — Lock-Up Agreements” for more information.

 

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Directed Share Program.     At our request, the underwriters have reserved for sale, at the initial offering price, up to              shares of our common stock for certain of our officers, directors, employees and shareholders, or their affiliates, who have expressed an interest in purchasing common shares in the offering. Shares purchased by our officers, directors and significant shareholders, and their respective affiliates, will be subject to the lock-up agreements signed by them. The number of shares of common stock available to the general public in the offering will be reduced by the amount sold in the directed share program. We will not pay an underwriting discount on any reserved shares sold to our officers, directors, employees or shareholders, or their affiliates. Any reserved shares not so purchased will be offered by the underwriters to the general public on the same terms as the other shares of common stock.

Discretionary Accounts.     The underwriters have informed us that they do not expect to make sales to accounts over which they exercise discretionary authority in excess of 5.0% of the shares of common stock being offered in this offering.

IPO Pricing.     Prior to the completion of this offering, there has been no public market for our common stock. The initial public offering price has been negotiated between us and the representative. Among the factors to be considered in these negotiations were: the history of, and prospects for, us and the industry in which we compete, our past and present financial performance, an assessment of our management, the present state of our development, the prospects for our future earnings, the prevailing conditions of the applicable United States securities market at the time of this offering and market valuations of publicly traded companies that we and the representative believe to be comparable to us.

Certain Information and Fees.     A prospectus in electronic format may be made available on the websites maintained by one or more of the underwriters or selling group members, if any, participating in the offering. The representative may allocate a number of shares to the underwriters and selling group members, if any, for sale to their online brokerage account holders. Any such allocations for online distributions will be made by the representative on the same basis as other allocations.

Other than the prospectus in electronic format, the information on any underwriter’s or selling group member’s website and any information contained in any other website maintained by any underwriter or selling group member is not part of this prospectus or the registration statement of which this prospectus forms a part, has not been approved or endorsed by us or any underwriter in its capacity as underwriter or selling group member and should not be relied upon by investors.

If you purchase shares of common stock offered in this prospectus, you may be required to pay stamp taxes and other charges under the laws and practices of the country of purchase, in addition to the offering price listed on the cover page of this prospectus.

Other Relationships.     FBR may in the future provide us and our affiliates with investment banking and financial advisory services for which FBR may in the future receive customary fees. We have granted FBR a right of first refusal under certain circumstances to act as (1) financial advisor in connection with any purchase of sale of assets or a business combination or other strategic transaction and (2) the sole book runner or sole placement agent in connection with any subsequent public or private offering of equity securities or other capital markets financing by us. Subject to completion of this offering, this right of first refusal extends for one year from the date of this offering. The terms of any such engagement of FBR will be determined by separate agreement.

The principal business address of FBR Capital Markets & Co. is 1001 Nineteenth Street North, Arlington, Virginia 22209.

 

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VALIDITY OF COMMON STOCK

The validity of the shares of our common stock offered for sale in this offering will be passed upon by Davis Wright Tremaine LLP, Seattle, Washington. Certain legal matters in connection with this offering will be passed upon for the underwriters by Manatt, Phelps & Phillips, LLP, Los Angeles, California.

EXPERTS

The consolidated financial statements of HomeStreet, Inc. as of December 31, 2010 and 2009, and for each of the years in the three-year period ended December 31, 2010, have been included herein and in the registration statement in reliance upon the report of KPMG LLP, independent registered public accounting firm, appearing elsewhere herein, and upon the authority of said firm as experts in accounting and auditing.

The audit report dated April 29, 2011 refers to the Company’s election to carry mortgage servicing rights related to single family loans at fair value, and to carry single family residential mortgage loans held for sale using the fair value option.

The audit report dated April 29, 2011 contains an explanatory paragraph that states on May 18, 2009, the Company entered into a Stipulation and Consent to the Issuance of an Order to Cease and Desist with the Office of Thrift Supervision and on May 8, 2009, the Company’s banking subsidiary (the Bank) entered into a Stipulation and Consent to the Issuance of an Order to Cease and Desist (the Bank Order) with the Federal Deposit Insurance Corporation and the Washington Department of Financial Institutions. The Bank Order restricts certain operations and required the Bank to, among other things, achieve specified regulatory capital ratios. The Bank failed to achieve the required regulatory capital ratios in the time period required and is, therefore, not in compliance with the Bank Order. The failure of the Bank to comply with the Bank Order and the possibility of additional regulatory restrictions and actions, including placing the Bank in receivership, raises substantial doubt about the Company’s ability to continue as a going concern. The consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.

WHERE YOU CAN FIND MORE INFORMATION

We have filed with the SEC a registration statement on Form S-1 (File Number 333-173980), including exhibits and schedules filed with the registration statement of which this prospectus is a part, under the Securities Act with respect to the shares of our common stock to be sold in this offering. This prospectus does not contain all of the information set forth in the registration statement and exhibits and schedules to the registration statement. For further information with respect to us and the shares of our common stock to be sold in this offering, we refer you to the registration statement, including the exhibits and schedules to the registration statement. Statements contained in this prospectus as to the contents of any contract or other document referred to in this prospectus are not necessarily complete and, where that contract or document is an exhibit to the registration statement, each statement is qualified in all respects by reference to the exhibit to which the reference relates. You may read and copy the registration statement, including the exhibits and schedules to the registration statement, at the SEC’s Public Reference Room, 100 F Street, N.E. Room 1580, Washington, D.C. 20549. Information about the operation of the Public Reference Room may be obtained by calling the SEC at 1-800-SEC-0330. Our filings with the SEC, including our registration statement, are also available to you for free on the SEC’s Internet site at www.sec.gov.

As a result of this offering, we will become subject to the information and reporting requirements of the Securities Exchange Act of 1934 and, in accordance with those requirements, will file reports and proxy and information statements with the SEC. You will be able to inspect and copy these reports and proxy and information statements and other information at the addresses set forth above.

We intend to furnish to our shareholders our annual reports containing audited financial information for each year and quarterly reports containing unaudited interim financial information for the first three quarters of each fiscal year.

 

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INDEX OF CONSOLIDATED FINANCIAL STATEMENTS

 

Unaudited Consolidated Statements of Financial Condition as of March  31, 2011 and December 31, 2010

     F-2   

Unaudited Consolidated Statements of Operations for the years ended March 31, 2011 and 2010

     F-3   

Unaudited Consolidated Statements of Comprehensive (Loss) Income for the years ended March  31, 2011 and 2010

     F-5   

Unaudited Consolidated Statements of Shareholder’s Equity

     F-6   

Unaudited Consolidated Statements of Cash Flows for the years ended March 31, 2011 and 2010

     F-7   

Notes to Unaudited Consolidated Financial Statements

     F-9   

Report of Independent Registered Public Accounting Firm

     F-44   

Consolidated Statements of Financial Condition as of December 31, 2010 and 2009

     F-45   

Consolidated Statements of Operations for the years ended December 31, 2010, 2009 and 2008

     F-46   

Consolidated Statements of Comprehensive (Loss) Income for the years ended December 31, 2010, 2009 and 2008

     F-48   

Consolidated Statements of Shareholder’s Equity

     F-49   

Consolidated Statements of Cash Flows for the years ended December 31, 2010, 2009 and 2008

     F-50   

Notes to Consolidated Financial Statements

     F-52   

 

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HOMESTREET, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF FINANCIAL CONDITION

(Unaudited)

 

(in thousands, except share data)    March 31,
2011
    December 31,
2010
 
ASSETS     

Cash and cash equivalents (including interest-bearing instruments of $150,375 and $57,601)

   $ 170,795      $ 72,639   

Investment securities available for sale

     304,404        313,513   

Loans held for sale (includes $81,393 and $198,784 carried at fair value)

     82,803        212,602   

Loans held for investment (net of allowance for loan losses of $62,156 and $64,177)

     1,500,550        1,538,521   

Mortgage servicing rights (includes $89,947 and $81,197 carried at fair value)

     95,952        87,232   

Accounts receivable and other assets

     30,967        32,345   

Accrued interest receivable

     7,059        7,267   

Other real estate owned

     98,863        170,455   

Income taxes receivable

     7,266        7,309   

Federal Home Loan Bank stock, at cost

     37,027        37,027   

Premises and equipment, net

     6,953        6,787   
                
   $ 2,342,639      $ 2,485,697   
                
LIABILITIES AND SHAREHOLDERS’ EQUITY     

Liabilities:

    

Deposits

   $ 2,066,842      $ 2,129,742   

Federal Home Loan Bank advances

     114,544        165,869   

Accounts payable and accrued expenses

     48,182        64,440   

Long-term debt

     61,857        66,857   
                
     2,291,425        2,426,908   

Commitments and Contingencies (Note 9)

    

Shareholders’ equity:

    

Preferred stock, no par value

    

Authorized 10,000 shares

    

Issued and outstanding, 0 shares and 0 shares

    

Common stock, no par value

    

Authorized 100,000,000

    

Issued and outstanding, 3,377,186 shares and 3,377,186 shares

     511        511   

Additional paid-in capital

     20        16   

Retained earnings

     58,178        65,627   

Accumulated other comprehensive loss

     (7,495     (7,365
                
     51,214        58,789   
                
   $ 2,342,639      $ 2,485,697   
                

See accompanying notes to consolidated financial statements.

 

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HOMESTREET, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF OPERATIONS

(Unaudited)

 

     Three Months Ended March 31,  
(in thousands, except share data)        2011             2010      

Interest income:

    

Loans

   $ 18,668      $ 21,835   

Investment securities available for sale

     1,858        2,335   

Other

     84        203   
                
     20,610        24,373   

Interest expense:

    

Deposits

     7,041        11,155   

Federal Home Loan Bank advances

     1,308        4,998   

Long-term debt

     671        1,104   

Other

            1   
                
     9,020        17,258   
                

Net interest income

     11,590        7,115   

Provision for credit losses

            7,000   
                

Net interest income after provision for credit losses

     11,590        115   

Noninterest income:

    

Net gains on mortgage loan origination and sales activities

     4,944        7,601   

Mortgage servicing

     5,848        6,377   

(Loss) income from Windermere Mortgage Services, Inc.

     (25     209   

Gain on debt extinguishment

     2,000          

Depositor and other retail banking fees

     740        806   

Insurance commissions

     363        274   

Gain on sale of investment securities available for sale

            161   

Other

     595        306   
                
     14,465        15,734   
                

Balance, carried forward

     26,055        15,849   

 

See accompanying notes to consolidated financial statements.

 

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HOMESTREET, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF OPERATIONS ( continued )

(Unaudited)

 

     Three Months Ended March 31,  
(in thousands, except share data)            2011                     2010          

Balance, brought forward

   $ 26,055      $ 15,849   

Noninterest expense:

    

Salaries and related costs

     12,139        11,888   

General and administrative

     3,601        3,475   

Legal

     904        476   

Consulting

     166        324   

Federal Deposit Insurance Corporation assessments

     1,749        1,969   

Occupancy

     1,668        1,638   

Information services

     1,480        1,375   

Other real estate owned expense (income)

     11,754        (205
                
     33,461        20,940   

Loss before income tax expense

     (7,406     (5,091

Income tax expense

     43          
                

NET LOSS

   $ (7,449   $ (5,091
                

Basic and Diluted loss per share

   $ (2.21   $ (1.51

Basic and Diluted weighted average number of shares outstanding

     3,377,186        3,377,186   

 

See accompanying notes to consolidated financial statements.

 

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HOMESTREET, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS

(Unaudited)

 

     Three Months Ended
March 31,
 
(in thousands)        2011             2010      

Net loss

   $ (7,449   $ (5,091

Other comprehensive income (loss), net of tax:

    

Unrealized gain (loss) on securities:

    

Unrealized holding (loss) gain arising during the period (net of tax expense of $0 and $0 for the three months ended March 31, 2011 and 2010, respectively)

     (130     3,077   

Reclassification adjustment for net gain included in net income (net of tax expense of $0 for the three months ended March 31, 2010)

            (161

Unrealized loss on cash flow hedges:

    

Reclassification adjustment for loss included in net income (net of tax expense of $0 for the three months ended March 31, 2010)

            143   
                

Other comprehensive (loss) income

     (130     3,059   
                

Comprehensive loss

   $ (7,579   $ (2,032
                

See accompanying notes to consolidated financial statements.

 

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HOMESTREET, INC AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF SHAREHOLDERS’ EQUITY

(Unaudited)

 

(in thousands, except share data)    Number of
shares
     Common
stock
     Additional
paid-in
capital
     Retained
earnings
    Accumulated
other
comprehensive
income (loss)
    Total  

Balance,

               

December 31, 2009

     3,377,186       $ 511       $       $ 93,374      $ (1,989   $ 91,896   
                                                   

Cumulative effect for change in accounting for mortgage servicing rights valuation

              6,500          6,500   
                                                   

Balance,

               

January 1, 2010

     3,377,186       $ 511       $       $ 99,874      $ (1,989   $ 98,396   
                                                   

Net loss

              (34,247       (34,247

Additional paid-in capital

           16             16   

Other comprehensive loss

                (5,376     (5,376
                                                   

Balance,

               

December 31, 2010

     3,377,186       $ 511       $ 16       $ 65,627      $ (7,365   $ 58,789   
                                                   

Net loss

              (7,449       (7,449

Additional paid-in capital

           4             4   

Other comprehensive loss

                (130     (130
                                                   

Balance,

               

March 31, 2011

     3,377,186       $ 511       $ 20       $ 58,178      $ (7,495   $ 51,214   
                                                   

See accompanying notes to consolidated financial statements.

 

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HOMESTREET, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CASH FLOWS

(Unaudited)

 

(in thousands)    Three Months Ended
March 31,
 
     2011     2010  

CASH FLOWS FROM OPERATING ACTIVITIES:

    

Net loss

   $ (7,449   $ (5,091

Adjustments to reconcile net loss to net cash provided by (used in) operating activities:

    

Amortization of deferred fees and discounts on loans held for investment, net of additions

     (146     313   

Amortization of premiums on investment securities

     626        2,115   

Amortization of intangibles

     33        54   

Accretion of gain on cash flow hedge

            143   

Amortization of mortgage servicing rights

     321        415   

Provision for credit losses

            7,000   

Provision for (recovery of) losses on other real estate owned

     10,559        (1,179

Depreciation and amortization on premises and equipment

     464        673   

Originations of loans held for sale

     (300,720     (287,058

Proceeds from sale of loans held for sale

     432,314        291,578   

Fair value adjustment of loans held for sale

     (1,795     (755

Addition of originated mortgage servicing rights

     (7,358     (3,756

Change in fair value of mortgage servicing rights

     (1,679     4,818   

Gain on sale of investment securities

            (161

Gain on sale of other real estate owned

     (236     (16

Gain on debt extinguishment

     (2,000       

Net deferred income tax expense (benefit)

            (73

Change in stock option compensation

     4          

Cash used by changes in operating assets and liabilities:

    

Decrease (increase) in accounts receivable and other assets

     1,347        (11,392

Decrease (increase) in accrued interest receivable

     208        (1,269

Decrease in income taxes receivable

     42        79   

Decrease in accounts payable and other liabilities

     (18,110     (1,407
                

Net cash provided by (used in) operating activities

     106,425        (4,969

CASH FLOWS FROM INVESTING ACTIVITIES:

    

Purchase of investment securities

     (2,001     (189,727

Proceeds from sale of investment securities

     6,799        75,790   

Principal repayments and maturities of investment securities

     3,559        129,416   

Proceeds from sale of other real estate owned

     67,325        15,050   

Mortgage servicing rights purchased from others

     (4     (7

Capital expenditures related to other real estate owned

     (246     (661

Origination of loans held for investment and principal repayments, net

     34,155        20,885   

Net property and equipment purchased

     (631     (47
                

Net cash provided by investing activities

     108,956        50,699   

See accompanying notes to consolidated financial statements.

 

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HOMESTREET, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENTS OF CASH FLOWS (continued)

(Unaudited)

 

(in thousands)    Three Months Ended
March 31,
 
     2011     2010  

CASH FLOWS FROM FINANCING ACTIVITIES:

    

Net decrease in deposits

   $ (62,900   $ (39,240

Proceeds from Federal Home Loan Bank advances

     35,000          

Repayment of Federal Home Loan Bank advances

     (86,325     (3,125

Repayment of long-term debt

     (3,000       
                

Net cash used in financing activities

     (117,225     (42,365
                

NET INCREASE IN CASH AND CASH EQUIVALENTS

     98,156        3,365   

CASH AND CASH EQUIVALENTS:

    

Beginning of year

     72,639        217,103   
                

End of year

   $ 170,795      $ 220,468   
                

SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:

    

Cash paid during the year for -

    

Interest

   $ 9,084      $ 17,074   

Federal and state income taxes

   $ 4          

Noncash investing activities -

    

Loans held for investment foreclosed and transferred to other real estate owned

   $ 5,735      $ 28,394   

Loans originated to finance the sales of other real estate owned

          $ 1,632   

GNMA loans recognized with the right to repurchase

   $ 4,353      $ 7,144   

See accompanying notes to consolidated financial statements.

 

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Table of Contents

HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements

NOTE 1 — SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:

HomeStreet, Inc. and its wholly owned subsidiaries (the “Company”) is a diversified financial services company that serves consumers and businesses in the Pacific Northwest and Hawaii. The Company is principally engaged in real estate lending, including mortgage banking activities and retail and business banking operations. The consolidated financial statements include the accounts of HomeStreet, Inc. and its wholly owned subsidiaries, HomeStreet Capital Corporation and HomeStreet Bank (the “Bank”), and the Bank’s subsidiaries, HomeStreet/WMS, Inc., HomeStreet Reinsurance, LTD, Continental Escrow Company, and Union Street Holdings LLC including HS Cascadia LLC, a subsidiary of Union Street Holdings LLC. HomeStreet Bank was formed in 1986 and is a state-chartered savings bank.

The Company’s accounting and financial reporting policies conform to accounting principles generally accepted in the United States of America (GAAP). Inter-company balances and transactions have been eliminated in consolidation. In preparing the consolidated financial statements, the Company is required to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues, and expenses. Management has made significant estimates in several areas, including the allowance for loan losses (Note 4, Loans and Credit Quality ), valuation of residential mortgage servicing rights (Note 8, Mortgage Banking Activities ), and certain financial instruments such as loans held for sale (Note 4, Loans and Credit Quality ), investment securities (Note 3, Investment Securities Available for Sale ), derivatives (Note 7, Derivatives ), other real estate owned (Note 5, Other Real Estate Owned ), and taxes. Actual results could differ from those estimates. The current economic environment has increased the degree of uncertainty inherent in these significant estimates. Certain amounts in the financial statements from prior years have been reclassified to conform to the current financial statement presentation.

Accounting Developments

Accounting Standards Update (“ASU”) 2010-06, Improving Disclosures about Fair Value Measurements , amends the disclosure requirements for fair value measurements. Companies are required to disclose significant transfers in and out of Levels 1 and 2 of fair value hierarchy, whereas the previous rules only required the disclosure of transfers in and out of Level 3. In the rollforward of Level 3 activity, companies must present information on purchases, sales, issuances, and settlements on a gross basis rather than on a net basis. ASU 2010-6 also clarifies that fair value measurement disclosures should be presented for each class of assets and liabilities. A class is typically a subset of a line item in the statement of financial condition. Companies should also provide information about the valuation techniques and inputs used to measure fair value for recurring and nonrecurring instruments classified as either Level 2 or Level 3. In first quarter 2011, we adopted the requirement for gross presentation in the Level 3 rollforward with prospective application. The remaining provisions were effective for the Company January 1, 2010. The adoption of ASU 2010-06 had no impact on the Company’s consolidated financial statements since it amends only the disclosure requirements.

ASU 2011-02, A Creditor’s Determination of Whether a Restructuring is a Troubled Debt Restructuring , provides an update for factors to be considered when evaluating whether a restructuring constitutes a troubled debt restructuring. ASU 2011-02 provides that a creditor must separately conclude that both of the following exist: (1) the restructuring constitutes a concession; and (2) the debtor is experiencing financial difficulties.

In addition, the amendments to Topic 310 clarify that a creditor is precluded from using the effective interest rate test in the debtor’s guidance on restructuring of payables (paragraph 470-60-55-10) when evaluating whether a restructuring constitutes a troubled debt restructuring. The amendments in this Update are effective for the first interim or annual period beginning on or after June 15, 2011 (third quarter of 2011), and will be applied

 

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Table of Contents

HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

retrospectively to the beginning of the year. The Company is currently assessing the potential impact of adopting this guidance.

ASU 2011-04, Amendments to Achieve Common Fair Value Measurement and Disclosure Requirements in U.S. GAAP and IFRS , amends requirements for measuring fair value and for disclosing information about fair value measurements. ASU 2011-04 clarifies how a principal market is determined, addresses the fair value measurement of instruments with offsetting market or counterparty credit risks and the concept of valuation premise and highest and best use and extends the prohibition on blockage factors to all three levels of the fair value hierarchy. Companies are required to disclose all transfers between Level 1 and Level 2 of the fair value hierarchy, whereas the previous rules only required the disclosure of significant transfers between those levels. For Level 3 fair value measurements, quantitative information about significant unobservable inputs used, a qualitative discussion about the sensitivity of the fair value measurement to changes in unobservable inputs and the interrelationship between inputs and a description of the Company’s valuation process should be disclosed. For financial instruments not measured at fair value but for which disclosure of fair value is required, companies are required to disclose the fair value hierarchy level in which the fair value measurements were determined. The amendments in this ASU are effective for interim and annual periods beginning on or after December 15, 2011. The Company is currently assessing the potential impact of adopting this guidance.

Subsequent Events

The Company has evaluated the effects of events that have occurred subsequent to period end March 31, 2011, and there are no material events that would require recognition in our first quarter 2011 consolidated financial statements or disclosure in the Notes to the consolidated financial statements.

NOTE 2 — SIGNIFICANT RISKS AND UNCERTAINTIES:

Regulatory Matters

As more fully described in Note 2 — Significant Risks and Uncertainties, in the footnotes of the Company’s 2010 Consolidated Financial Statements, HomeStreet Bank has entered into a Stipulation and Consent to the Issuance of an Order to Cease and Desist (the “Bank Order”) with the Federal Deposit Insurance Corporation (“FDIC”) and the Washington Department of Financial Institutions (“DFI”) (collectively, the “Regulators”). The principal elements of the Bank Order include but are not limited to:

 

   

achieve and thereafter by maintain a Tier 1 capital ratio of ten percent (10%) and a risk-based capital ratio of twelve percent (12%);

 

   

formulate a plan to reduce by the aggregate balance of adversely classified loans and other real estate owned to a specific percentage of regulatory capital (classified asset reduction plan); and

 

   

reduce commercial real estate and land acquisition and development loans, and constructions loans, respectively, to 355 percent and 178 percent of risk-based capital.

Although we have been actively engaged in responding to the concerns raised by the FDIC and DFI, the Bank was not in compliance with the Bank Order with respect to its plan to reduce adversely classified loans and real estate owned to levels established by the Bank nor did the Bank meet its internally identified targets for reducing its commercial real estate and land acquisition and development and construction loans to internally established targets. At March 31, 2011 the Bank was not in compliance with the Bank Order with respect to the requirement to achieve and thereafter maintain a Tier 1 capital ratio of at least 10% and a risk-based capital ratio of at least 12%. Under the regulatory guidelines, the Bank was “Adequately Capitalized” at March 31, 2011.

 

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Table of Contents

HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

The Bank’s actual capital amounts and ratios are included in the following table:

 

(in thousands)    Actual     For Minimum Capital
Adequacy Purposes
    To Be Categorized As
“Well Capitalized” Under
Prompt Corrective Action
Provisions
 
     Amount      Ratio     Amount      Ratio         Amount              Ratio      

As of March 31, 2011:

               

Total risk-based capital
(to risk-weighted assets)

   $ 127,447         8.3   $ 123,197         8.0   $ 153,997         10.0

Tier I risk-based capital
(to risk-weighted assets)

     107,664         7.0     61,599         4.0     92,398         6.0

Tier I leverage capital
(to average assets)

     107,664         4.5     95,955         4.0     119,944         5.0

Going Concern Considerations and Management’s Plans

The interim consolidated financial statements have been prepared on a going concern basis, which contemplates the realization of assets and the discharge of liabilities in the normal course of business for the foreseeable future, and do not include any adjustments to reflect the possible future effects on the recoverability and classification of assets, or the amounts and classification of liabilities or any other adjustments that might be necessary should the Company be unable to continue as a going concern.

Management continues to work on initiatives to address returning the Company and Bank to a safe and sound condition. Initiatives include improving asset quality, improving our net interest margin, growing noninterest income, and reducing noninterest expense. The Company, however, is unable to predict the likelihood of a positive outcome of these initiatives. Accordingly, there exists substantial doubt about the Company’s ability to continue as a going concern.

NOTE 3 — INVESTMENT SECURITIES AVAILABLE FOR SALE:

The amortized cost and fair value of investment securities available for sale at March 31, 2011 and December 31, 2010, are summarized as follows:

 

(in thousands)    Amortized
cost
     Gross
unrealized
gains
     Gross
unrealized
losses
    Fair
value
 

March 31, 2011:

          

Mortgage-backed securities

   $ 4,115       $ 249       $      $ 4,364   

Municipal bonds

     5,846         106         (120     5,832   

Collateralized mortgage obligations

     225,678         182         (7,922     217,938   

US Treasury Securities

     76,260         10                76,270   
                                  
   $ 311,899       $ 547       $ (8,042   $ 304,404   
                                  

December 31, 2010:

          

Mortgage-backed securities

   $ 4,434       $ 263       $      $ 4,697   

Municipal bonds

     6,648         91         (190     6,549   

Collateralized mortgage obligations

     229,412         294         (7,785     221,921   

US Treasury Securities

     80,384         3         (41     80,346   
                                  
   $ 320,878       $ 651       $ (8,016   $ 313,513   
                                  

 

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Table of Contents

HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

Mortgage-backed and collateralized mortgage obligations represent securities issued by Government Sponsored Enterprises backed by residential mortgages.

Investment securities that were in an unrealized loss position at March 31, 2011 and December 31, 2010, are presented in the following tables based on the length of time the individual securities have been in an unrealized loss position.

 

     Less than 12 months      12 months or more      Total  
(in thousands)    Gross
unrealized
losses
    Fair
value
     Gross
unrealized
losses
    Fair
value
     Gross
unrealized
losses
    Fair
value
 

March 31, 2011:

              

Municipal bonds

   $      $       $ (120   $ 1,624         (120   $ 1,624   

Collateralized mortgage obligations

     (7,922     175,338                        (7,922     175,338   
                                                  
   $ (7,922   $ 175,338       $ (120   $ 1,624       $ (8,042   $ 176,962   
                                                  

December 31, 2010:

              

Municipal bonds

   $ (17   $ 1,474       $ (173   $ 1,571       $ (190   $ 3,045   

Collateralized mortgage obligations

     (7,785     197,372                        (7,785     197,372   

US Treasury Securities

     (41     70,428                        (41     70,428   
                                                  
   $ (7,843   $ 269,274       $ (173   $ 1,571       $ (8,016   $ 270,845   
                                                  

The Company has evaluated securities that have been in an unrealized loss position and has determined that the decline in value is temporary and is related to the change in market interest rates since purchase. The decline in value is not related to any company- or industry-specific credit event. The Company anticipates full recovery of amortized cost with respect to these securities at maturity or sooner in the event of a more favorable market interest rate environment and does not have the intent to sell these securities, nor is it more likely than not that the Company will be required to sell such securities. Based on these factors we believe the unrealized losses on these investments are not considered other-than-temporarily impaired.

 

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Table of Contents

HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

The following table presents the fair value of investment securities available for sale by contractual maturity along with the associated contractual yield at March 31, 2011 and December 31, 2010. Contractual maturities for mortgage-backed securities and collateralized mortgage obligations were determined assuming no prepayments. Remaining expected maturities will differ from contractual maturities as borrowers may have the right to prepay obligations before the underlying mortgages mature. The weighted-average yield is computed using the contractual coupon of each security weighted based on the fair value of each security.

 

      March 31, 2011  
      Within one year     After one year
through five

years
    After five years
through ten
years
    After ten years     Total  
(in thousands)   Fair
value
    Weighted
average
yield
    Fair
value
    Weighted
average
yield
    Fair
value
    Weighted
average
yield
    Fair
value
    Weighted
average
yield
    Fair
value
    Weighted
average
yield
 

Available for sale:

                   

Mortgage-backed securities

  $        $        $        $ 4,364        4.49   $ 4,364        4.49

Municipal bonds

             1,274        3.64     498        5.30     4,060        4.01     5,832        4.04

Collateralized mortgage obligations

             1,446        4.85              216,492        3.14     217,938        3.15

US Treasury securities

    76,270        0.26                                76,270        0.26
                                                 

Total available for sale

  $ 76,270        0.26   $ 2,720        4.28   $ 498        5.30   $ 224,916        3.18   $ 304,404        2.46
                                                 

 

      At December 31, 2010  
      Within one year     After one year
through five

years
    After five years
through ten
years
    After ten years     Total  
(in thousands)   Fair
Value
    Weighted
average
yield
    Fair
value
    Weighted
average
yield
    Fair
value
    Weighted
average
yield
    Fair
value
    Weighted
average
yield
    Fair
value
    Weighted
average
yield
 

Available for sale:

                   

Mortgage-backed securities

  $        $        $        $ 4,697        4.51   $ 4,697        4.51

Municipal bonds

    930        3.66     1,271        3.64     503        3.60     3,845        4.12     6,549        3.92

Collateralized mortgage obligations

             1,556        4.77              220,365        3.16     221,921        3.17

US Treasury securities

    80,346        0.25                                80,346        0.25
                                                 

Total available for sale

  $ 81,276        0.29   $ 2,827        4.26   $ 503        3.60   $ 228,907        3.20   $ 313,513        2.46
                                                 

Sales of investment securities available for sale were as follows:

 

     Three Months Ended
March 31,
 
(in thousands)        2011              2010      

Proceeds

   $ 6,799       $ 75,790   

Gross gains

             161   

Gross losses

               

There were no securities pledged to secure advances from the Federal Home Loan Bank (the “FHLB”) at March 31, 2011 or December 31, 2010.

 

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Table of Contents

HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

Tax-exempt interest income on securities available for sale totaling $0.1 million and $0.1 million for the period ended March 31, 2011 and 2010, respectively, were recorded in the Company’s consolidated statements of operations.

NOTE 4 — LOANS AND CREDIT QUALITY:

Loans held for sale and loans held for investment are primarily secured by real estate located in the states of Washington, Oregon, Idaho and Hawaii.

Loans held for sale consist of the following:

 

(in thousands)    March 31,
2011
     December 31,
2010
 

Single family residential

   $ 81,393       $ 198,784   

Multifamily residential

     1,410         13,818   
                 
   $ 82,803       $ 212,602   
                 

Loans sold consist of the following:

 

     Three Months Ended
March 31,
 
(in thousands)        2011              2010      

Single family residential

   $ 386,174       $ 310,680   

Multifamily residential

     13,862         6,771   
                 
   $ 400,036       $ 317,451   
                 

Loans held for investment consist of the following:

 

(in thousands)    March 31,
2011
    December 31,
2010
 

Single family residential

   $ 522,904      $ 526,462   

Commercial real estate

     414,343        426,879   

Multifamily residential

     102,450        104,497   

Construction/land development

     271,676        285,131   

Commercial business

     80,057        82,959   

Home equity

     175,896        181,537   
                
     1,567,326        1,607,465   

Less: Allowance for loan losses

     (62,156     (64,177

     Net deferred loan fees and discounts

     (4,620     (4,767
                
   $ 1,500,550      $ 1,538,521   
                

Loans totaling $562.3 million and $371.0 million at March 31, 2011 and December 31, 2010, respectively, were pledged to secure advances from the FHLB.

 

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Table of Contents

HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

Credit Administration

We maintain an allowance for loan loss policy that is approved by the board of directors of the Bank on an annual basis. The policy includes a methodology for determining the adequacy of the allowance for loan losses. The degree of credit risk will vary based on many factors including the size of the loan, the contractual terms of the agreement, the credit characteristics of the borrower, the features of loan products, the existence and strength of guarantor support, and the availability, quality, and adequacy of any underlying collateral. The degree of credit risk and level of credit losses is highly dependent on the economic environment that unfolds subsequent to originating or acquiring assets. The extent of asset diversification and concentration also affect total credit risk. Credit risk is assessed through analyzing these and other factors.

As of the latter part of 2008 and through the first three months of 2011, substantially all the Company’s loan production represented single family mortgages designated for sale. Single family mortgage loans originated predominately conform to government-sponsored enterprise underwriting standards.

Single family and home equity loans are underwritten after evaluating and understanding a borrower’s capacity, credit and collateral. Capacity refers to a borrower’s ability to make payments on the loan. Several factors are considered when assessing a borrower’s capacity, including the borrower’s employment, income, current debt, assets and level of equity in the property. Credit refers to how well a borrower manages their current and prior debts as documented by a credit report that provides credit scores and the borrower’s current and past information about their credit history. Collateral refers to the type and use of property, occupancy and market value. Property appraisals are obtained to assist in evaluating collateral. Loan-to-property value and debt-to-income ratios, loan amount and lien position are also considered in assessing whether to originate a loan. These borrowers are particularly susceptible to downturns in economic trends such as conditions that negatively affect housing prices and demand and levels of unemployment.

Commercial, multifamily residential and construction lending underwriting standards consider the factors described for single family and home equity lending as well as others when assessing the borrower’s and associated guarantors or other related party’s financial position. These other factors include assessing liquidity, the level and composition of net worth, leverage, considering all other lender amounts and position, an analysis of cash expected to flow through the borrower including the outflow to other lenders and prior experience with the borrower. This information is used to assess adequate financial capacity, profitability and experience. Ultimate repayment of these loans is sensitive to interest rate changes, general economic conditions, liquidity and availability of long-term financing.

Credit Quality

Credit quality within the loans held for investment portfolio is continuously monitored by management and is reflected within the allowance for loan losses. The allowance for loan losses represents management’s estimate of incurred credit losses inherent within the Company’s loan portfolio as of the balance sheet date. Determining the appropriateness of the allowance is complex and requires judgment by management about the effect of matters that are inherently uncertain. Subsequent evaluations of the loan portfolio, in light of the factors then prevailing, may result in significant changes in the allowance for loan losses in those future periods.

The amount of the allowance is based on management’s evaluation of the collectability of the loan portfolio based on historical loss experience and other significant qualitative factors. These other significant factors include the level and trends of delinquent, nonaccrual and adversely classified loans; local economic trends and conditions such as regional unemployment; levels and trends in current portfolio interest rates relative to current market pricing and the ability of the customer to continue to make payments in changing interest rate

 

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Table of Contents

HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

environments; other external factors including the time periods during which loans were originated; and changes in the experience, ability and depth of lending management.

The methodology for evaluating the adequacy of the allowance for loan losses has two basic elements: first, the identification of impaired loans and the measurement of impairment for each individual loan identified; and second, a method for estimating an allowance for all other loans.

A loan is considered impaired when it is probable that all contractual principal and interest payments due will not be collected in accordance with the terms of the loan agreement. Factors considered by management in determining whether a loan is impaired include payment status, collateral value and the probability of collecting scheduled principal and interest payments when due. Impairment for loans for which collection is dependent upon the performance or liquidation of the collateral is measured as the difference between the recorded investment balance of the loan and the fair value of the collateral, less estimated selling costs. Impairment for loans that are not collateral dependent is measured as the difference between the discounted value of the expected future cash flows, based on the original effective interest rate, and the recorded investment balance of the loan. A specific allowance is provided for equal to the calculated impairment and included in the allowance for loan losses. If the calculated impairment is determined to be permanent or not recoverable, the impairment will be charged off.

In estimating the general allowance for loan losses for unimpaired loans, such loans are segregated into loan classes (consistent with ‘classes’ above). Loans are designated into classes based on product types and similar risk characteristics or areas of risk concentration.

For each loan class, the Company estimates potential and inherent losses by applying a rate of loss equal to four trailing quarters of historical losses. Additional incurred losses are also estimated for these same classes of loans based upon Key Risk Indicators (“KRIs”). KRIs for each loan class include the following: (i) loan delinquency trends; (ii) variability in collateral valuation; (iii) regional economic activity and trends; (iv) current levels of interest rates; and (v) the vintage of loans at origination. KRIs are expressed in basis points and are adjusted downward or upward based on management’s judgment as to the potential loss impact of each qualitative factor to a particular loan class at the date of the analysis.

In addition, the Regulators, as an integral part of the examination process, review the allowance for loan losses. These agencies may require additions to the allowance for loan losses based on their judgment about information available at the time of their examinations.

Activity in the allowance for credit losses is as follows:

 

     March 31,  
(in thousands)    2011     2010  

Balance, beginning of period

   $ 64,566      $ 110,422   

Provision for credit losses

            7,000   

(Charge-offs), net of recoveries

     (2,100     (11,748
                

Balance, end of period

   $ 62,466      $ 105,674   
                

Components:

    

Allowance for loan losses

   $ 62,156      $ 104,724   

Reserve for unfunded commitments

     310        950   
                

Allowance for credit losses

   $ 62,466      $ 105,674   
                

 

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Table of Contents

HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

The Bank maintains a separate allowance for losses related to unfunded loan commitments. Management estimates the amount of probable losses by applying the loss factors used in the allowance for loan loss methodology to estimate the unfunded commitments liability for each loan type. The allowance for losses related to unfunded loan commitments is included in accounts payable and accrued expenses on the consolidated balance sheet.

At March 31, 2011 and 2010, activity in the allowance for credit losses by loan class is as follows:

 

(in thousands)   Single
family
    Commercial
real estate
    Multifamily
residential
    Construction/
land
development
    Commercial
business
    Home Equity     Total  

March 31, 2011

             

Allowance for credit losses:

             

Beginning balance

  $ 11,977      $ 10,060      $ 1,795      $ 33,478      $ 2,761      $ 4,495      $ 64,566   

Charge-offs

    (1,713     (69            (3,468     (417     (905     (6,572

Recoveries

                         4,294        170        8        4,472   

Provision/reallocation

    1,181        (3,940     (953     2,447        266        999          
                                                       

Ending balance

  $ 11,445      $ 6,051      $ 842      $ 36,751      $ 2,780      $ 4,597      $ 62,466   
                                                       

Collectively evaluated for impairment

  $ 11,089      $ 4,787      $ 842      $ 17,440      $ 1,629      $ 4,569      $ 40,356   

Individually evaluated for impairment

    356        1,264               19,311        1,151        28        22,110   
                                                       

Total

  $ 11,445      $ 6,051      $ 842      $ 36,751      $ 2,780      $ 4,597      $ 62,466   
                                                       

Loans held for investment:

             

Collectively evaluated for impairment

  $ 498,868      $ 378,758      $ 94,357      $ 182,480      $ 76,702      $ 173,567      $ 1,404,732   

Individually evaluated for impairment

    24,036        35,585        8,093        89,196        3,355        2,329        162,594   
                                                       

Total

  $ 522,904      $ 414,343      $ 102,450      $ 271,676      $ 80,057      $ 175,896      $ 1,567,326   
                                                       

March 31, 2010

             

Allowance for credit losses:

             

Beginning balance

  $ 17,307      $ 10,761      $ 1,948      $ 67,764      $ 5,794      $ 6,848      $ 110,422   

Charge-offs

    (2,359     (364            (7,737     (1,467     (416     (12,343

Recoveries

    217                      218        156        4        595   

Provision/reallocation

    5,854        1,335        (479     (171     1,773        (1,312     7,000   
                                                       

Ending balance

  $ 21,019      $ 11,732      $ 1,469      $ 60,074      $ 6,256      $ 5,124      $ 105,674   
                                                       

Collectively evaluated for impairment

  $ 20,550      $ 10,262      $ 1,043      $ 32,522      $ 4,991      $ 5,124      $ 74,492   

Individually evaluated for impairment

    469        1,470        426        27,552        1,265               31,182   
                                                       

Total

  $ 21,019      $ 11,732      $ 1,469      $ 60,074      $ 6,256      $ 5,124      $ 105,674   
                                                       

Loans held for investment:

             

Collectively evaluated for impairment

  $ 561,257      $ 417,588      $ 75,704      $ 321,873      $ 102,665      $ 205,440      $ 1,684,527   

Individually evaluated for impairment

    21,777        22,999        8,473        271,249        3,814        1,602        329,914   
                                                       

Total

  $ 583,034      $ 440,587      $ 84,177      $ 593,122      $ 106,479      $ 207,042      $ 2,014,441   
                                                       

 

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Table of Contents

HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

The Company had 66 impaired relationships totaling $162.6 million at March 31, 2011, and 60 impaired relationships totaling $138.2 million at December 31, 2010. The average recorded investment in these loans at March 31, 2011 and December 31, 2010 was $150.4 million and $237.2 million, respectively. Impaired loans totaling $78.5 million and $71.8 million had a valuation allowance of $22.1 million and $18.1 million at March 31, 2011 and December 31, 2010, respectively. Interest payments on impaired loans, applied against loan principal or recognized as interest income, of $1.1 million and $5.3 million were recorded for cash payments received during the three months ended March 31, 2011 and year ended December 31, 2010, respectively.

The following table presents impaired loans by loan class as of the periods indicated:

 

(in thousands)    Recorded
Investment(1)
     Unpaid
Principal
Balance(2)
     Related
Allowance
     Average
Recorded
Investment(3)
 

March 31, 2011

           

With no related allowance recorded:

           

Single family

   $ 19,548       $ 20,878       $       $ 20,010   

Commercial real estate

     20,930         21,972                 22,862   

Multifamily residential

     8,093         8,542                 6,719   

Construction/land development

     33,422         37,845                 23,456   

Commercial business

     422         737                 507   

Home Equity

     1,712         1,712                 1,713   
                                   

Total

   $ 84,127       $ 91,686       $       $ 75,267   
                                   

With an allowance recorded:

           

Single family

   $ 4,488       $ 4,488       $ 356       $ 2,803   

Commercial real estate

     14,654         15,511         1,264         12,945   

Multifamily residential

                             1,411   

Construction/land development

     55,774         65,888         19,311         54,991   

Commercial business

     2,934         3,037         1,151         2,351   

Home Equity

     617         624         28         617   
                                   

Total

   $ 78,467       $ 89,548       $ 22,110       $ 75,118   
                                   

Total:

           

Single family

   $ 24,036       $ 25,366       $ 356       $ 22,813   

Commercial real estate

     35,584         37,483         1,264         35,807   

Multifamily residential

     8,093         8,542                 8,130   

Construction/land development

     89,196         103,733         19,311         78,447   

Commercial business

     3,356         3,774         1,151         2,858   

Home Equity

     2,329         2,336         28         2,330   
                                   

Total

   $ 162,594       $ 181,234       $ 22,110       $ 150,385   
                                   

 

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Table of Contents

HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

(in thousands)    Recorded
Investment(1)
     Unpaid
Principal
Balance(2)
     Related
Allowance
     Average
Recorded
Investment(3)
 

December 31, 2010

           

With no related allowance recorded:

           

Single family

   $ 20,472       $ 21,730       $       $ 17,960   

Commercial real estate

     24,793         24,793                 15,262   

Multifamily residential

     5,345         5,573                 5,460   

Construction/land development

     13,490         15,427                 44,685   

Commercial business

     592         592                 1,173   

Home Equity

     1,714         1,714                 1,523   
                                   

Total

   $ 66,406       $ 69,829       $       $ 86,063   
                                   

With an allowance recorded:

           

Single family

   $ 1,119       $ 1,170       $ 210       $ 763   

Commercial real estate

     11,235         11,430         1,233         13,690   

Multifamily residential

     2,822         2,977         836         2,873   

Construction/land development

     54,209         65,412         14,224         131,012   

Commercial business

     1,767         1,767         1,092         2,488   

Home Equity

     617         624         502         339   
                                   

Total

   $ 71,769       $ 83,380       $ 18,097       $ 151,165   
                                   

Total:

           

Single family

   $ 21,591       $ 22,899       $ 210       $ 18,723   

Commercial real estate

     36,028         36,223         1,233         28,952   

Multifamily residential

     8,167         8,550         836         8,333   

Construction/land development

     67,699         80,839         14,224         175,697   

Commercial business

     2,359         2,360         1,092         3,661   

Home Equity

     2,331         2,338         502         1,862   
                                   

Total

   $ 138,175       $ 153,209       $ 18,097       $ 237,228   
                                   

 

 

(1) Net Book Balance, includes partial charge offs and nonaccrual interest paid.

 

(2) Unpaid Principal Balance does not includes partial charge offs or nonaccrual interest paid. Related allowance is calculated on Net Book Balances not Unpaid Principal Balances.

 

(3) Information related to interest income recognized on average impaired loan balances are not included as it is not operationally practicable to derive this data.

Management regularly reviews problem loans in the portfolio to assess credit quality indicators and to determine appropriate loan classification and grading in accordance with applicable regulations. A brief description of these grades follows:

The five “pass” classification grades represent a level of credit quality that ranges from no well-defined deficiency or weakness to some noted weakness, yet risk of default is expected to be remote.

An asset graded as “watch” is within the pass classification and has a remote risk of default but is exhibiting deficiency or weakness that requires monitoring. Watch is a temporary or transitional risk rating.

 

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Table of Contents

HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

A “special mention” loan does not currently expose the Company to a sufficient degree of risk to warrant an adverse classification but does possess a correctable deficiency or potential weakness deserving management’s close attention.

“Substandard” loans have a well-defined weakness or weaknesses. A substandard asset is inadequately protected by the current sound worth and the paying capacity of the obligor or of collateral pledged, if any. Assets so classified must have a well-defined weakness or weaknesses that jeopardize the liquidation of the debt. They are characterized by the distinct possibility that the institution will sustain some loss if deficiencies are not corrected. Substandard assets have a high probability of payment default, or they have other well-defined weaknesses. They require more intensive supervision by bank management.

An asset classified as “doubtful” has all of the weaknesses inherent in those classified substandard with the added characteristic that the weaknesses make collection or liquidation in full, on the basis of currently existing facts, conditions and values, highly questionable and improbable. Doubtful is considered to be a temporary classification until resolution of pending weakness issues enables the potential for loss to be more clearly evaluated.

That portion of an asset classified as “loss” is considered uncollectible and of so little value that its continuance as an asset is not warranted. A loss classification does not mean that an asset has absolutely no recovery or salvage value but rather it is not reasonable to defer charging off all or that portion of the asset deemed uncollectible even though partial recovery may be affected in the future.

As of March 31, 2011, $322.3 million of loans were graded watch, $162.6 million of loans were graded special mention, $199.9 million of loans were graded substandard, and none of these loans were graded as doubtful or loss. When referring to ‘adversely classified assets,’ such assets include loans graded as substandard, doubtful, and loss as well as other real estate owned. The total amount of adversely classified assets was $298.7 million and $363.9 million as of March 31, 2011 and December 31, 2010, respectively.

 

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Table of Contents

HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

The following table presents designated loan grades by loan class as of March 31, 2011 and December 31, 2010:

 

    Single family     Commercial real estate     Multifamily residential              
(in thousands)   March 31,
2011
    December 31,
2010
    March 31,
2011
    December 31,
2010
    March 31,
2011
    December 31,
2010
             

Grade:

               

Pass

  $ 450,670      $ 470,912      $ 170,468      $ 193,572      $ 27,019      $ 29,478       

Watch

    39,468        36,396        127,801        116,160        67,338        66,852       

Special Mention

    18,034        5,216        67,197        69,862                     

Substandard

    14,732        13,938        48,877        47,285        8,093        8,167       
                                                   
  $ 522,904      $ 526,462      $ 414,343      $ 426,879      $ 102,450      $ 104,497       
                                                   
    Construction/land
development
    Commercial business     Home Equity     Total  
    March 31,
2011
    December 31,
2010
    March 31,
2011
    December 31,
2010
    March 31,
2011
    December 31,
2010
    March 31,
2011
    December 31,
2010
 

Grade:

               

Pass

  $ 5,333      $ 3,676      $ 58,574      $ 59,653      $ 170,540      $ 177,222      $ 882,604      $ 934,513   

Watch

    80,855        94,060        6,220        8,345        609        1,184        322,291        322,997   

Special Mention

    69,344        75,863        6,333        4,926        1,644        596        162,552        156,463   

Substandard

    116,144        111,532        8,930        10,035        3,103        2,535        199,879        193,492   
                                                               
  $ 271,676      $ 285,131      $ 80,057      $ 82,959      $ 175,896      $ 181,537      $ 1,567,326      $ 1,607,465   
                                                               

 

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Table of Contents

HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

The following table presents an age analysis of past due loans by loan class as of March 31, 2011 and December 31, 2010:

 

(in thousands)   30-59 Days
Past Due
    60-89 Days
Past Due
    90 days or
more
Past Due
    Total
Past Due
    Current     Total
Loans
    90 days or
more
Past Due and
still Accruing
 

March 31, 2011

             

Single family

  $ 9,949      $ 7,885      $ 46,316      $ 64,150      $ 458,754      $ 522,904      $ 31,584   

Commercial real estate

                  19,815        19,815        394,528        414,343          

Multifamily residential

                  5,302        5,302        97,148        102,450          

Construction/land development

                  89,386        89,386        182,290        271,676        11,575   

Commercial business

                  4,262        4,262        75,795        80,057        907   

Home Equity

    1,386        609        3,103        5,098        170,798        175,896          
                                                       

Total

  $ 11,335      $ 8,494      $ 168,184      $ 188,013      $ 1,379,313      $ 1,567,326      $ 44,066   
                                                       

December 31, 2010

             

Single family

  $ 6,743      $ 6,223      $ 44,111      $ 57,077      $ 469,385      $ 526,462      $ 30,174   

Commercial real estate

           4,871        20,259        25,130        401,749        426,879          

Multifamily residential

                  8,167        8,167        96,330        104,497          

Construction/land development

                  78,907        78,907        206,224        285,131        12,955   

Commercial business

           907        2,734        3,640        79,318        82,958        375   

Home Equity

    1,645        1,184        2,535        5,365        176,173        181,538          
                                                       

Total

  $ 8,388      $ 13,185      $ 156,713      $ 178,286      $ 1,429,179      $ 1,607,465      $ 43,504   
                                                       

Loans are placed on nonaccrual when collection of principal or interest is doubtful, generally when a loan becomes 90 days or more past due for interest or principal payments or if part of the principal balance has been charged-off and no restructuring has occurred. All payments received, including interest on loans designated as nonaccrual, are accounted for using the cash method. Under the cash method, all payments are applied to the principal balance until all principal and interest payments are brought current and the prospects for future payments in accordance with the loan agreement are reasonably assured, at which point the loan is returned to accrual status. Loans that are well-secured and in the process of collection are maintained on accrual status, even if they are 90 days or more past due. FHA insured and VA guaranteed single family loans that are 90 days or more past due are maintained on accrual status as they have little to no risk of loss.

 

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Table of Contents

HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

The following table presents performing and nonperforming loan balances by loan class as of March 31, 2011 and December 31, 2010:

 

(in thousands)   Single family     Commercial real estate     Multifamily residential              
    March 31,
2011
    December 31,
2010
    March 31,
2011
    December 31,
2010
    March 31,
2011
    December 31,
2010
             

Performing

  $ 508,172      $ 512,524      $ 394,528      $ 406,620      $ 97,148      $ 96,330       

Nonperforming

    14,732        13,938        19,815        20,259        5,302        8,167       
                                                   
  $ 522,904      $ 526,462      $ 414,343      $ 426,879      $ 102,450      $ 104,497       
                                                   
    Construction/land
development
    Commercial business     Home Equity     Total  
    March 31,
2011
    December 31,
2010
    March 31,
2011
    December 31,
2010
    March 31,
2011
    December 31,
2010
    March 31,
2011
    December 31,
2010
 

Performing

  $ 193,865      $ 219,179      $ 76,702      $ 80,600      $ 172,793      $ 179,002      $ 1,443,208      $ 1,494,255   

Nonperforming

    77,811        65,952        3,355        2,359        3,103        2,535        124,118        113,210   
                                                               
  $ 271,676      $ 285,131      $ 80,057      $ 82,959      $ 175,896      $ 181,537      $ 1,567,326      $ 1,607,465   
                                                               

Loans are reported as troubled debt restructuring (“TDR”) when the Company grants concessions that we would not otherwise consider to borrowers experiencing financial difficulty. Concessions to borrowers that represent an insignificant delay in performance are not designated TDRs. TDRs are designated as impaired as interest and principal payments will not be received in accordance with original terms of the contract. TDRs that are performing and on accrual status as of the date of the modification remain on accrual status and TDRs that are nonperforming as of the date of modification are designated as nonaccrual until the prospect of future payments in accordance with the modified loan agreement is reasonably assured, generally demonstrated by a reasonable period of performance of at least six months. TDRs placed on accrual status and reported as a TDR as of year end are identified as Performing TDRs as are TDRs in accrual status where the borrower has received below-market interest rate concessions. TDRs with temporary below-market concessions remain designated as a TDR until the concession expires and the loan performs for a period of at least six months and has passed one annual reporting period.

The Company had 27 loan relationships classified as troubled debt restructurings totaling $59.4 million at March 31, 2011, and committed to lend additional funds of $1.4 million. The Company had 24 loan relationships classified as troubled debt restructurings in the amount of $57.0 million at December 31, 2010, and committed to lend additional funds of $1.4 million. TDR loans and the related reserves are included in the impaired loan tables above.

NOTE 5 — OTHER REAL ESTATE OWNED:

Other real estate owned acquired through the foreclosure of loans consists of the following:

 

(in thousands)    March 31, 2011     December 31, 2010  

Residential

   $ 122,588      $ 189,253   

Commercial

     12,453        10,301   
                
     135,041        199,554   

Valuation Allowance

     (36,178     (29,099
                
   $ 98,863      $ 170,455   
                

 

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Table of Contents

HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

Activity in other real estate owned is as follows:

 

     Three Months Ended March 31,  
(in thousands)          2011                 2010        

Balance, beginning of period

   $ 170,455      $ 107,782   

Additions

     5,981        29,056   

Loss provisions

     (10,559     1,179   

Reductions related to sales

     (67,014     (14,606
                

Balance, end of period

   $ 98,863      $ 123,411   
                

For the three months ended March 31, 2011 and 2010, 83 properties were sold for a net gain of $0.2 million and 124 properties for a net gain of $16,000, respectively.

Activity in the valuation allowance for other real estate owned is as follows:

 

     Three Months Ended March 31,  
(in thousands)          2011                 2010        

Balance, beginning of period

   $ 29,099      $ 7,790   

Loss provisions

     10,559        (1,179

Charge-offs, net of recoveries

     (3,480     (940
                

Balance, end of period

   $ 36,178      $ 5,671   
                

The components of other real estate owned expense are as follows:

 

     Three Months Ended March 31,  
(in thousands)          2011                 2010        

Maintenance costs

   $ 1,473      $ 1,190   

Loss provisions

     10,559        (1,179

(Gain) loss on sale

     (236     (16

Net operating income

     (42     (200
                

Total other real estate owned expense

   $ 11,754      $ (205
                

 

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Table of Contents

HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

NOTE 6 — DEPOSITS:

Deposit balances, including stated rates, are as follows:

 

(in thousands)    March 31,
2011
     December 31,
2010
 

Noninterest bearing accounts

   $ 180,441       $ 235,890   

NOW accounts

     

0.00% to 0.75%

     127,529         121,534   

Statement savings accounts, due on demand

     

0.60% to 1.00%

     52,743         51,075   

Money market accounts, due on demand

     

0.00% to 1.75%

     427,698         413,401   

Certificates of deposit,

     

0.20% to 5.10%

     1,278,431         1,307,842   
                 
   $ 2,066,842       $ 2,129,742   
                 

Interest expense on deposits consists of the following:

 

     Three Months Ended
March 31,
 
(in thousands)        2011              2010      

NOW accounts

   $ 156       $ 171   

Statement savings accounts

     90         157   

Money market accounts

     776         1,080   

Certificates of deposit

     6,019         9,747   
                 
   $ 7,041       $ 11,155   
                 

There were no public funds included in deposits as of March 31, 2011 or December 31, 2010.

The weighted-average interest rate on certificates of deposit at March 31, 2011 and December 31, 2010, was 1.78 percent and 1.89 percent, respectively.

Certificates of deposit outstanding as of March 31, 2011, mature as follows:

 

(in thousands)       

Within one year

   $ 686,053   

One to two years

     435,195   

Two to three years

     132,114   

Three to four years

     18,455   

Four to five years

     6,614   
        
   $ 1,278,431   
        

The aggregate amounts of time deposits in denominations of $100,000 or more at March 31, 2011 and December 31, 2010, were $499.9 million and $496.4 million, respectively. The aggregate amount of time deposits in denominations of $250,000 or more at March 31, 2011 and December 31, 2010, was $84.8 million

 

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Table of Contents

HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

and $87.4 million, respectively. The aggregate amount of time deposits also includes deposits obtained through brokers of $10.0 million at March 31, 2011 and December 31, 2010, which are currently subject to regulatory restrictions (See Note 2, Significant Risks and Uncertainties ).

NOTE 7 — DERIVATIVES:

The Company uses derivatives to manage exposure to market risk, interest rate risk, and to assist customers with their risk management objectives. Derivative transactions are measured in terms of notional amount, which is not recorded on the balance sheet. The notional amount is generally not exchanged and is used as the basis for which interest and other payments are determined. The use of derivatives as interest rate risk-management instruments helps minimize significant, unplanned fluctuations in earnings, fair value of assets and liabilities, and cash flows caused by interest rate volatility. This approach involves modifying the repricing characteristics of certain assets and liabilities so that changes in market values or interest rates do not have a significant adverse effect on net interest margin and cash flows. As a result of interest rate fluctuations, hedged assets and liabilities will gain or lose market value. In a fair value hedging strategy, the effect of this gain or loss will generally be offset by the gain or loss on the derivatives linked to the hedged asset or liabilities. In a cash flow hedging strategy, management manages the variability of cash payments due to interest rate fluctuations by the effective use of derivatives linked to hedged assets and liabilities. On the balance sheet derivatives are reported at their respective fair values within the ‘accounts receivable and other assets’ or ‘accounts payable and other liabilities’ line items within the Consolidated Statement of Financial Condition.

The notional amounts and fair values for derivatives consist of the following:

 

(in thousands)                     
March 31, 2011:    Notional amount      Fair value  
            Asset
derivatives
     Liability
derivatives
 

Forward sale commitments

   $ 151,606       $ 267       $   

Interest rate locks on loans

     126,255         1,830           

Interest rate swaps

     339,003                 (8,429
                          
   $ 616,864       $ 2,097       $ (8,429
                          
December 31, 2010:    Notional amount      Fair value  
            Asset
derivatives
     Liability
derivatives
 

Forward sale commitments

   $ 308,973       $ 2,263       $   

Interest rate locks on loans

     129,287         2,302           

Interest rate swaps

     367,910                 (22,221
                          
   $ 806,170       $ 4,565       $ (22,221
                          

Management uses derivatives that are designated as qualifying hedge contracts as defined by Accounting Standards Codification (ASC) 815, Derivatives and Hedging, as fair value hedges, which are comprised of interest rate swap contracts. Interest rate swap contracts are used to convert commercial business loans held for investment and certificates of deposit from fixed to floating rates to hedge against exposure to changes in benchmark interest rates. All parts of the gain or loss due to the hedged risk (e.g., fair value changes due to changes in benchmark interest rates) are included in the assessment of hedge effectiveness. These swap contracts are carried at fair value, with the net settlement of the derivatives reported in either loans receivable interest income or deposits interest expense, respectively, and ineffectiveness for these swap contracts reported in other noninterest income.

 

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Notes to Consolidated Financial Statements — (Continued)

 

For fair value hedging relationships, the dollar-offset method is used to assess hedge effectiveness, both at the inception of the hedging relationship and on an ongoing basis. Hedge effectiveness is evaluated prospectively as well as through retrospective evaluations. For prospective considerations, we develop an expectation that the relationship will be highly effective over future periods. For retrospective evaluations management determines whether the hedging relationship has been highly effective. The dollar-offset method compares the changes in the fair value of the hedged item to the changes in fair value of the derivative and is applied on a period-by-period basis. The results of the dollar-offset method along with other relevant information are the basis for evaluating hedge effectiveness prospectively.

The following table shows the ineffective portion of net gains (losses) recognized on derivatives in fair value hedging relationships, as defined as ASC 815, Derivatives and Hedging , in the statement of operations for the periods indicated:

 

     Interest rate contracts hedging  
     Three Months Ended
March 31, 2011
     Three Months Ended
March 31, 2010
 
(in thousands)    Loans
held for
investment
     Deposits      Loans
held for
investment
     Deposits  

Total hedge ineffectiveness gains/(losses) recorded in noninterest income

   $ 209       $       $ (20)       $ 26   

Free-standing derivatives are also used for fair value interest rate risk management purposes that do not qualify for hedge accounting treatment, referred to as economic hedges. Economic hedges are used to hedge against changes in fair value of residential mortgage servicing rights (“residential MSRs”), interest rate lock commitments for single family mortgage loans that the Company intends to sell (“derivative loan commitments”), and loans held for sale.

Free-standing derivatives used as economic hedges for residential MSRs typically include positions in futures, options on 10-year treasury contracts, forward sales commitments on mortgage-backed securities, and interest rate swap contracts. The residential MSRs and the free-standing derivatives are carried at fair value with changes in fair value included in mortgage servicing noninterest income.

The free-standing derivatives used as economic hedges for derivative loan commitments and loans held for sale (typically sold within 30 to 60 days) are forward sales commitments on mortgage-backed securities and option contracts. Derivative loan commitments, loans held for sale, and the free-standing derivatives (“economic hedges”) are carried at fair value with changes in fair value included in Net gains on mortgage origination/sales activities noninterest income.

 

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HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

The following table shows the net (losses) gains recognized on economic hedge derivatives within the respective line items in the statement of operations for the periods indicated:

 

     Three Months Ended
March 31,
 
(in thousands)        2011             2010      

Recognized in noninterest income:

    

Net losses on mortgage loan origination/sale activities(1)

   $ (5,085   $ (1,167

Mortgage servicing

     (1,588     5,889   
                
   $ (6,673   $ 4,722   
                

 

 

(1) Comprised of interest rate lock commitments and forward contracts used as an economic hedge on loans held for sale.

As of March 31, 2011, no derivative contracts for cash flow hedging purposes are held. Amortization of unrealized gains and losses related to cash flow hedge positions held in prior periods were recognized in current earnings.

The following table shows the net gains (losses) recognized related to derivatives in cash flow hedging relationships for the periods indicated:

 

     Three Months Ended
March 31,
 
(in thousands)        2011              2010      

Loss (pre tax) reclassified from cumulative OCI into net interest income (effective portion)

   $       $ (143

Gain (pre tax) recognized in noninterest income on derivatives (ineffective portion)

             6   

The Company’s derivative activities are administered by the Asset/Liability Management Committee and monitored by the Board’s Finance Committee. The Treasury function, which includes asset/liability management, is responsible for various hedging strategies developed through analysis of data from financial models and other internal and industry sources. The resulting hedging strategies are incorporated into the overall interest rate risk management strategies.

 

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HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

NOTE 8 — MORTGAGE BANKING OPERATIONS:

Net gains on mortgage loan origination and sales activities

Revenue from the sale of loans, including the effects of derivative risk management instruments, consisted of the following:

 

     Three Months Ended
March 31,
 
(in thousands)        2011             2010      

Mortgage servicing rights and servicing release premiums

   $ 7,554      $ 4,633   

Net gain on loan sales(1)

     680        3,380   

Fair value adjustment of loans held for sale

     1,795        755   

Net loss from derivatives(2)

     (5,085     (1,167
                

Net gains on mortgage loan origination and sale activities

   $ 4,944      $ 7,601   
                

 

 

(1) Comprised of gains and losses of single family and Fannie Mae DUS loan sales and loan fees less certain fees paid to Windermere Mortgage Services Series, LLC.

 

(2) Includes interest rate lock commitments as well as forward sale commitments used to economically hedge loan sales.

Mortgage loan administration

The Company’s portfolio of loans serviced for others is presented at unpaid principal balance and is comprised of the following:

 

(in thousands)    March 31,
2011
     December 31,
2010
 

Single family residential loans

     

FannieMae/GNMA/FHLMC MBS

   $ 6,087,770       $ 5,909,742   

Other

     433,514         433,416   
                 
     6,521,284         6,343,158   
                 

Commercial

     

Multifamily

     784,445         776,671   

Other

     58,150         58,765   
                 
     842,595         835,436   
                 

Total loans serviced for others

   $ 7,363,879       $ 7,178,594   
                 

Loans serviced for others are not included in the consolidated financial statements as they are not assets of the Company.

Included in total loans serviced for Fannie Mae/GNMA/FHLMC MBS above are mortgage-backed securities guaranteed by GNMA and Fannie Mae. Monthly principal and interest payments are passed through to security holders under the securities agreements.

 

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HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

The total balance of loans with recourse provisions included in the Company’s loans serviced for others is as follows:

 

(in thousands)    March 31,
2011
     December 31,
2010
 

Single family residential

   $ 415       $ 450   

Multifamily

     784,445         776,671   
                 
   $ 784,860       $ 777,121   
                 

During the three months ended March 31, 2011 and the twelve months ended December 31, 2010, the Company sold $15.3 million and $43.4 million, respectively, of multifamily conventional loans with recourse provisions through Fannie Mae’s multifamily delegated underwriting and servicing program. The Company has a reserve for losses relating to loans with recourse provisions of $4.1 million, which is included in accounts payable and accrued expenses at March 31, 2011 and December 31, 2010. There were no losses incurred for the three months ended March 31, 2011 and 2010.

FHA, GNMA, Fannie Mae and FHLMC regulations require approved lenders to meet certain liquidity and net worth requirements. The Company did not meet these requirements for 2010. However, the Company has been allowed to continue normal business interactions until such requirements are satisfied.

Advances are made to GNMA mortgage pools for delinquent loan and foreclosure costs and for funding of loans repurchased from GNMA mortgage pools prior to recovery of guaranteed amounts. GNMA advances of $7.3 million and $3.4 million were recorded in accounts receivable and other assets as of March 31, 2011 and December 31, 2010, respectively.

At March 31, 2011 and December 31, 2010, the Company recorded delinquent or defaulted GNMA mortgage loans as if they had been repurchased, totaling $4.4 million and $2.6 million, respectively. For those GNMA mortgage loans previously sold that are more than 90 days past due, the Company has the unilateral right to repurchase the loans. Although this right has not been executed, such loans have been recorded as repurchased for accounting purposes. This asset was recorded in loans held for investment along with a corresponding payable within accounts payable and accrued expenses as of March 31, 2011 and December 31, 2010. This accounting treatment does not impact the accounting for the previously recognized mortgage servicing rights.

Mortgage servicing

Revenue from mortgage servicing, including the effects of derivative risk management instruments, consisted of the following:

 

     Three Months Ended
March 31,
 
(in thousands)    2011     2010  

Servicing fees and other

   $ 6,078      $ 5,720   

Changes in fair value, single family mortgage servicing rights:

    

Due to changes in model or assumptions(1)

     5,543        (1,747

Due to payments on loan balances and other(2)

     (3,864     (3,071

Amortization

     (321     (414

Net (loss) gain from derivatives economically hedging MSR

     (1,588     5,889   
                

Mortgage servicing

   $ 5,848      $ 6,377   
                

 

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HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

 

 

(1) Principally reflects changes in discount rates and prepayment speed assumptions, mostly due to changes in interest rates.

 

(2) Represents changes due to collection/realization of expected cash flows and curtailments over time.

Effective January 1, 2010, the Company made an irrevocable election to measure and carry single family MSRs using the fair value option method. Under this method, originated and purchased single family MSRs are capitalized and carried at fair value with changes in fair value reflected in earnings in the periods in which the changes occur. MSRs resulting from the sale of multifamily loans continue to be initially measured at fair value at the date of transfer and subsequently measured at the lower of amortized cost or fair value.

The fair value of single family MSRs is determined based on what a market participant would pay or charge to assume servicing. The Company determines fair value using a valuation model that calculates the net present value of estimated future cash flows. Estimates of future cash flows include contractual servicing fees, ancillary income and costs of servicing, the timing of which are impacted by assumptions regarding the underlying performance of the loans.

Multifamily MSRs are recorded based on the estimated discounted cash flows and are amortized in proportion to, and over, the estimated period the net servicing income will be collected.

At March 31, 2011, key economic assumptions and the sensitivity of the current fair value for single family MSRs to immediate adverse changes in those assumptions were as follows:

 

(in thousands)       

Fair value of single family MSR

   $ 89,947   

Expected weighted-average life (in years)

     6.01   

Constant prepayment rate(1)

     12.74

Impact on fair value of 25 basis points decrease

   $ (4,825

Impact on fair value of 50 basis points decrease

   $ (10,510

 

 

(1) Represents the expected lifetime average.

These sensitivities are hypothetical and should be used with caution. As the table above demonstrates, the Company’s methodology for estimating the fair value of MSRs is highly sensitive to changes in assumptions. For example, actual prepayment experience may differ and any difference may have a material effect on MSR fair value. Changes in fair value resulting from changes in assumptions generally cannot be extrapolated because the relationship of the change in assumption to the change in fair value may not be linear. Also, in this table, the effect of a variation in a particular assumption on the fair value of the MSRs is calculated without changing any other assumption; in reality, changes in one factor may be associated with changes in another (for example, decreases in market interest rates may indicate higher prepayments; however, this may be partially offset by lower prepayments due to other factors such as a borrower’s diminished opportunity to refinance), which may magnify or counteract the sensitivities. Thus, any measurement of MSRs fair value is limited by the conditions existing and assumptions made as of a particular point in time. Those assumptions may not be appropriate if they are applied to a different point in time.

The initial measurement of the fair value of the MSRs capitalized at the date of the loan sales with servicing retained is based on interest rate based matrices for similar assets derived from modeled fair value results. The initial fair value is adjusted up or down dependent on whether the underlying loan pool interest rate is at a premium, discount or par. This process is further refined now that the Company has its own valuation model and methodology.

 

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HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

Key economic assumptions used in measuring the initial value of capitalized single family MSRs created from loan sales with retained servicing were as follows:

 

(rates per annum) (1)

      

Constant prepayment rate(2)

     9.45

Discount rate(3)

     10.35

 

 

(1) Weighted average rates for sales during the period for sales of loans with similar characteristics.

 

(2) Represents the expected lifetime average.

 

(3) Discount rate is a rate based on market observations.

The changes in single family MSRs measured using the fair value method were:

 

     Three Months Ended
March 31,
 
(in thousands)    2011     2010  

Beginning balance

   $ 81,197      $ 78,350   

Originations:

    

Single family loans

     7,067        3,617   

Purchases

     4        7   

Changes in fair value:

    

Due to changes in model inputs or assumptions(1)

     5,543        (1,747

Other changes in fair value(2)

     (3,864     (3,071
                

Ending balance

   $ 89,947      $ 77,156   
                

 

 

(1) Principally reflects changes in model assumptions or prepayment speed assumptions, which are primarily affected by changes in interest rates.

 

(2) Represents changes due to collection/realization of expected future cash flows over time.

The changes in amortized multifamily MSRs were:

 

     Three Months Ended
March 31,
 
(in thousands)    2011     2010  

Beginning balance

   $ 6,035      $ 6,522   

Originations:

    

Multifamily loans

     291        139   

Amortization

     (321     (415
                
     6,005        6,246   

Impairment allowance

              
                

Ending balance

   $ 6,005      $ 6,246   
                

There was no valuation allowance at March 31, 2011 and March 31, 2010.

 

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HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

At March 31, 2011, the expected weighted-average life of the Company’s multifamily MSRs was 8.33 years. Projected amortization expense for the gross carrying value of multifamily MSRs at March 31, 2011, is estimated as follows:

 

(in thousands)            
  

2011

   $ 931   
  

2012

     1,109   
  

2013

     894   
  

2014

     757   
  

2015

     642   
   2016 and thereafter      1,672   
           

Carrying value of multifamily MSR

   $ 6,005   
           

The projected amortization expense of multifamily MSRs is an estimate and should be used with caution. The amortization expense for future periods was calculated by applying the same quantitative factors, such as actual MSRs prepayment experience and discount rates, which were used to determine amortization expense during 2010. These factors are inherently subject to significant fluctuations, primarily due to the effect that changes in mortgage rates have on loan prepayment experience. Accordingly, any projection of MSRs amortization in future periods is limited by the conditions that existed at the time the calculations were performed and may not be indicative of actual amortization expense that will be recorded in future periods.

NOTE 9 — COMMITMENTS, GUARANTEES, AND CONTINGENCIES:

Commitments

Commitments to extend credit are agreements to lend to customers in accordance with predetermined contractual provisions. These commitments may be for specific periods or contain termination clauses and may require the payment of a fee. The total amounts of unused commitments do not necessarily represent future credit exposure or cash requirements in that commitments often expire without being drawn upon. Unfunded commitments to extend credit totaled $168.7 million ($166.9 million fixed and $1.8 million adjustable-rate commitments) at March 31, 2011 and $137.6 million ($132.6 million fixed and $5.0 million adjustable-rate commitments) at December 31, 2010.

The Company enters into contractual commitments to originate loans (e.g., interest rate lock commitments) to extend credit to borrowers with fixed expiration dates. These commitments become effective when the borrowers “lock” a specified interest rate within the time frames established by the Company. Market risk arises due to adverse changes in interest rates between the time of interest rate lock by the borrower and the sale date of the loan to an investor. The Company offsets this risk by entering into forward sale commitments.

The Company is obligated under noncancelable leases for office space. The office leases also contain five-year renewal and space options.

Guarantees

In the ordinary course of business, the Company sells loans with recourse. For loans that have been sold with recourse and are no longer on the Company’s balance sheet, the recourse component is considered a guarantee. When the Company sells a loan with recourse, it commits to stand ready to perform if the loan defaults and to make payments to remedy the default. As of March 31, 2011, the total principal balance of loans sold with recourse under these guarantees totaled $784.9 million. The Company’s recourse reserve related to these guarantees totaled $4.1 million at March 31, 2011.

 

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HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

In the ordinary course of business, the Company sells loans without recourse that may have to be subsequently repurchased due to defects in the origination process of the loan. The defects are categorized as documentation errors, underwriting errors and judgments, early payment defaults, and fraud. When a loan sold to an investor without recourse fails to perform, the investor will typically review the loan file to determine whether defects in the origination process occurred. If an origination defect is identified, the Company is required to either repurchase the loan or indemnify the investor for losses sustained if the investor has sold the property. If there are no defects found in the origination process, the Company has no commitment to repurchase the loan. As of March 31, 2011, the total principal balance of loans sold without recourse under these terms and conditions totaled $6.6 billion. The Company has reserved $0.7 million at March 31, 2011, to cover its loss exposure to loans sold without recourse.

Contingencies

In the normal course of business, the Company has various legal claims and other contingent matters outstanding. The Company believes that any liability ultimately arising from these actions would not have a material adverse effect on the results of operations or consolidated financial position at March 31, 2011. At March 31, 2011, the Company does not have any amounts reserved for legal claims and there are no matters that are considered to be reasonably possible of resulting in a loss.

NOTE 10 — STOCK-BASED COMPENSATION:

2010 Equity Incentive Plan

In January 2010, the shareholders approved the 2010 Equity Incentive Plan (the “2010 EIP”). Under the 2010 EIP all of the Company’s officers, employees, directors and/or consultants are eligible to receive awards. Awards which may be granted under the 2010 EIP include Incentive Stock Options, Nonqualified Stock Options, Stock Appreciation Rights, Restricted Stock Awards, Restricted Stock Unit Awards, Stock Bonus Awards and Incentive Bonus Awards, or combination of the foregoing. The maximum number of shares of HomeStreet, Inc. common stock available for grant under the 2010 EIP is 337,700.

Under the 2010 EIP, the exercise price of the option may not be less than the fair market value of a share of common stock at the grant date. The options generally vest on a graded schedule from one to five years, depending on the terms of the grant, and generally expire ten years from the grant date.

During the latter part of 2010, nonqualified options were granted outside, but under substantially the same terms, of the 2010 EIP. This issuance was assessed against the maximum number of shares available for grant under the 2010 EIP. This issuance was approved by the Board of Directors and appropriate regulatory agencies and was issued to key senior management personnel.

 

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HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

A summary of changes in nonqualified stock options granted, but not vested, for the period ended March 31, 2011, is as follows:

 

     Number      Weighted
Average
Exercise
Price
     Weighted
Average
Remaining
Contractual
Term
(in yrs.)
     Aggregate
Intrinsic
Value (2)
(in thousands)
 

Options outstanding at December 31, 2010

     279,000       $ 1.17         2.9      

Granted

           

Cancelled or forfeited

                          

Exercised

                          
                 

Options outstanding at March 31, 2011

     279,000         1.17         2.6           
                 

Options that are exercisable and expected to be exercisable(1)

     273,420                 

Options exercisable

     69,750                 

 

 

(1) Adjusted for estimated forfeitures.

 

(2) Intrinsic value is the amount by which fair value of the underlying stock exceeds the exercise price.

No options have been exercised under this plan during 2010 or the first quarter of 2011, and as such there is no related intrinsic value, cash received, or income tax benefits to exercised options. As of March 31, 2011, there was $37,031 of total unrecognized compensation costs related to stock options. Compensation costs are recognized over the requisite service period, which typically is the vesting period. Unrecognized compensation costs are expected to be recognized over the remaining weighted average requisite service period of 2.6 years.

NOTE 11 — FAIR VALUE ACCOUNTING AND MEASUREMENT:

The term “fair value” is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. A fair value measurement assumes that the transaction to sell the asset or transfer the liability occurs in the principal market for the asset or liability or, in the absence of a principal market, the most advantageous market for the asset or liability. The Company’s approach is to maximize the use of observable inputs and minimize the use of unobservable inputs when developing fair value measurements.

Fair Value Hierarchy

The fair value hierarchy prioritizes the inputs used to measure fair value by assigning the highest priority to quoted prices in active markets for identical assets or liabilities and the lowest priority to unobservable inputs. The Company groups its financial assets and liabilities within levels determined by the markets in which the assets and liabilities are traded. The levels are defined as follows:

 

   

Level 1 — Quoted prices in active markets for identical assets or liabilities. An active market for the asset or liability is a market in which transactions occur with sufficient frequency and volume to provide information on an ongoing basis.

 

   

Level 2 — Quoted prices for similar instruments in active markets, quoted prices for identical or similar instruments in markets that are not active, and model-based valuations where inputs are observable or when value drivers are observable.

 

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Notes to Consolidated Financial Statements — (Continued)

 

   

Level 3 — Valuation is modeled using inputs that are both significant to the measurement and unobservable in the market. These inputs reflect the Company’s assumptions of what market participants would use in pricing the asset or liability.

Estimation of Fair Value

Fair value is based on quoted prices in an active market when available. In certain cases where a quoted price for an asset or liability is not available, the Company uses valuation models to estimate its fair value. These models incorporate inputs such as forward yield curves, loan prepayment assumptions, expected loss assumptions, market volatilities, and pricing spreads utilizing market-based inputs where readily available. The Company believes these inputs are comparable to those that would be used by other market participants. As an estimate, the fair value cannot be determined with precision and may not be realized in an actual sale or transfer of the asset or liability in a current market exchange.

Asset and Liability Measurements

Cash and Cash Equivalents

For cash and cash equivalents, the carrying value is a reasonable estimate of fair value based on the short-term nature of the instruments.

Investment Securities Available for Sale

Investment securities available for sale are recorded at fair value on a recurring basis. The fair values of securities available for sale are obtained from an independent third party pricing service and are generally based on observable market prices of identical or similar securities. If market prices are not readily available, fair value is estimated using a discounted cash flow model, which considers expected prepayment factors and the degree of related credit risk. Fair value measurements for investment securities are obtained from an independent third party pricing service. These unadjusted fair values are reported in the financial statements. Their underlying assumptions and valuation inputs are classified as Level 2.

Loans Held for Sale

The Company elected to carry new loans originated for sale at fair value, in accordance with fair value option guidance. The fair value of loans held for sale is based on quoted market prices, where available, or dealer quotes for portfolios with similar characteristics. In addition, values for forward sale commitments provide observable data/inputs related to the fair value of loans held for sale. These valuation inputs are classified as Level 2.

Loans Held for Investment

The Company does not record loans at fair value on a recurring basis. As such, valuation techniques discussed herein for loans are primarily for estimating fair value for financial instruments in accordance with accounting guidance on financial instruments. However, from time to time, nonrecurring fair value adjustments to loans are recorded to reflect (1) partial write-downs that are based on observable market prices or current appraised value of collateral, or (2) the full charge-off of the loan carrying value.

The fair value of loans held for investment was determined by discounting contractual cash flows using current lending rates for new loans with similar maturities. Prepayment assumptions were also included for residential loans. For variable rate loans which reprice based on the prime rate, the estimated fair values are

 

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Notes to Consolidated Financial Statements — (Continued)

 

based on the recorded book values. The resulting value for all loan types is reduced by the allowance for loan losses. As the allowance for loan losses is based on an incurred-loss model, it does not consider future loss projections and as such this factor does not incorporate the exit-price concept of fair value.

The fair value of impaired loans is measured on a nonrecurring basis and in accordance with ASC 310-40. A loan is considered impaired when, based on current information and events, it is probable that the Company will be unable to collect all amounts due (both interest and principal) according to contractual terms of the loan agreement. Impaired loans are measured based on management’s estimate of the fair value of the collateral considering current and anticipated future market conditions or estimated present value of total expected cash flows, if not collateral dependent. These valuation inputs are considered to be Level 3 inputs.

Mortgage Servicing Rights

Single family MSRs are recorded at fair value on a recurring basis. Multifamily MSRs are recorded at the lower of amortized cost or fair value. Single family MSRs do not trade in an active market with readily observable prices. Accordingly, the fair value of MSRs is determined using a valuation model that calculates the present value of estimated future net servicing cash flows. Significant assumptions used in the valuation of single family MSRs include market interest rates, projected prepayment speeds, discount rates, costs of servicing, other income, and credit losses. Additionally, the Company obtains third-party appraisals of the estimated fair value of single family MSRs on a quarterly basis. The Company uses this information along with the valuation methodology to estimate the fair value of single family MSRs. Single family MSRs’ fair value use significant unobservable inputs and, as such, are classified as Level 3 inputs.

Multifamily MSRs are recorded on a nonrecurring basis and are based on the estimated discounted cash flows and are amortized in proportion to, and over, the estimated period the net servicing income will be collected. Significant assumptions used in the valuation of multifamily MSRs include market interest rates, projected prepayment speeds, discount rates, costs of servicing, other income, and credit losses. Multifamily MSRs benefit from “prepayment penalties” that restore lost servicing fee income resulting from loan prepayments. As such, fair value approximates amortized cost for Multifamily MSRs assets. Multifamily MSRs’ fair value use significant unobservable inputs and, as such, are classified as Level 3 inputs.

Derivatives

Derivatives are recorded at fair value on a recurring basis. The fair value of derivatives is estimated using internally developed modeling techniques, as the derivatives held on the balance sheet are traded in over-the-counter markets where quoted market prices are not readily available. These models require the use of multiple observable market inputs including projections of forward interest rates and interest rate volatilities. Significant market inputs are observable and can be validated through external sources, including brokers and market transactions. Types of derivative contracts held by the Company include forward-sale commitments, futures, interest rate swaps, and interest rate lock commitments written for residential mortgage loans that the Company intends to sell. These derivative instruments are classified as Level 2.

Other Real Estate Owned (“OREO”)

OREO are foreclosed assets and are adjusted to fair value, less cost to sell, upon transfer of the loans to OREO. Subsequently, OREO assets are carried at the lower of carrying value or fair value less the cost to sell. Fair value recorded on a nonrecurring basis is generally based on independent market prices or appraised values of the collateral and, accordingly, OREO is classified as Level 3.

 

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Notes to Consolidated Financial Statements — (Continued)

 

Federal Home Loan Bank Stock

FHLB stock is carried at par value, its historical cost. Carrying value approximates fair value as FHLB stock can only be purchased or redeemed at par value.

Deposits

Deposit liabilities are carried at historical cost. As such, valuation techniques discussed herein for deposits are primarily for estimating fair value for financial instruments in accordance with accounting guidance on financial instruments. The fair value of demand deposits is estimated as the amount payable on demand at the reporting date. The fair value of fixed-maturity certificates of deposit is estimated using the rates currently offered for deposits of similar remaining maturities.

Federal Home Loan Bank Advances

FHLB advances are carried at historical cost. As such, valuation techniques discussed herein for FHLB advances are primarily for estimating fair value for financial instruments in accordance with accounting guidance on financial instruments. Rates currently available to the Bank for advances with similar terms and remaining maturities are used to estimate the fair value of existing advances.

Long-Term Debt

Long-term debt is carried at historical cost. As such, valuation techniques discussed herein for long-term debts are primarily for estimating fair value for financial instruments in accordance with accounting guidance on financial instruments. The estimated fair value for long-term debt was determined by discounting contractual cash flows using current lending rates for similar long-term debt instruments with similar maturities.

 

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Table of Contents

HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

The following presents the hierarchy level for the Company’s assets and liabilities measured at fair value on a recurring basis:

 

(in thousands)    Fair Value at
March 31,
2011
     Level 1      Level 2      Level 3  

Assets:

           

Investment securities available for sale Mortgage-backed securities

   $ 4,364       $       $ 4,364       $   

Municipal bonds

     5,832                 5,832           

Collateralized mortgage obligations

     217,938                 217,938           

US Treasury Securities

     76,270                 76,270           

Single family mortgage servicing rights

     89,947                         89,947   

Loans held for sale

     81,393                 81,393           

Derivatives

           

Forward sale commitments

     267                 267           

Interest rate locks on loans

     1,830                 1,830           
                                   

Total

   $ 477,841       $       $ 387,894       $ 89,947   
                                   

Liabilities:

           

Derivatives

           

Interest rate swaps

   $ 8,429       $       $ 8,429       $   
                                   

Total

   $ 8,429       $       $ 8,429       $   
                                   

 

(in thousands)    Fair Value at
December 31,
2010
     Level 1      Level 2      Level 3  

Assets:

           

Investment securities available for sale

           

Mortgage-backed securities

   $ 4,697       $       $ 4,697       $   

Municipal bonds

     6,549                 6,549           

Collateralized mortgage obligations

     221,921                 221,921           

US Treasury Securities

     80,346                 80,346           

Single family mortgage servicing rights

     81,197                         81,197   

Loans held for sale

     198,784                 198,784           

Derivatives

           

Forward sale commitments

     2,263                 2,263           

Interest rate locks on loans

     2,302                 2,302           
                                   

Total

   $ 598,059       $       $ 516,862       $ 81,197   
                                   

Liabilities:

           

Derivatives

           

Interest rate swaps

   $ 22,221       $       $ 22,221       $   
                                   

Total

   $ 22,221       $       $ 22,221       $   
                                   

There were no transfers between level classifications during the first three months of 2011.

 

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HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

The following presents additional information about Level 3 assets measured at fair value on a recurring basis:

 

     Interest rate swaps  
     Three Months Ended
March 31,
 
(in thousands)    2011      2010  

Beginning Balance

   $       $ 339   

Losses included in income

             (289
                 

Ending Balance

   $       $ 50   
                 
     Single-family
mortgage servicing
rights
 
     Three Months Ended
March 31,
 
(in thousands)    2011      2010  

Beginning Balance

   $ 81,197       $ 78,350   

Gains (losses) included in income

     1,679         (4,818

Issuances

     7,067         3,617   

Purchases

     4         7   
                 

Ending Balance

   $ 89,947       $ 77,156   
                 

Certain financial assets and financial liabilities are measured at fair value on a nonrecurring basis; that is, the instruments are not measured at fair value on an ongoing basis but are subject to fair value adjustments in certain circumstances. These adjustments to fair value usually result from the application of lower of cost or fair value accounting or recognition of impairment of assets.

The following presents the hierarchy level for the Company’s assets measured at fair value on a nonrecurring basis:

 

(in thousands)    Fair value at
March 31,
2011
     Level 1      Level 2      Level 3      Three Months Ended
March 31, 2011

total (losses)
 

Impaired loans

   $ 162,594                       $ 162,594       $ (10,580

Other real estate owned

     98,863                         98,863         (10,559

Multifamily mortgage servicing rights

     6,005                         6,005           
                                            

Total

   $ 267,462       $       $       $ 267,462       $ (21,139
                                            

 

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HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

At March 31, 2011 and December 31, 2010, the carrying values and fair values of the Company’s other financial instruments are as follows:

 

     March 31, 2011  
(in thousands)    Carrying
value
     Fair value  

Financial assets:

     

Cash and cash equivalents

   $ 170,795       $ 170,795   

Loans held for investment

     1,500,550         1,543,806   

Federal Home Loan Bank stock

     37,027         37,027   

Financial liabilities:

     

Deposits

     2,066,842         2,079,007   

Federal Home Loan Bank advances

     114,544         119,550   

Long-term debt

     61,857         61,314   
     December 31, 2010  
(in thousands)    Carrying
value
     Fair value  

Financial assets:

     

Cash and cash equivalents

   $ 72,639       $ 72,639   

Loans held for investment

     1,538,521         1,539,821   

Federal Home Loan Bank stock

     37,027         37,027   

Financial liabilities:

     

Deposits

     2,129,742         2,155,075   

Federal Home Loan Bank advances

     165,869         172,152   

Long-term debt

     66,857         67,164   

NOTE 12 — EARNINGS PER SHARE:

The following table summarizes the calculation of earnings per share for the three months ended March 31, 2011 and 2010:

 

     Three Months Ended
March 31,
 
(in thousands, except share data)    2011     2010  

Net (loss) income

   $ (7,449   $ (5,091

Basic and Diluted weighted average common shares outstanding

     3,377,186        3,377,186   

Basic and Diluted loss per share

   $ (2.21   $ (1.51

NOTE 13 — OPERATING SEGMENTS:

The Company has identified four business lines for the purposes of management reporting: Community Banking; Single Family Lending; Income Property Lending; Residential Construction Lending; as well as an All Other category. The results for these lines of business are based on a management accounting process that assigns balance sheet and income statement items to each responsible operating segment. This process is dynamic and, unlike financial accounting, there is no comprehensive, authoritative guidance for management accounting equivalent to GAAP. Our approach has focused, in the years presented, on managing revenues and expense by segment and in total. The management accounting process measures the performance of the operating

 

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HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

segments based on the Company’s management structure and is not necessarily comparable with similar information for other financial services companies. The Company defines its operating segments by product type and customer segment. If the management structure and/or the allocation process changes, allocations, transfers, and assignments may change.

Community Banking provides diversified financial products and services to our consumer and business customers, including deposit products, investment products, insurance products, cash management services and consumer and business loans.

Single Family Lending originates and sells into the secondary market residential mortgage loans both directly and through our relationship with Windermere Mortgage Services. We generally retain the right to service residential mortgage loans sold into the secondary market. This segment also originates and services loans for our portfolio on a selective basis, including home equity loans and lines of credit.

Income Property Lending originates commercial real estate loans with a focus on multifamily lending through our Fannie Mae DUS business. These loans are sold to or securitized by Fannie Mae and we generally retain the right to service them. Our income property lending segment also originates commercial construction and land loans, bridge loans and permanent loans for our portfolio.

Residential Construction Lending originates and services construction and land loans primarily for our own portfolio.

The All Other category includes: (1) asset/liability management which includes interest rate risk, liquidity position and capital. Asset/liability management responsibilities involve managing the Company’s portfolio of investment securities and providing oversight and direction across the enterprise over matters impacting the Company’s balance sheet and off-balance sheet risk. Such activities include determining the optimal production composition and concentration of loans in the loan portfolio, the appropriate mix of funding sources at any given point in time, and the allocation of capital resources to the business segments; (2) general corporate overhead costs associated with the Company’s facilities, legal, accounting and finance functions, human resources, and technology services; and (3) the residual impact of our cost allocation processes.

We use various management accounting methodologies to assign certain income statement items to the responsible operating segment, including:

 

   

a funds transfer pricing system, which allocates interest income credits and funding charges between the operating segments and the Treasury division within the All Other category, with that division assigning a segment a funding credit for its liabilities, such as deposits and a charge to fund its assets;

 

   

an allocation of charges for services rendered to the segments by centralized functions, such as corporate overhead, which are generally based on each segment’s consumption patterns; and

 

   

income taxes for the Company on a consolidated basis are allocated based on the effective tax rate applied to the segment’s pretax income or loss

 

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Table of Contents

HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

Financial highlights by operating segment were as follows:

 

     Three Months Ended March 31, 2011  
     Community
Banking
    Single
Family
Lending
    Income
Property
    Residential
Construction
    All
Other
    Total  
(in thousands)                                     

Condensed income statement:

            

Net interest income (expense)(1)

   $ 8,047      $ 4,885      $ 1,957      $ 165      $ (3,464   $ 11,590   

Provision for loan losses

                                          

Noninterest income

     1,134        10,219        852        3        2,257        14,465   

Noninterest expense

     (6,219     (8,787     (999     (10,142     (7,314     (33,461

Inter-segment revenue (expense)

     (2,189     (3,459     (747     (634     7,029          
                                                

Income (loss) before income taxes

     773        2,858        1,063        (10,608     (1,492     (7,406

Income tax (benefit) expense

     (4     (17     (6     61        9        43   
                                                

Net income (loss)

   $ 777      $ 2,875      $ 1,069      $ (10,669   $ (1,501   $ (7,449
                                                

 

    

 

Three Months Ended March 31, 2010

 
     Community
Banking
    Single
Family
Lending
    Income
Property
    Residential
Construction
    All
Other
    Total  
(in thousands)                                     

Condensed income statement:

            

Net interest income (expense)(1)

   $ 7,135      $ 5,045      $ 973      $ (1,263   $ (4,775   $ 7,115   

Provision for loan losses

     (2,062     (2,979     (1,865     (94            (7,000

Noninterest income

     1,063        13,927        570        2        172        15,734   

Noninterest expense

     (5,722     (7,763     (1,379     183        (6,259     (20,940

Inter-segment revenue (expense)

     (1,868     (2,838     (594     (516     5,816          
                                                

Income (loss) before income taxes

     (1,454     5,392        (2,295     (1,688     (5,046     (5,091

Income tax expense (benefit)

                                          
                                                

Net income (loss)

   $ (1,454   $ 5,392      $ (2,295   $ (1,688   $ (5,046   $ (5,091
                                                

 

 

 

(1) Net interest income is the differrence between interest earned on assets and cost of liabilities to fund those assets. Interest earned includes actual interest earned on segment assets and, if the segment has excess liabilities, interest credits for providing funding to other segments. The cost of liabilities includes interest expense on segment liabilities and, if the segment does not have enough liabilities to fund its assets, a funding charge based on the cost of excess liabilities from another segment or category.

 

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Table of Contents

Report of Independent Registered Public Accounting Firm

The Board of Directors

HomeStreet, Inc.:

We have audited the accompanying consolidated statements of financial condition of HomeStreet, Inc. and subsidiaries (the Company) as of December 31, 2010 and 2009, and the related consolidated statements of operations, comprehensive (loss) income, shareholders’ equity, and cash flows for the years then ended. These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.

We conducted our audits in accordance with generally accepted auditing standards as established by the Auditing Standards Board (United States) and in accordance with the auditing standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of HomeStreet, Inc. and subsidiaries as of December 31, 2010 and 2009, and the results of their operations and their cash flows for the years then ended in conformity with U.S. generally accepted accounting principles.

As discussed in Footnote 1, Accounting Changes, effective January 1, 2010, the Company elected to carry mortgage servicing rights related to single family loans at fair value, and elected to carry single family residential mortgage loans held for sale using the fair value option.

The accompanying consolidated financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in note 2 to the consolidated financial statements, on May 18, 2009, the Company entered into a Stipulation and Consent to the Issuance of an Order to Cease and Desist with the Office of Thrift Supervision and on May 8, 2009, the Company’s banking subsidiary (the Bank) entered into a Stipulation and Consent to the Issuance of an Order to Cease and Desist (the Bank Order) with the Federal Deposit Insurance Corporation and the Washington Department of Financial Institutions. The Bank Order restricts certain operations and required the Bank to, among other things, achieve specified regulatory capital ratios and reduce adversely classified loans and real estate owned to a specific level of regulatory capital. The Bank failed to achieve the required regulatory capital ratios and the reduction of adversely classified loans and real estate owned to a specific level of regulatory capital in the time periods required and is, therefore, not in compliance with the Bank Order. The failure of the Bank to comply with the Bank Order and the possibility of additional regulatory restrictions and actions, including placing the Bank in receivership, raises substantial doubt about the Company’s ability to continue as a going concern. Management’s plans in regard to these matters are also described in note 2 to the consolidated financial statements. The consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.

/s/ KPMG LLP

Seattle, Washington

April 29, 2011

 

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Table of Contents

HomeStreet, Inc. and Subsidiaries

Consolidated Statements of Financial Condition

December 31, 2010 and 2009

(in thousands, except share data)

 

     2010     2009  
ASSETS     

Cash and cash equivalents (including interest-bearing instruments of $57,601 and $193,317)

   $ 72,639      $ 217,103   

Investment securities available for sale

     313,513        657,840   

Loans held for sale (includes $198,784 and $0 carried at fair value)

     212,602        57,046   

Loans held for investment (net of allowance for loan losses of $64,177 and $109,472)

     1,538,521        1,964,994   

Mortgage servicing rights (includes $81,197 and $0 carried at fair value)

     87,232        78,372   

Accounts receivable and other assets

     32,345        24,505   

Accrued interest receivable

     7,267        9,765   

Other real estate owned

     170,455        107,782   

Income taxes receivable

     7,309        46,166   

Federal Home Loan Bank stock, at cost

     37,027        37,027   

Premises and equipment, net

     6,787        8,936   
                
   $ 2,485,697      $ 3,209,536   
                
LIABILITIES AND SHAREHOLDERS’ EQUITY     

Liabilities:

    

Deposits

   $ 2,129,742      $ 2,332,333   

Federal Home Loan Bank advances

     165,869        677,840   

Accounts payable and accrued expenses

     64,440        40,610   

Long-term debt

     66,857        66,857   
                
     2,426,908        3,117,640   

Commitments and Contingencies (Note 13)

    

Shareholders’ equity:

    

Preferred stock, no par value

    

Authorized 10,000 shares

    

Issued and outstanding, 0 shares and 0 shares

              

Common stock, no par value

    

Authorized 100,000,000 shares

    

Issued and outstanding, 3,377,186 shares and 3,377,186 shares

     511        511   

Additional paid-in capital

     16          

Retained earnings

     65,627        93,374   

Accumulated other comprehensive loss

     (7,365     (1,989
                
     58,789        91,896   
                
   $ 2,485,697      $ 3,209,536   
                

See accompanying notes to consolidated financial statements.

 

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Table of Contents

HomeStreet, Inc. and Subsidiaries

Consolidated Statements of Operations

Years Ended December 31, 2010, 2009 and 2008

(in thousands, except share data)

 

     2010      2009     2008  

Interest income:

       

Loans

   $ 85,377       $ 106,623      $ 162,007   

Investment securities available for sale

     7,676         4,150        5,078   

Other

     550         598        524   
                         
     93,603         111,371        167,609   

Interest expense:

       

Deposits

     39,050         54,353        54,665   

Federal Home Loan Bank advances

     11,682         21,071        29,030   

Securities sold under agreements to repurchase

     11         267        633   

Long-term debt

     3,824         4,270        5,205   

Other

     2         (92     2,191   
                         
     54,569         79,869        91,724   
                         

Net interest income

     39,034         31,502        75,885   

Provision for credit losses

     37,300         153,515        34,411   
                         

Net interest income (loss) after provision for loan losses

     1,734         (122,013     41,474   

Noninterest income:

       

Net gains on mortgage loan origination and sales activities

     57,127         52,831        15,833   

Mortgage servicing

     26,226         (4,495     13,025   

Income from Windermere Mortgage Services, Inc.

     2,162         4,663        2,423   

Debt extinguishment

                    2,451   

Federal Home Loan Bank dividend

                    352   

Depositor and other retail banking fees

     3,397         3,352        2,885   

Insurance commissions

     1,164         792        807   

Gain on sale of investment securities available for sale

     6,016         237        1,067   

Other

     839         1,850        1,503   
                         
     96,931         59,230        40,346   
                         

Balance, carried forward

     98,665         (62,783     81,820   

 

See accompanying notes to consolidated financial statements.

 

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Table of Contents

HomeStreet, Inc. and Subsidiaries

Consolidated Statements of Operations ( continued )

Years Ended December 31, 2010, 2009 and 2008

(in thousands, except share data)

 

     2010     2009     2008  

Balance, brought forward

   $ 98,665      $ (62,783   $ 81,820   

Noninterest expense:

      

Salaries and related costs

     49,816        39,926        38,784   

General and administrative

     18,213        12,772        13,936   

Federal Home Loan Bank prepayment penalty

     5,458                 

Legal

     3,573        3,353        1,541   

Consulting

     2,761        5,163        985   

Federal Deposit Insurance Corporation assessments

     7,618        8,757        1,606   

Occupancy

     7,356        6,486        6,743   

Information services

     5,223        5,503        5,051   

Other real estate owned expense

     32,197        10,479        1,543   

Federal Home Loan Bank debt extension fee

            2,009          
                        
     132,215        94,448        70,189   

(Loss) income before income tax expense (benefit)

     (33,550     (157,231     11,631   

Income tax expense (benefit)

     697        (46,955     3,202   
                        

NET (LOSS) INCOME

   $ (34,247   $ (110,276   $ 8,429   
                        

Basic and Diluted (loss) earnings per share

   $ (10.14   $ (32.65   $ 2.50   

Basic weighted average number of shares outstanding

     3,377,186        3,377,186        3,371,622   

Diluted weighted average number of shares outstanding

     3,377,186        3,377,186        3,375,894   

See accompanying notes to consolidated financial statements.

 

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HomeStreet, Inc. and Subsidiaries

Consolidated Statements of Comprehensive (Loss) Income

Years Ended December 31, 2010, 2009 and 2008

(in thousands)

 

     2010     2009     2008  

Net (loss) income

   $ (34,247   $ (110,276   $ 8,429   

Other comprehensive (loss) income, net of tax:

      

Unrealized loss (gain) on securities:

      

Unrealized holding loss (gain) arising during year, net of tax expense of $0, $207 and $487

     (1,604     (1,477     904   

Reclassification adjustment for net gains included in net income, net of tax expense, of $0, $83 and $374

     (3,910     (154     (694

Unrealized losses on cash flow hedges:

      

Unrealized (loss) gain arising during year, net of tax benefit of $0, $525 and $1,223

            (1,112     2,271   

Reclassification adjustment for loss (gains) included in net income, net of tax expense of $0, $639 and $59

     138        (1,188     (110
                        

Other comprehensive (loss) income

     (5,376     (3,931     2,371   
                        

Comprehensive (loss) income

   $ (39,623   $ (114,207   $ 10,800   
                        

See accompanying notes to consolidated financial statements.

 

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HomeStreet, Inc. and Subsidiaries

Consolidated Statements of Shareholders’ Equity

(in thousands, except share data)

 

    Number of
shares
    Common
stock
    Additional
paid-in
Capital
    Retained
earnings
    Accumulated
other
comprehensive
income (loss)
    Total  

Balance,

           

December 31, 2008

    3,377,186      $ 511      $      $ 203,650      $ 1,942      $ 206,103   
                                               

Net loss

                         (110,276            (110,276

Other comprehensive loss

                                (3,931     (3,931
                                               

Balance,

           

December 31, 2009

    3,377,186      $ 511      $      $ 93,374      $ (1,989   $ 91,896   
                                               

Cumulative effect for change in accounting for mortgage servicing rights valuation

                         6,500               6,500   
                                               

Balance,

           

January 1, 2010

    3,377,186      $ 511      $      $ 99,874      $ (1,989   $ 98,396   
                                               

Net loss

                         (34,247            (34,247

Stock option compensation expense

                  16                      16   

Other comprehensive loss

                                (5,376     (5,376
                                               

Balance,

           

December 31, 2010

    3,377,186      $ 511      $ 16      $ 65,627      $ (7,365   $ 58,789   
                                               

See accompanying notes to consolidated financial statements.

 

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HomeStreet, Inc. and Subsidiaries

Consolidated Statements of Cash Flows

Years Ended December 31, 2010, 2009 and 2008

(in thousands)

 

    2010     2009     2008  

CASH FLOWS FROM OPERATING ACTIVITIES:

     

Net (loss) income

  $ (34,247   $ (110,276   $ 8,429   

Adjustments to reconcile net (loss) income to net cash (used) provided by operating activities:

     

Amortization of deferred fees and discounts on loans held for investment, net of additions

    2,852        (1,113     1,348   

Amortization of premiums on investment securities

    5,092        6,305        751   

Amortization of intangibles

    201        238        273   

Accretion of gain on cash flow hedge

    138        (1,827     (169

Amortization of mortgage servicing rights

    1,370        18,878        9,274   

Provision for credit losses

    37,300        153,515        34,411   

Provision for losses on other real estate owned

    27,459        8,893        901   

(Recovery) impairment of originated mortgage servicing rights

           (1,335     9,197   

Depreciation and amortization on premises and equipment

    2,410        2,842        3,049   

Originations of loans held for sale

    (2,096,886     (2,550,677     (1,657,622

Proceeds from sale of loans held for sale

    1,958,043        2,541,370        1,752,822   

Fair value adjustment of loans held for sale

    (272     898        (531

Addition of originated mortgage servicing rights

    (24,826     (38,138     (22,372

Change in fair value of mortgage servicing rights

    21,107                 

Gain on sale of investment securities

    (6,016     (231     (1,067

(Gain) loss on sale of other real estate owned

    (573     (1,244     341   

Gain on debt extinguishment

                  (2,451

Loss on prepayment of Federal Home Loan Bank advances

    5,458                 

Net deferred income tax expense (benefit)

    7,168        (5,907     (4,336

Change in deferred compensation, net

                  403   

Change in stock option compensation

    16                 

Cash used by changes in operating assets and liabilities:

     

Increase in accounts receivable and other assets

    (8,043     (4,341     (4,172

Decrease (increase) in accrued interest receivable

    2,498        (111     2,663   

Decrease (increase) in income taxes receivable/payable

    33,587        (41,863     1,117   

Increase in accounts payable and other liabilities

    23,122        568        2,320   
                       

Net cash (used in) provided by operating activities

    (43,042     (23,556     134,579   

CASH FLOWS FROM INVESTING ACTIVITIES:

     

Purchase of investment securities

    (645,703     (791,686     (62,174

Proceeds from sale of investment securities

    693,497        93,163        93,571   

Principal repayments and maturities of investment securities

    291,939        89,439        24,525   

Proceeds from sale of other real estate owned

    99,511        37,481        7,900   

Proceeds from cash flow hedge

                  1,740   

Mortgage servicing rights purchased from others

    (11     (78     (375

Capital expenditures related to other real estate owned

    (2,050     (1,716     (629

Origination of loans held for investment and principal repayments, net

    181,675        182,714        (123,674

Net property and equipment purchased

    (260     (1,628     (1,781
                       

Net cash provided (used in) by investing activities

    618,598        (392,311     (60,897

 

 

See accompanying notes to consolidated financial statements.

 

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HomeStreet, Inc. and Subsidiaries

Consolidated Statements of Cash Flows ( continued )

Years Ended December 31, 2010, 2009 and 2008

(In thousands)

 

     2010     2009     2008  

CASH FLOWS FROM FINANCING ACTIVITIES:

      

Net (decrease) increase in deposits

   $ (202,591   $ 421,022      $ 193,630   

Proceeds from Federal Home Loan Bank advances

            308,940        1,102,565   

Repayment of Federal Home Loan Bank advances

     (517,429     (336,864     (1,143,187

Proceeds from Federal Reserve Bank borrowings

            69,000        4,817,800   

Repayment of Federal Reserve Bank borrowings

            (69,000     (4,817,800

Proceeds from securities sold under agreements to repurchase

     40,000               80,059   

Repayment of securities sold under agreements to repurchase

     (40,000     (18,400     (66,459

Repayment of long-term debt

                   (22,500

Dividends paid

                   (3,035

Stock repurchases, net

                   (118
                        

Net cash (used in) provided by financing activities

     (720,020     374,698        140,955   
                        

NET (DECREASE) INCREASE IN CASH AND CASH EQUIVALENTS

     (144,464     (41,169     214,637   

CASH AND CASH EQUIVALENTS:

      

Beginning of year

     217,103        258,272        43,635   
                        

End of year

   $ 72,639      $ 217,103      $ 258,272   
                        

SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:

      

Cash paid during the year for -

      

Interest

   $ 55,120      $ 79,493      $ 105,813   

Federal and state income taxes

   $ 27      $ 2,884      $ 6,512   

Noncash investing activities -

      

Loans held for investment foreclosed and transferred to other real estate owned

   $ 182,730      $ 130,290      $ 27,444   

Loans originated to finance the sales of other real estate owned

   $ 8,846      $ 10,942      $ 1,059   

Loans transferred from held for investment to held for sale

   $ 16,381      $      $ 65,337   

GNMA loans recognized with the right to repurchase

   $ 2,580      $ 8,056      $ 3,540   

See accompanying notes to consolidated financial statements.

 

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HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements

NOTE 1 — SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:

HomeStreet, Inc. and its wholly owned subsidiaries (the “Company”) is a diversified financial services company that serves consumers and businesses in the Pacific Northwest and Hawaii. The Company is principally engaged in real estate lending, including mortgage banking activities and retail and business banking operations. The consolidated financial statements include the accounts of HomeStreet, Inc. and its wholly owned subsidiaries, HomeStreet Capital Corporation and HomeStreet Bank (the “Bank”), and the Bank’s subsidiaries, HomeStreet/WMS, Inc., HomeStreet Reinsurance, Ltd., Continental Escrow Company, and Union Street Holdings LLC including HS Cascadia LLC, a subsidiary of Union Street Holdings LLC. HomeStreet Bank was formed in 1986 and is a state-chartered savings bank.

HomeStreet Capital Corporation was formed in 2000 to service the multifamily loans sold through the Fannie Mae DUS program.

HomeStreet/WMS, Inc. (Windermere Mortgage Services, Inc.), a wholly owned subsidiary of the Bank, is a 50-percent partner with Windermere Real Estate, owners in the partnership of Windermere Mortgage Services Series LLC. Within Windermere Mortgage Services Series LLC are 31 individual operating Series, each providing point-of-sale loan origination services. As of December 31, 2010, these services were provided in 46 Windermere Real Estate brokerage offices in Washington and Oregon.

HomeStreet Reinsurance, Ltd. was formed in 2000 and is a limited-purpose reinsurance company. It is incorporated in the Turks and Caicos Islands and reinsures private mortgage insurance solely with respect to mortgage loans originated by the Bank and its affiliates.

Union Street Holdings, LLC was formed in 2009 to acquire, manage, and sell parcels of other real estate owned. HS Cascadia LLC was formed to acquire through foreclosure a master planned community development in Pierce County, Washington.

The Company’s accounting and financial reporting policies conform to accounting principles generally accepted in the United States of America (GAAP). Inter-company balances and transactions have been eliminated in consolidation. In preparing the consolidated financial statements, the Company is required to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues, and expenses. Management has made significant estimates in several areas, including the allowance for loan losses (Note 5, Loans and Credit Quality ), valuation of residential mortgage servicing rights (Note 12, Mortgage Banking Activities ), and certain financial instruments such as loans held for sale (Note 5, Loans and Credit Quality ), investment securities (Note 4, Investment Securities Available for Sale ), derivatives (Note 11, Derivatives ), other real estate owned (Note 6, Other Real Estate Owned ), and taxes (Note 14, Income Taxes ). Actual results could differ from those estimates. The current economic environment has increased the degree of uncertainty inherent in these significant estimates. Certain amounts in the financial statements from prior years have been reclassified to conform to the current financial statement presentation.

Accounting Standards Adopted in 2010

Effective January 1, 2010, the Company adopted Accounting Standards Update (ASU) 2009-16 Accounting for Transfers of Financial Assets (Statement of Financial Accounting Standards (FAS) 166, Accounting for Transfers of Financial Assets — an amendment of Financial Accounting Standards Board (FASB) Statement No. 140) , which amends certain guidance contained in Accounting Standards Codification (ASC) 860, Transfers and Servicing . ASU 2009-16 eliminates the concept of qualifying special purpose entities (“QSPEs”) and provides additional criteria transferors must use to evaluate transfers of financial assets. The adoption of ASU 2009-16 did not have a material impact on the Company’s consolidated financial statements.

 

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Notes to Consolidated Financial Statements — (Continued)

 

Effective January 1, 2010, the Company adopted ASU 2009-17, Improvements to Financial Reporting by Enterprises Involved with Variable Interest Entities (FAS 167, Amendments to FASB Interpretation No. 46(R)) , which amends several key consolidation provisions related to variable interest entities (“VIEs”) included in ASC 810, Consolidation . ASU 2009-17 changes the approach companies must use to identify VIEs for which they are deemed to be the primary beneficiary and are required to consolidate. Under the new guidance, a VIE’s primary beneficiary is the entity that has the power to direct the activities of the VIE that most significantly impact the VIE’s economic performance and has an obligation to absorb losses or the right to receive benefits that could be potentially significant to the VIE. In addition, companies are required to continually reassess whether they are the primary beneficiary of a VIE, whereas the previous rules only required reconsideration upon the occurrence of certain triggering events. The adoption of ASU 2009-17 did not have a material impact on the Company’s consolidated financial statements.

Effective January 1, 2010, the Company adopted ASU 2010-6, Improving Disclosures about Fair Value Measurements , which amends the disclosure requirements for fair value measurements. Companies are required to disclose significant transfers in and out of Levels 1 and 2 of fair value hierarchy, whereas the previous rules only required the disclosure of transfers in and out of Level 3. In the rollforward of Level 3 activity, companies must present information on purchases, sales, issuances, and settlements on a gross basis rather than on a net basis. ASU 2010-6 also clarifies that fair value measurement disclosures should be presented for each class of assets and liabilities. A class is typically a subset of a line item in the statement of financial condition. Companies should also provide information about the valuation techniques and inputs used to measure fair value for recurring and nonrecurring instruments classified as either Level 2 or Level 3. The adoption of ASU 2010-6 had no impact on the Company’s consolidated financial statements since it amends only the disclosure requirements.

Effective for the year ended December 31, 2010, the Company adopted ASU 2010-20, Disclosures about the Credit Quality of Financing Receivables and the Allowance for Credit Losses , which provides disclosures that facilitate financial statement users’ evaluation of (1) the nature of credit risk inherent in the Company’s portfolio of financing receivables; (2) how that risk is analyzed and assessed in arriving at the allowance for credit losses; and (3) the changes and reasons for those changes in the allowance for credit losses. ASU 2010-20 presents disclosure on a disaggregated basis and defines two levels of disaggregation — portfolio and class of financing receivable. A portfolio segment is defined as the level at which an entity develops and documents a systematic method for determining its allowance for credit losses. Classes of financing receivables generally are a disaggregation of a portfolio. See Note 5, Loans and Credit Quality .

Accounting Changes in 2010

Effective January 1, 2010, the Company elected to measure and carry mortgage servicing rights (“MSRs”) related to single family loans at fair value. Under this election, purchased single family MSRs and MSRs resulting from the sale or securitization of single family loans are capitalized and carried at fair value. Prior to this election, purchased single family MSRs were capitalized at cost, and MSRs resulting from the sale or securitization of single family loans were initially measured at fair value at the date of transfer and subsequently carried at the lower of amortized cost or fair value. Upon the remeasurement of MSRs related to single family loans at fair value on January 1, 2010, the Company recorded a cumulative effect adjustment to increase the 2010 beginning balance of retained earnings by $6.5 million in shareholders’ equity. MSRs resulting from the sale of multifamily loans continue to be initially measured at fair value at the date of transfer and subsequently measured at the lower of amortized cost or fair value.

Effective January 1, 2010, the Company elected to carry single family residential mortgage loans held for sale using the fair value option. Under the fair value option, single family residential mortgage loans held for sale

 

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Notes to Consolidated Financial Statements — (Continued)

 

will be stated at fair value, and any changes in fair value will be recognized in current earnings. Prior to this election, single family residential mortgage loans held for sale were stated at the lower of amortized cost or fair value. At December 31, 2009, single family residential mortgage loans held for sale were stated at fair value, thus there was no impact to the 2010 beginning balance of retained earnings.

Cash and Cash Equivalents

Cash and cash equivalents include cash, interest-earning overnight deposits, and other investments with original maturities equal to three months or less. For the consolidated statements of cash flows, the Company considered cash equivalents to be investments that are readily convertible to known amounts, so near to their maturity that they present an insignificant risk of change in fair value due to change in interest rates, and purchased in conjunction with cash management activities. Restricted cash of $3.9 million and $3.7 million as of December 31, 2010 and 2009, respectively, is included in accounts receivable and other assets for reinsurance-related reserves.

Investment Securities

The Company’s investment securities are classified as available for sale and are reported at fair value. Fair value measurement is based upon quoted market prices in active markets, if available. If quoted prices in active markets are not available, fair values are measured using pricing models or other model-based valuation techniques such as the present value of future cash flows, adjusted for prepayment assumptions and other factors such as credit losses and market liquidity. Unrealized gains and losses are excluded from earnings and reported, net of tax, in other comprehensive income. Purchase premiums and discounts are recognized in interest income using the effective interest method over the terms of the securities. Purchase premiums or discounts related to mortgage-backed securities are amortized or accreted using projected prepayment speeds.

Declines in the fair value of securities below their cost that are deemed to be other-than-temporarily impaired (“OTTI”) are reflected in earnings as realized losses. Impairment may result from credit deterioration of the issuer or collateral underlying the security. In performing an assessment of recoverability, all relevant information is considered, including the length of time and extent to which fair value has been less than the amortized cost basis, the cause of the price decline, credit performance of the issuer and underlying collateral, and recoveries or further declines in fair value subsequent to the balance sheet date. The Company measures and recognizes OTTI through earnings as realized losses if (1) the Company has the intent to sell the security, (2) it is more likely than not that the Company will be required to sell the security before recovery of its amortized cost basis, or (3) the Company does not expect to recover the entire amortized cost basis of the security. Only the credit portion is recognized in earnings if the above criteria are not met and the impairment related to other factors is recognized in other comprehensive income, net of taxes.

The securities portfolio is an integral part of the asset/liability management process. These investments are managed to provide liquidity, mitigate interest rate risk, and maximize portfolio yields within capital risk limits approved by management through the Asset/Liability Management Committee and the Board of Directors. Gains and losses on the sale of securities are recorded on the trade date and are determined using the specific identification method. See Note 4, Investment Securities Available for Sale .

Loans Held for Sale

As of January 1, 2010, management elected to account for single family residential loans held for sale at fair value under the fair value option. In prior periods all loans held for sale were accounted for at the lower of amortized cost or fair value. The fair value of loans designated as held for sale is generally based on observable

 

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HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

market prices from other loans that have similar collateral, credit, and interest rate characteristics. If market prices are not readily available, fair value is based on a discounted cash flow model. Consistent with the provisions for measuring the fair value of a derivative loan commitment, the expected net future cash flows related to the associated servicing of the loan is included in such fair value measurement and determined in the same manner that the recognized servicing assets is measured at the date of sale. Thus the income statement impact of such loan sales are recorded prior to the date of the ultimate sale of the loan. Multifamily loans held for sale are accounted for at the lower of amortized cost or fair value. Gain and losses from changes in fair value and on loan sales are recognized in noninterest income. See Note 5, Loans and Credit Quality .

Loans Held for Investment

Loans that management has the intent and ability to hold for the foreseeable future or until maturity or pay-off generally are stated at the principal amount outstanding, adjusted for charge-offs and any related net deferred origination fees and costs. These deferred fees and costs are amortized over the contractual terms of the underlying loans and commitments using the constant effective yield (the interest method), adjusted for actual loan prepayment experience, or the straight-line method, as applicable. A determination is made as of the loan commitment date as to whether a loan will be held for sale or held for investment. This determination is based primarily on the type of loan or loan program and its related profitability characteristics. See Note 5, Loans and Credit Quality .

When a determination is made at the time of commitment to originate loans as held for investment, the intent is to hold these loans for the foreseeable future or until maturity or pay-off. If subsequent changes occur, the Company may change its intent to hold these loans to reposition the balance sheet. Once a determination has been made to sell such loans, they are immediately transferred to loans held for sale and recorded and carried at fair value.

From time to time, the Company will originate loans to facilitate the sale of other real estate owned without a sufficient down payment from the borrower. Such loans are accounted for using the installment method and any gain on sale is deferred.

Interest on loans is accrued on a monthly basis as earned.

Credit Quality

Credit quality within the loans held for investment portfolio is continuously monitored and is reflected within the allowance for loan losses. The allowance for loan losses is maintained at a level that, in management’s judgment, is appropriate to cover loan losses inherent in the loan portfolio. The allowance for loan losses is increased by a provision for loan losses and reduced by charge-offs, net of recoveries. The amount of the allowance is based on management’s evaluation of the collectability of the loan portfolio, historical loss experience, and other significant qualitative factors affecting the loan portfolio’s collectability. These other significant factors include the level and trends of delinquent, nonaccrual, and adversely classified loans; variability in collateral valuation; local economic trends and conditions such as trends in regional unemployment; levels and trends in current portfolio interest rates relative to current market pricing and the ability of the customer to continue to make payments in changing interest rate environments; other external factors including the time periods during which loans were originated; and changes in the experience, ability, and depth of lending management. See Note 5, Loans and Credit Quality .

Loans are placed on nonaccrual status when the full and timely collection of interest and principal is doubtful, generally when the loan becomes 90 days or more past due for interest or principal payment or if part of the principal balance has been charged off and no restructuring has occurred.

 

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Notes to Consolidated Financial Statements — (Continued)

 

Situations where, for economic or legal reasons related to the borrower’s financial difficulties, a concession is granted for other than an insignificant period of time (generally more than three months) to the borrower that would not otherwise be considered, the related loan is classified as a troubled debt restructuring (“TDR”). Generally, TDRs are considered to be impaired and are measured for impairment consistent with other impaired loans.

Loans Sold with Recourse

The Company retains partial recourse on multifamily loans it sells through the Fannie Mae DUS program. The Company also originates single family residential rehabilitation loans, some of which have a recourse liability during the rehabilitation period, typically one year. When loans are sold with recourse, a liability is recorded based on the estimated recourse obligation.

Mortgage Servicing Rights

MSRs are recorded as separate assets through the purchase of the rights or upon the sale of mortgage loans with servicing rights retained. Net gains on mortgage origination/sales activities depends, in part, on the fair value of servicing rights retained at the date of sale, as their value is considered a component of the proceeds from the sale. Originated mortgage servicing rights are recorded based on quoted market prices, other observable market data, or a discounted cash flow model depending on the availability of market information.

On January 1, 2007, the Company adopted ASC 860, Transfers and Servicing (ASC 860). ASC 860 requires that an MSR resulting from the sale or securitization of loans initially be measured at fair value at the date of transfer and permits an election between fair value or the lower of amortized cost or fair value for subsequent measurement. As of January 1, 2010, management elected to account for single family mortgage servicing rights at fair value, with subsequent changes in fair value recorded through current period earnings. Fair value adjustments encompass market-driven valuation changes as well as run-off of value that occurs due to the passage of time. The Company will continue to account for multifamily residential servicing rights at the lower of amortized cost or fair value.

Subsequent fair value measurements of single family mortgage servicing rights are determined by using the results of a valuation model that calculates the present value of estimated future net servicing income, as MSRs are not traded in an active market with readily observable market prices. The discounted cash flow model leverages several significant assumptions such as market interest rates, projected prepayment speeds, discount rates, estimated costs of servicing, other income, and credit losses. In addition, third-party valuations and independent fair value estimates of the mortgage servicing asset portfolio are obtained at least annually to validate and calibrate the valuation model. See Note 12, Mortgage Banking Operations .

Other Real Estate Owned

Other real estate owned represents real estate acquired through the foreclosure of mortgage loans. These properties are initially recorded at the fair value of the property foreclosed less estimated costs of disposal. Upon transfer of a loan to other real estate owned, an appraisal is obtained and any excess of the loan balance over the fair value of the property, less estimated costs of disposal, is charged against the allowance for loan losses. Subsequent declines in value after transfer to OREO identified from the ongoing analysis of the fair value of such properties are recognized against income as a provision for losses on other real estate owned. See Note 6, Other Real Estate Owned .

 

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HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

Premises and Equipment

Furniture and fixtures and leasehold improvements are stated at cost less accumulated depreciation or amortization. Furniture and fixtures and leasehold improvements are depreciated or amortized over the shorter of the useful life of the related asset or the term of the lease, generally 3 to 15 years, using the straight-line method. Management periodically evaluates furniture and fixtures and leasehold improvements for impairment. See Note 7, Premises and Equipment .

Accounting for Windermere Mortgage Services, Inc.

Windermere Mortgage Services, Inc., a Washington corporation and wholly owned and consolidated subsidiary of HomeStreet Bank, is a 50% partner with Windermere Real Estate, owners in partnership of Windermere Mortgage Services, LLC (WMS). The operations of WMS, and its affiliated Series, are recorded using the equity method of accounting.

The Company recognizes its proportionate share of the results of operations of this equity-method investment in the results of operations, based on the most current financial information available. The Company has determined that WMS, and its affiliated Series, are not variable interest entities (“VIE”) and further does not consolidate these entities under the voting interest model. The investment is reviewed for possible other-than-temporary impairment no less than quarterly, or more frequently if warranted. The review typically includes an analysis of facts and circumstances of the investment and the expectations of the investment’s future cash flows. The Company has not recorded other-than-temporary impairment on this investment.

Equity income from WMS was $1.8 million, $3.6 million, and $2.2 million for the years ended December 31, 2010, 2009, and 2008, respectively. The Company’s investment in WMS was $3.7 million and $3.3 million, which is included in accounts receivable and other assets at December 31, 2010 and 2009, respectively.

The Company provides contracted services to WMS related to accounting, loan shipping, loan underwriting, quality control, secondary marketing, and information systems activities performed by Company employees on behalf of WMS. The Company recorded contracted services income of $345,000, $1.1 million, and $270,000 for the years ended December 31, 2010, 2009, and 2008, respectively. Income related to WMS, including equity income and contracted services, is classified as income from Windermere Mortgage Services, Inc. in noninterest income within the consolidated statements of operations. WMS has a $22.0 million secured line of credit with the Company that allows WMS to fund and close single family mortgage loans in the name of WMS. The outstanding balance of the secured line of credit was $6.5 million and $1.2 million at December 31, 2010, and 2009, respectively. The highest outstanding balance of the secured line of credit was $16.9 million and $15.9 million during 2010 and 2009, respectively. The line of credit matures May 1, 2011.

Income Taxes

Income taxes are accounted for using the asset and liability method, which requires the recognition of deferred tax assets and liabilities for the expected future tax consequences of events that have been included in the financial statements. Under this method, a deferred tax asset or liability is determined based on the differences between the financial statements and tax basis of assets and liabilities using enacted tax rates in effect for the year in which the differences are expected to reverse. The effect of a change in tax rates on deferred tax assets and liabilities is recognized in income in the period that includes the enactment date.

The Company records net deferred-tax assets to the extent it is believed that these assets will more likely than not be realized. In making such determination, the Company considers all available positive and negative

 

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Notes to Consolidated Financial Statements — (Continued)

 

evidence, including future reversals of existing taxable temporary differences, projected future taxable income, tax planning strategies, and recent financial operations. After reviewing and weighing all of the positive and negative evidence, if the positive evidence outweighs the negative evidence, then the Company does not record a valuation allowance for deferred-tax assets. If the negative evidence outweighs the positive evidence, then a valuation allowance for all or a portion of the deferred-tax assets is recorded.

The Company recognizes interest and penalties related to unrecognized tax benefits as income tax expense in the consolidated statements of operations. Accrued interest and penalties are included within the related tax liability line in the consolidated statements of financial condition. See Note 14, Income Taxes .

Derivatives and Hedging Activities

In order to reduce the risk of significant interest rate fluctuations on the value of certain assets and liabilities, such as certain mortgage loans held for sale and investment, mortgage servicing rights, and brokered and retail certificates of deposits, the Company utilizes derivatives, such as forward sale commitments, futures, option contracts, and interest rate swaps as a hedge. Derivatives are recorded at fair value on the balance sheet. Before initiating the hedge, the Company formally documents the relationship between the hedging instruments and the hedged items, as well as its risk management objective and strategy. On the date the Company enters into a derivative contract, the Company designates or identifies the derivative as (1) a hedge of the fair value of a recognized asset or liability (fair value hedge); (2) a hedge of a forecasted transaction or of the variability of cash flows to be received or paid related to a recognized asset or liability (cash flow hedge); or (3) held for customer accommodation or asset/liability risk management purposes, including economic hedges not qualifying for hedge accounting. See Note 11, Derivatives .

Derivatives in which the Company has not attempted to achieve or attempted but did not achieve the highly effective hedge accounting relationship, but are used for risk management purposes, are referred to as economic hedges. The changes in fair value of these instruments are recognized immediately in earnings.

In a fair value hedge, changes in the fair value of the derivative and, to the extent that it is effective, changes in the fair value of the hedged asset or liability attributable to the hedged risk are recorded through current period earnings in the same financial statement category as the hedged item.

In a cash flow hedge, the effective portion of the change in the fair value of the hedging derivative is recorded in accumulated other comprehensive income and is subsequently reclassified into earnings during the same period in which the hedged item affects earnings. The ineffective portion is recognized immediately in noninterest income — other.

The Company discontinues hedge accounting when (1) it determines that the derivative is no longer expected to be highly effective in offsetting changes in fair value or cash flows of the designated item; (2) the derivative expires or is sold, terminated, or exercised; (3) the derivative is de-designated from the hedge relationship; or (4) it is no longer probable that a hedged forecasted transaction will occur by the end of the originally specified time period.

If the Company determines that the derivative no longer qualifies as a fair value or cash flow hedge and therefore hedge accounting is discontinued, the derivative (if retained) will continue to be recorded on the balance sheet at its fair value with changes in fair value included in current earnings. For a discontinued fair value hedge, the previously hedged item is no longer adjusted for changes in fair value.

When the Company discontinues hedge accounting because it is not probable that a forecasted transaction will occur, the derivative will continue to be recorded on the balance sheet at its fair value with changes in fair

 

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Notes to Consolidated Financial Statements — (Continued)

 

value included in current earnings, and the gains and losses in accumulated other comprehensive income will be recognized immediately in earnings. When the Company discontinues hedge accounting because the hedging instrument is sold, terminated, or de-designated as a hedge, the amount reported in accumulated other comprehensive income through the date of sale, termination, or de-designation will continue to be reported in accumulated other comprehensive income until the forecasted transaction affects earnings.

Interest rate lock commitments whose loans arise due to the exercising of the loan commitment, and will be held for sale upon funding of the loan, are considered derivative instruments. Management expects the forward sales commitments used to hedge these interest rate lock commitments will experience changes in fair value opposite of the changes in the fair value of the loan commitments thereby reducing earnings volatility related to the recognition in earnings of changes in the values of the loan commitments. A forward loan sale commitment protects the Company from losses on sales of loans arising from the exercise of the loan commitments by securing the ultimate sales price and delivery date of the loan. The Company takes into account various factors and strategies in determining the portion of the mortgage pipeline (derivative loan contracts) it wants to hedge economically. Unrealized and realized gains and losses on derivative contracts utilized for economically hedging the sale of mortgage loans are recognized as part of the net gains on mortgage loan origination/sales activities within noninterest income.

The Company is exposed to credit risk if counterparties to derivative contracts do not perform as expected. This risk consists primarily of the termination value of agreements where the Company is in a favorable position. The Company minimizes counterparty credit risk through credit approvals, limits, monitoring procedures, and obtaining collateral, as appropriate.

Securities Sold Under Agreements to Repurchase

The Company enters into sales of securities under agreements to repurchase the same securities (“repurchase agreements”). Repurchase agreements are accounted for as financing arrangements with the obligation to repurchase securities sold reflected as a liability in the consolidated statements of financial condition. The dollar amount of securities underlying the agreements remains in investment securities available for sale.

Stock-Based Employee Compensation

The Company has stock-based employee compensation plans as more fully discussed in Note 16, Stock-Based Compensation Plan s. Under accounting guidance for stock compensation, compensation cost recognized includes cost for share-based awards, such as nonqualified stock options, which are recognized as compensation cost over the requisite service period (generally the vesting period).

Fair Value Measurements

The term “fair value” is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. A fair value measurement assumes that the transaction to sell the asset or transfer the liability occurs in the principal market for the asset or liability or, in the absence of a principal market, the most advantageous market for the asset or liability. The Company’s approach is to maximize the use of observable inputs and minimize the use of unobservable inputs when developing fair value measurements. The degree of management judgment involved in estimating the fair value of a financial instrument or other asset is dependent upon the availability of quoted market prices or observable market value inputs for internal valuation models, used for estimating fair value. For financial instruments that are actively traded in the marketplace or whose values are based on readily available market value data, little judgment is necessary when estimating the instrument’s fair value. When observable market

 

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prices and data are not readily available, significant management judgment often is necessary to estimate fair value. In those cases, different assumptions could result in significant changes in valuation. See Note 17, Fair Value Accounting and Measurement .

Earnings per Share

Earnings per share (“EPS”) are presented in two formats: basic EPS and diluted EPS. Basic EPS is determined using net income divided by the weighted average common shares outstanding during the period. Diluted EPS is computed by dividing net income available to common shareholders by the weighted average common shares outstanding, plus the effect of common stock equivalents (for example, stock options). Weighted average common shares outstanding include shares held by the Company’s 401(k) Savings and Employee Stock Ownership Plan.

Operating Segments

There are four lines of business for the purposes of segment reporting: Single Family Lending, Income Property Lending, Residential Construction Lending, and Community Banking. The results for these lines of business are based on management’s accounting process, which assigns income statement items to each responsible operating segment. Operating segments are defined by product type and customer segment. If the management structure and/or the allocation process changes, allocations, transfers, and assignments may change. See Note 19, Operating Segments .

Subsequent Events

The Company has evaluated the effects of events that have occurred subsequent to the year ended December 31, 2010 and has included all material events that would require recognition in the 2010 consolidated financial statements or disclosure in the Notes to the consolidated financial statements.

NOTE 2 — SIGNIFICANT RISKS AND UNCERTAINTIES:

Adverse Economic Conditions

The Company’s operating results depend largely on the economic conditions in the areas in which it operates (primarily the Pacific Northwest and Hawaii). During 2008, 2009, and 2010 deterioration in economic conditions in these market areas, including decreasing real estate values and sales and increasing unemployment and commercial real estate vacancy rates, had and may continue to have an adverse impact on the quality of the Bank’s loan portfolio and operations. Between December 31, 2008 and 2010, these conditions have caused deterioration in the quality of the Bank’s loan portfolio, including an increase in nonperforming assets and foreclosures and a decline in the value of the underlying collateral for the Bank’s loans. If economic conditions that negatively affect housing prices and demand, the job market, and the demand for other goods and services continue, the Bank may experience further deterioration of the credit quality within the loan portfolio. Such deterioration in credit quality could have a further negative impact on the business.

To date, the most significant impacts have been realized in the construction loan portfolio. For the years ended December 31, 2010 and 2009, $71.0 million and $82.4 million, respectively of construction/land development loans were charged off. This represents approximately 83 percent and 81 percent of the total charge offs during 2010 and 2009, respectively. The deterioration in the Bank’s loan portfolio is also evidenced by the level of adversely classified assets (loans rated substandard, doubtful or loss, and other real estate owned). At December 31, 2010 and 2009, adversely classified assets were $363.9 million and $570.0 million, respectively. This represents 15 percent and 18 percent of total assets at December 31, 2010 and 2009, respectively.

 

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Regulatory Matters

On May 18, 2009, HomeStreet, Inc. (the “Holding Company”) entered into a Stipulation and Consent to the Issuance of an Order to Cease and Desist (the “OTS Order”) with the Office of Thrift Supervision (the “OTS”). The OTS Order most significantly provides that the Holding Company shall not pay dividends and shall not incur, issue, renew, repurchase, make payments on (including interest), or rollover any debt, increase any current lines of credit, or guarantee the debt of any entity without prior approval of the OTS.

The OTS Order will remain in effect until terminated, modified, or suspended, by written notice of such action by the OTS. The OTS Order, however, does not prohibit the Holding Company from transacting its normal business.

On May 8, 2009, the Bank entered into a Stipulation and Consent to the Issuance of an Order to Cease and Desist (the “Bank Order”) with the Federal Deposit Insurance Corporation (the “FDIC”) and the Washington Department of Financial Institutions (the “DFI”) (collectively, the “Regulators”). The principal elements of the Bank Order provided that the Bank: achieve and thereafter maintain a Tier I capital ratio of ten percent (10%) and a risk-based capital ratio of twelve percent (12%); not pay dividends; develop a plan to reduce the level of noncore funding dependence to not more than twenty percent (20%); not solicit, retain, or rollover brokered deposits; maintain a minimum primary liquidity ratio of at least fifteen percent (15%); comply with deposit rate restrictions; implement a credit administration function appropriate to the size and challenges facing the Bank; formulate a plan to reduce the aggregate balance of adversely classified loans and other real estate held by the Bank at December 31, 2008, to a specific percentage of regulatory capital (classified asset reduction plan); and develop a plan to reduce the amount of commercial real estate, and land acquisition and development and construction loans. Additionally, the Bank Order requires, among other things, that the Board of Directors and management enhance their oversight of the Bank and certain credit administration functions, revise lending and concentration policies, develop a three-year strategic and profit plan, and enhance the Bank’s interest rate risk monitoring and management practices.

The Bank Order will remain in effect until modified or terminated by the Regulators. The Bank Order does not, however, restrict the Bank from transacting its normal banking business. The Bank has and will continue to serve clients in all areas including making loans, except those restricted by the Bank Order, establishing lines of credit, accepting deposits, and processing banking transactions. All client deposits remain fully insured to the limits set by the FDIC.

The Company has been actively engaged in responding to the concerns raised by the OTS, FDIC, and DFI and believes the Holding Company is generally in compliance with the OTS Order. However, the Bank was not in compliance with the Bank Order at December 31, 2010, in two respects. The first is the requirement to achieve and thereafter maintain a Tier I capital ratio of at least ten percent (10%) and a risk-based capital ratio of at least twelve percent (12%). Second, while the Bank met the terms of the Bank Order by submitting a plan for the reduction of adversely classified loans on the Bank’s books as of December 31, 2009, it did not meet the Order’s requirement to fully comply with the plan. The plan contained a target reduction of the specified adversely classified assets to 40 percent of Risk Based Capital (RBC) by February 28, 2010, which was not achieved.

While the Bank has complied with the additional requirement of the Order to develop a plan for the reduction of its commercial real estate and land acquisition and development and construction loans, it did not achieve its internally established targets of 355 percent of RBC and 178 percent of RBC respectively as of December 31, 2010.

 

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Absent the successful implementation of the plans outlined above, management believes that the Bank will continue to be out of compliance with the Bank Order to raise capital and implement its adversely classified asset reduction plan.

Capital Levels

As a unitary savings and loan holding company, the Holding Company is not subject to regulatory capital requirements. However, the Bank is subject to various regulatory capital requirements administered by the federal banking agencies. Under the regulatory guidelines (See Note 3, Regulatory Capital Requirements ), the Bank was “adequately capitalized” at December 31, 2010 and 2009. As indicated above, however, the Bank was not in compliance with the Bank Order, which required it to meet the elevated regulatory capital requirements by October 5, 2009. Following is a summary of the Bank’s regulatory capital position:

 

(in thousands)    Actual     Bank Order Compliance  
       Amount          Ratio         Amount          Ratio    

As of December 31, 2010:

          

Total risk-based capital (to Risk Weighted Assets)

   $ 138,924         8.2   $ 204,232         12.0

Tier 1 risk-based capital (to Risk Weighted Assets)

     117,115         6.9     n/a         n/a   

Tier 1 leverage capital (to Average Assets)

     117,115         4.5     259,019         10.0

As of December 31, 2009:

          

Total risk-based capital (to Risk Weighted Assets)

   $ 170,364         8.5   $ 240,620         12.0

Tier 1 risk-based capital (to Risk Weighted Assets)

     144,245         7.2     n/a         n/a   

Tier 1 leverage capital (to Average Assets)

     144,245         4.5     318,711         10.0

In addition, as a result of the Bank’s regulatory capital position, the Bank’s borrowing terms from the Federal Reserve Bank and Federal Home Loan Bank have become more restrictive, and the Bank’s premiums payable to the Deposit Insurance Fund have increased.

Going Concern Considerations and Management’s Plans

In order to achieve compliance with the elevated capital ratio requirements of the Bank Order, the Bank will need to either raise capital, reduce assets through sale or otherwise deleverage, or both. The Company has engaged financial advisers to assist in its efforts to raise additional capital to address the capital deficiency. The Company’s ability to accomplish these goals is significantly constrained by the current economic environment, in which access to capital markets is extremely limited, and therefore the Company can give no assurances that it will be able to access any such capital or reduce assets. The ability of the Bank to decrease its levels of nonperforming assets is also dependent on market conditions as many of its borrowers rely on an active real estate market as a source of repayment, particularly the land acquisition and construction loan borrowers, and the sale of properties in this market at an acceptable price is difficult. If the real estate market does not improve or declines further, the level of nonperforming assets may increase.

Additionally, the Regulators are continually monitoring the Bank’s financial condition. Based on the Regulators’ assessment of the Bank’s ability to operate in compliance with the Bank Order, the Regulators may take other and further actions, including the assessment of civil money penalties against the Bank or the Company and their respective officers, directors, and other interested parties or they may seek to enforce the Bank Order in federal court. If the Bank

 

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or the Company were to engage in other unsafe and unsound banking practices, the Regulators have various enforcement tools available to them including the issuance of capital directives, orders to cease engaging in certain business activities, and the issuance of modified or additional orders or agreements. If a severe liquidity crisis were to occur (e.g., the Bank were unable to pay its liabilities when due) or a significant further deterioration in the Bank’s or the Company’s capital levels were experienced, the Regulators could seek to terminate deposit insurance or revoke the charter and upon such event, the FDIC would place the Bank in receivership. Accordingly, there exists substantial doubt about the Company’s ability to continue as a going concern.

Management continues to work on initiatives to address returning the Company and the Bank to a safe and sound condition. Initiatives include improving asset quality, improving net interest margin, growing noninterest income, and reducing noninterest expense.

The consolidated financial statements have been prepared on a going-concern basis, which contemplates the realization of assets and the discharge of liabilities in the normal course of business for the foreseeable future and does not include any adjustments to reflect the possible future effects on the recoverability and classification of assets or the amounts and classification of liabilities or any other adjustments that might be necessary should the Company be unable to continue as a going concern.

NOTE 3 — REGULATORY CAPITAL REQUIREMENTS:

HomeStreet, Inc., as a unitary savings and loan holding company, is not subject to regulatory capital requirements. However, the Bank is subject to various regulatory capital requirements administered by the federal banking agencies. Failure to meet minimum capital requirements could initiate certain mandatory and possibly additional discretionary actions by the Regulators that, if undertaken, could have a direct material effect on the Bank’s financial statements. Under capital adequacy guidelines and the regulatory framework for prompt corrective action, the Bank must meet specific capital guidelines that involve quantitative measures of the Bank’s assets, liabilities, and certain off-balance sheet items as calculated under regulatory accounting practices. The Bank’s capital amounts and classification are also subject to qualitative judgments by the Regulators about components, risk weightings, and other factors.

Quantitative measures established by regulation to ensure capital adequacy require the Bank to maintain minimum amounts and ratios of total and Tier I capital (as defined in the regulations) to risk-weighted assets (as defined in the regulations) and of Tier I capital to average assets (as defined in the regulations). The Regulators also have the ability to impose elevated capital requirements in certain circumstances (see Note 2 , Significant Risks and Uncertainties for capital levels imposed by Bank Order).

 

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The Bank’s actual capital amounts and ratios are included in the following table:

 

(in thousands)    Actual     For Minimum
Capital Adequacy
Purposes
    To Be Categorized As
“Well Capitalized”
Under Prompt
Corrective Action
Provisions
 
       Amount      Ratio     Amount      Ratio     Amount      Ratio  

As of December 31, 2010:

               

Total risk-based capital
(to risk-weighted assets)

   $ 138,924         8.2   $ 136,154         8.0   $ 170,193         10.0

Tier I risk-based capital
(to risk-weighted assets)

     117,115         6.9     68,077         4.0     102,116         6.0

Tier I leverage capital
(to average assets)

     117,115         4.5     103,608         4.0     129,509         5.0

As of December 31, 2009:

               

Total risk-based capital
(to risk-weighted assets)

   $ 170,364         8.5   $ 160,413         8.0   $ 200,517         10.0

Tier I risk-based capital
(to risk-weighted assets)

     144,245         7.2     80,207         4.0     120,310         6.0

Tier I leverage capital
(to average assets)

     144,245         4.5     127,484         4.0     159,356         5.0

At periodic intervals, the FDIC and the State of Washington Department of Financial Institutions routinely examine the Bank’s financial statements as part of their legally prescribed oversight of the banking industry. Based on their examinations, these regulators can direct that the Bank’s financial statements be adjusted in accordance with their findings.

NOTE 4 — INVESTMENT SECURITIES AVAILABLE FOR SALE:

The amortized cost and estimated fair value of investment securities available for sale at December 31, 2010 and 2009, are summarized as follows:

 

(in thousands)    Amortized
Cost
     Gross
Unrealized
Gains
     Gross
Unrealized
Losses
    Estimated
Fair Value
 

December 31, 2010:

          

Mortgage-backed securities

   $ 4,434       $ 263       $      $ 4,697   

Municipal bonds

     6,648         91         (190     6,549   

Collateralized mortgage obligations

     229,412         294         (7,785     221,921   

US Treasury Securities

     80,384         3         (41     80,346   
                                  
   $ 320,878       $ 651       $ (8,016   $ 313,513   
                                  

December 31, 2009:

          

Mortgage-backed securities

   $ 6,014       $ 188       $      $ 6,202   

Municipal bonds

     8,650         87         (202     8,535   

Collateralized mortgage obligations

     157,971         264         (2,335     155,900   

Corporate Debt Securities

     20,039         157                20,196   

US Treasury Securities

     467,017         336         (346     467,007   
                                  
   $ 659,691       $ 1,032       $ (2,883   $ 657,840   
                                  

 

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Mortgage-backed and collateralized mortgage obligations represent securities issued by Government Sponsored Enterprises backed by residential mortgages.

Investment securities that were in an unrealized loss position at December 31, 2010 and 2009, are presented in the following tables based on the length of time the individual securities have been in an unrealized loss position.

 

     Less than 12 months      12 months or more      Total  
(in thousands)    Gross
unrealized
losses
    Estimated
fair value
     Gross
unrealized
losses
    Estimated
fair value
     Gross
unrealized
losses
    Estimated
fair value
 

December 31, 2010:

              

Municipal bonds

   $ (17   $ 1,474       $ (173   $ 1,571       $ (190   $ 3,045   

Collateralized mortgage obligations

     (7,785     197,372                        (7,785     197,372   

US Treasury Securities

     (41     70,428                        (41     70,428   
                                                  
   $ (7,843   $ 269,274       $ (173   $ 1,571       $ (8,016   $ 270,845   
                                                  

December 31, 2009:

              

Municipal bonds

   $ (18   $ 1,979       $ (184   $ 1,564       $ (202   $ 3,543   

Collateralized mortgage obligations

     (2,335     140,067                        (2,335     140,067   

US Treasury Securities

     (346     218,420                        (346     218,420   
                                                  
   $ (2,699   $ 360,466       $ (184   $ 1,564       $ (2,883   $ 362,030   
                                                  

The Company has evaluated securities that have been in an unrealized loss position and has determined that the decline in value is temporary and is related to the change in market interest rates since purchase. The decline in value is not related to any company- or industry-specific credit event. The Company anticipates full recovery of amortized cost with respect to these securities at maturity or sooner in the event of a more favorable market interest rate environment and does not have the intent to sell these securities, nor is it more likely than not that the Company will be required to sell such securities.

The following table presents the fair value of investment securities available for sale by contractual maturity along with the associated contractual yield at December 31, 2010. Contractual maturities for mortgage-backed securities and collateralized mortgage obligations were determined assuming no prepayments. Remaining expected maturities will differ from contractual maturities as borrowers may have the right to prepay obligations before the underlying mortgages mature. The weighted-average yield is computed using the contractual coupon of each security weighted based on the fair value of each security.

 

      At December 31, 2010  
      Within one year     After one year
Through five
years
    After five years
through ten
years
    After ten years     Total  
(in thousands)   Fair
Value
    Weighted
Average
Yield
    Fair
Value
    Weighted
Average
Yield
    Fair
Value
    Weighted
Average
Yield
    Fair
Value
    Weighted
Average
Yield
    Fair
Value
    Weighted
Average
Yield
 

Available for sale:

                   

Mortgage-backed securities

  $        $        $        $ 4,697        4.51   $ 4,697        4.51

Municipal bonds

    930        3.66     1,271        3.64     503        3.60     3,845        4.12     6,549        3.92

Collateralized mortgage obligations

             1,556        4.77            0.00     220,365        3.16     221,921        3.17

US Treasury Securities

    80,346        0.25                                80,346        0.25
                                                                               

Total available for sale

  $ 81,276        0.29   $ 2,827        4.26   $ 503        3.60   $ 228,907        3.20   $ 313,513        2.46
                                                                               

 

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Sales of investment securities available for sale were as follows:

 

     Years Ended December 31,  
(In thousands)    2010      2009      2008  

Proceeds

   $ 693,497       $ 93,163       $ 93,571   

Gross gains

     6,016         283         1,099   

Gross losses

             52         32   

There were no securities pledged to secure advances from the Federal Home Loan Bank (the “FHLB”) at December 31, 2010. Securities with a fair value of $101.8 million were pledged to secure advances from the FHLB at December 31, 2009.

Tax-exempt interest income on securities available for sale totaling $0.3 million, $0.7 million, and $1.4 million for the years ended December 31, 2010, 2009, and 2008, respectively, were recorded in the Company’s consolidated statements of operations.

NOTE 5 — LOANS AND CREDIT QUALITY:

Loans held for sale and loans held for investment are primarily secured by real estate located in the states of Washington, Oregon, Idaho, and Hawaii.

Loans held for sale consist of the following:

 

     December 31,  
(in thousands)    2010      2009  

Single family residential

   $ 198,784       $ 55,582   

Multifamily residential

     13,818         1,464   
                 
   $ 212,602       $ 57,046   
                 

Loans sold consist of the following:

 

     Year Ended December 31,  
(in thousands)    2010      2009      2008  

Single family residential

   $ 1,875,430       $ 2,547,742       $ 1,450,682   

Multifamily residential

     43,358         49,678         211,610   
                          
   $ 1,918,788       $ 2,597,420       $ 1,662,292   
                          

Loans held for investment consist of the following:

 

     December 31,  
(in thousands)    2010     2009  

Single family residential

   $ 526,462      $ 590,695   

Commercial real estate

     426,879        449,373   

Multifamily residential

     104,497        85,522   

Construction/land development

     285,131        631,525   

Commercial business

     82,959        109,322   

Home equity

     181,537        209,944   
                
     1,607,465        2,076,381   

Less: Allowance for loan losses

     (64,177     (109,472

Net deferred loan fees and discounts

     (4,767     (1,915
                
   $ 1,538,521      $ 1,964,994   
                

 

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The Company categorizes and presents its loans held for investment portfolio by loan class.

Loans totaling $371.0 million and $840.2 million at December 31, 2010 and 2009, respectively, were pledged to secure advances from the FHLB.

It is the Bank’s policy to make loans to officers, directors and their associates in the ordinary course of business on substantially the same terms as those prevailing at the time for comparable transactions with other persons. The following is a summary of activity during the year ended December 31, 2010 with respect to such aggregate loans to these individuals and their associates:

 

     December 31,  
(in thousands)    2010     2009  

Beginning Balance

   $ 6,068      $ 6,465   

New loans

     —          —     

Principal repayments and advances, net

     (77     (130

Reductions related to change in officers

     (51     (267
                

Ending Balance

   $ 5,940      $ 6,068   
                

Credit Administration

Management considers the level of allowance for loan losses to be appropriate to cover credit losses inherent within the loans held for investment portfolio as of December 31, 2010. The degree of credit risk will vary based on many factors including the size of the loan, the contractual terms of the agreement, the credit characteristics of the borrower, the features of loan products, the existence and strength of guarantor support, and the availability, quality, and adequacy of any underlying collateral. The degree of credit risk and level of credit losses is highly dependent on the economic environment that unfolds subsequent to originating or acquiring assets. The extent of asset diversification and concentration also affect total credit risk. Credit risk is assessed through analyzing these and other factors.

The credit risk management process is governed centrally. The overall credit process includes comprehensive credit policies, judgmental or statistical credit underwriting, frequent and detailed risk measurement and modeling, and continual loan review and audit processes. In addition, regulatory examiners review and perform detailed tests of credit underwriting, loan administration, and allowance processes.

The Chief Credit Officer reports directly to the President and Chief Executive Officer. The Company’s Loan Committee, established by the Credit Committee of the Board of Directors, provides direction and oversight for the Company within the risk management framework. The Loan Committee seeks to ensure effective portfolio risk analysis and policy review and to support sound implementation of defined lending and credit risk strategies. The members of the Loan Committee consist of the President and Chief Executive Officer; Chief Credit Officer; and Chief Financial Officer. The Chief Credit Officer’s primary responsibilities include: (1) directing the activities of the credit risk management function as it relates to the loan portfolio; (2) overseeing loan portfolio performance and ensuring compliance with established credit policies, standards, and limits; (3) determining the appropriateness of the Company’s allowance for loan losses; and (4) reviewing and approving large credit exposures. Senior credit administrators overseeing the lines of business have both transaction approval authority and governance authority for the approval of credit procedures within established policies, standards, and limits.

As of the latter part of 2008 and through 2010, substantially all the Company’s loan production represented single family mortgages designated for sale. Single family mortgage loans originated predominately conform to government-sponsored enterprise underwriting standards.

 

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Single family and home equity loans are underwritten after evaluating and understanding a borrower’s capacity, credit, and collateral. Capacity refers to a borrower’s ability to make payments on the loan. Several factors are considered when assessing a borrower’s capacity, including the borrower’s employment, income, current debt, assets, and level of equity in the property. Credit refers to how well a borrower manages their current and prior debts as documented by a credit report that provides credit scores and the borrower’s current and past information about their credit history. Collateral refers to the type and use of property, occupancy, and market value. Property appraisals are obtained to assist in evaluating collateral. Loan-to-property value and debt-to-income ratios, loan amount, and lien position are also considered in assessing whether to originate a loan. These borrowers are particularly susceptible to downturns in economic trends such as conditions that negatively affect housing prices and demand and levels of unemployment.

Commercial, multifamily residential, and construction lending underwriting standards consider the factors described for single family and home equity lending as well as others when assessing the borrower’s and associated guarantors or other related party’s financial position. These other factors include assessing liquidity, the level and composition of net worth, leverage, considering all other lender amounts and position, an analysis of cash expected to flow through the borrower including the outflow to other lenders, and prior experience with the borrower. This information is used to assess adequate financial capacity, profitability, and experience. Ultimate repayment of these loans is sensitive to interest rate changes, general economic conditions, liquidity, and availability of long-term financing.

Credit Quality

Credit quality within the loans held for investment portfolio is continuously monitored by management and is reflected within the allowance for loan losses. The allowance for loan losses represents management’s estimate of incurred credit losses inherent within the Company’s loan portfolio as of the balance sheet date. Determining the appropriateness of the allowance is complex and requires judgment by management about the effect of matters that are inherently uncertain. Subsequent evaluations of the loan portfolio, in light of the factors then prevailing, may result in significant changes in the allowance for loan losses in those future periods.

The amount of the allowance is based on management’s evaluation of the collectability of the loan portfolio based on historical loss experience and other significant qualitative factors. These other significant factors include the level and trends of delinquent, nonaccrual, and adversely classified loans; local economic trends and conditions such as regional unemployment; levels and trends in current portfolio interest rates relative to current market pricing and the ability of the customer to continue to make payments in changing interest rate environments; other external factors including the time periods during which loans were originated; and changes in the experience, ability, and depth of lending management.

The methodology for evaluating the adequacy of the allowance for loan losses has two basic elements: first, the identification of impaired loans and the measurement of impairment for each individual loan identified; and second, a method for estimating an allowance for all other loans.

A loan is considered impaired when it is probable that all contractual principal and interest payments due will not be collected in accordance with the terms of the loan agreement. Factors considered by management in determining whether a loan is impaired include payment status, collateral value, and the probability of collecting scheduled principal and interest payments when due. Impairment for loans for which collection is dependent upon the performance or liquidation of the collateral is measured as the difference between the recorded investment balance of the loan and the fair value of the collateral, less estimated selling costs. Impairment for loans that are not collateral dependent is measured as the difference between the discounted value of the expected future cash flows, based on the original effective interest rate, and the recorded investment balance of the loan. A

 

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Notes to Consolidated Financial Statements — (Continued)

 

specific allowance is provided for equal to the calculated impairment and included in the allowance for loan losses. If the calculated impairment is determined to be permanent or not recoverable, the impairment will be charged off.

In estimating the general allowance for loan losses for unimpaired loans, such loans are segregated into homogeneous loan pools or classes. Loans are designated into homogeneous pools based on product types and similar risk characteristics or areas of risk concentration.

For each homogeneous loan pool, the Company estimates potential and inherent losses by applying a rate of loss equal to four trailing quarters of historical losses. Additional incurred losses are also estimated for these same pools of loans based upon Key Risk Indicators (“KRIs”). KRIs for each pool include the following: (i) loan delinquency trends; (ii) variability in collateral valuation; (iii) regional economic activity and trends; (iv) current levels of interest rates; and (v) the vintage of loans at origination. KRIs are expressed in basis points and are adjusted downward or upward based on management’s judgment as to the potential loss impact of each qualitative factor to a particular loan pool at the date of the analysis.

In addition, the Regulators, as an integral part of the examination process, review the allowance for loan losses. These agencies may require additions to the allowance for loan losses based on their judgment about information available at the time of their examinations.

Activity in the allowance for credit losses is as follows:

 

     Years Ended December 31,  
(in thousands)    2010     2009     2008  

Beginning balance

   $ 110,422      $ 58,587      $ 38,804   

Provision for credit losses

     37,300        153,515        34,411   

(Charge-offs), net of recoveries

     (83,156     (101,680     (14,628
                        

Balance, end of year

   $ 64,566      $ 110,422      $ 58,587   
                        

Components:

      

Allowance for loan losses

   $ 64,177      $ 109,472      $ 58,587   

Reserve for unfunded commitments

     389        950          
                        

Allowance for credit losses

   $ 64,566      $ 110,422      $ 58,587   
                        

The Bank maintains a separate allowance for losses related to unfunded loan commitments. Management estimates the amount of probable losses by applying the loss factors used in the allowance for loan loss methodology to estimate the unfunded commitments liability for each loan type. The allowance for losses related to unfunded loan commitments is included in accrued interest payable and other liabilities on the consolidated balance sheet. At December 31, 2008, the Company did not maintain a separate reserve for unfunded commitments but allocated $451,000 of the allowance for loan losses to cover its loss exposure to unfunded commitments. Collectively, these allowances are referred to as the allowance for credit losses.

 

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Notes to Consolidated Financial Statements — (Continued)

 

At December 31, 2010 and 2009, activity in the allowance for credit losses by loan portfolio is as follows:

 

(in thousands)   Single
family
    Commercial
real estate
    Multifamily
residential
    Construction/
land
development
    Commercial
business
    Home
Equity
    Total  

2010

             

Allowance for credit losses:

             

Beginning balance

  $ 17,307      $ 10,761      $ 1,947      $ 67,764      $ 5,794      $ 6,848      $ 110,422   

Charge-offs

    (9,103     (1,187            (71,024     (1,652     (3,087     (86,053

Recoveries

    607                      2,010        243        37        2,897   

Provision/reallocation

    3,166        486        (152     34,728        (1,624     697        37,300   
                                                       

Ending balance

  $ 11,977      $ 10,060      $ 1,795      $ 33,478      $ 2,761      $ 4,495      $ 64,566   
                                                       

Collectively evaluated for impairment

  $ 11,767      $ 8,827      $ 959      $ 19,254      $ 1,669      $ 3,993      $ 46,469   

Individually evaluated for impairment

    210        1,233        836        14,224        1,092        502        18,097   
                                                       

Total

  $ 11,977      $ 10,060      $ 1,795      $ 33,478      $ 2,761      $ 4,495      $ 64,566   
                                                       

Loans held for investment:

             

Collectively evaluated for impairment

  $ 504,871      $ 390,851      $ 96,330      $ 217,432      $ 80,600      $ 179,206      $ 1,469,290   

Individually evaluated for impairment

    21,591        36,028        8,167        67,699        2,359        2,331        138,175   
                                                       

Total

  $ 526,462      $ 426,879      $ 104,497      $ 285,131      $ 82,959      $ 181,537      $ 1,607,465   
                                                       

2009

             

Allowance for credit losses:

             

Beginning balance

  $ 7,767      $ 9,785      $ 1,389      $ 33,511      $ 4,806      $ 1,329      $ 58,588   

Charge-offs

    (8,245     (4,160            (82,356     (3,943     (3,307     (102,011

Recoveries

                         31        257        42        330   

Provision

    17,785        5,136        558        116,578        4,674        8,784        153,515   
                                                       

Ending balance

  $ 17,307      $ 10,761      $ 1,947      $ 67,764      $ 5,794      $ 6,848      $ 110,422   
                                                       

Collectively evaluated for impairment

  $ 17,045      $ 9,480      $ 1,947      $ 41,550      $ 5,103      $ 6,848      $ 81,974   

Individually evaluated for impairment

    262        1,281               26,214        691               28,448   
                                                       

Total

  $ 17,307      $ 10,761      $ 1,947      $ 67,764      $ 5,794      $ 6,848      $ 110,422   
                                                       

Loans held for investment:

             

Collectively evaluated for impairment

  $ 572,401      $ 406,772      $ 82,949      $ 324,045      $ 102,883      $ 209,446      $ 1,698,496   

Individually evaluated for impairment

    18,294        42,601        2,573        307,480        6,439        498        377,885   
                                                       

Total

  $ 590,695      $ 449,373      $ 85,522      $ 631,525      $ 109,322      $ 209,944      $ 2,076,381   
                                                       

 

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Notes to Consolidated Financial Statements — (Continued)

 

The Company had 60 impaired relationships totaling $138.2 million at December 31, 2010, and 94 impaired relationships totaling $377.9 million at December 31, 2009. The average recorded investment in these loans during 2010, 2009, and 2008 was $237.2 million, $468.6 million, and $161.4 million, respectively. Impaired loans totaling $71.8 million, $243.3 million, and $94.8 million had a valuation allowance of $18.1 million, $28.5 million, and $12.8 million at December 31, 2010, 2009, and 2008, respectively. Interest payments on impaired loans, applied against loan principal or recognized as interest income, of $5.3 million, $13.2 million, and $9.1 million was recorded for cash payments received during the years ended December 31, 2010, 2009, and 2008, respectively.

The following table presents impaired loans by loan portfolio for the years ended December 31, 2010 and 2009:

 

(in thousands)    Recorded
Investment(1)
     Unpaid
Principal
Balance(2)
     Related
Allowance
     Average
Recorded
Investment(3)
 

2010

           

With no related allowance recorded:

           

Single family

   $ 20,472       $ 21,730       $       $ 17,960   

Commercial real estate

     24,793         24,793                 15,262   

Multifamily residential

     5,345         5,573                 5,460   

Construction/land development

     13,490         15,427                 44,685   

Commercial business

     592         592                 1,173   

Home Equity

     1,714         1,714                 1,523   
                                   

Total

   $ 66,406       $ 69,829       $       $ 86,063   
                                   

With an allowance recorded:

           

Single family

   $ 1,119       $ 1,170       $ 210       $ 763   

Commercial real estate

     11,235         11,430         1,233         13,690   

Multifamily residential

     2,822         2,977         836         2,873   

Construction/land development

     54,209         65,412         14,224         131,012   

Commercial business

     1,767         1,767         1,092         2,488   

Home Equity

     617         624         502         339   
                                   

Total

   $ 71,769       $ 83,380       $ 18,097       $ 151,165   
                                   

Total:

           

Single family

   $ 21,591       $ 22,899       $ 210       $ 18,723   

Commercial real estate

     36,028         36,223         1,233         28,952   

Multifamily residential

     8,167         8,550         836         8,333   

Construction/land development

     67,699         80,839         14,224         175,697   

Commercial business

     2,359         2,360         1,092         3,661   

Home Equity

     2,331         2,338         502         1,862   
                                   

Total

   $ 138,175       $ 153,209       $ 18,097       $ 237,228   
                                   

2009

           

With no related allowance recorded:

           

Single family

   $ 15,259       $ 17,381       $       $ 14,794   

Commercial real estate

     33,663         33,663                 31,835   

Multifamily residential

     2,573         2,573                 1,544   

Construction/land development

     75,335         75,745                 177,073   

Commercial business

     5,256         5,872                 2,148   

Home Equity

     498         498                 99   
                                   

Total

   $ 132,584       $ 135,732       $       $ 227,493   
                                   

 

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Notes to Consolidated Financial Statements — (Continued)

 

(in thousands)    Recorded
Investment(1)
     Unpaid
Principal
Balance(2)
     Related
Allowance
     Average
Recorded
Investment(3)
 

With an allowance recorded:

           

Single family

   $ 3,035       $ 4,135       $ 262       $ 6,182   

Commercial real estate

     8,938         13,098         1,281         8,748   

Multifamily residential

                               

Construction/land development

     232,145         264,515         26,214         224,641   

Commercial business

     1,183         1,183         691         1,514   

Home Equity

                               
                                   

Total

   $ 245,301       $ 282,931       $ 28,448       $ 241,085   
                                   

Total:

           

Single family

   $ 18,294       $ 21,516       $ 262       $ 20,976   

Commercial real estate

     42,601         46,761         1,281         40,583   

Multifamily residential

     2,573         2,573                 1,544   

Construction/land development

     307,480         340,260         26,214         401,714   

Commercial business

     6,439         7,055         691         3,662   

Home Equity

     498         498                 99   
                                   

Total

   $ 377,885       $ 418,663       $ 28,448       $ 468,578   
                                   

 

 

(1) Net Book Balance, includes partial charge offs and nonaccrual interest paid.

 

(2) Unpaid Principal Balance does not includes partial charge offs or nonaccrual interest paid. Related allowance is calculated on Net Book Balances not Unpaid Principal Balances.

 

(3) Information related to interest income recognized on average impaired loan balances are not included as it is not operationally practicable to derive this data.

Management regularly reviews problem loans in the portfolio to assess credit quality indicators and to determine appropriate loan classification and grading in accordance with applicable regulations.

A brief description of these grades follows:

The five Pass classification grades represent a level of credit quality that ranges from no well-defined deficiency or weakness to some noted weakness, yet risk of default is expected to be remote.

An asset graded as Watch has a remote risk of default but is exhibiting deficiency or weakness that requires monitoring. Watch is a temporary or transition risk rating.

A Special Mention loan does not currently expose the Company to a sufficient degree of risk to warrant an adverse classification but does possess a correctable deficiency or potential weakness deserving management’s close attention.

Substandard loans have a well-defined weakness or weaknesses. A substandard asset is inadequately protected by the current sound worth and the paying capacity of the obligor or of collateral pledged, if any. Assets so classified must have a well-defined weakness or weaknesses that jeopardize the liquidation of the debt. They are characterized by the distinct possibility that the institution will sustain some loss if deficiencies are not corrected. Substandard assets have a high probability of payment default, or they have other well-defined weaknesses. They require more intensive supervision by bank management.

 

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Notes to Consolidated Financial Statements — (Continued)

 

An asset classified as Doubtful has all of the weaknesses inherent in those classified Substandard with the added characteristic that the weaknesses make collection or liquidation in full, on the basis of currently existing facts, conditions, and values, highly questionable and improbable. Doubtful is considered to be a temporary classification until resolution of pending weakness issues enables the potential for loss to be more clearly evaluated.

That portion of an asset classified as Loss is considered uncollectible and of so little value that its continuance as an asset is not warranted. A Loss classification does not mean that an asset has absolutely no recovery or salvage value but rather it is not reasonable to defer charging off all or that portion of the asset deemed uncollectible even though partial recovery may be affected in the future.

On the basis of a review as of December 31, 2010, management identified and graded $323.0 million of loans as Watch, $156.5 million of loans as Special Mention, $193.5 million of loans as Substandard, and none of these loans as Doubtful or Loss. When referring to ‘adversely classified assets,’ such assets include loans graded as Substandard, Doubtful, and Loss as well as other real estate owned. The total amount of adversely classified assets was $363.9 million and $570.0 million as of December 31, 2010 and 2009, respectively.

The following table presents designated loan grades by loan portfolio for the years ended December 31, 2010 and 2009:

 

    Single family     Commercial real estate     Multifamily residential              
(in thousands)   2010     2009     2010     2009     2010     2009              

Grade:

               

Pass

  $ 470,912      $ 517,728      $ 193,572      $ 235,168      $ 29,478      $ 55,985       

Watch

    36,396        6,808        116,160        107,058        66,852        21,048       

Special Mention

    5,216        17,759        69,862        38,188                     

Substandard

    13,938        48,400        47,285        68,959        8,167        8,489       
                                                   
  $ 526,462      $ 590,695      $ 426,879      $ 449,373      $ 104,497      $ 85,522       
                                                   
    Construction/land
development
    Commercial business     Home Equity     Total  
    2010     2009     2010     2009     2010     2009     2010     2009  

Grade:

               

Pass

  $ 3,676      $ 23,755      $ 59,653      $ 79,488      $ 177,222      $ 206,807      $ 934,513      $ 1,118,931   

Watch

    94,060        127,664        8,345        12,340        1,184        927        322,997        275,845   

Special Mention

    75,863        154,246        4,926        9,158        596        23        156,463        219,374   

Substandard

    111,532        325,860        10,035        8,336        2,535        2,187        193,492        462,231   
                                                               
  $ 285,131      $ 631,525      $ 82,959      $ 109,322      $ 181,537      $ 209,944      $ 1,607,465      $ 2,076,381   
                                                               

 

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HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

The following table presents age analysis of past due loans by loan portfolio for the years ended December 31, 2010 and 2009:

 

(in thousands)   30-59 Days
Past Due
    60-89 Days
Past Due
    90 days or
more

Past Due
    Total
Past Due
    Current     Total
Loans
    90 days or
more

Past Due and
still Accruing
 

2010

             

Single-family

  $ 6,743      $ 6,223      $ 44,111      $ 57,077      $ 469,385      $ 526,462      $ 30,173   

Commercial real estate

           4,871        20,259        25,130        401,749        426,879          

Multifamily residential

                  8,167        8,167        96,330        104,497          

Construction/land development

                  78,907        78,907        206,224        285,131        12,955   

Commercial business

           907        2,734        3,641        79,318        82,959        375   

Home Equity

    1,645        1,184        2,535        5,364        176,173        181,537          
                                                       

Total

  $ 8,388      $ 13,185      $ 156,713      $ 178,286      $ 1,429,179      $ 1,607,465      $ 43,503   
                                                       

2009

             

Single-family

  $ 10,921      $ 6,569      $ 48,400      $ 65,890      $ 524,805      $ 590,695      $   

Commercial real estate

                  15,981        15,981        433,392        449,373          

Multifamily residential

                  8,489        8,489        77,033        85,522          

Construction/land development

    27,937        24,847        307,405        360,189        271,336        631,525        11,439   

Commercial business

    41        477        3,195        3,713        105,609        109,322          

Home Equity

    903        927        2,187        4,017        205,927        209,944          
                                                       

Total

  $ 39,802      $ 32,820      $ 385,657      $ 458,279      $ 1,618,102      $ 2,076,381      $ 11,439   
                                                       

Generally, nonperforming loans are loans designated as nonaccrual. Loans are classified as nonaccrual when collection of principal or interest is doubtful – generally placed on nonaccrual status upon reaching 90 days or more past due. Additionally, all loans that are determined to be impaired are considered for nonaccrual status. Once a loan is placed on nonaccrual, accrued interest is reversed against interest income, and nonaccrual loans are accounted for using the cash method. Cash payments received are applied to the principal balance until such time as all principal and interest payments are brought current and the prospects for future payments in accordance with the loan agreement are reasonably assured, at which point the loan is returned to accrual status. Certain loans that are 90 days or more past due remain on accrual status as they are either generally well secured and in the process of collection or are either FHA insured or VA guaranteed and have little to no risk of loss of principal or interest. The following table presents performing and nonperforming loan balances by loan portfolio for the years ended December 31, 2010 and 2009:

 

(in thousands)   Single family     Commercial real estate     Multifamily residential              
    2010     2009     2010     2009     2010     2009              

Performing

  $ 512,524      $ 542,295      $ 406,620      $ 433,392      $ 96,330      $ 77,033       

Nonperforming

    13,938        48,400        20,259        15,981        8,167        8,489       
                                                   
  $ 526,462      $ 590,695      $ 426,879      $ 449,373      $ 104,497      $ 85,522       
                                                   
    Construction/land
development
    Commercial business     Home Equity     Total  
    2010     2009     2010     2009     2010     2009     2010     2009  

Performing

  $ 219,179      $ 335,559      $ 80,600      $ 106,127      $ 179,002      $ 207,757      $ 1,494,255      $ 1,702,163   

Nonperforming

    65,952        295,966        2,359        3,195        2,535        2,187        113,210        374,218   
                                                               
  $ 285,131      $ 631,525      $ 82,959      $ 109,322      $ 181,537      $ 209,944      $ 1,607,465      $ 2,076,381   
                                                               

 

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Notes to Consolidated Financial Statements — (Continued)

 

Loans are reported as a troubled debt restructuring (“TDR”) when the Company grants concessions for other than an insignificant period of time (generally more than three months) to a borrower experiencing financial difficulties that it would not otherwise consider. As such, it is considered probable interest and principal payments will not be received in accordance with original contractual terms, and these loans are classified as impaired. Generally, TDR loans are also classified as nonaccrual until the prospect of future payments in accordance with the modified loan agreement is reasonably assured, generally demonstrated by a reasonable period of performance of at least six months. When certain TDRs are returned to accrual status, they are identified as a performing TDR. Performing TDRs are those which have been placed on accrual status and are either reported as a TDR as of year end or, if the borrower received below-market interest rate concessions, the loan will remain classified as a TDR until the concession expires and the loan performs for a reasonable period of time.

