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Exhibit 4.12    
  


 
 

WASHINGTON MUTUAL, INC.
  WASHINGTON MUTUAL CAPITAL TRUST 2001
  REMARKETING AGREEMENT    
  


    April 30, 2001 


Lehman
Brothers Inc.

Three World Financial Center

New York, New York 10285 


Ladies
and Gentlemen: 


    Washington
Mutual, Inc., a Washington corporation (the "Company"), issued, pursuant to the Unit Agreement (the "Unit Agreement"), dated as of April 30, 2001, among the
Company, Washington Mutual Capital Trust 2001, a Delaware statutory business trust (the "Trust"), The Bank of New York, as Property Trustee, The Bank of New York, as Warrant Agent and The Bank of New
York, as Unit Agent (the "Unit Agent"), $1,000,000,000 Trust Preferred Income Equity Redeemable Securities (the "Units") on April 30, 2001. Each Unit consists of: 



     (i) a
preferred security having a stated liquidation amount $50 per preferred security (a "Preferred Security"), issued by the Trust and pursuant to the Amended and
Restated Declaration of Trust, dated as of April 30, 2001 (the "Declaration"), among the Company, in its capacity as Sponsor, the initial Administrative Trustees (the "Administrative
Trustees"), The Bank of New York, as Property Trustee (the "Property Trustee"), and The Bank of New York (Delaware), as Delaware Trustee (the "Delaware Trustee"), and guaranteed (the "Guarantee";
together with the Preferred Securities, the "Securities") by the Company, as Guarantor, to the extent set forth in the Guarantee Agreement, dated as of April 30, 2001 (the "Guarantee
Agreement"), between Washington Mutual, Inc., as guarantor (the "Guarantor") and The Bank of New York, as Guarantee Trustee (the "Guarantee Trustee"); and 


    (ii) a
warrant to purchase .8054 shares (subject to anti-dilution adjustments) of common stock of the Company prior to or on May 3, 2041 (a
"Warrant"), issued pursuant to the Warrant Agreement, dated as of April 30, 2001, between the Company and The Bank of New York, as Warrant Agent. 




    The
Company is the owner of all of the undivided beneficial ownership interests represented by the Common Securities of the Trust (the "Common Securities"; together with the Preferred
Securities, the "Trust Securities"), which are also guaranteed by the Company pursuant to the Guarantee Agreement. Concurrently with the issuance of the Securities and the Company's purchase of all of
the undivided beneficial ownership interests represented by the Common Securities of the Trust, the Trust invested the proceeds of each thereof in the Company's 5.375% Junior Subordinated Deferrable
Interest Debentures due July 1, 2041 (the "Debentures"), issued pursuant to the Indenture (the "Indenture"), dated as of April 30, 2001, between the Company and The Bank of New York, as
Debenture Trustee (the "Debenture Trustee"), as amended and supplemented by the First Supplemental Indenture, dated as of April 30, 2001, between the Company and the Debenture Trustee.
Capitalized terms used and not defined in this Agreement shall have the meanings set forth in the Unit Agreement, the Declaration or the Indenture, as the case may be. 


    The
Remarketing of the Securities is provided for in the Declaration and, if the Debentures have been distributed to holders of the Preferred Securities in liquidation of the Trust,
the Indenture. As used in this Agreement, the term "Remarketed Securities" means the Securities or Debentures subject to the Remarketing as notified by the Property Trustee, the Unit Agent and the
Debenture Trustee, as applicable, on the fourth Business Day prior to the Remarketing Settlement Date; and the term "Remarketing Procedures" means the procedures in connection with the Remarketing of
the Securities described in the Declaration and the Indenture, as the case may be. 





 


    Section 1.  Appointment and Obligations of the Remarketing Agent.  (a) The Company and the Trust
(together, the "Issuers") hereby appoint Lehman Brothers Inc. as exclusive remarketing agent (the "Remarketing Agent"), and Lehman Brothers Inc. hereby accepts appointment as Remarketing
Agent, for the purpose of (i) Remarketing Remarketed Securities on behalf of the holders thereof and (ii) performing such other duties as are assigned to the Remarketing Agent in the
Remarketing Procedures, all in accordance with and pursuant to the Remarketing Procedures. 


    (b) The
Remarketing Agent agrees to: 



     (i) use
commercially reasonable efforts to remarket the Remarketed Securities deemed tendered to the Remarketing Agent in the Remarketing; 


    (ii) notify
the Issuers promptly of the Reset Rate; and 


    (iii) carry
out such other duties as are assigned to the Remarketing Agent in the Remarketing Procedures, all in accordance with the provisions of the Remarketing
Procedures. 




    (c) On
the second Business Day immediately preceding the Remarketing Settlement Date (the "Remarketing Date"), the Remarketing Agent shall use commercially reasonable
efforts to remarket, at a price equal to 



     (i) 100%
of the aggregate Accreted Value thereof as of the end of the day on the day next preceding the Remarketing Date; and 


    (ii) on
the Maturity Remarketing Date, 100% of the stated liquidation amount. 




    (d) If,
as a result of the efforts described in Section 1(b), the Remarketing Agent determines that it will be able to remarket all Remarketed Securities deemed
tendered for purchase at the purchase price set forth in Section 1(c) prior to 4:00 p.m. (New York City time) on the Remarketing Date, the Remarketing Agent shall determine the Reset
Rate, which shall be the rate per annum (rounded to the nearest one-thousandth (0.001) of one percent per annum) that the Remarketing Agent determines, in its sole judgment, to be the
lowest rate per annum that will enable it to remarket all Remarketed Securities deemed tendered for Remarketing. In the event of a Remarketing: 



     (i) in
connection with a Remarketing upon a Trading Remarketing Event or a Legal Cause Remarketing Event, the Accreted Value of the Debentures as of the end of the day
on the day next preceding the Remarketing Date shall become due on the date which is 60 days following the Remarketing Date, and (if applicable), as a result, the Accreted Value of the
Securities as of the end of the day on the day next preceding the Remarketing Date shall be redeemed on the date which is 60 days following the Remarketing Date; 


    (ii) on
the Remarketing Date, the rate of interest per annum on the Accreted Value of the Debentures shall become the Reset Rate on the Accreted Value of the Securities
established in the Remarketing, and (if applicable), as a result, the Distribution rate per annum on the Accreted Value of the Securities shall become the Reset Rate established in the Remarketing of
the Preferred Securities; 


    (iii) on
the Remarketing Settlement Date, interest accrued and unpaid on the Debentures from and including the immediately preceding Interest Payment Date to, but
excluding, the Remarketing
Settlement Date shall be payable to the holders of the Debentures on the Special Record Date, and (if applicable), as a result, Distributions accumulated and unpaid on the Preferred Securities from
and including the immediately preceding Distribution Date to, but excluding, the Remarketing Settlement Date shall be payable to the Holders of the Preferred Securities on the Special Record Date; 



    (iv) in
connection with a Remarketing upon a Trading Remarketing Event or a Legal Cause Remarketing Event, the Sponsor shall be obligated to redeem the Warrants on the
Remarketing 



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Settlement Date at a redemption price per Warrant equal to the Warrant Value as of the end of the day on the day next preceding the Remarketing Date; and 


    (v) on
and after the Remarketing Date, the Warrants shall be exercisable at the Exercise Price. 




