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Exhibit 4.4    
  


    WASHINGTON MUTUAL, INC.

WASHINGTON MUTUAL CAPITAL TRUST 2001

and 


THE
BANK OF NEW YORK,

as Warrant Agent 


THE
BANK OF NEW YORK,

as Property Trustee 


THE
BANK OF NEW YORK,

as Agent 


UNIT
AGREEMENT 


Dated
as of April 30, 2001 









 
 
 

TABLE OF CONTENTS    
  



	 
	 	 
	 	Page

	RECITALS	 	1
	

 	
 	

ARTICLE I Definitions and Other Provisions of General Applications	
 	

1
	Section 1.1.	 	Definitions	 	1
	Section 1.2.	 	Compliance Certificates and Opinions	 	7
	Section 1.3.	 	Form of Documents Delivered to Agent	 	7
	Section 1.4.	 	Acts of Holders; Record Dates	 	8
	Section 1.5.	 	Notices	 	9
	Section 1.6.	 	Notice to Holders; Waiver	 	10
	Section 1.7.	 	Effect of Headings and Table of Contents	 	10
	Section 1.8.	 	Successors and Assigns	 	10
	Section 1.9.	 	Separability Clause	 	10
	Section 1.10.	 	Benefits of Agreement	 	10
	Section 1.11.	 	Governing Law	 	11
	Section 1.12.	 	Legal Holidays	 	11
	Section 1.13.	 	Counterparts	 	11
	Section 1.14.	 	Inspection of Agreement	 	11
	

 	
 	

ARTICLE II Certificate Forms	
 	

11
	Section 2.1.	 	Forms of Certificates Generally; Legends	 	11
	Section 2.2.	 	Form of Agent's Certificate of Authentication	 	14
	

 	
 	

ARTICLE III The Securities	
 	

15
	Section 3.1.	 	Amount; Form and Denominations	 	15
	Section 3.2.	 	Rights and Obligations Evidenced by the Certificates	 	15
	Section 3.3.	 	Execution, Authentication, Delivery and Dating	 	15
	Section 3.4.	 	Temporary Certificates	 	16
	Section 3.5.	 	Registration; Registration of Transfer and Exchange	 	16
	Section 3.6.	 	Separation and Rejoining of Units	 	17
	Section 3.7.	 	Book-Entry Interests	 	19
	Section 3.8.	 	Notices to Holders	 	19
	Section 3.9.	 	Appointment of Successor Clearing Agency	 	19
	Section 3.10.	 	Definitive Certificates	 	19
	Section 3.11.	 	Mutilated, Destroyed, Lost and Stolen Certificates	 	20
	Section 3.12.	 	Persons Deemed Owners	 	20
	Section 3.13.	 	Cancellation	 	21
	Section 3.14.	 	CUSIP Numbers	 	12
	Section 3.15.	 	Special Transfer Provisions	 	12



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ARTICLE IV The Preferred Securities	
 	

23
	Section 4.1.	 	Payment of Distribution; Rights to Distributions Preserved; Distribution Rate Reset	 	23
	Section 4.2.	 	Notice and Voting	 	23
	Section 4.3.	 	Distribution of Debentures	 	24
	

 	
 	

ARTICLE V Remarketing and Redemption; Early Exercise	
 	

24
	Section 5.1.	 	Remarketing and Redemption	 	24
	Section 5.2.	 	Early Exercise of Warrants; Exchange of Preferred Securities and Repurchase of Debentures	 	26
	Section 5.3.	 	Change in Control	 	27
	Section 5.4.	 	Certain Rights Following a Remarketing	 	27
	

 	
 	

ARTICLE VI Remedies	
 	

28
	Section 6.1.	 	Unconditional Right of Holders to Receive Payments and to Purchase Common Stock	 	28
	Section 6.2.	 	Restoration of Rights and Remedies	 	28
	Section 6.3.	 	Rights and Remedies Cumulative	 	28
	Section 6.4.	 	Delay or Omission Not Waiver	 	28
	Section 6.5.	 	Undertaking for Costs	 	28
	Section 6.6.	 	Waiver of Stay or Extension Laws	 	28
	

 	
 	

ARTICLE VII The Agent	
 	

30
	Section 7.1.	 	Certain Duties and Responsibilities	 	30
	Section 7.2.	 	Notice of Default	 	30
	Section 7.3.	 	Certain Rights of Agent	 	30
	Section 7.4.	 	Not Responsible for Recitals or Issuance of Securities	 	31
	Section 7.5.	 	May Hold Securities	 	32
	Section 7.6.	 	Money Held in Custody	 	32
	Section 7.7.	 	Compensation and Reimbursement	 	32
	Section 7.8.	 	Corporate Agent Required; Eligibility	 	32
	Section 7.9.	 	Resignation and Removal; Appointment of Successor	 	33
	Section 7.10.	 	Acceptance of Appointment by Successor	 	33
	Section 7.11.	 	Merger, Conversion, Consolidation or Succession to Business	 	34
	Section 7.12.	 	Preservation of Information; Communications to Holders	 	34
	Section 7.13.	 	No Obligations of Agent	 	34
	Section 7.14.	 	Tax Compliance	 	35
	

 	
 	

ARTICLE VIII Supplemental Agreements	
 	

35
	Section 8.1.	 	Supplemental Agreements Without Consent of Holders	 	35
	Section 8.2.	 	Supplemental Agreements With Consent of Holders; Other Fiduciaries	 	35



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	Section 8.3.	 	Execution of Supplemental Agreements	 	36
	Section 8.4.	 	Effect of Supplemental Agreements	 	36
	Section 8.5.	 	Reference to Supplemental Agreements	 	36
	

 	
 	

ARTICLE IX Consolidation, Merger, Sale or Conveyance	
 	

37
	Section 9.1.	 	Covenant Not to Merge, Consolidate, Sell or Convey Property Except Under Certain Conditions	 	37
	Section 9.2.	 	Rights and Duties of Successor Corporation	 	37
	Section 9.3.	 	Opinion of Counsel Given to Agent	 	37
	

 	
 	

ARTICLE X Covenants	
 	

38
	Section 10.1.	 	Performance Under Agreements	 	38
	Section 10.2.	 	Maintenance of Office or Agency	 	38
	Section 10.3.	 	Statements of Officers of Washington Mutual as to Compliance	 	38
	Section 10.4.	 	ERISA	 	38
	Section 10.5.	 	Statement by Officers as to Default	 	38
	Section 10.6.	 	Calculation of Original Issue Discount	 	40
	

 	
 	

ARTICLE XI Representations of the Agent	
 	

40
	Section 11.1.	 	Representations and Warranties of the Agent	 	40
	

 	
 	

ARTICLE XII The Warrant Agent and The Property Trustee	
 	

40
	Section 12.1.	 	Certain Duties and Responsibilities	 	40
	

EXHIBIT A	
 	

Form of Certificate	
 	

 
	EXHIBIT B	 	Instruction to Disregard Remarketing	 	 
	EXHIBIT C	 	Notice of Electing Remarketing Holder	 	 
	EXHIBIT D	 	Notice of Change of Control Redemption Election	 	 
	EXHIBIT E	 	Notice of Change of Control Exchange and Repurchase	 	 




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    UNIT
AGREEMENT, dated as of April 30, 2001 among Washington Mutual, Inc., a Washington corporation ("Washington Mutual"), Washington Mutual Capital Trust 2001, a
statutory Delaware business trust, The Bank of New York, as Property Trustee for the Trust, The Bank of New York, as Warrant Agent, and The Bank of New York, acting as unit agent for the Holders of
the Securities from time to time (the "Agent"). 


 
 

RECITALS:    
  


    WHEREAS, the Issuers desire to issue Trust Preferred Income Equity Redeemable Securities (PIERS) Units consisting of: 



     (i) Preferred
Securities (stated liquidation amount $50 per preferred security) issued by the Trust pursuant to the Declaration of Trust and guaranteed (the
"Guarantee"; together with the Preferred Securities, the "Trust Securities") by Washington Mutual, to the extent set forth in the Guarantee Agreement; and 


    (ii) Warrants
issued by Washington Mutual pursuant to the Warrant Agreement; 




    WHEREAS,
concurrently with the issuance of the Trust Securities, the Trust will invest the proceeds thereof (together with the proceeds of the issuance to Washington Mutual of the
common securities of the Trust) in Debentures; 


    WHEREAS
the Issuers have duly authorized the execution and delivery of this Agreement and the Certificates evidencing the Trust Securities; 


    WHEREAS,
all things necessary to make the Preferred Securities, when the Certificates are executed by the Trust and authenticated, executed on behalf of the Holders and delivered by
the Agent, as provided in this Agreement, the valid obligations of the Trust, and to constitute these presents a valid agreement of the Trust, in accordance with its terms, have been done; and 


    WHEREAS,
all things necessary to make the Warrants and the Debentures, when the Certificates are executed by Washington Mutual and authenticated, executed on behalf of the Holders and
delivered by the Agent, as provided in this Agreement, the valid obligations of Washington Mutual, and to constitute these presents a valid agreement of Washington Mutual, in accordance with its
terms, have been done. 


 
 

W I T N E S S E T H:    
  


    NOW, THEREFORE, for and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed as follows: 


 
 

ARTICLE I
  
    Definitions and Other Provisions
  of General Applications    
  


    Section 1.1.  Definitions 


    For
all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: 



    (a) the
terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular, and nouns and pronouns of the
masculine gender include the feminine and neutral genders; 


    (b) all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United
States; 


    (c) the
words "herein," "hereof" and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section,
Exhibit or other subdivision; 






 


    (d) the following terms have the meanings given to them in this Section 1.1(d): 




    "Accreted
Value" has the meaning given to it in the Declaration. 


    "Act,"
when used with respect to any Holder, has the meaning given to it in Section 1.4. 


    "Action
Expiration Date" has the meaning given to it in Section 1.4(e). 


    "Affiliate"
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. 


    "Agent"
means the Person named as the "Agent" in the first paragraph of this instrument until a successor Agent shall have become such pursuant to the applicable provisions of this
Agreement, and thereafter "Agent" shall mean such Person. 


    "Agreement"
means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more agreements supplemental hereto entered into pursuant
to the applicable provisions hereof. 


    "Applicable
Procedures" means, with respect to any transfer or exchange of or for the beneficial interests in the Global Units, the rules and procedures of the Depositary that apply
to such transfer or exchange. 


    "Bankruptcy
Code" means title 11 of the United States Code, or any other law of the United States that from time to time provides a uniform system of bankruptcy laws. 


    "Beneficial
Owner" means, with respect to a Global Unit, a Person who is the beneficial owner of such Book-Entry Interest as reflected on the books of the Clearing Agency
or on the books of a Person maintaining an account with such Clearing Agency (directly as a Clearing Agency Participant or as an indirect participant, in each case in accordance with the rules of such
Clearing Agency). 


    "Board
of Directors" means the board of directors of Washington Mutual or a duly authorized committee of that board. 


    "Board
Resolution" means one or more resolutions of the Board of Directors, a copy of which has been certified by the Secretary or an Assistant Secretary of Washington Mutual to have
been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification and delivered to the Agent. 



    "Book-Entry
Interest" means a beneficial interest in a Global Unit, ownership and transfers of which shall be maintained and made through book entries by a Clearing Agency
as described in Section 3.7. 


    "Business
Day" means any day other than a Saturday or Sunday or a day on which banking institutions in The City of New York, or Seattle, Washington are authorized or required by law
or executive order to remain closed or a day on which the Indenture Trustee, or the principal office of the Property Trustee under the Declaration, is closed for business. 


    "Calculation
Agent" means Reinsel & Company LLP under the Calculation Agreement, and any successor thereto. 



    "Calculation
Agreement" means the Calculation Agency Agreement dated as of April 30, 2001 between Washington Mutual and the Calculation Agent, as amended, supplemented or
replaced from time to time. 


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    "Certificate" means a certificate evidencing the rights and obligations of a Holder in respect of the number of Securities specified on such Certificate, substantially in the form of
Exhibit A hereto. 


    "Change
of Control" has the meaning given to it in the Declaration. 


    "Change
of Control Notice Date" has the meaning given to it in Section 5.3. 


    "Change
of Control Redemption Right" has the meaning given to it in Section 5.3. 


    "Change
of Control Repurchase Right" has the meaning given to it in Section 5.3. 


    "Clearing
Agency" means an organization registered as a "Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as a depositary for the Securities and in
whose name, or in the name of a nominee of that organization, shall be registered a Global Unit and which shall undertake to effect book entry transfers and pledges of the Securities. 


    "Clearing
Agency Participant" means a broker, dealer, bank, other financial institution or other Person for whom from time to time the Clearing Agency effects book entry transfers and
pledges of securities deposited with the Clearing Agency. 


    "Code"
means the Internal Revenue Code of 1986, as amended. 


    "Common
Stock" means the common stock, without par value, of Washington Mutual. 


    "Corporate
Trust Office" means the principal corporate trust office of the Agent at which, at any particular time, its corporate trust business shall be administered, which office at
the date hereof is located at 101 Barclay Street, 21 West, New York, New York 10286 Attention: Corporate Trust Administration. 


    "Coupon
Rate" means the percentage rate per annum at which each Debenture will bear interest initially which rate, on and after the Remarketing Date, will be the Reset Rate
established in the Remarketing on the Remarketing Date. 


    "Debenture
Certificates" has the meaning given to it in Section 3.10. 


    "Debentures"
means the 5.375% Junior Subordinated Deferrable Interest Debentures due July 1, 2041 to be issued by Washington Mutual pursuant to the Indenture. 



    "Declaration"
means the Amended and Restated Declaration of Trust of Washington Mutual Capital Trust 2001, dated as of April 30, 2001, among Washington Mutual, as the sponsor
and the trustees named therein. 


    "Definitive
Certificates" means definitive, physical fully registered Certificates delivered in accordance with Section 3.10. 


    "Depositary"
means DTC until another Clearing Agency becomes its successor. 


    "Distribution
Rate" has the meaning given to it in Section 5.1. 


    "DTC"
means The Depository Trust Company, the initial Clearing Agency. 


    "Electing
Remarketing Holder" has the meaning given to it in Section 5.1. 


    "ERISA"
means the Employee Retirement Income Security Act of 1974, as amended. 


    "Exchange
Act" means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time, and the rules and regulations promulgated
thereunder. 


    "Exchange
Agent" has the meaning given to it in the Declaration. 


    "Exercise
Price" has the meaning given to it in the Warrant Agreement. 


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    "Expiration Date" has the meaning given to it in the Warrant Agreement. 



    "Global
Unit" means a Certificate that evidences all or part of the Securities and is registered in the name of a Clearing Agency or a nominee thereof. 


    "Guarantee"
has the meaning assigned to it in the Recitals hereto. 


    "Guarantee
Agreement" means the Guarantee Agreement dated as of April 30, 2001 between Washington Mutual and the Guarantee Trustee, as amended or supplemented from time to
time. 


    "Guarantee
Trustee" means The Bank of New York, as trustee under the Guarantee Agreement, or any successor thereto 


    "Holder,"
when used with respect to a Security, means the Person in whose name the Security evidenced by a Certificate is registered in the Register; provided, however, that in
determining whether the Holders of the requisite number of Securities have voted on any matter, then for the purpose of such determination only (and not for any other purpose hereunder), if the
Security remains in the form of one or more Global Units and if the Clearing Agency which is the holder of such Global Unit has sent an omnibus proxy assigning voting rights to the Clearing Agency
Participants to whose accounts the Securities are credited on the record date, the term "Holder" shall mean such Clearing Agency Participant acting at the direction of the Beneficial Owners. 


    "Indenture"
means the Indenture, dated as of April 30, 2001, between Washington Mutual and the Indenture Trustee, as amended by the First Supplemental Indenture dated as of
April 30, 2001, as further amended and supplemented (including any provisions of the TIA that are deemed incorporated therein), pursuant to which the Debentures are to be issued. 


    "Indenture
Trustee" means The Bank of New York, as trustee under the Indenture, or any successor thereto. 


    "Initial
Purchaser" means Lehman Brothers Inc. 


    "Issuer
Order" or "Issuer Request" means a written request or order signed in the name of Washington Mutual by its President or a Vice Chair or a Senior Executive Vice President and
by its Treasurer, its Secretary or an Assistant Secretary, and delivered to the Agent. 



    "Issuers"
is a collective reference to Washington Mutual and the Trust. 


    "Legal
Cause Remarketing Event" has the meaning given to it in the Declaration. 


    "Maturity
Remarketing Date" has the meaning given to it in the Declaration. 


    "Notice
of Remarketing" means a Notice of Remarketing delivered pursuant to the Declaration. 


    "Officers'
Certificate" means a certificate signed by the President, a Vice Chair or a Senior Executive Vice President and by the Treasurer, the Secretary or an Assistant Secretary,
of Washington Mutual, and delivered to the Agent. Any Officers' Certificate delivered with respect to compliance with a condition or covenant provided for in this Agreement shall include: 



    (a) a
statement that each officer signing the Officers' Certificate has read the covenant or condition and the definitions relating thereto; 


    (b) a
brief statement of the nature and scope of the examination or investigation undertaken by each officer in rendering the Officers' Certificate; 


    (c) a
statement that each such officer has made such examination or investigation as, in such officer's opinion, is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or condition has been complied with; and 



4





 


    (d) a statement as to whether, in the opinion of each such officer, such condition or covenant has been complied with. 




    "Opinion
of Counsel" means a written opinion of counsel, who may be counsel for Washington Mutual (and who may be an employee of Washington Mutual), and who shall be reasonably
acceptable to the Agent. An opinion of counsel may rely on certificates as to matters of fact. 


    "Outstanding
Securities," with respect to any Security means, as of the date of determination, all Securities evidenced by Certificates theretofore authenticated, executed and
delivered under this Agreement, except: 




     (i) Securities
evidenced by Certificates theretofore cancelled by the Agent or delivered to the Agent for cancellation or deemed cancelled pursuant to the provisions of
this Agreement; and 


    (ii) Securities
evidenced by Certificates in exchange for or in lieu of which other Certificates have been authenticated, executed on behalf of the Holder and delivered
pursuant to this Agreement, other than any such Certificate in respect of which there shall have been presented to the Agent proof satisfactory to it that such Certificate is held by a bona fide
purchaser in whose hands the Security evidenced by such Certificate are valid obligations of Washington Mutual; 





provided, however, that in determining whether the Holders of the requisite number of the Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by Washington Mutual or any Affiliate of Washington Mutual shall be disregarded and deemed not to be Outstanding Securities, except
that, in determining whether the Agent shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of
the Agent knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding Securities if the pledgee establishes to the
satisfaction of the Agent the pledgee's right so to act with respect to such Securities and that the pledgee is not Washington Mutual or any Affiliate of Washington Mutual. 



    "Party"
or "Parties" have the respective meanings given to them in Section 12.1. 


    "Payment
Date" means each February 1, May 1, August 1 and November 1, commencing August 1, 2001. 


    "Person"
means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision thereof or any other entity of whatever nature. 


    "Plan"
means an employee benefit plan that is subject to ERISA, a plan or individual retirement account that is subject to Section 4975 of the Code or any entity whose assets
are considered assets of any such plan. 


    "Predecessor
Certificate" of any particular Certificate means every previous Certificate evidencing all or a portion of the rights and obligations of the Issuers and the Holder under
the Securities evidenced thereby; and, for the purposes of this definition, any Certificate authenticated and delivered under Section 3.11 in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Certificate shall be deemed to evidence the same rights and obligations of the Issuers and the Holder as the mutilated, destroyed, lost or stolen Certificate. 



    "Preferred
Securities" means the Preferred Securities of the Trust, each having a stated liquidation amount of $50, representing preferred undivided beneficial ownership interests in
the assets of the Trust. 


5





 


    "Property Trustee" means The Bank of New York, as property trustee under the Declaration, or any successor thereto. 



