WASHINGTON MUTUAL, INC.
SERIES H PREFERRED STOCK
[date]
[Remarketing Agent Name & Address]
Ladies and Gentlemen:
Washington Mutual, Inc., a Washington corporation (the "Company"), is
issuing today 2,000,000 shares of its Series H Preferred Stock, liquidation
preference of $50 per share (the "Preferred Stock"), pursuant to a
Certificate of Designations filed with the Secretary of State of the State of
Washington (the "Certificate of Designations"). Capitalized terms used but
not defined in this (this "Agreement") shall have the
meanings set forth in the Certificate of Designations.
The Remarketing (as defined below) of the Preferred Stock is provided
for in the Certificate of Designations. As used in this Agreement, the term
"Remarketed Preferred Stock" means the Preferred Stock subject to the
Remarketing on the fifth Business Day prior to the Purchase Contract
Settlement Date; the term "Remarketing Procedures" means the procedures in
connection with the Remarketing of the Preferred Stock described in the
Certificate of Designations; and the term "Remarketing" means the remarketing
of the Remarketed Preferred Stock pursuant to the Remarketing Procedures.
Section 1. APPOINTMENT AND OBLIGATIONS OF THE REMARKETING AGENT.
(a) The Company hereby appoints [remarketing agent], and
[remarketing agent] hereby accepts appointment, as exclusive remarketing
agent (the "Remarketing Agent") for the purpose of (i) Remarketing the
Remarketed Preferred Stock on behalf of the holders thereof and (ii)
performing such other duties as are assigned to the Remarketing Agent in the
Remarketing Procedures, all in accordance with and pursuant to the
Remarketing Procedures.
(b) The Remarketing Agent agrees (i) to use commercially reasonable
efforts to remarket the Remarketed Preferred Stock tendered or deemed
tendered to the Remarketing Agent in the Remarketing, (ii) to notify the
Company promptly of the Reset Rate and (iii) to carry out such other duties
as are assigned to the Remarketing Agent in the Remarketing Procedures, all
in accordance with the provisions of the Remarketing Procedures.
(c) On the third Business Day immediately preceding the Purchase
Contract Settlement Date (the "Remarketing Date"), the Remarketing Agent
shall use commercially reasonable efforts to remarket, at a price equal to
100.50% of the aggregate liquidation preference thereof, the Remarketed
Preferred Stock tendered or deemed tendered for purchase.
(d) If, as a result of the efforts described in Section 1(b), the
Remarketing Agent determines that it will be able to remarket all Remarketed
Securities tendered or deemed tendered for purchase at a price of 100.50% of
the aggregate liquidation preference of such Remarketed Preferred Stock prior
to 4:00 p.m., New York City time, on the Remarketing Date, the Remarketing
Agent shall determine the Reset Rate, which shall be the rate per annum
(rounded to the nearest one-thousandth (0.001) of one percent per annum) that
the Remarketing Agent determines, in its sole judgment, to be the lowest rate
per annum that will enable it to remarket all Remarketed Preferred Stock
tendered or deemed tendered for Remarketing.
(e) If none of the holders of Remarketed Preferred Stock elects to
have Remarketed Preferred Stock Remarketed in the Remarketing, the
Remarketing Agent shall, in its sole discretion, determine the rate that
would have been established had a Remarketing of all the Preferred Stock been
held on the Remarketing Date, and such rate shall be the Reset Rate.
(f) If, by 4:00 p.m., New York City time, on the Remarketing Date,
the Remarketing Agent is unable to remarket all Remarketed Preferred Stock
tendered or deemed tendered for purchase, a failed Remarketing (the "Failed
Remarketing") shall be deemed to have occurred, and the Remarketing Agent
shall so advise by telephone the Depositary and the Company. If a Failed
Remarketing occurs, the Reset Rate will be equal to (i) the "AA" Composite
Commercial Paper Rate on the Remarketing Date, plus (ii) a spread as set
forth in the Certificate of Designations.
(g) By approximately 4:30 p.m., New York City time, on the
Remarketing Date, provided that there has not been a Failed Remarketing, the
Remarketing Agent shall advise, by telephone (i) the Depositary and the
Company of the Reset Rate determined in the Remarketing and the number of
shares of Remarketed Preferred Stock sold in the Remarketing, (ii) each
purchaser (or the Depositary Participant thereof) of the Reset Rate and the
number of shares of Remarketed Preferred Stock such purchaser is to purchase
and (iii) each purchaser to give instructions to its Depositary Participant
to pay the purchase price on the Purchase Contract Settlement Date in same
day funds against delivery of the shares of Remarketed Preferred Stock
purchased through the facilities of the Depositary.