The Company had 24 loan relationships classified as troubled debt restructurings totaling $57.0 million at December 31, 2010, and committed to lend additional funds of $1.4 million. The Company had 23 loan relationships classified as troubled debt restructurings in the amount of $61.8 million at December 31, 2009, and committed to lend additional funds of $1.4 million. TDR loans and the related reserves are included in amounts above for impaired loans.

NOTE 6 — OTHER REAL ESTATE OWNED:

Other real estate owned acquired through the foreclosure of mortgage loans consists of the following:

 

     Year Ended December 31,  
(in thousands)    2010     2009  

Residential(1)

   $ 189,253      $ 86,421   

Commercial

     10,301        29,151   
                
     199,554        115,572   

Valuation Allowance

     (29,099     (7,790
                
   $ 170,455      $ 107,782   
                

 

 

(1) Includes HS Cascadia LLC real estate development of $48.0 million for the year ended December 31, 2010.

Activity in other real estate owned is as follows:

 

     Year Ended December 31,  
(in thousands)    2010     2009  

Balance, beginning of period

   $ 107,782      $ 20,905   

Additions

     189,009        132,007   

Loss provisions

     (27,459     (8,893

Reductions related to sales

     (98,877     (36,237
                

Balance, end of period

   $ 170,455      $ 107,782   
                

For the years ended December 31, 2010, 2009, and 2008, 771 properties were sold for a net gain of $0.6 million, 229 properties were sold for a net gain of $1.2 million, and 29 properties for a net loss of $0.3 million, respectively.

 

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Activity in the valuation allowance for other real estate owned is as follows:

 

     Year ended December 31,  
(in thousands)    2010     2009     2008  

Balance, beginning of period

   $ 7,790      $ 736      $ 35   

Loss provisions

     27,459        8,893        901   

Charge-offs, net of recoveries

     (6,150     (1,839     (200
                        

Balance, end of period

   $ 29,099      $ 7,790      $ 736   
                        

The components of other real estate owned expense are as follows:

 

     Year ended December 31,  
(in thousands)    2010     2009     2008  

Maintenance costs

   $ 6,008      $ 2,864      $ 301   

Loss provisions

     27,459        8,893        901   

(Gain) loss on sale

     (573     (1,244     341   

Net operating income

     (697     (34       
                        

Total other real estate owned expense

   $ 32,197      $ 10,479      $ 1,543   
                        

NOTE 7 — PREMISES AND EQUIPMENT, NET:

Premises and equipment, net consists of the following:

 

     December 31,  
(in thousands)    2010     2009  

Furniture and fixtures

   $ 24,242      $ 26,057   

Leasehold improvements

     8,040        7,933   
                
     32,282        33,990   

Less accumulated depreciation and amortization

     (25,495     (25,054
                
   $ 6,787      $ 8,936   
                

Depreciation and amortization expense for the years ending December 31, 2010, 2009, and 2008, was $2.4 million, $2.8 million, and $3.0 million, respectively.

 

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NOTE 8 — DEPOSITS:

Deposit balances, including stated rates, are as follows:

 

     December 31,  
(in thousands)    2010      2009  

Noninterest bearing accounts

   $ 235,890       $ 182,155   

NOW accounts

     

0.00% to 0.75%

     121,534         107,210   

Statement savings accounts, due on demand

     

0.60% to 1.00%

     51,075         88,597   

Money market accounts, due on demand

     

0.00% to 1.75%

     413,401         374,577   

Certificates of deposit,

     

0.20% to 5.33%

     1,307,842         1,579,794   
                 
   $ 2,129,742       $ 2,332,333   
                 

Interest expense on deposits consists of the following:

 

     Year Ended December 31,  
(in thousands)    2010      2009      2008  

NOW accounts

   $ 686       $ 1,259       $ 1,255   

Statement savings accounts

     479         2,900         631   

Money market accounts

     3,974         4,514         7,827   

Certificates of deposit

     33,911         45,680         44,952   
                          
   $ 39,050       $ 54,353       $ 54,665   
                          

There were no public funds included in deposits as of December 31, 2010. Deposits at December 31, 2009, include public funds of $0.5 million.

The weighted-average interest rate on certificates of deposit at December 31, 2010, 2009, and 2008 was 1.89 percent, 2.62 percent, and 3.62 percent, respectively.

Certificates of deposit outstanding as of December 31, 2010, mature as follows:

 

(in thousands)       

Within one year

   $ 570,432   

One to two years

     317,749   

Two to three years

     390,173   

Three to four years

     20,775   

Four to five years

     8,713   
        
   $ 1,307,842   
        

The aggregate amount of time deposits in denominations of $100,000 or more at December 31, 2010 and 2009, was $496.4 million and $519.7 million, respectively. The aggregate amount of time deposits in denominations of $250,000 or more at December 31, 2010 and 2009, was $87.4 million and $78.2 million,

 

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respectively. The aggregate amount of time deposits also includes deposits obtained through brokers of $10.0 million and $297.4 million at December 31, 2010 and 2009, respectively, which are currently subject to regulatory restrictions (See Note 2, Significant Risks and Uncertainties ).

NOTE 9 — FEDERAL HOME LOAN BANK AND OTHER:

The Company borrows through advances from the FHLB of Seattle. FHLB advances totaled $165.9 million and $677.8 million as of December 31, 2010, and December 31, 2009, respectively. The decline reflects the prepayment of certain advances of $390.7 million resulting in prepayment penalties of $5.5 million as well as the maturity of $121.3 million of advances during 2010.

Weighted-average interest rates on the advances were 3.26 percent, 3.00 percent, and 3.54 percent at December 31, 2010, 2009, and 2008, respectively. The advances may be collateralized by stock in the FHLB, pledged securities, and unencumbered qualifying loans. The Bank has an available line of credit with the FHLB of Seattle equal to 40 percent of assets, subject to collateralization requirements. Based on the amount of qualifying collateral available, remaining borrowing capacity from the FHLB of Seattle was $72.8 million and $1.0 million as of December 31, 2010 and 2009, respectively. The FHLB of Seattle is not contractually bound to continue to offer credit to the Bank, and the Bank’s access to credit from this agency for future borrowings may be discontinued at any time.

FHLB advances outstanding at December 31, 2010, by contractual maturities are as follows:

 

(in thousands)             

Year ending December 31,

   Weighted Average
Interest Rate
       

2011

     2.50   $ 107,950   

2012

     4.53     35,834   

2014

     4.44     3,500   

2015

     5.19     2,200   

2016 and thereafter

     4.97     16,385   
                
     3.26   $ 165,869   
                

The Bank, as a member of the FHLB, is required to own shares of FHLB stock. This requirement is based upon the amount of either the eligible collateral or advances outstanding from the FHLB. As of December 31, 2010 and December 31, 2009, the Company held $37.0 million of FHLB stock. FHLB stock is carried at par value and is restricted to transactions between the FHLB and its member institutions. FHLB stock can only be purchased or redeemed at par value. Both cash and dividends received on FHLB stock are reported in earnings.

On November 6, 2009, the FHLB of Seattle’s regulator reaffirmed the FHLB of Seattle’s capital classification as undercapitalized. Under the Housing Finance Agency regulations, a FHLB that fails to meet any regulatory capital requirement may not declare a dividend or redeem or repurchase capital stock. As such, the FHLB of Seattle will not be able to redeem, repurchase, or declare dividends on stock outstanding while the risk-based capital deficiency exists. As of December 31, 2010, there has been no change in the capital classification.

Management periodically evaluates FHLB stock for other-than-temporary impairment. Management’s determination of whether these investments are impaired is based on its assessment of ultimate recoverability of par value rather than recognizing temporary declines in value. The determination of whether the decline affects the ultimate recoverability is influenced by criteria such as: (1) the significance of the decline in net assets of the FHLB as compared to the capital stock amount for the FHLB and the length of time this situation has persisted;

 

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(2) commitments by the FHLB to make payments required by law or regulation and the level of such payments in relation to the operating performance of the FHLB; (3) the impact of legislative and regulatory changes on institutions and, accordingly, on the customer base of the FHLB; and (4) the liquidity position of the FHLB. Based on this evaluation the Company determined there is not an other-than-temporary impairment of the FHLB stock investment as of December 31, 2010, or December 31, 2009.

The Bank may also borrow on a collateralized basis from the Federal Reserve Bank (“FRB”) of San Francisco. At December 31, 2010 and 2009, there were no outstanding borrowings from the FRB of San Francisco. Based on the amount of qualifying collateral available, borrowing capacity from the FRB of San Francisco was $192.9 million as of December 31, 2010. The FRB of San Francisco is not contractually bound to offer credit to the Bank, and the Bank’s access to credit from this agency for future borrowings may be discontinued at any time.

NOTE 10 — LONG-TERM DEBT:

During the period of June 2005 through February 2007 the Company secured certain financing through the issuance of trust preferred securities (“TruPS”), totaling $61.9 million as of December 31, 2010 and 2009. In March of 1999 the Company issued Senior Notes, with remaining principal balance of $5.0 million as of December 31, 2010 and 2009.

TruPS allow investors the ability to invest in junior subordinated debentures of the Company and provide the Company with financing. The transaction begins with the formation of a Variable Interest Entity (“VIE”) established as a trust by the issuing holding company. The trust issues preferred securities to third-party investors; the cash received by the trust is used to purchase subordinated debentures (debt) from the holding company. The subordinated debentures are the sole asset of the trust, and the coupon on the debt mirrors the dividend payment on the preferred security. The Company also has the right to defer interest payments for up to five years and has the right to call the preferred securities. These preferred securities are non-voting and do not have the right to convert to shares of the issuer. The issuing VIE is not consolidated as the sole assets of the VIE are receivables from the issuing holding company.

HomeStreet Statutory Trust (the VIE), a subsidiary trust of HomeStreet, Inc. (the issuing holding company), has outstanding TruPS. In connection with the issuance of TruPS, HomeStreet, Inc. issued to HomeStreet Statutory Trust Junior Subordinated Deferrable Interest Debentures (collectively, the “Subordinated Debt Securities”).

The Subordinated Debt Securities are as follows:

 

(in thousands)   

I

  

II

  

III

  

IV

Date issued

   June 2005    September 2005    February 2006    March 2007

Amount

   $5,155    $20,619    $20,619    $15,464

Interest rate

   2.00%    1.80%    6.39%    6.67%

Maturity date

   June 2035    December 2035    March 2036    June 2037

Call option

   5-year at par    5-year at par    5-year at par    5-year at par

Following the first call date, the debt adjusts quarterly with the change in the three-month LIBOR rate. The sole assets of the HomeStreet Statutory Trust are the Subordinated Debt Securities I, II, III, and IV.

The Company deferred the payment of interest on its outstanding Subordinated Debt Securities that was due on December 15, 2008. Subsequent to December 31, 2008, the Company approved to continue the deferral of interest payments commencing on March 15, 2009. The Company is entitled, at its option subject to certain

 

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conditions, to defer payments of interest up to five years under the trust agreement. Accordingly, the Company is prohibited from declaring or paying dividends or distributions on, and from making liquidation payments with respect to, its common stock until it is current on all interest payments due with respect to the junior subordinated debentures.

In March of 1999, the Company issued $30.0 million in Senior Notes at a discount with a coupon rate of 7.45 percent and a maturity date of March 1, 2009. During 2008, the Company repaid $25.0 million at a discounted price of $22.5 million and recognized an after-tax gain of $1.8 million. The Company extended the maturity of the remaining $5.0 million of the Senior Notes to March 1, 2011. Accretion of debt issuance costs was $0, $0, and $49,000 during the years ended December 31, 2010, 2009, and 2008, respectively.

NOTE 11 — DERIVATIVES:

The Company uses derivatives to manage exposure to market risk, interest rate risk, and to assist customers with their risk management objectives. Derivative transactions are measured in terms of notional amount, which is not recorded on the balance sheet. The notional amount is generally not exchanged and is used as the basis for which interest and other payments are determined. The use of derivatives as interest rate risk-management instruments helps minimize significant, unplanned fluctuations in earnings, fair value of assets and liabilities, and cash flows caused by interest rate volatility. This approach involves modifying the repricing characteristics of certain assets and liabilities so that changes in market values or interest rates do not have a significant adverse effect on net interest margin and cash flows. As a result of interest rate fluctuations, hedged assets and liabilities will gain or lose market value. In a fair value hedging strategy, the effect of this gain or loss will generally be offset by the gain or loss on the derivatives linked to the hedged asset or liabilities. In a cash flow hedging strategy, management manages the variability of cash payments due to interest rate fluctuations by the effective use of derivatives linked to hedged assets and liabilities. On the balance sheet derivatives are reported at their respective fair values within the ‘accounts receivable and other assets’ or ‘accounts payable and other liabilities’ line items within the Consolidated Statement of Financial Condition.

The notional amounts and fair values for derivatives consist of the following:

 

(in thousands)                     
As of December 31, 2010:    Notional Amount      Fair Value  
            Asset
Derivatives
     Liability
Derivatives
 

Forward sale commitments

   $ 308,973       $ 2,263       $   

Interest rate locks on loans

     129,287         2,302           

Interest rate swaps

     367,910                 (22,221
                          
   $ 806,170       $ 4,565       $ (22,221
                          
As of December 31, 2009:    Notional Amount      Fair Value  
            Asset
Derivatives
     Liability
Derivatives
 

Forward sale commitments

   $ 315,246       $ 1,805       $   

Futures

     85,000                 (648

Interest rate locks on loans

     119,654                 (994

Interest rate swaps

     266,770         339         (5,506
                          
   $ 786,670       $ 2,144       $ (7,148
                          

 

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Management uses derivatives that are designated as qualifying hedge contracts as defined by Accounting Standards Codification (ASC) 815, Derivatives and Hedging, as fair value hedges, which are comprised of interest rate swap contracts. Interest rate swap contracts are used to convert commercial business benchmark loans held for investment and certificates of deposit from fixed to floating rates to hedge against exposure to changes in benchmark interest rates. All parts of the gain or loss due to the hedged risk (e.g., fair value changes due to changes in interest rates) are included in the assessment of hedge effectiveness. These swap contracts are carried at fair value, with the net settlement of the derivatives reported in either loans receivable interest income or deposits interest expense, respectively, and ineffectiveness for these swap contracts reported in other noninterest income.

For fair value hedging relationships, the dollar-offset method is used to assess hedge effectiveness, both at the inception of the hedging relationship and on an ongoing basis. Hedge effectiveness is evaluated prospectively as well as through retrospective evaluations. For prospective considerations, we develop an expectation that the relationship will be highly effective over future periods. For retrospective evaluations management determines whether the hedging relationship has been highly effective. The dollar-offset method compares the changes in the fair value of the hedged item to the changes in fair value of the derivative and is applied on a period-by-period basis. The results of the dollar-offset method along with other relevant information are the basis for evaluating hedge effectiveness prospectively.

The following table shows the ineffective portion of net gains (losses) recognized on derivatives in fair value hedging relationships, as defined as ASC 815, Derivatives and Hedging , in the statement of operations for the periods indicated:

 

     Interest rate contracts hedging  
     Year Ended
December 31, 2010
     Year Ended
December 31, 2009
 
(in thousands)    Loans
held for
investment
     Deposits      Loans
held for
investment
     Deposits  

Total hedge ineffectiveness recorded in noninterest income

   $  (348)       $ 19       $  (138)       $ (66

Free-standing derivatives are also used for fair value interest rate risk management purposes that do not qualify for hedge accounting treatment, referred to as economic hedges. Economic hedges are used to hedge against changes in fair value of residential mortgage servicing rights (“residential MSRs”), interest rate lock commitments for single family mortgage loans that the Company intends to sell (“derivative loan commitments”), and loans held for sale.

Free-standing derivatives used as economic hedges for residential MSRs typically include positions in futures, options on 10-year treasury contracts, forward sales commitments on mortgage-backed securities, and interest rate swap contracts. The residential MSRs and the free-standing derivatives are carried at fair value with changes in fair value included in mortgage servicing noninterest income.

The free-standing derivatives used as economic hedges for derivative loan commitments and loans held for sale (typically sold within 30 to 60 days) are forward sales commitments on mortgage-backed securities and option contracts. Derivative loan commitments, loans held for sale, and the free-standing derivatives (“economic hedges”) are carried at fair value with changes in fair value included in Net gains on mortgage origination/sales activities noninterest income.

 

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The following table shows the net gains (losses) recognized on economic hedge derivatives within the respective line items in the statement of operations for the periods indicated:

 

     Year Ended December 31,  
(in thousands)        2010              2009      

Recognized in noninterest income:

     

Gain on sale of loans(1)

   $ 1,594       $ 4,167   

Mortgage servicing

     25,424         (6,041
                 
   $ 27,018       $ (1,874
                 

 

 

(1) Comprised of interest rate lock commitments and forward contracts used as an economic hedge on loans held for sale.

As of December 31, 2010, no derivative contracts for cash flow hedge purposes are held. Amortization of unrealized gains and losses related to cash flow hedge positions held in prior periods were recognized in current earnings.

The following table shows the net gains (losses) recognized related to derivatives in cash flow hedging relationships for the periods indicated:

 

     Years Ended December 31,  
(in thousands)        2010             2009      

Loss (after tax) recognized in OCI on derivatives (effective portion)

   $      $ (1,112

(Loss) gain (pre tax) reclassified from cumulative OCI into net interest income (effective portion)

     (138     1,188   

Gain (pre tax) recognized in noninterest income on derivatives (ineffective portion)

            906   

The Company’s derivative activities are monitored by the corporate Asset/Liability Management Committee. The Treasury function, which includes asset/liability management, is responsible for various hedging strategies developed through analysis of data from financial models and other internal and industry sources. The resulting hedging strategies are incorporated into the overall interest rate risk management strategies.

NOTE 12 — MORTGAGE BANKING OPERATIONS:

Net gains on mortgage loan origination and sales activities

Revenue from the sale of loans, including the effects of derivative risk management instruments, consisted of the following:

 

(in thousands)    Year Ended December 31,  
   2010      2009     2008  

Mortgage servicing rights and servicing release premiums

   $ 26,986       $ 39,595      $ 23,429   

Net gain (loss) on loan sales(1)

     28,275         9,967        (6,523

Fair value adjustment of loans held for sale(2)

     272         (898     531   

Net gain (loss) from derivatives(3)

     1,594         4,167        (1,604
                         

Net gains on mortgage loan origination and sales activities

   $ 57,127       $ 52,831      $ 15,833   
                         

 

 

(1) Comprised of gains and losses of single family and Fannie Mae DUS loan sales and loan fees less certain fees paid to WMS.

 

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(2) As of January 1, 2010 we elected to carry single family loans held for sale at fair value. Prior periods reported under the lower of amortized cost or fair value.

 

(3) Includes interest rate lock commitments as well as forward sale commitments used to economically hedge loan sales.

Mortgage Loan Administration

The Company’s portfolio of loans serviced for others is presented at unpaid principal balance and is comprised of the following:

 

     December 31,  
(in thousands)    2010      2009  

Single family residential loans

     

FannieMae/GNMA/FHLMC MBS

   $ 5,909,742       $ 5,361,825   

Other

     433,416         459,121   
                 
     6,343,158         5,820,946   
                 

Commercial

     

Multifamily

     776,671         810,910   

Other

     58,765         69,839   
                 
     835,436         880,749   
                 

Total loans serviced for others

   $ 7,178,594       $ 6,701,695   
                 

Loans serviced for others are not included in the consolidated financial statements as they are not assets of the Company.

Included in total loans serviced for Fannie Mae/GNMA/FHLMC MBS above are mortgage-backed securities guaranteed by GNMA and Fannie Mae. Monthly principal and interest payments are passed through to security holders under the securities agreements.

The total balance of loans with recourse provisions included in the Company’s loans serviced for others is as follows:

 

     December 31,  
(in thousands)    2010      2009  

Single family residential

   $ 450       $ 978   

Multifamily

     776,671         810,910   
                 
   $ 777,121       $ 811,888   
                 

During the years ended December 31, 2010 and 2009, the Company sold $43.4 million and $49.7 million, respectively, of multifamily conventional loans with recourse provisions through Fannie Mae’s multifamily delegated underwriting and servicing program. The Company has a reserve for losses relating to loans with recourse provisions of $4.1 million, $4.2 million, and $4.2 million, which is included in accounts payable and accrued expenses at December 31, 2010, 2009, and 2008, respectively. There were no losses incurred for the years ended December 31, 2010, 2009, and 2008, respectively.

 

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FHA, GNMA, Fannie Mae, and FHLMC regulations require approved lenders to meet certain liquidity and net worth requirements. The Company did not meet these requirements for 2010. However, the Company has been allowed to continue normal business interactions until such requirements are satisfied.

Advances are made to GNMA mortgage pools for delinquent loan and foreclosure costs and for funding of loans repurchased from GNMA mortgage pools prior to recovery of guaranteed amounts. GNMA advances of $3.4 million and $1.5 million were recorded in accounts receivable and other assets as of December 31, 2010, and December 31, 2009.

At December 31, 2010 and 2009, the Company recorded delinquent or defaulted GNMA mortgage loans as if they had been repurchased, totaling $2.6 million and $8.1 million, respectively. For those GNMA mortgage loans previously sold that are more than 90 days past due, the Company has the unilateral right to repurchase the loans. Although this right has not been executed, such loans have been recorded as repurchased for accounting purposes. This asset was recorded in loans held for investment along with a corresponding payable within other liabilities as of December 31, 2010 and 2009. This accounting treatment does not impact the accounting for the previously recognized mortgage servicing rights.

During the years ended December 31, 2010 and 2009, the Company issued 109 GNMA loan pools with security proceeds of $567.2 million and 114 GNMA pools with security proceeds of $773.4 million, respectively. Additionally, the Company was servicing 955 GNMA loan pools with an outstanding security balance of $1.5 billion and 900 GNMA loan pools with an outstanding security balance of $1.2 billion at December 31, 2010 and 2009, respectively.

Mortgage Servicing

Revenue from mortgage servicing, including the effects of derivative risk management instruments, consisted of the following:

 

     Year Ended December 31,  
(in thousands)    2010     2009     2008  

Servicing fees and other

   $ 23,279      $ 19,089      $ 16,910   

Changes in fair value, single-family mortgage servicing rights:

      

Due to changes in model or assumptions(1)

     (7,594              

Due to payments on loan balances and other(2)

     (13,513              

Amortization

     (1,370     (18,878     (9,274

Recovery/(impairment)(3)

            1,335        (9,197

Net gain (loss) from derivatives economically hedging MSR

     25,424        (6,041     14,586   
                        

Mortgage servicing

   $ 26,226      $ (4,495   $ 13,025   
                        

 

 

(1) Principally reflects changes in discount rates and prepayment speed assumptions, mostly due to changes in interest rates.

 

(2) Represents changes due to collection/realization of expected cash flows and curtailments over time.

 

(3) Represents adjustments to the carrying value of MSRs due to temporary (impairment) or recovery in accordance with the lower of amortized cost or fair value methodology.

Effective January 1, 2010, the Company made an irrevocable election to measure and carry single family MSRs using the fair value option method. Under this method, originated and purchased single family MSRs are capitalized and carried at fair value with changes in fair value reflected in earnings in the periods in which the

 

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changes occur. MSRs resulting from the sale of multifamily loans continue to be initially measured at fair value at the date of transfer and subsequently measured at the lower of amortized cost or fair value.

The fair value of single family MSRs is determined based on what a market participant would pay or charge to assume servicing. The Company determines fair value using a valuation model that calculates the net present value of estimated future cash flows. Estimates of future cash flows include contractual servicing fees, ancillary income and costs of servicing, the timing of which are impacted by assumptions regarding the underlying performance of the loans.

Multifamily MSRs are recorded based on the estimated discounted cash flows and are amortized in proportion to, and over, the estimated period the net servicing income will be collected.

At December 31, 2010, key economic assumptions and the sensitivity of the current fair value for single family MSRs to immediate adverse changes in those assumptions were as follows:

 

(in thousands)       

Fair value of single family MSR

   $ 81,197   

Expected weighted-average life (in years)

     5.58   

Constant prepayment rate(1)

     14.16

Impact on fair value of 25 basis points decrease

   $ (4,623

Impact on fair value of 50 basis points decrease

     (10,026

 

 

(1) Represents the expected lifetime average.

These sensitivities are hypothetical and should be used with caution. As the table above demonstrates, the Company’s methodology for estimating the fair value of MSRs is highly sensitive to changes in assumptions. For example, actual prepayment experience may differ and any difference may have a material effect on MSR fair value. Changes in fair value resulting from changes in assumptions generally cannot be extrapolated because the relationship of the change in assumption to the change in fair value may not be linear. Also, in this table, the effect of a variation in a particular assumption on the fair value of the MSRs is calculated without changing any other assumption; in reality, changes in one factor may be associated with changes in another (for example, decreases in market interest rates may indicate higher prepayments; however, this may be partially offset by lower prepayments due to other factors such as a borrower’s diminished opportunity to refinance), which may magnify or counteract the sensitivities. Thus, any measurement of MSRs fair value is limited by the conditions existing and assumptions made as of a particular point in time. Those assumptions may not be appropriate if they are applied to a different point in time.

Prior to October 2010, the Company utilized an independent third-party valuation firm to assist with the MSR valuation process and the measurement of fair value of the MSRs. During this period, the valuation firm utilized servicing cash flow data provided by the Company and incorporated its own key assumptions to calculate the net present value of estimated future cash flows. Such key assumptions reflected those which would be used by a market participant to fair value the MSRs. The Company performed a review of the results of the valuation firm as well as the reasonableness of the key assumptions used. In addition, the Company periodically would obtain another MSR valuation from a second valuation firm to assist with the validation of the results.

Beginning in October 2010, the Company purchased its own valuation model and began to calculate the MSR fair value measurement itself. The Company continues to obtain a MSR valuation from an independent valuation firm to assist with the validation of the results and the reasonableness of the assumptions used during its valuation process.

 

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The initial measurement of the fair value of the MSRs capitalized at the date of the loan sales with servicing retained is based on interest rate based matrices for similar assets derived from modeled fair value results. The initial fair value is adjusted up or down dependent on whether the underlying loan pool interest rate is at a premium, discount or par. This process is further refined now that the Company has its own valuation model and methodology.

Key economic assumptions used in measuring the initial value of capitalized single family MSRs created from loan sales with retained servicing were as follows:

 

(rates per annum)(1)       

Constant prepayment rate(2)

     11.37

Discount rate(3)

     11.74   

 

 

(1) Weighted average rates for sales during the period for sales of loans with similar characteristics.

 

(2) Represents the expected lifetime average.

 

(3) Discount rate is a rate based on market observations.

The following table reconciles the December 31, 2009, and the January 1, 2010, balance of MSRs as a result of the Company’s election to measure and carry MSRs related to single family loans using the fair value option method. Upon the remeasurement of single-family MSRs, a pre-tax adjustment of $6.5 million to single family MSRs was recognized and a corresponding cumulative effect adjustment of $6.5 million was recorded to increase the 2010 beginning balance in shareholders’ equity.

 

(In thousands)    Single Family      Multifamily      Total  

Balance at December 31, 2009

   $ 71,850       $ 6,522       $ 78,372   

Remeasurement at fair value

     6,500                 6,500   
                          

Balance at January 1, 2010

   $ 78,350       $ 6,522       $ 84,872   
                          

The changes in single family MSRs measured using the fair value method were:

 

(In thousands)    December 31,
2010
 

Beginning balance

   $ 78,350   

Originations:

  

Single family loans

     23,943   

Purchases

     11   

Changes in fair value:

  

Due to changes in model inputs or assumptions(1)

     (7,594

Due to payments on loan balances and other(2)

     (13,513
        

Ending balance

   $ 81,197   
        

 

 

(1) Principally reflects changes in discount rates and prepayment speed assumptions, mostly due to changes in interest rates.

 

(2) Represents changes due to collection/realization of expected cash flows and curtailments over time.

 

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The changes in amortized MSRs were:

 

     December 31,  
(In thousands)    2010     2009  

Beginning balance

   $ 6,522      $ 69,633   

Originations:

    

Single family loans

            37,247   

Multifamily loans

     883        891   

Purchases

            78   

Amortization

     (1,370     (18,878
                
     6,035        88,971   

Impairment allowance

            (10,599
                

Ending balance

   $ 6,035      $ 78,372   
                

There was no valuation allowance at December 31, 2010. The valuation allowance for the year ended December 31, 2009, predominately relates to single family MSRs as follows:

 

(in thousands)    December 31,
2009
 

Beginning balance

   $ 11,934   

(Recovery)

     (1,335
        

Ending balance

   $ 10,599   
        

At December 31, 2010, the expected weighted-average life of the Company’s multifamily MSRs was 8.33 years. Projected amortization expense for the gross carrying value of multifamily MSRs at December 31, 2010, is estimated as follows:

 

(in thousands)           
 

2010

   $  1,236   
 

2011

     1,093   
 

2012

     878   
 

2013

     740   
 

2014

     626   
  2015 and thereafter      1,462   
          

Carrying value of multifamily MSR

   $ 6,035   
          

The projected amortization expense of multifamily MSRs is an estimate and should be used with caution. The amortization expense for future periods was calculated by applying the same quantitative factors, such as actual MSRs prepayment experience and discount rates, which were used to determine amortization expense during 2010. These factors are inherently subject to significant fluctuations, primarily due to the effect that changes in mortgage rates have on loan prepayment experience. Accordingly, any projection of MSR amortization in future periods is limited by the conditions that existed at the time the calculations were performed and may not be indicative of actual amortization expense that will be recorded in future periods.

 

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NOTE 13 — COMMITMENTS, GUARANTEES, AND CONTINGENCIES:

Commitments

Commitments to extend credit are agreements to lend to customers in accordance with predetermined contractual provisions. These commitments may be for specific periods or contain termination clauses and may require the payment of a fee. The total amounts of unused commitments do not necessarily represent future credit exposure or cash requirements in that commitments often expire without being drawn upon. Unfunded commitments to extend credit totaled $137.6 million ($132.6 million fixed and $5.0 million adjustable-rate commitments) at December 31, 2010, and $162.9 million ($149.6 million fixed and $13.3 million adjustable-rate commitments) at December 31, 2009.

The Company enters into contractual commitments to originate loans (e.g., interest rate lock commitments) to extend credit to borrowers with fixed expiration dates. These commitments become effective when the borrowers “lock” a specified interest rate within the time frames established by the Company. Market risk arises due to adverse changes in interest rates between the time of interest rate lock by the borrower and the sale date of the loan to an investor. The Company offsets this risk by entering into forward sale commitments.

The Company is obligated under noncancelable leases for office space. The office leases also contain five-year renewal and space options. Rental expense under noncancelable operating leases totaled $6.5 million, $5.4 million, and $5.4 million for the years ended December 31, 2010, 2009, and 2008, respectively.

Minimum rental commitments for all noncancelable leases as of December 31, 2010, were as follows:

 

(in thousands)       

2011

   $ 5,096   

2012

     4,911   

2013

     4,584   

2014

     4,151   

2015

     3,847   

2016 and thereafter

     7,820   
        
   $ 30,409   
        

Guarantees

In the ordinary course of business, the Company sells loans with recourse. For loans that have been sold with recourse and are no longer on the Company’s balance sheet, the recourse component is considered a guarantee. When the Company sells a loan with recourse, it commits to stand ready to perform if the loan defaults and to make payments to remedy the default. As of December 31, 2010, the total principal balance of loans sold with recourse under these guarantees totaled $777.1 million. The Company’s recourse reserve related to these guarantees totaled $4.1 million at December 31, 2010.

In the ordinary course of business, the Company sells loans without recourse that may have to be subsequently repurchased due to defects in the origination process of the loan. The defects are categorized as documentation errors, underwriting errors and judgments, early payment defaults, and fraud. When a loan sold to an investor without recourse fails to perform, the investor will typically review the loan file to determine whether defects in the origination process occurred. If an origination defect is identified, the Company is required to either repurchase the loan or indemnify the investor for losses sustained if the investor has sold the property. If there are no defects found in the origination process, the Company has no commitment to repurchase the loan. As

 

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Notes to Consolidated Financial Statements — (Continued)

 

of December 31, 2010, the total principal balance of loans sold without recourse under these terms and conditions totaled $6.4 billion. The Company has reserved $0.5 million at December 31, 2010, to cover its loss exposure to loans sold without recourse. Actual losses of $0.4 million, $0.1 million, and $0 were incurred for the years ended December 31, 2010, 2009, and 2008, respectively.

Contingencies

In the normal course of business, the Company has various legal claims and other contingent matters outstanding. The Company believes that any liability ultimately arising from these actions would not have a material adverse effect on the results of operations or consolidated financial position at December 31, 2010. At December 31, 2010, the Company does not have any amounts reserved for legal claims and there are no matters that are considered to be reasonably possible of resulting in a loss.

NOTE 14 — INCOME TAXES:

Income tax expense (benefit) consisted of following:

 

     December 31,  
(in thousands)    2010     2009     2008  

Current (benefit) expense

   $ (6,468   $ (41,048   $ 7,538   

Deferred expense (benefit)

     7,165        (5,907     (4,336
                        

Total income tax expense (benefit)

   $ 697      $ (46,955   $ 3,202   
                        

Income tax expense (benefit) differed from amounts computed at the federal income tax statutory rate as follows:

 

     December 31,  
(in thousands)    2010     2009     2008  

Taxes at statutory rate

   $ (11,743   $ (55,031   $ 4,071   

Tax-exempt interest

     (226     (386     (526

Mortgage reinsurance income

            (72     (166

State income taxes net of federal tax benefit

     (139     (920     64   

Valuation allowance

     12,424        9,421          

Other, net

     381        33        (241
                        

Total income tax expense (benefit)

   $ 697      $ (46,955   $ 3,202   
                        

 

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Notes to Consolidated Financial Statements — (Continued)

 

Deferred income taxes reflect the net tax effect of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and those amounts used for tax return purposes. The tax effect of temporary differences that give rise to significant portions of deferred tax assets and deferred tax liabilities at December 31 consisted of the following:

 

(in thousands)    2010     2009  

Deferred tax assets:

    

Provision for loan losses

   $ 24,947      $ 38,053   

Unrealized loss on investment securities available for sale

     2,578        648   

Accrued liabilities

     585        1,044   

Investments

     276        243   

Premises and equipment

     674        430   

Other real estate owned

     12,270        3,401   

State net operating loss carryforward

     1,363        1,038   

Federal net operating loss carryforward

     11,855          

Cash flow hedge

            48   

Other, net

     1,231          
                
     55,779        44,905   
                

Deferred tax liabilities:

    

Deferred loan fees and costs

     (1,662     (1,831

Mortgage servicing rights

     (26,366     (22,536

FHLB dividends

     (4,528     (4,542

Other, net

     (526     (488
                
     (33,082     (29,397
                

Valuation allowance

     (24,472     (10,118
                

Net deferred tax (liability) asset

   $ (1,775   $ 5,390   
                

For the year ended December 31, 2010, net deferred taxes are included in the ‘accounts payable and accrued expenses’ line item within the Consolidated Statement of Financial Condition. For the year ended December 31, 2009, net deferred taxes are included in the ‘income taxes receivable’ line item within the Consolidated Statement of Financial Condition.

Management assesses the available positive and negative evidence to estimate if sufficient future taxable income will be generated to utilize the existing deferred tax assets. A significant piece of objective negative evidence evaluated was the cumulative loss incurred over the three-year period ending December 31, 2010 and 2009. Such objective evidence limits the ability to consider other subjective evidence.

Based on this evaluation, as of December 31, 2010 and 2009, a valuation allowance of $24.5 million and $10.1 million has been recorded in order to reduce the deferred tax assets to an amount that will more likely than not be realized.

At December 31, 2010, the Company has a federal net operating loss carryforward of $33.9 million which expires in 2030 with a tax-effected value of $11.9 million. At December 31, 2010, the Company has a state net operating loss carryforward, which expires between 2024 and 2030 with a tax-effected value of $1.4 million.

Retained earnings at December 31, 2010 and 2009, include approximately $12.7 million in tax basis bad debt reserves for which no income tax liability has been recorded. In the future, if this tax basis bad debt reserve

 

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Notes to Consolidated Financial Statements — (Continued)

 

is used for purposes other than to absorb bad debts or the Company no longer qualifies as a bank, the Company will incur a federal tax liability at the then prevailing corporate tax rate, estimated as $4.4 million at December 31, 2010.

The following is a tabular reconciliation of the total amounts of unrecognized tax benefits:

 

     December 31,  
(in thousands)    2010      2009  

Balance, beginning of year

   $       $ 330   

Gross increases — tax positions in prior period

               

Gross decreases — tax positions in prior period

             330   

Gross increases — current-period tax positions

               

Settlements

               

Lapse of statute of limitations

               
                 

Unrecognized Tax Benefit

   $       $   
                 

The Company does not anticipate a significant increase or decrease with respect to its unrecognized tax benefits within the next twelve months.

The Company is subject to taxation in the US and various states. The Company’s tax years for 2007 onwards are subject to examination by the tax authorities.

NOTE 15 — 401(k) SAVINGS AND EMPLOYEE STOCK OWNERSHIP PLAN:

The Company maintains a 401(k) Savings and Employee Stock Ownership Plan (the “Plan”) for the benefit of its employees. The Plan covers substantially all employees of the Company after completion of the required length of service and provides for payment of retirement benefits to employees pursuant to the provisions of the Plans.

Discretionary contributions to the Plan are determined by the Board of Directors. The contribution to the employee stock ownership portion of the Plan is credited to the account of each individual participant based on the relevant percent of each participant’s eligible compensation, and dividends are automatically reinvested. Employees may contribute up to 16 percent of their eligible compensation on a tax-deferred basis through the 401(k) provisions of the Plan. The Company employer-matching contribution to the 401(k) is 50 percent of the first 6 percent of an employee’s eligible compensation that is contributed by the employee to the Plan. The Company suspended the employer-matching contribution effective in August of 2009 and resumed contributions in July of 2010. Salaries and related costs for the years ended December 31, 2010, 2009, and 2008, included employer contributions of $0.2 million, $0.1 million, and $0.7 million, respectively.

NOTE 16 — STOCK-BASED COMPENSATION PLANS:

Net income for the years ended December 31, 2010, 2009, and 2008, included $16,000, $0, and ($654,000) of compensation costs (reversal), respectively.

2002 Long-Term Incentive Plan

In 2002 the Company adopted the HomeStreet, Inc. 2002 Long-Term Incentive Plan for management of the Company and the Board of Directors. This liability-based plan provides for the award of company shares of stock based on a percentage of participants’ compensation and certain measures of the Company’s financial performance.

 

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During 2005, the 2002 Long-Term Incentive Plan as it related to the Board of Directors was terminated. During 2008, the Company paid amounts that were fully vested from prior years and adjusted compensation expense for previous accruals for shares not yet vested as performance milestones for vesting could no longer be achieved. At December 31, 2010, 2009, and 2008, there were no amounts owing to participants.

2010 Equity Incentive Plan

In January 2010, the shareholders approved the 2010 Equity Incentive Plan (the “2010 EIP”). Under the 2010 EIP all of the Company’s officers, employees, directors and/or consultants are eligible to receive awards. Awards which may be granted under the 2010 EIP include Incentive Stock Options, Nonqualified Stock Options, Stock Appreciation Rights, Restricted Stock Awards, Restricted Stock Unit Awards, Stock Bonus Awards and Incentive Bonus Awards, or combination of the foregoing. The maximum number of shares of HomeStreet, Inc. common stock available for grant under the 2010 EIP is 337,700.

Under the 2010 EIP, the exercise price of the option may not be less than the fair market value of a share of common stock at the grant date. The options generally vest on a graded schedule from one to five years, depending on the terms of the grant, and generally expire ten years from the grant date.

During the latter part of 2010, nonqualified options were granted outside, but under substantially the same terms, of the 2010 EIP. This issuance was assessed against the maximum number of shares available for grant under the 2010 EIP. This issuance was approved by the Board of Directors and appropriate regulatory agencies and was issued to key senior management personnel.

A summary of changes in nonqualified stock options granted, but not vested, for the year ended December 31, 2010, is as follows:

 

     Number      Weighted
Average
Exercise Price
     Weighted
Average
Remaining
Contractual
Term (in yrs.)
     Aggregate
Intrinsic
Value(2)
(in thousands)
 

Options outstanding at December 31, 2009

           

Granted

     279,000       $ 1.17         2.9      

Cancelled or forfeited

                     

Exercised

                     
                 

Options outstanding at December 31, 2010

     279,000         1.17         2.9           
                 

Options that are exercisable and expected to be exercisable(1)

     273,420         1.17         2.9           

Options exercisable

     69,750         1.17         2.9           

 

 

(1) Adjusted for estimated forfeitures.

 

(2) Intrinsic value is the amount by which fair value of the underlying stock exceeds the exercise price.

No options have been exercised under this plan during 2010, and as such there is no related intrinsic value, cash received, or income tax benefits to exercised options. As of December 31, 2010, there was $40,598 of total unrecognized compensation costs related to stock options. Compensation costs are recognized over the requisite service period, which typically is the vesting period. Unrecognized compensation costs are expected to be recognized over the remaining weighted average requisite service period of 2.9 years.

 

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As observable market prices are generally not available for estimating the fair value of stock options, particularly as the Company is not actively traded in a public market, an option-pricing model is utilized to estimate fair value. The fair value of the options granted under the Company’s 2010 EIP was estimated as of the grant date using a Black-Scholes model, which used the assumptions noted in the following table:

 

Expected term of the option

     5 years   

Expected stock price volatility

     37.53   

Annual risk-free interest rate

     2.267   

Expected annual dividend yield

     0.00

The Company had a stock price valuation performed by a third-party valuation expert. They based their estimate on the financial condition and operations of the Company as well as general economic conditions and market activity of other similar entities.

The expected term of five years is an estimate based on an expectation that the holders of the stock options, once vested, will exercise them – ultimately reflecting the settlement of all vested options. As the Company does not have historical exercise behavior to reference for these types of options, the Company leveraged the “simplified” method for estimating the expected term of these “plain-vanilla” stock options, as permitted by current accounting standards.

When estimating expected volatility and the annual risk-free interest rate, the Company considered historical data of other similar entities that are publically traded over a period commensurate with the life of the options. A single median was derived for each input from this population of banks.

NOTE 17 — FAIR VALUE ACCOUNTING AND MEASUREMENT:

The term “fair value” is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. A fair value measurement assumes that the transaction to sell the asset or transfer the liability occurs in the principal market for the asset or liability or, in the absence of a principal market, the most advantageous market for the asset or liability. The Company’s approach is to maximize the use of observable inputs and minimize the use of unobservable inputs when developing fair value measurements.

Fair Value Hierarchy

The fair value hierarchy prioritizes the inputs used to measure fair value by assigning the highest priority to quoted prices in active markets for identical assets or liabilities and the lowest priority to unobservable inputs. The Company groups its financial assets and liabilities within levels determined by the markets in which the assets and liabilities are traded. The levels are defined as follows:

 

   

Level 1 — Quoted prices in active markets for identical assets or liabilities. An active market for the asset or liability is a market in which transactions occur with sufficient frequency and volume to provide information on an ongoing basis.

 

   

Level 2 — Quoted prices for similar instruments in active markets, quoted prices for identical or similar instruments in markets that are not active, and model-based valuations where inputs are observable or when value drivers are observable.

 

   

Level 3 — Valuation is modeled using inputs that are both significant to the measurement and unobservable in the market. These inputs reflect the Company’s assumptions of what market participants would use in pricing the asset or liability.

 

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Estimation of Fair Value

Fair value is based on quoted prices in an active market when available. In certain cases where a quoted price for an asset or liability is not available, the Company uses valuation models to estimate its fair value. These models incorporate inputs such as forward yield curves, loan prepayment assumptions, expected loss assumptions, market volatilities, and pricing spreads utilizing market-based inputs where readily available. The Company believes these inputs are comparable to those that would be used by other market participants. As an estimate, the fair value cannot be determined with precision and may not be realized in an actual sale or transfer of the asset or liability in a current market exchange.

Asset and Liability Measurements

Cash and Cash Equivalents

For cash and cash equivalents, the carrying value is a reasonable estimate of fair value based on the short-term nature of the instruments.

Investment Securities Available for Sale

Investment securities available for sale are recorded at fair value on a recurring basis. The fair values of securities available for sale are generally based on observable market prices of identical or similar securities. If market prices are not readily available, fair value is estimated using a discounted cash flow model, which considers expected prepayment factors and the degree of related credit risk. Fair value measurements for investment securities are obtained from an independent third party pricing service. These unadjusted fair values are reported in the financial statements. Their underlying assumptions and valuation inputs are classified as Level 2.

Loans Held for Sale

The Company elected to carry new loans originated for sale at fair value, in accordance with fair value option guidance. The fair value of loans held for sale is based on quoted market prices, where available, or dealer quotes for portfolios with similar characteristics. In addition, values for forward sale commitments provide observable data/inputs related to the fair value of loans held for sale. These valuation inputs are classified as Level 2.

Loans Held for Investment

For the carrying value of loans see Note 1, Summary of Significant Accounting Policies of this report. The Company does not record loans at fair value on a recurring basis. As such, valuation techniques discussed herein for loans are primarily for estimating fair value for financial instruments in accordance with accounting guidance on financial instruments. However, from time to time, nonrecurring fair value adjustments to loans are recorded to reflect (1) partial write-downs that are based on observable market prices or current appraised value of collateral, or (2) the full charge-off of the loan carrying value.

The fair value of loans held for investment was determined by discounting contractual cash flows using current lending rates for new loans with similar maturities. Prepayment assumptions were also included for residential loans. For variable rate loans which reprice based on the prime rate, the estimated fair values are based on the recorded book values. The resulting value for all loan types is reduced by the allowance for loan losses. As the allowance for loan losses is based on an incurred-loss model, it does not consider future loss projections and as such this factor does not incorporate the exit-price concept of fair value.

 

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The fair value of impaired loans is measured on a nonrecurring basis and in accordance with ASC 310-40. A loan is considered impaired when, based on current information and events, it is probable that the Company will be unable to collect all amounts due (both interest and principal) according to contractual terms of the loan agreement. Impaired loans are measured based on management’s estimate of the fair value of the collateral considering current and anticipated future market conditions or estimated present value of total expected cash flows, if not collateral dependent. These valuation inputs are considered to be Level 3 inputs.

Mortgage Servicing Rights

Single family MSRs are recorded at fair value on a recurring basis. Multifamily MSRs are recorded at the lower of amortized cost or fair value. Single family MSRs do not trade in an active market with readily observable prices. Accordingly, the fair value of MSRs is determined using a valuation model that calculates the present value of estimated future net servicing cash flows. Significant assumptions used in the valuation of single-family MSRs include market interest rates, projected prepayment speeds, discount rates, costs of servicing, other income, and credit losses. Additionally, the Company obtains third-party appraisals of the estimated fair value of single family MSRs. The Company uses this information along with the valuation methodology to estimate the fair value of single family MSRs. Single family MSRs’ fair value use significant unobservable inputs and, as such, are classified as Level 3 inputs.

Multifamily MSRs are recorded on a nonrecurring basis and are based on the estimated discounted cash flows and are amortized in proportion to, and over, the estimated period the net servicing income will be collected. Significant assumptions used in the valuation of multifamily MSRs include market interest rates, projected prepayment speeds, discount rates, costs of servicing, other income, and credit losses. Multifamily MSRs benefit from “prepayment penalties” that restore lost servicing fee income resulting from loan prepayments. As such, fair value approximates amortized cost for Multifamily MSRs assets. Multifamily MSRs’ fair value use significant unobservable inputs and, as such, are classified as Level 3 inputs.

Derivatives

Derivatives are recorded at fair value on a recurring basis. The fair value of derivatives is estimated using internally developed modeling techniques, as the derivatives held on the balance sheet are traded in over-the-counter markets where quoted market prices are not readily available. These models require the use of multiple observable market inputs including projections of forward interest rates and interest rate volatilities. Significant market inputs are observable and can be validated through external sources, including brokers and market transactions. Types of derivative contracts held by the Company include forward-sale commitments, futures, interest rate swaps, and interest rate lock commitments written for residential mortgage loans that the Company intends to sell. These derivative instruments are classified as Level 2.

Other Real Estate Owned (“OREO”)

OREO are foreclosed assets and are adjusted to fair value, less cost to sell, upon transfer of the loans to OREO. Subsequently, OREO assets are carried at the lower of carrying value or fair value less the cost to sell. Fair value recorded on a nonrecurring basis is generally based on independent market prices or appraised values of the collateral and, accordingly, OREO is classified as Level 3.

Federal Home Loan Bank Stock

FHLB stock is carried at par value, its historical cost. Carrying value approximates fair value as FHLB stock can only be purchased or redeemed at par value.

 

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HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

Deposits

Deposit liabilities are carried at historical cost. As such, valuation techniques discussed herein for deposits are primarily for estimating fair value for financial instruments in accordance with accounting guidance on financial instruments. The fair value of demand deposits is estimated as the amount payable on demand at the reporting date. The fair value of fixed-maturity certificates of deposit is estimated using the rates currently offered for deposits of similar remaining maturities.

Federal Home Loan Bank Advances

FHLB advances are carried at historical cost. As such, valuation techniques discussed herein for FHLB advances are primarily for estimating fair value for financial instruments in accordance with accounting guidance on financial instruments. Rates currently available to the Bank for advances with similar terms and remaining maturities are used to estimate the fair value of existing advances.

Long-Term Debt

Long-term debt is carried at historical cost. As such, valuation techniques discussed herein for long-term debts are primarily for estimating fair value for financial instruments in accordance with accounting guidance on financial instruments. The estimated fair value for long-term debt was determined by discounting contractual cash flows using current lending rates for similar long-term debt instruments with similar maturities.

 

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HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

The following presents the hierarchy level for the Company’s assets and liabilities measured at fair value on a recurring basis:

 

(in thousands)   Fair Value at
December 31,
2010
     Level 1      Level 2      Level 3  

Assets:

          

Investment securities available for sale

          

Mortgage-backed securities

  $ 4,697       $       $ 4,697       $   

Municipal bonds

    6,549                 6,549           

Collateralized mortgage obligations — residential

    221,921                 221,921           

US Treasury Securities

    80,346                 80,346           

Single-family mortgage servicing rights

    81,197                         81,197   

Loans held for sale

    198,784                 198,784           

Derivatives

          

Forward sale commitments

    2,263                 2,263           

Interest rate locks on loans

    2,302                 2,302           
                                  

Total

  $ 598,059       $       $ 516,862       $ 81,197   
                                  

Liabilities:

          

Derivatives

          

Interest rate swaps

  $ 22,221       $       $ 22,221       $   
                                  

Total

  $ 22,221       $       $ 22,221       $   
                                  

 

(in thousands)   Fair Value at
December 31,
2009
    Level 1     Level 2     Level 3  

Assets:

       

Investment securities available for sale

       

Mortgage-backed securities

  $ 6,202      $      $ 6,202      $   

Municipal bonds

    8,535               8,535          

Collateralized mortgage obligations — Residential

    155,900               155,900          

Corporate Debt Securities

    20,196               20,196          

US Treasury Securities

    467,007               467,007          

Derivatives

       

Forward sale commitments

    1,805               1,805          

Interest rate swaps

    339                      339   
                               

Total

  $ 659,984      $      $ 659,645      $ 339   
                               

Liabilities:

       

Derivatives

       

Futures

  $ 648      $      $ 648      $   

Interest locks on loans

    994               994          

Interest rate swaps

    5,506               5,506          
                               

Total

  $ 7,148      $  —      $ 7,148      $   
                               

There were no transfers between level classifications during 2010.

 

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HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

The following presents additional information about Level 3 assets measured at fair value on a recurring basis:

 

     Interest Rate Swaps  
     Year ended December 31,  
(in thousands)         2010               2009       

Beginning Balance

   $ 339      $ 3,003   

Gains included in income

     19        839   

Losses included in other comprehensive income

            (1,636

Purchases, issuances and settlements

     (358     (1,867
                

Ending Balance

   $      $ 339   
                
     Single-Family Mortgage
Servicing Rights
 
     Year ended December 31,  
(in thousands)    2010     2009  

Beginning Balance

   $ 78,350      $   

Losses included in income

     (21,107       

Purchases, issuances and settlements

     23,954          
                

Ending Balance

   $ 81,197      $   
                

Certain financial assets and financial liabilities are measured at fair value on a nonrecurring basis; that is, the instruments are not measured at fair value on an ongoing basis but are subject to fair value adjustments in certain circumstances. These adjustments to fair value usually result from the application of lower of cost or fair value accounting or recognition of impairment of assets.

The following presents the hierarchy level for the Company’s assets measured at fair value on a nonrecurring basis:

 

(in thousands)    Fair Value at
December 31,
2010
     Level 1      Level 2      Level 3      Year ended
December 31,
2010 Total
Gains (Losses)
 

Impaired loans

   $ 138,175                       $  138,175       $ (63,599

Other real estate owned

     170,455                         170,455         (27,459

Multifamily mortgage servicing rights

     6,035                         6,035           
                                            

Total

   $ 314,665       $       $       $ 314,665       $ (91,058
                                            

 

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HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

At December 31, 2010 and 2009, the carrying values and estimated fair values of the Company’s other financial instruments are as follows:

 

     December 31, 2010  
(in thousands)    Carrying
Value
     Estimated
Fair Value
 

Financial assets:

     

Cash and cash equivalents

   $ 72,639       $ 72,639   

Loans held for investment

     1,538,521         1,539,821   

Federal Home Loan Bank stock

     37,027         37,027   

Financial liabilities:

     

Deposits

     2,129,742         2,155,075   

Federal Home Loan Bank advances

     165,869         172,152   

Long-term debt

     66,857         67,164   
     December 31, 2009  
(in thousands)    Carrying
Value
     Estimated
Fair Value
 

Financial assets:

     

Cash and cash equivalents

   $ 217,103       $ 217,103   

Mortgage loans held for sale

     57,046         57,046   

Loans held for investment

     1,964,994         1,972,385   

Mortgage servicing rights

     78,372         84,683   

Federal Home Loan Bank stock

     37,027         37,027   

Financial liabilities:

     

Deposits

     2,332,333         2,346,253   

Federal Home Loan Bank advances

     677,840         690,994   

Long-term debt

     66,857         70,791   

NOTE 18 — EARNINGS PER SHARE:

The following table summarizes the calculation of earnings per share for the years ended December 31:

 

(in thousands, except share data)    2010     2009     2008  

Net (loss) income

   $ (34,247   $ (110,276   $ 8,429   
                        

Weighted average shares:

      

Basic weighted average common shares outstanding

     3,377,186        3,377,186        3,371,622   

Dilutive effect of outstanding common stock equivalents(1)

                   4,272   
                        

Diluted weighted average number of common stock outstanding

     3,377,186        3,377,186        3,375,894   
                        

Earnings per share:

      

Basic (loss) earnings per share

   $ (10.14   $ (32.65   $ 2.50   
                        

Diluted (loss) earnings per share

   $ (10.14   $ (32.65   $ 2.50   
                        

 

 

(1) Includes incremental shares from common stock equivalents, such as stock options. Due to a net loss for 2010, no dilutive potential common shares were included in the calculation of diluted EPS because they were anti-dilutive. There were no outstanding common stock equivalents during 2009.

 

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HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

NOTE 19 — OPERATING SEGMENTS:

The Company has identified four business lines for the purposes of management reporting: Community Banking; Single Family Lending; Income Property Lending; Residential Construction Lending; as well as an All Other category. The results for these lines of business are based on a management accounting process that assigns balance sheet and income statement items to each responsible operating segment. This process is dynamic and, unlike financial accounting, there is no comprehensive, authoritative guidance for management accounting equivalent to GAAP. Our approach has focused, in the years presented, on managing revenues and expenses by segment and in total. The management accounting process measures the performance of the operating segments based on the Company’s management structure and is not necessarily comparable with similar information for other financial services companies. The Company defines its operating segments by product type and customer segment. If the management structure and/or the allocation process changes, allocations, transfers, and assignments may change.

Community Banking provides diversified financial products and services to our consumer and business customers, including deposit products, investment products, insurance products, cash management services and consumer and business loans.

Single Family Lending originates and sells into the secondary market residential mortgage loans both directly and through our relationship with Windermere Mortgage Services. We generally retain the right to service residential mortgage loans sold into the secondary market. This segment also originates and services loans for our portfolio on a selective basis, including home equity loans and lines of credit.

Income Property Lending originates commercial real estate loans with a focus on multifamily lending through our Fannie Mae DUS business. These loans are sold to or securitized by Fannie Mae and we generally retain the right to service them. Our income property lending segment also originates commercial construction and land loans, bridge loans and permanent loans for our portfolio.

Residential Construction Lending originates and services construction and land loans primarily for our own portfolio.

The All Other category includes: (1) asset/liability management which includes interest rate risk, liquidity position and capital. Asset/liability management responsibilities involve managing the Company’s portfolio of investment securities and providing oversight and direction across the enterprise over matters impacting the Company’s balance sheet and off-balance sheet risk. Such activities include determining the optimal production composition and concentration of loans in the loan portfolio, the appropriate mix of funding sources at any given point in time, and the allocation of capital resources to the business segments; (2) general corporate overhead costs associated with the Company’s facilities, legal, accounting and finance functions, human resources, and technology services; and (3) the residual impact of our cost allocation processes.

We use various management accounting methodologies to assign certain income statement items to the responsible operating segment, including:

 

   

a funds transfer pricing system, which allocates interest income credits and funding charges between the operating segments and the Treasury division within the All Other category, with that division assigning a segment a funding credit for its liabilities, such as deposits, and a charge to fund its assets;

 

   

an allocation of charges for services rendered to the segments by centralized functions, such as corporate overhead, which are generally based on each segment’s consumption patterns; and

 

   

income taxes for the Company on a consolidated basis are allocated based on the effective tax rate applied to the segment’s pretax income or loss.

 

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HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

Financial highlights by operating segment were as follows:

 

     Year Ended December 31, 2010  
     Community
Banking
    Single
Family
Lending
    Income
Property
    Residential
Construction
    Other     Total  
(in thousands)                                     

Condensed income statement:

            

Net interest income (expense)(1)

   $ 32,316      $ 22,004      $ 6,114      $ (2,386   $ (19,014   $ 39,034   

Provision for loan losses

     (3,434     (11,793     (810     (21,263            (37,300

Noninterest income

     4,631        83,436        2,952        8        5,904        96,931   

Noninterest expense

     (22,479     (40,941     (4,894     (32,371     (31,530     (132,215

Inter-segment revenue (expense)

     (7,820     (11,877     (2,487     (2,163     24,347          
                                                

Income (loss) before income taxes

     3,214        40,829        875        (58,175     (20,293     (33,550

Income tax (benefit) expense

     (67     (848     (18     1,209        421        697   
                                                

Net income (loss)

   $ 3,281      $ 41,677      $ 893      $ (59,384   $ (20,714   $ (34,247
                                                
     Year Ended December 31, 2009  
     Community
Banking
    Single
Family
Lending
    Income
Property
    Residential
Construction
    Other     Total  
(in thousands)                                     

Condensed income statement:

            

Net interest income (expense)(1)

   $ 24,557      $ 22,365      $ 2,776      $ (6,279   $ (11,917   $ 31,502   

Provision for loan losses

     (4,685     (8,887     (34,275     (105,668            (153,515

Noninterest income

     4,147        50,739        3,339        12        993        59,230   

Noninterest expense

     (23,487     (19,463     (4,338     (18,396     (28,764     (94,448

Inter-segment revenue (expense)

     (7,651     (11,620     (2,434     (2,116     23,821          
                                                

Income (loss) before income taxes

     (7,119     33,134        (34,932     (132,447     (15,867     (157,231

Income tax expense (benefit)

     (2,126     9,895        (10,432     (39,554     (4,738     (46,955
                                                

Net income (loss)

   $ (4,993   $ 23,239      $ (24,500   $ (92,893   $ (11,129   $ (110,276
                                                
     Year Ended December 31, 2008  
     Community
Banking
    Single
Family
Lending
    Income
Property
    Residential
Construction
    Other     Total  
(in thousands)                                     

Condensed income statement:

            

Net interest income (expense)(1)

   $ 22,134      $ 22,250      $ 12,463      $ 19,169      $ (131   $ 75,885   

Provision for loan losses

     (4,023     (2,134     (2,825     (25,429            (34,411

Noninterest income

     3,681        27,034        5,774        (198     4,055        40,346   

Noninterest expense

     (18,135     (20,737     (4,515     (7,562     (19,240     (70,189

Inter-segment revenue (expense)

     (5,978     (9,080     (1,902     (1,654     18,614          
                                                

Income (loss) before income taxes

     (2,321     17,333        8,995        (15,674     3,298        11,631   

Income tax expense (benefit)

     (639     4,772        2,476        (4,315     908        3,202   
                                                

Net income (loss)

   $ (1,682   $ 12,561      $ 6,519      $ (11,359   $ 2,390      $ 8,429   
                                                

 

(1)

Net interest income is the difference between interest earned on assets and cost of liabilities to fund those assets. Interest earned includes actual interest earned on segment assets and, if the segment has excess

 

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HomeStreet, Inc. and Subsidiaries

Notes to Consolidated Financial Statements — (Continued)

 

 

liabilities, interest credits for providing funding to other segments. The cost of liabilities includes interest expense on segment liabilities and, if the segment does not have enough liabilities to fund its assets, a funding charge based on the cost of excess liabilities from another segment or category.

NOTE 20 — PARENT COMPANY FINANCIAL STATEMENTS:

Condensed financial information for HomeStreet, Inc. as of and for the years ended December 31 is as follows:

Condensed Statements of Financial Condition

 

(in thousands)             
     2010     2009  

Assets

    

Cash and cash equivalents

   $ 2,814      $ 3,319   

Other assets

     9,098        10,902   

Investment in stock of subsidiaries

     133,586        161,036   
                
   $ 145,498      $ 175,257   
                

Liabilities:

    

Other liabilities

     19,852        16,504   

Long-term debt

     66,857        66,857   
                
     86,709        83,361   

Shareholders’ Equity:

    

Preferred stock, no par value

              

Common stock, no par value

     511        511   

Additional paid-in capital

     16     

Retained earnings

     65,627        93,374   

Accumulated other comprehensive loss

     (7,365     (1,989
                
     58,789        91,896   
                
   $ 145,498      $ 175,257   
                

Condensed Statements of Income

 

(in thousands)    2010     2009     2008  

Net interest expense

   $ (3,812   $ (4,215   $ (4,728

Noninterest income

     1,236        884        4,519   
                        

Loss before income tax expense and equity in income of subsidiaries

     (2,576     (3,331     (209

(Loss) income from subsidiaries

     (28,574     (107,674     9,494   
                        
     (31,150     (111,005     9,285   

Noninterest expense

     3,559        2,055        1,313   
                        

(Loss) income before income tax benefit

     (34,709     (113,060     7,972   

Income tax benefit

     (462     (2,784     (457
                        

Net (loss) income

   $ (34,247   $ (110,276   $ 8,429   
                        

 

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Table of Contents

 

 

 

                     Shares

HomeStreet, Inc.

Common Stock

LOGO

FBR C APITAL M ARKETS

            , 2011

DEALER PROSPECTUS DELIVERY OBLIGATION

Until                     , all dealers that effect transactions in these securities, whether or not participating in this offering, may be required to deliver a prospectus. This is in addition to the dealers’ obligation to deliver a prospectus when acting as underwriters and with respect to their unsold allotments or subscriptions.

 

 

 

 

 


Table of Contents

PART II

INFORMATION NOT REQUIRED IN THE PROSPECTUS

ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.

The table below lists various expenses, other than underwriting discounts and commissions, we expect to incur in connection with the sale and distribution of the securities being registered hereby. All the expenses are estimates, except the Securities and Exchange Commission registration fee, the Financial Industry Regulatory Authority (FINRA) filing fee and the Nasdaq Global Market listing fee.

 

Type

   Amount  

Securities and Exchange Commission Registration Fee

   $ 24,381   

FINRA Filing Fee

   $ 21,500   

Nasdaq Listing Fee

   $ *   

Legal fees and expenses

     *   

Accounting fees and expenses

     *   

Printing and engraving expenses

     *   

Transfer agent and registrar fees

     *   

Miscellaneous expenses

     *   
        

Total

   $ *   

 

 * To be filed by amendment

ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.

Sections 23B.08.500 through 23B.08.600 of the Washington Business Corporation Act, or the WBCA, authorize a court to award, or a corporation’s board of directors to grant, indemnification to directors and officers on terms sufficiently broad to permit indemnification under certain circumstances for liabilities arising under the Securities Act of 1933. Article 10 of our Amended and Restated Bylaws provides for indemnification of the Registrant’s directors, officers, employees and agents to the maximum extent permitted by Washington law. The directors and officers of the Company also may be indemnified against liability they may incur for serving in such capacity pursuant to a liability insurance policy we maintain for such purpose.

Section 23B.08.320 of the WBCA authorizes a corporation to limit a director’s liability to the corporation or its shareholders for monetary damages for acts or omissions as a director, except in certain circumstances involving intentional misconduct, knowing violations of law or illegal corporate losses or distributions, or any transaction from which the director personally receives a benefit in money, property or services to which the director is not legally entitled. Article 7 of our Amended and Restated Articles of Incorporation contains provisions implementing, to the fullest extent permitted by Washington law, such limitations on a director’s liability to the Company and its shareholders.

In addition to the indemnification provided by our bylaws, prior to the closing of this offering, we will have entered into agreements to indemnify our directors and executive officers. These agreements, among other things, will require us to indemnify these directors and officers for certain expenses, including attorneys’ fees, judgments, fines and settlement amounts incurred by any such person in any action or proceeding, including any action by or in our right, arising out of that person’s services as a director or officer of us or any of our subsidiaries or any other company or enterprise to which the person provides services at our request. These indemnification provisions and the indemnification agreements may be sufficiently broad to permit indemnification of our officers and directors for liabilities, including reimbursement of expenses incurred, arising under the Securities Act. We also intend to maintain director and officer liability insurance, if available on reasonable terms, that could apply even in the event we are not required to indemnify the insured person.

 

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Table of Contents

ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.

 

Exhibit
Number

 

Description

  1.1**   Form of Underwriting Agreement
  3.1†   Amended and Restated Articles of Incorporation of HomeStreet, Inc.
  3.2†   Amended and Restated Bylaws of HomeStreet, Inc.
  4.1**   Form of Common Stock Certificate
  4.2*   Amended and Restated Family Shareholder Agreement of HomeStreet, Inc. dated October 23, 2008
  4.3   Reference is made to Exhibit 3.1
  4.4   Instruments with respect to long-term debt of HomeStreet, Inc. and its consolidated subsidiaries are omitted pursuant to Item 601(b)(4)(iii) of Regulation S-K since the total amount of securities authorized thereunder does not exceed 10 percent of the total assets of HomeStreet, Inc. and its subsidiaries on a consolidated basis. HomeStreet, Inc. hereby agrees to furnish a copy of any such instrument to the Securities and Exchange Commission upon request.
  5.1**   Opinion of Davis Wright Tremaine LLP
10.1†   HomeStreet, Inc. 2002 Long Term Incentive Plan
10.2†   HomeStreet, Inc. 2010 Equity Incentive Plan
10.3†   HomeStreet, Inc. 401(k) Savings Plan, restated as of January 1, 2011, and amendment to the HomeStreet, Inc. 401(k) Savings Plan adopted as of February 24, 2011
10.4†   Employee Stock Ownership Plan and Trust, restated as of January 1, 2011
10.5†   HomeStreet, Inc. Directors’ Deferred Compensation Plan, effective February 1, 2004, as amended and restated December 19, 2008, executed by HomeStreet, Inc. and HomeStreet Bank
10.6†   HomeStreet, Inc. Executive Deferred Compensation Plan, effective February 1, 2004, as amended and restated December 19, 2008, executed by HomeStreet, Inc., HomeStreet Bank and HomeStreet Capital Corporation
10.7*   Form of HomeStreet, Inc. Award Agreement for Nonqualified Stock Options and Standard Terms and Conditions for Nonqualified Stock Options, granted October 22, 2010 and November 29, 2010
10.8*   Employment Agreement between HomeStreet, Inc., HomeStreet Bank, and Mark Mason (pre-offering)
10.9*   Employment Agreement between HomeStreet, Inc., HomeStreet Bank, and Mark Mason (post-offering)
10.10*   Employment Agreement between HomeStreet, Inc., HomeStreet Bank, and David Hooston (pre-offering)
10.11*   Employment Agreement between HomeStreet, Inc., HomeStreet Bank, and David Hooston (post-offering)
10.12*   Employment Agreement between HomeStreet, Inc., HomeStreet Bank, and Godfrey Evans (pre-offering)
10.13*   Employment Agreement between HomeStreet, Inc., HomeStreet Bank, and Godfrey Evans (post-offering)
10.14*   Employment Agreement between HomeStreet, Inc., HomeStreet Bank, and Jay Iseman (pre-offering)

 

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Table of Contents

Exhibit
Number

 

Description

10.15*   Employment Agreement between HomeStreet, Inc., HomeStreet Bank, and Jay Iseman (post-offering)
10.16†   Form of Officer Indemnification Agreement for HomeStreet, Inc.
10.17†   Form of Director Indemnification Agreement for HomeStreet, Inc.
10.18†   Form of 2011 Director and Officer Indemnification for HomeStreet, Inc.
10.19†   Stipulation and Consent to Issuance of an Order to Cease and Desist, dated May 7, 2009, between HomeStreet Bank, Federal Deposit Insurance Corporation and Washington Department of Financial Institutions
10.20†   Order to Cease and Desist to HomeStreet Bank, issued by Federal Deposit Insurance Corporation and Washington Department of Financial Institutions, dated May 8, 2009
10.21†   Stipulation and Consent to Issuance of Order to Cease and Desist, effective May 18, 2009 by HomeStreet, Inc., accepted by Office of Thrift Supervision
10.22†   Order to Cease and Desist to HomeStreet, Inc., effective May 18, 2009, issued by Office of Thrift Supervision
10.23††*   Office Lease, dated March 5, 1992, between Continental, Inc. and One Union Square Venture, as amended by Supplemental Lease Agreement dated August 25, 1992, Second Amendment to Lease dated May 6, 1998, Third Amendment to Lease dated June 17, 1998, Fourth Amendment to Lease dated February 15, 2000, Fifth Amendment to Lease dated July 30, 2001, Sixth Amendment to Lease dated March 5, 2002, Seventh Amendment to Lease dated May 19, 2004, Eighth Amendment to Lease dated August 31, 2004, Ninth Amendment to Lease dated April 19, 2006, Tenth Amendment to Lease dated July 20, 2006, Eleventh Amendment to Lease dated December 27, 2006, Twelfth Amendment to Lease dated October 1, 2007, and Thirteenth Amendment to Lease dated January 26, 2010
10.24†   Advances, Security and Deposit Agreement, dated as of June 20, 2004, between HomeStreet Bank and the Federal Home Loan Bank of Seattle
10.25*   Letter Agreement, dated January 5, 2007, by HomeStreet Bank to Federal Reserve Bank of San Francisco
10.26†   Master Custodial Agreement for Custody of Single Family MBS Pool Mortgage Loans, dated October 2009, between HomeStreet Bank, Federal National Mortgage Association, and U.S. Bank, N.A.
10.27††*   Master Agreement ML 02783 between HomeStreet Bank and Fannie Mae, dated March 15, 2010, amended by Letter Agreement dated March 15, 2011
10.28†   Master Agreement, dated as of June 17, 2010, between HomeStreet Bank and Freddie Mac
10.29††*   Cash Pledge Agreement, dated as of June 1, 2010, between HomeStreet Bank and Federal Home Loan Mortgage Corporation
10.30*   Amended and Restated Limited Liability Company Agreement of Windermere Mortgage Services Series LLC, dated May 1, 2005, including form of separate series designation
10.31†   Correspondent Purchase and Sale Agreement, effective September 1, 2010, between HomeStreet Bank and Windermere Mortgage Services Series LLC
10.32**   HomeStreet, Inc., 2011 Management/Support Performance Based Annual Incentive Plan

 

II-3


Table of Contents

Exhibit
Number

 

Description

10.33*   Master Agreement between HomeStreet Bank and Government National Mortgage Association effective January 3, 2011
21†   Subsidiaries of HomeStreet, Inc.
23.1**   Consent of Davis Wright Tremaine LLP (included as part of Exhibit 5.1)
23.2*   Consent of KPMG LLP
24.1   Powers of Attorney (included on signature page of Registration Statement hereto)

 

* Filed herewith.

 

** To be filed by amendment.

 

Previously filed.

 

†† Portions of this document have been redacted pending a determination by the Commission as to whether such portions shall be subject to confidential treatment.

ITEM 17. UNDERTAKINGS.

The undersigned registrant hereby undertakes:

 

(a) to provide to the underwriter at the closing specified in the underwriting agreement, certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

 

(b) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective; and

 

(c) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

Insofar as indemnification for liabilities arising under the Securities Act, may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

II-4


Table of Contents

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Amendment No. 2 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Seattle, State of Washington, on June 20, 2011.

 

HOMESTREET, INC.

By:

 

/s/ Mark K. Mason

 

Mark K. Mason

 

Chief Executive Officer and Chairman

POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Mark K. Mason and David E. Hooston , and each of them acting individually, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments, to this registration statement, and any registration statement, including any amendment thereto, relating to the offering covered by this registration statement and filed pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents or his substitute or substitutes may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 2 to Registration Statement has been signed by the following persons in the capacities and on the date indicated.

 

Signature

  

Title

 

Date

/s/ Mark K. Mason

Mark K. Mason

   President and Chief Executive Officer
(Principal Executive Officer)
  June 20, 2011

/s/ David E. Hooston

David E. Hooston

   Chief Financial Officer (Principal Financial and Accounting Officer)   June 20, 2011

*

David A. Ederer

   Director, Chairman of the Board   June 20, 2011

*

Glory C. Beijar

   Director   June 20, 2011

*

Brian P. Dempsey

   Director   June 20, 2011

*

Gerhardt Morrison

   Director   June 20, 2011

 

II-5


Table of Contents

Signature

  

Title

 

Date

*

Janet L. Westling

   Director   June 20, 2011

*

Bruce W. Williams

   Director   June 20, 2011

*

Kathryn A. Williams

   Director   June 20, 2011

*

Marcia F. Williams

   Director   June 20, 2011

*

Wendy S. Williams

   Director   June 20, 2011

*

Karen M. Zimmerman

   Director   June 20, 2011

*

Steven W. Zimmerman

   Director   June 20, 2011

 

* By:   /s/ Mark K. Mason
  Mark K. Mason, Attorney in Fact

 

II-6


Table of Contents

EXHIBIT INDEX

 

Exhibit
Number

 

Description

  1.1**   Form of Underwriting Agreement
  3.1†   Amended and Restated Articles of Incorporation of HomeStreet, Inc.
  3.2†   Amended and Restated Bylaws of HomeStreet, Inc.
  4.1**   Form of Common Stock Certificate
  4.2*   Amended and Restated Family Shareholder Agreement of HomeStreet, Inc. dated October 23, 2008
  4.3   Reference is made to Exhibit 3.1
  4.4   Instruments with respect to long-term debt of HomeStreet, Inc. and its consolidated subsidiaries are omitted pursuant to Item 601(b)(4)(iii) of Regulation S-K since the total amount of securities authorized thereunder does not exceed 10 percent of the total assets of HomeStreet, Inc. and its subsidiaries on a consolidated basis. HomeStreet, Inc. hereby agrees to furnish a copy of any such instrument to the Securities and Exchange Commission upon request.
  5.1**   Opinion of Davis Wright Tremaine LLP
10.1†   HomeStreet, Inc. 2002 Long Term Incentive Plan
10.2†   HomeStreet, Inc. 2010 Equity Incentive Plan
10.3†   HomeStreet, Inc. 401(k) Savings Plan, restated as of January 1, 2011, and amendment to the HomeStreet, Inc. 401(k) Savings Plan adopted as of February 24, 2011
10.4†   Employee Stock Ownership Plan and Trust, restated as of January 1, 2011
10.5†   HomeStreet, Inc. Directors’ Deferred Compensation Plan, effective February 1, 2004, as amended and restated December 19, 2008, executed by HomeStreet, Inc. and HomeStreet Bank
10.6†   HomeStreet, Inc. Executive Deferred Compensation Plan, effective February 1, 2004, as amended and restated December 19, 2008, executed by HomeStreet, Inc., HomeStreet Bank and HomeStreet Capital Corporation
10.7*   Form of HomeStreet, Inc. Award Agreement for Nonqualified Stock Options and Standard Terms and Conditions for Nonqualified Stock Options, granted October 22, 2010 and November 29, 2010
10.8*   Employment Agreement between HomeStreet, Inc., HomeStreet Bank, and Mark Mason (pre-offering)
10.9*   Employment Agreement between HomeStreet, Inc., HomeStreet Bank, and Mark Mason (post-offering)
10.10*   Employment Agreement between HomeStreet, Inc., HomeStreet Bank, and David Hooston (pre-offering)
10.11*   Employment Agreement between HomeStreet, Inc., HomeStreet Bank, and David Hooston (post-offering)
10.12*   Employment Agreement between HomeStreet, Inc., HomeStreet Bank, and Godfrey Evans (pre-offering)
10.13*   Employment Agreement between HomeStreet, Inc., HomeStreet Bank, and Godfrey Evans (post-offering)
10.14*   Employment Agreement between HomeStreet, Inc., HomeStreet Bank, and Jay Iseman (pre-offering)
10.15*   Employment Agreement between HomeStreet, Inc., HomeStreet Bank, and Jay Iseman (post-offering)


Table of Contents

Exhibit
Number

 

Description

10.16†   Form of Officer Indemnification Agreement for HomeStreet, Inc.
10.17†   Form of Director Indemnification Agreement for HomeStreet, Inc.
10.18†   Form of 2011 Director and Officer Indemnification for HomeStreet, Inc.
10.19†   Stipulation and Consent to Issuance of an Order to Cease and Desist, dated May 7, 2009, between HomeStreet Bank, Federal Deposit Insurance Corporation and Washington Department of Financial Institutions
10.20†   Order to Cease and Desist to HomeStreet Bank, issued by Federal Deposit Insurance Corporation and Washington Department of Financial Institutions, dated May 8, 2009
10.21†   Stipulation and Consent to Issuance of Order to Cease and Desist, effective May 18, 2009 by HomeStreet, Inc., accepted by Office of Thrift Supervision
10.22†   Order to Cease and Desist to HomeStreet, Inc., effective May 18, 2009, issued by Office of Thrift Supervision
10.23††*   Office Lease, dated March 5, 1992, between Continental, Inc. and One Union Square Venture, as amended by Supplemental Lease Agreement dated August 25, 1992, Second Amendment to Lease dated May 6, 1998, Third Amendment to Lease dated June 17, 1998, Fourth Amendment to Lease dated February 15, 2000, Fifth Amendment to Lease dated July 30, 2001, Sixth Amendment to Lease dated March 5, 2002, Seventh Amendment to Lease dated May 19, 2004, Eighth Amendment to Lease dated August 31, 2004, Ninth Amendment to Lease dated April 19, 2006, Tenth Amendment to Lease dated July 20, 2006, Eleventh Amendment to Lease dated December 27, 2006, Twelfth Amendment to Lease dated October 1, 2007, and Thirteenth Amendment to Lease dated January 26, 2010
10.24†   Advances, Security and Deposit Agreement, dated as of June 20, 2004, between HomeStreet Bank and the Federal Home Loan Bank of Seattle
10.25*   Letter Agreement, dated January 5, 2007, by HomeStreet Bank to Federal Reserve Bank of San Francisco
10.26†   Master Custodial Agreement for Custody of Single Family MBS Pool Mortgage Loans, dated October 2009, between HomeStreet Bank, Federal National Mortgage Association, and U.S. Bank, N.A.
10.27††*   Master Agreement ML 02783 between HomeStreet Bank and Fannie Mae, dated March 15, 2010, amended by Letter Agreement dated March 15, 2011
10.28†   Master Agreement, dated as of June 17, 2010, between HomeStreet Bank and Freddie Mac
10.29††*   Cash Pledge Agreement, dated as of June 1, 2010, between HomeStreet Bank and Federal Home Loan Mortgage Corporation
10.30*   Amended and Restated Limited Liability Company Agreement of Windermere Mortgage Services Series LLC, dated May 1, 2005, including form of separate series designation
10.31†   Correspondent Purchase and Sale Agreement, effective September 1, 2010, between HomeStreet Bank and Windermere Mortgage Services Series LLC
10.32**   HomeStreet, Inc., 2011 Management/Support Performance Based Annual Incentive Plan
10.33*   Master Agreement between HomeStreet Bank and Government National Mortgage Association effective January 3, 2011
21†   Subsidiaries of HomeStreet, Inc.
23.1**   Consent of Davis Wright Tremaine LLP (included as part of Exhibit 5.1)


Table of Contents

Exhibit
Number

  

Description

23.2*    Consent of KPMG LLP
24.1    Powers of Attorney (included on signature page of Registration Statement hereto)

 

* Filed herewith.

 

** To be filed by amendment.

 

Previously filed.

 

†† Portions of this document have been redacted pending a determination by the Commission as to whether such portions shall be subject to confidential treatment.

Exhibit 4.2

AMENDED AND RESTATED

FAMILY SHAREHOLDERS AGREEMENT

OF

HOMESTREET, INC.

October 23, 2008

 


Table of Contents

 

         Page  

1.

  APPLICATION OF THIS AGREEMENT TO ALL SHARES      2   
  1.1    Family Agreement Shareholders      2   
  1.2    ESOP      2   
  1.3    Officers and Directors      2   
  1.4    Cessation      3   

2.

 

GENERAL RESTRICTION ON TRANSFER

     3   

3.

 

PERMITTED TRANSFERS

     3   
  3.1    Permitted Transferees      3   
  3.2    Conditions for Permitted Transfers      4   
  3.3    Transfers to Charities      5   
  3.4    Procedure      6   
  3.5    Transfers to Others      6   

4.

 

PRIORITY

     6   
  4.1    Offer Notice      6   
  4.2    Effect of Offer Notice      7   
  4.3    Share Purchase Procedures      7   
  4.4    Price and Closing      8   
  4.5    Installment Purchase      9   
  4.6    Subsequent Transfers      9   

5.

 

SALE TO OTHER TRANSFEREE

     9   
  5.1    Conditions of Sale      9   
  5.2    Re-Offer      9   

 

i


Table of Contents

(Continued)

 

         Page  

6.

 

OPTION EVENTS

     10   
  6.1    Definition of Option Event      10   
  6.2    Optional Purchase of Shares      10   
  6.3    Option Notice; Option Price      12   
  6.4    Payment for the Shares      12   

7.

 

EFFECT OF NON-COMPLYING TRANSFER

     12   

8.

 

FAMILY SHAREHOLDER VOTING

     13   
  8.1    Family Agreement Shareholders Meeting      13   
  8.2    Voting for the Election of Directors and on Minor Decisions      14   
  8.3    Major Decisions      14   
  8.4    Appointment of Proxies      15   

9.

 

SHAREHOLDER SPOUSE AND SPOUSE CONSENT

     15   
 

9.1    Shareholder Spouse Consent

     15   
  9.2    Spouse Consent      15   
  9.3    Existing and Future Spouses      16   

10.

 

COMPANY’S RESPONSIBILITIES

     16   

11.

 

MISCELLANEOUS PROVISIONS

     17   
  11.1    Further Assurances      17   
  11.2    Attorneys’ Fees      17   
  11.3    Construction; Venue; Submission to Jurisdiction      17   
  11.4    Securities Laws; Legend      18   
  11.5    Amendments; Waiver      18   

 

ii


Table of Contents

(Continued)

 

         Page  
  11.6    Successors and Assigns      19   
  11.7    Testamentary Provisions      19   
  11.8    Severability      19   
  11.9    Entire Agreement      19   
  11.10  Captions      19   
  11.11  Notices      19   
  11.12  Counterparts      20   
  11.13  Suspension of Time Periods      20   
  11.14  Changes in Capital Structure      20   
  11.15  Arbitration      20   
  11.16  Termination      21   
  11.17  Specific Performance      22   
  11.18  Legal Counsel      22   
  11.19  Definitions      22   

 

  Exhibit A    HomeStreet Inc. Shareholders Invited to Become Family Agreement Shareholders
 

Exhibits B-l

through B-5

   Shareholder Consent Forms
  Exhibit C    Spouse Consent
  Exhibit D    Form of Promissory Note
  Exhibit E    Form of Irrevocable Proxy

 

iii


AMENDED AND RESTATED

FAMILY SHAREHOLDERS AGREEMENT

HOMESTREET, INC.

THIS AMENDED AND RESTATED FAMILY SHAREHOLDERS AGREEMENT (this Agreement) is entered into effective as of October 23, 2008 (the Effective Date) , by and among HomeStreet, Inc., a Washington corporation (the Company) , and those persons or entities listed on the attached Exhibit A to this Agreement, and it shall supersede and replace that certain Family Shareholders Agreement dated April 16, 2008. Certain descendants of W. Walter Williams and their family members and certain permitted affiliates (defined in this Agreement as Lineal Descendants, Shareholder Spouses, Stepchildren, Permitted Trusts and Permitted Entities) who are listed on Exhibit A have been invited to become parties to this Agreement, and those who have agreed to do so by executing a shareholder consent in the form of Exhibits B-l, B-2, B-3, B-4 or B-5 (depending on the nature of the shareholder) (in each case a Shareholder Consent) are referred to as Family Agreement Shareholders. Exhibit A also reflects the number of shares of common stock (the Shares) of the Company held by each person or entity invited to become a Family Agreement Shareholder. Permitted Transferees who acquire Shares in the Company after the date of this Agreement and become bound by the provisions of this Agreement in the manner provided in Section 3 will thereafter also be referred to in this Agreement as Family Agreement Shareholders.

RECITALS

A. The members of the extended family of W. Walter Williams have adopted certain goals and policies for the family’s ownership of the Company and its subsidiaries. These include the following:

(1) a commitment to the perpetuation of HomeStreet’s long-standing values as an exemplary corporate citizen, dedicated to providing the highest quality services to its customers and an outstanding work environment for productive employees, and making significant, positive contributions to its communities; and

(2) that the family shareholders should vote their shares in a unified manner and responsive to, and capable of achieving, the family goals and interests in electing the Company’s Board of Directors (the Board) and in taking action on other matters submitted to a vote by shareholders.

B. In order to assure the continued involvement of the family in the Company, the Family Agreement Shareholders therefore desire to restrict the transferability of the

 


Shares and to agree to the manner in which their Shares are to be voted under certain circumstances, in accordance with the provisions of this Agreement.

C. The Company has agreed to become a party to this Agreement in order to assist the Family Agreement Shareholders with the administration of this Agreement.

D. The HomeStreet, Inc. 401(k) Savings and Employee Stock Ownership Plan & Trust (ESOP) is not a party to this Agreement, but shall be a third-party beneficiary of the provisions giving it rights to buy Shares under the conditions and on the terms provided in this Agreement.

E. Capitalized terms used in this Agreement shall have the meanings given those terms in the text of this Agreement. Section 11.19 contains a list of definitions and the sections in which they are located.

NOW, THEREFORE, in consideration of the mutual covenants set forth in this Agreement, the Company and the Family Agreement Shareholders agree as follows:

1. Application of This Agreement to All Shares.

1.1 Family Agreement Shareholders. Exhibit A reflects the number of Shares held by each Family Agreement Shareholder, and identifies each Family Agreement Shareholder as a: Lineal Descendant; Shareholder Spouse; Stepchild; Permitted Trust; or Permitted Entity, consistent with the definitions contained in this Agreement. The terms of this Agreement shall apply to all Shares presently held or acquired in any manner in the future (including interest held individually or as marital community property interests) by any Family Agreement Shareholder, including those who become Family Agreement Shareholders in accordance with the provisions of Section 3.

1.2 ESOP. Notwithstanding any provision of this Agreement, this Agreement shall not apply to Shares held by the ESOP in which a Family Agreement Shareholder has an interest unless and until such time as the Shares are distributed out of the ESOP to a Family Agreement Shareholder. If any Shares are acquired with the proceeds of a loan to the ESOP, the provisions of this Agreement shall not apply to such Shares. Nothing in this Agreement shall require the Company or a Family Agreement Shareholder, to the extent any of them are acting as a fiduciary of the ESOP, to take any action that will violate their fiduciary duties under ERISA. Voting requirements in this Agreement shall not apply to any Family Agreement Shareholders in the role of an ERISA fiduciary in deciding how to vote Company stock held by the ESOP.

1.3 Officers and Directors. Nothing in this Agreement shall affect the duties of any Family Agreement Shareholders in their capacity as corporate officers or directors of the Company.

 

2


1.4 Cessation. If at any time a Family Agreement Shareholder no longer owns any Shares, he, she or it will cease to be a Family Agreement Shareholder.

2. General Restriction on Transfer. No Family Agreement Shareholder shall effect any sale, assignment, pledge, gift or other disposition, for consideration or otherwise, whether voluntary, involuntary, by will or intestacy, or by operation of law (a Transfer) of any Shares or any interest therein except in accordance with the provisions of this Agreement. A Transfer or attempt to effect a Transfer subject to the provisions of this Agreement shall be deemed to occur whenever any interest in any Shares is transferred or is attempted to be transferred, voluntarily, involuntarily or by operation of law, irrespective of whether any change in the record ownership of the Shares occurs. Any Transfer or attempted Transfer in violation of the Agreement (a Non-complying Transfer) shall not be recognized by the Company for any reason and shall be void.

3. Permitted Transfers. Each Family Agreement Shareholder agrees that he, she or it will not effect any Transfers of any Shares after the date of becoming a party to this Agreement, except as permitted by this Agreement.

3.1 Permitted Transferees. A Family Agreement Shareholder may Transfer Shares to any of the following (Permitted Transferees), provided that the Permitted Transferee complies with the conditions contained in Section 3.2 (a Permitted Transfer):

(a) Lineal Descendants who are or become Family Agreement Shareholders (who may hold the Shares as separate or community property). The term Lineal Descendants shall mean biological and adopted descendants of W. Walter Williams, and for purposes of this Agreement only shall also include Dale Myers and Harold Zimmerman, except that Dale Myers and Harold Zimmerman shall not be considered Lineal Descendants in the context of any provisions in this Agreement dealing with divorce.

(b) A trust (which includes, for purposes of this Agreement, a custodial account under a uniform gift to minors act) (hereafter referred to as a Permitted Trust) having the following provisions:

(i) either: (a) a charitable lead trust for which all of the remainder beneficiaries are Lineal Descendants; or (b) a trust for which the only beneficiaries are: one or more Lineal Descendants; one or more of the following spouses of a Lineal Descendant: Gro Buer or Michael Westling (a Shareholder Spouse); a person other than a Shareholder Spouse who is married to a Lineal Descendant who is a Family Agreement Shareholder (a Spouse), provided that Shares held by a Shareholder Spouse and the interests of a Spouse in any Shares are subject to the provisions of Section 6; or any of the following individuals: Kaya Westling, Craig Westling, Brooke VanderHoogt and Brittney VanderHoogt

 

3


(hereafter collectively, the Stepchildren and each a Stepchild), provided that the Shares held by a Stepchild are subject to the provisions of Section 6;

(ii) either:

(a) the trustee(s) having voting rights under the trust instrument with respect to Shares held by the trust are persons who are Family Agreement Shareholders who are: (i) Lineal Descendants; or (ii) Stepchildren or Shareholder Spouses who may exercise such voting rights (at Family Agreement Shareholders meetings and meetings of Company Shareholders) solely with respect to Shares held as of the Effective Date by themselves or by a trust for which the Stepchild or Shareholder Spouse is at the time of the voting the current income beneficiary of the trust; or

(b) the trustee(s) have entered into a voting agreement approved by the duly elected officer of the Company holding the position of corporate secretary (the Secretary of the Company) which remains in effect (a Family Shareholder Voting Agreement) under which the Shares will be voted (at Family Agreement Shareholders meetings and meeting of Company Shareholders) in the discretion of a Family Agreement Shareholder who is: (i) a Lineal Descendant; or (ii) a Stepchild or Shareholder Spouse who may exercise such voting rights solely with respect to Shares held as of the Effective Date by themselves or by a trust for which the Stepchild or Shareholder Spouse is at the time of the voting the current income beneficiary of the trust;

(c) An entity, other than a Permitted Trust, for which:

(i) all legal and beneficial interests in the entity are held by Lineal Descendants or Permitted Trusts; and

(ii) for which a majority of the board of directors, managers or other controlling body are Lineal Descendants who are Family Agreement Shareholders or the entity has entered into a Family Shareholder Voting Agreement with a Lineal Descendant who is a Family Agreement Shareholder (hereafter referred to as a Permitted Entity);

(d) The Company; or

(e) The ESOP.

3.2 Conditions for Permitted Transfers. A Family Agreement Shareholder may effect a Permitted Transfer of any or all of his, her or its Shares to one or more other Permitted Transferees, so long as the following requirements are met:

 

4


(a) If a Family Agreement Shareholder wishes to sell Shares, such Shares shall first be offered to Lineal Descendants who are Family Agreement Shareholders, Permitted Trusts, or Permitted Entities (collectively, Family Permitted Transferees), in accordance with the provisions of Section 3.4(a) or (b), prior to any Transfer to other Permitted Transferees.

(b) Each Permitted Transferee, who was not, prior to the Permitted Transfer, a party to this Agreement, becomes a party to this Agreement by executing a Shareholder Consent to be bound by this Agreement, and the Spouse of the Transferee signs a spouse consent in the form attached hereto as Exhibit C (Spouse Consent).

(c) In the case of a Permitted Transfer to a Permitted Trust or other Permitted Entity, the Trustee of the Permitted Trust or all of the owners of a Permitted Entity shall provide, from time to time upon request of the Secretary of the Company, a written certification, accompanied by documentary and other evidence acceptable to the Company and its legal counsel, that the Permitted Trust or Permitted Entity is in compliance with the requirements in this Agreement.

(d) Upon compliance with the conditions contained in this Section, the Permitted Transferee shall become a Family Agreement Shareholder for purposes of this Agreement, and the Secretary of the Company shall be authorized to replace Exhibit A with a revised version to reflect the name and address of, and number of Shares owned by, Family Agreement Shareholders as of that date, including the Permitted Transferee, which shall be dated as of the date it is attached to this Agreement in the records of the Company.

3.3 Transfers to Charities. A Family Agreement Shareholder may also Transfer Shares to a charity which qualifies as a 501(c)3 entity under the Internal Revenue Code (a Charity), provided that:

(a) the Transfer is a charitable gift;

(b) the Charity enters into an agreement approved by the Secretary of the Company under which it acknowledges that: (i) Permitted Transferees have the right to purchase the Shares from the Charity at any time, on the terms provided in Section 3.3(d) below; and (ii) the Charity may only Transfer the Shares to a Permitted Transferee; and

(c) if required by the donor as a condition of the gift, the Charity enters into either: (i) a Family Shareholder Voting Agreement granting a Lineal Descendant who is a Family Agreement Shareholder the right to vote the Shares given to the Charity at meetings of the holders of record of the Company’s Shares (the Shareholders); or (ii) an agreement with the donor to vote the Shares in favor of any

 

5


action in which a majority of the Shares held by Family Agreement Shareholders present at a meeting of the Shareholders are voted in favor, and against any action on which a majority of Shares held by Family Agreement Shareholders present at a meeting of the Company’s Shareholders are voted against, and in either event a copy of the agreement shall be provided to the Secretary of the Company by the donor.

(d) In the event of a Transfer to a Charity that otherwise complies with this Section 3.3, the Family Permitted Transferees, the Company and the ESOP shall have the right to purchase the Shares held by the Charity at any time following the Transfer to the Charity. The Secretary of the Company shall notify the Family Permitted Transferees and the ESOP of such Transfer within a period of fifteen (15) days after it occurs. In the event any of the Family Permitted Transferees, the Company and the ESOP wish to purchase some or all of the Shares which are held by the Charity, he, she or it shall notify the Company and the Charity in writing. The Secretary of the Company shall then follow the procedures of Sections 4.3, 4.4 and 4.5 to effect a Transfer of the Shares by purchase from the Charity.

3.4 Procedure. A Family Agreement Shareholder who wishes to effect a Transfer (a Transferor) may make a Permitted Transfer of Shares to a Permitted Transferee by:

(a) entering into a Transfer, with or without consideration, to a Family Permitted Transferee on whatever terms the Transferor and a Family Permitted Transferee may agree upon, subject to satisfaction of the conditions contained in Section 3.2; or

(b) notifying the Secretary of the Company that he or she or it wishes to sell Shares to Permitted Transferees, in which event: first, other Family Permitted Transferees; and second, the Company; and third, the ESOP will have the option to purchase the Shares for a price equal to the most recently established ESOP Value, subject to the conditions of Section 3.2 and the provisions specified in Section 4.

3.5 Transfers to Others. Except for Transfers to Charities in accordance with Section 3.3, Shares may only be transferred to other persons or entities who are not Permitted Transferees after the Shares have first been offered to Permitted Transferees in accordance with Section 4. Any remaining Shares which are not purchased by Permitted Transferees may then be sold in accordance with Section 5.

4. Priority.

4.1 Offer Notice. If a Family Agreement Shareholder wishes to transfer Shares utilizing the procedure described in Section 3.4(b), the Transferor shall deliver a notice (the Offer Notice) to the Company specifying the number of Shares proposed to be transferred (the Offered Shares), and indicating whether the Seller is only willing to

 

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sell the Shares on terms requiring full payment upon closing or on the installment terms specified in Section 4.5. If the Transferor does not specify full payment terms, the purchaser may elect the installment terms described in Section 4.5. The Company shall promptly forward a copy of the Offer Notice to the Family Permitted Transferees and to the ESOP.

4.2 Effect of Offer Notice. Delivery of an Offer Notice under Section 4.1 shall constitute an offer by the Transferor, on the date the Offer Notice is delivered in accordance with this Section 4 (the Offer Date ) to sell the Offered Shares to the Family Permitted Transferees, the Company and the ESOP (in the priority order specified in Section 4.3), at a price equal to the per share value of the Shares held by the ESOP as of the end of the calendar quarter immediately preceding the Closing Date, as determined by the appraisal of the Shares periodically obtained by the Company’s Retirement Benefits Committee (the ESOP Value ); and on the other terms and conditions, and in accordance with the procedures, specified in this Agreement.

4.3 Share Purchase Procedures . Each purchase of Offered Shares from a Family Agreement Shareholder who wishes to transfer Shares under Section 3.4(b), or purchase of Shares as a result of an Option Event under Section 6, shall be effected in accordance with the following procedures:

(a) First Purchase Priority. The Family Permitted Transferees shall have the first priority right to purchase any or all of the Offered Shares, subject to the other provisions of this Agreement, on a pro rata basis proportionate to their ownership of Shares as a percentage (Pro Rata Portion) of all Shares held by Family Permitted Transferees desiring to exercise this right (Accepting Family Offerees). Each Accepting Family Offeree shall deliver a notice to the Transferor and to the Company (an Acceptance Notice), within a period of thirty (30) days (the Family Offeree Acceptance Period) after the Offer Date, specifying the number of Offered Shares that he, she or it agrees to purchase. If any Accepting Family Offeree agrees to purchase less than his or her Pro Rata Portion of the Offered Shares, each Accepting Family Offeree who agrees to purchase more than his or her Pro Rata Portion of the Offered Shares shall have allocated to him, her or it such additional portion of the Offered Shares not so allocated under the preceding sentence as the number of Shares of such Accepting Family Offeree bears to the aggregate number of Shares of all Accepting Family Offerees who agree to purchase more than their Pro Rata Portion of the Offered Shares. This allocation procedure shall be repeated until all of the Offered Shares, or the aggregate number of Offered Shares specified in all of the Accepting Family Offerees’ Acceptance Notices, if less, have been allocated among the Accepting Family Offerees, or it has been determined that one or more Accepting Family Offerees wish to purchase the remaining Offered Shares. The Accepting Family Offerees agree to cooperate with one another, and provide each other with such information as may be required, to

 

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implement the foregoing allocation procedure. The Secretary of the Company shall be entitled to facilitate the allocation procedures as he or she may deem appropriate.

(b) Second Purchase Priority. If some or all of the Accepting Family Offerees do not purchase all of the Offered Shares, the Company shall have the second priority to purchase any or all of the remainder of the Offered Shares, subject to the provisions of this Agreement. If the Company desires to exercise this right, it shall deliver an Acceptance Notice to the Transferor within a period of twenty (20) days after the expiration of the Family Offeree Acceptance Period (the Company Acceptance Period), specifying the number of remaining Offered Shares that it agrees to purchase.

( c) Third Purchase Priority. If Family Permitted Transferees do not agree to purchase all of the Offered Shares in accordance with Section 4.3(a) and the Company does not agree to purchase all of any remaining Offered Shares in accordance with Section 4.3(b), the ESOP shall have the third priority right to purchase any or all of the balance of the Offered Shares, subject to the provisions of this Agreement. If the ESOP desires to exercise this right, it shall deliver an Acceptance Notice to the Company and to the Transferor within a period of twenty (20) days after the expiration of the Company’s Acceptance Period described in Section 4.3(b), specifying the number of Offered Shares that it wishes to purchase (the ESOP Acceptance Period ).

(d) Acceptance Notice Creates Contract. If one or more of the Accepting Family Offerees, the Company or the ESOP agree to purchase, in the aggregate, some or all of the Offered Shares within the acceptance periods specified in Sections 4.3(a), (b) or (c), delivery to the Transferor of the Acceptance Notices by those who agree to purchase Offered Shares ( Purchasers ) shall create binding contracts between the Purchasers and the Transferor for the purchase and sale, at the time and in the manner specified in Section 4.4 and Section 4.5, of the number of Offered Shares specified in their respective Acceptance Notices (as such number is finally allocated among the Purchasers under this Section 4).

(e) Reallocation. Notwithstanding the foregoing method of allocating Offered Shares among the Purchasers, at any time before the Closing Date, the Purchasers shall be allowed to enter into a binding written agreement among themselves reallocating the Offered Shares to be purchased by them so long as all of the Offered Shares for which Acceptance Notices have been delivered are purchased in accordance with such reallocation.

4.4 Price and Closing. The purchase price (Purchase Price) for the Transfer to the Purchasers of all of the Offered Shares for which Acceptance Notices have been delivered shall be consummated at the ESOP Value on a date set by the Secretary of the Company (the Closing Date), which date shall be within the next Trading Window determined by the Secretary of the Company to be practical for the closing of the Transfer. For purposes of this Agreement, Trading Window shall mean

 

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the time period declared by the Secretary of the Company as a permitted period for purchasing or selling Shares of the Company. At the closing of the Transfer, the Transferor shall deliver to the Company, against receipt of the consideration to which the Transferor is entitled under this Section 4, certificates for the Offered Shares properly endorsed to effect the Transfer to the Purchasers. Closing of the Transfer shall constitute a representation and warranty by the Transferor that: he or she or it owns the Offered Shares; he, she or it has not transferred or attempted to transfer any interest in the Offered Shares to any other person or entity; he, she or it has full power and authority to transfer and deliver the Offered Shares to the Purchasers; and the Offered Shares are free and clear of any and all liens, encumbrances, charges, duties and assessments whatsoever.

4.5 Installment Purchase. The Purchase Price to be paid at the Closing Date for Transfers made in accordance with this Section shall be paid in installments as follows: twenty-five percent (25%) paid down at the Closing Date and the balance shall be paid in accordance with the terms of a Promissory Note in the form attached as Exhibit D; provided, however, that the Purchase Price shall be paid in full in immediately available U.S. funds at closing if either: the Offer Notice described in Section 4.1 specified full payment terms; or the Purchaser elects to pay the Purchase Price in full at the Closing Date.

4.6 Subsequent Transfers. Failure by any Family Permitted Transferee or the Company or the ESOP to exercise his, her or its right of purchase under this Section 4 with respect to one or more proposed Transfers of Offered Shares shall not adversely affect his, her or its right to exercise such right with respect to any subsequent proposed Transfer of Offered Shares.

5. Sale To Other Transferee.

5.1 Conditions of Sale. If a Family Agreement Shareholder delivers an Offer Notice to sell Shares in accordance with Section 4.1, and, after following the procedures described in Section 4, some of the Offered Shares remain unpurchased, any Offered Shares not purchased by Accepting Family Offerees, the Company or the ESOP in accordance with Section 4 may be transferred by the Transferor to a transferee who/which is not a Permitted Transferee, provided that: (1) the price is equal to or greater than the ESOP Value; (2) the closing occurs within sixty (60) days after the expiration of the ESOP Acceptance Period specified in Section 4.3(c); and (3) the transferee executes the Company’s then current form of shareholder agreement for Shareholders who are not Permitted Transferees, on such terms as the Company may require as of the date of the Transfer (the General Shareholders Agreement ).

5.2 Re-Offer. In the event the purchase price in the proposed Transfer to a Non-Permitted Transferee in accordance with Section 5.1 is less than the ESOP Value at which the Shares were offered to Permitted Transferees in accordance with Section 4, the Transferor must resubmit an Offer Notice as described in Section 4, with

 

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the proposed price, and follow the procedures of that Section to enable the Family Permitted Transferees, the Company and the ESOP to exercise a right of first refusal to purchase the Offered Shares on the price and terms that the Transferor proposes to sell the Shares to the transferee who/which is not a Permitted Transferee. The Family Permitted Transferees, Company and ESOP shall have the right to purchase the Offered Shares by matching that price and those terms, in that order of priority, in accordance with the procedures described in Section 4.

6. Option Events.

6.1 Definition of Option Event. For purposes of this Agreement, an Option Event means the occurrence, with respect to a Family Agreement Shareholder, of any of the following events or conditions:

(a) The filing of a voluntary or involuntary petition in bankruptcy by or against a Family Agreement Shareholder (unless, in the case of an involuntary petition, the same is dismissed within sixty (60) days from the date of filing);

(b) Any general assignment by a Family Agreement Shareholder for the benefit of his or her creditors;

(c) A dissolution of the marriage between: a Family Agreement Shareholder who is a Lineal Descendant and a Shareholder Spouse; a Family Agreement Shareholder who is a Lineal Descendant and a Spouse; or a parent of a Stepchild and a Family Agreement Shareholder who is a Lineal Descendant (a Divorce);

(d) In the event that, following the death of an individual Family Agreement Shareholder, the Shares held by the deceased Family Agreement Shareholder are not transferred to a Permitted Transferee within the time period specified in Section 6.2(c);

(e) In the event a Permitted Trust or Permitted Entity ceases to meet the qualifications set out in Section 3.1; or

(f) Any attempted Non-complying Transfer.

6.2 Optional Purchase of Shares.

(a) In General . If an Option Event other than a Divorce occurs with respect to a Family Agreement Shareholder, the other Family Permitted Transferees, the Company and the ESOP shall have the right to purchase the Shares held by the Family Agreement Shareholder who has experienced the Option Event on the same terms and conditions and in accordance with the same procedures, except as otherwise provided in this Section 6, that would have applied if the Family Agreement Shareholder had made

 

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an Offer to sell such Shares pursuant to Section 4 at the price provided in Section 4.4 and on the terms provided in Section 4.5.

(b) Upon Divorce . Recognizing that certain Shareholder Spouses and Spouses currently have, or may in the future receive or be awarded an interest in Shares, the following provisions are intended to address the disposition of such Shares in the event of Divorce. Nothing in this Agreement is intended to create a presumption that Shareholder Spouses and Spouses have a right to an ownership interest in or the economic value of Shares upon Divorce. If a Divorce occurs with respect to a Family Agreement Shareholder and a Permitted Transfer to a Permitted Trust is not at that time made by the Family Agreement Shareholder and the Shareholder Spouse or the Spouse of the Family Agreement Shareholder in accordance with the last sentence of this Section 6.2(b), the Family Agreement Shareholder who is a Lineal Descendant and a party to the Divorce shall have the right to purchase any or all Shares awarded to, owned by or held for the benefit of the Shareholder Spouse or the Spouse and of any Stepchildren who are children of the Shareholder Spouse or Spouse (such circumstances being referred to herein as a Spousal Award), on the same terms and conditions and in accordance with the same procedures, except as otherwise provided in this Section 6, that would have applied if the Shareholder Spouse, Spouse or Stepchildren had submitted an Offer Notice to sell such Shares pursuant to Section 4 at the price provided in Section 4.4 and on the terms provided in Section 4.5. If that Lineal Descendant does not exercise his or her purchase right with respect to all of the Shares that were part of the Spousal Award to or for the benefit of the Shareholder Spouse, Spouse or Stepchildren and a Permitted Trust is not created in accordance with the last sentence of this Section 6.2(b), the other Family Permitted Transferees, the ESOP and the Company shall have the right to do so on the same terms and in the same manner as set forth above in Section 6.2(a). In the event that both parties to a Divorce between a Family Agreement Shareholder and a Shareholder Spouse or a Spouse agree, as part of the final Divorce proceedings, to effect a Permitted Transfer of Shares to a Permitted Trust, for the benefit of the former Shareholder Spouse or the former Spouse for a term not to exceed the lifetime of that former Shareholder Spouse or former Spouse, or for the benefit of the Lineal Descendants of the marriage which is being dissolved, the purchase option described in this Section 6.2 shall not apply to such Shares.

(c) Upon the Death of an Individual Family Agreement Shareholder . Following the death of an individual Family Agreement Shareholder, Shares in which he or she held a separate or community property interest may be transferred to a Family Permitted Transferee, including a Permitted Trust. If the Shares are not transferred to a Family Permitted Transferee within two hundred seventy (270) days following the death of the Family Agreement Shareholder, the Shares shall immediately become subject to the option to purchase the Shares described in Section 6.2(a). The provisions of this Section apply to the separate or community interests of the

 

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deceased Family Agreement Shareholder who is a Lineal Descendant and to the community interests held by the other member of his or her marital community.

6.3 Option Notice; Option Price. Within a period of fifteen (15) days after the occurrence of an Option Event, the Family Agreement Shareholder or his or her trustee in bankruptcy, personal representative or guardian, as appropriate, who shall be deemed to be the Transferor for purposes of Section 4 (except in the case of a Spousal Award with respect to the Family Agreement Shareholder, where the former Shareholder Spouse or the former Spouse shall be deemed to be the Transferor), shall deliver notice to the Company of such event specifying the date of such event and describing in reasonable detail the nature of the event and the number of Shares affected. For purposes of Section 4, such notice shall be deemed to be an Offer Notice, the date such notice is delivered to the Company shall be deemed to be the Offer Date, the number of Shares affected shall be deemed to be the Offered Shares, and the price and terms shall be in accordance with Section 4.4 and Section 4.5. If the Company has not received this notice by the end of such period, any of the Family Agreement Shareholders or the Company who has knowledge of the Option Event may deliver notice to the other Family Agreement Shareholders or to the Company at any time after the end of such period, and the notice shall be deemed to be the Offer Notice. Determination of which Family Permitted Transferees will be Accepting Family Offerees and the manner of allocation of the Offered Shares among the Accepting Family Offerees and the Company or the ESOP will be made in accordance with the procedures of Section 4, except that, in the case of Shares that are part of a Spousal Award to a former Shareholder Spouse or former Spouse, in allocating Offered Shares under Section 4.3(a), the Family Agreement Shareholder who is a Lineal Descendant and a party to the Divorce in which the Spousal Award is made shall be allocated all of the Offered Shares that he or she agrees to purchase prior to any allocation to the other Family Permitted Transferees.

6.4 Payment for the Shares. If one or more of the Accepting Family Offerees, the Company and the ESOP agree to purchase, in the aggregate, some or all of the Offered Shares (the persons agreeing to purchase the Offered Shares shall be deemed to be the Purchasers for purposes of Section 4), then the Purchase Price for the Offered Shares shall be determined in accordance with Section 4.4. The Purchase Price shall be allocated among the Purchasers in proportion to the number of Offered Shares purchased by each. The Purchase Price shall, at the Purchasers’ option, be paid in cash at the Closing Date or be paid on terms with twenty-five percent (25%) down and the balance under a Promissory Note in the form attached as Exhibit D.

7. Effect of Non-complying Transfer. A Non-complying Transfer shall be void, and, upon presentation for transfer of Shares that are the subject of a Non-complying Transfer, the Company shall refuse to transfer the Shares on its share transfer records. The failure of the Family Agreement Shareholders, the Company or the ESOP to purchase, pursuant to Section 6, Shares that are the subject of a Non-complying

 

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Transfer shall not be construed as permission to proceed with the Non-complying Transfer. In addition, any Family Agreement Shareholder or the Company may institute and maintain a proceeding to compel specific performance of this Agreement by the Family Agreement Shareholder attempting the Non-complying Transfer, it being agreed that the other Family Agreement Shareholders not in default and the Company do not have an adequate remedy at law.

8. Family Shareholder Voting. The Family Agreement Shareholders agree to the following provisions regarding the voting of their Shares.

8.1 Family Agreement Shareholders Meeting. Prior to each annual or special meeting of the Shareholders of the Company, the Family Agreement Shareholders shall participate in a meeting (a Family Agreement Shareholders Meeting) to confer about the matters to be considered at the Shareholders meeting and to determine how Shares held by them will be voted at the Shareholders meeting. The following procedures shall apply to the Family Agreement Shareholders Meetings:

(a) Family Agreement Shareholders may participate in a Family Agreement Shareholders Meeting in person, by telephone or by proxy, or by submitting electronic ballots to the Secretary of the Company, who shall present them at the Family Agreement Shareholders Meeting.

(b) If the CEO or Chairman of the Company is a Family Agreement Shareholder, he or she shall preside at the Family Agreement Shareholders Meeting as chair. If the CEO or Chairman is not a Family Agreement Shareholder, the chair shall be elected by a majority of Shares held by participating Family Agreement Shareholders. Subject to the requirements set forth in this Section 8, the chair shall determine how the meeting will be conducted and when and in what format the ballot shall be taken. The chair will also have authority to call for further Family Agreement Shareholders Meetings and set the place, date and time for such meetings.

(c) The chair shall appoint a person to serve as secretary of each Family Agreement Shareholders Meeting to record the votes taken at the meeting, and take minutes of the proceedings. The Secretary of the Company may perform this function in the chair’s discretion.

(d) The Family Agreement Shareholders present at the Family Agreement Shareholders Meeting may, by a simple majority vote of their Shares, determine whether to allow other persons to be present at the meeting as guests.

(e) Shares held by Lineal Descendants as community property may only be voted at a Family Agreement Shareholders Meeting by the Lineal Descendant member of the marital community and may not be voted by the Spouse of the Lineal Descendant at such meetings.

 

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(f) Shares held by a Shareholder Spouse or a Stepchild as of the Effective Date may be voted by such person at a Family Agreement Shareholders Meeting.

(g) Voting of Shares by Permitted Trusts or Permitted Entities shall be in accordance with Section 3.1 (b) or 3.1(c).

8.2 Voting for the Election of Directors and on Minor Decisions. At a Family Agreement Shareholders Meeting held prior to a Shareholders meeting of the Company at which directors will be elected or shareholder action is proposed other than with respect to those matters specified in 8.3 (a Minor Decision) , the Family Agreement Shareholders will cast ballots indicating their preference for persons to be elected to fill available Board seats or whether they approve the proposed Minor Decision. If more than fifty percent (50%) of the Shares then held by Family Agreement Shareholders at the time of the meeting are voted in favor of a candidate or a proposed Minor Decision, each Family Agreement Shareholder hereby agrees that all of the Shares held by him, her or it which are subject to this Agreement shall be voted in favor of that candidate or Minor Decision at the Shareholders meeting, regardless of whether the Family Agreement Shareholder holding such Shares attended or participated in the Family Agreement Shareholders Meeting. If a nominee for a position on the Board or a proposed Minor Decision does not receive the approval of a majority of the Shares then held by Family Agreement Shareholders, then all Family Agreement Shareholders shall be free to vote their Shares as they choose at the Shareholders meeting with respect to that position or Minor Decision, unless the chair calls an additional Family Agreement Shareholders Meeting prior to the Shareholders meeting at which a majority vote is obtained.

8.3 Major Decisions. If one of the following matters is to be considered at the Shareholders meeting, it shall be considered a Major Decision:

(a) Amendment of the Articles of Incorporation of the Company (the Articles of Incorporation).

(b) Adoption of a plan of merger or plan of share exchange.

(c) Sale, lease, exchange or other disposition of all or substantially all of the property of the Company, other than in the usual and regular course of business.

(d) Dissolution of the Company.

(e) Any other matter requiring the affirmative vote of two thirds of the outstanding shares of the Company.

At a Family Agreement Shareholders Meeting held before a Shareholders meeting at which a Major Decision is to be presented for a vote by all Shareholders, the Family

 

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Agreement Shareholders will cast ballots indicating their preference for how the Family Agreement Shareholders’ Shares shall be voted on any such Major Decision. If at least sixty-seven percent (67%) of Shares then held by Family Agreement Shareholders (a Family Agreement Shareholders Supermajority) are voted in favor of the Major Decision, each Family Agreement Shareholder hereby agrees that all of the Shares held by him, her or it which are subject to this Agreement shall be voted in favor of the Major Decision at the Shareholders meeting, regardless of whether the Family Agreement Shareholder holding such Shares attended or participated in the Family Agreement Shareholders Meeting. If the proposed Major Decision does not receive the affirmative vote of a Family Agreement Shareholders Supermajority, then all Family Agreement Shareholders shall be free to vote their Shares as they choose at the Shareholder meeting with respect to that Major Decision, unless the chair calls an additional Family Agreement Shareholders Meeting prior to the Shareholder meeting at which an affirmative vote of a Family Agreement Shareholders Supermajority is obtained.

8.4 Appointment of Proxies. To implement any election of Directors, Minor Decision, or Major Decision approved or taken by the requisite vote at a Family Agreement Shareholders Meeting, each Family Agreement Shareholder hereby appoints Bruce W. Williams, or in his absence either Janet Westling or Steve Zimmerman, with full power of substitution in each of them, to vote and exercise all voting and related rights (to the fullest extent that such Family Agreement Shareholder is entitled to do so) in accordance with the outcome of voting determinations pursuant to Section 8.2 or Section 8.3, as the case may be, with respect to all of the Shares that now are or hereafter may be legally or beneficially owned by such Family Agreement Shareholder, and any and all other shares or securities of the Company issued or issuable in respect thereof on or after the date hereof. In order to implement this appointment, each Family Agreement Shareholder agrees to execute an Irrevocable Proxy in the form of Exhibit E hereto and to deliver such Irrevocable Proxy to the Secretary of the Company.

9. Shareholder Spouse and Spouse Consent.

9.1 Shareholder Spouse Consent. The execution of a Shareholder Consent by a Shareholder Spouse signifies that: the Shareholder Spouse has consented to become a party to this Agreement, and acknowledges that any interest the Shareholder Spouse at any time owns in any Shares of the Company, whether in the Shareholder Spouse’s own name, jointly with a Lineal Descendant under community property laws or otherwise, shall be subject to the terms of this Agreement, specifically including the provisions of Section 2, Section 6 and Section 8.

9.2 Spouse Consent. The execution of a Spouse Consent by a Spouse signifies that: the Spouse approves or ratifies the execution of a Consent to become a party to the Family Shareholder Agreement by the person to whom the Spouse is married; and an acknowledgement that any interest the marital community of which the Spouse is

 

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a party at any time owns in the Shares of the Company shall be subject to the terms of this Agreement, specifically including the provisions of Sections 2, 6 and 8.

9.3 Existing and Future Spouses. If a Family Agreement Shareholder who is a Lineal Descendant is married at the time he or she executes this Agreement, or if a Family Agreement Shareholder who is a Lineal Descendant marries or remarries after executing this Agreement, the Family Agreement Shareholder agrees to use best efforts to cause his or her Shareholder Spouse or Spouse to execute this Agreement or a Spouse Consent within a reasonable period of time, not to exceed sixty (60) days after the Family Agreement Shareholder has signed this Agreement for existing Spouses or Shareholder Spouses, or sixty (60) days after the marriage for future Spouses. If the Shareholder Spouse has not signed the Agreement or if such Spouse Consent is not delivered within that time period, the Family Agreement Shareholder will not be considered a Family Permitted Transferee or entitled to be the recipient of any Transfer of Shares until the Agreement or Spouse Consent has been executed by his or her Shareholder Spouse or Spouse and delivered to the Company.

10. Company’s Responsibilities. The Company agrees to perform the following duties to assist the Family Agreement Shareholders to carry out the Agreement.

10.1 A purported transferee of a Transfer not made in accordance with the provisions of the Agreement shall not be recognized as a Shareholder of the Company for any purpose whatsoever.

10.2 The Secretary of the Company, or his or her designee, shall review the written certifications, as provided by Section 3, and approve or disapprove the certifications as such Secretary or designee shall, in his or her discretion, deem appropriate.

10.3 The Company shall promptly forward to the Family Agreement Shareholders copies of all Offer Notices received by the Company under Section 4.1, a summary of Acceptance Notices received by the end of the Family Offeree Acceptance Period, a copy of any Acceptance Notice received from the Company or the ESOP as provided by Section 4.3, and such other notices as may reasonably be required to assist in the timely closing of the transactions covered by Section 4; and shall forward to Family Agreement Shareholders the notices to be given under Section 6.

10.4 In issuing Shares transferred in accordance with the Agreement, the Company shall affix to the newly issued Shares such legends, as may be required by this Agreement or determined by the Secretary of the Company to be appropriate, including without limitation, the legend described in Section 11.4.

10.5 The Company shall give all Family Agreement Shareholders at least twenty (20) days written notice of meetings at which directors of the Company are to be

 

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elected, amendments to the Articles of Incorporation of the Company are to be voted on by Shareholders, or other Major Decisions are to be voted on by the Shareholders; record the votes of the Shares on the matters to be voted on at the Family Agreement Shareholders meeting and cause the Shares to be voted at Shareholder meetings in accordance with the provisions of Section 8.

10.6 The Secretary of the Company is authorized to revise Exhibit A to reflect changes in the list of Family Agreement Shareholders.

11. Miscellaneous Provisions.

11.1 Further Assurances. Each party agrees to perform any further acts and to execute and deliver any further documents that may be reasonably necessary to carry out the purposes of this Agreement.

11.2 Attorneys’ Fees. In the event that a lawsuit or arbitration is commenced in connection with this Agreement between parties to it, the prevailing party or parties shall, in addition to any other relief, be entitled to an award of reasonable costs and expenses, including but not limited to attorneys’ fees, incurred in connection therewith, including such costs and expenses incurred on appeal.

11.3 Construction; Venue; Submission to Jurisdiction. It is agreed and understood that this Agreement is made in accordance with and shall be interpreted under the laws of the State of Washington. Any disputes arising under or in connection with this Agreement shall be resolved through arbitration in accordance with Section 11.15, provided that this shall not prevent a party from seeking equitable relief from a federal or state court sitting in Seattle, Washington. If any action or other proceeding be brought to compel, enforce, or in aid of such arbitration, or for equitable relief, the venue of said actions shall be in the United States District Court for the Western District of Washington or the Superior Court for King County, Washington. Each of the parties submits to the jurisdiction of any state or federal court sitting in Seattle, Washington, in any action or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and determined in any such courts. Each party also agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court. Each of the parties waives to the fullest extent permitted by law any defense that maintenance of the proceeding in any such court is inconvenient, and waives any bond, surety, or other security that might be required of any other party with respect thereto. Each party agrees that a final judgment in any action or proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by law or in equity.

 

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11.4 Securities Laws; Legend.

(a) Each Family Agreement Shareholder represents to all other Family Agreement Shareholders and to the Company that all of such Family Agreement Shareholder’s Shares have been acquired by such Family Agreement Shareholder for investment and not with a view to sale or distribution within the meaning of the Securities Act of 1933, as it may be amended and is in effect during the term of this Agreement (the Securities Act), and that he or she has been advised that the Shares have not been registered with the Securities and Exchange Commission and may not be offered, sold or otherwise transferred except in compliance with the Securities Act.

(b) Upon the reissuance or transfer of any Shares, the Family Agreement Shareholder shall deliver the certificates representing his or her Shares to the Company to have placed upon the reissued or transferred Shares a legend in substantially the following form:

The shares represented by this certificate (a) are subject to the terms of a Family Shareholders Agreement restricting the transfer of these shares and making them subject to a voting agreement, as such agreement may be amended from time to time as provided therein (a copy of which Agreement may be examined at the principal office of the corporation), and (b) have not been registered under federal or any applicable state securities acts and cannot be transferred without an opinion of counsel satisfactory to the corporation’s counsel that such transfer will not violate any such securities laws.

11.5 Amendments; Waiver. Prior to the tenth (10 th ) anniversary of the Effective Date, the provisions of this Agreement may be amended or waived, in whole or in part, only upon the consent of a Family Agreement Shareholders Supermajority, and on or after the tenth (10 th ) anniversary of the Effective Date may be amended or waived, in whole or in part, only upon the consent of majority of the Family Agreement Shareholders; provided, however, that no such amendment shall materially reduce the rights or materially increase the obligations of a Family Agreement Shareholder, unless the Family Agreement Shareholder consents to the amendment or the amendment effects a comparable reduction in the rights or increase in the obligations of all Family Agreement Shareholders that is proportionate to the respective number of Shares of the Family Agreement Shareholders at the time of the amendment. No waiver of any breach of any provision of this Agreement shall be held to be a waiver of any other or subsequent breach, and the failure of a party to enforce at any time any provision hereof shall not be deemed a waiver of any right of such party to subsequently enforce such provision or any other provision hereof. No amendment to this Agreement may be made which would increase the Company’s responsibilities under this Agreement unless the Company specifically approves such amendment by becoming a signatory to it.

 

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11.6 Successors and Assigns. This Agreement shall be binding on, and shall inure to the benefit of, the parties hereto and their respective heirs, personal representatives, successors and assigns. The Company shall not permit the Transfer of any of the Shares on its books or issue new certificates representing any of the Shares to a Transferee who or which is not a Family Agreement Shareholder unless and until each Transferee shall have executed an appropriate form of Shareholder Consent or other form of agreement as specified herein, and the certificate for the Shares shall have been prepared with such legends as may be deemed to be appropriate by the Secretary of the Company.

11.7 Testamentary Provisions. Each Family Agreement Shareholder agrees to exercise best efforts to insert in his or her will a direction and authorization to the Family Agreement Shareholder’s personal representative to fulfill and comply with the provisions of this Agreement, but the failure to do so shall not impact the obligation to comply with the terms of this Agreement. Should a personal representative of a deceased or incompetent Family Agreement Shareholder not be appointed within a time period that is reasonable in order to effectuate the provisions of this Agreement, either the Company or any of the Family Agreement Shareholders is hereby given the right to petition for such appointment.

11.8 Severability. If any provision of this Agreement, on its face or as applied to any person or circumstance, is or becomes unenforceable to any extent, the remainder of this Agreement and the application of the provision to any other person, entity, circumstance or extent, shall not be affected, and this Agreement shall continue in force.

11.9 Entire Agreement. This instrument constitutes the sole and entire agreement of the parties with respect to its subject matter and correctly sets forth the rights, duties and obligations of each as to the other with respect to the subject matter as of its date. Any prior agreements, promises, negotiations or representations concerning its subject matter not expressly set forth in this Agreement are of no force or effect.

11.10 Captions. Section titles and other captions in this Agreement are inserted only as a matter of convenience and for reference and shall in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof. Whenever the singular number is used in this Agreement, the same shall include the plural, and the masculine shall include the feminine and neuter genders and vice versa, in either case when required by the context.

11.11 Notices. To be effective, any notice, consent or other communication hereunder by a party shall be in writing, delivered in person, transmitted via facsimile machine; sent by documented overnight delivery service; mailed by certified or registered mail, postage prepaid, to the other party; or delivered electronically to the email address maintained in the records of the Company for the recipient. All such

 

19


notices, consents and communications shall be deemed to be delivered on the second day after transmittal. Any notice or other communication to the Company or the ESOP shall be sent addressed to the Company or the ESOP at 2000 Two Union Square, 601 Union Street, Seattle, WA 98101, Attention: HomeStreet, Inc. Corporate Secretary or sent by electronic mail to the Secretary of the Company at his or her Company email address. Any notice or other communication to a Family Agreement Shareholder shall be sent addressed to the Family Agreement Shareholder at his, her or its physical or email address in the official records of the Company.

11.12 Counterparts . This Agreement may be executed by the parties in one or more counterparts, all of which taken together shall constitute one instrument.

11.13 Suspension of Time Periods. The death or incompetency of a Family Agreement Shareholder, or the need to conduct an arbitration pursuant to Section 11.15, shall suspend all time periods set forth in this Agreement for notices required to be given or elections that the Company or a Family Agreement Shareholder is entitled to make pursuant to this Agreement, for a reasonable time, to allow a personal representative to be appointed for the deceased or incompetent Family Agreement Shareholder, or completion of the arbitration, as the case may be.

11.14 Changes in Capital Structure. An appropriate adjustment shall be made to any Purchase Price determined hereunder or to any other provision hereof to equitably reflect any stock dividend, stock split, share combination or other recapitalization or reorganization occurring between the date of the Offer Notice and the Closing Date, the intent of such adjustment being to assure that the Transferor, in the aggregate, sells the same interest in the Company and receives the same consideration as would have been sold and received if such event had not occurred.

11.15 Arbitration. Any dispute arising under or in connection with this Agreement will be resolved by arbitration as set forth in this Section 11.15. Each party, however, will have full access to the courts in accordance with Section 11.3 to compel compliance with these arbitration provisions, to enforce an arbitration award or to seek injunctive relief, whether or not arbitration is available or under way. The arbitration will take place as follows:

(a) The party or parties demanding arbitration (collectively the demanding party) must give the other party or parties (collectively the responding party) a notice, which must contain, in addition to the demand for arbitration, a clear statement of the issue or issues to be resolved by arbitration, an appropriate reference to the provision of the Agreement which is involved, the relief the party requests through arbitration, and the names and addresses of at least three individuals whom the demanding party would consider acceptable as an arbitrator.

 

20


(b) The responding party shall provide a response to the demanding party within fifteen (15) days following receipt of the notice. The response shall contain a clear statement of the responding party’s position concerning the issue or issues in dispute and the names and addresses of at least three individuals whom the responding party would consider acceptable as an arbitrator. If the responding party fails to provide a timely response, the demanding party may apply to the presiding department of the Superior Court for King County, State of Washington, to designate an arbitrator.

(c) Within seven (7) days following receipt of the response, the parties shall agree on a single arbitrator to settle the dispute. If the parties are unable to do so, then either party may apply to the presiding department of the Superior Court for King County, State of Washington, to designate an arbitrator.

(d) The arbitration will be conducted in Seattle, Washington within twenty (20) days after the selection of the arbitrator. The arbitrator will have the authority to determine the scope and timing of discovery. The arbitrator will allow each party an opportunity to submit oral and written evidence and argument concerning the issue or issues in dispute. The arbitrator may resolve only the issue or issues submitted to arbitration and must include as part of his or her consideration a full review of the Agreement and all material incorporated in the Agreement by reference. The decision of the arbitrator will be final and will bind the parties.

(e) Except to the extent inconsistent with the terms of this Agreement, the terms and provisions of Chapter 7.04 RCW are incorporated in and made a part of this Agreement.

11.16 Termination. This Agreement shall automatically terminate upon the earliest of

(a) the written agreement to terminate executed by a Family Agreement Shareholder Supermajority, if the termination occurs before the tenth (10 th ) anniversary of the Effective Date;

(b) the written agreement to terminate executed by a majority of Family Agreement Shareholders, if the termination occurs on or after the tenth (10 th ) anniversary of the Effective Date;

(c) the bankruptcy, receivership or dissolution of the Company;

(d) the date on which all Shares are held by a single Shareholder;

(e) the date of closing of an underwritten public offering of common stock of the Company, pursuant to a registration statement filed by the Company under the Securities Act; or

 

21


(f) April 14, 2033.

No such termination shall affect the obligation of the Company or any Family Agreement Shareholder to continue to make payments for Shares already purchased or then required to be purchased pursuant to this Agreement.

11.17 Specific Performance. Each of the parties acknowledges that one or more of the other parties will suffer immediate and irreparable harm, which will not be compensable by damages alone, if a party repudiates or breaches any of the provisions of this Agreement, or threatens or attempts to do so. If any such actual, threatened or attempted repudiation or breach occurs, each party agrees and stipulates that the party suffering the harm, in addition to and not in limitation of any other rights, remedies or damages available to the party at law or in equity, shall be entitled to obtain temporary, preliminary and permanent injunctions in accordance with Section 11.3 in order to prevent or restrain any such breach and enforce specifically the provisions of this Agreement.

11.18 Legal Counsel. Each Family Agreement Shareholder and Spouse who executes this Agreement, a Shareholder Consent, or a Spouse Consent acknowledges that he or she (a) has read this Agreement, including but not limited to Sections 2, 3, 6, 8 and Section 9, and understands its intended effect, (b) understands that this Agreement has been drafted by legal counsel for the Company, and (c) has been encouraged and has had the opportunity, before executing this Agreement, to consult separate and independent legal counsel of his or her choice and has either exercised or waived the right to do so.

11.19 Definitions. Capitalized terms used in the foregoing Agreement have the meanings given those terms in the text of the Agreement, which are located in the following sections:

Acceptance Notice is defined in Section 4.3(a) of the Agreement.

Accepting Family Offerees is defined in Section 4.3(a) of the Agreement.

Agreement is defined in the preamble of the Agreement.

Articles of Incorporation is defined in Section 8.3 of the Agreement.

Board is defined in Section A of the Recitals.

Charity is defined in Section 3.3 of the Agreement.

Closing Date is defined in Section 4.4 of the Agreement.

Company is defined in the preamble of the Agreement.

 

22


Company Acceptance Period is defined in Section 4.3(b) of the Agreement.

Divorce is defined in Section 6.1(c) of the Agreement.

Effective Date is defined in the Preamble of the Agreement.

ESOP is defined in Recital E of the Agreement.

ESOP Acceptance Period is defined in Section 4.3(c).

ESOP Value is defined in Section 4.2 of the Agreement.

Family Agreement Shareholders is defined in the Preamble of the Agreement.

Family Agreement Shareholders Supermajority is defined in Section 8.3 of the Agreement.

Family Agreement Shareholders Meeting is defined in Section 8.1 of the Agreement.

Family Offeree Acceptance Period is defined in Section 4.3(a).

Family Permitted Transferees is defined in Section 3.2(a).

Family Shareholder Voting Agreement is defined in Section 3.1 (b) of the Agreement.

General Shareholders Agreement is defined in Section 5.1 of the Agreement.

Lineal Descendant(s) is defined in Section 3.1 (a) of the Agreement.

Major Decision is defined in Section 8.3 of the Agreement.

Minor Decision is defined in Section 8.2 of the Agreement.

Non-complying Transfer is defined in section 2 of the Agreement.

Offer Date is defined in Section 4.2 of the Agreement.

Offer Notice is defined in Section 4.1 of the Agreement.

Offered Shares is defined in Section 4.1 of the Agreement.

Option Event is defined in Section 6.1 of the Agreement.

Permitted Entity is defined in Section 3.1(c) of the Agreement.

 

23


Permitted Transfer is defined in Section 3.1 of the Agreement.

Permitted Transferees is defined in Section 3.1 of the Agreement.

Permitted Trust is defined in Section 3.1 (b) of the Agreement.

Pro Rata Portion is defined in Section 4.3(a) of the Agreement.

Purchase Price is defined in Section 4.4 of the Agreement.

Purchasers is defined in Section 4.3(d) of the Agreement.

Secretary of the Company is defined in Section 3.1 (b) of the Agreement.

Securities Act is defined in Section 11.4 of the Agreement.

Shareholder is defined in Section 3.3(c) of the Agreement.

Shareholder Consent is defined in the preamble of the Agreement.

Shareholder Spouse is defined in Section 3.1(b) of the Agreement.

Shares is defined in the preamble of this Agreement.

Spouse is defined in Section 3.1 (b) of the Agreement.

Spouse Consent is defined in Section 3.2(b) of the Agreement.

Spousal Award is defined in Section 6.2(b) of the Agreement.

Stepchild, Stepchildren are defined in Section 3.1(b) of the Agreement

Trading Window is defined in Section 4.4 of the Agreement.

Transfer is defined in Section 2 of the Agreement.

Transferor is defined in Section 3.4 of the Agreement.

 

24


It is so agreed, between the Company and the Shareholders listed on Exhibit A who have executed a Shareholder Consent.

 

HomeStreet, Inc.
by    
Its    

 

25


Effective: 10/23/08

Exhibit A

HomeStreet, Inc. Family Agreement Shareholders

 

Name

  Street 1   City 1   State 1   Zip 1  

No. of Shares

 

FAS Category

 

Authorized FAS

Voter

 

Spouse Consent

Glory Curtis Beijar   33821 Pequito
Drive
  Dana
Point
  CA   92629   21,485.00   Lineal Descendant     Henrik Geijar
Gro Buer   6215 Palatine
Avenue North
  Seattle   WA   98103   43,379.00   Shareholder Spouse    
Adam Curtis   1554 Sleeping
Indian Road
  Fallbrook   CA   92028   21,407.00   Lineal Descendant    
Barbara M. Curtis   1554 Sleeping
Indian Road
  Fallbrook   CA   92028   148,263.00   Lineal Descendant    
Crystal Dawn Curtis   99 McGuinness
Blvd. #2
  Brooklyn   NY   11222-3301   21,407.00   Lineal Descendant    
Andrew Alvaro Mullins-Williams   1246 16 th
Avenue E.
  Seattle   WA   98112   220.00   Lineal Descendant    
Annika M. Swanson   112 Sewall Ave.
Apt. 3
  Brookline   MA   02446   4,740.00   Lineal Descendant    
Jordan W. Swanson   1214 E. Hamlin,
#6
  Seattle   WA   98101   4,740.00   Lineal Descendant     Magda Swanson
Craig Westling   PO Box 232   Norwich   VT   05055   1,225.00   Stepchild    
Kaya Westling   PO Box 54   Canyon   CA   94516   1,225.00   Stepchild    
Bruce W. Williams   601 Union
Street, Suite
2000
  Seattle   WA   98101   202,851.00   Lineal Descendant    
Bruce W. Williams and Gro A. Buer, Husband and Wife   601 Union
Street, Suite
2000
  Seattle   WA   98101   16,967.00   Lineal Descendant & Shareholder Spouse   Bruce Williams  
Bruce W. Williams, Executor for Estate of Marie W. Williams   601 Union
Street, Suite
2000
  Seattle   WA   98101   100,046.00   Lineal Descendant    
Bruce W. Williams, Executor for Estate of Walter B. Williams   601 Union
Street, Suite
2000
  Seattle   WA   98101   100,048.00   Lineal Descendant    
Kathryn A. Williams   1246 16th
Avenue E.
  Seattle   WA   98112   168,407.00   Lineal Descendant    
Marcia F. Williams   P.O. Box 11500   Bainbridge
Island
  WA   98110   135,453.00   Lineal Descendant    
David John Zimmerman   730 S. Andresen
Rd.
  Vancouver   WA   98661   5,000.00   Lineal Descendant    
Karen M. Zimmerman   1432 NE 6th
Street
  Camas   WA   98607   27,073.00   Lineal Descendant    
Steven W. Zimmerman   730 S. Andresen
Rd.
  Vancouver   WA   98661   103,323.00   Lineal Descendant     Janice Zimmerman
Wendy S. Williams   4215 NE 125th
Avenue
  Seattle   WA   98125   202,102.00   Lineal Descendant    


Name

  Street 1   City 1   State 1   Zip 1  

No. of Shares

 

FAS Category

 

Authorized FAS

Voter

 

Spouse Consent

Dale and Marjorie Myers, Trustees under Myers Family Trust dated 3/28/89   7835 Rush Rose
Drive #H-214
  Carlsbad   CA   92009   181,116.00   Permitted Trust  

Dale Myers

(POA

 
Janet L. Westling, Trustee of the John Dale Westling Trust dated 12/22/05   1601 Avery Rd   San Marcos   CA   92078   32,430.00   Permitted Trust    
Janet L. Westling, Trustee of the Justin M. Westling Trust dated 12/22/05   1601 Avery Rd   San Marcos   CA   92078   32,430.00   Permitted Trust    
Michael J. and Janet L. Westling, as Trustees for the Westling Family Trust (combination of Janet Westling’s separate property & community property)   1601 Avery Rd   San Marcos   CA   92078   111,104.00   Permitted Trust  

Janet Westling

(Voting

Agreement)

 
Michael J. and Janet L. Westling, as Trustees for the Westling Family Trust as Michael Westling’s separate property   1601 Avery Rd   San Marcos   CA   92078   10,965.00   Permitted Trust  

Michael Westling

(Voting Agreement)

 
Michael J. Westling, Trustee under John D. Westling Trust dated 6/20/02   1601 Avery Rd   San Marcos   CA   92078   8,825.00   Permitted Trust  

Janet Westling

(Voting Agreement)

 
Michael J. Westling, Trustee under Justin M. Westling Trust dated 6/20/02   1601 Avery Rd   San Marcos   CA   92078   8,825.00   Permitted Trust  

Janet Westling

(Voting Agreement)

 
Michael Westling, Trustee under Myers Family Trust dated 12/76   1601 Avery Rd   San Marcos   CA   92078   7,820.00   Permitted Trust  

Janet Westling

(Voting Agreement)

 
Bruce W. Williams, Trustee of the Andrew Alvaro Mullins- Williams 2005 Trust   601 Union Street,
Suite 2000
  Seattle   WA   98101   469.00   Permitted Trust    
Bruce W. Williams, Trustee under Myers Irrevocable Trust #1 dated 8/5/94   601 Union Street,
Suite 2000
  Seattle   WA   98101 - 2326   97,784.00   Permitted Trust    
Bruce W. Williams and Gro A. Buer, Trustees under Trust dated 12/25/95   601 Union Street,
Suite 2000
  Seattle   WA   98101   17,580.00   Permitted Trust  

Bruce Williams

(Voting Agreement)

 
Bruce W. Williams, Trustee under Marina Sonja Williams Trust dated 12/23/03   601 Union Street,
Suite 2000
  Seattle   WA   98101   1,367.75   Permitted Trust    


Name

  Street 1   City 1   State 1   Zip 1  

No. of Shares

 

FAS Category

 

Authorized FAS

Voter

 

Spouse Consent

Bruce W. Williams, Trustee under 2000 Karen M. Zimmerman Trust dated 12/22/00   601 Union
Street, Suite
2000
  Seattle   WA   98101   34,551.00   Permitted Trust    
Bruce W. Williams, Trustee under 2000 Steve W. Zimmerman Trust dated 12/22/00   601 Union
Street, Suite
2000
  Seattle   WA   98101   34,551.00   Permitted Trust    
Kathryn Anne Williams, Trustee under Andrew Alvaro Mullins- Williams Trust   1246 16th
Avenue E.
  Seattle   WA   98112   1,367.75   Permitted Trust    
Kathryn Anne Williams, Trustee under Andrew A. Mullins- Williams Trust dated 12/27/88   1246 16th
Avenue E.
  Seattle   WA   98112   10,00.00   Permitted Trust    
Kathryn Anne Williams, Trustee under Mullins-Williams Children’s Trust dated 7/28/93   1246 16th
Avenue E.
  Seattle   WA   98112   50,160.00   Permitted Trust    
Marcia F. Williams, Trustee under Annika Marie Swanson Trust   P.O. Box 11500   Bainbridge
Island
  WA   98110   1,367,75   Permitted Trust    
Marcia F. Williams, Co-Trustee under Trust U/A dated 7/7/84   P.O. Box 11500   Bainbridge
Island
  WA   98110   78,660.00   Permitted Trust  

Marcia Williams

(Voting

Agreement)

 
Marcia F. Williams, Trustee under Jordan Williams Swanson Trust   P.O. Box 11500   Bainbridge
Island
  WA   98110   1,367,75   Permitted Trust    
Harold and Julianne Zimmerman, Trustees of the Zimmerman Living Trust dated 11/12/97   1625 N.W. Ivy
Street
  Camas   WA   98607   95,595.00   Permitted Trust    
Seven W. Zimmerman, Trustee under Brittney Vanderhoogt Trust Dated 03/13/08   730 S. Andresen
Rd.
  Vancouver   WA   98661   528.00   Permitted Trust    
Seven W. Zimmerman, Trustee under Brooke Vanderhoogt Trust Dated 03/13/08   730 S. Andresen
Rd.
  Vancouver   WA   98661   528.00   Permitted Trust    
Seven W. Zimmerman, Trustee under Brian Paul Zimmerman Trust Dated 12/20/07   730 S. Andresen
Rd.
  Vancouver   WA   98661   985.00   Permitted Trust    
Seven W. Zimmerman, Trustee under Zimmerman Trust U/A dated 12/84   730 S. Andresen
Rd.
  Vancouver   WA   98661   10,000.00   Permitted Trust    


Name

  Street 1     City 1     State 1     Zip 1    

No. of Shares

 

FAS Category

 

Authorized FAS

Voter

 

Spouse Consent

Seven W. Zimmerman,

Trustee under David John

Zimmerman Trust Dated 12/20/07

   
 
730 S. Andresen
Rd.
  
  
    Vancouver        WA        98661      985.00   Permitted Trust    

Seven W. Zimmerman,

Trustee under Zimmerman

Grandchildren Trust dated 12/25/91

   
 
730 S. Andresen
Rd.
  
  
    Vancouver        WA        98661      18,000.00   Permitted Trust    

Seven W. Zimmerman,

Trustee under Hannah Abbey

Zimmerman Trust Dated 12/20/07

   
 
730 S. Andresen
Rd.
  
  
    Vancouver        WA        98661      985.00   Permitted Trust    

Seven W. Zimmerman,

Trustee under Kevin Mark

Zimmerman Trust Dated 12/20/07

   
 
730 S. Andresen
Rd.
  
  
    Vancouver        WA        98661      985.00   Permitted Trust    
       
 
 
Total
Family
Shares
  
  
  
    2,180,693.00      


Exhibit B-1

Shareholder Consent for Lineal Descendants

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6 and 8 of the Agreement) effective as of                                  (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Lineal Descendant:    

 

   

 

      (Print Name)


Exhibit B-2

Shareholder Consent for a Permitted Entity

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6 and 8 of the Agreement) effective as of                                          (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Entity:    

 

      By  

 

      Its  

 


Exhibit B-3

Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of                                  (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:    

 

      By  

 

        Name of Trustee  

 


Exhibit B-4

Shareholder Consent For a Shareholder Spouse

IN WITNESS WHEREOF , the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, 8 and 9 of the Agreement) effective as of                      (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Shareholder Spouse:   

 

  

 

     (print name)


Exhibit B-5

Shareholder Consent for a Stepchild

IN WITNESS WHEREOF , the following party has executed this Shareholder Consent to become party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6 and 8 of the Agreement) effective as of                      (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Stepchild:   

 

  

 

     (Print Name)


Exhibit C

SPOUSE CONSENT

I,                      , am the spouse of                      and hereby approve or ratify the execution of a Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. by my spouse.

I agree to the provisions of the Agreement, including Sections 2 (restrictions on transfer), 6 (purchase option events following death or divorce), 8 (Voting) and 9 (application to marital community property).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me in this matter.

I have signed this Spouse Consent effective                      , 20      (fill in the date you sign).

 

 

Signature

 

(print name)


Exhibit D

PROMISSORY NOTE

 

$                                             , Washington
                       , 20     

Effective                      , 20      (the Note Date ), for value received, the undersigned hereby promises to pay to the order of                      , or the holder hereof (the payee or any other holder hereof will be referred to as the Holder), the principal amount of                                          Dollars ($                      ), with interest during the first year of the term of this Note at the rate of              percent (          %) (the prime rate of interest announced by the Bank of America at the Note Date), which rate shall be adjusted on each anniversary of the Note Date to reflect the prime rate of interest in effect at the Bank of America on that date. Interest shall be accrued from the Note Date on the principal balance of this Note remaining unpaid from time to time.

The obligations under this Note shall be paid in four (4) equal installments of principal in the amount of                                          Dollars ($                      ) each, together with all accrued but unpaid interest, on the first four (4) anniversaries of the Note Date until this Note is paid in full. Principal or accrued interest may be prepaid at any time or times without premium or penalty. All payments shall be applied first against accrued interest, then against principal to the extent of any installments thereof then due and payable, and then against principal last to become due hereunder. All payments shall be made in lawful money of the United States at                              , or such other place as the Holder may designate.

If default is made in the payment of any amount due under this Note and such default continues for a period of five (5) days after notice to the undersigned that such payment is overdue, then the entire principal balance of this Note and all accrued interest shall, at the option of the Holder, become due and payable without notice, and, from and after the default or liquidation and dissolution, all accrued interest shall be added to principal and the principal balance under this Note shall thereafter bear interest, compounded daily until paid, at the rate of twelve percent (12%) per annum or the maximum rate permitted by law, whichever is less.

If this Note is placed in the hands of an attorney for collection after any default, whether suit is brought or not, the undersigned promises to pay all costs and expenses, including but not limited to attorneys’ fees, incurred in collecting this Note.


This Note is to be construed in all respects and enforced according to the laws of the State of Washington. Diligence, presentment, demand, protest, and notice of dishonor are hereby waived by the undersigned and all sureties, guarantors, and endorsers hereof.

This Note is made pursuant to, and is subject to, the Amended and Restated Family Shareholders Agreement dated effective as of                      , 2008 among HomeStreet, Inc., a Washington corporation, and certain of its shareholders.

 

 

Signature of Maker
address of Maker

 

 

Note: Oral promises to extend credit are not enforceable under Washington law.


EXHIBIT E

FORM OF IRREVOCABLE PROXY

TO VOTE STOCK

OF HOMESTREET, INC.

The undersigned shareholder of HomeStreet, Inc., a Washington corporation (the “Company”), hereby irrevocably appoints Bruce W. Williams, Janet Westling and Steve Zimmerman and each of them, with full power of substitution in each of them, as the sole and exclusive attorneys and proxies of the undersigned to vote and exercise all voting and related rights (to the fullest extent that the undersigned is entitled to do so) with respect to all of the shares of capital stock of the Company, that now are or hereafter may be legally or beneficially owned by the undersigned, and any and all other shares or securities of the Company issued or issuable in respect thereof on or after the date hereof (collectively, the Shares ) in accordance with the outcome of voting determinations pursuant to Section 8.2 or Section 8.3, as the case may be, of that certain Amended and Restated Family Shareholders Agreement dated as of October 23, 2008, by and among the Company and the undersigned (the Family Shareholders Agreement ). Upon the undersigned’s execution of this Irrevocable Proxy, any and all prior proxies given by the undersigned with respect to any Shares are hereby revoked and the undersigned agrees not to grant any subsequent proxies with respect to the Shares that are inconsistent with this Irrevocable Proxy until after the termination of the Irrevocable Proxy, it being understood that if the undersigned is free to vote his or her Shares as he or she chooses pursuant to Section 8.2 or Section 8.3 of the Family Shareholders Agreement, then the undersigned may grant a proxy in his or her discretion for the voting of such Shares at the relevant all shareholder meeting.

This Irrevocable Proxy is irrevocable (to the fullest extent permitted by and subject to applicable law), is coupled with an interest, including, but not limited to, the Family Shareholders Agreement, and is granted in consideration of the need to streamline and expedite the Company’s shareholder approval process. This proxy shall terminate upon the valid termination of the Family Shareholders Agreement.

The authority of the attorneys and proxies named above includes the authority and power to act as the undersigned’s attorney and proxy to vote the Shares, and to exercise all voting and other rights of the undersigned with respect to the Shares in accordance with the outcome of the voting determinations pursuant to Section 8.2 or Section 8.3 of the Family Shareholders Agreement (including, without limitation, the power to execute and deliver written consents, pursuant to the Washington Business Corporation Act), at every annual, special or adjourned meeting of the shareholders of the Company and in every written consent in lieu of such meeting.

All authority herein conferred shall survive the death or incapacity of the undersigned and any obligation of the undersigned hereunder shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned.

[signature page follows]


IN WITNESS WHEREOF , the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated:             2008

 

SHAREHOLDER:
   
Signature
Name:
Address:

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


Shareholder Consent for a Shareholder Spouse

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, 8 and 9 of the Agreement) effective as of 11/15/08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Shareholder Spouse:

    /s/ Gro Buer
   

Signature

Gro Buer


Shareholder Consent for a Shareholder Spouse

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, 8 and 9 of the Agreement) effective as of 11/11/08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Shareholder Spouse:

    /s/ Michael J. Westling
   

Signature

Michael J. Westling


Shareholder Consent for a Stepchild

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become party to the Amended and Restated Family Shareholders Agreement of Home Street, Inc. (specifically including Sections 3, 6 and 8 of the Agreement) effective as of 11/1/2008 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Stepchild:

    /s/ Kaya Westling
   

Signature

Kaya Westling


Shareholder Consent for a Stepchild

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become party to the Amended and Restated Family Shareholders Agreement of Home Street, Inc. (specifically including Sections 3, 6 and 8 of the Agreement) effective as of 10/30/08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Stepchild:

    /s/ Craig Westling
   

Signature

Craig Westling


Shareholder Consent for Lineal Descendants

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6 and 8 of the Agreement) effective as of 11/02/2008 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Lineal Descendant:

    /s/ Glory Curtis Beijar
   

Signature

Glory Curtis Beijar


Shareholder Consent for Lineal Descendants

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6 and 8 of the Agreement) effective as of Nov. 3, 2008 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Lineal Descendant:

    /s/ Barbara M. Curtis
   

Signature

Barbara M. Curtis


Shareholder Consent for Lineal Descendants

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6 and 8 of the Agreement) effective as of 11/15/08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Lineal Descendant:

    /s/ Crystal Dawn Curtis
   

Signature

Crystal Dawn Curtis


Shareholder Consent for Lineal Descendants

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6 and 8 of the Agreement) effective as of November 19, 2008 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Lineal Descendant:

    /s/ Andrew Alvaro Mullins-Williams
   

Signature

Andrew Alvaro Mullins-Williams


Shareholder Consent for Lineal Descendants

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6 and 8 of the Agreement) effective as of November 14, 2008 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Lineal Descendant:

    /s/ Annika M. Swanson
   

Signature

Annika M. Swanson


Shareholder Consent for Lineal Descendants

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6 and 8 of the Agreement) effective as of 11/24/2008 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Lineal Descendant:

    /s/ Jordan W. Swanson
   

Signature

Jordan W. Swanson


Shareholder Consent for Lineal Descendants

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6 and 8 of the Agreement) effective as of 10/30/08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Lineal Descendant:

    /s/ Bruce W. Williams
   

Signature

Bruce W. Williams


Shareholder Consent for Lineal Descendants

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6 and 8 of the Agreement) effective as of 10/30/08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Lineal Descendant:

    Estate of Marie W. Williams
      /s/ Bruce W. Williams
   

Signature

Executor Bruce W. Williams


Shareholder Consent for Lineal Descendants

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6 and 8 of the Agreement) effective as of 10/30/08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Lineal Descendant:

    Estate of Walter B. Williams
      /s/ Bruce W. Williams
   

Signature

Executor Bruce W. Williams


Shareholder Consent for Lineal Descendants

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6 and 8 of the Agreement) effective as of Oct. 28, 2008 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Lineal Descendant:

    /s/ Kathryn A. Williams
   

Signature

Kathryn A. Williams


Shareholder Consent for Lineal Descendants

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6 and 8 of the Agreement) effective as of 11/10/08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Lineal Descendant:

    /s/ Marcia F. Williams
   

Signature

Marcia F. Williams


Shareholder Consent for Lineal Descendants

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6 and 8 of the Agreement) effective as of 11-10-08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Lineal Descendant:

    /s/ Karen M. Zimmerman
   

Signature

Karen M. Zimmerman


Shareholder Consent for Lineal Descendants

IN WITNESS WHEREOF , the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6 and 8 of the Agreement) effective as of Nov. 6, 2008 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Lineal Descendant:

    /s/ Steven W. Zimmerman
    Signature
    Steven W. Zimmerman


Shareholder Consent for Lineal Descendants

IN WITNESS WHEREOF , the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6 and 8 of the Agreement) effective as of 10/29/08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Lineal Descendant:

    /s/ Wendy S. Williams
    Signature
    Wendy S. Williams


Shareholder Consent for Lineal Descendants

IN WITNESS WHEREOF , the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6 and 8 of the Agreement) effective as of 11/11/08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Lineal Descendant:

    /s/ Justin M. Westling
    Signature
    Justin M. Westling


Shareholder Consent for Lineal Descendants

IN WITNESS WHEREOF , the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6 and 8 of the Agreement) effective as of 11/11/08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Lineal Descendant:

    /s/ John Dale Westling
    Signature
    John Dale Westling


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF , the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of 10/31/2008 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    Myers Family Trust dated 3/28/89
      By   /s/ Dale Myers
        Co-Trustee Dale Myers
      By   /s/ Marjorie Myers
        Co-Trustee Marjorie Myers
      By   /s/ Dale Myers
        Dale Myers her attorney in fact


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF , the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of 11/11/08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    John Dale Westling Trust dated 12/22/05
      By   /s/ Janet L. Westling
        Trustee Janet L. Westling


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF , the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of 11/11/08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    Justin M. Westling Trust dated 12/22/05
      By   /s/ Janet L. Westling
        Trustee Janet L. Westling


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF , the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of 11/11/08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    Westling Family Trust
      By   /s/ Michael J. Westling
        Co-Trustee Michael J. Westling
      By   /s/ Janet L. Westling
        Co-Trustee Janet L. Westling


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF , the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of 11/10/08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    John D. Westling Trust dated 6/20/02
      By   /s/ Michael J. Westling
        Trustee Michael J. Westling


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF , the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of 11/11/08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    Justin M. Westling Trust dated 6/20/02
      By   /s/ Michael J. Westling
        Trustee Michael J. Westling


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF , the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of 11/11/08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    Myers Family Trust dated 12/76
      By   /s/ Michael J. Westling
        Trustee Michael J. Westling


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF , the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of Oct. 30, 2008 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    Andrew Alvaro Mullins-Williams 2005 Trust
      By   /s/ Bruce W. Williams
        Trustee Bruce W. Williams


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF , the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of 10-30-08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    Myers Irrevocable Trust #1 dated 8/5/94
      By   /s/ Bruce W. Williams
        Trustee Bruce W. Williams


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of 11/14/2008 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    Trust dated 12/25/95
      By    /s/ Bruce W. Williams
        Co-Trustee Bruce W. Williams
      By    /s/ Gro A. Buer
        Co-Trustee Gro A. Buer


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of 10/30/08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    Marina Sonja Williams Trust dated 12/23/03
      By    /s/ Bruce W. Williams
        Trustee Bruce W. Williams


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of 10/30/08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    2000 Karen M. Zimmerman Trust dated 12/22/00
      By    /s/ Bruce W. Williams
        Trustee Bruce W. Williams


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically, including Sections 3, 6 and 8 of the Agreement) effective as of 10/30/08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    2000 Steven W. Zimmerman Trust dated 12/22/00
      By    /s/ Bruce W. Williams
        Trustee Bruce W. Williams


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of Oct. 28, 2008 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    Andrew Alvaro Mullins-Williams Trust
      By    /s/ Kathryn Anne Williams
        Trustee Kathryn Anne Williams


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6. and 8 of the Agreement) effective as of Oct. 28, 2008 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    Andrew A. Mullins-Williams Trust dated 12/27/88
      By    /s/ Kathryn A. Williams
        Trustee Kathryn A. Williams


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of Oct. 28, 2008 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    Mullins-Williams Children’s Trust dated 7/28/93
      By    /s/ Kathryn A. Williams
        Trustee Kathryn A. Williams


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of 11/10/08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    Annika Marie Swanson Trust
      By    /s/ Marcia F. Williams
        Trustee Marcia F. Williams


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of 11/10/08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    Trustee under Jordan Williams Swanson Trust
      By    /s/ Marcia F. Williams
        Trustee Marcia F. Williams


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of 11-20-08 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    Zimmerman Living Trust dated 11/12/97
      By    /s/ Harold Zimmerman
        Co-Trustee Harold Zimmerman
      By    /s/ Julianne Zimmerman
        Co-Trustee Julianne Zimmerman
      By Harold Zimmerman as attorney-in-fact for Julianne Zimmerman under Power of Attorney dated 11-20-08
      /s/ Harold Zimmerman
      Harold Zimmerman


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of Nov. 6, 2008 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    Brittney Vanderhoogt Trust Dated 03/13/08
      By    /s/ Steven W. Zimmerman
        Trustee Steven W. Zimmerman


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of Nov. 6, 2008 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    Brooke Vanderhoogt Trust Dated 03/13/08
      By    /s/ Steven W. Zimmerman
        Trustee Steven W. Zimmerman


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of Nov. 6, 2008 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    Brian Paul Zimmerman Trust Dated 12/20/07
      By    /s/ Steven W. Zimmerman
        Trustee Steven W. Zimmerman


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of Nov. 6, 2008 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    Zimmerman Trust U/A dated 12/84
      By    /s/ Steven W. Zimmerman
        Trustee Steven W. Zimmerman


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of Nov. 6, 2008 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    David John Zimmerman Trust Dated 12/20/07
      By    /s/ Steven W. Zimmerman
        Trustee Steven W. Zimmerman


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF, the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of Nov. 6, 2008 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    Zimmerman Grandchildren Trust dated 12/25/91
      By    /s/ Steven W. Zimmerman
        Trustee Steven W. Zimmerman


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF , the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of Nov. 6, 2008 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    Hannah Abbey Zimmerman Trust Dated 12/20/07
      By   /s/ Steven W. Zimmerman
        Trustee Steven W. Zimmerman


Shareholder Consent for Permitted Trust

IN WITNESS WHEREOF , the following party has executed this Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. (specifically including Sections 3, 6, and 8 of the Agreement) effective as of Nov. 6, 2008 (fill in the date you sign).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me with respect to it.

 

Permitted Trust:

    Kevin Mark Zimmerman Trust Dated 12/20/07
      By   /s/ Steven W. Zimmerman
        Trustee Steven W. Zimmerman


SPOUSE CONSENT

I, Janice Zimmerman, am the spouse of Steve Zimmerman and hereby approve or ratify the execution of a Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. by my spouse.

I agree to the provisions of the Agreement, including Sections 2 (restrictions on transfer), 6 (purchase option events following death or divorce), 8 (Voting) and 9 (application to marital community property).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me in this matter.

I have signed this Spouse Consent effective Nov. 6 th , 2008 (fill in the date you sign).

 

/s/ Janice Zimmerman
Signature
Janice Zimmerman


SPOUSE CONSENT

I, Henrik Beijar, am the spouse of Glory Beijar and hereby approve or ratify the execution of a Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. by my spouse.

I agree to the provisions of the Agreement, including Sections 2 (restrictions on transfer), 6 (purchase option events following death or divorce), 8 (Voting) and 9 (application to marital community property).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me in this matter.

I have signed this Spouse Consent effective October 31, 2008 (fill in the date you sign).

 

/s/ Henrik Beijar
Signature
Henrik Beijar


SPOUSE CONSENT

I, Magda Guillen Swanson, am the spouse of Jordan Swanson and hereby approve or ratify the execution of a Shareholder Consent to become a party to the Amended and Restated Family Shareholders Agreement of HomeStreet, Inc. by my spouse.

I agree to the provisions of the Agreement, including Sections 2 (restrictions on transfer), 6 (purchase option events following death or divorce), 8 (Voting) and 9 (application to marital community property).

I acknowledge receipt of a copy of the Agreement and that I have been encouraged to retain independent legal counsel to advise me in this matter.

I have signed this Spouse Consent effective November 24, 2008 (fill in the date you sign).

 

/s/ Magda Guillen Swanson
Signature
Magda Guillen Swanson


IN WITNESS WHEREOF , the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 11/02/2008

 

SHAREHOLDER:
/s/ Glory Curtis Beijar
Signature
Name: Glory Curtis Beijar
Address: 33821 Pequito Drive
Dana Point, CA 92629

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF , the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: October 31, 2008

 

SHAREHOLDER:
/s/ Henrik Beijar
Name: Henrik Beijar
Address: 33821 Pequito Drive
Dana Point, CA 92629

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 11/15/2008

 

SHAREHOLDER:
/s/ Gro Buer
Signature
Name: Gro Buer

Address: 6215 Palatine Avenue

North Seattle, WA 98103

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF , the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: Nov. 9, 2008

 

SHAREHOLDER:
/s/ Barbara M. Curtis
Signature
Name: Barbara M. Curtis

Address: 1554 Sleeping Indian Road

Fallbrook, CA 92028

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 11/15/2008

 

SHAREHOLDER:
/s/ Crystal Dawn Curtis
Signature
Name: Crystal Dawn Curtis

Address: 99 McGuinness Blvd, #2

Brooklyn, NY 11222-3301

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: November 19, 2008

 

SHAREHOLDER:
/s/ Andrew Alvaro Mullins-Williams
Signature
Name: Andrew Alvaro Mullins-Williams

Address: 1246 16th Avenue E.

Seattle, WA 98112

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: November 14, 2008

 

SHAREHOLDER:
/s/ Annika M. Swanson
Signature
Name: Annika M. Swanson

Address: 112 Sewall Ave. Apt. 3

Brookline, MA 02446

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 11/24/2008

 

SHAREHOLDER:
/s/ Jordan W. Swanson
Signature
Name: Jordan W. Swanson

Address: 1214 E, Hamlin. #6

Seattle, WA 98101

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF , the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 10/30/2008

 

SHAREHOLDER:
/s/ Craig Westling
Signature
Name: Craig Westling

Address: PO Box 232

Norwich, VT 05055

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF , the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 11/1/2008

 

SHAREHOLDER:
/s/ Kaya Westling
Signature
Name:   Kaya Westling
Address:   PO Box 54
Canyon, CA 94516

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 10/30/2008

 

SHAREHOLDER:
/s/ Bruce W. Williams
Signature
Name:   Bruce W. Williams
Address:   601 Union Street, Suit 2000
Seattle, WA 98101

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 11/14/2008

 

SHAREHOLDER:
/s/ Bruce W. Williams
Bruce W. Williams
/s/ Gro A. Buer
Gro A. Buer
Name: Bruce W. Williams and Gro A. Buer, Husband and Wife

Address: 601 Union Street. Suite 2000

Seattle, WA 98101

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF , the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 10/30/2008

 

SHAREHOLDER:
/s/ Bruce W. Williams
Signature
Name: Bruce W. Williams, Executor for Estate of Marie W. Williams

Address: 601 Union Street, Suite 2000

Seattle, WA 98101

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 10/30/2008

 

SHAREHOLDER:
/s/ Bruce W. Williams
Signature

Name: Bruce W. Williams, Executor for Estate of Walter B. Williams

 

Address: 601 Union Street Suite 2000

Seattle, WA 98101

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: Oct. 28, 2008

 

SHAREHOLDER:
/s/ Kathryn A. Williams
Signature

Name: Kathryn A. Williams

 

Address: 1246 16th Avenue E.

Seattle, WA 98112

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 11/10/2008

 

SHAREHOLDER:
/s/ Marcia F. Williams
Signature

Name: Marcia F. Williams

 

Address: P.O. Box 11500

Bainbridge Island WA 98110

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 11/10/2008

 

SHAREHOLDER:
/s/ Karen M. Zimmerman
Signature

Name: Karen M. Zimmerman

 

Address: 1432 NE 6th Street

Camas, WA 98607

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF , the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: Nov. 6, 2008

 

SHAREHOLDER:
/s/ Steven W. Zimmerman
Signature
Name: Steven W. Zimmerman
Address: 730 S. Andresen Rd.
Vancouver, WA 98661

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF , the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 10/29/2008

 

SHAREHOLDER:
/s/ Wendy S. Williams
Signature
Name: Wendy S. Williams
Address: 4215 NE 125th Avenue
Seattle, WA 98125

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF , the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 10/31/2008

 

SHAREHOLDER:
Myers Family Trust dated 3/28/89
By   /s/ Dale Myers
  Co-Trustee Dale Myers
By   /s/ Marjorie Myers
  Co-Trustee Marjorie Myers
By   /s/ Dale Myers
  Dale Myers her attorney in fact
  Address: 7835 Rush Rose Drive #H-214
  Carlsbad, CA 92009

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF , the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 11/11/2008

 

SHAREHOLDER:
John Dale Westling Trust dated 12/22/05
By   /s/ Janet L. Westling
  Trustee: Janet L. Westling
  Address: 1601 Avery Rd
  San Marcos, CA 92078

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 11/11/2008

 

SHAREHOLDER:
Justin M. Westling Trust dated 12/22/05
By   /s/ Janet L. Westling
Trustee: Janet L. Westling

Address: 1601 Avery Rd.

San Marcos, CA 92078

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 11/11/2008

 

SHAREHOLDER:
Justin M. Westling Trust dated 12/22/05
By   /s/ Janet L. Westling
Trustee: Janet L. Westling

Address: 1601 Avery Rd.

San Marcos, CA 92078

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 11/18/2008

 

SHAREHOLDER:
Westling Family Trust
By   /s/ Michael J. Westling
  Co-Trustee: Michael J. Westling
By   /s/ Janet L. Westling
  Co-Trustee: Janet L. Westling
By   /s/ Janet L. Westling
  Janet L. Westling as Grantee under Irrevocable Proxy and voting Agreement dated may 4, 2008
Address: 1601 Avery Rd. San Marcos, CA 92078

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


to the Washington Business Corporation Act), at every annual, special or adjourned meeting of the shareholders of the Company and in every written consent in lieu of such meeting.

All authority herein conferred shall survive the death or incapacity of the undersigned and any obligation of the undersigned hereunder shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned.

[signature page follows]

IN WITNESS WHEREOF , the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 11/18/08

 

SHAREHOLDER:

Westling Family Trust, as

Michael

Westling’s Separate Property

By   /s/ Michael J. Westling
  Co-Trustee: Michael J. Westling
By   /s/ Janet L. Westling
  Co-Trustee: Janet L. Westling
By   /s/ Michael J. Westling
  Michael J. Westling as Grantee

 

             under Irrevocable Proxy

             and Voting Agreement
             dated May 4, 2008

Address: 1601 Avery Rd
San Marcos, CA 92078

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 11/11/2008

 

SHAREHOLDER:
John D. Westling Trust dated 6/20/02
By   /s/ Michael J. Westling
Trustee: Michael J. Westling
By   /s/ John D. Westling
  John D. Westling as Grantee under Irrevocable Proxy and Voting Agreement dated May 4, 2008

Address: 1601 Avery Rd

San Marcos, CA 92078

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF , the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 11/11/2008

 

SHAREHOLDER:
Justin M. Westling Trust dated 6/20/02
By   /s/ Michael J. Westling
Trustee: Michael J. Westling
By   /s/ Justin M. Westling
  Justin M. Westling as Grantee under Irrevocable Proxy and Voting Agreement dated May 4, 2008

Address: 1601 Avery Rd

San Marcos, CA 92078

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 11/11/2008

 

SHAREHOLDER:

 

Myers Family Trust dated 12/76

By    /s/ Michael J. Westling
Trustee: Michael J. Westling
By    /s/ Janet L. Westling
  Janet L. Westling as Grantee under Irrevocable Proxy and Voting Agreement dated May 4, 2008

 

Address: 1601 Avery Rd

San Marcos, CA 92078

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: Oct. 30, 2008

 

SHAREHOLDER:

 

Andrew Alvaro Mullins-Williams 2005 Trust

By    /s/ Bruce W. Williams
Trustee: Bruce W. Williams

Address: 601 Union Street,

Suite 2000 Seattle, WA 98101

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: Oct. 30, 2008

 

SHAREHOLDER:

 

Myers Irrevocable Trust #1 dated 8/5/94

By    /s/ Bruce W. Williams
Trustee: Bruce W. Williams

Address: 601 Union Street,

Suite 2000 Seattle, WA 98101-2326

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 11/14/2008

 

SHAREHOLDER:

 

Trust dated 12/25/95

By    /s/ Bruce W. Williams
Co-Trustee: Bruce W. Williams
By    /s/ Gro A. Buer
Co-Trustee: Gro A. Buer
By    /s/ Bruce W. Williams
 

Bruce W. Williams as Grantee under Irrevocable Proxy and Voting Agreement

dated April 24, 2008

 

Address: 601 Union Street, Suite 2000

Seattle, WA 98101

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 10/30/2008

 

SHAREHOLDER:

 

Marina Sonja Williams Trust dated 12/23/03

By    /s/ Bruce W. Williams
Trustee: Bruce W. Williams

 

Address: 601 Union Street, Suite 2000

Seattle, WA 98101

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 10/30/2008

 

SHAREHOLDER:

 

2000 Karen M. Zimmerman Trust dated 12/22/00

By    /s/ Bruce W. Williams
Trustee: Bruce W. Williams

Address: 601 Union Street, Suite 2000

Seattle, WA 98101

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 10/30/2008

 

SHAREHOLDER:

 

2000 Steven W. Zimmerman Trust dated 12/22/00

By    /s/ Bruce W. Williams
Trustee: Bruce W. Williams

 

Address: 601 Union Street, Suite 2000

Seattle, WA 98101

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: Oct. 28, 2008

 

SHAREHOLDER:

 

Andrew Alvaro Mullins-Williams Trust

By    /s/ Kathryn Anne Williams
Trustee: Kathryn Anne Williams

Address: 1246 16th Avenue E.

Seattle, WA 98112

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: Oct. 28, 2008

 

SHAREHOLDER:

 

Andrew A. Mullins-Williams Trust dated 12/27/88

By    /s/ Kathryn A. Williams
Trustee: Kathryn A. Williams

Address: 1246 16th Avenue E.

Seattle, WA 98112

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF , the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: Oct. 28, 2008

 

SHAREHOLDER:
Mullins-Williams Children’s Trust dated 7/28/93
By   /s/ Kathyn A. Williams
Trustee: Kathryn A. Williams
Address: 1246 16th Avenue E.
Seattle, WA 98112

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF , the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 11/10/2008

 

SHAREHOLDER:
Annika Marie Swanson Trust
By   /s/ Marcia F. Williams
Trustee: Marcia F. Williams
Address: P.O. Box 11500
Bainbridge Island, WA 98110

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF , the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: 11/10/2008

 

SHAREHOLDER:
Trustee under Jordan Williams Swanson Trust
By:   /s/ Marcia F. Williams
Trustee:   Marcia F. Williams
Address:  

P.O. Box 11500 Bainbridge Island,

WA 98110

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF , the undersigned has executed this Irrevocable Proxy with interest as aforesaid and is irrevocable.