    "Record
Date" with respect to any Payment Date, means the Business Day immediately preceding such Payment Date. 


    "Register"
and "Registrar" have the respective meanings given to them in Section 3.5. 


    "Regulation
S" has the meaning given to it in Section 2.1. 


    "Regulation S
Global Unit" has the meaning given to it in Section 2.1. 


    "Regulation S
Permanent Global Unit" has the meaning given to it in Section 2.1. 



    "Remarketing"
has the meaning given to it in the Declaration. 


    "Remarketing
Agent" means the remarketing agent under the Remarketing Agreement. 


    "Remarketing
Agreement" means a Remarketing Agreement to be entered into among Washington Mutual, the Trust and the Remarketing Agent. 


    "Remarketing
Date" has the meaning given to it in the Declaration. 


    "Remarketing
Event" has the meaning given to it in the Declaration. 



    "Remarketing
Settlement Date" with respect to any Remarketing, means the date which is two Business Days following the applicable Remarketing Date. 


    "Required
Repurchase Date" has the meaning given to it in the Declaration. 


    "Resale
Registration Rights Agreement" means the Resale Registration Rights Agreement dated April 30, 2001 among Washington Mutual, the Trust and the Initial Purchaser. 


    "Reset
Rate" has the meaning given to it in the Declaration. 


    "Responsible
Officer," when used with respect to the Agent, means any officer within the corporate trust department of the Agent, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other officer of the Agent who customarily performs functions similar to those performed by the Persons who at the time shall
be such officers, respectively, or to whom any corporate trust matter is referred because of such person's knowledge of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Agreement. 


    "Restricted
Period" has the meaning given to it in Section 2.1. 


    "Restricted
Regulation S Global Unit" has the meaning given to it in Section 2.1. 



    "Rule 144A"
has the meaning given to it in Section 2.1. 


    "Rule 144
Global Unit" has the meaning given to it in Section 2.1. 


    "Securities
Act Legend" means, with respect to a Security prior to the registration thereof under the Securities Act, the applicable legend(s) appearing in Section 2.1(b). 


    "Security"
means the collective rights and obligations of a Holder of a Certificate in respect of a Preferred Security, a Debenture and a Warrant. 


    "TIA"
means the Trust Indenture Act of 1939, as amended. 


    "Trading
Remarketing Event" has the meaning given to it in the Declaration. 


    "Trust"
means Washington Mutual Capital Trust 2001, a statutory business trust formed under the laws of the State of Delaware, or any successor thereto by merger or consolidation. 


6





 


    "Trust Securities" has the meaning given to it in the Recitals hereto. 


    "Vice
President" means any vice president, whether or not designated by a number or a word or words added before or after the title "vice president." 



    "Warrant"
means the Warrants issued by Washington Mutual pursuant to the Warrant Agreement representing the right to purchase Common Stock. 


    "Warrant
Agent" means The Bank of New York, as warrant agent under the Warrant Agreement, or any successor thereto. 


    "Warrant
Agreement" means the Warrant Agreement dated as of April 30, 2001 between Washington Mutual and the Warrant Agent, as amended and supplemented, pursuant to which the
Warrants are issued. 


    "Warrant
Value" has the meaning given to it in the Warrant Agreement. 



    "Washington
Mutual" means Washington Mutual, Inc., a Washington corporation, until there shall be a successor thereto pursuant to the applicable provision of this Agreement,
and thereafter "Washington Mutual" shall mean such successor. 


Section
1.2.  Compliance Certificates and Opinions. 


    Except
as otherwise expressly provided by this Agreement, upon any application or request by Washington Mutual to the Agent to take any action in accordance with any provision of this
Agreement, Washington Mutual shall furnish to the Agent an Officers' Certificate stating that all conditions precedent, if any, provided for in this Agreement relating to the proposed action have been
complied with and, if requested by the Agent, an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Agreement relating to such particular application or request, no
additional certificate or opinion need be furnished. 


    Every
certificate or opinion with respect to compliance with a condition or covenant provided for in this Agreement shall include: 



    (1) a
statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; 



    (2) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are
based; 


    (3) a
statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable such individual to express
an informed opinion as to whether or not such covenant or condition has been complied with; and 


    (4) a
statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. 




Section
1.3.  Form of Documents Delivered to Agent. 


    In
any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. 


7





 


    Any certificate or opinion of an officer of Washington Mutual may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers
of Washington Mutual stating that the information with respect to such factual matters is in the possession of Washington Mutual unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such matters are erroneous. 



    Where
any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Agreement, they
may, but need not, be consolidated and form one instrument. 


Section
1.4.  Acts of Holders; Record Dates. 


    (a) Any
request, demand, authorization, direction, notice, consent, waiver or other action provided by this Agreement to be given or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are delivered to the Agent and, where it is hereby expressly required, to Washington Mutual. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this Agreement and (subject to Section 7.1) conclusive in favor of the Agent and Washington Mutual, if made in the
manner provided in this Section. 


    (b) The
fact and date of the execution by any Person of any such instrument or writing may be proved in any manner which the Agent deems sufficient. 


    (c) The
ownership of Securities shall be proved by the Register. 


    (d) Any
request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Certificate shall bind every future Holder of the same
Certificate and the Holder of every Certificate issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Agent or Washington Mutual in reliance thereon, whether or not notation of such action is made upon such Certificate. 



    (e) Washington
Mutual may set any day as a record date for the purpose of determining the Holders of Outstanding Securities entitled to give, make or take any request,
demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Agreement to be given, made or taken by Holders of Securities. If any record date is set
pursuant to this paragraph, the Holders of the Outstanding Securities, on such record date, and no other Holders, shall be entitled to take the relevant action with respect to the Securities, whether
or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Action Expiration Date by Holders of the
requisite number of Outstanding Securities on such record date. Nothing in this paragraph shall be construed to prevent Washington Mutual from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and be of no effect), and
nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite number of Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, Washington Mutual, at its own expense, shall cause notice of such record date, the proposed 


8






 


action by Holders and the applicable Expiration Date to be given to the Agent in writing and to each Holder of Securities in the manner set forth in Section 1.6. 


    With
respect to any record date set pursuant to this Section, Washington Mutual may designate any date as the "Action Expiration Date" and from time to time may change the Expiration
Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Action Expiration Date is given to the Agent in writing, and to each Holder of
Securities in the manner set forth in Section 1.6, on or prior to the existing Action Expiration Date. If an Action Expiration Date is not designated with respect to any record date set
pursuant to this Section, Washington Mutual shall be deemed to have initially designated the 180th day after such record date as the Action Expiration Date with respect thereto, subject to its right
to change the Action Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Action Expiration Date shall be later than the 180th day after the applicable record date. 


Section 1.5.  Notices.



    Any
notice or communication is duly given if in writing and delivered in Person or mailed by first class mail (registered or certified, return receipt requested), telecopier (with
receipt confirmed) or overnight air courier guaranteeing next day delivery, to the others' address; provided that notice shall be deemed given to the Agent only upon receipt thereof: 



	If to the Agent:	 	 
	 	The Bank of New York	 	 
	 	101 Barclay Street	 	 
	 	New York, New York 10286	 	 
	 	Telecopier No.: 212-815-5915	 	 
	 	Attention: Corporate Trust Administration	 	 
	

If to Washington Mutual:

	
 	

 
	 	Washington Mutual, Inc.	 	 
	 	1201 Third Avenue—WMT 0511	 	 
	 	Seattle, Washington 98101	 	 
	 	Telecopier No.: (206) 554-2717	 	 
	 	Attention: Richard D. Lodge	 	 
	

If to the Trust:

	
 	

 
	 	c/o Washington Mutual, Inc.	 	 
	 	1201 Third Avenue—WMT 0511	 	 
	 	Seattle, Washington 98101	 	 
	 	Telecopier No.: (206) 554-2717	 	 
	 	Attention: Richard D. Lodge	 	 
	

If to the Warrant Agent:

	
 	

 
	 	The Bank of New York	 	 
	 	101 Barclay Street	 	 
	 	New York, New York 10286	 	 
	 	Telecopier No.: 212-815-5915	 	 
	 	Attention: Corporate Trust Administration	 	 



9





 

	

If to the Property Trustee:

	
 	

 
	 	The Bank of New York	 	 
	 	101 Barclay Street	 	 
	 	New York, New York 10286	 	 
	 	Telecopier No.: 212-815-5915	 	 
	 	Attention: Corporate Trust Administration	 	 
	

If to the Indenture Trustee:

	
 	

 
	 	The Bank of New York	 	 
	 	101 Barclay Street	 	 
	 	New York, New York 10286	 	 
	 	Telecopier No.: 212-815-5915	 	 
	 	Attention: Corporate Trust Administration	 	 
	 	Telecopier No.:              	 	 
	 	Attention:               	 	 





Section
1.6.  Notice to Holders; Waiver. 


    Where
this Agreement provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at its address as it appears in the Register, not later than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders. Where this Agreement provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Agent, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver. 


    In
case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be
made with the approval of the Agent shall constitute a sufficient notification for every purpose hereunder. 


Section
1.7.  Effect of Headings and Table of Contents. 


    The
Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. 


Section
1.8.  Successors and Assigns. 


    All
covenants and agreements in this Agreement by Washington Mutual shall bind its successors and assigns, whether so expressed or not. 


Section
1.9.  Separability Clause. 


    In
case any provision in this Agreement or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof
and thereof shall not in any way be affected or impaired thereby. 


Section
1.10.  Benefits of Agreement. 


    Nothing
in this Agreement or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and, to the extent provided
hereby, the Holders, any benefits or any legal or equitable right, remedy or claim under this Agreement. The Holders from time to time shall be beneficiaries of this Agreement and shall be bound by
all of the terms and 


10





 


conditions hereof and of the Securities evidenced by their Certificates by their acceptance of delivery of such Certificates. 


Section
1.11.  Governing Law. 


    This
Agreement and the Securities shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of laws. 


Section
1.12.  Legal Holidays. 


    In
any case where any Payment Date shall not be a Business Day, then (notwithstanding any other provision of this Agreement or the Certificates) payment of any amounts otherwise
payable on such date shall not be made on such date, but such payments shall be made on the next succeeding Business Day with the same force and effect as if made on such Payment Date, provided that
no interest shall accrue or be payable for the period from and after any such Payment Date, except that, if such next succeeding Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day with the same force and effect as if made on such Payment Date. 


Section 1.13.  Counterparts.



    This
Agreement may be executed in any number of counterparts by the parties hereto on separate counterparts, each of which, when so executed and delivered, shall be deemed an
original, but all such counterparts shall together constitute one and the same instrument. 


Section
1.14.  Inspection of Agreement. 


    A
copy of this Agreement shall be available at all reasonable times during normal business hours at the Corporate Trust Office for inspection by any Holder or Beneficial Owner. 


 
 

ARTICLE II
  Certificate Forms    
  



Section
2.1.  Forms of Certificates Generally; Legends. 


    (a) Each
Security will consist of one Preferred Security and one Warrant. The Certificates shall be printed, lithographed or engraved on steel engraved borders or may
be produced in any other manner, all as determined by the officers of Washington Mutual executing the Securities evidenced by such Certificates, consistent with the provisions of this Agreement, as
evidenced by their execution thereof. 


    Securities
offered and sold in reliance on Rule 144A under the Securities Act ("Rule 144A") shall be issued initially in the form of one or more permanent global notes
in registered form without interest coupons, in substantially the form set forth in Exhibit A (a "Rule 144A Global Unit"), deposited with the Unit Agent, as custodian for DTC, as
Depositary, duly executed by each Issuer and authenticated by the Agent as hereinafter provided. The aggregate principal amount of the Rule 144A Global Units may from time to time be increased
or decreased by adjustments made on the records of the Agent, as custodian for the Depositary, as hereinafter provided. 


    Securities
offered and sold in reliance on Regulation S under the Securities Act ("Regulation S") shall be issued initially in the form of one or more global notes in
registered form without interest coupons, in substantially the form set forth in Exhibit A (a "Restricted Regulation S Global Unit"), which shall be deposited with the Agent, as
custodian for the Depositary, and registered in the name of the Depositary or the nominee of the Depositary for the accounts of designated agents holding on behalf of Euroclear or Clearstream, duly
executed by each Issuer and authenticated by the Agent as hereinafter provided. The one-year restricted period (as defined in Regulation S, the "Restricted Period") for any Security
shall be terminated upon the receipt by the Agent of 


11





 


     (i) a
written certificate from the Depositary, together with copies of certificates from Euroclear and Clearstream certifying that they have received certification of
non-United States beneficial ownership of 100% of the interests in the Restricted Regulation S Global Unit (except to the extent of any beneficial owners thereof who acquired an
interest therein during the Restricted Period pursuant to another
exemption from registration under the Securities Act and who will take delivery of a beneficial ownership interest in a 144A Global Unit, and 


    (ii) an
Officers' Certificate from the Issuers. 





    Following
the termination of the Restricted Period, beneficial interests in a Restricted Regulation S Global Unit shall be exchanged for beneficial interests in one or more
permanent global notes in registered form without interest coupons, in substantially the form set forth in Exhibit A (a "Regulation S Permanent Global Unit" and collectively with the
Restricted Regulation S Global Unit, the "Regulation S Global Units") pursuant to the Applicable Procedures. Simultaneously with the authentication of the Regulation S Permanent
Global Units, the Agent shall cancel the Restricted Regulation S Global Units with respect to such Series. The aggregate principal amount of the Restricted Regulation S Global Units of
each series and the Regulation S Permanent Global Units of each series may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary or
its nominee, as the case may be, in connection with transfers of interest as hereinafter provided. 


    The
Rule 144A Global Units, the Restricted Regulation S Global Units and the Regulation S Permanent Global Units are collectively referred to herein as the
"Global Units." 


    The
provisions of the "Operating Procedures of the Euroclear System" and "Terms and Conditions Governing Use of
Euroclear" and the "General Terms and Conditions of Clearstream" and "Customer
Handbook" of Clearstream shall be applicable to transfers of beneficial interests in the Restricted Regulation S Global Units and the Regulation S Global Units
that are held by Participants through Euroclear or Clearstream. 


    (b) Every
Global Unit authenticated, executed on behalf of the Holders and delivered hereunder shall bear a legend in substantially the following form: 



"THIS
CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE UNIT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE
"DEPOSITARY"), OR A NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE UNIT AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE
OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES. 


UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN. 



12





 

    Unless
and until the Securities have been registered as contemplated in the Resale Registration Rights Agreement, or otherwise, every certificate authenticated, executed and delivered
hereunder shall bear a legend in substantially the following form: 



THE
SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT, OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO
RULE 903 OR 904 OF REGULATION S; (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY EXCEPT
(A) TO WASHINGTON MUTUAL OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT (IF AVAILABLE), (C) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS
TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(E) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY WITHIN TWO YEARS
AFTER THE ORIGINAL ISSUANCE OF SUCH SECURITY (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(E) ABOVE), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF
SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE). IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE 2(C) OR 2(D) ABOVE, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE) SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS WASHINGTON MUTUAL MAY REASONABLY REQUIRE, TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE
TRANSFER OF THE SECURITY EVIDENCED HEREBY PURSUANT TO CLAUSE 2(E) ABOVE OR THE EXPIRATION OF TWO YEARS FROM THE ORIGINAL ISSUANCE OF THE SECURITY EVIDENCED HEREBY. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. 


THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE PROVISIONS OF THE RESALE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL THE SECURITIES. 



13





 

    Each
Restricted Regulation S Global Unit shall bear the following legend on the face thereof: 



Prior
to expiration of the one-year distribution compliance period (as defined in Regulation S under the Securities Act of 1933 (the "Securities Act")) ("Regulation S"), this
security may not be offered, sold, pledged or otherwise transferred within the United States (as defined in Regulation S) or to, or for the account or benefit of, a U.S. Person (as defined in
Regulation S), except (A) to a person reasonably believed to be a "Qualified Institutional Buyer" (as defined in Rule 144A ("Rule 144A") under the Securities Act) in a
transaction meeting the requirements of Rule 144A, (B) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (C) PURSUANT TO
A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER. 




    Every
certificate (which a Global Unit or a definitive certificate)representing a Security shall bear a legend to the following effect: 



THE
CONSTITUENT COMPONENTS OF THIS UNIT MUST BE SEPARATED PRIOR TO TRANSFER (EXCEPT AS PART OF A UNIT) AS PROVIDED IN THE UNIT AGREEMENT." 




    Finally,
the Warrants and Preferred Securities which constitute components of the Securities shall bear additional legends (including restrictions on transferability) as described in
the constituent documents for such securities. 


Section
2.2.  Form of Agent's Certificate of Authentication. 


    The
form of the Agent's certificate of authentication of the Securities shall be in substantially the form set forth on the form of the Certificates. 


14






  



 
 

ARTICLE III
  The Securities    
  


Section 3.1.  Amount;
Form and Denominations. 


    The
aggregate number of Securities evidenced by Certificates authenticated, executed on behalf of the Holders and delivered hereunder is limited to 23,000,000 except for Certificates
authenticated, executed and delivered upon registration of transfer of, in exchange for, or in lieu of, other Certificates pursuant to Section 3.4, 3.5, 3.10, 3.13 or 8.5. 


    The
Certificates shall be issuable only in registered form and only in denominations of a single Security and any integral multiple thereof. 



    On
the date of issuance of the Units, Washington Mutual shall allocate $32.33 of the purchase price thereof to the Preferred Securities and $17.67 of the purchase price to the
Warrants. 


Section
3.2.  Rights and Obligations Evidenced by the Certificates. 


    Each
Certificate shall evidence the number of Securities specified therein, with each such Security representing the ownership by the Holder thereof of a beneficial interest in a
Preferred Security (or Debenture upon a liquidation of the Trust) and a Warrant and entitled to the benefits of the Declaration, the Indenture, the Warrant Agreement and all agreements ancillary
thereto. 



Section
3.3.  Execution, Authentication, Delivery and Dating. 


    Subject
to the provisions of Section 3.6 hereof, upon the execution and delivery of this Agreement, and at any time and from time to time thereafter, Washington Mutual and the
Trust may deliver Certificates executed by Washington Mutual and an Administrative Trustee on behalf of the Trust to the Agent for
authentication, execution on behalf of the Holders and delivery, together with its Issuer Order for authentication of such Certificates, and the Agent in accordance with such Issuer Order shall
authenticate, execute on behalf of the Holders and deliver such Certificates. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such
Securities, the Agent shall be entitled to receive, and, shall be fully protected in relying upon: 



    (a) copy
of the resolution or resolutions of the Board of Directors in or pursuant to which the terms and form of the Securities were established, certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect as of the date of such certificate, and if the terms and form
of such Securities are established by an Officers' Certificate pursuant to general authorization of the Board of Directors, such Officers' Certificate; 



    (b) an
Officers' Certificate delivered in accordance with Section 1.3; and 


    (c) an
Opinion of Counsel which shall state: 



    (1) that
the terms of such Securities have been established in accordance with Section 2.1 and in conformity with the other provisions of this Agreement; 


    (2) that
such Securities, when authenticated and delivered by the Agent and issued by the Company in the manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles; and 


    (3) that
all laws and requirements in respect of the execution and delivery by the Company of such Securities have been complied with. 




15





 





    The
Agent shall have the right to decline to authenticate and deliver any Securities under this Section if the Agent, being advised by counsel, determines that such action may not
lawfully be taken or if the Agent in good faith shall determine that such action would expose the Agent to personal liability to existing Holders. 


    The
Certificates shall be executed on behalf of Washington Mutual (in respect of the Warrants) by its President, a Vice Chair or a Senior Executive Vice President, and shall be
executed on behalf of the Trust (in respect of the Preferred Securities) by an Administrative Trustee. The signature of any of these officers on the Certificates may be manual or facsimile. 