(h) The Remarketing Agent shall remit (i) to the Collateral Agent
proceeds of the Remarketed Preferred Stock subject to the Pledge Agreement in
an amount equal to 100% of the aggregate liquidation preference of such
Remarketed Preferred Stock and (ii) to the Depositary Participant of the
seller of Remarketed Preferred Stock not subject to the Pledge Agreement
proceeds of such Remarketed Preferred Stock in an amount equal to 100% of the
aggregate liquidation preference of such Remarketed Preferred Stock.
2 REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The Company
hereby represents and warrants to the Remarketing Agent (i) on and as of the
date hereof, (ii) on and as of the date the Prospectus or other Remarketing
Materials (each, as defined in Section 2(a) below) which are first
distributed in connection with the Remarketing (the "Commencement Date"),
(iii) on and as of the Remarketing Date and (iv) on and as of the Purchase
Contract Settlement Date that:
(a) Registration statement on Form S-4 (File No. 333-47308) and an
amendment or amendments thereto with respect to the initial offering of the
Preferred Stock have (i) been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Securities
Act"), and the rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder, (ii) been
filed with the Commission under the Securities Act and (iii) become effective
under the Securities Act; and a registration statement or registration
statements on Form S-4, if required to be filed in connection with the
Remarketing, may also be prepared by the Company in conformity with the
requirements of the Securities Act and the Rules and Regulations and filed
with the Commission under the Securities the amendment or amendments to such
registration statements have been delivered or made available by the Company
to the Remarketing Agent. As used in this Agreement, "Effective Time" means
the date and time as of which the last of such registration statements that
have become effective or may be declared effective by the Commission;
"Effective Date" means the date of the Effective Time of such last
registration statement; "Preliminary Prospectus" means each prospectus
included in such last registration statement, or amendment thereto, before it
became effective under the Securities Act and any prospectus filed by the
Company with your consent pursuant to Rule 424(a) of the Rules and
Regulations; "Registration Statement" means such last
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registration statement, as amended at its Effective Time, including documents
incorporated by reference therein at such time and, if applicable, all
information contained in the final prospectus filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations, including any
information deemed to be part of such Registration Statement as of the
Effective Time pursuant to paragraph (b) of Rule 430A of the Rules and
Regulations; and "Prospectus" means such final prospectus, as first filed
pursuant to Rule 424(b) of the Rules and Regulations. Reference made herein
to any Preliminary Prospectus, the Prospectus or any other information
furnished by the Company to the Remarketing Agent for distribution to
investors in connection with the Remarketing (the "Remarketing Materials")
shall be deemed to refer to and include any documents incorporated by
reference therein as of the date of such Preliminary Prospectus or the
Prospectus, as the case may be, or, in the case of Remarketing Materials,
referred to as incorporated by reference therein, and any reference to any
amendment or supplement to any Preliminary Prospectus, the Prospectus or the
Remarketing Materials shall be deemed to refer to and include any document
filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), after the date of such Preliminary Prospectus or the Prospectus
incorporated by reference therein or, if so incorporated, the Remarketing
Materials, as the case may be; and any reference to any amendment to the
Registration Statement shall be deemed to include any annual report of the
Company filed with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act after the Effective Time that is incorporated by reference in
the Registration Statement.
(b) The Registration Statement conforms (and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus, when they become effective or are filed with the Commission, as
the case may be, will conform) in all respects to the requirements of the
Securities Act and the Rules and Regulations, and the Registration Statement,
the Prospectus and the Remarketing Materials do not and will not, as of the
Effective Date (as to the Registration Statement and any amendment thereto),
as of the applicable filing date (as to the Prospectus and any amendment or
supplement thereto) and as of the Commencement Date, Remarketing Date and
Purchase Contract Settlement Date (as to any Remarketing Materials) contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided that no representation and warranty is made as to
information contained in or omitted from the Registration Statement, the
Prospectus or the Remarketing Materials in reliance upon and in conformity
with written information furnished to the Company by the Remarketing Agent
specifically for inclusion therein; and the Commission has not issued an
order preventing or suspending the use of the Registration Statement, any
Preliminary Prospectus, the Prospectus or the Remarketing Materials.
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained any untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus, when such documents become effective or are filed with
Commission, as the case may be, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading.
(d) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus or in any
Remarketing Materials, and has been duly qualified as a foreign corporation
for the transaction of
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business and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties, or conducts any business, so as to
require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; and each subsidiary (as defined in Section 14 hereof) of the
Company has been duly incorporated and is validly existing as a corporation
in good standing under the laws of its jurisdiction of incorporation.
(e) Washington Mutual Bank, FA (the "Bank") has been duly organized
and is validly existing as a federally chartered savings bank in good
standing under the laws of the United States, and has power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus. Each subsidiary of the Bank has been duly
organized and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation and has the power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectus.