    (e) If
none of the holders of Remarketed Securities elects to have Remarketed Securities remarketed in the Remarketing, the Remarketing Agent shall determine the rate
that would have been established had a Remarketing been held on the Remarketing Date, and such rate shall be the Reset Rate, and the related modifications to the other terms of the Preferred
Securities and to the terms of the Debentures and the Warrants shall be effective as of the Remarketing Date. 


    (f)  If,
by 4:00 p.m. (New York City time) on the Remarketing Date, the Remarketing Agent is unable to remarket all Remarketed Securities deemed tendered for
purchase, a Failed Remarketing shall be deemed to have occurred, and the Remarketing Agent shall so advise by telephone The Depository Trust Company ("DTC"), the Property Trustee, the Debenture
Trustee, the Trust and the Company. In the event of a Failed Remarketing: 



     (i) the
Accreted Value of the Debentures as of the end of the day on the day next preceding the Remarketing Date shall become due on the date which is 60 days
following the Failed Remarketing Date, and (if applicable), as a result, the Accreted Value of the Securities as of the end of the day on the day next preceding the Remarketing Date shall be redeemed
on the date which is 60 days following the Failed Remarketing Date; 


    (ii) the
rate of interest per annum on the Accreted Value of the Debentures shall become the Reset Rate, and (if applicable), as a result, the rate of Distribution per
annum on the Accreted Value of the Securities shall become the Reset Rate; and 


    (iii) pursuant
to the Indenture, the Company no longer shall have the option to defer payments of interest on the Debentures. 




    (g) By
approximately 4:30 p.m. (New York City time) on the Remarketing Date, provided that there has not been a Failed Remarketing, the Remarketing Agent shall
advise, by telephone: 



     (i) DTC,
the Property Trustee, the Debenture Trustee, the Trust and the Company of the Reset Rate determined in the Remarketing and the number of Remarketed Securities
(or, if applicable, aggregate principal amount of Remarketed Securities) sold in the Remarketing, 


    (ii) each
purchaser (or their DTC participant) of the Reset Rate and the number of Remarketed Securities (or, if applicable, aggregate principal amount of Remarketed
Securities) such purchaser is to purchase; and 



    (iii) each
purchaser to give instructions to its DTC participant to pay the purchase price on the Remarketing Settlement Date in same day funds against delivery of the
Remarketed Securities purchased through the facilities of DTC. 




    Section
2.  Representations, Warranties and Agreements of the Company.  The Company represents, warrants
and agrees (i) on and as of the date hereof, (ii) on and as of the date the Offering Memorandum or other Remarketing Materials (each as defined in Section 2(a) below) are first
distributed in connection with the Remarketing (the "Commencement Date") and (iii) on and as of the Remarketing Settlement Date, that: 



    (a) The
Company will prepare an offering memorandum dated the date hereof relating to the Securities. Copies of such offering memorandum will be delivered by the
Company to you. As used in this Agreement, "Offering Memorandum" means such offering memorandum, including the documents incorporated by reference
therein, in each case as amended or supplemented. Reference made herein to any Preliminary Offering Memorandum, the Offering Memorandum or 



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any other information furnished by the Issuers to the Remarketing Agent for distribution to investors in connection with the Remarketing (the "Remarketing Materials") shall be deemed to refer to and
include any documents incorporated by reference therein under the Securities Act as of the date of such Preliminary Offering Memorandum or the Offering Memorandum, as the case may be, or, in the case
of Remarketing Materials, referred to as incorporated by reference therein, and any reference to any amendment or supplement to any Preliminary Offering Memorandum, the Offering Memorandum or the
Remarketing Materials shall be deemed to refer to and include any document filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), after the date of such Preliminary Offering Memorandum or the Offering Memorandum incorporated by reference therein or, if so
incorporated, the Remarketing Materials, as the case may be. The Offering Memorandum, will not as of its date and as of the Commencement Date, contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;  provided that the Company makes no
representation or warranty as to information contained in or omitted from the Offering Memorandum in reliance upon
and in conformity with written information furnished to the Company by you specifically for inclusion therein. 


    (b) The
documents incorporated by reference in the Offering Memorandum (the "Incorporated Documents"), when they became
effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Exchange Act of 1934, as amended, and the Rules and
Regulations thereunder (collectively, the "Exchange Act"); none of such Incorporated Documents contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and any further documents so filed and incorporated by reference or deemed
to be incorporated by reference in the Offering Memorandum, when such documents are filed with Commission will conform in all material respects to the requirements of the Exchange Act and will not
contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading. 


    (c) The
Company and each of Washington Mutual Bank, FA, New American Capital, Inc. and Washington Mutual Bank have been duly incorporated and are validly
existing as corporations or depository institutions in good standing under the laws of their respective jurisdictions of incorporation are duly qualified to do business and are in good standing as
foreign corporations in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification other than where such
failures would not, either individually or in the aggregate, have a material adverse effect on the business, financial condition, operating results or prospects of the Company and its subsidiaries
taken as a whole, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged; and neither the Trust nor any of the
subsidiaries of the Company (other than Washington Mutual Bank, F.A., New American Capital, Inc. and Washington Mutual Bank (collectively, the "Significant
Subsidiaries")) is a "significant subsidiary", as such term is defined in Rule 405 of the Rules and Regulations. 


    (d) Each
of the Company and the Trust has an authorized capitalization as set forth in the Offering Memorandum, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid and non-assessable; and all of the issued shares of capital stock of each Significant Subsidiary of the Company
have been duly and validly authorized and issued and are fully paid and non-assessable and (except for directors' qualifying shares) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims. 



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    (e) Washington Mutual Bank, FA, Washington Mutual Bank and New American Capital, Inc. constitute the only "significant subsidiaries" (as such term is defined in
Rule 1-02 of Regulation S-X) of the Company. 


    (f)  The
Indenture has been duly authorized, executed and delivered by the Company and (assuming due execution and delivery by the Debenture Trustee) constitutes a
valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; and the Debentures have been duly authorized, executed, issued and delivered by the Company and (assuming due authentication by the Debenture Trustee) constitute valid and
binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing. 


    (g) The
Declaration has been duly authorized, executed and delivered by the Company and the Administrative Trustees and (assuming due execution and delivery by the
Property Trustee and the Delaware Trustee) constitutes a valid and binding agreement of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and fair dealing. 


    (h) The
Guarantee Agreement has been duly authorized, executed and delivered by the Guarantor and (assuming due execution and delivery by the Guarantee Trustee)
constitutes a valid and binding agreement of the Guarantor enforceable against the Guarantor in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing. 