    Certificates
bearing the manual or facsimile signatures of individuals who were at any time the proper officers of Washington Mutual shall bind Washington Mutual, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Certificates or did not hold such offices at the date of such Certificates.
Certificates bearing the manual or facsimile signatures of individuals who were at any time Administrative Trustees of the Trust shall bind the Trust, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery of such Certificates or did not hold such offices at the date of such Certificates. 


    Each
Certificate shall be dated the date of its authentication. 


    No
Certificate shall be entitled to any benefit under this Agreement or be valid or obligatory for any purpose unless there appears on such Certificate a certificate of authentication
substantially in the form provided for herein executed by an authorized signatory of the Agent by manual signature, and such certificate upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered hereunder. 


Section
3.4.  Temporary Certificates. 


    Pending
the preparation of definitive Certificates, Washington Mutual shall execute and deliver to the Agent, and the Agent shall authenticate, execute on behalf of the Holders, and
deliver, in lieu of such definitive Certificates, temporary Certificates which are in substantially the form set forth in Exhibit A hereto, with such letters, numbers or other marks of
identification or designation and such legends or endorsements printed, lithographed or engraved thereon as may be required by the rules of any securities exchange on which the Securities are listed,
or as may, consistently herewith, be determined by the officers of Washington Mutual executing such Certificates, as evidenced by their execution of the Certificates. 


    If
temporary Certificates are issued, Washington Mutual will cause definitive Certificates to be prepared without unreasonable delay. After the preparation of definitive Certificates,
the temporary Certificates shall be exchangeable for definitive Certificates upon surrender of the temporary Certificates at the Corporate Trust Office, at the expense of Washington Mutual and without
charge to the Holder. Upon surrender for cancellation of any one or more temporary Certificates, Washington Mutual shall execute and deliver to the Agent, and the Agent shall authenticate, execute on
behalf of the Holder, and deliver in exchange therefor, one or more definitive Certificates of like tenor and denominations and evidencing a like number of Securities as the temporary Certificate or
Certificates so surrendered. Until
so exchanged, the temporary Certificates shall in all respects evidence the same benefits and the same obligations with respect to the Securities evidenced thereby as definitive Certificates. 


Section
3.5.  Registration; Registration of Transfer and Exchange. 



    (a) The
Agent shall keep at the Corporate Trust Office a register (the "Register") in which, subject to such reasonable regulations as it may prescribe, the Agent shall
provide for the 



16





 


registration of Certificates and of transfers of Certificates (the Agent, in such capacity, the "Registrar"). 




    No
beneficial interest in a Warrant or a Preferred Security that is a component of a Security represented by a Certificate may be transferred or exchanged (except by a transfer or
exchange of such Security) until such components have been separated in accordance with Section 3.6 hereof, and each Certificate shall bear a legend to that effect. 


    Upon
surrender for registration of transfer of any Certificate at the Corporate Trust Office, Washington Mutual shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the designated transferee or transferees, and deliver, in the name of the designated transferee or transferees, one or more new Certificates of any authorized
denominations, like tenor, and evidencing a like number of Securities. 


    At
the option of the Holder, Certificates may be exchanged for other Certificates, of any authorized denominations and evidencing a like number of Securities upon surrender of the
Certificates to be exchanged at the Corporate Trust Office. Whenever any Certificates are so surrendered for exchange, Washington Mutual and the Trust shall execute and deliver to the Agent, and the
Agent shall authenticate, execute on behalf of the Holder, and deliver the Certificates which the Holder making the exchange is entitled to receive. 


    All
Certificates issued upon any registration of transfer or exchange of a Certificate shall evidence the ownership of the same number of Securities, and be entitled to the same
benefits and subject to the same obligations, under this Agreement as the Securities evidenced by the Certificate surrendered upon such registration of transfer or exchange. 


    Every
Certificate presented or surrendered for registration of transfer or for exchange shall (if so required by the Agent) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to Washington Mutual, the Trust and the Agent duly executed, by the Holder thereof or its attorney duly authorized in writing. 


    No
service charge shall be made for any registration of transfer or exchange of a Certificate, but Washington Mutual and the Agent may require payment from the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Certificates, other than any exchanges pursuant to Sections
3.6, 3.7 and 8.5 not involving any transfer and the Trust. 


    Notwithstanding
the foregoing, Washington Mutual and the Trust shall not be obligated to execute and deliver to the Agent, and the Agent shall not be obligated to authenticate,
execute on behalf of the Holder and deliver any Certificate in exchange for any other Certificate presented or surrendered for registration of transfer or for exchange on or after the Business Day
immediately preceding the Expiration Date. In lieu of delivery of a new Certificate, upon satisfaction of the applicable conditions specified above in this Section and receipt of appropriate
registration or transfer instructions from such Holder, the Agent shall deliver the consideration received on such Expiration Date (which may be shares of Common Stock issuable in respect of the
exercise of Warrants forming a part of the Securities evidenced by such other Certificate, Warrant Value receivable upon a redemption of such Warrants or Remarketing Proceeds receivable upon a
contemporaneous remarketing of the Preferred Securities forming a part of the Securities evidenced by such other Certificate), subject to the applicable conditions and in accordance with the
applicable provisions of Article Five hereof. 


Section
3.6.  Separation and Rejoining of Units. 


    Each
Global Unit shall represent such of the outstanding Securities as shall be specified in the "Schedule of Exchanges of Interests of Global Unit" attached thereto or otherwise in
accordance with the Applicable Procedures. At any time after issuance, the Preferred Security and Warrant components 


17





 


of any Security may be separated by the Holder and thereafter transferred separately and, (i) in the event of an election to exercise the Warrant component prior to the Remarketing Settlement
Date (as provided in Section 5.2), (ii) in the event of an election to have Warrants redeemed or Preferred Securities repurchased upon a Change of Control (in each case, pursuant to
Section 5.3) or (iii) in the event of a Remarketing, the Preferred Security and Warrant components of any Security shall be separated. In the event of any separation of the components of
a Security, (i) if such Security is represented by a Definitive Certificate, the Holder shall present such Definitive Certificate to the Agent for cancellation and the Agent shall so notify the
Registrar and shall return the Preferred Security and Warrant components of such Security to the Property Trustee and Warrant Agent, respectively, with an instruction for them to countersign and
deliver to, or upon the instruction of, such Holder a separated Preferred Security and a separated Warrant, bearing the separate "CUSIP" number
assigned to the Preferred Security and the Warrant, respectively, and (ii) if such Security is represented by the Global Unit, the Agent shall make the necessary endorsement to the "Schedule of
Exchanges of Interests of Global Unit" attached to the Global Unit or otherwise comply with the Applicable Procedures to reduce the amount of Securities represented thereby and shall instruct the
Property Trustee and the Warrant Agent to effect a corresponding increase in the Preferred Securities and the Warrants, respectively, represented by global certificates bearing separate "CUSIP"
numbers. The Agent shall make such other necessary endorsements to the Global Unit consistent with the terms of this agreement to reflect the appropriate number of Securities represented thereby. 



    Following
a Remarketing of the Preferred Securities components of a Security, (i) if such Security is represented by a Definitive Certificate, the Holder shall present such
Definitive Certificate to the Agent for cancellation and the Agent shall so notify the Registrar and shall return the Preferred Security and Warrant components of such Security to the Property Trustee
with an instruction for them to countersign and deliver to, or upon the instruction of the Remarketing Agent a Preferred Security bearing the separate "CUSIP" number assigned to the Preferred Security
and (ii) if such Security is represented by the Global Unit, the Agent shall, in accordance with the instructions of the Remarketing Agent, make the necessary endorsement to the "Schedule of
Exchanges of Interests of Global Unit" attached to the Global Unit or otherwise comply with the Applicable Procedures to reduce the amount of Securities represented thereby and shall instruct the
Property Trustee to effect a corresponding increase in the Preferred Securities represented by global certificates bearing the separate "CUSIP" number. The Agent shall make such other necessary
endorsements to the Global Unit consistent with the terms of this agreement to reflect the appropriate number of Securities represented thereby. 


    Once
separated in accordance with Section 5.2, a Preferred Security and a Warrant may be rejoined to form a Security, whether or not such securities were at one time
components of the same Security provided, that, only a Preferred Security and a Warrant which are both evidenced by a Rule 144A Global Unit, or
both evidenced by a Regulation S Global Unit may be so recombined. In the event a holder of a Preferred Security and a Warrant desires to rejoin a Security, (i) if the constituent
components are represented by Definitive Certificates, the holder shall present (x) the Preferred Security to the Property Trustee and (y) the Warrant to the Warrant Agent, in each case
for cancellation and the Property Trustee and the Warrant Agent shall so notify the Agent, who shall in turn so notify the Registrar with an instruction for the Registrar to countersign and deliver
to, or upon the instruction of, such holder a Security bearing the separate "CUSIP" number assigned to the Securities, respectively, and (ii) if the constituent components are represented by
global certificates, each of the Property Trustee and the Warrant Agent shall make the necessary endorsement to their respective global certificates or otherwise comply with the Applicable Procedures
to reduce the amount of Preferred Securities and Warrants, respectively, represented thereby and shall instruct Agent to effect a corresponding increase in the Securities represented by the Global
Unit bearing separate "CUSIP" number. The Agent, the Property Trustee, and the Warrant Agent shall make such other necessary endorsements to their respective global certificates consistent with the
terms of this 


18





 


agreement to reflect the appropriate number of Securities, Preferred Securities and Warrants, as appropriate, represented thereby. 


    The
Agent is authorized to deliver such further directions to the Property Trustee, the Warrant Agent, the Exchange Agent and others, and to take such further actions as shall be
necessary to effect the exchanges, separations, transfer and recreations contemplated by Section 3.5 and 3.6. 


Section
3.7.  Book-Entry Interests. 


    The
Certificates, on original issuance, will be issued in the form of one or more fully registered Global Units, to be delivered to the Depositary by, or on behalf of, Washington
Mutual. Such Global Unit shall initially be registered on the books and records of Washington Mutual and the Trust in the name of Cede & Co., the nominee of the Depositary, and no Beneficial
Owner will receive a Definitive Certificate representing such Beneficial Owner's interest in such Global Unit, except as provided in Section 3.10. The Agent shall enter into an agreement with
the Depositary if so requested by Washington Mutual. Unless and until Definitive Certificates have been issued to Beneficial Owners pursuant to Section 3.10: 



    (a) the
provisions of this Section 3.7 shall be in full force and effect; 


    (b) Washington
Mutual shall be entitled to deal with the Clearing Agency for all purposes of this Agreement as the Holder of the Securities and the sole holder of the
Global Unit(s) and shall have no obligation to the Beneficial Owners; 


    (c) to
the extent that the provisions of this Section 3.7 conflict with any other provisions of this Agreement, the provisions of this Section 3.7 shall
control; and 


    (d) the
rights of the Beneficial Owners shall be exercised only through the Clearing Agency and shall be limited to those established by law and agreements between such
Beneficial Owners and the Clearing Agency and/or the Clearing Agency Participants. 




Section
3.8.  Notices to Holders. 


    Whenever
a notice or other communication to the Holders is required to be given under this Agreement, Washington Mutual or Washington Mutual's agent shall give such notices and
communications to the Holders and, with respect to any Securities registered in the name of a Clearing Agency or the nominee of a Clearing Agency, Washington Mutual or Washington Mutual's agent shall,
except as set forth herein, have no obligations to the Beneficial Owners. 


Section
3.9.  Appointment of Successor Clearing Agency. 


    If
any Clearing Agency elects to discontinue its services as securities depositary with respect to the Securities, Washington Mutual may, in its sole discretion, appoint a successor
Clearing Agency with respect to the Securities. 


Section
3.10.  Definitive Certificates. 


    If
(i) a Clearing Agency elects to discontinue its services as securities depositary with respect to the Securities and a successor Clearing Agency is not appointed within
90 days after such discontinuance pursuant to Section 3.9 or (ii) there shall have occurred and be continuing a default by Washington Mutual in respect of its obligations under
the Warrant Agreement, the Indenture, the Declaration or this Agreement, upon surrender of the Global Units representing the Securities by the Clearing Agency, accompanied by registration
instructions, Washington Mutual and the Trust shall cause Definitive Certificates to be delivered to Beneficial Owners in accordance with the instructions of the Clearing Agency. Washington Mutual
shall not be liable for any delay in delivery of such instructions and may conclusively rely on and shall be protected in relying on, such instructions. 


19





 


Section 3.11.  Mutilated, Destroyed, Lost and Stolen Certificates. 


    If
any mutilated Certificate is surrendered to the Agent, Washington Mutual shall execute and deliver to the Agent, and the Agent shall authenticate, execute on behalf of the Holder,
and deliver in exchange therefor, a new Certificate, evidencing the same number of Securities and bearing a Certificate number not contemporaneously outstanding. 


    If
there shall be delivered to Washington Mutual and the Agent (i) evidence to their satisfaction of the destruction, loss or theft of any Certificate, and (ii) such
security or indemnity as may be required by them to hold each of them and any agent of any of them harmless, then, in the absence of notice to Washington Mutual and the Trust or the Agent that such
Certificate has been acquired by a bona fide purchaser, Washington Mutual and the Trust shall execute and deliver to the Agent, and the Agent shall authenticate, execute on behalf of the Holder, and
deliver to the Holder, in lieu of any such destroyed, lost or stolen Certificate, a new Certificate, evidencing the same number of Securities and bearing a Certificate number not contemporaneously
outstanding. 


    Notwithstanding
the foregoing, Washington Mutual shall not be obligated to execute and deliver to the Agent, and the Agent shall not be obligated to authenticate, execute on behalf of
the Holder, and deliver to the Holder, a Certificate on or after the Business Day immediately preceding the Expiration Date. In lieu of delivery of a new Certificate, upon satisfaction of the
applicable conditions specified above in this Section and receipt of appropriate registration or transfer instructions from such Holder, the Agent shall deliver the consideration received on such
Expiration Date (which may be (i) shares of Common Stock issuable in respect of the exercise of Warrants pursuant to the Warrant Agreement, (ii) the Warrant Value receivable upon a
redemption of such Warrants pursuant to the Warrant Agreement or (iii) proceeds of a Remarketing receivable upon a contemporaneous remarketing of the Preferred Securities forming a part of the
Securities evidenced by such other Certificate as provided in the Declaration). 


    Upon
the issuance of any new Certificate under this Section, Washington Mutual, the Trust, and the Agent may require the payment by the Holder of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Agent) connected therewith. 


    Every
new Certificate issued pursuant to this Section in lieu of any destroyed, lost or stolen Certificate shall constitute an original additional contractual obligation of Washington
Mutual and of the Holder in respect of the Security evidenced thereby, whether or not the destroyed, lost or stolen Certificate (and the Securities evidenced thereby) shall be at any time enforceable
by anyone, and shall be entitled to all the benefits and be subject to all the obligations of this Agreement equally and proportionately with any and all other Certificates delivered hereunder. 



    The
provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Certificates. 


Section
3.12.  Persons Deemed Owners. 


    Prior
to due presentment of a Certificate for registration of transfer, Washington Mutual, the Trust and the Agent, and any agent of Washington Mutual, the Trust or the Agent, may
treat the Person in whose name such Certificate is registered as the owner of the Security evidenced thereby, for the purpose of receiving payments on the Preferred Securities, the Debentures or the
Warrants and for all other purposes whatsoever, whether or not any payments on the Preferred Securities, the Debentures or the Warrants shall be overdue and notwithstanding any notice to the contrary,
and none of Washington Mutual, the Trust, the Agent, nor any agent of Washington Mutual or the Agent, shall be affected by notice to the contrary. 


20





 


    Notwithstanding the foregoing, with respect to any Global Unit, nothing herein shall prevent Washington Mutual, the Agent or any agent of Washington Mutual, the Trust or the Agent,
from giving effect to any written certification, proxy or other authorization furnished by any Clearing Agency (or its nominee), as a Holder, with respect to such Global Unit or impair, as between
such Clearing Agency and owners of beneficial interests in such Global Unit, the operation of customary practices governing the exercise of rights of such Clearing Agency (or its nominee) as Holder of
such Global Unit. 


Section 3.13.  Cancellation.



    All
Certificates surrendered (i) for separation as provided in Section 3.6 hereof, (ii) in connection with a remarketing and redemption as provided in the
Declaration, the Warrant Agreement and Article V hereof or (iii) upon the transfer of Preferred Securities, Debentures or Warrants upon the registration of a transfer or exchange of a
Security or any of its components shall, if surrendered to any Person other than the Agent, be delivered to the Agent and, if not already cancelled, shall be promptly cancelled by it. Washington
Mutual and the Trust may at any time deliver to the Agent for cancellation any Certificates previously authenticated, executed and delivered hereunder which Washington Mutual and the Trust may have
acquired in any manner whatsoever, and all Certificates so delivered shall, upon Issuer Order, be promptly cancelled by the Agent. No Certificates shall be authenticated, executed on behalf of the
Holder and delivered in lieu of or in exchange for any Certificates cancelled as provided in this Section, except as expressly permitted by this Agreement. All cancelled Certificates held by the Agent
shall be held by the Agent or returned to Washington Mutual pursuant to an Issuer Order. 



    If
Washington Mutual, the Trust or any Affiliate of Washington Mutual shall acquire any Certificate, such acquisition shall not operate as a cancellation of such Certificate unless
and until such Certificate is delivered to the Agent cancelled or for cancellation. 


Section
3.14.  CUSIP Numbers. 


    Washington
Mutual, in issuing the Securities, may use "CUSIP" numbers (if then generally in use), and, if so, the Agent shall use "CUSIP" numbers in notices of redemption as a
convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. Washington Mutual will promptly notify the Agent of any change in the "CUSIP" numbers. 


Section
3.15.  Special Transfer Provisions. 


    The
following provisions will apply prior to the registration of the Securities pursuant to the Resale Registration Rights Agreement, or otherwise: 


    The
Securities Act Legend shall not be removed from the applicable Units except as provided in this Section. The Securities Act Legend may be removed from a Rule 144A Unit if
there is delivered to Washington Mutual and the Agent a certification in the form of Exhibit H hereto and such satisfactory evidence, which may include an Opinion of Counsel, as may be
reasonably required by Washington Mutual, that neither the Securities Act Legend nor the restrictions on transfer set forth therein are required to ensure that transfers of such Rule 144A Unit
will not violate the registration requirements of the Securities Act. Upon provision of such certification and any such satisfactory evidence, the Agent shall authenticate and deliver in exchange for
such Rule 144A Unit a Security or Securities having an equal aggregate amount that does not bear the Securities Act Legend. If the Securities Act Legend has been removed from a Security as
provided above, no other Security issued in exchange for all or any part of such Security shall bear such legend, unless Washington Mutual has reasonable cause to believe that such other Security is a
"restricted security" within the meaning of Rule 144 under the Securities Act and instructs the Agent to cause the Securities Act Legend to appear thereon. 


21





 


    Before the termination of the Restricted Period, transfers by an owner of a beneficial interest in the Regulation S Global Unit to a transferee who takes delivery of such
interest through the Rule 144A Unit will be made only in accordance with the procedures of DTC, to the extent applicable, and upon receipt by the Agent of a written certification from the
transferor of the beneficial interest in the form of Exhibit G to the effect that such transfer is being made to a Person who the transferor reasonably believes is a "qualified institutional
buyer" within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or
any other jurisdiction. After the end of the Restricted Period, such certification requirement will no longer apply to such transfers. 


    Transfers
by an owner of a certificated Security bearing the Securities Act Legend or of a beneficial interest in the Rule 144A Unit to a transferee who takes delivery of such
interest through the Regulation S Global Unit or in the form of a certificated Security not bearing the Securities Act Legend will be made only upon receipt by the Agent of a written
certification from the transferor in the form of Exhibit F to the effect that such transfer is being made in accordance with Regulation S. 