(f) The Company has an authorized capitalization as set forth in
the Prospectus and in any Remarketing Materials; all of the issued shares of
capital stock of the Company and each wholly-owned subsidiary of the Company
(including, without limitation, the Bank) have been duly and validly
authorized and issued and are fully paid and non-assessable; and all of the
issued shares of capital stock of each subsidiary of the Company, including
without limitation the Bank, except as set forth in the Prospectus, are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(g) The Bank constitutes the only "significant subsidiary" (as such
term is defined in Rule 1-02 of Regulation S-X) of the Company (a
"Significant Subsidiary").
(h) The Corporate PIES have been duly authorized by the Company,
and when duly executed by the Company (assuming due execution by the Purchase
Contract Agent as attorney-in-fact for the holders thereof and due
authentication by the Purchase Contract Agent) and delivered by the Company
and, upon payment therefor as set forth herein, will be duly and validly
issued and outstanding, and will constitute valid and binding obligations of
the Company entitled to the benefits of the Purchase Contract Agreement and
enforceable against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles, regardless of
whether enforcement is considered in a proceeding in equity or at law (the
"Bankruptcy Exceptions"), and an implied covenant of good faith and fair
dealing.
(i) The shares of Preferred Stock and Remarketed Preferred Stock
have been duly authorized by the Company and, when issued and delivered
against payment therefor as provided herein, will be duly and validly issued,
fully paid and non-assessable.
(j) This Agreement has been duly authorized, executed and delivered
by the Company.
(k) The Purchase Contract Agreement has been duly authorized by the
Company and, when duly executed by the proper officers of the Company
(assuming due execution and delivery by the Purchase Contract Agent) and
delivered by the Company, will constitute a valid and binding agreement of
the Company enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by the Bankruptcy Exceptions
and an implied covenant of good faith and fair dealing.
(l) The Pledge Agreement has been duly authorized by the Company
and, when duly
4
executed by the proper officers of the Company (assuming due execution and
delivery by the Purchase Contract Agent, the Securities Intermediary and the
Collateral Agent) and delivered by the Company, will constitute a valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be limited
by the Bankruptcy Exceptions and an implied covenant of good faith and fair
dealing.
(m) The Remarketed Preferred Stock, the Certificate of Designations
and the , when the Remarketed Preferred Stock is
delivered pursuant to this Agreement, will conform to the descriptions
thereof contained in the Prospectus and in any Remarketing Materials.
(n) The execution, delivery and performance of this Agreement and
the Certificate of Designations by the Company, the consummation by the
Company of the transactions contemplated hereby and thereby and the issuance
and delivery of the Preferred Stock and the Remarketed Preferred Stock
(collectively, the "Transactions") did not and will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the properties or assets of the Company or any of
its subsidiaries is subject, nor will such actions result in any violation of
the provisions of the charter or by-laws of the Company or any of its
subsidiaries or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their respective properties or assets; and except
for such consents, approvals, authorizations, registrations or qualifications
as may be required under the Securities Act, the Exchange Act and applicable
state securities laws in connection with the initial distribution of the
Preferred Stock and the Remarketed Preferred Stock or the Remarketing, no
consent, approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body is required for the
Transactions.
(o) There are no contracts, agreements or understandings between
(i) the Company and (ii) any person granting such person the right to require
the Company to file a registration statement under the Securities Act with
respect to any securities of the Company owned or to be owned by such person
or to require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the Company
under the Securities Act.
(p) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus or in any Remarketing Materials,
any loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, which could,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries taken as a whole or upon the ability of the Company to perform
its obligations under this Agreement (each, a "Material Adverse Effect"),
otherwise than as set forth or contemplated in the Prospectus and in any
Remarketing Materials; and, since such date, there has not been any material
change in the consolidated share capital or long-term debt of the Company and
its subsidiaries or the consolidated share capital or long-term debt of any
Significant Subsidiary or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus and in any Remarketing Materials.
(q) The financial statements filed as part of the Registration
Statement or incorporated by
5
reference in the Prospectus or as presented in any Remarketing Materials
present fairly the financial condition and results of operations of the
entities purported to be shown thereby, at the dates and for the periods
indicated, and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved; and the supporting schedules included or incorporated by reference
in the Prospectus or in any Remarketing Materials present fairly the
information required to be stated therein.
(r) Deloitte & Touche LLP and KPMG LLP, who have certified certain
financial statements of the Company, whose reports appear in the Prospectus
or are incorporated by reference therein or in any Remarketing Materials and
who have delivered the letter referred to in Section 5(g) hereof, are each
independent public accountants as required by the Securities Act and the
Rules and Regulations.