Dated: Nov. 20, 2008

 

SHAREHOLDER:
Zimmerman Living Trust Dated 11/12/97
By   /s/ Harold Zimmerman
Co-Trustee:   Harold Zimmerman
By   /s/ Julianne Zimmerman
Co-Trustee:   Julianne Zimmerman

By Harold Zimmerman as attorney-in-fact for Julianne Zimmerman under Power of Attorney

dated 11-20-08

/s/ Harold Zimmerman
Harold Zimmerman

Address: 1625 N.W. Ivy Street

Cannas, WA 98607

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF , the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: Nov. 6, 2008

SHAREHOLDER:
Brittney Vanderhoogt Trust Dated 03/13/08
By   /s/ Steven W. Zimmerman
Trustee:   Steven W. Zimmerman
Address:  

730 S. Andrsen Rd.

Vancouver, WA 98661

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF , the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: Nov. 6, 2008

 

SHAREHOLDER:
Brooke Vanderhoogt Trust Dated 03/13/08
By   /s/ Steven W. Zimmerman
Trustee: Steven W. Zimmerman
Address: 730 S. Andresen Rd.
Vancouver, WA 98661

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF , the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: Nov. 6, 2008

 

SHAREHOLDER:
Brian Paul Zimmerman Trust Dated 12/20/07
By   /s/ Steven W. Zimmerman
Trustee: Steven W. Zimmerman
Address: 730 S. Andresen Rd.
Vancouver, WA 98661

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF , the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: Nov. 6, 2008

 

SHAREHOLDER:
Zimmerman Trust U/A dated 12/84
By   /s/ Steven W. Zimmerman
Trustee: Steven W. Zimmerman
Address: 730 S. Andresen Rd.
Vancouver, WA 98661

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF , the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: Nov. 6, 2008

 

SHAREHOLDER:
David John Zimmerman Trust Dated 12/20/07
By   /s/ Steven W. Zimmerman
Trustee: Steven W. Zimmerman
Address: 730 S. Andresen Rd.
Vancouver, WA 98661

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: Nov. 6, 2008

 

SHAREHOLDER:

 

Zimmerman Grandchildren Trust dated 12/25/91

By    /s/ Steven W. Zimmerman
Trustee: Steven W. Zimmerman

Address: 730 S. Andresen Rd.

Vancouver, WA 98661

[SIGNATURE PAGE TO IRREVOCABLE PROXY]


IN WITNESS WHEREOF, the undersigned has executed this Irrevocable Proxy with an interest as aforesaid and is irrevocable.

Dated: Nov. 6, 2008

 

SHAREHOLDER:

 

Hannah Abbey Zimmerman Trust Dated 12/20/07

By    /s/ Steven W. Zimmerman
Trustee: Steven W. Zimmerman

Address: 730 S. Andresen Rd.

Vancouver, WA 98661

[SIGNATURE PAGE TO IRREVOCABLE PROXY]

Exhibit 10.7

FORM OF

HOMESTREET, INC.

AWARD AGREEMENT FOR

NONQUALIFIED STOCK OPTIONS

FOR GOOD AND VALUABLE CONSIDERATION, HomeStreet, Inc. (the “Company”), hereby grants to Participant named below the nonqualified stock option (the “Option”) to purchase any part or all of the number of shares of its common stock, par value ______ (the “Common Stock”), that are covered by this Option, as specified below, at the Exercise Price per share specified below and upon the terms and subject to the conditions set forth in this Award Agreement, the Standard Terms and Conditions (the “Standard Terms and Conditions”) attached hereto, and those provisions of the HomeStreet, Inc. 2010 Equity Incentive Plan (the “Plan”) incorporated herein by reference. This Option is subject to and qualified in its entirety by the Standard Terms and Conditions; however, to the extent this Option expressly addresses a matter set forth in the Standard Terms and Conditions, and the provisions of this Option differ from such Standard Terms and Conditions, this Option shall govern such matters and the remaining Standard Terms and Conditions shall be otherwise unmodified. This Option is granted outside the Plan, pursuant to a Board resolution dated July 1, 2010; however it is intended to be granted under substantially identical terms, and therefore certain provisions of the Plan are incorporated herein by reference.

 

Name of Participant:

  
Grant Date:   

Number of Shares of Common

Stock covered by Option:

  
Exercise Price Per Share:   
Expiration Date:   

Ten (10) years after date of grant unless terminated earlier

Vesting Schedule:   

25% on date of grant

25% on the earlier of one year or upon a capital raise

25% on the earlier of two years or upon termination of the Cease and Desist Order

25% on three year anniversary from date of grant

This Option is not intended to qualify as an incentive stock option under Section 422 of the Code. By accepting this Award Agreement, Participant acknowledges that he or she has received; and read, and agrees that this Option shall be subject to, the terms of this Award Agreement and the Standard Terms and Conditions.

 

HOMESTREET, INC.

                                                                                                                                           
                                Participant Signature

By                                                                                                                    

  
Title:                                                                                                                   Address (please print):
                                                                                                                                           
                                                                                                                                           


HOMESTREET, INC.

STANDARD TERMS AND CONDITIONS FOR

NONQUALIFIED STOCK OPTIONS

These Standard Terms and Conditions apply to the Options granted outside the HomeStreet, Inc. 2010 Stock Incentive Plan (the “Plan”), which are identified as nonqualified stock options and are evidenced by an Award Agreement that specifically refers to these Standard Terms and Conditions. In addition to the specific Standard Terms and Conditions set forth below, the Option shall be subject to the following applicable terms of the Plan, which are incorporated into these Standard Terms and Conditions by this reference: Sections 2, 7, 12, 13, 14, and 15. Capitalized terms not otherwise defined herein shall have the meaning set forth in Section 2 of the Plan.

 

1. TERMS OF OPTION

HomeStreet, Inc. (the “Company”), has granted to the Participant named in the Award Agreement provided to said Participant herewith (the “Award Agreement”) a nonqualified stock option (the “Option”) to purchase up to the number of shares of the Company’s common stock (the “Common Stock”), set forth in the Award Agreement. The exercise price per share and the other terms and subject to the conditions of the Option are set forth in the Award Agreement, these Standard Terms and Conditions (as amended from time to time), and the incorporated provisions of the Plan. For purposes of these Standard Terms and Conditions and the Award Agreement, any reference to the Company shall include a reference to any Subsidiary.

 

2. NONQUALIFIED STOCK OPTION

The Option is not intended to be an incentive stock option under Section 422 of the Code and will be interpreted accordingly.

 

3. EXERCISE OF OPTION

On and after the Grant Date, to the extent not previously exercised, and subject to termination or acceleration as provided in these Standard Terms and Conditions, the Option shall be exercisable only to the extent it becomes vested, as described in the Award Agreement or the terms of the Plan, to purchase up to that number of shares of Common Stock as set forth in the Award Agreement, provided that (except as set forth in Section 4.A below) the Participant remains employed with the Company and does not experience a Termination of Service. The vesting period and/or exercisability of an Option may be adjusted by the Board to reflect the decreased level of employment during any period in which the Participant is on an approved leave of absence or is employed on a less than full time basis. The Option shall become fully vested upon a Change in Control under the terms in Section 14 of the Plan.

To exercise the Option (or any part thereof), the Participant shall deliver to the Company a “Notice of Exercise” in a form specified by the Board, specifying the number of whole shares of Common Stock the Participant wishes to purchase and how the Participant’s


shares of Common Stock should be registered (in the Participant’s name only or in the Participant’s and the Participant’s spouse’s names as community property or as joint tenants with right of survivorship).

The exercise price (the “Exercise Price”) of the Option is set forth in the Award Agreement. The Company shall not be obligated to issue any shares of Common Stock until the Participant shall have paid the total Exercise Price for that number of shares of Common Stock. The Exercise Price may be paid in Common Stock, cash or a combination thereof, including an irrevocable commitment by a broker to pay over such amount from a sale of the Common Stock issuable under the Option, the delivery of previously owned Common Stock, withholding of shares of Common Stock deliverable upon exercise of the Option, or in another manner, all as may be permitted by the Board.

Fractional shares may not be exercised. Shares of Common Stock will be issued as soon as practical after exercise. Notwithstanding the above, the Company shall not be obligated to deliver any shares of Common Stock during any period when the Company determines that the exercisability of the Option or the delivery of shares of Common Stock hereunder would violate any federal, state or other applicable laws.

 

4. EXPIRATION OF OPTION

The Option shall expire and cease to be exercisable as of the earlier of (a) the Expiration Date set forth in the Award Agreement or (b) the date specified below in connection with the Participant’s Termination of Service:

 

  A. If the Participant’s Termination of Service is by reason of death or Disability, the Participant (or the Participant’s estate, beneficiary or legal representative) may exercise the Option, to the extent then vested, until the date that is twelve months following the date of such Termination of Service. The unvested portion of the Option shall be forfeited and cancelled as of the date of such event.

 

  B. If the Participant’s Termination of Service is for any reason other than death, Disability or Cause, the Participant may exercise any portion of the Option that is vested and exercisable at the time of such Termination of Service until the date that is ninety (90) days following the date of such Termination of Service. Any portion of the Option that is not vested and exercisable at the time of such Termination of Service (after taking into account any accelerated vesting under Section 14 of the Plan or any other agreement between the Participant and the Company, if applicable) shall be forfeited and canceled as of the date of such Termination of Service.

 

  C. If the Participant’s Termination of Service is by the Company for Cause, the entire Option, whether or not then vested and exercisable, shall be immediately forfeited and canceled as of the date of such Termination of Service.

 

5. RESTRICTIONS ON RESALES OF SHARES ACQUIRED PURSUANT TO OPTION EXERCISE

 

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Shares issued upon the exercise of the Option shall be subject to the terms of a Shareholder Agreement restricting transfer of the shares, which Shareholder Agreement shall be substantially similar to the form set forth as Exhibit A hereto. Any shares issued upon the exercise of this Option shall bear a legend endorsed on the shares of Common Stock reflecting the existence of the Shareholder Agreement. The form of such legend shall be as reasonably prescribed by the Company or its counsel, and shall be in addition to any legends required for compliance with applicable securities and Blue Sky laws. The Company may also impose such restrictions, conditions or limitations as it determines appropriate as to the timing and manner of any resales by the Participant or other subsequent transfers by the Participant of any shares of Common Stock issued as a result of the exercise of the Option, including without limitation (a) restrictions under an insider trading policy, (b) restrictions designed to delay and/or coordinate the timing and manner of sales by Participant and other optionholders and (c) restrictions as to the use of a specified brokerage firm for such resales or other transfers.

 

6. INCOME TAXES

The Company shall not deliver shares of Common Stock in respect of the exercise of any Option unless and until the Participant has made arrangements satisfactory to the Board to satisfy applicable withholding tax obligations. Unless the Participant pays the withholding tax obligations to the Company by cash or check in connection with the exercise of the Option, withholding may be effected, at the Company’s option, by withholding Common Stock issuable in connection with the exercise of the Option (provided that shares of Common Stock may be withheld only to the extent that such withholding will not result in adverse accounting treatment for the Company). The Participant acknowledges that the Company shall have the right to deduct any taxes required to be withheld by law in connection with the exercise of the Option from any amounts payable by it to the Participant (including, without limitation, future cash wages).

 

7. NON-TRANSFERAB1LITY OF OPTION

Except as permitted by the Board or as permitted under the Plan, the Participant may not assign or transfer the Option to anyone other than by will or the laws of descent and distribution and the Option shall be exercisable only by the Participant during his or her lifetime. The Company may cancel the Participant’s Option if the Participant attempts to assign or transfer it in a manner inconsistent with this Section 7.

 

8. OTHER AGREEMENTS SUPERSEDED

The Award Agreement, these Standard Terms and Conditions, the incorporated provisions of the Plan, and the Shareholder Agreement, constitute the entire understanding between the Participant and the Company regarding the Option. Any prior agreements, commitments or negotiations concerning the Option are superseded.

 

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9. LIMITATION OF INTEREST IN SHARES SUBJECT TO OPTION

Neither the Participant (individually or as a member of a group) nor any beneficiary or other person claiming under or through the Participant shall have any right, title, interest, or privilege in or to any shares of Common Stock subject to the Award Agreement or these Standard Terms and Conditions except as to such shares of Common Stock, if any, as shall have been issued to such person upon exercise of the Option or any part of it. Nothing in the Plan, in the Award Agreement, these Standard Terms and Conditions or any other instrument shall confer upon the Participant any right to continue in the Company’s employ or service nor limit in any way the Company’s right to terminate the Participant’s employment at any time for any reason.

 

10. GENERAL

In the event that any provision of these Standard Terms and Conditions is declared to be illegal, invalid or otherwise unenforceable by a court of competent jurisdiction, such provision shall be reformed, if possible, to the extent necessary to render it legal, valid and enforceable, or otherwise deleted, and the remainder of these Standard Terms and Conditions shall not be affected except to the extent necessary to reform or delete such illegal, invalid or unenforceable provision.

The headings preceding the text of the sections hereof are inserted solely for convenience of reference, and shall not constitute a part of these Standard Terms and Conditions, nor shall they affect its meaning, construction or effect.

These Standard Terms and Conditions shall inure to the benefit of and be binding upon the parties hereto and their respective permitted heirs, beneficiaries, successors and assigns.

These Standard Terms and Conditions shall be construed in accordance with and governed by the laws of the State of Washington, without regard to principles of conflicts of law.

In the event of any conflict between the Award Agreement, these Standard Terms and Conditions and the Plan, the Award Agreement and these Standard Terms and Conditions shall control. In the event of any conflict between the Award Agreement and these Standard Terms and Conditions, the Award Agreement shall control.

All questions arising under these Standard Terms and Conditions shall be decided by the Board in its total and absolute discretion.

 

11. ELECTRONIC DELIVERY

By executing the Award Agreement, the Participant hereby consents to the delivery of information (including, without limitation, information required to be delivered to the Participant pursuant to applicable securities laws) regarding the Company and the Subsidiaries, the Plan, the Option and the Common Stock via Company web site or other electronic delivery.

 

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EXHIBIT A

SHAREHOLDER AGREEMENT

(Grant of Options)

The SHAREHOLDER AGREEMENT (the “Agreement”) is dated as of              , 2010 and is between the undersigned (“Shareholder”) and HomeStreet, Inc., a Washington corporation (“Company”).

Shareholder desires to receive a grant of stock options which is being made outside the Company’s 2010 Stock Incentive Plan pursuant to a Board Resolution dated July 1, 2010, that may be exercised for up to the total number of shares of common stock of Company indicated on the signature page of this Agreement.

Company desires to retain the advantages of having a relatively small and stable shareholder base, whether or not Company stock is registered under federal securities laws.

As a condition to the issuance of such shares to Shareholder upon vesting and exercise of the options, the parties agree as follows:

1. Definitions . As used in this Agreement:

1.1 “Appraised Value” means the per share value of common stock of Company determined at the end of each fiscal year or as of the end of each calendar quarter by an independent appraiser selected by Company and approved by the Board of Directors.

1.2 “Repurchase Procedures” means, as of any date, the procedures then in effect, as approved by the Board of Directors of Company, relating to the repurchase by Company of shares of its common stock.

1.3 “Shares” means the shares of common stock of Company issued to Shareholder upon exercise of the options, which may occur over a period of years, up to the total number of shares identified on the signature page of this Agreement, including any shares or other securities convertible or exchangeable into such shares or issuable in respect of such shares as a result of any stock dividend, recapitalization, merger, consolidation, split or other event affecting the capital stock.

1.4 “transfer” means to sell, assign, give, pledge, encumber, mortgage, hypothecate or otherwise transfer or agree to do so, by voluntary or involuntary act, will, intestacy or operation of law.

2. Restriction on Transfer .

2.1 Restriction . Unless otherwise agreed by Company in writing, no Shares may be transferred by Shareholder to a person or entity other than Company and no purported transfer shall be effective or recognized by Company unless first:

(a) The terms of this Agreement have been complied with; and

(b) The transferee of any Shares enters into an agreement with Company containing the same terms as, and substantially in the form of, this Agreement.

2.2 Purported Ownership by Another . In addition to the other rights granted to Company in this Agreement, if any person purports to acquire any direct, indirect, legal or beneficial ownership of, or interest in, any Shares without complying with the terms of this Agreement, Company shall have the right to purchase such Shares on the terms set forth in Sections 3.5 and 3.6. This right to purchase may be exercised at any time for a period up to three years after Company receives actual notice of such claim of ownership or interest.

 

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2.3 Legend . A legend referring to this Agreement shall be endorsed upon each certificate evidencing Shares.

3. Transfers; Company Option to Purchase .

3.1 Option to Purchase . In the case of (a) any voluntary transfer or attempted voluntary transfer of Shares by Shareholder to a third party, (b) any transfer by reason of the death of Shareholder and (c) any other involuntary transfer of Shares, including pursuant to any bankruptcy or creditor’s proceeding or pursuant to a decree of divorce, dissolution or separate maintenance, Company shall have the option to purchase all Shareholder’s Shares to be transferred or, in the case of Shareholder’s death, all Shares owned by Shareholder immediately prior to Shareholder’s death.

3.2 Notice of Certain Transfers . Shareholder shall give Company written notice of any transfer or any proposed or pending transfer of any Shares described in Section 3.1(a) or (c). Shareholder’s personal representative shall give Company notice of Shareholder’s death promptly following the personal representative’s qualification to act in that capacity. However, the failure of Shareholder or Shareholder’s personal representative to give notice pursuant to this Section 3.2 shall not impair the rights of Company under this Agreement, including its rights pursuant to Section 2.2.

3.3 Exercise by Company of Purchase Option . Within 14 days after receipt of notice pursuant to Section 3.2, Company may elect by written notice to Shareholder or Shareholder’s personal representative to purchase all Shares subject to transfer or, in the case of Shareholder’s death, all Shares owned by Shareholder immediately prior to Shareholder’s death. If Company elects not to purchase such Shares or fails to give Shareholder or Shareholder’s personal representative notice of its intention within the time period provided in this Section 3.3, the Shares may be transferred, subject to the provisions of Section 2.1(b), at any time within 90 days following receipt by Company of notice pursuant to Section 3.2 or within such longer period of time to which Company may agree. If Shareholder or Shareholder’s personal representative does not transfer the Shares within such 90-day (or longer) period, the provisions of Section 3.1 shall again become applicable to the Shares and thereafter no Shares may be transferred without again giving notice to Company as provided in Section 3.2, and the Company may again exercise its option to purchase the Shares under the terms of this Section 3.3.

3.4 Purchase and Sale of Shares . If Company elects to purchase any Shares pursuant to Section 3.3 or Section 4.2, Shareholder shall sell and Company shall purchase such Shares on the terms set forth in Sections 3.5 and 3.6 and, unless otherwise agreed by Company, on the terms set forth in the Repurchase Procedures. Unless otherwise agreed by Company in its sole discretion, the closing of the purchase and sale of Shares (the “Closing”) shall take place on the final day (the “Closing Date”) of the next occurring “window period” under the Repurchase Procedures immediately following receipt by Shareholder (in accordance with Section 7.1 below) of Company’s written notice to Shareholder pursuant to either Section 3.3 or Section 4.2 (the “Purchase Window Period”).

3.5 Purchase Price . The purchase price of Shares to be purchased by Company pursuant to Section 3.4 or Section 4.2 shall be equal to the Appraised Value applicable to the Purchase Window Period under the Repurchase Procedures, multiplied by the number of Shares to be purchased pursuant to Section 3.4 or Section 4.2.

3.6 Payment of Purchase Price . Payment for Shares to be purchased pursuant to Section 3.5 or Section 4.2 shall be tendered to Shareholder by Company on the Closing Date against receipt by Company of the certificate or certificates evidencing the Shares, duly endorsed for transfer to Company. If Shareholder fails to deliver such certificate(s) to Company prior to the Closing Date, Company shall

 

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Shareholder Agreement—Options


nonetheless complete the Closing on the Closing Date and cancel such certificate(s) on the Company’s books. Company shall thereafter hold the proceeds of the purchase of the Shares and deliver such proceeds to Shareholder upon receipt of such certificate(s) duly endorsed for transfer to the Company. No interest shall accrue on the proceeds unless Company elects to make installment payments as set forth in Section 3.7 below. Shareholder’s rights as a shareholder with respect to the repurchased Shares shall terminate immediately upon the Closing.

3.7 Installment Payments . Company may elect to pay the purchase price for the Shares either (a) in full at Closing or (b) by delivery at Closing of a down payment of at least 10% of the purchase price and Company’s promissory note in the principal amount equal to the balance of the purchase price. Any promissory note delivered in partial payment of the purchase price (i) shall be payable in four equal annual installments of principal commencing on the first anniversary of the Closing or such earlier date as Company determines, (ii) shall bear interest at a rate per annum equal to the “prime rate” as reported in the Money Rates section of the Wall Street Journal, and (iii) shall be subject to prepayment, without penalty, in whole or in part, at any time. All payments shall be made by check.

3.8 Termination of Repurchase Right . The Company’s right to repurchase shares of an option holder pursuant to Section 3 or Section 4 of this Agreement shall terminate immediately upon the closing of an initial public offering of the Company’s common stock (including the common stock of any successor entity to the Company following a reorganization or recapitalization of the Company); provided, however , that as to any option holder, such termination shall be contingent upon the delivery by such option holder of a lockup agreement in customary form (such custom being assessed in light of general practice as of the time of such initial public offering), pursuant to which such option holder agrees to refrain from selling any shares of common stock then held by such person (whether nor not acquired upon the exercise of options) for a period of 180 days following the consummation of (i) such initial public offering, or (ii) any subsequent registered public offering of the Company’s common stock, in each case other than with the consent of the managing underwriter of such offering.

4. Termination of Employment or Service to Company as Director; Company Option to Purchase .

4.1 Termination of Service . In the event of the termination of Shareholder’s employment with Company or HomeStreet Bank for any reason, whether voluntary or involuntary, or the termination of Shareholder’s service as a member of the Board of Directors of Company or HomeStreet Bank for any reason, whether voluntary or involuntary, Company shall have the option to purchase all of Shareholder’s Shares. In the event a Shareholder serves as both an employee and as a Director of the Company or HomeStreet Bank, this option may be exercised upon the later to occur of Shareholder’s termination of employment or termination of service as a Director of either Company or HomeStreet Bank. For purposes of this Agreement, Shareholder’s employment or service as a Director shall be deemed to have terminated if Shareholder qualifies (or would qualify if Shareholder is not an employee of HomeStreet Bank) for benefits under HomeStreet Bank’s then current long-term disability plan. In the event Shareholder’s Shares are proposed to be transferred to a guardian or conservator or other person as a result of Shareholder’s disability or in the event of the death of Shareholder while employed by Company, the provisions of Section 3 shall apply.

4.2 E xercise by Company of Purchase Option . Within 30 days after the effective date of Shareholder’s termination of employment or service, Company may elect by written notice to Shareholder to purchase all of Shareholder’s Shares. If Company elects not to purchase such Shares or fails to give Shareholder notice of its intention within the time period provided in this Section 4.2, Shareholder may retain the Shares, subject to the provisions of this Agreement, which shall survive the termination of Shareholder’s employment.

 

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4.3. Purchase and Sale of Shares . If Company elects to purchase any Shares upon termination of Shareholder’s employment or service as provided in Section 4.2, Shareholder shall sell and Company shall purchase such Shares on the terms set forth in Sections 3.4, 3.5, 3.6 and 3.7.

4.4. Independent Agreement . The rights and obligations of Company and Shareholder under this Agreement are independent and unrelated to any payments, benefits, rights or obligations of Shareholder or Company in any other agreement or arrangement between Company and Shareholder. The existence of any claim or cause of action by Shareholder against Company or HomeStreet Bank shall not constitute a defense to the enforcement of this Agreement or excuse performance of the obligations of Shareholder hereunder. Nothing in this Agreement shall be construed as a contract of employment or as giving Shareholder any right to be retained in the employ of Company or HomeStreet Bank in any capacity.

5. Future Rights . The exercise or non-exercise by Company of its rights under this Agreement with respect to one or more transfers of Shares by Shareholder shall not adversely affect Company’s rights with respect to any remaining Shares held by Shareholder.

6. Compensation Pursuant to Options Granted to Directors . Article 4 shall not apply to Shares issued to members of the Board of Directors of the Company or of HomeStreet Bank pursuant to options granted for their service as Directors, in the event termination of such member’s service as a Director occurs as a result of retirement following 10 or more consecutive years of service on the Board of Directors of either or both companies.

7. Miscellaneous .

7.1. Notices . Notices under this Agreement shall be in writing, may be given by mail, hand delivery or air courier and (a) when to Company, addressed to the Corporate Secretary at HomeStreet, Inc. 2000 Two Union Square, 601 Union Street, Seattle, Washington 98101-2326 and (b) when to the Shareholder, to Shareholder’s last known address as indicated in the records of the Company. Notice shall be deemed received (i) when to Company, upon actual receipt and (ii) when to Shareholder, when deposited in the mail or when delivered to a delivery or courier service.

7.2 Remedies; Attorneys’ Fees . Shareholder and Company agree that it is impossible to measure in money the damages to Company by reason of a breach by Shareholder of this Agreement and, therefore, agree that the terms of this Agreement may be specifically enforced against Shareholder by injunctive relief or otherwise. Company may refuse to recognize any purported transferee as a shareholder of Company and may continue to treat the transferor as a shareholder for all purposes until Company has reasonably determined that the transfer of Shares to that transferee has been made in compliance with this Agreement. The remedies provided in this Section 7.2 are cumulative and not exclusive of any other legal or equitable remedies. If any legal action or other legal proceeding relating to the enforcement of this Agreement is brought against any party hereto, the prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements (in addition to any other relief to which the prevailing party may be entitled).

7.3. Amendment; Entire Agreement; Successors and Assigns . This Agreement may not be amended and no provision hereof may be waived except in writing signed by Shareholder and Company. This Agreement constitutes the entire agreement between Shareholder and Company with respect to the subject matter hereof and supersedes any and all other agreements between Shareholder and Company relating to the subject matter hereof. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, administrators, executors, successors and assigns.

7.4. Construction and Interpretation . If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provisions shall be excluded from this Agreement and the balance of this Agreement shall be interpreted as if such provisions were excluded and shall be enforceable in

 

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Shareholder Agreement—Options


accordance with its remaining terms. This Agreement may be executed in more than one counterpart, each of which shall constitute an original of this Agreement but all of which, when taken together, shall constitute one and the same agreement. This Agreement shall be interpreted and governed in accordance with the internal laws of the state of Washington.

7.5. Spouse . The spouse of Shareholder executes this Agreement in order to signify his/her agreement to subject any interest he/she may have in the shares of Company to the terms and conditions of this Agreement.

 

COMPANY:

   HOMESTREET, INC.
     
   By:   

 

   Title:   

Chairman / CEO

     

SHAREHOLDER:

  

 

   Print Name:   

 

   Total Number of Shares of Common Stock available
   under Options:             

SHAREHOLDER’S SPOUSE:

 

 

 

HomeStreet, Inc.

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Shareholder Agreement—Options

Exhibit 10.8

EXECUTIVE EMPLOYMENT AGREEMENT

between

HOMESTREET, INC. and HOMESTREET BANK

and

Mark Mason


E XECUTIVE E MPLOYMENT A GREEMENT

This executive employment agreement (“ Agreement ”), effective May 3, 2011 (the “Effective Date”), is between HomeStreet, Inc., HomeStreet Bank (“Bank”) and any of their affiliate or subsidiary organizations and their successors and assigns (collectively, the “ Company ”) and Mark Mason (“ Executive ”) (collectively, the “ Parties ”). In consideration of the foregoing promises and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Company and Executive hereby agree to enter into an employment relationship in accordance with the terms and conditions set forth below.

 

I. EMPLOYMENT

 

  A. Position and Duties

The Company will employ Executive, and Executive will accept employment as the Chairman of the Board of Directors and Chief Executive Officer of HomeStreet Bank and as the Chief Executive Officer of HomeStreet, Inc. He will also report to and be a member of the Board of Directors of HomeStreet Bank and the Board of Directors of HomeStreet, Inc. (“ Board of Directors ” or “ Board ”). Executive will perform the duties in the positions, and for the entities described above and will devote his full time and attention to achieving the purposes and discharging the responsibilities afforded the positions, and such other duties as may be assigned from time to time by the Company, which relate to the business of the Company and are reasonably consistent with Executive’s position. During Executive’s employment, Executive will not engage in any business activity that, in the reasonable judgment of the Board of Directors, conflicts with the duties of Executive under this Agreement, whether or not such activity is pursued for gain, profit or other advantage. Executive will comply with Company policies and procedures and all applicable laws and regulations. Executive shall be employed at the Company headquarters in Seattle, Washington.

 

  B. Term of Agreement

This Agreement shall commence on the Effective Date and continue until the earlier of (1) the Federal Deposit Insurance Corporation’s removal of the Cease and Desist Order on the Company as a result of completion of an initial public offering of stock, an increase in capital or other circumstances, or (2) until terminated as set forth in Section III, which ever occurs first. If this Agreement is terminated under the circumstances identified as (1) in this section, the parties anticipate that this Agreement will be immediately replaced with a different employment agreement. Notwithstanding any termination of Executive’s employment, the Executive shall remain subject to the restrictions in Section IV of this Agreement.

 

II. COMPENSATION AND BENEFITS

The Company agrees to pay to Executive and Executive agrees to accept in exchange for the services rendered hereunder the following compensation and benefits:

 

  A. Annual Salary

Executive’s compensation shall consist of an annual base salary (the “ Salary ”) of no less

 

1


than $600,000, payable in accordance with the payroll practices of the Company. The Salary shall be reviewed, and may be subject to increase, by the Board of Directors of the Company (or the Compensation Committee thereof) at least annually while Executive is employed hereunder. Executive’s salary may decrease only with his agreement.

 

  B. Annual Incentive Payment

The Company shall establish a performance-based, target incentive bonus under the terms of the Company’s incentive bonus compensation plan pursuant to which Executive may receive, based on completion of objectives no less than 50% of Executive’s salary (or such higher amount as the Board or its Compensation Committee may approve) (“ Target Incentive Payment ”), less required withholding and authorized deductions. The Board or its Compensation Committee and Executive shall establish the mutually acceptable performance objectives and related payout ratios no later than May 31 of each fiscal year. The Board or the Board’s Compensation Committee shall reasonably determine the extent to which the Target Incentive Payment has been earned and shall ensure that the Target Incentive Payment complies with Sound Incentive Compensation Planning Guidelines and other restrictions applicable to financial institutions.

 

  C. Equity Compensation

Executive has been awarded stock options and restricted stock consistent with Company benefits plans so that Executive holds equity rights to approximately 3.7% of the outstanding shares of HomeStreet, Inc. stock (125,000 shares). Executive’s rights with respect to such stock options and restricted stock shall continue, subject to the terms of any applicable grant or plan. Executive may be awarded additional stock options or restricted stock or other equity compensation at the discretion of the Compensation Committee of the Board and consistent with any equity plans or agreements.

 

  D. Benefits

Executive shall be eligible to participate, subject to and in accordance with applicable eligibility requirements, in such benefit programs as are provided to the Company’s executives, which may include, at a minimum, vacation, sick leave, basic health, life and disability insurance.

 

  E. Business Expenses

Executive shall be reimbursed for all reasonable out-of-pocket expenses actually incurred by Executive in the conduct of the business of the Company, provided that Executive submits substantiation of all such expenses to the Company on a timely basis in accordance with standard policies of the Company, effective as such on the date such expenses are incurred.

 

  F. Allocation of Payments

HomeStreet, Inc. and HomeStreet Bank shall allocate between them the obligation to make required payments hereunder.

 

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III. TERMINATION

 

  A. Employment Termination

This Agreement and Executive’s employment may be terminated by the Company for Cause (as defined below), or without Cause or by Executive for Good Reason (as defined below) or without Good Reason or upon the Executive’s death or Total Disability. Except where a specific notice procedure is described herein, the Company or Executive shall provide the other party at least sixty (60) days notice of any termination (or 60 days pay in lieu of notice). Upon any termination of employment, Executive shall be entitled to receive payments or benefits as described in this Agreement.

 

  B. Automatic Termination on Death or Total Disability

This Agreement and Executive’s employment hereunder shall terminate automatically upon the death or Total Disability of Executive. “ Total Disability ” shall have the same meaning as defined in the Company’s long-term disability plan or policy. Termination hereunder shall be deemed to be effective (a) upon Executive’s death or (b) immediately upon the sooner to occur of a determination by the Company’s long-term disability insurance carrier or Executive’s primary care physician that Executive is disabled and eligible for long-term disability benefits. Executive shall receive the following benefits on termination of employment for Death or Total Disability:

(1) Executive’s earned but unpaid Salary through the effective date of the termination;

(2) Any earned but unpaid incentive compensation under the terms of any applicable incentive compensation plan, including unpaid incentive compensation earned for the previous year but not yet paid and any pro rata incentive compensation earned for the year in which termination occurs;

(3) Accrued but unused vacation pay consistent with the Company vacation policy;

(4) Reimbursable business expenses for activities prior to the effective date of termination;

(5) Executive’s vested stock options or equity grants shall remain exercisable for one year after Death or Total Disability consistent with the terms of the applicable plan;

(6) Any severance pay for which Executive may be eligible under the terms of the nondiscriminatory severance plan. Any payout of severance pay hereunder may be subject to regulatory approval (which the Company shall use its best efforts to obtain) or non-objection.

(7) In the event of Total Disability, in order to receive the benefits described herein that Executive is not otherwise entitled to receive, no later than sixty (60) days after termination of employment, the Company and Executive must execute a release agreement (“Release”) in the form of Exhibit ‘A’ attached hereto in order to receive the severance benefits. The Release will

 

3


be effective upon completion of the payments due to Executive. Executive must also remain in substantial and continued compliance with the terms of Section IV of this Agreement.

(8) In the event of death, all payments shall be made to the person or persons identified as the Executive’s beneficiary for any Company-sponsored life insurance.

 

  C. Termination Without Cause or Executive Resigns for Good Reason Immediately Before or Following a Change of Control

If Executive’s employment terminates by the Company without Cause or by Executive for Good Reason within one year following or during the ninety (90) days immediately preceding a Change of Control (as defined below), then Executive shall be entitled to receive the following termination payments provided the Company obtains approval from applicable regulatory authorities for such payments (which approval the Company shall use its best efforts to obtain):

(1) As severance pay, one times Executive’s annual Salary at the rate in effect immediately prior to termination, paid in a lump sum within ten (10) days following the day Executive signs the Release agreement identified above, provided, however, the payment may be delayed as required to avoid additional tax for a “specified employee” under Section 409A as described in Section VI.G;

(2) Executive’s earned but unpaid Salary through the effective date of termination, paid on the next regularly scheduled payroll date following the effective date of termination;

(3) Any earned but unpaid incentive compensation under the terms of any applicable incentive compensation plan, including unpaid incentive compensation earned in the previous year but not yet paid and pro rata incentive compensation earned for the year in which termination occurs;

(4) The value of Executive’s accrued but unused vacation, consistent with the Company’s vacation policy applicable to all employees;

(5) Reimbursement of all reasonable business expenses incurred for activities prior to the effective date of termination;

(6) All vested stock options and other equity grants shall remain exercisable consistent with any such grant or applicable plan;

(7) In order to receive the benefits described herein that Executive is not otherwise entitled to receive, no later than sixty (60) days after termination of employment, the Company and Executive must execute a Release agreement in the form of Exhibit ‘A’ attached hereto in order to receive the severance benefits. The Release will be effective upon completion of the payments due to Executive. Executive must also remain in substantial and continued compliance with the terms of Section IV of this Agreement.

(8) Any post-employment payment of benefits may be dependent upon approval or non-objection by one or more regulatory authorities. The Company will use its best efforts to

 

4


obtain such approval or non-objection in a timely manner, but no payment shall be made without the required approval.

 

  D. Termination with Cause or Resignation Without Good Reason

If the Company terminates Executive’s employment with Cause or Executive resigns without Good Reason, the Company shall provide Executive compensation and benefits as follows:

(1) Payment of Executive’s earned but unpaid Salary through the effective date of termination.

(2) Payment of the value of Executive’s earned but unused vacation consistent with Company policy that applies to all employees.

(3) Reimbursement of all reasonable business expenses incurred for activities prior to the Effective Date of termination.

(4) Any vested equity grants shall remain exercisable to the extent provided under the terms of any grant or plan.

 

  E. Termination Without Cause or Executive Resigns for Good Reason

If the Company terminates Executive’s employment without Cause or Executive terminates his employment for Good Reason unrelated to a Change of Control, then Executive shall be entitled to receive the following termination payments provided the Company obtains approval from the applicable regulatory authorities for such payments (which approval the Company shall seek):

(1) Any severance pay for which Executive may be eligible under the terms of a nondiscriminatory severance plan approved by federal or state regulations. Any payout of severance pay hereunder may be subject to regulatory approval (which the Company shall seek) or non-objection;

(2) Executive’s earned but unpaid Salary through the effective date of termination, paid on the next regularly scheduled payroll date following the date on which Executive’s employment terminated;

(3) Any earned but unpaid incentive compensation under the terms of any applicable incentive compensation plan, including unpaid incentive compensation earned in the previous year but not yet paid and pro rata incentive compensation earned for the year to which termination occurs;

(4) The value of Executive’s accrued but unused vacation, consistent with the Company’s vacation policy applicable to all employees;

(5) Reimbursement of all reasonable business expenses incurred for activities prior to the effective date of termination;

 

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(6) All vested stock options and other equity grants shall remain exercisable consistent with any such grant or applicable plan;

(7) In order to receive the benefits described herein that Executive is not otherwise entitled to receive, no later than sixty (60) days after termination of employment, the Company and Executive must execute a Release agreement in the form of Exhibit ‘A’ attached hereto in order to receive the severance benefits. The Release will be effective upon completion of the payments due to Executive. Executive must also remain in substantial and continued compliance with the terms of Section IV of this Agreement.

(8) Any post-employment payment of benefits may be subject to approval or non objection by one or more regulatory authorities. The Company will use its best efforts to obtain such approval or non-objection in a timely manner, but no payment shall be made without the required approval.

 

  F. Definitions of “Cause”, “Good Reason” and “Change of Control”

 

  1. Cause

Wherever reference is made in this Agreement to termination being with or without Cause, “ Cause ” shall mean the occurrence of one or more of the following events:

(a) the willful and continued failure of the Executive to perform his duties;

(b) the willful engaging by the Executive in illegal conduct or gross misconduct which is materially injurious to the Company;

(c) the Executive’s conviction or plea of guilty or nolo contendere to the charge of commission of a felony; or

(d) the Executive’s breach of a regulatory rule that materially and adversely affects the Executive’s ability to perform the Executive’s principal employment duties for the Company and its affiliates.

(e) Prior to a termination for Cause, Employer shall provide Executive 30-day prior written notice of the claimed basis for the possible “Cause” termination and an opportunity for Executive to cure any defect or deficiency on his performance. Upon request, Executive shall be entitled to a hearing before the Board of Directors with representation by counsel. “Cause” shall be established by affirmative vote of at least two-thirds of the entire Board of each employer in order to determine “Cause.”

 

  2. Good Reason

For the purposes of this Agreement, “ Good Reason ” shall mean that Executive, without his consent, has experienced one of the following events or circumstances:

(a) the assignment to the Executive of any duties materially diminished from those in effect immediately prior to such assignment;

 

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(b) a change in the Executive’s authority, duties or responsibilities which represents a material adverse change from those in effect immediately prior to such change;

(c) a material decrease in the Executive’s annual Salary without his prior agreement;

(d) solely following a Change of Control, relocation of the Executive’s principal place of employment to a location that increases the Executive’s commute from his primary residence by more than 30 miles one way; or

(e) any other action or inaction that constitutes a material breach of the terms of the Agreement by the Company.

(f) To comply with Section 409 A of the Code, the Executive must give written notice of termination of employment within 60 days after the occurrence of the circumstances constituting Good Reason, and the Company will have 30 days to cure the circumstances constituting Good Reason, and the Executive’s “separation from service” must occur no later than six months following the initial existence of the circumstances giving rise to Good Reason.

Notwithstanding the foregoing, termination of employment by Executive will not be for Good Reason unless (i) Executive notifies the Company in writing of the existence of the condition which Executive believes constitutes Good Reason within sixty (60) days of the initial existence of such condition (which notice specifically identifies such condition), and (ii) the Company fails to remedy such condition within thirty (30) days after the date on which it receives such notice (the “Remedial Period”) whereupon Executive’s employment shall be deemed to be terminated for Good Reason upon failure of the Company to remedy. If Company attempts to cure, or disputes the existence of Good Reason, it shall provide documentary evidence thereof to Executive within the Remedial Period. Executive may elect to remain employed by Company and dispute any response by Company during the Remedial Period, without prejudice to the claim of Good Reason, by invoking the provisions of Article VI.I. If Executive remains employed and invokes the dispute resolution process, he shall in any event complete his resignation within two years of the end of the Remedial Period. If Executive terminates employment before the expiration of the Remedial Period or after the Company remedies the condition (even if within the end of the Remedial Period), then Executive’s termination will not be considered to be for Good Reason.

 

  3. Change of Control

For the purposes of this Agreement, “ Change of Control ” means:

(a) one person or entity acquiring or otherwise becoming the owner of twenty-five percent or more of HomeStreet Inc.’s or HomeStreet Bank’s outstanding shares in any class of shares;

(b) dissolution or sale of fifty percent or more in value of the assets of either HomeStreet, Inc. or HomeStreet Bank; or

 

7


(c) a change “in the ownership or effective control” or “in the ownership of a substantial portion of the assets” of either HomeStreet, Inc. or HomeStreet Bank, within the meaning of Section 280G of the Internal Revenue Code.

Sale of stock through an initial public offering shall not constitute a “Change of Control” under this Agreement.

 

IV. CONFIDENTIALITY; NON-SOLICITATION;

 

  A. Confidentiality Agreement

Executive recognizes that the Company’s business and continued success depend upon the use and protection of confidential information and proprietary information, and therefore Executive is subject to, and this Agreement is conditioned on agreement to, the terms of the nondisclosure agreement (the “ Confidentiality Agreement ”) substantially in the form attached hereto as Exhibit B entered into by Executive and the terms of the Confidentiality Agreement shall survive the termination of Executive’s employment with the Company or Successor Employer for a period of ten (10) years from termination unless otherwise required by law.

 

  B. Non-Solicitation Agreement

(1) During Executive’s employment with the Company and/or a Successor Employer and for six months after the termination of such employment, Executive will not induce, or attempt to induce, any employee, executive, Board member or independent contractor of the Company and/or a Successor Employer to cease such employment or relationship to engage in, be employed by, perform services for, participate in the ownership, management, control or operation of, or otherwise be connected with, either directly or indirectly, any Competing Business (defined below).

(2) During Executive’s employment with the Company and/or a Successor Employer and for six months after the termination of such employment, Executive will not, directly or indirectly solicit, divert, appropriate to or accept on behalf of any Competing Business, any business or account from any customer of the Company or entity about whom Executive has acquired confidential information in the course of his employment.

 

  C. Competing Business

“Competing Business” means any bank or thrift with an office or branch in Washington, Oregon, Idaho or Hawaii.

 

V. ASSIGNMENT

This Agreement is personal to Executive and shall not be assignable by Executive. The Company may assign its rights hereunder to (a) any other corporation resulting from any merger, consolidation or other reorganization to which the Company is a party; (b) any other corporation, partnership, association or other person to which the Company may transfer all or substantially all of the assets and business of the Company existing at such time; or (c) any subsidiary, parent or other affiliate of the Company (“ Successor Employer ”). All of the terms and provisions of

 

8


this Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns.

 

VI. MISCELLANEOUS

 

  A. Amendments

No amendment, modification, waiver, termination or discharge of any provision of this Agreement, or consent to any departure therefrom by either party hereto, shall in any event be effective unless the same shall be in writing, specifically identifying this Agreement and the provision intended to be amended, modified, waived, terminated or discharged and signed by the Company and Executive, and each such amendment, modification, waiver, termination or discharge shall be effective only in the specific instance and for the specific purpose for which given. No provision of this Agreement shall be varied, contradicted or explained by any oral agreement, course of dealing or performance or any other matter not set forth in an agreement in writing and signed by the Company and Executive.

 

  B. Applicable Law

This Agreement shall in all respects, including all matters of construction, validity and performance, be governed by, and construed and enforced in accordance with, the laws of the State of Washington, without regard to any rules governing conflicts of laws.

 

  C. Entire Agreement

This Agreement, on and as of the date hereof, constitutes the entire agreement between the Company and Executive with respect to the subject matter hereof. To the extent any agreement, plan or policy of the Company is inconsistent with this Agreement, the provisions of this Agreement shall prevail and control and such other agreement, plan or policy will be construed by Company to be consistent with this Agreement and, if that is not possible, the other agreement, plan or policy shall be modified as to Executive to be in conformance with this Agreement. It is the intent of the parties that Executive shall, to the extent allowed by law, enjoy the full benefit of all obligations of company set forth herein.

 

  D. Severability

If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any regulatory action, applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability, regardless of the reason therefor shall not affect any other provision of this Agreement or any action in any other jurisdiction, or the obligation of any other entity to this Agreement. If either entity that is a party to this Agreement is determined by any regulatory authority or court not to be able to perform its obligation(s) to Executive or not to have the authority to enter into this Agreement, then the other entity shall be liable therefor.

The obligations to Executive herein are the joint and several obligations of HomeStreet Inc. and HomeStreet Bank and there shall be joint and several liability of those entities in the event of any default to Executive by either for any reason.

 

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  E. Legal Limitations

Notwithstanding any provision to the contrary in this Agreement, no payment of any type or amount of compensation or benefits shall be made or owed by Company to Executive pursuant to this Agreement or otherwise if payment of such type or amount is prohibited by, is not permitted under, or has not received any required approval under, any applicable governmental statute, regulation, rule, order (including any cease and desist order), determination, opinion, or similar provision whether now in existence or hereafter adopted or imposed, including without limitation, by or under (i) any provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) and regulations promulgated thereunder, (ii) any governmental provisions relating to indemnification by Company or an affiliate, including without limitation any applicable prohibitions or restrictions on depository institutions and their affiliates set forth in 12 USC 1828(k) or in 12 CFR Part 359, or (iii) any governmental provisions relating to payment of golden parachutes or similar payments, including without limitation any prohibitions or restrictions on such payments by troubled institutions and companies and their affiliates set forth in 12 USC 1828(k) or in 12 CFR Part 359. If any payment to Executive is prohibited or otherwise restricted, (x)  such payment shall, to the extent allowed by law, order or regulatory determination and not objected to by applicable banking or other regulatory agencies, be reinstated as an obligation of the obligor(s) without further action immediately upon the cessation of such prohibition or restriction, and (y) the Company shall use its best efforts to secure the consent, if any shall be required, of the FDIC or other applicable banking or other regulatory agencies to make such payments in the highest amount permissible, up to the amount provided for in this Agreement.

If any payment made to Executive hereunder or under any prior employment agreement or arrangement is required under any applicable governmental provision (including, without limitation, Dodd-Frank and regulations promulgated thereunder) to be paid back to Company, the Executive shall upon written demand from Company promptly pay such amount back to Company.

 

  F. Code Section 280G

Notwithstanding anything in this Agreement to the contrary, if Executive becomes entitled to receive or receives any payment or benefit under this Agreement or under any other plan, agreement or arrangement with the Company, any person whose actions result in a Change of Control or any person affiliated with the Company or such person (all such payments and benefits being referred to herein as the “Total Payments”) and it is determined that any of the Total Payments will be subject to any excise tax pursuant to Code Section 4999, or any similar or successor provision (the “Excise Tax”), the Company shall pay to Executive an additional amount so that Executive’s net payment shall not be diminished in any respect by the additional Excise Tax.

 

  G. Code Section 409A

With respect to any payments or benefits hereunder that are subject to Code Section 409A and any official guidance and regulations issued thereunder (together “ Code Section 409A ”) and that are payable on account of Executive’s termination of employment, such

 

10


payments shall only be made if such termination of employment constitutes a “separation from service” within the meaning of Code Section 409A. The Company may adjust any payment hereunder to avoid liability or obligation under Code Section 409A but such adjustments shall ensure that the payments are made in a manner that is as close to the terms of this Agreement as possible. Notwithstanding anything to the contrary contained in this Agreement, all reimbursements for costs and expenses under this Agreement will be paid in no event later than the end of the calendar year following the calendar year in which Executive incurs such expense. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (ii) the amount of expenses eligible for reimbursements or in-kind benefits provided during any taxable year shall not affect the expenses eligible for reimbursement or in-kind benefits to be provided in any other taxable year.

The Company makes no representations or warranties to Executive with respect to any tax, economic or legal consequences of this Agreement or any payments or other benefits provided hereunder, including without limitation under Code Section 409A, and no provision of the Agreement shall be interpreted or construed to transfer any liability for failure to comply with Code Section 409A from Executive or any other individual to the Company or any of its affiliates. Executive, by executing this Agreement, shall be deemed to have waived any claim against the Company and its affiliates with respect to any such tax, economic or legal consequences of this Agreement or any payments or other benefits provided hereunder. However, the parties intend that this Agreement and the payments and other benefits provided hereunder be exempt from the requirements of Code Section 409A to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-l(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-l(b)(9)(iii), or otherwise. To the extent Code Section 409A is applicable to this Agreement (and such payments and benefits), the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Code Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. In addition, if Executive is a “specified employee,” within the meaning of Code Section 409A, then to the extent necessary to avoid subjecting Executive to the imposition of any additional tax under Code Section 409A, amounts that would otherwise be payable under this Agreement during the six (6) month period immediately following Executive’s “separation from service” for reasons other than Executive’s death (except those payments that may be exempt from 409A by virtue of the short-term deferral exception to 409A) shall not be paid to Executive during such period, but shall instead be accumulated and paid to Executive in a lump sum on the first business day after the date that is six (6) months following Executive’s separation from service.

 

  H. No Mitigation/Offset

In order to receive severance benefits provided in this Agreement, Executive shall not be required to engage in mitigation activities or seek alternative employment, nor would any other compensation received by Executive serve as an offset agreement the severance benefits provided in this Agreement.

 

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  I. Attorneys Fees

The Company shall reimburse Executive for up to $15,000 in legal fees incurred for the negotiation of this agreement.

 

  J. Disputes

(1) In the event of a dispute or claim between Executive and the Company related to Employee’s employment or termination of employment, all such disputes or claims will be resolved exclusively by confidential arbitration in accordance with the Employment Arbitration Rules of the American Arbitration Association (the “AAA”). This means that the parties agree to waive their rights to have such disputes or claims decided in court by a jury. Instead, such disputes or claims will be resolved by an impartial AAA arbitrator (or other mutually agreeable person) whose decision will be final.

(2) The only disputes or claims that are not subject to arbitration are any claims by Executive for workers’ compensation or unemployment benefits, and any claim by Executive for benefits under an employee benefit plan that provides its own arbitration procedure. Also, Executive and Employer may seek injunctive relief in court in appropriate circumstances.

(3) The arbitration procedure will afford Executive and Employer the full range of statutory remedies, based on the statutes of limitations that would apply to the specific claims asserted as if they were asserted in court. Employer will pay all costs that are unique to arbitration, except that the party who initiates arbitration will pay the filing fee charged by AAA. Executive and Employer shall be entitled to discovery sufficient to adequately arbitrate their claims, including access to essential documents and witnesses, as determined by the arbitrator and subject to limited judicial review. In order for any judicial review of the arbitrator’s decision to be successfully accomplished, the arbitrator will issue a written decision that will decide all issues submitted and will reveal the essential findings and conclusions on which the award is based.

IN WITNESS WHEREOF, the parties have executed and entered into this Agreement effective on the date first set forth above.

 

MARK MASON

LOGO

Date   May 26, 2011

 

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HOMESTREET, INC.
By  

/s/ Gerhardt Morrison

Its   HRGC Chair
Date   May 26, 2011
HOMESTREET BANK
By  

/s/ Cynthia P. Sonstelie

Its   HRCG CHAIR
Date   6/1/11

 

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EXHIBIT A

WAIVER AND RELEASE

 

14


WAIVER AND RELEASE

PLEASE READ THIS WAIVER AND RELEASE CAREFULLY. IT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS UP TO AND INCLUDING THE DATE THAT THIS AGREEMENT AND RELEASE IS EXECUTED BY THE COMPANY AND THE EXECUTIVE .

For and in consideration of the payments and other benefits due to [Mark K. Mason] (the “ Executive ”) pursuant to the Employment Agreement (the “ Employment Agreement ”) entered into as              , 2011 (the “ Effective Date ”), by and between HomeStreet, Inc., and HomeStreet Bank, and their respective subsidiaries (together the “ Company ”) and the Executive, and for other good and valuable consideration, including the mutual promises made herein, the Executive and the Company irrevocably and unconditionally release and forever discharge each other and each and all of their present and former officers, agents, directors, managers, employees, representatives, affiliates, shareholders, members, and each of their successors and assigns, and all persons acting by, through, under or in concert with it, and in each case individually and in their official capacities (collectively, the “ Released Parties ”), from any and all charges, complaints, grievances, claims and liabilities of any kind or nature whatsoever, known or unknown, suspected or unsuspected (hereinafter referred to as “claim” or “claims”) which either party at any time heretofore had or claimed to have or which either party may have or claim to have regarding events that have occurred up to and including the date of the execution of this Release, including, without limitation, any and all claims related, in any manner, to the Executive’s employment or the termination thereof. In particular, each party understands and agrees that the parties’ release includes, without limitation, all matters arising under any federal, state, or local law, including civil rights laws and regulations prohibiting employment discrimination on the basis of race, color, religion, age, sex, national origin, ancestry, disability, medical condition, veteran status, marital status and sexual orientation, or any other characteristic protected by federal, state or local law including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, the Older Workers Benefit Protection Act of 1990, as amended, the Americans with Disabilities Act, the Rehabilitation Act, the Occupational Safety and Health Act, the Family and Medical Leave Act, the Employee Retirement Income Security Act of 1974, as amended (except as to vested retirement benefits, if any), the Worker Adjustment and Retraining Notification Act, the Washington Law Against Discrimination, RCW 49.60, The Washington Wage Rebate Act, RCW 49.52, the Washington Unpaid Wages Act, RCW 49.48, federal and state wage and hour laws, or any common law, public policy, contract (whether oral or written, express or implied) or tort law, or any other federal, state or local law, regulation, ordinance or rule having any bearing whatsoever.

The Executive must sign and return this Release by personal or guaranteed overnight delivery to the attention of the Human Resources Director, 1800 Two Union square, 601 Union Street, Seattle WA 98101 no earlier than the Date of Termination and no later than «Sign__date», which is the 60th day following the Date of Termination. The Executive can revoke this Release within seven days after executing the Release by sending written notification to the Company of Executive’s intent to revoke the Release, and this Release shall not become effective or enforceable until such revocation period has expired, The Executive’s written notification of the intent to revoke the Release must be sent to the

 

1


Human Resources Director, 1900 Two Union Square, 601 Union Street, Seattle WA 98101 by personal delivery or guaranteed overnight delivery, within seven days after the Executive executed the Release.

The Executive and Company acknowledge that they may have sustained losses that are currently unknown or unsuspected, and that such damages or losses could give rise to additional causes of action, claims, demands and debts in the future. Nevertheless, the Executive and Company each acknowledge that this Release has been agreed upon in light of this realization and, being fully aware of this situation, the Executive and Company nevertheless intend to release the each other from any and all such unknown claims, including damages which are unknown or unanticipated. The parties understand the word “claims” to include all actions, claims, and grievances, whether actual or potential, known or unknown, and specifically but not exclusively all claims arising out of the Executive’s employment and the termination thereof. All such “claims” (including related attorneys’ fees and costs) are forever barred by this Release and without regard to whether those claims are based on any alleged breach of a duty arising in a statute, contract, or tort; any alleged unlawful act, including, without limitation, age discrimination; any other claim or cause of action; and regardless of the forum in which it might be brought.

Notwithstanding anything else herein to the contrary, this Release shall not affect, and the Executive and the Company, as applicable, do not waive or release: (i) rights to indemnification the Executive may have under (A) applicable law, (B) any other agreement between the Executive and a Released Party and (C) as an insured under any director’s and officer’s liability or other insurance policy now or previously in force; (ii) any right the Executive may have to obtain contribution in the event of the entry of judgment against the Executive as a result of any act or failure to act for which both the Executive and any of the Company or its affiliates or subsidiaries (collectively, the “ Affiliated Entities ”) are or may be jointly responsible; (iii) the Executive’s rights to benefits and payments under any stock options, restricted stock, restricted stock units or other incentive plans or under any retirement plan, welfare benefit plan or other benefit or deferred compensation plan, all of which shall remain in effect in accordance with the terms and provisions of such benefit and/or incentive plans and any agreements under which such stock options, restricted shares, restricted stock units or other awards or incentives were granted or benefits were made available; (iv) the Executive’s rights as a stockholder of any of the Affiliated Entities; (v) any obligations of the Affiliated Entities under the Employment Agreement (vi) any clawback required pursuant to restrictions on compensation for employees of financial institutions; (vii), any claims brought by the Federal Deposit Insurance Corporation as receiver or conservator of the Bank that have not been released or waived by the Company; (viii) claims for improper self-dealing; improper distributions and other limitations imposed by RCW 23B.08.320; (ix) any finally and judicially determined, knowing violation of the law by Executive that has a material and adverse impact on the Company; (x) any fraud or other intentional misconduct by Executive that has a material and adverse impact on the Company; (xi) any material violation of any confidentiality, nonsolicitation or noncompetition agreement or provision executed by Executive; or (xii) any other claim not subject to release by operation of law.

 

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The Executive waives all rights under section 1542 of the Civil Code of the State of California or any comparable or analogous Federal law or any other state law. Section 1542 provides as follows:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

The Executive acknowledges and agrees that the Executive: (a) has been given at least [21/45] days within which to consider this Release and its ramifications and discuss the terms of this Release with the Company before executing it (and that any modification of this Release, whether material or immaterial, will not restart or change the original [21/45] day consideration period) and the Executive fully understands that by signing below the Executive is voluntarily giving up any right which the Executive may have to sue or bring any other claims against the Released Parties; (b) has been given seven days after returning the Release to the Company to revoke this Release; (c) has been advised to consult legal counsel regarding the terms of this Release; (d) has carefully read and fully understands all of the provisions of this Release; (e) knowingly and voluntarily agrees to all of the terms set forth in this Release; and (f) knowingly and voluntarily intends to be legally bound by the same. The Executive also understands that, notwithstanding anything in this Release to the contrary, nothing in this Release shall be construed to prohibit the Executive from (i) filing a charge or complaint with the Equal Employment Opportunity Commission or Washington State Human Rights Commission or any other federal, state or local administrative or regulatory agency, or (ii) participating in any investigation or proceedings conducted by the Equal Employment Opportunity Commission or any other federal, state or local administrative or regulatory agency; however, the Executive expressly waives the right to any relief of any kind in the event that the Equal Employment Opportunity Commission or Washington State Human Rights Commission or any other federal, state or local administrative or regulatory agency pursues any claim on the Executive’s behalf.

This Release is final and binding and may not be changed or modified except in a writing signed by both parties.

 

 

Date

 

 

[Name]

 

3


EXHIBIT B

EXECUTIVE CONFIDENTIALITY AGREEMENT

 

15


EXECUTIVE CONFIDENTIALITY AGREEMENT

This Confidentiality Agreement (“Agreement”) is between HomeStreet, Inc., HomeStreet Bank (“Bank”) and their affiliate or subsidiary organizations and their successors and assigns (collectively, the “ Company ” or “HomeStreet”) and Mark Mason (“ Executive ” or “Recipient”) (collectively, the “ Parties ”).

Executive is currently employed as the Chairman of the Board of Directors, President and CEO of the Bank and Chief Executive Officer of HomeStreet, Inc. It is the intent of the Parties that this Agreement will become effective upon the termination of Executive’s services to the Company. By virtue of his position with the Company, Executive has access to Confidential Information (defined below). HomeStreet must have assurance from Recipient that all Confidential Information provided to Recipient is and remains confidential after termination of his services. Therefore, for valuable consideration, the receipt of which is acknowledged to be sufficient, Recipient and HomeStreet agree as follows:

 

1. “Confidential Information” means information concerning the business, operations, strategies, financial status, products, services, customer names, customer lists and customer information of HomeStreet, which is confidential or proprietary to HomeStreet.

 

2. Confidential Information does not include information that: (a) is or becomes generally available to the public through no fault or act of Recipient or any of his Representatives in violation of this Agreement; (b) is or becomes available to Recipient or his representatives on a non-confidential basis from a source other than HomeStreet not known to Recipient or such Representatives to be prohibited from disclosing such information by a contractual, legal or fiduciary obligation of confidentiality; (c) is independently developed by the Recipient or his representatives without use of or reliance on, either directly or indirectly, Confidential Information; or (d) was known to or in the possession of Recipient or one of his representatives on a non-confidential basis prior to disclosure by HomeStreet under the terms of this Agreement; or (e) is developed primarily through the efforts or work product of Executive.

 

3.

After the termination of his services or employment agreement, Recipient agrees not to disclose any Confidential Information to any third party, unless such third party is a fiduciary, affiliate or HomeStreet vendor and such vendor and HomeStreet have signed a similar confidentiality agreement, or such disclosure of Confidential Information is required by lawful judicial or governmental order. Recipient agrees to give HomeStreet reasonable notice in writing in advance of releasing Confidential Information pursuant to any judicial or governmental order. Recipient additionally agrees to implement and maintain at all times reasonably appropriate procedures and

 

1


 

controls to ensure at all times the security and confidentiality of all of HomeStreet’s Confidential Information, to protect against any anticipated threats or hazards to the security or integrity of such information; and to protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to Home Street or any customer of HomeStreet. Recipient agrees to notify HomeStreet of any known security breach, any known unauthorized release of Confidential Information, or any known unauthorized attempt to access Confidential Information of which it becomes aware within a reasonable time of the occurrence of such event. Such notice will include, at a minimum, the date and time of any such event, the nature and extent of Confidential Information involved in any such event, and the corrective measures taken by Recipient in response to any such event.

 

4. All Confidential Information is and shall remain the property of HomeStreet. No license or conveyance of any right is granted or implied by the distribution of any Confidential Information to Recipient. Recipient agrees not to use, duplicate, or reproduce in any way any Confidential Information for Recipient’s own benefit or financial gain, or for any third party’s benefit or financial gain except to the extent reasonably necessary to analyze and prepare a business proposal to HomeStreet, in connection with rendering services to HomeStreet and to prepare and maintain his internal files in the ordinary course of its business. All documents (originals and copies, including electronic versions) containing Confidential Information shall either be destroyed or disposed of in a manner consistent with the Fair and Accurate Credit Transactions Act of 2003 or, if directed by HomeStreet, returned to HomeStreet upon termination of the rendering of services to HomeStreet by Recipient. Recipient agrees that HomeStreet may take reasonable actions as deemed appropriate by HomeStreet to confirm that Recipient has satisfied these obligations. It is understood that Recipient may retain one archival copy of such information for his internal files except for Bank customer loan files and documents containing private customer information.

 

5. By making any Confidential Information available to Recipient, HomeStreet makes no representation, warranty or guarantee, either express or implied, as to the accuracy or completeness of any Confidential Information or to the format in which such Confidential Information is provided to Recipient. Except as otherwise provided in any engagement letter, HomeStreet shall not be liable to any party for damages, of whatever kind, as a result of Recipient’s reliance on any Confidential Information or any format in which Confidential Information is made available to Recipient.

 

6. Recipient acknowledges that due to the highly sensitive nature of the Confidential Information, Recipient will be liable to HomeStreet for all losses suffered by HomeStreet as a result of Recipient’s intentional and material breach of this Agreement. In addition to any other remedies available to HomeStreet, Recipient agrees that, if Recipient breaches this Agreement, HomeStreet may seek injunctive relief against Recipient to stop any such breach.

 

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7. If either Party to this Agreement commences legal action to enforce any rights arising out of or relating to this Agreement, the prevailing Party in any such action shall be entitled to recover reasonable attorneys’ fees and costs, including fees and costs on appeal. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Washington and the venue for any legal action shall be Seattle, Washington.

 

8. If Recipient and HomeStreet have entered into any other agreement, the terms of this Agreement shall, by this reference, be incorporated into and made a part of such other agreement, except to the extent otherwise specifically provided in such other agreement. The terms of this Agreement shall survive the termination of rendering of services to HomeStreet by Recipient for a period of ten years.

This Agreement is dated this      day of              , 2011.

 

HomeStreet, Inc.

HomeStreet Bank

   

Executive

   
     

 

      Mark Mason
By:  

 

    By:  

 

Title:  

 

     

 

3

Exhibit 10.9

EXECUTIVE EMPLOYMENT AGREEMENT

between

HOMESTREET, INC. and HOMESTREET BANK

and

MARK MASON


E XECUTIVE E MPLOYMENT A GREEMENT

This executive employment agreement (“ Agreement ”), effective immediately after the Cease and Desist Order is lifted by the Federal Deposit Insurance Corporation (the “Effective Date”), is between HomeStreet, Inc., HomeStreet Bank (“Bank”) and their affiliate or subsidiary organizations and their successors and assigns (collectively, the “ Company ”) and Mark Mason (“ Executive ”) (collectively, the “ Parties ”). In consideration of the foregoing promises and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Company and Executive hereby agree to enter into an employment relationship in accordance with the terms and conditions set forth below.

 

I. EMPLOYMENT

 

  A. Position and Duties

The Company will employ Executive, and Executive will accept employment as the Chairman of the Board of Directors and Chief Executive Officer of HomeStreet Bank and as the Chief Executive Officer of HomeStreet, Inc. He will also report to and be a member of the Board of Directors of HomeStreet Bank and the Board of Directors of HomeStreet, Inc. (“ Board of Directors ”). Executive will perform the duties in the positions and for the entities described above and will devote his full time and attention to achieving the purposes and discharging the responsibilities afforded the positions, and such other duties as may be assigned from time to time by the Company, which relate to the business of the Company and are reasonably consistent with Executive’s position. During Executive’s employment, Executive will not engage in any business activity that, in the reasonable judgment of the Board of Directors, conflicts with the duties of Executive under this Agreement, whether or not such activity is pursued for gain, profit or other advantage. Executive will comply with Company policies and procedures, and all applicable laws and regulations. Executive shall be employed at the Company headquarters in Seattle, Washington.

 

  B. Term of Agreement

This Agreement shall commence on the Effective Date and continue for an initial term of three (3) years unless sooner terminated as set forth in Section III. The Agreement shall automatically renew for successive one (1) year terms, unless either party provides the other with written notice of its intent not to renew no less than 180 days prior to the end of its term. Notwithstanding any termination of this Agreement or Executive’s employment, the Executive shall remain subject to the restrictions in Section IV of this Agreement.

 

II. COMPENSATION AND BENEFITS

The Company agrees to pay to Executive and Executive agrees to accept in exchange for the services rendered hereunder the following compensation and benefits:

 

  A. Annual Salary

Executive’s compensation shall consist of an annual base salary (the “ Salary ”) of no less than $500,000, payable in accordance with the payroll practices of the Company. The Salary

 

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shall be reviewed at least annually, and may be subject to increase, by the Board of Directors of the Company (or the Compensation Committee thereof) while Executive is employed hereunder. Executive’s Salary may decrease only with his agreement.

 

  B. Annual Incentive Payment

The Company shall establish a performance-based, target incentive bonus under the terms of the Company’s incentive bonus compensation plan pursuant to which Executive may receive, based on completion of objectives no less than 50% of Executive’s Salary (or such higher amount as the Board or its Compensation Committee may approve) (“ Target Incentive Payment ”), less required withholding and authorized deductions. The Board or its Compensation Committee and Executive shall establish the mutually acceptable performance objectives and related payout ratios no later than May 31 of each fiscal year. The Board, or the Board’s Compensation Committee, shall reasonably determine the extent to which the Target Incentive Payment has been earned and shall ensure that the Target Incentive Payment complies with Sound Incentive Compensation Planning Guidelines and other restrictions applicable to financial institutions.

 

  C. Equity Compensation

Executive has been awarded stock options and restricted stock consistent with Company benefits plans so that Executive holds equity rights to approximately 3.7% of the outstanding share of HomeStreet, Inc. stock (125,000 shares). For the purposes of this provision, these shares shall be referred to as Executive’s “initial executive award.” Executive’s rights with respect to such stock options and restricted stock shall continue, subject to the terms of any applicable grant or plan. In the event of an Initial Public Offering of stock in HomeStreet, Inc., HomeStreet, Inc. shall provide additional equity grants (which may be in the form of restricted stock or stock options) to Executive so that his percentage ownership in HomeStreet, Inc. following the Initial Public Offering remains equal to his ownership interest prior to the Initial Public Offering calculated by multiplying the percentage of HomeStreet, Inc.’s pre~offering common stock reflected by Executive’s initial executive award, by the number of shares of HomeStreet, Inc. common stock as measured immediately after the completion of the Initial Public Offering, and subtracting from that result the number of shares represented in the initial executive award. Three-Fourths of these awards (75%) will take the form of stock options, with an exercise price equal to the Initial Public Offering price or if issuance is delayed, then with an exercise price equal to the stock price on the day the options are issued; the remaining one-fourth (25%) will take the form of restricted stock awards. Stock options will vest ratably in thirds over each of the first three anniversaries of the closing of the Initial Public Offering. The restricted stock awards will vest upon the occurrence of certain events based upon an increase in the price of HomeStreet, Inc. common stock in comparison to the price at which the Initial Public Offering is consummated: one-third of the awards vest upon an increase in Company stock price of 25% from the Initial Public Offering price; an additional one-third vest upon an increase of 40% from the Initial Public Offering price; and the remaining one-third vest upon an increase of 50% from the Initial Public Offering price. Executive may be awarded additional stock options or restricted stock at the discretion of the Compensation Committee of the Board and consistent with any stock plans or agreements.

 

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  D. Benefits

Executive shall be eligible to participate, subject to and in accordance with applicable eligibility requirements, in such benefit programs as are provided to the Company’s executives, which may include, at a minimum, vacation, sick leave, basic health, life and disability insurance.

 

  E. Business Expenses

Executive shall be reimbursed for all reasonable out-of-pocket expenses actually incurred by Executive in the conduct of the business of the Company, provided that Executive submits substantiation of all such expenses to the Company on a timely basis in accordance with standard policies of the Company, effective as such on the date such expenses are incurred.

 

  F. Allocation of Payments

HomeStreet, Inc. and HomeStreet Bank shall from time to time allocate between them the obligation to make payments hereunder. Such allocation shall not affect the joint and several liability of HomeStreet, Inc. and HomeStreet Bank under this Agreement as provided in Section VI.D.

 

III. TERMINATION

 

  A. Employment Termination

This Agreement and Executive’s employment may be terminated by the Company for Cause (as defined below), or without Cause or by Executive for Good Reason (as defined below) or without Good Reason or upon the Executive’s death or Total Disability, Except where a specific notice procedure is described herein, the Company or Executive shall provide the other party at least sixty (60) days notice of any termination (or 60 days pay in lieu of notice). Upon any termination of employment, Executive shall be entitled to receive payments or benefits as described in this Agreement.

 

  B. Automatic Termination on Death or Total Disability

This Agreement and Executive’s employment hereunder shall terminate automatically upon the death or Total Disability of Executive. “ Total Disability ” shall have the same meaning as defined in the Company’s long-term disability plan or policy. Termination hereunder shall be deemed to be effective (a) upon Executive’s death or (b) immediately upon the sooner to occur of a determination by the Company’s long-term disability insurance carrier or Executive’s primary care physician that Executive is disabled and eligible for long-term disability benefits. Executive shall receive the following benefits on termination of employment for Death or Disability:

(1) Executive’s earned but unpaid Salary through the effective date of the termination;

 

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(2) Any earned but unpaid incentive compensation, including incentive compensation earned in the previous year but not yet paid and pro rata incentive compensation earned for the year in which termination occurs;

(3) Accrued but unused vacation pay consistent with the Company vacation policy;

(4) Reimbursable business expenses for activities prior to the effective date of termination;

(5) Executive’s vested stock options and other equity grants shall remain exercisable for one year after Death or Total Disability consistent with the terms of the applicable plan;

(6) Any severance pay for which Executive may be eligible under the terms of the Company’s nondiscriminatory severance plan.

(7) In the event of Total Disability, provided that such payments do not result in a violation the non-discrimination rules under Section 105(h) of the Internal Revenue Code, Company shall pay to the applicable insurer the health care insurance premiums for Executive and his eligible dependents during the 18 months of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), provided Executive and his dependents elect COBRA continuation coverage;

(8) In the event of Total Disability, in order to receive the benefits described herein that Executive is not otherwise entitled to receive, no later than sixty (60) days after termination of employment, the Company and Executive must execute a release agreement (“Release”) substantially in the form of Exhibit ‘A’ attached hereto in order to receive the severance benefits. The Release will be effective upon completion of the payments (other than the health insurance premiums described above) due to Executive. Executive must also remain in substantial and continued compliance with the terms of Section IV of this Agreement.

(9) In the event of death, all payments shall be made to the person or persons identified as the Executive’s beneficiary for any Company-sponsored life insurance.

 

  C. Termination Without Cause or Executive Resigns for Good Reason Immediately Before or Following a Change of Control

If Executive’s employment terminates by the Company without Cause or by Executive for Good Reason within one year following or during the ninety (90) days immediately preceding a Change of Control (as defined below), then Executive shall be entitled to receive the following termination payments:

(1) As severance pay, two-and-one-half times Executive’s annual Salary at the rate in effect immediately prior to termination, paid in a lump sum within ten (10) days following the day Executive signs the Release agreement identified above; provided, however, the payment may be delayed as required to avoid additional tax for a “specified employee” under Section 409A as described in Section VI.G;

 

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(2) Two-and-one-half times Executive’s Annual Incentive Payment, calculated as the greater of the Annual Incentive Payment earned by Executive in the year prior to termination or Executive’s Target Incentive Payment for the current year, paid in a lump sum within ten (10) days following the day Executive signs the release agreement identified above; provided, however, the payment may be delayed as required to avoid additional tax for a “specified employee” under Section 409A as described in Section VI.G;

(3) Provided that such payments do not result in a violation of the non-discrimination rules under Section 105(h) of the Internal Revenue Code and provided Executive and his dependents timely (and properly) elect COBRA continuation coverage under the Company’s group health plan(s), Company shall pay to the applicable insurer Executive and Executive’s eligible dependents’ continuing health insurance coverage for the shorter of (i) eighteen (18) months; (ii) until such date as Executive is no longer entitled to continuation coverage pursuant to COBRA under the Company’s group health plan(s); or (iii) until such date as Executive obtains health coverage through another employer;

(4) Executive’s earned but unpaid Salary through the effective date of termination, paid on the next regularly scheduled payroll date following the effective date of termination;

(5) Any earned but unpaid incentive compensation, including incentive compensation earned in the prior year but not yet paid and pro rata incentive compensation earned for the year in which termination occurs;

(6) The value of Executive’s accrued but unused vacation, consistent with the Company’s vacation policy applicable to all employees;

(7) Reimbursement of all reasonable business expenses incurred for activities prior to the effective date of termination;

(8) Upon termination under circumstances identified in this section, all of Executive’s unvested stock options and other equity grants shall immediately vest and remain exercisable consistent with any stock option grant or plan;

(9) In order to receive the benefits described herein that Executive is not otherwise entitled to receive, no later than sixty (60) days after termination of employment, the Company and Executive must execute a Release agreement substantially in the form attached hereto as Exhibit ‘A’ in order to receive the severance benefits. The Release will be effective upon completion of all payments due to Executive other than the health insurance premiums described above. Executive must also remain in substantial and continued compliance with the terms of Section IV of this Agreement,

 

  D. Termination with Cause or Resignation Without Good Reason

If the Company terminates Executive’s employment with Cause or Executive resigns without Good Reason, the Company shall provide Executive compensation and benefits as follows:

 

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(1) Payment of Executive’s earned but unpaid Salary through the effective date of termination.

(2) Payment of the value of Executive’s earned but unused vacation consistent with Company policy that applies to all employees.

(3) Reimbursement of all reasonable business expenses incurred for activities prior to the Effective Date of termination.

(4) Any vested equity grants which shall remain exercisable to the extent provided under the terms of any grant or plan.

 

  E. Termination Without Cause or Executive Resigns for Good Reason

If the Company terminates Executive’s employment without Cause or Executive terminates his employment for Good Reason unrelated to a Change of Control, then Executive shall be entitled to receive the following termination payments:

(1) As severance pay, two times Executive’s annual Salary at the rate in effect immediately prior to termination, paid in a lump sum within ten (10) days following the day Executive signs the release agreement identified below, provided, however the payment may be delayed as required to avoid additional tax for a “specified employee” under Section 409A as stated in Section VI.G;

(2) Two times Executive’s Annual Incentive Payment, calculated as the greater of the Annual Incentive Payment earned by Executive in the year prior to termination or Executive’s Target Incentive Payment for the current year, paid in a lump sum within ten (10) days following the day Executive signs the release agreement identified below, provided, however the payment may be delayed as required to avoid additional tax for a “specified employee” under Section 409A as stated in Section VI.G;

(3) Provided that such payments do not result in a violation of the non-discrimination rules under Section 105(h) of the Internal Revenue Code, and provided Executive and his dependents timely (and properly) elect COBRA continuation coverage under the Company’s group health plan(s), Company shall pay to the applicable insurer Executive and Executive’s eligible dependents’ continuing health insurance coverage for the shorter of (i) eighteen (18) months; (ii) until such date as Executive is no longer entitled to continuation coverage pursuant to COBRA under the Company’s group health plan(s); or (iii) until such date as Executive obtains health coverage through another employer;

(4) Executive’s earned but unpaid Salary, paid on the next regularly scheduled payroll date following the date on which Executive’s employment terminated;

(5) Any earned but unpaid incentive compensation, including incentive compensation earned in the prior year but not yet paid and pro rata incentive compensation earned for the year in which termination occurs;

 

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(6) The value of Executive’s accrued but unused vacation, consistent with the Company’s vacation policy applicable to all employees;

(7) Reimbursement of all reasonable business expenses incurred for activities prior to the effective date of termination;

(8) All of Executive’s unvested stock options and other equity grants shall vest and remain exercisable consistent with any such grant or applicable plan;

(9) In order to receive the benefits described herein that Executive is not otherwise entitled to receive, no later than sixty (60) days after termination of employment, the Company and Executive must execute a Release agreement substantially in the form attached hereto as Exhibit ‘A’ in order to receive the severance benefits. The Release is effective upon completion of payments due to Executive other than the health insurance premiums described above. Executive must also remain in substantial and continued compliance with the terms of Section IV of this Agreement.

 

  F. Definitions of “Cause”, “Good Reason” and “Change of Control”

 

  1. Cause

Wherever reference is made in this Agreement to termination being with or without Cause, “ Cause ” shall mean the occurrence of one or more of the following events:

(a) the willful and continued failure of the Executive to perform his duties;

(b) the willful engaging by the Executive in illegal conduct or gross misconduct which is materially injurious to the Company;

(c) the Executive’s conviction or plea of guilty or nolo contendere to the charge of commission of a felony; or

(d) the Executive’s breach of a regulatory rule that materially and adversely affects the Executive’s ability to perform the Executive’s principal employment duties for the Company and its affiliates.

(e) Prior to a termination for Cause, Employer shall provide Executive 30-day prior written notice of the claimed basis for the possible “Cause” termination and an opportunity for Executive to cure any defect or deficiency on his performance. Upon request. Executive shall be entitled to a hearing before the Board of Directors with representation by counsel. “Cause” shall be established by affirmative vote of at least two-thirds of the entire Board of each employer in order to determine “Cause.”

 

  2. Good Reason

For the purposes of this Agreement, “ Good Reason ” shall mean that Executive, without his consent, has experienced one of the following events or circumstances:

 

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(a) the assignment to the Executive of any duties materially diminished from those in effect immediately prior to such assignment;

(b) a change in the Executive’s authority, duties or responsibilities which represents a material adverse change from those in effect immediately prior to such change;

(c) a material decrease in the Executive’s annual Salary without his prior agreement;

(d) solely following a Change of Control, relocation of the Executive’s principal place of employment to a location that increases the Executive’s commute from his primary residence by more than 30 miles one way; or

(e) any other action or inaction that constitutes a material breach of the terms of the Agreement by the Company.

(f) To comply with Section 409A of the Code, the Executive must give written notice of termination of employment within 60 days after the occurrence of the circumstances constituting Good Reason, and the Company will have 30 days to cure the circumstances constituting Good Reason, and the Executive’s “separation from service” must occur no later than six months following the initial existence of the circumstances giving rise to Good Reason.

Notwithstanding the foregoing, termination of employment by Executive will not be for Good Reason unless (i) Executive notifies the Company in writing of the existence of the condition which Executive believes constitutes Good Reason within sixty (60) days of the initial existence of such condition (which notice specifically identifies such condition), and (ii) the Company fails to remedy such condition within thirty (30) days after the date on which it receives such notice (the “Remedial Period”) whereupon Executive’s employment shall be deemed to be terminated for Good Reason upon failure of the Company to remedy. If Company attempts to cure, or disputes the existence of Good Reason, it shall provide documentary evidence thereof to Executive within the Remedial Period. Executive may elect to remain employed by Company and dispute any response by Company during the Remedial Period, without prejudice to the claim of Good Reason, by invoking the provisions of Article VI.I. In the event that Executive remains employed and invokes the dispute resolution process, he shall in any event complete his resignation within two years of the end of the Remedial Period. If Executive terminates employment before the expiration of the Remedial Period or after the Company remedies the condition (even if within the end of the Remedial Period), then Executive’s termination will not be considered to be for Good Reason.

 

  3. Change of Control

For the purposes of this Agreement, “ Change of Control ” means:

(a) one person or entity acquiring or otherwise becoming the owner of twenty-five percent or more of HomeStreet, Inc.’s or HomeStreet Bank’s outstanding shares in any class of shares;

(b) dissolution or sale of fifty percent or more in value of the assets of either HomeStreet, Inc. or HomeStreet Bank; or

 

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(c) a change “in the ownership or effective control” or “in the ownership of a substantial portion of the assets” of HomeStreet, Inc. or HomeStreet Bank, within the meaning of Section 280G of the Internal Revenue Code.

Sale of stock through an Initial Public Offering shall not constitute a “Change of Control” under this Agreement.

 

IV. CONFIDENTIALITY; NON-SOLICITATION;

 

  A. Confidentiality Agreement

Executive recognizes that the Company’s business and continued success depend upon the use and protection of confidential information and proprietary information, and therefore Executive is subject to, and this Agreement is conditioned on agreement to, the terms of the non-disclosure agreement (the “Confidentiality Agreement”) substantially in the form attached hereto as Exhibit ‘B’ entered into by Executive and the terms of the Confidentiality Agreement shall survive the termination of Executive’s employment with the Company or Successor Employer for a period of ten (10) years from termination unless otherwise required by law.

 

  B. Non-Competition

During Executive’s employment with the Company and/or a Successor Employer and for six months after the termination of such employment, Executive will not engage in, be employed by, perform services for, participate in the ownership, management, control or operation of, or otherwise be connected with, either directly or indirectly, any Competing Business. For purposes of this section, Executive will not be considered, to be connected with any Competing Business solely on account of ownership of less than five percent of the outstanding capital stock or other equity interests in any Competing Business. Executive agrees that this restriction is reasonable, but further agrees that should a court exercising jurisdiction with respect to this Agreement find any such restriction invalid or unenforceable due to unreasonableness, either in period of time, geographical area, or otherwise, then in that event, such restriction is to be interpreted and enforced to the maximum extent which such court deems reasonable.

 

  C. Non-Solicitation

(1) During Executive’s employment with the Company and/or a Successor Employer and for six months after the termination of such employment, Executive will not induce, or attempt to induce, any employee, executive, Board member or independent contractor of the Company and/or a Successor Employer to cease such employment or relationship to engage in, be employed by, perform services for, participate in the ownership, management, control or operation of, or otherwise be connected with, either directly or indirectly, any Competing Business (defined below).

(2) During Executive’s employment with the Company and/or a Successor Employer and for six months after the termination of such employment, Executive will not, directly or indirectly solicit, divert, appropriate to or accept on behalf of any Competing Business, any business or account from any customer of the Company or entity about whom Executive has acquired confidential information in the course of his employment.

 

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  D. Competing Business

“Competing Business” means any bank or thrift with an office or branch in Washington, Oregon, Idaho or Hawaii.

 

V. ASSIGNMENT

This Agreement is personal to Executive and shall not be assignable by Executive. The Company may assign its rights hereunder to (a) any other corporation resulting from any merger, consolidation or other reorganization to which the Company is a party; (b) any other corporation, partnership, association or other person to which the Company may transfer all or substantially all of the assets and business of the Company existing at such time; or (c) any subsidiary, parent or other affiliate of the Company (“ Successor Employer ”). All of the terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns.

 

VI. MISCELLANEOUS

 

  A. Amendments

No amendment, modification, waiver, termination or discharge of any provision of this Agreement, or consent to any departure therefrom by either party hereto, shall in any event be effective unless the same shall be in writing, specifically identifying this Agreement and the provision intended to be amended, modified, waived, terminated or discharged and signed by the Company and Executive, and each such amendment, modification, waiver, termination or discharge shall be effective only in the specific instance and for the specific purpose for which given. No provision of this Agreement shall be varied, contradicted or explained by any oral agreement, course of dealing or performance or any other matter not set forth in an agreement in writing and signed by the Company and Executive.

 

  B. Applicable Law

This Agreement shall in all respects, including all matters of construction, validity and performance, be governed by, and construed and enforced in accordance with, the laws of the State of Washington, without regard to any rules governing conflicts of laws.

 

  C. Entire Agreement

This Agreement, on and as of the date hereof, constitutes the entire agreement between the Company and Executive with respect to the subject matter hereof. To the extent any agreement, plan or policy of the Company is inconsistent with this Agreement, the provisions of this Agreement shall prevail and control and such other agreement, plan or policy will be construed by Company to be consistent with this Agreement and, if that is not possible, the other agreement, plan or policy shall be modified as to Executive to be in conformance with this Agreement. It is the intent of the parties that Executive shall, to the extent allowed by law, enjoy the full benefit of all obligations of Company set forth herein.

 

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  D. Severability

If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any regulatory action, applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability, regardless of the reason therefor shall not affect any other provision of this Agreement or any action in any other jurisdiction, or the obligation of any other entity to this Agreement. If either entity to this Agreement is determined by any regulatory authority or court not to be able to perform its obligation(s) to Executive or not to have the authority to enter into this Agreement, then the other entity shall be liable therefor.

The obligations to Executive herein are the joint and several obligations of HomeStreet Inc. and HomeStreet Bank and there shall be joint and several liability of those entities in the event of any default to Executive by either for any reason.

 

  E. Legal Limitations

Notwithstanding any provision to the contrary in this Agreement, no payment of any type or amount of compensation or benefits shall be made or owed by Company to Executive pursuant to this Agreement or otherwise if payment of such type or amount is prohibited by, is not permitted under, or has not received any required approval under, any applicable governmental statute, regulation, rule, order (including any cease and desist order), determination, opinion, or similar provision whether now in existence or hereafter adopted or imposed, including without limitation, by or under (i) any provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) and regulations promulgated thereunder, (ii) any governmental provisions relating to indemnification by Company or an affiliate, including without limitation any applicable prohibitions or restrictions on depository institutions and their affiliates set forth in 12 USC 1828(k) or in 12 CFR Part 359, or (in) any governmental provisions relating to payment of golden parachutes or similar payments, including without limitation any prohibitions or restrictions on such payments by troubled institutions and companies and their affiliates set forth in 12 USC 1828(k) or in 12 CFR Part 359. In the event any payment to Executive is prohibited or otherwise restricted, (x) such payment shall, to the extent allowed by law, order or regulatory determination and not objected to by applicable banking or other regulatory agencies, be reinstated as an obligation of the obligor(s) without further action immediately upon the cessation of such prohibition or restriction, and (y) the Company shall use its best efforts to secure the consent, if any shall be required, of the FDIC or other applicable banking or other regulatory agencies to make such payments in the highest amount permissible, up to the amount provided for in this Agreement.

If any payment made to Executive hereunder or under any prior employment agreement or arrangement is required under any applicable governmental provision (including, without limitation, Dodd-Frank and regulations promulgated thereunder) to be paid back to Company, the Executive shall upon written demand from Company promptly pay such amount back to Company.

 

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  F. Code Section 280G

Notwithstanding anything in this Agreement to the contrary, if Executive becomes entitled to receive or receives any payment or benefit under this Agreement or under any other plan, agreement or arrangement with the Company, any person whose actions result in a Change of Control or any person affiliated with the Company or such person (all such payments and benefits being referred to herein as the “Total Payments”) and it is determined that any of the Total Payments will be subject to any excise tax pursuant to Code Section 4999, or any similar or successor provision (the “Excise Tax”), the Company shall pay to Executive an additional amount so that Executive’s net payment shall not be diminished in any respect by the additional Excise Tax.

 

  G. Code Section 409A

With respect to any payments or benefits hereunder that are subject to Code Section 409A and any official guidance and regulations issued thereunder (together “ Code Section 409A ”) and that are payable on account of Executive’s termination of employment, such payments shall only be made if such termination of employment constitutes a “separation from service” within the meaning of Code Section 409A. The Company may adjust any payment hereunder to avoid liability or obligation under Code Section 409A but such adjustments shall ensure that the payments are made in a manner that is as close to the terms of this Agreement as possible. Notwithstanding anything to the contrary contained in this Agreement, all reimbursements for costs and expenses under this Agreement will be paid in no event later than the end of the calendar year following the calendar year in which Executive incurs such expense. With regard to any provision herein that provides for reimbursement of costs and expenses or in- kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in- kind benefits shall not be subject to liquidation or exchange for another benefit, and (ii) the amount of expenses eligible for reimbursements or in-kind benefits provided during any taxable year shall not affect the expenses eligible for reimbursement or in-kind benefits to be provided in any other taxable year.

The Company makes no representations or warranties to Executive with respect to any tax, economic or legal consequences of this Agreement or any payments or other benefits provided hereunder, including without limitation under Code Section 409A, and no provision of the Agreement shall be interpreted or construed to transfer any liability for failure to comply with Code Section 409A from Executive or any other individual to the Company or any of its affiliates. Executive, by executing this Agreement, shall be deemed to have waived any claim against the Company and its affiliates with respect to any such tax, economic or legal consequences of this Agreement or any payments or other benefits provided hereunder. However, the parties intend that this Agreement and the payments and other benefits provided hereunder be exempt from the requirements of Code Section 409A to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-l(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-l(b)(9)(iii), or otherwise. To the extent Code Section 409A is applicable to this Agreement (and such payments and benefits), the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Code Section 409A. Notwithstanding any other

 

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provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. In addition, if Executive is a “specified employee,” within the meaning of Code Section 409A, then to the extent necessary to avoid subjecting Executive to the imposition of any additional tax under Code Section 409A, amounts that would otherwise be payable under this Agreement during the six (6) month period immediately following Executive’s “separation from service” for reasons other than Executive’s death (except those payments that may be exempt from 409A by virtue of the short-term deferral exception to 409A) shall not be paid to Executive during such period, but shall instead be accumulated and paid to Executive in a lump sum on the first business day after the date that is six (6) months following Executive’s separation from service.

 

  H. No Mitigation/Offset

In order to receive severance benefits provided in this Agreement, Executive shall not be required to engage in mitigation activities or seek alternative employment, nor would any other compensation received by Executive serve as an offset agreement to the severance or other benefits provided in this Agreement.

 

  I. Disputes

(1) In the event of a dispute or claim between Executive and the Company related to Employee’s employment or termination of employment, all such disputes or claims will be resolved exclusively by confidential arbitration in accordance with the Employment Arbitration Rules of the American Arbitration Association (the “AAA”). This means that the parties agree to waive their rights to have such disputes or claims decided in court by a jury. Instead, such disputes or claims will be resolved by an impartial AAA arbitrator (or other mutually agreeable person) whose decision will be final.

(2) The only disputes or claims that are not subject to arbitration are any claims by Executive for workers’ compensation or unemployment benefits, and any claim by Executive for benefits under an employee benefit plan that provides its own arbitration procedure. Also, Executive and Employer may seek injunctive relief in court in appropriate circumstances.

(3) The arbitration procedure will afford Executive and Employer the full range of statutory remedies, based on the statutes of limitations that would apply to the specific claims asserted as if they were asserted in court. Employer will pay all costs that are unique to arbitration, except that the party who initiates arbitration will pay the filing fee charged by AAA. Executive and Employer shall be entitled to discovery sufficient to adequately arbitrate their claims, including access to essential documents and witnesses, as determined by the arbitrator and subject to limited judicial review. In order for any judicial review of the arbitrator’s decision to be successfully accomplished, the arbitrator will issue a written decision that will decide all issues submitted and will reveal the essential findings and conclusions on which the award is based.

 

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IN WITNESS WHEREOF, the parties have executed and entered into this Agreement effective on the date first set forth above.

 

MARK MASON

LOGO

Date

  May 26, 2011
HOMESTREET, INC.

By

 

/s/ Gerhardt Morrison

Its

  HRGC Chairman

Date

  May 26, 2011
HOMESTREET BANK

By

 

/s/ Cynthia P. Sonstelie

Its

  HRCG Chair

Date

  6/1/11

 

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EXHIBIT A

WAIVER AND RELEASE

 

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WAIVER AND RELEASE

PLEASE READ THIS WAIVER AND RELEASE CAREFULLY. IT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS UP TO AND INCLUDING THE DATE THAT THIS AGREEMENT AND RELEASE IS EXECUTED BY THE COMPANY AND THE EXECUTIVE.

For and in consideration of the payments and other benefits due to [Mark K. Mason] (the “ Executive ”) pursuant to the Employment Agreement (the “ Employment Agreement ”) entered into as              , 2011 (the “ Effective Date ”), by and between HomeStreet, Inc., and HomeStreet Bank, and their respective subsidiaries (together the “ Company ”) and the Executive, and for other good and valuable consideration, including the mutual promises made herein, the Executive and the Company irrevocably and unconditionally release and forever discharge each other and each and all of their present and former officers, agents, directors, managers, employees, representatives, affiliates, shareholders, members, and each of their successors and assigns, and all persons acting by, through, under or in concert with it, and in each case individually and in their official capacities (collectively, the “ Released Parties ”), from any and all charges, complaints, grievances, claims and liabilities of any kind or nature whatsoever, known or unknown, suspected or unsuspected (hereinafter referred to as “claim” or “claims”) which either party at any time heretofore had or claimed to have or which either party may have or claim to have regarding events that have occurred up to and including the date of the execution of this Release, including, without limitation, any and all claims related, in any manner, to the Executive’s employment or the termination thereof. In particular, each party understands and agrees that the parties’ release includes, without limitation, all matters arising under any federal, state, or local law, including civil rights laws and regulations prohibiting employment discrimination on the basis of race, color, religion, age, sex, national origin, ancestry, disability, medical condition, veteran status, marital status and sexual orientation, or any other characteristic protected by federal, state or local law including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, the Older Workers Benefit Protection Act of 1990, as amended, the Americans with Disabilities Act, the Rehabilitation Act, the Occupational Safety and Health Act, the Family and Medical Leave Act, the Employee Retirement Income Security Act of 1974, as amended (except as to vested retirement benefits, if any), the Worker Adjustment and Retraining Notification Act, the Washington Law Against Discrimination, RCW 49.60, The Washington Wage Rebate Act, RCW 49.52, the Washington Unpaid Wages Act, RCW 49.48, federal and state wage and hour laws, or any common law, public policy, contract (whether oral or written, express or implied) or tort law, or any other federal, state or local law, regulation, ordinance or rule having any bearing whatsoever.

The Executive must sign and return this Release by personal or guaranteed overnight delivery to the attention of the Human Resources Director, 1800 Two Union, square, 601 Union Street, Seattle WA 98101 no earlier than the Date of Termination and no later than «Sign_date», which is the 60th day following the Date of Termination. The Executive can revoke this Release within seven days after executing the Release by sending written notification to the Company of Executive’s intent to revoke the Release, and this Release shall not become effective or enforceable until such revocation period has expired, The Executive’s written notification of the intent to revoke the Release must be sent to the

 

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Human Resources Director, 1900 Two Union Square, 601 Union Street, Seattle WA 98101 by personal delivery or guaranteed overnight delivery, within seven days after the Executive executed the Release.

The Executive and Company acknowledge that they may have sustained losses that are currently unknown or unsuspected, and that such damages or losses could give rise to additional causes of action, claims, demands and debts in the future. Nevertheless, the Executive and Company each acknowledge that this Release has been agreed upon in light of this realization and, being fully aware of this situation, the Executive and Company nevertheless intend to release the each other from any and all such unknown claims, including damages which are unknown or unanticipated. The parties understand the word “claims” to include all actions, claims, and grievances, whether actual or potential, known or unknown, and specifically but not exclusively all claims arising out of the Executive’s employment and the termination thereof. All such “claims” (including related attorneys’ fees and costs) are forever barred by this Release and without regard to whether those claims are based on any alleged breach of a duty arising in a statute, contract, or tort; any alleged unlawful act, including, without limitation, age discrimination; any other claim or cause of action; and regardless of the forum in which it might be brought.

Notwithstanding anything else herein to the contrary, this Release shall not affect, and the Executive and the Company, as applicable, do not waive or release: (i) rights to indemnification the Executive may have under (A) applicable law, (B) any other agreement between the Executive and a Released Party and (C) as an insured under any director’s and officer’s liability or other insurance policy now or previously in force; (ii) any right the Executive may have to obtain contribution in the event of the entry of judgment against the Executive as a result of any act or failure to act for which both the Executive and any of the Company or its affiliates or subsidiaries (collectively, the “ Affiliated Entities ”) are or may be jointly responsible; (iii) the Executive’s rights to benefits and payments under any stock options, restricted stock, restricted stock units or other incentive plans or under any retirement plan, welfare benefit plan or other benefit or deferred compensation plan, all of which shall remain in effect in accordance with the terms and provisions of such benefit and/or incentive plans and any agreements under which such stock options, restricted shares, restricted stock units or other awards or incentives were granted or benefits were made available; (iv) the Executive’s rights as a stockholder of any of the Affiliated Entities; (v) any obligations of the Affiliated Entities under the Employment Agreement (vi) any clawback required pursuant to restrictions on compensation for employees of financial institutions; (vii), any claims brought by the Federal Deposit Insurance Corporation as receiver or conservator of the Bank that have not been released or waived by the Company; (viii) claims for improper self-dealing; improper distributions and other limitations imposed by RCW 23B.08.320; (ix) any finally and judicially determined, knowing violation of the law by Executive that has a material and adverse impact on the Company; (x) any fraud or other intentional misconduct by Executive that has a material and adverse impact on the Company; (xi) any material violation of any confidentiality, nonsolicitation or noncompetition agreement or provision executed by Executive; or (xii) any other claim not subject, to release by operation of law.

 

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The Executive waives all rights under section 1542 of the Civil Code of the State of California or any comparable or analogous Federal law or any other state law. Section 1542 provides as follows:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

The Executive acknowledges and agrees that the Executive: (a) has been given at least [21/45] days within which to consider this Release and its ramifications and discuss the terms of this Release with the Company before executing it (and that any modification of this Release, whether material or immaterial, will not restart or change the original [21/45] day consideration period) and the Executive fully understands that by signing below the Executive is voluntarily giving up any right which the Executive may have to sue or bring any other claims against the Released Parties; (b) has been given seven days after returning the Release to the Company to revoke this Release; (c) has been advised to consult legal counsel regarding the terms of this Release; (d) has carefully read and fully understands all of the provisions of this Release; (e) knowingly and voluntarily agrees to all of the terms set forth in this Release; and (f) knowingly and voluntarily intends to be legally bound by the same. The Executive also understands that, notwithstanding anything in this Release to the contrary, nothing in this Release shall be construed to prohibit the Executive from (i) filing a charge or complaint with the Equal Employment Opportunity Commission or Washington State Human Rights Commission or any other federal, state or local administrative or regulatory agency, or (ii) participating in any investigation or proceedings conducted by the Equal Employment Opportunity Commission or any other federal, state or local administrative or regulatory agency; however, the Executive expressly waives the right to any relief of any kind in the event that the Equal Employment Opportunity Commission or Washington State Human Rights Commission or any other federal, state or local administrative or regulatory agency pursues any claim on the Executive’s behalf.

This Release is final and binding and may not be changed or modified except in a writing signed by both parties.

 

 

     

 

Date       [Name]

 

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EXHIBIT B

EXECUTIVE CONFIDENTIALITY AGREEMENT

 

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EXECUTIVE CONFIDENTIALITY AGREEMENT

This Confidentiality Agreement (“Agreement”) is between HomeStreet, Inc., HomeStreet Bank (“Bank”) and their affiliate or subsidiary organizations and their successors and assigns (collectively, the “ Company ” or “HomeStreet”) and Mark Mason (“ Executive ” or “Recipient”) (collectively, the “ Parties ”).

Executive is currently employed as the Chairman of the Board of Directors, President and CEO of the Bank and Chief Executive Officer of HomeStreet, Inc. It is the intent of the Parties that this Agreement will become effective upon the termination of Executive’s services to the Company. By virtue of his position with the Company, Executive has access to Confidential Information (defined below). HomeStreet must have assurance from Recipient that all Confidential Information provided to Recipient is and remains confidential after termination of his services. Therefore, for valuable consideration, the receipt of which is acknowledged to be sufficient, Recipient and HomeStreet agree as follows:

 

1. “Confidential Information” means information concerning the business, operations, strategies, financial status, products, services, customer names, customer lists and customer information of HomeStreet, which is confidential or proprietary to HomeStreet.

 

2. Confidential Information does not include information that: (a) is or becomes generally available to the public through no fault or act of Recipient or any of his Representatives in violation of this Agreement; (b) is or becomes available to Recipient or his representatives on a non-confidential basis from a source other than HomeStreet not known to Recipient or such Representatives to be prohibited from disclosing such information by a contractual, legal or fiduciary obligation of confidentiality; (c) is independently developed by the Recipient or his representatives without use of or reliance on, either directly or indirectly, Confidential Information; or (d) was known to or in the possession of Recipient or one of his representatives on a non-confidential basis prior to disclosure by HomeStreet under the terms of this Agreement; or (e) is developed primarily through the efforts or work product of Executive.

 

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After the termination of his services or employment agreement, Recipient agrees not to disclose any Confidential Information to any third party, unless such third party is a fiduciary, affiliate or HomeStreet vendor and such vendor and HomeStreet have signed a similar confidentiality agreement, or such disclosure of Confidential Information is required by lawful judicial or governmental order. Recipient agrees to give HomeStreet reasonable notice in writing in advance of releasing Confidential Information pursuant to any judicial or governmental order. Recipient additionally agrees to implement and maintain at all times reasonably appropriate procedures and

 

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controls to ensure at all times the security and confidentiality of all of HomeStreet’s Confidential Information, to protect against any anticipated threats or hazards to the security or integrity of such information; and to protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to Home Street or any customer of HomeStreet. Recipient agrees to notify HomeStreet of any known security breach, any known unauthorized release of Confidential Information, or any known unauthorized attempt to access Confidential Information of which it becomes aware within a reasonable time of the occurrence of such event. Such notice will include, at a minimum, the date and time of any such event, the nature and extent of Confidential Information involved in any such event, and the corrective measures taken by Recipient in response to any such event.

 

4. All Confidential Information is and shall remain the property of HomeStreet. No license or conveyance of any right is granted or implied by the distribution of any Confidential Information to Recipient. Recipient agrees not to use, duplicate, or reproduce in any way any Confidential Information for Recipient’s own benefit or financial gain, or for any third party’s benefit or financial gain except to the extent reasonably necessary to analyze and prepare a business proposal to HomeStreet, in connection with rendering services to HomeStreet and to prepare and maintain his internal files in the ordinary course of its business. All documents (originals and copies, including electronic versions) containing Confidential Information shall either be destroyed or disposed of in a manner consistent with the Fair and Accurate Credit Transactions Act of 2003 or, if directed by HomeStreet, returned to HomeStreet upon termination of the rendering of services to HomeStreet by Recipient. Recipient agrees that HomeStreet may take reasonable actions as deemed appropriate by HomeStreet to confirm that Recipient has satisfied these obligations. It is understood that Recipient may retain one archival copy of such information for his internal files except for Bank customer loan files and documents containing private customer information.

 

5. By making any Confidential Information available to Recipient, HomeStreet makes no representation, warranty or guarantee, either express or implied, as to the accuracy or completeness of any Confidential Information or to the format in which such Confidential Information is provided to Recipient. Except as otherwise provided in any engagement letter, HomeStreet shall not be liable to any party for damages, of whatever kind, as a result of Recipient’s reliance on any Confidential Information or any format in which Confidential Information is made available to Recipient.

 

6. Recipient acknowledges that due to the highly sensitive nature of the Confidential Information, Recipient will be liable to HomeStreet for all losses suffered by HomeStreet as a result of Recipient’s intentional and material breach of this Agreement. In addition to any other remedies available to HomeStreet, Recipient agrees that, if Recipient breaches this Agreement, HomeStreet may seek injunctive relief against Recipient to stop any such breach.

 

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7. If either Party to this Agreement commences legal action to enforce any rights arising out of or relating to this Agreement, the prevailing Party in any such action shall be entitled to recover reasonable attorneys’ fees and costs, including fees and costs on appeal. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Washington and the venue for any legal action shall be Seattle, Washington.

 

8. If Recipient and HomeStreet have entered into any other agreement, the terms of this Agreement shall, by this reference, be incorporated into and made a part of such other agreement, except to the extent otherwise specifically provided in such other agreement. The terms of this Agreement shall survive the termination of rendering of services to HomeStreet by Recipient for a period of ten years.

This Agreement is dated this      day of              , 2011.

 

HomeStreet, Inc.

HomeStreet Bank

     Executive
    

 

       Mark Mason
By:  

 

     By:   

 

Title:  

 

       

 

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Exhibit 10.10

EXECUTIVE EMPLOYMENT AGREEMENT

between

HOMESTREET, INC. and HOMESTREET BANK

and

David Hooston


E XECUTIVE E MPLOYMENT A GREEMENT

This executive employment agreement (“ Agreement ”), effective May 3, 2011 (the “Effective Date”), is between HomeStreet, Inc., HomeStreet Bank (“Bank”) and any of their affiliate or subsidiary organizations and their successors and assigns (collectively, the “ Company ”) and David Hooston (“ Executive ”) (collectively, the “ Parties ”). In consideration of the foregoing promises and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Company and Executive hereby agree to enter into an employment relationship in accordance with the terms and conditions set forth below.

 

I. EMPLOYMENT

 

  A. Position and Duties

The Company will employ Executive, and Executive will accept employment as the Executive Vice-President and Chief Financial Officer of HomeStreet Bank and HomeStreet, Inc. and report to the Chief Executive Officer of HomeStreet Bank and HomeStreet, Inc. Executive will perform the duties of Executive Vice-President and Chief Financial Officer of each organization as designated above and will devote his full time and attention to achieving the purposes and discharging the responsibilities afforded the positions, and such other duties as may be assigned from time to time by the Company, which relate to the business of the Company and are reasonably consistent with Executive’s position. During Executive’s employment, Executive will not engage in any business activity that, in the reasonable judgment of the Chief Executive Officer, conflicts with the duties of Executive under this Agreement, whether or not such activity is pursued for gain, profit or other advantage. Executive will comply with Company policies and procedures and all applicable laws and regulations. Executive shall be employed at the Company headquarters in Seattle, Washington.

 

  B. Term of Agreement

This Agreement shall commence on the Effective Date and continue until the earlier of (1) the Federal Deposit Insurance Corporation’s removal of the Cease and Desist Order on the Company as a result of completion of an initial public offering of stock, an increase in capital or other circumstances, or (2) until terminated as set forth in Section III, which ever occurs first. If this Agreement is terminated under the circumstances identified as (1) in this section, the parties anticipate that this Agreement will be immediately replaced with a different employment agreement. Notwithstanding any termination of Executive’s employment, the Executive shall remain subject to the restrictions in Section IV of this Agreement.

 

II. COMPENSATION AND BENEFITS

The Company agrees to pay to Executive and Executive agrees to accept in exchange for the services rendered hereunder the following compensation and benefits:

 

  A. Annual Salary

Executive’s compensation shall consist of an annual base salary (the “ Salary ”) of no less than $300,000, payable in accordance with the payroll practices of the Company. The Salary

 

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shall be reviewed, and may be subject to increase, by the Chief Executive Officer or the Board of Directors of the Company (or the Compensation Committee thereof) at least annually while Executive is employed hereunder. Executive’s Salary may decrease only with his agreement.

 

  B. Annual Incentive Payment

The Company shall establish a performance-based, target incentive bonus under the terms of the Company’s incentive bonus compensation plan pursuant to which Executive may receive, based on completion of objectives no less than 40% of Executive’s Salary (or such higher amount as the Chief Executive Officer, Board or its Compensation Committee may approve) (“ Target Incentive Payment ”), less required withholding and authorized deductions. The Chief Executive Officer or the Board or its Compensation Committee and Executive shall establish the mutually acceptable performance objectives and related payout ratios no later than May 31 of each fiscal year. The Chief Executive Officer, the Board or the Board’s Compensation Committee shall reasonably determine the extent to which the Target Incentive Payment has been earned and shall ensure that the Target Incentive Payment complies with Sound Incentive Compensation Planning Guidelines and other restrictions applicable to financial institutions.

 

  C. Equity Compensation

Executive has been awarded stock options and restricted stock consistent with Company benefits plans so that Executive holds equity rights to approximately 1.0% of the outstanding shares of HomeStreet, Inc. stock (35,000 shares). Executive’s rights with respect to such stock options and restricted stock shall continue, subject to the terms of any applicable grant or plan. Executive may be awarded additional stock options or restricted or other equity compensation at the discretion of the Compensation Committee of the Board and consistent with any equity plans or agreements.

 

  D. Benefits

Executive shall be eligible to participate, subject to and in accordance with applicable eligibility requirements, in such benefit programs as are provided to the Company’s executives, which may include, at a minimum, vacation, sick leave, basic health, life and disability insurance.

 

  E. Business Expenses

Executive shall be reimbursed for all reasonable out-of-pocket expenses actually incurred by Executive in the conduct of the business of the Company, provided that Executive submits substantiation of all such expenses to the Company on a timely basis in accordance with standard policies of the Company, effective as such on the date such expenses are incurred.

 

  F. Allocation of Payments

HomeStreet, Inc. and HomeStreet Bank shall allocate between them the obligation to make required payments hereunder. Such allocation shall not affect the joint and several

 

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liabilities of HomeStreet, Inc. and HomeStreet Bank under this Agreement as provided in Section VI.D.

 

III. TERMINATION

 

  A. Employment Termination

This Agreement and Executive’s employment may be terminated by the Company for Cause (as defined below), or without Cause or by Executive for Good Reason (as defined below) or without Good Reason or upon the Executive’s death or Total Disability. Except where a specific notice procedure is described herein, the Company or Executive shall provide the other party at least sixty (60) days notice of any termination (or 60 days pay in lieu of notice). Upon any termination of employment, Executive shall be entitled to receive payments or benefits as described in this Agreement.

 

  B. Automatic Termination on Death or Total Disability

This Agreement and Executive’s employment hereunder shall terminate automatically upon the death or Total Disability of Executive. “ Total Disability ” shall have the same meaning as defined in the Company’s long-term disability plan or policy. Termination hereunder shall be deemed to be effective (a) upon Executive’s death or (b) immediately upon the sooner to occur of a determination by the Company’s long-term disability insurance carrier or Executive’s primary care physician that Executive is disabled and eligible for long-term disability benefits. Executive shall receive the following benefits on termination of employment for Death or Total Disability:

(1) Executive’s earned but unpaid Salary through the effective date of the termination;

(2) Any earned but unpaid incentive compensation under the terms of any applicable incentive compensation plan, including unpaid incentive compensation earned for the previous year but not yet paid and any pro rata incentive compensation earned for the year in which termination occurs;

(3) Accrued but unused vacation pay consistent with the Company vacation policy;

(4) Reimbursable business expenses for activities prior to the effective date of termination;

(5) Executive’s vested stock options or equity grants shall remain exercisable for one year after Death or Total Disability consistent with the terms of the applicable plan;

(6) Any severance pay for which Executive may be eligible under the terms of the Company’s nondiscriminatory severance plan. Any payout of severance pay hereunder may be subject to regulatory approval (which the Company shall use its best efforts to obtain) or non-objection.

 

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(7) In the event of Total Disability, in order to receive the benefits described herein that Executive is not otherwise entitled to receive, no later than sixty (60) days after termination of employment, the Company and Executive must execute a release agreement (“Release”) substantially in the form of Exhibit ‘A’ attached hereto in order to receive the severance benefits. The Release will be effective upon completion of the payments due to Executive. Executive must also remain in substantial and continued compliance with the terms of Section IV of this Agreement.

(8) In the event of death, all payments shall be made to the person or persons identified as the Executive’s beneficiary for any Company-sponsored life insurance.

 

  C. Termination Without Cause or Executive Resigns for Good Reason Immediately Before or Following a Change of Control

If Executive’s employment terminates by the Company without Cause or by Executive for Good Reason within one year following or during the ninety (90) days immediately preceding a Change of Control (as defined below), then Executive shall be entitled to receive the following termination payments provided the Company obtains approval from applicable regulatory authorities for such payments (which approval the Company shall use its best efforts to obtain):

(1) As severance pay, one times Executive’s annual Salary at the rate in effect immediately prior to termination, paid in a lump sum within ten (10) days following the day Executive signs the Release agreement identified above, provided, however, the payment may be delayed as required to avoid additional tax for a “specified employee” under Section 409A as described in Section VI.G;

(2) Executive’s earned but unpaid Salary through the effective date of termination, paid on the next regularly scheduled payroll date following the effective date of termination;

(3) Any earned but unpaid incentive compensation under the terms of any applicable incentive compensation plan, including unpaid incentive compensation earned in the previous year but not yet paid and pro rata incentive compensation earned for the year in which termination occurs;

(4) The value of Executive’s accrued but unused vacation, consistent with the Company’s vacation policy applicable to all employees;

(5) Reimbursement of all reasonable business expenses incurred for activities prior to the effective date of termination;

(6) All vested stock options and other equity grants shall remain exercisable consistent with any such grant or applicable plan;

(7) In order to receive the benefits described herein that Executive is not otherwise entitled to receive, no later than sixty (60) days after termination of employment, the Company and Executive must execute a Release agreement substantially in the form of Exhibit ‘A’ attached hereto in order to receive the severance benefits. The Release will be effective upon

 

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completion of the payments due to Executive. Executive must also remain in substantial and continued compliance with the terms of Section IV of this Agreement.

(8) Any post-employment payment of benefits may be dependent upon approval or non-objection by one or more regulatory authorities. The Company will use its best efforts to obtain such approval or non-objection in a timely manner, but no payment shall be made without the required approval.

 

  D. Termination with Cause or Resignation Without Good Reason

If the Company terminates Executive’s employment with Cause or Executive resigns without Good Reason, the Company shall provide Executive compensation and benefits as follows:

(1) Payment of Executive’s earned but unpaid Salary through the effective date of termination.

(2) Payment of the value of Executive’s earned but unused vacation consistent with Company policy that applies to all employees.

(3) Reimbursement of all reasonable business expenses incurred for activities prior to the Effective Date of termination.

(4) Any vested equity grants shall remain exercisable to the extent provided under the terms of any grant or plan.

 

  E. Termination Without Cause or Executive Resigns for Good Reason

If the Company terminates Executive’s employment without Cause or Executive terminates his employment for Good Reason unrelated to a Change of Control, then Executive shall be entitled to receive the following termination payments provided the Company obtains approval from the applicable regulatory authorities for such payments (which approval the Company shall seek):

(1) Any severance pay for which Executive may be eligible under the terms of a nondiscriminatory severance plan approved by federal or state regulations. Any payout of severance pay hereunder may be subject to regulatory approval (which the Company shall seek) or non-objection;

(2) Executive’s earned but unpaid Salary through the effective date of termination, paid on the next regularly scheduled payroll date following the date on which Executive’s employment terminated;

(3) Any earned but unpaid incentive compensation under the terms of any applicable incentive compensation plan, including unpaid incentive compensation earned in the previous year but not yet paid and pro rata incentive compensation earned for the year to which termination occurs;

 

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(4) The value of Executive’s accrued but unused vacation, consistent with the Company’s vacation policy applicable to all employees;

(5) Reimbursement of all reasonable business expenses incurred for activities prior to the effective date of termination;

(6) All vested stock options and other equity grants shall remain exercisable consistent with any such grant or applicable plan;

(7) In order to receive the benefits described herein that Executive is not otherwise entitled to receive, no later than sixty (60) days after termination of employment, the Company and Executive must execute a Release agreement substantially in the form of Exhibit ‘A’ attached hereto in order to receive the severance benefits. The Release will be effective upon completion of the payments due to Executive. Executive must also remain in substantial and continued compliance with the terms of Section IV of this Agreement.

(8) Any post-employment payment of benefits may be subject to approval or non objection by one or more regulatory authorities. The Company will use its best efforts to obtain such approval or non-objection in a timely manner, but no payment shall be made without the required approval.

 

  F. Definitions of “Cause”, “Good Reason” and “Change of Control”

 

  1. Cause

Wherever reference is made in this Agreement to termination being with or without Cause, “ Cause ” shall mean the occurrence of one or more of the following events:

(a) the willful and continued failure of the Executive to perform his duties;

(b) the willful engaging by the Executive in illegal conduct or gross misconduct which is materially injurious to the Company;

(c) the Executive’s conviction or plea of guilty or nolo contendere to the charge of commission of a felony; or

(d) the Executive’s breach of a regulatory rule that materially and adversely affects the Executive’s ability to perform the Executive’s principal employment duties for the Company and its affiliates.

(e) Prior to a termination for Cause, Employer shall provide Executive 30-day prior written notice of the claimed basis for the possible “Cause” termination and an opportunity for Executive to cure any defect or deficiency on his performance. Upon request, Executive shall be entitled to a hearing before the Board of Directors with representation by counsel. “Cause” shall be established by affirmative vote of at least two-thirds of the entire Board of each employer in order to determine “Cause.”

 

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  2. Good Reason

For the purposes of this Agreement, “ Good Reason ” shall mean that Executive, without his consent, has experienced one of the following events or circumstances:

(a) the assignment to the Executive of any duties materially diminished from those in effect immediately prior to such assignment;

(b) a change in the Executive’s authority, duties or responsibilities which represents a material adverse change from those in effect immediately prior to such change;

(c) a material decrease in the Executive’s annual Salary without his prior agreement;

(d) solely following a Change of Control, relocation of the Executive’s principal place of employment to a location that increases the Executive’s commute from his primary residence by more than 30 miles one way; or

(e) any other action or inaction that constitutes a material breach of the terms of the Agreement by the Company.

(f) To comply with Section 409 A of the Code, the Executive must give written notice of termination of employment within 60 days after the occurrence of the circumstances constituting Good Reason, and the Company will have 30 days to cure the circumstances constituting Good Reason, and the Executive’s “separation from service” must occur no later than six months following the initial existence of the circumstances giving rise to Good Reason.

Notwithstanding the foregoing, termination of employment by Executive will not be for Good Reason unless (i) Executive notifies the Company in writing of the existence of the condition which Executive believes constitutes Good Reason within sixty (60) days of the initial existence of such condition (which notice specifically identifies such condition), and (ii) the Company fails to remedy such condition within thirty (30) days after the date on which it receives such notice (the “Remedial Period”) whereupon Executive’s employment shall be deemed to be terminated for Good Reason upon failure of the Company to remedy. If Company attempts to cure, or disputes the existence of Good Reason, it shall provide documentary evidence thereof to Executive within the Remedial Period. Executive may elect to remain employed by Company and dispute any response by Company during the Remedial Period, without prejudice to the claim of Good Reason, by invoking the provisions of Article VI.I. If Executive remains employed and invokes the dispute resolution process, he shall in any event complete his resignation within two years of the end of the Remedial Period. If Executive terminates employment before the expiration of the Remedial Period or after the Company remedies the condition (even if within the end of the Remedial Period), then Executive’s termination will not be considered to be for Good Reason.

 

  3. Change of Control

For the purposes of this Agreement, “ Change of Control ” means:

 

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(a) one person or entity acquiring or otherwise becoming the owner of twenty-five percent or more of HomeStreet Inc.’s or HomeStreet Bank’s outstanding shares in any class of shares;

(b) dissolution or sale of fifty percent or more in value of the assets of either HomeStreet, Inc. or HomeStreet Bank; or

(c) a change “in the ownership or effective control” or “in the ownership of a substantial portion of the assets” of either HomeStreet, Inc. or HomeStreet Bank, within the meaning of Section 280G of the Internal Revenue Code.

Sale of stock through an initial public offering shall not constitute a “Change of Control” under this Agreement.

 

IV. CONFIDENTIALITY; NON-SOLICITATION;

 

  A. Confidentiality Agreement

Executive recognizes that the Company’s business and continued success depend upon the use and protection of confidential information and proprietary information, and therefore Executive is subject to, and this Agreement is conditioned on agreement to, the terms of the nondisclosure agreement (the “ Confidentiality Agreement ”) substantially in the form attached hereto as Exhibit B entered into by Executive and the terms of the Confidentiality Agreement shall survive the termination of Executive’s employment with the Company or Successor Employer for a period often (10) years from termination unless otherwise required by law.

 

  B. Non-Solicitation Agreement

(1) During Executive’s employment with the Company and/or a Successor Employer and for six months after the termination of such employment, Executive will not induce, or attempt to induce, any employee, executive, Board member or independent contractor of the Company and/or a Successor Employer to cease such employment or relationship to engage in, be employed by, perform services for, participate in the ownership, management, control or operation of, or otherwise be connected with, either directly or indirectly, any Competing Business (defined below).

(2) During Executive’s employment with the Company and/or a Successor Employer and for six months after the termination of such employment, Executive will not, directly or indirectly solicit, divert, appropriate to or accept on behalf of any Competing Business, any business or account from any customer of the Company or entity about whom Executive has acquired confidential information in the course of his employment.

 

  C. Competing Business

“Competing Business” means any bank or thrift with an office or branch in Washington, Oregon, Idaho or Hawaii.

 

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V. ASSIGNMENT

This Agreement is personal to Executive and shall not be assignable by Executive. The Company may assign its rights hereunder to (a) any other corporation resulting from any merger, consolidation or other reorganization to which the Company is a party; (b) any other corporation, partnership, association or other person to which the Company may transfer all or substantially all of the assets and business of the Company existing at such time; or (c) any subsidiary, parent or other affiliate of the Company (“ Successor Employer ”). All of the terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns.

 

VI. MISCELLANEOUS

 

  A. Amendments

No amendment, modification, waiver, termination or discharge of any provision of this Agreement, or consent to any departure therefrom by either party hereto, shall in any event be effective unless the same shall be in writing, specifically identifying this Agreement and the provision intended to be amended, modified, waived, terminated or discharged and signed by the Company and Executive, and each such amendment, modification, waiver, termination or discharge shall be effective only in the specific instance and for the specific purpose for which given. No provision of this Agreement shall be varied, contradicted or explained by any oral agreement, course of dealing or performance or any other matter not set forth in an agreement in writing and signed by the Company and Executive.

 

  B. Applicable Law

This Agreement shall in all respects, including all matters of construction, validity and performance, be governed by, and construed and enforced in accordance with, the laws of the State of Washington, without regard to any rules governing conflicts of laws.

 

  C. Entire Agreement

This Agreement, on and as of the date hereof, constitutes the entire agreement between the Company and Executive with respect to the subject matter hereof. To the extent any agreement, plan or policy of the Company is inconsistent with this Agreement, the provisions of this Agreement shall prevail and control and such other agreement, plan or policy will be construed by Company to be consistent with this Agreement and, if that is not possible, the other agreement, plan or policy shall be modified as to Executive to be in conformance with this Agreement. It is the intent of the parties that Executive shall, to the extent allowed by law, enjoy the full benefit of all obligations of Company set forth herein.

 

  D. Severability

If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any regulatory action, applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability, regardless of the reason therefor shall not affect any other provision of this Agreement or any action in any other jurisdiction, or the obligation of any other

 

9


entity to this Agreement. If either entity that is a party to this Agreement is determined by any regulatory authority or court not to be able to perform its obligation(s) to Executive or not to have the authority to enter into this Agreement, then the other entity shall be liable therefor.

The obligations to Executive herein are the joint and several obligations of HomeStreet Inc. and HomeStreet Bank and there shall be joint and several liability of those entities in the event of any default to Executive by either for any reason.

 

  E. Legal Limitations

Notwithstanding any provision to the contrary in this Agreement, no payment of any type or amount of compensation or benefits shall be made or owed by Company to Executive pursuant to this Agreement or otherwise if payment of such type or amount is prohibited by, is not permitted under, or has not received any required approval under, any applicable governmental statute, regulation, rule, order (including any cease and desist order), determination, opinion, or similar provision whether now in existence or hereafter adopted or imposed, including without limitation, by or under (i) any provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) and regulations promulgated thereunder, (ii) any governmental provisions relating to indemnification by Company or an affiliate, including without limitation any applicable prohibitions or restrictions on depository institutions and their affiliates set forth in 12 USC 1828(k) or in 12 CFR Part 359, or (iii) any governmental provisions relating to payment of golden parachutes or similar payments, including without limitation any prohibitions or restrictions on such payments by troubled institutions and companies and their affiliates set forth in 12 USC 1828(k) or in 12 CFR Part 359. If any payment to Executive is prohibited or otherwise restricted, (x)  such payment shall, to the extent allowed by law, order or regulatory determination and not objected to by applicable banking or other regulatory agencies, be reinstated as an obligation of the obligor(s) without further action immediately upon the cessation of such prohibition or restriction, and (y)  the Company shall use its best efforts to secure the consent, if any shall be required, of the FDIC or other applicable banking or other regulatory agencies to make such payments in the highest amount permissible, up to the amount provided for in this Agreement.

If any payment made to Executive hereunder or under any prior employment agreement or arrangement is required under any applicable governmental provision (including, without limitation, Dodd-Frank and regulations promulgated thereunder) to be paid back to Company, the Executive shall upon written demand from Company promptly pay such amount back to Company.

 

  F. Code Section 280G

Notwithstanding anything in this Agreement to the contrary, if Executive becomes entitled to receive or receives any payment or benefit under this Agreement or under any other plan, agreement or arrangement with the Company, any person whose actions result in a Change of Control or any person affiliated with the Company or such person (all such payments and benefits being referred to herein as the “Total Payments”) and it is determined that any of the Total Payments will be subject to any excise tax pursuant to Code Section 4999, or any similar or successor provision (the “Excise Tax”), the Company shall pay to Executive an additional

 

10


amount so that Executive’s net payment shall not be diminished in any respect by the additional Excise Tax.

 

  G. Code Section 409A

With respect to any payments or benefits hereunder that are subject to Code Section 409A and any official guidance and regulations issued thereunder (together “ Code Section 409A ”) and that are payable on account of Executive’s termination of employment, such payments shall only be made if such termination of employment constitutes a “separation from service” within the meaning of Code Section 409A. The Company may adjust any payment hereunder to avoid liability or obligation under Code Section 409A but such adjustments shall ensure that the payments are made in a manner that is as close to the terms of this Agreement as possible. Notwithstanding anything to the contrary contained in this Agreement, all reimbursements for costs and expenses under this Agreement will be paid in no event later than the end of the calendar year following the calendar year in which Executive incurs such expense. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (ii) the amount of expenses eligible for reimbursements or in-kind benefits provided during any taxable year shall not affect the expenses eligible for reimbursement or in-kind benefits to be provided in any other taxable year.

The Company makes no representations or warranties to Executive with respect to any tax, economic or legal consequences of this Agreement or any payments or other benefits provided hereunder, including without limitation under Code Section 409A, and no provision of the Agreement shall be interpreted or construed to transfer any liability for failure to comply with Code Section 409A from Executive or any other individual to the Company or any of its affiliates. Executive, by executing this Agreement, shall be deemed to have waived any claim against the Company and its affiliates with respect to any such tax, economic or legal consequences of this Agreement or any payments or other benefits provided hereunder. However, the parties intend that this Agreement and the payments and other benefits provided hereunder be exempt from the requirements of Code Section 409A to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-l(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-l(b)(9)(iii), or otherwise. To the extent Code Section 409A is applicable to this Agreement (and such payments and benefits), the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Code Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. In addition, if Executive is a “specified employee,” within the meaning of Code Section 409A, then to the extent necessary to avoid subjecting Executive to the imposition of any additional tax under Code Section 409A, amounts that would otherwise be payable under this Agreement during the six (6) month period immediately following Executive’s “separation from service” for reasons other than Executive’s death (except those payments that may be exempt from 409 A by virtue of the short-term deferral exception to 409A) shall not be paid to Executive during such period, but shall instead be

 

11


accumulated and paid to Executive in a lump sum on the first business day after the date that is six (6) months following Executive’s separation from service.

 

  H. No Mitigation/Offset

In order to receive severance benefits provided in this Agreement, Executive shall not be required to engage in mitigation activities or seek alternative employment, nor would any other compensation received by Executive serve as an offset agreement to the severance or other benefits provided in this Agreement.

 

  I. Attorneys Fees

The Company shall reimburse Executive for up to $1,500 in legal fees incurred for the negotiation of this agreement.

 

  J. Disputes

(1) In the event of a dispute or claim between Executive and the Company related to Employee’s employment or termination of employment, all such disputes or claims will be resolved exclusively by confidential arbitration in accordance with the Employment Arbitration Rules of the American Arbitration Association (the “AAA”). This means that the parties agree to waive their rights to have such disputes or claims decided in court by a jury. Instead, such disputes or claims will be resolved by an impartial AAA arbitrator (or other mutually agreeable person) whose decision will be final.

(2) The only disputes or claims that are not subject to arbitration are any claims by Executive for workers’ compensation or unemployment benefits, and any claim by Executive for benefits under an employee benefit plan that provides its own arbitration procedure. Also, Executive and Employer may seek injunctive relief in court in appropriate circumstances.

(3) The arbitration procedure will afford Executive and Employer the full range of statutory remedies, based on the statutes of limitations that would apply to the specific claims asserted as if they were asserted in court. Employer will pay all costs that are unique to arbitration, except that the party who initiates arbitration will pay the filing fee charged by AAA. Executive and Employer shall be entitled to discovery sufficient to adequately arbitrate their claims, including access to essential documents and witnesses, as determined by the arbitrator and subject to limited judicial review. In order for any judicial review of the arbitrator’s decision to be successfully accomplished, the arbitrator will issue a written decision that will decide all issues submitted and will reveal the essential findings and conclusions on which the award is based.

 

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IN WITNESS WHEREOF , the parties have executed and entered into this Agreement effective on the date first set forth above.

 

DAVID HOOSTON

LOGO

Date

  May 27, 2011
HOMESTREET, INC.

By

 

/s/ Gerhardt Morrison

Its

  HRGC Chair

Date

  May 26, 2011
HOMESTREET, BANK.

By

 

/s/ Cynthia P. Sonstelie

Its

  HRCG Chair

Date

  6/1/11

 

13


EXHIBIT A

WAIVER AND RELEASE

 

14


WAIVER AND RELEASE

PLEASE READ THIS WAIVER AND RELEASE CAREFULLY. IT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS UP TO AND INCLUDING THE DATE THAT THIS AGREEMENT AND RELEASE IS EXECUTED BY THE COMPANY AND THE EXECUTIVE.

For and in consideration of the payments and other benefits due to [David Hooston] (the “ Executive ”) pursuant to the Employment Agreement (the “ Employment Agreement”) entered into as              , 2011 (the “ Effective Date ”), by and between HomeStreet, Inc., and HomeStreet Bank, and their respective subsidiaries (together the “ Company ”) and the Executive, and for other good and valuable consideration, including the mutual promises made herein, the Executive and the Company irrevocably and unconditionally release and forever discharge each other and each and all of their present and former officers, agents, directors, managers, employees, representatives, affiliates, shareholders, members, and each of their successors and assigns, and all persons acting by, through, under or in concert with it, and in each case individually and in their official capacities (collectively, the “ Released Parties ”), from any and all charges, complaints, grievances, claims and liabilities of any kind or nature whatsoever, known or unknown, suspected or unsuspected (hereinafter referred to as “claim” or “claims”) which either party at any time heretofore had or claimed to have or which either party may have or claim to have regarding events that have occurred up to and including the date of the execution of this Release, including, without limitation, any and all claims related, in any manner, to the Executive’s employment or the termination thereof In particular, each party understands and agrees that the parties’ release includes, without limitation, all matters arising under any federal, state, or local law, including civil rights laws and regulations prohibiting employment discrimination on the basis of race, color, religion, age, sex, national origin, ancestry, disability, medical condition, veteran status, marital status and sexual orientation, or any other characteristic protected by federal, state or local law including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, the Older Workers Benefit Protection Act of 1990, as amended, the Americans with Disabilities Act, the Rehabilitation Act, the Occupational Safety and Health Act, the Family and Medical Leave Act, the Employee Retirement Income Security Act of 1974, as amended (except as to vested retirement benefits, if any), the Worker Adjustment and Retraining Notification Act, the Washington Law Against Discrimination, RCW 49.60, The Washington Wage Rebate Act, RCW 49.52, the Washington Unpaid Wages Act, RCW 49.48, federal and state wage and hour laws, or any common law, public policy, contract (whether oral or written, express or implied) or tort law, or any other federal, state or local law, regulation, ordinance or rule having any bearing whatsoever.

The Executive must sign and return this Release by personal or guaranteed overnight delivery to the attention of the Human Resources Director, 1800 Two Union square, 601 Union Street, Seattle WA 98101 no earlier than the Date of Termination and no later than «Sign_date», which is the 60th day following the Date of Termination. The Executive can revoke this Release within seven days after executing the Release by sending written notification to the Company of Executive’s intent to revoke the Release, and this Release shall not become effective or enforceable until such revocation period has expired. The Executive’s written notification of the intent to revoke the Release must be sent to the

 

1


Human Resources Director, 1900 Two Union Square, 601 Union Street, Seattle WA 98101 by personal delivery or guaranteed overnight delivery, within seven days after the Executive executed the Release.

The Executive and Company acknowledge that they may have sustained losses that are currently unknown or unsuspected, and that such damages or losses could give rise to additional causes of action, claims, demands and debts in the future. Nevertheless, the Executive and Company each acknowledge that this Release has been agreed upon in light of this realization and, being fully aware of this situation, the Executive and Company nevertheless intend to release the each other from any and all such unknown claims, including damages which are unknown or unanticipated. The parties understand the word “claims” to include all actions, claims, and grievances, whether actual or potential, known or unknown, and specifically but not exclusively all claims arising out of the Executive’s employment and the termination thereof. All such “claims” (including related attorneys’ fees and costs) are forever barred by this Release and without regard to whether those claims are based on any alleged breach of a duty arising in a statute, contract, or tort; any alleged unlawful act, including, without limitation, age discrimination; any other claim or cause of action; and regardless of the forum in which it might be brought.

Notwithstanding anything else herein to the contrary, this Release shall not affect, and the Executive and the Company, as applicable, do not waive or release: (i) rights to indemnification the Executive may have under (A) applicable law, (B) any other agreement between the Executive and a Released Party and (C) as an insured under any director’s and officer’s liability or other insurance policy now or previously in force; (ii) any right the Executive may have to obtain contribution in the event of the entry of judgment against the Executive as a result of any act or failure to act for which both the Executive and any of the Company or its affiliates or subsidiaries (collectively, the “ Affiliated Entities ”) are or may be jointly responsible; (iii) the Executive’s rights to benefits and payments under any stock options, restricted stock, restricted stock units or other incentive plans or under any retirement plan, welfare benefit plan or other benefit or deferred compensation plan, all of which shall remain in effect in accordance with the terms and provisions of such benefit and/or incentive plans and any agreements under which such stock options, restricted shares, restricted stock units or other awards or incentives were granted or benefits were made available; (iv) the Executive’s rights as a stockholder of any of the Affiliated Entities; (v) any obligations of the Affiliated Entities under the Employment Agreement (vi) any clawback required pursuant to restrictions on compensation for employees of financial institutions; (vii), any claims brought by the Federal Deposit Insurance Corporation as receiver or conservator of the Bank that have not been released or waived by the Company; (viii) claims for improper self-dealing; improper distributions and other limitations imposed by RCW 23B.08.320; (ix) any finally and judicially determined, knowing violation of the law by Executive that has a material and adverse impact on the Company; (x) any fraud or other intentional misconduct by Executive that has a material and adverse impact on the Company; (xi) any material violation of any confidentiality, nonsolicitation or noncompetition agreement or provision executed by Executive; or (xii) any other claim not subject to release by operation of law.

 

2


The Executive waives all rights under section 1542 of the Civil Code of the State of California or any comparable or analogous Federal law or any other state law. Section 1542 provides as follows:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

The Executive acknowledges and agrees that the Executive: (a) has been given at least [21/45] days within which to consider this Release and its ramifications and discuss the terms of this Release with the Company before executing it (and that any modification of this Release, whether material or immaterial, will not restart or change the original [21/45] day consideration period) and the Executive fully understands that by signing below the Executive is voluntarily giving up any right which the Executive may have to sue or bring any other claims against the Released Parties; (b) has been given seven days after returning the Release to the Company to revoke this Release; (c) has been advised to consult legal counsel regarding the terms of this Release; (d) has carefully read and fully understands all of the provisions of this Release; (e) knowingly and voluntarily agrees to all of the terms set forth in this Release; and (f) knowingly and voluntarily intends to be legally bound by the same. The Executive also understands that, notwithstanding anything in this Release to the contrary, nothing in this Release shall be construed to prohibit the Executive from (i) filing a charge or complaint with the Equal Employment Opportunity Commission or Washington State Human Rights Commission or any other federal, state or local administrative or regulatory agency, or (ii) participating in any investigation or proceedings conducted by the Equal Employment Opportunity Commission or any other federal, state or local administrative or regulatory agency; however, the Executive expressly waives the right to any relief of any kind in the event that the Equal Employment Opportunity Commission or Washington State Human Rights Commission or any other federal, state or local administrative or regulatory agency pursues any claim on the Executive’s behalf.

This Release is final and binding and may not be changed or modified except in a writing signed by both parties.

 

 

    

 

Date      [Name]

 

3


EXHIBIT B

EXECUTIVE CONFIDENTIALITY AGREEMENT

 

15


EXECUTIVE CONFIDENTIALITY AGREEMENT

This Confidentiality Agreement (“Agreement”) is between HomeStreet, Inc., HomeStreet Bank (“Bank”) and their affiliate or subsidiary organizations and their successors and assigns (collectively, the “ Company ” or “HomeStreet”) and David Hooston (“ Executive ” or “Recipient”) (collectively, the “ Parties ”).

Executive is currently employed as the Executive Vice-President and Chief Financial Officer of the Bank and HomeStreet, Inc. It is the intent of the Parties that this Agreement will become effective upon the termination of Executive’s services to the Company. By virtue of his position with the Company, Executive has access to Confidential Information (defined below). HomeStreet must have assurance from Recipient that all Confidential Information provided to Recipient is and remains confidential after termination of his services. Therefore, for valuable consideration, the receipt of which is acknowledged to be sufficient, Recipient and HomeStreet agree as follows:

 

1. “Confidential Information” means information concerning the business, operations, strategies, financial status, products, services, customer names, customer lists and customer information of HomeStreet, which is confidential or proprietary to HomeStreet.

 

2. Confidential Information does not include information that: (a) is or becomes generally available to the public through no fault or act of Recipient or any of his Representatives in violation of this Agreement; (b) is or becomes available to Recipient or his representatives on a non-confidential basis from a source other than HomeStreet not known to Recipient or such Representatives to be prohibited from disclosing such information by a contractual, legal or fiduciary obligation of confidentiality; (c) is independently developed by the Recipient or his representatives without use of or reliance on, either directly or indirectly, Confidential Information; or (d) was known to or in the possession of Recipient or one of his representatives on a non-confidential basis prior to disclosure by HomeStreet under the terms of this Agreement; or (e) is developed primarily through the efforts or work product of Executive.

 

3.

After the termination of his services or employment agreement, Recipient agrees not to disclose any Confidential Information to any third party, unless such third party is a fiduciary, affiliate or HomeStreet vendor and such vendor and HomeStreet have signed a similar confidentiality agreement, or such disclosure of Confidential Information is required by lawful judicial or governmental order. Recipient agrees to give HomeStreet reasonable notice in writing in advance of releasing Confidential Information pursuant to any judicial or governmental order. Recipient additionally agrees to implement and maintain at all times reasonably appropriate procedures and controls to ensure at all times the security and confidentiality of all of HomeStreet’s

 

1


 

Confidential Information, to protect against any anticipated threats or hazards to the security or integrity of such information; and to protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to Home Street or any customer of HomeStreet. Recipient agrees to notify HomeStreet of any known security breach, any known unauthorized release of Confidential Information, or any known unauthorized attempt to access Confidential Information of which it becomes aware within a reasonable time of the occurrence of such event. Such notice will include, at a minimum, the date and time of any such event, the nature and extent of Confidential Information involved in any such event, and the corrective measures taken by Recipient in response to any such event.

 

4. All Confidential Information is and shall remain the property of HomeStreet. No license or conveyance of any right is granted or implied by the distribution of any Confidential Information to Recipient. Recipient agrees not to use, duplicate, or reproduce in any way any Confidential Information for Recipient’s own benefit or financial gain, or for any third party’s benefit or financial gain except to the extent reasonably necessary to analyze and prepare a business proposal to HomeStreet, in connection with rendering services to HomeStreet and to prepare and maintain his internal files in the ordinary course of its business. All documents (originals and copies, including electronic versions) containing Confidential Information shall either be destroyed or disposed of in a manner consistent with the Fair and Accurate Credit Transactions Act of 2003 or, if directed by HomeStreet, returned to HomeStreet upon termination of the rendering of services to HomeStreet by Recipient. Recipient agrees that HomeStreet may take reasonable actions as deemed appropriate by HomeStreet to confirm that Recipient has satisfied these obligations. It is understood that Recipient may retain one archival copy of such information for his internal files except for Bank customer loan files and documents containing private customer information.

 

5. By making any Confidential Information available to Recipient, HomeStreet makes no representation, warranty or guarantee, either express or implied, as to the accuracy or completeness of any Confidential Information or to the format in which such Confidential Information is provided to Recipient. Except as otherwise provided in any engagement letter, HomeStreet shall not be liable to any party for damages, of whatever kind, as a result of Recipient’s reliance on any Confidential Information or any format in which Confidential Information is made available to Recipient.

 

6. Recipient acknowledges that due to the highly sensitive nature of the Confidential Information, Recipient will be liable to HomeStreet for all losses suffered by HomeStreet as a result of Recipient’s intentional and material breach of this Agreement. In addition to any other remedies available to HomeStreet, Recipient agrees that, if Recipient breaches this Agreement, HomeStreet may seek injunctive relief against Recipient to stop any such breach.

 

7.

If either Party to this Agreement commences legal action to enforce any rights arising out of or relating to this Agreement, the prevailing Party in any such action shall be

 

2


 

entitled to recover reasonable attorneys’ fees and costs, including fees and costs on appeal. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Washington and the venue for any legal action shall be Seattle, Washington.

 

8. If Recipient and HomeStreet have entered into any other agreement, the terms of this Agreement shall, by this reference, be incorporated into and made a part of such other agreement, except to the extent otherwise specifically provided in such other agreement. The terms of this Agreement shall survive the termination of rendering of services to HomeStreet by Recipient for a period of ten years.

This Agreement is dated this      day of              , 2011.

 

HomeStreet, Inc.       
HomeStreet Bank        Executive
        

 

         David Hooston
By:  

 

     By:  

 

Title:  

 

      

 

3

Exhibit 10.11

EXECUTIVE EMPLOYMENT AGREEMENT

between

HOMESTREET, INC. and HOMESTREET BANK

and

DAVID HOOSTON


E XECUTIVE E MPLOYMENT A GREEMENT

This executive employment agreement (“ Agreement ”), effective immediately after the Cease and Desist Order is lifted by the Federal Deposit Insurance Corporation (the “Effective Date” ), is between HomeStreet, Inc., HomeStreet Bank (“Bank”) and their affiliate or subsidiary organizations and their successors and assigns (collectively, the “ Company ”) and David Hooston (“ Executive ”) (collectively, the “ Parties ”). In consideration of the foregoing promises and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Company and Executive hereby agree to enter into an employment relationship in accordance with the terms and conditions set forth below.

 

I . EMPLOYMENT

 

  A. Position and Duties

The Company will employ Executive, and Executive will accept employment as the Executive Vice-President and Chief Financial Officer of HomeStreet Bank and HomeStreet, Inc. and report to the Chief Executive Officer of HomeStreet Bank and HomeStreet, Inc. Executive will perform the duties of Executive Vice-President and Chief Financial Officer and will devote his full time and attention to achieving the purposes and discharging the responsibilities afforded the positions, and such other duties as may be assigned from time to time by the Company, which relate to the business of the Company and are reasonably consistent with Executive’s position. During Executive’s employment, Executive will not engage in any business activity that, in the reasonable judgment of the Chief Executive Officer, conflicts with the duties of Executive under this Agreement, whether or not such activity is pursued for gain, profit or other advantage. Executive will comply with Company policies and procedures, and all applicable laws and regulations. Executive shall be employed at the Company headquarters in Seattle, Washington.

 

  B . Term of Agreement

This Agreement shall commence on the Effective Date and continue for an initial term of three (3) years unless sooner terminated as set forth in Section III. The Agreement shall automatically renew for successive one (1) year terms, unless either party provides the other with written notice of its intent not to renew no less than 180 days prior to the end of its term. Notwithstanding any termination of this Agreement or Executive’s employment, the Executive shall remain subject to the restrictions in Section IV of this Agreement.

 

II. COMPENSATION AND BENEFITS

The Company agrees to pay to Executive and Executive agrees to accept in exchange for the services rendered hereunder the following compensation and benefits:

 

  A. Annual Salary

Executive’s compensation shall consist of an annual base salary (the “ Salary ”) of no less than $300,000, payable in accordance with the payroll practices of the Company. The Salary shall be reviewed at least annually, and may be subject to increase, by the Chief Executive

 

1


Officer or the Board of Directors of the Company (or the Compensation Committee thereof) while Executive is employed hereunder. Executive’s Salary may decrease only with his agreement.

 

  B. Annual Incentive Payment

The Company shall establish a performance-based, target incentive bonus under the terms of the Company’s incentive bonus compensation plan pursuant to which Executive may receive, based on completion of objectives no less than 40% of Executive’s Salary (or such higher amount as the Chief Executive Officer or the Board or its Compensation Committee may approve) (“ Target Incentive Payment ”), less required withholding and authorized deductions. The Chief Executive Officer or the Board or its Compensation Committee and Executive shall establish the mutually acceptable performance objectives and related payout ratios no later than May 31 of each fiscal year. The Chief Executive Officer, Board, or the Board’s Compensation Committee, shall reasonably determine the extent to which the Target Incentive Payment has been earned and shall ensure that the Target Incentive Payment complies with Sound Incentive Compensation Planning Guidelines and other restrictions applicable to financial institutions.

 

  C. Equity Compensation

Executive has been awarded stock options and restricted stock consistent with Company benefits plans so that Executive holds equity rights to approximately 1.0% of the outstanding share of HomeStreet, Inc. stock (35,000 shares). For the purposes of this provision, these shares shall be referred to as Executive’s “initial executive award.” Executive’s rights with respect to such stock options and restricted stock shall continue, subject to the terms of any applicable grant or plan. In the event of an Initial Public Offering of stock in HomeStreet, Inc., HomeStreet, Inc. shall provide additional equity grants (which may be in the form of restricted stock or stock options) to Executive so that his percentage ownership in HomeStreet, Inc. following the Initial Public Offering remains equal to his ownership interest prior to the Initial Public Offering calculated by multiplying the percentage of HomeStreet, Inc.’s pre-offering common stock reflected by Executive’s initial executive award, by the number of shares of HomeStreet, Inc. common stock as measured immediately after the completion of the Initial Public Offering, and subtracting from that result the number of shares represented in the initial executive award. Three-Fourths of these awards (75%) will take the form of stock options, with an exercise price equal to the Initial Public Offering price or if issuance is delayed, then with an exercise price equal to the stock price on the day the options are issued; the remaining one-fourth (25%) will take the form of restricted stock awards. Stock options will vest ratably in thirds over each of the first three anniversaries of the closing of the Initial Public Offering. The restricted stock awards will vest upon the occurrence of certain events based upon an increase in the price of HomeStreet, Inc. common stock in comparison to the price at which the Initial Public Offering is consummated: one-third of the awards vest upon an increase in Company stock price of 25% from the Initial Public Offering price; an additional one-third vest upon an increase of 40% from the Initial Public Offering price; and the remaining one-third vest upon an increase of 50% from the Initial Public Offering price. Executive may be awarded additional stock options or restricted stock at the discretion of the Compensation Committee of the Board and consistent with any stock plans or agreements.

 

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  D. Benefits

Executive shall be eligible to participate, subject to and in accordance with applicable eligibility requirements, in such benefit programs as are provided to the Company’s executives, which may include, at a minimum, vacation, sick leave, basic health, life and disability insurance.

 

  E. Business Expenses

Executive shall be reimbursed for all reasonable out-of-pocket expenses actually incurred by Executive in the conduct of the business of the Company, provided that Executive submits substantiation of all such expenses to the Company on a timely basis in accordance with standard policies of the Company, effective as such on the date such expenses are incurred.

 

  F. Allocation of Payments

HomeStreet, Inc. and HomeStreet Bank shall from time to time allocate between them the obligation to make payments hereunder. Such allocation shall not affect the joint and several liability of HomeStreet, Inc. and HomeStreet Bank under this Agreement as provided in Section VI.D.

 

III. TERMINATION

 

  A. Employment Termination

This Agreement and Executive’s employment may be terminated by the Company for Cause (as defined below), or without Cause or by Executive for Good Reason (as defined below) or without Good Reason or upon the Executive’s death or Total Disability. Except where a specific notice procedure is described herein, the Company or Executive shall provide the other party at least sixty (60) days notice of any termination (or 60 days pay in lieu of notice). Upon any termination of employment, Executive shall be entitled to receive payments or benefits as described in this Agreement.

 

  B. Automatic Termination on Death or Total Disability

This Agreement and Executive’s employment hereunder shall terminate automatically upon the death or Total Disability of Executive. “ Total Disability ” shall have the same meaning as defined in the Company’s long-term disability plan or policy. Termination hereunder shall be deemed to be effective (a) upon Executive’s death or (b) immediately upon the sooner to occur of a determination by the Company’s long-term disability insurance carrier or Executive’s primary care physician that Executive is disabled and eligible for long-term disability benefits. Executive shall receive the following benefits on termination of employment for Death or Disability:

(1) Executive’s earned but unpaid Salary through the effective date of the termination;

 

3


(2) Any earned but unpaid incentive compensation, including incentive compensation earned in the previous year but not yet paid and pro rata incentive compensation earned for the year in which termination occurs;

(3) Accrued but unused vacation pay consistent with the Company vacation policy;

(4) Reimbursable business expenses for activities prior to the effective date of termination;

(5) Executive’s vested stock options and other equity grants shall remain exercisable for one year after Death or Total Disability consistent with the terms of the applicable plan;

(6) Any severance pay for which Executive may be eligible under the terms of the Company’s nondiscriminatory severance plan.

(7) In the event of Total Disability, provided that such payments do not result in a violation the non-discrimination rules under Section 105(h) of the Internal Revenue Code, Company shall pay to the applicable insurer the health care insurance premiums for Executive and his eligible dependents during the 18 months of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), provided Executive and his dependents elect COBRA continuation coverage;

(8) In the event of Total Disability, in order to receive the benefits described herein that Executive is not otherwise entitled to receive, no later than sixty (60) days after termination of employment, the Company and Executive must execute a release agreement (“Release”) substantially in the form of Exhibit ‘A’ attached hereto in order to receive the severance benefits. The Release will be effective upon completion of the payments (other than the health insurance premiums described above) due to Executive. Executive must also remain in substantial and continued compliance with the terms of Section IV of this Agreement.

(9) In the event of death, all payments shall be made to the person or persons identified as the Executive’s beneficiary for any Company-sponsored life insurance.

 

  C. Termination Without Cause or Executive Resigns for Good Reason Immediately Before or Following a Change of Control

If Executive’s employment terminates by the Company without Cause or by Executive for Good Reason within one year following or during the ninety (90) days immediately preceding a Change of Control (as defined below), then Executive shall be entitled to receive the following termination payments:

(1) As severance pay, two times Executive’s annual Salary at the rate in effect immediately prior to termination, paid in a lump sum within ten (10) days following the day Executive signs the Release agreement identified above; provided, however, the payment may be delayed as required to avoid additional tax for a “specified employee” under Section 409A as described in Section VI.G;

 

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(2) Two times Executive’s Annual Incentive Payment, calculated as the greater of the Annual Incentive Payment earned by Executive in the year prior to termination or Executive’s Target Incentive Payment for the current year, paid in a lump sum within ten (10) days following the day Executive signs the release agreement identified above; provided, however, the payment may be delayed as required to avoid additional tax for a “ specified employee” under Section 409A as described in Section VI.G;

(3) Provided that such payments do not result in a violation of the non-discrimination rules under Section 105(h) of the Internal Revenue Code and provided Executive and his dependents timely (and properly) elect COBRA continuation coverage under the Company’s group health plan(s), Company shall pay to the applicable insurer Executive and Executive’s eligible dependents’ continuing health insurance coverage for the shorter of (i) eighteen (18) months; (ii) until such date as Executive is no longer entitled to continuation coverage pursuant to COBRA under the Company’s group health plan(s); or (iii) until such date as Executive obtains health coverage through another employer;

(4) Executive’s earned but unpaid Salary through the effective date of termination, paid on the next regularly scheduled payroll date following the effective date of termination:

(5) Any earned but unpaid incentive compensation, including incentive compensation earned in the prior year but not yet paid and pro rata incentive compensation earned for the year in which termination occurs;

(6) The value of Executive’s accrued but unused vacation, consistent with the Company’s vacation policy applicable to all employees;

(7) Reimbursement of all reasonable business expenses incurred for activities prior to the effective date of termination;

(8) Upon termination under circumstances identified in this section, all of Executive’s unvested stock options and other equity grants shall immediately vest and remain exercisable consistent with any stock option grant or plan;

(9) In order to receive the benefits described herein that Executive is not otherwise entitled to receive, no later than sixty (60) days after termination of employment, the Company and Executive must execute a Release agreement substantially in the form attached hereto as Exhibit ‘A’ in order to receive the severance benefits. The Release will be effective upon completion of all payments due to Executive other than the health insurance premiums described above. Executive must also remain in substantial and continued compliance with the terms of Section IV of this Agreement.

 

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  D. Termination with Cause or Resignation Without Good Reason

If the Company terminates Executive’s employment with Cause or Executive resigns without Good Reason, the Company shall provide Executive compensation and benefits as follows:

(1) Payment of Executive’s earned but unpaid Salary through the effective date of termination.

(2) Payment of the value of Executive’s earned but unused vacation consistent with Company policy that applies to all employees.

(3) Reimbursement of all reasonable business expenses incurred for activities prior to the Effective Date of termination.

(4) Any vested equity grants which shall remain exercisable to the extent provided under the terms of any grant or plan.

 

  E. Termination Without Cause or Executive Resigns for Good Reason

If the Company terminates Executive’s employment without Cause or Executive terminates his employment for Good Reason unrelated to a Change of Control, then Executive shall be entitled to receive the following termination payments:

(1) As severance pay, two times Executive’s annual Salary at the rate in effect immediately prior to termination, paid in a lump sum within ten (10) days following the day Executive signs the release agreement identified below, provided, however the payment may be delayed as required to avoid additional tax for a “ specified employee” under Section 409A as stated in Section VI.G;

(2) Two times Executive’s Annual Incentive Payment, calculated as the greater of the Annual Incentive Payment earned by Executive in the year prior to termination or Executive’s Target Incentive Payment for the current year, paid in a lump sum within ten (10) days following the day Executive signs the release agreement identified below, provided, however the payment may be delayed as required to avoid additional tax for a “specified employee” under Section 409A as stated in Section VI.G;

(3) Provided that such payments do not result in a violation of the non-discrimination rules under Section 105(h) of the Internal Revenue Code, and provided Executive and his dependents timely (and properly) elect COBRA continuation coverage under the Company’s group health plan(s), Company shall pay to the applicable insurer Executive and Executive’s eligible dependents’ continuing health insurance coverage for the shorter of (i) eighteen (18) months; (ii) until such date as Executive is no longer entitled to continuation coverage pursuant to COBRA under the Company’s group health plan(s); or (iii) until such date as Executive obtains health coverage through another employer;

(4) Executive’s earned but unpaid Salary, paid on the next regularly scheduled payroll date following the date on which Executive’s employment terminated;

 

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(5) Any earned but unpaid incentive compensation, including incentive compensation earned in the prior year but not yet paid and pro rata incentive compensation earned for the year in which termination occurs;

(6) The value of Executive’s accrued but unused vacation, consistent with the Company’s vacation policy applicable to all employees;

(7) Reimbursement of all reasonable business expenses incurred for activities prior to the effective date of termination;

(8) All of Executive’s unvested stock options and other equity grants shall vest and remain exercisable consistent with any such grant or applicable plan;

(9) In order to receive the benefits described herein that Executive is not otherwise entitled to receive, no later than sixty (60) days after termination of employment, the Company and Executive must execute a Release agreement substantially in the form attached hereto as Exhibit ‘A’ in order to receive the severance benefits. The Release is effective upon completion of payments due to Executive other than the health insurance premiums described above. Executive must also remain in substantial and continued compliance with the terms of Section IV of this Agreement.

 

  F. Definitions of “Cause” , “Good Reason” and “Change of Control”

 

  1. Cause

Wherever reference is made in this Agreement to termination being with or without Cause, “ Cause ” shall mean the occurrence of one or more of the following events:

(a) the willful and continued failure of the Executive to perform his duties;

(b) the willful engaging by the Executive in illegal conduct or gross misconduct which is materially injurious to the Company;

(c) the Executive’s conviction or plea of guilty or nolo contenders to the charge of commission of a felony; or

(d) the Executive’s breach of a regulatory rule that materially and adversely affects the Executive’s ability to perform the Executive’s principal employment duties for the Company and its affiliates.

(e) Prior to a termination for Cause, Employer shall provide Executive 30-day prior written notice of the claimed basis for the possible “Cause” termination and an opportunity for Executive to cure any defect or deficiency on his performance. Upon request, Executive shall be entitled to a hearing before the Board of Directors with representation by counsel. “Cause” shall be established by affirmative vote of at least two-thirds of the entire Board of each employer in order to determine “ Cause.”

 

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  2. Good Reason

For the purposes of this Agreement, “ Good Reason ” shall mean that Executive, without his consent, has experienced one of the following events or circumstances:

(a) the assignment to the Executive of any duties materially diminished from those in effect immediately prior to such assignment;

(b) a change in the Executive’s authority, duties or responsibilities which represents a material adverse change from those in effect immediately prior to such change;

(c) a material decrease in the Executive’s annual Salary without his prior agreement;

(d) solely following a Change of Control, relocation of the Executive’s principal place of employment to a location that increases the Executive’s commute from his primary residence by more than 30 miles one way; or

(e) any other action or inaction that constitutes a material breach of the terms of the Agreement by the Company.

(f) To comply with Section 409A of the Code, the Executive must give written notice of termination of employment within 60 days after the occurrence of the circumstances constituting Good Reason, and the Company will have 30 days to cure the circumstances constituting Good Reason, and the Executive’s “separation from service” must occur no later than six months following the initial existence of the circumstances giving rise to Good Reason.

Notwithstanding the foregoing, termination of employment by Executive will not be for Good Reason unless (i) Executive notifies the Company in writing of the existence of the condition which Executive believes constitutes Good Reason within sixty (60) days of the initial existence of such condition (which notice specifically identifies such condition), and (ii) the Company fails to remedy such condition within thirty (30) days after the date on which it receives such notice (the “Remedial Period”) whereupon Executive’s employment shall be deemed to be terminated for Good Reason upon failure of the Company to remedy. If Company attempts to cure, or disputes the existence of Good Reason, it shall provide documentary evidence thereof to Executive within the Remedial Period. Executive may elect to remain employed by Company and dispute any response by Company during the Remedial Period, without prejudice to the claim of Good Reason, by invoking the provisions of Article VI.I. In the event that Executive remains employed and invokes the dispute resolution process, he shall in any event complete his resignation within two years of the end of the Remedial Period. If Executive terminates employment before the expiration of the Remedial Period or after the Company remedies the condition (even if within the end of the Remedial Period), then Executive’s termination will not be considered to be for Good Reason.

 

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  3. Change of Control

For the purposes of this Agreement, “ Change of Control ” means:

(a) one person or entity acquiring or otherwise becoming the owner of twenty-five percent or more of HomeStreet, Inc.’s or HomeStreet Bank’s outstanding shares in any class of shares;

(b) dissolution or sale of fifty percent or more in value of the assets of either HomeStreet, Inc. or HomeStreet Bank; or

(c) a change “in the ownership or effective control” or “in the ownership of a substantial portion of the assets” of HomeStreet, Inc. or HomeStreet Bank, within the meaning of Section 280G of the Internal Revenue Code.

Sale of stock through an Initial Public Offering shall not constitute a “Change of Control” under this Agreement.

 

IV. CONFIDENTIALITY; NON-SOLICITATION;

 

  A. Confidentiality Agreement

Executive recognizes that the Company’s business and continued success depend upon the use and protection of confidential information and proprietary information, and therefore Executive is subject to, and this Agreement is conditioned on agreement to, the terms of the nondisclosure agreement (the “Confidentiality Agreement”) substantially in the form attached hereto as Exhibit ‘B’ entered into by Executive and the terms of the Confidentiality Agreement shall survive the termination of Executive’s employment with the Company or Successor Employer for a period of ten (10) years from termination unless otherwise required by law.

 

  B. Non-Competition

During Executive’s employment with the Company and/or a Successor Employer and for six months after the termination of such employment, Executive will not engage in, be employed by, perform services for, participate in the ownership, management, control or operation of, or otherwise be connected with, either directly or indirectly, any Competing Business. For purposes of this section, Executive will not be considered to be connected with any Competing Business solely on account of ownership of less than five percent of the outstanding capital stock or other equity interests in any Competing Business. Executive agrees that this restriction is reasonable, but further agrees that should a court exercising jurisdiction with respect to this Agreement find any such restriction invalid or unenforceable due to unreasonableness, either in period of time, geographical area, or otherwise, then in that event, such restriction is to be interpreted and enforced to the maximum extent which such court deems reasonable.

 

  C. Non-Solicitation

(1) During Executive’s employment with the Company and/or a Successor Employer and for six months after the termination of such employment, Executive will not induce, or

 

9


attempt to induce, any employee, executive, Board member or independent contractor of the Company and/or a Successor Employer to cease such employment or relationship to engage in, be employed by, perform services for, participate in the ownership, management, control or operation of, or otherwise be connected with, either directly or indirectly, any Competing Business (defined below).

(2) During Executive’s employment with the Company and/or a Successor Employer and for six months after the termination of such employment, Executive will not, directly or indirectly solicit, divert, appropriate to or accept on behalf of any Competing Business, any business or account from any customer of the Company or entity about whom Executive has acquired confidential information in the course of his employment.

 

  D. Competing Business

“ Competing Business” means any bank or thrift with an office or branch in Washington, Oregon, Idaho or Hawaii.

 

V. ASSIGNMENT

This Agreement is personal to Executive and shall not be assignable by Executive. The Company may assign its rights hereunder to (a) any other corporation resulting from any merger, consolidation or other reorganization to which the Company is a party; (b) any other corporation, partnership, association or other person to which the Company may transfer all or substantially all of the assets and business of the Company existing at such time; or (c) any subsidiary, parent or other affiliate of the Company (“ Successor Employer ”). All of the terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns.

 

VI. MISCELLANEOUS

 

  A. Amendments

No amendment, modification, waiver, termination or discharge of any provision of this Agreement, or consent to any departure therefrom by either party hereto, shall in any event be effective unless the same shall be in writing, specifically identifying this Agreement and the provision intended to be amended, modified, waived, terminated or discharged and signed by the Company and Executive, and each such amendment, modification, waiver, termination or discharge shall be effective only in the specific instance and for the specific purpose for which given. No provision of this Agreement shall be varied, contradicted or explained by any oral agreement, course of dealing or performance or any other matter not set forth in an agreement in writing and signed by the Company and Executive.

 

  B. Applicable Law

This Agreement shall in all respects, including all matters of construction, validity and performance, be governed by, and construed and enforced in accordance with, the laws of the State of Washington, without regard to any rules governing conflicts of laws.

 

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  C. Entire Agreement

This Agreement, on and as of the date hereof, constitutes the entire agreement between the Company and Executive with respect to the subject matter hereof. To the extent any agreement, plan or policy of the Company is inconsistent with this Agreement, the provisions of this Agreement shall prevail and control and such other agreement, plan or policy will be construed by Company to be consistent with this Agreement and, if that is not possible, the other agreement, plan or policy shall be modified as to Executive to be in conformance with this Agreement. It is the intent of the parties that Executive shall, to the extent allowed by law, enjoy the full benefit of all obligations of Company set forth herein.

 

  D. Severability

If any provision of this Agreement is held to be invalid, illegal or unenforceable in any . respect under any regulatory action, applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability, regardless of the reason therefor shall not affect any other provision of this Agreement or any action in any other jurisdiction, or the obligation of any other entity to this Agreement. If either entity to this Agreement is determined by any regulatory authority or court not to be able to perform its obligation(s) to Executive or not to have the authority to enter into this Agreement, then the other entity shall be liable therefor.

The obligations to Executive herein are the joint and several obligations of HomeStreet Inc. and HomeStreet Bank and there shall be joint and several liability of those entities in the event of any default to Executive by either for any reason.

 

  E. Legal Limitations

Notwithstanding any provision to the contrary in this Agreement, no payment of any type or amount of compensation or benefits shall be made or owed by Company to Executive pursuant to this Agreement or otherwise if payment of such type or amount is prohibited by, is not permitted under, or has not received any required approval under, any applicable governmental statute, regulation, rule, order (including any cease and desist order), determination, opinion, or similar provision whether now in existence or hereafter adopted or imposed, including without limitation, by or under (i) any provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) and regulations promulgated thereunder, (ii) any governmental provisions relating to indemnification by Company or an affiliate, including without limitation any applicable prohibitions or restrictions on depository institutions and their affiliates set forth in 12 USC 1828(k) or in 12 CFR Part 359, or (iii) any governmental provisions relating to payment of golden parachutes or similar payments, including without limitation any prohibitions or restrictions on such payments by troubled institutions and companies and their affiliates set forth in 12 USC 1828(k) or in 12 CFR Part 359. In the event any payment to Executive is prohibited or otherwise restricted, (x)  such payment shall, to the extent allowed by law, order or regulatory determination and not objected to by applicable banking or other regulatory agencies, be reinstated as an obligation of the obligor(s) without further action immediately upon the cessation of such prohibition or restriction, and (y)  the Company shall use its best efforts to secure the consent, if any shall be required, of the FDIC or

 

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other applicable banking or other regulatory agencies to make such payments in the highest amount permissible, up to the amount provided for in this Agreement.

If any payment made to Executive hereunder or under any prior employment agreement or arrangement is required under any applicable governmental provision (including, without limitation, Dodd-Frank and regulations promulgated thereunder) to be paid back to Company, the Executive shall upon written demand from Company promptly pay such amount back to Company.

 

  F. Code Section 280G

Notwithstanding anything in this Agreement to the contrary, if Executive becomes entitled to receive or receives any payment or benefit under this Agreement or under any other plan, agreement or arrangement with the Company, any person whose actions result in a Change of Control or any person affiliated with the Company or such person (all such payments and benefits being referred to herein as the “Total Payments”) and it is determined that any of the Total Payments will be subject to any excise tax pursuant to Code Section 4999, or any similar or successor provision (the “Excise Tax”), the Company shall pay to Executive an additional amount so that Executive’s net payment shall not be diminished in any respect by the additional Excise Tax.

 

  G. Code Section 409A

With respect to any payments or benefits hereunder that are subject to Code Section 409A and any official guidance and regulations issued thereunder (together “ Code Section 409A ”) and that are payable on account of Executive’s termination of employment, such payments shall only be made if such termination of employment constitutes a “separation from service” within the meaning of Code Section 409A. The Company may adjust any payment hereunder to avoid liability or obligation under Code Section 409A but such adjustments shall ensure that the payments are made in a manner that is as close to the terms of this Agreement as possible. Notwithstanding anything to the contrary contained in this Agreement, all reimbursements for costs and expenses under this Agreement will be paid in no event later than the end of the calendar year following the calendar year in which Executive incurs such expense. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (ii) the amount of expenses eligible for reimbursements or in-kind benefits provided during any taxable year shall not affect the expenses eligible for reimbursement or in-kind benefits to be provided in any other taxable year.

The Company makes no representations or warranties to Executive with respect to any tax, economic or legal consequences of this Agreement or any payments or other benefits provided hereunder, including without limitation under Code Section 409A, and no provision of the Agreement shall be interpreted or construed to transfer any liability for failure to comply with Code Section 409A from Executive or any other individual to the Company or any of its affiliates. Executive, by executing this Agreement, shall be deemed to have waived any claim against the Company and its affiliates with respect to any such tax, economic or legal

 

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consequences of this Agreement or any payments or other benefits provided hereunder. However, the parties intend that this Agreement and the payments and other benefits provided hereunder be exempt from the requirements of Code Section 409A to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-l(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-l(b)(9)(iii), or otherwise. To the extent Code Section 409A is applicable to this Agreement (and such payments and benefits), the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Code Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. In addition, if Executive is a “ specified employee,” within the meaning of Code Section 409A, then to the extent necessary to avoid subjecting Executive to the imposition of any additional tax under Code Section 409A, amounts that would otherwise be payable under this Agreement during the six (6) month period immediately following Executive’s “separation from service” for reasons other than Executive’s death (except those payments that may be exempt from 409A by virtue of the short-term deferral exception to 409A) shall not be paid to Executive during such period, but shall instead be accumulated and paid to Executive in a lump sum on the first business day after the date that is six (6) months following Executive’s separation from service.

 

  H. No Mitigation/Offset

In order to receive severance benefits provided in this Agreement, Executive shall not be required to engage in mitigation activities or seek alternative employment, nor would any other compensation received by Executive serve as an offset agreement to the severance or other benefits provided in this Agreement.

 

  I. Disputes

(1) In the event of a dispute or claim between Executive and the Company related to Employee’s employment or termination of employment, all such disputes or claims will be resolved exclusively by confidential arbitration in accordance with the Employment Arbitration Rules of the American Arbitration Association (the “ AAA” ). This means that the parties agree to waive their rights to have such disputes or claims decided in court by a jury. Instead, such disputes or claims will be resolved by an impartial AAA arbitrator (or other mutually agreeable person) whose decision will be final.

(2) The only disputes or claims that are not subject to arbitration are any claims by Executive for workers’ compensation or unemployment benefits, and any claim by Executive for benefits under an employee benefit plan that provides its own arbitration procedure. Also, Executive and Employer may seek injunctive relief in court in appropriate circumstances.

(3) The arbitration procedure will afford Executive and Employer the full range of statutory remedies, based on the statutes of limitations that would apply to the specific claims asserted as if they were asserted in court. Employer will pay all costs that are unique to arbitration, except that the party who initiates arbitration will pay the filing fee charged by AAA. Executive and Employer shall be entitled to discovery sufficient to adequately arbitrate their

 

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claims, including access to essential documents and witnesses, as determined by the arbitrator and subject to limited judicial review. In order for any judicial review of the arbitrator’s decision to be successfully accomplished, the arbitrator will issue a written decision that will decide all issues submitted and will reveal the essential findings and conclusions on which the award is based.

IN WITNESS WHEREOF, the parties have executed and entered into this Agreement effective on the date first set forth above.

 

DAVID HOOSTON

LOGO

Date   May 27, 2011
HOMESTREET, INC.
By  

/s/ Gerhardt Morrison

Its   HRGC Chairman
Date   May 26, 2011
HOMESTREET BANK
By  

/s Cynthia P. Sonstelie

Its   HRCG CHAIR
Date   6/1/11

 

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EXHIBIT A

WAIVER AND RELEASE

 

 

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WAIVER AND RELEASE

PLEASE READ THIS WAIVER AND RELEASE CAREFULLY. IT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS UP TO AND INCLUDING THE DATE THAT THIS AGREEMENT AND RELEASE IS EXECUTED BY THE COMPANY AND THE EXECUTIVE.

For and in consideration of the payments and other benefits due to [David Hooston] (the “ Executive ”) pursuant to the Employment Agreement (the “ Employment Agreement ” ) entered into as              , 2011 (the “ Effective Date ”), by and between HomeStreet, Inc., and HomeStreet Bank, and their respective subsidiaries (together the “ Company ”) and the Executive, and for other good and valuable consideration, including the mutual promises made herein, the Executive and the Company irrevocably and unconditionally release and forever discharge each other and each and all of their present and former officers, agents, directors, managers, employees, representatives, affiliates, shareholders, members, and each of their successors and assigns, and all persons acting by, through, under or in concert with it, and in each case individually and in their official capacities (collectively, the “ Released Parties ”), from any and all charges, complaints, grievances, claims and liabilities of any kind or nature whatsoever, known or unknown, suspected or unsuspected (hereinafter referred to as “ claim” or “claims”) which either party at any time heretofore had or claimed to have or which either party may have or claim to have regarding events that have occurred up to and including the date of the execution of this Release, including, without limitation, any and all claims related, in any manner, to the Executive’s employment or the termination thereof. In particular, each party understands and agrees that the parties’ release includes, without limitation, all matters arising under any federal, state, or local law, including civil rights laws and regulations prohibiting employment discrimination on the basis of race, color, religion, age, sex, national origin, ancestry, disability, medical condition, veteran status, marital status and sexual orientation, or any other characteristic protected by federal, state or local law including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, the Older Workers Benefit Protection Act of 1990, as amended, the Americans with Disabilities Act, the Rehabilitation Act, the Occupational Safety and Health Act, the Family and Medical Leave Act, the Employee Retirement Income Security Act of 1974, as amended (except as to vested retirement benefits, if any), the Worker Adjustment and Retraining Notification Act, the Washington Law Against Discrimination, RCW 49.60, The Washington Wage Rebate Act, RCW 49.52, the Washington Unpaid Wages Act, RCW 49.48, federal and state wage and hour laws, or any common law, public policy, contract (whether oral or written, express or implied) or tort law, or any other federal, state or local law, regulation, ordinance or rule having any bearing whatsoever.

