NOLs are already "Unrestricted"
What that means is, that although there is believed to have been a change of control at the Effective Date (IRC Section 382 normally requires the NOLs to be limited to the "Annual Limitation" calculated based on valuation and certain stated rates each year; normally, in the single digit millions) such did not apply as WMI enjoyed a favorable Private Letter Ruling on a "worthless stock deduction" were WMI to "abandon" WMB; and that such worthless stock loss on abandonment would not be subject to the IRC 382 Annual Limitations. The timing of the abandonment were trigger a 'proration component (days after abandonment/365) under the regulations resulted in the current $6B "unrestricted NOL."
So, it currently is unrestricted, meaning from $-0- to $6B can be used in any year without limitation against federal taxable income.
Unrestricted is the current status and it can only be forfeited if there is another change of control. There are those that believe that at the end of March 2015 (after three years since the Effective Date), that such change of control "goes away."
It does not. The 3-year change of control rule is a "rolling 3-year period" that simply does not end. If, at any time during any 3-year period, those that own 5% or more of WMIH, including new parties that aggregate 5% or more, all added together represent an INCREASE OF 50%, then another "ownership change would be triggered and the NOLs would be subject to IRC 382 reduced to a calculation of valuation and rate application. The numbers a puny compared to the $6B unrestricted NOL.
Proof of this is in all of the WMIH corporate documents with the NOL poison pill making any WMIH share transactions risking the 50% aggregation are NULL AND VOID; and there is no END DATE of such, i.e., March of 2015.
The KKR Strategic Investment Agreement also limits KKR, under the aggregation of the preferred stock, warrants if exercised and rights to new issuances, to no more than 42.5% control of WMIH. Again, not only is there no END DATE as per above, but the KKR Agreement "runs right past" the supposed March 2015 "freedom date" that others have suggested.
Based on this, the March 2015 date regarding the nature and status of the existing NOLs has nothing to do with KKR's assistance in completing an acquisition (if KKR is to fund within its 42.5% cap) or merger (if KKR is to reduce some of its rights to a merger partner in order to keep all new 5% holders increase under 50%).