(s) The Company and each Significant Subsidiary has good and
marketable title in fee simple to such of its fixed assets as are real
property and good and marketable title to its other assets reflected in the
most recent consolidated balance sheet incorporated by reference in the
Prospectus or in any Remarketing Materials, except properties and assets that
are leased or that are sold or otherwise disposed of in the ordinary course
of business after the date of said balance sheet, subject to no mortgages,
liens, charges or encumbrances of any kind whatsoever (collectively, the
"Liens").
(t) Other than as set forth or incorporated by reference in the
Prospectus, there are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or to which any property or
asset of the Company or any of its subsidiaries is the subject which could
reasonably be expected individually or in the aggregate to have a Material
Adverse Effect; and to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others. Neither the Company nor any of its subsidiaries is a
party to any written agreement or memorandum of understanding with, or
commitment letter or similar undertaking to, or subject to any order or
directive issued by, or a recipient of any extraordinary supervisory letter
from, or has adopted any board resolutions at the request of, any federal or
state government agency or authority with responsibility for the supervision
or regulation of depository institutions or their holding companies or the
insurance of deposits, which in any such case materially restricts the
conduct of its business or in any manner relates to its capital adequacy, its
credit policies or its management, nor has the Company or any of its
subsidiaries been advised by any such regulatory authority that it is
contemplating issuing or requesting any such order, decree, written
agreement, memorandum of understanding, extraordinary supervisory letter,
commitment letter or similar undertakings or board resolutions.
(u) The conditions for use of Form S-4, as set forth in the General
Instructions thereto, have been satisfied.
(v) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the Registration
Statement or incorporated therein by reference as permitted by the Rules and
Regulations.
(w) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, including, without limitation, the OTS and the FDIC, is
necessary or required for the due authorization, execution and delivery by
the Company of this Agreement or for the performance by the Company of the
Transactions, except such as have been already obtained or will have been
obtained or made prior to the date hereof or as may be required under the
Securities Act or the Rules and Regulations or state securities laws.
6
(x) None of the Company nor any Significant Subsidiary has any
material contingent liability which is not disclosed in the Prospectus.
(y) None of the Company nor any Significant Subsidiary (i) is in
violation of its charter or by-laws or similar constitutive documents, (ii)
is in default in any respect, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in any
material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is bound or to
which any of its properties or assets is subject, except where such defaults,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect or (iii) is in violation in any material respect of
any law, ordinance, governmental rule, regulation or court decree to which it
or its properties or assets may be subject or has failed to obtain any
material license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its properties or
assets or to the conduct of its business, except where such violations or
failures, individually or in the aggregate, could not reasonably be expected
to have a Material Adverse Effect.
(z) Neither the Company nor any subsidiary of the Company is an
"investment company" within the meaning of such term under the Investment
Company Act of 1940, as amended (the "1940 Act"), and the rules and
regulations of the Commission thereunder.
(aa) Each of the Company and each Significant Subsidiary has
statutory authority, franchises and consents free from burdensome
restrictions and adequate for the conduct of the business in which it is
engaged.
(bb) In the event the Company shall become either directly or
indirectly a bank holding company for purposes of the Bank Holding Company
Act of 1956, as amended (the "BHC Act"), and the rules and regulations of the
Board of Governors of the Federal Reserve System thereunder (the "BHC
Rules"), the current activities of the Company and its subsidiaries (as
defined in the BHC Rules) would be activities permissible for a bank holding
company under the BHC Act and the BHC Rules.
(cc) The Prospectus accurately describes the existing limitations
on the payment of dividends by Bank United on its shares of common stock held
by the Company.
3. FEES AND EXPENSES.
(a) For the performance of its services as Remarketing Agent
hereunder, the Remarketing Agent shall retain on the Purchase Contract
Settlement Date [____%] of the amount of the proceeds received in the
Remarketing.
(b) The Company agrees to pay (i) the costs incident to the
preparation and printing of the Registration Statement, Prospectus and any
Remarketing Materials and any amendments or supplements thereto; (ii) the
costs of distributing the Registration Statement, Prospectus and any
Remarketing Materials and any amendments or supplements thereto; (iii) the
fees and expenses of qualifying the Remarketed Securities under the
securities laws of the several jurisdictions as provided in Section 4(h) and
of preparing, printing and distributing a Blue Sky Memorandum (including
related fees and expenses of counsel to the Remarketing Agent); and (iv) all
other costs and expenses incident to the performance of the obligations of
the Company hereunder.
4. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees to use its
reasonable best efforts:
7
(a) To prepare any registration statement or prospectus, if
required, in connection with the Remarketing, in a form approved by the
Remarketing Agent and to file any such prospectus pursuant to the Securities
Act within the period required by the Rules and Regulations; to advise the
Remarketing Agent, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed and to furnish the Remarketing Agent with copies thereof; to file
promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Remarketed Securities; to advise
the Remarketing Agent, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of the Prospectus, of the suspension of the qualification
of any shares of the Remarketed Preferred Stock for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose or of any request by the Commission for the amending or supplementing
of the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any
order preventing or suspending the use of any Prospectus or suspending any
such qualification, to use promptly its best efforts to obtain its withdrawal.