The Executive must sign and return this Release by personal or guaranteed overnight delivery to the attention of the Human Resources Director, 1800 Two Union square, 601 Union Street, Seattle WA 98101 no earlier than the Date of Termination and no later than «Sign_date», which is the 60th day following the Date of Termination. The Executive can revoke this Release within seven days after executing the Release by sending written notification to the Company of Executive’s intent to revoke the Release, and this Release shall not become effective or enforceable until such revocation period has expired. The Executive’s written notification of the intent to revoke the Release must be sent to the

 

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Human Resources Director, 1900 Two Union Square, 601 Union Street, Seattle WA 98101 by personal delivery or guaranteed overnight delivery, within seven days after the Executive executed the Release.

The Executive and Company acknowledge that they may have sustained losses that are currently unknown or unsuspected, and that such damages or losses could give rise to additional causes of action, claims, demands and debts in the future. Nevertheless, the Executive and Company each acknowledge that this Release has been agreed upon in light of this realization and, being fully aware of this situation, the Executive and Company nevertheless intend to release the each other from any and all such unknown claims, including damages which are unknown or unanticipated. The parties understand the word “ claims” to include all actions, claims, and grievances, whether actual or potential, known or unknown, and specifically but not exclusively all claims arising out of the Executive’s employment and the termination thereof. All such “claims” (including related attorneys’ fees and costs) are forever barred by this Release and without regard to whether those claims are based on any alleged breach of a duty arising in a statute, contract, or tort; any alleged unlawful act, including, without limitation, age discrimination; any other claim or cause of action; and regardless of the forum in which it might be brought.

Notwithstanding anything else herein to the contrary, this Release shall not affect, and the Executive and the Company, as applicable, do not waive or release: (i) rights to indemnification the Executive may have under (A) applicable law, (B) any other agreement between the Executive and a Released Party and (C) as an insured under any director’s and officer’s liability or other insurance policy now or previously in force; (ii) any right the Executive may have to obtain contribution in the event of the entry of judgment against the Executive as a result of any act or failure to act for which both the Executive and any of the Company or its affiliates or subsidiaries (collectively, the “Affiliated Entities” ) are or may be jointly responsible; (iii) the Executive’s rights to benefits and payments under any stock options, restricted stock, restricted stock units or other incentive plans or under any retirement plan, welfare benefit plan or other benefit or deferred compensation plan, all of which shall remain in effect in accordance with the terms and provisions of such benefit and/or incentive plans and any agreements under which such stock options, restricted shares, restricted stock units or other awards or incentives were granted or benefits were made available; (iv) the Executive’s rights as a stockholder of any of the Affiliated Entities; (v) any obligations of the Affiliated Entities under the Employment Agreement (vi) any clawback required pursuant to restrictions on compensation for employees of financial institutions; (vii), any claims brought by the Federal Deposit Insurance Corporation as receiver or conservator of the Bank that have not been released or waived by the Company; (viii) claims for improper self-dealing; improper distributions and other limitations imposed by RCW 23B.08.320; (ix) any finally and judicially determined, knowing violation of the law by Executive that has a material and adverse impact on the Company; (x) any fraud or other intentional misconduct by Executive that has a material and adverse impact on the Company; (xi) any material violation of any confidentiality, nonsolicitation or noncompetition agreement or provision executed by Executive; or (xii) any other claim not subject to release by operation of law.

 

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The Executive waives all rights under section 1542 of the Civil Code of the State of California or any comparable or analogous Federal law or any other state law. Section 1542 provides as follows:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

The Executive acknowledges and agrees that the Executive: (a) has been given at least [21/45] days within which to consider this Release and its ramifications and discuss the terms of this Release with the Company before executing it (and that any modification of this Release, whether material or immaterial, will not restart or change the original [21/45] day consideration period) and the Executive fully understands that by signing below the Executive is voluntarily giving up any right which the Executive may have to sue or bring any other claims against the Released Parties; (b) has been given seven days after returning the Release to the Company to revoke this Release; (c) has been advised to consult legal counsel regarding the terms of this Release; (d) has carefully read and fully understands all of the provisions of this Release; (e) knowingly and voluntarily agrees to all of the terms set forth in this Release; and (f) knowingly and voluntarily intends to be legally bound by the same. The Executive also understands that, notwithstanding anything in this Release to the contrary, nothing in this Release shall be construed to prohibit the Executive from (i) filing a charge or complaint with the Equal Employment Opportunity Commission or Washington State Human Rights Commission or any other federal, state or local administrative or regulatory agency, or (ii) participating in any investigation or proceedings conducted by the Equal Employment Opportunity Commission or any other federal, state or local administrative or regulatory agency; however, the Executive expressly waives the right to any relief of any kind in the event that the Equal Employment Opportunity Commission or Washington State Human Rights Commission or any other federal, state or local administrative or regulatory agency pursues any claim on the Executive’s behalf.

This Release is final and binding and may not be changed or modified except in a writing signed by both parties.

 

 

     

 

Date

      [Name]

 

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EXHIBIT B

EXECUTIVE CONFIDENTIALITY AGREEMENT

 

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EXECUTIVE CONFIDENTIALITY AGREEMENT

This Confidentiality Agreement (“Agreement”) is between HomeStreet, Inc., HomeStreet Bank (“Bank”) and their affiliate or subsidiary organizations and their successors and assigns (collectively, the “ Company ” or “HomeStreet”) and David Hooston (“ Executive ”or “Recipient” ) (collectively, the “ Parties ” ).

Executive is currently employed as the Executive Vice-President and Chief Financial Officer of the Bank and HomeStreet, Inc. It is the intent of the Parties that this Agreement will become effective upon the termination of Executive’s services to the Company. By virtue of his position with the Company, Executive has access to Confidential Information (defined below). HomeStreet must have assurance from Recipient that all Confidential Information provided to Recipient is and remains confidential after termination of his services. Therefore, for valuable consideration, the receipt of which is acknowledged to be sufficient, Recipient and HomeStreet agree as follows:

 

1. “Confidential Information” means information concerning the business, operations, strategies, financial status, products, services, customer names, customer lists and customer information of HomeStreet, which is confidential or proprietary to HomeStreet.

 

2. Confidential Information does not include information that: (a) is or becomes generally available to the public through no fault or act of Recipient or any of his Representatives in violation of this Agreement; (b) is or becomes available to Recipient or his representatives on a non-confidential basis from a source other than HomeStreet not known to Recipient or such Representatives to be prohibited from disclosing such information by a contractual, legal or fiduciary obligation of confidentiality; (c) is independently developed by the Recipient or his representatives without use of or reliance on, either directly or indirectly, Confidential Information; or (d) was known to or in the possession of Recipient or one of his representatives on a non-confidential basis prior to disclosure by HomeStreet under the terms of this Agreement; or (e) is developed primarily through the efforts or work product of Executive.

 

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After the termination of his services or employment agreement, Recipient agrees not to disclose any Confidential Information to any third party, unless such third party is a fiduciary, affiliate or HomeStreet vendor and such vendor and HomeStreet have signed a similar confidentiality agreement, or such disclosure of Confidential Information is required by lawful judicial or governmental order. Recipient agrees to give HomeStreet reasonable notice in writing in advance of releasing Confidential Information pursuant to any judicial or governmental order. Recipient additionally agrees to implement and maintain at all times reasonably appropriate procedures and controls to ensure at all times the security and confidentiality of all of HomeStreet’s

 

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Confidential Information, to protect against any anticipated threats or hazards to the security or integrity of such information; and to protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to Home Street or any customer of HomeStreet. Recipient agrees to notify HomeStreet of any known security breach, any known unauthorized release of Confidential Information, or any known unauthorized attempt to access Confidential Information of which it becomes aware within a reasonable time of the occurrence of such event. Such notice will include, at a minimum, the date and time of any such event, the nature and extent of Confidential Information involved in any such event, and the corrective measures taken by Recipient in response to any such event.

 

4. All Confidential Information is and shall remain the property of HomeStreet. No license or conveyance of any right is granted or implied by the distribution of any Confidential Information to Recipient. Recipient agrees not to use, duplicate, or reproduce in any way any Confidential Information for Recipient’s own benefit or financial gain, or for any third party’s benefit or financial gain except to the extent reasonably necessary to analyze and prepare a business proposal to HomeStreet, in connection with rendering services to HomeStreet and to prepare and maintain his internal files in the ordinary course of its business. All documents (originals and copies, including electronic versions) containing Confidential Information shall either be destroyed or disposed of in a manner consistent with the Fair and Accurate Credit Transactions Act of 2003 or, if directed by HomeStreet, returned to HomeStreet upon termination of the rendering of services to HomeStreet by Recipient. Recipient agrees that HomeStreet may take reasonable actions as deemed appropriate by HomeStreet to confirm that Recipient has satisfied these obligations. It is understood that Recipient may retain one archival copy of such information for his internal files except for Bank customer loan files and documents containing private customer information.

 

5. By making any Confidential Information available to Recipient, HomeStreet makes no representation, warranty or guarantee, either express or implied, as to the accuracy or completeness of any Confidential Information or to the format in which such Confidential Information is provided to Recipient. Except as otherwise provided in any engagement letter, HomeStreet shall not be liable to any party for damages, of whatever kind, as a result of Recipient’s reliance on any Confidential Information or any format in which Confidential Information is made available to Recipient.

 

6. Recipient acknowledges that due to the highly sensitive nature of the Confidential Information, Recipient will be liable to HomeStreet for all losses suffered by HomeStreet as a result of Recipient’s intentional and material breach of this Agreement. In addition to any other remedies available to HomeStreet, Recipient agrees that, if Recipient breaches this Agreement, HomeStreet may seek injunctive relief against Recipient to stop any such breach.

 

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If either Party to this Agreement commences legal action to enforce any rights arising out of or relating to this Agreement, the prevailing Party in any such action shall be

 

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entitled to recover reasonable attorneys’ fees and costs, including fees and costs on appeal. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Washington and the venue for any legal action shall be Seattle, Washington.

 

8. If Recipient and HomeStreet have entered into any other agreement, the terms of this Agreement shall, by this reference, be incorporated into and made a part of such other agreement, except to the extent otherwise specifically provided in such other agreement. The terms of this Agreement shall survive the termination of rendering of services to HomeStreet by Recipient for a period of ten years.

This Agreement is dated this      day of          , 2011.

 

HomeStreet, Inc.       
HomeStreet Bank   Executive   
    

 

  
     David Hooston   
By:   

 

  By:  

 

  
Title:   

 

      

 

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Exhibit 10.12

EXECUTIVE EMPLOYMENT AGREEMENT

between

HOMESTREET, INC. and HOMESTREET BANK

and

Godfrey Evans


E XECUTIVE E MPLOYMENT A GREEMENT

This executive employment agreement (“ Agreement ”), effective May 3, 2011 (the “Effective Date”), is between HomeStreet, Inc., HomeStreet Bank (“Bank”) and any of their affiliate or subsidiary organizations and their successors and assigns (collectively, the “Company”) and Godfrey Evans (“ Executive ”) (collectively, the “ Parties ”). In consideration of the foregoing promises and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Company arid Executive hereby agree to enter into an employment relationship in accordance with the terms and conditions set forth below.

 

I. EMPLOYMENT

 

  A. Position and Duties

The Company will employ Executive, and Executive will accept employment as the General Counsel and Chief Administrative Officer of HomeStreet Bank and HomeStreet, Inc. and report to the Chief Executive Officer of HomeStreet Bank and HomeStreet, Inc. Executive will perform the duties of General Counsel and Chief Administrative Officer of each organization as designated above and will devote his full time and attention to achieving the purposes and discharging the responsibilities afforded the positions, and such other duties as may be assigned from time to time by the Company, which relate to the business of the Company and are reasonably consistent with Executive’s position. During Executive’s employment, Executive will not engage in any business activity that, in the reasonable judgment of the Chief Executive Officer, conflicts with the duties of Executive under this Agreement, whether or not such activity is pursued for gain, profit or other advantage. Executive will comply with Company policies and procedures and all applicable laws and regulations. Executive shall be employed at the Company headquarters in Seattle, Washington.

 

  B. Term of Agreement

This Agreement shall commence on the Effective Date and continue until the earlier of (1) the Federal Deposit Insurance Corporation’s removal of the Cease and Desist Order on the Company as a result of completion of an initial public offering of stock, an increase in capital or other circumstances, or (2) until terminated as set forth in Section III, which ever occurs first. If this Agreement is terminated under the circumstances identified as (1) in this section, the parties anticipate that this Agreement will be immediately replaced with a different employment agreement. Notwithstanding any termination of Executive’s employment, the Executive shall remain subject to the restrictions in Section IV of this Agreement.

 

II. COMPENSATION AND BENEFITS

The Company agrees to pay to Executive and Executive agrees to accept in exchange for the services rendered hereunder the following compensation and benefits:

 

  A. Annual Salary

Executive’s compensation shall consist of an annual base salary (the “ Salary ”) of no less than $240,000, payable in accordance with the payroll practices of the Company. The Salary

 

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shall be reviewed, and may be subject to increase, by the Chief Executive Officer or the Board of Directors of the Company (or the Compensation Committee thereof) at least annually while Executive is employed hereunder. Executive’s Salary may decrease only with his agreement.

 

  B. Annual Incentive Payment

The Company shall establish a performance-based, target incentive bonus under the terms of the Company’s incentive bonus compensation plan pursuant to which Executive may receive, based on completion of objectives no less than 40% of Executive’s Salary (or such higher amount as the Chief Executive Officer, Board or its Compensation Committee may approve) (“ Target Incentive Payment ”), less required withholding and authorized deductions. The Chief Executive Officer or the Board or its Compensation Committee and Executive shall establish the mutually acceptable performance objectives and related payout ratios no later than May 31 of each fiscal year. The Chief Executive Officer, the Board or the Board’s Compensation Committee shall reasonably determine the extent to which the Target Incentive Payment has been earned and shall ensure that the Target Incentive Payment complies with Sound Incentive Compensation Planning Guidelines and other restrictions applicable to financial institutions.

 

  C. Equity Compensation

Executive has been awarded stock options and restricted stock consistent with Company benefits plans so that Executive holds equity rights to approximately 0.7% of the outstanding shares of HomeStreet, Inc. stock (25,000 shares). Executive’s rights with respect to such stock options and restricted stock shall continue, subject to the terms of any applicable grant or plan. Executive may be awarded additional stock options or restricted stock or other equity compensation at the discretion of the Compensation Committee of the Board and consistent with any equity plans or agreements.

 

  D. Benefits

Executive shall be eligible to participate, subject to and in accordance with applicable eligibility requirements, in such benefit programs as are provided to the Company’s executives. which may include, at a minimum, vacation, sick leave, basic health, life and disability insurance.

 

  E. Business Expenses

Executive shall be reimbursed for all reasonable out-of-pocket expenses actually incurred by Executive in the conduct of the business of the Company, provided that Executive submits substantiation of all such expenses to the Company on a timely basis in accordance with standard policies of the Company, effective as such on the date such expenses are incurred.

 

  F. Allocation of Payments

HomeStreet, Inc. and HomeStreet Bank shall allocate between them the obligation to make required payments hereunder. Such allocation shall not affect the joint and several

 

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liabilities of HomeStreet, Inc. and HomeStreet Bank under this Agreement as provided in Section VI.D.

 

III. TERMINATION

 

  A. Employment Termination

This Agreement and Executive’s employment may be terminated by the Company for Cause (as defined below), or without Cause or by Executive for Good Reason (as defined below) or without Good Reason or upon the Executive’s death or Total Disability. Except where a specific notice procedure is described herein, the Company or Executive shall provide the other party at least sixty (60) days notice of any termination (or 60 days pay in lieu of notice). Upon any termination of employment, Executive shall be entitled to receive payments or benefits as described in this Agreement.

 

  B. Automatic Termination on Death or Total Disability

This Agreement and Executive’s employment hereunder shall terminate automatically upon the death or Total Disability of Executive. “ Total Disability ” shall have the same meaning as defined in the Company’s long-term disability plan or policy. Termination hereunder shall be deemed to be effective (a) upon Executive’s death or (b) immediately upon the sooner to occur of a determination by the Company’s long-term disability insurance carrier or Executive’s primary care physician that Executive is disabled and eligible for long-term disability benefits. Executive shall receive the following benefits on termination of employment for Death or Total Disability:

(1) Executive’s earned but unpaid Salary through the effective date of the termination;

(2) Any earned but unpaid incentive compensation under the terms of any applicable incentive compensation plan, including unpaid incentive compensation earned for the previous year but not yet paid and any pro rata incentive compensation earned for the year in which termination occurs;

(3) Accrued but unused vacation pay consistent with the Company vacation policy;

(4) Reimbursable business expenses for activities prior to the effective date of termination;

(5) Executive’s vested stock options or equity grants shall remain exercisable for one year after Death or Total Disability consistent with the terms of the applicable plan;

(6) Any severance pay for which Executive may be eligible under the terms of the Company’s nondiscriminatory severance plan. Any payout of severance pay hereunder may be subject to regulatory approval (which the Company shall use its best efforts to obtain) or non-objection.

 

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(7) In the event of Total Disability, in order to receive the benefits described herein that Executive is not otherwise entitled to receive, no later than sixty (60) days after termination of employment, the Company and Executive must execute a release agreement (“Release”) substantially in the form of Exhibit ‘A’ attached hereto in order to receive the severance benefits. The Release will be effective upon completion of the payments due to Executive. Executive must also remain in substantial and continued compliance with the terms of Section IV of this Agreement.

(8) In the event of death, all payments shall be made to the person or persons identified as the Executive’s beneficiary for any Company-sponsored life insurance.

 

  C. Termination Without Cause or Executive Resigns for Good Reason Immediately Before or Following a Change of Control

If Executive’s employment terminates by the Company without Cause or by Executive for Good Reason within one year following or during the ninety (90) days immediately preceding a Change of Control (as defined below), then Executive shall be entitled to receive the following termination payments provided the Company obtains approval from applicable regulatory authorities for such payments (which approval the Company shall use its best efforts to obtain):

(1) As severance pay, one times Executive’s annual Salary at the rate in effect immediately prior to termination, paid in a lump sum within ten (10) days following the day Executive signs the Release agreement identified above, provided, however, the payment may be delayed as required to avoid additional tax for a “specified employee” under Section 409A as described in Section VI.G;

(2) Executive’s earned but unpaid Salary through the effective date of termination, paid on the next regularly scheduled payroll date following the effective date of termination;

(3) Any earned but unpaid incentive compensation under the terms of any applicable incentive compensation plan, including unpaid incentive compensation earned in the previous year but not yet paid and pro rata incentive compensation earned for the year in which termination occurs;

(4) The value of Executive’s accrued but unused vacation, consistent with the Company’s vacation policy applicable to all employees;

(5) Reimbursement of all reasonable business expenses incurred for activities prior to the effective date of termination;

(6) All vested stock options and other equity grants shall remain exercisable consistent with any such grant or applicable plan;

(7) In order to receive the benefits described herein that Executive is not otherwise entitled to receive, no later than sixty (60) days after termination of employment, the Company and Executive must execute a Release agreement substantially in the form of Exhibit ‘A’ attached hereto in order to receive the severance benefits. The Release will be effective upon

 

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completion of the payments due to Executive. Executive must also remain in substantial and continued compliance with the terms of Section IV of this Agreement.

(8) Any post-employment payment of benefits may be dependent upon approval or non-objection by one or more regulatory authorities. The Company will use its best efforts to obtain such approval or non-objection in a timely manner, but no payment shall be made without the required approval.

 

  D. Termination with Cause or Resignation Without Good Reason

If the Company terminates Executive’s employment with Cause or Executive resigns without Good Reason, the Company shall provide Executive compensation and benefits as follows:

(1) Payment of Executive’s earned but unpaid Salary through the effective date of termination.

(2) Payment of the value of Executive’s earned but unused vacation consistent with Company policy that applies to all employees.

(3) Reimbursement of all reasonable business expenses incurred for activities prior to the Effective Date of termination.

(4) Any vested equity grants shall remain exercisable to the extent provided under the terms of any grant or plan.

 

  E. Termination Without Cause or Executive Resigns for Good Reason

If the Company terminates Executive’s employment without Cause or Executive terminates his employment for Good Reason unrelated to a Change of Control, then Executive shall be entitled to receive the following termination payments provided the Company obtains approval from the applicable regulatory authorities for such payments (which approval the Company shall seek):

(1) Any severance pay for which Executive may be eligible under the terms of a nondiscrirninatory severance plan approved by federal or state regulations. Any payout of severance pay hereunder may be subject to regulatory approval (which the Company shall seek) or non-objection;

(2) Executive’s earned but unpaid Salary through the effective date of termination, paid on the next regularly scheduled payroll date following the date on which Executive’s employment terminated;

(3) Any earned but unpaid incentive compensation under the terms of any applicable incentive compensation plan, including unpaid incentive compensation earned in the previous year but not yet paid and pro rata incentive compensation earned for the year to which termination occurs;

 

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(4) The value of Executive’s accrued but unused vacation, consistent with the Company’s vacation policy applicable to all employees;

(5) Reimbursement of all reasonable business expenses incurred for activities prior to the effective date of termination;

(6) All vested stock options and other equity grants shall remain exercisable consistent with any such grant or applicable plan;

(7) In order to receive the benefits described herein that Executive is not otherwise entitled to receive, no later than sixty (60) days after termination of employment, the Company and Executive must execute a Release agreement substantially in the form of Exhibit ‘A’ attached hereto in order to receive the severance benefits. The Release will be effective upon completion of the payments due to Executive. Executive must also remain in substantial and continued compliance with the terms of Section IV of this Agreement.

(8) Any post-employment payment of benefits may be subject to approval or non- objection by one or more regulatory authorities. The Company will use its best efforts to obtain such approval or non-objection in a timely manner, but no payment shall be made without the required approval.

 

  F. Definitions of “Cause”, “Good Reason” and “Change of Control”

 

  1. Cause

Wherever reference is made in this Agreement to termination being with or without Cause, “ Cause ” shall mean the occurrence of one or more of the following events:

(a) the willful and continued failure of the Executive to perform his duties;

(b) the willful engaging by the Executive in illegal conduct or gross misconduct which is materially injurious to the Company;

(c) the Executive’s conviction or plea of guilty or nolo contendere to the charge of commission of a felony; or

(d) the Executive’s breach of a regulatory rule that materially and adversely affects the Executive’s ability to perform the Executive’s principal employment duties for the Company and its affiliates.

(e) Prior to a termination for Cause, Employer shall provide Executive 30-day prior written notice of the claimed basis for the possible “Cause” termination and an opportunity for Executive to cure any defect or deficiency on his performance. Upon request, Executive shall be entitled to a hearing before the Board of Directors with representation by counsel. “Cause” shall be established by affirmative vote of at least two-thirds of the entire Board of each employer in order to determine “Cause.”

 

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  2. Good Reason

For the purposes of this Agreement, “Good Reason” shall mean that Executive, without his consent, has experienced one of the following events or circumstances:

(a) the assignment to the Executive of any duties materially diminished from those in effect immediately prior to such assignment;

(b) a change in the Executive’s authority, duties or responsibilities which represents a material adverse change from those in effect immediately prior to such change;

(c) a material decrease in the Executive’s annual Salary without his prior agreement;

(d) solely following a Change of Control, relocation of the Executive’s principal place of employment to a location that increases the Executive’s commute from his primary residence by more than 30 miles one way; or

(e) any other action or inaction that constitutes a material breach of the terms of the Agreement by the Company.

(f) To comply with Section 409A of the Code, the Executive must give written notice of termination of employment within 60 days after the occurrence of the circumstances constituting Good Reason, and the Company will have 30 days to cure the circumstances constituting Good Reason, and the Executive’s “separation from service” must occur no later than six months following the initial existence of the circumstances giving rise to Good Reason.

Notwithstanding the foregoing, termination of employment by Executive will not be for Good Reason unless (i) Executive notifies the Company in writing of the existence of the condition which Executive believes constitutes Good Reason within sixty (60) days of the initial existence of such condition (which notice specifically identifies such condition), and (ii) the Company fails to remedy such condition within thirty (30) days after the date on which it receives such notice (the “Remedial Period”) whereupon Executive’s employment shall be deemed to be terminated for Good Reason upon failure of the Company to remedy. If Company attempts to cure, or disputes the existence of Good Reason, it shall provide documentary evidence thereof to Executive within the Remedial Period. Executive may elect to remain employed by Company and dispute any response by Company during the Remedial Period, without prejudice to the claim of Good Reason, by invoking the provisions of Article VI.I. If Executive remains employed and invokes the dispute resolution process, he shall in any event complete his resignation within two years of the end of the Remedial Period. If Executive terminates employment before the expiration of the Remedial Period or after the Company remedies the condition (even if within the end of the Remedial Period), then Executive’s termination will not be considered to be for Good Reason.

 

  3. Change of Control

For the purposes of this Agreement, “ Change of Control ” means:

 

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(a) one person or entity acquiring or otherwise becoming the owner of twenty-five percent or more of HomeStreet Inc.’s or HomeStreet Bank’s outstanding shares in any class of shares;

(b) dissolution or sale of fifty percent or more in value of the assets of either HomeStreet, Inc. or HomeStreet Bank; or

(c) a change “in the ownership or effective control” or “in the ownership of a substantial portion of the assets” of either HomeStreet, Inc. or HomeStreet Bank, within the meaning of Section 280G of the Internal Revenue Code.

Sale of stock through an initial public offering shall not constitute a “Change of Control” under this Agreement.

 

IV. CONFIDENTIALITY; NON-SOLICITATION;

 

  A. Confidentiality Agreement

Executive recognizes that the Company’s business and continued success depend upon the use and protection of confidential information and proprietary information, and therefore Executive is subject to, and this Agreement is conditioned on agreement to, the terms of the non- disclosure agreement (the “ Confidentiality Agreement ”) substantially in the form attached hereto as Exhibit B entered into by Executive and the terms of the Confidentiality Agreement shall survive the termination of Executive’s employment with the Company or Successor Employer for a period often (10) years from termination unless otherwise required by law.

 

  B. Non-Solicitation Agreement

(1) During Executive’s employment with the Company and/or a Successor Employer and for six months after the termination of such employment, Executive will not induce, or attempt to induce, any employee, executive, Board member or independent contractor of the Company and/or a Successor Employer to cease such employment or relationship to engage in, be employed by, perform services for, participate in the ownership, management, control or operation of, or otherwise be connected with, either directly or indirectly, any Competing Business (defined below).

(2) During Executive’s employment with the Company and/or a Successor Employer and for six months after the termination of such employment, Executive will not, directly or indirectly solicit, divert, appropriate to or accept on behalf of any Competing Business, any business or account from any customer of the Company or entity about whom Executive has acquired confidential information in the course of his employment.

 

  C. Competing Business

“Competing Business” means any bank or thrift with an office or branch in Washington, Oregon, Idaho or Hawaii.

 

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V. ASSIGNMENT

This Agreement is personal to Executive and shall not be assignable by Executive. The Company may assign its rights hereunder to (a) any other corporation resulting from any merger, consolidation or other reorganization to which the Company is a party; (b) any other corporation, partnership, association or other person to which the Company may transfer all or substantially all of the assets and business of the Company existing at such time; or (c) any subsidiary, parent or other affiliate of the Company (“ Successor Employer ”). All of the terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns.

 

VI. MISCELLANEOUS

 

  A. Amendments

No amendment, modification, waiver, termination or discharge of any provision of this Agreement, or consent to any departure therefrom by either party hereto, shall in any event be effective unless the same shall be in writing, specifically identifying this Agreement and the provision intended to be amended, modified, waived, terminated or discharged and signed by the Company and Executive, and each such amendment, modification, waiver, termination or discharge shall be effective only in the specific instance and for the specific purpose for which given. No provision of this Agreement shall be varied, contradicted or explained by any oral agreement, course of dealing or performance or any other matter not set forth in an agreement in writing and signed by the Company and Executive.

 

  B. Applicable Law

This Agreement shall in all respects, including all matters of construction, validity and performance, be governed by, and construed and enforced in accordance with, the laws of the State of Washington, without regard to any rules governing conflicts of laws.

 

  C. Entire Agreement

This Agreement, on and as of the date hereof, constitutes the entire agreement between the Company and Executive with respect to the subject matter hereof. To the extent any agreement, plan or policy of the Company is inconsistent with this Agreement, the provisions of this Agreement shall prevail and control and such other agreement, plan or policy will be construed by Company to be consistent with this Agreement and, if that is not possible, the other agreement, plan or policy shall be modified as to Executive to be in conformance with this Agreement. It is the intent of the parties that Executive shall, to the extent allowed by law, enjoy the full benefit of all obligations of Company set forth herein.

 

  D. Severability

If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any regulatory action, applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability, regardless of the reason therefor shall not affect any other provision of this Agreement or any action in any other jurisdiction, or the obligation of any other

 

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entity to this Agreement. If either entity that is a party to this Agreement is determined by any regulatory authority or court not to be able to perform its obligation(s) to Executive or not to have the authority to enter into this Agreement, then the other entity shall be liable therefor.

The obligations to Executive herein are the joint and several obligations of HomeStreet Inc. and HomeStreet Bank and there shall be joint and several liability of those entities in the event of any default to Executive by either for any reason.

 

  E. Legal Limitations

Notwithstanding any provision to the contrary in this Agreement, no payment of any type or amount of compensation or benefits shall be made or owed by Company to Executive pursuant to this Agreement or otherwise if payment of such type or amount is prohibited by, is not permitted under, or has not received any required approval under, any applicable governmental statute, regulation, rule, order (including any cease and desist order), determination, opinion, or similar provision whether now in existence or hereafter adopted or imposed, including without limitation, by or under (i) any provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) and regulations promulgated thereunder, (ii) any governmental provisions relating to indemnification by Company or an affiliate, including without limitation any applicable prohibitions or restrictions on depository institutions and their affiliates set forth in 12 USC 1828(k) or in 12 CFR Part 359, or (iii) any governmental provisions relating to payment of golden parachutes or similar payments, including without limitation any prohibitions or restrictions on such payments by troubled institutions and companies and their affiliates set forth in 12 USC 1828(k) or in 12 CFR Part 359. If any payment to Executive is prohibited or otherwise restricted, (x)  such payment shall, to the extent allowed by law, order or regulatory determination and not objected to by applicable banking or other regulatory agencies, be reinstated as an obligation of the obligor(s) without further action immediately upon the cessation of such prohibition or restriction, and (y)  the Company shall use its best efforts to secure the consent, if any shall be required, of the FDIC or other applicable banking or other regulatory agencies to make such payments in the highest amount permissible, up to the amount provided for in this Agreement.

If any payment made to Executive hereunder or under any prior employment agreement or arrangement is required under any applicable governmental provision (including, without limitation, Dodd-Frank and regulations promulgated thereunder) to be paid back to Company, the Executive shall upon written demand from Company promptly pay such amount back to Company.

 

  F. Code Section 280G

Notwithstanding anything in this Agreement to the contrary, if Executive becomes entitled to receive or receives any payment or benefit under this Agreement or under any other plan, agreement or arrangement with the Company, any person whose actions result in a Change of Control or any person affiliated with the Company or such person (all such payments and benefits being referred to herein as the “Total Payments”) and it is determined that any of the Total Payments will be subject to any excise tax pursuant to Code Section 4999, or any similar or successor provision (the “Excise Tax”), the Company shall pay to Executive an additional

 

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amount so that Executive’s net payment shall not be diminished in any respect by the additional Excise Tax.

 

  G. Code Section 409A

With respect to any payments or benefits hereunder that are subject to Code Section 409A and any official guidance and regulations issued thereunder (together “ Code Section 409A ”) and that are payable on account of Executive’s termination of employment, such payments shall only be made if such termination of employment constitutes a “separation from service” within the meaning of Code Section 409A. The Company may adjust any payment hereunder to avoid liability or obligation under Code Section 409A but such adjustments shall ensure that the payments are made in a manner that is as close to the terms of this Agreement as possible. Notwithstanding anything to the contrary contained in this Agreement, all reimbursements for costs and expenses under this Agreement will be paid in no event later than the end of the calendar year following the calendar year in which Executive incurs such expense. With regard to any provision herein that provides for reimbursement of costs and expenses or in- kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in- kind benefits shall not be subject to liquidation or exchange for another benefit, and (ii) the amount of expenses eligible for reimbursements or in-kind benefits provided during any taxable year shall not affect the expenses eligible for reimbursement or in-kind benefits to be provided in any other taxable year.

The Company makes no representations or warranties to Executive with respect to any tax, economic or legal consequences of this Agreement or any payments or other benefits provided hereunder, including without limitation under Code Section 409A, and no provision of the Agreement shall be interpreted or construed to transfer any liability for failure to comply with Code Section 409A from Executive or any other individual to the Company or any of its affiliates. Executive, by executing this Agreement, shall be deemed to have waived any claim against the Company and its affiliates with respect to any such tax, economic or legal consequences of this Agreement or any payments or other benefits provided hereunder. However, the parties intend that this Agreement and the payments and other benefits provided hereunder be exempt from the requirements of Code Section 409A to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-l(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-l(b)(9)(iii), or otherwise. To the extent Code Section 409A is applicable to this Agreement (and such payments and benefits), the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Code Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. In addition, if Executive is a “specified employee,” within the meaning of Code Section 409A, then to the extent necessary to avoid subjecting Executive to the imposition of any additional tax under Code Section 409A, amounts that would otherwise be payable under this Agreement during the six (6) month period immediately following Executive’s “separation from service” for reasons other than Executive’s death (except those payments that may be exempt from 409A by virtue of the short-term deferral exception to 409A) shall not be paid to Executive during such period, but shall instead be

 

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accumulated and paid to Executive in a lump sum on the first business day after the date that is six (6) months following Executive’s separation from service.

 

  H. No Mitigation/Offset

In order to receive severance benefits provided in this Agreement, Executive shall not be required to engage in mitigation activities or seek alternative employment, nor would any other compensation received by Executive serve as an offset agreement to the severance or other benefits provided in this Agreement.

 

  I. Attorneys Fees

The Company shall reimburse Executive for up to $1,500 in legal fees incurred for the negotiation of this agreement.

 

  J. Disputes

(1) In the event of a dispute or claim between Executive and the Company related to Employee’s employment or termination of employment, all such disputes or claims will be resolved exclusively by confidential arbitration in accordance with the Employment Arbitration Rules of the American Arbitration Association (the “AAA”). This means that the parties agree to waive their rights to have such disputes or claims decided in court by a jury. Instead, such disputes or claims will be resolved by an impartial AAA arbitrator (or other mutually agreeable person) whose decision will be final.

(2) The only disputes or claims that are not subject to arbitration are any claims by Executive for workers’ compensation or unemployment benefits, and any claim by Executive for benefits under an employee benefit plan that provides its own arbitration procedure. Also, Executive and Employer may seek injunctive relief in court in appropriate circumstances.

(3) The arbitration procedure will afford Executive and Employer the full range of statutory remedies, based on the statutes of limitations that would apply to the specific claims asserted as if they were asserted in court. Employer will pay all costs that are unique to arbitration, except that the party who initiates arbitration will pay the filing fee charged by AAA. Executive and Employer shall be entitled to discovery sufficient to adequately arbitrate their claims, including access to essential documents and witnesses, as determined by the arbitrator and subject to limited judicial review. In order for any judicial review of the arbitrator’s decision to be successfully accomplished, the arbitrator will issue a written decision that will decide all issues submitted and will reveal the essential findings and conclusions on which the award is based.

 

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IN WITNESS WHEREOF , the parties have executed and entered into this Agreement effective on the date first set forth above.

 

GODFREY EVANS

LOGO

Date  

 

HOMESTREET, INC.
By  

/s/ Gerhardt Morrison

Its   HRGC Chair
Date   May 26, 2011
HOMESTREET BANK
By  

/s/ Cynthia P. Sonstelie

Its   CHAIR HRCG
Date   6/1/11

 

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EXHIBIT A

WAIVER AND RELEASE

 

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WAIVER AND RELEASE

PLEASE READ THIS WAIVER AND RELEASE CAREFULLY. IT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS UP TO AND INCLUDING THE DATE THAT THIS AGREEMENT AND RELEASE IS EXECUTED BY THE COMPANY AND THE EXECUTIVE.

For and in consideration of the payments and other benefits due to [Godfrey Evans] (the “ Executive ”) pursuant to the Employment Agreement (the “ Employment Agreement ”) entered into as              , 2011 (the “ Effective Date ”), by and between HomeStreet, Inc., and HomeStreet Bank, and their respective subsidiaries (together the “Company”) and the Executive, and for other good and valuable consideration, including the mutual promises made herein, the Executive and the Company irrevocably and unconditionally release and forever discharge each other and each and all of their present and former officers, agents, directors, managers, employees, representatives, affiliates, shareholders, members, and each of their successors and assigns, and all persons acting by, through, under or in concert with it, and in each case individually and in their official capacities (collectively, the “ Released Parties ”), from any and all charges, complaints, grievances, claims and liabilities of any kind or nature whatsoever, known or unknown, suspected or unsuspected (hereinafter referred to as “claim” or “claims”) which either party at any time heretofore had or claimed to have or which either party may have or claim to have regarding events that have occurred up to and including the date of the execution of this Release, including, without limitation, any and all claims related, in any manner, to the Executive’s employment or the termination thereof. In particular, each party understands and agrees that the parties’ release includes, without limitation, all matters arising under any federal, state, or local law, including civil rights laws and regulations prohibiting employment discrimination on the basis of race, color, religion, age, sex, national origin, ancestry, disability, medical condition, veteran status, marital status and sexual orientation, or any other characteristic protected by federal, state or local law including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, the Older Workers Benefit Protection Act of 1990, as amended, the Americans with Disabilities Act, the Rehabilitation Act, the Occupational Safety and Health Act, the Family and Medical Leave Act, the Employee Retirement Income Security Act of 1974, as amended (except as to vested retirement benefits, if any), the Worker Adjustment and Retraining Notification Act, the Washington Law Against Discrimination, RCW 49.60, The Washington Wage Rebate Act, RCW 49.52, the Washington Unpaid Wages Act, RCW 49.48, federal and state wage and hour laws, or any common law, public policy, contract (whether oral or written, express or implied) or tort law, or any other federal, state or local law, regulation, ordinance or rule having any bearing whatsoever.

The Executive must sign and return this Release by personal or guaranteed overnight delivery to the attention of the Human Resources Director, 1800 Two Union square, 601 Union Street, Seattle WA 98101 no earlier than the Date of Termination and no later than «Sign_date», which is the 60th day following the Date of Termination. The Executive can revoke this Release within seven days after executing the Release by sending written notification to the Company of Executive’s intent to revoke the Release, and this Release shall not become effective or enforceable until such revocation period has expired. The Executive’s written notification of the intent to revoke the Release must be sent to the

 

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Human Resources Director, 1900 Two Union Square, 601 Union Street, Seattle WA 98101 by personal delivery or guaranteed overnight delivery, within seven days after the Executive executed the Release.

The Executive and Company acknowledge that they may have sustained losses that are currently unknown or unsuspected, and that such damages or losses could give rise to additional causes of action, claims, demands and debts in the future. Nevertheless, the Executive and Company each acknowledge that this Release has been agreed upon in light of this realization and, being fully aware of this situation, the Executive and Company nevertheless intend to release the each other from any and all such unknown claims, including damages which are unknown or unanticipated. The parties understand the word “claims” to include all actions, claims, and grievances, whether actual or potential, known or unknown, and specifically but not exclusively all claims arising out of the Executive’s employment and the termination thereof. All such “claims” (including related attorneys’ fees and costs) are forever barred by this Release and without regard to whether those claims are based on any alleged breach of a duty arising in a statute, contract, or tort; any alleged unlawful act, including, without limitation, age discrimination; any other claim or cause of action; and regardless of the forum in which it might be brought.

Notwithstanding anything else herein to the contrary, this Release shall not affect, and the Executive and the Company, as applicable, do not waive or release: (i) rights to indemnification the Executive may have under (A) applicable law, (B) any other agreement between the Executive and a Released Party and (C) as an insured under any director’s and officer’s liability or other insurance policy now or previously in force; (ii) any right the Executive may have to obtain contribution in the event of the entry of judgment against the Executive as a result of any act or failure to act for which both the Executive and any of the Company or its affiliates or subsidiaries (collectively, the “ Affiliated Entities ”) are or may be jointly responsible; (iii) the Executive’s rights to benefits and payments under any stock options, restricted stock, restricted stock units or other incentive plans or under any retirement plan, welfare benefit plan or other benefit or deferred compensation plan, all of which shall remain in effect in accordance with the terms and provisions of such benefit and/or incentive plans and any agreements under which such stock options, restricted shares, restricted stock units or other awards or incentives were granted or benefits were made available; (iv) the Executive’s rights as a stockholder of any of the Affiliated Entities; (v) any obligations of the Affiliated Entities under the Employment Agreement (vi) any clawback required pursuant to restrictions on compensation for employees of financial institutions; (vii), any claims brought by the Federal Deposit Insurance Corporation as receiver or conservator of the Bank that have not been released or waived by the Company; (viii) claims for improper self-dealing; improper distributions and other limitations imposed by RCW 23B.08.320; (ix) any finally and judicially determined, knowing violation of the law by Executive that has a material and adverse impact on the Company; (x) any fraud or other intentional misconduct by Executive that has a material and adverse impact on the Company; (xi) any material violation of any confidentiality, nonsolicitation or noncompetition agreement or provision executed by Executive; or (xii) any other claim not subject to release by operation of law.

 

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The Executive waives all rights under section 1542 of the Civil Code of the State of California or any comparable or analogous Federal law or any other state law. Section 1542 provides as follows:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

The Executive acknowledges and agrees that the Executive: (a) has been given at least [21/45] days within which to consider this Release and its ramifications and discuss the terms of this Release with the Company before executing it (and that any modification of this Release, whether material or immaterial, will not restart or change the original [21/45] day consideration period) and the Executive fully understands that by signing below the Executive is voluntarily giving up any right which the Executive may have to sue or bring any other claims against the Released Parties; (b) has been given seven days after returning the Release to the Company to revoke this Release; (c) has been advised to consult legal counsel regarding the terms of this Release; (d) has carefully read and fully understands all of the provisions of this Release; (e) knowingly and voluntarily agrees to all of the terms set forth in this Release; and (f) knowingly and voluntarily intends to be legally bound by the same. The Executive also understands that, notwithstanding anything in this Release to the contrary, nothing in this Release shall be construed to prohibit the Executive from (i) filing a charge or complaint with the Equal Employment Opportunity Commission or Washington State Human Rights Commission or any other federal, state or local administrative or regulatory agency, or (ii) participating in any investigation or proceedings conducted by the Equal Employment Opportunity Commission or any other federal, state or local administrative or regulatory agency; however, the Executive expressly waives the right to any relief of any kind in the event that the Equal Employment Opportunity Commission or Washington State Human Rights Commission or any other federal, state or local administrative or regulatory agency pursues any claim on the Executive’s behalf.

This Release is final and binding and may not be changed or modified except in a writing signed by both parties.

 

 

     

 

Date

      [Name]

 

3


EXHIBIT B

EXECUTIVE CONFIDENTIALITY AGREEMENT

 

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EXECUTIVE CONFIDENTIALITY AGREEMENT

This Confidentiality Agreement (“Agreement”) is between HomeStreet, Inc., HomeStreet Bank (“Bank”) and their affiliate or subsidiary organizations and their successors and assigns (collectively, the “ Company ” or “HomeStreet”) and Godfrey Evans (“ Executive ” or “Recipient”) (collectively, the “ Parties ”).

Executive is currently employed as the General Counsel of the Bank and HomeStreet, Inc. It is the intent of the Parties that this Agreement will become effective upon the termination of Executive’s services to the Company. By virtue of his position with the Company, Executive has access to Confidential Information (defined below). HomeStreet must have assurance from Recipient that all Confidential Information provided to Recipient is and remains confidential after termination of his services. Therefore, for valuable consideration, the receipt of which is acknowledged to be sufficient, Recipient and HomeStreet agree as follows:

 

1. “Confidential Information” means information concerning the business, operations, strategies, financial status, products, services, customer names, customer lists and customer information of HomeStreet, which is confidential or proprietary to HomeStreet.

 

2. Confidential Information does not include information that: (a) is or becomes generally available to the public through no fault or act of Recipient or any of his Representatives in violation of this Agreement; (b) is or becomes available to Recipient or his representatives on a non-confidential basis from a source other than HomeStreet not known to Recipient or such Representatives to be prohibited from disclosing such information by a contractual, legal or fiduciary obligation of confidentiality; (c) is independently developed by the Recipient or his representatives without use of or reliance on, either directly or indirectly, Confidential Information; or (d) was known to or in the possession of Recipient or one of his representatives on a non-confidential basis prior to disclosure by HomeStreet under the terms of this Agreement; or (e) is developed primarily through the efforts or work product of Executive.

 

3.

After the termination of his services or employment agreement, Recipient agrees not to disclose any Confidential Information to any third party, unless such third party is a fiduciary, affiliate or HomeStreet vendor and such vendor and HomeStreet have signed a similar confidentiality agreement, or such disclosure of Confidential Information is required by lawful judicial or governmental order. Recipient agrees to give HomeStreet reasonable notice in writing in advance of releasing Confidential Information pursuant to any judicial or governmental order. Recipient additionally agrees to implement and maintain at all times reasonably appropriate procedures and controls to ensure at all times the security and confidentiality of all of HomeStreet’s

 

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Confidential Information, to protect against any anticipated threats or hazards to the security or integrity of such information; and to protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to Home Street or any customer of HomeStreet. Recipient agrees to notify HomeStreet of any known security breach, any known unauthorized release of Confidential Information, or any known unauthorized attempt to access Confidential Information of which it becomes aware within a reasonable time of the occurrence of such event. Such notice will include, at a minimum, the date and time of any such event, the nature and extent of Confidential Information involved in any such event, and the corrective measures taken by Recipient in response to any such event.

 

4. All Confidential Information is and shall remain the property of HomeStreet. No license or conveyance of any right is granted or implied by the distribution of any Confidential Information to Recipient. Recipient agrees not to use, duplicate, or reproduce in any way any Confidential Information for Recipient’s own benefit or financial gain, or for any third party’s benefit or financial gain except to the extent reasonably necessary to analyze and prepare a business proposal to HomeStreet, in connection with rendering services to HomeStreet and to prepare and maintain his internal files in the ordinary course of its business. All documents (originals and copies, including electronic versions) containing Confidential Information shall either be destroyed or disposed of in a manner consistent with the Fair and Accurate Credit Transactions Act of 2003 or, if directed by HomeStreet, returned to HomeStreet upon termination of the rendering of services to HomeStreet by Recipient. Recipient agrees that HomeStreet may take reasonable actions as deemed appropriate by HomeStreet to confirm that Recipient has satisfied these obligations. It is understood that Recipient may retain one archival copy of such information for his internal files except for Bank customer loan files and documents containing private customer information.

 

5. By making any Confidential Information available to Recipient, HomeStreet makes no representation, warranty or guarantee, either express or implied, as to the accuracy or completeness of any Confidential Information or to the format in which such Confidential Information is provided to Recipient. Except as otherwise provided in any engagement letter, HomeStreet shall not be liable to any party for damages, of whatever kind, as a result of Recipient’s reliance on any Confidential Information or any format in which Confidential Information is made available to Recipient.

 

6. Recipient acknowledges that due to the highly sensitive nature of the Confidential Information, Recipient will be liable to HomeStreet for all losses suffered by HomeStreet as a result of Recipient’s intentional and material breach of this Agreement. In addition to any other remedies available to HomeStreet, Recipient agrees that, if Recipient breaches this Agreement, HomeStreet may seek injunctive relief against Recipient to stop any such breach.

 

7.

If either Party to this Agreement commences legal action to enforce any rights arising out of or relating to this Agreement, the prevailing Party in any such action shall be

 

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entitled to recover reasonable attorneys’ fees and costs, including fees and costs on appeal. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Washington and the venue for any legal action shall be Seattle, Washington.

 

8. If Recipient and HomeStreet have entered into any other agreement, the terms of this Agreement shall, by this reference, be incorporated into and made a part of such other agreement, except to the extent otherwise specifically provided in such other agreement. The terms of this Agreement shall survive the termination of rendering of services to HomeStreet by Recipient for a period of ten years.

This Agreement is dated this      day of          , 2011.

 

HomeStreet. Inc.

HomeStreet Bank

     Executive
      

 

       Godfrey Evans
By:  

 

     By:   

 

Title:  

 

       

 

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Exhibit 10.13

EXECUTIVE EMPLOYMENT AGREEMENT

between

HOMESTREET, INC. and HOMESTREET BANK

and

GODFREY EVANS


E XECUTIVE E MPLOYMENT A GREEMENT

This executive employment agreement (“ Agreement ”), effective immediately after the Cease and Desist Order is lifted by the Federal Deposit Insurance Corporation (the “Effective Date”), is between HomeStreet, Inc., HomeStreet Bank (“Bank”) and their affiliate or subsidiary organizations and their successors and assigns (collectively, the “ Company ”) and Godfrey Evans (“ Executive ”) (collectively, the “ Parties ”). In consideration of the foregoing promises and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Company and Executive hereby agree to enter into an employment relationship in accordance with the terms and conditions set forth below.

 

I. EMPLOYMENT

 

  A. Position and Duties

The Company will employ Executive, and Executive will accept employment as the General Counsel and Chief Administrative Officer of HomeStreet Bank and HomeStreet, Inc. and report to the Chief Executive Officer of HomeStreet Bank and HomeStreet, Inc. Executive will perform the duties of General Counsel and Chief Administrative Officer and will devote his full time and attention to achieving the purposes and discharging the responsibilities afforded the positions, and such other duties as may be assigned from time to time by the Company, which relate to the business of the Company and are reasonably consistent with Executive’s position. During Executive’s employment, Executive will not engage in any business activity that, in the reasonable judgment of the Chief Executive Officer, conflicts with the duties of Executive under this Agreement, whether or not such activity is pursued for gain, profit or other advantage. Executive will comply with Company policies and procedures, and all applicable laws and regulations. Executive shall be employed at the Company headquarters in Seattle, Washington.

 

  B. Term of Agreement

This Agreement shall commence on the Effective Date and continue for an initial term of three (3) years unless sooner terminated as set forth in Section III. The Agreement shall automatically renew for successive one (1) year terms, unless either party provides the other with written notice of its intent not to renew no less than 180 days prior to the end of its term. Notwithstanding any termination of this Agreement or Executive’s employment, the Executive shall remain subject to the restrictions in Section IV of this Agreement.

 

II. COMPENSATION AND BENEFITS

The Company agrees to pay to Executive and Executive agrees to accept in exchange for the services rendered hereunder the following compensation and benefits:

 

  A. Annual Salary

Executive’s compensation shall consist of an annual base salary (the “ Salary ”) of no less than $240,000, payable in accordance with the payroll practices of the Company. The Salary shall be reviewed at least annually, and may be subject to increase, by the Chief Executive Officer or the Board of Directors of the Company (or the Compensation Committee thereof)

 

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while Executive is employed hereunder. Executive’s Salary may decrease only with his agreement.

 

  B. Annual Incentive Payment

The Company shall establish a performance-based, target incentive bonus under the terms of the Company’s incentive bonus compensation plan pursuant to which Executive may receive, based on completion of objectives no less than 40% of Executive’s Salary (or such higher amount as the Chief Executive Officer, Board or its Compensation Committee may approve) (“ Target Incentive Payment ”), less required withholding and authorized deductions. The Chief Executive Officer or the Board or its Compensation Committee and Executive shall establish the mutually acceptable performance objectives and related payout ratios no later than May 31 of each fiscal year. The Chief Executive Officer, Board, or the Board’s Compensation Committee, shall reasonably determine the extent to which the Target Incentive Payment has been earned and shall ensure that the Target Incentive Payment complies with Sound Incentive Compensation Planning Guidelines and other restrictions applicable to financial institutions.

 

  C. Equity Compensation

Executive has been awarded stock options and restricted stock consistent with Company benefits plans so that Executive holds equity rights to approximately .7% of the outstanding share of HorneStreet, Inc. stock (25,000 shares). For the purposes of this provision, these shares shall be referred to as Executive’s “initial executive award.” Executive’s rights with respect to such stock options and restricted stock shall continue, subject to the terms of any applicable grant or plan. In the event of an Initial Public Offering of stock in HomeStreet, Inc., HomeStreet, Inc. shall provide additional equity grants (which may be in the form of restricted stock or stock options) to Executive so that his percentage ownership in HomeStreet, Inc. following the Initial Public Offering remains equal to his ownership interest prior to the Initial Public Offering calculated by multiplying the percentage of HomeStreet, Inc.’s pre-offering common stock reflected by Executive’s initial executive award, by the number of shares of HomeStreet, Inc. common stock as measured immediately after the completion of the Initial Public Offering, and subtracting from that result the number of shares represented in the initial executive award. Three-Fourths of these awards (75%) will take the form of stock options, with an exercise price equal to the Initial Public Offering price or if issuance is delayed, then with an exercise price equal to the stock price on the day the options are issued; the remaining one-fourth (25%) will take the form of restricted stock awards. Stock options will vest ratably in thirds over each of the first three anniversaries of the closing of the Initial Public Offering. The restricted stock awards will vest upon the occurrence of certain events based upon an increase in the price of HomeStreet, Inc. common stock in comparison to the price at which the Initial Public Offering is consummated: one-third of the awards vest upon an increase in Company stock price of 25% from the Initial Public Offering price; an additional one-third vest upon an increase of 40% from the Initial Public Offering price; and the remaining one-third vest upon an increase of 50% from the Initial Public Offering price. Executive may be awarded additional stock options or restricted stock at the discretion of the Compensation Committee of the Board and consistent with any stock plans or agreements.

 

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  D. Benefits

Executive shall be eligible to participate, subject to and in accordance with applicable eligibility requirements, in such benefit programs as are provided to the Company’s executives, which may include, at a minimum, vacation, sick leave, basic health, life and disability insurance.

 

  E. Business Expenses

Executive shall be reimbursed for all reasonable out-of-pocket expenses actually incurred by Executive in the conduct of the business of the Company, provided that Executive submits substantiation of all such expenses to the Company on a timely basis in accordance with standard policies of the Company, effective as such on the date such expenses are incurred.

 

  F. Allocation of Payments

HomeStreet, Inc. and HomeStreet Bank shall from time to time allocate between them the obligation to make payments hereunder. Such allocation shall not affect the joint and several liability of HomeStreet, Inc. and HomeStreet Bank under this Agreement as provided in Section VI.D.

 

III. TERMINATION

 

  A. Employment Termination

This Agreement and Executive’s employment may be terminated by the Company for Cause (as defined below), or without Cause or by Executive for Good Reason (as defined below) or without Good Reason or upon the Executive’s death or Total Disability. Except where a specific notice procedure is described herein, the Company or Executive shall provide the other party at least sixty (60) days notice of any termination (or 60 days pay in lieu of notice). Upon any termination of employment, Executive shall be entitled to receive payments or benefits as described in this Agreement.

 

  B. Automatic Termination on Death or Total Disability

This Agreement and Executive’s employment hereunder shall terminate automatically upon the death or Total Disability of Executive. “ Total Disability ” shall have the same meaning as defined in the Company’s long-term disability plan or policy. Termination hereunder shall be deemed to be effective (a) upon Executive’s death or (b) immediately upon the sooner to occur of a determination by the Company’s long-term disability insurance carrier or Executive’s primary care physician that Executive is disabled and eligible for long-term disability benefits. Executive shall receive the following benefits on termination of employment for Death or Disability:

(1) Executive’s earned but unpaid Salary through the effective date of the termination;

 

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(2) Any earned but unpaid incentive compensation, including incentive compensation earned in the previous year but not yet paid and pro rata incentive compensation earned for the year in which termination occurs;

(3) Accrued but unused vacation pay consistent with the Company vacation policy;

(4) Reimbursable business expenses for activities prior to the effective date of termination;

(5) Executive’s vested stock options and other equity grants shall remain exercisable for one year after Death or Total Disability consistent with the terms of the applicable plan;

(6) Any severance pay for which Executive may be eligible under the terms of the Company’s nondiscriminatory severance plan.

(7) In the event of Total Disability, provided that such payments do not result in a violation the non-discrimination rules under Section 105(h) of the Internal Revenue Code, Company shall pay to the applicable insurer the health care insurance premiums for Executive and his eligible dependents during the 18 months of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), provided Executive and his dependents elect COBRA continuation coverage;

(8) In the event of Total Disability, in order to receive the benefits described herein that Executive is not otherwise entitled to receive, no later than sixty (60) days after termination of employment, the Company and Executive must execute a release agreement (“Release”) substantially in the form of Exhibit ‘A’ attached hereto in order to receive the severance benefits. The Release will be effective upon completion of the payments (other than the health insurance premiums described above) due to Executive. Executive must also remain in substantial and continued compliance with the terms of Section IV of this Agreement.

(9) In the event of death, all payments shall be made to the person or persons identified as the Executive’s beneficiary for any Company-sponsored life insurance.

 

  C. Termination Without Cause or Executive Resigns for Good Reason Immediately Before or Following a Change of Control

If Executive’s employment terminates by the Company without Cause or by Executive for Good Reason within one year following or during the ninety (90) days immediately preceding a Change of Control (as defined below), then Executive shall be entitled to receive the following termination payments:

(1) As severance pay, two times Executive’s annual Salary at the rate in effect immediately prior to termination, paid in a lump sum within ten (10) days following the day Executive signs the Release agreement identified above; provided, however, the payment may be delayed as required to avoid additional tax for a “specified employee” under Section 409A as described in Section VI.G;

 

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(2) Two times Executive’s Annual Incentive Payment, calculated as the greater of the Annual Incentive Payment earned by Executive in the year prior to termination or Executive’s Target Incentive Payment for the current year, paid in a lump sum within ten (10) days following the day Executive signs the release agreement identified above; provided, however, the payment may be delayed as required to avoid additional tax for a “specified employee” under Section 409A as described in Section VI.G;

(3) Provided that such payments do not result in a violation of the non-discrimination rules under Section 105(h) of the Internal Revenue Code and provided Executive and his dependents timely (and properly) elect COBRA continuation coverage under the Company’s group health plan(s), Company shall pay to the applicable insurer Executive and Executive’s eligible dependents’ continuing health insurance coverage for the shorter of (i) eighteen (18) months; (ii) until such date as Executive is no longer entitled to continuation coverage pursuant to COBRA under the Company’s group health plan(s); or (iii) until such date as Executive obtains health coverage through another employer;

(4) Executive’s earned but unpaid Salary through the effective date of termination, paid on the next regularly scheduled payroll date following the effective date of termination;

(5) Any earned but unpaid incentive compensation, including incentive compensation earned in the prior year but not yet paid and pro rata incentive compensation earned for the year in which termination occurs;

(6) The value of Executive’s accrued but unused vacation, consistent with the Company’s vacation policy applicable to all employees;

(7) Reimbursement of all reasonable business expenses incurred for activities prior to the effective date of termination;

(8) Upon termination under circumstances identified in this section, all of Executive’s unvested stock options and other equity grants shall immediately vest and remain exercisable consistent with any stock option grant or plan;

(9) In order to receive the benefits described herein that Executive is not otherwise entitled to receive, no later than sixty (60) days after termination of employment, the Company and Executive must execute a Release agreement substantially in the form attached hereto as Exhibit ‘A’ in order to receive the severance benefits. The Release will be effective upon completion of all payments due to Executive other than the health insurance premiums described above. Executive must also remain in substantial and continued compliance with the terms of Section IV of this Agreement.

 

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  D. Termination with Cause or Resignation Without Good Reason

If the Company terminates Executive’s employment with Cause or Executive resigns without Good Reason, the Company shall provide Executive compensation and benefits as follows:

(1) Payment of Executive’s earned but unpaid Salary through the effective date of termination.

(2) Payment of the value of Executive’s earned but unused vacation consistent with Company policy that applies to all employees.

(3) Reimbursement of all reasonable business expenses incurred for activities prior to the Effective Date of termination.

(4) Any vested equity grants which shall remain exercisable to the extent provided under the terms of any grant or plan.

 

  E. Termination Without Cause or Executive Resigns for Good Reason

If the Company terminates Executive’s employment without Cause or Executive terminates his employment for Good Reason unrelated to a Change of Control, then Executive shall be entitled to receive the following termination payments:

(1) As severance pay, two times Executive’s annual Salary at the rate in effect immediately prior to termination, paid in a lump sum within ten (10) days following the day Executive signs the release agreement identified below, provided, however the payment may be delayed as required to avoid additional tax for a “specified employee” under Section 409A as stated in Section VI.G;

(2) Two times Executive’s Annual Incentive Payment, calculated as the greater of the Annual Incentive Payment earned by Executive in the year prior to termination or Executive’s Target Incentive Payment for the current year, paid in a lump sum within ten (10) days following the day Executive signs the release agreement identified below, provided, however the payment may be delayed as required to avoid additional tax for a “specified employee” under Section 409A as stated in Section VI.G;

(3) Provided that such payments do not result in a violation of the non-discrimination rules under Section 105(h) of the Internal Revenue Code, and provided Executive and his dependents timely (and properly) elect COBRA continuation coverage under the Company’s group health plan(s), Company shall pay to the applicable insurer Executive and Executive’s eligible dependents’ continuing health insurance coverage for the shorter of (i) eighteen (18) months; (ii) until such date as Executive is no longer entitled to continuation coverage pursuant to COBRA under the Company’s group health plan(s); or (iii) until such date as Executive obtains health coverage through another employer;

(4) Executive’s earned but unpaid Salary, paid on the next regularly scheduled payroll date following the date on which Executive’s employment terminated;

 

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(5) Any earned but unpaid incentive compensation, including incentive compensation earned in the prior year but not yet paid and pro rata incentive compensation earned for the year in which termination occurs;

(6) The value of Executive’s accrued but unused vacation, consistent with the Company’s vacation policy applicable to all employees;

(7) Reimbursement of all reasonable business expenses incurred for activities prior to the effective date of termination;

(8) All of Executive’s unvested stock options and other equity grants shall vest and remain exercisable consistent with any such grant or applicable plan;

(9) In order to receive the benefits described herein that Executive is not otherwise entitled to receive, no later than sixty (60) days after termination of employment, the Company and Executive must execute a Release agreement substantially in the form attached hereto as Exhibit ‘A’ in order to receive the severance benefits. The Release is effective upon completion of payments due to Executive other than the health insurance premiums described above. Executive must also remain in substantial and continued compliance with the terms of Section IV of this Agreement.

 

  F. Definitions of “Cause”, “Good Reason” and “Change of Control”

 

  1. Cause

Wherever reference is made in this Agreement to termination being with or without Cause, “ Cause ” shall mean the occurrence of one or more of the following events:

(a) the willful and continued failure of the Executive to perform his duties;

(b) the willful engaging by the Executive in illegal conduct or gross misconduct which is materially injurious to the Company;

(c) the Executive’s conviction or plea of guilty or nolo contendere to the charge of commission of a felony; or

(d) the Executive’s breach of a regulatory rule that materially and adversely affects the Executive’s ability to perform the Executive’s principal employment duties for the Company and its affiliates.

(e) Prior to a termination for Cause, Employer shall provide Executive 30-day prior written notice of the claimed basis for the possible “Cause” termination and an opportunity for Executive to cure any defect or deficiency on his performance. Upon request, Executive shall be entitled to a hearing before the Board of Directors with representation by counsel. “Cause” shall be established by affirmative vote of at least two-thirds of the entire Board of each employer in order to determine “Cause.”

 

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  2. Good Reason

For the purposes of this Agreement, “ Good Reason ” shall mean that Executive, without his consent, has experienced one of the following events or circumstances:

(a) the assignment to the Executive of any duties materially diminished from those in effect immediately prior to such assignment;

(b) a change in the Executive’s authority, duties or responsibilities which represents a material adverse change from those in effect immediately prior to such change;

(c) a material decrease in the Executive’s annual Salary without his prior agreement;

(d) solely following a Change of Control, relocation of the Executive’s principal place of employment to a location that increases the Executive’s commute from his primary residence by more than 30 miles one way; or

(e) any other action or inaction that constitutes a material breach of the terms of the Agreement by the Company.

(f) To comply with Section 409A of the Code, the Executive must give written notice of termination of employment within 60 days after the occurrence of the circumstances constituting Good Reason, and the Company will have 30 days to cure the circumstances constituting Good Reason, and the Executive’s “separation from service” must occur no later than six months following the initial existence of the circumstances giving rise to Good Reason.

Notwithstanding the foregoing, termination of employment by Executive will not be for Good Reason unless (i) Executive notifies the Company in writing of the existence of the condition which Executive believes constitutes Good Reason within sixty (60) days of the initial existence of such condition (which notice specifically identifies such condition), and (ii) the Company fails to remedy such condition within thirty (30) days after the date on which it receives such notice (the “Remedial Period”) whereupon Executive’s employment shall be deemed to be terminated for Good Reason upon failure of the Company to remedy. If Company attempts to cure, or disputes the existence of Good Reason, it shall provide documentary evidence thereof to Executive within the Remedial Period. Executive may elect to remain employed by Company and dispute any response by Company during the Remedial Period, without prejudice to the claim of Good Reason, by invoking the provisions of Article VI.I. In the event that Executive remains employed and invokes the dispute resolution process, he shall in any event complete his resignation within two years of the end of the Remedial Period. If Executive terminates employment before the expiration of the Remedial Period or after the Company remedies the condition (even if within the end of the Remedial Period), then Executive’s termination will not be considered to be for Good Reason.

 

8


  3. Change of Control

For the purposes of this Agreement, “ Change of Control ” means:

(a) one person or entity acquiring or otherwise becoming the owner of twenty-five percent or more of HomeStreet, Inc.’s or HomeStreet Bank’s outstanding shares in any class of shares;

(b) dissolution or sale of fifty percent or more in value of the assets of either HomeStreet, Inc. or HomeStreet Bank; or

(c) a change “in the ownership or effective control” or “in the ownership of a substantial portion of the assets” of HomeStreet, Inc. or HomeStreet Bank, within the meaning of Section 280G of the Internal Revenue Code.

Sale of stock through an Initial Public Offering shall not constitute a “Change of Control” under this Agreement.

 

IV. CONFIDENTIALITY; NON-SOLICITATION;

 

  A. Confidentiality Agreement

Executive recognizes that the Company’s business and continued success depend upon the use and protection of confidential information and proprietary information, and therefore Executive is subject to, and this Agreement is conditioned on agreement to, the terms of the nondisclosure agreement (the “Confidentiality Agreement”) substantially in the form attached hereto as Exhibit ‘B’ entered into by Executive and the terms of the Confidentiality Agreement shall survive the termination of Executive’s employment with the Company or Successor Employer for a period of ten (10) years from termination unless otherwise required by law.

 

  B. Non-Competition

During Executive’s employment with the Company and/or a Successor Employer and for six months after the termination of such employment, Executive will not engage in, be employed by, perform, services for, participate in the ownership, management, control or operation of, or otherwise be connected with, either directly or indirectly, any Competing Business. For purposes of this section, Executive will not be considered to be connected with any Competing Business solely on account of ownership of less than five percent of the outstanding capital stock or other equity interests in any Competing Business. Executive agrees that this restriction is reasonable, but further agrees that should a court exercising jurisdiction with respect to this Agreement find any such restriction invalid or unenforceable due to unreasonableness, either in period of time, geographical area, or otherwise, then in that event, such restriction is to be interpreted and enforced to the maximum extent which such court deems reasonable.

 

  C. Non-Solicitation

(1) During Executive’s employment with the Company and/or a Successor Employer and for six months after the termination of such employment, Executive will not induce, or

 

9


attempt to induce, any employee, executive, Board member or independent contractor of the Company and/or a Successor Employer to cease such employment or relationship to engage in, be employed by, perform services for, participate in the ownership, management, control or operation of, or otherwise be connected with, either directly or indirectly, any Competing Business (defined below).

(2) During Executive’s employment with the Company and/or a Successor Employer and for six months after the termination of such employment, Executive will not, directly or indirectly solicit, divert, appropriate to or accept on behalf of any Competing Business, any business or account from any customer of the Company or entity about whom Executive has acquired confidential information in the course of his employment.

 

  D. Competing Business

“Competing Business” means any bank or thrift with an office or branch in Washington, Oregon, Idaho or Hawaii.

 

V. ASSIGNMENT

This Agreement is personal to Executive and shall not be assignable by Executive. The Company may assign its rights hereunder to (a) any other corporation resulting from any merger, consolidation or other reorganization to which the Company is a party; (b) any other corporation, partnership, association or other person to which the Company may transfer all or substantially all of the assets and business of the Company existing at such time; or (c) any subsidiary, parent or other affiliate of the Company (“ Successor Employer ”). All of the terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns.

 

VI. MISCELLANEOUS

 

  A. Amendments

No amendment, modification, waiver, termination or discharge of any provision of this Agreement, or consent to any departure therefrom by either party hereto, shall in any event be effective unless the same shall be in writing, specifically identifying this Agreement and the provision intended to be amended, modified, waived, terminated or discharged and signed by the Company and Executive, and each such amendment, modification, waiver, termination or discharge shall be effective only in the specific instance and for the specific purpose for which given. No provision of this Agreement shall be varied, contradicted or explained by any oral agreement, course of dealing or performance or any other matter not set forth in an agreement in writing and signed by the Company and Executive.

 

  B. Applicable Law

This Agreement shall in all respects, including all matters of construction, validity and performance, be governed by, and construed and enforced in accordance with, the laws of the State of Washington, without regard to any rules governing conflicts of laws.

 

10


  C. Entire Agreement

This Agreement, on and as of the date hereof, constitutes the entire agreement between the Company and Executive with respect to the subject matter hereof. To the extent any agreement, plan or policy of the Company is inconsistent with this Agreement, the provisions of this Agreement shall prevail and control and such other agreement, plan or policy will be construed by Company to be consistent with this Agreement and, if that is not possible, the other agreement, plan or policy shall be modified as to Executive to be in conformance with this Agreement. It is the intent of the parties that Executive shall, to the extent allowed by law, enjoy the full benefit of all obligations of Company set forth herein.

 

  D. Severability

If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any regulatory action, applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability, regardless of the reason therefor shall not affect any other provision of this Agreement or any action in any other jurisdiction, or the obligation of any other entity to this Agreement. If either entity to this Agreement is determined by any regulatory authority or court not to be able to perform its obligation(s) to Executive or not to have the authority to enter into this Agreement, then the other entity shall be liable therefor.

The obligations to Executive herein are the joint and several obligations of HomeStreet Inc. and HomeStreet Bank and there shall be joint and several liability of those entities in the event of any default to Executive by either for any reason.

 

  E. Legal Limitations

Notwithstanding any provision to the contrary in this Agreement, no payment of any type or amount of compensation or benefits shall be made or owed by Company to Executive pursuant to this Agreement or otherwise if payment of such type or amount is prohibited by, is not permitted under, or has not received any required approval under, any applicable governmental statute, regulation, rule, order (including any cease and desist order), determination, opinion, or similar provision whether now in existence or hereafter adopted or imposed, including without limitation, by or under (i) any provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) and regulations promulgated thereunder, (ii) any governmental provisions relating to indemnification by Company or an affiliate, including without limitation any applicable prohibitions or restrictions on depository institutions and their affiliates set forth in 12 USC 1828(k) or in 12 CFR Part 359, or (iii) any governmental provisions relating to payment of golden parachutes or similar payments, including without limitation any prohibitions or restrictions on such payments by troubled institutions and companies and their affiliates set forth in 12 USC 1828(k) or in 12 CFR Part 359. In the event any payment to Executive is prohibited or otherwise restricted, (x)  such payment shall, to the extent allowed by law, order or regulatory determination and not objected to by applicable banking or other regulatory agencies, be reinstated as an obligation of the obligor(s) without further action immediately upon the cessation of such prohibition or restriction, and (y)  the Company shall use its best efforts to secure the consent, if any shall be required, of the FDIC or

 

11


other applicable banking or other regulatory agencies to make such payments in the highest amount permissible, up to the amount provided for in this Agreement.

If any payment made to Executive hereunder or under any prior employment agreement or arrangement is required under any applicable governmental provision (including, without limitation, Dodd-Frank and regulations promulgated thereunder) to be paid back to Company, the Executive shall upon written demand from Company promptly pay such amount back to Company.

 

  F. Code Section 280G

Notwithstanding anything in this Agreement to the contrary, if Executive becomes entitled to receive or receives any payment or benefit under this Agreement or under any other plan, agreement or arrangement with the Company, any person whose actions result in a Change of Control or any person affiliated with the Company or such person (all such payments and benefits being referred to herein as the “Total Payments”) and it is determined that any of the Total Payments will be subject to any excise tax pursuant to Code Section 4999, or any similar or successor provision (the “Excise Tax”), the Company shall pay to Executive an additional amount so that Executive’s net payment shall not be diminished in any respect by the additional Excise Tax.

 

  G. Code Section 409A

With respect to any payments or benefits hereunder that are subject to Code Section 409A and any official guidance and regulations issued thereunder (together “ Code Section 409A ”) and that are payable on account of Executive’s termination of employment, such payments shall only be made if such termination of employment constitutes a “separation from service” within the meaning of Code Section 409A. The Company may adjust any payment hereunder to avoid liability or obligation under Code Section 409A but such adjustments shall ensure that the payments are made in a manner that is as close to the terms of this Agreement as possible. Notwithstanding anything to the contrary contained in this Agreement, all reimbursements for costs and expenses under this Agreement will be paid in no event later than the end of the calendar year following the calendar year in which Executive incurs such expense. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (ii) the amount of expenses eligible for reimbursements or in-kind benefits provided during any taxable year shall not affect the expenses eligible for reimbursement or in-kind benefits to be provided in any other taxable year.

The Company makes no representations or warranties to Executive with respect to any tax, economic or legal consequences of this Agreement or any payments or other benefits provided hereunder, including without limitation under Code Section 409A, and no provision of the Agreement shall be interpreted or construed to transfer any liability for failure to comply with Code Section 409A from Executive or any other individual to the Company or any of its affiliates. Executive, by executing this Agreement, shall be deemed to have waived any claim against the Company and its affiliates with respect to any such tax, economic or legal

 

12


consequences of this Agreement or any payments or other benefits provided hereunder. However, the parties intend that this Agreement and the payments and other benefits provided hereunder be exempt from the requirements of Code Section 409A to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-l(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-l(b)(9)(iii), or otherwise. To the extent Code Section 409A is applicable to this Agreement (and such payments and benefits), the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Code Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. In addition, if Executive is a “specified employee,” within the meaning of Code Section 409A, then to the extent necessary to avoid subjecting Executive to the imposition of any additional tax under Code Section 409A, amounts that would otherwise be payable under this Agreement during the six (6) month period immediately following Executive’s “separation from service” for reasons other than Executive’s death (except those payments that may be exempt from 409A by virtue of the short-term deferral exception to 409A) shall not be paid to Executive during such period, but shall instead be accumulated and paid to Executive in a lump sum on the first business day after the date that is six (6) months following Executive’s separation from service.

 

  H. No Mitigation/Offset

In order to receive severance benefits provided in this Agreement, Executive shall not be required to engage in mitigation activities or seek alternative employment, nor would any other compensation received by Executive serve as an offset agreement to the severance or other benefits provided in this Agreement.

 

  I. Disputes

(1) In the event of a dispute or claim between Executive and the Company related to Employee’s employment or termination of employment, all such disputes or claims will be resolved exclusively by confidential arbitration in accordance with the Employment Arbitration Rules of the American Arbitration Association (the “AAA”). This means that the parties agree to waive their rights to have such disputes or claims decided in court by a jury. Instead, such disputes or claims will be resolved by an impartial AAA arbitrator (or other mutually agreeable person) whose decision will be final.

(2) The only disputes or claims that are not subject to arbitration are any claims by Executive for workers’ compensation or unemployment benefits, and any claim by Executive for benefits under an employee benefit plan that provides its own arbitration procedure. Also, Executive and Employer may seek injunctive relief in court in appropriate circumstances.

(3) The arbitration procedure will afford Executive and Employer the full range of statutory remedies, based on the statutes of limitations that would apply to the specific claims asserted as if they were asserted in court. Employer will pay all costs that are unique to arbitration, except that the party who initiates arbitration will pay the filing fee charged by AAA. Executive and Employer shall be entitled to discovery sufficient to adequately arbitrate their

 

13


claims, including access to essential documents and witnesses, as determined by the arbitrator and subject to limited judicial review. In order for any judicial review of the arbitrator’s decision to be successfully accomplished, the arbitrator will issue a written decision that will decide all issues submitted and will reveal the essential findings and conclusions on which the award is based.

IN WITNESS WHEREOF , the parties have executed and entered into this Agreement effective on the date first set forth above.

 

GODFREY EVANS

LOGO

Date

 

 

HOMESTREET, INC,

By

 

/s/ Gerhardt Morrison

Its

  HRGC Chairman

Date

  May 26, 2011
HOMESTREET BANK

By

 

/s/ Cynthia P. Sonstelie

Its

  HRCG CHAIR

Date

  6/1/11

 

14


EXHIBIT A

WAIVER AND RELEASE

 

15


WAIVER AND RELEASE

PLEASE READ THIS WAIVER AND RELEASE CAREFULLY. IT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS UP TO AND INCLUDING THE DATE THAT THIS AGREEMENT AND RELEASE IS EXECUTED BY THE COMPANY AND THE EXECUTIVE.

For and in consideration of the payments and other benefits due to [Godfrey Evans] (the “ Executive ”) pursuant to the Employment Agreement (the “ Employment Agreement ”) entered into as              , 2011 (the “ Effective Date ”), by and between HomeStreet, Inc., and HomeStreet Bank, and their respective subsidiaries (together the “ Company ”) and the Executive, and for other good and valuable consideration, including the mutual promises made herein, the Executive and the Company irrevocably and unconditionally release and forever discharge each other and each and all of their present and former officers, agents, directors, managers, employees, representatives, affiliates, shareholders, members, and each of their successors and assigns, and all persons acting by, through, under or in concert with it, and in each case individually and in their official capacities (collectively, the “ Released Parties ”), from any and all charges, complaints, grievances, claims and liabilities of any kind or nature whatsoever, known or unknown, suspected or unsuspected (hereinafter referred to as “claim” or “claims”) which either party at any time heretofore had or claimed to have or which either party may have or claim to have regarding events that have occurred up to and including the date of the execution of this Release, including, without limitation, any and all claims related, in any manner, to the Executive’s employment or the termination thereof. In particular, each party understands and agrees that the parties’ release includes, without limitation, all matters arising under any federal, state, or local law, including civil rights laws and regulations prohibiting employment discrimination on the basis of race, color, religion, age, sex, national origin, ancestry, disability, medical condition, veteran status, marital status and sexual orientation, or any other characteristic protected by federal, state or local law including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, the Older Workers Benefit Protection Act of 1990, as amended, the Americans with Disabilities Act, the Rehabilitation Act, the Occupational Safety and Health Act, the Family and Medical Leave Act, the Employee Retirement Income Security Act of 1974, as amended (except as to vested retirement benefits, if any), the Worker Adjustment and Retraining Notification Act, the Washington Law Against Discrimination, RCW 49.60, The Washington Wage Rebate Act, RCW 49.52, the Washington Unpaid Wages Act, RCW 49.48, federal and state wage and hour laws, or any common law, public policy, contract (whether oral or written, express or implied) or tort law, or any other federal, state or local law, regulation, ordinance or rule having any bearing whatsoever.

The Executive must sign and return this Release by personal or guaranteed overnight delivery to the attention of the Human Resources Director, 1800 Two Union square, 601 Union Street, Seattle WA 98101 no earlier than the Date of Termination and no later than «Sign_date», which is the 60th day following the Date of Termination. The Executive can revoke this Release within seven days after executing the Release by sending written notification to the Company of Executive’s intent to revoke the Release, and this Release shall not become effective or enforceable until such revocation period has expired. The Executive’s written notification of the intent to revoke the Release must be sent to the

 

1


Human Resources Director, 1900 Two Union Square, 601 Union Street, Seattle WA 98101 by personal delivery or guaranteed overnight delivery, within seven days after the Executive executed the Release.

The Executive and Company acknowledge that they may have sustained losses that are currently unknown or unsuspected, and that such damages or losses could give rise to additional causes of action, claims, demands and debts in the future. Nevertheless, the Executive and Company each acknowledge that this Release has been agreed upon in light of this realization and, being fully aware of this situation, the Executive and Company nevertheless intend to release the each other from any and all such unknown claims, including damages which are unknown or unanticipated. The parties understand the word “claims” to include all actions, claims, and grievances, whether actual or potential, known or unknown, and specifically but not exclusively all claims arising out of the Executive’s employment and the termination thereof. All such “claims” (including related attorneys’ fees and costs) are forever barred by this Release and without regard to whether those claims are based on any alleged breach of a duty arising in a statute, contract, or tort; any alleged unlawful act, including, without limitation, age discrimination; any other claim or cause of action; and regardless of the forum in which it might be brought.

Notwithstanding anything else herein to the contrary, this Release shall not affect, and the Executive and the Company, as applicable, do not waive or release: (i) rights to indemnification the Executive may have under (A) applicable law, (B) any other agreement between the Executive and a Released Party and (C) as an insured under any director’s and officer’s liability or other insurance policy now or previously in force; (ii) any right the Executive may have to obtain contribution in the event of the entry of judgment against the Executive as a result of any act or failure to act for which both the Executive and any of the Company or its affiliates or subsidiaries (collectively, the “ Affiliated Entities ”) are or may be jointly responsible; (iii) the Executive’s rights to benefits and payments under any stock options, restricted stock, restricted stock units or other incentive plans or under any retirement plan, welfare benefit plan or other benefit or deferred compensation plan, all of which shall remain in effect in accordance with the terms and provisions of such benefit and/or incentive plans and any agreements under which such stock options, restricted shares, restricted stock units or other awards or incentives were granted or benefits were made available; (iv) the Executive’s rights as a stockholder of any of the Affiliated Entities; (v) any obligations of the Affiliated Entities under the Employment Agreement (vi) any clawback required pursuant to restrictions on compensation for employees of financial institutions; (vii), any claims brought by the Federal Deposit Insurance Corporation as receiver or conservator of the Bank that have not been released or waived by the Company; (viii) claims for improper self-dealing; improper distributions and other limitations imposed by RCW 23B.08.320; (ix) any finally and judicially determined, knowing violation of the law by Executive that has a material and adverse impact on the Company; (x) any fraud or other intentional misconduct by Executive that has a material and adverse impact on the Company; (xi) any material violation of any confidentiality, nonsolicitation or noncompetition agreement or provision executed by Executive; or (xii)any other claim not subject to release by operation of law.

 

2


The Executive waives all rights under section 1542 of the Civil Code of the State of California or any comparable or analogous Federal law or any other state law. Section 1542 provides as follows:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

The Executive acknowledges and agrees that the Executive: (a) has been given at least [21/45] days within which to consider this Release and its ramifications and discuss the terms of this Release with the Company before executing it (and that any modification of this Release, whether material or immaterial, will not restart or change the original [21/45] day consideration period) and the Executive fully understands that by signing below the Executive is voluntarily giving up any right which the Executive may have to sue or bring any other claims against the Released Parties; (b) has been given seven days after returning the Release to the Company to revoke this Release; (c) has been advised to consult legal counsel regarding the terms of this Release; (d) has carefully read and fully understands all of the provisions of this Release; (e) knowingly and voluntarily agrees to all of the terms set forth in this Release; and (f) knowingly and voluntarily intends to be legally bound by the same. The Executive also understands that, notwithstanding anything in this Release to the contrary, nothing in this Release shall be construed to prohibit the Executive from (i) filing a charge or complaint with the Equal Employment Opportunity Commission or Washington State Human Rights Commission or any other federal, state or local administrative or regulatory agency, or (ii) participating in any investigation or proceedings conducted by the Equal Employment Opportunity Commission or any other federal, state or local administrative or regulatory agency; however, the Executive expressly waives the right to any relief of any kind in the event that the Equal Employment Opportunity Commission or Washington State Human Rights Commission or any other federal, state or local administrative or regulatory agency pursues any claim on the Executive’s behalf.

This Release is final and binding and may not be changed or modified except in a writing signed by both parties.

 

 

     

 

Date

      [Name]

 

3


EXHIBIT B

EXECUTIVE CONFIDENTIALITY AGREEMENT

 

16


EXECUTIVE CONFIDENTIALITY AGREEMENT

This Confidentiality Agreement (“Agreement”) is between HomeStreet, Inc., HomeStreet Bank (“Bank”) and their affiliate or subsidiary organizations and their successors and assigns (collectively, the “ Company ” or “HomeStreet”) and Godfrey Evans (“ Executive ” or “Recipient”) (collectively, the “ Parties ”).

Executive is currently employed as the General Counsel of the Bank and HomeStreet, Inc. It is the intent of the Parties that this Agreement will become effective upon the termination of Executive’s services to the Company. By virtue of his position with the Company, Executive has access to Confidential Information (defined below). HomeStreet must have assurance from Recipient that all Confidential Information provided to Recipient is and remains confidential after termination of his services. Therefore, for valuable consideration, the receipt of which is acknowledged to be sufficient, Recipient and HomeStreet agree as follows:

 

1. “Confidential Information” means information concerning the business, operations, strategies, financial status, products, services, customer names, customer lists and customer information of HomeStreet, which is confidential or proprietary to HomeStreet.

 

2. Confidential Information does not include information that: (a) is or becomes generally available to the public through no fault or act of Recipient or any of his Representatives in violation of this Agreement; (b) is or becomes available to Recipient or his representatives on a non-confidential basis from a source other than HomeStreet not known to Recipient or such Representatives to be prohibited from disclosing such information by a contractual, legal or fiduciary obligation of confidentiality; (c) is independently developed by the Recipient or his representatives without use of or reliance on, either directly or indirectly, Confidential Information; or (d) was known to or in the possession of Recipient or one of his representatives on a non-confidential basis prior to disclosure by HomeStreet under the terms of this Agreement; or (e) is developed primarily through the efforts or work product of Executive.

 

3.

After the termination of his services or employment agreement, Recipient agrees not to disclose any Confidential Information to any third party, unless such third party is a fiduciary, affiliate or HomeStreet vendor and such vendor and HomeStreet have signed a similar confidentiality agreement, or such disclosure of Confidential Information is required by lawful judicial or governmental order. Recipient agrees to give HomeStreet reasonable notice in writing in advance of releasing Confidential Information pursuant to any judicial or governmental order. Recipient additionally agrees to implement and maintain at all times reasonably appropriate procedures and controls to ensure at all times the security and confidentiality of all of HomeStreet’s

 

1


 

Confidential Information, to protect against any anticipated threats or hazards to the security or integrity of such information; and to protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to Home Street or any customer of HomeStreet. Recipient agrees to notify HomeStreet of any known security breach, any known unauthorized release of Confidential Information, or any known unauthorized attempt to access Confidential Information of which it becomes aware within a reasonable time of the occurrence of such event. Such notice will include, at a minimum, the date and time of any such event, the nature and extent of Confidential Information involved in any such event, and the corrective measures taken by Recipient in response to any such event.

 

4. All Confidential Information is and shall remain the property of HomeStreet. No license or conveyance of any right is granted or implied by the distribution of any Confidential Information to Recipient. Recipient agrees not to use, duplicate, or reproduce in any way any Confidential Information for Recipient’s own benefit or financial gain, or for any third party’s benefit or financial gain except to the extent reasonably necessary to analyze and prepare a business proposal to HomeStreet, in connection with rendering services to HomeStreet and to prepare and maintain his internal files in the ordinary course of its business. All documents (originals and copies, including electronic versions) containing Confidential Information shall either be destroyed or disposed of in a manner consistent with the Fair and Accurate Credit Transactions Act of 2003 or, if directed by HomeStreet, returned to HomeStreet upon termination of the rendering of services to HomeStreet by Recipient. Recipient agrees that HomeStreet may take reasonable actions as deemed appropriate by HomeStreet to confirm that Recipient has satisfied these obligations. It is understood that Recipient may retain one archival copy of such information for his internal files except for Bank customer loan files and documents containing private customer information.

 

5. By making any Confidential Information available to Recipient, HomeStreet makes no representation, warranty or guarantee, either express or implied, as to the accuracy or completeness of any Confidential Information or to the format in which such Confidential Information is provided to Recipient. Except as otherwise provided in any engagement letter, HomeStreet shall not be liable to any party for damages, of whatever kind, as a result of Recipient’s reliance on any Confidential Information or any format in which Confidential Information is made available to Recipient.

 

6. Recipient acknowledges that due to the highly sensitive nature of the Confidential Information, Recipient will be liable to HomeStreet for all losses suffered by HomeStreet as a result of Recipient’s intentional and material breach of this Agreement. In addition to any other remedies available to HomeStreet, Recipient agrees that, if Recipient breaches this Agreement, HomeStreet may seek injunctive relief against Recipient to stop any such breach.

 

7.

If either Party to this Agreement commences legal action to enforce any rights arising out of or relating to this Agreement, the prevailing Party in any such action shall be

 

2


 

entitled to recover reasonable attorneys’ fees and costs, including fees and costs on appeal. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Washington and the venue for any legal action shall be Seattle, Washington.

 

8. If Recipient and HomeStreet have entered into any other agreement, the terms of this Agreement shall, by this reference, be incorporated into and made a part of such other agreement, except to the extent otherwise specifically provided in such other agreement. The terms of this Agreement shall survive the termination of rendering of services to HomeStreet by Recipient for a period of ten years.

This Agreement is dated this      day of          , 2011.

 

HomeStreet, Inc.

          

HomeStreet Bank

      Executive   
       

 

  
        Godfrey Evans

By:

 

 

      By:  

 

  

Title:

 

 

          

 

3

Exhibit 10.14

EXECUTIVE EMPLOYMENT AGREEMENT

between

HOMESTREET, INC. and HOMESTREET BANK

and

Jay Iseman


E XECUTIVE E MPLOYMENT A GREEMENT

This executive employment agreement (“ Agreement ”), effective May 3, 2011 (the “Effective Date”), is between HomeStreet, Inc., HomeStreet Bank (“Bank”) and any of their affiliate or subsidiary organizations and their successors and assigns (collectively, the “ Company ”) and Jay Iseman (“ Executive ”) (collectively, the “ Parties ”). In consideration of the foregoing promises and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Company and Executive hereby agree to enter into an employment relationship in accordance with the terms and conditions set forth below.

 

I. EMPLOYMENT

 

  A. Position and Duties

The Company will employ Executive, and Executive will accept employment as the Executive Vice-President and Chief Credit Officer of HomeStreet Bank and HomeStreet, Inc. and report to the Chief Executive Officer of HomeStreet Bank and HomeStreet, Inc. Executive will perform the duties of Executive Vice-President and Chief Credit Officer of each organization as designated above and will devote his full time and attention to achieving the purposes and discharging the responsibilities afforded the positions, and such other duties as may be assigned from time to time by the Company, which relate to the business of the Company and are reasonably consistent with Executive’s position. During Executive’s employment, Executive will not engage in any business activity that, in the reasonable judgment of the Chief Executive Officer, conflicts with the duties of Executive under this Agreement, whether or not such activity is pursued for gain, profit or other advantage. Executive will comply with Company policies and procedures and all applicable laws and regulations. Executive shall be employed at the Company headquarters in Seattle, Washington.

 

  B. Term of Agreement

This Agreement shall commence on the Effective Date and continue until the earlier of (1) the Federal Deposit Insurance Corporation’s removal of the Cease and Desist Order on the Company as a result of completion of an initial public offering of stock, an increase in capital or other circumstances, or (2) until terminated as set forth in Section III, which ever occurs first. If this Agreement is terminated under the circumstances identified as (1) in this section, the parties anticipate that this Agreement will be immediately replaced with a different employment agreement. Notwithstanding any termination of Executive’s employment, the Executive shall remain subject to the restrictions in Section IV of this Agreement.

 

II. COMPENSATION AND BENEFITS

The Company agrees to pay to Executive and Executive agrees to accept in exchange for the services rendered hereunder the following compensation and benefits:

 

  A. Annual Salary

Executive’s compensation shall consist of an annual base salary (the “ Salary ”) of no less than $200,000, payable in accordance with the payroll practices of the Company. The Salary

 

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shall be reviewed, and may be subject to increase, by the Chief Executive Officer or the Board of Directors of the Company (or the Compensation Committee thereof) at least annually while Executive is employed hereunder. Executive’s Salary may decrease only with his agreement.

 

  B. Annual Incentive Payment

The Company shall establish a performance-based, target incentive bonus under the terms of the Company’s incentive bonus compensation plan pursuant to which Executive may receive, based on completion of objectives no less than 40% of Executive’s Salary (or such higher amount as the Chief Executive Officer, Board or its Compensation Committee may approve) (“ Target Incentive Payment ”), less required withholding and authorized deductions. The Chief Executive Officer or the Board or its Compensation Committee and Executive shall establish the mutually acceptable performance objectives and related payout ratios no later than May 31 of each fiscal year. The Chief Executive Officer, the Board or the Board’s Compensation Committee shall reasonably determine the extent to which the Target Incentive Payment has been earned and shall ensure that the Target Incentive Payment complies with Sound Incentive Compensation Planning Guidelines and other restrictions applicable to financial institutions.

 

  C. Equity Compensation

Executive has been awarded stock options and restricted stock consistent with Company benefits plans so that Executive holds equity rights to approximately 0.7% of the outstanding shares of HomeStreet, Inc. stock (25,000 shares). Executive’s rights with respect to such stock options and restricted stock shall continue, subject to the terms of any applicable grant or plan. Executive may be awarded additional stock options or restricted stock or other equity compensation at the discretion of the Compensation Committee of the Board and consistent with any equity plans or agreements.

 

  D. Benefits

Executive shall be eligible to participate, subject to and in accordance with applicable eligibility requirements, in such benefit programs as are provided to the Company’s executives, which may include, at a minimum, vacation, sick leave, basic health, life and disability insurance.

 

  E. Business Expenses

Executive shall be reimbursed for all reasonable out-of-pocket expenses actually incurred by Executive in the conduct of the business of the Company, provided that Executive submits substantiation of all such expenses to the Company on a timely basis in accordance with standard policies of the Company, effective as such on the date such expenses are incurred.

 

  F. Allocation of Payments

HomeStreet, Inc. and HomeStreet Bank shall allocate between them the obligation to make required payments hereunder. Such allocation shall not affect the joint and several

 

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liabilities of HomeStreet, Inc. and HomeStreet Bank under this Agreement as provided in Section VI.D.

 

III. TERMINATION

 

  A. Employment Termination

This Agreement and Executive’s employment may be terminated by the Company for Cause (as defined below), or without Cause or by Executive for Good Reason (as defined below) or without Good Reason or upon the Executive’s death or Total Disability. Except where a specific notice procedure is described herein, the Company or Executive shall provide the other party at least sixty (60) days notice of any termination (or 60 days pay in lieu of notice). Upon any termination of employment, Executive shall be entitled to receive payments or benefits as described in this Agreement.

 

  B. Automatic Termination on Death or Total Disability

This Agreement and Executive’s employment hereunder shall terminate automatically upon the death or Total Disability of Executive. “ Total Disability ” shall have the same meaning as defined in the Company’s long-term disability plan or policy. Termination hereunder shall be deemed to be effective (a) upon Executive’s death or (b) immediately upon the sooner to occur of a determination by the Company’s long-term disability insurance carrier or Executive’s primary care physician that Executive is disabled and eligible for long-term disability benefits. Executive shall receive the following benefits on termination of employment for Death or Total Disability:

(1) Executive’s earned but unpaid Salary through the effective date of the termination;

(2) Any earned but unpaid incentive compensation under the terms of any applicable incentive compensation plan, including unpaid incentive compensation earned for the previous year but not yet paid and any pro rata incentive compensation earned for the year in which termination occurs;

(3) Accrued but unused vacation pay consistent with the Company vacation policy;

(4) Reimbursable business expenses for activities prior to the effective date of termination;

(5) Executive’s vested stock options or equity grants shall remain exercisable for one year after Death or Total Disability consistent with the terms of the applicable plan;

(6) Any severance pay for which Executive may be eligible under the terms of the Company’s nondiscriminatory severance plan. Any payout of severance pay hereunder may be subject to regulatory approval (which the Company shall use its best efforts to obtain) or non objection.

 

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(7) In the event of Total Disability, in order to receive the benefits described herein that Executive is not otherwise entitled to receive, no later than sixty (60) days after termination of employment, the Company and Executive must execute a release agreement (“Release”) substantially in the form of Exhibit ‘A’ attached hereto in order to receive the severance benefits. The Release will be effective upon completion of the payments due to Executive. Executive must also remain in substantial and continued compliance with the terms of Section IV of this Agreement.

(8) In the event of death, all payments shall be made to the person or persons identified as the Executive’s beneficiary for any Company-sponsored life insurance.

 

  C. Termination Without Cause or Executive Resigns for Good Reason Immediately Before or Following a Change of Control

If Executive’s employment terminates by the Company without Cause or by Executive for Good Reason within one year following or during the ninety (90) days immediately preceding a Change of Control (as defined below), then Executive shall be entitled to receive the following termination payments provided the Company obtains approval from applicable regulatory authorities for such payments (which approval the Company shall use its best efforts to obtain):

(1) As severance pay, one times Executive’s annual Salary at the rate in effect immediately prior to termination, paid in a lump sum within ten (10) days following the day Executive signs the Release agreement identified above, provided, however, the payment may be delayed as required to avoid additional tax for a “specified employee” under Section 409A as described in Section VI.G;

(2) Executive’s earned but unpaid Salary through the effective date of termination, paid on the next regularly scheduled payroll date following the effective date of termination;

(3) Any earned but unpaid incentive compensation under the terms of any applicable incentive compensation plan, including unpaid incentive compensation earned in the previous year but not yet paid and pro rata incentive compensation earned for the year in which termination occurs;

(4) The value of Executive’s accrued but unused vacation, consistent with the Company’s vacation policy applicable to all employees;

(5) Reimbursement of all reasonable business expenses incurred for activities prior to the effective date of termination;

(6) All vested stock options and other equity grants shall remain exercisable consistent with any such grant or applicable plan;

(7) In order to receive the benefits described herein that Executive is not otherwise entitled to receive, no later than sixty (60) days after termination of employment, the Company and Executive must execute a Release agreement substantially in the form of Exhibit ‘A’ attached hereto in order to receive the severance benefits. The Release will be effective upon

 

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completion of the payments due to Executive. Executive must also remain in substantial and continued compliance with the terms of Section IV of this Agreement.

(8) Any post-employment payment of benefits may be dependent upon approval or non-objection by one or more regulatory authorities. The Company will use its best efforts to obtain such approval or non-objection in a timely manner, but no payment shall be made without the required approval.

 

  D. Termination with Cause or Resignation Without Good Reason

If the Company terminates Executive’s employment with Cause or Executive resigns without Good Reason, the Company shall provide Executive compensation and benefits as follows:

(1) Payment of Executive’s earned but unpaid Salary through the effective date of termination.

(2) Payment of the value of Executive’s earned but unused vacation consistent with Company policy that applies to all employees.

(3) Reimbursement of all reasonable business expenses incurred for activities prior to the Effective Date of termination.

(4) Any vested equity grants shall remain exercisable to the extent provided under the terms of any grant or plan.

 

  E. Termination Without Cause or Executive Resigns for Good Reason

If the Company terminates Executive’s employment without Cause or Executive terminates his employment for Good Reason unrelated to a Change of Control, then Executive shall be entitled to receive the following termination payments provided the Company obtains approval from the applicable regulatory authorities for such payments (which approval the Company shall seek):

(1) Any severance pay for which Executive may be eligible under the terms of a nondiscriminatory severance plan approved by federal or state regulations. Any payout of severance pay hereunder may be subject to regulatory approval (which the Company shall seek) or non-objection;

(2) Executive’s earned but unpaid Salary through the effective date of termination, paid on the next regularly scheduled payroll date following the date on which Executive’s employment terminated;

(3) Any earned but unpaid incentive compensation under the terms of any applicable incentive compensation plan, including unpaid incentive compensation earned in the previous year but not yet paid and pro rata incentive compensation earned for the year to which termination occurs;

 

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(4) The value of Executive’s accrued but unused vacation, consistent with the Company’s vacation policy applicable to all employees;

(5) Reimbursement of all reasonable business expenses incurred for activities prior to the effective date of termination;

(6) All vested stock options and other equity grants shall remain exercisable consistent with any such grant or applicable plan;

(7) In order to receive the benefits described herein that Executive is not otherwise entitled to receive, no later than sixty (60) days after termination of employment, the Company and Executive must execute a Release agreement substantially in the form of Exhibit ‘A’ attached hereto in order to receive the severance benefits. The Release will be effective upon completion of the payments due to Executive. Executive must also remain in substantial and continued compliance with the terms of Section IV of this Agreement.

(8) Any post-employment payment of benefits may be subject to approval or non objection by one or more regulatory authorities. The Company will use its best efforts to obtain such approval or non-objection in a timely manner, but no payment shall be made without the required approval.

 

  F. Definitions of “Cause”, “Good Reason” and “Change of Control”

 

  1. Cause

Wherever reference is made in this Agreement to termination being with or without Cause, “ Cause ” shall mean the occurrence of one or more of the following events:

(a) the willful and continued failure of the Executive to perform his duties;

(b) the willful engaging by the Executive in illegal conduct or gross misconduct which is materially injurious to the Company;

(c) the Executive’s conviction or plea of guilty or nolo contendere to the charge of commission of a felony; or

(d) the Executive’s breach of a regulatory rule that materially and adversely affects the Executive’s ability to perform the Executive’s principal employment duties for the Company and its affiliates.

(e) Prior to a termination for Cause, Employer shall provide Executive 30-day prior written notice of the claimed basis for the possible “Cause” termination and an opportunity for Executive to cure any defect or deficiency on his performance. Upon request, Executive shall be entitled to a hearing before the Board of Directors with representation by counsel. “Cause” shall be established by affirmative vote of at least two-thirds of the entire Board of each employer in order to determine “Cause.”

 

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  2. Good Reason

For the purposes of this Agreement, “ Good Reason ” shall mean that Executive, without his consent, has experienced one of the following events or circumstances:

(a) the assignment to the Executive of any duties materially diminished from those in effect immediately prior to such assignment;

(b) a change in the Executive’s authority, duties or responsibilities which represents a material adverse change from those in effect immediately prior to such change;

(c) a material decrease in the Executive’s annual Salary without his prior agreement;

(d) solely following a Change of Control, relocation of the Executive’s principal place of employment to a location that increases the Executive’s commute from his primary residence by more than 30 miles one way; or

(e) any other action or inaction that constitutes a material breach of the terms of the Agreement by the Company.

(f) To comply with Section 409A of the Code, the Executive must give written notice of termination of employment within 60 days after the occurrence of the circumstances constituting Good Reason, and the Company will have 30 days to cure the circumstances constituting Good Reason, and the Executive’s “separation from service” must occur no later than six months following the initial existence of the circumstances giving rise to Good Reason.

Notwithstanding the foregoing, termination of employment by Executive will not be for Good Reason unless (i) Executive notifies the Company in writing of the existence of the condition which Executive believes constitutes Good Reason within sixty (60) days of the initial existence of such condition (which notice specifically identifies such condition), and (ii) the Company fails to remedy such condition within thirty (30) days after the date on which it receives such notice (the “Remedial Period”) whereupon Executive’s employment shall be deemed to be terminated for Good Reason upon failure of the Company to remedy. If Company attempts to cure, or disputes the existence of Good Reason, it shall provide documentary evidence thereof to Executive within the Remedial Period. Executive may elect to remain employed by Company and dispute any response by Company during the Remedial Period, without prejudice to the claim of Good Reason, by invoking the provisions of Article VI.I. If Executive remains employed and invokes the dispute resolution process, he shall in any event complete his resignation within two years of the end of the Remedial Period. If Executive terminates employment before the expiration of the Remedial Period or after the Company remedies the condition (even if within the end of the Remedial Period), then Executive’s termination will not be considered to be for Good Reason.

 

  3. Change of Control

For the purposes of this Agreement, “ Change of Control ” means:

 

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(a) one person or entity acquiring or otherwise becoming the owner of twenty-five percent or more of HomeStreet Inc.’s or HomeStreet Bank’s outstanding shares in any class of shares;

(b) dissolution or sale of fifty percent or more in value of the assets of either HomeStreet, Inc. or HomeStreet Bank; or

(c) a change “in the ownership or effective control” or “in the ownership of a substantial portion of the assets” of either HomeStreet, Inc. or HomeStreet Bank, within the meaning of Section 280G of the Internal Revenue Code.

Sale of stock through an initial public offering shall not constitute a “Change of Control” under this Agreement.

 

IV. CONFIDENTIALITY; NON-SOLICITATION;

 

  A. Confidentiality Agreement

Executive recognizes that the Company’s business and continued success depend upon the use and protection of confidential information and proprietary information, and therefore Executive is subject to, and this Agreement is conditioned on agreement to, the terms of the nondisclosure agreement (the “ Confidentiality Agreement ”) substantially in the form attached hereto as Exhibit B entered into by Executive and the terms of the Confidentiality Agreement shall survive the termination of Executive’s employment with the Company or Successor Employer for a period of ten (10) years from termination unless otherwise required by law.

 

  B. Non-Solicitation Agreement

(1) During Executive’s employment with the Company and/or a Successor Employer and for six months after the termination of such employment, Executive will not induce, or attempt to induce, any employee, executive, Board member or independent contractor of the Company and/or a Successor Employer to cease such employment or relationship to engage in, be employed by, perform services for, participate in the ownership, management, control or operation of, or otherwise be connected with, either directly or indirectly, any Competing Business (defined below).

(2) During Executive’s employment with the Company and/or a Successor Employer and for six months after the termination of such employment, Executive will not, directly or indirectly solicit, divert, appropriate to or accept on behalf of any Competing Business, any business or account from any customer of the Company or entity about whom Executive has acquired confidential information in the course of his employment.

 

  C. Competing Business

“Competing Business” means any bank or thrift with an office or branch in Washington, Oregon, Idaho or Hawaii.

 

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V. ASSIGNMENT

This Agreement is personal to Executive and shall not be assignable by Executive. The Company may assign its rights hereunder to (a) any other corporation resulting from any merger, consolidation or other reorganization to which the Company is a party; (b) any other corporation, partnership, association or other person to which the Company may transfer all or substantially all of the assets and business of the Company existing at such time; or (c) any subsidiary, parent or other affiliate of the Company (“ Successor Employer ”). All of the terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns.

 

VI. MISCELLANEOUS

 

  A. Amendments

No amendment, modification, waiver, termination or discharge of any provision of this Agreement, or consent to any departure therefrom by either party hereto, shall in any event be effective unless the same shall be in writing, specifically identifying this Agreement and the provision intended to be amended, modified, waived, terminated or discharged and signed by the Company and Executive, and each such amendment, modification, waiver, termination or discharge shall be effective only in the specific instance and for the specific purpose for which given. No provision of this Agreement shall be varied, contradicted or explained by any oral agreement, course of dealing or performance or any other matter not set forth in an agreement in writing and signed by the Company and Executive.

 

  B. Applicable Law

This Agreement shall in all respects, including all matters of construction, validity and performance, be governed by, and construed and enforced in accordance with, the laws of the State of Washington, without regard to any rules governing conflicts of laws.

 

  C. Entire Agreement

This Agreement, on and as of the date hereof, constitutes the entire agreement between the Company and Executive with respect to the subject matter hereof. To the extent any agreement, plan or policy of the Company is inconsistent with this Agreement, the provisions of this Agreement shall prevail and control and such other agreement, plan or policy will be construed by Company to be consistent with this Agreement and, if that is not possible, the other agreement, plan or policy shall be modified as to Executive to be in conformance with this Agreement. It is the intent of the parties that Executive shall, to the extent allowed by law, enjoy the full benefit of all obligations of Company set forth herein.

 

  D. Severability

If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any regulatory action, applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability, regardless of the reason therefor shall not affect any other provision of this Agreement or any action in any other jurisdiction, or the obligation of any other

 

9


entity to this Agreement. If either entity that is a party to this Agreement is determined by any regulatory authority or court not to be able to perform its obligation(s) to Executive or not to have the authority to enter into this Agreement, then the other entity shall be liable therefor.

The obligations to Executive herein are the joint and several obligations of HomeStreet Inc. and HomeStreet Bank and there shall be joint and several liability of those entities in the event of any default to Executive by either for any reason.

 

  E. Legal Limitations

Notwithstanding any provision to the contrary in this Agreement, no payment of any type or amount of compensation or benefits shall be made or owed by Company to Executive pursuant to this Agreement or otherwise if payment of such type or amount is prohibited by, is not permitted under, or has not received any required approval under, any applicable governmental statute, regulation, rule, order (including any cease and desist order), determination, opinion, or similar provision whether now in existence or hereafter adopted or imposed, including without limitation, by or under (i) any provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) and regulations promulgated thereunder, (ii) any governmental provisions relating to indemnification by Company or an affiliate, including without limitation any applicable prohibitions or restrictions on depository institutions and their affiliates set forth in 12 USC 1828(k) or in 12 CFR Part 359, or (iii) any governmental provisions relating to payment of golden parachutes or similar payments, including without limitation any prohibitions or restrictions on such payments by troubled institutions and companies and their affiliates set forth in 12 USC 1828(k) or in 12 CFR Part 359. If any payment to Executive is prohibited or otherwise restricted, ( x ) such payment shall, to the extent allowed by law, order or regulatory determination and not objected to by applicable banking or other regulatory agencies, be reinstated as an obligation of the obligor(s) without further action immediately upon the cessation of such prohibition or restriction, and (y)  the Company shall use its best efforts to secure the consent, if any shall be required, of the FDIC or other applicable banking or other regulatory agencies to make such payments in the highest amount permissible, up to the amount provided for in this Agreement.

If any payment made to Executive hereunder or under any prior employment agreement or arrangement is required under any applicable governmental provision (including, without limitation, Dodd-Frank and regulations promulgated thereunder) to be paid back to Company, the Executive shall upon written demand from Company promptly pay such amount back to Company.

 

  F. Code Section 280G

Notwithstanding anything in this Agreement to the contrary, if Executive becomes entitled to receive or receives any payment or benefit under this Agreement or under any other plan, agreement or arrangement with the Company, any person whose actions result in a Change of Control or any person affiliated with the Company or such person (all such payments and benefits being referred to herein as the “Total Payments”) and it is determined that any of the Total Payments will be subject to any excise tax pursuant to Code Section 4999, or any similar or successor provision (the “Excise Tax”), the Company shall pay to Executive an additional

 

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amount so that Executive’s net payment shall not be diminished in any respect by the additional Excise Tax.

 

  G. Code Section 409A

With respect to any payments or benefits hereunder that are subject to Code Section 409A and any official guidance and regulations issued thereunder (together “ Code Section 409A ”) and that are payable on account of Executive’s termination of employment, such payments shall only be made if such termination of employment constitutes a “separation from service” within the meaning of Code Section 409A. The Company may adjust any payment hereunder to avoid liability or obligation under Code Section 409A but such adjustments shall ensure that the payments are made in a manner that is as close to the terms of this Agreement as possible. Notwithstanding anything to the contrary contained in this Agreement, all reimbursements for costs and expenses under this Agreement will be paid in no event later than the end of the calendar year following the calendar year in which Executive incurs such expense. With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, and (ii) the amount of expenses eligible for reimbursements or in-kind benefits provided during any taxable year shall not affect the expenses eligible for reimbursement or in-kind benefits to be provided in any other taxable year.

The Company makes no representations or warranties to Executive with respect to any tax, economic or legal consequences of this Agreement or any payments or other benefits provided hereunder, including without limitation under Code Section 409A, and no provision of the Agreement shall be interpreted or construed to transfer any liability for failure to comply with Code Section 409A from Executive or any other individual to the Company or any of its affiliates. Executive, by executing this Agreement, shall be deemed to have waived any claim against the Company and its affiliates with respect to any such tax, economic or legal consequences of this Agreement or any payments or other benefits provided hereunder. However, the parties intend that this Agreement and the payments and other benefits provided hereunder be exempt from the requirements of Code Section 409A to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-l(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-l(b)(9)(iii), or otherwise. To the extent Code Section 409A is applicable to this Agreement (and such payments and benefits), the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Code Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. In addition, if Executive is a “specified employee,” within the meaning of Code Section 409A, then to the extent necessary to avoid subjecting Executive to the imposition of any additional tax under Code Section 409A, amounts that would otherwise be payable under this Agreement during the six (6) month period immediately following Executive’s “separation from service” for reasons other than Executive’s death (except those payments that may be exempt from 409A by virtue of the short-term deferral exception to 409A) shall not be paid to Executive during such period, but shall instead be

 

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accumulated and paid to Executive in a lump sum on the first business day after the date that is six (6) months following Executive’s separation from service.

 

  H. No Mitigation/Offset

In order to receive severance benefits provided in this Agreement, Executive shall not be required to engage in mitigation activities or seek alternative employment, nor would any other compensation received by Executive serve as an offset agreement to the severance or other benefits provided in this Agreement.

 

  I. Attorneys Fees

The Company shall reimburse Executive for up to $1,500 in legal fees incurred for the negotiation of this agreement.

 

  J. Disputes

(1) In the event of a dispute or claim between Executive and the Company related to Employee’s employment or termination of employment, all such disputes or claims will be resolved exclusively by confidential arbitration in accordance with the Employment Arbitration Rules of the American Arbitration Association (the “AAA”). This means that the parties agree to waive their rights to have such disputes or claims decided in court by a jury. Instead, such disputes or claims will be resolved by an impartial AAA arbitrator (or other mutually agreeable person) whose decision will be final.

(2) The only disputes or claims that are not subject to arbitration are any claims by Executive for workers’ compensation or unemployment benefits, and any claim by Executive for benefits under an employee benefit plan that provides its own arbitration procedure. Also, Executive and Employer may seek injunctive relief in court in appropriate circumstances.

(3) The arbitration procedure will afford Executive and Employer the full range of statutory remedies, based on the statutes of limitations that would apply to the specific claims asserted as if they were asserted in court. Employer will pay all costs that are unique to arbitration, except that the party who initiates arbitration will pay the filing fee charged by AAA. Executive and Employer shall be entitled to discovery sufficient to adequately arbitrate their claims, including access to essential documents and witnesses, as determined by the arbitrator and subject to limited judicial review. In order for any judicial review of the arbitrator’s decision to be successfully accomplished, the arbitrator will issue a written decision that will decide all issues submitted and will reveal the essential findings and conclusions on which the award is based.

 

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IN WITNESS WHEREOF , the parties have executed and entered into this Agreement effective on the date first set forth above.

 

JAY ISEMAN

LOGO

Date   May 26, 2011
HOMESTREET, INC.
By  

/s/ Gerhardt Morrison

Its   HRGC Chairman
Date   May 26, 2011
HOMESTREET BANK
By  

/s Cynthia P. Sonstelie

Its   HRCG CHAIR
Date   6/1/11

 

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EXHIBIT A

WAIVER AND RELEASE

 

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WAIVER AND RELEASE

PLEASE READ THIS WAIVER AND RELEASE CAREFULLY. IT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS UP TO AND INCLUDING THE DATE THAT THIS AGREEMENT AND RELEASE IS EXECUTED BY THE COMPANY AND THE EXECUTIVE.

For and in consideration of the payments and other benefits due to [Jay Iseman] (the “ Executive ”) pursuant to the Employment Agreement (the “ Employment Agreement ”) entered into as                      , 2011 (the “ Effective Date ”), by and between HomeStreet, Inc., and HomeStreet Bank, and their respective subsidiaries (together the “ Company ”) and the Executive, and for other good and valuable consideration, including the mutual promises made herein, the Executive and the Company irrevocably and unconditionally release and forever discharge each other and each and all of their present and former officers, agents, directors, managers, employees, representatives, affiliates, shareholders, members, and each of their successors and assigns, and all persons acting by, through, under or in concert with it, and in each case individually and in their official capacities (collectively, the “ Released Parties ”), from any and all charges, complaints, grievances, claims and liabilities of any kind, or nature whatsoever, known or unknown, suspected or unsuspected (hereinafter referred to as “claim” or “claims”) which either party at any time heretofore had or claimed to have or which either party may have or claim to have regarding events that have occurred up to and including the date of the execution of this Release, including, without limitation, any and all claims related, in any manner, to the Executive’s employment or the termination thereof. In particular, each party understands and agrees that the parties’ release includes, without limitation, all matters arising under any federal, state, or local law, including civil rights laws and regulations prohibiting employment discrimination on the basis of race, color, religion, age, sex, national origin, ancestry, disability, medical condition, veteran status, marital status and sexual orientation, or any other characteristic protected by federal, state or local law including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, the Older Workers Benefit Protection Act of 1990, as amended, the Americans with Disabilities Act, the Rehabilitation Act, the Occupational Safety and Health Act, the Family and Medical Leave Act, the Employee Retirement Income Security Act of 1974, as amended (except as to vested retirement benefits, if any), the Worker Adjustment and Retraining Notification Act, the Washington Law Against Discrimination, RCW 49.60, The Washington Wage Rebate Act, RCW 49.52, the Washington Unpaid Wages Act, RCW 49.48, federal and state wage and hour laws, or any common law, public policy, contract (whether oral or written, express or implied) or tort law, or any other federal, state or local law, regulation, ordinance or rale having any bearing whatsoever.

The Executive must sign and return this Release by personal or guaranteed overnight delivery to the attention of the Human Resources Director, 1800 Two Union square, 601 Union Street, Seattle WA 98101 no earlier than the Date of Termination and no later than «Sign_date», which is the 60th day following the Date of Termination. The Executive can revoke this Release within seven days after executing the Release by sending written notification to the Company of Executive’s intent to revoke the Release, and this Release shall not become effective or enforceable until such revocation period has expired. The Executive’s written notification of the intent to revoke the Release must be sent to the

 

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Human Resources Director, 1900 Two Union Square, 601 Union Street, Seattle WA 98101 by personal delivery or guaranteed overnight delivery, within seven days after the Executive executed the Release.

The Executive and Company acknowledge that they may have sustained losses that are currently unknown or unsuspected, and that such damages or losses could give rise to additional causes of action, claims, demands and debts in the future. Nevertheless, the Executive and Company each acknowledge that this Release has been agreed upon in light of this realization and, being fully aware of this situation, the Executive and Company nevertheless intend to release the each other from any and all such unknown claims, including damages which are unknown or unanticipated. The parties understand the word “claims” to include all actions, claims, and grievances, whether actual or potential, known or unknown, and specifically but not exclusively all claims arising out of the Executive’s employment and the termination thereof. All such “claims” (including related attorneys’ fees and costs) are forever barred by this Release and without regard to whether those claims are based on any alleged breach of a duty arising in a statute, contract, or tort; any alleged unlawful act, including, without limitation, age discrimination; any other claim or cause of action; and regardless of the forum in which it might be brought.

Notwithstanding anything else herein to the contrary, this Release shall not affect, and the Executive and the Company, as applicable, do not waive or release: (i) rights to indemnification the Executive may have under (A) applicable law, (B) any other agreement between the Executive and a Released Party and (C) as an insured under any director’s and officer’s liability or other insurance policy now or previously in force; (ii) any right the Executive may have to obtain contribution in the event of the entry of judgment against the Executive as a result of any act or failure to act for which both the Executive and any of the Company or its affiliates or subsidiaries (collectively, the “ Affiliated Entities ”) are or may be jointly responsible; (iii) the Executive’s rights to benefits and payments under any stock options, restricted stock, restricted stock units or other incentive plans or under any retirement plan, welfare benefit plan or other benefit or deferred compensation plan, all of which shall remain in effect in accordance with the terms and provisions of such benefit and/or incentive plans and any agreements under which such stock options, restricted shares, restricted stock units or other awards or incentives were granted or benefits were made available; (iv) the Executive’s rights as a stockholder of any of the Affiliated Entities; (v) any obligations of the Affiliated Entities under the Employment Agreement (vi) any clawback required pursuant to restrictions on compensation for employees of financial institutions; (vii), any claims brought by the Federal Deposit Insurance Corporation as receiver or conservator of the Bank that have not been released or waived by the Company; (viii) claims for improper self-dealing; improper distributions and other limitations imposed by RCW 23B.08.320; (ix) any finally and judicially determined, knowing violation of the law by Executive that has a material and adverse impact on the Company; (x) any fraud or other intentional misconduct by Executive that has a material and adverse impact on the Company; (xi) any material violation of any confidentiality, nonsolicitation or noncompetition agreement or provision executed by Executive; or (xii) any other claim not subject to release by operation of law.

 

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The Executive waives all rights under section 1542 of the Civil Code of the State of California or any comparable or analogous Federal law or any other state law. Section 1542 provides as follows:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

The Executive acknowledges and agrees that the Executive: (a) has been given at least [21/45] days within which to consider this Release and its ramifications and discuss the terms of this Release with the Company before executing it (and that any modification of this Release, whether material or immaterial, will not restart or change the original [21/45] day consideration period) and the Executive fully understands that by signing below the Executive is voluntarily giving up any right which the Executive may have to sue or bring any other claims against the Released Parties; (b) has been given seven days after returning the Release to the Company to revoke this Release; (c) has been advised to consult legal counsel regarding the terms of this Release; (d) has carefully read and fully understands all of the provisions of this Release; (e) knowingly and voluntarily agrees to all of the terms set forth in this Release; and (f) knowingly and voluntarily intends to be legally bound by the same. The Executive also understands that, notwithstanding anything in this Release to the contrary, nothing in this Release shall be construed to prohibit the Executive from (i) filing a charge or complaint with the Equal Employment Opportunity Commission or Washington State Human Rights Commission or any other federal, state or local administrative or regulatory agency, or (ii) participating in any investigation or proceedings conducted by the Equal Employment Opportunity Commission or any other federal, state or local administrative or regulatory agency; however, the Executive expressly waives the right to any relief of any kind in the event that the Equal Employment Opportunity Commission or Washington State Human Rights Commission or any other federal, state or local administrative or regulatory agency pursues any claim on the Executive’s behalf.

This Release is final and binding and may not be changed or modified except in a writing signed by both parties.

 

 

    

 

Date      [Name]

 

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EXHIBIT B

EXECUTIVE CONFIDENTIALITY AGREEMENT

 

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EXECUTIVE CONFIDENTIALITY AGREEMENT

This Confidentiality Agreement (“Agreement”) is between HomeStreet, Inc., HomeStreet Bank (“Bank”) and their affiliate or subsidiary organizations and their successors and assigns (collectively, the “ Company ” or “HomeStreet”) and Jay Iseman (“ Executive ” or “Recipient”) (collectively, the “ Parties ”).

Executive is currently employed as the Executive Vice-President and Chief Credit Officer of the Bank and HomeStreet, Inc. It is the intent of the Parties that this Agreement will become effective upon the termination of Executive’s services to the Company. By virtue of his position with the Company, Executive has access to Confidential Information (defined below). HomeStreet must have assurance from Recipient that all Confidential Information provided to Recipient is and remains confidential after termination of his services. Therefore, for valuable consideration, the receipt of which is acknowledged to be sufficient, Recipient and HomeStreet agree as follows:

 

1. “Confidential Information” means information concerning the business, operations, strategies, financial status, products, services, customer names, customer lists and customer information of HomeStreet, which is confidential or proprietary to HomeStreet.

 

2. Confidential Information does not include information that: (a) is or becomes generally available to the public through no fault or act of Recipient or any of his Representatives in violation of this Agreement; (b) is or becomes available to Recipient or his representatives on a non-confidential basis from a source other than HomeStreet not known to Recipient or such Representatives to be prohibited from disclosing such information by a contractual, legal or fiduciary obligation of confidentiality; (c) is independently developed by the Recipient or his representatives without use of or reliance on, either directly or indirectly, Confidential Information; or (d) was known to or in the possession of Recipient or one of his representatives on a non-confidential basis prior to disclosure by HomeStreet under the terms of this Agreement; or (e) is developed primarily through the efforts or work product of Executive.

 

3.

After the termination of his services or employment agreement, Recipient agrees not to disclose any Confidential Information to any third party, unless such third party is a fiduciary, affiliate or HomeStreet vendor and such vendor and HomeStreet have signed a similar confidentiality agreement, or such disclosure of Confidential Information is required by lawful judicial or governmental order. Recipient agrees to give HomeStreet reasonable notice in writing in advance of releasing Confidential Information pursuant to any judicial or governmental order. Recipient additionally agrees to implement and maintain at all times reasonably appropriate procedures and controls to ensure at all times the security and confidentiality of all of HomeStreet’s

 

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Confidential Information, to protect against any anticipated threats or hazards to the security or integrity of such information; and to protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to Home Street or any customer of HomeStreet. Recipient agrees to notify HomeStreet of any known security breach, any known unauthorized release of Confidential Information, or any known unauthorized attempt to access Confidential Information of which it becomes aware within a reasonable time of the occurrence of such event. Such notice will include, at a minimum, the date and time of any such event, the nature and extent of Confidential Information involved in any such event, and the corrective measures taken by Recipient in response to any such event.

 

4. All Confidential Information is and shall remain the property of HomeStreet. No license or conveyance of any right is granted or implied by the distribution of any Confidential Information to Recipient. Recipient agrees not to use, duplicate, or reproduce in any way any Confidential Information for Recipient’s own benefit or financial gain, or for any third party’s benefit or financial gain except to the extent reasonably necessary to analyze and prepare a business proposal to HomeStreet, in connection with rendering services to HomeStreet and to prepare and maintain his internal files in the ordinary course of its business. All documents (originals and copies, including electronic versions) containing Confidential Information shall either be destroyed or disposed of in a manner consistent with the Fair and Accurate Credit Transactions Act of 2003 or, if directed by HomeStreet, returned to HomeStreet upon termination of the rendering of services to HomeStreet by Recipient. Recipient agrees that HomeStreet may take reasonable actions as deemed appropriate by HomeStreet to confirm that Recipient has satisfied these obligations. It is understood that Recipient may retain one archival copy of such information for his internal files except for Bank customer loan files and documents containing private customer information.

 

5. By making any Confidential Information available to Recipient, HomeStreet makes no representation, warranty or guarantee, either express or implied, as to the accuracy or completeness of any Confidential Information or to the format in which such Confidential Information is provided to Recipient. Except as otherwise provided in any engagement letter, HomeStreet shall not be liable to any party for damages, of whatever kind, as a result of Recipient’s reliance on any Confidential Information or any format in which Confidential Information is made available to Recipient.

 

6. Recipient acknowledges that due to the highly sensitive nature of the Confidential Information, Recipient will be liable to HomeStreet for all losses suffered by HomeStreet as a result of Recipient’s intentional and material breach of this Agreement. In addition to any other remedies available to HomeStreet, Recipient agrees that, if Recipient breaches this Agreement, HomeStreet may seek injunctive relief against Recipient to stop any such breach.

 

7.

If either Party to this Agreement commences legal action to enforce any rights arising out of or relating to this Agreement, the prevailing Party in any such action shall be

 

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entitled to recover reasonable attorneys’ fees and costs, including fees and costs on appeal. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Washington and the venue for any legal action shall be Seattle, Washington.

 

8. If Recipient and HomeStreet have entered into any other agreement, the terms of this Agreement shall, by this reference, be incorporated into and made a part of such other agreement, except to the extent otherwise specifically provided in such other agreement. The terms of this Agreement shall survive the termination of rendering of services to HomeStreet by Recipient for a period of ten years.

This Agreement is dated this      day of              , 2011.

 

HomeStreet, Inc.      
HomeStreet Bank    Executive
      

 

       Jay Iseman
By:  

 

     By:   

 

Title:  

 

       

 

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Exhibit 10.15

EXECUTIVE EMPLOYMENTAGREEMENT

between

HOMESTREET, INC. and HOMESTREET BANK

and

JAY ISEMAN


E XECUTIVE E MPLOYMENT A GREEMENT

This executive employment agreement (“ Agreement ”), effective immediately after the Cease and Desist Order is lifted by the Federal Deposit Insurance Corporation (the “Effective Date”), is between HomeStreet, Inc., HomeStreet Bank (“Bank”) and their affiliate or subsidiary organizations and their successors and assigns (collectively, the “ Company ”) and Jay Iseman (“ Executive ”) (collectively, the “ Parties ”). In consideration of the foregoing promises and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Company and Executive hereby agree to enter into an employment relationship in accordance with the terms and conditions set forth below.

 

I. EMPLOYMENT

 

  A. Position and Duties

The Company will employ Executive, and Executive will accept employment as the Executive Vice-President and Chief Credit Officer of HomeStreet Bank and HomeStreet, Inc. and report to the Chief Executive Officer of HomeStreet Bank and HomeStreet, Inc. Executive will perform the duties of Executive Vice-President and Chief Credit Officer and will devote his full time and attention to achieving the purposes and discharging the responsibilities afforded the positions, and such other duties as may be assigned from time to time by the Company, which relate to the business of the Company and are reasonably consistent with Executive’s position. During Executive’s employment, Executive will not engage in any business activity that, in the reasonable judgment of the Chief Executive Officer, conflicts with the duties of Executive under this Agreement, whether or not such activity is pursued for gain, profit or other advantage. Executive will comply with Company policies and procedures, and all applicable laws and regulations. Executive shall be employed at the Company headquarters in Seattle, Washington.

 

  B. Term of Agreement

This Agreement shall commence on the Effective Date and continue for an initial term of three (3) years unless sooner terminated as set forth in Section III. The Agreement shall automatically renew for successive one (1) year terms, unless either party provides the other with written notice of its intent not to renew no less than 180 days prior to the end of its term. Notwithstanding any termination of this Agreement or Executive’s employment, the Executive shall remain subject to the restrictions in Section IV of this Agreement.

 

II. COMPENSATION AND BENEFITS

The Company agrees to pay to Executive and Executive agrees to accept in exchange for the services rendered hereunder the following compensation and benefits:

 

  A. Annual Salary

Executive’s compensation shall consist of an annual base salary (the “ Salary ”) of no less than $200,000, payable in accordance with the payroll practices of the Company. The Salary shall be reviewed at least annually, and may be subject to increase, by the Chief Executive Officer or the Board of Directors of the Company (or the Compensation Committee thereof)

 

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while Executive is employed hereunder. Executive’s Salary may decrease only with his agreement.

 

  B. Annual Incentive Payment

The Company shall establish a performance-based, target incentive bonus under the terms of the Company’s incentive bonus compensation plan pursuant to which Executive may receive, based on completion of objectives no less than 40% of Executive’s Salary (or such higher amount as the Chief Executive Officer, Board or its Compensation Committee may approve) (“ Target Incentive Payment ”), less required withholding and authorized deductions. The Chief Executive Officer or the Board or its Compensation Committee and Executive shall establish the mutually acceptable performance objectives and related payout ratios no later than May 31 of each fiscal year. The Chief Executive Officer, Board, or the Board’s Compensation Committee, shall reasonably determine the extent to which the Target Incentive Payment has been earned and shall ensure that the Target Incentive Payment complies with Sound Incentive Compensation Planning Guidelines and other restrictions applicable to financial institutions.

 

  C. Equity Compensation

Executive has been awarded stock options and restricted stock consistent with Company benefits plans so that Executive holds equity rights to approximately .7% of the outstanding share of HomeStreet, Inc. stock (25,000 shares). For the purposes of this provision, these shares shall be referred to as Executive’s “initial executive award.” Executive’s rights with respect to such stock options and restricted stock shall continue, subject to the terms of any applicable grant or plan. In the event of an Initial Public Offering of stock in HomeStreet, Inc., HomeStreet, Inc. shall provide additional equity grants (which may be in the form of restricted stock or stock options) to Executive so that his percentage ownership in HomeStreet, Inc. following the Initial Public Offering remains equal to his ownership interest prior to the Initial Public Offering calculated by multiplying the percentage of HomeStreet, Inc.’s pre-offering common stock reflected by Executive’s initial executive award, by the number of shares of HomeStreet, Inc. common stock as measured immediately after the completion of the Initial Public Offering, and subtracting from that result the number of shares represented in the initial executive award. Three-Fourths of these awards (75%) will take the form of stock options, with an exercise price equal to the Initial Public Offering price or if issuance is delayed, then with an exercise price equal to the stock price on the day the options are issued; the remaining one-fourth (25%) will take the form of restricted stock awards. Stock options will vest ratably in thirds over each of the first three anniversaries of the closing of the Initial Public Offering. The restricted stock awards will vest upon the occurrence of certain events based upon an increase in the price of HomeStreet, Inc. common stock in comparison to the price at which the Initial Public Offering is consummated: one-third of the awards vest upon an increase in Company stock price of 25% from the Initial Public Offering price; an additional one-third vest upon an increase of 40% from the Initial Public Offering price; and the remaining one-third vest upon an increase of 50% from the Initial Public Offering price. Executive may be awarded additional stock options or restricted stock at the discretion of the Compensation Committee of the Board and consistent with any stock plans or agreements.

 

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  D. Benefits

Executive shall be eligible to participate, subject to and in accordance with applicable eligibility requirements, in such benefit programs as are provided to the Company’s executives, which may include, at a minimum, vacation, sick leave, basic health, life and disability insurance.

 

  E. Business Expenses

Executive shall be reimbursed for all reasonable out-of-pocket expenses actually incurred by Executive in the conduct of the business of the Company, provided that Executive submits substantiation of all such expenses to the Company on a timely basis in accordance with standard policies of the Company, effective as such on the date such expenses are incurred.

 

  F. Allocation of Payments

HomeStreet, Inc. and HomeStreet Bank shall from time to time allocate between them the obligation to make payments hereunder. Such allocation shall not affect the joint and several liability of HomeStreet, Inc. and HomeStreet Bank under this Agreement as provided in Section VI.D.

 

III. TERMINATION

 

  A. Employment Termination

This Agreement and Executive’s employment may be terminated by the Company for Cause (as defined below), or without Cause or by Executive for Good Reason (as defined below) or without Good Reason or upon the Executive’s death or Total Disability. Except where a specific notice procedure is described herein, the Company or Executive shall provide the other party at least sixty (60) days notice of any termination (or 60 days pay in lieu of notice). Upon any termination of employment, Executive shall be entitled to receive payments or benefits as described in this Agreement.

 

  B. Automatic Termination on Death or Total Disability

This Agreement and Executive’s employment hereunder shall terminate automatically upon the death or Total Disability of Executive. “ Total Disability ” shall have the same meaning as defined in the Company’s long-term disability plan or policy. Termination hereunder shall be deemed to be effective (a) upon Executive’s death or (b) immediately upon the sooner to occur of a determination by the Company’s long-term disability insurance carrier or Executive’s primary care physician that Executive is disabled and eligible for long-term disability benefits. Executive shall receive the following benefits on termination of employment for Death or Disability:

(1) Executive’s earned but unpaid Salary through the effective date of the termination;

 

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(2) Any earned but unpaid incentive compensation, including incentive compensation earned in the previous year but not yet paid and pro rata incentive compensation earned for the year in which termination occurs;

(3) Accrued but unused vacation pay consistent with the Company vacation policy;

(4) Reimbursable business expenses for activities prior to the effective date of termination;

(5) Executive’s vested stock options and other equity grants shall remain exercisable for one year after Death or Total Disability consistent with the terms of the applicable plan;

(6) Any severance pay for which Executive may be eligible under the terms of the Company’s nondiscriminatory severance plan.

(7) In the event of Total Disability, provided that such payments do not result in a violation the non-discrimination rules under Section 105(h) of the Internal Revenue Code, Company shall pay to the applicable insurer the health care insurance premiums for Executive and his eligible dependents during the 18 months of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), provided Executive and his dependents elect COBRA continuation coverage;

(8) In the event of Total Disability, in order to receive the benefits described herein that Executive is not otherwise entitled to receive, no later than sixty (60) days after termination of employment, the Company and Executive must execute a release agreement (“Release”) substantially in the form of Exhibit ‘A’ attached hereto in order to receive the severance benefits. The Release will be effective upon completion of the payments (other than the health insurance premiums described above) due to Executive. Executive must also remain in substantial and continued compliance with the terms of Section IV of this Agreement.

(9) In the event of death, all payments shall be made to the person or persons identified as the Executive’s beneficiary for any Company-sponsored life insurance.

 

  C. Termination Without Cause or Executive Resigns for Good Reason Immediately Before or Following a Change of Control

If Executive’s employment terminates by the Company without Cause or by Executive for Good Reason within one year following or during the ninety (90) days immediately preceding a Change of Control (as defined below), then Executive shall be entitled to receive the following termination payments:

(1) As severance pay, two times Executive’s annual Salary at the rate in effect immediately prior to termination, paid in a lump sum within ten (10) days following the day Executive signs the Release agreement identified above; provided, however, the payment may be delayed as required to avoid additional tax for a “specified employee” under Section 409A as described in Section VI.G;

 

4


(2) Two times Executive’s Annual Incentive Payment, calculated as the greater of the Annual Incentive Payment earned by Executive in the year prior to termination or Executive’s Target Incentive Payment for the current year, paid in a lump sum within ten (10) days following the day Executive signs the release agreement identified above; provided, however, the payment may be delayed as required to avoid additional tax for a “specified employee” under Section 409A as described in Section VI.G;

(3) Provided that such payments do not result in a violation of the non-discrimination rules under Section 105(h) of the Internal Revenue Code and provided Executive and his dependents timely (and properly) elect COBRA continuation coverage under the Company’s group health plan(s), Company shall pay to the applicable insurer Executive and Executive’s eligible dependents’ continuing health insurance coverage for the shorter of (i) eighteen (18) months; (ii) until such date as Executive is no longer entitled to continuation coverage pursuant to COBRA under the Company’s group health plan(s); or (iii) until such date as Executive obtains health coverage through another employer;

(4) Executive’s earned but unpaid Salary through the effective date of termination, paid on the next regularly scheduled payroll date following the effective date of termination;

(5) Any earned but unpaid incentive compensation, including incentive compensation earned in the prior year but not yet paid and pro rata incentive compensation earned for the year in which termination occurs;

(6) The value of Executive’s accrued but unused vacation, consistent with the Company’s vacation policy applicable to all employees;

(7) Reimbursement of all reasonable business expenses incurred for activities prior to the effective date of termination;

(8) Upon termination under circumstances identified in this section, all of Executive’s unvested stock options and other equity grants shall immediately vest and remain exercisable consistent with any stock option grant or plan;

(9) In order to receive the benefits described herein that Executive is not otherwise entitled to receive, no later than sixty (60) days after termination of employment, the Company and Executive must execute a Release agreement substantially in the form attached hereto as Exhibit ‘A’ in order to receive the severance benefits. The Release will be effective upon completion of all payments due to Executive other than the health insurance premiums described above. Executive must also remain in substantial and continued compliance with the terms of Section IV of this Agreement.

 

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  D. Termination with Cause or Resignation Without Good Reason

If the Company terminates Executive’s employment with Cause or Executive resigns without Good Reason, the Company shall provide Executive compensation and benefits as follows:

(1) Payment of Executive’s earned but unpaid Salary through the effective date of termination.

(2) Payment of the value of Executive’s earned but unused vacation consistent with Company policy that applies to all employees.

(3) Reimbursement of all reasonable business expenses incurred for activities prior to the Effective Date of termination.

(4) Any vested equity grants which shall remain exercisable to the extent provided under the terms of any grant or plan.

 

  E. Termination Without Cause or Executive Resigns for Good Reason

If the Company terminates Executive’s employment without Cause or Executive terminates his employment for Good Reason unrelated to a Change of Control, then Executive shall be entitled to receive the following termination payments:

(1) As severance pay, two times Executive’s annual Salary at the rate in effect immediately prior to termination, paid in a lump sum within ten (10) days following the day Executive signs the release agreement identified below, provided, however the payment may be delayed as required to avoid additional tax for a “specified employee” under Section 409A as stated in Section VI.G;

(2) Two times Executive’s Annual Incentive Payment, calculated as the greater of the Annual Incentive Payment earned by Executive in the year prior to termination or Executive’s Target Incentive Payment for the current year, paid in a lump sum within ten (10) days following the day Executive signs the release agreement identified below, provided, however the payment may be delayed as required to avoid additional tax for a “specified employee” under Section 409A as stated in Section VI.G;

(3) Provided that such payments do not result in a violation of the non-discrimination rules under Section 105(h) of the Internal Revenue Code, and provided Executive and his dependents timely (and properly) elect COBRA continuation coverage under the Company’s group health plan(s), Company shall pay to the applicable insurer Executive and Executive’s eligible dependents’ continuing health insurance coverage for the shorter of (i) eighteen (18) months; (ii) until such date as Executive is no longer entitled to continuation coverage pursuant to COBRA under the Company’s group health plan(s); or (iii) until such date as Executive obtains health coverage through another employer;

(4) Executive’s earned but unpaid Salary, paid on the next regularly scheduled payroll date following the date on which Executive’s employment terminated;

 

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(5) Any earned but unpaid incentive compensation, including incentive compensation earned in the prior year but not yet paid and pro rata incentive compensation earned for the year in which termination occurs;

(6) The value of Executive’s accrued but unused vacation, consistent with the Company’s vacation policy applicable to all employees;

(7) Reimbursement of all reasonable business expenses incurred for activities prior to the effective date of termination;

(8) All of Executive’s unvested stock options and other equity grants shall vest and remain exercisable consistent with any such grant or applicable plan;

(9) In order to receive the benefits described herein that Executive is not otherwise entitled to receive, no later than sixty (60) days after termination of employment, the Company and Executive must execute a Release agreement substantially in the form attached hereto as Exhibit ‘A’ in order to receive the severance benefits. The Release is effective upon completion of payments due to Executive other than the health insurance premiums described above. Executive must also remain in substantial and continued compliance with the terms of Section IV of this Agreement.

 

  F. Definitions of “Cause”, “Good Reason” and “Change of Control”

 

  1. Cause

Wherever reference is made in this Agreement to termination being with or without Cause, “ Cause ” shall mean the occurrence of one or more of the following events:

(a) the willful and continued failure of the Executive to perform his duties;

(b) the willful engaging by the Executive in illegal conduct or gross misconduct which is materially injurious to the Company;

(c) the Executive’s conviction or plea of guilty or nolo contendere to the charge of commission of a felony; or

(d) the Executive’s breach of a regulatory rule that materially and adversely affects the Executive’s ability to perform the Executive’s principal employment duties for the Company and its affiliates.

(e) Prior to a termination for Cause, Employer shall provide Executive 30-day prior written notice of the claimed basis for the possible “Cause” termination and an opportunity for Executive to cure any defect or deficiency on his performance. Upon request, Executive shall be entitled to a hearing before the Board of Directors with representation by counsel. “Cause” shall be established by affirmative vote of at least two-thirds of the entire Board of each employer in order to determine “Cause.”

 

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  2. Good Reason

For the purposes of this Agreement, “ Good Reason ” shall mean that Executive, without his consent, has experienced one of the following events or circumstances:

(a) the assignment to the Executive of any duties materially diminished from those in effect immediately prior to such assignment;

(b) a change in the Executive’s authority, duties or responsibilities which represents a material adverse change from those in effect immediately prior to such change;

(c) a material decrease in the Executive’s annual Salary without his prior agreement;

(d) solely following a Change of Control, relocation of the Executive’s principal place of employment to a location that increases the Executive’s commute from his primary residence by more than 30 miles one way; or

(e) any other action or inaction that constitutes a material breach of the terms of the Agreement by the Company.

(f) To comply with Section 409 A of the Code, the Executive must give written notice of termination of employment within 60 days after the occurrence of the circumstances constituting Good Reason, and the Company will have 30 days to cure the circumstances constituting Good Reason, and the Executive’s “separation from service” must occur no later than six months following the initial existence of the circumstances giving rise to Good Reason.

Notwithstanding the foregoing, termination of employment by Executive will not be for Good Reason unless (i) Executive notifies the Company in writing of the existence of the condition which Executive believes constitutes Good Reason within sixty (60) days of the initial existence of such condition (which notice specifically identifies such condition), and (ii) the Company fails to remedy such condition within thirty (30) days after the date on which it receives such notice (the “Remedial Period”) whereupon Executive’s employment shall be deemed to be terminated for Good Reason upon failure of the Company to remedy. If Company attempts to cure, or disputes the existence of Good Reason, it shall provide documentary evidence thereof to Executive within the Remedial Period. Executive may elect to remain employed by Company and dispute any response by Company during the Remedial Period, without prejudice to the claim of Good Reason, by invoking the provisions of Article VI.I. In the event that Executive remains employed and invokes the dispute resolution process, he shall in any event complete his resignation within two years of the end of the Remedial Period. If Executive terminates employment before the expiration of the Remedial Period or after the Company remedies the condition (even if within the end of the Remedial Period), then Executive’s termination will not be considered to be for Good Reason.

 

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  3. Change of Control

For the purposes of this Agreement, “ Change of Control ” means:

(a) one person or entity acquiring or otherwise becoming the owner of twenty-five percent or more of HomeStreet, Inc.’s or HomeStreet Bank’s outstanding shares in any class of shares;

(b) dissolution or sale of fifty percent or more in value of the assets of either HomeStreet, Inc. or HomeStreet Bank; or

(c) a change “in the ownership or effective control” or “in the ownership of a substantial portion of the assets” of HomeStreet, Inc. or HomeStreet Bank, within the meaning of Section 280G of the Internal Revenue Code.

Sale of stock through an Initial Public Offering shall not constitute a “Change of Control” under this Agreement.

 

IV. CONFIDENTIALITY; NON-SOLICITATION;

 

  A. Confidentiality Agreement

Executive recognizes that the Company’s business and continued success depend upon the use and protection of confidential information and proprietary information, and therefore Executive is subject to, and this Agreement is conditioned on agreement to, the terms of the non-disclosure agreement (the “Confidentiality Agreement”) substantially in the form attached hereto as Exhibit ‘B’ entered into by Executive and the terms of the Confidentiality Agreement shall survive the termination of Executive’s employment with the Company or Successor Employer for a period of ten (10) years from termination unless otherwise required by law.

 

  B. Non-Competition

During Executive’s employment with the Company and/or a Successor Employer and for six months after the termination of such employment, Executive will not engage in, be employed by, perform services for, participate in the ownership, management, control or operation of, or otherwise be connected with, either directly or indirectly, any Competing Business. For purposes of this section, Executive will not be considered to be connected with any Competing Business solely on account of ownership of less than five percent of the outstanding capital stock or other equity interests in any Competing Business. Executive agrees that this restriction is reasonable, but further agrees that should a court exercising jurisdiction with respect to this Agreement find any such restriction invalid or unenforceable due to unreasonableness, either in period of time, geographical area, or otherwise, then in that event, such restriction is to be interpreted and enforced to the maximum extent which such court deems reasonable.

 

  C. Non-Solicitation

(1) During Executive’s employment with the Company and/or a Successor Employer and for six months after the termination of such employment, Executive will not induce, or

 

9


attempt to induce, any employee, executive, Board member or independent contractor of the Company and/or a Successor Employer to cease such employment or relationship to engage in, be employed by, perform services for, participate in the ownership, management, control or operation of, or otherwise be connected with, either directly or indirectly, any Competing Business (defined below).

(2) During Executive’s employment with the Company and/or a Successor Employer and for six months after the termination of such employment, Executive will not, directly or indirectly solicit, divert, appropriate to or accept on behalf of any Competing Business, any business or account from any customer of the Company or entity about whom Executive has acquired confidential information in the course of his employment.

 

  D. Competing Business

“Competing Business” means any bank or thrift with an office or branch in Washington, Oregon, Idaho or Hawaii.

 

V. ASSIGNMENT

This Agreement is personal to Executive and shall not be assignable by Executive. The Company may assign its rights hereunder to (a) any other corporation resulting from any merger, consolidation or other reorganization to which the Company is a party; (b) any other corporation, partnership, association or other person to which the Company may transfer all or substantially all of the assets and business of the Company existing at such time; or (c) any subsidiary, parent or other affiliate of the Company (“ Successor Employer ”). All of the terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns.

 

VI. MISCELLANEOUS

 

  A. Amendments

No amendment, modification, waiver, termination or discharge of any provision of this Agreement, or consent to any departure therefrom by either party hereto, shall in any event be effective unless the same shall be in writing, specifically identifying this Agreement and the provision intended to be amended, modified, waived, terminated or discharged and signed by the Company and Executive, and each such amendment, modification, waiver, termination or discharge shall be effective only in the specific instance and for the specific purpose for which given. No provision of this Agreement shall be varied, contradicted or explained by any oral agreement, course of dealing or performance or any other matter not set forth in an agreement in writing and signed by the Company and Executive.

 

  B. Applicable Law

This Agreement shall in all respects, including all matters of construction, validity and performance, be governed by, and construed and enforced in accordance with, the laws of the State of Washington, without regard to any rules governing conflicts of laws.

 

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  C. Entire Agreement

This Agreement, on and as of the date hereof, constitutes the entire agreement between the Company and Executive with respect to the subject matter hereof. To the extent any agreement, plan or policy of the Company is inconsistent with this Agreement, the provisions of this Agreement shall prevail and control and such other agreement, plan or policy will be construed by Company to be consistent with this Agreement and, if that is not possible, the other agreement, plan or policy shall be modified as to Executive to be in conformance with this Agreement. It is the intent of the parties that Executive shall, to the extent allowed by law, enjoy the full benefit of all obligations of Company set forth herein.

 

  D. Severability

If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any regulatory action, applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability, regardless of the reason therefor shall not affect any other provision of this Agreement or any action in any other jurisdiction, or the obligation of any other entity to this Agreement. If either entity to this Agreement is determined by any regulatory authority or court not to be able to perform its obligation(s) to Executive or not to have the authority to enter into this Agreement, then the other entity shall be liable therefor.

The obligations to Executive herein are the joint and several obligations of HomeStreet Inc. and HomeStreet Bank and there shall be joint and several liability of those entities in the event of any default to Executive by either for any reason.

 

  E. Legal Limitations

Notwithstanding any provision to the contrary in this Agreement, no payment of any type or amount of compensation or benefits shall be made or owed by Company to Executive pursuant to this Agreement or otherwise if payment of such type or amount is prohibited by, is not permitted under, or has not received any required approval under, any applicable governmental statute, regulation, rule, order (including any cease and desist order), determination, opinion, or similar provision whether now in existence or hereafter adopted or imposed, including without limitation, by or under (i) any provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) and regulations promulgated thereunder, (ii) any governmental provisions relating to indemnification by Company or an affiliate, including without limitation any applicable prohibitions or restrictions on depository institutions and their affiliates set forth in 12 USC 1828(k) or in 12 CFR Part 359, or (iii) any governmental provisions relating to payment of golden parachutes or similar payments, including without limitation any prohibitions or restrictions on such payments by troubled institutions and companies and their affiliates set forth in 12 USC 1828(k) or in 12 CFR Part 359. In the event any payment to Executive is prohibited or otherwise restricted, (x)  such payment shall, to the extent allowed by law, order or regulatory determination and not objected to by applicable banking or other regulatory agencies, be reinstated as an obligation of the obligor(s) without further action immediately upon the cessation of such prohibition or restriction, and (y)  the Company shall use its best efforts to secure the consent, if any shall be required, of the FDIC or

 

11


other applicable banking or other regulatory agencies to make such payments in the highest amount permissible, up to the amount provided for in this Agreement.

If any payment made to Executive hereunder or under any prior employment agreement or arrangement is required under any applicable governmental provision (including, without limitation, Dodd-Frank and regulations promulgated thereunder) to be paid back to Company, the Executive shall upon written demand from Company promptly pay such amount back to Company.

 

  F. Code Section 280G

Notwithstanding anything in this Agreement to the contrary, if Executive becomes entitled to receive or receives any payment or benefit under this Agreement or under any other plan, agreement or arrangement with the Company, any person whose actions result in a Change of Control or any person affiliated with the Company or such person (all such payments and benefits being referred to herein as the “Total Payments”) and it is determined that any of the Total Payments will be subject to any excise tax pursuant to Code Section 4999, or any similar or successor provision (the “Excise Tax”), the Company shall pay to Executive an additional amount so that Executive’s net payment shall not be diminished in any respect by the additional Excise Tax.

 

  G. Code Section 409A

With respect to any payments or benefits hereunder that are subject to Code Section 409A and any official guidance and regulations issued thereunder (together “ Code Section 409A ”) and that are payable on account of Executive’s termination of employment, such payments shall only be made if such termination of employment constitutes a “separation from service” within the meaning of Code Section 409A. The Company may adjust any payment hereunder to avoid liability or obligation under Code Section 409A but such adjustments shall ensure that the payments are made in a manner that is as close to the terms of this Agreement as possible. Notwithstanding anything to the contrary contained in this Agreement, all reimbursements for costs and expenses under this Agreement will be paid in no event later than the end of the calendar year following the calendar year in which Executive incurs such expense. With regard to any provision herein that provides for reimbursement of costs and expenses or in- kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in- kind benefits shall not be subject to liquidation or exchange for another benefit, and (ii) the amount of expenses eligible for reimbursements or in-kind benefits provided during any taxable year shall not affect the expenses eligible for reimbursement or in-kind benefits to be provided in any other taxable year.

The Company makes no representations or warranties to Executive with respect to any tax, economic or legal consequences of this Agreement or any payments or other benefits provided hereunder, including without limitation under Code Section 409A, and no provision of the Agreement shall be interpreted or construed to transfer any liability for failure to comply with Code Section 409A from Executive or any other individual to the Company or any of its affiliates. Executive, by executing this Agreement, shall be deemed to have waived any claim against the Company and its affiliates with respect to any such tax, economic or legal

 

12


consequences of this Agreement or any payments or other benefits provided hereunder. However, the parties intend that this Agreement and the payments and other benefits provided hereunder be exempt from the requirements of Code Section 409A to the maximum extent possible, whether pursuant to the short-term deferral exception described in Treasury Regulation Section 1.409A-l(b)(4), the involuntary separation pay plan exception described in Treasury Regulation Section 1.409A-l(b)(9)(iii), or otherwise. To the extent Code Section 409A is applicable to this Agreement (and such payments and benefits), the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Code Section 409A. Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions. In addition, if Executive is a “specified employee,” within the meaning of Code Section 409A, then to the extent necessary to avoid subjecting Executive to the imposition of any additional tax under Code Section 409A, amounts that would otherwise be payable under this Agreement during the six (6) month period immediately following Executive’s “separation from service” for reasons other than Executive’s death (except those payments that may be exempt from 409A by virtue of the short-term deferral exception to 409A) shall not be paid to Executive during such period, but shall instead be accumulated and paid to Executive in a lump sum on the first business day after the date that is six (6) months following Executive’s separation from service.

 

  H. No Mitigation/Offset

In order to receive severance benefits provided in this Agreement, Executive shall not be required to engage in mitigation activities or seek alternative employment, nor would any other compensation received by Executive serve as an offset agreement to the severance or other benefits provided in this Agreement.

 

  I. Disputes

(1) In the event of a dispute or claim between Executive and the Company related to Employee’s employment or termination of employment, all such disputes or claims will be resolved exclusively by confidential arbitration in accordance with the Employment Arbitration Rules of the American Arbitration Association (the “AAA”). This means that the parties agree to waive their rights to have such disputes or claims decided in court by a jury. Instead, such disputes or claims will be resolved by an impartial AAA arbitrator (or other mutually agreeable person) whose decision will be final.

(2) The only disputes or claims that are not subject to arbitration are any claims by Executive for workers’ compensation or unemployment benefits, and any claim by Executive for benefits under an employee benefit plan that provides its own arbitration procedure. Also, Executive and Employer may seek injunctive relief in court in appropriate circumstances.

(3) The arbitration procedure will afford Executive and Employer the full range of statutory remedies, based on the statutes of limitations that would apply to the specific claims asserted as if they were asserted in court. Employer will pay all costs that are unique to arbitration, except that the party who initiates arbitration will pay the filing fee charged by AAA. Executive and Employer shall be entitled to discovery sufficient to adequately arbitrate their

 

13


claims, including access to essential documents and witnesses, as determined by the arbitrator and subject to limited judicial review. In order for any judicial review of the arbitrator’s decision to be successfully accomplished, the arbitrator will issue a written decision that will decide all issues submitted and will reveal the essential findings and conclusions on which the award is based.

IN WITNESS WHEREOF , the parties have executed and entered into this Agreement effective on the date first set forth above.

 

JAY ISEMAN

LOGO

Date   May 26, 2011
HOMESTREET, INC.
By  

/s/ Gerhardt Morrison

Its   HRGC Chairman
Date   May 26, 2011
HOMESTREET BANK
By  

/s/ Cynthia P. Sonstelie

Its   HRCG CHAIR
Date   6/1/11

 

14


EXHIBIT A

WAIVER AND RELEASE

 

15


WAIVER AND RELEASE

PLEASE READ THIS WAIVER AND RELEASE CAREFULLY. IT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS UP TO AND INCLUDING THE DATE THAT THIS AGREEMENT AND RELEASE IS EXECUTED BY THE COMPANY AND THE EXECUTIVE.

For and in consideration of the payments and other benefits due to [Jay Iseman] (the “ Executive ”) pursuant to the Employment Agreement (the “ Employment Agreement ”) entered into as              , 2011 (the “ Effective Date ”), by and between HomeStreet., Inc., and HomeStreet Bank, and their respective subsidiaries (together the “ Company ”) and the Executive, and for other good and valuable consideration, including the mutual promises made herein, the Executive and the Company irrevocably and unconditionally release and forever discharge each other and each and all of their present and former officers, agents, directors, managers, employees, representatives, affiliates, shareholders, members, and each of their successors and assigns, and all persons acting by, through, under or in concert with it, and in each case individually and in their official capacities (collectively, the “ Released Parties ”), from any and all charges, complaints, grievances, claims and liabilities of any kind or nature whatsoever, known or unknown, suspected or unsuspected (hereinafter referred to as “claim” or “claims”) which either party at any time heretofore had or claimed to have or which either party may have or claim to have regarding events that have occurred up to and including the date of the execution of this Release, including, without limitation, any and all claims related, in any manner, to the Executive’s employment or the termination thereof. In particular, each party understands and agrees that the parties’ release includes, without limitation, all matters arising under any federal, state, or local law, including civil rights laws and regulations prohibiting employment discrimination on the basis of race, color, religion, age, sex, national origin, ancestry, disability, medical condition, veteran status, marital status and sexual orientation, or any other characteristic protected by federal, state or local law including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, the Older Workers Benefit Protection Act of 1990, as amended, the Americans with Disabilities Act, the Rehabilitation Act, the Occupational Safety and Health Act, the Family and Medical Leave Act. the Employee Retirement Income Security Act of 1974, as amended (except as to vested retirement benefits, if any), the Worker Adjustment and Retraining Notification Act, the Washington. Law Against Discrimination, RCW 49.60, The Washington Wage Rebate Act, RCW 49.52, the Washington Unpaid Wages Act, RCW 49.48, federal and state wage and hour laws, or any common law, public policy, contract (whether oral or written, express or implied) or tort law, or any other federal, state or local law, regulation, ordinance or rule having any bearing whatsoever.

The Executive must sign and return this Release by personal or guaranteed overnight delivery to the attention of the Human Resources Director, 1800 Two Union square, 601 Union Street, Seattle WA 98101 no earlier than the Date of Termination and no later than «Sign_date», which is the 60th day following the Date of Termination. The Executive can revoke this Release within seven days after executing the Release by sending written notification to the Company of Executive’s intent to revoke the Release, and this Release shall not become effective or enforceable until such revocation period has expired.The Executive’s written notification of the intent to revoke the Release must be sent to the

 

1


Human Resources Director, 1900 Two Union Square, 601 Union Street, Seattle WA 98101 by personal delivery or guaranteed overnight delivery, within seven days after the Executive executed the Release.

The Executive and Company acknowledge that they may have sustained losses that are currently unknown or unsuspected, and that such damages or losses could give rise to additional causes of action, claims, demands and debts in the future. Nevertheless, the Executive and Company each acknowledge that this Release has been agreed upon in light of this realization and, being fully aware of this situation, the Executive and Company nevertheless intend to release the each other from any and all such unknown claims, including damages which are unknown or unanticipated. The parties understand the word “claims” to include all actions, claims, and grievances, whether actual or potential, known or unknown, and specifically but not exclusively all claims arising out of the Executive’s employment and the termination thereof. All such “claims” (including related attorneys’ fees and costs) are forever barred by this Release and without regard to whether those claims are based on any alleged breach of a duty arising in a statute, contract, or tort; any alleged unlawful act, including, without limitation, age discrimination; any other claim or cause of action; and regardless of the forum in which it might be brought.

Notwithstanding anything else herein to the contrary, this Release shall not affect, and the Executive and the Company, as applicable, do not waive or release: (i) rights to indemnification the Executive may have under (A) applicable law, (B) any other agreement between the Executive and a Released Party and (C) as an insured under any director’s and officer’s liability or other insurance policy now or previously in force; (ii) any right the Executive may have to obtain contribution in the event of the entry of judgment against the Executive as a result of any act or failure to act for which both the Executive and any of the Company or its affiliates or subsidiaries (collectively, the “Affiliated Entities”) are or may be jointly responsible; (iii) the Executive’s rights to benefits and payments under any stock options, restricted stock, restricted stock units or other incentive plans or under any retirement plan, welfare benefit plan or other benefit or deferred compensation plan, all of which shall remain in effect in accordance with the terms and provisions of such benefit and/or incentive plans and any agreements under which such stock options, restricted shares, restricted stock units or other awards or incentives were granted or benefits were made available; (iv) the Executive’s rights as a stockholder of any of the Affiliated Entities; (v) any obligations of the Affiliated Entities under the Employment Agreement (vi) any clawback required pursuant to restrictions on compensation for employees of financial institutions; (vii), any claims brought by the Federal Deposit Insurance Corporation as receiver or conservator of the Bank that have not been released or waived by the Company; (viii) claims for improper self-dealing; improper distributions and other limitations imposed by RCW 23B.08.320; (ix) any finally and judicially determined, knowing violation of the law by Executive that has a material and adverse impact on the Company; (x) any fraud or other intentional misconduct by Executive that has a material and adverse impact on the Company; (xi) any material violation of any confidentiality, nonsolicitation or noncompetition agreement or provision executed by Executive; or (xii) any other claim not subject to release by operation of law.

 

2


The Executive waives all rights under section 1542 of the Civil Code of the State of California or any comparable or analogous Federal law or any other state law. Section 1542 provides as follows:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

The Executive acknowledges and agrees that the Executive: (a) has been given at least [21/45] days within which to consider this Release and its ramifications and discuss the terms of this Release with the Company before executing it (and that any modification of this Release, whether material or immaterial, will not restart or change the original [21/45] day consideration period) and the Executive fully understands that by signing below the Executive is voluntarily giving up any right which the Executive may have to sue or bring any other claims against the Released Parties; (b) has been given seven days after returning the Release to the Company to revoke this Release; (c) has been advised to consult legal counsel regarding the terms of this Release; (d) has carefully read and fully understands all of the provisions of this Release; (e) knowingly and voluntarily agrees to all of the terms set forth in this Release; and (f) knowingly and voluntarily intends to be legally bound by the same. The Executive also understands that, notwithstanding anything in this Release to the contrary, nothing in this Release shall be construed to prohibit the Executive from (i) filing a charge or complaint with the Equal Employment Opportunity Commission or Washington State Human Rights Commission or any other federal, state or local administrative or regulatory agency, or (ii) participating in any investigation or proceedings conducted by the Equal Employment Opportunity Commission or any other federal, state or local administrative or regulatory agency; however, the Executive expressly waives the right to any relief of any kind in the event that the Equal Employment Opportunity Commission or Washington State Human Rights Commission or any other federal, state or local administrative or regulatory agency pursues any claim on the Executive’s behalf.

This Release is final and binding and may not be changed or modified except in a writing signed by both parties.

 

 

    

 

Date      [Name]

 

3


EXHIBIT B

EXECUTIVE CONFIDENTIALITY AGREEMENT

 

16


EXECUTIVE CONFIDENTIALITY AGREEMENT

This Confidentiality Agreement (“Agreement”) is between HomeStreet, Inc., HomeStreet Bank (“Bank”) and their affiliate or subsidiary organizations and their successors and assigns (collectively, the “ Company ” or “HomeStreet”) and Jay Iseman (“ Executive ” or “Recipient”) (collectively, the “ Parties ”).

Executive is currently employed as the Executive Vice-President and Chief Credit Officer of the Bank and HomeStreet, Inc. It is the intent of the Parties that this Agreement will become effective upon the termination of Executive’s services to the Company. By virtue of his position with the Company, Executive has access to Confidential Information (defined below). HomeStreet must have assurance from Recipient that all Confidential Information provided to Recipient is and remains confidential after termination of his services. Therefore, for valuable consideration, the receipt of which is acknowledged to be sufficient, Recipient and HomeStreet agree as follows:

 

1. “Confidential Information” means information concerning the business, operations, strategies, financial status, products, services, customer names, customer lists and customer information of HomeStreet, which is confidential or proprietary to HomeStreet.

 

2. Confidential Information does not include information that: (a) is or becomes generally available to the public through no fault or act of Recipient or any of his Representatives in violation of this Agreement; (b) is or becomes available to Recipient or his representatives on a non-confidential basis from a source other than HomeStreet not known to Recipient or such Representatives to be prohibited from disclosing such information by a contractual, legal or fiduciary obligation of confidentiality; (c) is independently developed by the Recipient or his representatives without use of or reliance on, either directly or indirectly, Confidential Information; or (d) was known to or in the possession of Recipient or one of his representatives on a non-confidential basis prior to disclosure by HomeStreet under the terms of this Agreement; or (e) is developed primarily through the efforts or work product of Executive.

 

3.

After the termination of his services or employment agreement, Recipient agrees not to disclose any Confidential Information to any third party, unless such third party is a fiduciary, affiliate or HomeStreet vendor and such vendor and HomeStreet have signed a similar confidentiality agreement, or such disclosure of Confidential Information is required by lawful judicial or governmental order. Recipient agrees to give HomeStreet reasonable notice in writing in advance of releasing Confidential Information pursuant to any judicial or governmental order. Recipient additionally agrees to implement and maintain at all times reasonably appropriate procedures and controls to ensure at all times the security and confidentiality of all of HomeStreet’s

 

1


 

Confidential Information, to protect against any anticipated threats or hazards to the security or integrity of such information; and to protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to Home Street or any customer of HomeStreet. Recipient agrees to notify HomeStreet of any known security breach, any known unauthorized release of Confidential Information, or any known unauthorized attempt to access Confidential Information of which it becomes aware within a reasonable time of the occurrence of such event. Such notice will include, at a minimum, the date and time of any such event, the nature and extent of Confidential Information involved in any such event, and the corrective measures taken by Recipient in response to any such event.

 

4. All Confidential Information is and shall remain the property of HomeStreet. No license or conveyance of any right is granted or implied by the distribution of any Confidential Information to Recipient. Recipient agrees not to use, duplicate, or reproduce in any way any Confidential Information for Recipient’s own benefit or financial gain, or for any third party’s benefit or financial gain except to the extent reasonably necessary to analyze and prepare a business proposal to HomeStreet, in connection with rendering services to HomeStreet and to prepare and maintain his internal files in the ordinary course of its business. All documents (originals and copies, including electronic versions) containing Confidential Information shall either be destroyed or disposed of in a manner consistent with the Fair and Accurate Credit Transactions Act of 2003 or, if directed by HomeStreet, returned to HomeStreet upon termination of the rendering of services to HomeStreet by Recipient. Recipient agrees that HomeStreet may take reasonable actions as deemed appropriate by HomeStreet to confirm that Recipient has satisfied these obligations. It is understood that Recipient may retain one archival copy of such information for his internal files except for Bank customer loan files and documents containing private customer information.

 

5. By making any Confidential Information available to Recipient, HomeStreet makes no representation, warranty or guarantee, either express or implied, as to the accuracy or completeness of any Confidential Information or to the format in which such Confidential Information is provided to Recipient. Except as otherwise provided in any engagement letter, HomeStreet shall not be liable to any party for damages, of whatever kind, as a result of Recipient’s reliance on any Confidential Information or any format in which Confidential Information is made available to Recipient.

 

6. Recipient acknowledges that due to the highly sensitive nature of the Confidential Information, Recipient will be liable to HomeStreet for all losses suffered by HomeStreet as a result of Recipient’s intentional and material breach of this Agreement. In addition to any other remedies available to HomeStreet, Recipient agrees that, if Recipient breaches this Agreement, HomeStreet may seek injunctive relief against Recipient to stop any such breach.

 

7.

If either Party to this Agreement commences legal action to enforce any rights arising out of or relating to this Agreement, the prevailing Party in any such action shall be

 

2


 

entitled to recover reasonable attorneys’ fees and costs, including fees and costs on appeal. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Washington and the venue for any legal action shall be Seattle, Washington.

 

8. If Recipient and HomeStreet have entered into any other agreement, the terms of this Agreement shall, by this reference, be incorporated into and made a part of such other agreement, except to the extent otherwise specifically provided in such other agreement. The terms of this Agreement shall survive the termination of rendering of services to HomeStreet by Recipient for a period of ten years.

This Agreement is dated this      day of              , 2011.

 

HomeStreet, Inc.

HomeStreet Bank

     Executive
      

 

       Jay Iseman
By:  

 

     By:   

 

Title:  

 

       

 

3

Exhibit 10.23

 

 

Original Lease – March 5 1992

  
 

Supplemental Lease Agreement – August 25, 1992

 

    

 

1

 

  

 

 

Second Amendment to Lease – May 6, 1998

 

    

 

2

 

  

 

 

Third Amendment to Lease – June 17, 1998

 

    

 

3

 

  

 

 

Fourth Amendment to Lease – February 15, 2000

 

    

 

4

 

  

 

 

Fifth Amendment to Lease – July 31, 2001

 

    

 

5

 

  

 

 

Sixth Amendment to Lease – March 5, 2002

 

    

 

6

 

  

 

 

Seventh Amendment to Lease – May 19, 2004

 

    

 

7

 

  

 

 

Eighth Amendment to Lease – August 31, 2004

 

    

 

8

 

  

 

 

Ninth Amendment to Lease – April 19, 2006

 

    

 

9

 

  

 

 

Tenth Amendment to Lease – August 16, 2006

 

    

 

10

 

  

 

 

Eleventh Amendment to Lease – January 21, 2007

 

    

 

11

 

  

 

 

Twelfth Amendment to Lease – November 7, 2007

 

    

 

12

 

  

 

        

 

13

 

  

 

        

 

14

 

  

 

        

 

15

 

  

 

[***] Indicates confidential material that has been omitted pursuant to a Confidential Treatment Request filed with the Securities and Exchange Commission. A complete copy of this agreement has been separately filed with the Securities and Exchange Commission.


Continental Savings Bank

Master Lease (March 5, 1992)

Contents

 

Lease

Section

  

Topic

  

Page

 
1   

Basic Lease Information

     1   
1.1   

Leased Premises

     1   
1.2   

Floor Areas

     2   
1.3   

Term

     2   
1.4   

Rent

     3   
1.5   

Base Indices

     4   
1.6   

Use

     4   
1.7   

Lessee’s Address for Notices

     4   
1 8   

Lessor’s Address for Notices

     4   
1.9   

Exhibits and Other Attachments

     4   
1.10   

Lessor

     5   
2   

Rent Payment

     5   
3   

Annual Rent Adjustment (Operating Expenses)

     6   
4   

Real Property Description and Taxes

     7   
5   

Possession

     9   
6   

Acceptance and Care of Premises

     10   
7   

Alterations

     11   
8   

Inspection and Repairs

     11   
9   

Services by Lessor

     12   
10   

Fire or Other Casualty

     15   
11   

Waiver of Subrogation

     16   
12   

Uses

     16   
13   

Signage arid Plaza Identification

     17   
14   

Accidents and Indemnity

     18   
15   

Liens and Insolvency

     20   
16   

Default by Lessee and Re-Entry

     20   
17   

Removal of Property and Replacement of Non-Standard Items

     20   
18   

Non-Waiver

     21   
19   

Costs and Attorney’s Fees

     21   
20   

Priority

     21   
21   

Condemnation

     22   
22   

Assignment and Subletting

     23   
23   

Rules, Regulations and Miscellaneous

     24   
24   

Successors

     27   
25   

Shared Tenant Services

     27   
26   

Tenant improvement

     27   
27   

Expansion Options

     28   
28   

Right of First Offer/Right of First Refusal

     29   
29   

Extension Term and Rent

     32   


Continental Savings Bank

Master Lease (March 5, 1992)

Contents

 

Lease

Section

  

Topic

  

Page

30   

Parking

   33
31   

Storage Space

   35
32   

Satellite Dish

   35
33   

Additional Expenses

   35
34   

Default by Lessor

   36
35   

Regulatory Approval

   36
36   

Exclusivity

   36
37   

Branch Bank

   37
38   

Backup Power

   37
Exh - A   

Floor Prints of Leased Premises

   9 Pgs.
Exh - B   

Initial Improvement of Leased Premises

   15 Pgs.
Exh - C   

Janitorial Specifications

   7 Pgs.
Exh D-1   

Nondisturbance and Attornment Form

   1 Pg.
Exh D-2   

Subordination, Non-Disturbance and Attornment Agreement

   7 Pgs.
Exh- E   

Fireplace Lobby Plan

   1 Pg.


TWO UNION SQUARE

Seattle, Washington

OFFICE LEASE

THIS LEASE, dated the 5th day of March, 1992, between: ONE UNION SQUARE VENTURE, a joint venture (Lessor) and CONTINENTAL, INC. (Lessee).

Lessee and Lessor, in consideration of this lease, covenant and agree as follows:

1. BASIC LEASE INFORMATION

1.1 Leased Premises . The leased premises are located in the office tower portion and retail portion of the Two Union Square Building (the TUS Building) situated on the land (TUS Land) described in Section 4.1(a). A portion of the leased premises may also be located in retail portion of the One Union Square Building (OUS Building) situated on the land (OUS Land) described in Section 4.1(b). The term “Building” shall mean The TUS Building with respect to the portion of the leased premises in the TUS Building and the OUS Building with respect to the portion (if any) of the leased premises in the OUS Building. The TUS and OUS Lands are collectively called the Land. The initial leased premises shall be comprised of:

(a) Between 45,000 and up to all of the office space on floors 18, 19 and 20 (approximately 60,000 RSF) in the TUS Building.