    (i)  This
Agreement has been duly authorized, executed and delivered by each of the Company and the Trust. 


    (j)  The
Remarketed Securities, the Indenture, the Declaration, the Guarantee Agreement and the Remarketing Agreement, when the Remarketed Securities are delivered
pursuant to this Agreement, will conform to the descriptions thereof contained in the Offering Memorandum and in any Remarketing Materials. 



    (k) The
execution, delivery and performance of this Agreement, the Indenture, the Declaration, the Guarantee Agreement and the Remarketing Agreement by the Company, the
consummation by the Issuers of the transactions contemplated hereby and thereby and the issuance and delivery of the Debentures (the "Transactions") did not and will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the properties or assets of the Company or any of its subsidiaries is subject, nor
will such actions result in any violation of the provisions of the charter or by-laws of the Company or any of its subsidiaries or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their respective properties or assets; and except for such consents, approvals, authorizations, 



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registrations or qualifications as may be required under the Securities Act, Trust Indenture Act, Exchange Act and applicable state securities laws in connection with the initial distribution of the
Preferred Securities or the Remarketing, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the
Transactions. 


    (l)  There
are no contracts, agreements or understandings between (i) the Company and (ii) any person, granting such person the right to require the
Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company or under the
Securities Act. 


    (m) Neither
the Company nor any of its subsidiaries has sustained, since the date of the latest audited financial statements included or incorporated by reference in
the Offering Memorandum or in any Remarketing Materials, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Offering Memorandum and in any Remarketing Materials; and, since such date, there has
not been any material change in the consolidated share capital or long-term debt of the Company and its subsidiaries or the consolidated share capital or long-term debt of any
Significant Subsidiary or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Offering Memorandum and in any Remarketing Materials. 



    (n) The
financial statements filed as part of the Registration Statement or incorporated by reference in the Offering Memorandum or as presented in any Remarketing
Materials present fairly the financial condition and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in
conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved; and the supporting schedules included or incorporated by reference in the Offering Memorandum or in any Remarketing Materials
present fairly the information required to be stated therein. 


    (o) Deloitte &
Touche LLP, who have certified certain financial statements of the Company, whose report appears in the Offering Memorandum or is incorporated by
reference therein or in any Remarketing Materials and who have delivered the letter referred to in Section 6(h) hereof, are independent public accountants as required by the Securities Act and
the Rules and Regulations. 


    (p) Other
than as set forth or incorporated by reference in the Offering Memorandum, there are no legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or to which any property or asset of the Company or any of its subsidiaries is the subject which could reasonably be expected individually or in the aggregate to have a
Material Adverse Effect; and to the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others. 



    (q) There
are no contracts or other documents which are required to be described in the Offering Memorandum which have not been described in the Offering Memorandum or
incorporated therein by reference as permitted by the Rules and Regulations. 


    (r) None
of the Company nor any Significant Subsidiary has any material contingent liability which is not disclosed in the Offering Memorandum. 



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    (s) Neither the Company nor any of its Significant Subsidiaries is in violation of its charter or by-laws, is in default in any material respect, and no
event has occurred which, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or is in
violation in any material respect of any law, ordinance, governmental rule, regulation or court decree to which it or its properties or assets may be subject or has failed to obtain any material
license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its properties or assets or to the conduct of its business. 


    (t)  Neither
the Company nor any Significant Subsidiary of the Company is an "investment company" within the meaning of such term under the Investment Company Act of
1940, as amended (the "1940 Act"), and the rules and regulations of the Commission thereunder. 


    (u) The
Company and each Significant Subsidiary has statutory authority, franchises and consents free from burdensome restrictions and adequate for the conduct of the
business in which it is engaged. 


    (v) Washington
Mutual Bank, FA a federal savings bank (the "Bank") holds a valid charter from the Office of Thrift Supervision to do business as a federal savings bank
under the laws of the United States and has full corporate power and authority to own its properties and conduct its business as described in the Offering Memorandum, as amended or supplemented as of
the Commencement Date, and all the outstanding shares of capital stock of the Bank have been duly and validly authorized and issued, are fully paid and nonassessable, and are directly owned by the
Company free and clear of liens and encumbrances. 




    Section
3.  Representations, Warranties and Agreements of the Company and the Trust.  The Company and the
Trust, jointly and severally, represent, warrant and agree, (i) on and as of the date hereof, (ii) on and as of the Commencement Date and (iii) on and as of the Remarketing
Settlement Date that: 



    (a) The
Trust has been duly created and is validly existing as a business trust in good standing under the Business Trust Act of the State of Delaware (the "Delaware
Business Trust Act") with the trust power and authority to own property and conduct its business as described in the Offering Memorandum, and has conducted and will conduct no business other than the
transactions contemplated by this Agreement as described in the Offering Memorandum or in any Remarketing Materials; the Trust is not a party to or bound by any agreement or instrument other than this
Agreement, the Declaration and the other agreements entered into in connection with the transactions contemplated hereby; the Trust has no liabilities or obligations other than those arising out of
the transactions contemplated by this Agreement and the Declaration and described in the Offering Memorandum or in any Remarketing Materials; and the Trust is not a party to or subject to any action,
suit or proceeding of any nature. 


    (b) The
Declaration has been duly authorized, executed and delivered by the Company, as Sponsor, and the Administrative Trustees and (assuming due authorization,
execution and delivery by the Property Trustee and the Delaware Trustee) constitutes a valid and binding obligation of the Trust enforceable against the Trust in accordance with its terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing, and will conform to the description thereof contained in the Offering Memorandum or in
any Remarketing Materials. 



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    (c) The Trust Securities are duly authorized, validly issued, fully paid and, in the case of the Preferred Securities, nonassessable and conform to the descriptions
contained in the Offering Memorandum or in any Remarketing Materials. 


    (d) This
Agreement has been duly authorized, executed and delivered by the Trust. 


    (e) The
execution, delivery and performance of this Agreement, the Declaration and the Trust Securities by the Trust, the purchase of the Debentures by the Trust from
the Company, the distribution of the Debentures upon the liquidation of the Trust in the circumstances contemplated by the Declaration, and the consummation by the Trust of the transactions
contemplated herein and in the Declaration (the "Trust Transactions"), did not and will not result in a violation of any statute or order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Trust or any of its assets; and except for such consents, approvals, authorizations, registrations or qualifications as may be required under the Securities Act,
Trust Indenture Act, Exchange Act or applicable state securities laws in connection with the initial distribution of the Preferred Securities and the Remarketing, no consent, approval, authorization
or order of or filing or registration with, any such court or governmental agency or body is required for the Trust Transactions. 


    (f)  The
Trust is not an "investment company" within the meaning of such term under the 1940 Act and the rules and regulations of the Commission thereunder. 




    Section
4.  Fees and Expenses.  (a) For the performance of its services as Remarketing Agent
hereunder, the Company shall pay to the Remarketing Agent on the Remarketing Settlement Date, by wire transfer to an account designated by the Remarketing Agent, an amount not to exceed $0.10 per
Remarketed Security on the day next preceding the Remarketing Date successfully remarketed by the Remarketing Agent. 