(b) To furnish or make available promptly to the Remarketing Agent
and to counsel for the Remarketing Agent a signed copy of the Registration
Statement as originally filed with the Commission, and each amendment thereto
filed with the Commission, including all consents and exhibits filed
therewith.
(c) To deliver or make available promptly to the Remarketing Agent
in New York City a reasonable number of the following documents: (i)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto, (ii) the Prospectus and any amended or
supplemented Prospectus, (iii) any document incorporated by reference in the
Prospectus (excluding exhibits thereto) and (iv) any Remarketing Materials;
and, if the delivery of a prospectus is required at any time in connection
with the Remarketing and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Securities Act or the Exchange Act, to notify the
Remarketing Agent and, upon its request, to file such document and to prepare
and furnish without charge to the Remarketing Agent and to any dealer in
securities a reasonable number of copies of an amended or supplemented
Prospectus which will correct such statement or omission or effect such
compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Company or the Remarketing Agent, be
required by the Securities Act or requested by the Commission.
(e) Prior to filing with the Commission (i) any amendment to the
Registration Statement or supplement to the Prospectus or any document
incorporated by reference in the Prospectus or (ii) any Prospectus pursuant
to Rule 424 of the Rules and Regulations, to furnish or make available a copy
thereof to the Remarketing Agent and counsel for the Remarketing Agent; and
not to file any such amendment or supplement which shall be disapproved by
the Remarketing Agent promptly after reasonable notice (approval thereof not
to be unreasonably withheld).
(f) As soon as practicable after the Effective Date of the
Registration Statement to make
8
generally available to the Company's security holders and to deliver to the
Remarketing Agent an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Securities
Act and the Rules and Regulations (including, at the option of the Company,
Rule 158).
(g) During a period of five years following the Effective Date of
the Registration Statement, to deliver or make available to the Remarketing
Agent copies of all reports or other communications (financial or other)
furnished to shareholders of the Company, and deliver to the Remarketing
Agent, (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed by the Company with the Commission or any
national securities exchange on which any of the Remarketed Securities or any
class of securities of the Company may be listed; and (ii) such additional
information concerning the business and financial condition of the Company as
the Remarketing Agent may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the accounts
of the Company and its subsidiaries are consolidated in reports furnished to
the Company's shareholders generally or to the Commission).
(h) Promptly from time to time to take such action as the
Remarketing Agent may reasonably request to qualify any shares of the
Remarketed Preferred Stock for offering and sale under the securities laws of
such jurisdictions as the Remarketing Agent may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Securities; provided that in connection therewith, the
Company shall not be required to qualify as a foreign corporation or to file
a general consent to service of process in any jurisdiction.
5. CONDITIONS TO THE REMARKETING AGENT'S OBLIGATIONS. The obligations of
the Remarketing Agent hereunder are subject to the accuracy, on and as of the
date when made, of the representations and warranties of the Company
contained herein, to the performance by the Company of its obligations
hereunder and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the
Commission; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission; and
any request of the Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have been
complied with.
(b) The Remarketing Agent shall not have discovered and disclosed
to the Company on or prior to the Remarketing Date that the Prospectus, the
Registration Statement or the Remarketing Materials or any amendment or
supplement thereto contains any untrue statement of a fact which, in the
opinion of counsel for the Remarketing Agent, is material or omits to state
any fact which, in the opinion of such counsel, is material and is required
to be stated therein or is necessary to make the statements therein not
misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Preferred Stock,
the PIES, the Remarketed Preferred Stock, the Prospectus, each Registration
Statement, the Remarketing Materials and all other legal matters relating to
this Agreement and the transactions contemplated hereby shall be reasonably
satisfactory in all material respects to counsel for the Remarketing Agent,
and the Company shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon such
matters.
(d) Counsel to the Company shall have furnished to the Remarketing
Agent its written opinion, as counsel to the Company, addressed to the
Remarketing Agent and dated the Remarketing
9
Date, in form and substance satisfactory to the Remarketing Agent, covering
such matters as are usually covered in transactions of this type.
(e) Counsel to the Purchase Contract Agent shall have furnished to
the Remarketing Agent its written opinion, as counsel to the Purchase
Contract Agent, addressed to the Remarketing Agent and dated the Remarketing
Date, in form and substance satisfactory to the Remarketing Agent, covering
such matters as are usually covered in transactions of this type.