(b) Approximately 2,511 USF (no load factor to be applied) as outlined in red on attached Exhibit A for Lessee’s branch bank.

(c) Up to 7,000 USF of additional retail space (no load factor to be applied) in one or more of the following locations:

 

  i) All of the upper level of the branch bank location (approximately 2,540 USF in the TUS Building);

 

  ii) All of the former IBM employment center space in the OUS Building (approximately 2,068 USF) (If prior to April 3, 1992, Lessor determines that the adjacent Federal Express space will be available for lease to a party other than Federal Express, Lessor will so advise Lessee and Lessee may include the Federal Express


 

space and the IBM employment center space as part of the initial leased premises pursuant to this Section 1.1(c)(ii), provided the election is made no later than April 3, 1992.);

 

  iii) All of the Security Pacific Branch Bank space in the OUS Building (approximately 1762 USF), if said space becomes available; and/or

 

  iv) All of the upper level of the plaza building at the corner of sixth and Union (approximately 2,000 USF - Dakota, 1,600 USF vacant) in the TUS Building or all of the vacant space or all of the Dakota space, if available and if required governmental approvals for Lessee’s intended use can be obtained. Lessor will use its reasonable best efforts to obtain such approvals.

The space described in Section 1.1(a) and any additional space in the Tower portion of the TUS Building is sometimes referred to as the office space or office area portion of the leased premises. The space described in Sections 1.1(b) and 1.1(c) is sometimes referred to as the retail space or retail area portion of the leased premises.

Lessee shall specify the exact spaces comprising the leased premises (within the parameters specified above) and such spaces shall be outlined in black on prints marked Exhibit A which shall be initialed by the parties and attached to this lease, not later than April 3, 1992 for the retail area portion(s) and May 15, 1992 for the office area portion.

1.2 Floor Areas . The load factors to convert the usable area (USF) of office space in the TUS Building to rentable area (RSF) therein are 1.13 (i.e., 13%) when Lessee occupies part of the office space on a floor and 1.0927 (i.e., 9.27%) when Lessee occupies all of the office space on a floor. The total area of the office and retail space in TUS Building is 1,095,391 square feet (RSF for office plus USF for retail). The total area of office and retail space in the OUS Building is 628,845 square feet (RSF for office plus USF for retail). The total usable area of retail space in the TUS Building and OUS Building is 55,757 square feet. The usable and rentable areas of office space and usable areas of retail space comprising the leased premises shall be calculated from Lessee’s Final Preliminary Plans (defined in Exhibit B), as mutually agreed to by Lessee’s Architect and Lessor’s Architect, and set forth in Exhibit A when it is attached and made part of this lease as above provided. In the event a portion of the Building is damaged or any other event or change occurs which alters the usable or rentable areas of the leased premises or the Building, Lessor may appropriately adjust the foregoing areas . Usable and rentable areas shall mean such areas as defined by the Building Owners and Managers Association International in its “Standard Method for Measuring Floor Area in Office Buildings” (American National Standard ANSIZ 65.1-1980). Whenever areas are herein referred to generally, it shall mean rentable area.

1.3 Term . The lease term shall commence on January 1, 1993 and end December 31, 2002.

 

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A portion of the leased premises shall be deemed to be “Substantially Completed” when all of the tenant improvements for such portion of the leased premises has been completed in accordance with plans and specifications provided by Lessee in accordance with Exhibit B and have been accepted as complete by Lessee’s Architect; such acceptance shall not be unreasonably withheld or delayed, and the existence of typical punchlist items shall not be grounds for withholding such acceptance, provided that Lessor shall correct and/or complete such punchlist items as soon as reasonably possible.

Lessee shall not be required to occupy the leased premises prior to January 1, 1993 without its consent, which consent may be withheld by Lessee in its sole discretion. Prior to January 1, 1993, Lessee shall have the right to occupy all or any portion of the leased premises regardless of whether all or any portion of the leased premises is or is not Substantially Completed, and in such event rent shall commence upon occupancy, but only as to the part of the leased premises occupied by Lessee. However, in no event shall Lessee occupy a portion of the leased premises before the entire leased premises is Substantially Completed if such occupancy would materially interfere with the timely completion of that portion or any other portion of the leased premises or increase costs, unless Lessee agrees to the consequences of such delay and to pay such increase in costs.

1.4 Rent. The base monthly rent, payable without demand in advance on the first day of each calendar month, shall be based on an annual rate of 17.98/RSF/year (USF/year for retail space) for the entire initial lease term through December 31, 2002.

Notwithstanding the foregoing, the rent rate for the first month of full occupancy from and after January 1, 1993 shall be $4.71/RSF/year (USF/year for retail space). In the event Lessee elects to occupy the leased premises (or a portion thereof) prior to January 1, 1993, its base monthly rent during 1992 shall commence upon occupancy and be based on an annual rate of $4.71 per RSF/year (or USF/year for retail space) for the space occupied. Such pre-January 1, 1993 occupancy shall not in any way negate, reduce or otherwise impact the terms of the first sentence of this paragraph.

For occupancy on and after January 1, 1993, rent for the office space portion of the leased premises shall start on the earlier of (a) the date Lessee first occupies the office space portion of the leased premises (or as to the portion occupied if occupied in stages), or (b) five (5) days after the date on which the tenant improvements in the office space portion have been Substantially Completed, except as otherwise provided in Section 5.6 of Exhibit B. Rent for the retail space portion of the leased premises shall start when such space is first occupied by Lessee (or as to the portion occupied if occupied in stages), except as otherwise provided in Section 5.6 of Exhibit B. The rates for occupancy of office space or retail space prior to January 1, 1993 shall be $4.71 per RSF/year (USF/year for retail space).

Commencing January 1, 1995, Lessee will pay its share of retail area Common Area Maintenance costs, in the ratio that its retail space area bears to total retail space area in the TUS Building and the OUS Building, not to exceed a maximum of $2.00/USF/year. Thereafter (namely, as of the first day of 1996 and the first day of each year thereafter), the maximum rate

 

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will be the sum of the 1995 rate (adjusted to 95% occupancy) and the actual annual increases in such costs, with the actual 1995 costs (adjusted to 95% occupancy) as the base year, not to exceed five percent (5%) per year (cumulative and compounded).

1.5 Base Indices

Consumer Price Index for September 1992.

Cost of electricity per kilowatt-hour (average) for 12 months ending September 30, 1992.

Janitorial hourly labor rate as of September 30, 1992.

Operating Cost Adjustment Base: The lesser of $4.95/RSF/year (USF/year for retail space) or the actual operating costs (adjusted to 95% occupancy) incurred by Lessor in the year ended October 31, 1992.

The first rent adjustment pursuant to Section 3 will be January 1, 1994.

1.6 Use. The leased premises shall be used only for the purposes of general office, banking services, loan production, escrow services, and other banking, real estate and financial service-related uses.

1.7 Lessee’s Address for Notices if Other Than the Leased Premises: Until Lessee has occupied office portion of the leased premises, Lessee’s address for notices shall be The Pacific Building, Eighth Floor, 720 Third Avenue, Seattle, WA 98104, Attention: Richard Swanson.

1.8 Lessor’s Address for Notices and Payment of Rent:

1010 Unigard Financial Center

1215 Fourth Avenue

Seattle, Washington 98161-1001

1.9 Exhibits and Other Attachments Which are Part of the Lease:

 

  Exhibit A: Prints with leased premises outlined in black on standard floor plans.

 

               B: Initial Improvement of Leased Premises.

 

               C: Janitorial Services Outline

 

               D: Non-Disturbance Agreement Form(s)

 

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               E: Possible Design Solution for Branch Bank Space

1.10 Lessor . Lessor is a Washington joint venture comprised of (a) Properties Associates, a Washington limited partnership, (b) Security Pacific Premises, Inc., a Washington corporation, and (c) Security and Union Venture, a Washington joint venture. Lessor is the sole owner of the Building and Land. UNICO Properties, Inc. is the manager and authorized rental agent of One and Two Union Square and it has the authority to execute this lease on behalf of Lessor and bind Lessor as provided in this lease, without the need for signature or comment of any other party, other than the consent of State of Washington State Investment Board, beneficiary of the first deed of trust on Two Union Square and second deed of trust on One Union Square. Execution of this lease by Lessor shall be Lessor’s warranty that such consent has been obtained.

2. RENT PAYMENT

Lessee shall pay the rent and other charges provided for in this lease, in lawful money of the United States on or before their specified due dates to Lessor at the address specified in Section 1.8, or to such other party or at such other place as Lessor may hereafter from time to time designate in writing. All rent which is past due shall bear interest at the rate of one percent (1%) per month from the date rent is due until paid. If the maximum annual rate of interest permitted by applicable law shall be less than the rate of interest provided for herein, then all past due payments of rent shall bear interest at the maximum rate permitted by applicable law from due date until paid. Lessee acknowledges that late payment by Lessee to Lessor of rent will cause Lessor to incur costs not contemplated by this lease, the exact amount of such costs being extremely difficult and economically impractical to ascertain. Therefore, if any payment of rent due from Lessee is not received by Lessor within 10 days after the due date, Lessee shall pay to Lessor (in addition to the interest above provided) a late charge of Fifty Dollars ($50) or two percent (2%) of the overdue rent, whichever shall be greater. Notwithstanding the foregoing, however, Lessee shall be entitled to ten (10) days prior written notice before the application of either the late charge of the above-described interest rate the first time in each calendar year during the term of this lease that Lessee is late with a payment. Moreover, the late charge shall apply only once to a given late payment (for example, if Lessee failed to pay rent for a given month until the fifteenth day of the following month, such late rent payment would be subject only to one two percent late charge. The late charge is in addition to interest payable by Lessee as herein provided.) The parties agree that this late charge represents a fair and reasonable estimate of the costs that Lessor will incur by reason of late payment by Lessee and is in addition to any interest charges on past due rent.

For purposes of the Internal Revenue Code, including Section 467 thereof, rent expense and rental income shall be recognized by the parties as and when rent amounts are payable under the terms of this Lease. Notwithstanding the foregoing, however, if Lessee prepays rent, Lessee shall be entitled to recognize such expense on the date payment is made.

 

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3. ANNUAL RENT ADJUSTMENT (OPERATING EXPENSES)

3.1 A portion of the initial rental rate shall be adjusted January 1 of each year commencing January 1, 1994. Three separate indicators, each to be factored separately by one-third of the Operating Cost Adjustment Base, are used to provide a reasonably broad base to determine the amount of such adjustment. These indicators are the Consumer Price Index, the cost of electricity and janitorial hourly labor rate.

3.2 The base indices for the Consumer Price Index, the cost of electricity and janitorial hourly labor rate, shall be as stated in Section 1.5. Succeeding indices for each of these indices will be calculated annually thereafter, using the succeeding data for the month of September, 12-month period ending September 30, and September 30, respectively. The ratio that each succeeding index bears to its base index shall be reduced by 1.00 and multiplied by one-third of the Operating Cost Adjustment Base, and by the area of the leased premises. Each January 1, commencing January 1, 1994, the monthly rent otherwise provided for in this Lease shall be increased by l/12th of the sum of the amounts so determined.

3.3 The Consumer Price Index to be used shall be the Consumer Price Index for all urban consumers, U.S. city average, all items, series 1982-84 equals 100 (as published by the U.S. Department of Labor, Bureau of Statistics). If this index is revised or changed (as, for example, by taking the average index for different years as the base figure of 100), the base index shall be adjusted accordingly. If this index is discontinued, the index promulgated by the Department of Labor which most closely approximates the above-referenced index, shall be used and the base index shall be adjusted accordingly.

3.4 The cost of electricity to be used shall be the average cost to Lessor per kilowatt-hour of electricity consumed in the TUS Building and OUS Building, respectively, for the 12-month periods ending the September 30 specified in Section 1.5 and each September 30 thereafter.

3.5 The janitorial hourly labor rate to be used shall be the average regular time hourly compensation paid to persons employed as janitors in the TUS Building and OUS Building, respectively, including all applicable taxes and fringe benefits payable by employers. Lessor shall use its reasonable best efforts to keep the costs described in this Section 3.5 as low as possible.

3.6 The rate for additional rent for a calendar year under Section 3 shall not exceed five percent (5%) of the Operating Cost Adjustment Base per year (cumulative and compounded) from January 1, 1993 to the January 1 in question. If the Operating Cost Adjustment base is $4.95, then the rate ($/(RSF)(USF)/year) for additional rent under Section 3 shall not exceed

 

  (a) $0.24750 for 1994 [(0.05)(4.95)],

 

  (b) $0.50738 for 1995 [(1.05)(0.05)(4.95) plus 0.24750],

 

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  (c) $0.78025 for 1996 [(1.05)(1.05)(0.05)(4.95) plus 0.50738].

 

  (d) $1.06676 for 1997 [(1.05)(1.05)(1.05)(0.05)(4.95)plus $0.78025], etc.

3.7 Lessor shall automatically provide Lessee with reasonable backup documentation supporting all calculations called for in this Section 3 and Lessee shall have the right to review/audit all pertinent information and documentation upon reasonable advance notice to Lessor. The Operating Cost Adjustment Base is subject to only one audit. If Lessee’s audit reveals that Lessor overcharged Lessee (or sought to overcharge Lessee) by more than a factor of three percent (3 %) of the additional rent payable under Section 3 for the period of the audit, Lessor shall reimburse Lessee for all costs incurred by Lessee in conducting such audit. Lessor shall keep all pertinent backup information and documentation for at least five (5) years after the adjustment year in question.

3.8 Separate calculations of additional rent under Section 3 shall be made for the portions of the leased premises in the TUS Building and OUS Building, respectively, using the appropriate indices and areas for the TUS Building and OUS Building, respectively.

4. REAL PROPERTY DESCRIPTION AND TAXES

4.1(a) The legal description of the TUS Land is:

Commencing at the most southwesterly corner of Lot 12, of Block 61, Addition to Town of Seattle (commonly known as A.A. Denny’s Fifth Addition to City of Seattle), according to plat recorded in Volume 1 of Plats, page 89, in King County, Washington; thence north 30°37’08” west along the westerly line of said block 119.84 feet, to the true point of beginning; thence north 59°20’00” east 105.15 feet; thence north 30°40’32” west 38.89 feet; thence north 59° 23’00” east 14.80 feet; thence north 30°37’00” west 0.55 feet; thence north 59°20’14” east 135.80 feet to the easterly line of said block; thence south 30°35’43” east 116.45 feet to the westerly margin of Interstate No. 5; thence north 59°24’17” east 33.00 feet to the centerline of vacated Seventh Avenue; thence north 30°35’43” west along said centerline 311.89 feet to the southerly margin of Union Street as created by City of Seattle Ordinance No. 18188; thence south 59°22’04” west along said southerly margin 288.79 feet to the easterly margin of Sixth Avenue; thence south 30°37’08” east 234.99 feet to the true point of beginning; and Lots 1, 4, 5 and 8 in Block 64, of said addition except the portions thereof condemned under King County Superior Court Cause Nos. 62589, 570519 and 566654; together with portion of vacated alley and Seventh Avenue lying adjacent to and abutting thereon as provided by Ordinance Nos. 107299 and 111138, respectively, of the City of Seattle, and portion of vacated alley conveyed to Lessor by deed recorded under King County Receiving No. 8010090702.

 

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  (b) The legal description of the OUS Land is:

That portion of Block 61 (described above); and of vacated alley lying therein as provided by Ordinance No. 107299 of the City of Seattle; and of vacated Seventh Avenue adjacent, as vacated by City of Seattle Ordinance No. 111138, described as follows:

Beginning at the most southwesterly corner of Lot 12 of said Block 61, thence north 30°37’08” west along the westerly line of said block 119.84 feet; thence north 59° 20’00” east 105.15 feet; thence north 30°40’32” west 38.89 feet; thence north 59°23’00” east 14.80 feet; thence north 30°37’00” west 0.55 feet; thence north 59°20’14” east 135.80 feet to the easterly line of said block; thence south 30° 35’43” east 159.45 feet to the most southeasterly corner of said block; thence south 59°22’32” west 255.64 feet to the point of beginning.

4.2 Lessor shall pay all real property taxes and assessments (including interest thereon) which may be levied against the TUS Building and the TUS Land. If the amount of such real property taxes and assessment installments (including interest thereon) payable in any calendar year during the lease term exceeds the amount thereof payable during the later of 1993 or the first calendar year the TUS Building is assessed and taxed as a completed building with the assessor utilizing occupancy rates and vacancy rates then generally applied by the assessor to completed class A office buildings in downtown Seattle, then each such year, Lessee shall pay Lessor its share of such excess in the ratio that the area of the leased premises in the TUS Building (RSF for office space plus USF for retail space) bears to the area of the TUS Building (RSF for office space plus USF for retail space), payable one half on April 1 and one half on October 1 of each such year.

4.3 Lessor shall pay all real property taxes and assessments (including interest thereon) which may be levied against the OUS Building and the OUS Land. If the amount of such real property taxes and assessment installments (including interest thereon) payable in any calendar year during the lease term exceeds the amount thereof payable during 1993, then each such year, Lessee shall pay Lessor its share of such excess in the ratio that the area of the leased premises in the OUS Building (USF for retail space) bears to the area of the OUS Building (RSF for office space plus USF for retail space), payable one half on April 1 and one half on October 1 of each such year.

4.4 If the real property taxes (excluding assessments) payable in any calendar year for the TUS Building or OUS Building is less than the amount thereof payable during the Building in question’s base year, and provided that such reduction does not result from change(s) in laws which also increase taxes or create new taxes which are payable by Lessor, then Lessee shall receive a credit against future payments due Lessor under this Section 4 equal to seventy-five percent (75%) of the portion of such difference which bears the same ratio to such difference that the area of the leased premises in the Building in question bears to the total area (RSF for office and USF for retail space) of the Building in question. Such credit shall apply only upon future payments due from Lessee to Lessor under this Section 4.

 

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4.5 Upon Lessee’s request, Lessor shall furnish copies of the real property tax statements for the year in which the additional payment is requested and the respective base year(s). All assessments (including interest thereon) shall be paid over the longest period allowable.

4.6 Lessor shall appeal the tax assessor’s valuation whenever in Lessor’s judgment there is a reasonable likelihood for success in such appeal to an extent which justifies such an appeal, and any refunds gained by such appeal shall be applied first to the cost of the appeal and any excess shall be refunded to Lessee in proportion to the share of the taxes in question paid by Lessee.

4.7 The foregoing charges constitute additional rent which shall be deemed to accrue uniformly during the calendar year in which the payment is due. Payment under the provisions of this Section for the year the lease term ends shall be prorated, based on reasonable projections of the increase through the termination of this lease and shall be due thirty (30) days before such termination.

5. POSSESSION

5.1 In the event of the inability of Lessor to deliver possession of the leased premises or any portion thereof, at the time of the commencement of the term of this lease, Lessor shall not be liable for any damage caused thereby, nor shall this lease thereby become void or voidable, nor shall the term herein specified be in any way extended, but in such event, Lessee shall not be liable for payment of any rent until such time as Lessor can deliver possession, except as may be otherwise provided in Exhibit B to this lease. If Lessor shall deliver possession of the leased premises to Lessee prior to January 1, 1993 and Lessee agrees to accept the same at such time, both Lessor and Lessee agree to be bound by all provisions and obligations of this lease during the prior period.

5.2 Notwithstanding the foregoing, if Lessor fails to deliver all of the office space portion of the leased premises to Lessee in Substantially Completed condition by 5:00 p.m., December 14, 1992, Lessor shall hold Lessee harmless from (a) all rent and other occupancy charges incurred by Lessee with respect to its existing office space premises in the Pacific Building or elsewhere which is in excess of the rent and other charges payable by Lessee for its existing office space Pacific Building premises (at the rent rate and additional rent charges in effect for December 1992) from January 1, 1993 until five (5) days after the date on which the tenant improvement in the office space portion of the leased premises have been Substantially Completed, and (b) reasonable attorneys’ fees and expenses incurred by Lessee with respect to such occupancy beyond December 31, 1992 in its existing Pacific Building premises or elsewhere (other than the Building). Such indemnity shall not apply to the extent such failure would not have occurred but for delay caused by Lessee or its agents (including Lessee’s Architect), including without limitation delay caused by Lessee’s failure to comply with the schedule specified in Exhibit B, change orders requested by Lessee, and the causes listed in Section 5.6 of Exhibit B.

 

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5.3 Notwithstanding the foregoing, if Lessor fails to deliver all of the branch bank portion of the leased premises to Lessee in Substantially Completed condition by 5:00 p.m., December 14, 1992, Lessor shall hold Lessee harmless from (a) all rent and other occupancy charges incurred by Lessee with respect to its existing branch bank premises in the Pacific Building which is in excess of the rent and other charges payable by Lessee for its existing Pacific Building branch bank premises (at the rent rate and additional rent charges in effect for December 1992) from January 1, 1993 until five (5) days after the date on which the tenant improvements in the branch bank portion of the leased premises have been Substantially Completed and (b) reasonable attorneys’ fees and expenses incurred by Lessee with respect to occupancy beyond December 31, 1992 in its existing Pacific Building branch bank premises or elsewhere (other than the Building) from January 1, 1993 until five (5) days after the date on which the tenant improvements in the branch bank portion of the leased premises have been substantially completed. Such indemnity shall not apply to the extent such failure would not have occurred but for (a) delay caused by Lessee or its agents (including Lessee’s Architect), including without limitation delay caused by Lessee’s failure to comply with the schedule specified in Exhibit B, change orders requested by Lessee, and the causes listed in Section 5.6 of Exhibit B, (b) delay caused because the time period to obtain a building permit for the branch bank space exceeded twelve (12) weeks from the date a complete building permit application was submitted to the City of Seattle because Lessee’s design for such space differed materially from the design solution shown in Exhibit E, or (c) Lessee’s failure to occupy the branch bank space when it could be beneficially occupied by Lessee (i.e., branch bank business could be reasonably conducted therein, even though some portions of the work which did not prevent Lessee’s beneficial occupancy were not completed).

5.4 Notwithstanding Section 5.1, Lessor will proceed diligently and in good faith to deliver all of leased premises covered by a building permit to Lessee in a Substantially Completed condition within one hundred twelve (112) days after the building permit for such portion of the leased premises has been received by Lessor from the City of Seattle, or such later date as may be specified in the construction contract for such work, subject to delays caused by Lessee or its agents strikes or other labor disputes, material shortages, fire or other casualty, acts of God or other causes beyond Lessor’s control. From the date hereof until the date rent commences for the entire office portion of the leased premises, Lessee may use Floor 21 of the TUS Building (on an AS IS, WHERE IS, basis) free of any rent to store furniture and equipment which will be installed by Lessee in the leased premises when the term of this lease commences. Costs incurred by Lessee in connection with such use shall be a charge to Tenant Work. All of such furniture and equipment and packaging materials or other debris associated with such use shall be removed from Floor 21 not later than the date rent commences for the entire office portion of the leased premises, and the areas used by Lessee shall be left in a broom clean condition.

6. ACCEPTANCE AND CARE OF PREMISES

6.1 Taking of possession of the leased premises by Lessee shall be conclusive evidence the leased premises were, on that date, in good, clean and tenantable condition and as

 

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represented by Lessor, except as otherwise noted by Lessee in writing to Lessor within thirty (30) days after said date, except for latent defects.

6.2 Lessee shall keep the leased premises neat and clean and in a sanitary condition (subject to Lessor’s janitorial obligations) and shall at all times preserve them in as good condition and repair as they are when first occupied by Lessee, or may hereafter be put into, reasonable use and wear and damage by fire or other casualty excepted. All damage or injury done to the leased premises by Lessee or by any persons who may be in or upon the leased premises with the consent of Lessee, including the cracking or breaking of glass of any windows and doors, shall be paid for by Lessee and Lessee shall pay for all damage to the Building caused by Lessee’s misuse of the leased premises or the appurtenances thereto. Lessee shall not put any curtains, draperies or other hangings on or beside the windows in the leased premises without first obtaining Lessor’s consent. If Lessee shall fail to keep and preserve the leased premises in said condition and state of repair (after notice and opportunity to cure as provided for in Section 16 below, although a shorter cure period (or no cure period at all) shall be permissible in an emergency situation or if necessary in order to avoid further damage (e.g., if an exterior window is broken.)) Lessor may at its option put or cause the same to be put into the condition and state of repair agreed upon, and in such case Lessee, on demand, shall pay the cost thereof.

7. ALTERATIONS

Lessee shall not make any alterations, additions or improvements in or to the leased premises without Lessor’s prior written consent, unless the work in question can lawfully be performed without a building permit, in which case Lessor’s consent shall not be required. Notwithstanding the foregoing, Lessee shall not make changes to locks on doors, or add, disturb or in any way change any plumbing, electrical wiring, HVAC or other Building service components therein, without the prior written consent of Lessor. Lessor may require that any such work be performed by contractors acceptable to Lessor, in Lessor’s reasonable discretion. Lessor, at its option, may at its own expense make any repairs, alterations or improvements which Lessor may deem necessary or advisable for the preservation, safety or improvement of the leased premises or the Building, provided only that Lessee shall at all times have reasonable access to and the use of all of the leased premises.

8. INSPECTION AND REPAIRS

Lessor shall have the right to inspect the leased premises at all reasonable times and the right to enter the same for the purpose of cleaning, repairing, altering or improving the same, or the Building, but nothing contained in this lease shall be construed so as to impose any obligation on Lessor to make any repairs, alterations or improvements except as expressly provided in Section 9. In no event shall Lessor enter any portion of the leased premises without giving Lessee reasonable advance notice, other than in the case of an emergency or entrance in conjunction with normal janitorial work. Moreover, and notwithstanding the foregoing, Lessor acknowledges that a portion of the leased premises will be used for banking activities. As a result, Lessor hereby agrees that it will comply with reasonable security measures required by Lessee for security reasons or for regulatory compliance reasons (e.g., Lessor shall have no

 

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access whatsoever to Lessee’s vault and Lessor’s janitors shall work with lessee’s alarm company to ensure the integrity of Lessee’s alarm system.)

9. SERVICES BY LESSOR

9.1 Lessor will, at its expense, furnish Lessee with the following services and utilities:

(a) Elevator service during normal business hours of the Building and the service of at least one elevator during all other hours. Lessee shall have twenty-four hour per day, three hundred and sixty-five day per year access to all of its space and to the Building and parking garage without need to give any prior notice to Lessor or Lessor’s agents. Acceptable arrangements shall be made for Lessee’s access to the freight elevator and loading dock for after-hour usage.

(b) Heating and air cooling to maintain a temperature condition which provides for reasonably comfortable occupancy of the leased premises under normal business operations from 7 a.m. to 6 p.m. Monday through Friday, and 8:00 a.m. to 1:00 p.m. Saturdays, except for those legal holidays generally observed in the state of Washington, provided Lessee complies with Lessor’s instructions regarding use of drapes and thermostats and Lessee does not utilize heat generating machines or equipment which affect the temperature otherwise maintained by the air cooling system. Upon request Lessor shall make available at Lessee’s expense after hours heat or air cooling. The after hours HVAC service shall be available to Lessee as requested at a rate of $10.00 per hour per floor (or partial floor), initially, subject to reasonable increases during the lease term.

(c) Cold water for the drinking fountain and toilets and , hot and cold water for lavatories located in the core of the office tower portion of the TUS Building, and cold water for any purposes within the leased premises.

(d) Electricity for Building standard lighting and operation of low power usage office machines in quantities usually furnished by Lessor to tenants in the Building for general office use. Low power usage machines are typewriters, desk top calculators, desk top computer terminals and similar equipment with similar power requirements which operate on 110 volt circuits.

(e) Janitorial service and window washing as outlined in Exhibit C attached. This service includes vacuum cleaning of carpets and cleaning of Building standard vinyl composition tile, but no other services with respect to carpets or non-standard floor coverings. Shampoo or similar cleaning of carpets and repair and replacement of carpets shall be Lessee’s responsibility and at Lessee’s expense, except as otherwise provided in Section 26.4. Lessor shall maintain and operate all common areas of the Building (including elevators) in a neat, orderly and first class condition and manner.

(f) Maintain the exterior window blinds, windows, doors, floors, walls, ceilings, plumbing and plumbing fixtures, and electrical distribution system, HVAC system, fire safety

 

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system and all other systems that are common to the Building, and lighting fixtures which are standard for the Building in good condition and repair, except for damage caused by Lessee, its employees, agents, invitees or visitors. Such services and the other services in this Section 9 will also be provided by Lessor as to any of the foregoing items that are not standard for the Building, but possibly at Lessee’s expense as hereafter provided.

(g) Replacement of burned out fluorescent tubes in light fixtures which are standard for the Building and incandescent bulbs in elevator lobbies which are standard for the Building. Burned out bulbs, tubes or other light sources in fixtures which are not standard for the Building will also be replaced by Lessor, but at Lessee’s expense. Lessee shall pay Lessor the retail price for non-standard tubes, bulbs or other light sources replaced by Lessor. There shall be no labor charge to Lessee for such replacements. All incandescent bulbs are non-standard, except for the number used in building standard elevator lobbies.

(h) Painting and cleaning of walls and ceilings which are standard for the Building when required due to normal wear and tear in the judgment of Lessor. Otherwise, such painting and cleaning shall be at Lessee’s expense, except as otherwise provided in Section 26.4.

Notwithstanding any statement to the contrary outlined anywhere in this lease, in no event shall Lessee be subjected to any charges whatsoever for the usage of electricity in the leased premises (excluding after-hours usage of the HVAC system, which shall be charged in accordance with the terms of Section 9.1(b) above), regardless of whether such electricity is being used to serve machinery or equipment of the high power usage variety, provided that the machinery or equipment is similar in type and quantity (on a per square foot basis) to the machinery and equipment currently in use in Lessee’s Pacific Building premises (if that is not the case, any excess electricity usage shall be charged to Lessee at rates reasonably estimated to reflect the actual cost of such excess electricity to Lessor). Lessor has toured Lessee’s Pacific Building space. Lessee has provided Lessor with an inventory of the machinery and equipment currently used by Lessee in its Pacific Building premises and a statement setting forth the rentable area of its Pacific Building premises.

In addition, notwithstanding any other statement to the contrary contained anywhere else in this lease, in no event shall Lessee be subject to any charge whatsoever for any normal cleaning or maintenance of any portion of the leased premises, regardless of whether such portion is building standard or not, except that Lessee shall reimburse Lessor for the reasonable costs incurred by Lessor to clean and maintain items which are not standard for the Building, if the cost to normally clean and maintain the leased premises as required under this lease is in Lessor’s judgment (acting in good faith) significantly more than the cost to similarly clean and maintain a leased premises where all items are standard for the Building. With respect to non-standard items substituted for building standard items, the amount to be reimbursed shall be limited to the amount by which the cost to clean and maintain the non-standard item exceeds the cost Lessor would have incurred to clean and maintain the substituted for standard item.

9.2 Lessor shall use reasonable diligence to remedy an interruption in the furnishing of such services and utilities. If, however, any governmental authority imposes regulations,

 

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controls or other restrictions upon Lessor or the Building which would require a change in the services provided by Lessor under this lease, Lessor may comply with such regulations, controls or other restrictions, including without limitation, curtailment, rationing or restrictions on the use of electricity or any other form of energy serving the leased premises. Lessee will cooperate and do such things as are reasonably necessary to enable Lessor to comply with such regulations, controls or other restrictions.

9.3 Whenever heat generating machines or equipment or lighting other than building standard lights are used in the leased premises by Lessee which affect the temperature otherwise maintained by the air cooling system, Lessor shall have the right to install supplementary air cooling units in the leased premises, and the cost thereof, including the cost of installation and the cost of operation and maintenance thereof, shall be paid by Lessee to Lessor upon billing by Lessor. Subject to the terms of Section 9.1, Lessor may impose a reasonable charge for utilities and services, including without limitation, air cooling, electric current and water, required to be provided the leased premises by reason of, (a) any substantial recurrent use of the leased premises at any time other than the hours of 7:00 a.m. to 6:00 p.m., Monday through Friday, and 8:00 a.m. to 1:00 p.m. Saturday, (b) any use beyond what Lessor agrees to furnish as described above, (c) electricity used by equipment designated by Lessor as high power usage equipment or (d) the installation, maintenance, repair, replacement or operation of supplementary air cooling equipment, additional electrical systems or other equipment required by reason of special electrical, heating, cooling or ventilating requirements of equipment used by Lessee at the leased premises. Lessee shall not be deemed to have triggered the substantial recurrent after-hours use clause outlined above unless it uses more than twenty percent of the leased premises on a night shift or similar regular recurring basis between the hours of 8:00 p.m. and 6:00 a.m. High power usage equipment includes without limitation, data processing machines, punch card machines, computers and machines which operate on 220 volt circuits. Lessee shall not install or operate high power usage equipment on the leased premises without Lessor’s prior written consent, which may be refused unless Lessee confirms in writing its obligation to pay the additional charges necessitated by such equipment (subject to the terms of Section 9.1). At Lessor’s or Lessee’s option, separate meters for such utilities and services may be installed for the leased premises and Lessee upon demand therefor, shall immediately pay Lessor for the installation, maintenance, repair and replacement of such meters.

9.4 Lessor does not warrant that any of the services and utilities referred to above will be free from interruption. Interruption of services and utilities shall not be deemed an eviction or disturbance of Lessee’s use and possession of the leased premises or any part thereof or render Lessor liable to Lessee for damages, or relieve Lessee from performance of Lessee’s obligations under this lease.

If there is an interruption of heating, cooling, electricity, water, sewer or elevator service to the leased premises, and such interruption was not caused by Lessee or by casualty described in Section 10 below, and such interruption materially disrupts the conduct of Lessee’s business upon the leased premises, then such interruption is hereafter referred to as an Essential Service Interruption. If an Essential Service Interruption lasts for more than three (3) consecutive business days, or five (5) days out of any seven (7) day period, the rent under this lease shall

 

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thereafter be abated on the portion of the leased premises affected until restoration of the Essential Service in question, unless the Essential Service Interruption was caused by Lessor’s negligent or willful act, and in such event the rent shall be so abated from the day after the Essential Service Interruption occurs until restoration of the Essential Service in question.

Likewise, if the Essential Service Interruption exists for twenty-five (25) business days out of any sixty (60) day period, Lessee shall have the right to terminate this lease by giving Lessor thirty (30) days prior written notice (such termination notice shall be nullified if the Essential Service in question is restored on a permanent basis during such thirty (30) day period). The provisions of Section 10.4 concerning substitute space shall also be applicable in the event of an Essential Service Interruption which does or is expected to exist for twenty-five (25) business days out of any sixty (60) day period. If such substitute space is provided before the end of said thirty (30) day period, said thirty (30) day period shall be extended to a period ending one hundred eighty (180) days from the commencement of such interruption if Lessor is diligently pursuing the remedy of such interruption and it is reasonably certain that the Essential Service Interruption in question can be and will be restored within one hundred eighty (180) days from the commencement of such interruption.

10. FIRE OR OTHER CASUALTY

10.1 In the event the Building or the leased premises shall be destroyed or rendered untenantable, either wholly or in part, by fire or other casualty, Lessor may, at its option, restore the Building or leased premises to as near their previous condition as is reasonably possible, and in the meantime the rent shall be abated in the same proportion as the untenantable portion of the leased premises bears to the whole thereof; but unless Lessor, within sixty (60) days after the happening of any such casualty, shall notify Lessee of its election to so restore, this lease shall thereupon terminate and end. Such restoration by Lessor shall not include replacement of furniture, equipment or other items that do not become part of the Building or any improvements to the leased premises in excess of those provided for in the allowance

10.2 If Lessee is deprived of elevator access to the office portion of the leased premises as a result of a casualty, all rent shall be abated as to said office portion during the duration of the period in which such access is unavailable.

10.3 Notwithstanding the foregoing, if the casualty in question can be repaired, rebuilt or replaced (i.e., restored) within one hundred eighty (180) days from the date of the casualty (without working overtime), Lessor shall be required to so restore. If Lessor does not warrant to Lessee (a) within sixty (60) days from the date of the casualty, or (b) within ten (10) days after Lessor’s receipt of written request from Lessee which references this Section 10 and asks if such notice will be issued (Lessee’s request to be given not earlier than fifty (50) days after the date of casualty), whichever is later, that Lessor will have completed the restoration work within one hundred eighty (180) days from the date of the casualty, and if the casualty materially disrupts the conduct of Lessee’s business at the office portion, branch bank portion or other portions (if any) of its leased premises, Lessee shall be entitled to terminate this entire lease (even if the material disruption is only in the branch bank portion) by giving notice of termination to Lessor

 

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on or before that date which is one hundred twenty (120) days from the date of the casualty or three (3) business days after Lessee has received written notice from Lessor that Lessor has received its building permit for the restoration work, whichever occurs first.

If Lessor elects or is required to restore, all parties shall proceed diligently to enable the required building permit to be obtained within ninety (90) days from the date of casualty.

Provided that Lessor has proceeded diligently to obtain the building permit, said one hundred eighty (180) day period shall be extended by the number of days (if any) in excess of ninety (90) days from the date of casualty to the date the building permit is issued, but in no event beyond three hundred sixty (360) days from the date of casualty.

Said original one hundred eighty (180) day period shall be extended by the duration of any delay in substantially restoring the leased premises in question caused by Lessee, strikes, or other labor disputes, material shortages, fire or other casualty, acts of God or other causes beyond Lessor’s control, but in no event beyond three hundred sixty (360) days from the date of casualty, except for delays caused by Lessee.

10.4 Lessor hereby agrees that in the event of a casualty that materially disrupts the conduct of Lessee’s business in the office space portion, branch bank portion or other portion (if any) of the leased premises, Lessor will use its reasonable best efforts to provide Lessee with substitute space (which is the functional equivalent of the space damaged by the casualty) in the Building or in other buildings that Lessor or any affiliate of Lessor may manage, own or control in the central business district of Seattle. Such substitute space shall be provided to Lessee on an “AS IS, WHERE IS” basis and at fair market rent for the substitute space (given the “AS IS, WHERE IS” nature of the tenancy), not to exceed the rent called for herein. Lessee shall pay its own moving expenses. Lessee shall vacate such space promptly after the leased premises have been restored to a tenantable condition.

11. WAIVER OF SUBROGATION

Anything in this lease to the contrary notwithstanding, Lessor and Lessee each hereby waives any and all claims against the other, its agents, officers, directors, shareholders or employees, for loss or damage to the leased premises or the Building, or any personal property of such party therein, that is caused by or results from fire and other perils insured against under (a) the normal fire with extended coverage insurance policies, or (b) the standard business interruption insurance policies (if any), carried by the parties and in force at the time of damage or loss. Each party shall cause each such insurance policy obtained by it to provide that the insurance company waives all right to recovery by way of subrogation against the other party in connection with any such damage or loss.

12. USES

12.1 The leased premises are to be used only for the uses specified in Section 1.6 hereof, and for no other business or purpose without the prior written consent of Lessor. Lessee

 

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shall not establish a separate and distinct operation within the retail space of the TUS Building which is identifiable by the public as being engaged in the sale of securities, investment banking or stock brokerage, so long as such uses are prohibited by the lease to Dean Witter Reynolds Inc. for its space on the 29th floor of the TUS Building, including assignments or extensions thereof. If the required consent of Dean Witter Reynolds Inc. or its assignee to any or all of such uses has been obtained, Lessor will not unreasonably withhold its consent to any or all of such uses. No act shall be done in or about the leased premises that is unlawful or that will increase the existing rate of insurance on the Building. Lessee shall not commit or allow to be committed any waste upon the leased premises, or any public or private nuisance or other act or thing which disturbs the quiet enjoyment of any other tenant in the Building. Lessee shall not, without the prior written consent of Lessor, use any apparatus, machinery or device in or about the leased premises which will cause any substantial noise or vibration. If any of Lessee’s office machines and equipment should disturb the quiet enjoyment of any other tenant in the Building, then Lessee shall provide adequate insulation, or take such other action as may be necessary to eliminate the disturbance. Lessee shall comply with all laws relating to its use of the leased premises, but Lessee shall not be required to make capital improvements to the leased premises unless the capital improvement is required as a result of Lessee’s unique use of the leased premises, as opposed to a capital improvement that applies generally throughout all or most of the Building or that applies throughout all or most of the retail/public access portions of the Building. Lessee shall however be responsible to cause the leased premises to comply with current or future laws related to disabled or otherwise handicapped persons at all times during the lease term, excluding from the foregoing requirement, the shell (exterior perimeter walls and windows and structural members of the TUS Building) and core (the center area of the tower portion of the TUS Building containing the elevators, elevator lobbies, restrooms, fire stairways and other common areas or service spaces portions of the TUS Building) or the common areas of the Building, which shell and core and common areas shall be the responsibility of Lessor.

12.2 Lessor represents that there are no provisions in existing leases of space in the TUS or OUS Buildings which restrict Lessee’s use of the leased premises or expansion space added to the leased premises under Sections 27 or 28 for the uses authorized in Section 1.6, except the restrictions in the Dean Witter Reynolds, Inc. lease set forth above in Section 12.1. Lessor will not agree to any amendment of existing leases or the insertion in future leases of space in the TUS or OUS Buildings which would prevent Lessee from using the leased premises (including expansion space added thereto under Sections 27 or 28) for any of the uses authorized in Section 1.6.

13. SIGNAGE AND PLAZA IDENTIFICATION

13.1 Lessee shall not inscribe any inscription or post, place, or in any manner display any sign, notice, picture, placard or poster, or any advertising matter whatsoever, anywhere in or about the office space portion of the leased premises at places visible (either directly or indirectly as an outline or shadow on a glass pane) from anywhere outside the office space portion of the leased premises without first obtaining Lessor’s written consent thereto. Any such consent by Lessor shall be upon the understanding and condition that Lessee will remove the same at the expiration or sooner termination of this lease and Lessee shall pay Lessor the cost to

 

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repair any damage to the leased premises or the Building caused thereby. Lessor shall have the right to prohibit any advertising by Lessee which, in its reasonable opinion, tends to impair the reputation of the Building as a first-class shopping, business or professional area.

13.2 Notwithstanding the foregoing, Lessee shall have the right to install signage on the outer surfaces of any retail spaces it occupies and display promotional materials in the windows of such space. Such signage shall be professional in nature. Lessor agrees to cooperate with Lessee in achieving the maximum permitted signage desired by Lessee for its requirements. However, Lessee shall submit its permanent signage plans to Lessor for advance approval as to style, materials, and aesthetics, such approval not to be unreasonably withheld. Lessee acknowledges that Lessor will require any signage to be professional in appearance and in keeping with the first class nature of the Building. Garish signs will therefore be prohibited. Lessee shall also have the right to use a likeness of the Building or its branch bank location in its promotional materials.

13.3 Lessor agrees to work to minimize any confusion that may occur between the identity and location of Continental Insurance (6th floor) and Lessee (Continental, Inc.), including consideration of how Lessee will be identified on the Building Directory in the main lobby.

13.4 Notwithstanding any statement to the contrary contained anywhere else in this lease, Lessee’s obligations under this lease are hereby made expressly subject to and contingent upon Lessee being satisfied in Lessee’s sole discretion with both (1) the resolution of the issue described in Section 13.3 above and (2) the signage that Lessor has approved pursuant to Section 13.2. above. Lessor and Lessee hereby agree to work together diligently and in good faith to resolve such issues as soon as is reasonably possible after the date on which this lease becomes fully executed. If Lessee has not notified Lessor in writing on or before that day which is thirty (30) days from the date on which this lease becomes fully executed that Lessee is terminating this lease pursuant to the contingency outlined in this Paragraph 13.4, such contingency shall automatically lapse and thereafter be null and void. If necessary, the thirty (30) day period will be extended an additional thirty (30) days upon written notice from Lessee to Lessor, provided Lessee is proceeding as above provided and the notice is received by Lessor prior to the expiration of the initial thirty (30) day period.

14. ACCIDENTS AND INDEMNITY

14.1 Lessee shall protect, defend, indemnify and hold Lessor harmless from all loss, damage, liability or expense, including reasonable attorneys’ fees, resulting from any injury to any person or any loss of or damage to any property caused by or resulting from any act, omission or negligence of Lessee or any officer, employee, agent, contractor, invitee, or visitor of Lessee in or about the Leased Premises or the Building, but the foregoing provision shall not be construed to make Lessee responsible for loss, damage, liability or expense resulting from injuries to any person caused by any act, omission or negligence of Lessor, or of any officer, employee, agent, contractor, invitee or visitor of Lessor, or other tenant of the Building.

 

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14.2 Lessor shall protect, defend, indemnify and hold Lessee harmless from all loss, damage, liability or expense, including reasonable attorneys’ fees, resulting from any injury to any person or any loss of or damage to any property caused by or resulting from any act, omission or negligence of Lessor or any officer, employee, agent, contractor, invitee, or visitor of Lessor in or about the Leased Premises or the Building, but the foregoing provision shall not be construed to make Lessor responsible for loss, damage, liability or expense resulting from injuries to any person caused by any act, omission or negligence of Lessee, or of any officer, employee, agent, contractor, invitee or visitor of Lessee, or other tenant of the Building. The general contractor for the Tenant Work described in Exhibit B is Lessor’s contractor.

14.3 If Lessor and Lessee are concurrently negligent for any reason whatsoever, each party shall indemnify or be obligated as hereinabove provided, but only to the extent of the indemnifying or obligated party’s negligence. Any immunity provided for either party under Title 51, RCW, is hereby waived by Lessor and Lessee.

14.4 Lessee’s Insurance . Lessee shall, throughout the term of this lease and any renewal hereof, at its own expense, keep and maintain in full force and effect, (a) a policy of commercial general liability insurance including a contractual liability endorsement covering Lessee’s obligations under this lease, insuring Lessee’s activities upon, in or about the leased premises or the Building against claims of bodily injury or death or property damage or loss with a limit of not less than One Million Dollars ($1,000,000) combined single limit, and (b) what is commonly referred to as “all risk” coverage insurance (but excluding earthquake and flood) on Lessee’s furniture, fixtures, equipment and other personal property in an amount not less than the current One Hundred Percent (100%) replacement value thereof. Such insurance may contain deductibles in such amounts as Lessee in its judgment determines are reasonable.

14.5 Lessor’s Insurance . Lessor shall throughout the term of this lease and any renewal hereof, at its own expense, keep and maintain in full force and effect, (1) what is commonly referred to as “all risk” coverage insurance, (excluding earthquake and flood,) on the Building and the leasehold improvements in the leased premises that become part of the Building in an amount not less than One Hundred Percent (100%) replacement value thereof or such other coverage as is generally maintained by owners of comparable Class A buildings in downtown Seattle; (b) commercial general liability insurance including a contractual liability endorsement covering Lessor’s obligations under this lease with a limit of not less than One Million Dollars ($1,000,000) combined single limit. Such insurance may contain deductibles in such amounts as Lessor shall in its judgment determine are reasonable.

14.6 Insurance Policy Requirements . All insurance under this Section 14 shall be with companies satisfactory to Lessor and authorized to do business in Washington. No insurance policy required hereunder shall be canceled or reduced in coverage and each insurance policy shall provide that it is not subject to cancellation or a reduction in coverage except after thirty (30) days prior written notice to Lessor. Lessee shall deliver to Lessor prior to commencement of the lease term and from time to time thereafter, copies of policies of such insurance or certificates evidencing the existence and amounts of same and naming Lessor as Additional Insured thereunder. In no event shall the limits of any insurance policy required hereunder be

 

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considered as limiting the liability of Lessee or Lessor under this Lease. At Lessee’s request, Lessor will provide Lessee with copies of its required insurance coverages or provide Lessee with access to such policies for Lessee’s inspection.

15. LIENS AND INSOLVENCY

Lessee shall keep the leased premises and the Building free from any liens arising out of any work performed, materials ordered or obligations incurred by Lessee. If Lessee becomes insolvent, voluntarily or involuntarily bankrupt, or if a receiver, or assignee or other liquidating officer is appointed for the business of Lessee, then Lessor, at its option, may immediately or any time thereafter terminate Lessee’s right of possession under this lease, subject to the terms of any applicable laws then in effect.

16. DEFAULT BY LESSEE AND RE-ENTRY

Lessee covenants as a material part of the consideration for this lease to keep and perform each and all of said terms, covenants and conditions by Lessee to be kept and performed and that this lease is made upon the condition of such performance. Except for a default under the preceding Section 15 for which immediate right of termination is given to Lessor, if Lessee fails to pay any installment of rent within ten (10) days after written notice, or to perform any other covenant under this lease within thirty (30) days after written notice from Lessor stating the nature of the default, Lessor may terminate this lease and re-enter and take possession of the leased premises; provided that if the nature of such default other than for non-payment of rent is such that the same cannot reasonably be cured within such thirty-day period, Lessee shall not be deemed to be in default if Lessee shall within such period (i.e., within thirty (30) days after Lessor’s notice) commence such cure and thereafter diligently prosecute the same to completion. Notwithstanding such retaking of possession by Lessor, Lessee’s liability for the rent provided herein shall not be extinguished for the balance of the term of this lease, and Lessee shall make good to Lessor any deficiency arising from a reletting of the leased premises at a lesser rental, plus the costs and expenses of renovating or altering the leased premises (pro rated if the term of the new tenancy extends beyond the remaining term of this lease). Lessee shall pay any such deficiency each month as the amount thereof is ascertained by Lessor. All remedies provided herein are cumulative and are in addition to those provided by law.

17. REMOVAL OF PROPERTY AND REPLACEMENT OF NON-STANDARD ITEMS

Upon the expiration or termination of the lease term, Lessee shall (a) at its expense remove Lessee’s goods and effects and those of all persons claiming under Lessee, and (b) if Lessee caused the leased premises to be improved with other than building standard ceiling suspension system, acoustical tile ceiling, fluorescent light fixtures, millwork detail, doors and door frames, hardware or hard surface floor tile and base, or any corridor adjacent to the core of the building to be other than building standard width and construction, and if such improvements are made without Lessor’s consent, Lessee shall pay Lessor an amount equal to the cost to replace all such non-standard non-approved items with building standard items and the cost to

 

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replace such non-standard non-approved public corridor with one of building standard width and construction. Any property left in the leased premises after the expiration or termination of the lease term shall be deemed to have been abandoned and the property of Lessor to dispose of as Lessor deems expedient at Lessee’s expense, subject to Lessor’s compliance with any applicable laws then in effect.

18. NON-WAIVER

Failure of either party to insist, in any one or more instances, upon strict performance of any term, covenant or condition of this lease, or to exercise any option herein contained, shall not be construed as a waiver, or a relinquishment for the future, of such term, covenant, condition or option, but the same shall continue and remain in full force and effect. The receipt by Lessor of rents with knowledge of a breach of any of the terms, covenants or conditions of this lease to be kept or performed by Lessee shall not be deemed a waiver of such breach.

19. COSTS AND ATTORNEYS’ FEES

In the event of litigation between the parties hereto declaratory or otherwise, for the enforcement of any of the covenants, terms and conditions of this lease, the losing party shall pay the costs thereof and reasonable attorneys’ fees incurred by the prevailing party, which shall be determined and taxed by the Court as part of the costs of such action.

20. PRIORITY

20.1 Provided that Lessee is given a satisfactory non-disturbance covenant by the lender in question, Lessee agrees that this lease shall be subordinate to any first mortgages or deeds of trust that may hereafter be placed upon the leased premises or the Building containing the same, and to any and all advances to be made thereunder, and to the interest thereon, and all renewals, replacement and extensions thereof. Within fifteen (15) days after written request from Lessor, Lessee shall execute any documents that may be necessary or desirable to effectuate the subordination of this lease to any such mortgages or deeds of trust and shall execute reasonable estoppel certificates as requested by Lessor from time to time.

20.2 Lessee will be provided non-disturbance agreements, with permanent lien holder(s) in form attached as Exhibit D. Lessor hereby warrants that, simultaneous with Lessor’s execution of this lease, Lessor shall obtain non-disturbance agreements in the form attached as Exhibit D-l from all permanent lien holders with a lien recorded against all or any part of the TUS Building, or the TUS Land as of the date of full execution of this lease, and the holder of the second lien recorded against the OUS Building or the OUS Land, and use its reasonable best efforts to obtain for Lessee non-disturbance agreement in the form attached as D-2 from the holder of the first lien recorded against the OUS Building or the OUS Land.

 

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21. CONDEMNATION

21.1 If all of the leased premises or such portions of the Building as may be required for the reasonable use of the leased premises, are taken by eminent domain, this lease shall automatically terminate as of the date Lessee is required to vacate the leased premises and all rentals shall be paid to that date. In case of a taking of a portion of the leased premises not required for the reasonable use of the leased premises, or a portion of the Building not required for the reasonable use of the leased premises, or a taking of a portion of the leased premises that is required for Lessee’s reasonable use thereof and Lessee does not elect to terminate, then this lease shall continue in full force and effect and the rent shall be equitably reduced based on the proportion by which the floor area of the leased premises is reduced, such rent reduction to be effective as of the date possession of such portion is delivered to the condemning authority.

21.2 In the event of a taking of a portion of the leased premises that is required for Lessee’s reasonable use of the leased premises, Lessee shall have the option to terminate this lease effective the date Lessee is required to vacate such portion, if Lessor is unable to provide satisfactory alternative space in the Building for the space taken on a turnkey basis at Lessor’s sole expense at the same rent and other terms of this lease. Alternative space for office space shall be in the TUS Building. If the alternative office space is comparable to the original office leased premises in all material respects, it will be accepted by Lessee, otherwise its acceptance will be subject to Lessee’s approval in its sole discretion. Alternative space for the branch bank space shall be the functional equivalent of the branch bank space and be in (a) the retail area of the Building with street frontage, or (b) off site at a location approved by Lessee in its sole discretion. Lessor and Lessee hereby agree that if the portion of Lessee’s branch bank space which is taken is a portion required for Lessee’s reasonable use of its branch bank space, it is a taking entitling Lessee to terminate the entire lease unless Lessor provides alternative space which complies with the requirements of the preceding sentence (e.g., off-site alternative space must be at a location approved by Lessee in its sole discretion). Alternative space for the rest of Lessee’s retail area space may be in the retail or office portions of the Building and subject to Lessee’s approval, acting reasonably.

21.3 Subject to the following provisions of this Section 21, Lessor reserves all rights to the award for any taking of the Building and Land or portions thereof by eminent domain, and Lessee hereby assigns to Lessor any right Lessee may have to such award. Lessee shall make no claim against Lessor for damages for termination of the leasehold interest or interference with Lessee’s Building. Lessee shall have the right, however, to claim and recover from the condemning authority compensation for any loss or damage suffered by Lessee as a result of the termination of Lessee’s leasehold interest, for any loss to which Lessee may be put for Lessee’s moving expenses and for the interruption of or damage to Lessee’s business, provided that such damages may be claimed only if they are awarded separately in the eminent domain proceeding and not as part of the damages recoverable for taking of the leased premises or the Building.

 

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22. ASSIGNMENT AND SUBLETTING

22.1 Lessee shall have the right to assign the Lease and all extension, expansion and other rights related thereto, in its entirety, or to sublease all or any portion of the leased premises, without the consent of Lessor to (a) any party resulting from a merger or consolidation with Lessee, (b) any entity succeeding to the business and assets of Lessee, or (c) a subsidiary, parent or affiliate of Lessee, provided such Assignee shall have a financial worth equal to or greater than Lessee. Notwithstanding the foregoing, however, Lessee shall have the right to assign to Continental Savings Bank without Lessor’s consent, provided that Continental Savings Bank’s financial worth is then at least seventy-five percent (75%) of the financial worth of Lessee.

22.2 All other assignments and subleases shall require Lessor’s consent. Such consent shall not be unreasonably withheld or delayed. The criteria for consent shall be limited to:

(a) financial responsibility, i.e., the proposed transferee is sufficiently creditworthy to lease directly from the Lessor or the average similarly situated lessor at the time of the proposed assignment or sublease; provided, however, that if Lessor chooses not to release Lessee from liability under the Lease, Lessee’s financial backing shall be factored into Lessor’s analysis of this criteria;

(b) the identity and business of the proposed transferee is suitable for the Building;

(c) the proposed use is legal; and

(d) neither the proposed assignee/sublessee nor the proposed use will violate restrictions in any other existing third party lease of space in the Building.

22.3 Any profit, net of subleasing or assignment costs (which costs shall include, but not be limited to, lease commissions, tenant improvement expenses, rent concessions or other concessions granted to the sublessee or assignee), to Lessee from any assignment or sublease requiring Lessor’s consent shall be shared 50% to Lessee and 50% to Lessor.

22.4 If Lessee wishes to assign this Lease or sublet the leased premises or any part thereof other than as outlined above in Section 22.1, Lessee shall first give written notice (“Lessee’s Notice”) to Lessor of its intention to do so, which notice shall contain the name of the proposed assignee or subtenant (collectively “transferee”), the nature of the proposed transferee’s business to be carried on in the leased premises and the terms and provisions of the proposed assignment or sublease. Lessee shall also provide Lessor with a copy of the proposed assignment or sublease when it is available and such financial and other information with respect to the proposed transferee and transfer that Lessor may reasonably require.

22.5 Whether or not Lessor consents to a proposed transfer, Lessee shall reimburse Lessor on demand for any and all costs that may be incurred by Lessor in connection with any

 

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proposed transfer including, without limitation, the cost of investigating the acceptability of the proposed transferee and attorneys’ fees incurred in connection with each proposed transfer. In no event shall such costs exceed Two Hundred Fifty Dollars ($250.00), increased by five percent (5%) per year of the lease term (cumulative and compounded).

22.6 If Lessor consents to any proposed assignment or sublease, (a) Lessee may enter into same, but only upon the specific terms and conditions set forth in Lessee’s Notice, (b) any sublease or assignment shall be subject to, and in full compliance with, all of the terms and provisions of this lease, (c) the consent by Lessor to any assignment or sublease shall not relieve Lessee of any obligation under this lease, and (d) each assignee shall assume in a manner satisfactory to Landlord all obligations of Lessee under this lease and shall be jointly and severally liable with Lessee for the payment of rent, and the performance of all of the terms, covenants, conditions and agreements herein contained on Lessee’s part to be performed.

23. RULES, REGULATIONS AND MISCELLANEOUS

23.1 Lessee shall use the leased premises and the public areas in the Building in accordance with such reasonable rules and regulations as may from time to time be adopted by Lessor for the general safety, care and cleanliness of the leased premises or the Building, and the preservation of good order therein, and shall cause Lessee’s employees, agents, invitees and visitors to abide by such rules and regulations. In no event shall Lessee be obligated to comply with any rule or regulation not expressly stated in this lease to the extent such rule or regulation materially alters Lessee’s express rights and obligations outlined in this lease.

23.2 Lessee shall not place any boxes, cartons, or other rubbish in the corridors or other public areas of the Building.

23.3 Lessor does not guarantee the continued present status of light or air over any premises adjoining or in the vicinity of the Building. Any diminution or shutting off of light, air or view by any structure which may be erected on lands near or adjacent to the Building shall in no way affect this lease or impose any liability on Lessor.

23.4 Lessee shall conserve heat, air-conditioning, water and electricity and shall use due care in the use of the leased premises and of the public areas in the Building, and without qualifying the foregoing, shall not neglect or misuse water fixtures, electric lights and heating and air-conditioning apparatus.

23.5 Lessor will not admit to the branch bank portion of the leased premises the Lessee or any of the Lessee’s agents or employees or other persons claiming the right of admittance, if such persons have no key and are not listed on a list of authorized entrants issued by Lessee to Lessor (persons on such list must have photo identification to obtain entry).

23.6 Lessee shall peaceably and quietly enjoy the premises so long as it pays the rent payable by it hereunder and is not in default in performing all the provisions of this lease.

 

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23.7 The titles to sections of this lease are for convenience only and shall have no effect upon the construction or interpretation of any part thereof. This lease shall be governed by the laws of the State of Washington.

23.8 All notices under this lease shall be in writing and delivered in person or sent by registered or certified mail to Lessor at the same place rent payments are made, and to Lessee at the leased premises, or such addresses as may hereafter or herein be designated by either party in writing. Notices mailed as aforesaid shall be deemed given on the date of receipt or refusal to accept such mailing.

23.9 The rent herein is exclusive of any sales, business and occupation, gross receipts or other tax based on rents or tax upon this lease or tax upon or measured by the number of employees of Lessee or the area of the leased premises or any similar tax or charge. If any such tax or charge be hereafter enacted, Lessee shall reimburse to Lessor the amount thereof together with each monthly rent payment. Lessee shall not be liable to reimburse Lessor for any federal income tax or other income tax of a general nature applicable to Lessor’s income. Notwithstanding the foregoing, however, Lessee’s reimbursement obligations shall be conditioned upon Lessor successfully collecting reimbursement of such taxes from tenants representing at least eighty percent (80%) of the square footage then leased by other tenants in the Building.

23.10 Lessee shall not place any plants, sculptures or other items so as to be located wholly or partially in the public corridor portions of the Building without Lessor’ s prior written approval.

23.11 All improvements, alterations or additions which may be made by either of the parties hereto upon the leased premises, except movable office furnishings, shall become part of the Building when made, and shall remain upon and be surrendered with the leased premises as a part thereof. The maintenance and care of such improvements shall be the responsibility of Lessee, except as otherwise provided in Section 9. Wall paneling, partitions paid for by Lessor, closets, built-in cabinets, sinks, doors, however attached, floor coverings and other built-in units of all kinds are a partial listing of improvements that become property of Lessor as aforesaid. Wall hung office furniture, refrigerator/sink units and other electrical appliances may be removed by Lessee provided the reasonably estimated amount to cap plumbing and repair screw holes or other damage is paid by Lessee to Lessor prior to such removal and such removal does not cause any material damage to the property.

23.12 The freight elevator shall be used by Lessee or others to move furniture, supplies or other items to or from the leased premises . The movement of furniture or other items requiring extended use of the freight elevator shall be scheduled and coordinated with Lessor’s Service Department. The freight elevator may be used on an as available basis for delivery of supplies without such scheduling or coordination, during normal business hours for the Building. Lessee shall not permit passenger elevators to be used to move furniture, supplies or other items to or from the leased premises. Lessee shall cause its suppliers and other providers to comply with the foregoing provisions.

 

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23.13 The name of the Building may at any time be changed by Lessor, except that so long as Lessee (or an assignee authorized under Section 22.1) maintains its principal offices and headquarters within the TUS Building and occupies an area in the TUS Building equal to at least two full floors, Lessor will not change the name of the TUS Building to that of another competing financial institution without Lessee’s approval, which shall not be unreasonably withheld or delayed.

23.14 This lease contains the entire agreement of the parties and no representations, promises or agreements, oral or otherwise, between the parties not embodied herein shall be of any force and effect. Neither this lease nor any provision hereof may be changed, waived, discharged or terminated orally, but only by instrument in writing executed by Lessor and Lessee. This lease supersedes the letter of intent between the parties dated December 11, 1991.

23.15 UNICO Properties, Inc. (UNICO) is Lessor’s manager and rental agent in all matters concerning this lease and the leased premises, and the Lessee, until notified in writing to the contrary by either the Lessor or UNICO or the Assignee of Lessor’s interest under this lease, shall recognize such agency and pay all rental, furnish all statements, and give any notice which the Lessee may be under the duty of giving hereunder, or may elect to give hereunder, to UNICO at its office in the City of Seattle, King County, Washington, instead of to the Lessor. As long as such agency shall exist, the rights and options extended to Lessor shall be deemed extended to UNICO, and each and every other term and provision of this lease which is in any way beneficial to the Lessor, including especially every stipulation against liability, or limiting liability, shall inure to the benefit of UNICO and its agents and shall be applicable to UNICO and its agents in the same manner and as fully and with the same effect as to Lessor. Whenever Lessor’s consent is required, Lessee shall request such consent from UNICO. The consent of UNICO shall be deemed the consent of UNICO and Lessor.

23.16 Once the Commencement Date has occurred, Lessee agrees to look only to the equity of Lessor in the Building and the Land and not to Lessor personally with respect to any obligations or payments due or which may become due from Lessor hereunder, and no other property or assets of Lessor or any partner, joint venturer, officer, director, shareholder, agent, or employee of Lessor, disclosed or undisclosed, shall be subject for the satisfaction of Lessee’s claims under or with respect to this Lease, and no partner, officer, director, agent or employee of Lessor shall be personally liable in any manner or to any extent under or in connection with this Lease; provided, however, Lessee shall be entitled to offset against future rent obligations (i) any payments made by Lessee due to Lessor’s default hereunder and (ii) any judgment Lessee may have against Lessor. If at any time the holder of Lessor’s interests hereunder is a partnership or joint venture, a deficit in the capital account of any partner or joint venturer shall not be considered an asset of such partnership or joint venture. In the event of a sale or conveyance by Lessor of the Building, the same shall operate to release Lessor from any and all obligations and liabilities on the part of Lessor accruing from and after the effective date of the sale or conveyance.

 

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23.17 Whenever the consent or approval of a party is required under this lease (including exhibits), it shall not be unreasonably withheld or delayed, unless expressly stated to the contrary in this lease (including exhibits).

23.18 A conference room will be provided in the TUS Building for use by Lessee and others so long as Lessor is required to provide such a conference room in the TUS Building under the lease between Lessor and Bogle & Gates. The location of such conference room may be changed from time to time. The use shall be scheduled on a first come first served basis pursuant to Lessor’s guidelines for the conference room. There will be no charge for the use of the conference room, but Lessor may charge a reasonable set up fee (currently $15.00) when required.

24. SUCCESSORS

All the covenants, agreements, terms and conditions contained in this lease shall apply to and be binding upon Lessor and Lessee and their respective heirs, executors, administrators, successors and assigns.

25. SHARED TENANT SERVICES

Lessee acknowledges that any provision of telecommunications and office automation services and equipment (“Shared Tenant Services”) by a third party provider, Shared Technologies Inc., its agents, affiliates and successors (the “Provider”) is entirely separate and distinct from this lease agreement and that Lessor has no duty of performance concerning the provision of Shared Tenant Services.

26. TENANT IMPROVEMENTS

26.1 Lessor shall provide Lessee with a tenant improvement, design and moving allowance (including stationery and mailed announcements) of $43.00 per USF of initial leased premises in addition to the Building’s standard shell and core items, which are more fully described in Exhibit B attached. If Lessee spends less than the allowance, it shall receive the balance as a rent credit to be applied to the first rents due hereunder after the amount of the credit is determined, provided, however, the credit shall not exceed five dollars ($5.00) per USF of initial leased premises.

26.2 Lessee shall have the right to select contractors and subcontractors of its choosing to bid on and construct the tenant improvements provided same shall be subject to landlord’s approval, not to be unreasonably withheld. Lessor shall not charge any fees for its involvement in the tenant improvement design or construction.

26.3 For those office floors where Lessee occupies more than half the floor, it shall have the right to incorporate its design into the elevator lobby. Lessor shall have the right to include at Lessor’s standard location in such elevator lobby, Lessor’s standard elevator signage identifying Lessee and the other tenants on the floor in question. For expansion space added

 

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under Section 27 below, Lessor shall design (as directed by Lessee and approved by Lessor) and construct expansion space tenant improvements for standard business office space use on a turnkey basis consistent with the initial leased premises (using existing tenant improvements which are consistent with initial leased premises when reasonably possible); provided however, costs for expansion space tenant improvements and design shall not exceed $38.00/USF (as adjusted by increases in the Building Cost Index (BCI) for Seattle as published in the Engineering-News Record from January 1993 to date work commences). If the BCI is discontinued, the Consumer Price Index described in Section 3.3 shall be substituted for the BCI.

If an interconnecting stairwell is required to an expansion floor, it shall be constructed by Lessor on a turnkey basis at Lessor’s sole expense, provided Lessee has added at least one-half (1/2) of the expansion floor to the leased premises.

26.4 If Lessee elects to exercise its first extension option, then Lessor shall, at its sole cost and expense, recarpet and repaint the Premises during the eleventh year.

27. EXPANSION OPTIONS

27.1 Lessee shall have four (4) options to add between 6,000 and 8,000 RSF to its leased premises each time. Such option space shall first be the portion (if any) of floors 18-20 not included in the initial leased premises, and then at Lessor’s election on floors contiguous to the initial leased premises (i.e., floors 17 or 21) or contiguous to floors containing exercised expansion space. Option space will be on the same floor until at least two-thirds of such floor has been added to the leased premises. If part of the leased premises is on floors which are only partially leased by Lessee and the total usable area on such partially leased floors exceeds the average usable area of each such floor, then Lessee’s rent for such space on partially leased floors (based on the rentable area of such space) will be determined using the full floor load factor on the usable area of space on partially leased floors equal to the average usable area of such floors and the partial floor load factor upon the usable area of the balance of such space. For example, if Lessee is leasing 15,000 USF on floor 18, 17,000 USF on floor 17 and 8,000 USF on floor 21 for a total of 40,000 USF on such floors, and the average useable area of floors 17, 18 and 21 is 18,000 USF, then Lessee’s rent for such space shall be determined by applying the full floor load factor on 36,000 USF (18,000 USF x 2) and the partial floor load factor on 4,000 USF (40,000 USF - 36,000 USF). The first, second, third and fourth option spaces shall be added to the Premises on dates specified by Lessor between (1) July 1, 1995 and June 30, 1996, (2) July 1, 1997 and June 30, 1998, (3) July 1, 1999 and June 30, 2000, and (4) July 1, 2001 and June 30, 2002, respectively. Lessor shall use its best efforts so that not less than eighteen months nor more than thirty months pass between expansion space availability dates.

27.2 Lessor shall notify Lessee at least twelve months prior to the date an option space is available as to the commencement date, location and size of the option space. Lessee shall have the right to delay the commencement date of an expansion option by six months and/or reduce the square footage to be leased by up to 25%, provided that the unleased space is in a leasable configuration ( i.e., if Lessee elects to exercise its expansion option, Lessee must lease at

 

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least seventy-five percent (75%) of the space stated in Lessor’s notice within six (6) months after the commencement date specified in Lessor’s notice). Lessee shall notify Lessor no later than nine months prior to the proposed commencement date, as the same may have been extended by Lessee in accordance with the terms of the preceding sentence of its intent to lease said option space, including actual size and commencement date. Except to the extent expressly provided to the contrary in this lease, the option space shall be governed by all of the terms of this lease, including rent, lease expiration date, extension options, base year, etc.

27.3 If Lessee exercises its third and fourth such options but fails to extend the Lease, Lessee shall reimburse Lessor on the lease expiration date for the unamortized cost of non shell and core improvements below the ceiling of the premises leased pursuant to such third and fourth options. Such amortization to be in equal monthly installments over five years, including interest at 9% per annum.

27.4 During the last five years of the original ten year term, Lessee shall respond promptly to requests by Lessor as to Lessee’s growth projections and renewal expectations, so as to assist Lessor in Lessor’s herein expressed obligation to use its reasonable best efforts and work with Lessee to provide Lessee with similar expansion options on similar terms during the extended years of this lease. The location, size and timing of such options will depend in part on Lessee’s requirements and in part on availability of space which is not subject to other leases. It is therefore possible that such space will not be on contiguous floors or in the same elevator bank as the initial leased premises.

28. RIGHT OF FIRST OFFER/RIGHT OF FIRST REFUSAL

28.1 Commencing January 1, 1993 and continuing throughout the term of the Lease (including extension options), Lessee shall have the following described Right of First Offer/Right of First Refusal to lease any and all available space in the low rise elevator bank, subject only to i) contrary rights (including, but not limited to, expansion options, rights of first refusal, rights of first offer, extension options and renewal options) granted to other tenants prior to December 18, 1991, and ii) expansion options granted at the outset to other tenants who, after December 18, 1991, lease more than 15,000 RSF in Lessee’s elevator bank. If Lessee elects to add space pursuant to this Section 28 which was to be used by Lessor to satisfy all or part of one or more of Lessee’s options under Section 27, (a) Lessee shall be deemed to have waived the part of the option or options in question (or all of an option or options, as the case may be) which Lessor intended to satisfy with such space, provided that, when the space is offered Lessee under this Section 28, Lessor shall have advised Lessee in writing as to the option or options (or part thereof) Lessor intended to satisfy with such space, and (b) such space shall be added to the leased premises on the terms applicable to option space under Section 27.

28.2 When Lessor first learns that office space with Lessee’s elevator bank is or will be available, Lessor shall promptly notify Lessee in writing of the fact and anticipated date of such availability. If Lessee is interested in such space and requests a proposal from Lessor, Lessor will notify Lessee in writing of the terms on which Lessor would be willing to lease such space. If Lessee does not request a proposal for such space, Lessor will not lease such space to any

 

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third party without first notifying Lessee in writing of the terms on which Lessor would be willing to lease such space. In either of such cases, Lessee shall then have ten (10) days after receipt of such a notice in which to elect in writing to lease the space in question on the offered terms, with the exceptions that i) Lessee shall in no event be obligated to lease such space for a term that extends beyond the expiration date then applicable to the balance of Lessee’s leased premises and ii) Lessee’s two five-year extension options shall apply to the Right of First offer/Right of First Refusal space in question. If Lessee fails to so elect within such deadline (or within the five (5) day deadline of a subsequent notice with respect to such space), Lessor shall be free to lease the space to a third party on the terms specified in Lessor’s most recent notice to Lessee, provided such lease or a binding letter of intent for such a lease is executed within six months after the date of Lessor’s notice to Lessee. If Lessor wishes to offer more favorable rent, tenant improvements, parking or other material terms (from a tenant’s perspective) to a third party during such six month period, or if during such six month period Lessor wishes to reaffirm to Lessee the terms previously proposed to Lessee, Lessor shall be required to first re-offer the space to Lessee on such improved terms or reaffirmed terms, in which event Lessee will be required to respond in five (5) days. Likewise, if Lessor fails to come to terms with a third party within the six month period, Lessor will be required to re-offer the space to Lessee on whatever terms Lessor then chooses, and, in that event, Lessee shall have ten (10) days to respond.

28.3 Lessee shall have the Rights of First Offer/Rights of First Refusal shown in the following table. The initial retail space alternatives available to Lessee under Section 1.1(c) are set forth in column A. Opposite each such alternative, there is set forth the space or spaces which are subject to Lessees rights under this Section 28.3. The spaces currently leased by Federal Express and One Stop Copy are shown on Exhibit A.

 

A    B

Initial Retail Space Made Part of Leased Premises

Pursuant to Section 1.1(c)

  

Retail Space Subject to Lessee’s Section 28.3 Rights

All or part of Upper Level of Plaza Building    Remainder (if any) of the Upper Level of Plaza Building and Upper Level of Branch Bank
All or part of Upper Level of Plaza Building and Upper Level of Branch Bank    Remainder (if any) of the Upper Level of Plaza Building
Upper Level of Plaza Building and IBM Space    Federal Express Space
Upper Level of Plaza Building and Security Pacific Branch Space    One Stop Copy Space

 

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A    B

Initial Retail Space Made Part of Leased Premises

Pursuant to Section 1.1(c)

  

Retail Space Subject to Lessee’s Section 28.3 Rights

Upper Level of Branch Bank    (a) IBM, Federal Express and One Stop Copy Spaces, or (b) Upper Level of Plaza Building. If any of the (a) spaces are added, the rights to the (b) space or any part of the (b) space shall terminate, and vice versa.
Upper Level of Branch Bank and IBM Space    Federal Express and One Stop Copy Spaces (if contiguous at time of availability)
Upper Level of Branch Bank and Security Pacific Branch Space    One Stop Copy and Federal Express Spaces (if contiguous at time of availability)
Upper Level of Branch Bank and IBM Space and Security Pacific Branch Space    None
IBM Space or Security Pacific Branch Space    Federal Express and One Stop Copy (if contiguous at time of availability) and Upper Level of Branch Bank
IBM Space and Security Pacific Branch Space    Upper Level of Branch Bank

After the initial retail space has been specified pursuant to Section 1.1(c), the parties will execute a memorandum specifically identifying the portion of the above table which shall apply thereafter, and deleting the other portions of the above table which do not apply thereafter.

The rights granted Lessee under this Section 28.3 shall apply only if the space in question is being added to the leased premises for uses that bring customers of Lessee to the space for the purpose of conducting business therein, or as expansion for space being used for such purpose. The procedure described in Section 28.2 shall be equally applicable to the space subject to Lessee’s rights under this Section 28.3. The rights granted under this Section 28.3 shall commence January 1, 1993 and continue through the term of the lease (including extension options), subject only to i) contrary rights (including, but not limited to, expansion options, rights of first refusal, rights of first offer, extension options and renewal options) granted to other tenants prior to December 18, 1991 and ii) expansion options granted at the outset to other tenants who, after December 18, 1991, lease any part of such space after such space has been first offered to Lessee.

The parties agree to work together in good faith, recognizing each others needs and concerns, if Lessee advises Lessor that it needs additional retail space above and beyond what is provided for under Section 28.3 to accommodate growth in the facets of Lessee’s business which are retail or plaza level oriented, and not for uses that are customarily found in office tower

 

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space. The parties recognize the possibility that additional space may not be available as a result of such needs and concerns.

29. EXTENSION TERM AND RENT

29.1 Lessee shall have the right to extend the initial Lease term for two (2) additional five-year terms, on the same terms and conditions as stated herein except for rent, which is stated below. The extension options shall be exercised by Lessee delivering to Lessor a written notice of exercise at least nine (9) months prior to the then applicable expiration date of the Lease term. Lessee shall not be required to extend the Lease for the entire leased premises, provided the unleased space is in a leasable configuration. Between thirteen (13) and eleven (11) months prior to the then expiration date of the lease term, Lessee may request Lessor to advise Lessee of the Market Rent Lessor proposes for the next option term. Lessor will provide Lessee with written notice of such rent within thirty (30) days after its receipt of Lessee’s written request.

29.2 For Years 11-15, the annual rent shall be the lesser of (a) 95% of “Market Rent”, or (b) $23.00/RSF or USF, as the case may be (in the latter case, the initial Base indices and cap shall be retained).

29.3 For Years 16-20, the rent shall be 95% of Market Rent.

29.4 “Market Rent” shall mean the effective flat rental rate per RSF (or USF) paid by tenants to landlords of comparable Class A office buildings located in the Seattle downtown area over the term in question, if such landlord were to put space comparable to the space in question (in its then-existing condition) on the market for lease to a new tenant, assuming a new tenant with comparable attributes to Lessee. Market Rent shall be coupled with a new Base Year for taxes and new Base Indices for operating expenses (subject to the cap described in Section 3.6). If the parties are unable to agree on the Market Rent by that date which is eight (8) months prior to the then-applicable expiration date, both parties shall submit their final estimate of the Market Rent to the other in writing by that date which is eight (8) months prior to the then-applicable expiration date, and the Market Rent shall be determined by arbitration as follows:

(a) The arbitration will be before one arbitrator mutually agreed upon by Lessor and Lessee. Absent such agreement, the arbitration will be by three arbitrators, all of whom must be (1) neutral parties and (2) either MAI appraisers or licensed real estate brokers who have been active over the five (5) years ending on the date of appointment in the brokering or appraisal of office space in the central business district of Seattle. Lessor and Lessee shall each appoint one of the arbitrators and such selection shall be accomplished on or before that date which is seven (7) months prior to the then-applicable expiration date. The third arbitrator will be selected by the two arbitrators so chosen by Lessor and Lessee. If the two arbitrators cannot agree upon the third arbitrator on or before that date which is six (6) months prior to the then-applicable expiration date, the third arbitrator will be selected by application by either party to the American Arbitration Association.

 

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(b) On or before that date which is three (3) months prior to the then-applicable expiration date, the arbitrators shall decide on the Market Rent for the Premises for a five (5) year term (in the case of a determination of Market Rent for years 11 through 15, the existence of an additional five year extension option at ninety-five percent of Market Rent shall be taken into consideration). The decision of the majority of the arbitrators shall control. If a majority of the arbitrators do not agree within the stipulated time period, then each arbitrator shall render his or her separate determination of the Market Rent on or before that date which is two (2) months prior to the then-applicable expiration date. In such case, the three determinations shall be averaged to determine the Market Rent. However, if the lowest Market Rent and/or the highest Market Rent is more than ten percent (10%) lower or higher than the middle Market Rent, the low Market Rent and/or high Market Rent shall be disregarded. If only one Market Rent is disregarded the remaining two Market Rents will be averaged in order to establish the Market Rent.

(c) Both parties may submit any information to the arbitrators for their consideration with copies to the other party. Either party may require that the arbitration be conducted by hearing before the arbitrator(s). A copy of the arbitrators’ written decision will be given to both parties when the Market Rent has been determined. The determination of the Market Rent will be final and binding upon Lessor and Lessee. The fees and expenses of the arbitrator(s) will be paid by Lessee if the Market Rent is one hundred ten percent (110%) or more of the Market Rent specified in the notice given by Lessee to Lessor, and shall be paid by Lessor if the Market Rent is less than ninety percent (90%) of the Market Rent specified in the notice given by Lessor to Lessee, and otherwise shall be paid equally by Lessor and Lessee. Each party shall bear the fees and expenses of their respective attorneys, expert witnesses and other consultants.

30. PARKING

30.1 Throughout the term of the Lease as extended, Lessor will provide parking for thirty-three automobiles in the controlled access area of the One/Two Union Garage shown in Exhibit A attached along with up to sixty-six access cards to said area only (the number of access cards initially issued will be as mutually determined and reviewed periodically so that the number of issued cards is based on actual experience concerning usage and control of usage, and to assure that a) Lessee is achieving maximum usage and b) this right is not abused). Such access cards shall be used only to park not more than thirty-three automobiles at any time in said controlled access area, and shall not be used to park more than thirty-three cars in said controlled access area or to park elsewhere in the One/Two Union Garage. Throughout the Term of the Lease as extended, Lessor will also provide i) seventeen parking permits in the Hilton Garage; ii) six reserved short-term bank customer stalls, with unlimited validation in a manner acceptable to Lessor and Lessee, located on Level A nearest the garage entrance ramp and west garage elevators (of which four will be used initially and the remaining two added as usage indicates); and iii) 1,000 hours per month of free parking scrip (available in 1/2 hour increments and in addition to the customer stalls). Lessee shall comply with reasonable procedures and rules established by Lessor (or its garage operator) from time to time concerning the parking rights in the One/Two Union Garage and reasonably required controls with respect thereto.

 

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30.2 The parking charge for (a) the right to park thirty-three automobiles, and (b) the right to up to six reserved short-term bank customer stalls as provided in Section 30.1, shall be at the rate of $110 per month (including sales tax) per automobile for the right to park thirty-three automobiles in the controlled access area plus $110 per month (including sales tax) per stall for the number of reserved short-term bank customer stalls being used by Lessee. Initially the monthly charge will be $4,070.00 ($110 times 33 plus $110 times 4) for 1993 and 1994. Thereafter the rate shall increase annually by the change in CPI, not to exceed 5% per year (cumulative and compounded), and in no event shall the rate exceed the generally prevailing monthly rate charged to tenants in the Building. Each January 1, commencing January 1, 1995, the adjustment will be based on the change in CPI for the twelve (12) month period ending the November 30 preceding the January 1 in question (e.g., the adjustment for January 1, 1995 will be based in the change in the November 1994 CPI over the November 1993 CPI.) Such charge shall be paid by Lessee to Lessor (or the garage operator at Lessor’s direction) in advance on the first day of each month during the term of the Lease as extended.

30.3 The parking charge per each Hilton permit shall not exceed $135.00 per month including tax during calendar year 1993, and shall increase annually thereafter by the change in CPI, not to exceed 5% per year (cumulative and compounded) and in no event to exceed the generally prevailing monthly rate charged to tenants in the Building. The adjustment for 1994 and thereafter shall be made in the same manner as provided in the last sentence of Section 30.2.

30.4 If Lessee leases additional space in excess of the greater of the area of the initial leased premises (RSF and USF, combined) or 60,000 RSF and USF (combined) pursuant to its expansion options, or right of first offer, its parking rights shall increase by one permit for each full 1,500 RSF and USF (combined) in excess of the greater of the area of the initial leased premises (RSF and USF, combined) or 60,000 RSF and USF (combined), all to be located in the Building Garage, except up to one-half may be located in the Hilton Garage at Lessor’s discretion. The monthly charges for such additional parking shall be the same as for the initial monthly parking at each location, respectively.

30.5 The provisions with respect to the 17 permits (subject to increase under Section 30.4) in the Hilton Garage are subject to obtaining the Hilton Garage owner’s written approval and agreement to provide such parking. In the event Lessor is unable to obtain such written agreement, or at Lessor’s election from time to time, then Lessor shall provide 17 permits (subject to increase under Section 30.4) in the Building Garage (or partly in the Building Garage and partly in the Hilton Garage, in such other garage or garages as are approved by Lessee in its sole discretion), at the charge stated above for permits in the Hilton Garage. Lessee may decrease or increase (up to 17) the permits used by Lessee pursuant to this Section 30.5, from time to time, upon not less than sixty (60) days’ prior written notice, provided that the change stated in any one notice shall not exceed three (3) permits.

 

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31. STORAGE SPACE

Floors 18, 19 and 20 of the TUS Building each contain approximately 200 square feet of storage space in the core of the TUS Building for a total of approximately 600 square feet. The area of such space is not included in the USF of leased premises on such floors. Lessee is entitled to use such storage space without additional charge on each floor, in the ratio that the USF leased by Lessee on the floor bears to the total USF on the floor. Lessee shall have the right to lease up to 400 square feet at one location of dead storage space elsewhere in the TUS Building if available therein, otherwise in the OUS Building, at an annual rent of $12.00 per USF for Years 1-10. Thereafter, rent shall be market.

32. SATELLITE DISH

Lessee, at its sole cost and expense, shall be allowed to move its existing satellite dish from the Pacific Building and install the satellite dish on top of the TUS Building or the OUS Building, at Lessee’s choice. There will be no rent due in connection with the use of the rooftop during the term of the Lease or any extension thereof. Plans and specifications, location and mounting method shall be subject to Lessor’s approval. Lessee shall be solely responsible for obtaining all permits and other approvals necessary for the satellite dish, and shall provide evidence of such approvals to Lessor prior to commencement of installation of the satellite dish. Lessee shall indemnify and hold harmless Lessor from and against any damage, loss, liability or claim that Lessor may suffer or incur (including reasonable attorney fees and costs) as a result of Lessee’s installation or operation of the satellite dish, including without limitation, liability for claimed health hazards that may be associated with the satellite dish, claims of third parties and claims due to roof leaks. Notwithstanding the foregoing, however, Lessor hereby warrants that no other party has an exclusive right or other contractual right that would yield a claim to such party based simply on the existence of Lessee’s satellite dish (as opposed to, for example, a claim based on interference caused by Lessee’s satellite dish). As a result, Lessee’s foregoing indemnity will not operate with regard to such a contract claim.

33. ADDITIONAL EXPENSES

Lessor will reimburse Lessee in cash, or pay directly, at Lessee’s option, real estate consulting fees of $3.50/RSF ($3.50/USF for the retail spaces) leased for the initial leased premises. Moving expenses will be reimbursable by Lessor as part of Lessee’s $43.00/USF tenant improvement allowance. Lessor agrees that it shall make all payments promptly upon receipt of an invoice (i.e., within 30 days of receipt of approved invoice) therefor. Real estate consulting fees shall be payable one-half within 30 days after execution of the Lease and removal of all contingencies (if any) by all parties, and one-half within 30 days after occupancy of the initial leased premises by Lessee. If the exact size of the leased premises has not been determined by the date on which the first one-half real estate consulting fee payment is due, the payment will be $105,000.00 ((60,000.00 x $3.50) ÷ 2), with the balance that is actually due (after the exact leased premises have been determined) being paid within thirty days after occupancy by Lessee.

 

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34. DEFAULT BY LESSOR

If Lessor fails to keep or perform any of its covenants or conditions under the Lease, and such failure is not cured within thirty days after written notice of the failure from Lessee to Lessor, then, in addition to all other rights and remedies available to Lessee, under the Lease, at law or in equity, Lessee may offset the amount that Lessee paid to cure Lessor’s default against any sums payable by Lessee to Lessor under the Lease. Notwithstanding the foregoing, if Lessor commences curative efforts within the thirty-day period, such period shall be extended so long as Lessor is diligently pursuing the cure to completion in good faith.

35. REGULATORY APPROVAL

The Lease will be subject to regulatory approval as to the location of Lessee’s main office and the branch bank. Lessee will use its reasonable best efforts to obtain said approval. If, on or before that day which is thirty (30) days from the date on which this lease becomes fully executed, Lessee has not obtained all regulatory approvals that Lessee deems necessary, Lessee shall be entitled to terminate this lease by so advising Lessor, provided that such notice shall be received by Lessor on or before the end of such thirty (30) day period, otherwise such contingency shall automatically lapse and thereafter be null and void. If necessary, the thirty (30) day period will be extended an additional thirty (30) days upon written notice from Lessee to Lessor, providing Lessee is proceeding as above provided and the notice is received by Lessor prior to the expiration of the initial thirty (30) day period.

36. EXCLUSIVITY

36.1 Lessor hereby agrees that, during the entire term of this lease, including extension terms, Lessor shall not lease any space in the retail or plaza areas of the TUS Building or the OUS Building for any standard banking uses (e.g., the taking of deposits, the cashing of checks, etc.). Moreover, Lessor hereby agrees that it will draft the use and/or assignment/subletting clauses in all future leases in such a way so as to prohibit any changes in use to such standard banking uses in said areas. Notwithstanding the foregoing, however, Lessee hereby agrees that the above terms of this Section 36 shall not apply to

(a) the space currently occupied by Security Pacific Bank in the retail area of the OUS Building and any adjacent contiguous space into which a bank tenant of such space may hereafter expand, but not more expansion space than the space currently occupied by One Stop Copy and Federal Express, with the understanding that the only permissible expansion space will be the space currently occupied by One Stop Copy and Federal Express (such spaces are delineated on Exhibit A).

(b) the space currently occupied by Puget Sound Bank in the retail area of the TUS Building and any adjacent contiguous space into which a bank tenant of such space may hereafter expand. In the event of such expansion, the tenant of such space will not be permitted to have signage which can be seen from the low rise elevator lobby of the TUS Building.

 

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(c) any other retail space, provided that the number of tenants occupying retail space for standard bank purposes does not exceed three (including Lessee’s branch bank), the proposed tenant will lease more than one full office floor in the OUS Building, Lessee has been offered the right to lease such retail and office space on the same terms and conditions as the proposed tenant, and Lessee has refused or failed to agree to lease such retail and office space upon the offered terms within ten (10) days after receipt of such offer. In no event shall such other retail space have frontage on Sixth Avenue if Lessee is leasing and occupying the space described in Section 1.1 (b) for branch bank purposes.

(d) prohibit automatic teller machines.

37. BRANCH BANK

The Lease is subject to Lessee’s determination that the space described in Section l.l(b) can be feasibly used for Lessee’s branch bank. Such feasibility determination to include without limitation whether a branch bank is a permissible use under the Master Use Permit and laws applicable to said space, whether a building permit can be obtained for the branch bank space to permit occupancy of such space by a date acceptable to Lessee, whether there are any grade changes applicable to such space which cannot be satisfactorily addressed, and whether the space can be designed to be satisfactorily used as a branch bank and comply with laws applicable to such space. Such determination shall be made by Lessee in good faith and shall not be the basis for renegotiation of any of the provisions of this lease or be made to enable Lessee to accept a lease offer from another landlord. Lessee shall proceed diligently to make such determination. If on or before that day which is thirty (30) days from the date this lease becomes fully executed, Lessee has not made such determination, Lessee shall be entitled to terminate this lease by so advising Lessor, provided that such written notice shall be received by Lessor on or before the end of such thirty (30) day period, otherwise such contingency shall automatically lapse and thereafter be null and void. If necessary, the thirty (30) day period shall be extended an additional thirty (30) days upon written notice from Lessor to Lessee, provided Lessee is proceeding as above provided and the notice is received by Lessor prior to the expiration of the initial thirty (30) day period.

38. BACKUP POWER

Lessor acknowledges that Lessee’s entire operation (including all facilities located on other properties) is dependent on the telephone and computer systems located in the space being leased by Lessee pursuant to this Lease. Consequently, Lessor hereby agrees that if there is ever a power failure, Lessor will, to the extent it is permissible to do so under all applicable laws and ordinances, and if Lessor’s equipment will permit Lessor to do so, and to the extent Lessee so requests at the time, supply Lessee’s telephone and computer systems with whatever backup power Lessor has available to it. Lessee acknowledges that its rights hereunder will in all events be subordinate to the fire and life-safety needs of the Building. Moreover, Lessee acknowledges and agrees that all costs incurred in so supplying Lessee with backup power shall be paid by

 

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Lessee. Lessee acknowledges that Lessor is not required to install equipment to supply backup power, in excess of the equipment presently installed in the Building.

IN WITNESS WHEREOF, this lease has been executed by Lessor and Lessee as of the day and year first above set forth.

 

LESSEE:   LESSOR:
CONTINENTAL, INC.  

ONE UNION SQUARE VENTURE,

A Washington Joint Venture

By

 

/s/ Richard S. Swanson

 

By UNICO PROPERTIES, INC.

(Manager and authorized rental agent for

One Union Square Venture)

By

 

/s/ Bruce W. Williams

 

  By  

/s/ David C. Cortelyou

 

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LESSOR’S ACKNOWLEDGEMENT

 

STATE OF WASHINGTON   )     
  )      ss.
COUNTY OF KING   )     

On this 6th day of March, 1992, before me personally appeared David C. Cortelyou, to me known to be the President of UNICO PROPERTIES, INC., the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation and One Union Square Venture, for the uses and purposes therein mentioned, and on oath stated that he (she) was authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

 

/s/ Sharon L. Overman

Notary Public in and for the State of
Washington, residing at  

Seattle

My commission expires:  

9-23-92


LESSEE’S CORPORATE ACKNOWLEDGEMENT

 

STATE OF WASHINGTON   )     
  )      ss.
COUNTY OF KING   )     

On this 6th day of March, 1992, before me personally appeared Richard Swanson and Bruce W. Williams to me known to be the President and General Counsel of Continental, Inc., the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned, and on oath stated that they (he or she) were authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

 

/s/ Sharon L. Overman

Notary Public in and for the State of
Washington, residing at  

Seattle

My commission expires:  

9-23-95


EXHIBIT A

 

Lessor:    One Union Square Venture
Lessee:    Continental, Inc.
A-1    Prints with the leased premises outlined in black will be attached and made part of the lease as provided in Section 1.1 of the lease.
A-2    Areas will be added to this Exhibit as provided in Sections 1.1 and 1.2 of the lease.

EXHIBIT A


LOGO

CORE AREA

Two Union Square

FLOOR 18

CONTINENTAL, INC.

EXHIBIT A


LOGO

CORE AREA

Two Union Square

FLOOR 19

CONTINENTAL, INC.

EXHIBIT A


LOGO

CORE AREA

Two Union Square

FLOOR 20

CONTINENTAL, INC.

EXHIBIT A


LOGO

Branch Bank Space

0219

2,511 SF

IBM

PT. #3 - 2,068 SF

FEDERAL EXPRESS

ONE STOP COPY

Security Pacific Branch

#1 - 1,762 SF

EXHIBIT A


LOGO

upper Level of branch

bank location

EXHIBIT A


LOGO

upper Level of Plaza Building Corner of 684 & Union

Exhibit A


LOGO

Six (6) Parking spaces For

Short Term

Bank Customer

Parking

EXHIBIT A


LOGO

Location of

33 Controlled

Access Parking

EXHIBIT A


EXHIBIT B

INITIAL IMPROVEMENT OF LEASED PREMISES

( With Lessor’s Architect and Lessee’s Architect )

 

Lessor:    One Union Square Venture
Lessee:    Continental, Inc.

Lessor at its expense is to provide the shell and core of the TUS Building and certain improvements on the floors on which the leased premises are located, all as more fully set forth in Section 1 of this Exhibit. The core area of the TUS Building is shown on Exhibit A (Prints for Floors 18, 19 and 20). Lessor is to also provide an allowance as provided in Section 3 of this Exhibit for improvements to the leased premises which are in addition to those provided by Lessor pursuant to Section 1 of this Exhibit, all as more fully set forth in this Exhibit. The allowance amount for Section 3 and the dates for submission of plans and documents to Lessor pursuant to Section 4.2 are as follows:

The Section 3 allowance amount is Forty Three Dollars ($43.00) per usable square foot of initial leased premises. The total allowance will be specified in Exhibit A when it is completed and added to the lease as provided in Section 1 of the lease.

The Section 4.2 delivery dates are:

 

         

Office Space

  

Retail Space

(A)    Schematic Plans -    April 10, 1992    March 27, 1992
(B)    Final Preliminary Plans -    May 15, 1992    April 24, 1992
(C)    Final Contract Documents -    June 19, 1992    May 22, 1992

1. Basic Building Improvements (Shell and Core) .

1.1 Office Space . Lessor will at its expense furnish and install the following improvements in the office space portion of the TUS Building in accordance with plans and specifications for the TUS Building on the floors upon which the office space portion of the leased premises are located:

 

Exhibit B

 

-1-


(a) Finished elevator lobby to match building standard specifications including carpeting. The typical elevator lobby has painted walls, carpeted floors, painted elevator doors and jambs, and wall sconce lighting fixtures.

(b) All items which are standard for the TUS Building and located within the core area of the Building finished to the specifications for the TUS Building, including but not limited to core walls, electrical distribution equipment and conduits, heating and air conditioning equipment and ducting, a women’s lavatory, a men’s lavatory, drinking fountain, and fire and life safety equipment.

(c) Exterior walls and exterior windows for the TUS Building. The interior of such exterior walls, the exterior of the core walls and all structural elements within the leased premises (except cross-bracing on Floors 35, 36 and 37) shall be ready to receive Lessee specified finishes.

(d) The rigid ducting and standard size variable air volume air terminal units for interior and exterior zone heating and air cooling in accordance with the TUS Building standard layout for the floor upon which the leased premises are located. The standard number of such air terminal units is twelve (12) units for the entire Fourth Floor and twenty (20) units for each other entire floor. Such improvements by the Lessor include the individually controlled central fan unit located in each floor’s mechanical room allowing for separate floor-by-floor air conditioning control and operation but do not include the round low pressure run out ducting, flexible ducting and diffusers.

(e) Electric service to the electrical room located within the core of the building and sufficient capacity to meet Lessee’s requirements, not to exceed 4.5 watts per usable square foot (including lighting) and any limits imposed by applicable codes, laws and regulations. Two electrical power loops are provided on each floor of the TUS Building. One loop is for building standard 277/480 volt lighting and the other loop is available for tenant 110 volt power or special power requirements.

(f) Telephone service to the telephone closet located within the core area of the Building.

(g) Concrete floor ready to receive carpet. The floors typically will have a partition load capacity of 20 pounds per square foot. The live load capacity is 80 pounds per square foot for a zone extending approximately 24 feet out from the core and 50 pounds per square foot on the remainder of the floor, all as more fully specified by Lessor’s Architect.

(h) Basic sprinkler distribution grid in accordance with TUS Building standard layout for the floor.

 

Exhibit B

 

-2-


(i) A vertical condenser water loop to provide water for supplementary air cooling equipment (if any) installed in the Leased Premises. The hook-up to said loop and reasonable charge for said water shall be at Lessee’s expense.

If Lessee, with Lessor’s consent, changes surface finishes from those specified for the TUS Building, requires changes to the heating and cooling and electrical systems which are standard for the TUS Building, or makes any other departure from the specifications or standards for the TUS Building with respect to any of the foregoing items, the additional cost of such change of other departure shall be at the Lessee’s expense as a charge to Tenant Work pursuant to Section 2 of this Exhibit. Throughout the Exhibit, items which are not TUS Building Standard items are sometimes referred to as special items or special improvements.

1.2 Retail Space . Lessor will at its expense furnish and install the following improvements in the retail space portion of the Building in accordance with plans and specifications for the Building on the floor and in the area where the retail space portion of the leased premises are located:

(a) Storefronts . A basic interior storefront is provided with one (1) entry door. The exterior storefront does not include entry door(s), required framing members, vestibules, platforms, or stairs that may be required for grade transitions. A vestibule and internal platform may be required at the street entry due to the slope of the sidewalk.

(b) Awnings and Signage . Awnings are provided along Sixth Avenue. Signage, including electrical connections for illuminated signs, shall be supplied by the tenants.

(c) Floors . Structural concrete slabs are provided without penetrations for utilities.

(d) Utilities . A supply line is provided for cold water (if required), waste line, electrical power and condenser water or chilled water to the perimeter of the leased premises at reasonable location(s) designated by Lessor.

(e) Fire Sprinkler System . The main fire sprinkler system is provided but does not include relocation of sprinkler heads to their final configuration.

(f) Other . With the exception of the storefront and HVAC equipment, the intent is to provide basic Building Shell improvements similar to those described in Section 1.1.

(g) Previously Built Space . Any retail space that has previously been improved will be provided to Lessee oh an “AS-IS, WHERE-IS” basis free of charge as to existing improvements. Thus, there shall be no charge against the Tenant Work allowance described in Section 3 below for the value of any above-shell and core improvements in such space.

 

Exhibit B

 

-3-


1.3 Credit for Shell and Core Items Not Used . If Lessee with Lessor’s consent does not use a building standard finish or item to be provided by Lessor at Lessor’s expense under Section 1, and Lessor has not already installed such finish or item, then Lessee will be given a credit, in the amount of the cost saving to Lessor for not being required to install such finish or item. The credit shall be applied against the cost of Tenant Work.

2. Additional Improvements (Tenant Work) .

To the extent any of the terms of this Section 2 are inconsistent with any of the terms of Section 1 of this Exhibit, the terms of Section 1 shall govern. Improvements to the leased premises which are in addition to those provided for in Section 1 of this Exhibit are herein sometimes described as Tenant Work. Tenant Work shall be at Lessee’s expense but shall be paid for by Lessor to the extent of the allowance provided for in Section 3 of this Exhibit. The same procedure shall pertain to any matters referred to in this Exhibit as being at Lessee’s expense or a charge to Tenant Work. If the costs for Tenant Work and expenses or charges to Tenant Work exceed said allowance, the excess shall be paid by Lessee. Tenant Work and costs charged to Tenant Work shall include without limitation:

(a) All partitioning (solid, glazed or otherwise), including one-half of walls separating the leased premises from the space to be occupied by other tenants in the building, all partitioning within the leased premises, and the walls separating the leased premises from the public corridor.

(b) Column enclosures, furring, blocking, painting, paneling or other wall coverings approved by Lessor. Painted walls shall receive at least one prime coat and one semi-gloss or eggshell finish coat. Lessee shall use a brand of paint specified by Lessor as standard for the Building or an equivalent brand approved in advance by Lessor.

(c) Doors and door hardware.

(d) Finish ceiling, including suspension system and hangers.

(e) Cabinetry, millwork or other built-ins.

(f) Carpeting or other floor covering.

(g) Blinds for exterior windows as designated by Lessor.

(h) Lighting fixtures, including Building standard fixtures and all other fixtures, and all switching, all in accordance with applicable Seattle codes.

(i) Electrical receptacles, wiring from junction boxes located above suspended ceiling to light fixtures and any other electrical items which are in addition to those furnished by Lessor pursuant to Section 1 of this Exhibit.

 

Exhibit B

 

-4-


(j) Telephone and data outlets and any other communication equipment not furnished by Lessor pursuant to Section 1.

(k) Air terminal units in excess of the standard number for the leased premises. The standard number for an entire floor is 12 on the Fourth Floor and 20 on all other floors. All HVAC equipment for the leased premises including packaged heat pump units, ducting, round low pressure run out ducting, flexible ducting, return ducting diffusers, exhaust air handling equipment, blowers, controls and any other items for heating or air cooling which are not furnished by the Lessor pursuant to Section 1 of this Exhibit.

(1) Modifications and adjustments to sprinkler systems identified in Section 1 and installation of sprinkler heads, emergency speakers, fire extinguishers and cabinets within the leased premises, including any specialized fire suppression system such as halon.

(m) Interfloor stairs within the leased premises.

(n) Vertical lifts for books, files, mail distribution, etc.

(o) Plumbing and fixtures including private toilets, showers, lavatories, sinks and lunchroom or kitchen equipment, hot water heaters or booster heaters and hot water lines.

(p) Emergency power equipment for Lessee’s equipment.

(q) All demolition and removal of debris for any item of work installed pursuant to Section 1 or Section 2 of this Exhibit which Lessee with Lessor’s consent, subsequently requests Lessor to remove, and the demolition and removal of the ceiling suspension system which has been installed by Lessor, to the extent Lessee does not use such system.

(r) Signage.

(s) All other utility lines and appurtenances, and connecting to utility lines provided by Lessor.

(t) Any structural modification to the Building.

(u) The fees for architects, engineers, interior designers, consultants, contractors and others, including Lessor’s Architect (to the limited extent expressly provided for in Section 4.4 below) and Lessor’s contractor, for services with respect to the leased premises.

(v) All applicable Washington State sales tax.

(w) Fees and expenses for all permits, including building, special energy and structural modification permits and other governmental fees applicable to the leased premises.

 

Exhibit B

 

-5-


(x) Any other costs referred to in this Exhibit as being at Lessee’s expense or a charge to Tenant Work.

3. Tenant Improvement Allowance .

Lessor shall provide an allowance for Tenant Work in the initial leased premises equal to the amount specified at page 1 of this Exhibit. The allowance shall be used to pay costs for Tenant Work, by crediting or paying the amount of the allowance against amounts due for the Tenant Work, all in accordance with Section 5.2 of this Exhibit.

4. Design of Tenant Improvements .

4.1 Lessor’s Architect . Lessor has engaged the services of an architect, mechanical engineer and electrical engineer (herein collectively “Lessor’s Architect”) to provide certain professional services required for the improvement of the initial leased premises and other portions of the Building. Lessor’s Architect shall provide all mechanical and electrical engineering services required to prepare the engineering plans described in Section 4.2.C. of this Exhibit and the services described in 4.5 of this Exhibit. All structural engineering services required with respect to the leased premises shall be provided by Lessor’s structural engineer as provided in subsection (10) of Section 4.2.C. All other architectural services shall be provided by Lessee’s Architect.

Lessee’s Architect . At Lessee’s expense as a charge to Tenant Work, Lessee may retain the services of a qualified architect/office planner (Lessee’s Architect), licensed to practice architecture in the State of Washington, and approved by Lessor, to provide all architectural services related to the tenant improvements, except for those services which by the express provisions of this Exhibit are to be provided by Lessor’s Architect or Lessor’s structural engineer. Lessee’s Architect shall timely prepare all plans and specifications described in Section 4.2 of this Exhibit (except the engineering drawings described in Sections 4.2.C.(3), (4) and (10)). Lessee’s Architect shall timely provide Lessor’s Architect or Lessor’s structural engineer, as the case may be, with all information, plans or specifications which are necessary to prepare the engineering drawings described in Sections 4.2.C.(3), (4) and (10) of this Exhibit.

4.2 Plans for Tenant Work . The Schematic Plans, Final Preliminary Plans and Final Contract Documents shall be subject to Lessor’s and Lessee’s approval. (Lessor shall disapprove such Plans only if they indicate interference with either the structural integrity of the Building or mechanical or utility systems in the Building or for other reasonable reasons not related to aesthetics. Lessor shall have no right of approval with regard to the aesthetic aspects of the Plans. Lessor shall not withhold its approval because of the substantial cost involved to demolish or remove Lessee’s proposed improvement at the expiration of the lease term, but Lessor may condition its approval upon Lessee’s agreement to pay the cost to demolish or remove such work which is in excess of the cost to demolish or remove standard improvements.) Such plans shall be compatible with the basic plans and specifications for the Building and when submitted to Lessor for its approval shall clearly show any proposed modifications to the plans and

 

Exhibit B

 

-6-


specifications for the Building. Lessee shall (a) provide timely and adequate information, direction and approval of plans and specifications to Lessee’s Architect and (b) obtain from Lessor’s tenant construction coordinator and/or Lessor’s Architect any required information concerning the basic Building for the design of tenant improvements.

Lessee, through its Architect, shall submit one (1) reproducible copy and five (5) black line prints of the following plans and documents to Lessor for Lessor’s approval on or before the respective dates specified at page 1 of this Exhibit:

A. Schematic Plans .

The Schematic Plan(s) due on this date shall generally describe all areas within the leased premises. Rooms or areas shall be identified by name or function with special furniture or equipment shown or described. Special features, including without limitation, relites, lunch rooms, coffee bars, computer rooms, shall also be noted on the Schematic Plans. These plans are to be the basis for the Final Preliminary Plans. Changes in such plans after delivery to and approval by Lessor are not prohibited. They are however subject to provisions concerning changes set forth elsewhere in this exhibit.

B. Final Preliminary Plans .

The Final Preliminary Plans submitted for interim approval shall show all partition layout indicating partition type and identifying each room and its function. The floor plan must also clearly identify and locate equipment and fixtures requiring plumbing or other special mechanical systems, area(s) subject to above normal floor loads, special openings in the floor, special electrical requirements and any other major or special features, including an outline specification of special finishes. These plans are to be the basis for the Final Contract Documents. Changes in such plans after delivery to and approval by Lessor are not prohibited. They are however subject to provisions concerning changes set forth elsewhere in this exhibit.

C. Final Contract Documents .

The Final Contract Documents shall be prepared in accordance with the standards adopted by Lessor including scale, common symbols, legends and abbreviations together with information required to obtain permits. The drawings shall be prepared using the “pin bar” system or using a CADD system that can produce a DXF file, for compatibility with other building drawings. The Final Contract Documents shall be approved and signed by Lessee and Lessor’s Architect prior to submittal to Lessor and approved and signed by Lessor prior to submittal to Lessor’s contractor for pricing, and shall include:

(1) Architectural Floor Plan(s) : A plan, fully dimensioned, showing partition layout and type, identifying each room with a number and each door with a number, and the location, nature and extent of floor finishes, casework, relites, etc. Plumbing locations and requirements shall be shown on this plan.

 

Exhibit B

 

-7-


(2) Reflected Ceiling Plan(s) : A plan showing all building standard and/or special ceiling conditions and materials. This plan shall also include the location and type of all building standard and special light fixtures including switching together with a legend indicating fixture type, quantity of fixtures, connected wattage of each fixture as necessary for compliance with the lighting power budget of Seattle’s codes and any other applicable laws and regulations.

(3) Electrical and Telephone Outlet Plan(s) : A plan locating all power and telephone requirements dimensioned to give exact location of outlet and height above concrete slabs if locations are critical. This plan shall identify all dedicated circuits and identify all power outlets greater than 120 volts. For equipment used in outlets which require dedicated circuits and/or which require greater than 120 volts, identify the type of equipment, the manufacturer’s name and manufacturer’s model number and provide power requirements and other technical specifications. The plan shall also show modifications to basic system, circuit identification, conduit size, the number and size of wires, all in compliance with applicable Seattle codes or other applicable laws and regulations.

(4) Mechanical Plant(s), HVAC, and Plumbing : A plan which clearly shows the basic HVAC system, modifications to the basic system if required, any special cooling or stand-alone systems, all supply air diffusers, thermostats and return air grills. All plumbing information shall be complete for final installation, including the fixture schedule and specifications.

(5) Furniture Layout : Basic layout showing furniture locations.

(6) Millwork Details : Complete elevations and details of all special millwork including but not limited to cabinets, paneling, trim, bookcases and special doors and jambs.

(7) Hardware and Keying Schedules : Complete specifications for all special hardware shall be provided. (Note: Key ways in special locks (with the exception of Lessee’s vault(s) and secured data areas) must be compatible with building master key system.) The keying schedule must indicate which doors are locked and which keys open each lock, together with a symbol indicating which side of the door is to be locked to prohibit entry.

(8) Room Finish and Color Schedule : Provide on the drawings complete information showing location and specification for all finishes including wall, floor covering, base, ceiling and special conditions.

(9) Construction Notes and Specifications : Provide all required special notes and complete specifications, including instruction for bidders, special conditions incorporating the AIA standard form of general conditions or such modifications thereof as are designated or approved by Lessor and technical specifications for all special improvements.

(10) Structural Modifications : If Lessee’s tenant improvements include interfloor stairways, increased floor loading or any other items which require structural

 

Exhibit B

 

-8-


modifications, Lessor’s structural engineer for the Building shall be engaged to perform all required structural engineering services. The cost of such services shall be a charge to Tenant Work. A drawing shall be prepared showing the extent of structural modification necessary and a separate building permit shall be obtained for this phase of work.

4.3 Contract Administration . Lessor’s Architect shall provide construction administration during the execution of Tenant Work on the initial leased premises and will observe progress of such work, attend necessary contractor coordination meetings, advise Lessee and Lessor on status and progress payments, and together with Lessee’s Architect prepare a punchlist for any construction deficiencies at completion and certify the leased premises ready for occupancy. Lessee’s Architect may also provide construction administration services for Lessee and shall coordinate its activities with Lessor’s Architect.

4.4 Services by Lessor’s Architect . Certain services with respect to Tenant Work shall be provided by Lessor’s Architect. Lessor’s Architect shall:

 

  (a) Provide Lessee’s Architect with information about the Building and background drawings for execution of the Tenant Work as reasonably requested by Lessee’s Architect.

 

  (b) Provide mechanical engineering and required engineering drawings for (1) sizing of feeder ducts and placement of diffusers and thermostats, (2) computer rooms or areas which are supplied HVAC service only off the basic HVAC system for the Building, and (3) specifications for sinks and related plumbing such as service to coffee machines, sinks, dishwashers and hot water tanks.

 

  (c) Provide electrical engineering and required engineering drawings for building standard items and typical desk top office equipment and copiers.

 

  (d) Review all plans and specifications required under Section 4.2 and assist Lessee’s Architect regarding compliance with the requirements of Building systems and codes related to Tenant Work. Notwithstanding such review and assistance, Lessee’s Architect is responsible for compliance with such requirements and codes.

 

  (e) Provide coordination with the Lessor, Lessee and/or Lessee’s Architect and Lessor’s contractor, as applicable, throughout the design, pricing and construction of the Tenant Work, transmit shop drawings and submittals pertaining to special items to Lessee’s Architect as requested, and provide contract administration as provided in Section 4.3, such administration to be coordinated with Lessee’s Architect.

 

Exhibit B

 

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  (f) Obtain the blanket building permit for tenant improvement construction in the office portions of the Building and transmit the Final Contract Documents to the Department of Construction and Land Use (“DCLU”) for review and approval. Lessee’s Architect shall be responsible for all changes required as a result of such review by DCLU, with the exception of changes to the work provided pursuant to Sections 4.4(b) and (c) which shall be Lessor’s Architect’s responsibility and which shall be done within the $0.25 per usable square foot charge described below. All other permits, including without limitation electrical, mechanical, plumbing, energy code and structural permits shall be obtained by subcontractors or Lessee’s Architect (with assistance from Lessor’s Architect as reasonably requested).

Lessor shall not charge any fee for its services under Sections 4.4(a)(d), (e) and (f) above. The charges for the foregoing engineering services (Sections 4.4(b) and (c)) by Lessor’s Architect are a charge to Tenant Work and shall be $0.25 per usable square foot of leased premises for such engineering services, with a $500 minimum.

Additional mechanical and electrical engineering services, if required, shall be provided by Lessor’s Architect and the reasonable charges for same shall be in addition to the foregoing charge and at Lessee’s expense as a charge to Tenant Work. Examples of such additional services include without limitation mechanical engineering services for food service kitchens, private toilet facilities, exercise rooms, computer rooms or areas that are cooled utilizing the vertical chilled water loop for the Building, stand alone cooling systems, special exhaust systems and special fire suppression systems, and electrical engineering services for integrated lighting controls, computer wiring or networking, computer room design, lighting design beyond building standard, control circuitry, and sound and/or paging systems. The charges for any such additional work provided by Lessor’s Architect shall be reviewed and approved by Lessee and Lessee’s Architect prior to being incurred.

5. Construction of Tenant Improvements .

5.1 Method of Contracting .

(a) The Tenant Work will be competitively bid by selected general contractors as mutually agreed by Lessee and Lessor, or at Lessee’s election a contract may be negotiated with a general contractor approved by Lessor, except work on the sprinkler system and the fire alarm system will not be bid but will instead at a reasonable charge be performed by the original shell and core subcontractors for such work. The selected general contractor and subcontractors shall only employ and use union labor in and about the Building and Land, unless Lessor in its sole discretion and Lessee agree otherwise as to one or more subcontractors. Lessor will sign the contract with the selected general contractor.

 

Exhibit B

 

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(b) Lessor will provide Instructions to Bidders and General Conditions applicable to the Tenant Work to Lessee for review and coordination with Final Contract Documents. Lessee’s Architect shall prepare Contract Documents suitable for competitive bidding and provide information and specifications for all Tenant Work other than building standard. Specifications and detail for building standard items may be referenced to the Tenant Improvement Manual Volume I, through revision 17. The scope of the work shall be shown on the Contract Documents, and shall include installation and/or finish of prepurchased materials provided by Lessor. Lessor will transmit the final Contract Documents, Instructions to Bidders and General Conditions to the selected general contractors, and after receipt of bids add the cost of materials and HVAC balancing and other services provided by Lessor and approved by Lessee and Lessor. The construction contract will be awarded to the lowest bidder whose bid is acceptable in form and amount to Lessor and Lessee. If the price of the Tenant Work exceeds the allowance amount, Lessee shall either approve such price and authorize Tenant Work to proceed, or proceed diligently to delete items or otherwise modify the work so as to reduce the price for Tenant Work, and authorize Tenant Work to proceed at such reduced price. Lessee will use its reasonable best efforts to give such approval and authorization within two (2) weeks of receipt of bids. In the absence of Lessee’s approval of the price for Tenant Work and written authorization to proceed, Lessor will not be obligated to commence Tenant Work.

(c) During the construction phase, representative of Lessee shall attend construction coordination meetings to respond to questions and/or clarifications of the Construction Documents. Any and all instructions to the general contractor shall be issued through the Lessor’s tenant construction coordinator. Lessee shall participate in the approval of progress and final payments (and no such payments will be made without such approval) and in the preparation of punchlists for any construction deficiencies, and final acceptance but formal direction to the general contractor shall be the responsibility of the Lessor’s tenant construction coordinator.

5.2 Payments . Lessor’s contractor shall complete the improvements to the lease premises (Tenant Work) in accordance with the approved Final Contract Documents. Lessor shall pay for the cost of Tenant Work up to the amount of the allowance described in Section 3. Lessor shall submit monthly progress billings to Lessee for costs which exceed or are not included in said allowance, which shall be payable within ten (10) days after receipt. Final billing shall be rendered and payable within ten (10) days after acceptance of the leased premises by Lessee in accordance with the terms of the Lease, Notwithstanding the foregoing, the retainage and progress payment system outlined in the construction contract shall be subject to Lessee’s prior approval.

5.3 Final Plans and Modifications . If Lessee shall request any change from the approved Final Contract Documents, Lessee shall request such change in writing to Lessor and such request shall be accompanied by all plans and specifications necessary to show and explain changes from the approved Final Contract Documents. After receiving this information, Lessor shall give Lessee a written price for the cost of engineering and design services to incorporate the changes in Lessee’s Final Contract Documents. There shall be no charge from Lessor or

 

Exhibit B

 

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Lessor’s Architect for engineering and design services required as a result of lessee’s change orders except to the extent that the work described in Section 4.4(b) or (c) requires revision or the additional service described in the last paragraph of Section 4.4 requires revision. If Lessee approves such price in writing, Lessor shall have such Final Contract Documents changes made and the cost thereof shall be a charge to Tenant Work. Within a reasonable time after completion of such changes in the Final Contract Documents, Lessor shall obtain and notify Lessee in writing of the construction cost, if any, which shall be chargeable or credited to Lessee as a result of such change. Lessee shall use its reasonable best efforts to days notify Lessor in writing within five (5) days whether to proceed with such change. In the absence of such notice, Lessor shall proceed in accordance with the previously approved Final Contract Documents before such change was requested. Tenant shall be responsible for any demolition work required as a result of the change.

5.4 Lessee’s Entry to Leased Premises . Lessee’s entry to the leased premises for any purpose prior to commencement of the lease term shall be scheduled in advance with Lessor and shall be subject to all the terms and conditions of the Lease, except the payment of rent. Lessee’s entry shall mean entry by Lessee its officers, contractors, office planner, licensees, agents, servants, employees, guests, invitees or visitors.

5.5 Lessee’s Telephone . Lessee is responsible for Lessee’s telephone system. Lessee shall select Lessee’s telephone system. Information concerning telephone equipment size, manufacturer, technical specifications, special requirements and other information requested by Lessor’s Architect shall be provided by Lessee to Lessor’s Architect during the planning phase. Lessee shall coordinate installation of the telephone system with Lessor’s tenant construction coordinator during the construction phase.

5.6 Commencement of Lease Term . The lease term shall commence as provided in Section 1.3 of the lease. If substantial completion of Tenant Work is delayed as a result of:

(i) Lessee’s failure to timely deliver the plans and specifications identified in Section 4.2 of this Exhibit or any inadequacy in such plans and specifications; or

(ii) Lessee’s failure to approve plans and specifications and price by the dates or within the time periods required by the lease (including this Exhibit); or

(iii) Lessee’s change(s) in Final Preliminary Plans or Final Contract Documents after they have been approved by Lessor where Lessee has been advised by Lessor that such change will cause delay, and notwithstanding such advice Lessor elects to require such changes; or

(iv) Lessee’s requests for materials, finishes or installations other than the building standard items and improvements specified by Lessor for the Building, where Lessee has been advised by Lessor that use of such non building standard item(s) will cause delay, and notwithstanding such advice, Lessee elects to use such non building standard item(s); or

 

Exhibit B

 

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(v) Lessee’s failure to timely perform any of its other obligations under the lease (including this Exhibit) (this provision (v) will operate only if Lessor has provided Lessee with notice of one of the enumerated failures on Lessee’s part and Lessee has failed to remedy such failure within two (2) business days after receipt of such notice);

then the costs of such delays shall be a charge to Tenant Work and Lessor shall be deemed to have delivered possession of the leased premises to Lessee and the lease term and rent shall commence five (5) days after the date such work would have Substantially Completed if it was not so delayed. This Section 5.6 pertains only to delay which causes occupancy of the leased premises to be delayed until after January 1, 1993.

6. General Provisions .

The following provisions shall be applicable to all Tenant Work.

(a) Lessee shall be responsible for the design and function of all special improvements made to the leased premises.

(b) Lessee shall not install sunscreens or other materials between the blinds on exterior windows or visible from the exterior window of the leased premises.

(c) If a portion of the Tenant Work or any other installation (including furniture, fixtures and equipment) within the leased premises (hereinafter collectively referred to as such work) is to be performed at any time by someone other than the Lessor’s contractor or subcontractor, then the following terms and conditions shall apply:

1. Subject to the terms of the lease, all such work shall be subject to the prior approval of the Lessor. Lessee shall be responsible to coordinate and schedule such work with the Lessor’s Tenant Construction Coordinator.

2. All costs and expenses of such work shall be paid by Lessee unless otherwise mutually agreed.

3. If any of such work is performed by other than union labor licensed to perform such work within the City of Seattle, Lessee shall be responsible for delay caused by such use, including work stoppages, where such delay causes occupancy of the leased premises to be after January 1, 1993.

4. All such work shall conform to written standards or rules and regulations of the Lessor.

5. Lessee shall at no time permit anything to be done whereby the Building or the land upon which it is located may be subjected to any mechanic’s or other liens or encumbrances arising out of the Tenant Work.

 

Exhibit B

 

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6. If the performance of work requires additional services or facilities (including, but not limited to, utilities, cleanup or other cleaning services, trash removal from the leased premises and site of the Building, field supervision or ordering materials) be provided, Lessee shall pay Lessor (or Lessor’s contractor, if directed to do so by Lessor) a reasonable charge therefor if the services are performed by Lessor’s contractor. If performed by Lessor, the charge shall not exceed the direct costs to provide such services. Lessee and its contractors and suppliers shall use the freight elevator for personnel and delivery. Extended use shall be scheduled in advance with the Lessor for use between 5:30 AM and 7:00 AM or after 5:30 PM. A reasonable charge, on a per item basis shall be charged to Lessee by Lessor for oversize or overweight items requiring the assistance of an elevator technician.

7. Lessor shall have no responsibility for such work. Lessee shall remedy at Lessee’s expense and be responsible for any and all defects in such work. Lessee shall reimburse Lessor for any extra expense incurred by Lessor by reason of faulty work done by Lessee or Lessee’s contractor(s), by reason of delays caused by such work, or by reason of inadequate clean up.

8. Lessee shall at its sole expense comply with all applicable laws and all regulations and requirements of municipal or other governmental bodies exercising authority over such work and this compliance shall include the filing of plans and other documents as required and the procuring of all required licenses or permits.

9. If any shutdown of plumbing, electrical, fire and life safety equipment or air conditioning equipment becomes necessary, Lessee shall notify Lessor and Lessor will determine when such shutdown may be made. Any such shutdown shall be done only if an agent or employee of Lessor is present. The expense of such employee or agent shall be charged to Tenant Work if it was incurred primarily because of the Tenant Work being performed by Lessee’s contractor. In the case of a shutdown of fire and life safety equipment, it shall be Lessee’s responsibility to obtain all necessary fire department and other governmental approvals.

10. Any reasonable complaints by other tenants or Lessor regarding noise, fumes or odors are to be remedied immediately or alteration operations are to cease until such noise, fumes or odor are abated.

11. Lessee or Lessee’s contractor shall not install plumbing, mechanical, electrical wiring or fixtures, acoustical or integrated ceilings, unless prior written approval is obtained from Lessor. In addition to the foregoing, all wiring and. electrical panels for data processing and other special electrical equipment shall be installed only under the coordination supervision of Lessor or Lessor’s electrical contractor (i.e., in the presence of and in a mariner approved by Lessor or Lessor’s electrical contractor). Lessor and Lessor’s electrical contractor shall not incur any obligations or liability to Lessee or Lessee’s contractors or others as a result of such coordination supervision. Such coordination supervision by Lessor or Lessor’s electrical contractor shall be at Lessee’s expense.

 

Exhibit B

 

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12. Lessee agrees to be entirely responsible for the balancing of any heating, ventilating or air conditioning system installed by Lessee. Such balancing shall be performed only by a contractor or contractors approved in writing in advance by Lessor.

13. Lessee shall be responsible for any delay in occupancy of the leased premises after January 1, 1993 as a result of such work.

(d) If Lessee requests to install any fixtures, furniture or equipment in the leased premises or perform any alterations, additions or improvements to the leased premises which are in addition to or subsequent to the Tenant Work, and Lessor consents to such requests, the terms and conditions of this Exhibit (excluding Section 3) shall pertain to all such work.

 

Exhibit B

 

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EXHIBIT C

JANITORIAL SPECIFICATIONS

LESSEE’S PREMISES

DAILY SERVICES :

 

  A. Turn off all lights except those required to be left on.

 

  B. Vacuum carpeted areas and entrance mats. (Traffic patterns and around desks as needed.)

 

  C. Dust mop all resilient floors with treated dust mops.

 

  D. Dust desks, chairs, window ledges, credenzas, cabinets, handrails, countertops, banisters and horizontal surfaces with treated dust rags.

 

  E. Papers and folders on desks are not to be moved.

 

  F. Empty waste baskets, insert liners as required, remove and deposit trash in containers.

 

  G. Return chairs and waste baskets to proper positions.

 

  H. Police all interior stairwells. (if carpet vacuum)

 

  I. Police all interior public corridor planters.

 

  J. Dust and remove debris from all entrances and all metal door thresholds.

 

  K. Wipe clean all smudged brightwork.

 

  L. Spot clean all carpets, resilient and composition floors as reasonably required.

 

  M. Vacuum and clean all walk-off mats as required.

 

  N. Close all drapes and venetian blinds at exterior windows. If requested.

 

  O. Check for burned out lights and report to supervisor — supervisor to leave a list with the Building Management Office.

 

  P. Activate all alarm systems as instructed by tenant.

 

Exhibit C

 

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  Q. Provide janitorial services which are required with respect to any recycle program(s) made available by Lessor to tenants of the Building.

WEEKLY SERVICES :

 

  A. Perform all “low dusting” not done daily; coatracks and shelves, desks, credenzas, counters, cabinets, all ledges and flat surfaces within reach, furniture ledges; window sills, door louvers, wood paneling and moulding.

 

  B. Dust inside of all door jambs.

 

  C. Clean and polish chrome and bright metal, entrance doors, kick and push plates, and all metal thresholds.

 

  D. Dust all vinyl base.

 

  E. Completely vacuum and edge all carpeted areas.

 

  F. Vacuum under and around all desks and office furniture. (Does not include moving plastic or similar carpet protectors.)

 

  G. Remove fingerprints, smudges, etc. from all doors, frames, glass partitions, windows, light switches, walls, elevator door jambs and elevator interiors.

 

  H. Clean, sanitize and polish all drinking fountains.

 

  I. Clean all phones.

MONTHLY SERVICES :

 

  A. Dust all high reach areas including tops of door frames, furniture ledges, air conditioning diffusers, tops of partitions, picture frames, etc.

 

  B. Scrub and re-wax all hard surface floors as required.

 

  C. Inspect leased premises to determine that janitorial services are being provided as required.

QUARTERLY SERVICES :

 

  A. Dust exterior venetian blinds.

 

  B. Dust light fixtures using damp cloth.

 

  C. Strip all hardsurfaced floors, refinish and machine polish to uniform appearance.

 

Exhibit C

 

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SEMI-ANNUAL SERVICES :

 

  A. Wash and dry all trash receptacles as required.

 

  B. Wash and dry all air diffusers and grills.

COMMON AREAS

RESTROOM SERVICE SPECIFICATIONS

DAILY SERVICES :

 

  A. Refill all paper and soap dispensers; clean out all plugged soap dispensers.

 

  B. Clean mirrors, bright metal and all other restroom fixtures.

 

  C. Wash and sanitize all toilets, both sides of toilet seats, urinals, sinks, and partitions.

 

  D. Remove stains, descale toilets, urinals, and sinks.

 

  E. Wet mop floors with disinfecting cleaner.

 

  F. Empty all waste receptacles.

 

  G. Remove all restroom trash from Building.

 

  H. Spot clean fingerprints, marks from walls, partitions, glass, aluminum and light switches.

 

  I. Report all fixtures not working properly to Building Management Office.

WEEKLY SERVICES :

 

  A. Dust all low reach and high reach areas, including mirror tops, partition tops and edges, and air conditioning vents.

MONTHLY SERVICES :

 

  A. Wipe down all tile walls; scrub vinyl walls.

 

  B. Clean all ventilation grills.

 

  C. Dust all doors and door jambs.

 

Exhibit C

 

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  D. Scrub and wax tile floors.

SEMI-ANNUAL SERVICES :

 

  A. Machine scrub floors and re-seal as needed.

MAIN FLOOR AND ELEVATOR LOBBIES AND

PUBLIC CORRIDOR AND STAIRWAY SPECIFICATIONS

DAILY SERVICES :

 

  A. Spot clean all swinging and revolving glass doors exclusive of tenant doors.

 

  B. Spot clean all glass including low partitions, mirrors and the corridor side of all windows.

 

  C. Spot clean all bright work, including but not limited to door hardware, kick plates, hand rails, fountains, trash receptacles, planters, elevator call buttons, hose cabinets and outlet cover plates.

 

  D. Spot clean all masonry wall surfaces.

 

  E. Spot clean and dust directory board glass and ledge.

 

  F. Empty and clean all waste baskets.

 

  G. Vacuum and edge all carpets and entry mats and minor spot cleaning as needed.

 

  H. Treat and polish elevator doors and call buttons as needed.

 

  I. Police Building stairs.

 

  J. Clean all cigarette urns.

WEEKLY SERVICES :

 

  A. Spot clean, sweep, mop and buff all hardsurface floorings, if any.

 

  B. Sweep stairwells from parking levels and all service stairwells.

 

  C. Clean all swinging and revolving glass doors exclusive of tenant doors.

MONTHLY SERVICES :

 

  A. Clean all chrome and architectural aluminum.

 

Exhibit C

 

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  B. Steam clean carpets in main entrance lobby.

 

  C. Wash all lobby glass.

SEMI-ANNUAL SERVICES :

 

  A. Steam clean carpets in all public areas.

PASSENGER ELEVATOR SPECIFICATIONS

DAILY SERVICES :

 

  A. Clean and polish inside elevator doors, control panels, and floor indicator panels.

 

  B. Spot clean outside door surfaces and lobby call buttons.

 

  C. Spot clean carpet as needed.

 

  D. Vacuum and edge all cab floors thoroughly.

 

  E. Vacuum all elevator thresholds. Clean and polish.

 

  F. Polish all cab wall panels.

 

  G. Clean cab telephone cabinets.

WEEKLY SERVICES :

 

  A. Thoroughly clean entire interior surface.

 

  B. Vacuum and edge carpeted rear walls of all cabs, if any.

 

  C. Dust ceiling.

 

  D. Clean and polish all elevator thresholds.

JANITORIAL, ELECTRICAL, TELEPHONE CLOSET SPECIFICATIONS

DAILY SERVICES :

 

  A. Remove trash from all of the above areas.

 

  B. Maintain an orderly arrangement of janitorial supplies and paper products in the storage rooms and service sink closets.

 

Exhibit C

 

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  C. Maintain an orderly arrangement of all equipment stored in these areas such as mops, buckets, brooms, vacuum cleaners, scrubbers, etc.

 

  D. Sweep storeroom floors.

 

  E. Receive and store all janitor supplies in an orderly manner.

WEEKLY SERVICES :

 

  A. Damp mop all composition floors in store rooms. Deodorize and disinfect as required.

EXTERIOR STRUCTURE AND GROUNDS SERVICE SPECIFICATIONS

DAILY SERVICES :

 

  A. Police entire perimeter of building including Plaza, fountain, landscaped areas, storm drain grills, and ventilation grills to the property lines on all sides.

 

  B. Spot sweep accumulation soft dirt, papers and leaves in all corners where wind tends to cause a collection of this debris.

 

  C. Spot clean around entrance to the building.

 

  D. Spot clean all exterior glass at building entrances.

 

  E. Clean all hand rails around building exterior.

 

  F. Vacuum all entry walk-off mats.

 

  G. Empty all waste receptacles and remove trash to designated trash areas.

 

  H. Sweep sidewalk, steps and landscaped areas, walks and benches, and hose down building entrances as required.

 

  I. Machine scrub, pressure wash, or steam clean exterior sidewalk and plaza areas, as required (approximately four times per year).

LOADING DOCK, TRASH AREA AND SERVICE ENTRANCE SPECIFICATIONS

DAILY SERVICES :

 

  A. Place all miscellaneous trash and debris, except construction material in the trash receptacles, compactors or balers.

 

Exhibit C

 

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  B. Neatly stack all trash in designated areas.

 

  C. Sweep entire area.

 

  D. Hose down or mop entire trash area and disinfect and deodorize as required.

 

  E. Hose down loading dock and service entrance area as required.

BELOW GRADE PARKING LEVEL CORE AREA SPECIFICATIONS

DAILY SERVICES :

 

  A. Clean all cigarette urns.

 

  B. Vacuum and spot clean all carpets.

 

  C. Spot clean walls and door jams as required.

 

Exhibit C

 

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EXHIBIT D-1 (Two Union Square)

The Permanent Lender Nondisturbance and Attornment Agreement shall contain the following provisions:

1. Lessee hereby agrees, for itself and any successor or assign under the Lease, that all its right, title, and interest as lessee under the Lease is and shall be subject and subordinate to the terms and provisions of the Deed of Trust with the same force and effect as if the Lease had been executed and delivered after the execution, delivery and recording of the Deed of Trust and that, so long as such Deed of Trust shall be in effect, it shall look only to Lessor to observe and perform the covenants and obligations of Lessor under the Lease and at no time shall the Lender have any responsibility or liability whatsoever therefor, except for such period of time as the Lender is the owner of the Property.

2. The Lender and Lessee agree that so long as Lessee is not in default under the Lease upon the exercise of the power of sale contained in the Deed of Trust or conclusion of a judicial foreclosure or sale in lieu of foreclosure with respect to the Property as a result of an Event of Default (as defined in the Deed of Trust), the Lender will not terminate the Lease and that the Lender will not join Lessee in any foreclosure proceedings, and Lessee shall attorn to and recognize the Lender as Lessee’s lessor under the Lease. Thereupon the Lease shall continue in full force and effect as a direct lease between Lessee and the Lender, upon all the terms and conditions of the Lease. Any such attornment shall be effective and self-operative as of the date of such exercise of power of sale, or upon such foreclosure or sale in lieu of foreclosure without the execution of any further instrument; provided, however, that upon the request of the Lender, Lessee shall execute and deliver any such instruments in recordable form as shall be satisfactory to the Lender to evidence such attornment. The Lender shall have no liability to Lessee for any act or omission of Lessor or any claims arising prior to such attornment nor shall the Lender be liable for the performance of any obligation under the Lease prior to such attornment, except that (a) any obligation of the Lessor under the Lease to provide tenant improvements or allowances for tenant improvements, and (b) any provisions in the Lease which relate to cost reimbursements, set-off rights, free rent (and the like) which represent liquidated amounts otherwise owing by Lessor to Lessee under the Lease prior to an attornment, will be honored by Lender in the event Lessor is either foreclosed by Lender or Lessor deeds the Property to Lender in lieu of foreclosure. Lessee shall not modify, surrender or terminate, either orally or in writing, the Lease without the Lender’s written consent, except where such rights are expressly provided for in the Lease.

3. Lessee covenants and agrees that it will not pay or remit payment for any rents or other charges pursuant to the Lease more than one (1) month in advance of the date such payment is due. Lessee further covenants and agrees that, upon written notice by the Lender or its agent to Lessee, it will pay all rents and other charges due with respect to the Lease to the Lender.

4. No actions, whether voluntary or otherwise, are pending against the Lessee under the bankruptcy laws of the United States or any state thereof.

5. To the best of Lender’s knowledge, One Union Square Venture is the fee owner of the Property on the date of this Agreement.

 

Exhibit D-1

 

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D/T (8-81)      Exhibit D-2
     ONE UNION SQUARE

RECORDING REQUESTED BY AND

WHEN RECORDED RETURN TO:

    

SUBORDINATION,

NON-DISTURBANCE AND ATTORNMENT AGREEMENT

 

NOTICE: THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT RESULTS IN YOUR LEASEHOLD ESTATE IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT.

THIS AGREEMENT is entered into by and among Tenant, Landlord, and Beneficiary and affects the Property described in Exhibit A attached hereto. The terms “Tenant”, “Landlord”, “Beneficiary”, “Premises”, “Lease”, “Property”, “Loan”, “Note”, and “Mortgage” are defined in the Schedule of Definitions attached hereto as Exhibit B. This Agreement is entered into with reference to the following facts:

A. Landlord and Tenant have entered into the Lease covering the Premises in the Property.

B. Beneficiary has agreed to make the Loan to Landlord to be evidenced by the Note, which Note is to be secured by the Mortgage covering the Property, provided that the Lease is subordinated to the lien of the Mortgage.

C. For the purposes of completing the Loan, the parties hereto desire expressly to subordinate the Lease to the lien of the Mortgage, it being a condition precedent to Beneficiary’s obligation to consummate the Loan that the lien of the Mortgage be unconditionally and at all times prior and superior to the leasehold interests and estates created by the Lease.

D. Tenant has requested that Beneficiary agree not to disturb Tenant’s possessory rights in the Premises and recognize the terms of the Lease in the event Beneficiary should foreclose the Mortgage; provided that Tenant is not then in default under the Lease and provided further that Tenant attorns to Beneficiary or the purchaser at any foreclosure or trustee’s sale of the Property.

NOW THEREFORE, in consideration of the mutual covenants contained herein and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Subordination. Notwithstanding anything to the contrary set forth in the Lease, the Lease and the leasehold estate created thereby and all of Tenant’s rights thereunder shall be and shall at all times remain subject, subordinate and inferior to the Mortgage and the lien thereof, and all rights of Beneficiary thereunder and to any and all renewals, modifications, consolidations, replacements and extensions thereof.

2. Acknowledgment and Agreement by Tenant. Tenant acknowledges and agrees that:

(a) Beneficiary would not make the Loan without this Agreement;

Exhibit D-2


(b) It consents to and approves the Mortgage and the agreements evidencing and securing the Loan; and

(c) Beneficiary, in making any disbursements to Landlord, is under no obligation or duty to oversee or direct the application of the proceeds of such disbursements, and such proceeds may be used by Landlord for purposes other than improvement of the Property.

(d) From and after the date hereof, in the event of any act or omission by Landlord which would give Tenant the right, either immediately or after the lapse of time, to terminate the Lease or to claim a partial or total eviction, Tenant will not exercise any such right:

(i) until it has given written notice of such act or omission to Beneficiary; and

(ii) until the same period of time as is given to Landlord under the Lease to cure such act or omission shall have elapsed following such giving of notice to Beneficiary and following the time when Beneficiary shall have become entitled under the Mortgage to remedy the same.

(e) It has notice that the Lease and the rent and all other sums due thereunder have been assigned or are to be assigned to Beneficiary as security for the Loan secured by the Mortgage. In the event that Beneficiary notifies Tenant of a default under the Mortgage and demands that Tenant pay its rent and all other sums due under the Lease to Beneficiary, Tenant shall honor such demand and pay its rent and all other sums due under the Lease directly to Beneficiary or as otherwise required pursuant to such notice.

(g) It has no right or option of any nature whatsoever, whether pursuant to the Lease or otherwise, to purchase the Premises or the Property, or any portion thereof or any interest therein, and to the extent that Tenant has had, or hereafter acquires, any such right or option, the same is hereby acknowledged to be subject and subordinate to the Mortgage and is hereby waived and released as against Beneficiary.

(h) This Agreement satisfies any condition or requirement in the Lease relating to the granting of a non-disturbance agreement.

3. Foreclosure and Sale. In the event of foreclosure of the Mortgage, or upon a sale of the Property pursuant to the trustee’s power of sale contained therein, or upon a transfer of the Property by conveyance in lieu of foreclosure, then:

(a) Non-Disturbance . So long as Tenant complies with this Agreement and is not in default under any of the terms, covenants, or conditions of the Lease, the Lease shall continue in full force and effect as a direct lease between the succeeding owner of the Property and Tenant, upon and subject to all of the terms, covenants and conditions of the Lease, except as set forth in Exhibits C and D attached hereto, for the balance of the term of the Lease (including extension options) Tenant hereby agrees to adhere to and accept any such successor owner as landlord under the Lease, and to be bound by and perform all of the obligations imposed by the Lease, and Beneficiary, or any such successor owner of the Property, will not disturb the possession of Tenant, and will be bound by all of the obligations imposed on the Landlord by the Lease, except as set forth in Exhibits C and D attached hereto; provided, however, that Beneficiary, or any purchaser at a trustee’s or sheriff’s sale or any successor owner of the Property shall not be:

(i) liable for any act or omission of a prior landlord (including Landlord); or

 

Exhibit D-2

 

2


(ii) subject to any offsets or defenses which Tenant might have against any prior landlord (including Landlord); or

(iii) bound by any rent or additional rent which Tenant might have paid in advance to any prior landlord (including Landlord) for a period in excess of one month or by any security deposit, cleaning deposit or other prepaid charge which Tenant might have paid in advance to any prior landlord (including Landlord); or

(iv) bound by any agreement or modification of the Lease made without the written consent of Beneficiary, which consent shall not be unreasonably delayed or withheld.

(b) New Lease . Upon the written request of either Beneficiary or Tenant to the other given at the time of any foreclosure, trustee’s sale or conveyance in lieu thereof, the parties agree to execute a lease of the Premises upon the same terms and conditions as the Lease between Landlord and Tenant, with the changes set forth in Exhibits C and D attached hereto, which lease shall cover any unexpired term of the Lease (including extension options) existing prior to such foreclosure, trustee’s sale or conveyance in lieu of foreclosure.

(c) The provisions of the Lease set forth in Exhibit C shall be of no force or effect and shall not be binding upon Beneficiary or any purchaser or transferee acquiring the Property as a result of such foreclosure, trustee’s sale or conveyance in lieu thereof, and in the event of such foreclosure, trustee’s sale, or conveyance in lieu thereof, the provisions set forth in Exhibit D shall be added to the Lease and shall be effective and binding upon Tenant.

4. Acknowledgment and Agreement by Landlord. Landlord, as landlord under the Lease and mortgagor or trustor under the Mortgage, acknowledges and agrees for itself and its heirs, successors and assigns, that:

(a) This Agreement does not:

(i) constitute a waiver by Beneficiary of any of its rights under the Mortgage; and/or

(ii) in any way release Landlord from its obligations to comply with the terms, provisions, conditions, covenants, agreements and clauses of the Mortgage;

(b) The provisions of the Mortgage remain in full force and effect and must be complied with by Landlord; and

(c) In the event of a default under the Mortgage, Tenant may pay all rent and all other sums due under the Lease to Beneficiary as provided in this Agreement.

 

Exhibit D-2

 

3


5. No Obligation of Beneficiary. Beneficiary shall have no obligation or incur any liability with respect to the erection or completion of the improvements in which the Premises are located or for completion of the Premises or any improvements for Tenant’s use and occupancy, either at the commencement of the term of the Lease or upon any renewal or extension thereof or upon the addition of additional space, pursuant to any expansion rights contained in the Lease.

6. Notice. All notices hereunder to Beneficiary shall be deemed to have been duly given if mailed by United States registered or certified mail, with return receipt requested, postage prepaid to Beneficiary at its address set forth in Exhibit B attached hereto (or at such other address as shall be given in writing by Beneficiary to Tenant) and shall be deemed complete upon any such mailing.

7. Miscellaneous.

(a) This Agreement supersedes any inconsistent provision of the Lease.

(b) Nothing contained in this Agreement shall be construed to derogate from or in any way impair or affect the lien and charge or provisions of the Mortgage.

(c) Beneficiary shall have no obligations nor incur any liability with respect to any warranties of any nature whatsoever, whether pursuant to the Lease or otherwise, including, without limitation, any warranties respecting use, compliance with zoning. Landlord’s title, Landlord’s authority, habitability, fitness for purpose or possession.

(d) In the event that Beneficiary shall acquire title to the Premises or the Property, Beneficiary shall have no obligation, nor incur any liability, beyond Beneficiary’s then interest, if any, in the Premises, and Tenant shall look exclusively to such interest of Beneficiary, if any, in the Premises for the payment and discharge of any obligations imposed upon Beneficiary hereunder or under the Lease, and Beneficiary is hereby released and relieved of any other obligations hereunder and under the Lease.

(e) This Agreement shall inure to the benefit of the parties hereto, their respective successors and permitted assigns; provided however, that in the event of the assignment or transfer of the interest of Beneficiary, all obligations and liabilities of Beneficiary under this Agreement shall terminate, and thereupon all such obligations and liabilities shall be the responsibility of the party to whom Beneficiary’s interest is assigned or transferred; and provided further that the interest of Tenant under this Agreement may not be assigned or transferred without the prior written consent of Beneficiary, which consent shall not be unreasonably delayed or withheld.

(f) This Agreement shall be governed by and construed in accordance with the laws of the State in which the Property is located.

 

Exhibit D-2

 

4


IN WITNESS WHEREOF, the parties have executed this Subordination, Non-Disturbance, and Attornment Agreement as of                      , 19          .

 

NOTICE: THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT CONTAINS PROVISIONS WHICH ALLOW THE PERSON OBLIGATED ON THE LEASE TO OBTAIN A LOAN, A PORTION OF WHICH MAY BE EXPENDED FOR OTHER PURPOSES THAN IMPROVEMENT OF THE PROPERTY.

IT IS RECOMMENDED THAT, PRIOR TO THE EXECUTION OF THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT, THE PARTIES CONSULT WITH THEIR ATTORNEYS WITH RESPECT THERETO.

 

BENEFICIARY:     METROPOLITAN LIFE INSURANCE  
    COMPANY, a New York corporation  
    By  

 

TENANT:    

 

  ,
    a  

 

    By  

 

    By  

 

LANDLORD:    

 

  ,
    a  

 

    By  

 

    By  

 

 

Exhibit D-2

 

5


Legal Description

EXHIBIT A

 

 

Schedule of Definitions

“Beneficiary” shall mean Metropolitan Life Insurance Company, a New York corporation. All notices hereunder to Beneficiary shall be mailed to:

 

Metropolitan Life Insurance Company

One Madison Avenue

New York, New York 10010

  

with a copy to;

 

Metropolitan Life Insurance Company

2855 Campus Drive

Attn:   Senior Vice President    San Mateo, California 94403
  Real Estate Investments    Attn:   

Vice President

Real Estate Investments

 

“Mortgage” shall mean a first lien Mortgage or Deed of Trust and Security Agreement with Assignment of Rents dated as of                      , 19          , encumbering the Property, executed by Landlord, as Mortgagor or Trustor, to                                                       , a                                                                                                                                                 , as Trustee, in favor of Beneficiary, securing repayment of the Loan evidenced by the Note, to be recorded in the records of the County in which the Property is located.

 

“Landlord” shall mean

 

 

  ,
a  

 

  ,
having an office at  

 

  ,

 

  .

 

“Lease” shall mean a certain lease entered into by and among Landlord and Tenant dated as of                      , 19          , covering the Premises.

 

“Loan” shall mean a first mortgage loan in an amount up to $                                                       from Beneficiary to Landlord.

 

“Note” shall mean that certain Installment Note executed by Landlord in favor of

 

 

 

 

  ,
a   

 

  ,
dated as of  

 

  ,   19           ,   in the amount of $  

 

  .

 

“Premises” shall mean certain space in the improvements located in and upon the Property.

 

“Property” shall mean the real property described in Exhibit A attached hereto together with the improvements thereon.

 

“Tenant” shall mean

 

 

  ,
a  

 

  ,
having an office at  

 

  ,

 

  .

EXHIBIT B

Exhibit D-2


In the event of foreclosure of the Mortgage, or upon a sale of the Property pursuant to the trustee’s power of sale contained therein, or upon a transfer of the Property by conveyance in lieu of foreclosure, the provisions of the Lease set forth below shall be of no force or effect:

None

EXHIBIT C

In the event of foreclosure of the Mortgage, or upon a sale of the Property pursuant to the trustee’s power of sale contained therein, or upon a transfer of the Property by conveyance in lieu of foreclosure, the provisions set forth below shall be added to the Lease and shall be effective and binding:

None

EXHIBIT D

(Add Notarial Acknowledgments for

 Beneficiary, Tenant and Landlord)

Exhibit D-2


[***]

[***] Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.


SUPPLEMENTAL LEASE AGREEMENT

Lessor:      One Union Square Venture

Lessee:      Continental, Inc.

Agreement made this 25th day of August, 1992 between One Union Square Venture (Lessor) and Continental Inc. (Lessee).

Lessor and Lessee are parties to lease dated March 5, 1992 (the Lease) for leased premises in the Two Union Square Building in Seattle, Washington. The parties desire to supplement the Lease and agree as follows:

1. Clauses (a), (b) and (c) of Section 1.1 (Leased Premises) of the Lease describing the initial leased premises are amended in their entirety to read as follows:

 

  (a) All of the office space on floors 18, 19 and 20 in the TUS Building, for a total of 59,898 RSF on these three floors.

 

  (b) 2,692 USF (no load factor to be applied) on level 2 of the retail area of the Building as outlined in black on attached Exhibit F for Lessee’s branch bank.

 

  (C) 2,401 USF (no load factor to be applied) on level 3 of the retail area of the Building as outlined in black on attached Exhibit G.

2. Base monthly rent shall be calculated as provided in Section 1.4 (Rent) of the Lease, except the rent rate for base monthly rent for the twenty-nine months immediately following the first month of full occupancy shall be $7.00/RSF/year for 2,600 square feet of office space and $17.98/RSF/year (USF/year for retail space) for the remainder of the leased premises. By way of example, if the first month of full occupancy commences on January 1, 1993, the base monthly rent for the initial leased premises (59,898 RSF of office space and 5,093 USF of retail space) for the term January 1, 1993 through December 31, 2002 will be:

 

Period

   Base Monthly Rent  
January 1 through January 31, 1993    $ 25,508.97   
February 1, 1993 through June 30, 1995    $ 94,999.16   
July 1, 1995 through December 31, 2002    $ 97,378.18   

3. Section 1.9 (Exhibits and Other Attachments which are part of the Lease) is amended to add thereto:

 

-1-


Exhibit F:

   Print with Branch Bank space outlined in black, replacing the corresponding page in Exhibit A.

Exhibit G:

   Print with upper level of Branch Bank Location outlined in black, replacing the corresponding page in Exhibit A.

4. The first option to add space under Section 27.1 shall be reduced to between 4,000 and 6,000 RSF. The first sentence of Section 27.1 is therefore modified to read “Lessee shall have one (1) option to add between 4,000 and 6,000 RSF to its leased premises and three (3) subsequent options to add between 6,000 and 8,000 RSF to its leased premises each time.”

5. The table in Section 28.3 is deleted from the Lease. The Retail Space subject to Lessee’s Section 28.3 rights shall be:

 

  (a) The IBM, Federal Express and One Stop Copy spaces, or

 

  (b) the upper level of Plaza Building, corner of Sixth Avenue and Union Street.

If any of the space described in clause (a) is added to the leased premises, then the rights to add any of the space described in clause (b) shall terminate. If any of the space described in clause (b) is added to the leased premises, then the rights to add any of the space described in clause (a) shall terminate.

IN WITNESS WHEREOF, this supplemental lease agreement has been executed by Lessor and Lessee as of the day and year first above set forth.

 

LESSEE:     LESSOR:
   
CONTINENTAL, INC.    

ONE UNION SQUARE VENTURE,

A Washington Joint Venture

By   /s/ Richard S. Swanson     By UNICO PROPERTIES, INC.
     

(Manager and authorized rental agent for

One Union Square Venture)

By  

/s/ Bruce W. Williams

   
      By  

/s/ Stephen W. Camp

        Stephen W. Camp, Vice President

 

-2-


LESSOR’S ACKNOWLEDGEMENT

 

STATE OF WASHINGTON    )   
   )            ss.
COUNTY OF KING    )   

On this 29 th day of December, 1992, before me personally appeared Stephen W. Camp , to me known to be the Vice President of UNICO PROPERTIES, INC., the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation and One Union Square Venture, for the uses and purposes therein mentioned, and on oath stated that he (she) was authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

 

/s/ Elaine [Illegible Signature]

Notary Public in and for the State of

Washington, residing at Seattle                                                .

My commission expires:   1-15-95                                              .

LESSEE’S CORPORATE ACKNOWLEDGEMENT

 

STATE OF WASHINGTON    )   
   )            ss.
COUNTY OF KING    )   

On this 25 day of August, 1992, before me personally appeared Richard S. Swanson and Bruce W. Williams to me known to be the President and Vice President of continental, Inc., the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned, and on oath stated that they (he or she) were authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

 

/s/ Laura [Illegible Signature]

Notary Public in and for the State of

Washington, residing at Seattle                                                .

My commission expires:   2/17/93                                              .

 

-3-


LOGO

SECURITY PACIFIC BANK 1.7626F

ONE STEP COPY

FEDERAL EXPRESS

TDM - 20682F.

BRANCH BANK 2642 S.F.

INITIALS

CONTINENTAL, INC.

Branch Bank

EXHIBIT F

2,692 SF


LOGO

INITIALS

CONTINENTAL, INC.

Upper Level of

Branch Bank Location

EXHIBIT G 2,401 SF


SECOND AMENDMENT TO LEASE

 

Lessor:

   UNION SQUARE LIMITED PARTNERSHIP

Lessee:

   CONTINENTAL, INC.

Premises:

   Commonly referred to as Suite 2000 in the Two Union Square Building as more particularly described in the Lease.

Date of this Amendment: May 6, 1998

Lessor and Lessee are parties to Lease dated March 5, 1992, as amended August 25, 1992, (the Lease) and desire to further amend the Lease. The parties mutually agree:

 

1. Section 1.1, Leased Premises is hereby amended from all of the office space on floors 18, 19 and 20 to all of the office space on floors 18, 19, 20 and Rooms 2101-2112 and 2134 - 2137.

 

2 Section 1.2, Floor Areas is hereby amended from 54,816 usable square feet; 59,897 rentable square feet to 61,708 usable square feet; 67,685 rentable square feet.

 

3. Section 1.2, Floor Areas is hereby amended from 5.68208 percent of the rentable area of the Building to 6.42088 percent.

 

4. Section 1.4 Rent is hereby amended as follows:

Commencing July 1, 1995 and thereafter on the first day of each calendar month until October 31, 1998, Lessee shall continue to pay Monthly Minimum Rent of $89,747.17.

Commencing November 1, 1998 and thereafter on the first day of each calendar month until December 31, 2002, Lessee shall pay Monthly Minimum Rent of $101,416.38.

 

5. Lessor shall provide Lessee with tenant improvements on a turnkey basis up to $44.41 per usable square foot on the additional 6,892 usable square feet for improvements to the additional Leased Premises, including A & E fees. As provided in the Lease the CPI was used in place of the BCI to calculate the increase in the tenant improvement allowance.

 

6. Exhibit “A” of the Lease, changed to reflect the revised floor plan, is attached hereto and made a part hereof.

 

7. Lessee shall be granted five (5) additional parking permits (one for each 1,500 rentable square feet of expansion space), effective November 1, 1998.

 

8. All other terms and conditions are to remain the same.

 

1


Lessee:     Lessor:
CONTINENTAL, INC.     UNION SQUARE LIMITED
   

PARTNERSHIP, a Washington Limited

Partnership

By  

/s/ HOWARD H. BELL

   
  HOWARD H. BELL     By UNICO PROPERTIES, INC.
Its   EXEC V.P.    

(Manager and authorized rental agent for

      Union Square Limited Partnership)
Date:   May 7, 1998    
      By  

/s/ John Schoettler

        John Schoettler, Vice President
    Date: May 6, 1998

 

2


LESSEE’S CORPORATE ACKNOWLEDGEMENT

 

STATE OF WASHINGTON   )   
  )            ss.
COUNTY OF KING   )   

On this 7 th day of May , 1998, before me personally appeared Howard B. Bell , to me known to be the Exec. Vice President of CONTINENTAL, INC., the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned, and on oath stated that they (he or she) were authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

 

/s/ Elfie E. Holmes
(Print name)
Elfie E. Holmes
Notary Public in and for the State of Washington,
residing at
Benton
My commission expires:   9-30-00                                

LESSOR’S ACKNOWLEDGEMENT

 

STATE OF WASHINGTON   )   
  )            ss.
COUNTY OF KING   )   

On this 6th day of May, 1998, before me personally appeared John Schoettler, to me known to be the Vice President of UNICO PROPERTIES, INC., the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation and UNION SQUARE LIMITED PARTNERSHIP, for the uses and purposes therein mentioned, and on oath stated that he (she) was authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

 

/s/ Shielah C. Sabalza

Shielah C. Sabalza
Notary Public in and for the State of
Washington, residing at Seattle.
My commission expires:  4-02-2002.

 

3


THIRD AMENDMENT TO LEASE

 

Lessor:

   Union Square Limited Partnership

Lessee:

   Continental, Inc.

Premises:

   Commonly referred to as Suite 2000 in the Two Union Square Building as more particularly described in the Lease.

Date of this

Amendment:        June 17, 1998

Lessor and Lessee are parties to Lease dated March 5, 1992, as amended August 25, 1992 and May 6, 1998, (the Lease) and desire to further amend the Lease as follows:

 

1. Section 1.1 , The office space portion of the Leased Premises are hereby amended from all of the office space on Floors 18, 19, 20, Rooms 2101-12, 2134-2137 to all of the office space on floors l8, 19, 20, Rooms 2101-2112, 2134-2137, and 701-30,735-37, and Part of 731 and 734.

 

2. Section 1.2 , The office space portion of the Leased Premises is hereby amended from 54,816 usable square feet; 59,897 rentable square feet, to 63,660 usable square feet; 69,983 rentable square feet effective October 1, 1997,70,795 usable square feet; 78,332 rentable square feet effective August 1, 1998, and 77,687 usable square feet; 86,120 rentable square feet effective November 1, 1998.

 

3. Section 1.2 , Floor Areas is hereby amended to 6.42088 percent of the rentable area of the Building for the premises located on floors 18-21, and .89540 percent for rooms 714-30 and Part 731, and .74119 percent for Rooms 701-13, 735-37 and Part of 734.

 

4. Section 1.4 , Rent is hereby amended as follows:

Commencing July 1, 1998 and thereafter on the first day of each calendar month until July 31, 1998, Lessee shall pay base monthly rent on the office portion of $107,398.17.

Commencing August 1, 1998 and thereafter on the first day of each calendar month until October 31, 1998, Lessee shall pay base monthly rent on the office portion of $123,400.42

Commencing November 1, 1998 and thereafter on the first day of each calendar month until September 30, 2000, Lessee shall pay base monthly rent on the office portion of $135,069.63.

Commencing October 1, 2000 and thereafter on the first day of each calendar month until January 31, 2002, Lessee shall pay base monthly rent on the office portion of $135,909.63.

Commencing February 1, 2002 and thereafter on the first day of each calendar month until December 31, 20.02, Lessee shall pay base monthly rent on the office portion of $139,388.38.


5. Section 1.5, Base Indices is revised as follows; For rooms 714-30 and Part of 3l containing 10,086 RSF, Lessee shall have a base year of 1997. For rooms 701-13, 735-37 and Part 731, 724, Lessee shall have a base year of 1998.

 

6. Section 4.4 Real Property Taxes shall have a base year as outlined in Section 5 above.

 

7. Section 30 Parking is hereby amended as follows:

Lessor shall make available five (5) monthly parking permits associated with rooms 701-13, 735-37 and Part of 734, effective August 1, 1998, and six (6) monthly parking permits associated with Rooms 714-30 and Part of 731; effective October 1, 1997.

 

8. Exhibit “A” of the Lease changed to reflect the revised floor plan is attached hereto and part hereof.

 

9. Upon the full execution of this Third Amendment the lease between Lessor and Lessee dated July 30, 1997 for Rooms 714-30, Part of 731 shall be terminated and superceded by this Amendment and the Master Lease.

 

Lessee:     Lessor:
CONTINENTAL, INC.     UNION SQUARE LIMITED
/s/ Howard H. Bell    

PARTNERSHIP, a Washington Limited

Partnership

By  

Howard H. Bell

    By UNICO PROPERTIES, INC.
      (Manager and authorized rental agent for
Its  

Executive Vice President

   

Union Square Limited Partnership)

Date  

June 23, 1998

    By  

/s/ John Schoettler

        John Schoettler, Vice President
   

Date

 

6.25.98


LESSEE’S CORPORATE ACKNOWLEDGEMENT

 

STATE OF WASHINGTON   )   
  )            ss.
COUNTY OF KING   )   

On this 23 rd day of June , 1998, before me personally appeared Howard H. Bell , to me known to be the Exec. Vice President of Continental, Inc., the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned, and on oath stated that they (he or she) were authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

 

/s/ Elfie E. Holmes

(Print name) Elfie E. Holmes                                        
Notary Public in and for the State of Washington,
residing at Benton                                                                 
My commission expires:   9-30-00                                         

LESSOR’S ACKNOWLEDGEMENT

 

STATE OF WASHINGTON   )   
  )            ss.
COUNTY OF KING   )   

On this 25TH day of JUNE , 1998, before me personally appeared John Schoettler, to me known to be the Vice President of UNICO PROPERTIES, INC., the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation and UNION SQUARE LIMITED PARTNERSHIP, for the uses and purposes therein mentioned, and on oath stated that he (she) was authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

 

/s/ Shielah C. Sabalza

Shielah C. Sabalza
Notary Public in and for the State of
Washington, residing at Seattle.
My commission expires:  4-02-2002.

 

3


FOURTH AMENDMENT TO LEASE

 

Lessor:

   UNION SQUARE LIMITED PARTNERSHIP

Lessee:

   CONTINENTAL, INC.

Premises:

   Commonly referred to as Suite 2000 in the Two Union Square Building (the “Building”) as more particularly described in the Lease.

Date of this Amendment: February 15, 2000

Lessor and Lessee are parties to Lease dated March 5, 1992, as amended August 25, 1992, May 6, 1998 and June 17, 1998, (the Lease) and desire to further amend the Lease to add to the Leased Premises that portion of the 21 st floor not previously leased by Lessee (the “Expansion Space”). The parties mutually agree that effective on the date Lessor delivers the Expansion Space to Lessee with tenant improvements substantially complete for occupancy (the “Effective Delivery Date”), which date is anticipated to be September 1, 2000:

 

1. Section 1.1 is hereby amended to include all of the office space on floors 18, 19, 20, and 21, together with all of rooms 701-30, 735-37, and part of rooms 731 and 734 on floor 7 as the office space portion of the Leased Premises.

 

2. Section 1.2 is hereby amended to provide that the areas of the office space portion of the Leased Premises are increased from 77,687 usable square feet and 86,120 rentable square feet, to 89,067 usable square feet and 98,555 rentable square feet.

 

3. Section 1.2 is hereby further amended to reflect that the percentage of the rentable area of the Building that is leased by Lessee for all of floors 18-21 and rooms 701-30, 735-37 and parts of rooms 731 and 734 is 9.2371 percent. (The percentage applicable to all of rooms 701-30, 735-37, and part of rooms 731 and 734 remains at 1.63659 percent.)

 

4. Section 1.4 is hereby amended as follows:

Commencing upon the Effective Delivery Date and through September 30, 2000, Lessee shall pay base monthly rent of $153,701.41 (prorated if the Effective Delivery Date is not on the first day of the month).

Provided the Effective Delivery Date has occurred by October 1, 2000, then commencing October 1, 2000 (or prorated if the Effective Delivery Date is not on October 1, 2000) and thereafter on the first day of each calendar month until January 31, 2002, Lessee shall pay base monthly rent of $154,541.41.

Commencing February 1, 2002 and thereafter on the first day of each calendar month until December 31, 2002, Lessee shall pay base monthly rent of $158,020.15.


5. Lessor shall provide Lessee with tenant improvements for the additional 11,380 usable square feet on floor 21 in keeping with the terms outlined in Section 26 of the Lease.

 

6. Lessor shall, on a turnkey basis and in keeping with Section 26 of the Lease, construct an interconnecting stairwell between floor 20 and floor 21 at Lessor’s sole expense.

 

7.

Lessor and Lessee acknowledge that the addition to the Leased Premises of the remaining 12,435 rentable square feet on the 21 st floor fully satisfies Lessee’s third and fourth expansion options under Section 27.1 through Section 27.3 of the Lease.

 

8. Section 30 Parking is revised as follows:

Lessor shall make available eight (8) additional parking permits associated with the remainder of the 21 st floor, effective September 1, 2000.

 

9. Exhibit “A” of the Lease, changed to reflect the revised floor plan, is attached hereto and made a part hereof.

 

10.

Continental will have plans for improvements on the 21 st floor prepared by NBBJ for review by Landlord. Construction Drawings are to be completed not later than May 31, 2000. The Effective Delivery Date shall be deemed to be one day earlier than the actual delivery date for every day after May 31, 2000 until they are completed.

All other terms and conditions are to remain the same.

 

Lessee:     Lessor:

CONTINENTAL, INC,

a Washington corporation

   

UNION SQUARE LIMITED

PARTNERSHIP,

a Washington Limited Partnership

   

By UNICO PROPERTIES, INC.

(Manager and authorized rental agent for

Union Square Limited Partnership)

By  

/s/ Brian P. Dempsey

    By  

/s/ Donald M. Wise

        Donald M. Wise
Its  

Vice Chairman

    Its  

Senior Vice President

       
Date:  

2/15/00

    Date:  

2-15-00


LESSOR’S ACKNOWLEDGEMENT

 

STATE OF WASHINGTON     )       
    )      ss.  
COUNTY OF KING     )       

On this 15 th day of FEBRUARY , 2000 , before me personally appeared Donald M. Wise, to me known to be the Senior Vice President of UNICO PROPERTIES, INC., the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation and UNION SQUARE LIMITED PARTNERSHIP, for the uses and purposes therein mentioned, and on oath stated that he (she) was authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

/s/ Shielah C.Sabalza                                                         

Shielah C.Sabalza

Notary Public in and for the State of

Washington, residing at Seattle.

My commission expires April 2, 2002.

 

Page 3


LESSEE’S CORPORATE ACKNOWLEDGEMENT

STATE OF WASHINGTON     )       
    )      ss.  
COUNTY OF KING     )       

On this 15 th day of FEBRUARY , 2000, before me personally appeared BRIAN DEMPSEY , to me known to be the VICE CHAIRMAN of CONTINENTAL, INC., the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned, and on oath stated that they (he or she) were authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

/s/ SHIELAH C. SABALZA                                             

(Print name) SHIELAH C. SABALZA                        

Notary Public in and for the State of Washington,

residing at SEATTLE                                                      .

My commission expires: APRIL 2, 2002                       .

 

Page 4


FIFTH AMENDMENT TO LEASE

 

Lessor:

  

UNION SQUARE LIMITED PARTNERSHIP

Lessee:

   HOMESTREET, INC.
   (formerly known as Continental, Inc.)

Leased Premises:

   Commonly referred to as Suite 2000 in the Two Union Square Building (the “Building”) as more particularly described in the Lease.

Date of this Amendment:

   July 30, 2001

Lessor and Lessee are parties to a Lease dated March 5, 1992, as amended August 25, 1992, May 6, 1998, June 17, 1998 and February 15, 2000, (the Lease) and desire to further amend the Lease to clarify the calculation and sharing of certain profits related to Lessee’s subleasing of a portion of the Leased Premises to Quadra Financial Group, L.P. Lessor and Lessee also desire to amend the Lease to address the terms and conditions under which Lessee will install and operate the automated teller machine in the portion of the leased premises where the retail branch bank is located, facing onto Sixth Avenue (the “Sixth Avenue ATM”).

 

1. Lessee, as Sublandlord, entered into a Sublease Agreement dated May 18, 2000 (“Quadra Sublease”) with Quadra Financial Group, L.P. as Subtenant (“Quadra”) for 18,435 rentable square feet on the 7th floor of the Leased Premises. Lessor consented to the Quadra Sublease on May 30, 2000. For the purpose of calculating the 50% share of net profit from the Quadra Sublease owing to Lessor pursuant to Section 22.3, the following shall govern:

 

  (a) Lessee has provided Lessor with a calculation through July 2001 of net profit derived from the Quadra Sublease, a copy of which calculation is attached hereto as SCHEDULE 1.

 

  (b) The parties agree that Lessor is entitled to share equally in the net profits from the Quadra Sublease, to the extent Lessee realizes a net profit at the end of the Term of such Sublease. The mechanism for sharing such profits shall be as follows:

 

  (1) Commencing in August 2001 and continuing on a monthly basis thereafter so long as Lessee receives net profit on the Quadra Sublease, Lessee shall calculate and remit to Lessor its 50% share of such net profit on a cash flow basis. The payment to Lessor shall be made within five (5) business days following receipt of payment from Quadra. The August payment shall include Lessor’s share of net profits through July 2001, as shown on Schedule 1.

 

  (2)

In the event Lessee does not realize a net profit at the end of the Term of the Quadra Sublease, or in the event such net profit is less than that shared with

 

 

HomeStreet/Union Square Fifth Amendment

Page 1


 

Lessor through payments previously made to Lessor on a cash flow basis, then Lessor agrees that it shall reimburse Lessee for any excess payments made to Lessor, up to the amount of net profits previously paid to Lessor hereunder. Such reimbursement shall be made within thirty (30) days following written notice by Lessee to Lessor.

 

2. Lessor hereby consents to Lessee’s installation, maintenance and operation of the Sixth Avenue ATM; provided, however, that the design and installation of the signage surround for the Sixth Avenue ATM shall be subject to Lessor’s prior approval, which approval shall not be unreasonably withheld. No additional rent shall be charged for Sixth Avenue ATM. Lessee agrees that it shall, at its sole cost and expense, comply with and perform the following:

 

  (a) Lessee shall comply with applicable regulatory requirements regarding the operation and maintenance of the Sixth Avenue ATM.

 

  (b) Upon expiration or earlier termination of the Lease term with respect to Lessee’s bank branch, Lessee shall remove the Sixth Avenue ATM and return the affected portion of the leased premises, including the building facade on Sixth Avenue, to its original condition, reasonable wear and tear excepted. This provision shall also apply in the event Lessee removes the Sixth Avenue ATM prior to termination or expiration of the Lease term.

 

3. All other terms and conditions are to remain the same.

 

Lessee:

   Lessor:
HOMESTREET, INC   

UNION SQUARE LIMITED

PARTNERSHIP,

a Washington corporation

   a Washington Limited Liability Company
  

By UNICO PROPERTIES, INC.

(Manager and authorized rental agent for

Union Square Limited Partnership)

By   /s/ Kyle Samuels                                                                    

  

Its   Senior V.P.                                                                           

  

Date:   August 2, 2001                                                                

  
   By   /s/ Donald M. Wise                                                                             
  

Its   Sr. V.P.                                                                                                     

  

Date:   8-8-01                                                                                                  

 

 

HomeStreet/Union Square Fifth Amendment

Page 2


LESSOR’S ACKNOWLEDGEMENT

 

STATE OF WASHINGTON     }       
    ss.  
COUNTY OF KING      

On this 8 th day of August , 2001, before me personally appeared Donald M. Wise , to me known to be the Senior Vise President of UNICO PROPERTIES, INC., the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation and UNION SQUARE LIMITED PARTNERSHIP, for the uses and purposes therein mentioned, and on oath stated that he (she) was authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

/s/ SUZANNE SWANSON                                                         

Printed Name   SUZANNE SWANSON                                    

N OTARY P UBLIC in and for the State of Washington,

residing at   SEATTLE                                                        

My Commission Expires   3-21-04                                    

 

 

HomeStreet/Union Square Fifth Amendment

Page 3


LESSEE’S ACKNOWLEDGMENT

 

STATE OF WASHINGTON     }       
    ss.  
COUNTY OF KING      

On this 2 nd day of August , 2001, before me personally appeared Kyle Samuels , to me known to be the Senior Vice President of HOMESTREET, INC., the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned, and on oath stated that he (she) were authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

/s/ Amber English                                                                       

Printed Name   Amber English                                                   

N OTARY P UBLIC in and for the State of Washington,

residing at   Shoreline, WA.                                               

My Commission Expires 8-16-04                                       

 

 

HomeStreet/Union Square Fifth Amendment

Page 4


SCHEDULE 1

INITIAL CALCULATION OF NET PROFIT

FOR

QUADRA SUBLEASE

 

 

HomeStreet/Union Square Fifth Amendment      Schedule 1   


SIXTH AMENDMENT TO LEASE

 

Lessor:

  

UNION SQUARE LIMITED PARTNERSHIP

Lessee:

  

HOMESTREET, INC.