    (b) The
Company agrees to pay: 



     (i) the
costs incident to the preparation and printing of the Offering Memorandum and any Remarketing Materials and any amendments or supplements thereto; 



    (ii) the
costs of distributing the Offering Memorandum and any Remarketing Materials and any amendments or supplements thereto; 


    (iii) the
fees and expenses of qualifying the Remarketed Securities under the securities laws of the several jurisdictions as provided in Section 5(h) and of
preparing, printing and distributing a Blue Sky Memorandum (including related fees and expenses of counsel to the Remarketing Agent); 


    (iv) all
other costs and expenses incident to the performance of the obligations of the Company and the Trust hereunder; and 



    (v) the
reasonable fees and expenses of counsel to the Remarketing Agent in connection with their duties hereunder. 




The
Trust shall not be liable for any fees and expenses in this Section. 


    Section
5.  Further Agreements of the Company.  The Company agrees to use its reasonable best efforts: 



    (a) To
prepare any offering memorandum, if required, in connection with the Remarketing, in a form approved by the Remarketing Agent. 


    (b) To
furnish promptly to the Remarketing Agent and to counsel to the Remarketing Agent, copies of the Offering Memorandum (and all amendments and supplements thereto)
in each case as soon as available and in such quantities as the Initial Purchaser reasonably requests for internal 



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use and for distribution to prospective purchasers. The Company will pay the expenses of printing and distributing to the Initial Purchaser all such documents. 



    (c) To
deliver promptly to the Remarketing Agent in New York City such number of the following documents as the Remarketing Agent shall request: 



     (i) the
Offering Memorandum and any amended or supplemented Offering Memorandum; 


    (ii) any
document incorporated by reference in the Offering Memorandum (excluding exhibits thereto); and 


    (iii) any
Remarketing Materials; 




and,
if the delivery of an offering memorandum is required at any time in connection with the Remarketing and if at such time any event shall have occurred as a result of which the Offering Memorandum
as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Offering Memorandum is delivered, not misleading, or if for any other reason it shall be necessary during such same period to amend or supplement the
Offering Memorandum or to file under the Exchange Act any document incorporated by reference in the Offering Memorandum in order to comply with the Securities Act or the Exchange Act, to notify the
Remarketing Agent and, upon its request, to file such document and to prepare and furnish without charge to the Remarketing Agent and to any dealer in securities as many copies as the Remarketing
Agent may from time to time request of an amended or supplemented Offering Memorandum which will correct such statement or omission or effect such compliance. 



    (d) For
so long as any of the Securities are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, to provide to any holder of
the Unit Securities or to any prospective purchaser of the Securities designated by any holder, upon request of such holder or prospective purchaser, information required to be provided by
Rule 144A(d)(4) of the Securities Act if, at the time of such request, the Company is not subject to the reporting requirements under Section 13 or 15(d) of the Exchange Act. 


    (e) Promptly
from time to time to take such action as the Remarketing Agent may reasonably request to qualify any of the Remarketed Securities for offering and sale
under the securities laws of such jurisdictions as the Remarketing Agent may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the Securities; provided that in connection therewith, neither the Company shall be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction. 




    Section
6.  Conditions to the Remarketing Agent's Obligations.  The obligations of the Remarketing Agent
hereunder are subject to the accuracy, on and as of the date when made, of the representations and warranties of the Company and the Trust contained herein, to the performance by the Company and the
Trust of their respective obligations hereunder, and to each of the following additional terms and conditions: 



    (a) The
Remarketing Agent shall not have discovered and disclosed to the Company prior to on the Remarketing Settlement Date that the Offering Memorandum, or the
Remarketing Materials or any amendment or supplement thereto contains any untrue statement of a fact which, in the opinion of counsel for the Remarketing Agent, is material or omits to state any fact
which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading. 



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    (b) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Declaration, the Indenture, the Remarketed
Securities, the Guarantee Agreement, the Preferred Securities, the Common Securities, the Offering Memorandum, the Remarketing Materials and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the Remarketing Agent, and the Issuers shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon such matters. 


    (c) Heller
Ehrman White & McAuliffe LLP, counsel to the Company, shall have furnished to the Remarketing Agent its written opinion, as counsel to the Company,
addressed to the Remarketing Agent and dated the Remarketing Settlement Date, in form and substance satisfactory to the Remarketing Agent, to the effect that: 



     (i) The
Company and each Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of their respective
jurisdictions of incorporation, with respective power and authority (corporate and other) to own its properties and conduct its businesses as described in the Offering Memorandum. 


    (ii) The
Company has an authorized capitalization as set forth in the Offering Memorandum and in any Remarketing Materials, all of the issued capital shares of the
Company and each Significant Subsidiary of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; and all of the issued capital shares of each
Significant Subsidiary (except for directors' qualifying shares and as set forth or incorporated by reference in the Registration Statement) are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims. 


    (iii) The
Company and each Significant Subsidiary has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, or is subject to no material liability or disability by reason of
the failure to be so qualified in any such jurisdiction. 


    (iv) There
are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of the Debentures pursuant to the
Company's charter or by-laws or any agreement or other instrument known to such counsel. 


    (v) To
such counsel's knowledge and other than as set forth in the Offering Memorandum or in any Remarketing Materials, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or to which any property or asset of the Company or any of its
subsidiaries is subject which could reasonably be expected individually or in the aggregate to have a material adverse effect on the consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries; and, to such counsel's knowledge and other than as set forth in the Offering Memorandum, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others. 


    (vi) The
statements contained in the Offering Memorandum under the captions "Description of the Preferred Securities", "Description of the Common Stock", "Description
of the Debentures", "Description of the Guarantee" and "Relationship Among the Preferred Securities, the Debentures and the Guarantee" insofar as they purport to constitute summaries of certain terms
of documents referred to therein, constitute accurate summaries of the terms of such documents in all material respects. 




10





 



   (vii) The Indenture has been duly authorized, executed and delivered by the Company and (assuming due authentication, execution and delivery by the Debenture Trustee)
constitutes a valid and binding agreement of the Company enforceable against it in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing. 


   (viii) The
Debentures have been duly authorized, executed and delivered by the Company and (assuming due authentication by the Debenture Trustee) constitute valid and
binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing. 


    (ix) The
Declaration has been duly authorized, executed and delivered by the Company. 


    (x) The
Guarantee Agreement has been duly authorized, executed and delivered by the Guarantor and (assuming due execution and delivery by the Guarantee Trustee)
constitutes a valid and binding agreement of the Guarantor enforceable against the Guarantor in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing. 


    (xi) This
Agreement has been duly authorized, executed and delivered by the Company. 