    Upon
any such exchange or transfer of all or a portion of any Global Unit for a certificated Security or an interest in either the Rule 144A Unit or the Regulation S
Global Unit, the Global Unit from which an interest is to be so exchanged or transferred will be marked to reflect the reduction of its principal amount or number, as applicable, by the aggregate
principal amount or number of such certificated Security or the interest to be so exchanged or transferred for an interest in a Regulation S Global Unit or a Rule 144A Unit, as the case
may be. Until so exchanged or transferred in full, such Global Unit
will in all respects be entitled to the same benefits under this Indenture as the Units authenticated and delivered hereunder. 



    Each
purchaser (other than the Initial Purchaser) of the Securities (including, without limitation, any purchaser of an interest in the Global Units) will be deemed to have
represented and agreed as follows: 



    (a) It
is (A) a Qualified Institutional Buyer as defined in Rule 144A and is acquiring the Securities for its own institutional account or for the account
or accounts of a Qualified Institutional Buyer, or (B) purchasing Securities in an offshore transaction in accordance with Rule 903 or Rule 904 of Regulation S under the
Securities Act; 


    (b) It
understands that the Securities are being transferred to it in a transaction not involving any public offering within the meaning of the Securities Act, and
that, if in the future it decides to resell, pledge or otherwise transfer any Securities, such Securities may be resold, pledged or transferred only (A) in a transaction meeting the
requirements of Rule 144A to a person who the seller reasonably believes is a Qualified Institutional Buyer that purchases for its own account or for the account or accounts of a Qualified
Institutional Buyer to whom notice is given that the resale, pledge or transfer is being made in reliance on Rule 144A, or (B) in accordance with Regulation S or (C) in a
transaction otherwise exempt from the registration requirements of the Securities Act; 


    (c) If
it is acquiring Securities or any interest or participation therein in an "offshore transaction" (as defined in Regulation S), it acknowledges that such
Securities initially will be represented by the Restricted Regulation S Global Unit and that, for so long as required by Regulation S, transfers thereof or any interest or participation
therein are restricted as provided in this Agreement; and 


    (d) It
understands that each Security will bear a legend substantially to the effect of the Securities Act Legend. 




    Holders
of a beneficial interest in Securities sold in reliance on Regulation S as Restricted Regulation S Global Units are prohibited from receiving distributions or
from exchanging beneficial 


22





 


interests in such Restricted Regulation S Global Units for a beneficial interest in a Permanent Regulation S Global Unit until the later of (i) the expiration of the Restricted
Period and (ii) the furnishing of a certificate, substantially in the form of Exhibit I attached hereto, certifying that the beneficial owner of the Restricted Regulation S Global
Units is a non-United States Person (a "Regulation S Certificate"). 


    Notwithstanding
anything to the contrary contained herein, (i) prior to the expiration of the Restricted Period, transfers of beneficial interests in a Restricted
Regulation S Global Unit may not be made to a U.S. Person or for the account or benefit of a U.S. Person (other than the Initial Purchaser), and (ii) a beneficial interest in a
Restricted Regulation S Global Unit may not be exchanged for a certificated Security or transferred to a Person who takes delivery thereof in the form of a certificated Security prior to
(x) the expiration of the Restricted Period and (y) the receipt by the Registrar of any certificates required pursuant to Rule 903(c)(3)(ii)(B) under the Securities Act, except in
the case of a transfer pursuant to an exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904. 


    The
Registrar shall retain for at least two years copies of all letters, notices and other written communications received pursuant to Section 2.16 hereof or this
Section 2.17. The Issuers shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable
written notice to the Registrar. 


 
 

ARTICLE IV
  The Preferred Securities    
  


Section
4.1.  Payment of Distribution; Rights to Distributions Preserved; Distribution Rate Reset. 


    Distributions
on the Preferred Securities which are made on any Payment Date shall, subject to receipt thereof by the Agent, be payable to the Holders as they appear on the books and
records of the Agent at the close of business on the relevant Record Dates. Distributions on the Preferred Securities which are made on any Remarketing Settlement Date shall, subject to receipt
thereof by the Agent, be payable to (or, in the case of Section 5.1, for the account of) the Holders as they appear on the books and records of the Agent at the close of business on the
Remarketing Date. If the Securities are represented by one or more Global Units, the relevant Record Dates shall be the close of business on the Business Day preceding the corresponding Payment Date,
unless a different Record Date is established or provided for the corresponding distributions on the Preferred Securities. If the Securities are not represented by one or more Global Units, the
relevant Record Dates shall be at least one Business Day prior to the corresponding Payment Dates, or such other dates as may be selected by the Agent. 



    Each
Certificate evidencing Preferred Securities (or Debentures) delivered under this Agreement upon registration of transfer of or in exchange for or in lieu of any other Certificate
shall carry the rights to distributions accumulated and unpaid, and to accumulate distributions, which were carried by the Preferred Securities (or Debentures) underlying such other Certificate. 


    The
applicable Coupon Rate on the Debentures on and after the Remarketing Date shall be equal to the Reset Rate established in the Remarketing on such date. 


Section
4.2.  Notice and Voting. 


    The
Agent will be entitled to exercise the voting and any other consensual rights pertaining to the Preferred Securities, Debentures and Warrants, as the case may be, but only to the
extent instructed in writing by the Holders as described below and in Article V. Upon receipt of notice of any meeting at which holders of Preferred Securities, Debentures or Warrants are
entitled to vote or upon any solicitation of consents, waivers or proxies of holders of Preferred Securities, Debentures or Warrants, the Agent shall, as soon as practicable thereafter, mail to the
Holders of Securities a notice 


23





 


(a) containing such information as is contained in the notice or solicitation, (b) stating that each Holder on the record date set by the Agent therefor (which, to the extent possible,
shall be the same date as the record date for determining the holders of Preferred Securities, Debentures or Warrants, as the case may be, entitled to vote) shall be entitled to instruct the Agent as
to the exercise of the voting rights pertaining to such Preferred Securities, Debentures or Warrants underlying their Security and (c) stating the manner in which such instructions may be
given. Upon the written request of the Holders of Securities on such record date received by the Agent at least six days prior to such meeting, the Agent shall endeavor insofar as practicable to vote
or cause to be voted, in accordance with the instructions set forth in such requests, the maximum number of Preferred Securities, Debentures or Warrants, as the case may be, as to which any particular
voting instructions are received. In the absence of specific instructions from the Holder of a Security, the Agent shall abstain from voting the Preferred Securities, Debentures or Warrants underlying
such Security. Washington Mutual hereby agrees to solicit Holders of Securities to timely instruct the Agent in order to enable the Agent to vote such Preferred Securities, Debentures or Warrants and
the Trust shall covenant to such effect in the Declaration. 


Section
4.3.  Distribution of Debentures. 


    Upon
the liquidation of the Trust in accordance with the Declaration, a principal amount at maturity of Debentures constituting the assets of the Trust and underlying the Preferred
Securities equal to the aggregate stated liquidation amount of the Preferred Securities shall be delivered to the Agent in exchange for the Preferred Securities. Thereafter, the Debentures will be
substituted for the Preferred Securities as a component of the Securities. Following the liquidation of the Trust, the Holders shall have such rights and obligations with respect to the Debentures as
the Holders had in respect of the Preferred Securities. Washington Mutual may cause to be made in any Certificates thereafter to be issued such change in phraseology and form (but not in substance) as
may be appropriate to reflect the liquidation of the Trust and the substitution of Debentures for Preferred Securities. 


 
 

ARTICLE V
  Remarketing and Redemption; Early Exercise    
  


Section
5.1.  Remarketing and Redemption. 


    Pursuant
to a Remarketing Agreement to be entered into, Washington Mutual will engage a Remarketing Agent to sell the Preferred Securities (or, if the Debentures have been distributed
upon liquidation of the Trust, the Debentures) upon the occurrence of a Remarketing Event. In connection with a Remarketing of the Preferred Securities: 




     (i) 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, as a result, the Accreted Value of the Preferred 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 established in the Remarketing of the
Preferred Securities, and, as a result, the "Distribution Rate" per annum on the Accreted Value of the Preferred Securities shall become the Reset Rate established in the Remarketing; 


    (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, and, as a 




24





 



result, Distributions accumulated and unpaid on the Securities from and including the immediately preceding Distribution Date to, but excluding, the Remarketing Settlement Date shall be payable to the
Holders of the Securities; 


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





    Upon
receipt from Washington Mutual of a Notice of Remarketing as provided in the Declaration and of a notice of a Redemption as provided in the Warrant Agreement, the Agent shall, as
soon as practicable thereafter, mail to the Holders of Securities a notice of such receipt, together with a copy of each such notice. 



IN THE ABSENCE OF AN AFFIRMATIVE ELECTION NOT TO PARTICIPATE IN THE REMARKETING, EACH HOLDER WILL BE DEEMED TO HAVE ELECTED TO PARTICIPATE IN SUCH REMARKETING AND, IF
APPLICABLE, TO HAVE ITS WARRANTS REDEEMED ON THE RELATED REMARKETING SETTLEMENT DATE AT THE WARRANT VALUE.




    Each
Holder of a Security who desires NOT to participate in the Remarketing shall notify the Agent of such intention by use of a notice
in substantially the form of Exhibit B hereto. Such notice shall be given to the Agent prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the Remarketing
Date specified in the Notice of Remarketing. A Holder of Security must affirmatively elect NOT to participate in a Remarketing on or prior to 5:00 p.m. New York City time on the Business Day
immediately preceding the Remarketing Date. Subject to the next paragraph, an election by a Holder NOT to participate in the Remarketing will not alter the deemed election by
such Holder to have its Warrants redeemed on the Remarketing Settlement Date. Any such notice shall be irrevocable and may not be conditioned upon the level at which the Reset
Rate is established in the Remarketing. The Agent, based on such notices, shall notify the Remarketing Agent, promptly after 5:00 p.m., New York City time, on the Business Day immediately
preceding the Remarketing Date, of the aggregate number of Preferred Securities (or, if the Debentures have been distributed in connection with a liquidation of the Trust, the Debentures) that are a
component of Securities to be remarketed. Upon receipt of such notice from the Agent, the Remarketing Agent shall, on the Remarketing Date, use commercially reasonable efforts to remarket such
Preferred Securities (or Debentures) on such date at a price equal to: (i) in connection with a Remarketing upon a Trading Remarketing Event or a Legal Cause Remarketing Event, 100% of the
aggregate Accreted Value of such Preferred Securities (or Debentures) 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 (or principal amount). 


    Each
Holder of a Security who desires to exercise its Warrants on the Remarketing Settlement Date at the Exercise Price per Warrant described in clause (v) above in this
Section 5.1, instead of having such Warrants redeemed on such date, shall notify the Agent and the Warrant Agent of such intention by use of a notice in substantially the form of
Exhibit C hereto. Such notice shall be given to the Agent and the Warrant Agent prior to 5:00 p.m., New York City time, on the Business Day immediately preceding the Remarketing
Settlement Date specified in the related Notice of Remarketing. As provided above, any Holder who does not notify the Agent and the Warrant Agent of an election to exercise its Warrants on the Warrant
Settlement Date shall be deemed to have elected to have such Warrants redeemed. Upon receipt of the foregoing notices the Agent shall provide notice to the Warrant Agent, no later than
5:00 p.m., New York City time, on the Business Day immediately preceding the related Remarketing Settlement Date specified in the related Notice of Remarketing, of 


25





 


the number of Warrants to be exercised and shall, no later than 5:00 p.m., New York City time, on the Remarketing Settlement Date, deliver to the Warrant Agent a duly completed form of election
to purchase set forth on the reverse side of the Warrant Certificate, a form of which is attached to the Global Unit, together with the proceeds of the Remarketing referred to in the following
paragraph. Upon receipt of the Common Stock deliverable upon exercise of the Warrants, the Warrant Agent shall deliver such shares to or upon the order of the Agent. 



    Each
Holder who elects to participate in the Remarketing and to exercise its Warrants on the related Remarketing Settlement Date is referred to as an "Electing Remarketing Holder."
The Agent shall instruct the Remarketing Agent to deliver the proceeds from the Remarketing of Preferred Securities of each Electing Remarketing Holder to the Warrant Agent, and the Warrant Agent
shall apply such amounts to satisfy in full such Holders' obligation to pay the Exercise Price for the Common Stock under the related Warrants on the Remarketing Settlement Date. Any Holder (other
than an Electing Remarketing Holder) of a Security affirmatively electing to exercise Warrants on the Remarketing Settlement Date may do so by following the procedures set forth in Section 5.2
and in the Warrant Agreement. The proceeds from a redemption of the Warrants which form a part of the Securities shall be paid to the Holders of such Securities. 


    The
Declaration provides that if, by 4:00 p.m. New York City time, on a Remarketing Date, the Remarketing Agent is unable to remarket all of the Preferred Securities deemed
tendered for purchase, a "Failed Remarketing" shall be deemed to have occurred and the Remarketing Agent shall so advise by telephone the Clearing Agency, the Property Trustee, the Warrant Agent, the
Indenture Trustee, the Administrative Trustees on behalf of the Trust and Washington Mutual. Washington Mutual shall then give notice of the Failed Remarketing to the Agent no later than 12:00 noon,
New York City time, on the Business Day following the Failed Remarketing and the Agent will, in turn, give notice to the Holders of the Preferred Securities prior to the close of business on the
Business Day following the Failed Remarketing. Notice of a Failed Remarketing shall be deemed to constitute a withdrawal of each previously delivered election to exercise
Warrants on the related Remarketing Settlement Date. Following any such withdrawal a holder may still elect to exercise its Warrants in accordance with the procedures specified
in Section 3.6 hereof and in the Warrant Agreement. 


    Upon
the occurrence of a Trading Remarketing Event or a Legal Cause Remarketing Event and the election by Washington Mutual to cause a Remarketing of the Preferred Securities, and on
the Maturity Remarketing Date, as long as the Securities are evidenced by one or more Global Units, deposited with the Clearing Agency, Washington Mutual shall request, not later than four nor more
than 20 days prior to the Remarketing Date, that the Clearing Agency notify the Holders of the Securities of the Remarketing of the Preferred Securities and of the procedures that must be
followed if such Holder of Securities wishes to elect not to participate in the Remarketing of the Preferred Securities. 


Section
5.2.  Early Exercise of Warrants; Exchange of Preferred Securities and Repurchase of Debentures. 


    A
Holder of a Security may elect to exercise the Warrants which form a part of such Security at any time in accordance with the terms of the Warrant Agreement. Each Holder,
other than an Electing Holder, who desires to exercise its Warrants shall, prior to any such exercise, separate the Warrant and the Preferred Security components of the Security in accordance with
Section 3.6. In no event may a Holder satisfy its obligation to pay the Exercise Price by tendering Preferred Securities. 


    Following
the exercise of a Warrant on a day other than the Remarketing Settlement Date, the Holder of the Security of which such Warrant formed a part may require the Trust to
exchange the Preferred Securities which formed the other part of such Security for Debentures having an Accreted Value equal to the Accreted Value of the Preferred Securities being exchanged and to
require 


26





 


Washington Mutual to repurchase such Debentures on the applicable Required Repurchase Date which is no less than 60 days from such exercise date, as specified in the Declaration. 


Section
5.3.  Change in Control. 


    Following
a Change in Control, each Holder will have the right to (i) require the Trust to distribute to such Holder Debentures having an Accreted Value equal to Accreted Value
of the Preferred Securities components of such Holder's Securities in exchange for its Preferred Securities and (ii) cause Washington Mutual to repurchase (a "Change of Control Repurchase
Right") such Holder's Debentures and redeem (a "Change of Control Redemption Right") such Holder's Warrants at the amounts and on the dates specified in the Warrant Agreement, the Declaration and the
Indenture, as applicable. 


    Upon
receipt from Washington Mutual of notice of a Change of Control (as provided in the Declaration and the Warrant Agreement), the Agent shall, as soon as practicable thereafter,
mail to the Holders of Securities a notice of such receipt, together with a copy of such notice of Change of Control. The date specified in the notice from Washington Mutual will be the "Change of
Control Notice Date." 



    (a) Warrants. To exercise the Change of Control Redemption Right, a Holder must deliver to the Agent, prior to the
30th day following the Change of Control Notice Date, irrevocable written notice in the form of Exhibit D hereto, of such Holder's election to have Warrants redeemed on the date
specified in the Warrant Agreement. The Agent, based on such notices, shall notify the Warrant Agent no later than
the 30th day following the Change in Control Notice Date of the aggregate number of Warrants to be redeemed. An election to have Warrants redeemed shall also constitute an election to
separate the related Securities into their component parts and the Agent and the Warrant Agent shall follow the procedures specified in Section 3.6. 


    (b) Preferred Securities. To exercise the Change of Control Repurchase Right, a Holder who has not separated its
Securities pursuant to clause (a) above must deliver to the Agent, no earlier than the 60th and no later than the 90th day following the Change of Control Notice
Date, irrevocable written notice in the form of Exhibit E hereto, of such Holder's election to have Preferred Securities components of its Securities exchanged for an equivalent Accreted Value
of Debentures and to have such Debentures repurchased on the date specified in the Indenture. The Agent, based on such notices, shall notify the Trust, Washington Mutual, the Property Trustee and the
Exchange Agent, no later than the 90th day following the Change of Control Notice Date of the aggregate number of Preferred Securities to be exchanged for Debentures by the Trust and to
be repurchased by Washington Mutual. An election to exchange Preferred Securities for Debentures and to have such Debentures repurchased by Washington Mutual shall also constitute an election to
separate the related Securities into their component parts and the Agent, the Exchange Agent and the Property Trustee shall follow the procedures specified in Section 3.6 hereof (and
Section 6.8 of the Declaration). 




Section
5.4.  Certain Rights Following a Remarketing. 


    Following
a Remarketing Settlement Date (unless there has been a "Failed Remarketing" under the Declaration) and a Redemption or exercise of the Warrants (including the delivery of
all shares of Common Stock pursuant to the exercise of a Warrant or the payment of the Warrant Value payable upon the related Redemption and the payment of any amounts payable upon the related
Remarketing), a Security shall thereafter represent the right to receive the Preferred Securities (or if the Debentures have been distributed upon liquidation of the Trust, the Debentures) forming a
part of such Securities. 


27





 
 
 

ARTICLE VI
  Remedies    
  


Section
6.1.  Unconditional Right of Holders to Receive Payments and to Purchase Common Stock. 


    The
Holder of any Security shall have all the rights provided to a holder of Preferred Securities under the Declaration and to a holder of Warrants under the Warrant Agreement,
including the right to institute suit for the enforcement of any such payments or obligations thereunder, and such rights shall not be impaired except as provided in the Declaration and the Warrant
Agreement. 



Section
6.2.  Restoration of Rights and Remedies. 


    If
any Holder has instituted any proceeding to enforce any right or remedy under this Agreement and such proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to such Holder, then and in every such case, subject to any determination in such proceeding, Washington Mutual and such Holder shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of such Holder shall continue as though no such proceeding had been instituted. 


Section
6.3.  Rights and Remedies Cumulative. 


    Except
as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Certificates in the last paragraph of Section 3.11, no right or
remedy herein conferred upon or reserved to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. 


Section
6.4.  Delay or Omission Not Waiver. 


    No
delay or omission of any Holder to exercise any right or remedy upon a default shall impair any such right or remedy or constitute a waiver of any such right. Every right and
remedy given by this Article or by law to the Holders may be exercised from time to time, and as often as may be deemed expedient, by such Holders. 


Section
6.5.  Undertaking for Costs. 


    All
parties to this Agreement agree, and each Holder of a Security, by its acceptance of such Security shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Agreement, or in any suit against the Agent for any action taken, suffered or omitted by it as Agent, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided
that the provisions of this Section shall not apply to any suit instituted by Washington Mutual, to any suit instituted by the Agent, to any suit instituted by any Holder, or group of Holders, holding
in the aggregate more than 10% of the Outstanding Securities, or to any suit instituted by any Holder for the enforcement of distributions on any Preferred Securities on or after the respective
Payment Date therefor in respect of any Security held by such Holder, or for enforcement of the right to purchase shares of Common Stock under the Warrants constituting part of any Security held by
such Holder. 


