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The evidence that we find compelling in the instant cases
includes the following:
• The August 7, 1989 memorandum prepared by Johannes den
Baas (den Baas), an ABN vice president, which outlined his
understanding of ABN’s role in the Merrill Lynch tax shelter
in pertinent part as follows:
The remuneration for ABN * * * will be 70-80
bps. [basis points] spread over the
outstanding participation plus $100,000
upfront fee and all out of pocket expenses
covered (legal fees etc.). Since the
structure itself will not carry the
possibilities for this level of remuneration
the income will be received by ABN New York
in upfront payments made by the corporation.
[Saba I, slip op. at 22.]
• The Zelisko memorandum which stated in pertinent part:
3. Compensation fees to the FP [foreign
partner]. Merrill Lynch talked in terms of
40-75 basis points on the FP’s equity
investment. [Saba I, slip op. at 17.]
• The February 15, 1990 den Baas memorandum (pertaining to
the Saba partnership) which stated in pertinent part:
ABN will receive again an upfront fee
representing 75 bps over LIBOR over the
outstanding plus the 15 bps funding
difference between LIBOR and CP [commercial
paper] upfront. The amount will be around
$600,000 but we have negotiated a minimum fee
of $750,000 upfront excluding ABN Trust
Curacao's fees. [Saba I, slip op. at 22.]
• The $535,000 amount that Merrill Lynch characterized as a
“fee” and added to its valuation of Saba’s LIBOR notes in
conjunction with Brunswick’s purchase of 50 percent of
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