   (xii) The
Transactions will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Trust, the Company or any of the Significant Subsidiaries is a party or by which the Trust,
the Company or any of the Significant Subsidiaries is bound or to which any of the properties or assets of the Trust, the Company or any of the Significant Subsidiaries is subject, nor will such
actions result in any violation of the provisions of the charter or by-laws of the Company or any of the Significant Subsidiaries or the Declaration or Certificate of Trust of the Trust or
any statute, rule or regulation or any order known to such counsel of any court or governmental agency or body having jurisdiction over the Trust, the Company or any of the Significant Subsidiaries or
any of their properties or assets; and, except for the registration of the Debentures, the Preferred Securities and the Guarantee under the Securities Act, the qualification of the Indenture, the
Declaration and the Guarantee Agreement under the Trust Indenture Act, and such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and
applicable state securities laws, no consent, approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the Transactions. 



   (xiii) None
of the Trust, the Company or any of the Significant Subsidiaries of the Company is an "investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the 1940 Act. 


   (xiv) Based
upon current law and the assumptions stated or referred to therein: (i) the Trust will be classified as a grantor trust for United States federal
income tax purposes and not as an association taxable as a corporation; and (ii) the statements set forth in the Offering Memorandum or in the Remarketing Materials under the caption "United
States Federal 




11





 



Income Tax Consequences" insofar as they purport to constitute summaries of matters of United States federal tax laws and regulations or legal conclusions with respect thereto, constitute accurate
summaries of the matters described therein in all material respects. 




In
rendering such opinion, such counsel may state that its opinion is limited to matters governed by the Federal laws of the United States of America and the laws of the State of Washington and the
State of New York (with respect to clause (x)). Such counsel shall also advise the Remarketing Agent that although such counsel is not passing upon and assumes no responsibility or liability
for the accuracy, completeness or fairness of the statements contained in the documents incorporated by reference in the Offering Memorandum or any further amendment or supplement thereto made by the
Issuers prior to such Remarketing Settlement Date, they have no reason to believe that any of such documents (other than the financial statements and related schedules therein, as to which such
counsel need express no opinion), as of its date, as the case may be, contained, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading. Such counsel shall also advise the
Remarketing Agent that although such counsel is not passing upon and, except as set forth in clauses (viii) and (xvii) above, assumes no responsibility or liability for the accuracy,
completeness or fairness of the statements contained in the Offering Memorandum and the Remarketing Materials and any further amendments and supplements thereto made by the Issuers prior to such date,
they have no reason to believe that, as of its date, the Offering Memorandum and the Remarketing Materials or any further amendment or supplement thereto made by the Issuers prior to such Remarketing
Settlement Date (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or that, as of such Remarketing Settlement Date, either the
Offering Memorandum or the Remarketing Materials or any further amendment or supplement thereto made by the Issuers prior to such Remarketing Settlement Date (other than the financial statements and
related schedules therein, as to which such counsel need express no opinion) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading. 


    (d) Richards,
Layton & Finger, P.A., special Delaware counsel to the Issuers, shall have furnished to the Remarketing Agent its written opinion, as special
Delaware counsel to the Issuers, addressed to the Remarketing Agent and dated the Remarketing Settlement Date, in form and substance satisfactory to the Remarketing Agent, to the effect that: 



     (i) The
Trust has been duly created and is validly existing in good standing as a business trust under the Delaware Business Trust Act. Under the Delaware Business
Trust Act and the Declaration, the Trust has the business trust power and authority to own property and to conduct its business as described in the Offering Memorandum and the Remarketing Materials
and to enter into and perform its obligations under this Agreement and the Trust Securities. 


    (ii) The
Common Securities have been duly authorized by the Declaration and are validly issued and (subject to the terms in this paragraph) fully paid undivided
beneficial ownership interests in the assets of the Trust (such counsel may note that the holders of Common Securities will be subject to the withholding provisions of Section 10.4 of the
Declaration, will be required to make payment or provide indemnity or security as set forth in the Declaration and will be liable for the debts and obligations of the Trust to the extent provided in
Section 9.1(b) of the Declaration); under the Delaware Business Trust Act and the Declaration, the issuance of the Common Securities is not subject to preemptive rights. 




12





 



    (iii) The Preferred Securities have been duly authorized by the Declaration and are validly issued and (subject to the terms in this paragraph) fully paid and
nonassessable undivided beneficial ownership interests in the assets of the Trust, the holders of the Preferred Securities will be entitled to the benefits of the Declaration (subject to the
limitations set forth in clause (v) below) and will be entitled to the same limitation of personal liability as extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of Delaware (such counsel may note that the holders of Preferred Securities will be subject to the withholding provisions of
Section 10.4 of the Declaration and will be required to make payment or provide indemnity or security as set forth in the Declaration); under the Delaware Business Trust Act and the
Declaration, the issuance of the Preferred Securities is not subject to preemptive rights. 


    (iv) Under
the Delaware Business Trust Act and the Declaration, all necessary trust action has been taken to duly authorize the execution, delivery and performance by
the Trust of this Agreement. 


    (v) Assuming
the Declaration has been duly authorized by the Company and has been duly executed and delivered by the Company and the Administrative Trustees, and
assuming due authorization, execution and delivery of the Declaration by the Property Trustee and the Delaware Trustee, the Declaration constitutes a valid and binding obligation of the Company and
the Administrative Trustees enforceable against the Company and the Administrative Trustees in accordance with its terms, except to the extent that enforcement thereof may be limited by
(i) bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation, fraudulent conveyance or transfer and other similar laws relating to or affecting the rights and remedies of
creditors generally, (ii) principles of equity, including applicable law relating to fiduciary duties (regardless of whether considered and applied in a proceeding in equity or at law), and
(iii) the effect of applicable public policy on the enforceability of provisions relating to indemnification or contribution. 


    (vi) The
issuance and sale by the Trust of the Preferred Securities, the purchase by the Trust of the Debentures, the execution, delivery and performance by the Trust
of this Agreement, the consummation by the Trust of the transactions contemplated by this Agreement and compliance by the Trust with its obligations thereunder do not violate any of the provisions of
the Certificate of Trust or the Declaration or any applicable Delaware law or administrative regulation. 


   (vii) Assuming
that the Trust derives no income from or connected with sources within the State of Delaware and has no assets, activities (other than having a Delaware
Trustee as required by the Delaware Business Trust Act and the filing of documents with the Secretary of State of Delaware) or employees in the State of Delaware, no filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any Delaware court or Delaware governmental authority or agency (other that as may be required under the securities or blue
sky laws of the state of Delaware, as to which such counsel need express no opinion) is necessary or required to be obtained by the Trust solely in connection with the due authorization, execution and
delivery by the Trust of this Agreement or the offering, issuance, sale or delivery of the Preferred Securities. 




    (e) Emmet,
Marvin & Martin, LLP, counsel to the Property Trustee and the Guarantee Trustee, shall have furnished to the Remarketing Agent its written opinion, as
counsel to The Bank of New York, as Property Trustee and Guarantee Trustee, addressed to the Remarketing Agent 



13





 


and dated the Remarketing Settlement Date, in form and substance satisfactory to the Remarketing Agent, to the effect that: 



     (i) Each
of the Property Trustee and the Guarantee Trustee is duly incorporated as a New York banking corporation with all necessary power and authority to execute and
deliver and perform their respective obligations under the terms of the Declaration and the Guarantee Agreement. 