Section
6.6.  Waiver of Stay or Extension Laws. 


    Washington
Mutual covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the 


28





 


covenants or the performance of this Agreement; and Washington Mutual (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to the Agent or the Holders, but will suffer and permit the execution of every such power as though no such law had been
enacted. 


29






  



 
 

ARTICLE VII
  The Agent    
  


Section
7.1.  Certain Duties and Responsibilities. 



    (a) The
Agent undertakes to perform, with respect to the Securities, such duties and only such duties as are specifically set forth in this Agreement, and no implied
covenants or obligations shall be read into this Agreement against the Agent; and 



    (1) in
the absence of bad faith or negligence on its part, the Agent may, with respect to the Securities, conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions furnished to the Agent and conforming to the requirements of this Agreement but in the case of any certificates or opinions
which by any provision hereof are specifically required to be furnished to the Agent, the Agent shall be under a duty to examine the same to determine whether or not they conform to the requirements
of this Agreement (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). 




    (b) No
provision of this Agreement shall be construed to relieve the Agent from liability for its own negligent action, its own negligent failure to act, or its own
wilful misconduct, except that 



    (1) this
Subsection shall not be construed to limit the effect of Subsection (a) of this Section; 


    (2) the
Agent shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Agent was negligent in
ascertaining the pertinent facts; 


    (3) no
provision of this Agreement shall require the Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if adequate indemnity is not provided to it; and 


    (4) no
provision of this Agreement shall require the Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it. 




    (c) Whether
or not therein expressly so provided, every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the
Agent shall be subject to the provisions of this Section. 




Section
7.2.  Notice of Default. 


    Within
30 days after the occurrence of any default by Washington Mutual hereunder of which a Responsible Officer of the Agent has actual knowledge, the Agent shall transmit by
mail to Washington Mutual and the Holders of Securities, as their names and addresses appear in the Register, notice of such default hereunder, unless such default shall have been cured or waived. 


Section
7.3.  Certain Rights of Agent. 


    Subject
to the provisions of Section 7.1: 



    (a) the
Agent may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper
party or parties; 



30





 


    (b) any request or direction of Washington Mutual mentioned herein shall be sufficiently evidenced by an Officers' Certificate, Issuer Order or Issuer Request, and any
resolution of the Board of Directors of Washington Mutual may be sufficiently evidenced by a Board Resolution; 



    (c) whenever
in the administration of this Agreement the Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Agent (unless
other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate of Washington Mutual; 


    (d) the
Agent may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; 


    (e) the
Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Agent, in its discretion, may make reasonable further inquiry or
investigation into such facts or matters as it may see fit, and, if the Agent shall determine to make such further inquiry or investigation, it shall be given a reasonable opportunity to examine the
books, records and premises of Washington Mutual, personally or by agent or attorney at the sole cost of Washington Mutual, and shall incur no liability or additional liability of any kind by reason
of such inquiry or investigation; 


    (f)  the
Agent may execute any of the powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or an Affiliate and the
Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney or an Affiliate appointed with due care by it hereunder; 


    (g) with
respect to the calculation of the Accreted Value and the Warrant Value, the Agent may conclusively rely upon the calculations thereof determined by the
Calculation Agent; 


    (h) the
Agent shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Agreement; 


    (i)  the
Agent shall not be deemed or have notice of any Default or Event of Default unless a Responsible Officer of the Agent has actual knowledge thereof or unless
written notice of any event which is in fact such a default is received by the Agent at the Corporate Trust Office of the Agent, and such notice references the Securities and this Agreement; and 


    (j)  the
rights, privileges, protections, immunities and benefits given to the Agent, including, without limitation, its right to be indemnified, are extended to, and
shall be enforceable by, the Agent in each of its capacities hereunder including, without limitation, in its capacities as Warrant Agent and Property Trustee, and to each agent, custodian and other
Person employed to act hereunder. 




Section
7.4.  Not Responsible for Recitals or Issuance of Securities. 


    The
recitals contained herein and in the Certificates shall be taken as the statements of Washington Mutual, and the Agent assumes no responsibility for their accuracy. The Agent
makes no representations as to the validity or sufficiency of either this Agreement or of the Securities. 



    The
Agent shall not be accountable for the use or application by Washington Mutual of Securities or the proceeds thereof. 


31





 


Section 7.5.  May Hold Securities. 


    Any
Registrar or any other agent of Washington Mutual, or the Agent and its Affiliates, in their individual or any other capacity, may become the owner or pledgee of Securities and
may otherwise deal with Washington Mutual or any other Person with the same rights it would have if it were not Registrar or such other agent, or the Agent. 



Section
7.6.  Money Held in Custody. 


    Money
held by the Agent in custody hereunder need not be segregated from the other funds except to the extent required by law or provided herein. The Agent shall be under no
obligation to invest or pay interest on any money received by it hereunder except as otherwise agreed in writing with Washington Mutual. 


Section
7.7.  Compensation and Reimbursement. 


    Washington
Mutual agrees: 




    (1) to
pay to the Agent from time to time such compensation as shall from time to time be agreed to in writing by Washington Mutual and the Agent for all services
rendered by it hereunder; 


    (2) except
as otherwise expressly provided for herein, to reimburse the Agent upon its request for all reasonable expenses, disbursements and advances incurred or made
by the Agent in accordance with any provision of this Agreement (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith; and 


    (3) to
indemnify the Agent and any predecessor Agent for, and to hold it harmless against, any loss, liability or expense, including taxes (other than taxes based upon,
measured by or determined by the income of the Agent) incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of its duties
hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. 





    The
Agent shall have a lien prior to the Securities as to all property and funds held by it hereunder for any amount owing it or any predecessor Agent pursuant to this
Section 7.7, except with respect to funds held in trust for the benefit of the Holders of particular Securities. 


    The
provisions of this Section shall survive the termination of this Agreement and the resignation or removal of the Agent. 



Section
7.8.  Corporate Agent Required; Eligibility. 


    There
shall at all times be an Agent hereunder which shall be a corporation organized and doing business under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to exercise corporate trust powers, having (or being a member of a bank holding company having) a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by Federal or State authority and having a Corporate Trust Office in the Borough of Manhattan, The City of New York, if there be such a corporation in the Borough
of Manhattan, The City of New York, qualified and eligible under this Article and willing to act on reasonable terms. If such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so published. If at any time the Agent shall cease to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in this Article. 


32





 



Section 7.9.  Resignation and Removal; Appointment of Successor. 



    (a) No
resignation or removal of the Agent and no appointment of a successor Agent pursuant to this Article shall become effective until the acceptance of appointment
by the successor Agent in accordance with the applicable requirements of Section 7.10. 


    (b) The
Agent may resign at any time by giving written notice thereof to Washington Mutual 60 days prior to the effective date of such resignation. If the
instrument of acceptance by a successor Agent required by Section 7.10 shall not have been delivered to the Agent within 30 days after the giving of such notice of resignation, the
resigning Agent may petition any court of competent jurisdiction for the appointment of a successor Agent. 



    (c) The
Agent may be removed at any time by Act of the Holders of a majority in number of the Outstanding Securities delivered to the Agent and Washington Mutual. 


    (d) If
at any time 



    (1) the
Agent fails to comply with Section 310(b) of the TIA, as if the Agent were an indenture trustee under an indenture qualified under the TIA, after written
request therefor by Washington Mutual or by any Holder who has been a bona fide Holder of a Security for at least six months, or 


    (2) the
Agent shall cease to be eligible under Section 7.8 and shall fail to resign after written request therefor by Washington Mutual or by any such Holder, or 



    (3) the
Agent shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Agent or of its property shall be appointed or any
public officer shall take charge or control of the Agent or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, 





then,
in any such case, (i) Washington Mutual by a Board Resolution may remove the Agent, or (ii) any Holder who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Agent and the appointment of a successor Agent. 



    (e) If
the Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Agent for any cause, Washington Mutual, by a Board
Resolution, shall promptly appoint a
successor Agent and shall comply with the applicable requirements of Section 7.10. If no successor Agent shall have been so appointed by Washington Mutual and accepted appointment in the manner
required by Section 7.10, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of itself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Agent. 


    (f)  Washington
Mutual shall give, or shall cause such successor Agent to give, notice of each resignation and each removal of the Agent and each appointment of a
successor Agent by mailing written notice of such event by first-class mail, postage prepaid, to all Holders as their names and addresses appear in the applicable Register. Each notice shall include
the name of the successor Agent and the address of its Corporate Trust Office. 




Section
7.10.  Acceptance of Appointment by Successor. 



    (a) In
case of the appointment hereunder of a successor Agent, every such successor Agent so appointed shall execute, acknowledge and deliver to Washington Mutual and
to the retiring Agent an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Agent shall become effective and such successor Agent, without any further act,
deed or conveyance, shall become vested with all the rights, powers, agencies and duties of the retiring Agent; but, on the request of Washington Mutual or the successor Agent, such retiring Agent
shall, 



33





 


upon payment of its charges, execute and deliver an instrument transferring to such successor Agent all the rights, powers and trusts of the retiring Agent and shall duly assign, transfer and deliver
to such successor Agent all property and money held by such retiring Agent hereunder. If an instrument of acceptance by a successor Agent shall not have been delivered to the Agent within
30 days after the giving of such notice of removal, the Agent being removed may petition, at the expense of Washington Mutual, any court of competent jurisdiction for the appointment of a
successor Agent with respect to the Securities of such series. 


    (b) Upon
request of any such successor Agent, Washington Mutual shall execute any and all instruments for more fully and certainly vesting in and confirming to such
successor Agent all such rights, powers and agencies referred to in paragraph (a) of this Section. 


    (c) No
successor Agent shall accept its appointment unless at the time of such acceptance such successor Agent shall be qualified and eligible under this Article. 




Section
7.11.  Merger, Conversion, Consolidation or Succession to Business. 


    Any
corporation into which the Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which the Agent shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Agent, shall be the successor of the Agent hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article, with the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any
Certificates shall have been authenticated and executed on behalf of the Holders, but not delivered, by the Agent then in office, any successor by merger, conversion or consolidation to such Agent may
adopt such authentication and execution and deliver the Certificates so authenticated and executed with the same effect as if such successor Agent had itself authenticated and executed such
Securities. 


Section
7.12.  Preservation of Information; Communications to Holders. 



    (a) The
Agent shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders received by the Agent in its capacity as Registrar. 



    (b) If
three or more Holders (herein referred to as "applicants") apply in writing to the Agent, and furnish to the Agent reasonable proof that each such applicant has
owned a Security for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders with respect to
their rights under this Agreement or under the Securities and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Agent shall mail
to all the Holders copies of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Agent of the materials to be mailed and of
payment, or provision for the payment, of the reasonable expenses of such mailing. 




Section
7.13.  No Obligations of Agent. 


    Except
to the extent otherwise expressly provided in this Agreement, the Agent assumes no obligations and shall not be subject to any liability under this Agreement in respect of the
obligations of the Holder of any Security hereunder. Washington Mutual agrees, and each Holder of a Certificate, by his acceptance thereof, shall be deemed to have agreed, that the Agent's execution
of the Certificates on behalf of the Holders shall be solely as agent and attorney-in-fact for the Holders, and that the Agent shall have no obligation thereunder except to the
extent expressly provided in Article Five hereof. Anything in this Agreement to the contrary notwithstanding, in no event shall the Agent or its officers, employees or agents be liable under this
Agreement to any third party for indirect, special, punitive, or consequential loss or damage of any kind whatsoever, including lost profits, whether or not the likelihood of such loss or damage was
known to the Agent, incurred without any act 


34





 


or deed that is found to be attributable to gross negligence or willful misconduct on the part of the Agent. 



Section
7.14.  Tax Compliance. 



    (a) Washington
Mutual will comply with all applicable certification, information reporting and withholding (including "backup" withholding) requirements imposed by
applicable tax laws, regulations or administrative practice with respect to (i) any payments made with respect to the Securities or (ii) the issuance, delivery, holding, transfer,
redemption or exercise of rights under the Securities. Such compliance shall include, without limitation, the preparation and timely filing of required returns and the timely payment of all amounts
required to be withheld to the appropriate taxing authority or its designated agent. 


    (b) The
Agent shall comply in accordance with the terms hereof with any written direction received from Washington Mutual with respect to the execution or certification
of any required documentation and the application of such requirements to particular payments or Holders or in other particular circumstances, and may for purposes of this Agreement conclusively rely
on any such direction in accordance with the provisions of Section 7.1(a)(2) hereof. 


    (c) The
Agent shall maintain all appropriate records documenting compliance with such requirements, and shall make such records available, on written request, to
Washington Mutual or its authorized representative within a reasonable period of time after receipt of such request. 



 
 

ARTICLE VIII
  Supplemental Agreements    
  


Section
8.1.  Supplemental Agreements Without Consent of Holders. 


    Without
the consent of any Holders or any other party hereto, Washington Mutual and the Agent, at any time and from time to time, may enter into one or more agreements supplemental
hereto, in form satisfactory to Washington Mutual and the Agent, for any of the following purposes: 




    (1) to
evidence the succession of another Person to Washington Mutual, and the assumption by any such successor of the covenants of Washington Mutual herein and in the
Certificates; or 


    (2) to
add to the covenants of Washington Mutual for the benefit of the Holders, or to surrender any right or power herein conferred upon Washington Mutual; or 


    (3) to
evidence and provide for the acceptance of appointment hereunder by a successor Agent; or 


    (4) to
cure any ambiguity, to cure, correct or supplement any provisions herein which may be inconsistent with any other provisions herein, or to make any other
provisions with respect to such matters or questions arising under this Agreement that Washington Mutual and the Agent may deem necessary or desirable, provided such action shall not adversely affect
the interests of the Holders. 





Section
8.2.  Supplemental Agreements With Consent of Holders; Other Fiduciaries. 


    With
the consent of the Holders of not less than a majority in number of the Outstanding Securities voting together as one class, by Act of said Holders delivered to Washington Mutual
and the Agent, Washington Mutual, when authorized by a Board Resolution, the Trust and the Agent may enter into an agreement or agreements supplemental hereto for the purpose of modifying in any
manner the provisions of this Agreement or the rights of the Holders in respect of the Securities; provided, however, that, except as contemplated herein, no such supplemental agreement shall, without
the unanimous consent of the Holders of each Outstanding Security affected thereby, 


35





 


    (1) materially
and adversely affect such Holder's rights under a Security; or 


    (2) reduce
the percentage of the Outstanding Securities the consent of whose Holders is required for any such supplemental agreement; 





provided,
that any modification of the Declaration or Warrant Agreement in accordance with the terms thereof shall be binding on the rights of the Holders under this Agreement without the need for any
further consent. 


    It
shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental agreement, but it shall be sufficient if such Act shall
approve the substance thereof. 


    No
agreement supplemental hereto shall modify in any way any of the rights or obligations of the Agent, the Property Trustee, the Indenture Trustee, the Warrant Agent or the
Remarketing Agent without such Person's consent. 


    Washington
Mutual may, but shall not be obligated to, fix a record date for the purpose of determining the Persons entitled to consent to any indenture supplemental hereto. If a
record date is fixed, the Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to consent to such supplemental indenture, whether or not such Holders
remain Holders after such record date; provided, that unless such consent shall have become effective by virtue of the requisite percentage having been obtained prior to the date which is
90 days after such record date, any such consent previously given shall automatically and without further action by any Holder be canceled and of no further effect. 



Section
8.3.  Execution of Supplemental Agreements. 


    In
executing, or accepting the additional agencies created by, any supplemental agreement permitted by this Article or the modifications thereby of the agencies created by this
Agreement, the Agent shall be entitled to receive, and (subject to Section 7.1) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental
agreement is authorized or permitted by this Agreement. The Agent may, but shall not be obligated to, enter into any such supplemental agreement which affects the Agent's own rights, duties or
immunities under this Agreement or otherwise. 



Section
8.4.  Effect of Supplemental Agreements. 


    Upon
the execution of any supplemental agreement under this Article, this Agreement shall be modified in accordance therewith, and such supplemental agreement shall form a part
of this Agreement for all purposes; and every Holder of Certificates theretofore or thereafter authenticated, executed on behalf of the Holders and delivered hereunder, shall be bound thereby. 


Section
8.5.  Reference to Supplemental Agreements. 


    Certificates
authenticated, executed on behalf of the Holders and delivered after the execution of any supplemental agreement pursuant to this Article may, and shall if required by
the Agent, bear a
notation in form approved by the Agent as to any matter provided for in such supplemental agreement. If Washington Mutual shall so determine, new Certificates so modified as to conform, in the opinion
of the Agent and Washington Mutual, to any such supplemental agreement may be prepared and executed by Washington Mutual and authenticated, executed on behalf of the Holders and delivered by the Agent
in exchange for Certificates representing Outstanding Securities. 


36





 
 
 

ARTICLE IX
  Consolidation, Merger, Sale or Conveyance    
  


Section
9.1.  Covenant Not to Merge, Consolidate, Sell or Convey Property Except Under Certain Conditions. 


    Washington
Mutual covenants that it will not merge or consolidate with any other Person or sell, assign, transfer, lease or convey all or substantially all of its properties and
assets to any Person or group of affiliated Persons in one transaction or a series of related transactions, unless (i) either Washington Mutual shall be the continuing corporation, or the
successor (if other than Washington Mutual) shall be a corporation organized and existing under the laws of the United States of America or a State thereof or the District of Columbia and such
corporation shall expressly assume all the obligations of Washington Mutual under this Agreement by one or more supplemental agreements in form reasonably satisfactory to the Agent, executed and
delivered to the Agent by such corporation, and (ii) Washington Mutual or such successor corporation, as the case may be, shall not, immediately after such merger or consolidation, or such
sale, assignment, transfer, lease or conveyance, be in default in the performance of any covenant or condition hereunder or under any of the Securities (including the component parts thereof). 



Section
9.2.  Rights and Duties of Successor Corporation. 


    In
case of any such consolidation, merger, sale, assignment, transfer, lease or conveyance and upon any such assumption by a successor corporation in accordance with
Section 9.1, such successor corporation shall succeed to and be substituted for Washington Mutual with the same effect as if it had been named herein as Washington Mutual. Such successor
corporation thereupon may cause to be signed, and may issue either in its own name or in the name of Washington Mutual, any or all of the Certificates evidencing Securities issuable hereunder which
theretofore shall not have been signed by Washington Mutual and delivered to the Agent; and, upon the order of such successor corporation, instead of Washington Mutual, and subject to all the terms,
conditions and limitations in this Agreement prescribed, the Agent shall authenticate and execute on behalf of the Holders and deliver
any Certificates which previously shall have been signed and delivered by the officers of Washington Mutual to the Agent for authentication and execution, and any Certificate evidencing Securities
which such successor corporation thereafter shall cause to be signed and delivered to the Agent for that purpose. All the Certificates issued shall in all respects have the same legal rank and benefit
under this Agreement as the Certificates theretofore or thereafter issued in accordance with the terms of this Agreement as though all of such Certificates had been issued at the date of the execution
hereof. 


    In
case of any such consolidation, merger, sale, assignment, transfer, lease or conveyance such change in phraseology and form (but not in substance) may be made in the Certificates
evidencing Securities thereafter to be issued as may be appropriate. 


Section
9.3.  Opinion of Counsel Given to Agent. 


    The
Agent, subject to Sections 7.1 and 7.3, shall receive an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, assignment, transfer, lease or
conveyance, and any such assumption, complies with the provisions of this Article and that all conditions precedent to the consummation of any such consolidation, merger, sale, assignment, transfer,
lease or conveyance have been met. 


37





 
 
 

ARTICLE X
  Covenants    
  



Section
10.1.  Performance Under Agreements. 