(formerly known as Continental, Inc.)

Premises:

  

Commonly referred to as Suite 2000 in the Two Union Square Building as more particularly described in the Lease.

Date of this Amendment: 5th day of March, 2002

Lessor and Lessee are parties to Lease dated March 5, 1992, as amended August 25, 1992, may 6, 1998, June 17, 1998, February 15, 2000, and July 30, 2001 (the Lease) and desire to further amend the Lease as a result of Lessee exercising its Option to Extend the term of the Lease pursuant to Section 28. The parties mutually agree:

 

1. Section 1.2, Floor Areas is hereby amended from 89,067 usable square feet; 98,555 rentable square feet; to 94,160 usable square feet; 106,014 rentable square feet (office and retail) in accordance with the BOMA Standard (American National Standard ANSIZ 65.1-1996).

 

2. Section 1.2, Floor Areas is hereby amended from 9.2371 percent of the rentable area of the Building to 9.411520 percent.

 

3. The term is hereby extended to December 31, 2007 in accordance with Lessee’s exercise of its first five-year option to extend the Lease in accordance with Section 29.

 

4. Section 1.4 Rent is hereby amended as follows:

Commencing January 1, 2003 and thereafter on the first day of each calendar month until December 31, 2007, Lessee shall pay base monthly rent of $198,422.87. Such amount is derived from the agreed amount of $23/rsf discounted to $22.46/rsf to compensate for the adjustment in the rentable area per paragraph 1 herein.

 

5.

Section 1.5 Base Indices as outlined in Section 29.2 remains the same (1992) for floors 18-21, however the Base Indices for the 7 th floor shall be 1997 and 1998 in keeping with the Third Amendment to Lease.

 

6.

In keeping with Section 26.4, Lessor shall, at its sole cost and expense, re-carpet and paint the premises during the 11 th year.

 

7. Section 1.8 Lessor’s Address for Notices and Payment of Rent is revised to read; Union Square Limited Partnership, c/o Lowe Enterprises Northwest, Inc., 600 University Street, Suite 2820 Seattle, Washington 98101.

 

8. Section 1.10 is hereby deleted and replaced in its entirety with the following language:


Rent sharing of sublease with Q      ra (now Quellos)

Costs to July 31st for 7th floor space subleased to Quadra:

 

Lease commission - Trammell Crow

     85,416.00   

Lease commission - Behar Company

     68,794.00   

Legal fees - sublease negotiations

     4,036.00   

Rent paid to Unico:

 

      Base     CAM     TAXES     METRO
IMPROVEMENT
    TOTAL  
  Oct-00        28,907.42        260.21        1610.67        109.00        30,887.30   
  Nov-00        28,907.42        260.21        1610.67        109.00        30,887.30   
  Dec-00        28,907.42        260.21        1610.67        109.00        30,887.30   
  Jan-01        28,907.42        813.63        1385.83        110.67        31,217.55   
  Feb-01        28,907.42        813.63        1385.83        110.67        31,217.55   
  Mar-01        28,907.42        813.63        1385.83        110.67        31,217.55   
  Apr-01        28,907.42        813.63        1385.83        110.67        31,217.55   
  May-01        28,907.42        813.63        1385.83        110.67        31,217.55   
  Jun-01        28,907.42        813.63        1385.83        110.67        31,217.55   
  Jul-01        28,907.42        813.63        1385.83          31,106.88   
                                       
    289,074.20        6,476.04        14,532.82        991.02        311,074.08   

 

Total sublease costs to July 31st

  

      469,320.08     

Lease payments from Quadra to July 30th:

 

    Oct-00        52,232.50       
    Nov-00        52,232.50       
    Dec-00        52,232.50       
    Jan-01        52,232.50       
    Feb-01        52,232.50       
    Mar-01        52,232.50       
    Apr-01        52,232.50       
    May-01        52,232.50       
    Jun-01        52,232.50       
    Jul-01        52,232.50       
             
      522,325.00        522,325.00     
             
      Net profit at July 3st        53,004.92     
             
 

 

50% payable to Unico

  

    26,502.46     
             

Projected for August

  

     
 

 

Rent from Quadra

  

    52,232.50     
 

 

Rent to Unico for 7th floor

  

    (31,106.88  
             
      Net monthly profit        21,125.62     
             
 

 

50% to Unico

  

    10,562.81     
             


Lessor is a Washington limited partner known as Union Square Limited Partnership. Lessor is the sole owner of the Building and the Land. Lowe Enterprises Northwest, Inc. is the manager and authorized rental agent of One and Two Union Square, and it has the authority to execute documents on behalf of Lessor and bind Lessor as provided in this lease.

 

9. All other terms and conditions are to remain the same.

 

Lessee:

   Lessor:

HOMESTREET, INC (FORMERLY

KNOWN AS CONTINENTAL, INC.)

  

UNION SQUARE LIMITED

PARTNERSHIP,

a Washington corporation

   a Washington Limited Partnership
  

By Lowe Enterprises Northwest, Inc.

(Manager and authorized rental agent for

Union Square Limited Partnership)

By   /s/ Kyle Samuels                                                                                     

   By   /s/ Craig A. Wrench                                                                         

        Kyle Samuels

           Craig A. Wrench

Its   Senior V.P.                                                                                         

  

Its   President                                                                                               

Date:    3/5/02                                                                                             

  

Date:   3/5/02                                                                                              

 

Page 2


LESSOR’S ACKNOWLEDGEMENT

 

STATE OF WASHINGTON     )       
    )      ss.  
COUNTY OF KING     )       

On this 6 th day of March , 2002 , before me personally appeared Craig A. Wrench, to me known to be the President of Lowe Enterprises Northwest, Inc. the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation and UNION SQUARE LIMITED PARTNERSHIP, for the uses and purposes therein mentioned, and on oath stated that he (she) was authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

/s/ Loren Blumenstine                                                             

Loren Blumenstine

Notary Public in and for the State of Washington

Washington, residing at Seattle, WA

My commission expires July 18, 2005

 

Page 3


LESSEE’S CORPORATE ACKNOWLEDGEMENT

 

STATE OF WASHINGTON      )       
     )      ss.  
COUNTY OF KING      )       

On this 5 th day of   March , 2002, before me personally appeared   Kyle Samuels , to me known to be the Senior VP of   HomeStreet, Inc. , the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned, and on oath stated that they (he or she) were authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

/s/ Amber English                                                             

(Print name)   Amber English                                          

Notary Public in and for the State of Washington,

residing at   Shoreline, WA.                                          .

My commission expires:   8-16-04                                .

 

Page 4


SEVENTH AMENDMENT TO

LEASE

 

Lessor:

  

UNION SQUARE LIMITED LIABILITY COMPANY

Successor in interest by merger to Union Square Limited Partnership

Lessee:

   HOMESTREET, INC.

Premises:

   Commonly referred to as Suite 2000 in the Two Union Square Building as more particularly described in the Lease.

Date of this Amendment: 19th day of May, 2004

Lessor and Lessee are parties to that certain Office Lease dated March 5, 1992, as amended August 25, 1992, May 6, 1998, June 17, 1998, February 15, 2000, July 30, 2001, and March 5, 2002 (as so amended, the “Lease”) and desire to further amend the Lease as a result of Lessor and Lessee agreeing to extend the term of the Lease. The parties mutually agree:

 

1. Section 1.3 Term is hereby amended from fifteen years commencing January 1, 1993 and ending December 31, 2007, to twenty-five (25) years commencing January 1, 1993 and ending December 31,2017.

 

2. Section 1.4 Rent is hereby amended as follows and shall be recalculated in the event the Leased Premises are reduced in keeping with Section 39, or expanded in keeping with Section 28:

Commencing on January 1, 2008 and thereafter on the first day of each calendar month until December 31, 2010, Lessee shall pay base monthly rent of $229,697.00. Such amount is derived from the agreed amount of $26 per rentable square feet (“RSF”) multiplied by the number of rentable square feet (106,014) divided by 12 months.

Commencing on January 1, 2011 and thereafter on the first day of each calendar month until December 31, 2012, Lessee shall pay base monthly rent of $238,531.00. Such amount is derived from the agreed amount of $27 per RSF multiplied by the number of rentable square feet (106,014) divided by 12 months.

Commencing on January 1, 2013 and thereafter on the first day of each calendar month until December 31, 2014, Lessee shall pay base monthly rent of $247,366.00. Such amount is derived from the agreed amount of $28 per RSF multiplied by the number of rentable square feet (106,014) divided by 12 months.

Commencing on January 1, 2015 and thereafter on the first day of each calendar month until December 31, 2017, Lessee shall pay base monthly rent of $256,200.00. Such


 

amount is derived from the agreed amount of $29 per RSF multiplied by the number of rentable square feet (106,014) divided by 12 months.

 

3. Section 1.5 Base Indices is revised by adding the following language: “Effective January 1, 2008 the base year for Sections 3 &4 shall be revised to read 2007, with the first adjustment as of January 1, 2009. To the extent Lessee elects to extend the term of the lease for additional terms as provided herein, commencing in 2018 and 2023, new base years of 2017 and 2022, respectively, shall be established for such additional terms.”

 

4. The following language is substituted in Section 26 Tenant Improvements, in lieu of the existing section 26.1:

“On January 1, 2008, Lessor shall pay Lessee an amount equal to $15 per RSF (the “refurbishment allowance”) on the lesser of 106,014 RSF (“Current Leased Premises”), or, to the extent Lessee has elected to reduce its Leased Premises as provided for herein, on the RSF then leased by Lessee. Lessee shall utilize the refurbishment allowance for any costs (tenant improvements, telephone and computer cabling, architectural and engineering fees, moving costs, etc.) associated with refurbishing the Leased Premises.

In addition to such refurbishment allowance, Lessor shall provide Lessee with a tenant improvement allowance of $35 per RSF on all space acquired by Lessee (the “expansion space”) in the TUS Building at any time during the term of this Lease and any extension terms (not including the Current Leased Premises), including without limitation on all such expansion space acquired pursuant to the Right of First Offer/Right of First Refusal as set forth in Section 28 of the Lease, as amended herein. Lessor shall pay Lessee such tenant improvement allowance on the effective date of Lessee’s lease of the expansion space (the “effective date”), and such tenant improvement allowance shall be utilized by Lessee for any costs (tenant improvements, telephone and computer cabling, architectural and engineering, fees, moving costs, etc.) associated with the improvement of the expansion space. Notwithstanding the foregoing, for all such expansion space acquired after January 1, 2011, Lessee shall receive a pro rated tenant improvement allowance based upon $35 per RSF divided by 120 months and multiplied by the number of months then (as of the effective date) remaining on the Term (not to exceed $35 per RSF).”

With respect to Section 26.4 of the Lease, Lessor and Lessee acknowledge that they have by mutual agreement deferred the recarpeting and repainting of the Current Leased Premises pursuant to section 26.4 beyond the 11 th year of the Lease term, but the parties acknowledge that Lessor remains obligated to pay the cost and expense of such repainting and recarpeting of the Current Leased Premises, which is in addition to the refurbishment allowance referenced above, at such time as the parties mutually agree, which may be completed in different stages for each floor of the Current Leased Premises.

 

5.

Section 28 Right of First Offer/Right of First Refusal shall remain as written with the exception that for all expansion space acquired by Lessee, Lessee shall pay the per RSF rate then in effect on the Leased Premises pursuant to section 1.4 as amended herein at

 

Page 2


 

the time such expansion space is acquired. Any tenant improvement allowance shall be in keeping with Section 26, as amended herein. In the event Lessee requires additional space and Lessor is unable to provide such additional space in the low-rise elevator bank of the TUS Building (floors 4-22), Lessor shall make reasonable efforts to accommodate such requirement elsewhere within the TUS Building, and to the extent Lessee elects to lease such additional space outside the low-rise elevator bank, Lessee shall do so at Market Rent, as described in section 29.4.

 

6. Section 29.2 & 29.3 Extension Term and Rent shall be revised to read as follows;

“For the two additional five year terms commencing January 1, 2018 and January 1, 2023, the base monthly rent shall be 95% of Market Rent as described in Section 29.4”.

 

7. A new Section 39 Option to Reduce the Premises is added as follows:

“To the extent Lessee is not in default under any of the terms and conditions of the Lease (beyond any applicable cure periods), Lessee shall have the right to reduce the Leased Premises in keeping with the following table provided Lessee provides at least twelve months prior written notice to Lessor.

 

Premises

   Square Feet    Notice Date    Effective Date

Level 3 Retail

   2,470 RSF
   12 months

prior notice

   April 1, 2005

or thereafter

Remaining Premises

   25,000 RSF    12 months

prior notice

   January 1, 2008
or January 1, 2010 or
January 1, 2015

To the extent Lessee elects to reduce the Leased Premises as provided for herein, the cumulative total reduction, not including the 2,470 RSF on Level 3 Retail, shall not exceed 25,000 RSF. The minimum reduction on any single effective date in 2008, 2010, or 2015 shall be 10,000 RSF, unless an entire floor is reduced at one time, in which case any subsequent reduction may be less than 10,000 RSF. The RSF that is eliminated from the Lease hereunder (the “reduced space”) shall be located either on non-contiguous floors or on the lowest or highest contiguous floors then occupied by Lessee. Notwithstanding anything to the contrary contained herein, Lessee shall have the right to terminate the Lease as it pertains to the Level 3 Retail at any time on or after April 1, 2005, without being required to terminate the Lease as it pertains to other space in the Building. Lessee shall as of the effective date of any reduction hereunder, pay to Lessor a sum equal to the unamortized transaction costs attributable to and prorated based upon the RSF of the reduced space, if any, including interest at 9% compounded. For purposes of this provision, “unamortized transaction costs” shall mean any tenant improvement allowance and any refurbishment allowance paid under Section 26.1

 

Page 3


as amended herein and any broker commission paid to Washington Partners that is specifically attributable to the reduced space. Lessor and Lessee hereby acknowledge that there is no broker commission being paid to Washington Partners with respect to the Level 3 Retail or the 7 th floor Premises unless and until Lessee makes a commitment to lease such space beyond January 1, 2008, In addition to such unamortized transaction costs, Lessee shall pay to Lessor an additional termination fee in an amount equal to six months rent on the reduced space as of the effective date of the reduction, or such lesser amount of rent due for the remaining term or extension term then in effect; provided, however, that Lessee shall not be required to pay this additional termination fee for any of the 7 th floor Premises.

In the event Lessee requires additional space following any reduction of the Leased Premises, and Lessor has not previously entered into a lease with a third party on the reduced space, Lessee shall be entitled to reoccupy such reduced space, and in such event, Lessor shall not be obligated to fund any tenant improvement allowance, but shall refund the $15 per RSF refurbishment allowance as provided above.

 

8. Lessor agrees that the 33 parking stalls provided in the controlled access area of the One/Two Union Square Garage pursuant to Section 30.1 of the Lease shall be marked with the “HomeStreet Bank” name for the exclusive use of Lessee.

 

9. All other terms and conditions are to remain the same.

 

Lessee:

   Lessor:
HOMESTREET, INC   

UNION SQUARE LIMITED LIABILITY

COMPANY,

a Washington corporation

   a Washington Limited Liability Company
  

By Washington Real Estate Holdings, LLC

its manager.

   By   /s/ Mark Barbieri                                                                                
           Mark Barbieri

By   /s/ Joan Enticknap                                                               

   Its   Senior Vice President

Its   President /COO                                                         

   Date:   5/26/04                                                                                                

Date:   May 19, 2004                                                       

  

 

Page 4


LESSOR’S ACKNOWLEDGEMENT

 

STATE OF WASHINGTON   )   
  )            ss.
COUNTY OF KING   )   

On this 24 th day of May , 2004 , before me personally appeared Mark Barbieri, to me known to be the Senior Vice .President of Washington Real Estate Holdings, LLC the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation and UNION SQUARE LIMITED LIABILITY COMPANY, for the uses and purposes therein mentioned, and on oath stated that he (she) was authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

/s/ Zina D. Wilson                                                         

Notary Public in and for the State of

Washington, residing at Covington, WA

My commission expires 04/01/06.

 

Page 5


LESSEE’S CORPORATE ACKNOWLEDGEMENT

 

STATE OF WASHINGTON   )   
  )            ss.
COUNTY OF KING   )   

On this 19 th day of May , 2004, before me personally appeared Joan Enticknap to me known to be the President COO of HomeStreet, Inc., the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned, and on oath stated that they (he or she) were authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

/s/ Stephanie M. Madden                                                              

(Print name) Stephanie M. Madden                                             

Notary Public in and for the State of Washington,

residing at Mill Creek                                                .

My commission expires: March 20, 2005             .

 

Page 6


EIGHTH AMENDMENT TO

LEASE

 

Lessor:

   UNION SQUARE LIMITED LIABILITY COMPANY

Lessee:

   HOMESTREET, INC.

Premises:

   Commonly referred to as Suite 2000 in the Two Union Square Building as more particularly described in the Lease.

Date of this Amendment: 31 st day of August, 2004

Lessor and Lessee are parties to that certain Office Lease dated March 5, 1992 as amended August 25, 1992, May 6, 1998, June 17, 1998, February 15, 2000, July 30, 2001, March 5, 2002, and May 19, 2004 (as so amended, the “Lease”) and desire to further amend the Lease. The parties mutually agree:

 

1. Section 1.1, Leased Premises is hereby amended to delete that portion of the Leased Premises located at the Third Level Plaza of Two Union Square effective upon the date Lessee vacates the Third Level Plaza (target date is September 17, 2004 (the “Effective Date”).

 

2. Section 1.2, Floor Areas is hereby amended from 93,376 usable square feet; 106,014 rentable square feet to 90,975 usable square feet; 103,544 rentable square feet as of the Effective Date.

 

3. Section 1.2, Floor Areas is hereby amended from 9.411520 percent of the rentable area of the Building to 9.19224 percent as of the Effective Date.

 

4. Section 1.4 Rent is hereby amended as follows:

Commencing on the Effective Date (target date of September 17, 2004) and thereafter on the first day of each calendar month until December 31, 2007, Lessee shall pay base monthly rent of $193,799.85.

Commencing on January 1, 2008 and thereafter on the first day of each calendar month until December 31, 2010, Lessee shall pay base monthly rent of $224,345.33. Such amount is derived from the agreed amount of $26 per rentable square foot, multiplied by the number of rentable square feet (103,544) divided by 12 months.

Commencing on January 1, 2011 and thereafter on the first day of each calendar month until December 31, 2012, Lessee shall pay base monthly rent of $232,974.00. Such amount is derived from the agreed amount of $27 per rentable square foot, multiplied by the number of rentable square feet (103,544) divided by 12 months.


Commencing on January 1, 2013 and thereafter on the first day of each calendar month until December 31, 2014, Lessee shall pay base monthly rent of $241,602.67. Such amount is derived from the agreed amount of $28 per rentable square foot, multiplied by the number of rentable square feet (103,544) divided by 12 months.

Commencing on January 1, 2015 and thereafter on the first day of each calendar month until December 31, 2017, Lessee shall pay base monthly rent of $250,231.33. Such amount is derived from the agreed amount of $29 per rentable square foot, multiplied by the number of rentable square feet (103,544) divided by 12 months.

 

5. For purposes of this reduction in the Leased Premises, Lessor and Lessee acknowledge that in keeping with Paragraph 7, Section 39 of the Seventh Amendment to Lease Option to Reduce the Premises, Lessee has effectively exercised its right with regards to Level 3 Retail prior to the date specified in the Seventh Amendment, and Lessor accepts such early termination of said Premises.

 

6. All other terms and conditions are to remain the same.

 

Lessee:

   Lessor:
HOMESTREET, INC   

UNION SQUARE LIMITED LIABILITY

COMPANY,

a Washington corporation

   a Washington Limited Liability Company
  

By Washington Real Estate Holdings, LLC

its manager.

   By   /s/ Mark Barbieri                                                                                                  
           Mark Barbieri

By   /s/ Joan Enticknap                                                                    

   Its   Senior Vice President

Its   President & COO                                                           

   Date:   9/7/04                                                                                                                    

Date:   September 3, 2005                                                    

  

 

Page 2


LESSOR’S ACKNOWLEDGEMENT

 

STATE OF WASHINGTON   )   
  )            ss.
COUNTY OF KING   )   

On this 7 th day of September , 2004 , before me personally appeared Mark Barbieri, to me known to be the Senior Vice President of Washington Real Estate Holdings, LLC the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation and UNION SQUARE LIMITED LIABILITY COMPANY, for the uses and purposes therein mentioned, and on oath stated that he (she) was authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

/s/ Zina D. Wilson                                                         

Notary Public in and for the State of

Washington, residing at Covington, WA

My commission expires 04/01/06

 

Page 3


LESSEE’S CORPORATE ACKNOWLEDGEMENT

 

STATE OF WASHINGTON   )   
  )            ss.
COUNTY OF KING   )   

On this 3 rd day of September , 2004, before me personally appeared Joan Enticknap , to me known to be the President and COO of HomeStreet Bank , the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned, and on oath stated that they (he or she) were authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

/s/ Stephanie M Madden                                             

(Print name) Stephanie M Madden                          

Notary Public in and for the State of Washington,

residing at Mill Creek                                                  .

My commission expires:   March 20, 2005                 .

 

Page 4


NINTH AMENDMENT TO

LEASE

 

Lessor:

   UNION SQUARE LIMITED LIABILITY COMPANY

Lessee:

   HOMESTREET, INC.

Premises:

   Commonly referred to as Suite 2000 in the Two Union Square Building as more particularly described in the Lease.

Date of this Amendment: 19 th day of April, 2006

Lessor and Lessee are parties to that certain Office Lease dated March 5, 1992 as amended August 25, 1992, May 6, 1998, June 17, 1998, February 15, 2000, July 30, 2001, March 5, 2002, May 19, 2004, and August 31, 2004 (as so amended, the “Lease”) and desire to further amend the Lease. The parties mutually agree:

 

1. Section 1.1, Leased Premises is hereby amended to add room 1723 to the Leased Premises as of the Effective Date.

 

2. Section 1.2, Floor Areas is hereby amended from 90,975 usable square feet; 103,544 rentable square feet to 91,837 usable square feet; 104,573 rentable square feet as of the Effective Date.

 

3. Section 1.2, Floor Areas is hereby amended from 9.19224 percent of the rentable area of the Building to 9.28359 percent as of the Effective Date.

 

4. Section 1.4 Rent is hereby amended as follows:

Commencing on the Effective Date (February 1, 2007) and thereafter on the first day of each calendar month until December 31, 2007, Lessee shall pay base monthly rent of $195,725.80.

Commencing on January 1, 2008 and thereafter on the first day of each calendar month until December 31, 2010, Lessee shall pay base monthly rent of $226,574.83. Such amount is derived from the agreed amount of $26 per rentable square foot, multiplied by the number of rentable square feet (104,573) divided by 12 months.

Commencing on January 1, 2011 and thereafter on the first day of each calendar month until December 31, 2012, Lessee shall pay base monthly rent of $235,289.25. Such amount is derived from the agreed amount of $27 per rentable square foot, multiplied by the number of rentable square feet (104,573) divided by 12 months.


Commencing on January 1, 2013 and thereafter on the first day of each calendar month until December 31, 2014, Lessee shall pay base monthly rent of $244,003.67 Such amount is derived from the agreed amount of $28 per rentable square foot, multiplied by the number of rentable square feet (104,573) divided by 12 months.

Commencing on January 1, 2015 and thereafter on the first day of each calendar month until December 31, 2017, Lessee shall pay base monthly rent of $252,718.08. Such amount is derived from the agreed amount of $29 per rentable square foot, multiplied by the number of rentable square feet (104,573) divided by 12 months.

 

5. In keeping with Section 26 of the Seventh Amendment to Lease, Lessor shall provide Lessee with a tenant improvement allowance of thirty-five ($35.00) dollars per rentable square foot multiplied by 1,029 rentable square feet for improvements to room 1723.

 

6. All other terms and conditions are to remain the same.

 

Lessee:

   Lessor:
HOMESTREET, INC   

UNION SQUARE LIMITED LIABILITY

COMPANY,

a Washington corporation

   a Washington Limited Liability Company
  

By Washington Real Estate Holdings, LLC

its manager.

   By   /s/ Mark Barbieri                                                                                 
           Mark Barbieri

By   /s/ Joan Enticknap                                                                       

   Its   Senior Vice President

Its   President & COO                                                                      

   Date:   4/27/06                                                                                                

Date:   April 20, 2006                                                                      

  

 

Page 2


LESSOR’S ACKNOWLEDGEMENT

 

STATE OF WASHINGTON   )   
  )            ss.
COUNTY OF KING   )   

On this 27 th day of April , 2006 , before me personally appeared Mark Barbieri, to me known to be the Senior Vice President of Washington Real Estate Holdings, LLC the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation and UNION SQUARE LIMITED LIABILITY COMPANY, for the uses and purposes therein mentioned, and on oath stated that he (she) was authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

/s/ Sherri L. Voeltner                                                         

Notary Public in and for the State of

Washington, residing at Renton

My commission expires 01/19/10

 

Page 3


LESSEE’S CORPORATE ACKNOWLEDGEMENT

 

STATE OF WASHINGTON   )   
  )            ss.
COUNTY OF KING   )   

On this 20 th day of April , 2006, before me personally appeared Joan Enticknap , to me known to be the President & COO of, HomeStreet Bank , the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned, and on oath stated that they (he or she) were authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

/s/ Stephanie M. Madden                                                             

(Print name) Stephanie M. Madden                                             

Notary Public in and for the State of Washington,

residing at Mill Creek, WA                                        .

My commission expires: March 30, 2009                 .

 

Page 4


TENTH AMENDMENT TO

LEASE

 

Lessor:

   UNION SQUARE LIMITED LIABILITY COMPANY

Lessee:

   HOMESTREET, INC.

Premises:

   Commonly referred to as Suite 2000 in the Two Union Square Building as more particularly described in the Lease.

Date of this Amendment: July 20, 2006

Lessor and Lessee are parties to that certain Office Lease dated March 5, 1992 as amended August 25, 1992, May 6, 1998, June 17, 1998, February 15, 2000, July 30, 2001, March 5, 2002, May 19, 2004, August 31, 2004, and April 19, 2006 (as so amended, the “Lease”) and desire to further amend the Lease. The parties mutually agree:

 

1. Section 1.1, Leased Premises is hereby amended to add room 1723 to the Leased Premises as of the Effective Date, herein defined as “September 1, 2006”.

 

2. Section 1.2, Floor Areas is hereby amended from 90,975 usable square feet; 103,544 rentable square feet to 91,837 usable square feet; 104,573 rentable square feet as of the Effective Date.

 

3. Section 1.2, Floor Areas is hereby amended from 9.19224 percent of the rentable area of the Building to 9.28359 percent as of the Effective Date.

 

4. Section 1.4 Rent is hereby amended as follows:

Commencing on the Effective Date (September 1, 2006) and thereafter on the first day of each calendar month until December 31, 2007, Lessee shall pay base monthly rent of $195,725.80.

Commencing on January 1, 2008 and thereafter on the first day of each calendar month until December 31, 2010, Lessee shall pay base monthly rent of $226,574.83. Such amount is derived from the agreed amount of $26 per rentable square foot, multiplied by the number of rentable, square feet (104,573) divided by 12 months.

Commencing on January 1, 2011 and thereafter on the first day of each calendar month until December 31, 2012, Lessee shall pay base monthly rent of $235,289.25. Such amount is derived from the agreed amount of $27 per rentable square foot, multiplied by the number of rentable square feet (104,573) divided by 12 months.


Commencing on January 1, 2013 and thereafter on the first day of each calendar month until December 31, 2014, Lessee shall pay base monthly rent of $244,003.67 Such amount is derived from the agreed amount of $28 per rentable square foot, multiplied by the number of rentable square feet (104,573) divided by 12 months.

Commencing on January 1, 2015 and thereafter on the first day of each calendar month until December 31, 2017, Lessee shall pay base monthly rent of $252,718.08. Such amount is derived from the agreed amount of $29 per rentable square foot, multiplied by the number of rentable square feet (104,573) divided by 12 months.

 

5. In keeping with Section 26 of the Seventh Amendment to Lease, Lessor shall provide Lessee with a tenant improvement allowance of thirty-five ($35.00) dollars per rentable square foot multiplied by 1,029 rentable square feet for improvements to room 1723.

 

6. All other terms and conditions are to remain the same.

 

Lessee:

   Lessor:
HOMESTREET, INC   

UNION SQUARE LIMITED LIABILITY

COMPANY,

a Washington corporation

   a Washington Limited Liability Company
  

By Washington Real Estate Holdings, LLC

its manager.

   By   Mark Barbieri                                                                                        
           Mark Barbieri

By   /s/ Joan Enticknap                                                                               

   Its   Executive Vice President

Its   President                                                                                    

   Date:   08/16/06                                                                                             

Date:   08/09/06                                                                               

  

 

Page 2


LESSOR’S ACKNOWLEDGEMENT

 

STATE OF WASHINGTON   )   
  )            ss.
COUNTY OF KING   )   

On this 16 th day of August , 2006 , before me personally appeared Mark Barbieri, to me known to be the Executive Vice President of Washington Real Estate Holdings, LLC the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation and UNION SQUARE LIMITED LIABILITY COMPANY, for the uses and purposes therein mentioned, and on oath stated that he (she) was authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

 

 

/s/ Sherri L. Voeltner

 
 

Notary Public in and for the State of

Washington, residing at Renton

My commission expires 01/19/10

 

 

Page 3


LESSEE’S CORPORATE ACKNOWLEDGEMENT

 

STATE OF WASHINGTON   )   
  )            ss.
COUNTY OF KING   )   

On this 9 th day of August , 2006, before me personally appeared Joan Enticknap , to me known to be the President of HomeStreet, Inc. , the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned, and on oath stated that they (he or she) were authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

/s/ Stephanie M. Madden

(Print name) Stephanie M. Madden

Notary Public in and for the State of Washington,

residing at Mill Creek .

My commission expires: 3/20/09                      .

 

Page 4


LOGO

4 5 6 7 8 9 10 11 12 13 14 15 16

16 17 18 19 20 21 22 23

23 24 25 26 27 28 29 30 31 32 33

33 34 35 36 37

1 2 3 4

Two Union Square

Floor 17


ELEVENTH AMENDMENT TO

LEASE

 

Lessor:

   UNION SQUARE LIMITED LIABILITY COMPANY

Lessee:

   HOMESTREET, INC.

Premises:

   Commonly referred to as Suite 2000 in the Two Union Square Building as more particularly described in the Lease.

Date of this Amendment: December 27, 2006

Lessor and Lessee are parties to that certain Office Lease dated March 5, 1992 as amended August 25, 1992, May 6, 1998, June 17, 1998, February 15, 2000, July 30, 2001, March 5, 2002, May 19, 2004, August 31, 2004, April 19, 2006, and July 20, 2006 (as so amended, the “Lease”) and desire to further amend the Lease. The parties mutually agree:

 

1. Section 1.1 Leased Premises is hereby amended to delete Rooms 701-30, 735-37, and part of Rooms 731 & 734 as of the Effective Date, herein defined as “December 31, 2007”.

 

2. Section 1.2 Floor Areas is hereby amended from 91,837 usable square feet; 104,573 rentable square feet, to 75,858 usable square feet; 86,138 rentable square feet as of the Effective Date.

 

3. Section 1.2 Floor Areas is hereby amended from 9.28359 percent, to 7.64700 percent of the Building as of the Effective Date.

 

4. Section 1.4 Rent is hereby amended as follows:

Commencing on January 1, 2008 and thereafter on the first day of each calendar month until December 31, 2010, Lessee shall pay to Lessor base monthly rent of $186,632.00.

Commencing on January 1, 2011 and thereafter on the first day of each calendar month until December 31, 2012, Lessee shall pay to Lessor base monthly rent of $193,810.00.

Commencing on January 1, 2013 and thereafter on the first day of each calendar month until December 31, 2014, Lessee shall pay to Lessor base monthly rent of $200,989.00.

Commencing on January 1, 2015 and thereafter on the first day of each calendar month until December 31, 2017, Lessee shall pay to Lessor base monthly rent of $208,167.00.


5.

For purposes of this reduction in the Leased Premises, Lessor and Lessee acknowledge that in keeping with Paragraph 7, Section 39 of the Seventh Amendment to Lease Option to Reduce the Premises, Lessee has effectively exercised its right with regards to the 7 th floor Premises, and Lessor accepts such termination of said Premises.

 

6. In keeping with Paragraph 4 Section 26 of the Seventh Amendment to Lease, Tenant Improvement Allowance is revised to replace “106,014 RSF”, with “85,J09RSF”.

 

7. Section 30 Parking is revised to read a total of “53” monthly stalls as of the Effective Date.

 

8. All other terms and conditions are to remain the same.

 

Lessee:

   Lessor:
HOMESTREET, INC   

UNION SQUARE LIMITED LIABILITY

COMPANY,

a Washington corporation

   a Washington Limited Liability Company
  

By Washington Real Estate Holdings, LLC

its manager.

   By /s/ Mark Barbieri                                                                                  
           Mark Barbieri

By   /s/ Bruce W. Williams                                                                                

   Its   Executive Vice President

Its   Chairman                                                                                              

   Date:   1/18/07                                                                                                

Date:   1/8/07                                                                                              

  

 

Page 2


LESSOR’S ACKNOWLEDGEMENT

 

STATE OF WASHINGTON   )   
  )            ss.
COUNTY OF KING   )   

On this 18 th day of January , 2007 , before me personally appeared Mark Barbieri, to me known to be the Executive Vice President of Washington Real Estate Holdings, LLC the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation and UNION SQUARE LIMITED LIABILITY COMPANY, for the uses and purposes therein mentioned, and on oath stated that he (she) was authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

/s/ Sherri L. Voeltner                    

Sherri L. Voeltner

Notary Public in and for the State of

Washington, residing at Renton

My commission expires 01/19/10

 

Page 3


LESSEE’S CORPORATE ACKNOWLEDGEMENT

 

STATE OF WASHINGTON   )   
  )            ss.
COUNTY OF KING   )   

On this 8 th day of January , 2007, before me personally appeared Bruce W. Williams , to me known to be the Chairman of HomeStreet, Inc , the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned, and on oath stated that they (he or she) were authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

/s/ Stephanie M. Madden                                                 

(Print name) Stephanie M. Madden                                

Notary Public in and for the State of Washington,

residing at Mill Creek, WA                                                .

My commission expires: March 20, 2009                 .

 

Page 4


TWELFTH AMENDMENT TO

LEASE

 

Lessor:

   UNION SQUARE LIMITED LIABILITY COMPANY

Lessee:

   HOMESTREET, INC

Premises:

   Commonly referred to as Suite 2000 in the Two Union Square Building as more particularly described in the Lease.

Date of this Amendment. October 1, 2007

Lessor and Lessee are parties to that certain Office Lease dated March 5, 1992 as amended by the First - Eleventh Amendments to Lease (as so amended, the “Lease”), and desire to further amend the Lease. The parties mutually agree:

 

1. Section 1.1 Leased Premises is hereby amended to incorporate Rooms 1701-02, and 1724-37 into the Leased Premises as of the Effective Date, and as shaded in red on the attached Exhibit A.

 

2. Section 1.2 Floor Areas is hereby amended from 75,858 usable square feet; 86,138 rentable square feet, to 82,909 usable square feet; 94,558 rentable square feet as of the Effective Date.

 

3. Section 1.2 Floor Areas is hereby amended from 7.64700 percent to 8.39450 percent ofthe Building as of the Effective Date.

 

4. Section 1.4 Rent is hereby amended as follows:

Commencing on October 1, 2008 herein defined as the “Effective Date”, and thereafter on the first day of each calendar month until December 31, 2010, Lessee shall pay to Lessor base monthly rent of $204,876.00.

Commencing on January 1, 2011 and thereafter on the first day of each calendar month until December 31, 2012, Lessee shall pay to Lessor base monthly rent of $212,755.00

Commencing on January 1, 2013 and thereafter on the first day of each calendar month until December 31, 2014, Lessee shall pay to Lessor base monthly rent of $220,635.00.

Commencing on January 1, 2015 and thereafter on the first day of each calendar month until December 31, 2017, Lessee shall pay to Lessor base monthly rent of $228,515.00.


5. Section 1.5 Base Indices shall remain 2007 for the entire Leased Premises,

 

6. Section 26 Tenant Improvement Allowance; In keeping with the terms of the Lease, Lessor shall provide Lessee with a tenant improvement allowance of thirty-five ($35.00) dollars per rentable square foot on the additional 8,420 rsf, for an additional. Tenant Improvement allowance of $294,700.00.

 

7. Section 30 Parking is revised to read a total of “59” monthly stalls as of the Effective Date.

 

8. Lessor shall pay a real estate fee to Washington Partners, Inc upon the full execution of this amendment.

 

9. Exhibit “A” of the Lease, changed to reflect the revised floor plan, is attached hereto and made a part hereof.

 

10. All other terms and conditions are to remain the same.

 

Lessee:

   Lessor:
HOMESTREET, INC   

UNION SQUARE LIMITED LIABILITY

COMPANY,

a Washington corporation

   a Washington Limited Liability Company
  

By Washington Real Estate Holdings, LLC

its manager.

   By   /s/ Mark Barbieri                                                                                 
           Mark Barbieri

By   /s/ Joan Enticknap                                                                                      

   Its   Executive Vice President

Its   President & COO                                                                                        

   Date:   11/7/07                                                                                                

Date:   11/5/07                                                                                                     

  

 

Page 2


LESSOR’S ACKNOWLEDGEMENT

 

STATE OF WASHINGTON   )   
  )            ss.
COUNTY OF KING   )   

On this 7 th day of November , 2007 before me personally appeared Mark Barbieri, to me known to be the Executive Vice President of Washington Real Estate Holdings, LLC the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation and UNION SQUARE LIMITED LIABILITY COMPANY, for the uses and purposes therein mentioned, and on oath stated that he (she) was authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

/s/ Sherri L Voeltner                                    

Notary Public in and for the State of

Washington, residing at Renton

My commission expires 01/19/10

 

Page 3


LESSEE’S CORPORATE ACKNOWLEDGEMENT

 

STATE OF WASHINGTON   )   
  )            ss.
COUNTY OF KING   )   

On this 5 th day of November , 2007, before me personally appeared Joan Enticknap , to me known to be the President & COO of HomeStreet, Inc. , the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned, and on oath stated that they (he or she) were authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

/s/ Barbara L DeVere                                        

(Print name) Barbara L DeVere

Notary Public in and for the State of Washington,

residing at LYNNWOOD WA .

My commission expires: 10/29/10 .

 

Page 4


LOGO

4 5 6 7 8 9 10 11 12 13 14 15 16

16 17 18 19 20 21 22 23

23 24 25 26 27 28 29 30 31 32 33

33 34 35 36 37

1 2 3 4

Two Union Square

Floor 17


THIRTEENTH AMENDMENT TO

LEASE

 

Lessor:

  

UNION SQUARE LIMITED LIABILITY COMPANY

Lessee:

   HOMESTREET, INC.

Premises:

   Commonly referred to as Suite 2000 in the Two Union Square Building as more particularly described in the Lease.

Date of this Amendment: January 26, 2010

Lessor and Lessee are parties to that certain Office Lease dated March 5, 1992 as amended August 25, 1992, May 6, 1998, June 17, 1998, February 15, 2000, July 30, 2001, March 5, 2002, May 19, 2004, August 31, 2004, April 19, 2006, July 20, 2006, December 27, 2006, and October 1, 2007, (as so amended, the “Lease”), and desire to further amend the Lease. The parties mutually agree:

 

1. Pursuant to Section 4 of the Seventh Amendment Lease, Section 2 of the Eighth Amendment to Lease, Section 5 of the Ninth Amendment to lease, Section 5 of the Tenth Amendment to Lease, Section 6 of the Eleventh Amendment to Lease, and Section 6 of the Twelfth Amendment to Lease, Lessee was entitled to a Tenant Improvement Allowance in the total amount of $1,607,350.00. As of the Effective Date hereof, and as set forth in the attached Exhibit A, Lessee has previously received $310,335.22 of the Tenant Improvement Allowance, so that $1,297,014.78 thereof remains unapplied (the “ Unapplied Allowance ”). The parties have agreed that, notwithstanding anything to the contrary in the Lease, a portion of the Unapplied Allowance in the amount of $625,348.89, as set forth in the attached Exhibit B, shall be applied towards Base Monthly Rent and Additional Rent due under the Lease for the period January 1, 2010, through and including March 31, 2010. The difference between the Unapplied Allowance of $1,297,014.78 and the $625,348.89 portion of the Unapplied Allowance which shall be applied towards Base Monthly Rent and Additional Rent as described herein totaling $671,665.89, (the “Remaining Unapplied Allowance”) shall remain available for Lessee’s use for leasehold improvements to the Leased Premises as originally permitted by the terms and conditions of the Lease and Amendments governing the use of the Tenant Improvement Allowance. Lessee waives any right to receive any portion of the Unapplied Allowance or any tenant Improvements whatsoever except for the $671,665.89 Remaining Unapplied Allowance.


EXHIBIT A

Homestreet Bank

Tenant Improvement Summary

 

Lease Activity Description

   Date
Commence
     TI
Allowance
     USF     RSF     Allowance    

Comments

7th Amend - Renew from 12/31/07 - 12/31/17

     1/1/2008         15.00         94,160        106,014        1,590,210.00      TI allow on RSF, or to the extent Lessee has elected to reduce its Leased Premises

8th Amend - reduce Third Level Plaza

     9/30/2004         15.00         (3,185     (2,470     (37,050.00   Downsize only, no TI allowance. ADJUST $15/rsf

9th/10th Amend - Expand on 17th Flr

     09/01/06         35.00         862        1,029        36,015.00      Expand on 17, this sq ft does not affect $15 TI

12th Amend - Expand on 17th Flr

     10/01/08         35.00         7,051        8,420        294,700.00      Expand on 17, this sq ft does not affect $15 TI

11th Amend - downsize 7th Flr

     1/1/2008         15.00         (15,979     (18,435     (276,525.00   Downsize only, no TI allowance. ADJUST $15/rsf
                                

Total Tenant Improvement Allowance

           82,909        94,558        1,607,350.00     

Tenant Improvement Costs

 

07/2007 - Reimbursement to Homestreet

     181,757.77   

Purchase Furniture from the 30th floor

     17,000.00   

Qtr 1 2009 - Branch Remodel

     89,728.50   

Qtr 4 2009 - 17th Floor

     9,875.92   

Qtr 1 2010 - Branch Signage

     10,973.03   

Qtr 1 2010 - ATM Lighting (estimated)

     1,000.00   
        
     310,335.22   
        

Remaining Funds available as of 1/24/2010

     1,297,014.78   
        


EXHIBIT B

HOMESTREET BANK

T.I. ALLOWANCE APPLIED TO MONTHLY RENT

 

Summary of Rents

      

Retail CAM

   $ 494.66   

Retail AUX

     658.13   

Office/Retail Base Rent

     204,876.00   

Office ESC

     1,979.23   

Office Janitorial

     441.61   
        

Total January 2010

   $ 208,449.63   


2. Section 1.4 Rent is hereby amended as follows:

Commencing on January 1, 2010 and thereafter on the first day of each calendar month until March 31, 2010, Lessee shall pay to Lessor base monthly rent of $0.00.

Commencing on April 1, 2010 and thereafter on the first day of each calendar month until December 31, 2010, Lessee shall pay to Lessor base monthly rent of $204,876.00.

Commencing on January 1, 2011 and thereafter on the first day of each calendar month until December 31, 2012, Lessee shall pay to Lessor base monthly rent of $212,755.00.

Commencing on January 1, 2013 and thereafter on the first day of each calendar month until December 31,2014, Lessee shall pay to Lessor base monthly rent of $220,635.00.

Commencing on January 1, 2015 and thereafter on the first day of each calendar month until December 31, 2017, Lessee shall pay to Lessor base monthly rent of $228,515.00.

 

3. Except as modified herein, the Lease remains unmodified and in full force and effect.

 

Lessee:

   Lessor:
HOMESTREET, INC   

UNION SQUARE LIMITED LIABILITY

COMPANY,

a Washington corporation

   a Washington Limited Liability Company
  

By Washington Real Estate Holdings, LLC

its manager.

   By   /s/ Mark Barbieri                                                                                 
           Mark Barbieri

By   /s/ Joan Enticknap                                                                                              

   Its   Executive Vice President

Its   President & Coo                                                                                                  

   Date:   2/22/10                                                                                                

Date:   2/19/2010                                                                                                           

  

 

Page 2


LESSOR’S ACKNOWLEDGEMENT

 

STATE OF WASHINGTON   )   
  )            ss.
COUNTY OF KING   )   

On this 22 nd , day of February , 2010, before me personally appeared Mark Barbieri, to me known to be the Executive Vice President of Washington Real Estate Holdings, LLC the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation and UNION SQUARE LIMITED LIABILITY COMPANY, for the uses and purposes therein mentioned, and on oath stated that he (she) was authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

/s/ Zina D. Wilson                                                     

Notary Public in and for the State of

Washington, residing at Bothell, WA

My commission expires 01/21/13

 

Page 3


LESSEE’S CORPORATE ACKNOWLEDGEMENT

STATE OF WASHINGTON   )   
  )            ss.
COUNTY OF KING   )   

On this 19 th day of February, 2010, before me personally appeared Joan Enticknap to me known to be the President of HomeStreet Bank, the corporation that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation for the uses and purposes therein mentioned, and on oath stated that they (he or she) were authorized to execute the said instrument and that the seal affixed (if any) is the corporate seal of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

/s/ BARBARA DEVERE                                                                  

(Print name) BARBARA DEVERE                                               

Notary Public in and for the State of Washington,

residing at   LYNNWOOD                                                          .

My commission expires:   10/29/10                                                .

 

Page 4

Exhibit 10.25

LOGO

January 5, 2007

Federal Reserve Bank of San Francisco

Attn: Steve Arbogast, Credit & Risk, MS 830

101 Market Street

San Francisco, CA 94105-1530

Dear Mr. Arbogast:

In consideration of being able to request Advances from and incur Indebtedness to you and in consideration of your making Advances to us, we agree to the provisions of your Operating Circular No. 10, effective October 15, 2006, as amended and supplemented from time to time thereafter (“Circular,” capitalized terms used but not defined herein shall have the meaning specified in the Circular).

Any notices required under the Lending Agreement may be directed to the following department(s):

Finance Department

Attn: Debra L. Johnson

HomeStreet Bank

601 Union Street, Suite 2000

Seattle, WA 98101

 

HomeStreet Bank
Full Legal Name of Borrower
By:   /s/ Debra L. Johnson
  Authorized signature(s)

 

Debra L. Johnson
Name(s)

 

Executive Vice President, Chief Financial Officer
Title(s)

 

HomeStreet Bank   

HOME OFFICE

2000 Two Union Square

601 Union Street

Seattle, WA 98101

  

OFFICE 206-623-3050

TOLL FREE 800-654-1075

www.homestreet.com

  

LOGO


Federal Reserve Banks

Operating Circular No. 10

LENDING

Effective October 15, 2006


FEDERAL RESERVE BANKS

OPERATING CIRCULAR NO. 10

Effective October 15, 2006

LENDING

(Click CTRL + section or page number to go directly to the section)

 

1.0    SCOPE      1   
2.0    DEFINED TERMS      1   
3.0    ADVANCES      5   
4.0    INTEREST      5   
5.0    REPAYMENT OF ADVANCE      5   
6.0    GRANT OF SECURITY INTEREST      6   
7.0    COLLATERAL      6   
8.0    MAINTENANCE OF LENDING DOCUMENTS      9   
9.0    REPRESENTATIONS AND WARRANTIES      10   
10.0    COVENANTS      11   
11.0    WAIVER OF IMMUNITY; SUBMISSION TO JURISDICTION      13   
12.0    REMEDIES UPON DEFAULT      14   
13.0    INDEMNIFICATION      16   
14.0    MISCELLANEOUS      16   
15.0    AMENDMENT      17   
16.0    NOTICE      17   
17.0    TERMINATION      18   
18.0    GOVERNING LAW      19   
19.0    WAIVER OF JURY TRIAL      19   


20.0

   STATUS OF PREVIOUS LENDING AGREEMENT      19   

APPENDIX 1: FINANCING STATEMENT COLLATERAL DESCRIPTION

  

APPENDIX 2: TERMS OF CONTROL AGREEMENT

  

APPENDIX 3: APPLICATION PACKAGE FOR U.S. BORROWERS

  

FORM OF LETTER OF AGREEMENT

  

FORM OF CERTIFICATE

  

FORM OF AUTHORIZING RESOLUTIONS FOR BORROWERS

  

FORM OF OFFICIAL OC-10 AUTHORIZATION LIST

  

APPENDIX 4: APPLICATION PACKAGE FOR BRANCHES OR AGENCIES OF NON-U.S. BORROWERS

  

FORM OF LETTER OF AGREEMENT

  

FORM OF CERTIFICATE

  

FORM OF AUTHORIZING RESOLUTIONS FOR BORROWERS

  

FORM OF OFFICIAL OC-10 AUTHORIZATION LIST

  

FORM OF OPINION OF FOREIGN OUTSIDE COUNSEL

  

FORM OF OPINION OF UNITED STATES OUTSIDE COUNSEL

  

APPENDIX 5: Ancillary Agreements

  

FORM OF AGREEMENT FOR THIRD PARTY CUSTODIAN TO HOLD COLLATERAL

  

FORM OF CORRESPONDENT CREDIT AND PAYMENT AGREEMENT

  

EXHIBIT 1: LETTER OF AGREEMENT TO CORRESPONDENT CREDIT AND PAYMENT AGREEMENT

  

 


CREDIT AND SECURITY TERMS

 

1.0 SCOPE

 

  1.1 This Operating Circular is issued by each Reserve Bank and sets forth the terms under which an entity may, in accordance with the Federal Reserve Act and regulations promulgated thereunder by the Board of Governors of the Federal Reserve System, obtain Advances from, incur Obligations to, or pledge Collateral to a Federal Reserve Bank.

 

2.0 DEFINED TERMS

 

  2.1 The capitalized terms used hereafter in this Operating Circular have the meanings defined below:

Account means a master account at a Reserve Bank, as defined in the Operating Circular No. 1 issued by such Reserve Bank.

Advance means an extension of credit to the Borrower (not including a discount of paper) pursuant to Regulation A, including any renewal or extension thereof.

Advance Repayment Amount means the amount of an Advance, plus all accrued and unpaid interest thereon.

Adverse Claim has the meaning set forth in Section 9.1(d).

Application Package means the Application Package, substantially in the form of Appendix 3 or 4, as appropriate, which the Borrower submitted in connection with its agreement to this Operating Circular.

Bank means the Federal Reserve Bank in whose district the Borrower is located (determined in accordance with 12 C.F.R. Section 204.3(b)), or such other Reserve Bank with which the Borrower has entered into a borrowing relationship under this Operating Circular.

Board of Governors means the Board of Governors of the Federal Reserve System.

Borrower means an entity that incurs an Obligation to the Bank.

Borrower-in-Custody or BIC Arrangement means an arrangement whereby the Bank authorizes a Borrower, or an affiliate of the Borrower, to retain possession of the Collateral, as described in Section 7 of this Operating Circular.

Business Day means any day the Bank is open for conducting all or substantially all its banking functions.

Certificate means the certificate, substantially in the form set forth in the appropriate Application Package, provided to the Bank by the Borrower.

 

Operating Circular No. 10       1
Effective October 15, 2006      


Collateral means:

 

  (i) all the Borrower’s rights, title, and interest in property (wherever located, now owned or hereafter acquired), including, but not limited to, accounts, chattel paper, inventory, equipment, instruments, investment property, general intangibles, documents, deposit accounts, commercial tort claims and, real property that is (a) identified on a Collateral Schedule, (b) identified on the books or records of a Reserve Bank as pledged to, or subject to a security interest in favor of, the Bank or any other Reserve Bank or (c) in the possession or control of, or maintained with, the Bank or any other Reserve Bank including, but not limited to, investment property, but excluding any investment property in any Unrestricted Securities Account maintained at any Reserve Bank that the Borrower may not encumber under applicable law;

 

  (ii) all documents, books and records, including programs, tapes, and related electronic data processing software, evidencing or relating to any or all of the foregoing; and

 

  (iii) to the extent not otherwise included, all proceeds and products of any and all of the foregoing and all supporting obligations given by any person with respect to any of the foregoing, including but not limited to interest, dividends, insurance, rents and refunds.

Collateral Schedule means the written, electronic or other statement(s) listing Collateral in effect at any time. Each statement of Collateral shall be in the form required by the Bank and shall identify the items of Collateral with the specificity required by the Bank. The removal of an item from a statement of Collateral will not be effective and will not affect the Bank’s security interest in the item unless such removal is made in accordance with this Operating Circular and the Bank’s procedures, including prior Bank approval or authorization.

Event of Default means any of the following:

 

  (i) the Borrower fails to repay or satisfy any Obligation when due;

 

  (ii) the Borrower fails to perform or observe any of its obligations or agreements under the Lending Agreement or under any other instrument or agreement delivered or executed in connection with the Lending Agreement or under any other agreement with the Bank or another Reserve Bank;

 

  (iii) any representation or warranty made or deemed to be made by the Borrower under or in connection with the Lending Agreement, or that is contained in any certificate, document or financial or other statement delivered by it or in connection with the Lending Agreement, is inaccurate in any material respect on or as of the date made or deemed made;

 

  (iv) the Insolvency of the Borrower;

 

Operating Circular No. 10       2
Effective October 15, 2006      


  (v) the Lending Agreement or any other agreement delivered or executed in connection with the Lending Agreement ceases, for any reason, to be in full force and effect, or any person so asserts or any security interest or lien created hereby ceases to be enforceable or have the same effect and priority purported to be created hereby;

 

  (vi) the creation of an encumbrance upon Collateral, or placement of a levy, judicial seizure of, or an attachment upon Collateral;

 

  (vii) whenever the Bank deems itself insecure with respect to the financial condition of the Borrower or the Borrower’s ability to perform its Obligations.

FRB Lending Documents has the meaning set forth in Section 8 of this Operating Circular.

Indebtedness means the total of the Borrower’s overdrafts (whether intraday or overnight) in its Account(s) and any penalties and charges thereon.

Insolvency means:

 

  (i) the condition of insolvency;

 

  (ii) that a proceeding relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to adjudicate an entity bankrupt or insolvent or seeking reorganization, adjustment, dissolution, liquidation or other relief with respect to the Borrower or the Borrower’s debt is commenced;

 

  (iii) that an assignment for the benefit of the Borrower’s creditors occurs;

 

  (iv) that a receiver, custodian, conservator, or the like is appointed for the Borrower or for any of its United States or foreign branches or agencies;

 

  (v) that the Borrower has been closed by order of its supervisory authorities, or a public officer has been appointed to take over such entity;

 

  (vi) that the Borrower ceases or refuses to make payments in the ordinary course of business, or admits in a record its inability to pay its debt as they become due;

 

  (vii) the Borrower’s business is suspended, or any party has presented or filed a petition for winding-up or liquidating the Borrower; or

 

  (viii) any other circumstances that evince the Borrower’s inability to pay its debts when due.

 

Operating Circular No. 10       3
Effective October 15, 2006      


Lending Agreement means this Operating Circular, any Collateral Schedule, each document in the Application Package executed or furnished to the Bank by the Borrower, and any other agreement or document executed by the Borrower in connection with this Operating Circular, in each case as the same may be amended, supplemented or otherwise modified from time to time.

Letter of Agreement means the Letter of Agreement, substantially in the form found in Appendix 3 or 4, as appropriate, pursuant to which the Borrower agrees to be bound by the terms of this Operating Circular.

Obligation , whether now existing or hereafter incurred, means:

 

  (i) Advance Repayment Amounts;

 

  (ii) Indebtedness;

 

  (iii) any other liabilities of the Borrower to the Bank or any other Reserve Bank, including without limitation, any service fees, whether due or to become due; and

 

  (iv) any expense the Bank or its designee(s) may incur to:

 

  a. obtain, preserve and/or enforce the Lending Agreement or the Bank’s security interest in Collateral and the Borrower’s Obligations under the Lending Agreement,

 

  b. collect any or all of the foregoing, or

 

  c. assemble, transport, maintain or preserve Collateral (including, without limitation, taxes, assessments, insurance premiums, repairs, reasonable attorneys’ fees, rent, transportation, storage costs, and expenses of sale).

Regulation A means the Board of Governors’ Regulation A, 12 C.F.R. part 201, as amended and supplemented from time to time.

Reserve Bank means any one of the Federal Reserve Banks (including the Bank).

UCC means the Uniform Commercial Code.

Unrestricted Securities Account has the meaning set forth in Operating Circular No. 7.

The following terms are used herein as defined in Articles 8 and 9 of the UCC: account, chattel paper, control, deposit account, documents, equipment, financial assets, financing statement, general intangibles, instruments, inventory, investment property, record, securities account and securities intermediary.

 

Operating Circular No. 10       4
Effective October 15, 2006      


3.0 ADVANCES*

 

  3.1 A request for an Advance shall be made to the Bank in a form and time acceptable to the Bank. An Advance must be secured by Collateral acceptable to the Bank. Upon the Bank’s request, the Borrower shall submit a written application for an Advance. The Bank may also require the Borrower to execute a promissory note and/or additional relevant agreements or documents at any time with respect to an Advance.

 

  3.2 The Bank’s making of an Advance is subject to the terms of the Federal Reserve Act as implemented by Regulation A.

 

  3.3 The Bank’s approval of a request for an Advance shall be evidenced by, and the Advance shall be deemed made at the time of, the Bank’s record of the credit of the amount of the Advance to an Account agreed upon by the Borrower and the Bank.

 

4.0 INTEREST

 

  4.1 The interest rate applicable to an Advance shall be the rate, as from time to time established by the Bank subject to the determination of the Board of Governors, that applies to the particular credit program described under Regulation A under which the Bank made the Advance. Interest on an Advance shall accrue from the day the Advance is credited to the Account and shall be payable at the applicable rate in effect on that day, except that if the interest rate changes while an Advance is outstanding, the new rate shall apply as of the day on which the rate change is effective. Interest shall be computed on the basis of 365 days in a year.

 

  4.2 If all or any portion of an Advance Repayment Amount is not paid when due (whether by acceleration or otherwise), interest on the unpaid portion of the Advance Repayment Amount shall be calculated at a rate 500 basis points higher than the applicable rate then in effect until the unpaid Advance Repayment Amount is paid in full.

 

5.0 REPAYMENT OF ADVANCE

 

  5.1 The Borrower promises to pay an Advance Repayment Amount when due in actually and finally collected funds. An Advance Repayment Amount is immediately due and payable

 

  (a) on demand;

 

  (b) without any demand, notice or other action:

 

 

* Although a Reserve Bank almost always extends credit in the form of an Advance, a Reserve Bank may extend credit by discounting paper that meets the requirements described in the Federal Reserve Act and Regulation A if the Reserve Bank concludes that a discount more effectively would meet the needs of the situation. A loan in the form of a discount would be subject to a separate agreement between the Reserve Bank and the Borrower. Such agreement may be based on this Circular and, if so, may vary or supplement the terms of this Circular as appropriate.

 

 

Operating Circular No. 10       5
Effective October 15, 2006      


  (i) on the due date and time specified by the Bank in writing (provided that if such date falls on a day that is not a Business Day, the due date shall be extended to the next Business Day). If no due date and time is specified, then an Advance Repayment Amount is due 24 hours after the Advance was made (provided that if such time falls on a day that is not a Business Day, the time shall be extended to such time on the next Business Day); or

 

  (ii) upon the occurrence of any Event of Default described in clause (iv), (v) or (vii) of the definition of such term; or

 

  (c) at the Bank’s option, upon the occurrence of any other Event of Default; or

 

  (d) at the Bank’s option, if the Borrower, in whole or in part, is acquired, merged, dissolved, or nationalized, or sells or otherwise disposes of substantially all of its assets, or if the Borrower is taken over in any other way by any other person or entity.

 

  5.2 Operating Circular No. 1 issued by the Reserve Bank maintaining the Account where Indebtedness is incurred governs when such Indebtedness is due and payable; provided, however, that if an Advance Repayment Amount becomes due under Sections 5.1(a), (b)(ii), (c) or (d), all other Obligations shall become due and payable immediately, without any demand, notice, or other action.

 

  5.3 The Borrower waives any right to presentment, notice of dishonor, protest, and any other notice of any kind except as expressly provided for herein.

 

  5.4 The Borrower may prepay an Advance Repayment Amount, in whole or in part, without penalty.

 

  5.5 The Bank or the appropriate Reserve Bank will debit the Borrower’s Account for the Advance Repayment Amount and all other Obligations when due. If the Borrower does not have an Account, the Borrower must make arrangements satisfactory to the Bank for paying the Advance Repayment Amount prior to requesting any Advance, such as making payment through a correspondent.

 

6.0 GRANT OF SECURITY INTEREST

For value received and in consideration of the Bank permitting the Borrower to obtain Advances or incur Indebtedness, the Borrower hereby transfers and assigns to the Bank and grants to the Bank for itself and as agent for each other Reserve Bank to which an Obligation is or becomes owing, a continuing security interest in and lien on the Collateral as collateral security for the timely and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of all Obligations.

 

7.0 COLLATERAL

 

  7.1

The Borrower shall ensure that the Collateral meets the requirements as the Bank may from time to time prescribe and shall deliver, hold, store or otherwise

 

Operating Circular No. 10       6
Effective October 15, 2006      


 

maintain Collateral on such terms and conditions as the Bank may from time to time prescribe. Borrower must keep all Collateral Schedules current and updated in accordance with the Bank’s instructions.

 

  7.2 The Bank may at any time request the Borrower to replace any item of Collateral or to grant a lien and security interest in additional assets of a type and in an amount acceptable to the Bank, and the Borrower shall promptly do so.

 

  7.3 Unless otherwise specified by the Bank in writing, the Borrower shall promptly withdraw from the Collateral Schedule:

 

  (a) any Collateral that has a payment of principal or interest past due, in whole or in part, for more than 30 days (or 60 days past due for mortgage notes, and other types of consumer debt, including student loans);

 

  (b) any Collateral that has been paid in full by the obligor; or

 

  (c) any Collateral if the obligor on such Collateral becomes insolvent, or if a receiver, custodian, or the like is appointed for the obligor.

Prior to such withdrawal, however, the Borrower shall update any relevant Collateral Schedule and pledge substitute Collateral acceptable to the Bank by submitting an updated Collateral Schedule or otherwise pledging such Collateral to the Bank.

 

  7.4 Except as may be the case for book-entry securities held on a Reserve Bank’s books pursuant to Operating Circular No. 7 issued by the Bank, the Bank has no duty to collect any income accruing on Collateral or to preserve any rights relating to Collateral.

 

  7.5 The Borrower hereby:

 

  (a) authorizes the Bank at any time to file or record in any filing office in any jurisdiction which the Bank determines appropriate to perfect the security interests set forth hereunder, financing statements, and any amendments or continuation statements related thereto without the signature of the Borrower therein, that describes the Collateral substantially as set forth on Appendix 1 hereto, and the Borrower shall, promptly at the Bank’s request, provide any additional information required by Article 9 of the UCC, as in effect in any relevant jurisdiction, for the sufficiency or acceptability of any financing statement;

 

  (b) ratifies its authorization for the Bank to have filed any financing statement, including any amendment or continuation statement related thereto, in any jurisdiction, where the same has been filed prior to the date on which the Letter of Agreement is signed by the Borrower;

 

  (c) authorizes the Bank, at any time, to take any and all other actions that may be necessary or, in the Bank’s sole discretion, desirable to obtain, preserve, perfect or enforce the Bank’s security interest in the Collateral;

 

Operating Circular No. 10       7
Effective October 15, 2006      


  (d) authorizes the Bank to endorse or assign as the Borrower’s agent any item of Collateral, to cause Collateral consisting of uncertificated securities to be marked on the books of the securities issuer as pledged to the Bank or its nominee as pledgee, and to inspect Collateral held by the Borrower and copy any relevant records and/or documents.

 

  7.6 If the Bank approves, the Borrower may hold certain Collateral in a BIC Arrangement (“BIC-held Collateral”) subject to the following:*

 

  (a) BIC-held Collateral shall be prominently identified as Pledged to the Bank and subject exclusively to the Bank’s written instructions. At the Bank’s request, the Borrower shall, without delay, prominently and conspicuously affix a legend to items of BIC-held Collateral indicating that such items are subject to a security interest in favor of the Bank.

 

  (b) The Borrower shall mark its records to show that BIC-held Collateral has been pledged to the Bank and is subject exclusively to the Bank’s written instructions. Any computer generated list or report containing BIC-held Collateral must incorporate a legend indicating that such Collateral is pledged to the Bank.

 

  (c) Upon the Bank’s request, the Borrower shall at all times segregate BIC- held Collateral from its own assets or the assets of any other party and shall hold Collateral in such location(s) approved by the Bank. BIC-held Collateral shall not be removed from such location(s) without the prior written approval of the Bank.

 

  (d) The Borrower may withdraw or replace BIC-held Collateral only with the approval of the Bank and on terms acceptable to the Bank.

 

  (e) The Bank may from time to time notify Borrower of additional requirements on BIC-held Collateral. The Borrower’s failure to comply with such requirements shall disqualify the Borrower from participation in the BIC Arrangement.

 

  7.7 With respect to any item of Collateral not delivered or transferred to the Bank or its custodian, including BIC-held Collateral, the Borrower shall hold such item of Collateral in trust for the Bank until the Collateral is delivered or transferred in accordance with the Bank’s instructions. The Borrower bears the risk of loss for any Collateral held in the Borrower’s possession, at any custodian, maintained in an account at a securities intermediary other than a Reserve Bank, or in transit to or from the Bank. The Borrower also bears the risk of any accidental loss or damage to Collateral in the Bank’s possession to the extent the Bank exercised reasonable care.

 

* If Collateral is held by an affiliate of the Borrower, the Borrower must comply with (or compel such affiliate’s compliance with) the provisions in this Operating Circular pertaining to BIC-held Collateral. In addition, such affiliate must execute an Agreement for Third Party Custodian to Hold Collateral, the form of which is in Appendix 5. Finally, the Bank may require the affiliate to complete Collateral Schedules and participate or comply with inspection and certification requirements related to the BIC-held Collateral. For purposes of this Circular, affiliate means a parent, direct or indirect subsidiary of the Borrower or any entity having the same parent or ultimate parent as the Borrower.

 

Operating Circular No. 10       8
Effective October 15, 2006      


  7.8 Unless an Event of Default occurs or the Bank expressly directs otherwise, any proceeds, dividend, interest, rent, proceeds of redemption, and/or any other payment received by the Borrower regarding any Collateral may be retained by the Borrower. If the Bank directs that any of the foregoing be paid to the Bank, the Borrower shall remit those payments, or cause such payments to be remitted, promptly to the Bank and, until receipt by the Bank, such payments are deemed to be held in trust for the Bank.

 

  7.9 The Bank is under no obligation to allow for the withdrawal of any item of Collateral from the pledge to the Bank, or to allow the removal of any item of Collateral from the Collateral Schedule or otherwise release its security interest in any item of Collateral unless:

 

  (a) the Borrower has provided substitute Collateral acceptable to the Bank; or

 

  (b) the Bank has verified, in accordance with its normal customs and procedures, that all Obligations have been unconditionally repaid in full and that the Borrower is not currently in default under another agreement with the Bank or any other Reserve Bank.

 

  7.10 In order to perfect its security interest in property, whether now owned or hereafter acquired, maintained with any other Reserve Bank including, but not limited to, any deposit account, investment property in any Unrestricted Securities Account, and items in the process of collection and their proceeds, but excluding any investment property in any Unrestricted Securities Account maintained at any Reserve Bank that the Borrower may not encumber under applicable law, Bank will enter, or has entered, a control agreement, substantially in the form of Appendix 2, with any other Reserve Bank with respect to any accounts of Borrower maintained at such Reserve Banks. Borrower hereby agrees to and consents to be bound by the terms of any such control agreement. It is understood that any such control agreement creates in favor of the Bank and for the benefit of the other Reserve Banks, a legal, valid, and enforceable security interest, perfected by control, within the meaning of the UCC, in Collateral described in this section. The Bank will not exercise its rights in such accounts under such agreement except upon the occurrence of an Event of Default.

 

  7.11 Unless Bank notifies the Borrower otherwise, the Borrower shall be permitted to Transfer Collateral consisting of securities held in the Borrower’s Unrestricted Securities Account as provided for in Operating Circular No. 7. Securities that the Borrower Transfers shall be free and clear of any security interest of the Bank created hereunder. The term “Transfer” as used in this Section, has the meaning set forth in Operating Circular No. 7.

 

8.0 MAINTENANCE OF LENDING DOCUMENTS

The documents specified below (“FRB Lending Documents”) must be maintained continuously as official records of the Borrower. The documents listed in subparagraph (a) shall at all times be kept together in one place (in the case of a foreign Borrower, at the office of its branch or agency in the Federal Reserve District in which the Borrower may obtain an Advance or incur Indebtedness), while the document listed in

 

Operating Circular No. 10       9
Effective October 15, 2006      


subparagraph (b) may be kept in any accessible and secure location on the Borrower’s premises. The FRB Lending Documents mean:

 

  (a) a copy of the Lending Agreement; and

 

  (b) a current statement of outstanding Advances and Indebtedness.

 

9.0 REPRESENTATIONS AND WARRANTIES

 

  9.1 The Borrower represents and warrants that:

 

  (a) (i) the Borrower has the power and authority, and the legal right, to make, deliver and perform the Lending Agreement and to obtain an Advance or otherwise incur Indebtedness; (ii) the Borrower has taken all necessary organizational action to authorize the execution, delivery and performance of the Lending Agreement and to authorize the obtaining of an Advance on the terms and conditions of the Lending Agreement; (iii) no consent or authorization of, filing with, notice to or other act by or in respect of, any governmental authority or any other person is required in connection with the obtaining of Advances hereunder or with the execution, delivery, performance, validity or enforceability of the Lending Agreement; and (iv) the Lending Agreement has been duly executed and delivered on behalf the Borrower;

 

  (b) the Borrower is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and is not in violation of any laws or regulations in any respect which could have any adverse effect whatsoever upon the validity, performance or enforceability of any of the terms of the Lending Agreement;

 

  (c) the Lending Agreement constitutes a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms;

 

  (d) the Borrower has rights in Collateral sufficient to grant an enforceable security interest to the Bank and its rights in Collateral are free of any assertion of a property right that would adversely affect a Reserve Bank’s right to Collateral, including but not limited to any claim, lien, security interest, encumbrance, preference or priority arrangement or restriction on the transfer or pledge of Collateral (an “Adverse Claim”), except as created by, or otherwise permitted under, the Lending Agreement or by the Bank;

 

  (e) all information set forth on the Certificate is accurate and complete and there has been no change in such information since the date of the Certificate;

 

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Effective October 15, 2006      


  (f) (i) the Lending Agreement is effective to create in favor of the Bank for itself and for the benefit of the other Reserve Banks, if applicable, a legal, valid, and enforceable security interest in the Collateral described in the Lending Agreement and proceeds thereof; (ii) when financing statements are filed in the state filing offices located in the jurisdictions specified on the Certificate, those security interests shall constitute a fully and validly perfected lien on, and security interest in, all rights, title and interest of the Borrower in such Collateral as to which perfection can be obtained by filing, as security for the Obligations, in each case prior and superior in right to any other person (except for liens that arise by operation of law); and (iii) no financing statement or other public notice with respect to all or any part of the Collateral is on file or of record in any public office, except such as have been filed in favor of the Bank pursuant to the Lending Agreement, are permitted by the Lending Agreement, or are otherwise permitted by the Bank;

 

  (g) no statement or information contained in the Lending Agreement or any other document, certificate, or statement furnished by the Borrower to the Bank or any other Reserve Bank for use in connection with the transactions contemplated by the Lending Agreement, on and as of the date when furnished, is untrue as to any material fact or omits any material fact necessary to make the same not misleading, and the representations and warranties in the Lending Agreement are true and correct in all material respects;

 

  (h) the Borrower has evaluated the potential risks and liabilities accruing to the Borrower under applicable Federal and State environmental laws, rules, and regulations and has determined, to the best of the Borrower’s knowledge that under applicable laws, rules, or regulations that impose environmental liability on a creditor or lender or an owner or manager of the real property that secures Collateral, the Borrower does not have and has not assumed any liability of any person thereunder; and

 

  (i) no Event of Default has occurred or is continuing.

 

  9.2 Each time the Borrower requests an Advance, incurs any Indebtedness, or grants a security interest in any Collateral to a Reserve Bank, the Borrower is deemed to make all of the foregoing representations and warranties on and as of the date such Advance or Indebtedness is incurred or security granted. Such representations and warranties shall be true on and as of such date and shall remain true and correct so long as the Lending Agreement remains in effect, any Obligation remains outstanding, or any other amount is owing to the Bank.

 

10.0 COVENANTS

The Borrower covenants that so long as the Lending Agreement remains in effect or any Obligation remains outstanding or any other amount is owing to the Bank:

 

  (a) the Borrower shall provide to the Bank any reports or statements that the Bank requests;

 

Operating Circular No. 10       11
Effective October 15, 2006      


  (b) the Borrower shall permit the Bank or its designee to inspect or copy any documents or evidence in the Borrower’s possession or control relating to Collateral and any Obligation;

 

  (c) except for the security interest herein granted or otherwise permitted hereunder or by the Bank, the Borrower shall have rights in the Collateral free from any Adverse Claim, and shall maintain the security interest created hereby as a perfected security interest with the priority set forth in Section 9.1(f) and shall take all actions necessary or prudent to defend against Adverse Claims;

 

  (d) except as otherwise permitted hereunder or by the Bank, the Borrower shall not (i) sell or otherwise dispose of, or offer to sell or otherwise dispose of, the Collateral or any interest therein, or (ii) pledge, mortgage, or create, or permit the existence of any right of any person in or claim to, the Collateral other than the security interest granted herein;

 

  (e) the Borrower shall pay promptly when due (or before they become delinquent) all taxes, assessments, governmental charges, and levies imposed upon the Collateral or any income or profits therefrom, and any claims of any kind against Collateral;

 

  (f) upon the Bank’s request, the Borrower shall promptly reimburse the Bank for any expense incurred by the Bank with respect to enforcing or administering the Lending Agreement and any item of Collateral, including perfecting or maintaining perfection of the Borrower’s and/or the Bank’s security interest in Collateral, and assembling, transporting, safekeeping, managing, inspecting, or liquidating Collateral, whether Collateral is held by the Bank, its custodian, or the Borrower;

 

  (g) the Borrower shall not perform any act with respect to any Collateral that would impair the Bank’s rights or interests therein, nor will the Borrower fail to perform any act that would reasonably be expected to prevent such impairment or that is necessary to preserve the Bank’s rights;

 

  (h) at the Bank’s request, the Borrower shall promptly execute any agreement or document and take any other actions that the Bank deems necessary or desirable, including but not limited to the execution and delivery of any document the Bank deems necessary to grant, perfect or otherwise protect the Bank’s security interest in any existing or additional Collateral;

 

  (i) the Borrower shall promptly notify the Bank if the Borrower is or is about to become an undercapitalized depository institution or a critically undercapitalized depository institution, as such terms are defined in Regulation A;

 

  (j) the Borrower shall renew or keep in full force and effect its organizational existence or take all reasonable action to maintain all rights, privileges, licenses and franchises necessary or desirable in the normal conduct of its business;

 

Operating Circular No. 10       12
Effective October 15, 2006      


  (k) without providing at least 30 days’ prior written notice to the Bank and submitting an updated Certificate to the Bank, the Borrower shall not cause or permit any of the information provided in the Certificate, including its jurisdiction of organization, to become untrue;

 

  (l) the Borrower shall continuously maintain the FRB Lending Documents in the same manner as it maintains all other official corporate records, and the FRB Lending Documents shall be immediately and routinely available to any examiner authorized to examine the Borrower;

 

  (m) in any BIC Arrangement, the Borrower shall provide for periodic audits of BIC-held Collateral pledged to the Bank, shall notify the Bank immediately of any irregularities discovered during any audits, shall certify periodically, as determined by the Bank, that it is complying with the requirements of the BIC Arrangement, and shall ensure risk ratings assigned to any Collateral subject to Borrower’s internal loan ratings are accurate;

 

  (n) the Borrower shall promptly notify the Bank of the occurrence or impending occurrence of any Event of Default; and

 

  (o) the Borrower shall promptly notify the Bank of any change in applicable law, the regulations or policies of its chartering and/or licensing authority, or its charter, bylaws, or other governing documents, or any legal or regulatory process asserted against the Borrower, that materially affects or may materially affect the Borrower’s authority or ability to lawfully perform its obligations under the Lending Agreement.

 

11.0 WAIVER OF IMMUNITY; SUBMISSION TO JURISDICTION

 

  11.1 If the Borrower or its property is now, or in the future becomes, entitled to any immunity, whether characterized as sovereign or otherwise (including, without limitation, immunity from set-off, from service of process, from jurisdiction of any court or tribunal, from attachment in aid of execution, from attachment prior to the entry of a judgment, or from execution upon a judgment) in any legal proceeding in Federal or State courts in the United States of America, or in the courts of the country where the Borrower is chartered, or in the courts of the country in which the Borrower principally conducts its business, then the Borrower expressly and irrevocably waives, to the maximum extent permitted by law, any such immunity. To the extent the Borrower receives any such entitlement in the future, the Borrower shall promptly notify the Bank of such entitlement.

 

  11.2

The Borrower submits in any legal action or proceeding relating to or arising out of the Lending Agreement, or the conduct of any party with respect therefor or for recognition and enforcement of any judgment in respect thereof, to the nonexclusive general jurisdiction of the Federal District Court sitting where the Bank’s head office is located and any appellate court thereof. In the case of a foreign Borrower, such Borrower also submits to the non-exclusive jurisdiction of the courts of the country where the Borrower is chartered or in which it principally conducts its business over any suit, action or proceeding arising out of or relating to the Lending Agreement. The Borrower agrees that service of process in any

 

Operating Circular No. 10       13
Effective October 15, 2006      


 

such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the address provided in the Letter of Agreement; and agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction. The Borrower irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the venue of any such suit, action, or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in such a court has been brought in an inconvenient forum. The Borrower also agrees that a final judgment in any such suit, action, or proceeding brought in such court shall be conclusive and binding upon the Borrower. The foregoing does not diminish or otherwise affect the Bank’s rights under Section 25B of the Federal Reserve Act, 12 USC § 632.

 

12.0 REMEDIES UPON DEFAULT

 

  12.1 Upon the occurrence of, and at any time during the continuance of, an Event of Default, the Bank may pursue any of the following remedies, separately, successively, or concurrently:

 

  (a) debit the Borrower’s Account, or cause the Borrower’s Account to be debited (in the case of an Account at another Reserve Bank), in an amount up to the Borrower’s unpaid Obligations;

 

  (b) set off any Obligation against any amount owed by the Bank or any other Reserve Bank to the Borrower, whether or not such amount owed is then due and payable;

 

  (c) exercise any right of set-off or banker’s lien provided by applicable law against the Borrower’s property in the possession or control of, or maintained with, the Bank or any other Reserve Bank, including but not limited to items in process of collection and their proceeds and any balance to the credit of the Borrower with a Reserve Bank;

 

  (d) take possession of any Collateral not already in the Bank’s possession, without demand and without legal process. Upon the Bank’s demand, the Borrower shall assemble and make Collateral available to the Bank as the Bank directs. The Borrower grants to the Bank the right, for this purpose to enter into or on any premises where Collateral may be located; and

 

  (e) pursue any other remedy available to collect, enforce, or satisfy any Obligation, including exercising its rights as a secured creditor to collect income on the Collateral, or to sell, assign, transfer, lease or otherwise dispose of Collateral whether or not Collateral is in the Bank’s possession.

 

  12.2 If the Bank exercises its rights in Collateral upon an Event of Default:

 

  (a)

the Bank may sell, assign, transfer, and deliver, at the Bank’s option, all or any part of Collateral at private or public sale, at such prices as the Bank may, in good faith, deem best, without advertisement, and the

 

Operating Circular No. 10       14
Effective October 15, 2006      


 

Borrower waives notice of the time and place of the sale, except any notice that is required by law and may not be waived;

 

  (b) the Bank has no obligation to prepare Collateral for sale, and the Bank may sell Collateral and disclaim any warranties without adversely affecting the commercial reasonableness of the sale;

 

  (c) the Bank has no obligation to collect from any third party or to marshal any assets in favor of the Borrower to satisfy any Obligation; and

 

  (d) the Bank or another Reserve Bank may purchase any or all of Collateral and pay for it by applying the purchase price to reduce amounts owed by the Borrower to the Bank or any other Reserve Bank.

 

  12.3 The Borrower appoints the Bank, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of the Borrower, to endorse, assign, transfer, and deliver Collateral to any party, and to take any action deemed necessary or advisable by the Bank either to protect the Bank’s interests or exercise its rights under the Lending Agreement, including taking any action to perfect or maintain the Bank’s security interest (including but not limited to recording an assignment of a mortgage or filing a financing statement). This power of attorney is coupled with an interest and as such is irrevocable and full power of substitution is granted to the assignee or holder. As attorney-in-fact, the Bank may take any lawful action to collect all sums due in connection with Collateral, the Bank may release any Collateral, instruments or agreements securing or evidencing the Obligations as fully as the Borrower could do if acting for itself, and the Bank may take any action set forth in Section 7.5, but the Bank has no obligation to take any such actions or any other action in respect of the Collateral.

 

  12.4 The proceeds realized by the Bank upon selling or disposing of Collateral, to the extent actually received in cash by the Bank or another Reserve Bank, will be applied toward satisfaction of the Obligations. The Bank shall apply such proceeds first to any fees, other charges, penalties, indemnities, and costs and expenses of, collection, or realizing on interests in Collateral (including reasonable attorneys’ fees), next to accrued but unpaid interest, and last to the unpaid principal balance. The Bank will account to the Borrower for any surplus amount realized upon such sale or other disposition, and the Borrower shall remain liable for any deficiency.

 

  12.5 No delay or failure by the Bank to exercise any right or remedy accruing upon an Event of Default shall impair any right or remedy, waive any default or operate as an acquiescence to the Event of Default, or affect any subsequent Event of Default of the same or of a different nature.

 

  12.6 On complying with the provisions of the Lending Agreement and applicable law, the Bank is fully discharged from any liability or responsibility to any person regarding Collateral.

 

Operating Circular No. 10       15
Effective October 15, 2006      


13.0 INDEMNIFICATION

 

  13.1 The Borrower shall indemnify the Bank and its officers, directors, employees and agents (each, an “Indemnified Party”) for any loss, claim, damage, liability, and expense (including, without limitation, reasonable attorneys’ fees, court costs and expenses of litigation) incurred by an Indemnified Party in the course of or arising out of the performance of the Lending Agreement, any action related to Collateral, or any action to which an Indemnified Party may become subject in connection with the Bank’s exercise, enforcement or preservation of any right or remedy granted to it under the Lending Agreement, except to the extent that such loss, claim, damage, liability, or expense results, as determined by a court, from the Bank’s gross negligence or willful misconduct.

 

  13.2 The Bank will give the Borrower written notice of any claim that the Bank or any other person may have under this indemnity. The Borrower is not liable for any claim that is compromised or settled by the Bank or such persons without the Borrower’s prior written consent, provided that the Borrower responded promptly and in the Bank’s judgment, adequately, to the Bank’s notice of such claim. This indemnity remains an obligation of the Borrower notwithstanding termination of the Lending Agreement, and is binding on the Borrower’s successors and assigns. Upon written demand from the Bank, the Borrower shall pay promptly amounts owed under this indemnity, free and clear of any right of offset, counterclaim or other deduction, and the Bank’s reasonable determination of amounts owing hereunder is binding. If not promptly paid by the Borrower, such obligation becomes an Obligation secured under the Lending Agreement.

 

14.0 MISCELLANEOUS

 

  14.1 The Bank is not obligated by the Lending Agreement or otherwise to make, increase, renew, or extend any Advance to the Borrower.

 

  14.2 The amount of any Advance Repayment Amount and/or Obligation reflected on the books and records of a Reserve Bank is presumptive evidence of the amounts due and owing by the Borrower to such Reserve Bank.

 

  14.3 The Borrower’s obligations under the Lending Agreement shall be performed by it at its own cost and expense.

 

  14.4 Unless expressly agreed otherwise by the Bank, the time zone of the Bank’s head office shall be used to determine any deadline hereunder, including the time an Advance Repayment Amount is due and payable.

 

  14.5 The Bank may record telephone communications between the Bank and the Borrower and such recordings may be submitted in evidence to any court or in any proceeding for the purpose of establishing any matters pertinent to the Lending Agreement.

 

  14.6 The Bank may rely on any record used by the Borrower to endorse or pledge Collateral to the Bank.

 

Operating Circular No. 10       16
Effective October 15, 2006      


  14.7 The Bank’s rights and remedies under the Lending Agreement are in addition to any others agreed to by the Borrower or that may exist at law or in equity.

 

  14.8 Any provision of the Lending Agreement that is unenforceable or invalid under any law in any jurisdiction is ineffective to the extent of such unenforceability or invalidity without affecting the enforceability or validity of any other provision, and any such unenforceability or invalidity shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

  14.9 The Lending Agreement is binding on the receivers, administrators, permitted assignees and successors, and legal representatives of the Borrower and inures to the benefit of the Bank, its assignees and successors.

 

  14.10 The Bank may sell, transfer, assign or participate to any other Reserve Bank(s) any or all of its interest in repayment of any Obligation and may purchase any Obligation from any other Reserve Bank. The Borrower may not assign its rights or obligations hereunder.

 

  14.11 The Bank is not required to provide a written advice to the Borrower for any Advance or Advance Repayment Amount.

 

  14.12 The Bank has no liability for acting in reliance upon any communication (including a fax, telex, electronic communication, or similar communication) reasonably believed by the Bank to be genuine or to be sent by an individual acting on behalf of the Borrower.

 

  14.13 The Section headings used herein are for convenience only and are not to affect the construction hereof or be taken into consideration in the construction hereof.

 

15.0 AMENDMENT

The Bank, in its sole discretion, may amend the Lending Agreement without prior notice at any time. The Bank shall notify the Borrower of any such amendment and, thereafter, any pledge of Collateral, request for any Advance or incurrence of any other Obligation shall constitute the Borrower’s agreement to such amendment as of the effective date of such amendment. An amendment does not modify, except for a change in interest rate or other charges, the terms of an outstanding Advance.

 

16.0 NOTICE

 

  16.1 Any notice or other communication in respect of this Agreement may be given in any manner set forth below to the addresses or numbers or in accordance with the e-mail or electronic messaging system details provided in or pursuant to this Agreement with respect to the receiving party (the “recipient”) and will be deemed effective as indicated:

 

  (a) if in writing and delivered in person or by courier, on the date it is delivered;

 

  (b)

if sent by facsimile transmission, on the date that transmission is received in legible form (it being agreed that the burden of proving receipt will

 

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Effective October 15, 2006      


 

be on the sender and will not be met by a transmission report generated by the sender’s facsimile machine);

 

  (c) if sent by certified or registered mail (airmail, if overseas) or the equivalent (return receipt requested), on the date that mail is delivered or its delivery is attempted;

 

  (d) if sent by electronic messaging system, on the date that electronic message is received;

 

  (e) if sent by e-mail, on the date that e-mail is delivered; or

 

  (f) if by telephone or other oral communication, on the date that oral communication occurred, provided that such oral communication either is confirmed promptly in writing by at least one of the methods specified in (a) to (e) above or is recorded,

unless the date of the delivery (or attempted delivery), the receipt or the occurrence, as applicable, is not a Business Day or that communication is delivered (or attempted), received or shall have occurred, as applicable, after the close of business on a Business Day, in which case that communication shall be deemed given and effective on the first following day that is a Business Day.

 

  16.2 If sent to the Borrower, the notice must be addressed as indicated by the Borrower in the Letter of Agreement, or as otherwise specified by the Borrower in a record. If sent to the Bank, the notice must be addressed to the credit function at the Bank’s head office or as otherwise specified by the Bank.

 

17.0 TERMINATION

 

  17.1 The Borrower may terminate its consent to be bound by the Lending Agreement by giving written notice to the credit function at the Bank’s head office or as otherwise specified by the Bank, so long as no Advance is then outstanding.* Notice of termination does not release the Borrower or affect the Bank’s rights, remedies, powers, security interests or liens against Collateral in existence prior to the Bank’s receipt of the notice, nor does notice of termination affect any provision of the Lending Agreement which by its terms survives termination of the Lending Agreement.

 

  17.2 Upon termination, the Bank may retain Collateral until the Bank has had a reasonable opportunity to verify, in accordance with its normal customs and procedures, that all of the Borrower’s Obligations, contingent or otherwise, to the Bank or any other Reserve Bank have been fully satisfied and discharged.

 

* Collateral arrangements, including arrangements with securities intermediaries, such as Euroclear or Clearstream, and third-party custody and Borrower-in-Custody arrangements may have their own termination provisions.

 

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Effective October 15, 2006      


18.0 GOVERNING LAW

 

  18.1 The Lending Agreement, including any Advance or any other transaction entered into pursuant thereto, is governed by the law of the State in which the Bank’s head office is located. The Lending Agreement is a security agreement for purposes of the UCC, as in effect in any relevant jurisdiction, and other applicable law.

 

19.0 WAIVER OF JURY TRIAL

THE BORROWER AND THE BANK EACH HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, COUNTERCLAIM, OR CROSS CLAIM ARISING IN CONNECTION WITH, OUT OF, OR OTHERWISE RELATING TO THE LENDING AGREEMENT, THE COLLATERAL, OR ANY TRANSACTION OR AGREEMENT ARISING THEREFROM OR RELATED THERETO.

 

20.0 STATUS OF PREVIOUS LENDING AGREEMENT

This Operating Circular amends and restates the Bank’s Operating Circular governing Lending dated January 2, 1998.

 

Operating Circular No. 10       19
Effective October 15, 2006      


APPENDIX 1: FINANCING STATEMENT COLLATERAL DESCRIPTION

All accounts, chattel paper, inventory, equipment, instruments, investment property, general intangibles, documents, and all assets, now owned or hereafter acquired, that are identified, from time to time, by Debtor to Secured Party in writing, by electronic means (including by CD-ROM) or by any other means agreed by the parties, as collateral securing the obligations of Debtor to Secured Party under a written agreement between the parties, and all proceeds thereof; and all collateral, guarantees, letters of credit, surety bonds and other supporting obligations pertaining to the foregoing, and all proceeds thereof.

 

Appendix 1

to Operating Circular No. 10


APPENDIX 2: TERMS OF CONTROL AGREEMENT

Reference is made to Operating Circular No. 10 as issued by each of the Federal Reserve Banks, as the same may be amended, supplemented or otherwise modified from time to time (“OC-10”; capitalized terms used but not defined herein have the meaning assigned them in OC-10).

Whereas, by agreeing to OC-10, each Borrower has given the Federal Reserve Bank with which it has agreed to OC-10 (an “OC-10 Reserve Bank”), for itself and as agent for each other Federal Reserve Bank, a security interest in property, whether now owned or hereafter acquired, maintained with any other Federal Reserve Bank (an “Account Maintaining Reserve Bank”) including, but not limited to, any deposit account, investment property in any securities account, and items in the process of collection and their proceeds (but excluding any investment property in any Unrestricted Securities Account maintained at any Federal Reserve Bank that the Borrower may not encumber under applicable law) (each an “Account”);

Whereas each OC-10 Reserve Bank would like to perfect its security interest in each Account now or hereafter maintained at any Account Maintaining Reserve Bank by control, as such term is used in Articles 8 and 9 of the Uniform Commercial Code in effect in the relevant jurisdictions; and

Whereas, by agreeing to OC-10, each Borrower has agreed to and consented to be bound to the terms of this Control Agreement;

Now, therefore, each Account Maintaining Reserve Bank agrees with each OC-10 Reserve Bank, for itself and as agent for each other Federal Reserve Bank, that with respect to any Borrower maintaining an Account at such Account Maintaining Reserve Bank, it will follow the instructions of an OC-10 Reserve Bank as to the withdrawal or disposition of funds or securities from time to time credited to any such Account, or as to any other matters pertaining to such Account without further consent or instruction from Borrower, subject only to the interest that the Account Maintaining Reserve Bank may also have in such Account.

This Agreement is governed by the law of the State in which the Account Maintaining Reserve Bank’s head office is located.

 

FEDERAL RESERVE BANK OF ATLANTA     FEDERAL RESERVE BANK OF MINNEAPOLIS
By:  

 

    By:  

 

Name:       Name:  
Title:       Title:  
Date:       Date:  
FEDERAL RESERVE BANK OF BOSTON     FEDERAL RESERVE BANK OF NEW YORK
By:  

 

    By:  

 

Name:       Name:  
Title:       Title:  
Date:       Date:  

 

Appendix 2

to Operating Circular No. 10


FEDERAL RESERVE BANK OF CHICAGO     FEDERAL RESERVE BANK OF PHILADELPHIA
By:  

 

    By:  

 

Name:       Name:  
Title:       Title:  
Date:       Date:  
FEDERAL RESERVE BANK OF CLEVELAND     FEDERAL RESERVE BANK OF RICHMOND
By:  

 

    By:  

 

Name:       Name:  
Title:       Title:  
Date:       Date:  
FEDERAL RESERVE BANK OF DALLAS     FEDERAL RESERVE BANK OF SAN FRANCISCO
By:  

 

    By:  

 

Name:       Name:  
Title:       Title:  
Date:       Date:  
FEDERAL RESERVE BANK OF KANSAS CITY     FEDERAL RESERVE BANK OF ST. LOUIS
By:  

 

    By:  

 

Name:       Name:  
Title:       Title:  
Date:       Date:  

 

Appendix 2

to Operating Circular No. 10


APPENDIX 3: APPLICATION PACKAGE FOR U.S. BORROWERS

U.S. Borrowers desiring capacity to request to borrow funds from their local Federal Reserve Bank should submit the following documents, forms of which are included in this appendix:

Letter of Agreement

Certificate

Authorizing Resolutions

Official OC-10 Authorization List

Before submitting such documentation, a Borrower should consult with its Reserve Bank for any special instructions.

 

Appendix 3

to Operating Circular No. 10


FORM OF LETTER OF AGREEMENT

[Letterhead of the Borrower]

Date:                     

Federal Reserve Bank of                     

Address

City, State, Zip

Attention:

In consideration of being able to request Advances from and incur Indebtedness to you and in consideration of your making Advances to us we agree to the provisions of your Operating Circular No. 10, effective October 15, 2006, as amended and supplemented from time to time thereafter (“Circular;” capitalized terms used but not defined herein shall have the meaning specified in the Circular).

[Enclosed are (1) certified copies of the Certificate, (2) certified copies of the resolutions that you requested and (3) documents(s) containing the name, title, and signature of those persons authorized to request Advances from and to pledge our assets to you.] 1

Any notices required under the Lending Agreement may be directed to the following department(s): [list department(s) and address (es)].

 

 

Full Legal Name of Borrower
By:  

2

  Authorized signature(s)

 

Name(s)

 

Title(s)

 

1  

Each Borrower should contact the Bank for instructions as to whether this paragraph and the referenced documents, forms of which are provided as part of this Appendix 3, must be submitted.

2  

The signatory or signatories should be authorized to sign documents on behalf of the Borrower as provided in the Authorizing Resolutions for Borrowers required by OC-10.

 

Appendix 3

to Operating Circular No. 10


SCHEDULE A

To Letter of Agreement

FORM OF CERTIFICATE 1

 

        The undersigned, the and of  

 

  and  

 

  of
  (Title)     (Title)  

                                  (the “Borrower”) hereby certifies, with reference to Operating Circular

(Name of Borrower)

No. 10, effective as of October 15, 2006, as amended or supplemented from time to time thereafter (“OC-10”; terms used but not defined herein have the meaning specified therein), as agreed to by the Borrower by Letter of Agreement dated              ,          to the

(Date of Letter of Agreement)

Bank as follows:

 

  (a) attached hereto are true, correct and complete, as of the date of this Certificate, copies of the official document that specifies the official name or names of the Borrower in its jurisdiction of organization (“Organizational Document”).

 

  (b) The information listed below is true and correct as of the date of this certificate:

 

  1. Borrower’s current mailing address is:

 

  2.

Borrower’s jurisdiction of organization is 2 :

 

  3. Borrower’s Organizational number is (indicate n/a if not applicable):

 

  4. Borrower’s ABA number is:

IN WITNESS WHEREOF, the undersigned has signed this Certificate on              , 2      .

 

3

Name:

Title:

4

Name:

Title:

 

1  

Borrowers that have previously provided the documents and information requested in this Certificate need only certify that the previously provided documents and information have not changed.

2  

Borrowers operating under a Federal charter (e.g., national banks or Federal savings banks or associations) (see 12 U.S.C. §§ 22 and 1464(a), and 12 C.F.R. § 552.3), please specify the State of the Borrower’s main office or home office.

3  

One signatory should be someone authorized to sign documents on behalf of the Borrower as provided in the Authorizing Resolutions for Borrowers required by OC-10.

4  

The other signatory should be in-house or outside counsel to the Borrower.

 

Appendix 3

to Operating Circular No. 10


FORM OF AUTHORIZING RESOLUTIONS FOR BORROWERS

As evidenced by my signature below, I certify that the following are correct and complete copies of the resolutions duly adopted on

                      

  at a meeting 5 of                                                                                  
        (Date)  

(Type of governing body, e.g. board of directors)

of the  

 

  (“Borrower”), a  

                                                                                   

 
      (Official name of the Borrower)  

(Commercial bank, mutual savings bank, savings bank and loan association, credit union, or other charter type)

duly established and operating under the laws of                                                               , with its head office located at                                                               in accordance with applicable law and the Borrower’s chartering documents. I also certify that the resolutions have not been modified, remain in effect, are not in conflict with any provisions of the Borrower’s certificate of incorporation, bylaws, or chartering and/or licensing statutes or requirements, and are reflected in the minutes of the meeting at which these resolutions were approved:

 

1. RESOLVED, that the Borrower is authorized to request advance(s) from, incur indebtedness, including overdrafts, to and pledge and grant a security interest in the Borrower’s property, whether now owned or hereafter acquired, to a Federal Reserve Bank.

 

2. RESOLVED, that the persons with the following titles:

 

 

(Exact titles of authorized persons)

 

and each of their successors in office, any  

 

  of whom  

 

  authorized to
  (one/two)       (is/are)  

(1) take each of the actions listed in paragraphs (a)-(e) immediately below and (2) send the names, titles, and signatures of individuals authorized to take such actions in the name and on behalf of the Borrower: 6

 

  (a) to borrow money from a Federal Reserve Bank on the terms and security that such Federal Reserve Bank requires;

 

  (b) to discount, rediscount, or sell (with or without the Borrower’s agreement to repurchase) and, for any of those purposes, to endorse and assign notes, drafts, bills of exchange, acceptances, other bills receivable, evidences of indebtedness, and securities, now or hereafter acquired by the Borrower;

 

  (c) to make, execute, and deliver any application, note, agreement, certificate, power of attorney, and any other document that any Federal Reserve Bank requires in connection with any transaction authorized by this resolution;

 

  (d) to grant, assign, pledge, and transfer to any Federal Reserve Bank security interests in any or all property of the Borrower, whether now owned or hereafter acquired, and to endorse, assign, deliver, deposit, and/or pledge any of such property to any Federal Reserve Bank as collateral to secure payment or performance of any obligation of the Borrower to a Federal Reserve Bank; and

 

  (e) to do any and all other acts and things that may be necessary or incidental to any transaction authorized by the relevant resolution, or that may be designed or intended to carry out the purpose of such resolution.

 

3. RESOLVED, that a Federal Reserve Bank making an extension of credit to the Borrower is appointed as the Borrower’s attorney-in-fact for it and in its place and stead, to endorse, assign, transfer and sell, set over and deliver collateral pledged to such Federal Reserve Bank, and to take any other action deemed necessary or advisable by the Federal Reserve Bank to exercise its rights with respect to any advance or indebtedness owed by the Borrower, in its capacity as secured party, including but not limited to accepting and endorsing payments on loans, preparing and/or filing of any documents necessary to perfect, protect, preserve, or release the interest of the Federal Reserve Bank or the Borrower in such collateral, or compromising disputes or handling insurance issues related to such collateral. The power of attorney is coupled with an interest and as such is irrevocable, and full power of substitution is granted to the

 

5   The language of this certification should be modified if the resolutions were adopted by written consent or otherwise.
6   If certain persons are authorized to undertake only some of these activities, e.g., to borrow, but not to pledge on behalf of the Borrower, this resolution should be split to so specifically identify who is authorized to undertake which activit(y)(ies).

 

Appendix 3

to Operating Circular No. 10


 

assignee or holder. The Borrower ratifies any and all action authorized herein and taken by any such Federal Reserve Bank as the Borrower’s attorney-in-fact. The rights, powers, and authority of the attorney-in-fact to perform any and all act(s) whatsoever necessary remains in full force and effect and binds the Borrower, its legal representatives, successors, and assigns until all indebtedness of the Borrower to any such Federal Reserve Bank has been fully satisfied and discharged.

 

4. RESOLVED, that we approve and consent to be bound by the provisions of the Federal Reserve Bank of                      ’s Operating Circular No 10, effective October 15, 2006, as amended and supplemented from time to time thereafter (“OC-10”).

 

5. RESOLVED, that the Borrower is authorized and approved to use any record (as such term is used in OC-10) to endorse or pledge to a Reserve Bank the notes and other obligations offered as collateral to secure payment or performance of any obligations of the Borrower to a Reserve Bank. The record will have the full force and effect of a manual endorsement.

 

6. RESOLVED, that these resolutions and the powers and authorizations granted or confirmed by them continue in effect until written notice of revocation is received by each Reserve Bank that has relied or is relying on such resolutions and the Borrower shall continue to be bound with respect to any outstanding obligations and pledges to any Reserve Bank at the time the notice of revocation is received by such Reserve Bank.

 

7. RESOLVED, that a duly certified copy of these resolutions be furnished to each Reserve Bank to which the Borrower applies for an advance or has an account.

IN WITNESS WHEREOF, I have hereunto subscribed my name.

 

 

Signature of certifying official 7

 

Name and Title

 

Date

 

7  

The certifying official must be the secretary of the Borrower or another person authorized to certify the statements in this document and, in any case, may not be a person authorized in Paragraph 2.

 

Appendix 3

to Operating Circular No. 10


FORM OF OFFICIAL OC-10 AUTHORIZATION LIST

 

Routing (ABA) No.                                               

   This supersedes our previous Official OC-10 Authorization List:  

Page      of         

   (circle:) YES or NO  
   If neither is circled, previous list will also remain in effect.  

Name of Borrower:

   Date:           

Street Address:

             Telephone:           

To the Federal Reserve Banks : Below are the names, titles and signatures of the individuals authorized to pledge collateral to/ request to borrow money from the Federal Reserve Banks on behalf of the Borrower identified above.

 

Name and Title (printed):

   Telephone No. and E-Mail
Address:
   Signature:    Borrow 1    Pledge 1
                     
                     
                     

Authorizing Officer (must be identified by title in Borrower’s Authorizing Resolutions):

 

Signature:                                                                                

   State of                                                                   )
   County of                                                               )

                                                                                                  

   Subscribed and sworn to before me on                  ,

(Printed Name and Title)

   20        , by                                                                 .
  

                                                                                                  

  

                                                                                  

(Telephone)

   Notary Public
  

                                                                                                  

   (Notary Seal)

(E-Mail Address)

  
Secretary’s Certification:   
  

I,                                                       , Secretary (or Assistant

   State of                                                                   )

Secretary) of the above Borrower do hereby certify that

   County of                                                               )

                                                                  is a

   Subscribed and sworn to before me on                  ,

                                              of such Borrower.

   20          , by                                                               .
  

Signature:                                                                      

  

                                                                                  

   Notary Public

                                                                                        

  

(Printed Name and Title)

   (Notary Seal)

 

1  

Check as appropriate. For instance, check both if authorized to pledge and to make borrowing requests on behalf of the borrower.

Appendix 3

to Operating Circular No. 10


APPENDIX 4: APPLICATION PACKAGE FOR BRANCHES OR AGENCIES OF

NON-U.S. BORROWERS

Non-U.S. Borrowers desiring capacity to request to borrow funds from their local Federal Reserve Bank should submit the following documents, forms of which are included in this appendix:

Letter of Agreement

Certificate

Authorizing Resolutions

Official OC-10 Authorization List

Legal Opinion of Foreign Outside Counsel

Legal Opinion of United States Outside Counsel

Before submitting such documentation, a Borrower should consult with its Reserve Bank for any special instructions.

 

Appendix 4

to Operating Circular No. 10


FORM OF LETTER OF AGREEMENT

[Letterhead of the Borrower]

Date:                     

Federal Reserve Bank of                     

Address

City, State, Zip

Attention:

In consideration of being able to request Advances from and incur Indebtedness to you and in consideration of your making Advances to us through our branch/agency located in                      1 and/or allowing us to incur Indebtedness,                      2 as a whole (and not merely its offices in the United States of America) agrees to the provisions of your Operating Circular No. 10, effective October 15, 2006, as amended and supplemented from time to time thereafter (“Circular;” capitalized terms used but not defined herein shall have the meaning specified in the Circular).

[Enclosed are (1) certified copies of the Certificate, (2) certified copies of the resolutions that you requested and (3) documents(s) containing the name, title, and signature of those persons authorized to request Advances from and to pledge our assets to you.] 3

Any notices required under the Lending Agreement may be directed to the following department(s): [list department(s) and address (es)].

 

 

Full Legal Name of Borrower 2
By:  

4

  Authorized signature(s)

 

Name(s)

 

Title(s)

 

1  

Specify the branch or agency through which Advances will be requested.

2  

Specify the name of the institution (not the branch or agency).

3  

Each Borrower should contact the Bank for instructions as to whether this paragraph and the referenced documents, forms of which are provided as part of this Appendix 4, must be submitted.

4

The signatory or signatories should be authorized to sign documents on behalf of the Borrower as provided in the Authorizing Resolutions for Borrowers required by OC-10.

 

Appendix 4

to Operating Circular No. 10


FORM OF CERTIFICATE 1

 

        The undersigned, the   

 

   and   

 

   of
   (Title)       (Title)   

 

   (the “Borrower”) hereby certifies, with reference to Operating Circular
(Name of Borrower)   

No. 10, effective as of October 15, 2006, as amended or supplemented from time to time thereafter (“OC- IO”; terms used but not defined herein have the meaning specified therein), as agreed to by the Borrower by Letter of Agreement

dated                      ,                      to the Bank as follows:

(Date of Letter of Agreement)

 

  (a) attached hereto are true, correct and complete, as of the date of this Certificate, copies of (1) the official document that specifies the official name or names of the Borrower in its jurisdiction of organization (“Organizational Document”) and (2) the official filing in each State office in the United States in which the Borrower is doing business that authorizes the Borrower to do business in that State.

 

  (b) The information listed below is true and correct as of the date of this certificate:

 

  5. Borrower’s current mailing address is:

 

  6.

Borrower’s jurisdiction of organization is 2 :

 

  7. Borrower’s Organizational number is (indicate n/a if not applicable):

 

  8. Borrower’s ABA number, if any, is:

 

  (c) [Check one]:

 

  ¨ Borrower’s name as it appears in the Organizational Document is in Standard Roman,

 

  ¨ Borrower’s name as it appears in the Organizational Document is not in Standard Roman, and the government of Borrower’s home country has official rules for transliterating words into Standard Roman. Borrower’s name, transliterated according to such rules into Standard Roman is                                          .

(Insert official transliterated name)                                                                     

 

1  

Borrowers that have previously provided the documents and information requested in this Certificates need only certify that the previously provided documents and information have not changed.

2  

Please specify the home State and State of the branch/agency location, as well. The Bank may file financing statements in the state filing office of each such jurisdiction, as well as in the filing office in Washington, D.C.

 

Appendix 4

to Operating Circular No. 10


  ¨ Borrower’s name as it appears in the Organizational Document is not in Standard Roman, and the government of Borrower’s home country does not have official rules for transliterating words into Standard Roman. Borrower’s preferred transliteration of its name into Standard Roman is                                                               .

                                                                     (Insert preferred transliterated name)

IN WITNESS WHEREOF, the undersigned has signed this Certificate on              , 2      .

 

 

  3
Name:  
Title:  

 

  4
Name:  
Title:  

 

3  

One signatory should be someone authorized to sign documents on behalf of the Borrower as provided in the Authorizing Resolutions for Borrowers required by OC-10.

4  

The other signatory should be in-house or outside counsel to the Borrower.

 

Appendix 4

to Operating Circular No. 10


FORM OF AUTHORIZING RESOLUTIONS FOR BORROWERS

As evidenced by my signature below, I certify that the following are correct and complete copies of the resolutions duly adopted

on                        at a meeting 1 of                                                                                  
        (Date)  

        (Type of governing body, e.g. board of directors)

of the  

 

  (“Borrower”), a  

                                                                                   

 
      (Official name of the Borrower)  

(Commercial bank, mutual savings bank, savings bank and loan association, credit union, or other charter type)

 

duly established and operating under the laws of                                                               , with its head office located at                                                                                in accordance with applicable law and the Borrower’s chartering documents. I also certify that the resolutions have not been modified, remain in effect, are not in conflict with any provisions of the Borrower’s certificate of incorporation, bylaws, or chartering and/or licensing statutes or requirements, and are reflected in the minutes of the meeting at which these resolutions were approved:

 

1. RESOLVED, that the Borrower is authorized to request advance(s) from, incur indebtedness, including overdrafts, to and pledge and grant a security interest in the Borrower’s property, whether now owned or hereafter acquired, to a Federal Reserve Bank.

 

2. RESOLVED, that the persons with the following titles:

 

 

(Exact titles of authorized persons)

 

and each of their successors in office, any  

 

  of whom  

 

  authorized to
  (one/two)       (is/are)  

(1) take each of the actions listed in paragraph (a)-(e) immediately below and (2) send the names, titles, and signatures of individuals authorized to take such actions in the name and on behalf of the Borrower: 2

 

  (a) to borrow money from a Federal Reserve Bank and to incur indebtedness to a Federal Reserve Bank on the terms and security that such Federal Reserve Bank requires;

 

  (b) to discount, rediscount, or sell (with or without the Borrower’s agreement to repurchase) and, for any of those purposes, to endorse and assign notes, drafts, bills of exchange, acceptances, other bills receivable, evidences of indebtedness, and securities, now or hereafter acquired by the Borrower;

 

  (c) to make, execute, and deliver any application, note, agreement, certificate, power of attorney, and any other document that any Federal Reserve Bank requires in connection with any transaction authorized by this resolution;

 

  (d) to grant, assign, pledge, and transfer to any Federal Reserve Bank security interests in any or all property of the Borrower, whether now owned or hereafter acquired, and to endorse, assign, deliver, deposit, and/or pledge any of such property to any Federal Reserve Bank as collateral to secure payment or performance of any obligation of the Borrower to a Federal Reserve Bank; and

 

  (e) to do any and all other acts and things that may be necessary or incidental to any transaction authorized by the relevant resolution, or that may be designed or intended to carry out the purpose of such resolution.

 

1  

The language of this certification should be modified if the resolutions were adopted by written consent or otherwise.

2  

If certain persons are authorized to undertake only some of these activities, e.g., to borrow, but not to pledge on behalf of the Borrower, this resolution should be split to so specifically identify who is authorized to undertake which activit(y)(ies).

 

Appendix 4

to Operating Circular No. 10


3. RESOLVED, that a Federal Reserve Bank making an extension of credit to the Borrower is appointed as the Borrower’s attorney-in-fact for it and in its place and stead, to endorse, assign, transfer and sell, set over and deliver collateral pledged to such Federal Reserve Bank, and to take any other action deemed necessary or advisable by the Federal Reserve Bank to exercise its rights with respect to any advance or indebtedness owed by the Borrower, in its capacity as secured party, including but not limited to accepting and endorsing payments on loans, preparing and/or filing of any documents necessary to perfect, protect, preserve, or release the interest of the Federal Reserve Bank or the Borrower in such collateral, or compromising disputes or handling insurance issues related to such collateral. The power of attorney is coupled with an interest and as such is irrevocable, and full power of substitution is granted to the assignee or holder. The Borrower ratifies any and all action authorized herein and taken by any such Federal Reserve Bank as the Borrower’s attorney-in-fact. The rights, powers, and authority of the attorney-in- fact to perform any and all act(s) whatsoever necessary remains in full force and effect and binds the Borrower, its legal representatives, successors, and assigns until all indebtedness of the Borrower to any such Federal Reserve Bank has been fully satisfied and discharged.

 

4. RESOLVED, that we approve and consent to be bound by the provisions of the Federal Reserve Bank of                      ’s Operating Circular No 10, effective October 15, 2006, as amended and supplemented from time to time thereafter (“OC-10”).

 

5. RESOLVED, that the Borrower is authorized and approved to use any record (as such term is used in OC-10) to endorse or pledge to a Reserve Bank the notes and other obligations offered as collateral for any advance or other indebtedness of the Borrower to a Reserve Bank. The record will have the full force and effect of a manual endorsement.

 

6. RESOLVED, that these resolutions and the powers and authorizations granted or confirmed by them continue in effect until written notice of revocation is received by each Reserve Bank that has relied or is relying on such resolutions and the Borrower shall continue to be bound with respect to any outstanding obligations and pledges to any Reserve Bank at the time the notice of revocation is received by such Reserve Bank.

 

7. RESOLVED, that a duly certified copy of these resolutions be furnished to each Reserve Bank to which the Borrower applies for an advance or has an account.

 

8. RESOLVED, that the Borrower, with respect to any Reserve Bank and the Borrower’s obligations to any Reserve Bank, to the maximum extent permitted by law, expressly and irrevocably waives any immunity that the Borrower now has or that in the future it may become entitled to, whether characterized as sovereign or otherwise (including, without limitation, immunity from set-off, from services of process, from jurisdiction of any court or tribunal, from attachment in aid of execution, from attachment prior to the entry of a judgment, or from execution upon a judgment), in any legal proceeding in the United States of America, the country where the Borrower is chartered, and the country in which the Borrower principally conducts its business and expressly submits to jurisdiction in Federal or State courts in the United States of America or in the courts of the Borrower’s chartering country, or the country where the Borrower principally conducts its business.

 

Appendix 4

to Operating Circular No. 10


IN WITNESS WHEREOF, I have hereunto subscribed my name.

 

 

Signature of certifying official 3

 

Name and Title

 

Date

EMBASSY OF THE UNITED STATES OF AMERICA 4

 

[SEAL]

 

City, Country

On                      ,                                                               personally appeared before me, adequately identified

            Date              Name of official signing above

[himself/herself], and, after being duly sworn by me, stated that [he/she] is the                                                              

                                                                                                               Title

of                                                               whose governing body adopted the resolutions set forth in this

       Official name of foreign Borrower

document and that [he/she] executed this document by authority of that governing body.

 

 

  ]

Signature of U.S. Consul

[SEAL]

 

3  

The certifying official must be the secretary of the Borrower or another person authorized to certify the statements in this document and, in any case, may not be a person authorized in Paragraph 2.

4  

If appropriate, an apostille may be substituted for this consular certificate. Generally, if this consular certificate is used, it must be executed by an ambassador, a minister plenipotentiary, a minister extraordinary, a minister resident, a charge d’affaires, a consular agent, a consul general, a vice-consul general, a deputy consul general, a consul, a vice-consul, a deputy consul, a consular agent, a vice-consular agent, a commercial agent, or a vice-commercial agent of the United States of America within his or her jurisdiction. The seal or stamp of his or her office or the seal or stamp of the consulate or legation to which he or she is attached must be affixed as must the seal or stamp of the appropriate U.S. embassy.

Appendix 4

to Operating Circular No. 10


FORM OF OFFICIAL OC-10 AUTHORIZATION LIST

 

Routing (ABA) No.                                               

   This supersedes our previous Official OC-10 Authorization List:  

Page      of         

   (circle:) YES or NO  
   If neither is circled, previous list will also remain in effect.  

Name of Borrower:

   Date:           

Street Address:

             Telephone:           

To the Federal Reserve Banks : Below are the names, titles and signatures of the individuals authorized to pledge collateral to/ request to borrow money from the Federal Reserve Banks on behalf of the Borrower identified above.

 

Name and Title (printed):

   Telephone No. and E-Mail
Address:
   Signature:    Borrow 1    Pledge 1
                     
                     
                     

Authorizing Officer (must be identified by title in Borrower’s Authorizing Resolutions):

 

Signature:                                                                                

   State of                                                                   )
   County of                                                               )

                                                                                                  

   Subscribed and sworn to before me on                  ,

(Printed Name and Title)

   20        , by                                                                 .
  

                                                                                                  

  

                                                                                  

(Telephone)

   Notary Public
  

                                                                                                  

   (Notary Seal)

(E-Mail Address)

  
Secretary’s Certification:   
  

I,                                                       , Secretary (or Assistant

   State of                                                                   )

Secretary) of the above Borrower do hereby certify that

   County of                                                               )

                                                                  is a

   Subscribed and sworn to before me on                  ,

                                              of such Borrower.

   20          , by                                                               .
  

Signature:                                                                      

  

                                                                                  

   Notary Public

                                                                                        

  

(Printed Name and Title)

   (Notary Seal)

 

1  

Check as appropriate. For instance, check both if authorized to pledge and to make borrowing requests on behalf of the borrower.

Appendix 4

to Operating Circular No. 10


FORM OF OPINION OF FOREIGN OUTSIDE COUNSEL

[Letterhead of the Borrower’s Outside Counsel]

Date:                     

Federal Reserve Bank of                     

Address

City, State, Zip

Attention:

In re: [Foreign Bank’s name]

In connection with the authorization for [foreign Borrower’s name] (“Borrower”), through its [city/cities] [branch/agency], to request advances from, incur indebtedness to, and pledge collateral to any Federal Reserve Bank in the United States of America, you have requested us to furnish you with an opinion of counsel regarding the authority of the Borrower and its [city/cities] [branch/agency] to engage in those activities under the laws of [chartering jurisdiction]. 1

We are legal counsel to the Borrower in [city, country], its place of [incorporation or chartering or formation] and in that capacity are familiar with its affairs and the laws of [chartering jurisdiction] affecting it.

We are of the opinion that:

 

(1) The Borrower, a [describe type of entity—e.g., corporation], including its branches and agencies in the United States of America, has been duly [incorporated/chartered/formed] and is validly existing and in good standing as a [corporation] under the laws of [chartering jurisdiction].

 

(2)

Under the laws of [chartering jurisdiction], the Borrower, including its branches or agencies located in the United States of America, (i) has the [corporate] power and authority to execute and deliver the Letter of Agreement, dated                      , 200      , to your Operating Circular No. 10 (“Circular”), effective October 15, 2006, as amended and supplemented from time to time thereafter and [list other executed agreements] (together the “Lending Agreement”), and to obtain advances from, incur indebtedness to, and perform its obligation under the Lending Agreement and pledge its collateral and grant security interests in its assets to any Federal Reserve Bank, whether now owned or hereafter acquired, as collateral security for the payment or performance of any obligation of the Borrower to any Federal Reserve Bank and (ii) has duly authorized, executed and delivered the Lending Agreement. 2

 

(3) The Lending Agreement constitutes the valid and legally binding obligation of the Borrower in its entirety as a juridical entity and not merely as its branches or agencies located in the United States of America.

 

1  

If the foreign Borrower principally conducts its business in a jurisdiction other than its chartering jurisdiction then the Borrower should also get an opinion of outside counsel with respect to Paragraphs 2, 3, 4, and 6 hereto for the jurisdiction in which the Borrower principally conducts its business. Each reference to the chartering jurisdiction in these paragraphs should be replaced with a reference to the country in which the Borrower principally conducts its business.

2  

An opinion of counsel from a jurisdiction in which the Borrower principally conducts its business should also address whether any office of the Borrower licensed to operate in such jurisdiction can pledge its assets to secure an Obligation of the Borrower to a Reserve Bank.

 

Appendix 4

to Operating Circular No. 10


(4) Regarding the Borrower’s obligations to any Federal Reserve Bank, the Borrower and its assets are entitled to                                                                                                                                                                  

List immunities which the Borrower’s assets may be entitled to, including immunity from set-off, service of process, jurisdiction                                                               of any court or tribunal, attachment in aid of execution, attachment prior to the entry of a judgment, or execution upon a judgment in any legal proceeding in the United States of America or the country where the Borrower is chartered. The Borrower has effectively waived such immunity/immunities it is now entitled to as well as any other immunity that, in the future, it may become entitled to in such jurisdictions 3 and has effectively submitted to jurisdiction in the courts of its chartering country.

 

(5) The resolutions of the governing body of the Institution, dated                      , that authorize requesting advances from, incurring indebtedness to, and pledging and granting security interests in the Institution’s assets to any Federal Reserve Bank, have been duly adopted.

 

(6)

The chartering jurisdiction [does] [does not] have a system for filing or recording a security interest. [The chartering jurisdiction has a system for filing or recording a security interest, and a filing or recording has been made on behalf of the Federal Reserve Banks. That filing or recording [is not subject to renewal][must be renewed                      .] 4

 

(7) In any action or proceeding arising out of or relating to the Lending Agreement in any court in [chartering jurisdiction], such court would give effect to the governing law provisions of the Lending Agreement which provide that the Lending Agreement shall be governed by the law of the State of                                                               or Federal laws. However, if a court were to hold that the Lending Agreement is governed by, and is to be construed in accordance with the laws of [chartering jurisdiction], the Lending Agreement would be, under such laws, enforceable against the Borrower in its entirety as a juridical entity and not merely as its branches or agencies created in the United States of America.

There are no other material issues relevant to the issues addressed by this opinion which we wish to draw to your attention.

 

3  

If there are any limitations on the Borrower’s ability to waive any immunity, please identify and discuss those limitations.

4  

Specify how frequently the filing or recording must be renewed.

 

Appendix 4

to Operating Circular No. 10


FORM OF OPINION OF UNITED STATES OUTSIDE COUNSEL

[Letterhead of the Borrower’s United States Outside Counsel]

Date:                                 

Federal Reserve Bank of                                 

Address

City, State, Zip

Attention:

 

In re:

 

 

 

Foreign bank

 

 

 

City

You have requested our opinion on certain matters in connection with the authorization for                                                              

                                                                                                                       Foreign bank’s name

(“Borrower”), through its                                                               [branch/agency], to request advances from, incur indebtedness to,

                      City

and pledge and grant security interests in its assets to, any Federal Reserve Bank.

We are legal counsel to the                                                               [branch/agency] of the Borrower and in that capacity are

                          City

with its affairs and the laws of                                                               and the United States of America affecting it. 1

                              State

investigated those laws to the extent we believe necessary to render the opinions expressed in this letter.

We are of the opinion that:

 

(1) The Borrower, through its                                                               [branch/agency], is authorized to request advances from,

                                 City

incur indebtedness to, and pledge and grant security interests in its assets to, any Federal Reserve Bank.

(2) The Borrower and its assets are entitled to                                                                                                                                          

                                     List immunities, if any, which the Borrower’s assets may be entitled to, including

                                                                                                                                                                                                              

immunity from set-off, service of process, jurisdiction of any court or tribunal, attachment in aid of execution, attachment prior to the                                                               in any legal proceeding brought in the Federal or State courts in                                                               entry of a judgment or execution upon a judgment.

the United States of America. The Borrower has effectively waived such immunity/immunities it is now entitled to as well as any other immunity that, in the future, it may become entitled to and has effectively submitted to the jurisdiction of the United States courts.

 

(3) The agreement of the Borrower to the terms of your Operating Circular No. 10, effective October 15, 2006, as amended from time to time, is valid and binding on the Borrower.

In rendering our opinion, we have assumed the correctness of the opinion(s) addressed to you dated                      , from                                                               , legal counsel to the Borrower at its                                                                                           

                                                                    place of incorporation or chartering/principal place of business

in                                                                   .

  Country

 

1  

If the office is a Federal branch or agency, the reference to State law should be omitted. Opinions of counsel must be obtained for all branches and agencies which may seek an Advance or incur Indebtedness.

 

Appendix 4

to Operating Circular No. 10


APPENDIX 5: ANCILLARY AGREEMENTS

Form of Agreement for Third Party Custodian to Hold Collateral

Form of Correspondent Credit and Payment Agreement

Exhibit 1: Form of Letter Agreement for Obtaining Advances Through Correspondent

 

Appendix 5

to Operating Circular No. 10


FORM OF AGREEMENT FOR THIRD PARTY CUSTODIAN TO HOLD COLLATERAL 1

[Third Party Custodian Letterhead]

[Date]

Federal Reserve Bank of                                         

Address

City, State, Zip

 

Re: [Insert Borrower’s name](the “Borrower”)

We hereby acknowledge that the Borrower has entered into an agreement with you and has granted you a first priority security interest in certain specified assets of the Borrower and proceeds thereof (such assets and proceeds, together with any related documentation, “Collateral”). We further acknowledge that, pursuant to our agreement with the Borrower, from time to time we receive and maintain possession of certain of the Collateral, which are presently kept at our premises located at [insert address of facilities]. We further acknowledge that we have received and hold possession of the Collateral for your benefit until we receive notice from you that your security interest has been terminated.

We hereby waive, surrender and relinquish any rights in or to the Collateral, including, without limitation, any security interests or liens provided by applicable law to which we may otherwise be entitled. We further acknowledge and agree that we have not acquired any rights in the Collateral sufficient to transfer an interest or grant a security interest in or to the Collateral or will not exercise any such rights with respect to Collateral consisting of negotiable instruments.

We further acknowledge that, according to the terms of your agreement with the Borrower, you have the right to inspect the Collateral, and, upon default, the right to remove and take possession of the Collateral. We agree (1) to permit you to exercise these rights and to permit you access to the Collateral in order to exercise these rights at your request, (2) to copy you on any reports pertaining to the Collateral that we provide to the Borrower, (3) to ignore instructions from the Borrower at your request, and (4) to follow any other of your instructions with regard to the Collateral to the extent the instructions would have been within the scope of the Borrower’s power as set forth in our agreement with the Borrower, all without first receiving the consent or permission of the Borrower. We further agree that, at your request, all representations, warranties and covenants, and agreements regarding access to the Collateral or information about the Collateral, made by us in our agreement with the Borrower shall inure to your benefit, without the consent of the Borrower.

 

Sincerely,
[insert third party custodian name]
By:  

 

Name:  
Title  

 

  Cc: [insert Borrower name]

Borrower confirms and agrees to the foregoing,

[insert Borrower name]

 

1  

If the third-party custodian is an affiliate of the Borrower, it must execute this Agreement. In all cases, prior to asking its third-party custodian to sign this agreement, a Borrower should consult with the Reserve Bank, which, depending upon the specifics of the third-party custodial arrangement, may require additions to or modifications of this form of agreement.

 

Appendix 5

to Operating Circular No. 10


By:  

 

Name:  
Title:  

 

Appendix 5

to Operating Circular No. 10


FORM OF CORRESPONDENT CREDIT AND PAYMENT AGREEMENT

 

1.0 SCOPE

 

  1.1 This Appendix sets forth the agreement (“Correspondent Agreement”) among the Bank, a Borrower, and another depository institution that maintains an Account and is designated by the Borrower as its Correspondent (“Correspondent”) under which the Bank may make an Advance to and obtain repayment from the Borrower through the Correspondent.

 

  1.2 For the Borrower to receive an Advance under the Correspondent Agreement, the Borrower and the Correspondent must obtain the prior approval of the Bank and execute a letter of agreement in the form of Exhibit 1 of this Appendix.

 

  1.3 The Correspondent Agreement supplements the Lending Agreement and the terms of the Lending Agreement are incorporated herein. Capitalized terms in the Correspondent Agreement have the same meaning as defined in the Circular.

 

  1.4 In the event of a conflict between the other provisions of the Lending Agreement and the provisions of the Correspondent Agreement, the provisions of the Correspondent Agreement control. The terms of the Correspondent Agreement shall also prevail over any inconsistent terms in any other account agreement between the Correspondent’s Reserve Bank and the Correspondent regarding the operation of the Correspondent’s Account.

 

2.0 ADVANCE

 

  2.1 If the Borrower applies for an Advance, the Borrower authorizes the Correspondent to provide any information requested by the Bank regarding the Borrower’s credit position and any extension of credit made by the Correspondent to the Borrower. The Correspondent shall provide such information promptly.

 

  2.2 Any credit entry made to the Correspondent’s Account by the Bank for the benefit of the Borrower constitutes an Advance to the Borrower in accordance with the terms of the Lending Agreement, and such Advance shall be held in trust by the Correspondent for the Borrower and shall not be subject to any lien or right of set-off by the Correspondent.

 

  2.3 The Borrower is solely responsible for notifying the Correspondent of any incoming credit to the Correspondent’s Account for an Advance on the day the Advance is requested. The Borrower’s failure to give such notice does not affect the rights and obligations of the Bank and the Correspondent with respect to each other under this Correspondent Agreement.

 

Appendix 5

to Operating Circular No. 10


3.0 NOTICE OF DEBIT AND CREDIT

 

  3.1 The Bank shall send to the Borrower and the Correspondent an advice of any credit or debit posted to the Correspondent’s Account made pursuant to the Correspondent Agreement by the next Business Day following the credit or debit. The advice to the Correspondent shall be sent to an employee identified by the Correspondent in Exhibit 1. If the Correspondent does not furnish a list of employees to the Bank, or if in the Bank’s opinion it is not feasible to direct a notice to a named individual due to the medium used (e.g., a computer-generated notice), then the Bank may give an advice or notice required under this Agreement to any officer of the Correspondent.

 

  3.2 Any credit or debit posted to the Correspondent’s Account by the Bank under this Correspondent Agreement constitutes authority for the Correspondent, consistent with applicable law, to credit or debit, respectively, the Borrower’s account on its books for the amount of the credit or debit.

 

4.0 REPAYMENT

 

  4.1 An Advance Repayment Amount is due in accordance with Paragraph 5.1 of the Credit and Security Terms. This obligation remains notwithstanding nonreceipt of the Advance by the Borrower after the Advance is credited to the Correspondent’s Account.

 

  4.2 Any funds deposited with the Correspondent by the Borrower for the purpose of repaying an Advance Repayment Amount are held in trust for the Bank and are not subject to any lien or right of set-off by the Correspondent.

 

  4.3 Except as otherwise agreed by the Bank in writing, the Borrower and the Correspondent authorize the Bank, or the appropriate Reserve Bank, to debit the Correspondent’s Account for the Advance Repayment Amount in full when the Advance Repayment Amount is due. The Borrower shall ensure that sufficient funds are made available to the Correspondent to pay this amount. Unless otherwise agreed, the Borrower shall promptly reimburse the Correspondent for the amount of any debit made to the Correspondent’s Account hereunder.

 

  4.4 Unless the Correspondent in writing irrevocably waives all rights to contest a debit to its Account to pay the Borrower’s Advance Repayment Amount, the repayment is considered provisional and the Bank retains an unimpaired security interest in Collateral Pledged by the Borrower to secure the Advance Repayment Amount until the Correspondent is deemed to have unconditionally approved the debit under Paragraph 5.

 

5.0 CORRESPONDENT’S APPROVAL OF A DEBIT

 

  5.1 If, after making a good faith effort, the Correspondent has not received the full amount of the Advance Repayment Amount from the Borrower, then the Correspondent may instruct the Bank, up until one hour before the Advance Repayment Amount is due, not to debit the Correspondent’s Account for the amount that the Correspondent has not received.

 

Appendix 5

to Operating Circular No. 10


  5.2 In addition, if the date and time an Advance Repayment Amount is due is accelerated pursuant to Paragraph 5.1 of the Credit and Security Terms and becomes immediately payable, and if the Correspondent is not provided with advance notice of said acceleration, then the Correspondent may instruct the Bank to reverse the debit by giving the Bank notice before the close of Fedwire on the day the Advance Repayment Amount becomes immediately payable.

 

  5.3 Upon receiving such an instruction, the Bank will not debit the Correspondent’s Account for the amount the Correspondent states it has not received from the Borrower, or will reverse the debit, as the case may be. The Bank is not required to inquire into the basis for or validity of any such instruction before acting upon it.

 

  5.4 Upon receiving such an instruction from the Correspondent, the Advance Repayment Amount is immediately due and payable and the Bank may exercise any remedies available to it, including any remedies available under the Lending Agreement, to obtain full repayment of the Advance Repayment Amount.

 

  5.5 If the Correspondent fails to instruct the Bank not to debit the Correspondent’s Account before the Advance Repayment Amount is due as provided in Paragraph 5.1, or to reverse the debit as provided in Paragraph 5.2, the Correspondent is deemed to have unconditionally approved the debit and the Correspondent has no right to refuse or contest the debit.

 

  5.6 If the Correspondent receives funds from the Borrower to pay the Advance Repayment Amount after the Correspondent instructed the Bank to not debit the Correspondent’s Account, then the Correspondent shall promptly revoke its instruction.

 

6.0 MISCELLANEOUS

 

  6.1 Unless otherwise agreed by the Bank, the time zone of the Bank’s head office is used to determine whether any deadline set forth herein has been met.

 

  6.2 No delay or failure by the Bank to exercise any right or remedy accruing upon any Event of Default shall impair any right or remedy, waive any default or operate as an acquiescence to the Event of Default, or affect any subsequent default of the same or of a different nature.

 

  6.3 The Bank or the Correspondent’s Reserve Bank may record telephone communications between it and the Correspondent or the Borrower regarding any debit or credit to the Correspondent’s Account made hereunder.

 

  6.4 The Correspondent Agreement is binding on the receivers, administrators, successors, assigns and legal representatives of the Borrower and the Correspondent, and inures to the benefit of the Bank and its successors and assigns. The rights and obligations hereunder, however, may not be assigned by the Borrower or the Correspondent without the prior written consent of the Bank.

 

Appendix 5

to Operating Circular No. 10


7.0 AMENDMENT

 

  7.1 The Bank, in its sole discretion, may amend this Correspondent Agreement without prior notice at any time. Any amendment applies only to a transaction under this Correspondent Agreement made on or after the effective date of the amendment.

 

8.0 NOTICE

 

  8.1 Unless otherwise specified in the Correspondent Agreement or by the Bank, all notices required under the Correspondent Agreement shall be: (a) sent by first-class mail, postage prepaid; (b) personally delivered; or (c) sent by telecopy, facsimile, or electronic means to a number or electronic address identified in writing by the intended recipient (and, in such case, confirmed by prepaid, first-class mail). If sent by the Bank, the notice must be addressed as indicated to the Bank in writing by the Borrower or the Correspondent. If sent by the Borrower or the Correspondent, the notice must be addressed to the credit function at the Bank’s head office.

 

  8.2 The Borrower or the Correspondent is deemed to have delivered any notice required hereunder when the notice is received by the credit function at the Bank’s head office. The Bank is deemed to have delivered any notice required hereunder when the notice is sent. If the notice is sent by the Bank only via first-class mail, however, the notice is effective three days after it is deposited in any United States postal box.

 

9.0 TERMINATION

 

  9.1 Any party may terminate this Correspondent Agreement by giving written notice to the other parties. The rights and liabilities of the parties under the Correspondent Agreement survive any termination of it until such time as all Advance Repayment Amounts owed by the Borrower hereunder and the Correspondent’s obligations to the Bank under this Agreement have been satisfied in full.

 

10.0 GOVERNING LAW

 

  10.1 The Correspondent Agreement, including any Advance or any other transaction entered into pursuant thereto, is governed by Federal law and, to the extent not inconsistent therewith, the law of the State in which the Bank’s head office is located, excluding that State’s law regarding conflicts of law.

 

11.0 EFFECTIVE DATE/STATUS OF PREVIOUS AGREEMENTS

 

  11.1 The Correspondent Agreement is effective when the Bank receives the letter of agreement in the form of Exhibit 1 to this Appendix. At that time, the Correspondent Agreement supersedes any and all previous agreements, if any, relating to a Reserve Bank making any Advance to and obtaining payment from the Borrower through the Correspondent.

 

Appendix 5

to Operating Circular No. 10


Exhibit 1

Letter of Agreement

To Correspondent Credit and Payment Agreement

EXHIBIT 1: FORM OF LETTER OF AGREEMENT TO

CORRESPONDENT CREDIT AND PAYMENT AGREEMENT [Letterhead of Depository Institution]

Date:                     

Federal Reserve Bank of                     

Address

City, State, Zip

Attention:

In order to request advances from you through a correspondent and in order to make payments to you through a correspondent, we agree to the provisions of the Correspondent Credit and Payment Agreement, currently an ancillary agreement appended to your Operating Circular No. 10, effective October 15, 2006, as amended and supplemented from time to time thereafter. We designate                                                               as the Correspondent under that agreement.

 

 

Name of depository institution
By:  

1

  Authorized signature(s)

 

Names(s)

 

Title(s)

 

1  

The signatory or signatories should be authorized to sign documents on behalf of the Borrower as provided in the Authorizing Resolutions for Borrowers required by OC-10. Appendix 5 to Operating Circular No. 10

 

Appendix 5

to Operating Circular No. 10


We agree to act as Correspondent for                                                                                            and, as

                                                                          Name of depository institution

such, to be bound by the provision of the Correspondent Credit and Payment Agreement, currently an ancillary agreement attached to your Operating Circular No. 10, effective October 15, 2006, as amended from time to time (“Correspondent Agreement”). Pursuant to paragraph 3.1 of the Correspondent Agreement, we are furnishing below a list of individuals to whom the Federal Reserve Bank of                                                               may provide an advice of credit or debit entries made under the Correspondent Agreement. These individuals are also authorized to instruct the Reserve Bank not to debit our account or to reverse a debit in accordance with Paragraph 5 of the Correspondent Agreement. We may amend this list from time to time.

 

 

Name of Correspondent
By:  

 

  Authorized signature(s)

 

Names(s)

 

Title(s)

 

Date

Individuals permitted to receive notification of credit or debit entries described in the Correspondent Credit and Payment Agreement and authorized to instruct the Reserve Bank not to debit the Correspondent Account or to reverse a debit: [list between 3 and 5 employees]

 

Name

     

Title

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

Appendix 5

to Operating Circular No. 10

Exhibit 10.27

[***] Indicates confidential material that has been omitted pursuant to a Confidential Treatment Request filed with the Securities and Exchange Commission. A complete copy of this agreement has been separately filed with the Securities and Exchange Commission.

CONFIDENTIAL

MASTER AGREEMENT ML02783 First Term

This Master Agreement between Fannie Mae and HomeStreet Bank (the “Lender”) governs the sale by Lender, and the purchase by Fannie Mae, of eligible residential mortgage loans (the “Mortgages”). This Master Agreement includes all of the terms and conditions described in all of the exhibits, attachments, commitments and MBS Pool Purchase Contracts (“MBS Contracts”) attached or entered into as a part of this Master Agreement. Additionally, the “Master Agreement Terms and Conditions” section of Fannie Mae’s Selling Guide (the “Selling Guide”), which is incorporated into this Agreement by this reference, outlines in more detail the general terms and conditions of the Master Agreement and MBS Contracts and related terms and instructions. The execution of this Master Agreement requires compliance with all provisions and sections of this Master Agreement, including all MBS Contracts, whole loan commitments, exhibits and attachments to this Master Agreement.

As a condition to Lender’s sale of Mortgages under this Master Agreement, Lender and Fannie Mae must enter into the appropriate whole loan commitments or MBS Contracts, depending on whether Lender will be delivering Mortgages under one of Fannie Mae’s whole loan purchase programs (Negotiated or Standard) or under Fannie Mae’s MBS program. Lender agrees to sell to Fannie Mae, beginning on the Effective Date of Delivery Term and ending on the Expiration Date of Delivery Term (as those terms are defined in Exhibit 1), Mortgages with an aggregate outstanding principal balance equal to the Agreed Amount (as defined in Exhibit 1).

For whole loan deliveries, any loan-level price adjustments (“LLPAs”) that are referenced in this Master Agreement, will be available no later than 30 days after Fannie Mae receives the executed Master Agreement from Lender.

Fannie Mae must receive the fully executed Master Agreement within ten business days of Lender’s receipt of this Master Agreement, or Fannie Mae may, at its option, declare this Master Agreement null and void. This Master Agreement may be executed in one or more counterparts and all such counterparts shall be deemed to be one and the same document. This Master Agreement must be executed by Lender, Fannie Mae, and any person, firm, or entity whose joinder is required under the terms of this Master Agreement sign (including a facsimile signature) The effective date of this Master Agreement is the later of (i) the date Fannie Mae receives the fully executed Master Agreement from Lender or (ii) the effective date specified on Exhibit 1 hereto.

 

Master Agreement ML02783

MA - 1

March 15, 2010


Lender hereby confirms, by checking the appropriate section below, that:

 

 

   It is not a federally-insured institution or an affiliate or subsidiary of a federally-insured institution.
X    It is a federally-insured institution or an affiliate or subsidiary of a federally-insured institution. If Lender has checked this section, then Lender agrees to the representations and warranties described in the “Master Agreement Terms and Conditions” section of the Selling Guide.

Sincerely,

FANNIE MAE

 

By:  

/s/ David Battany

  David Battany
  Director/Assistant Vice President

 

Agreed, acknowledged and accepted.
HOMESTREET BANK
By:  

/s/ Curt Byers

Name:  

Curt Byers

Title:  

V.P. HOMESTREET BANK

Date:  

3/19/2010

 

Master Agreement ML02783

MA - 2

March 15, 2010


EXHIBIT 1

TO MASTER AGREEMENT ML02783 Second Term

 

Lender Name      HomeStreet Bank
Lender Number      20722-000-0
Delivery Term:      Second
Effective Date of Delivery Term:      April 1, 2010
Expiration Date of Delivery Term:      March 31, 2012
Agreed Amount for Delivery Term:     

$2,550,000,000.00 (Optional)

 

Master Agreement ML02783

MA - Exhibit 1 - 1

Amendment 9

March 15, 2011


MASTER AGREEMENT – GENERAL TERMS

The following Uniform provisions and defined terms/acronyms apply to all sections of the Master Agreement.

PART 1. UNIFORM PROVISIONS.

 

1. Lender represents and warrants that Mortgages delivered pursuant to a Variance, Special Requirement or nonstandard MBS Contract term contained in this Master Agreement comply with all provisions of the applicable Variance, Special Requirement or nonstandard MBS Contract term.

 

2. Lender must enter all SFC(s) required by the Selling Guide, in addition to any additional SFC(s) specified in this Master Agreement.

 

3. In addition to any additional LLPA(s) specified in this Master Agreement, Lender must pay all LLPA(s) required by the Selling Guide, unless otherwise specified.

 

4. Mortgages may be sold to Fannie Mae as cash deliveries or as MBS pool deliveries, unless otherwise specified.

 

5. For a Mortgage to be included in an MBS pool, the origination date LTV may not exceed 100%, unless otherwise specified.

 

6. Mortgages originated pursuant to a Variance must be first lien, conventional Mortgages, unless otherwise specified.

 

7. Lender agrees not to use Fannie Mae’s name in any advertising distribution, publication or communication to any third party of any Variance or other provision of this Master Agreement.

 

8. If a provision of this Master Agreement permits a type of loan that has additional requirements per the Selling Guide (e.g., lender approval for cooperative share loans), then those Selling Guide requirements still apply unless otherwise stated.

 

9. Variance Mortgages may not be originated in combination with any other Variances contained in this Master Agreement without Fannie Mae’s prior written approval, unless specifically permitted in a particular Variance.

 

10. Unless otherwise specified, any Variance, Special Requirement or nonstandard MBS Contract may be amended or terminated with reasonable notice to Lender, which in many cases will be at least 90 days, in accordance with the provisions of the Selling Guide. Additionally, Fannie Mae reserves the right to rescind or modify any of the terms of any Variance, Special Requirement or nonstandard MBS Contract in connection with the renewal or extension of this Master Agreement or upon reasonable notice to Lender, unless otherwise specified.

 

Master Agreement ML02783

MA – General Terms - 1

Amendment 9

March 15, 2011


11. If Mortgages with IO features are eligible for origination under the terms of a Variance, then such IO Mortgages are subject to the IO eligibility requirements per the Selling Guide, if more restrictive than the Variance, unless the Variance specifically provides that the Variance eligibility requirements supersede the Selling Guide requirements for IO Mortgages.

 

12. Trademarks are the property of their respective owners. Fannie Mae trademarks are identified at: www.fanniemae.com/legal/trademarks.jhtml?p=Legal&t=Trademarks

PART II. DEFINED TERMS AND ACRONYMS

The defined terms and acronyms below apply to provisions of this Master Agreement (including Variances and Special Requirements), unless a term is otherwise defined in a specific provision. This list supplements the list in “Exhibit 1: Master Agreement Terms and Conditions” section of the Master Agreement, and to the extent there is any inconsistency, the list below shall control.

 

ARM:   adjustable-rate mortgage loan
    Additional ARM Definitions:
    ARM Type    
    6/6 ARM   Standard Fannie Mae ARM plans with a six-month IFRP, followed by interest rate adjustments every 6 months
    1/1 ARM   Standard Fannie Mae ARM plans with a one-year IFRP, followed by interest rate adjustments every 12 months.
    3/1 ARM   Standard Fannie Mae ARM plans with a three-year IFRP, followed by interest rate adjustments every 12 months.
    3/3 ARM   Standard Fannie Mae ARM plans with a three-year IFRP, followed by interest rate adjustments every 36 months.
    5/1 ARM   Standard Fannie Mae ARM plans with a five-year IFRP, followed by interest rate adjustments every 12 months.
    7/1 ARM   Standard Fannie Mae ARM plans with a seven-year IFRP, followed by interest rate adjustments every 12 months.
    10/1 ARM   Standard Fannie Mae ARM plans with a 10-year IFRP, followed by interest rate adjustments every 12 months.
    COFI ARM   Standard Fannie Mae ARM plans with interest rate adjustments tied to a “cost of funds” index, as defined in the Glossary to the Selling Guide.
    LIBOR ARM   Standard Fannie Mae ARM plans with interest rate adjustments tied to the London Interbank Offered Rate index, as defined in the Glossary to the Selling Guide.
    TREASURY ARM   Standard Fannie Mae ARM plans with interest rate adjustments tied to the Treasury Index, as defined in the Glossary to the Selling Guide.
All Standard Fannie Mae ARM Plans:   All standard Fannie Mae MBS ARM Plans, plus all standard plans available for whole loan sale only, per the Selling Guide
AUS   automated underwriting system
bp:   basis point
CLTV:   combined loan-to-value ratio
Condo:   Unit in a condominium project
Coop:   Unit in a cooperative project
Coop Loan:   Loan secured by a coop; cooperative share loan

 

Master Agreement ML02783

MA – General Terms - 2

Amendment 9

March 15, 2011


COR:   cash-out refinance transaction
DO ® :   Desktop Originator ®
DTI ratio:   Total “debt-to-income” ratio
DU ® :   Desktop Underwriter ®
EA:   Fannie Mae’s “Expanded Approval ® ” mortgage product
FA-ARM:   Fully amortizing ARM
FA-FRM:   Fully amortizing FRM
FICO:   credit score; the classic FICO score developed by Fair, Isaac, and Company, Inc.
Form 1003:   Uniform Residential Loan Application
Form 1004:   Uniform Residential Appraisal Report
Form 1073:   Individual Condominium Unit Appraisal Report
FRM:   fixed-rate mortgage loan
Guides:   The Selling Guide and the Servicing Guide
HCLTV:   home equity combined loan-to-value ratio
HUD-1:   HUD-1 uniform settlement statement
IFRP:   initial fixed-interest rate period of an ARM
IO:   interest-only feature
IO-FRM:   FRM with IO
IO-ARM:   ARM with IO
LCOR:   limited cash-out refinance transaction
LLPA:   loan-level price adjustment
LPMI:   lender-purchased mortgage insurance
LTV:   loan-to-value ratio
MCM:   Fannie Mae’s MyCommunityMortgage TM products
MI:   private primary mortgage insurance
MSSC:   The “Mortgage Selling and Servicing Contract” executed by and between Fannie Mae and Lender, unless otherwise specified
OPB:   original principal balance
P&I:   principal and interest
PITI:   principal, interest, taxes, and insurance
PIW:   Property Inspection Waiver, which is a fieldwork recommendation offered by Fannie Mae through DU and the Automated Property Service (APS) that results in an offer to waive the property inspection and appraisal for certain lower risk transactions
Selling Guide:   Fannie Mae’s Selling Guide, as modified, amended or supplemented from time to time
Servicing Guide:   Fannie Mae’s Servicing Guide , as modified, amended or supplemented from time to time
SFC:   Special Feature Code
SFR:   Single-family residence
Standard MI:   MI at the level required by the Selling Guide at the time of delivery of the Mortgage
TPO:   Third party originations: includes both Broker and Correspondent loans
UPB:   unpaid principal balance
Variance Mortgage   As used in any Variance, mortgages delivered pursuant to such Variance

 

Master Agreement ML02783

MA – General Terms - 3

Amendment 9

March 15, 2011


VARIANCES

TABLE OF CONTENTS

 

VAR #    Title
   

VAR 1

   HomeStyle Renovation Mortgages - DISCONTINUED
   

VAR 2

   Qualification of Loans with Non-Occupant Co-Borrowers
   

VAR 3

   Energy Efficient Mortgages (EXPIRING) - DISCONTINUED
   

VAR 4

   HomePath Mortgages - DISCONTINUED
   

VAR 5

   HomePath Renovation Mortgages - DISCONTINUED
   

VAR 6

   Deferred Student Loan Obligations (03/10 modified) - DISCONTINUED
   

VAR 7

   HomeStyle Renovation Escrow (03/10) - DISCONTINUED
   

VAR 8

   Brigham Young University Residential Leasehold Estates in Hawaii (03/10) - DISCONTINUED
   

VAR 9

   Investor Channel Bulk Transaction Delivery Variance Deal Factory No. 20917; Cash Commitment Nos: 817025, 817026, 817027, 817028, 817029, 817030, 817031, 817032, 817033, and 817034. - DISCONTINUED
   

VAR 10

   HomePath and HomePath Renovation Mortgages (EXPIRING) - DISCONTINUED
   

VAR 11

   HomePath and HomePath Renovation Mortgages (EXPIRING) - DISCONTINUED
   

VAR 12

   HomePath and HomePath Renovation Mortgages
   

VAR 13

   HomeStyle Renovation Mortgages (04/2010)

 

Master Agreement ML02783

VAR/TOC - 1

Amendment 9

March 15, 2011


VAR 2 Qualification of Loans with Non-Occupant Co-Borrowers

 

 

Title (Version):

  

 

Qualification of Loans with Non-Occupant Co-Borrowers (05/2010)

 

Description:

  

 

Lender may sell Mortgages in which a non-occupying co-borrower’s income was considered as acceptable qualifying income without requiring that the occupant-borrower also qualify based solely on the occupant borrower’s income, subject to the following:

 

 

ELIGIBILITY REQUIREMENTS

 

 

Eligibility: General

 

 

 

 

Mortgages must meet the following eligibility requirements:

     

 

 

 

Standard per Selling Guide except as provided below.

 

Maximum

LTV/CLTV/HCLT (%)

 

 

80/80/80

 

Minimum Representative FICO Credit Score

 

 

720

 

Loan Purpose

 

 

 

 

Purchase

   

 

 

 

LCOR

 

Occupancy/Number of Units

 

 

 

 

Primary Residence

   

 

 

 

1-unit

 

Mortgage Products/Features (including Amortization Type and Term)

 

 

 

 

Fully-amortizing (FA) Mortgages:

   

 

 

 

FA-FRMs: Standard per Selling Guide, with terms up to 30 years.

   

 

 

 

FA-ARMs: Standard per Selling Guide, with terms up to 30 years.

           

 

  

 

See eligible FA-ARM plans in the “ARM Plan Numbers” section below.

 

ARM Plan Numbers

 

 

 

 

30-Year FA-ARMs (fully amortizing):

     

 

 

 

7/1 ARMs: Plans 750, 751

       

 

 

 

10/1 ARMs: Plans 1423,1437

 

UNDERWRITING/DOCUMENTATION

 

 

Required Underwriting Method

 

 

Manual underwriting (see Conditions below)

 

Manual Underwriting: Conditions

 

 

Per Selling Guide, except as modified by this Variance.

 

Total Debt-to-Income (“DTI”) Ratio(s)

 

 

Maximum: 43% combined, for all borrowers.

 

Non-Occupant Co-Borrower

 

 

 

 

Income allowed for qualification

   

 

 

 

Must be a member of borrower’s immediate family.

 

DELIVERY REQUIREMENTS

 

 

Combining with Other Variances

 

 

Lender may combine Variance Mortgages with other variances as long as the most conservative underwriting and eligibility

 

Master Agreement ML02783

VAR 2 - 1

Amendment 3

July 20, 2010


    requirements apply.

 

Master Agreement ML02783

VAR 2 - 2

Amendment 3

July 20, 2010


VAR 12 HomePath and HomePath Renovation Mortgages

 

 

Title (Version):

  

 

HomePath and HomePath Renovation Mortgages (02/2011)

 

Description:

  

 

Lender may sell Mortgages originated under Fannie Mae’s HomePath (“HomePath Mortgages”) and HomePath Initiative secured by properties that require moderate renovation (“HomePath Renovation Mortgages”). HomePath Renovation Mortgages are not HomeStyle ® Renovation mortgages. The only HomeStyle Renovation requirements that apply to HomePath Renovation Mortgages are those relating to the actual renovation process, as described in the “ HomeStyle Renovation Requirements: Limitation of Applicability” section below. All eligibility, underwriting, mortgage origination, delivery and pricing requirements applicable to HomePath and HomePath Renovation Mortgages are per this Variance.

 

HomePath and HomePath Renovation Mortgages are subject to the following terms and conditions:

 

PART A. HomePath Mortgages

 

 

ELIGIBILITY REQUIREMENTS

 

 

Eligibility: General

  

 

  

 

Mortgages must meet the following eligibility requirements:

       

 

 

 

Standard per Desktop Underwriter (“DU”) except as provided below.

 

Maximum

LTV/CLTV/HCLTV (%)

  

 

  

 

Maximum LTV/CLTV/HCLTV for Mortgages with interest-only features (“IO”) is per Selling Guide.

  

 

  

 

Maximum LTV/CLTV/HCLTV for fully amortizing Mortgages (“non-IO”) is per Selling Guide, except as follows:

     

 

 

 

90/90/90 for 1-unit investment properties.

     

 

 

 

80/80/80 for 2-unit investment properties.

     

 

 

 

75/75/75 for 2-4 unit investment properties where the borrower owns 5-10 financed properties as described in the “Eligibility Matrix” on the efanniemae.com website.

  

 

* Max CLTV is 105% if the mortgage is part of a Community Seconds transaction.

  

 

  

 

All high balance Mortgages (including 1-4 unit investment properties) are subject to minimum credit score and maximum LTV/CLTV/HCLTV requirements per Selling Guide.

  

 

  

 

MCM mortgages are not eligible.

 

Loan Purpose

  

 

Purchase only.

 

Mortgage

Products/Features

(including Amortization

  

 

  

 

All standard FRM and ARM products per Selling Guide are eligible.

 

Master Agreement ML02783

VAR 12 - 1

Amendment 9

March 15, 2011


 

Type and Term)

 

 

 

 

Unless otherwise provided in this Variance, products must meet the standard eligibility requirements for the specific mortgage type, property type or feature per Selling Guide, for example:

     

 

 

 

IO features

     

 

 

 

Cooperative share loans

     

 

 

 

Manufactured housing

     

 

 

 

High-balance Mortgages

 

Eligible ARM Plan Numbers

 

 

Per Selling Guide, as applicable to the standard eligibility requirements for the specific mortgage type.

 

Minimum FICO

 

 

 

 

Per Selling Guide, except as follows:

     

 

 

 

660 for non-IO Mortgages with LTVs over 80% (except for high-balance Mortgages); and

     

 

 

 

720 for all IO Mortgages.

   

 

 

 

Per Selling Guide for high-balance Mortgages

 

Mortgaged Property

 

 

 

 

Mortgages must be secured by properties that are acquired from Fannie Mae and designated by Fannie Mae on the www.homepath.com website as eligible for HomePath financing.

   

 

 

 

Lender must document the file with appropriate pages printed from www.homepath.com showing that the property was eligible for HomePath financing.

 

Subordinate Financing

 

 

Permitted per Selling Guide.

 

UNDERWRITING/DOCUMENTATION

 

 

Required Underwriting Method

 

 

DU. See additional provisions in the “Desktop Underwriter” section below.

 

Interested Party Contributions (“IPC”)

 

 

 

 

Maximum IPC:

   

 

 

 

Notwithstanding the Selling Guide requirements, for principal residences with LTVs (or CLTVs if applicable) greater than 90%: 6.00% of the Contract Sales Price (see “Determination of Property Value” section below).

     

 

 

 

Investment properties and second homes: standard per Selling Guide.

 

PROPERTY VALUATION/APPRAISAL REQUIREMENTS

 

 

Required Appraisal Type

 

 

 

 

No appraisal is required. If an appraisal is obtained by Lender or any party other than the borrower, as expressly provided below, then the mortgage is ineligible for HomePath financing.

   

 

 

 

Notwithstanding the Selling Guide, Lender is not required to represent and warrant the value or the condition of the property.

 

Master Agreement ML02783

VAR 12 - 2

Amendment 9

March 15, 2011


   

 

 

 

If the borrower, at its option, chooses to obtain an appraisal, then:

     

 

  

 

The borrower must order the appraisal from an appraiser selected by the borrower (and not one recommended by Lender), and the appraisal must be paid for by the borrower outside of the loan transaction.

     

 

  

 

Lender must not request a copy of the appraisal, but if one is provided by the borrower then it must be included in the loan file with a note that the appraisal was ordered by the borrower outside of the loan transaction and was not reviewed or approved by Lender.

     

 

  

 

The property value shown on the appraisal will not impact the LTV calculation for purposes of this Variance.

       

 

  

 

Lender must inform the borrower that the purpose of the borrower-ordered appraisal and its contents are for the use and information of the borrower only, and will not be considered for purposes of the loan transaction.

 

Determination of Property Value

 

 

Property value for purposes of loan delivery and for determining LTV/CLTV/HCLTV is the sales price of the property as evidenced by the sales contract between Fannie Mae and the buyer/borrower (“Contract Sales Price”).

 

MORTGAGE INSURANCE/CREDIT ENHANCEMENT

 

 

Mortgage Insurance Coverage (“MI”)

 

 

MI is not required, provided that at delivery Mortgages with LTVs over 80% will be subject to the applicable LLPAs per Attachment 1 .

 

DESKTOP UNDERWRITER

 

 

Required Recommendation Levels

 

 

 

 

Any of the following:

   

 

  

 

Approve

   

 

  

 

EA-I

 

 

 

 

Requires an “Eligible” recommendation. “Ineligible” recommendations are permitted if only reason for ineligibility is:

   

 

  

 

LTV greater than 85% for non-IO Mortgages secured by 1- unit investment properties; or

     

 

  

 

LTV greater than 75% for non-IO Mortgages secured by 2- unit investment properties.

 

Documentation Levels

 

 

Must use documentation levels issued by DU, except for the level of fieldwork recommendation.

 

DU Messaging

 

 

 

 

Lender may disregard the following DU messages, provided that the Mortgage complies with all requirements of this Variance:

       

 

  

 

Any message relating to the 1-unit investment property

 

Master Agreement ML02783

VAR 12 - 3

Amendment 9

March 15, 2011


            receiving an “Ineligible” recommendation due to an LTV/CLTV/HCLTV greater than 85%, per “Required Recommendation Levels” section above;
     

 

 

 

Any message relating to the 2-unit investment property receiving an “Ineligible” recommendation due to an LTV/CLTV/HCLTV greater than 75%, per “Required Recommendation Levels” section above;

     

 

 

 

Any message relating to amount of MI required;

     

 

 

 

Any message that says the maximum allowable IPC has been exceeded on a principal residence with LTV or CLTV over 90%;

     

 

 

 

Any message related to the level of fieldwork recommendation; and

     

 

 

 

Any message that says the property value estimate appears to have an excessive rate of appreciation based on analysis on a recent sale.

 

Limited Waiver of Representations and Warranties

 

 

Mortgages receiving an “Approve” or “EA” recommendation are eligible for the limited waiver of underwriting representations and warranties provided the Mortgage complies with all applicable terms of the limited waiver per the Selling Guide and this Variance.

 

DU Submission Instructions

 

 

HomePath Mortgages must not be submitted to DU as MyCommunityMortgages.

 

PROJECT APPROVAL AND REQUIREMENTS

 

 

Project Eligibility

 

 

Lender is not required to warrant that the condominium, cooperative or PUD project meets Fannie Mae’s project eligibility criteria.

 

Project Type Code

 

 

 

 

Lender must utilize the following Project Type Codes at the time of delivery for all HomePath Mortgages secured by a property in a condominium project, cooperative project, or planned unit development where no project review is performed:

     

 

 

 

V - for properties in a condominium project,

     

 

 

 

2 - for properties in a cooperative project, and

     

 

 

 

E - for properties in a planned unit development.

   

 

 

 

As a reminder, a Project Type Code of G would be used at the time of delivery for all Mortgages secured by a property that is not located in a condominium project, cooperative project, or planned unit development.

 

Insurance

 

 

Lender must confirm that the project has adequate hazard, flood, and liability coverage in place and verify the existence of fidelity insurance coverage.

 

ADDITIONAL REQUIREMENTS

 

 

Refinance of HomePath

 

 

HomePath Mortgages originated in accordance with these

 

Master Agreement ML02783

VAR 12 - 4

Amendment 9

March 15, 2011


Mortgages  

requirements are not eligible for refinance under Fannie Mae’s Refi Plus™.

 

ORIGINATION CHANNEL REQUIREMENTS

 

 

Eligible Channel(s)

 

 

All

 

PRICING

 

   

 

MBS

 

 

 

 

Base guaranty fee is per MBS Contract for applicable mortgage product (“Base Pricing”).

 

 

 

 

See applicable LLPAs in “Loan-Level Price Adjustment(s)” section below.

 

Whole Loans

 

 

 

Current pricing will be provided at time Mortgages are committed for sale (“Base Pricing”).

 

 

 

 

See applicable LLPAs in “Loan-Level Price Adjustment(s)” section below.

 

Loan-Level Price Adjustment(s) (“LLPA”)

 

 

 

 

In addition to applicable Base Pricing, HomePath Mortgages are subject to the following LLPAs:

     

 

 

 

 

LLPAs per Attachment 1 : and

 

All LLPAs per the Selling Guide per the “Loan-Level Price Adjustment (LLPA) Matrix and Adverse Market Delivery Charge (AMDC) Information” on efanniemae.com with the exception of investment property (see Attachment 1 for LLPAs assessed on investment properties).

 

Pricing Changes

 

 

Fannie Mae reserves the right to change any pricing related to HomePath Mortgages with 60 days prior notice to Lender.

 

DELIVERY REQUIREMENTS

 

   

 

Special Feature Code(s) (“SFC”): Specific to Variance Mortgages

 

 

057- for all HomePath Mortgages

 

Special Feature Code(s) (“SFC”): Other Instructions

 

 

 

 

All standard per Selling Guide, including:

   

 

 

 

118 (for first Mortgages originated in conjunction with Community Seconds transactions); and

     

 

 

 

062 (Expanded Approval Mortgages) - for all HomePath Mortgages that receive an EA-I recommendation from DU.

 

Mortgage Insurance (MI) Code

 

 

MI Code 98 for Mortgages over 80% LTV.

 

Execution Options

 

 

Both whole loan and MBS executions are available.

 

Whole Loan Deliveries

 

 

Lender must use eCommitting™.

 

Combining with Other Variances

 

 

Lender may NOT combine HomePath Mortgages with other variances.

 

Master Agreement ML02783

VAR 12 - 5

Amendment 9

March 15, 2011


 

Housing Goals Data

 

 

  

 

Lender is required to report all applicable Housing Goals data. If no appraisal is obtained, then Lender should use the information from the property description on www.homepath.com .

 

 

  

 

For investment properties occupied by renters, Lender must report the current rental income at delivery, even if the rental income was not used to qualify the borrower.

 

 

  

 

If the property is vacant and rental data is unavailable, Lender must deliver the loans as “missing” for the relevant housing goals fields, and subsequently contact their Account Team to submit a Housing Goals Data Waiver Request for the missing fields.

 

Selling Representations and Warranties

 

 

Lender makes all selling representations and warranties per the Selling Guide, as modified by this Variance.

 

Effective Date for Sale of Variance Mortgages

 

 

This Variance will be effective for whole loans purchased on or after February 1, 2011 and for loans delivered into MBS pools with issue dates on or after February 1, 2011.

PART B. HomePath Renovation Mortgages

HomePath Renovation Mortgages are subject to the terms and conditions in Part A for HomePath Mortgages above, except as follows:

 

 

ELIGIBILITY REQUIREMENTS

 

 

Maximum LTV/CLTV/HCLTV (%)

 

 

 

 

Maximum LTV/CLTV/HCLTV are the same as applicable to HomeStyle Renovation mortgages, except:

   

 

  

 

97/97/97 for 1 -unit principal residence.*

   

 

  

 

85/85/85 for 1-unit investment properties

   

 

  

 

75/75/75 for 2-4 unit investment properties

 

 

*Max CLTV is 105% if the mortgage is part of a Community Seconds transaction.

 

Property Types

 

 

 

 

When the security property is a unit in a condominium (or cooperative) project, the project must be one for which the proposed renovation work is permissible under the bylaws of the owners’ association (or cooperative corporation) or one for which the owners’ association (or cooperative corporation) has given written approval for the renovation work. The renovation work for a condominium or cooperative unit must be limited to the interior of the unit (including the installation of fire walls in the attic).

 

 

 

 

Manufactured homes are ineligible.

 

Mortgage Products/Features

 

 

 

 

Eligible:

     

 

  

 

All standard fully amortizing FRMs and 30-year ARM

 

Master Agreement ML02783

VAR 12 - 6

Amendment 9

March 15, 2011


(including Amortization Type and Term)           products with initial fixed rate periods of at least 3 years per Selling Guide, including high-balance mortgages.
   

 

 

 

Ineligible:

     

 

 

 

Mortgages with interest-only features

     

 

 

 

Mortgages with original terms over 30 years

       

 

 

 

ARMs with initial fixed rate periods less than 3 years

 

Eligible ARM Plan Numbers

 

 

Per Selling Guide (fully amortizing 30-year ARMs with initial fixed rate periods of at least 3 years), as applicable to the standard eligibility requirements for the specific mortgage type.

 

Mortgaged Property

 

 

 

 

Mortgages must be secured by properties that are acquired from Fannie Mae and designated by Fannie Mae on www.homepath.com website as eligible for HomePath Renovation financing.

   

 

 

 

Lender must document the file with appropriate pages printed from www.homepath.com showing that the property was eligible for HomePath Renovation financing.

 

UNDERWRITING/DOCUMENTATION

 

 

Interested Party Contributions(“IPC”)

 

 

 

 

Maximum IPC:

     

 

 

 

Notwithstanding the Selling Guide requirements, for principal residences with LTV (or CLTV if applicable) greater than 90%: 6.00% of the Contract Sales Price (see “Determination of Property Value” section below).

 

ADDITIONAL BORROWER ELIGIBILITY

 

 

Eligible Borrower: Renovation

 

 

Borrower must be an individual (for-profit or non-profit investors and local government agencies are not eligible borrowers).

 

PROPERTY VALUATION/APPRAISAL REQUIREMENTS

 

 

Required Appraisal Type

 

 

Lender must obtain an “as-completed” full appraisal.

 

Determination of Property Value

 

 

 

 

Property value for purposes of loan delivery and for determining LTV/CLTV/HCLTV shall be the lesser of:

     

 

 

 

the “as completed” appraised value; or

       

 

 

 

the sum of the sales price of the property as evidenced by the sales contract between Fannie Mae and the buyer/borrower (“Contract Sales Price”) and the total renovation costs (which include the renovation costs and all allowable fees and charges).

 

RENOVATION REQUIREMENTS

 

 

HomeStyle Renovation Requirements: Limitation

 

 

 

 

Lender is responsible for managing and monitoring the completion of the renovation work. All requirements

 

Master Agreement ML02783

VAR 12 - 7

Amendment 9

March 15, 2011


of Applicability       applicable to Fannie Mae’s HomeStyle Renovation mortgages relating to the actual renovation process apply, including holdbacks, renovation escrow, disbursement, contingency reserve, change orders, sweat equity and insurance, except as otherwise specified in this Variance, the HomePath Documents or as described below:
     

 

 

 

Completion Date. The renovations must be completed within 6 months of the closing date.

     

 

 

 

Total Cost. The total renovation costs may not exceed the lesser of 35% of the “as completed” appraised value or $35,000.00.

     

 

 

 

No Recourse. If the HomePath Renovation Mortgage becomes delinquent during the renovation period, there is no automatic recourse to Lender as there is for HomeStyle Renovation mortgages, and Lender is not required to code the HomePath Renovation Mortgage with SFC “001.” However all of Lender’s standard selling representations and warranties apply to HomePath Renovation Mortgages.

     

 

 

 

Mortgage Payments During Renovation Period. Lender may not escrow for any mortgage payments that may come due during the renovation period.

     

 

 

 

Multiple Contractors. Borrower may use more than one contractor, provided that all HomeStyle Renovation requirements related to the contractor apply to each contractor.

     

 

 

 

Contingency Reserve. Contingency reserve per HomeStyle Renovation requirements is mandatory for

       

 

 

 

all Mortgages with LTVs of 95% or more, and

       

 

 

 

all Mortgages secured by 2-4 unit properties, regardless of LTV.

     

 

 

 

Do-it-yourself Projects. “Do-it-yourself” borrower projects are allowed per standard HomeStyle Renovation guidelines, except the maximum LTV/CLTV is 75%.

     

 

 

 

Verification of Completion. Lender must provide Fannie Mae with verification of completion of the renovation upon request of Fannie Mae.

     

 

 

 

No Modification of Loan Amount. The Mortgage may not be modified to change the balance based on change orders or increases to the construction contract.

       

 

 

 

SFCs. Lender should NOT use HomeStyle Renovation SFC “ 215 ” (see applicable SFCs in “Special Feature Code(s) (“SFC”): Specific to Variance Mortgages” section below).

 

DESKTOP UNDERWRITER

 

 

Required

Recommendation Levels

 

 

 

 

Any of the following:

   

 

 

 

Approve

       

 

 

 

EA-I

 

Master Agreement ML02783

VAR 12 - 8

Amendment 9

March 15, 2011


   

 

 

 

Requires “Eligible” recommendation. “Ineligible” recommendations are permitted if the only reason for ineligibility is one of the following:

     

 

 

 

LTV/CLTV/HCLTV greater than 95% for a 1-unit principal residence.

       

 

 

 

LTV greater than 75% for a 1-unit investment property, provided the LTV complies with the maximum LTV stated above. (CLTV and HCLTV for 1-unit investment properties currently at 85% for HomeStyle Renovation in DU.)

 

Documentation Levels

 

 

Must use documentation levels issued by DU.

 

DU Data Entry Requirements

 

 

 

 

For all transactions other than 2-4 unit investment properties, the renovation costs must be entered in Line b of Section VII (Details of Transaction) on the loan application.

   

 

 

 

For 2-4 unit investment properties, Lender should not enter the renovation costs on Line b or DU will issue an Out of Scope recommendation. For these transactions, the sum of the sales price and the renovation costs must be entered in Line a.

 

DU Messaging

 

 

 

 

Lender may disregard the following DU messages, provided that the Mortgage complies with all requirements of this Variance:

     

 

 

 

Message requiring Lender to verify the cost of improvements does not exceed 50% of the as-completed appraised value (see the “ HomeStyle Renovation Requirements: Limitation of Applicability” section above);

     

 

 

 

Any message relating to amount of MI required; and

       

 

 

 

Any message that says the maximum allowable IPC has been exceeded on a principal residence with LTV over 90%.

 

LOAN AND LEGAL DOCUMENTATION

 

 

Legal Documents: Renovation

 

 

 

 

Lender must use the following (“HomePath Documents”):

     

 

 

 

HomePath Maximum Mortgage Worksheet

     

 

 

 

HomePath Renovation Loan Agreement

     

 

 

 

HomeStyle Completion Certificate (Form 1036) - Lender must add “HomePath Renovation” in the “Other” category in the Loan products box of Form 1036

     

 

 

 

Appraisal Update and/or Completion Report (Form I004D)

   

 

 

 

In addition to the mandatory HomePath Documents listed above, Lender at its option may use other model HomeStyle documents (e.g., Lien Waiver, Contractor Profile Report, Change Order Request) provided that the types of transactions and the types of lenders making the HomePath Renovation Mortgage may be subject to a variety of laws and regulations, so it may be necessary to modify this document for use by

 

Master Agreement ML02783

VAR 12 - 9

Amendment 9

March 15, 2011


        Lender or in particular transactions.

 

ADDITIONAL LENDER REQUIREMENTS

 

 

HomeStyle Approval

 

 

Lender must be approved to sell HomeStyle Mortgages to Fannie Mae.

 

ADDITIONAL REQUIREMENTS

 

 

Servicing Transfers: Renovation

 

 

Lender cannot transfer servicing of HomePath Renovation Mortgages until the renovation is complete.

 

DELIVERY REQUIREMENTS

 

 

Special Feature Code(s) (“SFC”): Specific to Variance Mortgages

 

 

058 - for all HomePath Renovation Mortgages

 

Special Feature Code(s) (“SFC”): Other Instructions

 

 

 

 

All standard per Selling Guide, including:

   

 

 

 

118 (for first Mortgages originated in conjunction with Community Seconds transactions); or

       

 

 

 

062 (Expanded Approval Mortgages) - for all HomePath Renovation Mortgages that receive an EA-I recommendation from DU.

 

Master Agreement ML02783

VAR 12 - 10

Amendment 9

March 15, 2011


Attachment 1

Pricing

 

(1) LLPAs applicable to HomePath Mortgages and HomePath Renovation Mortgages with no MI, in addition to all applicable LLPAs per Selling Guide and this Attachment 1 :

 

LTV

  

LLPA

(No MI)

80.01-85%    [***]%
85.01-90%    [***]%
90.01-95%    [***]%
95.01-97%    [***]%

 

(2) LLPAs applicable to HomePath Mortgages and HomePath Renovation Mortgages secured by investment properties. This is in lieu of the LLPA applicable to mortgages secured by investment properties per the Selling Guide, but is in addition to all other applicable LLPAs per Selling Guide and this Attachment 1:

 

Representative

Credit Scores

  

<=70.00

  

70:01 — 75.00%

  

75.01 — 80.00%

  

80.01 — 90.00%

  

SFC

> = 740

   [***]%    [***]%    [***]%    [***]%    057 and 058

<740

   [***]%    [***]%    [***]%    [***]%    057 and 058

 

Master Agreement ML02783

VAR 12 - 11

Amendment 9

March 15, 2011

[***] Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.