(f) Counsel to the Collateral Agent shall have furnished to the
Remarketing Agent its written opinion, as counsel to the Collateral Agent,
and addressed to the Remarketing Agent and dated the Remarketing Date, in
form and substance satisfactory to the Remarketing Agent, covering such
matters as are usually covered in transactions of this type.
(g) On the Remarketing Date, the Company shall have furnished to
the Remarketing Agent a letter addressed to the Remarketing Agent and dated
such date, in form and substance satisfactory to the Remarketing Agent, of
Deloitte & Touche LLP, or such other firm of nationally recognized
independent public accountants satisfactory to the Remarketing Agent,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" with respect to certain financial information
contained in the Prospectus and in the Remarketing Materials.
(h) The Company shall have furnished to the Remarketing Agent a
certificate, dated the Remarketing Date, of a senior executive officer of the
Company, stating that:
(i) The representations, warranties and agreements of the
Company in Section 2 are true and correct as of the Remarketing Date; the
Company has complied with all its agreements contained herein; and the
conditions contained in Section 5(a) have been fulfilled;
(ii) (A) Neither the Company, the Bank nor any of the
Company's other subsidiaries has sustained since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus or in the Remarketing Materials any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, which could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, otherwise than as
set forth or contemplated in the Prospectus or in the Remarketing Materials
and (B) since the respective dates as of which information is given in the
Prospectus or in the Remarketing Materials, there has not been any material
change in the consolidated share capital or long-term debt of the Company and
its subsidiaries (including, without limitation, the Bank) or the
consolidated share capital or long-term debt of any Significant Subsidiary
(including, without limitation, the Bank) or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of operations
of the Company and its subsidiaries, including without limitation the Bank
(taken as a whole), otherwise than as set forth or contemplated in the
Prospectus or the Remarketing Materials; and
(iii) They have carefully examined the Registration Statement,
the Prospectus and the Remarketing Materials and, in their opinion (A) the
Registration Statement, as of its Effective Date, and the Prospectus and the
Remarketing Materials, as of their respective dates, did not include any
untrue statement of a material fact and did not omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and (B) since such dates, no event has occurred which
should have been set forth in a supplement or amendment to the Registration
Statement, the Prospectus or the Remarketing Materials.
(i) There shall not have been, since the date hereof or since the
respective dates as of
10
which information is given in the Final Prospectus, any material adverse
change in the condition, financial or otherwise, or in the consolidated
financial position, stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business.
(j) Without the prior written consent of the Remarketing Agent, the
Certificate of Designations shall not have been amended in any manner, or
otherwise contain any provision contained therein as of the date hereof that,
in the opinion of the Remarketing Agent, materially changes the nature of the
Remarketed Preferred Stock or the Remarketing Procedures.
(k) Subsequent to the execution and delivery of this Agreement, (i)
no downgrading shall have occurred in the rating accorded the Preferred Stock
or any of the Company's or any Significant Subsidiary's (including, without
limitation, the Bank) debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the Securities Act and (ii no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the
Preferred Stock or any of the Company's or any Significant Subsidiary's
(including, without limitation, the Bank) debt securities.
(l) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the Company on
any exchange or in the over-the-counter market, shall have been suspended or
minimum prices shall have been established on any such exchange or such
market by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall
have been declared by Federal or state authorities, (iii) the United States
shall have become engaged in hostilities, there shall have been an escalation
in hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (iv) there
shall have occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international conditions
on the financial markets in the United States shall be such) as to make it,
in the judgment of the Remarketing Agent, impracticable or inadvisable to
proceed with the Remarketing on the terms and in the manner contemplated in
the Prospectus or in the Remarketing Materials.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Remarketing Agent.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless the Remarketing
Agent, its officers and employees and each person, if any, who controls the
Remarketing Agent within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of the Remarketed
Preferred Stock), to which the Remarketing Agent or that officer, employee or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in any Preliminary Prospectus, the Registration
Statement, the Prospectus or the Remarketing Materials or in any amendment or
supplement thereto, or (B) in any blue sky application or other document
prepared or executed by the Company (or based upon any written information
furnished by the Company) specifically for the purpose of qualifying any or
all of the Remarketed Preferred Stock under the securities laws of any state
or other jurisdiction (any such application, document or information being
hereinafter called a "Blue Sky Application"), or (ii) the
11
omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement, the Prospectus or the Remarketing Materials or in any
amendment or supplement thereto, or in any Blue Sky Application, any material
fact required to be stated therein or necessary to make the statements
therein not misleading and shall reimburse the Remarketing Agent and each
such officer, employee and controlling person promptly upon demand for any
legal or other expenses reasonably incurred by the Remarketing Agent or that
officer, employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement, the
Prospectus or the Remarketing Materials or in any such amendment or
supplement, or in any Blue Sky Application in reliance upon and in conformity
with the written information furnished to the Company by or on behalf of the
Remarketing Agent specifically for inclusion therein and described in a
letter from the Remarketing Agent to the Company and provided further, that
as to any Preliminary Prospectus this indemnity agreement shall not inure to
the benefit of the Remarketing Agent, its officers or employees or any person
controlling the Remarketing Agent on account of any loss, claim, damage,
liability or action arising from the sale of the Remarketed Preferred Stock
to any person by the Remarketing Agent if the Remarketing Agent failed to
send or give a copy of the Prospectus, as the same may be amended or
supplemented, to that person within the time required by the Securities Act,
and the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact in such Preliminary
Prospectus was corrected in the Prospectus, unless such failure resulted from
non-compliance by the Company with Section 4(c). For purposes of the last
proviso to the immediately preceding sentence, the term "Prospectus" shall
not be deemed to include the documents incorporated therein by reference, and
the Remarketing Agent shall not be obligated to send or give any supplement
or amendment to any document incorporated by reference in any Preliminary
Prospectus or the Prospectus to any person other than a person to whom the
Remarketing Agent had delivered such incorporated document or documents in
response to a written request therefor. The foregoing indemnity agreement is
in addition to any liability which the Company may otherwise have to the
Remarketing Agent or to any officer, employee or controlling person of the
Remarketing Agent.