    Washington
Mutual covenants and agrees for the benefit of the Holders from time to time of the Securities that it will duly and punctually perform its obligations under the Warrant
Agreement and the Declaration in accordance with the terms thereof and this Agreement. 


Section
10.2.  Maintenance of Office or Agency. 


    Washington
Mutual will maintain in the Borough of Manhattan, The City of New York an office or agency where Certificates may be presented or surrendered for registration of transfer
or exchange, separation or re-establishment of a Security and where notices and demands to or upon Washington Mutual in respect of the Securities and this Agreement may be served.
Washington Mutual will give prompt written notice to the Agent of the location, and any change in the location, of such office or agency. If at any time Washington Mutual shall fail to maintain any
such required office or agency or shall fail to furnish the Agent with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office, and
Washington Mutual hereby appoints the Agent as its agent to receive all such presentations, surrenders, notices and demands. 


    Washington
Mutual may also from time to time designate one or more other offices or agencies where Certificates may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve Washington Mutual of its obligation to maintain an office or agency
in the Borough of Manhattan, The City of New York for such purposes. Washington Mutual will give prompt written notice to the Agent of any such designation or rescission and of any change in the
location of any such other office or agency. Washington Mutual hereby designates as the place of payment for the Securities the Corporate Trust Office and appoints the Agent at its Corporate Trust
Office as paying agent in such city. 


Section
10.3.  Statements of Officers of Washington Mutual as to Compliance. 


    Washington
Mutual will deliver to the Agent, within 120 days after the end of each fiscal year of Washington Mutual (which as of the date hereof is December 31) ending
after the date hereof, an Officers' Certificate (one of the signers of which shall be the principal executive officer, principal financial officer or principal accounting officer of Washington
Mutual), stating whether or not to the best knowledge of the signers thereof Washington Mutual is in default in the performance and observance of any of the terms, provisions and conditions hereof,
and if Washington Mutual shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge. 


Section 10.4.  ERISA.



    Each
Holder from time to time of the Security which is a Plan hereby represents that its acquisition of the Security and the holding of the same satisfies the applicable fiduciary
requirements of ERISA and that it is entitled to exemption relief from the prohibited transaction provisions of ERISA and the Code in accordance with one or more prohibited transaction exemptions or
otherwise will not result in a nonexempt prohibited transaction. 


Section
10.5.  Statement by Officers as to Default. 


    Washington
Mutual shall deliver to the Agent, as soon as possible and in any event within five days after Washington Mutual becomes aware of the occurrence of any Event of Default or
an event which, with notice or the lapse of time or both, would constitute an Event of Default, an Officers' Certificate 


38





 


setting forth the details of such Event of Default or default and the action which the Washington Mutual proposes to take with respect thereto. 


39





 


Section 10.6.  Calculation of Original Issue Discount. 


    Washington
Mutual shall provide to the Agent on a timely basis such information as the Agent requires to enable the Agent to prepare and file any form required to be submitted by
Washington Mutual with the Internal Revenue Service and Holders of Securities relating to original discount, including, without limitation, Form 1099-OID or any successor form. 


 
 

ARTICLE XI
  Representations of the Agent    
  


Section
11.1.  Representations and Warranties of the Agent. 


    The
initial Agent represents and warrants to the Trust and to Washington Mutual at the date of this Agreement, and each successor Agent represents and warrants to the Trust and
Washington Mutual at the time of the successor Agent's acceptance of its appointment as Agent, that: 



    (a) the
Agent is a banking corporation duly organized, validly existing and in good standing under the laws of the State of New York, with trust powers and authority to
execute and deliver, and to carry out and perform its obligations under the terms of, this Agreement; 


    (b) the
Agent satisfies the requirements set forth in Section 7.8; 


    (c) the
execution, delivery and performance by the Agent of this Agreement has been duly authorized by all necessary corporate action on the part of the Agent; this
Agreement has been duly executed and delivered by the Agent and constitutes a legal, valid and binding obligation of the Agent enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency and other similar laws affecting creditors' rights generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law); 


    (d) the
execution, delivery and performance of this Agreement by the Agent does not conflict with, or constitute a breach of, the charter or by-laws of the
Agent; and 


    (e) no
consent, approval or authorization of, or registration with or notice to, any New York State or federal banking authority is required for the execution, delivery
or performance by the Agent of this Agreement. 



 
 

ARTICLE XII
  The Warrant Agent and The Property Trustee    
  


Section
12.1.  Certain Duties and Responsibilities. 



    (a) (1)
The Warrant Agent and the Property Trustee (each, a "Party", together, the "Parties") undertake to perform, with respect to this Agreement, such duties and only
such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against any Party. The provisions regarding the appointment,
removal, resignation, vacancies, meetings, delegation of power and merger, conversion, consolidation or succession to business applicable to such Party in the Declaration or Warrant Agreement, as to
which such Person is a party, shall apply to the performance of such Persons duties and obligations hereunder. 


    Without
limiting the foregoing, 


    (a) In
the absence of bad faith or negligence on its part, any Party may, with respect to the Securities, conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed
therein, upon certificates or opinions furnished to such Party and conforming to the requirements of this Agreement but in the case of any certificates or opinions which by any provision hereof are
specifically required to be furnished to a Party, such Party shall be under a 



40





 


duty to examine the same to determine whether or not they conform to the requirements of this Agreement. 



    (b) No
provision of this Agreement shall be construed to relieve any Party from liability for its own negligent action, its own negligent failure to act, or its own
wilful misconduct, except that 



    (1) this
Subsection shall not be construed to limit the effect of Subsection (a) of this Section; 


    (2) no
Party shall be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that such Party was negligent in
ascertaining the pertinent facts; and 


    (3) no
provision of this Agreement shall require any Party to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if adequate indemnity is not provided to it. 




    (c) Whether
or not therein expressly so provided, every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the
Parties shall be subject to the provisions of this Section. 


    (d) Any
Party may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper
party or parties; 


    (e) Any
request or direction of Washington Mutual mentioned herein shall be sufficiently evidenced by an Officers' Certificate, Issuer Order or Issuer Request, and any
resolution of the Board of Directors of Washington Mutual may be sufficiently evidenced by a Board Resolution; 


    (f)  Whenever
in the administration of this Agreement any Party shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting
any action hereunder, such Party (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate of Washington Mutual; 


    (g) Any
Party may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; 


    (h) No
Party shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but any Party, in its discretion, may make reasonable further inquiry or
investigation into such facts or matters as it may see fit, and, if such Party shall determine to make such further inquiry or investigation, it shall be given a reasonable opportunity to examine the
books, records and premises of Washington Mutual, personally or by agent or attorney at the sole cost of Washington Mutual and shall incur no liability or additional liability of any kind by reason of
such inquiry or investigation; and 


    (i)  Any
Party may execute any of the powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or an Affiliate and no Party
shall be responsible for any misconduct or negligence on the part of any agent or attorney or an Affiliate appointed with due care by it hereunder. 



41





 


    (j)  No Party shall be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement; 


    (k) No
Party shall be deemed or have notice of any default or event of default unless an officer in the corporate trust department of such Party has actual knowledge
thereof or unless written notice of any event which is in fact such a default is received by such Party at its address identified in this Agreement, and such notice references the Securities and this
Agreement. 


    (l)  The
rights, privileges, protections, immunities and benefits given to each Party, including, without limitation, its right to be indemnified, are extended to, and
shall be enforceable by, such Party in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder. 


    (m) The
recitals contained herein and in the Certificates shall be taken as the statements of Washington Mutual, and no Party assumes any responsibility for their
accuracy. No Party makes any representations as to the validity or sufficiency of either this Agreement or of the Securities. 



    (n) Any
Party in its individual or any other capacity, may become the owner or pledgee of Securities and may otherwise deal with Washington Mutual or any other Person
with the same rights it would have if it were not a Party. 


    (o) Washington
Mutual agrees to pay each Party such compensation, and to reimburse each Party for such expenses, as shall be provided from time to time in the
Declaration and the Warrant Agreement to which such Party is a signatory. 


    (p) The
provisions of this Section shall survive the termination of this Agreement. 


    (q) No
Party shall be accountable for the use or application by Washington Mutual of Securities or the proceeds thereof. 



42





 

    IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written. 



	 	 	WASHINGTON MUTUAL, INC.
	

 	
 	

By:	
 	

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

Title:  Senior Executive Vice President
	

 	
 	

THE BANK OF NEW YORK, as Agent
	

 	
 	

By:	
 	

/s/ MICHAEL PITFICK   
 Name:  Michael Pitfick

Title:  Assistant Treasurer
	

 	
 	

THE BANK OF NEW YORK, as Warrant Agent
	

 	
 	

By:	
 	

/s/ MICHAEL PITFICK   
 Name:  Michael Pitfick

Title:  Assistant Treasurer
	

 	
 	

THE BANK OF NEW YORK, as Property Trustee
	

 	
 	

By:	
 	

/s/ MICHAEL PITFICK   
 Name: Michael Pitfick

Title: Assistant Treasurer
	

 	
 	

WASHINGTON MUTUAL CAPITAL TRUST 2001
	

 	
 	

By:	
 	

/s/ DIANE L. KELLEHER   
 Name:  Diane L. Kelleher

Title:  Administrative Trustee



43







	

 	
 	

 	
 	






  



 
 

EXHIBIT A    
  


 
 

FACE OF CERTIFICATE    
  


    "THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE UNIT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR A NOMINEE OF THE DEPOSITARY. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY
OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE UNIT AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES. 


    UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN. 


    THE
CONSTITUENT COMPONENTS OF THIS UNIT MUST BE SEPARATED PRIOR TO TRANSFER (EXCEPT AS PART OF A UNIT) AS PROVIDED IN THE UNIT AGREEMENT." 


    [THE
SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND
MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET
FORTH IN THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT, OR
(B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 903 OR 904 OF REGULATION S; (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER
THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY EXCEPT (A) TO WASHINGTON MUTUAL OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT (IF AVAILABLE), (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH
TRANSFER; AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(E) ABOVE) A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. IN 


A–1





 


CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF SUCH SECURITY (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(E) ABOVE), THE HOLDER MUST CHECK
THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE). IF THE PROPOSED
TRANSFER IS PURSUANT TO CLAUSE 2(C) OR 2(D) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE) SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS WASHINGTON MUTUAL MAY REASONABLY REQUIRE, TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE SECURITY EVIDENCED HEREBY PURSUANT TO CLAUSE 2(E) ABOVE OR THE EXPIRATION OF TWO YEARS FROM THE
ORIGINAL ISSUANCE OF THE SECURITY EVIDENCED HEREBY. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.] 


[THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE PROVISIONS OF THE RESALE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL THE SECURITIES.] 


    [PRIOR
TO EXPIRATION OF THE ONE-YEAR DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES
ACT")) ("REGULATION S"), THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES (AS DEFINED IN REGULATION S) OR TO, OR FOR THE ACCOUNT OR BENEFIT OF,
A U.S. PERSON (AS DEFINED IN REGULATION S), EXCEPT (A) TO A PERSON REASONABLY BELIEVED TO BE A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A ("RULE 144A") UNDER
THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (B) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE)
OR (C) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER.] 


A–2





 


	Certificate No.:                         	 	CUSIP No.:                        
	Number of Preferred Securities:             	 	 




 
 

WASHINGTON MUTUAL, INC.
  WASHINGTON MUTUAL CAPITAL TRUST 2001
  Unit Security    
  


    This Certificate certifies that Cede & Co. is the registered Holder of the number of Securities set forth above. Each Security consists of
(i) beneficial ownership by the Holder of one Preferred Security (the "Preferred Security") of Washington Mutual Capital Trust 2001, a Delaware statutory business trust (the "Trust"), having a
stated liquidation amount of $50, the form of which is attached as Annex A hereto and (ii) the rights and obligations of the Holder under one Warrant to purchase shares of common stock of
Washington Mutual, Inc., a Washington corporation (the "Company"), the form of which is attached as Annex B hereto. All capitalized terms used herein which are defined in the Unit Agreement (as
defined on the reverse hereof) have the meaning set forth therein. 


    Distributions
on any Preferred Security forming part of a Security evidenced hereby, which are payable quarterly in arrears on February 1, May 1, August 1, and
November 1 of each year, commencing on August 1, 2001 (a "Payment Date"), shall, subject to receipt thereof by the Agent, be paid to the Person in whose name this Certificate (or a
Predecessor Certificate) is registered at the close of business on the Record Date for such Payment Date, except that the proceeds of a Remarketing will be paid to the Warrant Agent in satisfaction of
each Electing Remarketing Holder's obligations to pay the Exercise Price of Warrants constituting a part of this Security. 


    Distributions
on the Preferred Securities will be payable at the office of the Agent in The City of New York or, at the option of Washington Mutual, by check mailed to the address of
the Person entitled thereto as such address appears on the Register. 


    Reference
is hereby made to the further provisions set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. 



    Unless
the certificate of authentication hereon has been executed by the Agent by manual signature, this Certificate shall not be entitled to any benefit under the Unit Agreement, the
Warrant Agreement or the Declaration or be valid or obligatory for any purpose. 


    IN
WITNESS WHEREOF, the undersigned have caused this instrument to be duly executed. 



	 	 	WASHINGTON MUTUAL, INC.
	

 	
 	

By:	
 	

 Name:

Title:  
	

 	
 	

WASHINGTON MUTUAL CAPITAL TRUST 2001
	

 	
 	

By:	
 	

 Name:

Title:  Administrative Trustee




A–3





 
 
 

AGENT'S CERTIFICATE OF AUTHENTICATION    
  


    This is one of the Certificates referred to in the within mentioned Unit Agreement. 



	Dated:	 	By:	 	THE BANK OF NEW YORK, as Agent
	

 	
 	

By:	
 	

 Authorized Signatory




A–4





 
 
 

(FORM OF REVERSE OF CERTIFICATE)    
  


    Each Security evidenced hereby is governed by a Unit Agreement, dated as of April 30, 2001 (as may be supplemented from time to time, the "Unit
Agreement"), among Washington Mutual, The Bank of New York, as unit agent (including its successors hereunder, the "Agent"), The Bank of New York, as Warrant Agent, and The Bank of New York, as
Property Trustee, to which Agreement and supplemental agreements thereto reference is hereby made for a description of the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Agent, Washington Mutual, and the Holders and of the terms upon which the Certificates are, and are to be, executed and delivered. Pursuant to the Unit Agreement, the rights,
limitations or rights, obligations, duties and immunities of the Agent, Washington Mutual, and the Holders, and the Certificates include the rights, obligations, duties and immunities set forth in the
Warrant Agreement and the Declaration, to which reference is further made for a description thereof. 


    Each
Security evidenced hereby consists of (i) beneficial ownership by the Holder of one Preferred Security of Washington Mutual Capital Trust 2001 having a stated liquidation
amount of $50, the form of which is attached as Annex A hereto and (ii) the rights and obligations of the Holder under one Warrant to purchase shares of common stock of Washington Mutual, the
form of which is attached as Annex B hereto. 


    Washington
Mutual may, under the circumstances described in the Declaration, cause a Remarketing of the outstanding Preferred Securities which form a part of this Security. In
connection therewith, Washington Mutual will, as described in the Warrant Agreement, redeem all Warrants which form a part of this Security. 



    In
no event may a Holder pay the Exercise Price of a Warrant by tendering a Preferred Security. In accordance with the terms of the Declaration and the Unit Agreement, the Holder of
this Certificate may pay the Exercise Price for the shares of Common Stock purchased pursuant to each Warrant
constituting a part of this Security by applying the proceeds of a remarketing of the related Preferred Securities. 


    A
Holder of a Security who does not affirmatively elect NOT to participate in a Remarketing on or prior to 5:00 p.m. New York City time on the Business Day immediately
preceding the Remarketing Date, will be deemed to have consented to participation in such Remarketing. A Holder of a Security who does not affirmatively elect on or prior to 5:00 p.m. on the
Business Day preceding a Remarketing Settlement Date to exercise the Warrants related to such Security will be deemed to have consented to a redemption of such Warrants on the Remarketing Settlement
Date. A Remarketing sale will be made by the Remarketing Agent pursuant to the terms of the Remarketing Agreement on the Remarketing Date. 


    A
holder may exercise the Warrants which form a part of the Securities evidenced by this Certificate at any time upon compliance with the procedures specified in the Warrant
Agreement. A Holder of a Security evidenced by this Certificate who elects to exercise Warrants prior to the Remarketing Settlement Date shall have the right to require the Trust to exchange the
related Preferred Securities for Debentures having an Accreted Value equal to the Accreted Value of such Preferred Securities and to require Washington Mutual to repurchase such Debentures on the next
Required Repurchase Date which is no less than 60 days after the applicable exercise date. 


    Upon
receipt of notice of any meeting at which holders of Preferred Securities are entitled to vote or upon the solicitation of consents, waivers or proxies of holders of Preferred
Securities, the Agent shall, as soon as practicable thereafter, mail to the Holders a notice (a) containing such information as is contained in the notice or solicitation, (b) stating
that each Holder on the record date set by the Agent therefor (which, to the extent possible, shall be the same date as the record date for determining the holders of Preferred Securities entitled to
vote) shall be entitled to instruct the Agent as to the 


A–5





 


exercise of the voting rights pertaining to the Preferred Securities constituting a part of such Holder's Security and (c) stating the manner in which such instructions may be given. Upon the
written request of the Holders on such record date, the Agent shall endeavor insofar as practicable to vote or cause to be voted, in accordance with the instructions set forth in such requests, the
maximum number of Preferred Securities as to which any particular voting instructions are received. In the absence of specific instructions from the Holder of a Security, the Agent shall abstain from
voting the Preferred Security evidenced by such Security. 


    Upon
the liquidation of the Trust, a principal amount of the Debentures constituting the assets of the Trust and underlying the Preferred Securities equal to the aggregate Accreted
Value of the Preferred Securities shall be delivered to the Agent in exchange for the Preferred Securities. Thereafter, the Holders shall have such rights and obligations with respect to the
Debentures as the Holders had in respect of the Preferred Securities and any reference herein to the Preferred Securities shall be deemed to be a reference to the Debentures. 



    The
Certificates are issuable only in registered form and only in denominations of a single Security and any integral multiple thereof. The transfer of any Certificate will be
registered and Certificates may be exchanged as provided in the Unit Agreement. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents
permitted by the Unit Agreement. No service charge shall be required for any such registration of transfer or exchange, but Washington Mutual and the Agent may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith. A Security shall be separable into its components, and Securities may be recreated as provided in the Unit Agreement;  provided, however,
this Certificate shall not represent more than 23,000,000 Securities. All such adjustments to the equivalent aggregate principal
amount of this Certificate shall be duly recorded by placing an appropriate notation on the Schedule attached hereto. 


    The
Holder of this Certificate, by its acceptance hereof, expressly withholds any consent to the assumption (i.e., affirmance) of the Warrant Agreement or the Warrants by Washington
Mutual or its trustee in the event that Washington Mutual becomes the subject of a case under the Bankruptcy Code. 


    The
Holder of this Certificate, by its acceptance hereof, expressly agrees to be bound by the terms and provisions of the Unit Agreement, the Warrant Agreement and the Declaration. 


    Subject
to certain exceptions, the provisions of the Unit Agreement may be amended with the consent of the Holders of a majority in number of the Securities. 



    Washington
Mutual, the Agent and its Affiliates and any agent of Washington Mutual or the Agent may treat the Person in whose name this Certificate is registered as the owner of the
Security evidenced hereby for the purpose of receiving payments of distributions payable quarterly on the Preferred Securities and for all other purposes whatsoever, whether or not any payments in
respect thereof be overdue and notwithstanding any notice to the contrary, and neither Washington Mutual, the Agent nor any such agent shall be affected by notice to the contrary. 