VAR 13 HomeStyle Renovation Mortgages (04/2010)

 

Title (Version):        HomeStyle ® Renovation Mortgages (04/2010)
Description:    Lender is approved to sell HomeStyle Renovation Mortgages per the Selling Guide.

 

 

DELIVERY REQUIREMENTS

 

Special Feature Code(s) (“SFC”): Specific to Variance Mortgages   

•  “215”

 

•  “001”

 

Note: Once renovation has been completed, Lender must contact its Fannie Mae Customer Account Team to remove SFC “001.”

Special Feature Code(s) (“SFC”): Other Instructions        To have the recourse obligation (identified by SFC “001”) removed from any Mortgage, Lender must provide its Fannie Mae Senior Account Manager or Customer Account Risk Manager with documentation showing that renovation related to such Mortgage has been completed.

 

UNDERWRITING/DOCUMENTATION

 

Contingency Reserve    Borrower shall be permitted to maintain a 10% contingency reserve held in a depository account with the Lender, in lieu of having a renovation escrow account. However, if the reserve is held in borrower’s personal account, the Lender must place a hold on said funds until such time as the renovation is completed pursuant to the Selling Guide.

 

VOLUME LIMITS

 

    
Maximum Dollar Amount        $5,000,000 aggregate UPB of Variance Mortgages outstanding at any time for which a certificate of completion has not been submitted by Lender to Fannie Mae in accordance with the Selling Guide.

420948v3

 

Master Agreement ML02783

VAR 13 - 1

Amendment 9

March 15, 2011


SPECIAL REQUIREMENTS

This Special Requirements Attachment is attached to and made a part of the Master Agreement. Under this Master Agreement, Lender may sell Mortgages originated in accordance with the following special requirements. Unless otherwise specified, the following special requirements apply only to conventional, first lien Mortgages.

 

Master Agreement ML02783

SREQ - 1

Amendment 1

May 15, 2010


SPECIAL REQUIREMENTS

TABLE OF CONTENTS

 

Title
 

SR 1 Lender Scheduled/Scheduled Remittances (04/10)

 

Master Agreement ML02783

SREQ/TOC – 1

Amendment 1

May 15, 2010


SR 1 Lender Scheduled/Scheduled Remittances (04/10)

 

Title (Version):    Lender Scheduled/Scheduled Remittances (04/10)
Description:    Lender may remit by wire transfer “scheduled/scheduled” remittances of principal and interest up to two days prior to the date on which Fannie Mae’s Automated Drafting System will draft all unremitted amounts, subject to the following:
   
  

 

REMITTANCE OBLIGATIONS

 

General   

•    The Servicing Guide provides that Fannie Mae will draft scheduled/scheduled principal and interest payments on the 18 th of each calendar month (or the preceding business day if the 18th is not a business day).

 

•    Lender may elect to remit scheduled/scheduled remittances by wire transfer up to two business days prior to the business on which Fannie Mae will draft funds from the applicable account through the Automated Drafting System.

 

•    Lender shall notify Fannie Mae in advance of the amount of each such wire transfer remittance.

 

•    If Fannie Mae receives such notice, and the wire transfer to Fannie Mae is completed by 10:00 a.m. ET on the business day prior to the 18 th , Fannie Mae will reduce the automated draft amount to reflect the remittances received via such wire transfer.

 

•    As examples:

 

•    if the 18 th of the month falls on a Sunday (and the Thursday and Friday prior are both business days), the last business day on which the Lender may wire funds pursuant to this Special Requirement is Thursday the 16 th .

 

•    If the 18 th falls on a Monday (and that date and the Thursday and Friday prior are all business days), the last business day on which the Lender may wire funds pursuant to this Special Requirement is Friday the 15 th .

Termination    Fannie Mae may modify or terminate this Special Requirement in its sole discretion.

261142v2

 

Master Agreement ML02783

SR 1 Lender Scheduled/Scheduled Remittances (04/10) - 1

Amendment 1

May 5, 2010


FIXED-RATE PRODUCT ATTACHMENT

This Fixed-Rate Product Attachment for FHA/VA or conventional fixed-rate, residential mortgage loans (“Fixed-Rate Mortgages”) is attached to and made a part of the Master Agreement.

Variances, Special Products, and Special Requirements Applicable to Fixed-Rate Mortgages

Please refer to the attachments under the “Variances” tab and the “Special Requirements” tab, as applicable, for eligibility for variances, special products, and special requirements.

MBS Guaranty Fee and Buyup/Buydown Information

The guaranty fee due to Fannie Mae for any Mortgage sold under any MBS Contract shall be at the annual rate specified in the applicable MBS Contract, payable monthly, after giving effect to any reduction of the guaranty fee through use of the MBS Express remittance cycle, if applicable. In addition, the guaranty fee will be set before giving effect to (i) any reduction of the guaranty fee through use of the rapid payment method of remittances, if applicable, and (ii) any increases or decreases of the guaranty fee relating to any buyups or buydowns of such fee, if applicable.

Lender must choose the applicable Buyup/Buydown Grid posting, “Early” or “Late,” by contacting its customer account team in its lead regional office, prior to the “Early” grid posting. If Lender fails to notify its lead regional office of its grid selection before the “Early” grid is posted, Fannie Mae will assume that Lender has selected the “Early” posting grid. Lender’s grid selection will apply to all MBS pools that it sells under the same MBS Contract. Ratios for products or note rates that are not included in the regular posting may be negotiated through Lender’s lead regional office.

 

Master Agreement ML02783

FRM - 1

Amendment 9

March 15, 2011


Contract No. L01030

FIXED-RATE MORTGAGE POOL PURCHASE CONTRACT

MASTER AGREEMENT ML02783 Second Term

 

 

Lender: HomeStreet Bank    Lender Number: 20722-000-0

 

 

Eligible Products:    10, 15, 20, 25, 30, 40 year fixed-rate mortgages
Guaranty Fee:    [***] Basis Points (10yr, 15yr FRM)
   [***] Basis Points (20yr, 25yr, 30yr, 40yr FRM)
   [***] Basis Points (30yr, 40yr IO FRM)
Maximum Amount of Pool Purchase Transactions for Delivery during Second Delivery Term:    $1,250,000,000.00
Original First and Last Issue Date for Pools formed under this Contract:    April 1, 2010 - June 1, 2011
First Issue Date for Pools formed under this amended Contract:    April 1, 2011
Servicing Option:    Special
Buyup/Buydown Grid:    Early (See additional terms in the MBS Guaranty Fee and Buyup/Buydown Information on the Fixed- Rate Product Attachment.)
Mortgage Type:    Conventional
Remittance Cycle:    Standard
Seasoning Requirements:    Current
Special Feature Codes:    Per the Selling Guide and applicable attachments under the “Variances” and “Special Requirements” tabs of the Master Agreement.

Additional Terms:

 

 

The Guaranty Fee adjustment for the MBS Express or RPM remittance cycle, if applicable, may be changed by Fannie Mae from time to time and will be effective 60 days after notice to Lender.

 

 

Only FRMS and IO FRMS must be delivered under this MBS Contract. All other Mortgage products are ineligible.

 

Pool Purchase Contract No. L01030

FRM - 1

Amendment 9

March 15, 2011

[***] Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.


ARM PRODUCT ATTACHMENT

This ARM Product Attachment for conventional adjustable-rate residential mortgage loans is attached to and made a part of the Master Agreement.

Standard Fannie Mae ARM Plans Eligible for Delivery Under MBS Contracts

For a complete description of Fannie Mae’s standard ARM plans, see the Standard ARM Plan Matrix on efanniemae.com. Each ARM MBS Contract will reference ARM plans eligible for delivery under such MBS Contract.

Variances, Special Products, and Special Requirements Applicable to Adjustable-Rate Mortgages

Please refer to the attachments under the “Variances” tab and the “Special Requirements” tab, as applicable, for eligibility for variances, special products, and special requirements.

MBS Guaranty Fee and Buyup/Buydown Information

The guaranty fee due to Fannie Mae for any Mortgage sold under any MBS Contract shall be at the annual rate specified in the applicable MBS Contract, payable monthly, after giving effect to any reduction of the guaranty fee through use of the MBS Express remittance cycle, if applicable. In addition, the guaranty fee will be set before giving effect to (i) any reduction of the guaranty fee through use of the rapid payment method of remittances, if applicable, and (ii) any increases or decreases of the guaranty fee relating to any buyups or buydowns of such fee, if applicable.

Lender must choose the applicable Buyup/Buydown Grid posting, “Early” or “Late,” by contacting its customer account team in its lead regional office, prior to the “Early” grid posting. If Lender fails to notify its lead regional office of its grid selection before the “Early” grid is posted, Fannie Mae will assume that Lender has selected the “Early” posting grid. Lender’s grid selection will apply to all MBS pools that it sells under the same MBS Contract. Ratios for products or note rates that are not included in the regular posting may be negotiated through Lender’s lead regional office.

 

Master Agreement ML02783

ARM - 1

Amendment 9

March 15, 2011


Contract No. L01028

ADJUSTABLE-RATE MORTGAGE POOL PURCHASE CONTRACT

MASTER AGREEMENT ML02783 Second Term

 

Lender: HomeStreet Bank

   Lender Number: 20722-000-0
Eligible Products:    Adjustable-Rate Conventional Mortgages
Plan Number(s):    03505, 00659, 00660, 00661, 02238, 02699, 02724, 02725, 02737, 03128, 03252 (only those listed above are eligible under this contract - for more details, see the Standard ARM Plan Matrix on efanniemae.com or, if applicable, the instructions in the Additional Terms section)
Guaranty Fee:   

[***] Basis Point (30yr, 40yr ARM)

[***] Basis Points (30yr “IO” ARM)

Maximum Amount of Pool Purchase Transactions for Delivery during Second Delivery Term:   

$60,000,000.00

Original First and Last Issue Date for Pools formed under this Contract:    April 1, 2010 - June 1, 2011
First Issue Date for Pools formed under this amended Contract:    April 1, 2011
Servicing Option:    Special
Buyup/Buydown Grid:    Early (See additional terms in the MBS Guaranty Fee and Buyup/Buydown Information in the Preamble section.)
Mortgage Type:    Conventional
Pooling Structure:    ARM Flex
Remittance Cycle:    Standard
Seasoning Requirements:    Current
Conversion Option:    N/A
Special Feature Codes:    Per the Selling Guide and applicable attachments under the “Variances” and “Special Requirements” tabs of the Master Agreement.

 

Pool Purchase Contract No. L01028

ARM - 1

Amendment 9

March 15, 2011

[***] Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.


Additional Terms:

 

 

The Guaranty Fee adjustment for the MBS Express or RPM remittance cycle, if applicable, may be changed by Fannie Mae from time to time and will be effective 60 days after notice to Lender.

 

 

Only ARMS and IO ARMS must be delivered under this MBS Contract. All other Mortgage products are ineligible.

 

Pool Purchase Contract No. L01028

ARM - 2

Amendment 9

March 15, 2011


LOGO

CONFIDENTIAL

March 15, 2011

Mr. Curt Byers

Vice President of Secondary Marketing

HomeStreet Bank

601 Union Street

2000 Two Union Square

Seattle, WA 981012326

 

Subject    Master Agreement No:    ML02783   
   Delivery Term:    Second   
   Master Agreement Amendment No.:    Amendment 9   
   Lender No.:    20722-000-0   

Dear Mr. Byers:

By execution of this Letter Agreement, Fannie Mae and HomeStreet Bank (the “Lender”) agree to amend the above-referenced Master Agreement and Contract (if applicable). The amended terms and conditions are set forth in the amended pages to the Master Agreement and (if applicable) the Contract attached to this Letter Agreement. The attachments should be inserted into the Lender’s Master Agreement as described below. Capitalized terms used but not defined in this Letter Agreement, shall have the meanings set forth in the Master Agreement.

The amended terms and conditions are set forth below. If applicable, the Lender and Fannie Mae shall rely also on any attached pages for a complete description of the amended terms and conditions.

The amended terms and conditions:

 

1.   

Amended term:

 

Instructions:

  

Amend the agreement amount and expiration date for the Master Agreement.

 

In your Master Agreement, replace the following titled sections:

 

•        EXHIBIT 1 TO MASTER AGREEMENT ML02783.

 

Master Agreement ML02783

LE - 1

Amendment 9

March 15, 2011


2.    Amended term:    Amend certain provisions of certain VAR[s] in the “Variances” section of your Master Agreement.
  

 

Instructions:

  

 

•        Replace the VAR/TOC (Table of Contents) with the enclosed VAR/TOC (Table of Contents).

 

•        Replace the following VAR[s] with the enclosed VAR[s] in the “Variances” section of your Master Agreement:

 

•      VAR 12 - HomePath and HomePath Renovation Mortgages.

3.    Amended term:    Add the ability to originate and sell certain mortgages as described in the “Variances” section of your Master Agreement.
  

 

Instructions:

  

 

•        Insert the following VAR[s] into the “Variances” section of your Master Agreement:

 

•      VAR 13 - HomeStyle Renovation Mortgages (04/2010).

4.    Amended term:    Discontinue the ability to originate and sell certain mortgages as described in the “Variances” section of your Master Agreement.
  

 

Instructions:

  

 

•        Remove the following VAR[s] from the “Variances” section of your Master Agreement:

 

•      VAR 1 - HomeStyle Renovation Mortgages;

 

•      VAR 3 - Energy Efficient Mortgages (EXPIRING);

 

•      VAR 7 - HomeStyle Renovation Escrow (03/10);

 

•      VAR 8 - Brigham Young University Residential Leasehold Estates in Hawaii (03/10); and

 

•      VAR 11 - HomePath and HomePath Renovation Mortgages (EXPIRING).

5.    Amended term:    Amend Pool Purchase Contract[s]: L01028 and L01030.
   Instructions:   

Replace Pool Purchase Contract[s] in your Master Agreement as follows:

 

•        Fixed-Rate - L01030 in the Fixed-Rate section of your Master Agreement.

 

•        Adjustable-Rate - L01028 in the Adjustable-Rate section of your Master Agreement.

If you have received the “MASTER AGREEMENT GENERAL TERMS”, “SPECIAL REQUIREMENT” Terms and/or Pool Contract “PRODUCT ATTACHMENT[S]”, please insert/replace them in their respective sections. All replaced sections, along with this letter, should be inserted under the “Amendment History” tab.

For whole loan deliveries, any loan-level price adjustments (“LLPAs”) that are referenced in the Master Agreement, will be available no later than 30 days after Fannie Mae receives the executed Letter Agreement from Lender.

 

Master Agreement ML02783

LE - 2

Amendment 9

March 15, 2011


By execution of this Letter Agreement, Fannie Mae and the Lender agree to and accept the amended terms and conditions as set forth in the attachments to this Letter Agreement. The effective date of the amendments is the date of Fannie Mae’s receipt of this Letter Agreement executed by the Lender (or the later of the date Fannie Mae receives the executed Letter Agreement or the date shown on Exhibit 1, if Exhibit 1 has been revised in this Letter Agreement). The Lender shall return a duly-executed duplicate original of this Letter Agreement to Fannie Mae within ten business days of the date this Letter Agreement is executed by Fannie Mae. If Fannie Mae does not receive an executed duplicate original (or electronic version, as provided below) of this Letter Agreement from the Lender within ten business days, Fannie Mae may, at its option, declare this Letter Agreement null and void. You may return this Letter Agreement to Fannie Mae via facsimile or other means of electronic transmission. Please be aware that if you return only the executed signature page by electronic means (and not the balance of the Letter Agreement) then you are warranting that you have accepted the Letter Agreement in its entirety in the form sent to you by Fannie Mae, with no strike-outs, additions or other changes. NOTE: if you see anything that needs to be changed in this Letter Agreement, please give your Customer Account representative a call before you sign the original.

Sincerely,

FANNIE MAE

 

By:  

/s/ Colette Porter

 

Colette Porter

Director/Assistant Vice President

Agreed, acknowledged and accepted.
HOMESTREET BANK
By:  

/s/ Curt Byers

Name:  

Curt Byers

Title:  

Vice President

Date:  

3/28/2011

Email addresses for contact related communications are listed below. Please make additions or corrections as necessary.

curt.byers@homestreet.com

sharon.todhunter@homestreetbank.com

 

Master Agreement ML02783

LE - 3

Amendment 9

March 15, 2011

Exhibit 10.29

[***] Indicates confidential material that has been omitted pursuant to a Confidential Treatment Request filed with the Securities and Exchange Commission. A complete copy of this agreement has been separately filed with the Securities and Exchange Commission.

Execution Draft

CASH PLEDGE AGREEMENT

This Cash Pledge Agreement (the “ Agreement ”), dated as of June 1, 2010 (the “ Effective Date ”), is made by HomeStreet Bank, a Washington state-chartered savings bank (“ Pledgor ”), in favor of the Federal Home Loan Mortgage Corporation (“ Freddie Mac ” or “ Secured Party ”) (Pledgor and Secured Party are hereafter sometimes individually referred to as a “ Party ” and, collectively, as the “ Parties ) .

RECITALS

WHEREAS, Pledgor (Seller/Servicer #727808) and Secured Party are parties to: (i) a Master Agreement #MA 10042083, effective as of June 1, 2010 (together with any renewals or replacements thereof, the “ Master Agreement ”); (ii) one or more Master Commitments related to the Master Agreement; and (iii) certain other Purchase Documents (as defined in the Master Agreement), including (without limitation) the Secure Party’s Single-Family Seller/Servicer Guide (the “ Guide ”); and

WHEREAS, pursuant to the Purchase Documents, Pledgor has sold and continues to sell to Secured Party residential mortgage loans; and

WHEREAS Secured Party and Pledgor have agreed that Pledgor will pledge One Million U.S. Dollars ($1,000,000) in cash, to collateralize and secure the Pledgor Obligations (as defined herein); and

WHEREAS, the Parties have agreed that Pledgor will pledge the Collateral to collateralize and secure the Pledgor Obligations, and the Parties desire to agree to the terms of such pledge of Collateral to secure the Pledgor Obligations.

NOW, THEREFORE, in consideration of the promises made herein, the direct and indirect benefits to be derived by Pledgor from pledging collateral for the benefit of Secured Party, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged Pledgor hereby agrees with Secured Party as follows:

1. Incorporation of Recitals; Defined Terms.

(a) The foregoing recitals are hereby incorporated herein by reference.

(b) Capitalized terms used but not defined in this Agreement shall have the meanings provided in the Purchase Documents. Other terms not otherwise defined herein or therein shall have the meanings given such terms in the Uniform Commercial Code as in effect in the State of New York (the “ UCC ”).

(c) “Account ” means an account or accounts with the Bank (established by Secured Party in Secured Party’s name and under its control), together with any and all (A) sub-accounts


thereof, (B) replacement, substitute and successor accounts and (C) linked or related accounts or sub-accounts held by Secured Party (collectively with any such deposit account, and as more specifically described in Exhibit A attached hereto and incorporated herein by this reference). The Account may, at Secured Party’s sole option, also include one or more designated subaccounts holding other funds of Secured Party (and/or funds held by Secured Party on behalf of third parties).

(d) “ Act of Insolvency ” with respect to Pledgor means: (i) the commencement by Pledgor or any and all direct or indirect parents of Pledgor (individually. a “ Pledgor-Related Entity ”, and collectively, the “ Pledger-Related Entities ”) as debtor of any case or proceeding under any bankruptcy, insolvency, reorganization, liquidation, moratorium, dissolution, delinquency or similar law or Pledgor (or any of the Pledgor-Related Entities) seeking the appointment or election of a receiver, conservator, trustee, custodian or similar official for Pledgor (or such Pledger-Related Entity, as applicable) or any substantial part of its property, or the convening of any meeting of creditors for purposes of commencing any such case or proceeding or seeking such an appointment or election; (ii) the commencement of any such case or proceeding against Pledgor (or any Pledgor-Related Entity), which (A) is consented to or not timely contested by Pledgor (or such Pledgor-Related Entity, as applicable), (B) results in the entry of an order for relief, such an appointment or election, or the entry of an order having a similar effect, or (C) is not dismissed within forty-five (45) calendar days; (iii) the making by Pledgor (or any Pledgor-Related Entity) of a general assignment for the benefit of creditors; or (iv) the admission in writing by Pledgor (or any Pledgor-Related Entity) of its inability to pay its debts as they become due.

(e) “ Bank ” means The Bank of New York Mellon, and any successor thereto or substitute therefor that is acceptable to Secured Party in its sole discretion.

(f) “ Cash Amount ” means One Million U.S. Dollars ($1,000,000) in cash.

(g) “ Collateral means (i) the Cash Amount, which shall be wire transferred by Pledgor to Secured Party (pursuant to the Wire Transfer Instructions) as set forth herein and deposited in the Account; (ii) any and all interest allocated by Secured Party to such Cash Amount, as provided herein; and (iii) all proceeds of the foregoing. The Account may include other funds, in addition to the Cash Amount, that Secured Party owns, and/or in which Secured Party has an interest, and the Collateral may be comingled with such other funds, provided that the Collateral (and any interest allocated thereto) is identifiable by Secured Party.

(h) “ Collateral Value ” means, as of any time, one hundred percent (100%) of the cash, held in the Account, which is attributable to the Collateral, pursuant to Secured Party’s records.

(i) “ Eligible Collateral ” means the Collateral carried in the Account, in which Secured Party has a first priority security interest perfected by control.

(j) “ Event of Default ” has the meaning given to such term in Section 11 below.

 

2


(k) “ Fed Effective Rate ” means the daily rate set forth in Federal Reserve Statistical Release H.15(519), opposite the caption “Federal Funds (Effective)”. If, for any reason, such rate shall be unavailable, the “Fed Effective Rate” shall be such rate as nearly equivalent to the foregoing as Secured Party shall determine.

(l) “ Pledgor Obligations ” means: (i) all the repurchase and/or indemnification obligations of Pledgor under the Purchase Documents, which obligations are (a) due and owing to Secured Party under the Purchase Documents, and (b) not subject to any right of appeal (or, if applicable, additional or further right of appeal) under the Purchase Documents; and (ii) any obligations of Pledgor under Section 3 (“Collateral Maintenance”) below.

(m) “ Required Collateral Amount ” has the meaning given to such term in Section 3 below.

(n) “ Wire Transfer instructions ” means Secured Party’s wire transfer instructions as set forth in Exhibit B attached hereto and incorporated herein by this reference.

(o) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Annex and Exhibit references are to this Agreement unless otherwise specified. The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

2. Grant of Security Interest Securing Pledgor Obligations; Payment of Pledgor Obligations .

(a) Pledgor hereby grants, pledges, and assigns to Secured Party, as collateral security for Pledgor’s prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of any and all Pledgor Obligations, a first priority continuing security interest (perfected by control) in, lien on, and right of set-off against any and all of Pledgor’s respective right, title and interest in, to and under the Collateral, whether now owned or hereafter acquired and wherever located. It is the intention of the Pledgor and the Secured Party that the security interests granted by the Pledgor to the Secured Party shall be made effective and shall be perfected to the fullest extent possible by the Secured Party.

(b) Pledgor acknowledges and agrees that (i) it shall timely pay and perform the Pledgor Obligations secured hereby as they are incurred in accordance with the terms of the Guide and the other Purchase Documents, and (ii) Secured Party will be entitled to retain the Collateral pursuant to the terms of this Agreement and until this Agreement is terminated pursuant to Section 13(j) below, irrespective of whether any Pledgor Obligations are due or outstanding at any particular time.

(c) Upon the occurrence of any Event of Default hereunder, Pledgor hereby irrevocably authorizes and directs Secured Party, without further consent from Pledgor, to satisfy, when due, any outstanding Pledgor Obligations from the Account by transferring cash and proceeds of Collateral to Secured Party for application against such Pledgor Obligations. Notwithstanding (i) anything to the contrary in any of the other Purchase Documents, and (ii) that Pledgor no longer qualifies thereafter as a “Seller/Servicer” under the Guide, Secured Party

 

3


may determine the Collateral to be withdrawn or liquidated and the timing thereof in its sole discretion.

3. Collateral Maintenance .

(a) As of the Effective Date, to secure the Pledgor Obligations, Pledgor agrees to wire transfer to the Account Eligible Collateral with a Collateral Value equal to the Cash Amount (the “ Required Collateral Amount ”). During the term of this Agreement, Pledgor covenants and agrees to maintain, as collateral security for the Pledgor Obligations, Eligible Collateral with a Collateral Value not less than the Required Collateral Amount. If, at any time during the term of this Agreement for any reason (including, without limitation, inadvertent release by Secured Party to Pledgor), the Eligible Collateral in the Account has a Collateral Value that is less than the Required Collateral Amount, Pledgor shall, within three (3) Business Days after the date of a written notice from Secured Party that the Eligible Collateral has a Collateral Value that is less than the Required Collateral Amount, transfer cash pursuant to the Wire Transfer Instructions such that the aggregate Collateral Value equals or exceeds the Required Collateral Amount. If at any time Pledgor shall fail to transfer additional cash to the Account in accordance with the preceding terms of this Section 3 , such failure shall constitute an Event of Default hereunder.

(b) Provided that (i) no Event of Default has occurred and is continuing, and (ii) the Collateral Value of Eligible Collateral held in the Account is greater than the Required Collateral Amount, Pledgor may, not more frequently than once per calendar month, request in writing that Secured Party release Collateral from the Account, whereupon Secured Party agrees that it shall release from the Account Collateral with a Collateral Value equal to such excess. Upon written agreement of the Parties, Secured Party may instead arrange for an automatic monthly payment of any such excess (provided that no Event of Default has occurred and is continuing); unless otherwise agreed in writing by the Parties, any such payment of any such excess shall be made pursuant to the wire transfer instructions provided by Pledgor to Secured Party in connection with Pledgor’s approval as a Freddie Mac Seller/Servicer.

(c) Any request by Secured Party or Pledgor hereunder may be made by telephone, electronic mail or facsimile, and shall be effective immediately as of the time made; provided, however, that any telephonic or electronic mail notice shall promptly be confirmed by delivery of written notice to the other party, pursuant to the notice provisions set forth in Annex I attached hereto and incorporated herein by reference.

4. Income . Unless and until Secured Party shall exercise rights in respect of the Collateral upon an Event of Default, interest on the Collateral shall accrue at the Fed Effective Rate for the benefit of Pledgor and shall be credited to the Account (or any applicable sub-account relating to the Collateral). Secured Party shall: (i) have the right to determine, in its sole discretion, the manner in which the Collateral is invested; (ii) only be obligated to pay interest on the Collateral at the Fed Effective Rate, regardless of any amount actually earned from the investment or reinvestment of the Collateral, and (iii) be entitled to deduct from any such interest earned at the Fed Effective Rate any actual fees charged by the Bank for the establishment or maintenance of

 

4


the Account (any such deduction shall be made on a pro rata basis, taking into account the total cash in the Account, and the percentage of such total cash that is represented by the Collateral).

5. Further Assurances .

(a) Pledgor covenants that, upon the request of the Secured Party, Pledgor will, at its sole expense, take all actions necessary to maintain the perfection of Secured Party’s lien on, and security interest in, the Collateral, including promptly executing, delivering and filing or causing to be executed, delivered and filed, any agreements, documents and statements and performing such acts as may be reasonably necessary to fully perfect, by control, or otherwise evidence Secured Party’s security interest in the Collateral.

(b) Pledgor covenants and agrees that it will (i) not take any action that could void or undermine Secured Party’s security interest in the Collateral; (ii) take such further action as Secured Party may reasonably request for the purpose of obtaining or preserving the full benefits of this Agreement any of the rights and powers herein granted; and (iii) upon request by Secured Party, pay any reasonable and customary filing fees or other costs and expenses incurred by either Party’ in connection with establishing and maintaining the Collateral and with perfecting Secured Party’s security interest in the Collateral.

7. Limited Power of Attorney .

(a) Pledgor hereby irrevocably constitutes and appoints Secured Party and any officer or agent thereof, with full power of substitution, as Pledgor’s true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of Pledgor and in the name of Pledgor or in its own name, and Pledgor authorizes Secured Party, without notice to the Pledgor from the time that Pledgor fails to perform or comply with any of its obligations contained in this Agreement and at any time thereafter as the Secured Party, in its sole discretion, may determine, (i) to execute, in connection with any sale provided for herein, any endorsements, assignments, or other instruments of conveyance or transfer with respect to the Collateral and to file any applicable initial financing statements, amendments thereto, continuation statements and control agreements with or without the signature of such Pledgor as authorized by applicable law as applicable to all or any part of the Collateral and (ii) to take the following actions and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement:

(A) in the name of Pledgor or its own name, or otherwise, take possession of and sell or liquidate the Collateral and endorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys or payable on or on account of any Collateral and to file any claim or to take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by Secured Party for the purpose of collecting any and all such moneys due with respect to any Collateral whenever payable;

(B) pay or discharge taxes and liens levied or placed on or threatened against the Collateral;

 

5


(C) direct any party liable for any payment under any Collateral to make payment of any and all moneys due or to become due thereunder directly to Secured Party or as Secured Party shall direct;

(D) ask or demand for, collect, receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral;

(E) sign and endorse any invoices, assignments, verifications, notices and other documents in connection with any of the Collateral;

(F) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any portion thereof and to enforce any other right in respect of any Collateral;

(G) defend any suit, action or proceeding brought against such Pledgor with respect to any Collateral;

(H) settle, compromise or adjust any suit, action or proceeding described in clause (G) above and, in connection therewith, to give such discharges or releases as Secured Party may deem appropriate; and

(I) generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the Collateral as fully and completely as though Secured Party were the absolute owner thereof for all purposes, and to do, at Secured Party’s option and Pledgor’s expense, at any time, and from time to time, all acts and things which Secured Party deems necessary to protect, preserve or realize upon the Collateral and Secured Party’s liens and security interests thereon and to effect the intent of this Agreement, all as fully and effectively as such Pledgor might do.

(b) Pledgor hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue hereof.

8. Rights and Obligations of Secured Party .

(a) If Pledgor fails to perform or comply with any of its obligations contained in this Agreement, Secured Party may itself perform or comply, or otherwise cause performance or compliance, with such obligations and all reasonable out-of-pocket expenses of Secured Party incurred in connection with such performance or compliance, together with interest on any such out-of-pocket expenses at a rate per annum equal to the highest legal rate of interest, shall be payable by Pledgor to Secured Party upon ten (10) calendar days’ notice that such amounts are due and payable, unless an Event of Default shall have occurred and is continuing, in which case such amounts shall be due and payable on demand and, in either case, shall constitute additional Pledgor Obligations.

 

6


(b) All authorizations and agencies herein contained with respect to the Collateral, including the limited power of attorney described in Section 7 above, are irrevocable until the later to occur of (i) the Pledgor Obligations shall have been irrevocably paid in full or (ii) Secured Party has agreed that this Agreement shall terminate, and are powers coupled with an interest.

(c) Any powers conferred on Secured Party hereunder are solely to protect its interest in the Collateral and shall not impose any duty upon it to exercise any such powers. Secured Party shall have no duty as to any Collateral or as to the taking of any necessary steps to preserve rights pertaining to the Collateral. Secured Party shall be under no duty or obligation, and Pledgor waives any right to require Secured Party to, make or give any presentment, demands for performance, protests or other notices in connection with any obligations comprising Collateral.

(d) This is a continuing Agreement and all rights, powers and remedies hereunder shall apply to all past, present and future Pledgor Obligations, including those Pledgor Obligations arising under successive transactions notwithstanding any Act of Insolvency by Pledgor or any other event or proceeding affecting Pledgor.

9. Representations and Warranties . As of the date of this Agreement and on a continuing basis throughout the term of this Agreement, Pledgor represents, warrants, and, as applicable, covenants to Secured Party that:

(a) Pledgor (i) is a bank, duly organized, validly existing and in good standing under the laws of the State of Washington; (ii) has all requisite power, and has all governmental licenses, authorizations, consents and approvals necessary to own its assets and carry on its business as now being or as proposed to be conducted; and (iii) is qualified to do business and is in good standing in all other jurisdictions in which the nature of the business conducted by it makes such qualification necessary;

(b) (i) Pledgor has all necessary power, authority and legal right to execute, deliver and perform its obligations under this Agreement; (ii) the execution, delivery and performance by Pledgor of this Agreement have been duly authorized by all necessary action on its part; and (iii) this Agreement has been duly and validly executed and delivered by Pledgor and constitutes a legal, valid and binding obligation of Pledgor, enforceable against Pledgor in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting the enforcement of creditor’s rights generally and general equitable principles (whether considered in a proceeding in equity or at law);

(c) No authorizations, approvals or consents of, and no filings or registrations with, any governmental authority or any securities exchange are necessary for the execution, delivery or performance by Pledgor of this Agreement or for the legality, validity or enforceability thereof;

 

7


(d) Except as disclosed on Exhibit C attached hereto and incorporated herein by this reference, and except for the lien and security interest granted to Secured Party pursuant to this Agreement, Pledgor owns the Collateral pledged to Secured Party free and clear of any and all liens or claims of others, and no security agreement, financing statement or other public notice with respect to all or any part of the Collateral is on file or of record in any public office, except such as may have been filed in favor of Secured Party pursuant to this Agreement;

(e) Pledgor acknowledges that the Account at all times will be a deposit account (as defined in Section 9-102(a)(29) of the UCC) maintained with the Bank, acting in the capacity of a bank (as defined in Section 9-102(a)(8) of the UCC), over which deposit account Secured Party has control under Section 9-104 of the UCC;

(f) Pledgor’s exact legal name and assigned organizational identification number, if any, are correctly set forth on the signature page hereof, and Pledgor will notify Secured Party in writing at least thirty (30) calendar days prior to any change in Pledgor’s name or identity;

(g) Except as disclosed on Exhibit C to this Agreement, Secured Party has a valid, first priority security interest in the Collateral that is perfected by control under Section 9-314 of the UCC; and

(h) This Agreement has been (A) either (1) specifically approved by Pledgor’s board of directors; or (2) approved by an officer of Pledgor who was duly authorized by Pledgor’s board of directors to enter into this type of contract; and (B) such approval or authorization is reflected in the minutes of the meetings of such board of directors. This Agreement shall constitute a “written agreement” governing Pledgor’s obligations to Secured Party with respect to the Collateral. Pledgor (and any successor thereto) will continuously maintain this “written agreement” as an official record of Pledgor.

10. Additional Covenants . Pledgor hereby covenants and agrees with Secured Party that, from and after the date of this Agreement until the Pledgor Obligations are paid in full or until the Collateral is released pursuant to Section 13(j) below:

(a) Without the prior written consent of Secured Party, Pledgor will not (i) sell, assign, transfer, exchange or otherwise dispose of, or grant any option with respect to, the Collateral; or (ii) except in favor of Secured Party, create, incur or permit to exist any lien or option in favor of, or any claim of any person with respect to, any of the Collateral, or any interest therein; or (ill) enter into or suffer to exist any agreement or undertaking restricting the right or ability of Pledgor or Secured Party to sell, assign or transfer any of the Collateral;

(b) Except as disclosed on Exhibit C to this Agreement, Pledgor will keep the Collateral free of all liens, claims, security interests and encumbrances of any kind or nature, whether voluntary or involuntary, except the security interest of Secured Party; and

(c) Pledgor shall, at Pledgor’s expense, take all actions necessary or advisable from time to time to maintain the first priority security interest, perfected by control, of Secured Party

 

8


in the Collateral and shall not take any actions that would alter, impair or eliminate such priority or perfection.

11. Events of Default . At the option of the Secured Party, the occurrence of any of the following shall be an Event of Default hereunder (an “ Event of Default ”):

(a) Pledgor’s failure to pay any Pledgor Obligation within three (3) Business Days of receipt by Pledgor of written notice sent by Secured Party that such obligation is unpaid;

(b) Secured Party’s termination of Pledgor as a Seller and/or as a Servicer, for cause, pursuant to the Purchase Documents;

(c) Pledgor’s failure to comply with any of the provisions, conditions, covenants or agreements in, or the incorrectness of any representation or warranty contained in, this Agreement, including without limitation Pledgor’s failure to maintain Eligible Collateral in accordance with the requirements of Section 3 above;

(d) Transfer or disposition of any of the Collateral, except as expressly permitted by this Agreement or otherwise agreed to in writing between the Parties;

(e) Attachment, execution, or levy on any of the Collateral by any party other than Secured Party without Secured Party’s prior express written consent, which consent may be withheld at the discretion of the Secured Party;

(f) Pledgor’s failure or the failure of any Pledger-Related Entity to comply with: (i) any applicable federal, state or local banking laws, rules, regulations, or other laws, or (ii) any orders, judgments, decisions, or decrees of any applicable regulator, court of competent jurisdiction, or arbitrator (pursuant to mandatory arbitration) in connection with which, in Secured Party’s discretion, noncompliance with clauses (i), (ii) or both may have any material adverse effect on the Collateral or Secured Party’s rights under this Agreement and such noncompliance, if subject to cure, continues for three (3) Business Days of receipt by Pledgor of written notice sent by Secured Party; or

(g) The occurrence of an Act of Insolvency with respect to Pledgor.

12. Remedies Upon Default .

(a) General . Secured Party’s rights under this Agreement are in addition to, and shall in no way be deemed to limit, the rights and remedies provided to Secured Party under the Purchase Documents. Upon the occurrence of any Event of Default, Secured Party may pursue any remedy available at law (including, without limitation, those available under the provisions of the UCC), or in equity to collect, enforce, or satisfy any interest in the Collateral.

(b) Concurrent Remedies . Upon the occurrence of an Event of Default, Secured Party shall have the right to collect, enforce, or enforce any interest in the Collateral and to collect

 

9


or enforce Pledgor Obligations then owing, whether by acceleration or otherwise through the pursuit of any of the following remedies separately, successively or simultaneously:

(i) file suit and obtain judgment, and, in conjunction with any action, Secured Party may seek any ancillary remedies provided by law, including levy of attachment and garnishment;

(ii) transfer all or any portion of the Collateral pledged by Pledgor to another account in Secured Party’s name;

(iii) receive all or any portion that Secured Party may designate of the distributions derived from the Collateral, including funds received by any securities intermediary upon maturity of any Collateral or any other funds so held at the time of such declaration of an Event of Default;

(iv) apply any of the Collateral in the Account toward payment of the Pledgor Obligations; and

(v) pursue any remedy available under the Purchase Documents, including (without limitation) termination of Pledgor as a Seller/Servicer.

13. Miscellaneous .

(a) Severability . Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

(b) Section Headings . The section headings used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.

(c) Waivers and Amendments; Successors and Assigns . None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except by a written instrument executed by Pledgor and Secured Party, provided that any provision of this Agreement may be waived by Secured Party in a letter or agreement executed by Secured Party or by facsimile or other electronic transmission from Secured Party. This Agreement shall be binding upon the successors and assigns of Pledgor and shall inure to the benefit of Secured Party and its respective successors and assigns. This Agreement not intended to waive, amend, supplement or otherwise modify any terms or conditions contained in any Purchase Document.

(d) Governing Law; Venue; Waiver of Jury Trial . This Agreement shall be governed by and construed, and the rights and obligations of Secured Party and Pledgor hereunder determined, in accordance with the laws of the United States. Insofar as there may be no

 

10


applicable precedent, and insofar as to do so would not frustrate any provision of this Agreement or the transactions governed thereby, the laws of the State of New York shall be deemed reflective of the laws of the United States. For purposes of the UCC, New York shall be deemed to be the Parties’ jurisdiction. Each Party irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and consents to the jurisdiction of the federal courts located in the State of New York sitting in the borough of Manhattan, City of New York. The parties further hereby waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Pledge Agreement.

(e) Purchase Documents . Pledgor and Secured Party agree that this Agreement is a Purchase Document.

(f) Counterparts . This Agreement may be executed by one or more of the Parties to this Agreement on any number of separate counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument.

(g) Integration . This Agreement and the other Purchase Documents contain the entire agreement between the Parties relating to the subject matter hereof and supersede all oral statements and prior writings with respect thereto.

(h) Increase in Required Collateral Amount . Secured Party reserves the right, as a condition to continuing to treat Pledgor as a Freddie Mac-approved seller/servicer, to require an increase to the Required Collateral Amount under this Agreement, in the event that Secured Party determines that either or both of: (1) the level and frequency of Pledgor Obligations hereunder, and/or (2) Secured Party’s exposure to Pledgor’s warranty obligations to Secured Party is/are disproportionate to Pledgor’s capital and/or assets, and that such factor(s) could materially and adversely affect Freddie Mac. Secured Party shall give not less than thirty (30) days prior written notice to Pledgor of any required increase hereunder to the Required Collateral Amount.

(i) Review of Required Collateral Amount . Provided that no Event of Default shall have occurred and is continuing, Pledgor may, after the date that is one (1) calendar year after the Effective Date and no more frequently than every twelve (12) months thereafter, request in writing that Secured Party review Secured Party’s need for Collateral hereunder to secure Pledgor Obligations, and Secured Party shall review such need, taking into consideration whatever factors Secured Party deems relevant or appropriate in its sole but reasonable discretion; provided, however, that in the event Secured Party determines that the Collateral hereunder remains necessary to secure Pledgor Obligations, Secured Party shall, upon receipt of Pledgor’s written request, make available an officer of Secured Party to meet with a representative of Pledgor (not more frequently than once each twelve (12) months) to provide to and review and (to the extent that Secured Party believes that it can do so without divulging its risk models or other proprietary information) explain to Pledgor the underlying methodology, assumptions, factors and other information used in the Secured Party’s reasoning for its decisions the Required Collateral Amount. Such other information may include (but is not necessarily limited to) an analysis of Pledgor’s: (i) loan loss reserves: (ii) recourse obligations; (iii)

 

11


regulatory and litigation exposure; (iv) overall financial condition (including the valuation of Pledgor’s financial assets and liabilities); and (v) the results or findings of any review conducted of Pledgor by Secured Party and/or its agents (such reviews may include, but are not necessarily limited to, reviews by Secured Party’s External Operational Risk Management department). Secured Party will also take into consideration any other factors reasonably proposed by Pledgor.

(j) Termination . Notwithstanding anything herein or in any of the other Purchase Documents to the contrary, this Agreement shall terminate and Secured Party shall release its security interest in the Collateral and cause the Collateral to be returned to Pledgor upon mutual written agreement of Secured Party and Pledgor. In the event Secured Party determines that the Collateral hereunder is not necessary to secure Pledgor Obligations, this Agreement shall terminate and Secured Party shall release its security interest in the Collateral and cause the Collateral to be returned to Pledgor.

[Signatures appear on following page]

 

12


[Signature page to that certain Cash Pledge Agreement dated as of

June 1, 2010, by and between HomeStreet Bank and Freddie Mac,

continued from page 12]

IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered as of the date first above written.

 

Pledgor:
HOMESTREET BANK
By:   /s/ Darrell Van Amen
  Name:   Darrell Van Amen
  Title:   V.P. Treasurer
  Date:   6/15/10
Secured Party:
FEDERAL HOME LOAN MORTGAGE CORPORATION
By:   /s/ Mike Dawson
  Name:   Mike Dawson
  Title:   VP - Deal & Contract Management
  Date:   June 16, 2010

 

13


ANNEX I

Notice Provisions

Notice Provisions . All notices that are required or are permitted under this Agreement shall be in writing and shall be: (i) hand-delivered; (ii) mailed by certified or registered U.S. Mail, return receipt requested, first class postage prepaid, (iii) sent by recognized overnight courier service (e.g., FedEx, DHL, UPS); or (iv) telecopied to the Parties as follows:

 

if to Secured Party:   Freddie Mac
  1551 Park Run Drive
  McLean, VA 22102
  Attention: Chief Credit Officer
  Telecopier: (571) 382-3723
  Email: ray_romano@freddiemac.com*
with a copy to:   Legal Division
  Freddie Mac
  8300 Jones Branch Drive
  McLean, VA 22102
  Attention: Vice President and Deputy General Counsel,
  Mortgage Law
  Telecopier: (703) 903-2559
  Email: ken_peters@freddiemac.com*
if to Pledgor:   HomeStreet Bank
  601 Union Street, Suite 2000
  Seattle, WA 98101
  Attention: Executive Vice President and Chief Financial Officer
  Telecopier: (206) 389-7703
  Email: david.hooston@homestreet.com*
with a copy to:   HomeStreet Bank
  Executive Vice President and General Counsel
  601 Union Street, Suite 200
  Seattle, WA 98101
  Attention: Executive Vice President and General Counsel
  Telecopier: (206) 389-7703
  Email: godfrey.evans@homestreet.com*
  HomeStreet Bank
  601 Union Street, Suite 2000
  Seattle, WA 98101
  Attention: SVP and Single-Family Operations Director
  Telecopier: (206) 621-2584
  Email: susan.greenwald@homestreet.com*

 

14


or to such other address or telecopier number as any Party shall designate by written notice to the other Party in the manner provided herein. Each notice shall be effective (i) if by hand-delivery, upon hand-delivery to the applicable Party, (ii) if given by mail or recognized overnight courier service, on the earlier of the date of actual receipt or three (3) Business Days after being sent to the applicable address specified above or (iii) if given by telecopy during the recipient’s normal business hours, when such notice is transmitted to the telecopy number specified above and the sender receives a confirmation of transmission from the sending telecopy machine.

 

* Communications to email address are effective solely for the purposes expressly given in the Agreement.

 

15


Exhibit A

Mellon Trust of New England

DDA 108111

For account: [***]

 

16

[***] Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.


Exhibit B

Wire Transfer Instructions for Secured Party are as follows:

ABA 011001234

Mellon Trust of New England

DDA 108111

For account: [***]

 

17

[***] Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

Exhibit 10.30

WINDERMERE MORTGAGE SERVICES SERIES LLC

AMENDED AND RESTATED

LIMITED LIABILITY COMPANY OPERATING AGREEMENT

(a Delaware Series Limited Liability Company)

Effective

As of

May 1, 2005

 

 

 

i


TABLE OF CONTENTS

 

     Page  

1.        Definitions

  

          1.1      “Act”

     1   

          1.2      “Agreement”

     1   

          1.3      “Assignee”

     1   

          1.4      “Business”

     1   

          1.5      “Capital Account”

     1   

          1.6      “Capital Contribution”

     1   

          1.7      “Cash Available for Distribution”

     1   

          1.8      “Certificate of Conversion”

     2   

          1.9      “Certificate of Formation”

     2   

          1.10    “Code”

     2   

          1.11    “Company”

     2   

          1.12    “Company Property”

     2   

          1.13    “Conversion”

     2   

          1.14    “Covered Person”

     2   

          1.15    “Deemed Capital Account”

     3   

          1.16    “Depreciation”

     3   

          1.17    “Dissolution”

     3   

          1.18    “Fiscal Year”

     3   

          1.19    “Gross Asset Value”

     3   

          1.20    “HSB LLC Manager”

     4   

          1.21    “HSB Series Manager”

     4   

          1.22    “HSB/WMS”

     4   

          1.23    “Initial Capital Contribution”

     4   

          1.24    “Interest”, “Membership Interest” or “Company Interest”

     4   

          1.25    “LLC Managers”

     5   

          1.26    “Majority Interest”

     5   

          1.27    “Mandatory Obligation”

     5   

          1.28    “Members”

     5   

          1.29    “Minimum Gain”

     5   

          1.30    “Net Income” or “Net Loss”

     6   

          1.31    “Percentage Interest”

     6   

          1.32    “Persons”

     6   

          1.33    “Reserves”

     6   

          1.34    “Separate Series Agreement”

     7   

          1.35    “Series”

     7   

          1.36    “Series Manager”

     7   

          1.37    “Series Property”

     7   

          1.38    “Tax Matters Partner”

     7   

          1.39    “Trade Names”

     7   

          1.40    “WG LLC Manager” or “WG LLC Managers”

     7   

          1.41    “WG Series Manager” or “WG Series Managers”

     7   

          1.42    “WG Series Member” or “WG Series Members”

     8   

 

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2.        Conversion and Formation

     8   

2.1      Certificate of Formation

     8   

           2.2      Limited Liability Company and Series Creation

     8   

           2.3      Separate Series Agreement

     8   

           2.4      Additional Series

     8   

           2.5      Assets and Liabilities of Each Series are Separate Unless Otherwise Indicated

     9   

           2.6      Description of Series

     10   

           2.7      Defects as to Formalities

     10   

           2.8      No Partnership Intended for Nontax Purposes

     10   

           2.9      Rights of Creditors and Third Parties

     10   

           2.10    Title to Property

     10   

           2.11    Payments of Individual Obligations

     11   

           2.12    Foreign Qualification

     11   

           2.13    Treatment of Certain Property, Expenses and Liabilities

     11   

3.        Name

     11   

4.        Registered Office; Agent for Service of Process

     12   

5.        Purposes of the Company

     12   

           5.1      Purposes of the Company

     12   

           5.2      Potential Conflicts

     12   

           5.3      Loan Origination and Brokerage Process; Series and Entity Level Functions

     12   

6.        Term

     13   

7.        Rights and Duties of LLC Managers

     13   

           7.1      General Authority and Powers of LLC Managers

     13   

           7.2      Time Devoted to Company; Other Ventures

     15   

           7.3      Liability of LLC Managers to Members and Series of the Company

     15   

           7.4      Indemnification

     16   

           7.5      Duties and Responsibility

     17   

           7.6      Agreements with the LLC Managers

     17   

           7.7      Restrictions on Authority of LLC Managers

     18   

           7.8      HUD Delegation

     18   

           7.9      Duties as to Mortgage Loans Insured by HUD and FHA

     18   

8.        Rights and Duties of Series Managers

     19   

           8.1      General Authority and Powers of Series Managers

     19   

           8.2      Time Devoted to Company; Other Ventures

     21   

           8.3      Liability of Series Managers to Members and Series of the Company

     21   

           8.4      Indemnification

     21   

           8.5      Duties and Responsibility

     23   

           8.6      Agreements with the Series Managers

     23   

           8.7      Restrictions on Authority of Series Managers

     24   

           8.8      Death or Incapacity of a Manager

     24   

9.        Status of Members

     24   

           9.1      No Participation in Management

     24   

           9.2      Limitation of Liability

     24   

           9.3      Company Books

     25   

           9.4      Priority and Return of Capital

     25   

 

iii


           9.5      Liability of a Member to the Company

     25   

           9.6      Death or Incapacity of Member

     25   

           9.7      Recourse of Members

     26   

           9.8      No Right to Property

     26   

10.      Meetings of Members

     26   

           10.1    Meetings

     26   

           10.2    Place of Meetings

     26   

           10.3    Notice of Meetings

     26   

           10.4    Meeting of All Members

     26   

           10.5    Record Date

     27   

           10.6    Quorum

     27   

           10.7    Manner of Acting

     27   

           10.8    Proxies

     27   

           10.9    Action by Members Without a Meeting

     27   

           10.10  Waiver of Notice

     28   

11.      Contributions to the Company and Capital Accounts

     28   

           11.1    Members’ Capital Contributions

     28   

           11.2    Additional Contributions or Loans

     28   

           11.3    Capital Accounts

     28   

           11.4    Withdrawal or Reduction of Members’ Contributions to Capital

     29   

12.      Allocations and Distributions

     29   

           12.1    Net Income and Net Losses

     29   

           12.2    Allocation Rules

     30   

           12.3    Limitation on Net Loss Allocation

     30   

           12.4    Minimum Gain Chargeback

     30   

           12.5    Qualified Income Offset

     30   

           12.6    Curative Allocations

     31   

           12.7    Tax Allocations; Section 704(c) of the Code

     31   

           12.8    Cash Available for Distribution

     31   

           12.9    Distribution Rules

     32   

           12.10  Limitation Upon Distributions

     32   

           12.11  Accounting Method

     33   

           12.12  Interest on and Return of Capital Contributions

     33   

           12.13  Loans to Company

     33   

           12.14  Records, Audits and Reports

     33   

           12.15  Returns and Other Elections

     34   

           12.16  Tax Matters Partner

     34   

           12.17  Right to Make Section 754 Election

     35   

13.      Company Expenses

     35   

           13.1    Company Administrative Expenses

     35   

           13.2    Company Expenses

     35   

14.      Transferability

     36   

           14.1    Transfer

     36   

15.      Issuance and Transfers of Membership Interests

     36   

           15.1    Additional Members and Assignees

     36   

           15.2    Retroactive Allocations

     37   

16.      Termination of Series; Dissolution and Termination of the Company

     37   

 

iv


           16.1    Dissolution of the Company

     37   

           16.2    Termination of a Series

     38   

           16.3    Winding Up, Liquidation and Distribution of Assets of a Series Upon Termination of Such Series

     39   

           16.4    Winding Up, Liquidation and Distribution of Assets of the Company Upon Dissolution of the Company

     40   

           16.5    Returns of Contributions Nonrecourse to Other Members

     40   

17.      Resignation and Admission of Series Manager

     40   

           17.1    Resignation of a Series Manager

     40   

           17.2    Death or Incompetency of Series Manager

     40   

           17.3    Removal of a Series Manager

     40   

           17.4    Appointment of a New or Replacement Series Manager

     41   

18.      Resignation and Admission of LLC Manager

     41   

           18.1    Resignation of an LLC Manager

     41   

           18.2    Death or Incompetency of an LLC Manager

     41   

           18.3    Removal of an LLC Manager

     41   

           18.4    Appointment of a New or Replacement LLC Manager

     41   

19.      Special and Limited Power of Attorney

     41   

20.      Amendments

     43   

21.      Miscellaneous

     43   

           21.1    Notices

     43   

           21.2    Binding Effect

     43   

           21.3    Remedies for Breach

     43   

           21.4    Entire Agreement

     43   

           21.5    Waiver of Action for Partition

     43   

           21.6    Captions; Pronouns

     43   

           21.7    Execution of Additional Instruments

     44   

           21.8    Waivers

     44   

           21.9    Rights and Remedies Cumulative

     44   

           21.10  Severability

     44   

           21.11  Creditors

     44   

           21.12  Counterparts

     44   

           21.13  Governing Law

     44   

           21.14  Decisions by Members and Manager

     44   

Schedules and Exhibits:

 

Exhibit A-1

     -       List of Series Members; Capital Contributions

Exhibit B-l

     

through B-18

     -       List of Property Initially Allocated to Each Series Upon Conversion to Series LLC

Exhibit C

     -       List of LLC Managers; List of Series Managers

Exhibit D-l

     

through D-18

     -       Separate Series Agreements (See Section B of Closing Binder Index)

Exhibit E

     -       Capital Maintenance Requirement for Each Series

Exhibit F-l

     -       Entity Level Functions

Exhibit F-2

     -       Series Level Functions

 

v


AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT OF

WINDERMERE MORTGAGE SERVICES SERIES LLC

THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (the “Agreement”) is made and entered into as of the 1st day of May, 2005, by and among the members set forth on Exhibit A and amends and restates in its entirety the Limited Liability Company Agreement of Windermere Mortgage Services LLC, a Washington limited liability company dated as of October 14, 2003. The parties desire to operate as a series limited liability company under the laws of the state of Delaware as follows.

The parties hereto agree as follows:

1. Definitions. The following terms used in this Agreement shall have the meanings specified below:

1.1 “Act” means the Delaware Limited Liability Company Act, 6 Del.C. §18-101, et seq., and in particular §18-215 thereunder, as amended from time to time.

1.2 “Agreement” means this Limited Liability Company Agreement of WINDERMERE MORTGAGE SERVICES SERIES LLC, as it may be amended from time to time.

1.3 “Assignee” means a person who has acquired a Member’s Interest in whole or part.

1.4 “Business” shall mean the business activities which the Company and its Series are authorized to engage in pursuant to Section 5.1 of this Agreement.

1.5 “Capital Account” means, with respect to any Series and with respect to any Member, the account maintained for such Member that is associated with such Series in accordance with Section 11.3. A separate Capital Account shall be maintained for each Member’s interest in each Series to the extent such Member has an interest in that Series. In the case of a transfer of an interest, the transferee shall succeed to the Capital Account of the transferor or, in the case of a partial transfer, a proportionate share thereof.

1.6 “Capital Contribution” means, with respect to any Series and with respect to any Member, the total amount of money and the fair market value of all property contributed to the Company with respect to a Series by each Member pursuant to the terms of the Conversion and the Agreement, or contributed thereafter as additional capital. Capital Contribution shall also include any amounts paid directly by a Member to any creditor of any Series of the Company regarding any guarantee or similar obligation undertaken by such Member in connection with the Company’s operations with respect to such Series. Any reference to the Capital Contribution of a Member shall include the Capital Contribution made by a predecessor holder of the interest of such Member.

1.7 “Cash Available for Distribution” means, with respect to a Series, all cash, revenues and funds received by the Company with respect to such Series from such Series’ operations, less the

 

1


sum of the following to the extent paid or set aside by the Company with respect to such Series: (i) all principal and interest payments on indebtedness of the Company with respect to such Series and all other sums paid to any lender with respect to such Series; (ii) all cash expenditures incurred in the normal operation of the Company’s business with respect to such Series; (iii) the portion of the Company’s unattributed expenses which are allocated to that Series, and (iv) such Reserves as the Members associated with such Series deem reasonably necessary for the proper operation of the Company’s business with respect to such Series.

1.8 “Certificate of Conversion” means the Certificate of Conversion filed on behalf of the Company with the office of the Secretary of State of the State of Delaware pursuant to the Act to convert Windermere Mortgage Services LLC, a Washington Limited Liability Company to Windermere Mortgage Services Series LLC, a Delaware Series Limited Liability Company.

1.9 “Certificate of Formation” means the Certificate of Formation of the Company and any and all amendments thereto and restatements thereof filed on behalf of the Company with the office of the Secretary of State of the State of Delaware pursuant to the Act.

1.10 “Code” means the United States Internal Revenue Code of 1986, as amended. References to specific Code Sections or Treasury Regulations shall be deemed to refer to such Code Sections or Treasury Regulations as they may be amended from time to time or to any successor Code Sections or Treasury Regulations if the Code Section or Treasury Regulation referred to is repealed.

1.11 “Company” means the WINDERMERE MORTGAGE SERVICES SERIES LLC formed and governed by this Agreement and the Act.

1.12 “Company Property” means all the real, personal and intangible property owned by the Company as a whole or any Series of the Company.

1.13 “Conversion” means the conversion of Windermere Mortgage Services LLC, a Washington Limited Liability Company, to a Delaware Series Limited Liability Company, the name of which is Windermere Mortgage Services Series LLC, pursuant to the provisions of Section 18-214 of the Act, the Articles and Plan of Conversion dated as of May 1, 2005, the Certificate of Conversion and the Certificate of Formation filed with the Secretary of State of Delaware.

1.14 “Covered Person” shall have the meaning set forth in Sections 7.4 and 8.4.

1.15 “Deemed Capital Account” means a Member’s Capital Account, as calculated from time to time, adjusted by (i) adding thereto the sum of (A) the amount of such Member’s Mandatory Obligation, if any, and (B) each Member’s share of Minimum Gain (determined after any decreases therein for such year) and (ii) subtracting therefrom (A) allocations of losses and deductions which are reasonably expected to be made as of the end of the taxable year to the Members pursuant to Code Section 704(e)(2), Code Section 706(d) and Treasury Regulation Section 1.751-1 (b)(2)(ii), and (B) distributions which at the end of the taxable year are reasonably expected to be made to the Member to the extent that said distributions exceed

 

2


offsetting increases to the Member’s Capital Account (including allocations of the Qualified Income Offset pursuant to Section 12.5 but excluding allocations of Minimum Gain Chargeback pursuant to Section 12.4) that are reasonably expected to occur during (or prior to) the taxable years in which such distributions are reasonably expected to be made.

1.16 “Depreciation” means, for any Fiscal Year or other period, an amount equal to the depreciation, amortization, or other cost recovery deduction allowable with respect to an asset for such year or other period, except that if the Gross Asset Value of an asset differs from its adjusted basis for federal income tax purposes at the beginning of such year or other period, Depreciation shall be an amount which bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization, or other cost recovery deduction for such year or other period bears to such beginning adjusted tax basis.

1.17 “Dissolution” means the dissolution of Windermere Mortgage Group LLC, a Washington Limited Liability Company and a 50% member of Windermere Mortgage Services LLC, a Washington Limited Liability Company, immediately following the Conversion and the distribution of the Percentage Interests in the Series to the former members of Windermere Mortgage Group LLC in accordance with the Plan of Conversion and the Agreement of Dissolution of WMG unanimously approved by the members of Windermere Mortgage Group LLC.

1.18 “Fiscal Year” means (i) the period commencing upon the Conversion and ending on December 31, 2005, (ii) any subsequent twelve month period commencing on January 1 and ending on December 31, or (iii) any portion of the period described in Clause (ii) of this sentence for which the Company is required to allocate Net Income, Net Losses and other items of Company income, gain, loss or deduction pursuant to Section 12 hereof.

1.19 “Gross Asset Value” means, with respect to any asset associated with a Series, such asset’s adjusted basis for federal income-tax purposes, except as follows:

 

  (i) the initial Gross Asset Value of any asset contributed by a Member to the Company with respect to a Series shall be the gross fair market value of such asset, as agreed to by Members associated with such Series at the time the asset is contributed;

 

  (ii)

the Gross Asset Value of all Company assets associated with a Series shall be adjusted to equal their respective gross fair market values, as determined by the Managers associated with such Series, as of the following times: (a) the acquisition of an additional interest in the Company with respect to such Series by any new or existing Member in exchange for more than a de minimis Capital Contribution; (b) the distribution by the Company with respect to such Series to a Member of more than a de minimis amount of Company assets associated with such Series as consideration for an interest in the Company; and (c) the liquidation of the Company within the meaning of Treasury Regulation § 1.704-l(b)(2)(ii)(g); provided, however, that adjustments pursuant to Clause (a) and Clause (b) of this sentence shall be made only if Members associated with such

 

3


 

Series holding a Majority Interest in such Series reasonably determine that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members in such Series; and

 

       If the Gross Asset Value of an asset has been determined or adjusted pursuant to Paragraph (i) or Paragraph (ii) above, such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes of computing Net Income and Net Losses.

1.20 “HSB LLC Manager” or “HSB LLC Managers” means those individuals who are appointed as LLC Managers by HSB/WMS pursuant to this Agreement.

1.21 “HSB Series Manager” or “HSB Series Managers” means those individuals who are appointed as Series Managers by HSB/WMS pursuant to this Agreement and the relevant Separate Series Agreement.

1.22 “HSB/WMS” means Homestreet/WMS, Inc., a Washington Corporation. HSB/WMS will be one of the members of each Series established pursuant to this Agreement.

1.23 “Initial Capital Contribution” means, with respect to any Member, the initial contribution to the Company by such Member with respect to a Series pursuant to this Agreement.

1.24 “Interest”, “Membership Interest” or “Company Interest” means, with respect to a Series, the limited liability company interest of a Member at any particular time, including the right of such Member to any and all benefits to which such Member may be entitled as provided in the Agreement and in the Act, together with the obligations of such Member to comply with all the terms and provisions of this Agreement and the Act.

1.25 “LLC Managers” means those persons who are appointed in accordance with this Agreement to exercise the authority of LLC Managers under this Agreement and the Act with respect to the Company, and are admitted by the existing LLC Managers as additional or replacement LLC Managers in accordance with this Agreement and are listed on Exhibit C hereto as LLC Managers. Four of the LLC Managers will at all times be HSB LLC Managers and four of the LLC Managers will at all times be WG LLC Managers. Employees of HomeStreet Bank, HSB/WMS or the Company may not be WG LLC Managers. The initial LLC Managers immediately following the Conversion are as follows:

The HSB LLC Managers are Richard W.H. Bennion, Joan Entickap, Bruce W. Williams and Debra L. Johnson.

The WG LLC Managers are William A. McMahan, Rick A. Menti, Don Riley and Gregory R. Hoff.

1.26 “Majority Interest” means, with respect to a Series, the Membership Interests of one or more Members that in the aggregate exceed 50% of all Percentage Interests owned by Members

 

4


associated with such Series.

1.27 “Mandatory Obligation” means with respect to a Series the sum of (i) the amount of a Member’s remaining contribution obligation with respect to such Series (including the amount of any Capital Account deficit such Member is obligated to restore upon liquidation) provided that such contribution must be made in all events within ninety (90) days of liquidation of the Member’s interest with respect to such Series as determined under Treasury Regulation Section 1.704-l(b)(2)(ii)(g) and (ii) the additional amount, if any, such Member would be obligated to contribute with respect to such Series as of year end to retire recourse indebtedness of the Company associated with such Series if the Company were to liquidate as of such date and dispose of all of the assets of such Series at book value.

1.28 “Members” means those persons who execute a counterpart of this Agreement and are set forth on Exhibit A hereto, and those persons who are hereafter admitted as members under Section 15.1 below, provided that each Member shall be associated with one or more separate Series as set forth in Exhibit A hereto.

1.29 “Minimum Gain” means the amount determined by computing, with respect to each nonrecourse liability associated with any Series, the amount of gain, if any, that would be realized by the Company with respect to such Series if it disposed of the Company Property associated with such Series subject to such nonrecourse liability in full satisfaction thereof in a taxable transaction, and then by aggregating the amounts so determined. Such gain shall be determined in accordance with Treasury Regulation Section l.704-2(d). Each Member’s share of Minimum Gain with respect to a Series at the end of any taxable year of the of such Series shall be determined in accordance with Treasury Regulation Section 1.704-2(g)(l).

1.30 “Net Income” or “Net Loss” means, with respect to a Series, and for each Fiscal Year, an amount equal to the Company’s taxable income or loss associated with such Series for such Fiscal Year, determined in accordance with § 703(a) of the Code (but including in taxable income or loss, for this purpose, all items of income, gain, loss or deduction associated with such Series that are required to be stated separately pursuant to § 703(a)(l) of the Code), with the following adjustments:

 

  (i) any income of the Company associated with such Series that is exempt from federal income tax and not otherwise taken into account in computing Net Income or Net Losses pursuant to this definition shall be added to such taxable income or loss;

 

  (ii) any expenditures of the Company associated with such Series that are described in § 705(a)(2)(B) of the Code (or treated as expenditures described in § 705(a)(2)(B) of the Code pursuant to Treasury Regulation § 1.704-l(b)(2)(iv)(i)) and not otherwise taken into account in computing Net Income or Net Losses pursuant to this definition shall be subtracted from such taxable income or loss;

 

  (iii)

in the event the Gross Asset Value of any Company asset associated with such Series is adjusted in accordance with Paragraph (ii) or Paragraph (iii) of the

 

5


 

definition of “Gross Asset Value” above, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Net Income or Net Losses;

 

  (iv) gain or loss resulting from any disposition of any asset of the Company associated with such Series with respect to which gain or loss is recognized for federal income-tax purposes shall be computed by reference to the Gross Asset Value of the asset disposed of, notwithstanding that the adjusted tax basis of such asset differs from its Gross Asset Value; and

 

  (v) in lieu of the depreciation, amortization and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation associated with such Series for such Fiscal Year or other period.

1.31 “Percentage Interest” means, for any Member associated with a Series, such Member’s Percentage Interest in such Series as set forth on Exhibit A attached hereto, which Percentage Interest in such Series may be changed from time to time in accordance with this Agreement.

1.32 “Persons” shall mean any individual or entity, their heirs, executors, administrators, legal representatives, successors, and assigns of such individual or entity where the context so permits.

1.33 “Reserves” means, with respect to a Series, funds set aside or amounts allocated to reserves that shall be maintained in amounts deemed sufficient by the Managers associated with such Series (in consultation with the LLC Managers) for working capital and to pay taxes, insurance, debt service or other costs or expenses incident to the ownership or operation of the business of the Company with respect to such Series, or incident to the liquidation of such Series pursuant to Section 16.3.

 

1.34 “Separate Series Agreement” has the meaning set forth in Section 2.3.

1.35 “Series” means a designated series of Members and Membership Interests established in accordance with the Act and this Agreement having separate rights, powers or duties with respect to specified Company Property and Business and separate obligations and profits and losses associated with the specified Company Property and Business. Each Series shall have a separate business purpose or objective consistent with Section 5.1 of this Agreement, and, as designated in the Separate Series Agreement, a separate Manager or Managers.

1.36 “Series Manager” means those Member(s) and/or other persons who are appointed in accordance with this Agreement to exercise the authority of Manager under this Agreement and the Act with respect to a Series, and are admitted by the existing LLC Managers as additional or replacement Series Managers in accordance with the Agreement and are listed on Exhibit C hereto as Series Managers. One or more Series Managers will be designated in a Separate Series Agreement for each Series. Each Series shall have two managers, one of which will at all times be a HSB Series Manager and the other of which will at all times be a WG Series Manager. Employees of HomeStreet Bank, HSB/WMS and the Company may not be WG Series

 

6


Managers. The initial Series Managers for each Series are set forth in the relevant Series Agreements.

1.37 “Series Property” means all the real, personal and intangible property owned by any Series of the Company. The Series Property initially allocated to each Series is listed on Exhibit B hereto.

1.38 “Tax Matters Partner” has the meaning set forth in Section 12.16.

1.39 “Trade Names” means the trade or fictitious name filings and other filings as a Series may determine is necessary or desirable in connection with the operation of the Series under an appropriate business name.

1.40 “WG LLC Manager” or “WG LLC Managers” means those individuals who are appointed as LLC Managers by the WG Series Members pursuant to this Agreement.

1.41 “WG Series Manager” or “WG Series Managers” means those individuals who are appointed as Series Managers by the WG Series Members pursuant to this Agreement and the relevant Separate Series Agreement.

1.42 “WG Series Member” or “WG Series Members” means all members of a Series other than HSB/WMS. It is anticipated that all of the WG Series Members will be franchisees of, or owners or other affiliates of franchisees of, Windermere Real Estate Services Company, a Washington Corporation.

2. Conversion and Formation. The Members hereby agree to the conversion of Windermere Mortgage Services LLC, a Washington Limited Liability Company, to a Delaware Series Limited Liability Company, the name of which is Windermere Mortgage Services Series LLC, and to operate the Company as a Delaware Series Limited Liability Company under the terms and conditions set forth herein. Except as otherwise provided herein, the rights and liabilities of the Members and the Series shall be governed by the Act.

2.1 Certificate of Formation. Douglas R. Prince and Robert J. Diercks, as authorized persons within the meaning of the Act, and their designated successors, are hereby authorized to execute, deliver and file jointly the Certificate of Conversion to Limited Liability Company and the Certificate of Formation and any all amendments to and restatements of the Certificate of Formation.

2.2 Limited Liability Company and Series Creation. The Members hereby agree that the rights, duties and liabilities of the Members shall be as provided in Section 18-215 of the Act for a limited liability company established in a series, except as otherwise provided herein. The number of series and provisions applicable to each Series shall be determined by the LLC Managers as set forth herein and in the Schedules attached hereto and the Separate Series Agreements approved by the Members of each Series.

2.3 Separate Series Agreement. The terms of each Series shall be as set forth in this

 

7


Agreement and as set forth in a separate agreement applicable to such Series (a “Separate Series Agreement”), a copy of which shall be attached as Exhibit D (Series) hereto. The Separate Series Agreement shall be executed by the Series Managers and by the Members associated with such Series. No person shall be accepted as a Member associated with a particular Series unless the Managers of such Series, after a reasonable review of the proposed new Member, reasonably believe that such new Member of such Series has the ability, experience and financial resources needed to function as a Member of the Series, and that admission of the new Member would not violate any law applicable to the Company or any of its Series, or the other Members of the Series and/or their affiliates and would not invalidate any contract or regulatory approval which affects the Company or any of its Series, or the other Members of the Series, or the other Members of the Series and/or their Affiliates. To the extent that a Separate Series Agreement conflicts with this Agreement, this Agreement shall control. If a Member does not participate in a particular Series, such Member will neither (i) have any rights or obligations with respect to or interest in the limited liability company interests corresponding to such Series, nor (ii) have any rights or obligations with respect to the Net Income or Net Losses (or other book items) arising from such Series, nor (iii) share in any distributions relating to such Series.

2.4 Additional Series. Without the need for the consent of any Person, the LLC Managers acting by a seventy-five percent (75%) vote of all LLC Managers may, from time to time, establish additional Series as they may determine in their sole discretion. As established from time to time in accordance with this Agreement, the additional Series shall have separate rights, powers or duties with respect to specified business location, property and profits and losses associated with specified business location and operations. A Member may be a member associated with one or more Series.

2.5 Assets and Liabilities of Each Series are Separate Unless Otherwise Indicated. All existing assets of the Company at the time of the Conversion and all Capital Contributions received by the Company shall be specifically allocated to and held by either the Company as a whole or one of the Series. All Company Property or other assets of each Series, together with all income, earnings, profits and proceeds thereof, including all proceeds derived from the business operation, or the sale, exchange or liquidation of the Company Property held by such Series, and any funds or assets derived from any reinvestment of such proceeds, may be deemed to be Company Property held by and belonging to such Series. Each Series shall be identified by a separate Series name and shall have a corresponding series of limited liability company Interests corresponding to and evidencing membership in such Series. The names and addresses of each Member and their Percentage Interest in the Series shall be set forth on an Exhibit A-l for such Series. Company Property or other assets designated for the Company as a whole, together with all income, earnings, profits and proceeds thereof “which are not allocated to a Series in accordance with this Section 2.5, including all proceeds derived from the business operations attributable to the Company as a whole, or from the sale, exchange or liquidation of Company Property not allocated to a Series, and any funds or assets derived from any reinvestment of such proceeds, shall be deemed to be Company Property held by and belonging to the Company as a whole. The Company Property belonging to a particular Series shall belong to that Series for all purposes and to no other Series, and such Company Property shall be subject only to the rights of the creditors of that Series. The assets belonging to a particular Series shall be recorded upon the books of the Company for the Series and to the extent such Company

 

8


Property is deemed to be held by the Company shall be held by the Company and the LLC Managers in trust for the benefit of the Members associated with such Series. The assets belonging to each particular Series shall be charged with the liabilities of that Series. Except as expressly otherwise provided herein, no debt, liability or obligation of a Series shall be a debt, liability or obligation of any other Series. The debts, liabilities and obligations incurred, contracted for or otherwise existing with respect to a Series shall be enforceable against the assets of such Series only and not against any other assets of the Company generally or any other Series and none of the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to the Company generally or any other Series shall be enforceable against the assets of such Series except as specifically provided for herein. Separate and distinct records shall be maintained for each and every Series, and assets associated with any such Series shall be accounted for separately from the other assets of the Company, or any other Series of the Company. The Managers and Members shall not commingle the assets of one Series with the assets of any other Series. All assets, income, proceeds, payments, liabilities and other obligations that are not allocated to or readily identifiable as belonging to or being attributable to a particular Series, including administrative costs and expenses of the Company as a whole, shall be allocated by the Company to the Series by the LLC Managers in such manner as is deemed fair and equitable. Each such allocation by the LLC Managers shall be conclusive and binding on all Members of all Series, for all purposes. Subject to the rights of the Managers in their discretion to allocate general and administrative liabilities, expenses, costs, charges or reserves as herein provided, the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to a particular Series shall be enforceable against the assets of such Series only, and not against the assets of the Company generally or of any other Series. Notice of this contractual limitation on inter-Series liabilities shall be set forth in the Certificate of Formation, and upon the giving of such notice in the Certificate of Formation, the statutory provisions of Section 18-215 of the Act relating to the limitations on inter-Series liabilities shall become applicable to the Company and each Series. Any Person extending credit to, contracting with, or having any claim against any Series may look only to the assets of that Series to satisfy or enforce any debt, liability, obligation or expense incurred, contracted for or otherwise existing with respect to that Series.

2.6 Description of Series. Exhibit A attached hereto shall be updated from time to time as is necessary to reflect accurately the information contained therein, including, without limitation, the establishment of additional Series and the admission of additional Members to the Company associated with existing or additional Series. Any reference in this Agreement to Exhibit A attached hereto for each Series shall be deemed to be a reference to Exhibit A as amended and in effect from time to time.

2.7 Defects as to Formalities. A failure to observe any formalities or requirements of this Agreement or the Act shall not be grounds for imposing personal liability on the Members or Managers for liabilities of the Company or any Series of the Company.

2.8 No Partnership Intended for Nontax Purposes. The Members have formed the Company under the Act, and expressly do not intend hereby to form a partnership under either the Delaware Uniform Partnership Act or the Delaware Revised Uniform Limited Partnership Act or a corporation under the Delaware General Corporation Law. The Members do not intend to be

 

9


partners one to another, or partners as to any third party. The Members hereto agree and acknowledge that the Company and each separate Series may be treated as a separate partnership for federal income tax and other pertinent purposes.

2.9 Rights of Creditors and Third Parties. This Agreement is entered into among the Company and the Members for the exclusive benefit of the Company, its Members and their successors and assigns. The Agreement is expressly not intended for the benefit of any creditor of the Company or any Series of the Company or any other person. Except and only to the extent provided by the Act, no such creditor or third party shall have any rights under the Agreement or any agreement between the Company and any Member with respect to any Contribution or otherwise.

2.10 Title to Property. All Company Property shall be designated as the property of the Company as a whole or of a particular Series and Company Property designated as the property of a particular Series shall be owned by such Series of the Company and not by the Company generally. No Member shall have any ownership interest in any such Property in the Member’s individual name or right, and each Member’s interest in the Company shall be personal property for all purposes. Except as otherwise provided in this Agreement, each Series of the Company shall hold all Company Property designated as the property of a particular Series in the name of such Series of the Company and not in the name or names of any Member or Members. Any failure to hold any Company Property in the name of a particular Series shall not, however, affect the ownership interest of the particular Series in such Property as long as the property is associated with a particular Series and accounted for separately for such Series on the records of the Company.

2.11 Payments of Individual Obligations. With respect to any Series of the Company, the Series’ credit and assets shall be used solely for the benefit of the Series, and no asset of the Series shall be transferred or encumbered for or in payment of any individual obligation of any Member unless otherwise provided for herein.

2.12 Foreign Qualification. The LLC Managers shall apply for authority to transact business in those jurisdictions where the Company and any Series is required to do so. The Company shall file such other certificates and instruments as may be necessary or desirable in connection with its formation as a Series limited liability company, and its existence and operation, all as determined by the LLC Managers.

2.13 Treatment of Certain Property, Expenses and Liabilities. Notwithstanding any other provision herein, the Members of each Series agree that:

(a) The Company and each of its Series shall be liable for the repayment of any warehouse loan or similar financing arrangement obtained by the Company.

(b) The Company and each of its Series shall be liable (vis-à-vis the buyer of the loan) for any repurchase or reimbursement obligations pertaining to loans sold to or guaranteed by FNMA, FHLMC, HUD, the FHA or the VA. However, if the repurchase obligation is attributable to the acts or omissions of a particular Series, then that Series shall

 

10


reimburse the Company and the other Series for the repurchase amount and for any losses which the Company or the other Series suffer as a result of the repurchase.

(c) All loans made or brokered in the course of the Company’s business and in the name of the Company shall be deemed to have been made or brokered on behalf of the Company by the Series that originated the loan, notwithstanding that title to the loan may be in the name of the Company. All interest, fee and other income from loans that are originated by a Series are the property of that Series and shall be allocated to the Series that originated the loan in question. And all expenses associated with the making of such loans, including a pro-rata share of overhead expenses, and all non-cash items such as depreciation, shall be allocated to the Series that originated the loan in question in a manner that the Managers determine is fair and equitable and in compliance with applicable law.

3. Name. The name of the Company shall be WINDERMERE MORTGAGE SERVICES SERIES LLC. The LLC Managers may from time to time change the name of the Company or adopt such trade or fictitious names as they may determine to be appropriate.

4. Registered Office; Agent for Service of Process. The registered office of the Company in the State of Delaware shall be at 9 East Loockerman Street, Suite IB, Dover, Delaware 19901. The name and the address of the registered agent of the limited liability company required to be maintained by Section 18-104 of the Delaware Limited Liability Company Act are National Registered Agents, Inc., 9 East Loockerman Street, Suite IB, Dover, Delaware 19901. The Company may maintain offices at such places as the LLC Managers may determine to be appropriate.

5. Purposes of the Company.

5.1 Purposes of the Company. The purpose and general character of the business of the Company and of each Series is:

(a) To acquire, hold, operate and dispose of assets, including personal property;

(b) To make, broker, acquire, service and sell residential mortgage loans and other debt instruments;

(c) To employ mortgage lending and mortgage brokerage professionals and related personnel;

(d) To transact any and all lawful business consistent with the foregoing purposes for which a limited liability company may be formed under the Act; and

(e) To transact all business necessary, appropriate, advisable, convenient or incidental to any of the foregoing provisions.

The Company and each Series shall have the power to do any or all of the acts necessary,

 

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appropriate, advisable, incidental or convenient to or for the furtherance of the purposes and business described herein and for the protection or benefit of the Company and each Series. The Company and each Series shall have any or all of the powers that may be exercised on behalf of the Company or such Series by any Person.

5.2 Potential Conflicts. Each of the Members acknowledges and consents to the fact that the business and properties of a Series may be deemed to be in competition with the business and properties of another Series. The Managers of any Series are authorized to act to utilize the assets, rights and obligations in a manner that is in the best interests of that Series, irrespective of the effect of such actions on other Series.

5.3 Loan Origination Process; Series and Entity Level Functions.

5.3.1 Origination. Each individual Series shall have the authority, on behalf of the Company, to originate loans that will be funded in the Company’s name or brokered by the Company to third parties. The loans will be deemed to have been made or brokered by the Company for the account of the Series that originated the loan in question, and all income and expenses associated with the loan shall be allocated by the Managers to the Series that originated the loan in accordance with the provisions of this Agreement.

5.3.2 Work Functions. In connection with the making and brokerage of loans, the functions listed on Exhibit F-l (“Entity Level Functions”) shall be performed by the Company at the expense of the Series, and the functions listed on Exhibit F-2 for each Series (“Series Level Functions”) shall be performed by the Series at its own expense. A portion of the Entity Level Functions may be contracted out to third parties at the discretion of the LLC Managers and in compliance with applicable legal requirements. However, the Series Level Functions must be performed by employees of the Series.

6. Term. The term of the Company as set forth in this Amended Agreement shall commence on the date of the filing of the Certificate of Formation for the Company in the office of the Delaware Secretary of State, and shall continue in perpetuity, unless sooner dissolved, wound up and terminated in accordance with the provisions of this Agreement and the Act.

7. Rights and Duties of LLC Managers.

7.1 General Authority and Powers of LLC Managers. Except as provided in Section 7.7, the LLC Managers shall have the exclusive right and power to manage, operate and control the general business and operations of the Company which is not attributable to the business of a particular Series, provided that the separate Series Managers of each Series, as designated in a Separate Series Agreement for such Series, shall have the right and power to manage, operate and control the business of such Series of the Company and to do all things and make all decisions necessary or appropriate to carry on the business and affairs of the Series of the Company. All decisions involving the administration of the Company as a whole, and not attributable to the business of a particular Series, shall require the approval of seventy-five percent (75%) of the LLC Managers. The authority of the LLC Managers shall include, but shall not be limited to, the following powers, over the business and operations of the Company which

 

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are not attributable to one or more particular Series:

(a) To spend and commit the capital and revenues of the Company;

(b) To allocate the capital, revenues and expenses of the Company to one or more particular Series;

(c) To manage, develop, improve, operate and dispose of the Company loans and mortgages and other debt instruments and properties of any of the Company or any particular Series;

(d) To give all authorizations, consents or other approvals required or permitted of a Series, or which a customer of a Series has delegated to the Series, or similar authorizations pursuant to any loan, debt, borrower or ownership documents, titles, leases, debt instruments, security instruments or other documents related to the business of the Series or with respect to the Series assets;

(e) Upon the majority vote of the LLC Managers, to sell or otherwise dispose of the assets attributable to the Company as a whole, in the normal course of business as part of a single transaction or plan as long as such disposition is not in violation of or a cause of a default under any other agreement to which a Series or the Company may be bound;

(f) To employ persons or entities for the general and administrative operation and management of the Company as a whole, and to employ outside attorneys and accountants;

(g) To acquire, lease and sell personal and/or real property, hire and fire employees, and to do all other acts necessary, appropriate or helpful for the general and administrative operation and management of the Company as a whole;

(h) To execute, acknowledge and deliver any and all instruments to effectuate any of the foregoing powers and any other powers granted the LLC Managers under the laws of the state of Delaware or other provisions of this Agreement;

(i) To enter into and to execute agreements for employment or services, as well as any other agreements and all other instruments the LLC Managers deem necessary or appropriate to the operations of the business of the Company as a whole and to effectively and properly perform its duties or exercise its powers hereunder;

(j) To borrow money on a secured or unsecured basis (including one or more “Warehouse Loans”) from individuals, banks and other lending institutions in connection with the business of the Series, to meet obligations of the Series, provide Series working capital and for any other purpose of such Series of the Company, and to execute promissory notes, security agreements and assignments on behalf of the Series, and such other security instruments as a borrower or lender of funds may require, to secure borrowings or repayment of such borrowings; provided, that no individual, bank or other lending institution to

 

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which the LLC Managers apply for a loan shall be required to inquire as to the purpose for which such loan is sought, and as between the such Series of the Company and such individual, bank or other lending institution, it shall be conclusively presumed that the proceeds of such loan are to be, and will be, used for purposes authorized under the terms of this Agreement;

(k) To enter into, such agreements and contracts and to give such receipts, releases and discharges, with respect to the business of the Company as a whole, as the LLC Managers, in their sole discretion, deem advisable or appropriate;

(1) To purchase, at the expense of the Series of the Company, such liability and other insurance as the LLC Managers, in their sole discretion, deem advisable to protect the Company’s and each Series of the Company’s assets and business; however, the LLC Managers shall not be liable to such Series of the Company or the other Members for failure to purchase any insurance;

(m) To sue and be sued, complain, defend, settle and/or compromise, with respect to any claim in favor of or against the Company or the Series of the Company, in the name and on behalf of the Company and such Series of the Company; and

(n) To appoint certain officers and operating officers of the LLC Managers to act on behalf of the Company, and such persons, subject to the provisions of this Agreement, may generally supervise and control the day-to-day business and affairs of the Company and execute documents on behalf of the Company in accordance with the powers delegated to such officers. Such officers may sign contracts, agreements or other instruments for the Company, the Series and on behalf of the LLC Managers. Each officer shall hold office until a successor shall have been appointed by the LLC Managers or the office eliminated or such officer is otherwise removed by the LLC Managers, with or without cause, all in the sole discretion of the LLC Managers.

The LLC Managers, to the extent of their powers set forth in this Agreement are agents of the Company with respect to the Company and such applicable Series as is appropriate for the purposes of the Company’s and such Series’ business, and the actions of any LLC Manager taken in accordance with such powers shall bind the Company and such Series. Any document or instrument required or permitted to be entered into and performed by the LLC Managers on behalf of a Series may be executed and delivered by any LLC Manager, or by any other Person (including any Member) authorized by the LLC Managers of a Series to enter into and perform such document or instrument on behalf of the Company or the Series.

7.2 Time Devoted to Company; Other Ventures. The LLC Managers shall devote so much of their time to the business of the Company as in their judgment the conduct of the Company’s business reasonably requires. The LLC Managers may engage in business ventures and activities of any nature and description independently or with others, whether or not in competition with the business of such Series of the Company, and shall have no obligation to disclose business opportunities available to them, and neither the Company nor any of the other Members shall have any rights in and to such independent ventures and activities or the income or profits derived therefrom by reason of their ownership of interests in the Series of the Company. To the

 

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fullest extent permitted by applicable law, this Section 7.2 is intended to modify any provisions or obligations of the Act to the contrary and each of the Members, the Company and the Series of the Company hereby waives and releases any claims they may have under the Act with respect to any such activities or ventures of the LLC Managers.

7.3 Liability of LLC Managers to Members and Series of the Company. In carrying out their duties and exercising the powers hereunder, the LLC Managers shall exercise reasonable skill, care and business judgment. A Manager shall not be liable to the Company, the Series or the Members for any act or omission performed or omitted by them in good faith pursuant to the authority granted to them by this Agreement as a Manager or Tax Matters Partner (as defined in the Code) unless such act or omission constitutes fraud, deceit, gross negligence, willful misconduct or a wrongful taking by such Manager.

7.4 Indemnification.

(a) The Company and the Series, if applicable to the Company as a whole or the relevant Series if applicable to one or more Series shall indemnify and hold harmless the LLC Managers and any designated officers of the LLC Managers from any loss or damage, including attorneys’ fees actually and reasonably incurred by the Manager, by reason of any act or omission performed or omitted by them on behalf of the Company as a whole, a Series or in furtherance of the Company’s or a Series’ interests or as Tax Matters Partner to the fullest extent permitted by applicable law; however, such indemnification or agreement to hold harmless shall be recoverable only out of the assets of the Company and the relevant Series and not from the Members. The foregoing indemnity shall extend only to acts or omissions performed or omitted by an LLC Manager or officer in good faith and in the belief that the acts or omissions were in the Company’s interest and/or the interests of the relevant Series or not opposed to the best interests of the Company and/or the interests of the relevant Series. The determination by a majority of the LLC Managers as to whether indemnification provided for in this Section 7.4 shall be relevant to the Company as a whole and/or shall be relevant to one or more specific Series shall be conclusive as to the party’s obligation to provide such indemnification.

(b) To the fullest extent permitted by applicable law, any affiliate of an LLC Manager, any officers, directors, shareholders, partners, members, employees, representatives or agents of such LLC Manager, or their respective affiliates (each, a “Covered Person”) shall be entitled to indemnification from the Company and/or the relevant Series for any loss, damage or claim incurred by such Covered Person by reason of any act or emission performed or omitted by such Covered Person in good faith on behalf of the Company as a whole and/or the relevant Series, and in a manner reasonably believed to be within the scope of authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of fraud, deceit, gross negligence, willful misconduct or a wrongful taking with respect to such acts or omissions; provided , however , that any indemnity under this Section 7.4 shall be provided out of and to the extent of the assets of the Company or the relevant Series only, and no Member shall have any personal liability on account thereof.

 

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(c) The Company may purchase and maintain insurance, to the extent and in such amounts as a majority of the LLC Managers shall deem reasonable, against any liability that may be asserted against or expenses that may be incurred by the LLC Managers or any Covered Person in connection with the activities of the Company including activities of the Series. The Company may enter into indemnity contracts with the Managers and Covered Persons and such other Persons as the LLC Managers shall determine and adopt written procedures pursuant to which arrangements are made for the advancement of expenses and the funding of obligations under this Section 7.4 and containing such other procedures regarding indemnification as are appropriate.

(d) An LLC Manager or Covered Person may rely and shall incur no liability in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, paper, document, signature or writing reasonably believed by it to be genuine, and may rely on a certificate signed by an officer of a Person in order to ascertain any fact with respect to such Person or within such Person’s knowledge and may rely on an opinion of counsel selected by such LLC Manager or Covered Person with respect to legal matters unless such LLC Manager or Covered Person acts in bad faith.

(e) The indemnification provided by this Section 7.4 shall be in addition to any other rights to which an LLC Manager or covered Person may be entitled under any agreement, by law or vote of the members as a matter of law or otherwise, and shall continue as to an LLC Manager or Covered Person who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of the LLC Manager or Covered Person.

(f) The provisions of this Section 7.4 are for the benefit of the LLC Managers and Covered Persons and their heirs, successors, assigns, administrators and personal representatives and shall not be deemed to be for the benefit of any other Person. The provisions of this Section 7.4 shall not be amended in any way that would adversely affect an LLC Manager or Covered Person without the consent of such LLC Manager or Covered Person.

7.5 Duties and Responsibility. The designated LLC Managers shall have a fiduciary responsibility for the safekeeping and use of all funds and assets of the Company and the Series for which they are responsible, and all such funds and assets shall be used in accordance with the terms of this Agreement. Notwithstanding the foregoing sentence, to the extent that, at law or in equity, an LLC Manager or Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company, any Series or to any Member, any such LLC Manager or Covered Person acting under this Agreement shall not be liable to the Company, any Series or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of an LLC Manager or Covered Person otherwise existing at law or in equity, are agreed by the Members to replace such other duties and liabilities of such LLC Manager or Covered Person.

7.6 Agreements with the LLC Managers.

 

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(a) All Members recognize that the Series of the Company will enter into agreements from time to time with the LLC Managers or their affiliates and with Members or their affiliates for services in connection with development and operation of its Series business.

(b) With respect to any other agreement between the Company or any Series of the Company and the LLC Managers, Members, or their affiliates, the Members hereby agree and consent that such agreements shall provide for normal and competitive fees to be paid by such Series of the Company, representing reasonable profit and overhead allowances to the contracting parties.

(c) The duty of the LLC Managers to the Series of the Company and to the Members with respect to the negotiation, execution, delivery, administration, amendment and termination of agreements described in Sections 7.6(a) through 7.6(b) shall be to act in good faith and in a commercially reasonable manner as established by applicable usages of trade.

(d) The foregoing provisions are specifically included herein for the benefit of the Series of the Company and all the Members to enable such Series of the Company to operate efficiently and expeditiously, consistent with the standards set forth, and the Members hereby waive and release any claims they may have under the Act for any contracts or agreements entered into by the LLC Managers which are consistent with the provisions of this Section 7.6.

7.7 Restrictions on Authority of LLC Managers. The following decisions with respect to the Company shall require the written consent of all LLC Managers and of 90% of the Series. In the event any of the following actions are proposed, the LLC Managers shall provide written notice of the proposed action to all Members, which notice period shall not be less than 20 days, during which time the Members shall be entitled to consult with the LLC Managers regarding the proposed action.

(i) The dissolution and winding up of the Company;

(ii) The sale, exchange or other transfer of all or substantially all the assets of the Company as a whole other than in the ordinary course of business and except as provided in Section 10; or

(iii) A material change in the nature of the business of the Company.

7.8 HUD Delegation. The LLC Managers shall delegate to the senior mortgage loan operating officer of the Company, all responsibility for, and authority over, the Company and Series loan origination and servicing operations relating to mortgage loans insured by or under insurance programs of HUD and FHA. The senior mortgage loan operating officer of the Company will be responsible for, and will have authority over, the Company and Series loan origination and servicing operations relating to mortgage loans insured by or under insurance programs of HUD and FHA, including, but not limited to, the employment and training by the

 

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Company and Series of personnel competent to perform assigned responsibilities relating to loan origination, servicing and collection activities to the extent that the Company and Series engage in such activities. The senior mortgage loan operating officer of the Company must devote such officer’s full time to the operations of the Company and its Series, and must satisfy all statutory and regulatory requirements, (including, but not limited to, requirements as to training and experience) from time to time applicable for a senior officer of the Company as an approved mortgagee of mortgage loans insured by or under insurance programs of HUD and FHA.

7.9 Duties as to Mortgage Loans Insured by HUD and FHA. The LLC Managers shall, or shall cause the Company to, give immediate notice to HUD and FHA of (a) any change in the identity of the Person who holds the office of senior mortgage loan operating officer of the Company and (b) any amendment or other modification of this Agreement that may affect the conduct of the business affairs of the Company or its Series relating to mortgage loans insured by, or under insurance programs of HUD and FHA. Prior to any dissolution of the Company pursuant to Section 15, the LLC Managers must cause the Company to transfer to a mortgagee approved by HUD and FHA any and all mortgage loans that are then held by the Company and insured by HUD and FHA.

8. Rights and Duties of Series Managers.

8.1 General Authority and Powers of Series Managers. Except as provided in Section 8.7, the separate Series Managers of each Series, as designated in a Separate Series Agreement for such Series, shall have the exclusive right and power to manage, operate and control the business of such Series of the Company and to do all things and make all decisions necessary or appropriate to carry on the business and affairs of the Series of the Company. All decisions required to be made by the Series Managers with respect to a Series shall require the approval of all Series Managers designated for such Series, except as otherwise provided in this Agreement, the Separate Series Agreement or as such Series Managers shall otherwise unanimously agree. Only Series Managers associated with a Series shall direct, manage, control, act for or execute contracts, agreements or other documents with respect to the business and affairs of such Series, and no approvals, consents or other authorizations of any LLC Manager, or Series Manager or Member not specifically associated with a Series shall be required in connection with the business or assets of such Series, except as otherwise set forth in this Agreement. The authority of the Series Managers shall include, but shall not be limited to, the following powers, over their respective Series of the Company:

(a) To spend and commit the capital and revenues of such Series of the Company;

(b) To manage, develop, operate and dispose of the Series Properties including loans, mortgages and other debt instruments of any of such Series;

(c) To give all authorizations, consents or other approvals required or permitted of a Series, or which a customer of a Series has delegated to the Series, or similar authorizations pursuant to any loan, debt, borrower or ownership documents, titles, leases, debt

 

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instruments, security instruments or other documents related to the business of the Series or with respect to the Series assets;

(d) To sell or otherwise dispose of all or substantially all of the assets of such Series as part of a single transaction or plan as long as such disposition is not in violation of or a cause of a default under any other agreement to which such Series or the Company may be bound;

(e) To employ persons or entities for the operation and management of the business of such Series and for the operation and development of the property of such Series of the Company;

(f) To acquire, lease and sell personal and/or real property, hire and fire employees, and to do all other acts necessary, appropriate or helpful for the operation of the business of such Series of the Company;

(g) To execute, acknowledge and deliver any and all instruments to effectuate any of the foregoing powers and any other powers granted the Series Managers under the laws of the state of Delaware or other provisions of this Agreement;

(h) To enter into and to execute agreements for employment or services, as well as any other agreements and all other instruments the Series Managers deem necessary or appropriate to operate such Series of the Company’s business and to operate and dispose of such Series of the Company’s properties or to effectively and properly perform its duties or exercise its powers hereunder;

(i) Provided such borrowing does not create a default under any agreement to which the Company as a whole or the Series is a party, to borrow money on a secured or unsecured basis from individuals, banks and other lending institutions to finance the business of such Series, to meet other obligations of such Series, provide Series working capital and for any other purpose of such Series of the Company, and to execute documents as a lender of funds may require, to secure repayment of such borrowings;

(j) To enter into such agreements and contracts and to give such receipts, releases and discharges, with respect to the business of such Series of the Company, as the Series Managers, in their sole discretion, deem advisable or appropriate;

(k) To purchase, at the expense of such Series of the Company, such liability and other insurance as the Series Managers, in their sole discretion, deem advisable to protect such Series of the Company’s assets and business; however, the Series Managers shall not be liable to such. Series of the Company or the other Members for failure to purchase any insurance;

(l) To file appropriate Trade Names and operate the Series business under such Trade Name authorization.

 

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(m) To sue and be sued, complain, defend, settle and/or compromise, with respect to any claim in favor of or against such Series of the Company, in the name and on behalf of such Series of the Company; and

(n) To appoint certain officers and operating officers of the Series Manager to act on behalf of the Series, and such persons, subject to the provisions of this Agreement, may generally supervise and control the day-to-day business and affairs of the Series and execute documents on behalf of the Series in accordance with the powers delegated to such officers. Such officers may sign contracts, agreements or other instruments for the Company to the extent clearly attributable to the sole business of the Series and designated as such and on behalf of the Series Managers. Each officer shall hold office until a successor shall have been appointed by the Series Managers or the office eliminated or such officer is otherwise removed by the Series Managers, with or without cause, all in the sole discretion of the Series Managers. The salary and other remuneration, if any, of each officer, as an officer of the Series, will be fixed and adjusted from time to time by the Series Managers, and no officer will be prevented from receiving such salary or other remuneration by reason of the fact that such officer also is a Manager of the Company. The appointment of an officer does not of itself create contract rights.

The Series Managers, to the extent of their powers set forth in this Agreement and any applicable Separate Series Agreement, are agents of the Company solely with respect to such applicable Series of the purpose of the Company’s and such Series’ business, and the actions of any Manager taken in accordance with such powers shall bind the Company with respect to such Series to the extent clearly attributable to the sole business of the Series and designated as such. Any document or instrument required or permitted to be entered into and performed by the Series Managers of a Series may be executed and delivered by any Manager of such Series, or by any other Person (including any Member) authorized by the Series Managers of a Series to enter into and perform such document or instrument on behalf of such Series.

8.2 Time Devoted to Company; Other Ventures. The Series Managers shall devote so much of their time to the business of their respective Series of the Company as in their judgment the conduct of such Series of the Company’s business reasonably requires. The Series Managers and the Members may engage in business ventures and activities of any nature and description independently or with others, whether or not in competition with the business of such Series of the Company, and shall have no obligation to disclose business opportunities available to them, and neither the Company nor any of the other Members shall have any rights in and to such independent ventures and activities or the income or profits derived therefrom by reason of their acquisition of interests in such Series of the Company. To the fullest extent permitted by applicable law, this Section 8.2 is intended to modify any provisions or obligations of the Act to the contrary and each of the Members, the Company and such Series of the Company hereby waives and releases any claims they may have under the Act with respect to any such activities or ventures of the Series Managers or other Members.

8.3 Liability of Series Managers to Members and Series of the Company. In carrying out their duties and exercising their powers hereunder, the Series Managers shall exercise reasonable skill, care and business judgment. A Series Manager shall not be liable to the Company or their respective Series of the Company or the Members for any act or omission performed or omitted

 

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by such Series Manager in good faith pursuant to the authority granted to such Series Manager by this Agreement as a Series Manager unless such act or omission constitutes fraud, deceit, gross negligence, willful misconduct or a wrongful taking by such Series Manager.

8.4 Indemnification.

(a) Each Series of the Company shall indemnify and hold harmless the Members of such Series, the designated Series Managers and any designated officers of the Series Managers responsible for such Series from any loss or damage, including attorneys’ fees actually and reasonably incurred by them, by reason of any act or omission performed or omitted by them on behalf of such Series of the Company or in furtherance of such Series of the Company’s interests or as Tax Matters Partner to the fullest extent permitted by applicable law; however, such indemnification or agreement to hold harmless shall be recoverable only out of the assets of the such Series of the Company and not from the Members. The foregoing indemnity shall extend only to acts or omissions performed or omitted by a Member, Series Manager or officers in good faith and in the belief that the acts or omissions were in such Series of the Company’s interest or not opposed to the best interests of such Series of the Company.

(b) To the fullest extent permitted by applicable law, any affiliate of a Member or Manager of a Series, any officers, directors, shareholders, partners, members, employees, representatives or agents of such Member or Manager, or their respective affiliates, or any employee or agent of such Series (each, a “Covered Person”) shall be entitled to indemnification from such Series for any loss, damage or claim incurred by such Covered Person by reason of any act or emission performed or omitted by such Covered Person in good faith on behalf of such Series and in a manner reasonably believed to be within the scope of authority conferred on such Covered Person by this Agreement and any Separate Series Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of fraud, deceit, gross negligence, willful misconduct or a wrongful taking with respect to such acts or omissions; provided, however, that any indemnity under this Section 8.4 shall be provided out of and to the extent of the assets of the such Series only, and no Covered Person or any other Series shall have any personal liability on account thereof.

(c) A Series may purchase and maintain insurance, to the extent and in such amounts as the Series Managers associated with such Series shall deem reasonable, on behalf of Covered Persons and such other Persons as the Series Managers associated with such Series shall determine, against any liability that may be asserted against or expenses that may be incurred by any such Person in connection with the activities of such Series or such indemnities, regardless of whether such Series would have the power to indemnify such Person against such liability under the provisions of this Agreement. A Series may enter into indemnity contracts with Covered Persons and such other Persons as the Members associated with such Series shall determine and adopt written procedures pursuant to which arrangements are made for the advancement of expenses and the funding of obligations under this Section 8.4 and containing such other procedures regarding indemnification as are appropriate.

 

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(d) A Member, Manager or Covered Person may rely and shall incur no liability in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, paper, document, signature or writing reasonably believed by it to be genuine, and may rely on a certificate signed by an officer of a Person in order to ascertain any fact with respect to such Person or within such Person’s knowledge and may rely on an opinion of counsel selected by such Member, Manager or Covered Person with respect to legal matters unless such Member, Manager or Covered Person acts in bad faith.

(e) The indemnification provided by this Section 8.4 shall be in addition to any other rights to which a Member, Manager or covered Person may be entitled under any agreement, by law or vote of the members as a matter of law or otherwise, and shall continue as to a Member, Manager or Covered Person who has ceased to serve in such capacity and shall-inure to the benefit of the heirs, successors, assigns and administrators of a Member, Manager or Covered Person.

(f) The provisions of this Section 8.4 are for the benefit of the Members, Series Managers and Covered Persons and their heirs, successors, assigns, administrators and personal representatives and shall not be deemed to be for the benefit of any other Person. The provisions of this Section 8.4 shall not be amended in any way that would adversely affect a Member, Manager or Covered Person without the consent of such Member, Manager or Covered Person.

8.5 Duties and Responsibility. The designated Series Managers shall have a fiduciary responsibility for the safekeeping and use of all funds and assets of the Series of the Company for which they are responsible, and all such funds and assets shall be used in accordance with the terms of this Agreement Notwithstanding the foregoing sentence to the extent that at law or in equity a Member Manager or Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company, any Series or to any Member, any such Member, Manager or Covered Person acting under this Agreement shall not be liable to the Company, any Series or to any Member for its good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, Manager or Covered Person otherwise existing at law or in equity, are agreed by the Members to replace such other duties and liabilities of such Member, Manager or Covered Person.

 

8.6 Agreements with the Series Managers.

(a) All Members recognize that the Series of the Company will enter into agreements from time to time with the Series Managers or their affiliates for services in connection with development and operation of its Series business.

(b) With respect to any other agreement between the Company or any Series of the Company and the Series Managers, or their affiliates, the Members hereby agree and consent that such agreements shall provide for normal and competitive fees to be paid by

 

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such Series of the Company, representing reasonable profit and overhead allowances to the contracting parties.

(c) The duty of the Series Managers to the Series of the Company and to the Members with respect to the negotiation, execution, delivery, administration, amendment and termination of agreements described in Sections 8.6(a) through 8.6(b) shall be to act in good faith and in a commercially reasonable manner as established by applicable usages of trade.

(d) The foregoing provisions are specifically included herein for the benefit of the Series of the Company and all the Members to enable such Series of the Company to operate efficiently and expeditiously, consistent with the standards set forth, and the Members hereby waive and release any claims they may have under the Act for any contracts or agreements entered into by the Series Managers which are consistent with the provisions of this Section 8.6.

8.7 Restrictions on Authority of Series Managers. The following decisions with respect to any Series of the Company shall require the written consent of all Series Managers designated as responsible for such Series and of Members holding two-thirds of the Percentage Interests in such Series of the Company. In the event any of the following actions are proposed, the Series Managers shall provide written notice of the proposed action to all Members associated with such Series, which notice period shall not be less than 20 days, during which time the Members shall be entitled to consult with the Series Managers regarding the proposed action.

(i) The sale, exchange or other transfer of all or substantially all the assets of such Series of the Company other than in the ordinary course of business; or

(ii) A material change in the nature of the business of such Series of the Company.

8.8 Death or Incapacity of a Manager. Notwithstanding any other provision of this Agreement, the death, incompetency, withdrawal, expulsion, bankruptcy or dissolution of a Member, or the occurrence of any other event which terminates the continued membership of such Member in a Series of the Company, shall not, in and of itself, cause a dissolution of the such Series of the Company and such Series of the Company shall continue as a Series thereof.

9. Status of Members.

9.1 No Participation in Management. Except as specifically provided herein, no Member shall take part in the conduct or control of the Company or any Series of the Company business or the management of such Series of the Company, or have any right or authority to act for or on the behalf of, or otherwise bind, such Series of the Company (except a Member who may also be a Manager and then only in such Member’s capacity as a Manager within the scope of such Member’s authority hereunder).

9.2 Limitation of Liability. No Member shall have, solely by virtue of such Member’s status as a Member of the Company or a Series of the Company, any personal liability whatever,

 

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whether to such Series of the Company, to any Members or to the creditors of the Company or any Series of the Company, for the debts or obligations of the Company or any Series of the Company or any of its losses beyond the amount contributed by such Member to the capital of such Series of the Company, except as otherwise required by the Act.

9.3 Company Books.

(a) Upon reasonable written request, each LLC Manager and each Series Manager shall have the right, at a time during ordinary business hours, to inspect and copy, the books and records of the Company.

(b) Upon reasonable written request, each LLC Manager shall have the right, at a time during ordinary business hours, to inspect and copy, the books and records of any Series for any purpose reasonably related to the Company’s interest with respect to such Series.

(c) Upon reasonable written request, each LLC Manager associated with a Series shall have the right, at a time during ordinary business hours, to inspect and copy, the books and records of such Series for any purpose reasonably related to such Series.

(d) Upon reasonable written request, each Member associated with a Series shall have the right, at a time during ordinary business hours, to inspect and copy, at the requesting Member’s expense, the books and records of such Series for any purpose reasonably related to such Member’s interest with respect to such Series.

9.4 Priority and Return of Capital. Except as may be expressly provided in Section 11, no Member associated with a Series shall have priority over any other Member associated with such Series, either as to the return of Capital Contributions or as to Net Income, Net Losses or distributions; provided that this Section 8.5 shall not apply to loans made to the Company by a Member with respect to a Series.

9.5 Liability of a Member to the Company. A Member who receives a distribution from the Company with respect to a Series is liable to the Company with respect to such Series or to others only to the extent required by the Act and other applicable law.

9.6 Death or Incapacity of Member. The death, incompetency, withdrawal, expulsion, bankruptcy or dissolution of a Member, or the occurrence of any other event which terminates the continued membership of a Member in a Series of the Company, shall not, in and of itself, cause a dissolution of such Series or of the Company. Upon the occurrence of such event, the rights of such Member to share in the Net Income and Net Loss of such Series of the Company, to receive distributions from such Series of the Company and to assign an interest in such Series of the Company pursuant to Section 14 below shall, on the happening of such an event, devolve upon such Member’s executor, administrator, guardian, conservator, or other legal representative or successor, as the case may be, subject to the terms and conditions of this Agreement, and the Company or such Series of the Company shall continue as a limited liability company or a Series thereof. However, in any such event, such legal representative or successor, or any assignee of such legal representative or successor shall be admitted to the Company or such Series of the

 

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Company as a Member only in accordance with and pursuant to all of the terms and conditions of Section 14 hereof.

9.7 Recourse of Members. Each Member shall look solely to the assets of the Series of the Company for all distributions with respect to such Series of the Company and such Member’s Capital Contribution thereto and share of Net Income and Net Loss thereof and shall have no recourse therefor, upon dissolution or otherwise, against any Manager or any other Member.

9.8 No Right to Property. No Member, regardless of the nature of such Member’s contributions to the capital of the Series’ of the Company, shall have any right to demand or receive any distribution from such Series of the Company in any form other than cash, upon dissolution or otherwise.

10. Meetings of Members.

10.1 Meetings.

(a) Meetings of the Members of the Company as a whole, for any purpose or purposes, may be called by any Member or Members holding at least 25% of the Percentage Interests of the Company.

(b) Meetings of the Members associated with a Series, for any purpose or purposes, may be called by any Member or Members associated with such Series holding at least 25% of the Percentage Interests of such Series.

10.2 Place of Meetings. The Members may designate any place, either within or outside the State of Delaware, as the place of meeting for any meeting of the Members. If a designation is not made, or if a special meeting be otherwise called, the place of meeting shall be the principal place of business of the Company for a meeting of the Company as a whole and the principal place of business of the Series for such Series. Any meeting of the Members may also take place by teleconferencing so long as a quorum (as set forth in Section 10.6 below) participate in the same.

10.3 Notice of Meetings. Except as provided in Section 10.4, written notice stating the place, day and hour of the meeting and the purpose or purposes for which the meeting is called shall be delivered not less than five nor more than thirty days before the date of the meeting, either personally or by mail, by or at the direction of the Members or Member calling the meeting, to each Member entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered two calendar days after being deposited in the United States mail, addressed to the Member at its address as it appears on the books of the Company, with postage thereon prepaid.

10.4 Meeting of All Members. If all the Members associated with a Series shall meet at any time and place, either within or outside the State of Delaware, or participate in a teleconference meeting, and consent to the holding of a meeting at such time and place or by teleconference, such meeting shall be valid without call or notice, and at such meeting lawful action may be

 

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taken.

10.5 Record Date. For the purpose of determining Members entitled to notice of or to vote at any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any distribution, or in order to make a determination of Members for any other purpose, the day immediately prior to the date on which notice of the meeting is mailed or the day immediately prior to the date on which the resolution declaring such distribution is adopted, as the case may be, shall be the record date for such determination of Members. When a determination of Members entitled to vote at any meeting of Members has been made as provided in this Section 10.5, such determination shall apply to any adjournment thereof.

10.6 Quorum. Members holding at least two-thirds of all Percentage Interests of the Company as a whole, represented in person or by proxy, shall constitute a quorum at any meeting of Members of the Company as a whole. Members associated with a Series holding at least two-thirds of all Percentage Interests of such Series, represented in person or by proxy, shall constitute a quorum at any meeting of Members associated with such Series. In the absence of a quorum at any such meeting, Members holding a majority of the Percentage Interests so represented may adjourn the meeting from time to time for a period not to exceed sixty days without further notice. However, if the adjournment is for more than sixty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each Member of record entitled to vote at the meeting. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. The Members present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal during such meeting of that number of Percentage Interests whose absence would cause less than a quorum.

10.7 Manner of Acting. If a quorum is present, the affirmative vote of Members holding a Majority Interest in such Series shall be the act of the Members, unless the vote of a greater or lesser proportion or number is otherwise required by the Act or expressly by this Agreement. Only Members associated with a Series may vote or consent upon any matter, and their vote or consent, as the case may be, shall be counted in the determination of whether the matter was approved by the Members associated with a meeting of a Series.

10.8 Proxies. At all meetings of Members, a Member may vote in person or by proxy executed in writing by the Member or by a duly authorized attorney-in-fact. Such proxy shall be filed with the Managers associated with the meeting before or at the tune of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy. A proxy may only be given verbally during a meeting taking place by teleconferencing and shall expire at the termination of said teleconference.

10.9 Action by Members Without a Meeting. Action required or permitted to be taken at a meeting of Members associated with a Series may be taken without a meeting and without prior notice if written consents of Members associated with such Series are received representing the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all Members of such Series were present and voted.

 

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10.10 Waiver of Notice. When any notice is required to be given to any Member, a waiver thereof in writing signed by the Member entitled to such notice, whether before, at, or after the time stated therein, or the participation in a teleconference meeting, shall be equivalent to the giving of such notice.

11. Contributions to the Company and Capital Accounts.

11.1 Members’ Capital Contributions. Each Member associated with a Series has, in connection with the Conversion, or shall contribute to such Series the amount as is set forth in Exhibit A for each Series attached hereto as its Initial Capital Contribution to the Company with respect to such Series.

11.2 Additional Contributions or Loans. Except as unanimously agreed upon by the Members of the Company as a whole, or the Members of a Series for the Series, no Member shall be obligated to make an additional capital contribution or loan to any Series or to the Company.

11.3 Capital Accounts.

(a) The Company shall establish and maintain a Capital Account, in accordance with Treasury Regulations issued under Code Section 704, for each Member with respect to each Series for which such Member is associated. The original Capital Account established for any Member who acquires an interest in a Series by virtue of the Conversion and the Dissolution of Windermere Mortgage Group LLC in accordance with the terms of this Agreement shall be in the same amount as, and shall replace, the Capital Account of such Members interest in Windermere Mortgage Group LLC or Windermere Mortgage Services LLC, and, for purposes of this Agreement, such Member shall be deemed to have made the Capital Contributions with respect to such Series as are described in the Plan of Conversion and assigned to such Series and set forth on Exhibit A as the Initial Capital Contribution.

(b) The Capital Account with respect to a Series of each Member associated with such Series shall be maintained in accordance with the following provisions:

(i) to such Member’s Capital Account with respect to such Series there shall be credited such Member’s Capital Contributions with respect to such Series, such Member’s distributive share of Net Income with respect to such Series and the amount of any Company liabilities with respect to such Series that are assumed by such Member or that are secured by any Company assets associated with such Series that are distributed to such Member;

(ii) to such Member’s Capital Account with respect to such Series there shall be debited the amount of cash and the Gross Asset Value of any other Company assets associated with such Series that are distributed to such Member pursuant to any provision of this Agreement, such Member’s distributive share of Net Losses with respect to such Series and the amount of any liabilities of such Member that are assumed by the Company with respect to such Series or that are secured by any property contributed by such Member to the Company with respect to such Series; and

 

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(iii) in determining the amount of any liability for purposes of this Subsection (b), there shall be taken into account § 752(c) of the Code and any other applicable provisions of the Code and the Treasury Regulations.

11.4 Withdrawal or Reduction of Members’ Contributions to Capital.

(a) A Member shall not receive from the Company, or from any Series with which such Member is associated, a return of any part of its Capital Contribution with respect to the Company or such Series unless the fair market value of the assets associated with such Series exceeds the liabilities of such Series (except liabilities to Members associated with such Series on account of their Capital Contributions to the Company with respect to such Series).

12. Allocations and Distributions.

12.1 Net Income and Net Losses.

(a) Subject to the allocation rules of Section 12.2 and the Exhibits, Net Income with respect to any Series for any Fiscal Year shall be allocated among the Members associated with such Series in proportion to such Members’ Percentage Interests in such Series.

(b) Subject to the allocation rules of Section 12.2 and the Exhibits, Net Losses with respect to any Series for any Fiscal Year shall be allocated among the Members associated with such Series in proportion to such Members’ Percentage Interests in such Series.

(c) The Net Income and Net Losses for each Series will be allocated to the Series as if such Series was a separate partnership for federal income tax purposes and shall be allocated to the Members associated with each Series on that basis. To the extent each Series constitutes or may constitute a separate partnership for federal income tax purposes, the Company shall file separate tax returns for each Series accordingly.

(d) To the extent such items are not allocable to any particular Series, such items shall be allocated among the various Series by the LLC Managers in their discretion.

12.2 Allocation Rules.

(a) In the event Members are admitted to a Series pursuant to this Agreement on different dates, the Net Income (or Net Losses) allocated to the Members associated with such Series for each Fiscal Year during which such Members are so admitted shall be allocated among the Members associated with such Series in proportion to the Percentage Interest each such Member holds from time to time during such Fiscal Year in

 

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accordance with § 706 of the Code, using any convention permitted by law and selected by Members holding a Majority Interest in such Series.

(b) For purposes of determining the Net Income, Net Losses or any other items with respect to any Series allocable to any period, Net Income, Net Losses and any such other items shall be determined on a daily, monthly, quarterly or other basis, as determined by Members holding a Majority Interest in such Series using any method that is permissible under § 706 of the Code and the Treasury Regulations thereunder.

(c) Except as otherwise provided in this Agreement, all items of Company income, gain, loss, deduction and any other allocations with respect to a Series not otherwise provided for herein shall be divided among the Members associated with such Series in the same proportions as they share Net Income and Net Losses with respect to such Series for the Fiscal Year in question.

(d) The Members are aware of the income-tax consequences of the allocations made by this Section 12 and hereby agree to be bound by the provisions of this Section 12 in reporting their shares of Company income and loss for income-tax purposes.

12.3 Limitation on Net Loss Allocation. Notwithstanding anything contained in this Section 12, no Member shall be allocated Net Loss with respect to any Series to the extent such allocation would cause a negative balance in such. Member’s Deemed Capital Account as of the end of the taxable year to which such allocation relates.

12.4 Minimum Gain Chargeback. If there is a net decrease in Minimum Gain with respect to any Series during a taxable year of such Series, then notwithstanding any other provision of this Section 12, each Member of such Series must be allocated items of income and gain with respect to such Series for such year, and succeeding taxable years to the extent necessary (the “Minimum Gain Chargeback”), in proportion to, and to the extent of, an amount required under Treasury Regulation Section 1.704-2(f).

12.5 Qualified Income Offset. If at the end of any taxable year and after operation of Section 12.4, any Member shall have a negative balance in such Member’s Deemed Capital Account with respect to any Series, then notwithstanding anything contained in this Section 12, there shall be reallocated to each Member with a negative balance in such Member’s Deemed Capital Account with respect to such Series (determined after the allocation of income, gain or loss under this Section 12 for such year) each item of gross income (unreduced by any deductions) and gain of such Series in proportion to such negative balances until the Deemed Capital Account with respect to such Series for each such Member is increased to zero.

12.6 Curative Allocations. The allocations set forth in Sections 12.3, 12.4 and 12.5 (the “Regulatory Allocations”) are intended to comply with certain requirements of the Treasury Regulations issued pursuant to Code Section 704(b). It is the intent of the Members that, to the extent possible, all Regulatory Allocations with respect to any Series shall be offset either with other Regulatory Allocations or with special allocations of other items of income, gain, loss, or deduction with respect to such Series pursuant to this Section 12.6. Therefore, notwithstanding

 

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any other provision of this Section 12 (other than the Regulatory Allocations), the Managers shall make such offsetting special allocations of income, gain, loss, or deduction with respect to a Series in whatever manner they determine appropriate so that, after such offsetting allocations are made, each Capital Account balance of each Member of such Series is, to the extent possible, equal to the Capital Account balance such Member would have had with respect to such Series if the Regulatory Allocations were not part of the Agreement and all Company items were allocated pursuant to Sections 12.1 and 12.2.

12.7 Tax Allocations; Section 704(c) of the Code.

(a) In accordance with § 704(c) of the Code and the Treasury Regulations thereunder, income, gain, loss and deduction with respect to any property contributed to the capital of the Company with respect to any Series shall, solely for income-tax purposes, be allocated among the Members associated with such Series so as to take account of any variation between the adjusted basis of such property to the Company for federal income-tax purposes and its initial Gross Asset Value (computed in accordance with Section 1.14 hereof).

(b) In the event the Gross Asset Value of any Company asset associated with a Series is adjusted pursuant to Paragraph (ii) of the Definition of “Gross Asset Value” contained in Section 1.14 hereof, subsequent allocations of income, gain, loss and deduction with respect to such asset and such Series shall take account of any variation between the adjusted basis of such asset for federal income-tax purposes and its Gross Asset Value in the same manner as under § 704(c) of the Code and the Treasury Regulations thereunder.

(c) Any elections or other decisions relating to allocations with respect to a Series under Section 12.7 including the selection of any allocation method permitted under Treasury Regulation § 1.704-3, shall be made by the Series Managers in a manner that reasonably reflects the purpose, and intention of this Agreement. Allocations pursuant to this Section 12.7 are solely for purposes of federal, state and local taxes and shall not affect, or in any way be taken into account in computing, any Member’s Capital Account with respect to any Series or share of Net Income, Net Losses, other items or distributions pursuant to any provision of this Agreement.

12.8 Cash Available for Distribution. Except as otherwise provided in Section 16 hereof (relating to the dissolution of the Company), any distribution of the Cash Available for Distribution of any Series during any Fiscal Year shall, at such times and in such amounts as the Series Managers of such Series determine is appropriate, in their sole discretion, be made to the Members associated with such Series in proportion to such Members’ respective Percentage Interests in such Series.

12.9 Distribution Rules.

(a) All distributions with respect to a Series pursuant to Section 12.8 shall be at such times and in such amounts as shall be determined by the Series Managers of such Series in their sole discretion; provided, however, that subject to Section 12.8 above, the Series Managers shall use their best efforts to cause the Company to distribute to the Members an

 

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amount of Cash Available for Distribution as shall be sufficient to enable Members to fund their federal and state income-tax liabilities attributable to their respective distributive shares of the taxable income of the Company.

(b) All amounts withheld pursuant to the Code or any provision of any state or local tax law with respect to any payment, distribution or allocation to the Company, a Series or the Members shall be treated as amounts distributed to the Members pursuant to this Section 12 for all purposes of this Agreement. The Members and Managers are authorized to withhold from distributions, or with respect to allocations, to the Members and to pay over to any federal, state or local government any amounts required to be so withheld pursuant to the Code or any provision of any other federal, state or local law and shall allocate such amounts to those Members with respect to which such amounts were withheld.

(c) Each Series shall maintain such reserves as are necessary for the Series to maintain adequate capitalization of the Company or to satisfy capital or net worth covenants in agreements between the Company and third parties. The amount of adequate capitalization required of each Series shall be determined from time to time by the LLC Managers and provided to the Series Managers in writing. In no event shall the capitalization for each Series be less than the amounts stated in Exhibit E attached hereto.

12.10 Limitation Upon Distributions.

(a) Notwithstanding any provision to the contrary contained in this Agreement, the Company with respect to a Series shall not make any distribution to any Person on account of its interest in the Company with respect to such Series if such distribution would violate Sections 18 -215 or 18-607 of the Act or other applicable law.

(b) The Managers for any Series may base a determination that a distribution or return of contribution may be made under Section 12.10(a) in good-faith reliance upon a balance sheet and profit and loss statement of the Company with respect to such Series represented to be correct by the Person having charge of its books of account or certified by an independent public or certified public accountant or firm of accountants to fairly reflect the financial condition of the Company and such Series.

12.11 Accounting Method. For both financial and tax-reporting purposes and for purposes of determining Net Income and Net Losses, the books and records of the Company with respect to each Series shall be kept on the accrual method of accounting in a consistent manner and shall reflect all Company transactions with respect to such Series and be appropriate and adequate for the Company’s business.

12.12 Interest on and Return of Capital Contributions. No Member shall be entitled to interest on its Capital Contributions or to return of its Capital Contributions.

12.13 Loans to Company. Nothing in this Agreement shall prevent any Member from making secured or unsecured loans to the Company for any Series by agreement with the Managers of such Series.

 

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12.14 Records, Audits and Reports. At the expense of the relevant Series, the LLC Managers jointly with the Series Managers associated with such Series shall maintain separate and distinct records and accounts of the operations and expenditures of such Series. At a minimum, the LLC Managers and each Series shall keep at the principal place of business of the Company the following records:

(a) True and full information regarding the status of the business and financial condition of such Series and the Company;

(b) Promptly after becoming available, a copy of the Company’s and each Series federal, state and local income tax returns for each year;

(c) The current list of the name and last known business, residence or mailing address of each Member associated with each Series;

(d) A copy of this Agreement, Separate Series Agreements and the Certificate of Formation, together with executed copies of any written powers of attorney pursuant to which this Agreement, Separate Series Agreements and the Certificate of Formation have been executed;

(e) True and full information regarding the assets associated with each Series and the debts, liabilities and obligations of such Series.

(f) True and full information regarding the amount of cash and a description and statement of the Gross Asset Value of any other property or services contributed by each Member to the Company with respect to such Series and which each Member associated with such Series has agreed to contribute in the future, and the date on which each became a Member;

(g) Minutes of any meetings;

(h) Any written consents obtained from Members associated with such Series for actions taken by such Members without a meeting; and

(i) Unless contained in this Agreement, a writing prepared by the Members associated with such Series setting out the following:

(i) The times at which or events on the happening of which any additional contributions agreed to be made by each Member associated with such Series are to be made; and

(ii) Any right of a Member associated with such Series to receive distributions that include a return of all or any part of the Member’s contributions.

12.15 Returns and Other Elections. The LLC Managers together with the Managers for each

 

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Series shall cause the preparation and timely filing of all tax returns required to be filed by the Company for each Series pursuant to the Code and all other tax returns deemed necessary and required in each jurisdiction in which the Company does business. Copies of such returns, or pertinent information therefrom, shall be furnished to the Members within a reasonable time after the end of the Company’s Fiscal Year. All elections permitted to be made by the Company under federal or state laws shall be made by the LLC Managers in their sole discretion.

12.16 Tax Matters Partner.

(a) Homestreet/WMS, Inc. is hereby designated as the initial “Tax Matters Partner” for the Company and for each Series for purposes of § 6231(a)(7) of the Code and shall have the power to manage and control, on behalf of the Company or Series, any administrative proceedings at the Company or Series level with the Internal Revenue Service relating to the determination of any item of Company or Series income, gain, loss, deduction or credit for federal income-tax purposes.

(b) To the extent appropriate, Homestreet/WMS, Inc. is hereby designated as the initial “Tax Matters Partner” of the Company for purposes of § 6231(a)(7) of the Code and shall have the power to manage and control, on behalf of the Company, any administrative proceedings at the Series level with the Internal Revenue Service relating to the determination of any item of Series income, gain, loss, deduction or credit for federal income-tax purposes.

(c) The Tax Matters Partner shall, within ten days of the receipt of any notice from the Internal Revenue Service in any administrative proceeding at the Company level relating to the determination of any Company item of income, gain, loss, deduction or credit, mail a copy of such notice to each Member.

(d) The Tax Matters Partner shall, within ten days of the receipt of any notice from the Internal Revenue Service in any administrative proceeding at the Series level relating to the determination of any Series item of income, gain, loss, deduction or credit, mail a copy of such notice to the Series Managers and each Member of such Series.

(e) The LLC Managers may at any time hereafter by a majority vote designate a new Tax Matters Partner of any Series or the Company; provided, however, that only a Member may be designated as the Tax Matters Partner of the Company, the Tax Matters Partner of any Series must be a Member of such Series and such designation complies with §6231(a)(7)of the Code.

12.17 Right to Make Section 754 Election. In their sole discretion, the Managers of any Series may make or revoke, on behalf of the Company, an election in accordance with § 754 of the Code, so as to adjust the basis of Company Property for such Series in the case of a distribution of property within the meaning of § 734 of the Code, and in the case of a transfer of a Company interest within the meaning of § 743 of the Code. Each of such Series Members shall supply the information necessary to give effect to such an election.

 

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13. Company Expenses.

13.1 Company Administrative Expenses. The administrative costs and expenses of the Company (but not costs and expenses attributable to a particular Series business) shall be allocated by the Company to the Series by the LLC Managers in such manner as is deemed fair and equitable. Each such allocation shall be conclusive and binding on all Members of all Series, for all purposes.

13.2 Company Expenses. Each Series of the Company shall pay all costs and expenses of such Series of the Company, which may include, but are not limited to:

(a) All organizational expenses incurred in the formation of such Series of the Company and the issuance of interests in such Series of. the Company which are not reimbursed by a third party;

(b) All costs of personnel employed by such Series of the Company;

(c) All costs reasonably related to the conduct of such Series’ of the Company day-to-day business affairs, including, but without limitation, the cost of supplies, utilities, taxes, licenses, fees and services contracted from third parties;

(d) All costs of borrowed money, taxes and assessments on such Series’ business, and other taxes applicable to such Series of the Company;

(e) Legal, audit, accounting, brokerage and other fees applicable to such Series of the Company;

(f) Printing and other expenses incurred in connection with the business of such Series of the Company;

(g) Fees and expenses paid to brokers, consultants, and other agents, including affiliates of the Managers;

(h) The cost of insurance obtained in connection with the business of such Series of the Company;

(i) Expenses of revising, amending, converting, modifying or terminating such Series and the Company;

(j) Expenses in connection with distributions made by such Series of the Company to, and communications and bookkeeping and clerical work necessary in maintaining relations with, Members;

(k) Expenses in connection with preparing and mailing reports required to be furnished to Members associated with such Series of the Company for financial

 

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reporting, tax reporting or other purposes that the LLC Managers or Series Managers of such Series deem appropriate; and

(1) Costs incurred in connection with any litigation, including any examinations or audits by regulatory agencies relating to the Company, such Series or the business of such Series.

14. Transferability.

14.1 Transfer. A Person may assign, distribute, hypothecate, pledge, recognize, sell or otherwise transfer any Membership Interest in a Series to another Person, provided that prior to any such transfer, the Person shall obtain the written consent of the LLC Managers and the Managers associated with such Series, which written consent may be withheld in the sole discretion of a majority of either the LLC Managers or the Managers associated with such Series. A transferee may be admitted as a Member of the Company associated with a Series upon compliance with Section 15.1.

15. Issuance and Transfers of Membership Interests.

15.1 Additional Members and Assignees.

(a) In addition to the admission to the Company of Members in a new Series pursuant to Section 2, pursuant to the approval of the unanimous Vote of the Members of a Series, a Person may be admitted to the Company as a Member associated with such Series either (i) by the issuance by the Series of Membership Interests for such consideration as the Series Managers and Members associated with such Series shall determine, or (ii) as a transferee of a Member’s Membership Interest or any portion thereof, subject to the terms and conditions of this Agreement. A Person who is either issued a Membership Interest for a Series or who receives by transfer a Membership Interest for a Series and who has received the approval of the Managers and Members associated with such Series pursuant to this Section 15.1 shall be admitted to the Company as a Member associated with such Series upon its execution of a counterpart to this Agreement and a counterpart to a Separate Series Agreement for such Series.

(b) Any Person receiving a Membership Interest in a Series pursuant to Section 14.1 that is not admitted as a Member associated with such Series pursuant to this Section 15.1 (whether by failing to receive approval from the. Series Managers and the Members of such Series with respect to such admission, by failing to execute a counterpart to this Agreement and a counterpart to a Separate Series Agreement or otherwise) shall be deemed to be a mere assignee of a Membership Interest associated with such Series. Unless otherwise admitted to the Company as a Member pursuant to this Agreement, an assignee of a Membership Interest has no voting or other management rights with respect to the Company or any Series.

15.2 Retroactive Allocations. No additional Members or assignees of Membership Interests shall be entitled to any retroactive allocation of the Company’s income, gains, losses, deductions, credits or other items; provided that, subject to the restrictions of § 706(d) of the Code, additional Members and assignees of Membership Interests shall be entitled to their respective shares of the

 

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Company’s income, gains, losses, deductions, credits and other items arising under contracts entered into before the effective date of the issuance or transfer of Membership Interests to the extent that such income, gains, losses, deductions, credits and other items arise after such effective date. To the extent consistent with § 706(d) of the Code and Treasury Regulations promulgated thereunder, the Company’s books may be closed at the time Membership Interests are issued or transferred (as though the Company’s taxable year had ended) or the Managers for a Series may credit to additional Members and assignees of Membership Interests pro rata allocations of the Company’s income, gains, losses, deductions, credits and items related to such Series for that portion of the Company’s Fiscal Year after the effective date of the issuance or transfer of the Membership Interests.

16. Termination of Series; Dissolution and Termination of the Company.

16.1 Dissolution of the Company.

(a) The Company shall be dissolved upon the occurrence of any of the following events:

(i) the sale or other disposition of all or substantially all of the assets of all the Series of the Company;

(ii) by the unanimous written agreement of all Members; or

(iii) upon the entry of decree of judicial dissolution under Section 18-802 of the Act.

(b) The death, retirement, resignation, expulsion, bankruptcy or dissolution of any Member or Manager or the occurrence of any event that terminates the continued membership of any Member in the Company shall not in and of itself cause a dissolution of the Company and the Company shall continue as a limited liability company.

(c) If a Member who is an individual dies or a court of competent jurisdiction adjudges him to be incompetent to manage his person or his property, the Member’s executor, administrator, guardian, conservator, or other legal representative may exercise all of the Member’s rights for the purpose of settling his estate or administering his property. If a Member is an Entity and is dissolved or terminated, the powers of that Member may be exercised by its legal representative or successor.

16.2 Termination of a Series.

(a) A Series shall be terminated and its affairs wound up upon the occurrence of any of the following events:

(i) upon the dissolution of the Company;

 

36


(ii) At the election of any of the Members associated with such Series, and upon ninety (90) days prior written notice to all other Members;

(iii) at the time in which there are no Members associated with such Series; or

(iv) upon the entry of a decree of judicial termination of the Series under Section 18-215(1) of the Act.

(b) Other than in connection with a transfer of Membership Interests in accordance with this Agreement or pursuant to Section 16(a)(ii) above, a Member associated with a Series shall not take any voluntary action (including, without limitation, resignation) that directly causes it to cease to be a Member of the Company associated with such Series. Unless otherwise approved by Members associated with a Series owning a Majority Interest of such Series, a Member who ceases to be a Member associated with such Series (a “Resigning Member”), regardless of whether such termination was the result of a voluntary act by such Member, shall not be entitled to receive any distributions from the Company with respect to such Series in excess of those distributions to which such Member would have been entitled had such Member remained a Member associated with such Series. Except as otherwise expressly provided herein, a Resigning Member shall immediately become an assignee associated with such Series. Damages for breach of this Section 16.2(b) shall be monetary damages only (and not specific performance), and such damages may be offset against distributions by the Company with respect to such Series to which the Resigning Member would otherwise be entitled.

(c) The termination and winding up of a Series shall not cause a dissolution of the Company (unless there are no remaining Series) or the termination of any other Series. The termination of a Series shall not affect the limitation on liabilities of such Series or any other Series provided by this Agreement and the Act.

(d) The LLC Managers may require that a formal legal termination of a Series be delayed for up to twenty-four months and that the capital of the Series Members remain in the Series for that time if necessary in order to maintain adequate capitalization of the Company or to satisfy capital or net worth covenants in agreements between the Company and third parties. However, the Series need not actively engage in business during any period for which it is required to remain in existence by the LLC Managers pursuant to this Section 16.2(d).

16.3 Winding Up, Liquidation and Distribution of Assets of a Series Upon Termination of Such Series.

(a) Upon termination of a Series, an accounting shall be made of the accounts of the Company with respect to such Series and of the assets, liabilities and operations associated with such Series, from the date of the last previous accounting until the date of such termination. The Series Managers associated with such Series shall immediately proceed to wind up the affairs of such Series.

 

37


(b) If a Series is terminated and its affairs are to be wound up, the Managers associated with such Series shall:

(i) Sell or otherwise liquidate all of the assets of such Series as promptly as practicable (except to the extent such Series Managers may determine to distribute any assets to the Series Members in kind);

(ii) Allocate any Net Income or Net Losses resulting from such sales to the respective Capital Accounts of the Members associated with such Series in accordance with Section 12 hereof;

(iii) Satisfy (whether by payment or reasonable provision for payment thereof) all liabilities of the Company with respect to such Series, including liabilities to Members or Managers who are creditors, to the extent otherwise permitted by law, other than liabilities to Members for distributions (for purposes of determining the Capital Accounts of the Members associated with such Series, the amounts of any Reserves created in connection with the liquidation of such Series shall be deemed to be an expense of the Company with respect to such Series); and

(iv) Distribute the remaining assets of such Series to the Members associated with such Series in accordance with their positive Capital Account balances after giving effect to all contributions, distributions, and allocations for all periods.

(c) Notwithstanding anything to the contrary in this Agreement, if upon the termination and liquidation of any Series, any Member associated with such Series has a deficit balance in its Capital Account associated with such Series (after giving effect to all contributions, distributions, allocations and other Capital Account adjustments for all taxable years, including the year during which such termination and liquidation occurs), such Member shall have no obligation to make any Capital Contribution, or otherwise restore the deficit balance in such Members’ Capital Account associated with such Series, and such deficit Capital Account balance shall not be considered a debt owed by such Member to the Company with respect to such Series or otherwise, to any other Member or to any other Person for any purpose whatsoever.

(d) The Managers associated with a Series shall comply with all requirements of applicable law pertaining to the winding up of the affairs of the Company with respect to such Series and the final distribution of its assets.

16.4 Winding Up, Liquidation and Distribution of Assets of the Company Upon Dissolution of the Company. Upon the dissolution of the Company pursuant to Section 16.1, the Company shall be wound up by winding up each Series in the manner contemplated by Section 16.3. The Company shall continue as a separate legal entity until the cancellation of the Certificate of Formation in accordance with the Act.

16.5 Returns of Contributions Nonrecourse to Other Members. Except as otherwise provided by applicable laws, upon termination of a Series, each Member associated with such Series shall

 

38


look solely to the assets of such Series for the return of its Capital Contributions made with respect to such Series, and if the assets of such Series remaining after payment of or due provision for the debts and liabilities of the Company with respect to such Series are insufficient to return such Capital Contributions, such Members shall have no recourse against any other Series, the Company or any other Member, except as otherwise provided by law.

17. Resignation and Admission of Series Manager.

17.1 Resignation of a Series Manager. A Manager for any Series shall be entitled to resign as a Manager for such Series 30 days after delivery of written notice to the Company and the Members admitted to such Series of the Manager’s intention to resign, or upon such earlier date as the Manager’s resignation is accepted by Members holding a Majority Interest in the Series. Resignation of a Manager, who is a Member of a Series, pursuant to this Section 17.1 shall not affect its interest as a Member of the Series or in the Company.

17.2 Death or Incompetency of Series Manager. A Manager for any Series shall cease to be a Manager of such Series upon the death, incompetency, retirement, bankruptcy or dissolution of such Manager.

17.3 Removal of a Series Manager. A Series Manager may be removed as a Manager at any time by the Member who appointed that Series Manager. Removal of a Series Manager who is a Member of a Series and the Company, pursuant to this Section 17.3 shall not affect such Manager’s Membership Interest in the Series or in the Company.

17.4 Appointment of a New or Replacement Series Manager. A new or replacement Manager for any Series may be appointed by HSB/WMS, if the Manager being replaced was a HSB/WMS Series Manager, and by agreement of a majority of the WG Series Members, if the Manager being replaced was a WG Series Manager. At all times each Series shall have one HSB/WMS Series Manager and one WG Series Manager except as otherwise provided in any Separate Series Agreement.

18. Resignation and Admission of LLC Manager.

18.1 Resignation of an LLC Manager. An LLC Manager shall be entitled to resign as a Manager for the Company 30 days after delivery of written notice to the Company of the Manager’s intention to resign, or upon such earlier date as the Manager’s resignation is accepted by a majority of the remaining LLC Managers.

18.2 Death or Incompetency of an LLC Manager. An LLC Manager shall cease to be a Manager upon the death, incompetency, retirement, bankruptcy or dissolution of such Manager.

18.3 Removal of an LLC Manager. An LLC Manager may be removed as a Manager at any time:

(a) by HSB/WMS, in the case of a HSB LLC Manager; and

 

39


(b) by agreement of a majority of the WG Series Members, in the case of a WG LLC Manager.

18.4 Appointment of a New or Replacement LLC Manager. A new or replacement LLC Manager may be appointed:

(a) by HSB/WMS, if the Manager being replaced was a HSB LLC Manager; and

(b) by agreement of a majority of the WG Series Members, if the Manager being replaced was a WG LLC Manager.

19. Special and Limited Power of Attorney.

(a) The LLC Managers and each of them, with full power of substitution, shall at all times during the existence of the Company have a special and limited power of attorney as the authority to act in the name and on the behalf of each Member in the Company and the Series Managers and each of them, with full power of substitution, shall at all times during the existence of the Company have a special and limited power of attorney as the authority to act in the name and on the behalf of each Member in such Manager’s Series, to make, execute, swear to, verify, acknowledge and file the following documents and any other documents deemed by the Managers to be necessary for the business of the Company and the Series of the Company:

(i) This Agreement, the Separate Series Agreements, any separate articles of organization, fictitious business name statements, as well as any amendments to the foregoing which, under the laws of any state, are required to be filed or which the Managers deem it advisable to file;

(ii) Any other instrument or document which may be required to be filed by the Series or the Company under the laws of any state or by a governmental agency, or which the Managers deem it advisable to file; and

(iii) Any instrument or document which may be required to effect the continuation of the Series of the Company, the admission of a Manager or Member for such Series, the transfer of an interest in the Company, the change in custodian or trustee of any IRA, trust or pension or profit sharing plan Member, or the dissolution and termination of the Company (provided such continuation, admission or dissolution and termination are in accordance with the terms of this Agreement), or to reflect any increases or reductions in amount of contributions of Members to such Series.

(b) The special and limited power of attorney granted to the Managers hereby:

 

40


(i) Is a special and limited power of attorney coupled with an interest, is irrevocable, shall survive the dissolution or incompetency of the granting Member, and is limited to those matters herein set forth;

(ii) May be exercised by each of the Managers (or by any authorized officer of the Manager, if not a natural person) for each Member by referencing the list of Members on Appendix A and executing any instrument with a single signature acting as attorney-in-fact for all of them;

(iii) Shall survive a transfer by a Member of such Member’s interest in the Series of Company pursuant to Section 14 hereof for the sole purpose of enabling the Manager to execute, acknowledge and file any instrument or document necessary or appropriate to admit a transferee as a Member; and

(iv) Notwithstanding the foregoing, in the event that a Manager ceases to be a Manager in the Company with respect to such a Series, the power of attorney granted by this Section 19 to such Manager shall terminate immediately, but any such termination shall not affect the validity of any documents executed prior to such termination, or any other actions previously taken pursuant to this power of attorney or in reliance upon its validity, all of which shall continue to be valid and binding upon the Members in accordance with their terms.

20. Amendments. This Agreement may not be amended except in writing by a unanimous approval of the LLC Managers together with a class vote comprised of the affirmative vote of Members associated with each Series holding at least two-thirds of all Percentage Interests in each Series. Any amendment changing the Percentage Interest needed under this Section 20 to amend this Agreement requires unanimous approval of the LLC Managers together with a two-thirds vote of the Members of each Series.

21. Miscellaneous.

21.1 Notices. Any notice, offer, consent or other communication required or permitted to be given or made hereunder shall be in writing and shall be deemed to have been sufficiently given or made when delivered personally to the party (or an officer of the party) to whom the same is directed, or (except in the event of a mail strike) five days after being mailed by first class mail, postage prepaid, if to the Company or to a Manager, to the office described in Section 4 hereof, or if to a Member, to such Member’s last known address or when received by facsimile if to the Company or Manager to the facsimile number for the office described in Section 4 hereof, or if to a Member, to such Member’s facsimile number. Any Member may change such Member’s address for the purpose of this Section 21.1 by giving notice of such change to the Company, such change to become effective on the tenth day after such notice is given.

21.2 Binding Effect. This Agreement is binding upon and inures to the benefit of the Members, and, to the extent permitted by this Agreement, their respective legal representatives, successors and assigns.

 

41


21.3 Remedies for Breach. Each party to this Agreement shall have the remedies that are available to it for the violation of any of the terms of this Agreement; including, but not limited to, the equitable remedy of specific performance (except as otherwise provided by this Agreement).

21.4 Entire Agreement. This Agreement, along with any applicable Separate Series Agreement, constitutes the entire agreement among the parties and supersedes any prior agreement or understandings among them, oral or written, all of which are hereby cancelled. This Agreement may not be modified or amended other than pursuant to Section 19 hereof.

21.5 Waiver of Action for Partition. Each Member irrevocably waives during the term of the Company any right that it may have to maintain any action for partition with respect to the property of the Company or any Series.

21.6 Captions; Pronouns. The paragraph and section titles or captions contained in this Agreement are inserted only as a matter of convenience of reference. Such titles and captions in no way define, limit, extend or describe the scope of this Agreement nor the intent of any provision hereof. All pronouns and any variation thereof shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons may require.

21.7 Execution of Additional Instruments. Each Member hereby agrees to execute such other and further statements of interest and holdings, designations and other instruments necessary to comply with any laws, rules regulations.

21.8 Waivers. The failure of any party hereto to seek redress for default of or to insist upon the strict performance of any covenant or condition of this Agreement shall not prevent a subsequent act, which would have originally constituted a default, from having the effect of an original default.

21.9 Rights and Remedies Cumulative. The rights and remedies provided by this Agreement are cumulative, and the use of any right or remedy by any party hereto shall not preclude or waive the right to use any other remedy. Said rights and remedies are given in addition to any other legal rights the parties hereto may have.

21.10 Severability. If any provision or term of this Agreement is found to be invalid, void or unenforceable, the remainder of the provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. It is the intent of the parties hereto for the terms and conditions of this Agreement to be interpreted to the greatest extent possible so as to remain valid and enforceable, and any provision or term of this Agreement found by a court to be invalid, void or unenforceable, shall be rewritten by the court pursuant to this intent.

21.11 Creditors. None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditors of: (i) the Company, (ii) any Series of the Company, or (iii) any Member.

 

42


21.12 Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in 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. Delivery of any executed counterpart of a signature page to this Agreement by facsimile shall be effective as delivery of an executed original counterpart of this Agreement.

21.13 Governing Law. This Agreement and the application and interpretation thereof shall be governed by and construed exclusively in accordance with the internal laws of the State of Delaware (without regard to principles of conflict of laws).

21.14 Decisions by Members and Manager. Whenever in this Agreement a Member or Manager is permitted or required to make a decision (i) in its “sole discretion” or “discretion” or under a grant of similar authority or latitude, the Member or Manager shall be entitled to consider only such interest and factors as it desires, including its own interests and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Company, any Series or any Member, or (ii) in its “good faith” or under another express standard, the Member or Manager shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity or otherwise.

IN WITNESS WHEREOF the parties have executed this Agreement as of the date first hereinabove written.

 

MANAGERS/MEMBERS:   * [Signatures to be inserted]*   

 

43


AMENDED EXHIBIT A - 1

LIST OF SERIES AND SERIES MEMBERS

 

Series

  

Member’s

Name

   Percentage
Interest in such
Series
 

Windermere Mortgage

Services Series LLC/ American NW Realty

   HomeStreet/WMS, Inc.      50
   American Northwest Realty, Inc.      50

Windermere Mortgage

Services Series LLC/ Auburn

   HomeStreet/WMS,. Inc.      50
   Windermere Real Estate/Auburn, Inc.      50
Windermere Mortgage    HomeStreet/WMS, Inc.      50
Services Series LLC/ AT    Windermere Cronin & Caplan Realty Group, Inc.      50
Windermere Mortgage    HomeStreet/WMS, Inc.      50
Services Series LLC/ East    Windermere Real Estate/East, Inc.      50

Windermere Mortgage

Services Series LLC/ Everett

   HomeStreet/WMS, Inc.      50
   Windermere Real Estate Everett, Inc.      50
Windermere Mortgage    HomeStreet/WMS, Inc.      50
Services Series LLC/ GH    Windermere Real Estate/GH LLC      50

Windermere Mortgage

Services Series LLC/ HKW

   HomeStreet/WMS, Inc.      50
   Windermere Real Estate/HKW, Inc.      50

Windermere Mortgage

Services Series LLC/ Maple Valley

   HomeStreet/WMS, Inc.      50
   Windermere Real Estate/Maple Valley, Inc.      50
Windermere Mortgage    HomeStreet/WMS, Inc.      50
Services Series LLC/ M2    Windermere Real Estate/M2, LLC      50
Windermere Mortgage    HomeStreet/WMS, Inc.      50
Services Series LLC/ North    Windermere Real Estate/North, Inc.      50

Windermere Mortgage

Services Series LLC/ North Wall Street

   HomeStreet/WMS, Inc.      50
   Becker Mortgage, LLC      50

 

- 1 -


Series

  

Member’s

Name

   Percentage
Interest in such
Series
 

Windermere Mortgage

Services Series LLC/ Northeast

   HomeStreet/WMS, Inc.      50
   PVCH Financial Systems LLC      50

Windermere Mortgage

Services Series LLC/ Northwest

   HomeStreet/WMS, Inc.      50
   Windermere Real Estate/Northwest, Inc.      50

Windermere Mortgage

Services Series LLC/ Oak Tree

   HomeStreet/WMS, Inc.      50
   WMJC, Inc.      50

Windermere Mortgage

Services Series LLC/ Pacific West Properties

   HomeStreet/WMS, Inc.      50
   Windermere Pacific West Properties, Inc.      50

Windermere Mortgage

Services Series LLC/Paragon

   HomeStreet/WMS, Inc.      50
   Windermere Real Estate/Paragon Company, Inc.      50

Windermere Mortgage

Services Series LLC/Renton

   HomeStreet/WMS, Inc.      50
   Windermere Real Estate/Renton, Inc.      50

Windermere Mortgage

Services Series LLC/South

   HomeStreet/WMS, Inc.      50
   Windermere Real Estate/South, Inc.      50

Windermere Mortgage

Services Series LLC/Valley

   HomeStreet/WMS, Inc.      50
   Windermere Real Estate/Valley, Inc.      50

Windermere Mortgage

Services Series LLC/Wall Street

   HomeStreet/WMS, Inc.      50
   Windermere Real Estate/Wall Street, Inc.      50

Windermere Mortgage

Services Series LLC/WRE

   HomeStreet/WMS, Inc.      50
   Windermere Real Estate Co.      50

Windermere Mortgage

Services Series LLC/WMS Online

   HomeStreet/WMS, Inc.      100

 

- 2 -


Series

  

Member’s

Name

   Percentage
Interest in such
Series
 

Windermere Mortgage

Services Series LLC/Skagit Valley

   HomeStreet/WMS, Inc.      50
   Skagit Mortgage Services LLC      50

Windermere Mortgage

Services Series LLC/Manito

   HomeStreet/WMS, Inc.      50
   Manito Mortgage LLC      50

Windermere Mortgage

Services Series LLC/SBA

   HomeStreet/WMS, Inc.      50
   Windermere Real Estate/ SBA, Inc.      50

Windermere Mortgage

Services Series LLC/ Tacoma Professional Partners

  

HomeStreet/WMS, Inc.

Windermere Professional Partners

    

 

50

50


     

Windermere Mortgage

Services Series LLC/ West Campus

   HomeStreet/WMS, Inc.      50
   Windermere Real Estate/West Campus, Inc.      50

Windermere Mortgage

Services Series LLC/ Mill Creek

   HomeStreet/WMS, Inc.      50
   Windermere Real Estate/Mill Creek, Inc.      50

Windermere Mortgage

Services Series LLC/ Central

   HomeStreet/WMS, Inc.      50
   Central LLC      50

Windermere Mortgage

Services Series LLC/ Walla Walla

   HomeStreet/WMS, Inc.      50
   Simcock Enterprises, L.L.C.      50

Windermere Mortgage

Services Series LLC/Kitsap

   HomeStreet/WMS, Inc.      50
   Windermere Kitsap LLC      50
        Revised 04.01.10   

 

- 3 -


EXHIBITS B-1

THROUGH B-18

LIST OF PROPERTY INITIALLY ALLOCATED TO EACH SERIES

UPON CONVERSION OF WINDERMERE MORTGAGE SERVICES LLC TO

WINDERMERE MORTGAGE SERVICES SERIES LLC

 

- 1 -


EXHIBIT B-1

WINDERMERE MORTGAGE SERVICES SERIES LLC/AMERICAN NW REALTY

 

Member’s Name

  

Date of Initial

Capital

Contribution,

Issue or

Transfer

  

Initial Capital Contribution

   Percentage
Interest in
Series/Gig
Harbor
 

HomeStreet/WMS, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-1 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/American NW Realty)      50

American Northwest Realty, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-1 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/American NW Realty)      50

 

- 2 -


SCHEDULE A TO EXHIBIT B-1

WINDERMERE MORTGAGE SERVICES SERIES LLC/AMERICAN NW REALTY

0.84% of the following Current Assets owned by Windermere Mortgage Services, LLC, a Washington limited liability company, as of April 30, 2005 and all related liabilities:

Cash Operating Accounts – determined as of April 30, 2005 upon closing of Conversion.

Cash-Money Market – determined as of April 30, 2005 upon closing of Conversion.

Loans Held For Sale – determined as of April 30, 2005 upon closing of Conversion.

Receivables – determined as of April 30, 2005 upon closing of Conversion.

Prepaid Medical – determined as of April 30, 2005 upon closing of Conversion.

Facilities Agreement for Windermere Mortgage Services Series LLC/American NW Realty

 

Systems

  

Description

   Serial No.     

Location

COMPUTERS

     
0301    Firewall-NetScreen 5XP Elite       Gig Harbor
0355    LAPTOP, DELL LATITUDE      2CV8421       Gig Harbor

FURNITURE & FIXTURES

     
0031    OFFICE FURNITURE       Gig Harbor
0032    OFFICE FURNITURE       Gig Harbor

 

- 3 -


EXHIBIT B-2

WINDERMERE MORTGAGE SERVICES SERIES LLC/AT

 

Member’s Name

  

Date of Initial
Capital
Contribution,
Issue or
Transfer

  

Initial Capital Contribution

   Percentage
Interest in
Series/AT
 

HomeStreet/WMS, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-2 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/AT)      50

Windermere Cronin & Caplan Realty Group, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-2 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/AT)      50

 

- 4 -


SCHEDULE A TO EXHIBIT B-2

WINDERMERE MORTGAGE SERVICES SERIES LLC/AT

11.14% of the following Current Assets owned by Windermere Mortgage Services, LLC, a Washington limited liability company, as of April 30, 2005 and all related liabilities:

Cash Operating Accounts – determined as of April 30, 2005 upon closing of Conversion.

Cash-Money Market – determined as of April 30, 2005 upon closing of Conversion.

Loans Held For Sale – determined as of April 30, 2005 upon closing of Conversion.

Receivables – determined as of April 30, 2005 upon closing of Conversion.

Prepaid Medical – determined as of April 30, 2005 upon closing of Conversion.

Facilities Agreement for Windermere Mortgage Services Series LLC/AT

 

Systems

  

Description

  

Serial No.

  

Location

COMPUTERS

     

0244

   LaserJet 2200 DTN Printer    USBGF07392    Irving

0291

   Firewall-NetScreen 5XP Elite       Irving

0345

   LAPTOP, DELL LATITUDE    GGC8421    Irving

FURNITURE & FIXTURES

     

0309

   File-42"" 3 Drawer, Lateral       Irving

0377

   OFFICE FURNITURE - DESK, FILES, CHAIRS       Irving

LEASEHOLD IMPROVEMENTS

     

0105

   PHONE/FAX LINE       Irving

COMPUTERS

     

0121

   PRINTER, DIGITAL (TOASTER)    SG64311257    Lloyd Tower

0292

   Firewall-NetScreen 5XP Elite       Lloyd Tower

0339

   LAPTOP, DELL LATITUDE    7MB8421    Lloyd Tower

FURNITURE & FIXTURES

     

0110

   CABINETS       Lloyd Tower

0111

   GUEST CHAIR (2)       Lloyd Tower

0112

   FLOOR LIGHTING       Lloyd Tower

0113

   OFFICE FURNITURE       Lloyd Tower

0219

   CHAIR (1), FILE PED (1), DESK SHELL       Lloyd Tower

0254

   Office Furniture (See Details)       Lloyd Tower

0307

   Credenza W/Double Doors       Lloyd Tower

LEASEHOLD IMPROVEMENTS

     

 

-5-


0106

   REMODEL       Lloyd Tower

COMPUTERS

     

0124

   PRINTER, DIGITAL (TOASTER)    ABFF1C2655    Lake Oswego

0293

   Firewall-NetScreen 5XP Elite       Lake Oswego

0363

   LAPTOP, DELL LATITUDE    98QB421    Lake Oswego

FURNITURE & FIXTURES

     

0115

   GUEST CHAIR (3)       Lake Oswego

0116

   OFFICE FURNITURE       Lake Oswego

0117

   CONFERENCE TABLE       Lake Oswego

0249

   Furniture-Custom Workspace       Lake Oswego

0255

   Office Furniture (See Details)       Lake Oswego

LEASEHOLD IMPROVEMENTS

     

0104

   LEASEHOLD IMPROVEMENT       Lake Oswego

 

-6-


EXHIBIT B-3

WINDERMERE MORTGAGE SERVICES SERIES LLC/EAST

 

Member’s Name

  

Date of Initial
Capital
Contribution,
Issue or
Transfer

  

Initial Capital Contribution

   Percentage
Interest in
Series/East
 

HomeStreet/WMS, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-3 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/East)      50

Windermere Real Estate/East Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-3 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/East)      50

 

- 7 -


SCHEDULE A TO EXHIBIT B-3

WINDERMERE MORTGAGE SERVICES SERIES LLC/EAST

8.93% of the following Current Assets owned by Windermere Mortgage Services, LLC, a Washington limited liability company, as of April 30, 2005 and all related liabilities:

Cash Operating Accounts – determined as of April 30, 2005 upon closing of Conversion.

Cash-Money Market – determined as of April 30, 2005 upon closing of Conversion.

Loans Held For Sale – determined as of April 30, 2005 upon closing of Conversion.

Receivables – determined as of April 30, 2005 upon closing of Conversion.

Prepaid Medical – determined as of April 30, 2005 upon closing of Conversion.

Facilities Agreement for Windermere Mortgage Services Series LLC/East

 

Systems

  

Description

  

Serial No.

  

Location

COMPUTERS      
0282    Firewall-NetScreen 5XP Elite       Bellevue Main
0333    LAPTOP, DELL LATITUDE    B198421    Bellevue Main
LEASEHOLD IMPROVEMENTS      
0052    LEASEHOLD IMPROVEMENTS       Bellevue Main
COMPUTERS      
0283    Firewall-NetScreen 5XP Elite       Bellevue South
0361    LAPTOP, DELL LATITUDE    G2QB421    Bellevue South
FURNITURE & FIXTURES      
0056    TABLE (1), WORKSURFACE (1), OVERHEAD(l)       Bellevue South
COMPUTERS      
0313    Firewall-NetScreen 5XP-001    S0018042002005476    Bellevue West
0356    LAPTOP, DELL LATITUDE    JBQB421    Bellevue West
FURNITURE & FIXTURES      
0057    1-LOT MOHOG DESK, CHAIRS, ART       Bellevue West
0058    ARTWORK       Bellevue West
0059    MINI BLINDS       Bellevue West
0182    WORKSTATION AND CHAIR       Bellevue West
0385    FURNITURE - DESK TOPS, CHAIRS, PIN BOARD       Bellevue West

 

- 8 -


EXHIBIT B-4

WINDERMERE MORTGAGE SERVICES SERIES LLC/EVERETT

 

Member’s Name

  

Date of Initial
Capital
Contribution,
Issue or
Transfer

  

Initial Capital Contribution

   Percentage
Interest in
Series/
Everett
 

HomeStreet/WMS, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-4 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/Everett)      50

Windermere Real Estate/Everett Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-4 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/Everett)      50

 

- 9 -


SCHEDULE A TO EXHIBIT B-4

WINDERMERE MORTGAGE SERVICES SERIES LLC/EVERETT

1.75% of the following Current Assets owned by Windermere Mortgage Services, LLC, a Washington limited liability company, as of April 30, 2005 and all related liabilities:

Cash Operating Accounts – determined as of April 30, 2005 upon closing of Conversion.

Cash-Money Market – determined as of April 30, 2005 upon closing of Conversion.

Loans Held For Sale – determined as of April 30, 2005 upon closing of Conversion.

Receivables – determined as of April 30, 2005 upon closing of Conversion.

Prepaid Medical – determined as of April 30, 2005 upon closing of Conversion.

Facilities Agreement for Windermere Mortgage Services Series LLC/Everett

 

Systems

  

Description

   Serial No.      Location  

COMPUTERS

        

0327

   MONITOR, 17”         Lynnwood   

0343

   LAPTOP, DELL LATITUDE      F9C8421         Lynnwood   

FURNITURE & FIXTURES

     

0078

   OFFICE FURNITURE         Lynnwood   

0329

   OFFICE DESK         Lynnwood   

COMPUTERS

        

0186

   PRINTER, HP LASERJET 6PXI      USBD029135         Everett Mall   

0294

   2-Firewall-NetScreen 5XP Elite         Everett Mall   

0362

   LAPTOP, DELL LATITUDE      2CQB421         Everett Mall   

0366

   LAPTOP, DELL LATITUDE      612Z421         Everett Mall   

FURNITURE & FIXTURES

     

0081

   ARTWORK         Everett Mall   

0080

   OFFICE FURNITURE         Everett Mall   

0171

   PENINSULA TABLE 24"" X 72""         Everett Mall   

0197

   OFFICE FURNITURE         Everett Mall   

0253

   Office Furniture-Laminate Top         Everett Mall   

0318

   Office Furniture (See Notes for Details)         Everett Mall   

0383

   FURNITURE         Everett Mall   

LEASEHOLD IMPROVEMENTS

     

0076

   OFFICE REMODEL         Everett Mall   

0224

   LEASEHOLD IMPROVEMENT - BUILDOUT         Everett Mall   

 

- 10 -


EXHIBT B-5

WINDERMERE MORTGAGE SERVICES SERIES LLC/GH

 

Member’s Name

  

Date of Initial
Capital
Contribution,
Issue or Transfer

  

Initial Capital Contribution

   Percentage
Interest in
Series/GH
 

HomeStreet/WMS, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-5 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/GH)      50

Windermere Real Estate/GH LLC

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-5 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/GH)      50

 

- 11 -


SCHEDULE A TO EXHIBIT B-5

WINDERMERE MORTGAGE SERVICES SERIES LLC/GH

4.76% of the following Current Assets owned by Windermere Mortgage Services, LLC, a Washington limited liability company, as of April 30, 2005 and all related liabilities:

Cash Operating Accounts – determined as of April 30, 2005 upon closing of Conversion.

Cash-Money Market – determined as of April 30, 2005 upon closing of Conversion.

Loans Held For Sale – determined as of April 30, 2005 upon closing of Conversion.

Receivables – determined as of April 30, 2005 upon closing of Conversion.

Prepaid Medical – determined as of April 30, 2005 upon closing of Conversion.

Facilities Agreement for Windermere Mortgage Services Series LLC/GH

 

Systems

  

Description

   Serial No.    Location

COMPUTERS

        

0296

   Firewall-NetScreen 5XP Elite       Edmonds

0348

   LAPTOP, DELL LATITUDE    F7C8421    Edmonds

FURNITURE & FIXTURES

     

0025

   ARTWORK       Edmonds

0024

   OFFICE FURNITURE       Edmonds

0222

   WORKSURFACE (2), FILE, WALL CABINET       Edmonds

 

- 12 -


EXHIBIT B-6

WINDERMERE MORTGAGE SERVICES SERIES LLC/HKW

 

Member’s Name

  

Date of Initial

Capital

Contribution,

Issue or

Transfer

  

Initial Capital Contribution

   Percentage
Interest in
Series/
HKW
 

HomeStreet/WMS, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-6 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/HKW)      50

Windermere Real Estate/HKW Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-6 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/HKW)      50

 

- 13 -


SCHEDULE A TO EXHIBIT B-6

WINDERMERE MORTGAGE SERVICES SERIES LLC/HKW

5.90% of the following Current Assets owned by Windermere Mortgage Services, LLC, a Washington limited liability company, as of April 30, 2005 and all related liabilities:

Cash Operating Accounts – determined as of April 30, 2005 upon closing of Conversion.

Cash-Money Market – determined as of April 30, 2005 upon closing of Conversion.

Loans Held for Sale – determined as of April 30, 2005 upon closing of Conversion.

Receivables – determined as of April 30, 2005 upon closing of Conversion.

Prepaid Medical – determined as of April 30, 2005 upon closing of Conversion.

Facilities Agreement for Windermere Mortgage Services Series LLC/HKW

 

Systems

  

Description

  

Serial No.

  

Location

COMPUTERS

     

0010

   PRINTER, HP DESKJET 340       Alderwood

0246

   Monitor, HP 15””    MY85097933    Alderwood

0281

   Firewall-NetScreen 5XP Elite       Alderwood

0341

   LAPTOP, DELL LATITUDE    48C8421    Alderwood

FURNITURE & FIXTURES

     

0378

   OFFICE FURNITURE – DESK, FILES, CHAIRS       Alderwood

LEASEHOLD IMPROVEMENTS

     

0379

   OFFICE REMODEL       Alderwood

 

- 14 -


EXHIBIT B-7

WINDERMERE MORTGAGE SERVICES SERIES LLC/MAPLE VALLEY

 

Member’s Name

  

Date of Initial

Capital

Contribution,

Issue or

Transfer

  

Initial Capital Contribution

   Percentage
Interest in
Series/Maple
Valley
 

HomeStreet/WMS, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-7 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/Maple Valley)      50

Windermere Real Estate/Maple Valley, Inc.

   May 1,2005    50% of assets set forth on Schedule A to this Exhibit B-7 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/Maple Valley)      50

 

- 15 -


SCHEDULE A TO EXHIBIT B-7

WINDERMERE MORTGAGE SERVICES SERIES LLC/MAPLE VALLEY

2.66% of the following Current Assets owned by Windermere Mortgage Services, LLC, a Washington limited liability company, as of April 30, 2005 and all related liabilities:

Cash Operating Accounts – determined as of April 30, 2005 upon closing of Conversion.

Cash-Money Market – determined as of April 30, 2005 upon closing of Conversion.

Loans Held for Sale – determined as of April 30, 2005 upon closing of Conversion.

Receivables – determined as of April 30, 2005 upon closing of Conversion.

Prepaid Medical – determined as of April 30, 2005 upon closing of Conversion.

Facilities Agreement for Windermere Mortgage Services Series LLC/Maple Valley

 

Systems

  

Description

   Serial No.   

Location

COMPUTERS      
COMPUTERS      
0166    PRINTER, HP LASERJET 6PXI    USDH025265    Maple Valley
0306    Firewall-NetScreen 5XP Elite       Maple Valley
FURNITURE & FIXTURES      
0277    Office Furniture (See Notes for Detail)       Maple Valley

 

- 16 -


EXHIBIT B-8

WINDERMERE MORTGAGE SERVICES SERIES LLC/MH

 

Member’s Name

 

Date of Initial
Capital
Contribution,
Issue or Transfer

  

Initial Capital Contribution

   Percentage
Interest in
Series/MH
 
HomeStreet/WMS, Inc.   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-8 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/MH)      50
Windermere Real Estate/M.H., Inc.   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-8 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/MH)      50

 

- 17 -


SCHEDULE A TO EXHIBIT B-8

WINDERMERE MORTGAGE SERVICES SERIES LLC/MH

4.15% of the following Current Assets owned by Windermere Mortgage Services, LLC, a Washington limited liability company, as of April 30, 2005 and all related liabilities:

Cash Operating Accounts – determined as of April 30, 2005 upon closing of Conversion.

Cash-Money Market – determined as of April 30, 2005 upon closing of Conversion.

Loans Held For Sale – determined as of April 30, 2005 upon closing of Conversion.

Receivables – determined as of April 30, 2005 upon closing of Conversion.

Prepaid Medical – determined as of April 30, 2005 upon closing of Conversion.

Facilities Agreement for Windermere Mortgage Services Series LLC/MH

 

Systems

  

Description

   Serial No.   

Location

COMPUTERS      
0238    PRINTER, HP4ML    USBB067266    Everett South – C
0285    Firewall-NetScreen 5XP Elite       Everett South – C
0365    LAPTOP, DELL LATITUDE    GT4ND2I    Everett South – C
FURNITURE & FIXTURES      
0069    FURNITURE CAPITAL CONTRIB.       Everett South – C
0312    Office Furniture (See Notes for Detail)       Everett South – C
COMPUTERS      
0175    PRINTER, HP LASERJET 4L    USBB975766    Everett South – B
0367    LAPTOP, DELL LATITUDE C640    37CKK21    Everett South – B

 

- 18 -


EXHIBIT B-9

WINDERMERE MORTGAGE SERVICES SERIES LLC/NORTH

 

Member’s Name

  

Date of Initial

Capital

Contribution,

Issue or

Transfer

  

Initial Capital Contribution

   Percentage
Interest in
Series/North
 

HomeStreet/WMS, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-9 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/North)      50

Windermere Real Estate/North, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-9 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/North)      50

 

- 19 -


SCHEDULE A TO EXHIBIT B-9

WINDERMERE MORTGAGE SERVICES SERIES LLC/NORTH

1.75% of the following Current Assets owned by Windermere Mortgage Services, LLC, a Washington limited liability company, as of April 30, 2005 and all related liabilities:

Cash Operating Accounts – determined as of April 30, 2005 upon closing of Conversion.

Cash-Money Market – determined as of April 30, 2005 upon closing of Conversion.

Loans Held For Sale – determined as of April 30, 2005 upon closing of Conversion.

Receivables – determined as of April 30, 2005 upon closing of Conversion.

Prepaid Medical – determined as of April 30, 2005 upon closing of Conversion.

Facilities Agreement for Windermere Mortgage Services Series LLC/North

 

Systems

  

Description

  

Serial No.

  

Location

COMPUTERS      
0327    MONITOR, 17””       Lynnwood
0343    LAPTOP, DELL LATITUDE    F9C8421    Lynnwood
FURNITURE & FIXTURES      
0078    OFFICE FURNITURE       Lynnwood
0329    OFFICE DESK       Lynnwood
COMPUTERS      
0186    PRINTER, HP LASERJET 6PXI    USBD029135    Everett Mall
0294    2-Firewall-NetScreen 5XP Elite       Everett Mall
0362    LAPTOP, DELL LATITUDE    2CQB421    Everett Mall
0366    LAPTOP, DELL LATITUDE    612Z421    Everett Mall
FURNITURE & FIXTURES      
0081    ARTWORK       Everett Mall
0077    FURNITURE CAPITAL CONTRIB.       Everett Mall
0080    OFFICE FURNITURE       Everett Mall
0171    PENINSULA TABLE 24”” X 72””       Everett Mall
0197    OFFICE FURNITURE       Everett Mall
0253    Office Furniture-Laminate Top       Everett Mall
0318    Office Furniture (See Notes for Details)       Everett Mall
0383    FURNITURE       Everett Mall
LEASEHOLD IMPROVEMENTS      
0076    OFFICE REMODEL       Everett Mall
0224    LEASEHOLD IMPROVEMENT – BUILDOUT       Everett Mall

 

- 20 -


EXHIBIT B-10

WINDERMERE MORTGAGE SERVICES SERIES LLC/NORTHEAST

 

Member’s Name

  

Date of Initial

Capital

Contribution,

Issue or

Transfer

  

Initial Capital Contribution

   Percentage
Interest in
Series/
Northeast
 
HomeStreet/WMS, Inc.    May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-10 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/Northeast)      50
JHW Associates, Inc.    May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-10 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/Northeast)      50

 

- 21 -


SCHEDULE A TO EXHIBIT B-10

WINDERMERE MORTGAGE SERVICES SERIES LLC/NORTHEAST

1.54% of the following Current Assets owned by Windermere Mortgage Services, LLC, a Washington limited liability company, as of April 30, 2005 and all related liabilities:

Cash Operating Accounts–determined as of April 30, 2005 upon closing of Conversion.

Cash-Money Market–determined as of April 30, 2005 upon closing of Conversion.

Loans Held For Sale–determined as of April 30, 2005 upon closing of Conversion.

Receivables–determined as of April 30, 2005 upon closing of Conversion.

Prepaid Medical–determined as of April 30, 2005 upon closing of Conversion.