(b) The Remarketing Agent shall indemnify and hold harmless the
Company, its officers and employees, its directors and each person, if any,
who controls the Company within the meaning of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any action
in respect thereof, to which the Company, any such director, officer or
employee or any such controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability
or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained (A) in any Preliminary
Prospectus, the Registration Statement, the Prospectus or the Remarketing
Materials or in any amendment or supplement thereto or (B) in any Blue Sky
Application or (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement, the Prospectus or the
Remarketing Materials or in any amendment or supplement thereto, or in any
Blue Sky Application, any material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each case
only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
the written information furnished to the Company by or on behalf of the
Remarketing Agent specifically for inclusion therein and described in a
letter from the Remarketing Agent to the Company and shall reimburse the
Company and any such director, officer or employee or such controlling person
for any legal or other expenses reasonably incurred by the Company or any
such director or officer or any such controlling person in connection with
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which the
Remarketing Agent may otherwise have to the Company or any such director or
officer or any such controlling person.
12
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Section 6, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have under this Section 6 except to the extent it
has been materially prejudiced by such failure and, provided further, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 6. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 6 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that the Remarketing
Agent shall have the right to employ counsel to represent jointly the
Remarketing Agent and its officers, employees and controlling persons who may
be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Remarketing Agent against the Company under
this Section 6 if, in the reasonable judgment of the Remarketing Agent, it is
advisable for the Remarketing Agent and those officers, employees and
controlling persons to be jointly represented by separate counsel, and in
that event the fees and expenses of such separate counsel shall be paid by
the Company. No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment of the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in this Section 6 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 6(a) or 6(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the
relative benefits received by the Company on the one hand and the Remarketing
Agent on the other hand from the Remarketing or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Remarketing Agent on the other with respect to the
statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Remarketing Agent on the other with respect to such
offering shall be deemed to be in the same proportion as the total
liquidation preference of the Remarketed Securities less the fee paid to the
Remarketing Agent pursuant to Section 3(a) of this Agreement, on the one
hand, and the total fees received by the Remarketing Agent pursuant to such
Section 3(a), on the other hand, bear to the total liquidation preference of
the Remarketed Preferred Stock. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material
fact or omission or alleged
13
omission to state a material fact relates to information supplied by the
Company on the one hand or the Remarketing Agent on the other hand, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Remarketing Agent agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were to be determined by pro rata
allocation or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section
6(d) shall be deemed to include, for purposes of this Section 6(d), any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), the Remarketing Agent shall not be required
to contribute any amount in excess of the amount by which the fees received
by it under Section 3 exceed the amount of any damages which the Remarketing
Agent has otherwise paid or become liable to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
7. RESIGNATION AND REMOVAL OF THE REMARKETING AGENT. The Remarketing
Agent may resign and be discharged from its duties and obligations hereunder,
and the Company may remove the Remarketing Agent, by giving 60 days' prior
written notice, in the case of a resignation, to the Company and the
Depositary and, in the case of a removal, the removed Remarketing Agent and
the Depositary; provided, however, that (i) the Company may not remove the
Remarketing Agent unless (A) the Remarketing Agent becomes involved as a
debtor in a bankruptcy, insolvency or similar proceeding, (B) the Remarketing
Agent shall not be among the 15 underwriters with the largest volume
underwritten in dollars, on a lead or co-managed basis, of U.S. domestic debt
securities during the twelve-month period ended as of the last calendar
quarter preceding the Remarketing Date or (C) the Remarketing Agent shall be
subject to one or more legal restrictions preventing the performance of its
obligations hereunder and (ii) no such resignation nor any such removal shall
become effective until the Company shall have appointed at least one
nationally recognized broker-dealer as successor Remarketing Agent and such
successor Remarketing Agent shall have entered into a
with the Company in which it shall have agreed to conduct the Remarketing in
accordance with the Remarketing Procedures. In any such case, the Company
will use its reasonable efforts to appoint a successor Remarketing Agent and
enter into such a with such person as soon as
reasonably practicable. The provisions of Sections 3 and 6 shall survive the
resignation or removal of any Remarketing Agent pursuant to this Agreement.