    The
Warrants shall not, prior to the exercise thereof, entitle the Holder to any of the rights of a holder of shares of Common Stock. 



    A
copy of the Unit Agreement, the Warrant Agreement, the Declaration, the Resale Registration Rights Agreement and all exhibits to each such agreement is available for inspection at
the offices of the Agent. 


    This
Security shall be governed by the laws of the State of New York, without regard to principles of conflicts of law. 


A–6






 
 
 

ABBREVIATIONS    
  


    The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according
to applicable laws or regulations: 



	TEN COM-	 	as tenants in common
	UNIF GIFT MIN ACT-	 	------------Custodian------------
	 	 	(cust)

            (minor)
	 	 	Under Uniform Gifts to Minors Act of

	TEN ENT-	 	as tenants by the entireties
	JT TEN-	 	as joint tenants with right of survivorship and not as tenants in common





    Additional
abbreviations may also be used though not in the above list. 


    FOR
VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto










    (Please
insert Social Security or Taxpayer I.D. or other Identifying Number of Assignee)









(Please
Print or Type Name and Address Including Postal Zip Code of Assignee) 


the
within Certificates and all rights thereunder, hereby irrevocably constituting and appointing attorney to transfer said Certificates on the books of [Name of Company] with
full power of substitution in the premises. 



	Dated:

      
	 	
 Signature
	 	 	NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Certificates in every particular, without alteration or enlargement or any change whatsoever.



Signature Guarantee:  




A–7





 
 
 

[TO BE ATTACHED TO GLOBAL CERTIFICATES]
  SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE    
  


    This Global Unit shall represent 20,000,000 Securities unless otherwise indicated below. 


The
following increases or decreases in this Global Unit have been made: 



	Date
 
	 	Amount of decrease in

Number of Securities

evidenced by the

Global Unit
	 	Amount of increase in

Number of Securities

evidenced by the

Global Unit
	 	Number of Securities

evidenced by this

Global Unit following

such

decrease or increase
	 	Signature of

authorized officer of

Agent

	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 




A–8





 
 
 

ANNEX A    
  


 
 

[FORM OF PREFERRED SECURITY CERTIFICATE]    
  


    This Preferred Security is a Global Preferred Security within the meaning of the Declaration hereinafter referred to and is registered in the name of The
Depository Trust Company, a New York corporation (the "Clearing Agency"), or a nominee of the Clearing Agency. This Preferred Security is exchangeable for Preferred Securities registered in the name
of a person other than the Clearing Agency or its nominee only in the limited circumstances described in the Declaration, and no transfer of this Preferred Security (other than a transfer of this
Preferred Security as a whole by the Clearing Agency to a nominee of the Clearing Agency or by a nominee of the Clearing Agency to the Clearing Agency or another nominee of the Clearing Agency) may be
registered except in limited circumstances. Unless this certificate is presented by an authorized representative of the Clearing Agency to Washington Mutual Capital Trust 2001 or its agent for
registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of the Clearing
Agency (and any payment hereon is made to Cede & Co. or to such other entity as is requested by an authorized representative of the Clearing Agency), and except as otherwise provided in the
Declaration, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.(1) 




	(1)
	Insert
in Global Preferred Securities only. 


 
 

CERTIFICATE EVIDENCING PREFERRED SECURITIES
  
    of
  
    WASHINGTON MUTUAL CAPITAL TRUST 2001
  
    5.375% Preferred Securities
  
    (stated liquidation amount $50 per Preferred Security)

  



	Certificate No.:                         	 	Number of Preferred Securities             
	 	 	CUSIP No.:                        



    Washington Mutual Capital Trust 2001, a statutory business trust created under the laws of the State of Delaware (the "Trust"), hereby certifies that
            (the "Holder") is the registered owner of            preferred securities of the Trust representing undivided
beneficial ownership interests in the assets of the Trust
designated the Preferred Securities (stated liquidation amount $50 per Preferred Security) (the "Preferred Securities"). The Preferred Securities are transferable on the books and records of the
Trust, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer as provided in the Declaration. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred Securities represented hereby are issued and shall in all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust, dated as of April 30, 2001 (as the same may be amended from time to time (the "Declaration"), among Washington Mutual, Inc., as Sponsor, Diane L.
Kelleher, Craig S. Davis and William A. Longbrake, as Administrative Trustees, The Bank of New York, as Property Trustee, and The Bank of New York (Delaware), as Delaware Trustee. Capitalized terms
used but not defined herein shall have the meaning given them in the Declaration. The Holder is entitled to the benefits of the Guarantee Agreement, dated as of April 30, 2001, between
Washington Mutual, Inc., as Guarantor and The Bank of New York, as Guarantee Trustee, in respect of the Preferred Securities. The Sponsor will provide a copy of the Declaration, the Guarantee
Agreement 


A–9





 


and the Indenture (including any supplemental indenture) to a Holder without charge upon written request to the Sponsor at its principal place of business. 


    Upon
receipt of this certificate, the Holder is bound by the Declaration and is entitled to the benefits thereunder. 



    By
acceptance, the Holder agrees to treat, for United States federal income tax purposes, the Debentures as indebtedness and the Preferred Securities as evidence of undivided indirect
beneficial ownership interests in the Debentures. 


    IN
WITNESS WHEREOF, the Trust has executed this certificate this      day of            , 2001. 



	 	 	 	 	WASHINGTON MUTUAL CAPITAL TRUST 2001
	

 	
 	

 	
 	

By:	
 	

 
	 	 	 	 	 	 	

	 	 	 	 	Name:	 	 
	 	 	 	 	Administrative Trustee
	

PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION	
 	

 	
 	

 
	

This is one of the Preferred Securities referred to in the within-mentioned Declaration.	
 	

 	
 	

 
	

Dated:            , 2001	
 	

 	
 	

 
	

THE BANK OF NEW YORK, as Property Trustee	
 	

 	
 	

 
	

By:	
 	

 	
 	

 	
 	

 
	 	 	
 Authorized Signatory

	 	 	 	 




A–10





 
 
 

ASSIGNMENT    
  



	FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred Security Certificate to:
	

 (Insert assignee's social security or tax identification number)
	

 (Insert address and zip code of assignee)
	

and irrevocably appoints                          agent to transfer this Preferred Security Certificate on the books and
records of the Trust. The agent may substitute another to act for him.



Date:                         


Signature:
                                    

(Sign exactly as your name appears on the Preferred Security Certificate) 


Signature
Guarantee*: 




	*
	Signature
must be guaranteed by an "eligible guarantor institution" that is a bank, stockbroker, savings and loan association or credit union meeting the requirements of the
Registrar, which requirements include membership or participation in the Securities Transfer Agents Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. 


A–11





 
 
 

SCHEDULE OF INCREASES OR DECREASES IN
  GLOBAL PREFERRED SECURITY2    
  



    This Global Preferred Security shall represent 0 Preferred Securities unless otherwise indicated below. 


    The
following increases or decreases in this Global Preferred Security have been made: 



	Date
 
	 	Amount of decrease in

Number of Preferred

Securities evidenced

by this Global

Preferred Security
	 	Amount of increase in

Number of Preferred

Securities evidenced

by this Global

Preferred Security
	 	Number of Preferred

Securities evidenced

by this

Global Preferred

Security following

such

decrease or increase
	 	Signature of

authorized officer of

Agent

	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 






	2.
	Insert
in Global Preferred Securities only. 


A–12





 
 
 

ANNEX B    
  


 
 

[FORM OF WARRANT CERTIFICATE]    
  


THE
WARRANTS REPRESENTED BY THIS CERTIFICATE WERE INITIALLY ISSUED AS PART OF AN ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF A WARRANT TO PURCHASE      SHARES (SUBJECT TO
ANTI-DILUTION ADJUSTMENTS) OF COMMON STOCK OF THE COMPANY AT THE EXERCISE PRICE SET FORTH IN THE BELOW-REFERENCED WARRANT AGREEMENT AND A PREFERRED SECURITY OF WASHINGTON MUTUAL CAPITAL
TRUST 2001 (THE "TRUST"). THE WARRANTS AND THE PREFERRED SECURITIES MAY BE SEPARATED AND TRANSFERRED SEPARATELY, AND RE-ATTACHED, IN ACCORDANCE WITH THE PROVISIONS OF THE UNIT AGREEMENT. 


[UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.] 


[TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE WARRANT AGREEMENT.] 


[THE
SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT, OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN "OFFSHORE
TRANSACTION" PURSUANT TO RULE 903 OR 904 OF REGULATION S; (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THE SECURITY
EVIDENCED HEREBY EXCEPT (A) TO WASHINGTON MUTUAL OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT (IF AVAILABLE),
(C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, IN COMPLIANCE WITH REGULATION
S UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER; AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY
EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO 


A–13





 


CLAUSE 2(E) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF SUCH SECURITY
(OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(E) ABOVE), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO
THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE). IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE 2(C) OR 2(D) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE (OR ANY
SUCCESSOR TRUSTEE, AS APPLICABLE) SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS WASHINGTON MUTUAL MAY REASONABLY REQUIRE, TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE SECURITY EVIDENCED HEREBY
PURSUANT TO CLAUSE 2(E) ABOVE OR THE EXPIRATION OF TWO YEARS FROM THE ORIGINAL ISSUANCE OF THE SECURITY EVIDENCED HEREBY. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.] 


[THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE PROVISIONS OF THE RESALE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL THE SECURITIES.] 


[PRIOR
TO EXPIRATION OF THE ONE-YEAR DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT")) ("REGULATION
S"), THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES (AS DEFINED IN REGULATION S) OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, A U.S. PERSON (AS
DEFINED IN REGULATION S), EXCEPT (A) TO A PERSON REASONABLY BELIEVED TO BE A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A ("RULE 144A") UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (B) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR
(C) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER.] 



	 
	 	 
	 	 
	 	 

	No. {  }	 	
	 	Certificate for Warrants	 	

	 	 	 	 	 	 	CUSIP No.




Certificate
for      Warrants 


CUSIP
No.:      


 
 

WARRANTS TO PURCHASE COMMON STOCK OF
  WASHINGTON MUTUAL, INC.    
  


    THIS CERTIFIES THAT            , or its registered assigns, is the registered holder of the number of Warrants set forth above (the "Warrants"). Each
Warrant entitles the holder thereof (the "Holder"), at its option and subject to the provisions contained herein and in the Warrant Agreement referred to below, to purchase from Washington
Mutual, Inc., a Washington corporation ("the 


A–14





 


Company"), .8054 shares (subject to certain adjustments as set forth in the Warrant Agreement) of common stock of the Company (the "Common Stock") at the Exercise Price. This Warrant Certificate shall
terminate and become void, and the related Warrants shall expire, as of 5:00 p.m., New York time, on the earlier of (i) May 3, 2041 or (ii) the date the Warrants are
redeemed by the Company pursuant to the terms of the Warrant Agreement, as described below (the "Expiration Date"), or upon the earlier exercise hereof as to all the shares of Common Stock subject
hereto. The number of shares issuable
upon exercise of the Warrants shall be subject to adjustment from time to time as set forth in the Warrant Agreement. 


    This
Warrant Certificate is issued under and in accordance with a Warrant Agreement dated as of April 30, 2001 (the "Warrant Agreement"), between the Company and The Bank of
New York, as warrant agent (the "Warrant Agent", which term includes any successor Warrant Agent under the Warrant Agreement), and is subject to the terms and provisions contained in the Warrant
Agreement, to all of which terms and provisions the Holder of this Warrant Certificate consents by acceptance hereof. The Warrant Agreement is hereby incorporated herein by reference and made a part
hereof. Reference is hereby made to the Warrant Agreement for a full statement of the respective rights, limitations of rights, duties and obligations of the Company, the Warrant Agent and the Holders
of the Warrants. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Warrant Agreement. A copy of the Warrant Agreement may be obtained for inspection by the
Holder hereof upon written request to the Warrant Agent at its address for notices specified in the Warrant Agreement. 


    Subject
to redemption as described below, the Holder of this Warrant Certificate shall have the right, prior to the Expiration Date, at such Holder's option, to exercise the related
Warrant and purchase the Exercise Amount (subject to certain adjustments set forth in the Warrant Agreement) of Common Stock at the Exercise Price, provided that the Exercise Conditions are met as of
such date. If the Warrant evidenced by this Warrant Certificate is not exercised at or before 5:00 p.m., New York time, on its Expiration Date, such Warrant shall become void, and all rights of
the Holder of this Warrant Certificate hereunder and under the Warrant Agreement shall cease. The Warrant or Warrants evidenced by this Warrant Certificate may be exercised by giving notice to the
Warrant Agent no later than 5:00 p.m., New York time, on the Business Day preceding the proposed date of exercise of such Warrants and completing the form of election to purchase set forth on
the reverse hereof, and delivering the same, together with this Warrant Certificate (if this Warrant Certificate shall then be held in definitive form), to the Warrant Agent no later than
5:00 p.m., New York time, on the date of such exercise, together with a Cash Payment (unless, in accordance with the Warrant Agreement, a Remarketing Payment is to be made). In no event may a
Holder satisfy its obligation to pay the Exercise Price by tendering Preferred Securities. 


    On
the date of exercise of the Warrant or Warrants evidenced by this Warrant Certificate, the Company shall issue, and the Warrant Agent shall deliver, to or upon the order of the
Holder hereof, the Exercise Amount of Common Stock to which such Holder is entitled, registered in such name or names as may be directed by such Holder. The date on which this Warrant Certificate and
payment are received by the Warrant Agent as aforesaid shall be deemed to be the date on which the related Warrant is exercised and the related Common Stock is issued. 



    Notwithstanding
anything to the contrary in this Warrant Certificate or in the Warrant Agreement, (i) no fractional shares of Common Stock shall be issued by the Company upon
the exercise of any Warrant, (ii) if more than one Warrant shall be exercised at the same time by the same Holder, the number of shares of Common Stock issuable in connection with such exercise
shall be computed on the basis of the aggregate Exercise Amount of the Warrants so exercised, and (iii) on the date a Holder exercises such Holder's Warrant, the Company shall pay such Holder
an amount in cash equal to the
then-current Market Price (multiplied by the related fraction) of Common Stock for such fractional shares, computed to the nearest whole cent. 


A–15





 


    If fewer than all of the Warrants evidenced by this Warrant Certificate are exercised, the Company shall execute, and an authorized officer of the Warrant Agent shall countersign and
deliver, a new Warrant Certificate evidencing the number of Warrants remaining unexercised. 


    The
"Exercise Conditions" require that, with respect to any Warrant on any date on which such Warrant is or is proposed to be exercised by the Holder thereof, such Warrant will not be
exercisable unless, at the time of exercise (i) in the case of a Holder who received Warrants in a transaction exempt from registration requirements under the Securities Act, 



    (x) the
sale of the shares upon exercise of the Warrants is exempt from the registration requirements of the Securities Act and such shares of Common Stock shall bear
the legend set forth in Section 2.02(f) of the Warrant Agreement and 


    (y) the
shares have been registered, qualified or are deemed to be exempt under the securities laws of the state of residence of the exercising holder of the Warrants; 




or
(ii) in the case of a Holder who received Warrants transferred pursuant to an effective shelf registration statement, 



    (x) a
shelf registration statement covering the issuance of the Common Stock upon exercise of the Warrant is then in effect; 


    (y) the
shares have been registered, qualified or are deemed to be exempt under the securities laws of the state of residence of the exercising holder of the Warrants;
and 


    (z) a
then current prospectus is delivered to exercising holders of the Warrants. 




    As
provided in the Warrant Agreement, the number of shares of Common Stock issuable upon the exercise of the Warrants is subject to an anti-dilution adjustment upon the
happening of certain events. The Warrant Agreement also provides for certain adjustments and/or distributions in the event of certain events relating to a merger or combination of the Company, and
similar events. 


    Subject
to satisfaction of the Exercise Conditions and certain other conditions, the Company may elect to cause a remarketing of the Preferred Securities and a contemporaneous
redemption of the Warrants on the Redemption Date, for cash, in an amount equal to the Warrant Value as of the Remarketing Date, in accordance with the Warrant Agreement and related agreements. 


    A
Holder (i) may elect to exercise a Warrant in lieu of Redemption, if (A) such Warrant is held pursuant to the Unit Agreement, and such Holder has opted out of
participating in the Remarketing, by notice given to the Warrant Agent and the Unit Agent; or (B) such Warrant is not held pursuant to the Unit Agreement, by notice given to the Warrant Agent,
in each case prior to 5:00 p.m., New York time, on the Business Day prior to the related Redemption Date; and (ii) as provided in the Unit Agreement, shall be deemed to have elected to
exercise such Warrant in lieu of Redemption, if such Warrant is held pursuant to the Unit Agreement and such Holder has not opted out of participating in the Remarketing. In the absence of an election
to exercise a Warrant in lieu of a Redemption, including a deemed election pursuant to clause (ii) of the preceding sentence, a Holder will be deemed to have elected to have its Warrants
redeemed on the Redemption Date. 


    If
a Holder elects or is deemed to have elected to exercise a Warrant pursuant to the preceding paragraph, then such Holder must tender the Exercise Price for such Warrant as a Cash
Payment, and must follow certain procedures set forth in the Warrant Agreement; provided, however, that if (i) such Warrant is, on the Remarketing Date, held pursuant to the Unit Agreement,
(ii) such Holder has not opted out of participating in the Remarketing, and (iii) a Successful Remarketing shall have occurred, then the Exercise Price of such Warrant will be deemed to
have been paid by a Remarketing Payment, and the Remarketing Agent will, in connection with such Remarketing Payment, apply the proceeds of 


A–16





 


the Remarketing of the related Preferred Security in accordance with the terms of the Remarketing Agreement and the Unit Agreement. 


    Any
Warrant so redeemed or exercised will, upon such redemption or exercise, cease to be outstanding. 


    If
a Redemption cannot occur because of an inability, following the Company's best efforts, to satisfy the Redemption Conditions, the Company will promptly notify the Warrant Agent
and each Holder (at its address specified in the Warrant Register) thereof. Such event will not constitute a default under the Warrant Agreement so long as the Company is not otherwise in violation
thereof; and the Company
may, under such circumstances, subsequently seek to remarket the Preferred Securities and contemporaneously redeem the Warrants. 


    The
Company will, contemporaneously with the giving of notice of Remarketing, furnish notice of Redemption to the Warrant Agent, which will, within two Business Days of receipt of
such notice, furnish notice thereof to the Holders of Definitive Warrants, and the Company will request, not later than four nor more than 20 business days prior to the Remarketing Date, that DTC
notify its Participants holding Warrants of the Remarketing. 


    The
Company may require payment of a sum sufficient to pay all taxes, assessments or other governmental charges in connection with the transfer or exchange of the Warrant Certificates
pursuant to the Warrant Agreement, but not for any exchange or original issuance (not involving a transfer) with respect to temporary Warrant Certificates, the exercise of the Warrants or the issuance
of the Common Stock. 


    This
Warrant Certificate may be exchanged at the office of the Warrant Agent by presenting this Warrant Certificate properly endorsed with a request to exchange this Warrant
Certificate for other Warrant Certificates evidencing an equal number of Warrants, in accordance with the Warrant Agreement. 



    All
shares of Common Stock issuable by the Company upon the exercise of the Warrants shall, upon such issue, be duly and validly issued and fully paid and non-assessable. 


    The
holder in whose name this Warrant Certificate is registered may be deemed and treated by the Company and the Warrant Agent as the absolute owner of this Warrant Certificate for
all purposes whatsoever and neither the Company nor the Warrant Agent shall be affected by notice to the contrary. 


    Neither
this Warrant Certificate, nor the Warrant evidenced hereby, entitles the Holder hereof to any of the rights of a shareholder of the Company. 



    This
Warrant Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Warrant Agent. 



	 
	 	 
	 	 

	 	 	WASHINGTON MUTUAL, INC.
	