Facilities Agreement for Windermere Mortgage Services Series LLC/Northeast

 

Systems

  

Description

   Serial No.    Location
COMPUTERS      
0297    Firewall-NetScreen 5XP Elite       Kirkland
0346    LAPTOP, DELL LATITUDE    6XC8421    Kirkland
FURNITURE & FIXTURES      
0028    OFFICE FURNITURE       Kirkland
0330    DESK, OVERHEAD, FILE, (2) SIDE CHAIRS       Kirkland
LEASEHOLD         
0027    LEASEHOLD IMPROVEMENT       Kirkland

 

- 22 -


EXHIBIT B-11

WINDERMERE MORTGAGE SERVICES SERIES LLC/NORTHWEST

 

Member’s Name

  

Date of Initial
Capital
Contribution,
Issue or
Transfer

  

Initial Capital Contribution

   Percentage
Interest in
Series/
Northwest
 

HomeStreet/WMS, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-11 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/Northwest)      50

Windermere Real Estate/Northwest, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-11 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/Northwest)      50

 

- 23 -


SCHEDULE A TO EXHIBIT B-11

WINDERMERE MORTGAGE SERVICES SERIES LLC/NORTHWEST

4.07% of the following Current Assets owned by Windermere Mortgage Services, LLC, a Washington limited liability company, as of April 30, 2005 and all related liabilities:

Cash Operating Accounts–determined as of April 30, 2005 upon closing of Conversion.

Cash-Money Market–determined as of April 30, 2005 upon closing of Conversion.

Loans Held For Sale–determined as of April 30, 2005 upon closing of Conversion.

Receivables–determined as of April 30, 2005 upon closing of Conversion.

Prepaid Medical–determined as of April 30, 2005 upon closing of Conversion.

Facilities Agreement for Windermere Mortgage Services Series LLC/Northwest

 

Systems

 

Description

   Serial No.      Location  

FURNITURE & FIXTURES

     

0381

 

WORKSTATION (1), CHAIRS (3)

        Ballard   

 

- 24 -


EXHIBIT B-12

WINDERMERE MORTGAGE SERVICES SERIES LLC/OAK TREE

 

Member’s Name

  

Date of Initial

Capital

Contribution,

Issue or

Transfer

  

Initial Capital Contribution

   Percentage
Interest in
Series/
Oak Tree
 
        
        
        
        
HomeStreet/WMS, Inc.    May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-12 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/Oak Tree)      50

Windermere Real

Estate/Oak Tree, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-12 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/Oak Tree)      50

 

-25-


SCHEDULE A TO EXHIBIT B-12

WINDERMERE MORTGAGE SERVICES SERIES LLC/OAK TREE

0.80% of the following Current Assets owned by Windermere Mortgage Services, LLC, a Washington limited liability company, as of April 30, 2005 and all related liabilities:

Cash Operating Accounts – determined as of April 30, 2005 upon closing of Conversion.

Cash-Money Market – determined as of April 30, 2005 upon closing of Conversion.

Loans Held For Sale – determined as of April 30,2005 upon closing of Conversion.

Receivables – determined as of April 30, 2005 upon closing of Conversion.

Prepaid Medical – determined as of April 30, 2005 upon closing of Conversion.

Facilities Agreement for Windermere Mortgage Services Series LLC/Oak Tree

 

Systems

  

Description

   Serial No.     

Location

COMPUTERS

     
0287    Firewall-NetScreen 5XP Elite       Oaktree
0332    LAPTOP, DELL LATITUDE      J0B8421       Oaktree

FURNITURE & FIXTURES

     
0041    FURNITURE CAPITAL CONTRIB.       Oaktree
0042    PENINSULA TABLE       Oaktree
0308    File-Lateral 42""W 2Dr       Oaktree

 

-26-


EXHIBIT B-13

WINDERMERE MORTGAGE SERVICES SERIES LLC/RENTON

 

Member’s Name

  

Date of Initial

Capital

Contribution,

Issue or

Transfer

  

Initial Capital Contribution

   Percentage
Interest in
Series/
Renton
 
        
        
        
        

HomeStreet/WMS, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-13 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/Renton)      50

Windermere Real

Estate/Renton, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-13 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/Renton)      50

 

-27-


SCHEDULE A TO EXHIBIT B-13

WINDERMERE MORTGAGE SERVICES SERIES LLC/RENTON

2.93% of the following Current Assets owned by Windermere Mortgage Services, LLC, a Washington limited liability company, as of April 30, 2005 and all related liabilities:

Cash Operating Accounts – determined as of April 30, 2005 upon closing of Conversion.

Cash-Money Market – determined as of April 30,2005 upon closing of Conversion.

Loans Held For Sale – determined as of April 30, 2005 upon closing of Conversion.

Receivables – determined as of April 30, 2005 upon closing of Conversion.

Prepaid Medical – determined as of April 30, 2005 upon closing of Conversion.

Facilities Agreement for Windermere Mortgage Services Series LLC/Renton

 

Systems

  

Description

   Serial No.      Location  

FURNITURE & FIXTURES

     

0380

   DESK, TASK LIGHT, CHAIRS (3)         Renton Highlands   

 

- 28 -


EXHIBIT B-14

WINDERMERE MORTGAGE SERVICES SERIES LLC/SOUTH

 

Member’s Name

  

Date of Initial

Capital

Contribution,

Issue or

Transfer

  

Initial Capital Contribution

   Percentage
Interest in
Series/
South
 

HomeStreet/WMS, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-14 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/South)      50

Windermere Real Estate/South, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-14 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/South)      50

 

- 29 -


SCHEDULE A TO EXHIBIT B-14

WINDERMERE MORTGAGE SERVICES SERIES LLC/SOUTH

24.57% of the following Current Assets owned by Windermere Mortgage Services, LLC, a Washington limited liability company, as of April 30, 2005 and all related liabilities:

Cash Operating Accounts – determined as of April 30, 2005 upon closing of Conversion.

Cash-Money Market – determined as of April 30,2005 upon closing of Conversion.

Loans Held For Sale – determined as of April 30, 2005 upon closing of Conversion.

Receivables – determined as of April 30, 2005 upon closing of Conversion. .

Prepaid Medical – determined as of April 30, 2005 upon closing of Conversion.

Facilities Agreement for Windermere Mortgage Services Series LLC/South

 

Systems

  

Description

   Serial No.      Location  

COMPUTERS

     

0227

   Printer HP Laserjet      USCH017380         Renton South   

0290

   Firewall-NetScreen 5XP Elite         Renton South   

0340

   LAPTOP, DELL LATITUDE      35B8421         Renton South   

0357

   LAPTOP, DELL LATITUDE      65QB421         Renton South   

FURNITURE & FIXTURES

     

0137

   ARTWORK         Renton South   

0138

   ARTWORK         Renton South   

0135

   OFFICE FURNITURE         Renton South   

0136

   LAMP         Renton South   

0192

   OFFICE FURNITURE         Renton South   

0258

   OFFICE FURNITURE         Renton South   

0259

   OFFICE FURNITURE         Renton South   

0369

   WORK SURFACE 20X71         Renton South   

COMPUTERS

     

0159

   PRINTER, HP LASERJET      USCH017415         Burien   

0295

   Firewall-NetScreen 5XP Elite         Burien   

0349

   LAPTOP, DELL LATITUDE      GRV8421         Burien   

0354

   LAPTOP, DELL LATITUDE      C1W8421         Burien   

FURNITURE & FIXTURES

     

0141

   ARTWORK         Burien   

0140

   42”” 5 DRAWER LATERAL FILE         Burien   

0142

   AWNING DEPOSIT         Burien   

0143

   OFFICE FURNITURE         Burien   

COMPUTERS

     

0299

   Firewall-NetScreen 5XP Elite         Kent   

 

- 30 -


0337

   LAPTOP, DELL LATITUDE    6J98421    Kent

FURNITURE & FIXTURES

     

0152

   OFFICE FURNITURE       Kent

0216

   WATERCOLOR PAINTING       Kent

LEASEHOLD IMPROVEMENTS

     

130

   PHONE LINE       Kent

COMPUTERS

     

0169

   MONITOR / KEYBOARD / MOUSE    MY84657994    Puyallup

0300

   Firewall-NetScreet 5XP Elite       Puyallup

0335

   LAPTOP, DELL LATITUDE    DZ88421    Puyallup

FURNITURE & FIXTURES

     

0153

   OFFICE FURNITURE       Puyallup

LEASEHOLD IMPROVEMENTS

     

0131

   PHONE/FAX LINE       Puyallup

0132

   PHONE LINE       Puyallup

COMPUTERS

     

0250

   Laptop HPXH545    TW14027103    Eaton

0251

   Fax Machine, HP LJ3200SE    CNDW135376    Eaton

COMPUTERS

     

0305

   FIREWALL, NETSCREEN 5XP ELITE       Federal Way

0358

   LAPTOP, DELL LATITUDE    G4QB421    Federal Way

FURNITURE & FIXTURES

     

0264

   Office Furniture-B 2ea Support Panel       Federal Way

0331

   OFFICE FURNITURE       Federal Way

 

- 31 -


EXHIBIT B-15

WINDERMERE MORTGAGE SERVICES SERIES LLC/VALLEY

 

Member’s Name

  

Date of Initial

Capital

Contribution,

Issue or

Transfer

  

Initial Capital Contribution

   Percentage
Interest in
Series/
Valley
 

HomeStreet/WMS, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-15 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/Valley)      50

Windermere Real Estate/Valley, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-15 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/Valley)      50

 

- 32 -


SCHEDULE A TO EXHIBIT B-15

WINDERMERE MORTGAGE SERVICES SERIES LLC/VALLEY

5.03% of the following Current Assets owned by Windermere Mortgage Services, LLC, a Washington limited liability company, as of April 30, 2005 and all related liabilities:

Cash Operating Accounts – determined as of April 30, 2005 upon closing of Conversion.

Cash-Money Market – determined as of April 30, 2005 upon closing of Conversion.

Loans Held For Sale – determined as of April 30, 2005 upon closing of Conversion.

Receivables – determined as of April 30, 2005 upon closing of Conversion.

Prepaid Medical – determined as of April 30, 2005 upon closing of Conversion.

Facilities Agreement for Windermere Mortgage Services Series LLC/Valley

 

Systems

  

Description

  

Serial No.

  

Location

FURNITURE & FIXTURES

     

0384

   FURNITURE       Spokane Valley

 

- 33 -


EXHIBIT B-16

WINDERMERE MORTGAGE SERVICES SERIES LLC/WALL STREET

 

Member’s Name

  

Date of Initial
Capital
Contribution,
Issue or
Transfer

  

Initial Capital Contribution

   Percentage
Interest in
Series/
Wall Street
 

HomeStreet/WMS, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-16 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/Wall Street)      50

Windermere Real Estate/Wall Street, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-16 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/Wall Street)      50

 

- 34 -


SCHEDULE A TO EXHIBIT B-16

WINDERMERE MORTGAGE SERVICES SERIES LLC/WALL STREET

8.02% of the following Current Assets owned by Windermere Mortgage Services, LLC, a Washington limited liability company, as of April 30, 2005 and all related liabilities:

Cash Operating Accounts – determined as of April 30, 2005 upon closing of Conversion.

Cash-Money Market – determined as of April 30, 2005 upon closing of Conversion.

Loans Held For Sale – determined as of April 30, 2005 upon closing of Conversion.

Receivables – determined as of April 30, 2005 upon closing of Conversion.

Prepaid Medical – determined as of April 30, 2005 upon closing of Conversion.

Facilities Agreement for Windermere Mortgage Services Series LLC/Wall Street

 

Systems

  

Description

  

Serial No.

  

Location

COMPUTERS

     

0174

   PRINTER, HP LASERJET 6P XI    USCH017400    Wall Street

0279

   Firewall-NetScreen 5XP Elite       Wall Street

0352

   LAPTOP, DELL LATITUDE    HWV8421    Wall Street

0364

   LAPTOP, DELL LATITUDE    DBQB421    Wall Street

FURNITURE & FIXTURES

     

0088

   TACKBOARD 48"" X 60""       Wall Street

0089

   1 - CASEGOODS, 1 - MAHOGANY       Wall Street

0090

   DESK, GUEST CHAIRS (2)       Wall Street

0091

   EXECUTIVE CHAIRS (2)       Wall Street

0328

   HUTCH 36""W X 42""H       Wall Street

0370

   FILE PEDESTAL WITH LOCK       Wall Street

0372

   LATERAL FILE DRAWERS       Wall Street

LEASEHOLD IMPROVEMENTS

     

0085

   PHONE/FAX LINES       Wall Street

COMPUTERS

     

0304

   Firewall-NetScreen 5XP Elite       West Seattle

0359

   LAPTOP, DELL LATITUDE    29QB421    West Seattle

FURNITURE & FIXTURES

     

0196

   OFFICE FURNITURE       West Seattle

0198

   OFFICE FURNITURE       West Seattle

0204

   GUEST CHAIRS (3), ARTWORK (2)       West Seattle

0208

   FURNITURE SETUP       West Seattle

 

- 35 -


EXHIBIT B-17

WINDERMERE MORTGAGE SERVICES SERIES LLC/WEST SOUND

 

Member’s Name

  

Date of Initial
Capital
Contribution,
Issue or
Transfer

  

Initial Capital Contribution

   Percentage
Interest in
Series/
West Sound
 

HomeStreet/WMS, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-17 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/West Sound)      50

Windermere Real Estate/West Sound, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-17 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/West Sound)      50

 

- 36 -


SCHEDULE A TO EXHIBIT B-17

WINDERMERE MORTGAGE SERVICES SERIES LLC/WEST SOUND

5.55% of the following Current Assets owned by Windermere Mortgage Services, LLC, a Washington limited liability company, as of April 30, 2005 and all related liabilities:

Cash Operating Accounts – determined as of April 30, 2005 upon closing of Conversion.

Cash-Money Market – determined as of April 30, 2005 upon closing of Conversion.

Loans Held For Sale – determined as of April 30, 2005 upon closing of Conversion.

Receivables – determined as of April 30, 2005 upon closing of Conversion.

Prepaid Medical – determined as of April 30, 2005 upon closing of Conversion.

Facilities Agreement for Windermere Mortgage Services Series LLC/West Sound

 

Systems

  

Description

  

Serial No.

  

Location

COMPUTERS      
0172    PRINTER, HP LASERJET 6PXI    USCH017395    Silverdale
0289    Firewall-NetScreen 5XP Elite       Silverdale
0351    LAPTOP, DELL LATITUDE    DXT8421    Silverdale
0353    LAPTOP, DELL LATITUDE    3FV8421    Silverdale
0374    FIREWALL, NETSCREEN 5XP ELITE       Silverdale
FURNITURE & FIXTURES      
0020    FURNITURE CAP. CONTRIB.       Silverdale
0202    OFFICE FURNITURE       Silverdale
0205    OFFICE FURNITURE       Silverdale
0376    FILE UNIT 20X70 INCLUDES 36"" LATERAL(2)       Silverdale
LEASEHOLD IMPROVEMENTS      
0019    LEASEHOLD IMPROVEMENTS       Silverdale

 

- 37 -


EXHIBIT B-18

WINDERMERE MORTGAGE SERVICES SERIES LLC/WRE

 

Member’s Name

  

Date of Initial
Capital
Contribution,
Issue or
Transfer

  

Initial Capital Contribution

   Percentage
Interest in
Series/WRE
 

HomeStreet/WMS, Inc.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-18 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/WRE)      50

Windermere Real Estate Co.

   May 1, 2005    50% of assets set forth on Schedule A to this Exhibit B-18 and the related liabilities (All set forth in the books and records of Windermere Mortgage Services Series LLC/WRE)      50

 

- 38 -


SCHEDULE A TO EXHIBIT B-18

WINDERMERE MORTGAGE SERVICES SERIES LLC/WRE

5.57% of the following Current Assets owned by Windermere Mortgage Services, LLC, a Washington limited liability company, as of April 30, 2005 and all related liabilities:

Cash Operating Accounts – determined as of April 30, 2005 upon closing of Conversion.

Cash-Money Market – determined as of April 30, 2005 upon closing of Conversion.

Loans Held For Sale – determined as of April 30, 2005 upon closing of Conversion.

Receivables – determined as of April 30, 2005 upon closing of Conversion.

Prepaid Medical – determined as of April 30, 2005 upon closing of Conversion.

Facilities Agreement for Windermere Mortgage Services Series LLC/WRE

 

Systems

  

Description

  

Serial No.

  

Location

COMPUTERS      
0286    Firewall-NetScreen 5XP Elite       Northgate
0344    LAPTOP, DELL LATITUDE    FNC8421    Northgate
FURNITURE & FIXTURES      
0013    FURNITURE CAP. CONTRIB.       Northgate
0320    File-Lateral 36”“W 4-Drawer Locking       Northgate
LEASEHOLD IMPROVEMENTS      
0019    LEASEHOLD IMPROVEMENTS       Northgate
COMPUTERS      
0302    Firewall-NetScreen 5XP Elite       Lake Forest Park
0347    LAPTOP, DELL LATITUDE    HBC8421    Lake Forest Park
FURNITURE & FIXTURES      
0206    WORKSURFACE-2, OVERHEAD, FILES(3), CHAIR       Lake Forest Park

 

- 39 -


AMENDED EXHIBITS B-19

THROUGH B-23

LIST OF PROPERTY AND OTHER CAPITAL

CONTRIBUTED TO ADDITIONAL SERIES

 

- 40 -


EXHIBIT B-19

WINDERMERE MORTGAGE SERVICES SERIES LLC/AUBURN

 

Member’s Name

  

Date of Initial
Capital
Contribution,
Issue or
Transfer

   Initial
Capital
Contribution
     Percentage
Interest in
Series/
Auburn
 

HomeStreet/WMS, Inc.

   May 2, 2005    $ 25,000.00         50

Windermere Real Estate/Auburn, Inc.

   May 2, 2005    $ 25,000.00         50

 

- 41-


EXHIBIT B-20

WINDERMERE MORTGAGE SERVICES SERIES LLC/NORTH WALL STREET

 

Member’s Name

   Date of Initial
Capital
Contribution,
Issue or
Transfer
   Initial
Capital
Contribution
     Percentage
Interest in
Series/
North Wall
Street
 

HomeStreet/WMS, Inc.

   May 2, 2005    $ 25,000.00         50

Windermere North Wall Street, Inc.

   May 2, 2005    $ 25,000.00         50

 

- 42 -


EXHIBIT B-21

WINDERMERE MORTGAGE SERVICES SERIES LLC/PACIFIC WEST

PROPERTIES

 

Member’s Name

  

Date of Initial
Capital
Contribution,
Issue or
Transfer

   Initial
Capital
Contribution
     Percentage
Interest in
Series/
Pacific West
Properties
 

HomeStreet/WMS, Inc.

   May 2, 2005    $ 25,000.00         50

Windermere Pacific West Properties, Inc.

   May 2, 2005    $ 25,000.00         50

 

- 43 -


EXHIBIT B-22

WINDERMERE MORTGAGE SERVICES SERIES LLC/PARAGON

 

Member’s Name

   Date of Initial
Capital
Contribution,
Issue or
Transfer
   Initial
Capital
Contribution
     Percentage
Interest in
Series/
Paragon
 

HomeStreet/WMS, Inc.

   May 2, 2005    $ 25,000.00         50

Windermere Real Estate/Paragon Company, Inc.

   May 2, 2005    $ 25,000.00         50

 

- 44 -


EXHIBIT B-23

WINDERMERE MORTGAGE SERVICES SERIES LLC/WMS ONLINE

 

Member’s Name

   Date of Initial
Capital
Contribution,
Issue or
Transfer
   Initial
Capital
Contribution
     Percentage
Interest in
Series/
WMS Online
 

HomeStreet/WMS, Inc.

   May 2, 2005    $ 100,000.00         100

 

- 45 -


AMENDED EXHIBIT B-24

LIST OF PROPERTY AND OTHER CAPITAL

CONTRIBUTED TO ADDITIONAL SERIES


EXHIBIT B-24

WINDERMERE MORTGAGE SERVICES SERIES LLC/SKAGIT VALLEY

 

Member’s Name

   Date of Initial
Capital
Contribution,
Issue or
Transfer
   Initial
Capital
Contribution
     Percentage
Interest in
Series/
Skagit Valley
 

HomeStreet/WMS, Inc.

   2/17/06    $ 31,500         50

JNJ LLC

   2/17/06    $ 31,500         50


AMENDED EXHIBIT B-25

LIST OF PROPERTY AND OTHER CAPITAL

CONTRIBUTED TO ADDITIONAL SERIES


EXHIBIT B-25

WINDERMERE MORTGAGE SERVICES SERIES LLC/MANITO

 

Member’s Name

   Date of Initial
Capital
Contribution,
Issue or
Transfer
   Initial
Capital
Contribution
     Percentage
Interest in

Series/
Manito
 

HomeStreet/WMS, Inc.

   2/27/06    $ 25,000         50

Manito Mortgage LLC

   2/27/06    $ 25,000         50


AMENDED EXHIBIT B-26

LIST OF PROPERTY AND OTHER CAPITAL

CONTRIBUTED TO ADDITIONAL SERIES


EXHIBIT B-26

WINDERMERE MORTGAGE SERVICES SERIES LLC/SBA

 

Member’s Name

   Date of Initial
Capital
Contribution,
Issue or
Transfer
   Initial
Capital
Contribution
     Percentage
Interest in

Series/
Manito
 

HomeStreet/WMS, Inc.

   4/1/06    $ 25,000         50

Windermere Real Estate/SBA, Inc.

   4/1/06    $ 25,000         50


AMENDED EXHIBIT B-27

LIST OF PROPERTY AND OTHER CAPITAL

CONTRIBUTED TO ADDITIONAL SERIES


EXHIBIT B-27

WINDERMERE MORTGAGE SERVICES SERIES LLC/TACOMA PROFESSIONAL PARTNERS

 

Member’s Name

   Date of Initial
Capital
Contribution,
Issue or
Transfer
   Initial
Capital
Contribution
     Percentage
Interest in

Series/
Manito
 

HomeStreet/WMS, Inc.

   4/15/06    $ 31,500         50

Windermere Professional Partners

   4/15/06    $ 31,500         50


AMENDED EXHIBIT B-30

LIST OF PROPERTY AND OTHER CAPITAL

CONTRIBUTED TO ADDITIONAL SERIES


EXHIBIT B-30

WINDERMERE MORTGAGE SERVICES SERIES LLC/WEST CAMPUS

 

Member’s Name

   Date of Initial
Capital
Contribution,
Issue or
Transfer
   Initial
Capital
Contribution
     Percentage
Interest in
Series/West
Campus
 

HomeStreet/WMS, Inc.

   4/2/07    $ 25,000         50

Windermere Mortgage Services/West Campus, Inc.

   4/2/07    $ 25,000         50


AMENDED EXHIBIT B-31

LIST OF PROPERTY AND OTHER CAPITAL

CONTRIBUTED TO ADDITIONAL SERIES


EXHIBIT B-31

WINDERMERE MORTGAGE SERVICES SERIES LLC/MILL CREEK

 

Member’s Name

   Date of Initial
Capital
Contribution,
Issue or
Transfer
   Initial
Capital
Contribution
     Percentage
Interest in
Series/
West
Campus
 

HomeStreet/WMS, Inc.

   7/1/07    $ 25,000         50

Windermere Mortgage Services/Mill Creek, Inc.

   7/1/07    $ 25,000         50


AMENDED EXHIBIT B-32

LIST OF PROPERTY AND OTHER CAPITAL

CONTRIBUTED TO ADDITIONAL SERIES


EXHIBIT B-32

WINDERMERE MORTGAGE SERVICES SERIES LLC/CENTRAL

 

Member’s Name

   Date of Initial
Capital
Contribution,
Issue or
Transfer
   Initial
Capital
Contribution
     Percentage
Interest in
Series /
Central
 

HomeStreet/WMS, Inc.

   10/01/08    $ 25,000.00         50

Central LLC

   10/01/08    $ 25,000.00         50


AMENDED EXHIBIT B-33

LIST OF PROPERTY AND OTHER CAPITAL

CONTRIBUTED TO ADDITIONAL SERIES

 

- 1 -


EXHIBIT B-33

WINDERMERE MORTGAGE SERVICES SERIES LLC/WALLA WALLA

 

Member’s Name

  

Date of Initial
Capital
Contribution,
Issue or
Transfer

   Initial
Capital
Contribution
   Percentage
Interest in
Series/
Walla Walla
 

HomeStreet/WMS, Inc.

   April 23, 2009    $25,000.00      50

Simcock Enterprises, L.L.C.

   April 23, 2009    $25,000.00      50

 

- 2 -


AMENDED EXHIBIT B-34

LIST OF PROPERTY AND OTHER CAPITAL

CONTRIBUTED TO ADDITIONAL SERIES

 

- 1 -


EXHIBIT B-34

WINDERMERE MORTGAGE SERVICES SERIES LLC/KITSAP

 

Member’s Name

  

Date of Initial
Capital
Contribution,
Issue or
Transfer

   Initial
Capital
Contribution
   Percentage
Interest in
Series/
KITSAP
 

HomeStreet/WMS, Inc.

   07/01/2009    $25,000.00      50

Windermere Kitsap LLC

   06/25/2009    $25,000.00      50

 

- 2 -


AMENDED EXHIBIT C

LIST OF LLC MANAGERS

 

IISB LLC MANAGERS    WG LLC MANAGERS
Richard W.H. Bennion    Don Riley
Susan Greenwald    Gregory R. Hoff
Mark Mason    Joe Deasy
David Hoosten    Brian Allen

LIST OF SERIES MANAGERS

This List of Series Managers is amended and restated as of January 20, 2011.

 

WINDERMERE

MORTGAGE SERVICES

SERIES

  

WG SERIES

MANAGER

  

IISB SERIES

MANAGER

Windermere Mortgage

Services Series LLC/American

NW Realty

   Steve Skibbs    M. Barton Harrington

Windermere Mortgage

Services Series LLC/ Auburn

   Tom Tollen    M. Barton Harrington

Windermere Mortgage

Services Series LLC/ AT

   Brian Allen    M. Barton Harrington

Windermere Mortgage

Services Series LLC/ East

   Joe Deasy    M. Barton Harrington

Windermere Mortgage

Services Series LLC/ Everett

   Rhonda Snyder    M. Barton Harrington

Windermere Mortgage

Services Series LLC/GH

   Greg Hoff    M. Barton Harrington

Windermere Mortgage

Services Series LLC/ HKW

   Renee Sayatovic    M. Barton Harrington

Windermere Mortgage

Services Series LLC/ Maple Valley

   Rich Menti    M. Barton Harrington

Windermere Mortgage

Services Series LLC/ M2

   David Maider    M. Barton Harrington

Windermere Mortgage

Services Series LLC/ North

   Lena Maul    M. Barton Harrington

 

- 1 -


Windermere Mortgage

Services Series LLC/ North Wall Street

   John Becker    M. Barton Harrington

Windermere Mortgage

Services Series LLC/ Northeast

   Peter V.C. Hickey    M. Barton Harrington

Windermere Mortgage

Services Series LLC/ Northwest

   Steve Kieburtz    M. Barton Harrington

Windermere Mortgage

Services Series LLC/ Oak Tree

   Matt Carroll    M. Barton Harrington

Windermere Mortgage

Services Series LLC/ Pacific West Properties

   Pam McColly    M. Barton Harrington

Windermere Mortgage

Services Series LLC/Paragon

   Ron Lunceford    M. Baiton Harrington
Windermere Mortgage Services Series LLC/Renton    Jason Moore    M. Barton Harrington

Windermere Mortgage

Services Series LLC/South

   Rich Menti    M. Barton Harrington

Windermere Mortgage

Services Series LLC/Valley

   Cate Moye’    M. Barton Harrington

Windermere Mortgage

Services Series LLC/Wall Street

   Rich Gangnes    M. Barton Harrington

Windermere Mortgage

Services Series LLC/WRE

   OB Jacobi    M. Barton Harrington

Windermere Mortgage

Services Series LLC/WMS Online

   Rich Bennion    M. Barton Harrington

Windermere Mortgage

Services Series LLC/Skagit Valley

   Nate Scott    M. Barton Harrington

Windermere Mortgage

Services Series LLC/Manito

   Joseph K. Nichols, Sr.    M. Barton Harrington

Windermere Mortgage

Services Series LLC/SBA

   Will Bruce    M. Barton Harrington

Windermere Mortgage

Services Series LLC/Tacoma Professional Partners

   Jeff Jensen    M. Barton Harrington

Windermere Mortgage

Services Series LLC/West Campus

   John Tidwell    M. Barton Harrington

Windermere Mortgage

Services Series LLC/Mill Creek

   Vern Holden    M. Barton Harrington

 

- 2 -


Windermere Mortgage

Services Series LLC/Central

   Michael J. Connolly    M. Barton Harrington

Windermere Mortgage

Services Series LLC/Walla Walla

   Douglas R. Simcock    M. Barton Harrington

Windermere Mortgage

Services Series LLC/Kitsap

   Michael Pitts    M. Barton Harrington

Revised: 01.20.11

 

- 3 -


EXHIBIT D

SEPARATE SERIES AGREEMENT FOR EACH SERIES

 

-1-


EXHIBIT E

AMENDMENT NO. 1 TO

CAPITAL MAINTENANCE REQUIREMENT FOR EACH SERIES

 

Series

   Capital
Maintenance
Requirement
 

Windermere Mortgage Services Series LLC/ American NW Realty

   $ 50,000   

Windermere Mortgage Services Series LLC/ AT

   $ 90,000   

Windermere Mortgage Services Series LLC/ East

   $ 90,000   

Windermere Mortgage Services Series LLC/ Everett

   $ 50,000   

Windermere Mortgage Services Series LLC/ GH

   $ 70,000   

Windermere Mortgage Services Series LLC/ HKW

   $ 50,000   

Windermere Mortgage Services Series LLC/ Maple Valley

   $ 50,000   

Windermere Mortgage Services Series LLC/ M2

   $ 50,000   

Windermere Mortgage Services Series LLC/ North

   $ 50,000   

Windermere Mortgage Services Series LLC/ Northeast

   $ 50,000   

Windermere Mortgage Services Series LLC/ Northwest

   $ 50,000   

Windermere Mortgage Services Series LLC/ Oak Tree

   $ 50,000   

Windermere Mortgage Services Series LLC/Renton

   $ 50,000   

Windermere Mortgage Services Series LLC/South

   $ 130,000   

 

E-1


Series

   Capital
Maintenance
Requirement
 

Windermere Mortgage Services Series LLC/Valley

   $ 50,000   

Windermere Mortgage Services Series LLC/Wall Street

   $ 70,000   

Windermere Mortgage Services Series LLC/WRE

   $ 70,000   

Windermere Mortgage Services Series LLC/ Auburn

   $ 50,000   

Windermere Mortgage Services Series LLC/ North Wall Street

   $ 50,000   

Windermere Mortgage Services Series LLC/ Pacific West Properties

   $ 50,000   

Windermere Mortgage Services Series LLC/Paragon

   $ 50,000   

Windermere Mortgage Services Series LLC/WMS Online

   $ 100,000   

Windermere Mortgage Services Series LLC/Skagit Valley

   $ 63,000   

Windermere Mortgage Services Series LLC/Manito

   $ 50,000   

Windermere Mortgage Services Series LLC/SBA

   $ 50,000   

Windermere Mortgage Services Series LLC/Tacoma Professional Partners

   $ 63,000   

Windermere Mortgage Services Series LLC/West Campus

   $ 50,000   

Windermere Mortgage Services Series LLC/Mill Creek

   $ 50,000   

Windermere Mortgage Services Series LLC/Central

   $ 50,000   

Windermere Mortgage Services Series LLC/Walla Walla

   $ 50,000   

 

E-2


Series

   Capital
Maintenance
Requirement
 

Windermere Mortgage Services Series LLC/Kitsap

   $ 50,000   

Revised: 07.01.09

 

E-3


EXHIBIT F-l

ENTITY LEVEL FUNCTIONS

Part 1. Administrative .

(a) Legal services and support, including, but not limited to, (i) document review and preparation; (ii) advice regarding legal and regulatory compliance; and (iii) litigation management, to include title claims and third party litigation, as well as regulatory complaints or investigations.

(b) Human resources services and support, including, but not limited to, (i) consultation and advice regarding personnel issues, (ii) benefits and compensation analysis, (iii) data entry for new employees and payroll tracking and (iv) benefits plan administration support.

(c) Marketing services and support, including, but not limited to, (i) consultation regarding marketing best practices and collateral materials and (ii) advice regarding website design and construction.

(d) Finance and accounting services and support, including, but not limited to, (i) systems and data entry support for generation of routine financial statements and reports, (ii) accounts payable services, (iii) audit and tax preparation support and (iv) payroll administration.

(e) Administrative support in connection with obtaining property, liability and E&O insurance.

(f) Information systems services and support, including, but not limited to, (i) computer and phone systems services and support, (ii) electronic data storage service, (iii) equipment acquisition and maintenance and (iv) information services helpdesk and network services.

(g) Quality control services and support, including, but not limited to, (i) quality control audits of loans closed by the Service Recipient, in accordance with regulatory requirements, (ii) quality control support regarding annual branch audits, (iii) HMDA and LAR report compilations, and (iv) production of reports in connection with the foregoing.

(h) Overall management and strategic planning at entity level.

(i) Overall operational support to individual series as needed.

 

-1-


(j) Management of Warehouse line.

(k) Management of Brokerage and Correspondent Relationships with third-party lenders.

(l) Management of relationships with HUD and with secondary market agencies (FNMA, FHLMC).

(m) Management of specialized lending programs such as state first time home buyer programs.

(l) Management of entity and series level bank accounts; financial reporting at the entity level and to the series; payment of receivables from series level accounts.

(m) Phone System Support.

(n) Provide resources for research, analysis and implementation of new processes or system initiatives.

(o) Budgeting at entity level and assistance with series level budgeting.

(p) Assistance with audits.

(q) Process payroll and maintenance of payroll changes.

Part 2. Mortgage Loan Origination Services .

(a) Underwriting services outside the DU process, including appraisal review.

(b) Secondary marketing operations services, loan file review and shipping services, including, but not limited to, (i) imaging of closed loan files, (ii) preparation of documentation to satisfy insurance requirements of the Federal Housing Administration and the Department of Veterans;’ Affairs, (iii) MERS assignments and (iv) receipt and custody of original notes.

(c) Interest rate risk management consultation and support, and mark to market reporting.

(d) Systems and administrative support for loan origination functions, including, but not limited to, consultation, support and training for, and maintenance of, production and point-of-sale software, databases and systems.

 

-2-


(e) The following “back office” loan processing functions:

(i) “Ordering out” of flood determinations, appraisal, title and escrow”.

(ii) Coordination of escrow and closing process.

(iii) preparation of closing documents and regulatory disclosures.

(iv) Funding of loan.

(v) MERS Assignments.

(vi) sale and shipping of closed loans.

(vii) Advocacy with third party lenders on loans to be brokered or sold.

 

-3-


EXHIBIT F-2

SERIES LEVEL FUNCTIONS

Part 1. Administrative .

(a) Development of a business plan and marketing plan, to be updated as needed but on at least an annual basis. Marketing plan to include identifying (and pursuing) potential sources of business through existing personal and community contacts and referral sources, including realtors, builders, buyers, sellers and the general community, and expanding existing customer relationships.

(b) Coordinate advertising.

(c) Marketing research as needed in connection with items (a) and (b) above.

(d) Interactions with real estate office in which series office is located.

(e) Review and monitoring of series level performance and Mortgage Consultant/Branch Manager performance in comparison to business plan and revenue and expense projections.

(f) Series level personnel issues, to include evaluation of Mortgage Consultant/Branch Manager and hiring of new series level personnel as needed. Monitoring of salary and benefits to assure consistency with market and employee retention.

(g) Employee training as needed.

(h) Provide input to entity level managers with respect to lending products, processes, pricing and marketing strategies, and possible areas of improvement.

Part 2. Mortgage Loan Origination Services .

(a) Analyze customers’ financial needs and overall financial status. Recommend loan products and other services that are in the best interest of the customer given the customer's financial status, goals, needs, etc.

(b) Manage the loan application process, including conducting application interviews, assisting customers in completing loan applications, accumulating information to be verified, identifying additional information to be provided or obtained, and providing all disclosures and forms to customers as required by company policy.

 

-1-


Take complete application in accordance with the Windermere Mortgage Services (“WMS”) loan file workflow.

(c) Complete preliminary analysis of loan using WMS and investor underwriting guidelines.

(d) Input and upload application on POS (point of sale) system within WMS guidelines.

(e) Input loan file in DU (Desktop Underwriter) or other designated underwriting systems utilized by WMS, within WMS guidelines.

(f) Negotiate fees, discounts, rates and rate locks, and other terms and conditions on loans within WMS guidelines. Monitor rate locks and extend as necessary.

(g) Advocate customer interests throughout the transaction as needed. Remain the primary point of contact with the customer throughout the loan process. Obtain or assist in obtaining from the customer any needed post-closing documentation.

(h) Direct the WMS entity level processor assigned to each loan and perform a weekly file review with the processor of all loans in process, reviewing missing items still needed.

(i) Remain in contact with the customer after completion of transaction to review additional and future financial needs.

(j) Regulatory compliance in connection with series level functions.

 

-2-


WINDERMERE MORTGAGE SERVICES SERIES LLC

AMENDED AND RESTATED

LIMITED LIABILITY COMPANY OPERATING AGREEMENT

MANAGER SIGNATURE PAGE

 

HSB LLC MANAGER
By:  

/s/ Richard W.H. Bennion

      Richard W.H. Bennion

Title:

 

 HSB LLC, Manager

HSB LLC MANAGER

By:

 

/s/ Joan Enticknap

      Joan Enticknap

Title:

 

 HSB LLC, Manager

HSB LLC MANAGER

By:

 

/s/ Bruce W. Williams

      Bruce W. Williams

Title:

 

 HSB LLC, Manager

HSB LLC MANAGER

By:

 

/s/ Debra L. Johnson

      Debra L. Johnson

Title:

 

 HSB LLC, Manager

WG LLC MANAGER

By:

 

/s/ William A McMahan

      William A McMahan

Title:

 

 WG LLC, Manager

 

- 1 -


WG LLC MANAGER

By:

 

/s/ Rick A. Menti

      Rick A. Menti

Title:

 

 WG LLC, Manager

WG LLC MANAGER

By:

 

/s/ Don Riley

      Don Riley

Title:

 

 WG LLC, Manager

WG LLC MANAGER

By:

 

/s/ Gregory R. Hoff

      Gregory R. Hoff

Title:

 

 WG LLC, Manager

 

- 2 -


WINDERMERE MORTGAGE SERVICES SERIES LLC

AMENDED AND RESTATED

LIMITED LIABILITY COMPANY OPERATING AGREEMENT

SIGNATURE PAGE

WINDERMERE MORTGAGE SERVICES SERIES LLC/AMERICAN NW REALTY

 

AMERICAN NORTHWEST REALTY, INC.
By:  

/s/ Stephen A. Skibbs

  Title:  

Owner / President

HOMESTREET/WMS, INC., a Washington corporation

By:  

/s/ Richard W.H. Bennion

 

Title:

 

Vice Chairman

WINDERMERE MORTGAGE SERVICES SERIES LLC/AT

 

WINDERMERE CRONIN & CAPLAN REALTY GROUP, INC.
By:  

/s/ Joan Tate Allen

  Title:  

Vice President

HOMESTREET/WMS, INC., a Washington corporation
By:  

/s/ Richard W.H. Bennion

 

Title:

 

Vice Chairman


WINDERMERE MORTGAGE SERVICES SERIES LLC/EAST

 

WINDERMERE REAL ESTATE/EAST, INC.
By:  

/s/ Joe Deasy

  Title:  

VP-Treasurer

HOMESTREET/WMS, INC., a Washington corporation
By:  

/s/ Richard W.H. Bennion

  Title:  

Vice Chairman

WINDERMERE MORTGAGE SERVICES SERIES LLC/EVERETT

 

WINDERMERE REAL ESTATE/EVERETT, INC.
By:  

/s/ Von Holden

  Title:  

PRESIDENT

HOMESTREET/WMS, INC., a Washington corporation
By:  

/s/ Richard W.H. Bennion

  Title:  

Vice Chairman


WINDERMERE MORTGAGE SERVICES SERIES LLC/GH

 

WINDERMERE REAL ESTATE/G.H. LLC
By:  

/s/ Greg Hoff

  Title:  

Manager

HOMESTREET/WMS, INC., a Washington corporation
By:  

/s/ Richard W.H. Bennion

  Title:  

Vice Chairman

WINDERMERE MORTGAGE SERVICES SERIES LLC/HKW

 

WINDERMERE REAL ESTATE/HKW, INC.
By:  

/s/ Renee Sayatovic

  Title:  

PRESIDENT

HOMESTREET/WMS, INC., a Washington corporation
By:  

/s/ Richard W.H. Bennion

  Title:  

Vice Chairman


WINDERMERE MORTGAGE SERVICES SERIES LLC/MAPLE VALLEY

 

WINDERMERE REAL ESTATE/MAPLE VALLEY, INC.
By:  

/s/ Rich Menti

  Title:  

SEC/TREAS

HOMESTREET/WMS, INC., a Washington corporation
By:  

/s/ Richard W.H. Bennion

  Title:  

Vice Chairman

WINDERMERE MORTGAGE SERVICES SERIES LLC/MH

 

WINDERMERE REAL ESTATE/M.H., INC.
By:  

/s/ Will McMahon

  Title:  

President

HOMESTREET/WMS, INC., a Washington corporation
By:  

/s/ Richard W.H. Bennion

  Title:  

Vice Chairman


WINDERMERE MORTGAGE SERVICES SERIES LLC/NORTH

 

WINDERMERE REAL ESTATE/NORTH, INC.
By:  

/s/ Richard W. Wood

  Title:  

Pres.

HOMESTREET/WMS, INC., a Washington corporation
By:  

/s/ Richard W.H. Bennion

  Title:  

Vice Chairman

WINDERMERE MORTGAGE SERVICES SERIES LLC/NORTHEAST

 

JHW ASSOCIATES, INC.
By:  

/s/ Darrell Whittaker

  Title:  

VP

HOMESTREET/WMS, INC., a Washington corporation
By:  

/s/ Richard W.H. Bennion

  Title:  

Vice Chairman


WINDERMERE MORTGAGE SERVICES SERIES LLC/NORTHWEST

 

WINDERMERE REAL ESTATE/NORTHWEST, INC.
By:  

/s/ Kari L. Hedman

    Title:  

VP

HOMESTREET/WMS, INC., a Washington corporation
By:  

/s/ Richard W.H. Bennion

  Title:  

Vice Chairman

WINDERMERE MORTGAGE SERVICES SERIES LLC/OAK TREE

 

WINDERMERE REAL ESTATE/OAK TREE, INC.
By:  

/s/ Philip V. Leng

  Title:  

President

HOMESTREET/WMS, INC., a Washington corporation
By:  

/s/ Richard W.H. Bennion

  Title:  

Vice Chairman


WINDERMERE MORTGAGE SERVICES SERIES LLC/RENTON

 

WINDERMERE REAL ESTATE/RENTON, INC.
By:  

/s/ Tom Huxtable

  Title:  

PRESIDENT

HOMESTREET/WMS, INC., a Washington corporation
By:  

/s/ Richard W.H. Bennion

  Title:  

Vice Chairman

WINDERMERE MORTGAGE SERVICES SERIES LLC/SOUTH

 

WINDERMERE REAL ESTATE/SOUTH, INC.
By:  

/s/ Rich Menti

  Title:  

PRESIDENT

HOMESTREET/WMS, INC., a Washington corporation
By:  

/s/ Richard W.H. Bennion

  Title:  

Vice Chairman


WINDERMERE MORTGAGE SERVICES SERIES LLC/VALLEY

 

WINDERMERE REAL ESTATE/VALLEY, INC.
By:  

/s/ Catherine C. Maye

  Title:  

President

HOMESTREET/WMS, INC, a Washington corporation
By:  

/s/ Richard W.H. Bennion

  Title:  

Vice Chairman

WINDERMERE MORTGAGE SERVICES SERIES LLC/WALL STREET

 

WDNDERMERE REAL ESTATE/WALL STREET, INC.
By:  

/s/ Rich Gangnes

  Title:  

President

HOMESTREET/WMS, INC., a Washington corporation
By:  

/s/ Richard W.H. Bennion

  Title:  

Vice Chairman


WINDERMERE MORTGAGE SERVICES SERIES LLC/WEST SOUND

 

WINDERMERE REAL ESTATE/WEST SOUND, INC.
By:  

/s/ Jessica Kennedy

  Title:  

Vice President

HOMESTREET/WMS, INC., a Washington corporation

By:

 

/s/ Richard W.H. Bennion

  Title:  

Vice Chairman

WINDERMERE MORTGAGE SERVICES SERIES LLC/WRE

 

WINDERMERE REAL ESTATE CO.
By:  

/s/ John Jacobi

  Title:  

Owner

HOMESTREET/WMS, INC., a Washington corporation
By:  

/s/ Richard W.H. Bennion

  Title:  

Vice Chairman


WINDERMERE MORTGAGE SERVICES SERIES LLC

AMENDED AND RESTATED

LIMITED LIABILITY COMPANY OPERATING AGREEMENT

SIGNATURE PAGE

WINDERMERE MORTGAGE SERVICES SERIES LLC/NORTHEAST

 

PVCH Financial Systems LLC
By:  

/s/ Peter V.C. Hickey 1/15/09

  Title:  

PRESIDENT

HOMESTREET/WMS, INC., a Washington corporation
By:  

Richard W.H. Bennion

  Title:  

Vice Chairman

 

- 1 -


WINDERMERE MORTGAGE SERVICES SERIES LLC

AMENDED AND RESTATED

LIMITED LIABILITY COMPANY OPERATING AGREEMENT

SIGNATURE PAGE

WINDERMERE MORTGAGE SERVICES SERIES LLC/OAK TREE

 

WMJC, Inc.
By:  

/s/ Matthew J. Carroll 2-1-0?

  Title:  

President

HOMESTREET/WMS, INC., a Washington corporation
By:  

/s/ Richard W.H. Bennion

  Title:  

Chairman

 

- 1 -


WINDERMERE MORTGAGE SERVICES SERIES LLC

AMENDED AND RESTATED

LIMITED LIABILITY COMPANY OPERATING AGREEMENT

SIGNATURE PAGE

WINDERMERE MORTGAGE SERVICES SERIES LLC/WEST SOUND

 

DEMCO KIEBURTZ, INC.

dba Windermere Real Estate/Kitsap, Inc.

By:  

/s/ John Demco

  Title:  

Member

  Date:  

May 6, 2009

HOMESTREET/WMS, INC., a Washington corporation
By:  

/s/ Richard W.H. Bennion

  Title:  

Vice Chairman

  Date:  

5/11/09

 

- 1 -


WINDERMERE MORTGAGE SERVICES SERIES LLC

AMENDED AND RESTATED

LIMITED LIABILITY COMPANY OPERATING AGREEMENT

SIGNATURE PAGE

WINDERMERE MORTGAGE SERVICES SERIES LLC/NORTH WALL STREET

 

BECKER MORTGAGE, LLC
By:  

/s/ John Becker

  Title:  

MGR

HOMESTREET/WMS, INC., a Washington corporation
By:  

/s/ Richard W.H. Bennion

  Title:  

Vice Chairman

 

- 1 -


WINDERMERE MORTGAGE SERVICES SERIES LLC

AMENDED AND RESTATED

LIMITED LIABILITY COMPANY OPERATING AGREEMENT

SIGNATURE PAGE

WINDERMERE MORTGAGE SERVICES SERIES LLC/WALLA WALLA

 

SIMCOCK ENTERPRISES, L.L.C.
By:  

/s/ Douglas Simco

  Title:  

member

  Date:  

4/21/09

HOMESTREET/WMS, INC., a Washington corporation
By:  

/s/ Richard W.H. Bennion

  Title:  

Vice Chairman

  Date:  

4/9/09

 

- 1 -


WINDERMERE MORTGAGE SERVICES SERIES LLC

AMENDED AND RESTATED

LIMITED LIABILITY COMPANY OPERATING AGREEMENT

MANAGER SIGNATURE PAGE

 

HSB LLC MANAGER

By:

 

/s/ Richard W.H. Bennion

      Richard W.H. Bennion

Title:

 

 HSB LLC, Manager

HSB LLC MANAGER

By:

 

/s/ Joan Enticknap

      Joan Enticknap

Title:

 

 HSB LLC, Manager

HSB LLC MANAGER

By:

 

/s/ Bruce W. Williams

      Bruce W. Williams

Title:

 

 HSB LLC, Manager

HSB LLC MANAGER

By:

 

/s/ Debra L. Johnson

      Debra L. Johnson

Title:

 

 HSB LLC, Manager

WG LLC MANAGER

By:

 

/s/ Don Riley

      Don Riley

Title:

 

 WG LLC, Manager

 

- 1 -


WG LLC MANAGER

By:

 

/s/ Gregory R. Hoff

      Gregory R. Hoff

Title:

 

 WG LLC, Manager

WG LLC MANAGER

By:

 

/s/ Joe Deasy

      Joe Deasy

Title:

 

 WG LLC, Manager

WG LLC MANAGER

By:

 

/s/ Brian Allen

      Brian Allen

Title:

 

 WG LLC, Manager

 

- 2 -


WINDERMERE MORTGAGE SERVICES SERIES LLC

AMENDED AND RESTATED

LIMITED LIABILITY COMPANY OPERATING AGREEMENT

SIGNATURE PAGE

WINDERMERE MORTGAGE SERVICES SERIES LLC/KITSAP

 

WINDERMERE KITSAP LLC
By:  

/s/ Mike Pitts

  Title:  

President

  Date:  

6/30/09

HOMESTREET/WMS, INC., a Washington corporation
By:  

/s/ Richard W.H. Bennion

  Title:  

Vice Chairman

  Date:  

6/29/09

 

- 1 -


WINDERMERE MORTGAGE SERVICES SERIES LLC

AMENDED AND RESTATED

LIMITED LIABILITY COMPANY OPERATING AGREEMENT

SIGNATURE PAGE

WINDERMERE MORTGAGE SERVICES SERIES LLC/SKAGIT VALLEY

 

SKAGIT MORTGAGE SERVICES LLC
By:  

/s/ Nathaniel Scott

  Title:  

KP

  Date:  

4/1/2010

HOMESTREET/WMS, INC., a Washington corporation
By:  

/s/ William W.H. Bennion

  Title:  

Vice Chairman

  Date:  

6/1/10

 

- 1 -


FORM OF

SEPARATE SERIES AGREEMENT

SERIES [                    ]

THIS SEPARATE SERIES AGREEMENT, dated as of May 1, 2005 (this “Separate Series Agreement”), is entered into by and between certain members of WINDERMERE MORTGAGE SERVICE SERIES LLC, a Delaware limited liability company (the “Company”) associated with the Series identified herein, as such Members are set forth on a separate Exhibit A to the Limited Liability Company Agreement of the Company, as well as the managers of the Series identified herein. Capitalized terms used herein and not otherwise defined are used as defined in the Limited Liability Company Agreement of the Company, dated and effective as of May 1, 2005 (as amended from time to time, the “LLC Operating Agreement” ).

RECITALS

WHEREAS, the parties hereto associated with Series [                    ] and the Members associated with other Series of the Company have heretofore formed a limited liability company pursuant to Section 18-215 of the Delaware Limited Liability Company Act (the “Act”) by filing a Certificate of Formation of the Company with the office of the Secretary of State of the State of Delaware and by entering into the LLC Operating Agreement; and

WHEREAS, it is intended by the parties hereto to create a separate Series [                    ] in accordance with Section 18-215 of the Act; and

WHEREAS, it is intended by the parties hereto that except as otherwise provided for in the LLC Operating Agreement or agreed to by the members of this Series, the debts, liabilities and obligations incurred, contracted for or otherwise existing with respect to this [                    ] be enforceable only against the assets of this Series [                    ], and not against the assets of the Company generally or any other Series; and

AGREEMENT

NOW THEREFORE, in consideration of the mutual promises and obligations contained herein, the parties, intending to be legally bound, hereby agree as follows:

1. New Series . In accordance with Section 2 of the LLC Operating Agreement, the Members and the Managers listed as Members of Series [                    ] Exhibits A and C to the LLC Operating Agreement hereby agree that Series [                    ] is hereby created, which shall be a “Series” for purposes of the LLC Agreement.

2. Name of New Series . The name of the Series created by this Separate Series Agreement shall be Windermere Mortgage Services Series LLC/[                    ]. The Series shall also adopt the d/b/a Windermere Mortgage Services /[                    ].

3. Agreement to be Bound . Each of the Members listed on Exhibit A to the LLC as Agreement Members of Series [                    ] and who execute this Separate

 

Page 1 of 4


Series Agreement in their capacities as members of the Company associated with the Series [                    ], agree to be bound by the terms and provisions of the LLC Agreement and this Separate Series Agreement.

4. Managers . The initial Managers of this Series (“Series Managers”) shall be [                    ], who is the “HSB Series Manager” for this Series, and [                    ], who is the “WG Series Manager” for this Series, as the terms “HSB Series Manager” and “WG Series Manager” are defined in the LLC Operating Agreement. A Member that designated or appointed a Manager pursuant to the LLC Agreement may remove such Manager as a manager of the Series at any time, with or without cause and for any reason or for no reason, by giving a notice of removal to such Manager and to the other Members of the Series in accordance with the provisions of the LLC Operating Agreement. If a Manager is removed, dies or resigns, the replacement Managers shall be designated by the Members that designated or appointed the Manager, in accordance with the procedures set forth in the LLC Operating Agreement. Additional Managers may be designated by unanimous agreement of all the Members of this Separate Series.

5. Management . Subject to the limitations expressly set forth in this Separate Agreement and the LLC Operating Agreement, the Series Managers acting unanimously will have the power to manage the business and affairs of the Series, to make all decisions with respect to the business and affairs of the Series and to perform any and all other acts that are customary or incidental to the management of the business and affairs of the Series.

6. Meetings of Managers . The Managers will meet in person or by telephone conference call at least once during each calendar quarter of each fiscal year. The quarterly meetings of the Managers will be held at such times as all of the Managers agree, for the purpose of transacting such business as may come before the meeting. The Managers may, but are not required to, hold other formal meetings.

7. Business Plan . The Managers, by unanimous agreement, shall adopt a written business plan for the Series and update the business plan as needed, but in no event less frequently than annually.

8. Officers . The officers of the Series shall be appointed by the Series Managers. The Series Managers hereby appoint the following individuals to serve as the initial officers of the Company in the capacities designated below:

 

President:

   [                    ]

Executive Vice-President/ Production Manager:

   [                    ]

Executive Vice-President/ Operations Manager:

   [                    ]

Vice President/Branch Manager:

   [                    ]

 

Page 2 of 4


9. Business . The separate business of this Series shall be to own, operate, maintain and dispose of, all in accordance with the LLC Operating Agreement, the assets listed on Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:     HOMESTREET/WMS, INC., a Washington corporation
       

By:

 

 

          Its:   

 

 

[                                               ]

       
       

By:

 

 

         

Its:

  

 

 

Page 3 of 4


SERIES MANAGERS:

  

 

   [                    ], as the “HSB Series Manager”
  

 

   [                    ], as the “WG Series Manager”

 

Page 4 of 4


9. Business . The separate business of this Series shall be to own, operate, maintain and dispose of, all in accordance with the LLC Operating Agreement, the assets listed on Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:     

HOMESTREET/WMS, INC., a Washington

corporation

 

By:

 

/s/ Richard W. H. Bennion

  Its:  

Vice Chairman

AMERICAN NORTHWEST REALTY, INC.

 

By:

 

/s/ Stephen A. Skibbs

 

Its:

 

President/Owner

 

Page 3 of 4


SERIES MANAGERS:

  

/s/ M. Barton Harrington

   M. Barton Harrington, as the “HSB Series Manager”
  

/s/ Steve Skibbs

   Steve Skibbs, as the “WG Series Manager”

 

Page 4 of 4


9. Business . The separate business of this Series shall be to own, operate, maintain and dispose of, all in accordance with the LLC Operating Agreement, the assets listed on Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:     

HOMESTREET/WMS, INC., a Washington

corporation

 

By:  

/s/ Richard W. H. Bennion

  Its:  

Vice Chairman

WINDERMERE CRONIN & CAPLAN REALTY

GROUP, INC.

By:  

/s/ Joan Tate Allen

  Its:  

 

 

Page 3 of 4


SERIES MANAGERS:   

/s/ M. Barton Harrington

  

M. Barton Harrington, as the “HSB Series

Manager”

  

/s/ Joan Allen

   Joan Allen, as the “WG Series Manager”

 

Page 4 of 4


Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:

   

HOMESTREET/WMS, INC., a Washington

corporation

 

By:  

/s/ Richard W. H. Bennion

  Its:  

Vice Chairman

 

WINDERMERE REAL ESTATE/AUBURN, INC.

By:

 

/s/ Tom Tollen

 

Its:

 

President

 

Page 3 of 4


SERIES MANAGERS:   

/s/ M. Barton Harrington

   M. Barton Harrington, as the “HSB Series Manager”
  

/s/ Tom Tollen

   Tom Tollen, as the “WG Series Manager”

 

Page 4 of 4


9. Business . The separate business of this Series shall be to own, operate, maintain and dispose of, all in accordance with the LLC Operating Agreement, the assets listed on Schedule A hereto, to engage, in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:     

HOMESTREET/WMS, INC., a Washington

corporation

 

By:

 

/s/ Richard W. H. Bennion

  Its:  

Member

CENTRAL LLC

By:

 

/s/ Michael J. Connolly

 

Its:

 

PRESIDENT

 

Page 3 of 4


SERIES MANAGERS:

  

/s/ M. Barton Harrington

   M. Barton Harrington, as the “HSB Series Manager”
  

/s/ Michael J. Connolly

   Michael J. Connolly, as the “WG Series Manager”

 

Page 4 of 4


9. Business . The separate business of this Series shall be to own, operate, maintain and dispose of, all in accordance with the LLC Operating Agreement, the assets listed on Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

SERIES MEMBERS:

HOMESTREET/WMS, INC., a Washington corporation
By:  

/s/ Richard W. H. Bennion

  Its:  

Vice Chairman

 

WINDERMERE REAL ESTATE/EAST, INC.

By:  

/s/ Joe Deasy

  Its:  

VP–Treasurer

 

Page 3 of 4


SERIES MANAGERS:   

/s/ M. Barton Harrington

  

M. Barton Harrington, as the “HSB Series

Manager”

  

/s/ Joe Deasy

   Joe Deasy, as the “WG Series Manager”

 

Page 4 of 4


Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

SERIES MEMBERS:

HOMESTREET/WMS, INC., a Washington corporation
By:  

/s/ Richard W. H. Bennion

  Its:  

Vice Chairman

 

WINDERMERE REAL ESTATE/ EVERETT, INC.
By:  

/s/ Vern Holden

  Its:  

President

 

Page 3 of 4


SERIES MANAGERS:

  

/s/ M. Barton Harrington

   M. Barton Harrington, as the “HSB Series Manager”
  

/s/ Vern Holden

   Vern Holden, as the “WG Series Manager”

 

Page 4 of 4


9. Business . The separate business of this Series shall be to own, operate, maintain and dispose of, all in accordance with the LLC Operating Agreement, the assets listed on Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

SERIES MEMBERS:

HOMESTREET/WMS, INC., a Washington corporation
By:  

/s/ Richard W.H. Bennion

  Its:  

Vice Chairman

 

WINDERMERE REAL ESTATE/GH LLC

By:  

/s/ Greg Hoff

  Its:  

Manager

 

Page 3 of 4


SERIES MANAGERS:

  

/s/ M. Barton Harrington

   M. Barton Harrington, as the “HSB Series Manager”
  

/s/ Greg Hoff

   Greg Hoff, as the “WG Series Manager”

 

Page 4 of 4


Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:    

HOMESTREET/WMS, INC., a Washington

corporation

 

By:

 

/s/ Richard W.H. Bennion

  Its:  

Vice Chairman

WINDERMERE REAL ESTATE/HKW, INC.

By:

 

/s/ Renee Sayatovic

 

Its:

 

President

 

Page 3 of 4


SERIES MANAGERS:   

/s/ M. Barton Harrington

  

M. Barton Harrington, as the “HSB Series

Manager”

  

/s/ Renee Sayatovic

   Renee Sayatovic, as the “WG Series Manager”

 

Page 4 of 4


Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:   HOMESTREET/WMS, INC., a Washington corporation
  By:  

Richard W.H. Bennion

    Its:  

Vice Chairman

  WINDERMERE KITSAP LLC
  By:  

Michael Pitts

    Its:  

President

 

Page 3 of 4


SERIES MANAGERS:   

/s/ M. Barton Harrington

   M. Barton Harrington, as the “HSB Series Manager”
  

/s/ Michael Pitts

   Michael Pitts, as the “WG Series Manager”

 

Page 4 of 4


Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:   HOMESTREET/WMS, INC., a Washington corporation
  By:  

/s/ Richard W. H. Bennion

    Its:  

Vice Chairman

  WINDERMERE REAL ESTATE/M.H., INC.
  By:  

/s/ Will McMahon

    Its:  

President

 

Page 3 of 4


SERIES MANAGERS:   

/s/ M. Barton Harrington

   M. Barton Harrington, as the “HSB Series Manager”
  

/s/ Will McMahon

   Will McMahan, as the “WG Series Manager”

 

Page 4 of 4


9. Business . The separate business of this Series shall be to own, operate, maintain and dispose of, all in accordance with the LLC Operating Agreement, the assets listed on Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:

  HOMESTREET/WMS, INC., a Washington corporation
  By:  

/s/ Richard W. H. Bennion

    Its:  

Vice Chairman

 

MANITO MORTGAGE LCC.

  By:  

Joseph K. Nichols, Sr.

    Its:  

Manager

 

Page 3 of 4


SERIES MANAGERS:   

/s/ M. Barton Harrington

   M. Barton Harrington, as the “HSB Series Manager”
  

/s/ Joseph K. Nicholas

   Joseph K. Nicholas, Sr., as the “WG Series Manager”

 

Page 4 of 4


9. Business . The separate business of this Series shall be to own, operate, maintain and dispose of, all in accordance with the LLC Operating Agreement, the assets listed on Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:

  HOMESTREET/WMS, INC., a Washington corporation
  By:  

/s/ Richard W. H. Bennion

    Its:  

Vice Chairman

    WINDERMERE REAL ESTATE/MAPLE VALLEY, INC.
  By:  

/s/ Rich Menti

    Its:  

Sec/Treas

 

Page 3 of 4


SERIES MANAGERS:  

/s/ M. Barton Harrington

  M. Barton Harrington, as the “HSB Series Manager”
 

/s/ Rich Menti

  Rich Menti, as the “WG Series Manager”

 

Page 4 of 4


9. Business . The separate business of this Series shall be to own, operate, maintain and dispose of, all in accordance with the LLC Operating Agreement, the assets listed on Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:   HOMESTREET/WMS, INC., a Washington corporation
  By:  

/s/ Richard W. H. Bennion

   

Its:

 

Vice Chairman

  WINDERMERE REAL ESTATE/MILL CREEK, INC.
  By:  

Vern Holden

    Its:  

PRESIDENT

 

Page 3 of 4


SERIES MANAGERS:  

/s/ M. Barton Harrington

  M. Barton Harrington, as the “HSB Series Manager”
 

/s/ Vern Holden

  Vern Holden, as the “WG Series Manager”

 

Page 4 of 4


Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:   HOMESTREET/WMS, INC., a Washington corporation
  By:  

/s/ Richard W.H. Bennion

   

Its:

 

Vice Chairman

 

WINDERMERE REAL ESTATE/NORTH, INC.

 

By:

 

/s/ Richard W. Wood

   

Its:

 

Pres.

 

Page 3 of 4


SERIES MANAGERS:

 

/s/ M. Barton Harrington

  M. Barton Harrington, as the “HSB Series Manager”
 

/s/ Dick Wood

  Dick Wood, as the “WG Series Manager”

 

Page 4 of 4


SERIES MANAGERS:

 

/s/ M. Barton Harrington

  M. Barton Harrington, as the “HSB Series Manager”
 

/s/ John W. Becker

  John W. Becker, as the “WG Series Manager”

 

Page 4 of 4


I, John W. Becker, as the WG Series Manager for Windermere Mortgage Services Series LLC/North Wall Street, have read and agree to be bound by the Separate Series Agreement dated May 1, 2005, a copy of which is attached to this Agreement.

 

/s/ John W. Becker

John W. Becker, as the “WG Series Manager”

 

4.1.09

Date


9. Business . The separate business of this Series shall be to own, operate, maintain and dispose of, all in accordance with the LLC Operating Agreement, the assets listed on Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:

  HOMESTREET/WMS, INC., a Washington corporation
 

By:

 

 

   

Its:

 

 

 

WINDERMERE NORTH WALL STREET, INC.

  By:  

/s/ John W. Becker        Marianne Becker

   

Its:

 

President—SEC

 

Page 3 of 4


SERIES MANAGERS:

 

/s/ M. Barton Harrington

  M. Barton Harrington, as the “HSB Series Manager”
 

/s/ John W. Becker        Marianne Becker

  John Becker, as the “WG Series Manager”

 

Page 4 of 4


Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:   HOMESTREET/WMS, INC., a Washington corporation
  By:  

/s/ Richard W.H. Bennion

    Its:  

Vice Chairman

  JMW AND ASSOCIATES, INC.
  By:  

/s/ Darrell Whittaker

    Its:  

VP

 

Page 3 of 4


SERIES MANAGERS:

   

/s/ M. Barton Harrington

    M. Barton Harrington, as the “HSB Series Manager”
   

/s/ Darrell Whittaker

    Darrell Whittaker, as the “WG Series Manager”

 

Page 4 of 4


Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:     HOMESTREET/WMS, INC., a Washington corporation
    By:   /s/ Richard W.H. Bennion
      Its:   Vice Chairmen
    WINDERMERE REAL ESTATE/NORTHWEST, INC.
    By:   /s/ Kari L. Hedman
      Its:   VP

 

Page 3 of 4


SERIES MANAGERS:

 

/s/ M. Barton Harrington

 

M. Barton Harrington, as the “HSB Series

Manager”

 

/s/ Kari L. Hedman For

Steve Kieburtz, as the “WG Series Manager”

 

Page 4 of 4


Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:  

HOMESTREET/WMS, INC., a Washington

corporation

  By:  

/s/ Richard W.H. Bennion

    Its:  

Vice Chairman

 

WINDERMERE REAL ESTATE/OAK TREE,

INC.

  By:  

/s/ Philip V. Leng

    Its:  

President

 

Page 3 of 4


SERIES MANAGERS:  

/s/ M. Barton Harrington

 

M. Barton Harrington, as the “HSB Series

Manager”

 

/s/ Phil Leng

Phil Leng, as the “WG Series Manager”

 

Page 4 of 4


I, Matt Carroll, as the WG Series Manager for Windermere Mortgage Services Series LLC/Oak Tree, have read and agree to be bound by the Separate Series Agreement dated May 1, 2005, a copy of which is attached to this Agreement.

 

/s/ Matt Carroll

Matt Carroll, the “WG Series Manager”

2.1.09

Date


9. Business . The separate business of this Series shall be to own, operate, maintain and dispose of, all in accordance with the LLC Operating Agreement, the assets listed on Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:   HOMESTREET/WMS, INC., a Washington corporation
  By:  

/s/ Richard W. H. Bennion

    Its:  

Vice Chairman

  WINDERMERE PACIFIC WEST PROPERTIES, INC.
  By:  

/s/ Vern Holden

    Its:  

MANAGER

 

Page 3 of 4


SERIES MANAGERS:  

/s/ M. Barton Harrington

  M. Barton Harrington, as the “HSB Series Manager”
 

 

/s/ Vern Holden

  Vern Holden, as the “WG Series Manager”

 

Page 4 of 4


Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:   HOMESTREET/WMS, INC., a Washington corporation
  By:  

/s/ Richard W. H. Bennion

    Its:  

Vice Chairman

  WINDERMERE REAL ESTATE/PARAGON COMPANY, INC.
  By:  

/s/ Wally Starkey

    Its:  

Vice President

 

Page 3 of 4


SERIES MANAGERS:

 

/s/ M. Barton Harrington

  M. Barton Harrington, as the “HSB Series Manager”
 

/s/ Wally Starkey

  Wally Starkey, as the “WG Series Manager”

 

Page 4 of 4


Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:

  HOMESTREET/WMS, INC., a Washington corporation
  By:  

/s/ Richard W. H. Bennion

   

Its:

 

Vice Chairman

 

WINDERMERE REAL ESTATE/RENTON, INC.

 

By:

 

/s/ Tom Huxtable

   

Its:

 

President

 

Page 3 of 4


SERIES MANAGERS:

/s/ M. Barton Harrington

M. Barton Harrington, as the “HSB Series Manager”

/s/ Tom Huxtable

Tom Huxtable, as the “WG Series Manager”

 

Page 4 of 4


Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:  

HOMESTREET/WMS, INC., a Washington

corporation

  By:  

/s/ Richard W.H. Bennion

    its:  

Vice Chairman

-     WINDERMERE REAL ESTATE/SBA, INC.
  By:  

/s/ Will Bruce

    Its:  

Pres.

 

Page 3 of 4


SERIES MANAGERS:  

/s/ M. Barton Harrington

 

M. Barton Harrington, as the “HSB Series

Manager”

 

/s/ Will Bruce

  Will Bruce, as the “WG Series Manager”

 

Page 4 of 4


9. Business . The separate business of this Series shall be to own, operate, maintain and dispose of, all in accordance with the LLC Operating Agreement, the assets listed on Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:

 

HOMESTREET/WMS, INC., a Washington

corporation

  By:  

/s/ Richard W.H. Bennion

    Its:  

 

  JNJ LLC
  By:  

/s/ James Scott

    Its:  

 

     

/s/ Nate Scott

 

Page 3 of 4


SERIES MANAGERS:  

/s/ M. Barton Harrington

 

M. Barton Harrington, as the “HSB Series

Manager”

 

/s/ Nate Scott

  Nate Scott, as the “WG Series Manager”

 

Page 4 of 4


9. Business . The separate business of this Series shall be to own, operate, maintain and dispose of, all in accordance with the LLC Operating Agreement, the assets listed on Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:   HOMESTREET/WMS, INC., a Washington

corporation

    By:   /s/ Richard W.H. Bennion
        Its:   Vice Chairman
  SKAGIT MORTGAGE SERVICES LLC
    By:   /s/ Nate Scott
        Its:   VP

 

Page 4 of 4


I, Nate Scott, as the WG Series Manager for Windermere Mortgage Services Series LLC/Skagit Valley, have read and agree to be bound by the Separate Series Agreement dated May 1, 2005, a copy of which is attached to this Agreement.

 

/s/ Nate Scott

Nate Scott, as the “WG Series Manager”

4/1/2010

Date


Vice President/Branch Manager:

   Teresa Stull

Vice President/Branch Manager:

   Cliff Taylor

9. Business . The separate business of this Series shall be to own, operate, maintain and dispose of, all in accordance with the LLC Operating Agreement, the assets listed on Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:  

HOMESTREET/WMS, INC., a Washington

corporation

    By:   /s/ Richard W. H. Bennion
        Its:    Vice Chairman
  WINDERMERE RAL ESTATE/SOUTH, INC.
    By:   /s/ Rich Menti
        Its:    PRESIDENT

 

Page 3 of 4


SERIES MANAGERS:    /s/ M. Barton Harrington
  

 

M. Barton Harrington, as the “HSB Series

Manager”

  

/s/ Rich Monti For

Michael Ratcliffe, as the “WG Series Manager”

 

Page 4 of 4


9. Business . The separate business of this Series shall be to own, operate, maintain and dispose of, all in accordance with the LLC Operating Agreement, the assets listed on Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:

 

HOMESTREET/WMS, INC., a Washington

corporation

  By:   /s/ Richard W. H. Bennion
    Its:   Vice Chairman
  WINDERMERE PROFESSIONAL PARTNERS
  By:   /s/ Jeff Jensen
    Its:    

 

Page 3 of 4


SERIES MANAGERS:

 

/s/ M. Barton Harrington

 

M. Barton Harrington, as the “HSB Series

Manager”

 

/s/ Jeff Jensen

  Jeff Jensen, as the “WG Series Manager”

 

Page 4 of 4


Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:

 

HOMESTREET/WMS, INC., a Washington

corporation

 

By:

 

/s/ Richard W. H. Bennion

   

Its:

      Vice Chairman
 

WINDERMERE REAL ESTATE/VALLEY, INC.

 

By:

 

/s/ Catherine C. Moye

   

Its:

      President

 

Page 3 of 4


SERIES MANAGERS:

 

/s/ M. Barton Harrington

M. Barton Harrington, as the “HSB Series

Manager”

 

/s/ Cate Moye

Cate Moye’, as the “WG Series Manager”

 

Page 4 of 4


9. Business . The separate business of this Series shall be to own, operate, maintain and dispose of, all in accordance with the LLC Operating Agreement, the assets listed on Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage-brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:

 

HOMESTREET/WMS, INC., a Washington

corporation

 

By:

  /s/ Richard W.H. Bennion
   

Its:

      Vice Chairman
 

WINDERMERE REAL ESTATE/WALL STREET,

INC.

 

By:

  /s/ Rich Gangnes
   

Its:

      PRESIDENT

 

Page 3 of 4


SERIES MANAGERS:

  

/s/ M. Barton Harrington

M. Barton Harrington, as the “HSB Series

Manager”

  
  

 

/s/ Rich Gangnes

Rich Gangnes, as the “WG Series Manager”

  

 

Page 4 of 4


9. Business . The separate business of this Series shall be to own, operate, maintain and dispose of all in accordance with the LLC Operating Agreement, the assets listed on Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:

 

HOMESTREET/WMS, INC., a Washington

corporation

 

By:

  /s/ Richard W.H. Bennion
   

Its:

      Vice Chairman
  SIMCOCK ENTERPRISES, L.L.C.
 

By:

  /s/ Doug Simcock
   

Its:

      President

 

Page 3 of 4


SERIES MANAGERS:

  

/s/ M. Barton Harrington

M. Barton Harrington, as the “HSB Series

Manager”

  
  

 

/s/ Douglas R. Simcock

Douglas R. Simcock, as the “WG Series Manager”

  

 

Page 4 of 4


9. Business . The separate business of this Series shall be to own, operate, maintain and dispose of, all in accordance with the LLC Operating Agreement, the assets listed on Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:

 

HOMESTREET/WMS, INC., a Washington

corporation

 

By:

  /s/ Richard W.H. Bennion
   

Its:

      Vice Chairman
 

WINDERMERE REAL ESTATE, WEST

CAMPUS, INC.

 

By:

  /s/ John Tidwell
   

Its:

      President

 

Page 3 of 4


SERIES MANAGERS:

  

/s/ M. Barton Harrington

M. Barton Harrington, as the “HSB Series

Manager”

  
  

 

/s/ John Tidwell

John Tidwell, as the “WG-Series Manager”

  

 

Page 4 of 4


9. Business . The separate business of this Series shall be to own, operate, maintain and dispose of, all in accordance with the LLC Operating Agreement, the assets listed on Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings . The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability . The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration . This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts . This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law . This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:

 

HOMESTREET/WMS, INC., a Washington

corporation

  By:  

/s/ Richard W.H. Bennion

    Its:  

Vice Chairman

  HOMESTREET/WMS, INC.
  By:  

/s/ Richard W.H. Bennion

    Its:  

Vice Chairman

 

Page 3 of 4


SERIES MANAGERS:

 

/s/ M. Barton Harrington

 

M. Barton Harrington, as the “HSB Series

Manager”

 

/s/ Rich Bennion

  Rich Bennion, as the “WG Series Manager”

 

Page 4 of 4


9. Business. The separate business of this Series shall be to own, operate, maintain and dispose of, all in accordance with the LLC Operating Agreement, the assets listed on Schedule A hereto, to engage in residential mortgage lending and the provision of residential mortgage brokerage services and to engage in all related business as necessary, incidental or convenient to carry on the business of the Series, or as may be mutually agreed upon by the Members associated with this Series.

10. Headings. The headings in this Separate Series Agreement are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Separate Series Agreement or any provision hereof.

11. Severability. The invalidity or unenforceability of any particular provision of this Separate Series Agreement shall not affect the other provisions hereof, and this Separate Series Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

12. Integration. This Separate Series Agreement and the LLC Operating Agreement constitute the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior agreements and understandings pertaining thereto.

13. Counterparts, This Separate Series Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document. All counterparts shall be construed together and shall constitute one instrument.

14. Governing Law. This Separate Series Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflict of laws.

IN WITNESS WHEREOF, the parties hereto have executed this Separate Series Agreement as of the date first-above stated.

 

SERIES MEMBERS:

  HOMESTREET/WMS, INC., a Washington
corporation
  By:  

/s/ Richard W.H. Bennion

    Its:  

Vice chairman

  WINDEREMERE REAL ESTATE CO.
  By:  

/s/ Ob Jacobi

    Its:  

Owner

 

Page 3 of 4


SERIES MANAGERS:

  

/s/ M. Barton Harrington

M. Barton Harrington as the “HSB Series

Manager”

  
  

 

/s/ Ob Jacobi

Ob Jacobi, as the “WG Series Manager”

  

 

Page 4 of 4


SEPARATE SERIES AGREEMENT

SERIES M2

SIGNATURE PAGE

WINDERMERE MORTGAGE SERVICES SERIES LLC/M2

(Formerly Windermere Mortgage Services Series LLC/M.H. – Amended 1/1/07)

 

SERIES MEMBERS:  

HOMESTREET/WMS, INC., a Washington

corporation

  By:  

/s/ Richard W.H. Bennion

    Its:  

Vice Chairman

     
  WINDERMERE REAL ESTATE/M2, INC.
     
  By:  

[Illegible Signature]

    Its:  

 

SERIES MANAGERS:  

/s/ M. Barton Harrington

  M. Barton Harrington, as the “HSB Series Manager”
 

/s/ David Maider

  David Maider, as the “WG Series Manager”

Exhibit 10.33

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

WASHINGTON, D.C. 20410

[GRAPHIC SEAL]

Mr. Walter B. Williams

President and Chief Executive Officer

Continental Savings Bank

Pacific Building, Eighth Floor

Seattle, Washington 98104

Dear Mr. Williams:

We are pleased to inform you that Continental Saving Bank has been approved an issuer of Government National Mortgage Association Mortgage-Backed ecurities, under the GNMA I and GNMA II single family programs.

A four-digit number (3057) has been assigned to your organization so that future transactions with the Government National Mortgage Association (GNMA) your organization will be properly identified. We request that you refer to this member on all future correspondence.

You should already have received copies of our Mortgage-Backed Securities Guides, with changes issued to date. You and your key staff are expected to be fully knowledgeable in all elements of these programs. These Guides will serve your basic instructional documents for all aspects of your responsibilities as issuer.

One of your obligations as a GNMA securities issuer is to report each month the remaining principal balances (RPB’s) of pools which you issue. In this regard, we ask that you make a special effort to adhere to the procedures set forth in Chapter 11 of the GNMA I Guide or Chapter 11 of the GNMA II Guide. Your RPB reporting numbers are: GNMA I pools 07833057A9; GNMA II pools or loan ckages; 07833057B9. Please report balances to National Data Corporation (NDC) accordance with the instructions in either Guide. If you report by telephone, the number to call is 206-285-9352.

If you have any questions, Richard Washington of the· Financial Management Division will assist you in any way possible. His telephone number is 202-755-2884. We welcome you as a participant in our programs.

 

Yours truly,

/s/ Glenn R. Wilson

Glenn R. Wilson, Jr.
President, GNMA


GinnieNET FACSIMILE

TRANSMISSION

 

For any comments/questions call:

GinnieNET Customer Service

1-800-234-4662

  LOGO

 

 

 

TO:      Name:       3057 - HOMESTREET BANK
    

 

From:

Fax Number:

 

  

  

GinnieNET NT NETWORK

1-206-389-6306

MESSAGE:

 

 

Issuer No. 3057 FTN: 30572011201012271728458

This fax serves as confirmation to you that your electronic Master Agreement Certification submission, under Ginnie Mae’s Master Agreement Program (Ginnie Mae 5500.3, 10-3) has been processed and approved. You should begin to submit your pools/loan packages in accordance with the instructions in Ginnie Mae 5500.3, 10-4 through 10-7.

The Master Agreement under this certification covers the period of 01-03-2011 through 12-31-2011.

Please call the New Pool Issuance Help Desk should you have any questions or require assistance in this regard. The toll free number is (800)234-GNMA(4662).

 

 

Date and time of transmission:                       Tuesday, December 28, 2010 1:03:18 AM
Number of pages including this cover sheet:                       01


       

G INNIE M AE 5500.3, R EV . 1

 

 

A PPENDIX III-15

G UARANTY A GREEMENT

G INNIE M AE I

S INGLE -F AMILY (L EVEL P AYMENT ) M ORTGAGE -B ACKED

S ECURITIES

THE GUARANTY AGREEMENT (“Agreement”) is composed of (i) the terms and conditions contained herein; (ii) a duly executed Schedule of Subscribers and Ginnie Mae Guaranty Agreement (the “Schedule”) incorporating this entire document by reference; and (iii) a Schedule of Pooled Mortgages. This Agreement is made by and between the Government National Mortgage Association, a corporate body organized and existing under the laws of the United States within the Department of Housing and Urban Development (“Ginnie Mae”) and the financial entity identified in the Schedule and approved by Ginnie Mae to issue the securities provided for in this Agreement (“Issuer”);

WHEREAS: Under section 306(g) and other related provisions of the National Housing Act, Ginnie Mae is duly authorized to guaranty the timely payment of principal of and interest on securities based on and backed by a pool composed of mortgages which are insured or guaranteed under the National Housing Act, Title V of the Housing Act of 1949, the Servicemen’s Readjustment Act of 1944, Chapter 37 of Title 38, United States Code or section 184 of the Housing and Community Development Act of 1992, and the full faith and credit of the United States is pledged to the payment of all amounts which may be required to be paid under any such guaranty by Ginnie Mae;

WHEREAS: The Schedule incorporates by reference both the terms and conditions contained herein and the Schedule of Pooled Mortgages; is executed by the Issuer and Ginnie Mae for each pool of mortgages securitized by the Issuer and guaranteed by Ginnie Mae; and sets forth a list of the initial Security Holders. The Schedule of Pooled Mortgages details the mortgages that make up the pool of mortgages to be securitized by the Issuer and guaranteed by Ginnie Mae;

WHEREAS: The Issuer has originated or otherwise acquired, and is the owner and holder of, all of the mortgages identified and described in a Schedule of Pooled Mortgages, which shall be appended to the Schedule and provided to Ginnie Mae in connection with the issuance of securities under this Agreement (the “Securities”);

WHEREAS: The Issuer has duly authorized the creation of a pool composed of all the aforesaid mortgages, and the issuance of the Securities to be based on and backed by such pool of mortgages and guaranteed by Ginnie Mae under section 306(g);

WHEREAS: Each of the parties to this Agreement is duly authorized to enter into and has duly authorized the execution of this Agreement, and all other acts have been performed to make the creation of the pool of mortgages effective and to make the Securities the valid, binding, and legal obligations and undertakings of the Issuer and of Ginnie Mae, in their respective capacities as provided in this Agreement;

NOW THEREFORE: The parties to this Agreement mutually agree as follows:

 

     
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ARTICLE I. GENERAL

Section 1.01 The transaction and arrangements provided for herein are identified in the records of the Issuer and Ginnie Mae by the mortgage-pool number submitted to Ginnie Mae on the Schedule executed by the parties. This Agreement is entered into for purposes of the issuance by the Issuer of the Securities and the guaranty thereof by Ginnie Mae, such issuance and guaranty being pursuant to the aforesaid section 306(g).

Section 1.02 Neither Ginnie Mae’s entry into this Agreement nor its operation of the mortgage-backed securities (“MBS”) program is intended to create any right of action on the part of any borrower-mortgagor or any other person or entity, except as expressly provided herein or in any other instrument duly executed by Ginnie Mae. Ginnie Mae assumes no liability to any person or entity on account of any act or omission of the Issuer or Ginnie Mae, except as expressly provided herein.

Section 1.03 The effective date of this Agreement and the aforesaid mortgage pool (“Effective Date”) shall be that date specified in the Schedule as the “Issue Date.” Ginnie Mae’s guaranty shall become effective on the date the ownership of the Securities is registered in the name of the Depository by Ginnie Mae’s transfer agent on the central registry of Security Holders maintained by the transfer agent.

Section 1.04 The Issuer shall pay a monthly guaranty fee to Ginnie Mae in the amount provided for in the Schedule.

Section 1.05 The terms defined in this section shall have the respective meanings stated for all purposes of this Agreement, and, unless the context indicates otherwise, references to any article, section or subsection shall mean a reference to an article, section or subsection of this Agreement:

 

  (a) Advance: The use of the Issuer’s own corporate funds, or funds specifically borrowed pursuant to a Ginnie Mae approved Pool Advance Agreement, to make a payment to Security Holders or to pay tax obligations, insurance premiums or other amounts due under the Mortgages when the funds on deposit in the Central P&I Custodial Account, the Principal and Interest Custodial Account, the Escrow Custodial Account or any other accounts related to the pooled Mortgages are insufficient to make the required payments.

 

  (b) Central P&I Custodial Account: A single principal and interest custodial account that the Issuer designates and maintains, in accordance with the Guide, as the principal and interest custodial account that the Depository, as Security Holder of book-entry Securities, is to debit each month for payments of principal and interest on such Securities and that Ginnie Mae’s central paying and transfer agent is to debit each month for the purpose of paying the guaranty fee to Ginnie Mae in connection with all of the Ginnie Mae I pools for which the Issuer is responsible. The Issuer may designate either the Principal and Interest Custodial Account or a separate principal and interest custodial account as the Central P&I Custodial Account.

 

  (c) Custodial Funds: All principal and interest collected on account of the Mortgages and/or the property securing the Mortgages and any other funds due to the Security Holder; any tax, insurance or other non-principal and interest funds collected for the benefit of the Mortgages or the property; and any unscheduled recoveries of principal.

 

     
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  (d) Defective Mortgage: A Mortgage (i) that cannot be insured or guaranteed by an agency of the Federal Government under a statute described in the first Whereas clause of this Agreement, (ii) that has been refused by the insuring or guaranteeing agency, (iii) for which such insurance or guaranty has been withdrawn, or (iv) that does not comply with the terms of the Securities.

 

  (e) Depository: The registered holder for book-entry Ginnie Mae I MBS, which shall be the Federal Reserve Bank of New York.

 

  (f) Escrow Custodial Account: An account that the Issuer maintains with a financial institution for the deposit of escrowed funds to be used to pay taxes, insurance premiums, and any other amounts due under the Mortgages.

 

  (g) Excess Funds: With respect to a monthly payment date for the Securities, any amount on deposit for a particular pool in a Principal and Interest Custodial Account that is in excess of the sum of the scheduled interest and recoveries of principal due in that month and unscheduled recoveries of principal, as defined in section 6.04(a), required to be passed through to Security Holders in that month.

 

  (h) Ginnie Mae Transferee: Any person or entity to whom Ginnie Mae transfers or assigns a Mortgage or any rights or benefits related to the Mortgage.

 

  (i) Guide: Ginnie Mae Mortgage-Backed Securities Guide, Ginnie Mae 5500.3, Rev. 1, as hereafter amended.

 

  (j) Mortgage: Any mortgage identified and described in the Schedule of Pooled Mortgages, whether submitted in hard copy or electronically. As used in this Agreement, the term “Mortgage” shall be construed to include a security instrument, together with the obligation secured thereby, the title evidence, and all other documents, instruments, and other papers pertaining thereto, and the transaction(s) to which they relate, and all claims, funds, payments, proceeds, recoveries, property, monies or assets related in any way thereto, including but not limited to any and all mortgage insurance or loan guaranty claim proceeds, hazard insurance proceeds, payments by borrowers, refunds, rents, foreclosures or sales proceeds, and escrowed items.

 

  (k) Principal and Interest Custodial Account: The non-interest bearing account that the Issuer maintains with a financial institution for the deposit of principal (including scheduled and unscheduled) and interest collected from mortgagors, or in connection with the related property, to be paid to Security Holders.

 

  (1) Reporting Cutoff Date: With respect to a monthly payment date for the Securities, a day, established by the Issuer or Ginnie Mae, between the 25th day of the prior month and the first day of the month of payment, inclusive.

 

  (m) Reporting Month: The interval between the prior month’s Reporting Cutoff Date and the current month’s Reporting Cutoff Date.

 

  (n) Security Holder: Any registered holder of Securities outstanding under this Agreement.

 

     
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Section 1.06 The Issuer hereby agrees to comply with all terms and conditions of the Guide. If any provisions of the Guide conflict with this Agreement, the provisions of this Agreement shall control.

Section 1.07 The Issuer hereby covenants and warrants that:

 

  (a) the Issuer is a corporation duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation; that the issuance of the securities, the performance by the Issuer of all provisions hereof and the consummation of the transactions contemplated hereby have been duly and validly authorized; that this Agreement evidences the valid, binding, and enforceable obligation of the Issuer; and that all requisite corporate action has been taken by the Issuer to make the provisions of this Agreement valid and binding upon the Issuer in accordance with its terms;

 

  (b) there are no actions, suits or proceedings pending (or, to the knowledge of the Issuer, threatened) against or affecting the Issuer or any Mortgage, which action, suit or proceeding if adversely determined, individually or in the aggregate, would affect adversely the Issuer’s ability to perform its obligations hereunder; and

 

  (c) the consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Issuer and will not result in the breach of any term or provision of the charter or by-laws of the Issuer or result in the breach of any term or provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any agreement or other instrument to which the Issuer or its property is subject, or result in the violation of any law, rule, regulation, order, judgment, or decree to which the Issuer or its property is subject.

Section 1.08 Ginnie Mae and its authorized representatives shall have the right, under this Agreement, in Ginnie Mae’s discretion, to examine, review and audit, during business hours or at such other times as might be reasonable under applicable circumstances, any and all of the books, records, or other information of the Issuer, any mortgage servicer, trustee, agent or other person bearing on the Issuer’s compliance with the requirements of the MBS program, including, without limitation, all Mortgage documents, Mortgage servicing records, Mortgage records and banking records for funds directly or indirectly related to the Mortgages or the Securities.

ARTICLE II. SECURITIES

Section 2.01 The Securities shall be in the aggregate original principal or face amount, shall bear the annual rate of interest, and shall have the final maturity date specified in the Schedule.

Section 2.02 The aggregate principal amount of Securities, together with interest thereon, shall be payable to the Security Holders in monthly installments. The installments shall commence by the 15th day of the month and year designated as the First Payment Date in the Schedule and shall continue on the 15th day of each month until payment in full of the aggregate principal amount and all interest accruing thereon at the rate of interest on the Securities; provided, however, that payments by electronic transfer shall be made in the manner and at the times provided in Section 6.01.

Section 2.03 Interest due on Securities each month shall be computed as one-twelfth of the annual rate of interest payable on the Securities multiplied by the unpaid principal balance of the Securities at the end of the prior month.

 

     
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Section 2.04 The Issuer represents that it has furnished to Ginnie Mae information required to prepare the Securities, in accordance with any applicable instructions and directions issued by Ginnie Mae. Ginnie Mae shall cause the preparation and release of all the Securities issued under this Agreement, whether issued to original subscribers or with respect to reissues, transfers, exchanges, or otherwise.

Section 2.05 Each Security shall be issued, registered, delivered, transferred, and exchanged in accordance with the requirements of the Guide.

Section 2.06 The original principal or face amount of the Securities, and reissues and exchanges thereof, shall be in denominations of not less than twenty-five thousand dollars ($25,000) and, if larger, in denominations divisible by one dollar ($1.00).

ARTICLE III. MORTGAGES

Section 3.01 The Issuer does hereby transfer, assign, set over, and otherwise convey to Ginnie Mae all the right, title, and interest of the Issuer in and to the Mortgages identified and described in the Schedule of Pooled Mortgages for the subject pool. Such transfer and assignment shall be effective as of the date and time of delivery (release) of the Securities by Ginnie Mae or its agent, and shall include all interest, principal and other payments made on or with respect to, or related in any way to, such Mortgages. This includes, but is not limited to, payments due on the Mortgages after the Issue Date of the Securities and all unscheduled recoveries of principal received on the Mortgages after the close of business on the day on which the original principal balance of the pool was determined.

Section 3.02 This Agreement may be recorded, at Ginnie Mae’s direction, in all appropriate public offices for real property records in all the counties or other comparable jurisdictions in which any and all of the properties covered by the aforesaid Mortgages are situated, and in any other appropriate public recording offices or elsewhere. Ginnie Mae at its option may direct that such recordation is to be effected by and at the expense of the Issuer.

Section 3.03 The Issuer hereby covenants and warrants that each of the Mortgages is eligible under section 306(g) of the National Housing Act and the Guide to back the Securities. The Issuer further covenants and warrants that it will take all actions necessary to ensure continued eligibility of the Mortgages.

Section 3.04 The Issuer hereby covenants and warrants that, as of the Effective Date:

 

  (a) all of the Mortgages are lien-free and, if obtained from other originators, have been paid for in full;

 

  (b) the aggregate outstanding principal balance owed on all the Mortgages is at least equal to the aggregate original principal amount of all the Securities;

 

  (c) the required payments of principal and interest due on all the Mortgages shall be sufficient and adequate for the timely payment of the principal and interest on all the Securities, all guaranty fees due to Ginnie Mae and all servicing fees due to the Issuer, as specified in the Guide; and

 

  (d) the final maturity date of all the Securities is sufficiently subsequent to the latest final maturity date scheduled under the terms and provisions of the Mortgages to allow timely payment of all such Securities.

 

     
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Section 3.05 The Issuer hereby covenants and warrants that it has delivered or will deliver and deposit with an eligible custodian institution appropriate documents evidencing and relating to the pooled Mortgages within the time frame required by the Guide. Such documents and such custodial requirements shall be those set forth in a custodial agreement in the form prescribed by Ginnie Mae. Such custodial agreement has been provided to Ginnie Mae, and its terms and conditions as they relate to Ginnie Mae and the Issuer are incorporated into and made a part of this Agreement by reference. The Schedule identifies the institution selected by the Issuer to serve as custodian for the documents relating to the Mortgage pool that is the subject of this Agreement.

Section 3.06 The Issuer hereby covenants and warrants that it shall replace any Defective Mortgage, within four (4) months after the Effective Date. If, after that time, any Defective Mortgages exist, then: (a) if such Defective Mortgages can be corrected or cured such that they no longer would be defective, the Issuer shall effect such correction or cure; or (b) if such Defective Mortgages cannot be so corrected or cured, the Issuer shall notify Ginnie Mae immediately, and if Ginnie Mae approves, the Issuer shall repurchase the Mortgages at one hundred percent (100%) of the outstanding balance (“Par”). Such correction or repurchase shall occur either 30 days from discovery or the final certification due date, as set forth in the Guide, whichever is earlier. Any delinquency or any default by the borrower occurring before or after the Effective Date in the payment of any Mortgage shall not be deemed a defect for purposes of this section.

Section 3.07 The Issuer hereby covenants and warrants that it has in its possession for each Mortgage evidence of a valid and enforceable, standard policy of insurance for fire and extended coverage, or comparable insurance coverage, in an amount equal to the greater of the unpaid balance of the Mortgage and the amount required by the insuring or guaranteeing agency, with loss-payable endorsements designating Issuer and its successors and assigns as payee, and that Issuer shall maintain such insurance in full force and effect for as long as the Mortgage remains in effect.

ARTICLE IV. SERVICING

Section 4.01 The Issuer shall:

 

  (a) timely foreclose or otherwise convert the ownership of properties securing the Mortgages that come into and continue in default, taking into account any loss mitigation requirements imposed by the agencies that are insuring or guaranteeing the Mortgages, or otherwise dispose of such Mortgages, with the purpose of liquidating such properties and Mortgages;

 

  (b) timely file, process, and receive the proceeds of mortgage insurance or guarantee claims under the laws of the United States, in conformance with and subject to all applicable rules, regulations, and comparable promulgations and issuances of the insuring or guaranteeing agency or instrumentality;

 

  (c) make all determinations and do and complete all transactions, matters, or things necessary, appropriate, incidental, or otherwise relating to any of the foregoing or to the ownership of the Mortgages; and

 

  (d) conform with the servicing standards, procedures, methods, and practices required by the applicable mortgage insurer or guarantor, and any applicable requirements contained in the Guide, and shall establish and maintain books, files, and accounting records in accordance with all of the foregoing.

 

     
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Section 4.02 The Issuer shall have the option to purchase at Par any Mortgage which has been in default for a continuous period of ninety (90) days or more. The Issuer must purchase at Par each Mortgage for which it receives a final claim settlement from the insuring or guarantying agency. These settlement funds must be paid to the Security Holders in accordance with section 6.04.

Section 4.03 Except as otherwise provided in this Agreement or in the Guide, the Issuer is hereby authorized and empowered to foreclose on any collateral securing the Mortgages, execute and deliver in its own name, or in the name of its nominee, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to all the Mortgages and with respect to the properties covered by all such Mortgages. Any such instrument shall be executed and delivered only in conformance with and subject to all applicable rules, regulations, and comparable promulgations and issuances of the applicable insuring or guaranteeing agency. The foregoing authority and power of the Issuer shall terminate and expire, and the Issuer shall discontinue the execution and delivery of all such instruments, on notification by Ginnie Mae to the effect that it is extinguishing all right, title, or other interest of the Issuer in the Mortgages pursuant to article X.

Section 4.04 The Issuer shall maintain, during the life of this Agreement, insurance, errors and omissions, fidelity bond and other coverage in the amount and form as required by and acceptable to Ginnie Mae.

Section 4.05 The Issuer shall be permitted to arrange for another entity to carry out any of the mortgage servicing and pool administration functions required by this Agreement only to the extent such subservicing is specifically authorized by the Guide and approved by Ginnie Mae.

Section 4.06 The Issuer may service the Ginnie Mae mortgage pools, mortgages and securities for which it has Issuer responsibility, as identified on the records of Ginnie Mae, only so long as the Issuer retains its status as an approved Ginnie Mae Issuer, as defined in the Guide. Once an Issuer is declared in default and its rights are extinguished by Ginnie Mae, that Issuer may no longer service any Ginnie Mae mortgage pools, mortgages or securities.

Section 4.07 In the event the Issuer determines that funds provided by a mortgagor and available in the Escrow Custodial Account are insufficient to meet a payment due for that mortgagor’s taxes, assessments, ground rents, hazard and mortgage insurance premiums, payments for rehabilitation or improvement expenses, the buydown portion of the Mortgage payment, or comparable items, the Issuer shall advance its own corporate funds for the purpose of making such payment.

Section 4.08 The Issuer shall establish and maintain accounting records, which shall be in accordance with the Guide and any applicable instructions and directions issued by Ginnie Mae, with respect to all Advances paid under sections 4.07 and/or 6.02, such records to be adequate to reflect: all such Advances made by the Issuer into the Central P&I Custodial Account, the Principal and Interest Custodial Account or any Escrow Custodial Account, payment directly to a taxing authority or insurance company or for any other payments required under the Mortgages; the use made of Advances for payments required on the Securities, including their allocation as between interest and principal on such Securities; the Mortgages with respect to which Advances are made; and the amount (including the allocation as between principal and interest) advanced on each such Mortgage, and recoveries and losses of Advances made, with respect to each Mortgage, including their allocation as between interest and principal owed on each Mortgage.

 

     
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ARTICLE V. BANK ACCOUNTS

Section 5.01 The Issuer shall establish and maintain a Central P&I Custodial Account with a commercial bank, a mutual savings bank, a savings and loan association, or a credit union, the deposits at which are insured by the Federal Government, and which meets any and all other requirements of Ginnie Mae. The Central P&I Custodial Account must be used exclusively for funds relating to Ginnie Mae MBS program mortgage pools and may be drawn on only by the Depository, the Issuer, Ginnie Mae and Ginnie Mae’s central paying and transfer agent. The Central P&I Custodial Account must be subject to a master agreement in the form prescribed by Ginnie Mae. In accordance with Section 6.01, the Issuer must make available in the Central P&I Custodial Account funds sufficient to enable the Depository to withdraw on a timely basis monthly payments of principal and interest payable to it as Security Holder of all book-entry Securities. The Issuer shall make withdrawals from the Central P&I Custodial Account only in accordance with Section 5.03. All of the foregoing shall be otherwise in accordance with the Guide and any applicable instructions and directions issued in writing by Ginnie Mae.

Section 5.02 With respect to all the Mortgages, the Issuer shall establish and maintain a Principal and Interest Custodial Account with a commercial bank, a mutual savings bank, a savings and loan association, or a credit union, the deposits at which are insured by the Federal Government, and which meets any and all other requirements of Ginnie Mae. The Principal and Interest Custodial Account must be used exclusively for funds relating to Ginnie Mae MBS program mortgage pools and may be drawn on only by the Issuer and/or by Ginnie Mae. The Principal and Interest Custodial Account must be subject to a master agreement in the form prescribed by Ginnie Mae. All principal and interest collected on account of the Mortgages and/or the property securing the Mortgages and any other funds due to the Security Holders at any time must be deposited and retained in the Principal and Interest Custodial Account until paid to Security Holders, transferred to the Central P&I Custodial Account or placed in a disbursement account in accordance with section 5.06. These items include, but are not limited to: monthly Mortgage payments; prepayments; mortgage or title insurance and guaranty claim settlement proceeds; hazard insurance or any condemnation proceeds not used to repair the collateral (if such funds are to be used to repair the collateral, they first must be deposited in the Escrow Custodial Account and may not be deposited in the Issuer’s corporate accounts); proceeds from foreclosure or repossession sales, and any payments received in lieu of foreclosure or repossession sales; proceeds from any sale, resale or transfer of Mortgages which are required hereunder or by the Guide to be passed through to the Security Holders; repayments of Excess Funds; Advances; and other unscheduled recoveries of principal as set forth in section 6.04. The Issuer shall make withdrawals only in accordance with section 5.03 below. All the foregoing shall be otherwise in accordance with the Guide and any applicable instructions and directions issued in writing by Ginnie Mae.

Section 5.03 (a) If the Central P&I Custodial Account and the Principal and Interest Custodial Account are separate accounts, then the Issuer may make withdrawals from the Central P&I Custodial Account only to remove any amounts that were not required to be deposited therein under this Agreement or the Guide.

(b) If a single account is used as the Central P&I Custodial Account and the Principal and Interest Custodial Account, then in addition to withdrawals to effect timely payment on the Securities, the Issuer may make withdrawals from the Principal and Interest Custodial Account but only to:

 

  (1) remit to Ginnie Mae the monthly guaranty fee;

 

  (2) reimburse itself for its previous Advances that were made in accordance with section 6.02, but only if: (i) all Excess Funds used to make Security Holder payments have been

 

     
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fully restored; (ii) the Issuer has maintained records showing the amount of each Advance attributed to a particular Mortgage; (iii) the funds used to reimburse the Issuer come from the payment related to the particular Mortgage on which Issuer made the Advance; (iv) all amounts due and payable to Security Holders have been paid to them (or made available for payment); and (v) the Issuer’s records properly demonstrate all of the foregoing.

 

  (3) utilize Excess Funds in accordance with section 6.02 hereof;

 

  (4) remove any amounts that were not required to be deposited therein under this Agreement or the Guide; or

 

  (5) pay itself the permitted servicing fee.

Section 5.04 In addition to the Central P&I Custodial Account and the Principal and Interest Custodial Account, the Issuer shall establish and maintain Escrow Custodial Account(s) with a commercial bank, a mutual savings bank, a savings and loan association, or a credit union the deposits at which are insured by the Federal Government, and which meets any and all other requirements of Ginnie Mae. Each Escrow Custodial Account must be used exclusively for funds relating to Ginnie Mae MBS program mortgage pools and may be drawn on only by the Issuer, the approved subservicer and/or by Ginnie Mae. Each Escrow Custodial Account must be subject to a master agreement in the form prescribed by Ginnie Mae. All collections of payments for taxes, assessments, ground rents, hazard and mortgage insurance premiums, payments for rehabilitation or improvement expenses, the buydown portion of the Mortgage payment and all comparable items must be deposited and retained in the Escrow Custodial Account on account of the Mortgages except as otherwise required by the appropriate insuring or guaranteeing agency.

Section 5.05 Withdrawals from the Escrow Custodial Account(s) may be made only to:

 

  (a) effect timely payment of the following items related to the Mortgages pooled under this Agreement: mortgagors’ taxes, assessments, ground rents, hazard and mortgage insurance premiums, payments for expenses related to the property covered by the Mortgages, such as improvement, protection or repair, the buydown portion of the Mortgage payment, or comparable items; and

 

  (b) reimburse itself for its previous Advances, but only if: (i) all Excess Funds used to make Security Holder payments have been fully restored; (ii) the Issuer has maintained records showing the amount of each Advance attributed to a particular Mortgage; (iii) the funds used to reimburse the Issuer come from the payment related to the particular Mortgage on which Issuer made the Advance; and (iv) the Issuer’s records properly demonstrate all of the foregoing.

Section 5.06 The use of separate “collection accounts” or “disbursement accounts” for the receipt and payment of funds is permitted. Collection accounts must be cleared daily, unless the Issuer uses ACH transfer, in which case the accounts must be cleared every 48 hours. In any event, immediately upon being cleared or removed from the collection account, all funds covered by this article V must be deposited into the Principal and Interest Custodial Account or an Escrow Custodial Account, as appropriate, pursuant to sections 5.02 or 5.04. Disbursement accounts must be subject to master agreements in the form prescribed by Ginnie Mae. The disbursement account for principal and interest funds must be used exclusively for funds relating to Ginnie Mae MBS program securities.

 

     
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ARTICLE VI. PAYMENT TO SECURITY HOLDERS

Section 6.01 The Issuer shall remit to the Security Holders of certificated Securities and deposit to the Central P&I Custodial Account funds sufficient to pay the Depository, as Security Holder of all book-entry Securities, all payments required to be made under the terms and conditions of all Securities issued and outstanding under this Agreement and all payments required under this Agreement and the Guide. All such payments must be made in a timely manner such that, with respect to the payment for any given month, the Security Holders of certificated Securities will receive payment by the 15th day of each month, with final payment to be only on receipt of each certificated Security by the Issuer. Funds in an amount equal to the monthly payments of principal and interest due on all book-entry Securities must be deposited or made available in the Central P&I Custodial Account prior to 7:00 a.m. Eastern Time on the 15th day of each month or, if the 15th day of the month is not a business day, prior to 7:00 a.m. Eastern Time on the first business day following the 15th day of the month.

Section 6.02 (a) The Issuer shall establish and maintain such controls and procedures to enable it to accurately project in advance whether or not it will have available sufficient funds to make payments required under the Securities in a timely manner.

(b) If the Issuer does not have available sufficient funds to make a required monthly payment due to the Security Holders in a timely manner; the Issuer either shall make Advances or may utilize Excess Funds to meet such payment. If the Issuer is not able to make the full payment by these means, it shall submit a timely notice to Ginnie Mae, before payment to the Security Holder is due, requesting Ginnie Mae to advance funds sufficient to make the full monthly payment to Security Holders. Any such notice shall be a basis for default under section 10.01(a)(2).

Section 6.03 Each monthly payment on the Securities shall be comprised of (a) the interest due pursuant to section 2.03, (b) scheduled payments of principal due on the Mortgages on the first day of the month, or in the case of Securities backed by internal reserve pools on the first day of the month immediately preceding the month, in which the payment on the Securities is due, and (c) unscheduled recoveries of principal of the Mortgages as defined in section 6.04.

Section 6.04 (a) With respect to a monthly payment on the Securities, unscheduled recoveries of principal are payments received by the Issuer in the Reporting Month preceding the monthly payment on the Securities, and are any and all proceeds received or due in connection with the Mortgages, or the property securing the Mortgages, other than scheduled payments of interest and recoveries of principal and miscellaneous collections (defined in (c), below). Unscheduled recoveries of principal include, but are not limited to, the following items in their entirety:

 

  (1) prepayments (excluding scheduled recoveries of principal paid in advance of their due dates, which must be passed through to the Securities Holders on their scheduled due dates);

 

  (2) mortgage or title insurance and guaranty claim settlement proceeds;

 

  (3) hazard insurance and condemnation proceeds, to the extent not used to repair the collateral;

 

  (4) proceeds from foreclosure sales or, if applicable, repossession sales and any payments received in lieu of foreclosure or repossession of the collateral;

 

     
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  (5) proceeds from any sale, resale, transfer or disposal of a Mortgage or any interest in a Mortgage (this does not include the authorized transfers of Issuer responsibility or the pledging of servicing, if those transactions comply with requirements in the Guide);

 

  (6) any principal amount of a Mortgage finally discharged by a bankruptcy court;

 

  (7) payment from the Issuer’s own funds as required under this section 6.04; and

 

  (8) all other payments or proceeds that include any amounts reflecting the recovery of principal due on a Mortgage.

(b) Unscheduled recoveries of principal, including but not limited to all of the items in section 6.04(a), must be passed through to the Security Holders in their entirety, as set forth above, so long as there is an outstanding principal balance on the Securities. Advances or other payments due or authorized under the Mortgages previously made by the Issuer may not be deducted or recovered from these funds until the Security Holders have been paid in full. Any deduction from an unscheduled recovery of principal made by third parties must be replaced in its entirety by the Issuer prior to payment to the Security Holders.

(c) Miscellaneous collections shall include, to the extent that they are paid pursuant to a Mortgage, only:

 

  (1) mortgage insurance premiums;

 

  (2) taxes;

 

  (3) hazard insurance premium payments;

 

  (4) special charges related to servicing;

 

  (5) late charges;

 

  (6) ground rents;

 

  (7) special assessments;

 

  (8) water rents;

 

  (9) 203(k) funds;

 

  (10) buydown funds;

 

  (11) attorney’s fees; and

 

  (12) any funds to repay the Issuer’s expenditures under the terms of the Mortgage to complete construction, pay for security services or prevent waste.

 

     
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  (d) To the extent that the remaining principal balance of a Mortgage has not been recovered by the Issuer at the earliest of: (1) final payment of the mortgage insurance or guaranty claim proceeds, or other final disposition of the claim by the insuring or guarantying Federal agency; (2) the withdrawal of a Defective Mortgage from the pool; (3) any other liquidation or disposition of the Mortgage or the property secured thereby; or (4) any other act or transaction that has the effect of causing the Mortgage or payments or recoveries related to the principal of the Mortgage to no longer be available as backing for the Securities related to that Mortgage, the monthly payment following the earliest month in which an action described in (1), (2), (3) and (4) is taken shall include an amount, to be paid from the Issuer’s own funds, which will reduce the Mortgage to a zero balance and which will reduce to zero the portion of the outstanding principal balance of the Securities attributable to that Mortgage.

ARTICLE VII. REPORTS

Section 7.01 The Issuer shall furnish to Ginnie Mae, during the life of this Agreement, such periodic, special, or other reports or information, whether or not provided for herein, as Ginnie Mae in its discretion requires. All such reports or information shall be as provided by and in accordance with applicable instructions and directions issued by Ginnie Mae.

Section 7.02 Without limitation, the Issuer shall furnish to Ginnie Mae, in the manner prescribed by Ginnie Mae, the following reports or other information:

 

  (a) Reports such as shall be required in accordance with applicable instructions and directions issued by Ginnie Mae with respect to any or all of the Mortgages, whether or not still subject hereto, or with respect to any or all of the mortgagors or their successors in interest;

 

  (b) Copies of the annual audited financial statements of the Issuer, and other financial reports as may be requested by Ginnie Mae. Such audited financial statements are to be received by Ginnie Mae no later than 90 days after the end of the Issuer’s fiscal year; and

 

  (c) Notice in advance of: (1) any contemplated changes affecting the business status of the Issuer, including, but not limited to any merger, consolidation, sale or other transfer of any part or all of its business, change in name, or sanctions by any government regulator or government sponsored enterprise; (2) any change in ownership or control of the Issuer; and (3) any voluntary or involuntary action or proceeding under the Federal bankruptcy statutes or any comparable Federal or State law, whether for purposes of bankruptcy, reorganization, winding up the affairs of the Issuer, or otherwise, or for appointment of a receiver, liquidator, trustee, or other such assignee of transferee, for any of such purposes.

Section 7.03 The Issuer shall give Ginnie Mae notice of any impending or actual default by the Issuer, under the terms and provisions of article X, and, in such notice, shall identify the event or events of default and set forth such corrective, curative, or other action as the Issuer shall contemplate and plan with the agreement of Ginnie Mae, or shall state that no such action is planned.

ARTICLE VIII. GUARANTY

Section 8.01 By and as set forth in its guaranty appearing on or included in the terms of each of the Securities, Ginnie Mae, pursuant to section 306(g) of the National Housing Act, guarantees the

 

     
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timely payment of principal of and interest on the Securities, subject only to the terms and conditions of such Securities, and the full faith and credit of the United States is pledged to the payment of all amounts required to be paid under each such guaranty.

Section 8.02 Ginnie Mae covenants and warrants that in any legal action or proceeding, it shall not contest or defend against the timely payment of any amount provided for in, and unpaid on, any Security duly and validly issued under this Agreement, provided that, such payment is sought and claimed by or on behalf of a bona fide purchaser and registered owner of such Security, without actual notice at the time of purchase of any basis or grounds for contest or defense by Ginnie Mae against such payment.

Section 8.03 Ginnie Mae covenants and warrants that under section 306(d) of the National Housing Act, it has full power and authority to borrow from the Secretary of the Treasury, and the Secretary of the Treasury is therein authorized to lend to Ginnie Mae, any amounts necessary and required to enable Ginnie Mae to meet and comply with the terms and provisions of its guaranty of the Securities, and that it shall so borrow, and the Secretary of the Treasury has agreed to so lend, any amounts necessary and required.

Section 8.04 This article VIII shall inure to the benefit and advantage of all the Security Holders, subject to and in accordance with the terms and provisions set forth herein, provided that nothing herein shall derogate or detract from the rights of such Security Holders as set forth in or provided for in connection with such Securities.

Section 8.05 If Ginnie Mae makes any payment to Security Holders under its guaranty, it shall be subrogated fully to the rights satisfied by such payment.

ARTICLE IX. LOSSES

Section 9.01 The Securities shall not constitute any liability of nor evidence any recourse against the Issuer or any of its assets, except with respect to or as against the Mortgages on which they are based and backed, including all interest, principal, and other payments or recoveries due or made on such Mortgages on and after the date of this Agreement; provided , however , that the Issuer shall be liable to Ginnie Mae for: (a) restitution, from the Issuer’s own funds, for the Issuer’s use of any funds in violation of this Agreement, including but not limited to any “unscheduled recoveries of principal” that the Issuer fails to handle, apply and remit in accordance with this Agreement, any Excess Funds withdrawn and not replaced from the pool Principal and Interest Custodial Account(s), or any other funds that the Issuer improperly handles, fails to place in, or removes from, the Principal and Interest Custodial Account, the Escrow Custodial Account, or any other escrow account maintained or required to be maintained with respect to the Mortgages; and (b) all loss, damage, cost, expense, and liability suffered by Ginnie Mae as a result of the Issuer’s breach of, failure to carry out, or default under, this Agreement.

Section 9.02 The Issuer’s liability to Ginnie Mae shall survive any expiration or termination of this Agreement.

ARTICLE X. DEFAULT

Section 10.01 (a) Immediate Default. An event of default by the Issuer occurs if Ginnie Mae, in its sole discretion, determines that any of the following acts or conditions have occurred or exist:

 

  (1)

Any failure by the Issuer to remit to the Security Holders of certificated Securities, or to deposit in the Central P&I Custodial Account with respect to all book-entry Securities funds sufficient to make, any payment required to be made under the terms and

 

     
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conditions of this Agreement, the Guide or the Securities issued and outstanding under this Agreement, as of the due date of such payment;

 

  (2) Any notice by the Issuer to Ginnie Mae for an advance of funds in order to make (or to make available in the Central P&I Custodial Account) Security Holder payments, or the subsequent making of any part or all of such advance by Ginnie Mae;

 

  (3) Any other act or omission by an Issuer that causes the required payment to the Security Holders not to be made timely;

 

  (4) Any notification to Ginnie Mae by the Issuer that it will not meet, or is unlikely to meet, its payment obligations in a timely manner;

 

  (5) Any impending or actual insolvency of the Issuer;

 

  (6) Any change with respect to the business status of the Issuer, whether or not subject to the reporting requirements of section 7.02, which materially adversely affects Ginnie Mae under this Agreement, or which materially adversely affects the ability of the Issuer to carry out its obligations hereunder;

 

  (7) Any unauthorized use of Custodial Funds;

 

  (8) Any withdrawal or suspension of the Issuer’s Federal Housing Administration approved status or of Federal National Mortgage Association or Federal Home Loan Mortgage Corporation approved seller/servicer status; and

 

  (9) Any submission of false reports, statements or data or any act of dishonesty or breach of fiduciary duty to Ginnie Mae related to the MBS program.

(b) Thirty-day Default. Any failure of the Issuer to observe or comply with any of the terms and provisions of this Agreement or the Guide, or any breach of any warranty set forth in this Agreement, other than an event of default under section 10.01(a), shall constitute an event of default if it has not been remedied or corrected to Ginnie Mae’s satisfaction within thirty (30) days of notification by Ginnie Mae to the Issuer. Ginnie Mae reserves the right in its discretion to declare an immediate default if the Issuer receives three or more notices of failure to comply under this subsection (b).

Section 10.02 An event of default under this Agreement shall constitute an event of default under each and every other Guaranty Agreement between the Issuer and Ginnie Mae. An event of default under any other Guaranty Agreement between the Issuer and Ginnie Mae shall constitute an event of default under this Agreement.

Section 10.03 On the occurrence or development of any event of default, Ginnie Mae may, in its sole discretion, but is not required to, confer and negotiate with the Issuer with respect to remedying and correcting the default. Any such arrangements mutually agreed upon shall be placed in written contractual form, and shall be supplementary to this Agreement.

Section 10.04 On the occurrence or development of any event of default, unless arrangements under section 10.03 above are mutually agreed upon by and between Ginnie Mae and the Issuer and placed in written contractual form duly executed by Ginnie Mae, Ginnie Mae may, by letter directed to the Issuer, pursuant to section 306(g) of the National Housing Act, automatically effect and complete the extinguishment of any redemption, equitable, legal, or other right, title, or interest of the Issuer in the

 

     
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Mortgages. The Mortgages, together with all accounts, books and all other hard copy or electronic records related to the Mortgages or the Securities, automatically shall become the absolute property of Ginnie Mae, subject only to unsatisfied rights of the Security Holders. Upon such extinguishment, the Issuer automatically forfeits, waives and releases any and all rights to seek recovery of or reimbursement for any property or monies related in any way to the Mortgages (including but not limited to undisbursed Mortgage proceeds or Advances that the Issuer made or makes) that the Issuer might otherwise have recovered from any person or entity.

Section 10.05 Immediately upon the issuance by Ginnie Mae of a letter of extinguishment to the Issuer, all authority and power of the Issuer under this Agreement, with respect to the Securities, the Mortgages and otherwise, shall automatically terminate and expire. Upon such extinguishment, the Issuer shall have no further right to service the Mortgages, pools and Securities, shall have no right to any income related to the Mortgages, pools or the Securities and shall have no right to share in the proceeds of any sale or transfer of rights or interests related to them.

Section 10.06 Immediately upon the issuance by Ginnie Mae of a letter of extinguishment to the Issuer, the Issuer shall automatically give up and forfeit, and hereby releases to Ginnie Mae, all of its right, title, and interest in and to funds then or thereafter placed in the Central P&I Custodial Account, the Principal and Interest Custodial Accounts, all Escrow Custodial Accounts, and any other accounts related to the Mortgages, and any other claims funds, proceeds, recoveries, property, monies or assets related in any way to the Mortgages, including but not limited to any and all mortgage insurance or loan guaranty claim proceeds, hazard insurance proceeds, payments by borrowers, refunds, rents, foreclosure or sales proceeds, and escrowed items; FURTHER, the authority of the Issuer to make withdrawals against the Central P&I Custodial Account, the Principal and Interest Custodial Account, all Escrow Custodial Accounts, and any other accounts related to the Mortgages or in which any funds pertaining to the Mortgages are kept shall be deemed to have terminated and expired; AND FURTHER, the Issuer shall be deemed to have forfeited and waived any and all rights to recovery or reimbursement, from any source whatsoever, for any Advances (under section 5.03(b) or otherwise), profits, or expenditures related to the Securities or the Mortgages.

Section 10.07 On and after the time Ginnie Mae issues a letter of extinguishment to the Issuer, the Issuer shall continue to render Ginnie Mae the fullest assistance practicable in furtherance of the orderly and due removal of the Mortgage from the Issuer. Such assistance may include, at Ginnie Mae’s sole discretion, use of the Issuer’s physical facilities, Issuer’s computers and servicing platform and any other facilities that Ginnie Mae, in its sole discretion, determines necessary to the orderly transfer of the Mortgages backing Ginnie Mae securities. Ginnie Mae will reimburse the Issuer reasonable operating costs, as determined by Ginnie Mae, for the use of the Issuer’s facilities and equipment during the transfer process. Issuer shall not object to its employees cooperating with Ginnie Mae or its subservicer. Issuer shall execute, at Ginnie Mae’s direction, powers of attorney to facilitate the orderly transfer of the portfolio, and the continuation otherwise of this Agreement and the transactions and arrangements set forth and provided herein. This obligation of the Issuer shall survive any termination of this Agreement.

Section 10.08 Immediately upon the issuance by Ginnie Mae of a letter of extinguishment to the Issuer, all authority and power of the Issuer under this Agreement, with respect to the Securities, the Mortgages or otherwise, shall pass to and be vested in Ginnie Mae, and Ginnie Mae shall succeed to all the rights and benefits of the Issuer in its capacity under this Agreement and the transaction and arrangement set forth or provided herein. Ginnie Mae is hereby authorized and empowered to execute and deliver, on behalf of the Issuer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things, necessary or appropriate to effect the

 

     
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purposes of the letter of extinguishment, whether to complete the transfer and endorsement or assignment of the Mortgages, to service the outstanding Securities and the underlying Mortgages, or otherwise.

Section 10.09 Notwithstanding Ginnie Mae’s guaranty obligations to Security Holders as set forth in article VIII or a provision in the Mortgage or in any other instrument, and notwithstanding any assignment or transfer to Ginnie Mae or any Ginnie Mae Transferee of the Mortgage or any rights and benefits of the Issuer, or Ginnie Mae’s or any Ginnie Mae Transferee’s succession to such matters, under no circumstances shall Ginnie Mae or any Ginnie Mae Transferee be deemed to assume any liability whatsoever for any breach, act or omission committed by the Issuer. The Issuer shall remain liable for all such breaches, acts or omissions. The obligations of the Issuer set forth in this section shall survive any expiration or termination of this Agreement.

Section 10.10 Notwithstanding the issuance of a letter of extinguishment to the Issuer, the custodial agreement identified in section 3.05, and any other comparable contract by and between the Issuer and any third party with respect to this Agreement, shall continue in full force and effect, unless and until terminated by Ginnie Mae in its sole discretion, modified only by the removal of the Issuer and substitution of Ginnie Mae as provided for in this article. Ginnie Mae shall have full discretion in determining whether and when, upon issuance of a letter of extinguishment, such contracts with any third parties are to be terminated.

ARTICLE XI. MISCELLANEOUS

Section 11.01 This Agreement shall remain in effect until all terms and conditions contained herein are satisfied.

Section 11.02 Any notice, demand, notification, letter, letter of extinguishment, approval, authorization, directive or request arising under this Agreement, or required by the terms and provisions hereof or pursuant to any requirements of law, shall be in writing and may be served in person, by wire or facsimile transmission, by overnight courier service for next day delivery or by mail by depositing the same in any post office, substation, or letter box, enclosed in an envelope, postage prepaid, addressed to the party to whom such notice, demand, notification, letter, letter of extinguishment, approval, authorization, directive or request is directed, at the last known address of such party.

Section 11.03 Subject to the provisions of article X above, this Agreement may not be voluntarily assigned or otherwise transferred, in whole or in part, by either of the parties hereto without the written consent of the other, except by or on behalf of Ginnie Mae to any other agency or instrumentality within the Executive Branch of the Government of the United States assuming all the responsibilities, duties, and liabilities of Ginnie Mae hereunder. If and when assigned or otherwise transferred in accordance with this section, this Agreement and all its terms and provisions shall inure to the benefit of and shall be binding upon the Issuer and its successors and assigns, and the assignees or transferees of Ginnie Mae.

Section 11.04 This Agreement may be amended from time to time by the Issuer and Ginnie Mae, by mutual agreement and consent, in order to facilitate the observance and fulfillment of the purposes of section 306(g) of the National Housing Act and of this Agreement, provided that, no such amendment shall adversely affect the rights of the Security Holders, such amendments to include, without limitation, any to effect and complete the succession of successors in the capacities of the parties hereto, any to add new terms and provisions for the advantage, benefit, or protection of the Security Holders, or any to remedy and correct any ambiguity or vagueness in the terms and provisions hereof. To be effective, any such amendment must be in writing and be signed by the Issuer and Ginnie Mae.

 

     
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Section 11.05 Ginnie Mae reserves the right to waive any of the requirements contained in this Agreement. Any such waiver must be in writing.

Section 11.06 The parties covenant and warrant that, should the Issuer receive FHA debentures in settlement of any default on a Mortgage pursuant to the terms of the FHA insurance commitment, the Issuer shall immediately tender such debentures to Ginnie Mae and Ginnie Mae shall immediately purchase such debentures from the Issuer for cash at Par.

Section 11.07 The Issuer shall comply with any applicable rules, regulations, and orders of general applicability issued under Title VI of the Civil Rights Act of 1964; with Executive Order 11063, Equal Opportunity in Housing, issued by the President of the United States on November 20, 1962; and with the Fair Housing Law of 1968, in accordance with applicable rules and regulations of the Federal Housing Administration. Moreover, this section incorporates by reference section 202 of Executive Order 11246, Equal Employment Opportunity, issued by the President of the United States on September 24, 1965, and amended on October 13, 1967. The Issuer is required to comply with the implementing rules and regulations of the Department of Labor (41 C.F.R. Part 60-1) and the Department of Housing and Urban Development (24 C.F.R. Part 130). For purposes of the Executive Order 11246, this Agreement is a Government contract.

Section 11.08 Except as expressly provided in article VIII, Ginnie Mae assumes no liability to any person or entity for any act or omission of the Issuer.

Section 11.09 The rule of construction that agreements are to be construed against the drafter shall not be applied in construing this Agreement.

Section 11.10 Whenever in this Agreement Ginnie Mae may or can take or refrain from taking an action, such decision to act or refrain from acting shall be in Ginnie Mae’s sole discretion.

 

     
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APPENDIX III-23

GUARANTY AGREEMENT

GINNIE MAE II

SINGLE-FAMILY (LEVEL PAYMENT)

MORTGAGE-BACKED SECURITIES

THE GUARANTY AGREEMENT (“Agreement”) is composed of (i) the terms and conditions contained herein; (ii) a duly executed Schedule of Subscribers and Ginnie Mae Guaranty Agreement (the “Schedule”) incorporating this entire document by reference; and (iii) a Schedule of Pooled Mortgages. This Agreement is made by and between the Government National Mortgage Association, a corporate body organized and existing under the laws of the United States within the Department of Housing and Urban Development (“Ginnie Mae”) and the financial entity identified in the Schedule and approved by Ginnie Mae to issue the securities provided for in this Agreement (“Issuer”);

WHEREAS: Under section 306(g) and other related provisions of the National Housing Act, Ginnie Mae is duly authorized to guaranty the timely payment of principal of and interest on securities based on and backed by a pool composed of mortgages which are insured or guaranteed under the National Housing Act, Title V of the Housing Act of 1949, the Servicemen’s Readjustment Act of 1944, Chapter 37 of Title 38, United States Code or section 184 of the Housing and Community Development Act of 1992, and the full faith and credit of the United States is pledged to the payment of all amounts which may be required to be paid under any such guaranty by Ginnie Mae;

WHEREAS: The Schedule incorporates by reference both the terms and conditions contained herein and the Schedule of Pooled Mortgages; is executed by the Issuer and Ginnie Mae for each pool or loan package of mortgages securitized by the Issuer and guaranteed by Ginnie Mae; and sets forth a list of the initial Security Holders. The Schedule of Pooled Mortgages details the mortgages that make up the pool or loan package of mortgages to be securitized by the Issuer and guaranteed by Ginnie Mae;

WHEREAS: The Issuer has originated or otherwise acquired, and is the owner and holder of, all of the mortgages identified and described in a Schedule of Pooled Mortgages, which shall be appended to the Schedule and provided to Ginnie Mae in connection with the issuance of securities under this Agreement (the “Securities”);

WHEREAS: The Issuer has duly authorized the creation of a pool or loan package composed of all the aforesaid mortgages, and the issuance of the Securities to be based on and backed by such pool or loan package of mortgages and guaranteed by Ginnie Mae under section 306(g);

WHEREAS: Each of the parties to this Agreement is duly authorized to enter into and has duly authorized the execution of this Agreement, and all other acts have been performed to make the creation of the pool or loan package of mortgages effective and to make the Securities the valid, binding, and legal obligations and undertakings of the Issuer and of Ginnie Mae, in their respective capacities as provided in this Agreement;

NOW THEREFORE: The parties to this Agreement mutually agree as follows:

 

     
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ARTICLE I. GENERAL

Section 1.01. The transaction and arrangements provided for herein are identified in the records of the Issuer and Ginnie Mae by the mortgage-pool or loan package number submitted to Ginnie Mae on the Schedule executed by the parties. This Agreement is entered into for purposes of the issuance by the Issuer of the Securities and the guaranty thereof by Ginnie Mae, such issuance and guaranty being pursuant to the aforesaid section 306(g).

Section 1.02. Neither Ginnie Mae’s entry into this Agreement nor its operation of the mortgage-backed securities (“MBS”) program is intended to create any right of action on the part of any borrower-mortgagor or any other person or entity, except as expressly provided herein or in any other instrument duly executed by Ginnie Mae. Ginnie Mae assumes no liability to any person or entity on account of any act or omission of the Issuer or Ginnie Mae, except as expressly provided herein.

Section 1.03. The effective date of this Agreement and the aforesaid mortgage pool or loan package (“Effective Date”) shall be that date specified in the Schedule as the “Issue Date.” Ginnie Mae’s guaranty shall become effective on the date the ownership of the Securities is registered in the name of the Depository by Ginnie Mae’s transfer agent on the central registry of Security Holders maintained by the transfer agent.

Section 1.04. The Issuer shall pay a monthly guaranty fee to Ginnie Mae in the amount provided for in the Schedule.

Section 1.05. The terms defined in this section shall have the respective meanings stated for all purposes of this Agreement, and, unless the context indicates otherwise, references to any article, section or subsection shall mean a reference to an article, section or subsection of this Agreement:

 

  (a) Advance: The use of the Issuer’s own corporate funds, or funds specifically borrowed pursuant to a Ginnie Mae approved Pool Advance Agreement, to enable the CPTA to make a payment to Security Holders or to pay tax obligations, insurance premiums or other amounts due under the Mortgages when the funds on deposit in the Central P&I Custodial Account, the Principal and Interest Custodial Account, the Escrow Custodial Account or any other accounts related to the pooled Mortgages are insufficient to make the required payments.

 

  (b) Central P&I Custodial Account: A single principal and interest custodial account that the Issuer designates and maintains as the principal and interest custodial account that the CPTA is to debit each month for the purpose of paying principal and interest to Security Holders and the guaranty fee to Ginnie Mae in connection with all of the Ginnie Mae II pools and loan packages for which the Issuer is responsible. The Issuer may designate either the Principal and Interest Custodial Account or a separate principal and interest custodial account as the Central P&I Custodial Account.

 

  (c) CPTA: The institution that Ginnie Mae employs to act on its behalf to debit Issuer’s Central P&I Custodial Account, to pay Ginnie Mae II Security Holders, to collect Ginnie Mae guaranty fees, and to perform other duties with respect to Ginnie Mae MBS.

 

     
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  (d) Custodial Funds: All principal and interest collected on account of the Mortgages and/or the property securing the Mortgages and any other funds due to the Security Holder; any tax, insurance or other non-principal and interest funds collected for the benefit of the Mortgages or the property; and any unscheduled recoveries of principal.

 

  (e) Defective Mortgage: A Mortgage (i) that cannot be insured or guaranteed by an agency of the Federal Government under a statute described in the first Whereas clause of this Agreement, (ii) that has been refused by the insuring or guaranteeing agency, (iii) for which such insurance or guaranty has been withdrawn, (iv) for which, in the case of a Mortgage insured or to be insured under Section 257 of the National Housing Act, FHA is prohibited from paying insurance benefits, whether or not the mortgage is insured, or (v) that does not comply with the terms of the Securities.

 

  (f) Escrow Custodial Account: An account that the Issuer maintains with a financial institution for the deposit of escrowed funds to be used to pay taxes, insurance premiums, and any other amounts due under the Mortgages.

 

  (g) Excess Funds: With respect to a monthly payment date for the Securities, any amount on deposit for a particular pool or loan package in a Principal and Interest Custodial Account that is in excess of the sum of the scheduled interest and recoveries of principal due in that month and unscheduled recoveries of principal, as defined in section 6.04(a), required to be passed through to Security Holders in that month.

 

  (h) Ginnie Mae Transferee: Any person or entity to whom Ginnie Mae transfers or assigns a Mortgage or any rights or benefits related to the Mortgage.

 

  (i) Guide: Ginnie Mae Mortgage-Backed Securities Guide, Ginnie Mae 5500.3, Rev. 1, as hereafter amended.

 

  (j) Mortgage: Any mortgage identified and described in the Schedule of Pooled Mortgages, whether submitted in hard copy or electronically. As used in this Agreement, the term “Mortgage” shall be construed to include a security instrument, together with the obligation secured thereby, the title evidence, and all other documents, instruments, and other papers pertaining thereto, and the transaction(s) to which they relate, and all claims, funds, payments, proceeds, recoveries, property, monies or assets related in any way thereto, including but not limited to any and all mortgage insurance or loan guaranty claim proceeds, hazard insurance proceeds, payments by borrowers, refunds, rents, foreclosures or sales proceeds, and escrowed items.

 

  (k) Principal and Interest Custodial Account: The non-interest bearing account that the Issuer maintains with a financial institution for the deposit of principal (including scheduled and unscheduled) and interest collected from mortgagors, or in connection with the related property, to be made available to the CPTA for payment to Security Holders.

 

  (l) Reporting Cutoff Date: With respect to a monthly payment date for the Securities, a day, established by the Issuer or Ginnie Mae, between the 25th day of the prior month and the first day of the month of payment, inclusive.

 

  (m) Reporting Month: The interval between the prior month’s Reporting Cutoff Date and the current month’s Reporting Cutoff Date.

 

     
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  (n) Security Holder: Any registered holder of Securities outstanding under this Agreement.

Section 1.06. The Issuer hereby agrees to comply with all terms and conditions of the Guide. If any provisions of the Guide conflict with this Agreement, the provisions of this Agreement shall control.

Section 1.07. The Issuer hereby covenants and warrants that:

 

  (a) the Issuer is a corporation duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation; that the issuance of the securities, the performance by the Issuer of all provisions hereof and the consummation of the transactions contemplated hereby have been duly and validly authorized; that this Agreement evidences the valid, binding, and enforceable obligation of the Issuer; and that all requisite corporate action has been taken by the Issuer to make the provisions of this Agreement valid and binding upon the Issuer in accordance with its terms;

 

  (b) there are no actions, suits or proceedings pending (or, to the knowledge of the Issuer, threatened) against or affecting the Issuer or any Mortgage, which action, suit or proceeding if adversely determined, individually or in the aggregate, would affect adversely the Issuer’s ability to perform its obligations hereunder; and

 

  (c) the consummation of the transactions contemplated by this Agreement are in the ordinary course of business of the Issuer and will not result in the breach of any term or provision of the charter or by-laws of the Issuer or result in the breach of any term or provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any agreement or other instrument to which the Issuer or its property is subject, or result in the violation of any law, rule, regulation, order, judgment, or decree to which the Issuer or its property is subject.

Section 1.08. Ginnie Mae and its authorized representatives shall have the right, under this Agreement, in Ginnie Mae’s discretion, to examine, review and audit, during business hours or at such other times as might be reasonable under applicable circumstances, any and all of the books, records, or other information of the Issuer, any mortgage servicer, trustee, agent or other person bearing on the Issuer’s compliance with the requirements of the MBS program, including, without limitation, all Mortgage documents, Mortgage servicing records, Mortgage records and banking records for funds directly or indirectly related to the Mortgages or the Securities.

ARTICLE II. SECURITIES

Section 2.01. The Securities shall be in the aggregate original principal or face amount, shall bear the annual rate of interest, and shall have the final maturity date specified in the Schedule.

Section 2.02. The aggregate principal amount of Securities, together with interest thereon, shall be payable to the Security Holders in monthly installments. The installments shall commence by the 20th day of the month and year designated as the First Payment Date in the Schedule and shall continue on the 20th day of each month until payment in full of the aggregate principal amount and all interest accruing thereon at the rate of interest provided for in the Securities; provided, however, that, in the case of book-entry Securities, payment shall be made on the business day next following the 20th day of a month if such 20th day is not a business day.

 

     
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Section 2.03. Interest due on Securities each month shall be computed as one-twelfth of the annual rate of interest payable on the Securities multiplied by the unpaid principal balance of the Securities at the end of the prior month.

Section 2.04. The Issuer represents that it has furnished to Ginnie Mae information required to prepare the Securities, in accordance with any applicable instructions and directions issued by Ginnie Mae. Ginnie Mae shall cause the preparation and release of all the Securities issued under this Agreement, whether issued to original subscribers or with respect to reissues, transfers, exchanges, or otherwise.

Section 2.05. Each Security shall be issued, registered, delivered, transferred, and exchanged in accordance with the requirements of the Guide.

Section 2.06. The original principal or face amount of the Securities, and reissues and exchanges thereof, shall be in denominations of not less than twenty-five thousand dollars ($25,000) and, if larger, in denominations divisible by one dollar ($1.00).

ARTICLE III. MORTGAGES

Section 3.01. The Issuer does hereby transfer, assign, set over, and otherwise convey to Ginnie Mae all the right, title, and interest of the Issuer in and to the Mortgages identified and described in the Schedule of Pooled Mortgages for the subject pool or loan package. Such transfer and assignment shall be effective as of the date and time of delivery (release) of the Securities by Ginnie Mae or its agent, and shall include all interest, principal and other payments made on or with respect to, or related in any way to, such Mortgages. This includes, but is not limited to, payments due on the Mortgages after the Issue Date of the Securities and all unscheduled recoveries of principal received on the Mortgages after the close of business on the day on which the original principal balance of the pool or loan package was determined.

Section 3.02. This Agreement may be recorded, at Ginnie Mae’s direction, in all appropriate public offices for real property records in all the counties or other comparable jurisdictions in which any and all of the properties covered by the aforesaid Mortgages are situated, and in any other appropriate public recording offices or elsewhere. Ginnie Mae at its option may direct that such recordation is to be effected by and at the expense of the Issuer.

Section 3.03. The Issuer hereby covenants and warrants that each of the Mortgages is eligible under section 306(g) of the National Housing Act and the Guide to back the Securities. The Issuer further covenants and warrants that it will take all actions necessary to ensure continued eligibility of the Mortgages.

Section 3.04. The Issuer hereby covenants and warrants that, as of the Effective Date:

 

  (a) all of the Mortgages are lien-free and, if obtained from other originators, have been paid for in full;

 

  (b) the aggregate outstanding principal balance owed on all the Mortgages is at least equal to the aggregate original principal amount of all the Securities;

 

  (c) the required payments of principal and interest due on all the Mortgages shall be sufficient and adequate for the timely payment of the principal and interest on all the Securities, all guaranty fees due to Ginnie Mae and all servicing fees due to the Issuer, as specified in the Guide; and

 

     
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  (d) the final maturity date of all the Securities is sufficiently subsequent to the latest final maturity date scheduled under the terms and provisions of the Mortgages to allow timely payment of all such Securities.

Section 3.05. The Issuer hereby covenants and warrants that it has delivered or will deliver and deposit with an eligible custodian institution appropriate documents evidencing and relating to the pooled Mortgages within the time frame required by the Guide. Such documents and such custodial requirements shall be those set forth in a custodial agreement in the form prescribed by Ginnie Mae. Such custodial agreement has been provided to Ginnie Mae, and its terms and conditions as they relate to Ginnie Mae and the Issuer are incorporated into and made a part of this Agreement by reference. The Schedule identifies the institution selected by the Issuer to serve as custodian for the documents relating to the Mortgage pool or loan package that is the subject of this Agreement.

Section 3.06. The Issuer hereby covenants and warrants that it shall replace any Defective Mortgage, within four (4) months after the Effective Date. If, after that time, any Defective Mortgages exist, then: (a) if such Defective Mortgages can be corrected or cured such that they no longer would be defective, the Issuer shall effect such correction or cure; or (b) if such Defective Mortgages cannot be so corrected or cured, the Issuer shall notify Ginnie Mae immediately, and if Ginnie Mae approves, the Issuer shall repurchase the Mortgages at one hundred percent (100%) of the outstanding balance (“Par”). Such correction or repurchase shall occur either 30 days from discovery or the final certification due date, as set forth in the Guide, whichever is earlier. Any delinquency or any default by the borrower occurring before or after the Effective Date in the payment of any Mortgage shall not be deemed a defect for purposes of this section unless, as a consequence of such delinquency or default on a Mortgage insured or to be insured under Section 257 of the National Housing Act, FHA is prohibited from paying insurance benefits.

Section 3.07. The Issuer hereby covenants and warrants that it has in its possession for each Mortgage evidence of a valid and enforceable, standard policy of insurance for fire and extended coverage, or comparable insurance coverage, in an amount equal to the greater of the unpaid balance of the Mortgage and the amount required by the insuring or guaranteeing agency, with loss-payable endorsements designating Issuer and its successors and assigns as payee, and that Issuer shall maintain such insurance in full force and effect for as long as the Mortgage remains in effect.

ARTICLE IV. SERVICING

Section 4.01. The Issuer shall:

 

  (a) timely foreclose or otherwise convert the ownership of properties securing the Mortgages that come into and continue in default, taking into account any loss mitigation requirements imposed by the agencies that are insuring or guaranteeing the Mortgages, or otherwise dispose of such Mortgages, with the purpose of liquidating such properties and Mortgages;

 

  (b) timely file, process, and receive the proceeds of mortgage insurance or guarantee claims under the laws of the United States, in conformance with and subject to all applicable rules, regulations, and comparable promulgations and issuances of the insuring or guaranteeing agency or instrumentality;

 

  (c) make all determinations and do and complete all transactions, matters, or things necessary, appropriate, incidental, or otherwise relating to any of the foregoing or to the ownership of the Mortgages; and

 

     
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  (d) conform with the servicing standards, procedures, methods, and practices required by the applicable mortgage insurer or guarantor, and any applicable requirements contained in the Guide, and shall establish and maintain books, files, and accounting records in accordance with all of the foregoing.

Section 4.02. The Issuer shall have the option to purchase at Par any Mortgage which has been in default for a continuous period of ninety (90) days or more. The Issuer must purchase at Par each Mortgage for which it receives a final claim settlement from the insuring or guarantying agency. These settlement funds must be paid to the Security Holders in accordance with section 6.04.

Section 4.03. Except as otherwise provided in this Agreement or in the Guide, the Issuer is hereby authorized and empowered to foreclose on any collateral securing the Mortgages, execute and deliver in its own name, or in the name of its nominee, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge and all other comparable instruments, with respect to all the Mortgages and with respect to the properties covered by all such Mortgages. Any such instrument shall be executed and delivered only in conformance with and subject to all applicable rules, regulations, and comparable promulgations and issuances of the applicable insuring or guaranteeing agency. The foregoing authority and power of the Issuer shall terminate and expire, and the Issuer shall discontinue the execution and delivery of all such instruments, on notification by Ginnie Mae to the effect that it is extinguishing all right, title, or other interest of the Issuer in the Mortgages pursuant to article X.

Section 4.04. The Issuer shall maintain, during the life of this Agreement, insurance, errors and omissions, fidelity bond and other coverage in the amount and form as required by and acceptable to Ginnie Mae.

Section 4.05. The Issuer shall be permitted to arrange for another entity to carry out any of the mortgage servicing and pool or loan package administration functions required by this Agreement only to the extent such subservicing is specifically authorized by the Guide and approved by Ginnie Mae.

Section 4.06. The Issuer may service the Ginnie Mae mortgage pools or loan packages, mortgages and securities for which it has Issuer responsibility, as identified on the records of Ginnie Mae, only so long as the Issuer retains status as an approved Ginnie Mae Issuer, as defined in the Guide. Once an Issuer is declared in default and its rights are extinguished by Ginnie Mae, that Issuer may no longer service any Ginnie Mae mortgage pools or loan packages, mortgages or securities.

Section 4.07. In the event the Issuer determines that funds provided by a mortgagor and available in the Escrow Custodial Account are insufficient to meet a payment due for that mortgagor’s taxes, assessments, ground rents, hazard and mortgage insurance premiums, payments for rehabilitation or improvement expenses, the buydown portion of the Mortgage payment, or comparable items, the Issuer shall advance its own corporate funds for the purpose of making such payment.

Section 4.08. The Issuer shall establish and maintain accounting records, which shall be in accordance with the Guide and any applicable instructions and directions issued by Ginnie Mae, with respect to all Advances paid under sections 4.07 and/or 6.02, such records to be adequate to reflect: all such Advances made by the Issuer into the Central P&I Custodial Account, the Principal and Interest Custodial Account or any Escrow Custodial Account, payment directly to a taxing authority or insurance company or for any other payments required under the Mortgages; the use made of Advances to enable the CPTA to make payments required on the Securities, including their allocation as between interest and principal on such Securities; the Mortgages with respect to which Advances are made; and the amount (including the allocation as between principal and interest) advanced on each such Mortgage, and

 

     
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recoveries and losses of Advances made, with respect to each Mortgage, including their allocation as between interest and principal owed on each Mortgage.

ARTICLE V. BANK ACCOUNTS

Section 5.01. With respect to all the Mortgages, the Issuer shall establish and maintain a Central P&I Custodial Account with a commercial bank, a mutual savings bank, a savings and loan association, or a credit union, the deposits at which are insured by the Federal Government, and which meets any and all other requirements of Ginnie Mae. The Central P&I Custodial Account must be used exclusively for funds relating to Ginnie Mae MBS program mortgage pools and may be drawn on only by the CPTA, by the Issuer, and/or by Ginnie Mae. The Central P&I Custodial Account must be subject to a master agreement in the form prescribed by Ginnie Mae. The Issuer must make available in accordance with section 6.01 in the Central P&I Custodial Account funds sufficient to enable the CPTA to make timely monthly payments of principal and interest to the Security Holders of record as prescribed in the Securities, this Agreement and the Guide. The Issuer shall make withdrawals from the Central P&I Custodial Account only in accordance with section 5.03 below. All the foregoing shall be otherwise in accordance with the Guide and any applicable instructions and directions issued in writing by Ginnie Mae.

Section 5.02. With respect to all the Mortgages, the Issuer shall establish and maintain a Principal and Interest Custodial Account with a commercial bank, a mutual savings bank, a savings and loan association, or a credit union, the deposits at which are insured by the Federal Government, and which meets any and all other requirements of Ginnie Mae. The Principal and Interest Custodial Account must be used exclusively for funds relating to Ginnie Mae MBS program mortgage pools and loan packages and may be drawn on only by the Issuer and/or by Ginnie Mae. The Principal and Interest Custodial Account must be subject to a master agreement in the form prescribed by Ginnie Mae. All principal and interest collected on account of the Mortgages and/or the property securing the Mortgages and any other funds due to the Security Holders at any time must be deposited and retained in the Principal and Interest Custodial Account until made available to the CPTA for payment to Security Holders or placed in a disbursement account in accordance with section 5.06. These items include, but are not limited to: monthly Mortgage payments; prepayments; mortgage or title insurance and guaranty claim settlement proceeds; hazard insurance or any condemnation proceeds not used to repair the collateral (if such funds are to be used to repair the collateral, they first must be deposited in the Escrow Custodial Account and may not be deposited in the Issuer’s corporate accounts); proceeds from foreclosure or repossession sales, and any payments received in lieu of foreclosure or repossession sales; proceeds from any sale, resale or transfer of Mortgages which are required hereunder or by the Guide to be passed through to the Security Holders; repayments of Excess Funds; Advances; and other unscheduled recoveries of principal as set forth in section 6.04. The Issuer shall make withdrawals only in accordance with section 5.03 below. All the foregoing shall be otherwise in accordance with the Guide and any applicable instructions and directions issued in writing by Ginnie Mae.

Section 5.03. (a) If the Central P&I Custodial Account and the Principal and Interest Custodial Account are separate accounts, the Issuer may make withdrawals from the Central P&I Custodial Account only to remove any amounts that were not required to be deposited therein under this Agreement or the Guide.

(b) If a single account is used as the Central P&I Custodial Account and the Principal and Interest Custodial Account, then in addition to withdrawals to effect timely payment on the Securities, the Issuer may make withdrawals from such account but only to:

 

  1. remit to Ginnie Mae the monthly guaranty fee;

 

     
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  2. reimburse itself for its previous Advances that were made in accordance with section 6.02, but only if: (i) all Excess Funds used to make Security Holder payments have been fully restored; (ii) the Issuer has maintained records showing the amount of each Advance attributed to a particular Mortgage; (iii) the funds used to reimburse the Issuer come from the payment related to the particular Mortgage on which Issuer made the Advance; (iv) all amounts due and payable to Security Holders have been made available to the CPTA for payment to them; and (v) the Issuer’s records properly demonstrate all of the foregoing.

 

  3. utilize Excess Funds in accordance with section 6.02 hereof;

 

  4. remove any amounts that were not required to be deposited therein under this Agreement or the Guide; or

 

  5. pay itself the permitted servicing fee.

Section 5.04. In addition to the Central P&I Custodial Account and the Principal and Interest Custodial Account, the Issuer shall establish and maintain Escrow Custodial Account(s) with a commercial bank, a mutual savings bank, a savings and loan association, or a credit union the deposits at which are insured by the Federal Government, and which meets any and all other requirements of Ginnie Mae. Each Escrow Custodial Account must be used exclusively for funds relating to Ginnie Mae MBS program mortgage pools and loan packages and may be drawn on only by the Issuer, the approved subservicer and/or by Ginnie Mae. Each Escrow Custodial Account must be subject to a master agreement in the form prescribed by Ginnie Mae. All collections of payments for taxes, assessments, ground rents, hazard and mortgage insurance premiums, payments for rehabilitation or improvement expenses, the buydown portion of the Mortgage payment and all comparable items must be deposited and retained in the Escrow Custodial Account on account of the Mortgages except as otherwise required by the appropriate insuring or guaranteeing agency.

Section 5.05. Withdrawals from the Escrow Custodial Account(s) may be made only to:

 

  (a) effect timely payment of the following items related to the Mortgages pooled under this Agreement: mortgagors’ taxes, assessments, ground rents, hazard and mortgage insurance premiums, payments for expenses related to the property covered by the Mortgages, such as improvement, protection or repair, the buydown portion of the Mortgage payment, or comparable items; and

 

  (b) reimburse itself for its previous Advances, but only if: (i) all Excess Funds used to make Security Holder payments have been fully restored; (ii) the Issuer has maintained records showing the amount of each Advance attributed to a particular Mortgage; (iii) the funds used to reimburse the Issuer come from the payment related to the particular Mortgage on which Issuer made the Advance; and (iv) the Issuer’s records properly demonstrate all of the foregoing.

Section 5.06. The use of separate “collection accounts” or “disbursement accounts” for the receipt and payment of funds is permitted. Collection accounts must be cleared daily, unless the Issuer uses ACH transfer, in which case the accounts must be cleared every 48 hours. In any event, immediately upon being cleared or removed from the collection account, all funds covered by this article V must be deposited into the Principal and Interest Custodial Account or an Escrow Custodial Account, as appropriate, pursuant to sections 5.02 or 5.04. Disbursement accounts must be subject to master

 

     
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agreements in the form prescribed by Ginnie Mae. The disbursement account for principal and interest funds must be used exclusively for funds relating to Ginnie Mae MBS program securities.

ARTICLE VI. PAYMENT TO SECURITY HOLDERS

Section 6.01. The Issuer shall deposit to the Central P&I Custodial Account funds sufficient to enable the CPTA to make (a) all payments to Security Holders required to be made under the terms and conditions of all Securities issued and outstanding under this Agreement and (b) all other payments required under this Agreement and the Guide (the “Other Payments”). All such deposits must be made in a timely manner on (i) in the case of payments required to be made to Holders of certificated Securities and all Other Payments, the 19th calendar day of the month or, if the 19th calendar day is not a business day, on the business day immediately preceding the 19th calendar day and (ii) in the case of payments required to be made to Securities in book-entry form, the 20th calendar day of the month or the next business day if the 20th calendar day is not a business day.

Section 6.02. (a) The Issuer shall establish and maintain such controls and procedures to enable it to accurately project in advance whether or not it will have available sufficient funds to make deposits required under section 6.01 in a timely manner.

(b) If the Issuer does not have available sufficient funds to make a required monthly deposit in a timely manner, the Issuer either shall make Advances or may utilize Excess Funds to meet such deposit. If the Issuer is not able to make the full deposit by these means, it shall submit a timely notice to Ginnie Mae, before the deposit is due, requesting Ginnie Mae to advance funds sufficient to make the full monthly deposit. Any such notice shall be a basis for default under section 10.01(a)(2).

Section 6.03. The portion of each monthly deposit that is made to enable the CPTA to make payment on the Securities shall be comprised of (a) the interest due pursuant to section 2.03, (b) scheduled payments of principal due on the Mortgages on the first day of the month, or in the case of Securities backed by internal reserve pools on the first day of the month immediately preceding the month, in which the payment on the Securities is due, and (c) unscheduled recoveries of principal of the Mortgages as defined in section 6.04.

Section 6.04. (a) With respect to the portion of a monthly deposit that is made to enable the CPTA to make payment on the Securities, unscheduled recoveries of principal are payments received by the Issuer in the Reporting Month preceding the monthly payment on the Securities, and are any and all proceeds received or due in connection with the Mortgages, or the property securing the Mortgages, other than scheduled payments of interest and recoveries of principal and miscellaneous collections (defined in (c), below). Unscheduled recoveries of principal include, but are not limited to, the following items in their entirety:

 

  (1) prepayments (excluding scheduled recoveries of principal paid in advance of their due dates, which must be passed through to the Securities Holders on their scheduled due dates);

 

  (2) mortgage or title insurance and guaranty claim settlement proceeds;

 

  (3) hazard insurance and condemnation proceeds, to the extent not used to repair the collateral;

 

  (4) proceeds from foreclosure sales or, if applicable, repossession sales and any payments received in lieu of foreclosure or repossession of the collateral;

 

     
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  (5) proceeds from any sale, resale, transfer or disposal of a Mortgage or any interest in a Mortgage (this does not include the authorized transfers of Issuer responsibility or the pledging of servicing, if those transactions comply with requirements in the Guide);

 

  (6) any principal amount of a Mortgage finally discharged by a bankruptcy court;

 

  (7) payment from the Issuer’s own funds as required under this section 6.04; and

 

  (8) all other payments or proceeds that include any amounts reflecting the recovery of principal due on a Mortgage.

(b) Unscheduled recoveries of principal, including but not limited to all of the items described in section 6.04(a), must be made available to the CPTA for payment to the Security Holders in their entirety, as set forth above, so long as there is an outstanding principal balance on the Securities. Advances or other payments due or authorized under the Mortgages previously made by the Issuer may not be deducted or recovered from these funds until amounts due the Security Holders have been made available to the CPTA in full. Any deduction from an unscheduled recovery of principal made by third parties must be replaced in its entirety by the Issuer prior to making a deposit required to enable the CPTA to make payment to the Security Holders.

 

  (c) Miscellaneous collections shall include, to the extent that they are paid pursuant to a Mortgage, only:

 

  (1) mortgage insurance premiums;

 

  (2) taxes;

 

  (3) hazard insurance premium payments;

 

  (4) special charges related to servicing;

 

  (5) late charges;

 

  (6) ground rents;

 

  (7) special assessments;

 

  (8) water rents;

 

  (9) 203(k) funds;

 

  (10) buydown funds;

 

  (11) attorney’s fees; and

(12) any funds to repay the Issuer’s expenditures under the terms of the Mortgage to complete construction, pay for security services or prevent waste.

(d) To the extent that the remaining principal balance of a Mortgage has not been recovered by the Issuer at the earliest of: (1) final payment of the mortgage insurance or guaranty claim proceeds, or other final disposition of the claim by the insuring or guarantying Federal agency; (2) the withdrawal of a Defective Mortgage from the pool or loan package; (3) any other liquidation or disposition of the Mortgage or the property secured thereby; or (4) any other act or transaction that has the effect of causing

 

     
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the Mortgage or payments or recoveries related to the principal of the Mortgage to no longer be available as backing for the Securities related to that Mortgage, the monthly payment following the earliest month in which an action described in (1), (2), (3) and (4) is taken shall include an amount, to be paid from the Issuer’s own funds, which will reduce the Mortgage to a zero balance and which will reduce to zero the portion of the outstanding principal balance of the Securities attributable to that Mortgage.

ARTICLE VII. REPORTS

Section 7.01. The Issuer shall furnish to Ginnie Mae, during the life of this Agreement, such periodic, special, or other reports or information, whether or not provided for herein, as Ginnie Mae in its discretion requires. All such reports or information shall be as provided by and in accordance with applicable instructions and directions issued by Ginnie Mae.

Section 7.02. Without limitation, the Issuer shall furnish to Ginnie Mae, in the manner prescribed by Ginnie Mae, the following reports or other information:

 

  (a) Reports such as shall be required in accordance with applicable instructions and directions issued by Ginnie Mae with respect to any or all of the Mortgages, whether or not still subject hereto, or with respect to any or all of the mortgagors or their successors in interest;

 

  (b) Copies of the annual audited financial statements of the Issuer, and other financial reports as may be requested by Ginnie Mae. Such audited financial statements are to be received by Ginnie Mae no later than 90 days after the end of the Issuer’s fiscal year; and

 

  (c) Notice in advance of: (1) any contemplated changes affecting the business status of the Issuer, including, but not limited to any merger, consolidation, sale or other transfer of any part or all of its business, change in name, or sanctions by any government regulator or government sponsored enterprise; (2) any change in ownership or control of the Issuer; and (3) any voluntary or involuntary action or proceeding under the Federal bankruptcy statutes or any comparable Federal or State law, whether for purposes of bankruptcy, reorganization, winding up the affairs of the Issuer, or otherwise, or for appointment of a receiver, liquidator, trustee, or other such assignee of transferee, for any of such purposes.

Section 7.03. The Issuer shall give Ginnie Mae notice of any impending or actual default by the Issuer, under the terms and provisions of article X, and, in such notice, shall identify the event or events of default and set forth such corrective, curative, or other action as the Issuer shall contemplate and plan with the agreement of Ginnie Mae, or shall state that no such action is planned.

ARTICLE VIII. GUARANTY

Section 8.01. By and as set forth in its guaranty appearing on or included in the terms of each of the Securities, Ginnie Mae, pursuant to section 306(g) of the National Housing Act, guarantees the timely payment of principal of and interest on the Securities, subject only to the terms and conditions of such Securities, and the full faith and credit of the United States is pledged to the payment of all amounts required to be paid under each such guaranty.

Section 8.02. Ginnie Mae covenants and warrants that in any legal action or proceeding, it shall not contest or defend against the timely payment of any amount provided for in, and unpaid on, any Security duly and validly issued under this Agreement, provided that, such payment is sought and claimed

 

     
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by or on behalf of a bona fide purchaser and registered owner of such Security, without actual notice at the time of purchase of any basis or grounds for contest or defense by Ginnie Mae against such payment.

Section 8.03. Ginnie Mae covenants and warrants that under section 306(d) of the National Housing Act, it has full power and authority to borrow from the Secretary of the Treasury, and the Secretary of the Treasury is therein authorized to lend to Ginnie Mae, any amounts necessary and required to enable Ginnie Mae to meet and comply with the terms and provisions of its guaranty of the Securities, and that it shall so borrow, and the Secretary of the Treasury has agreed to so lend, any amounts necessary and required.

Section 8.04. This article VIII shall inure to the benefit and advantage of all the Security Holders, subject to and in accordance with the terms and provisions set forth herein, provided that nothing herein shall derogate or detract from the rights of such Security Holders as set forth in or provided for in connection with such Securities.

Section 8.05. If Ginnie Mae makes any payment to Security Holders under its guaranty, it shall be subrogated fully to the rights satisfied by such payment.

ARTICLE IX. LOSSES

Section 9.01. The Securities shall not constitute any liability of nor evidence any recourse against the Issuer or any of its assets, except with respect to or as against the Mortgages on which they are based and backed, including all interest, principal, and other payments or recoveries due or made on such Mortgages on and after the date of this Agreement; provided, however, that the Issuer shall be liable to Ginnie Mae for: (a) restitution, from the Issuer’s own funds, for the Issuer’s use of any funds in violation of this Agreement, including but not limited to any “unscheduled recoveries of principal” that the Issuer fails to handle, apply and remit in accordance with this Agreement, any Excess Funds withdrawn and not replaced from the pool or loan package Principal and Interest Custodial Account(s), or any other funds that the Issuer improperly handles, fails to place in, or removes from, the Principal and Interest Custodial Account, the Escrow Custodial Account, or any other escrow account maintained or required to be maintained with respect to the Mortgages; and (b) all loss, damage, cost, expense, and liability suffered by Ginnie Mae as a result of the Issuer’s breach of, failure to carry out, or default under, this Agreement.

Section 9.02. The Issuer’s liability to Ginnie Mae shall survive any expiration or termination of this Agreement.

ARTICLE X. DEFAULT

Section 10.01. (a) Immediate Default. An event of default by the Issuer occurs if Ginnie Mae, in its sole discretion, determines that any of the following acts or conditions have occurred or exist:

 

  (1) Any failure by the Issuer to deposit in the Central P&I Custodial Account the amount necessary to enable the CPTA to remit to the Security Holders any payment required to be made under the terms and conditions of this Agreement, the Guide or the Securities issued and outstanding under this Agreement, as of the due date of such payment;

 

  (2) Any notice by the Issuer to Ginnie Mae for an advance of funds in order to make a deposit necessary to enable the CPTA to make Security Holder payments, or the subsequent making of any part or all of such advance by Ginnie Mae;

 

  (3) Any other act or omission by an Issuer that causes the required payment to the Security Holders not to be made timely;

 

     
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  (4) Any notification to Ginnie Mae by the Issuer that it will not meet, or is unlikely to meet, its payment obligations in a timely manner;

 

  (5) Any impending or actual insolvency of the Issuer;

 

  (6) Any change with respect to the business status of the Issuer, whether or not subject to the reporting requirements of section 7.02, which materially adversely affects Ginnie Mae under this Agreement, or which materially adversely affects the ability of the Issuer to carry out its obligations hereunder;

 

  (7) Any unauthorized use of Custodial Funds;

 

  (8) Any withdrawal or suspension of the Issuer’s Federal Housing Administration approved status or of Federal National Mortgage Association or Federal Home Loan Mortgage Corporation approved seller/servicer status; and

 

  (9) Any submission of false reports, statements or data or any act of dishonesty or breach of fiduciary duty to Ginnie Mae related to the MBS program.

(b) Thirty-day Default. Any failure of the Issuer to observe or comply with any of the terms and provisions of this Agreement or the Guide, or any breach of any warranty set forth in this Agreement, other than an event of default under section 10.01(a), shall constitute an event of default if it has not been remedied or corrected to Ginnie Mae’s satisfaction within thirty (30) days of notification by Ginnie Mae to the Issuer. Ginnie Mae reserves the right in its discretion to declare an immediate default if the Issuer receives three or more notices of failure to comply under this subsection (b).

Section 10.02. An event of default under this Agreement shall constitute an event of default under each and every other Guaranty Agreement between the Issuer and Ginnie Mae. An event of default under any other Guaranty Agreement between the Issuer and Ginnie Mae shall constitute an event of default under this Agreement.

Section 10.03. On the occurrence or development of any event of default, Ginnie Mae may, in its sole discretion, but is not required to, confer and negotiate with the Issuer with respect to remedying and correcting the default. Any such arrangements mutually agreed upon shall be placed in written contractual form, and shall be supplementary to this Agreement.

Section 10.04. On the occurrence or development of any event of default, unless arrangements under section 10.03 above are mutually agreed upon by and between Ginnie Mae and the Issuer and placed in written contractual form duly executed by Ginnie Mae, Ginnie Mae may, by letter directed to the Issuer, pursuant to section 306(g) of the National Housing Act, automatically effect and complete the extinguishment of any redemption, equitable, legal, or other right, title, or interest of the Issuer in the Mortgages. The Mortgages, together with all accounts, books and all other hard copy or electronic records related to the Mortgages or the Securities, automatically shall become the absolute property of Ginnie Mae, subject only to unsatisfied rights of the Security Holders. Upon such extinguishment, the Issuer automatically forfeits, waives and releases any and all rights to seek recovery of or reimbursement for any property or monies related in any way to the Mortgages (including but not limited to undisbursed Mortgage proceeds or Advances that the Issuer made or makes) that the Issuer might otherwise have recovered from any person or entity.

Section 10.05. Immediately upon the issuance by Ginnie Mae of a letter of extinguishment to the Issuer, all authority and power of the Issuer under this Agreement, with respect to the Securities, the Mortgages and otherwise, shall automatically terminate and expire. Upon such extinguishment, the Issuer

 

     
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shall have no further right to service the Mortgages, pools and loan packages and Securities, shall have no right to any income related to the Mortgages, pools, loan packages, or the Securities and shall have no right to share in the proceeds of any sale or transfer of rights or interests related to them.

Section 10.06. Immediately upon the issuance by Ginnie Mae of a letter of extinguishment to the Issuer, the Issuer shall automatically give up and forfeit, and hereby releases to Ginnie Mae, all of its right, title, and interest in and to funds then or thereafter placed in the Central P&I Custodial Account, the Principal and Interest Custodial Accounts, all Escrow Custodial Accounts, and any other accounts related to the Mortgages, and any other claims funds, proceeds, recoveries, property, monies or assets related in any way to the Mortgages, including but not limited to any and all mortgage insurance or loan guaranty claim proceeds, hazard insurance proceeds, payments by borrowers, refunds, rents, foreclosure or sales proceeds, and escrowed items; FURTHER, the authority of the Issuer to make withdrawals against the Central P&I Custodial Account, the Principal and Interest Custodial Account, all Escrow Custodial Accounts, and any other accounts related to the Mortgages or in which any funds pertaining to the Mortgages are kept shall be deemed to have terminated and expired; AND FURTHER, the Issuer shall be deemed to have forfeited and waived any and all rights to recovery or reimbursement, from any source whatsoever, for any Advances (under section 5.03(b) or otherwise), profits, or expenditures related to the Securities or the Mortgages.

Section 10.07. On and after the time Ginnie Mae issues a letter of extinguishment to the Issuer, the Issuer shall continue to render Ginnie Mae the fullest assistance practicable in furtherance of the orderly and due removal of the Mortgage from the Issuer. Such assistance may include, at Ginnie Mae’s sole discretion, use of the Issuer’s physical facilities, Issuer’s computers and servicing platform and any other facilities that Ginnie Mae, in its sole discretion, determines necessary to the orderly transfer of the Mortgages backing Ginnie Mae securities. Ginnie Mae will reimburse the Issuer reasonable operating costs, as determined by Ginnie Mae, for the use of Issuer’s facilities and equipment during the transfer process. Issuer shall not object to its employees cooperating with Ginnie Mae or its Subservicer. Issuer shall execute, at Ginnie Mae’s direction, powers of attorney to facilitate the orderly transfer of the portfolio, and the continuation otherwise of this Agreement and the transactions and arrangements set forth and provided for herein. This obligation of the Issuer shall survive any termination of this Agreement.

Section 10.08. Immediately upon the issuance by Ginnie Mae of a letter of extinguishment to the Issuer, all authority and power of the Issuer under this Agreement, with respect to the Securities, the Mortgages or otherwise, shall pass to and be vested in Ginnie Mae, and Ginnie Mae shall succeed to all the rights and benefits of the Issuer in its capacity under this Agreement and the transaction and arrangement set forth or provided herein. Ginnie Mae is hereby authorized and empowered to execute and deliver, on behalf of the Issuer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things, necessary or appropriate to effect the purposes of the letter of extinguishment, whether to complete the transfer and endorsement or assignment of the Mortgages, to service the outstanding Securities and the underlying Mortgages, or otherwise.

Section 10.09. Notwithstanding Ginnie Mae’s guaranty obligations to Security Holders as set forth in article VIII or a provision in the Mortgage or in any other instrument, and notwithstanding any assignment or transfer to Ginnie Mae or any Ginnie Mae Transferee of the Mortgage or any rights and benefits of the Issuer, or Ginnie Mae’s or any Ginnie Mae Transferee’s succession to such matters, under no circumstances shall Ginnie Mae or any Ginnie Mae Transferee be deemed to assume any liability whatsoever for any breach, act or omission committed by the Issuer. The Issuer shall remain liable for all such breaches, acts or omissions. The obligations of the Issuer set forth in this section shall survive any expiration or termination of this Agreement.

 

     
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Section 10.10. Notwithstanding the issuance of a letter of extinguishment to the Issuer, the custodial agreement identified in section 3.05, and any other comparable contract by and between the Issuer and any third party with respect to this Agreement, shall continue in full force and effect, unless and until terminated by Ginnie Mae in its sole discretion, modified only by the removal of the Issuer and substitution of Ginnie Mae as provided for in this article. Ginnie Mae shall have full discretion in determining whether and when, upon issuance of a letter of extinguishment, such contracts with any third parties are to be terminated.

ARTICLE XI. MISCELLANEOUS

Section 11.01. This Agreement shall remain in effect until all terms and conditions contained herein are satisfied.

Section 11.02. Any notice, demand, notification, letter, letter of extinguishment, approval, authorization, directive or request arising under this Agreement, or required by the terms and provisions hereof or pursuant to any requirements of law, shall be in writing and may be served in person, by wire or facsimile transmission, by overnight courier service for next day delivery or by mail by depositing the same in any post office, substation, or letter box, enclosed in an envelope, postage prepaid, addressed to the party to whom such notice, demand, notification, letter, letter of extinguishment, approval, authorization, directive or request is directed, at the last known address of such party.

Section 11.03. Subject to the provisions of article X above, this Agreement may not be voluntarily assigned or otherwise transferred, in whole or in part, by either of the parties hereto without the written consent of the other, except by or on behalf of Ginnie Mae to any other agency or instrumentality within the Executive Branch of the Government of the United States assuming all the responsibilities, duties, and liabilities of Ginnie Mae hereunder. If and when assigned or otherwise transferred in accordance with this section, this Agreement and all its terms and provisions shall inure to the benefit of and shall be binding upon the Issuer and its successors and assigns, and the assignees or transferees of Ginnie Mae.

Section 11.04. This Agreement may be amended from time to time by the Issuer and Ginnie Mae, by mutual agreement and consent, in order to facilitate the observance and fulfillment of the purposes of section 306(g) of the National Housing Act and of this Agreement, provided that, no such amendment shall adversely affect the rights of the Security Holders, such amendments to include, without limitation, any to effect and complete the succession of successors in the capacities of the parties hereto, any to add new terms and provisions for the advantage, benefit, or protection of the Security Holders, or any to remedy and correct any ambiguity or vagueness in the terms and provisions hereof. To be effective, any such amendment must be in writing and be signed by the Issuer and Ginnie Mae.

Section 11.05. Ginnie Mae reserves the right to waive any of the requirements contained in this Agreement. Any such waiver must be in writing.

Section 11.06. The parties covenant and warrant that, should the Issuer receive FHA debentures in settlement of any default on a Mortgage pursuant to the terms of the FHA insurance commitment, the Issuer shall immediately tender such debentures to Ginnie Mae and Ginnie Mae shall immediately purchase such debentures from the Issuer for cash at Par.

Section 11.07. The Issuer shall comply with any applicable rules, regulations, and orders of general applicability issued under Title VI of the Civil Rights Act of 1964; with Executive Order 11063, Equal Opportunity in Housing, issued by the President of the United States on November 20, 1962; and with the Fair Housing Law of 1968, in accordance with applicable rules and regulations of the Federal

 

     
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Housing Administration. Moreover, this section incorporates by reference section 202 of Executive Order 11246, Equal Employment Opportunity, issued by the President of the United States on September 24, 1965, and amended on October 13, 1967. The Issuer is required to comply with the implementing rules and regulations of the Department of Labor (41 C.F.R. Part 60-1) and the Department of Housing and Urban Development (24 C.F.R. Part 130). For purposes of the Executive Order 11246, this Agreement is a Government contract.

Section 11.08. Except as expressly provided in article VIII, Ginnie Mae assumes no liability to any person or entity for any act or omission of the Issuer.

Section 11.09. The rule of construction that agreements are to be construed against the drafter shall not be applied in construing this Agreement.

Section 11.10. Whenever in this Agreement Ginnie Mae may or can take or refrain from taking an action, such decision to act or refrain from acting shall be in Ginnie Mae’s sole discretion.

 

     
Date: 11/01/2008   17   Appendix III-23

Exhibit 23.2

Consent of Independent Registered Public Accounting Firm

The Board of Directors

HomeStreet, Inc. and subsidiaries:

We consent to the use of our report included herein and to the reference to our firm under the heading “Experts” in the prospectus.

Our audit report dated April 29, 2011 refers to the Company’s election to carry mortgage servicing rights related to single family loans at fair value, and to carry single family residential mortgage loans held for sale using the fair value option.

Our audit report dated April 29, 2011 contains an explanatory paragraph that states on May 18, 2009, the Company entered into a Stipulation and Consent to the Issuance of an Order to Cease and Desist with the Office of Thrift Supervision and on May 8, 2009, the Company’s banking subsidiary (the Bank) entered into a Stipulation and Consent to the Issuance of an Order to Cease and Desist (the Bank Order) with the Federal Deposit Insurance Corporation and the Washington Department of Financial Institutions. The Bank Order restricts certain operations and required the Bank to, among other things, achieve specified regulatory capital ratios. The Bank failed to achieve the required regulatory capital ratios in the time period required and is, therefore, not in compliance with the Bank Order. The failure of the Bank to comply with the Bank Order and the possibility of additional regulatory restrictions and actions, including placing the Bank in receivership, raises substantial doubt about the Company’s ability to continue as a going concern. The consolidated financial statements do not include any adjustments that might result from the outcome of this uncertainty.

/s/ KPMG LLP

Seattle, Washington

June 20, 2011