    (ii) The
execution, delivery and performance by the Property Trustee of the Declaration and the execution, delivery and performance by the Guarantee Trustee of the
Guarantee Agreement have been duly authorized by all necessary corporate action on the part of the Property Trustee and the Guarantee Trustee, respectively. The Declaration has been duly executed and
delivered by the Property Trustee and the Guarantee Agreement has been duly executed and delivered by the Guarantee Trustee and each constitutes the valid and binding agreement of the Property Trustee
and the Guarantee Trustee, respectively, enforceable against the Property Trustee and the Guarantee Trustee, respectively, in accordance with their terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and fair dealing. 


    (iii) The
execution, delivery and performance of the Declaration and the Guarantee Agreement by the Property Trustee and the Guarantee Trustee, respectively, do not
conflict with or constitute a breach of the charter or by-laws of the Property Trustee and the Guarantee Trustee, respectively. 


    (iv) No
consent, approval or authorization of, or registration with or notice to, any New York or federal banking authority is required for the execution, delivery or
performance by the Property Trustee and the Guarantee Trustee of the Declaration and the Guarantee Agreement, respectively. 




    (f)  Richards
Layton & Finger, P.A., counsel to the Delaware Trustee, shall have furnished to the Remarketing Agent its written opinion, as counsel to The Bank
of New York (Delaware), as Delaware Trustee, addressed to the Remarketing Agent and dated the Remarketing Settlement Date, in form and substance satisfactory to the Remarketing Agent, to the effect
that: 



     (i) The
Delaware Trustee has been duly incorporated and is validly existing as a banking corporation in good standing under the laws of the State of Delaware with all
necessary power and authority to execute and deliver, and to carry out and perform its obligations under the terms of the Declaration. 



    (ii) The
execution, delivery and performance by the Delaware Trustee of the Declaration has been duly authorized by all necessary corporate action on the part of the
Delaware Trustee. The Declaration has been duly executed and delivered by the Delaware Trustee and constitutes the valid and binding agreement of the Delaware Trustee enforceable against the Delaware
Trustee in accordance with its terms, subject to (i) bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation, fraudulent conveyance or transfer and other similar laws
relating to or affecting the rights and remedies of creditors generally, (ii) principles of equity, including applicable law relating to fiduciary duties (regardless of whether considered and
applied in a proceeding in equity or at law), and (iii) the effect of applicable public policy on the enforceability of provisions relating to indemnification or contribution. 


    (iii) The
execution, delivery and performance of the Declaration by the Delaware Trustee do not conflict with or constitute a breach of the charter or
by-laws of the Delaware Trustee. 




14





 



    (iv) No consent, approval or authorization of, or registration with or notice to, any Delaware or federal banking authority is required for the execution, delivery or
performance by the Delaware Trustee of the Declaration. 




    (g) On
the Remarketing Date, the Company shall have furnished to the Remarketing Agent a letter addressed to the Remarketing Agent and dated such date, in form and
substance satisfactory to the Remarketing Agent, of Deloitte & Touche LLP, or such other firm of nationally recognized independent public accountants satisfactory to the Remarketing Agent,
containing statements and information of the type ordinarily included in accountants' "comfort letters" with respect to certain financial information contained in the Offering Memorandum and in the
Remarketing Materials. 


    (h) The
Company shall have furnished to the Remarketing Agent a certificate, dated the Remarketing Settlement Date, of its Chairman of the Board and President, or its
Senior Executive Vice President, and its Chief Financial Officer, stating that: 



     (i) The
representations, warranties and agreements of the Company in Sections 2 and 3 are true and correct as of the Remarketing Settlement Date; the Company have
complied with all its agreements contained herein; and the conditions contained in Section 6(a) have been fulfilled; 



    (ii) (A)
Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference
in the Offering Memorandum or in the Remarketing Materials any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, which could, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, otherwise than as set forth or contemplated in the Offering Memorandum or in the Remarketing Materials and (B) since the respective dates as of which information is
given in the Offering Memorandum or in the Remarketing Materials, there has not been any material change in the consolidated share capital or long-term debt of the Company and its
subsidiaries or the consolidated share capital or long-term debt of any Significant Subsidiary or any change, or any development involving a prospective change, in or affecting the general
affairs, management, financial position, shareholders' equity or results of operations of the Company and its subsidiaries (taken as a whole), otherwise than as set forth or contemplated in the
Offering Memorandum or the Remarketing Materials; and 


    (iii) They
have carefully examined the Offering Memorandum and the Remarketing Materials and, in their opinion (A) the Offering Memorandum and the Remarketing
Materials, as of their respective dates, did not include any untrue statement of a material fact and did not omit to state any material fact required to be stated therein or necessary to make the
statements therein not misleading, and (B) since such dates, no event has occurred which should have been set forth in a supplement or amendment to the Offering Memorandum or the Remarketing
Materials. 




    (i)  Neither
the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by
reference in the Offering Memorandum and in the Remarketing Materials any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Offering Memorandum or in the Remarketing Materials or (ii) since
such date there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position, stockholders' equity or results of 



15





 


operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Offering Memorandum or in the Remarketing Materials, the effect of which, in any such case described
in clause (i) or (ii), is, in the judgment of the Remarketing Agent, so material and adverse as to make it impracticable or inadvisable to proceed with the Remarketing on the terms and in the
manner contemplated in the Offering Memorandum and in the Remarketing Materials. 


    (j)  Without
the prior written consent of the Remarketing Agent, the Declaration or the Indenture shall not have been amended in any manner, or otherwise contain any
provision contained therein as of the date hereof that, in the opinion of the Remarketing Agent, materially changes the nature of the Remarketed Securities or the Remarketing Procedures. 


    (k) Subsequent
to the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Preferred Securities or any of
the Company's or any Significant Subsidiary's debt securities by any "nationally recognized statistical rating organization", as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Securities Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Preferred Securities or any of the Company's or any Significant Subsidiary's debt securities. 


    (l)  Subsequent
to the execution and delivery of this Agreement, there shall not have occurred any of the following: 



     (i) trading
in securities generally on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading
in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or minimum prices shall have been established on any such exchange
or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction; 


    (ii) a
banking moratorium shall have been declared by Federal or state authorities; 



    (iii) the
United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have
been a declaration of a national emergency or war by the United States; or 


    (iv) there
shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the
financial markets in the United States shall be such) as to make it, in the judgment of the Remarketing Agent, impracticable or inadvisable to proceed with the Remarketing on the terms and in the
manner contemplated in the Offering Memorandum or in the Remarketing Materials. 





    All
opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Remarketing Agent. 