 	
 	

By:	
 	

 
	 	 	 	 	

	 	 	Name:	 	 
	 	 	Title:	 	 
	

DATED:	
 	

 	
 	

 
	

Countersigned:	
 	

 	
 	

 



A–17





 

	

 THE BANK OF NEW YORK,

as Warrant Agent	
 	

 	
 	

 
	

By 
   Authorized Signatory	
 	

 	
 	

 




A–18





 
 
 

FORM OF ELECTION TO PURCHASE COMMON STOCK
  (to be executed only upon exercise of Warrants)
  
    WASHINGTON MUTUAL, INC.    
  



    The undersigned hereby irrevocably elects to exercise            Warrants at an Exercise Price of $      per Warrant to
acquire the
Exercise Amount (as determined pursuant to the Warrant Agreement) per Warrant of Common Stock of Washington Mutual, Inc. on the terms and conditions specified within this Warrant Certificate
and the Warrant Agreement therein referred to, surrenders this Warrant Certificate and all right, title and interest therein and directs that the shares of Common Stock deliverable upon such exercise
be registered or placed in the name and at the address specified below and delivered thereto. 



    The
signature below must correspond with the name as written upon the face of the within Warrant Certificate in every particular, without alteration or enlargement or any change
whatsoever, and must be guaranteed. 



	 
	 	 
	 	 

	Dated:	 	
	 	 
	

 	
 	

 (Signature of Holder)
	

 	
 	

 (Street Address)
	

 	
 	

 (City)  (State)              (Zip Code)
	

 	
 	

Signature Guaranteed by:
	

 	
 	

 {Signature must be guaranteed by an eligible guarantor institution (banks, stock brokers, savings and loan associations and credit unions) with membership in an approved guarantee medallion program pursuant
to Securities and Exchange Commission Rule 17Ad-5)





    Common
Stock to be issued to: 


    Please
insert social security or identifying number: 



	 
	 	 
	 	 

	Name:	 	
	 	 
	Street Address:	 	
	 	 
	City, State and Zip Code:	 	
	 	 






    Any
unexercised Warrants represented by the Warrant Certificate to be issued to: 



    Please
insert social security or identifying number: 



	 
	 	 
	 	 

	Name:	 	
	 	 
	Street Address:	 	
	 	 
	City, State and Zip Code:	 	
	 	 





A–19





 
 
 

[TO BE ATTACHED TO GLOBAL CERTIFICATES]
  SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE    
  



    This Global Unit shall represent 0 Warrants unless otherwise indicated below. 


    The
following increases or decreases in this Global Unit have been made: 



	Date
 
	 	Amount of decrease in

Number of Warrants

evidenced by the

Global Unit
	 	Amount of increase in

Number of Warrants

evidenced by the

Global Unit
	 	Number of Warrants

evidenced by this

Global Unit following

such

decrease or increase
	 	Signature of

authorized officer of

Agent

	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 




A–20






  



 
 

EXHIBIT B    
  


 
 

INSTRUCTION TO DISREGARD REMARKETING    
  


THE
BANK OF NEW YORK

101 Barclay Street

Floor 21 West

New York, New York 10286 


Attention:
Corporate Trust Administration 



	Re:	 	               Trust Preferred Income Equity Redeemable Securities (PIERS) Units ("Securities") of Washington Mutual, Inc. and Washington
Mutual Capital Trust 2001





    The
undersigned Holder hereby advises you that it has elected NOT to participate in the Remarketing set forth below with respect to the
corresponding number of Preferred Securities that are a component of Securities of which the undersigned is the beneficial owner: 



	Remarketing Settlement	 	 	 	 
	

Date:	
 	

	
 	

 
	

Number of Preferred

Securities NOT to

Remarket:	
 	

	
 	

 





    The
notification to the Remarketing Agent to be sent by you on the Business Day immediately preceding the above Remarketing Date shall NOT include the aggregate number of Preferred
Securities set forth above. Unless otherwise defined herein, terms defined in the Unit Agreement dated April 30, 2001 with Washington Mutual, Inc. and Washington Mutual Capital Trust
2001 are used 


B–1





 


herein as defined therein. This notice is being delivered pursuant to Section 5.1 of the Unit Agreement relating to the Securities. 



	Date:	 	 
	
	 	
 Signature
	

 	
 	

Signature Guarantee:

	

Please print name and address of Registered Holder:
	

 Name	
 	

 Social Security or other Taxpayer Identification Number, if any
	

Address	
 	

 
	

	
 	

 
	

	
 	

 
	

	
 	

 




B–2






  



 
 

EXHIBIT C    
  


 
 

NOTICE OF ELECTING REMARKETING HOLDER    
  


THE
BANK OF NEW YORK

101 Barclay Street

Floor 21 West

New York, New York 10286 


Attention:
Corporate Trust Administration 


LEHMAN BROTHERS INC.


[Address]



Attention:




	Re:
	                    
Trust Preferred Income Equity Redeemable Securities (PIERS) Units ("Securities") of Washington Mutual, Inc. and Washington
Mutual Capital Trust 2001 




    Reference
is made to Washington Mutual, Inc.'s notice of Redemption dated  •  , 20      notifying Holders of the
Securities of the redemption of the Warrants on  •  , 20      . This notice constitutes an election by the undersigned  NOT to redeem the Warrants
identified below. The undersigned hereby advises you of its election to exercise the following number of Warrants which
constitute component parts of Securities beneficially owned by the undersigned: 



	Number of Warrants to

Be Exercised:	 	
	 	 




C–1





 

    Unless
otherwise defined herein, terms defined in the Unit Agreement dated            , 2001 with Washington Mutual, Inc. and Washington Mutual Capital Trust II are used
herein as defined therein. This notice is being delivered pursuant to Section 5.1 of the Unit Agreement. 



	Date:	
	 	
 Signature
	

 	

 	
 	

Signature Guarantee:	


	

Please print name and address of Registered Holder:
	

 Name	
 	

 Social Security or other Taxpayer Identification Number, if any
	

Address	

 	
 	

 	

 
	

	
 	

 	

 
	

	
 	

 	

 
	

	
 	

 	

 




C–2






  



 
 

EXHIBIT D    
  


 
 

NOTICE OF CHANGE OF CONTROL REDEMPTION ELECTION    
  


THE
BANK OF NEW YORK

101 Barclay Street

Floor 21 West

New York, New York 10286 


Attention:
Corporate Trust Administration 



	 	

Re:	
 	

               Trust Preferred Income Equity Redeemable Securities (PIERS) Units ("Securities") of Washington Mutual, Inc. and Washington Mutual Capital Trust
2001





    Reference
is made to Washington Mutual, Inc.'s notice of a Change of Control dated •, 20  . The undersigned hereby advises you of its election to
have the following number of Warrants which constitute component parts of Securities beneficially owned by the undersigned redeemed as aforesaid: 



	

Number of Warrants to Be Redeemed:	
 	

 .





    Unless
otherwise defined herein, terms defined in the Unit Agreement dated            , 2001 with Washington Mutual, Inc. and Washington Mutual Capital Trust 2001 are
used herein as defined therein. This notice is being delivered pursuant to Section 5.3 of the Unit Agreement. 



	Date:	 	 
	
	 	
 Signature
	

 	
 	

Signature Guarantee:

	

Please print name and address of Registered Holder:
	

 Name	
 	

 Social Security or other Taxpayer Identification Number, if any
	

Address	
 	

 
	

	
 	

 
	

	
 	

 
	

	
 	

 




D–1






  



 
 

EXHIBIT E    
  


 
 

NOTICE OF CHANGE OF CONTROL EXCHANGE AND REPURCHASE    
  


THE
BANK OF NEW YORK

101 Barclay Street

Floor 21 West

New York, New York 10286



Attention:
Corporate Trust Administration 



	 	Re:	 	               Trust Preferred Income Equity Redeemable Securities (PIERS) Units ("Securities") of Washington Mutual, Inc. and Washington
Mutual Capital Trust 2001







    Reference
is made to Washington Mutual, Inc.'s notice of a Change of Control dated •, 20  . The undersigned Holder hereby advises you that it has
elected (i) to have the number of Preferred Securities set forth below exchanged for an equivalent Accreted Value of Debentures and (ii) to have such Debentures repurchased by Washington
Mutual, Inc., or its successor, as provided in the Unit Agreement, the Declaration and the Indenture: 



	
 Number of Preferred Securities to Exchange:	
 	


	

Number of Debentures to Repurchase:	
 	








    Unless
otherwise defined herein, terms defined in the Unit Agreement dated April  , 2001 with Washington Mutual, Inc. and Washington Mutual Capital Trust 2001
(the "Unit Agreement") are used herein as defined therein. This notice is being delivered pursuant to Section 5.3 of the Unit Agreement. 



	
 Date:	
 	

 
	
	 	
 Signature
	

 	
 	

Signature Guarantee:

	

Please print name and address of Registered Holder:
	

 Name	
 	

 Social Security or other Taxpayer Identification Number, if any
	

Address	
 	

 
	

	
 	

 
	

	
 	

 
	

	
 	

 




C–1






  



 
 

EXHIBIT F    
    


  
 

    FORM OF TRANSFER CERTIFICATE (RULE 144A TO REGULATION S)    
  


The
Bank of New York

101 Barclay Street, Floor 21 West

New York, New York 10286

Attn.: Corporate Trust Administration 


	Re:
	                    
Trust Preferred Income Equity Redeemable Securities (PIERS) Units ("Securities") of Washington Mutual, Inc. and Washington
Mutual Capital Trust 2001 



    Reference
is hereby made to the Unit Agreement dated as of            , 2001 (the "Agreement"), among Washington Mutual, Inc., Washington Mutual Capital Trust 2001, The
Bank of New York, as warrant agent, The Bank of New York, as Property Trustee and The Bank of New York, as Agent. Capitalized terms used but not defined herein will have the meanings given to them in
the Agreement. 


    This
letter relates to            amount of Units which are held in the form of [a beneficial interest in the Rule 144A Global Unit with the Depositary in
the name of the undersigned] [a certificated Unit bearing the Securities Act Legend]. 


    The
undersigned has requested a transfer of such [beneficial interest] [certificated Unit] to a Person who will take delivery thereof
in the form of [a beneficial interest in the Regulation S Global Unit (ISIN No.      ) to be held with [Euroclear]
[Clearstream] (Common Code      ) through the Depositary] [a certificated Unit not bearing the Securities Act Legend]. 


    In
connection with such transfer, the undersigned does hereby certify that such transfer will be effected in accordance with the transfer restrictions set forth in the Agreement and
the Units and pursuant to and in accordance with Rule 903 or 904 of Regulation S under the U.S. Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, the
undersigned further certifies that: 



    (a) the
offer of the Units was not made to a U.S. Person (as defined under Regulation S); 


    (b) [at
the time the buy order was originated, the transferee was outside the United States or the undersigned and any Person acting on behalf of the
undersigned reasonably believed that the transferee was outside the United States] [the transaction was executed in, on or through the facilities of a designated offshore
securities market and neither the undersigned nor any Person acting on behalf of the undersigned knows that the transaction was prearranged with a buyer in the United States]; 


    (c) no
directed selling efforts have been made in contravention of the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable; 


    (d) the
undersigned is not an Issuer or a distributor, an affiliate of either an Issuer or a distributor, or a Person acting on behalf of any of the foregoing; and 


    (e) the
transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act. 



F–1





 

    This
certificate and the statements contained herein are made for the benefit of the Issuers and the Agent on behalf of the Unit holders. 



	 	 	 	 	[NAME OF TRANSFEROR]
	

 	
 	

 	
 	

By:	
 	


	 	 	 	 	 	 	Name:

Title:
	

Dated:	
 	

                            ,
              	
 	

 	
 	

 





cc: Washington
Mutual, Inc. 


F–2






  



 
 

EXHIBIT G    
  


 
 

FORM OF TRANSFER CERTIFICATE (REGULATION S TO RULE 144A)    
  


The
Bank of New York

101 Barclay Street, Floor 21 West

New York, New York 10286

Attn.: Corporate Trust Administration 


	Re:
	                    
Trust Preferred Income Equity Redeemable Securities (PIERS) Units ("Securities") of Washington Mutual, Inc. and Washington
Mutual Capital Trust 2001 



    Reference
is hereby made to the Unit Agreement dated as of            , 2001 (the "Agreement"), among Washington Mutual, Inc., Washington Mutual Capital Trust 2001, The
Bank of New York, as warrant agent, The Bank of New York, as Property Trustee and The Bank of New York, as Agent. Capitalized terms used but not defined herein will have the meanings given to them in
the Agreement. 



    This
letter relates to      of Units which are held in the form of a beneficial interest in the Regulation S Global Unit (ISIN No.      ) with the
Depositary in the name of the undersigned. 


    The
undersigned has requested a transfer of such beneficial interest in the Units to a Person who will take delivery thereof in the form of a beneficial interest in the
Rule 144A Global Unit (CUSIP No.      ). 


    In
connection with such transfer, the undersigned does hereby confirm that such transfer will be effected in accordance with the transfer restrictions set forth in the Indenture and
the Units, and accordingly, the undersigned represents that such transfer is being made to a Person who the transferor reasonably believes is a "qualified institutional buyer" within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction. 


    This
certificate and the statements contained herein are made for the benefit of the Issuers and the Agent on behalf of the Unit holders. 



	 	 	 	[NAME OF TRANSFEROR]
	

 	

 	
 	

By:	
 	


	 	 	 	 	 	Name:

Title:
	

Dated:	

                            ,
              	
 	

 	
 	

 





cc: Washington
Mutual, Inc. 


G–1






  



 
 

EXHIBIT H    
  


 
 

FORM OF REQUEST FOR REMOVAL OF SECURITIES ACT LEGEND    
  


The
Bank of New York

101 Barclay Street, Floor 21 West

New York, New York 10286

Attn.: Corporate Trust Administration 


	Re:
	                    
Trust Preferred Income Equity Redeemable Securities (PIERS) Units ("Securities") of Washington Mutual, Inc. and Washington
Mutual Capital Trust 2001 



    Reference
is hereby made to the Unit Agreement dated as of            , 2001 (the "Agreement"), among Washington Mutual, Inc., Washington Mutual Capital Trust 2001, The
Bank of New York, as warrant agent, The Bank of New York, as Property Trustee and The Bank of New York, as Agent. Capitalized terms used but not defined herein will have the meanings given to them in
the Agreement. 


    This
letter relates to            amount of Securities which are held in the form of [a beneficial interest in the Rule 144A Global Unit (CUSIP No.
      ) with the Depositary] [[a] certificated Security(ies)] in the name of the undersigned]]. 


    The
undersigned requests that the Securities Act Legend on such Security (ies) be removed. 


    The
undersigned certifies that neither the Securities Act Legend nor the restrictions on transfer set forth therein are required to ensure that transfers of the subject Security(ies)
will not violate the registration requirements of the Securities Act. 


    This
certificate and the statements contained herein are made for the benefit of the Issuers and the Agent Trustee on behalf of the Unit holders. 



	 	 	 	 	[NAME]
	

 	
 	

 	
 	

By:	
 	


	 	 	 	 	 	 	Name:

Title:
	

Dated:	
 	

                                    ,
              	
 	

 	
 	

 





cc:
Washington Mutual, Inc. 


H–1





 
 
 

EXHIBIT I    
  


 
 

Form of Certificate for Exchange or Transfer from
  Restricted Regulation S Global Unit to Permanent Regulation S Global Unit    
  


[Euroclear
Bank, S.A./N.V., as operator of the Euroclear System] 


[Clearstream
Banking, S.A.] 


    Re:
Washington Mutual, Inc. and Washington Mutual Capital Trust 2001 $1,000,000,000 Trust Preferred Income Equity Redeemable Securities (PIERS Units) 


CUSIP No.      ] [ISIN:      ]



    Reference
is made to the PIERS Units issued by Washington Mutual, Inc. and Washington Mutual Capital Trust 2001 (the "Issuers") pursuant to a Unit Agreement dated as of
            , 2001 (the "Agreement"), among Washington Mutual, Inc., Washington Mutual Capital Trust 2001, The Bank of New York, as warrant agent, The Bank of New York, as Property
Trustee and The Bank of New York, as Agent. Capitalized terms used but not defined herein will have the meanings given to them in the Agreement. 


    [For
purposes of acquiring a beneficial interest in the Permanent Regulation S Global Unit upon the expiration of the Restricted
Period,][For purposes of receiving payments under the Restricted Regulation S Global Note](3), the undersigned holder of a beneficial interest in the
Restricted Regulation S Global Note issued under the Agreement certifies that it is not a U.S. Person as defined by Regulation S under the United States Securities Act of 1933, as
amended. 


	(3)
	Select,
as applicable. 



    We
undertake to advise you promptly by telex or other electronic transmission on or prior to the date on which you intend to submit your corresponding certification relating to the
securities held by you if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certificate applies as of such date. 


    We
understand that this certificate is required in connection with certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate to any interested party in such proceeding. This
certificate and the statements contained herein are made for your benefit and benefit of the Agent Trustee, the Initial Purchaser and the Issuers. 



	 	 	Dated:	 	            ,      

	

 	
 	

By:	
 	

 as, or as agent for, the holder of a beneficial interest in the securities to which this certificate relates.




H–2









QuickLinks


Exhibit 4.4

TABLE OF CONTENTS


RECITALS

W I T N E S S E T H

ARTICLE I Definitions and Other Provisions of General Applications

ARTICLE II Certificate Forms


ARTICLE III The Securities

ARTICLE IV The Preferred Securities

ARTICLE V Remarketing and Redemption; Early Exercise

ARTICLE VI Remedies



ARTICLE VII The Agent

ARTICLE VIII Supplemental Agreements

ARTICLE IX Consolidation, Merger, Sale or Conveyance

ARTICLE X Covenants

ARTICLE XI Representations of the Agent

ARTICLE XII The Warrant Agent and The Property Trustee


EXHIBIT A

FACE OF CERTIFICATE

WASHINGTON MUTUAL, INC. WASHINGTON MUTUAL CAPITAL TRUST 2001 Unit Security

AGENT'S CERTIFICATE OF AUTHENTICATION

(FORM OF REVERSE OF CERTIFICATE)

ABBREVIATIONS

[TO BE ATTACHED TO GLOBAL CERTIFICATES] SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE

ANNEX A

[FORM OF PREFERRED SECURITY CERTIFICATE]

CERTIFICATE EVIDENCING PREFERRED SECURITIES of WASHINGTON MUTUAL CAPITAL TRUST 2001 5.375% Preferred Securities (stated liquidation amount $50 per Preferred Security)

ASSIGNMENT

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL PREFERRED SECURITY2

ANNEX B

[FORM OF WARRANT CERTIFICATE]

WARRANTS TO PURCHASE COMMON STOCK OF WASHINGTON MUTUAL, INC.

FORM OF ELECTION TO PURCHASE COMMON STOCK (to be executed only upon exercise of Warrants) WASHINGTON MUTUAL, INC.

[TO BE ATTACHED TO GLOBAL CERTIFICATES] SCHEDULE OF INCREASES OR DECREASES IN GLOBAL CERTIFICATE


EXHIBIT B

INSTRUCTION TO DISREGARD REMARKETING


EXHIBIT C

NOTICE OF ELECTING REMARKETING HOLDER


EXHIBIT D

NOTICE OF CHANGE OF CONTROL REDEMPTION ELECTION


EXHIBIT E

NOTICE OF CHANGE OF CONTROL EXCHANGE AND REPURCHASE


EXHIBIT F

FORM OF TRANSFER CERTIFICATE (RULE 144A TO REGULATION S)


EXHIBIT G

FORM OF TRANSFER CERTIFICATE (REGULATION S TO RULE 144A)


EXHIBIT H

FORM OF REQUEST FOR REMOVAL OF SECURITIES ACT LEGEND

EXHIBIT I

Form of Certificate for Exchange or Transfer from Restricted Regulation S Global Unit to Permanent Regulation S Global Unit