8. DEALING IN THE REMARKETED PREFERRED STOCK. The Remarketing Agent,
when acting as a Remarketing Agent or in its individual or any other
capacity, may, to the extent permitted by law, buy, sell, hold and deal in
any shares of the Remarketed Preferred Stock. The Remarketing Agent may
exercise any vote or join in any action which any beneficial owner of shares
of Remarketed Preferred Stock may be entitled to exercise or take pursuant to
the Certificate of Designations with like effect as if it did not act in any
capacity hereunder. The Remarketing Agent, in its individual capacity, either
as principal or agent, may also engage in or have an interest in any
financial or other transaction with the Company as freely as if it did not
act in any capacity hereunder.
9. REMARKETING AGENT'S PERFORMANCE; DUTY OF CARE. The duties and
obligations of the Remarketing Agent shall be determined solely by the
express provisions of this Agreement and the Certificate of Designations. No
implied covenants or obligations of or against the Remarketing Agent shall be
read into this Agreement or the Certificate of Designations. In the absence
of bad faith on the part of the Remarketing Agent, the Remarketing Agent may
conclusively rely upon any document furnished to it, which purports to
conform to the requirements of this Agreement or the
14
Certificate of Designations as to the truth of the statements expressed in
any of such documents. The Remarketing Agent shall be protected in acting
upon any document or communication reasonably believed by it to have been
signed, presented or made by the proper party or parties. The Remarketing
Agent, acting under this Agreement, shall incur no liability to the Company
or to any holder of Remarketed Preferred Stock in its individual capacity or
as Remarketing Agent for any action or failure to act, on its part in
connection with a Remarketing or otherwise, except if such liability is
judicially determined to have resulted from the gross negligence or willful
misconduct on its part.
10. TERMINATION. This Agreement shall terminate as to the Remarketing
Agent on the effective date of the resignation or removal of the Remarketing
Agent pursuant to Section 7. In addition, the obligations of the Remarketing
Agent hereunder may be terminated by it by notice given to the Company prior
to 10:00 a.m., New York City time, on the Remarketing Date if, prior to that
time, any of the events described in Sections 5(i), (j), (k) or (l) shall
have occurred.
11. NOTICES. All statements, requests, notices and agreements hereunder
shall be in writing, and:
(a) if to the Remarketing Agent, shall be delivered or sent by
mail, telex or facsimile transmission to [remarketing agent/address],
Attention: [] (Facsimile: [( ) ________]);
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Prospectus, Attention: [] (Facsimile: [____________]). Any such statements,
requests, notices or agreements shall take effect at the time of receipt
thereof.
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure
to the benefit of and be binding upon the Remarketing Agent, the Company and
its successors. This Agreement and the terms and provisions hereof are for
the sole benefit of only those persons, except that (x) the representations,
warranties, indemnities and agreements of the Company contained in this
Agreement shall also be deemed to be for the benefit of the officers and
employees of the Remarketing Agent and the person or persons, if any, who
control the Remarketing Agent within the meaning of Section 15 of the
Securities Act and (y) the indemnity agreement of the Remarketing Agent
contained in Section 6(b) of this Agreement shall be deemed to be for the
benefit of directors, officers and employees of the Company and any person
controlling the Company within the meaning of Section 15 of the Securities
Act. Nothing in this Agreement is intended or shall be construed to give any
person, other than the persons referred to herein, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
13. SURVIVAL. The respective indemnities, representations, warranties
and agreements of the Company and the Remarketing Agent contained in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the Remarketing and shall remain in full force and
effect, regardless of any investigation made by or on behalf of any of them
or any person controlling any of them.
14. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY". For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 under the Securities Act.
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if
15
executed in more than one counterpart, the executed counterparts shall each
be deemed to be an original but all such counterparts shall together
constitute one and the same instrument.
17. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement between the Company
and the Remarketing Agent, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
Washington Mutual, Inc.,
a Washington corporation,
By: ________________________
Name:
Title:
Accepted:
[remarketing agent]
By: ________________________
Name:
Title:
16