    Section
7.  Indemnification and Contribution.  (a) The Issuers shall indemnify and hold harmless the
Remarketing Agent, its officers and employees and each person, if any, who controls the Remarketing Agent within the meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of the Remarketed
Securities), to which the Remarketing Agent or that officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon: 



     (i) any
untrue statement or alleged untrue statement of a material fact contained (A) in any Offering Memorandum or the Remarketing Materials or in any amendment
or supplement thereto, 



16





 


or (B) in any blue sky application or other document prepared or executed by the Issuers (or based upon any written information furnished by the Issuers) specifically for the purpose of
qualifying any or all of the Remarketed Securities under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a "Blue Sky
Application"), or 


    (ii) the
omission or alleged omission to state in any Offering Memorandum or the Remarketing Materials or in any amendment or supplement thereto, or in any Blue Sky
Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, 




and
shall reimburse the Remarketing Agent and each such officer, employee and controlling person promptly upon demand for any legal or other expenses reasonably incurred by the Remarketing Agent or
that officer, employee or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are
incurred; provided however, that the Issuers shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in any Offering Memorandum or the Remarketing Materials or in any such amendment
or supplement, or in any Blue Sky Application in reliance upon and in conformity with the written information furnished to the Issuers by or on behalf of the Remarketing Agent specifically for
inclusion therein and described in a letter from the Remarketing Agent to the Company and provided further, that as to any Preliminary Offering
Memorandum this indemnity agreement shall not inure to the benefit of the Remarketing Agent, its officers or employees or any person controlling the Remarketing Agent on account of any loss, claim,
damage, liability or action arising from the sale of the Remarketed Securities to any person by the Remarketing Agent if the Remarketing Agent failed to send or give a copy of the Offering Memorandum,
as the same may be amended or supplemented, to that person within the time required by the Securities Act, and the untrue statement or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact in such Preliminary Offering Memorandum was corrected in the Offering Memorandum, unless such failure resulted from non-compliance by the Company
with Section 5(c). For purposes of the last proviso to the immediately preceding sentence, the term "Offering Memorandum" shall not be deemed to include the documents incorporated therein by
reference, and the Remarketing Agent shall not be obligated to send or give any supplement or amendment to any document incorporated by reference in any Preliminary Offering Memorandum or the Offering
Memorandum to any person other than a person to whom the Remarketing Agent had delivered such incorporated document or documents in response to a written request therefor. The foregoing indemnity
agreement is in addition to any liability which the Issuers may otherwise have to the Remarketing Agent or to any officer, employee or controlling person of the Remarketing Agent. 


    (b) The
Remarketing Agent shall indemnify and hold harmless the Company, its officers and employees, its directors, the Trust and each Trustee, and each person, if any,
who controls any of the Issuers within
the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company, any such director, officer or
employee, the Trust or any such Trustee or any such controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon: 



     (i) any
untrue statement or alleged untrue statement of a material fact contained (A) in any Offering Memorandum or the Remarketing Materials or in any amendment
or supplement thereto, or (B) in any Blue Sky Application; or 


    (ii) the
omission or alleged omission to state in any Offering Memorandum or the Remarketing Materials or in any amendment or supplement thereto, or in any Blue Sky 



17





 


Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, 




but
in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the written information
furnished to the Company or the Trustee by or on behalf of the Remarketing Agent specifically for inclusion therein and described in a letter from the Remarketing Agent to the Company, and shall
reimburse the Company and any such director, officer or employee, the Trust or any such Trustee or such controlling person for any legal or other expenses reasonably incurred by the Company or any
such director or officer, the Trust or any Trustee or any such controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability which the Remarketing Agent may otherwise have to the Company or any such director or
officer, the Trust or any such Trustee or any such controlling person. 


    (c) Promptly
after receipt by an indemnified party under this Section 7 of notice of any claim or the commencement of any action, the indemnified party shall, if
a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify the indemnifying party in writing of the claim or the commencement of that action;  provided however, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have under this
Section 7 except to the extent it has been materially prejudiced by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to an indemnified party otherwise than under this Section 7. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with counsel satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 7 for any legal or other expenses subsequently
incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation; provided however, that the Remarketing Agent shall have the right to employ
counsel to represent jointly the Remarketing Agent and its officers, employees and controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be
sought by the Remarketing Agent against the Issuers under this Section 7 if, in the reasonable judgment of the Remarketing Agent, it is advisable for the Remarketing Agent and those officers,
employees and controlling persons to be jointly represented by separate counsel, and in that event the fees and expenses of such separate counsel shall be paid by the Issuers. No indemnifying party
shall: 



     (i) without
the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties
are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of
such claim, action, suit or proceeding, or 


    (ii) be
liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with its
written consent or if there be a final judgment of the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment. 



18





 

    (d) If
the indemnification provided for in this Section 7 shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under
Section 7(a) or 7(b) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof: 



     (i) in
such proportion as shall be appropriate to reflect the relative benefits received by the Issuers on the one hand and the Remarketing Agent on the other hand from
the Remarketing; or 


    (ii) if
the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the Issuers on the one hand and the Remarketing Agent on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations. 




The
relative benefits received by the Issuers on the one hand and the Remarketing Agent on the other with respect to such offering shall be deemed to be in the same proportion as the total liquidation
or principal amount of the Remarketed Securities less the fee paid to the Remarketing Agent pursuant to Section 4(a) of this Agreement, on the one hand, and the total fees received by the
Remarketing Agent pursuant to such Section 4(a), on the other hand, bear to the total liquidation or principal amount of the Remarketed Securities. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Issuers on the one hand
or the Remarketing Agent on the other hand, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company
and the Remarketing Agent agree that it would not be just and equitable if contributions pursuant to this Section 7(d) were to be determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7(d) shall be deemed to include, for purposes of this Section 7(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 7(d), the Remarketing Agent shall not be required to
contribute any amount in excess of the amount by which the fees received by it under Section 4 exceed the amount of any damages which the Remarketing Agent has otherwise paid or become liable
to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. 


    Section
8.  Resignation and Removal of the Remarketing Agent.  The Remarketing Agent may resign and be
discharged from its duties and obligations hereunder, and the Company may remove the Remarketing Agent, by giving 60 days' prior written notice, in the case of a resignation, to the Company,
DTC, the Unit Agent, the Property Trustee and the Debenture Trustee and, in the case of a removal, the removed Remarketing Agent, DTC, the Unit Agent, the Property Trustee and the Debenture Trustee;
provided however, that: 



     (i) the
Company may not remove the Remarketing Agent unless: 



    (A) the
Remarketing Agent becomes involved as a debtor in a bankruptcy, insolvency or similar proceeding; 


    (B) the
Remarketing Agent shall not be among the 15 underwriters with the largest volume underwritten in dollars, on a lead or co-managed basis, of U.S.
domestic debt securities during the twelve-month period ended as of the last calendar quarter preceding the Remarketing Settlement Date; or 




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    (C) the Remarketing Agent shall be subject to one or more legal restrictions preventing the performance of its obligations hereunder; and 




    (ii) no
such resignation nor any such removal shall become effective until the Company shall have appointed at least one nationally recognized broker-dealer as
successor Remarketing Agent and such successor Remarketing Agent shall have entered into a remarketing agreement with the Company and the Trust in which it shall have agreed to conduct the Remarketing
in accordance with the Remarketing Procedures. 




In
any such case, the Company will use its reasonable efforts to appoint a successor Remarketing Agent and enter into such a remarketing agreement with such person as soon as reasonably practicable.
The provisions of Sections 4 and 7 shall survive the resignation or removal of any Remarketing Agent pursuant to this Agreement. 


    Section
9.  Dealing in the Remarketed Securities.  The Remarketing Agent, when acting as a Remarketing
Agent or in its individual or any other capacity, may, to the extent permitted by law, buy, sell, hold and deal in any of the Remarketed Securities. The Remarketing Agent may exercise any vote or join
in any action which any beneficial owner of Remarketed Securities may be entitled to exercise or take pursuant to the Declaration or the Indenture with like effect as if it did not act in any capacity
hereunder. The Remarketing Agent, in its individual capacity, either as principal or agent, may also engage in or have an interest in any financial or other transaction with the Issuers as freely as
if it did not act in any capacity hereunder. 


    Section
10.  Remarketing Agent's Performance; Duty of Care.  The duties and obligations of the
Remarketing Agent shall be determined solely by the express provisions of this Agreement, the Declaration and the Indenture. No implied covenants or obligations of or against the Remarketing Agent
shall be read into this Agreement, the Declaration or the Indenture. In the absence of bad faith on the part of the Remarketing Agent, the Remarketing Agent may conclusively rely upon any document
furnished to it, which purports to conform to the requirements of this Agreement, the Declaration or the Indenture as to the truth of the statements expressed in any of such documents. The Remarketing
Agent shall be protected in acting upon any document or communication reasonably believed by it to have been signed, presented or made by the proper party or parties. The Remarketing Agent, acting
under this Agreement, shall incur no liability to the Company or to any holder of Remarketed Securities in its individual capacity or as Remarketing Agent for any action or failure to act, on its part
in connection with a Remarketing or otherwise, except if such liability is judicially determined to have resulted from the gross negligence or willful misconduct on its part. The Remarketing Agent
will be entitled to rely conclusively on any determination by the Calculation Agent under the Calculation Agency Agreement, dated as of April 30, 2001, between the Company and Reinsel &
Company LLP, as Calculation Agent, of the Accreted Value or Discount relating to the Preferred Securities and Debentures, as applicable, and will incur no liability to the Company or any holder of
Remarketed Securities relating to inaccuracies in calculating such Accreted Value or Discount. 


    Section
11.  Termination.  This Agreement shall terminate as to the Remarketing Agent on the effective
date of the resignation or removal of the Remarketing Agent pursuant to Section 8. In addition, the obligations of the Remarketing Agent hereunder may be terminated by it by notice given to the
Company or the Trust prior to 10:00 a.m. (New York City time) on the Remarketing Settlement Date if, prior to that time, any of the events described in Sections 6(j), (k), (l) or
(m) shall have occurred. 


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    If this Agreement is terminated pursuant to any of the provisions hereof, except as otherwise provided herein, the Company shall not be under any liability to the Remarketing Agent
and the Remarketing Agent shall not be under any liability to the Company, except that: 



    (x) if
this Agreement is terminated by the Remarketing Agent because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of
the conditions of this Agreement, the Company will reimburse the Remarketing Agent for all of its out-of-pocket expenses (including the fees and disbursements of its counsel)
reasonably incurred by it; and 


    (y) if
the Remarketing Agent failed or refused to purchase the Remarketed Securities hereunder, without some reason sufficient hereunder to justify the cancellation or
termination of its obligations hereunder, the Remarketing Agent shall not be relieved of liability to the Company for damages occasioned by its default. 




    Section
12.  Notices.  All statements, requests, notices and agreements hereunder shall be in writing,
and: 



    (a) if
to the Remarketing Agent, shall be delivered or sent by mail, telex or facsimile transmission to Lehman Brothers Inc., Three World Financial Center, New
York, New York 10285, Attention: Syndicate Department (Fax: (212)-528-8822); 


    (b) if
to the Issuers shall be delivered or sent by mail, telex or facsimile transmission to the address of the Company set forth in the Offering Memorandum, Attention:
Fay L. Chapman (Fax: (206) 461-5739). 




Any
such statements, requests, notices or agreements shall take effect at the time of receipt thereof. 


    Section
13.  Persons Entitled to Benefit of Agreement.  This Agreement shall inure to the benefit of and
be binding upon the Remarketing Agent, the Company, the Trust and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that: 



    (x) the
representations, warranties, indemnities and agreements of the Issuers contained in this Agreement shall also be deemed to be for the benefit of the officers
and employees of the Remarketing Agent and the person or persons, if any, who control the Remarketing Agent within the meaning of Section 15 of the Securities Act; and 


    (y) the
indemnity agreement of the Remarketing Agent contained in Section 7(b) of this Agreement shall be deemed to be for the benefit of directors, officers and
employees of the Issuers and any person controlling the Issuers within the meaning of Section 15 of the Securities Act. 




Nothing
contained in this Agreement is intended or shall be construed to give any person, other than the persons referred to herein, any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision contained herein. 


    Section
14.  Survival.  The respective indemnities, representations, warranties and agreements of the
Issuers and the Remarketing Agent contained in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall survive the Remarketing and shall remain in full force
and effect, regardless of any investigation made by or on behalf of any of them or any person controlling any of them. 


    Section
15.  Definition of the Terms "Business Day" and "Subsidiary".  For purposes of this Agreement,
(a) "business day" means any day on which the New York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the meaning set forth in Rule 405 under the
Securities Act. 


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    Section 16.  Governing Law.  This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York. 


    Section
17.  Counterparts.  This Agreement may be executed in one or more counterparts and, if executed
in more than one counterpart, the executed counterparts shall each be deemed to be an original but all such counterparts shall together constitute one and the same instrument. 


    Section
18.  Headings.  The headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement. 


    If
the foregoing correctly sets forth the agreement among the Company, the Trust and the Remarketing Agent, please indicate your acceptance in the space provided for that purpose
below. 



	

 	
 	

Very truly yours,

WASHINGTON MUTUAL, INC.
	

 	
 	

By:	
 	

/s/ Fay L. Chapman
 Name: Fay L. Chapman

Title: Senior Executive Vice President
	

 	
 	

Very truly yours,

WASHINGTON MUTUAL CAPITAL TRUST 2001
	

 	
 	

By:	
 	

/s/ Fay L. Chapman
 Name: Fay L. Chapman

Title: Senior Executive Vice President





	

LEHMAN BROTHERS INC.	
 	

 
	

By:	
 	

signature not legible
 Authorized Representative	
 	

 




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Exhibit 4.12

WASHINGTON MUTUAL, INC. WASHINGTON MUTUAL CAPITAL TRUST 2001 REMARKETING AGREEMENT