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EXHIBIT 4.12
GUARANTEE OF WASHINGTON MUTUAL, INC.
THIS GUARANTEE,
dated as of October 1, 2005, is executed by Washington
Mutual, Inc., a Washington corporation (the
"GUARANTOR"), in favor of the
beneficiaries set forth herein (this
"GUARANTEE").
WHEREAS, the
Guarantor, New American Capital, Inc. ("NEW AMERICAN") which
is a direct, wholly owned subsidiary of the
Guarantor, and Providian Financial
Corporation ("PROVIDIAN") have entered into
an Agreement and Plan of Merger,
dated as of June 5, 2005, as amended and
supplemented, that provides for the
merger (the "MERGER") of Providian with and
into New American;
WHEREAS, the
Merger will become effective as set forth in the certificate
of merger which shall be filed with the
Secretary of State of Delaware on or
before the Closing Date, as defined in the
Agreement and Plan of Merger (the
time and date when the Merger becomes
effective is referred to herein as the
"EFFECTIVE TIME");
WHEREAS, at the
Effective Time, the separate corporate existence of
Providian will cease and New American will
continue as the surviving corporation
following the Merger;
WHEREAS, in
connection with the Merger, New American will, pursuant to the
Supplemental Indenture dated as of October
1, 2005 by and among New American,
Providian and The Bank of New York, as
trustee named therein (the "INDENTURE
TRUSTEE"), assume the obligations of
Providian under that certain Junior
Subordinated Indenture dated as of February
4, 1997 (as amended, the
"INDENTURE"), and under the Securities (as
defined in the Indenture), with such
assumption of obligations to be effective
as of the Effective Time;
WHEREAS, in
connection with the Merger, New American will, pursuant to the
Amendment to Guarantee Agreement dated as
of October 1, 2005 by and among New
American, Providian and The Bank of New
York, as the guarantee trustee named
therein (the "GUARANTEE TRUSTEE"), assume
the obligations of Providian under
that certain Guarantee Agreement dated as
of February 4, 1997 (as amended, the
"GUARANTEE AGREEMENT"), with such
assumption of obligations to be effective as
of the Effective Time;
WHEREAS, in
connection with the Merger, New American will, pursuant to the
Amendment to Amended and Restated Trust
Agreement dated as of October 1, 2005 by
and among New American, Providian and The
Bank of New York, as the property
trustee named therein (the "PROPERTY
TRUSTEE") and The Bank of New York
(Delaware), as the Delaware trustee named
therein (the "DELAWARE TRUSTEE" and
together with the Property Trustee, the
"TRUST TRUSTEES"), assume the
obligations of Providian under that certain
Amended and Restated Trust Agreement
dated as of February 4, 1997 (as amended,
the "TRUST AGREEMENT"), with such
assumption of obligations to be effective
as of the Effective Time;
WHEREAS, each of
the Indenture Trustee, the Guarantee Trustee, the Property
Trustee and the Delaware Trustee are
individually referred to herein as a
"TRUSTEE" and collectively as the
"TRUSTEES";
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WHEREAS, New
American will, by operation of law upon the Merger, succeed to
the obligations of Providian under that
certain Agreement as to Expenses and
Liabilities dated as of February 4, 1997 by
and among Providian and Providian
Capital Trust I, a Delaware statutory
business trust (as amended, the "EXPENSE
AGREEMENT");
WHEREAS,
Guarantor now wishes to guarantee the payment of the
obligations
and liabilities of New American under the
Indenture, the Securities issued
thereunder, the Guarantee Agreement, the
Trust Agreement and the Expense
Agreement (collectively, the "COVERED
AGREEMENTS") and to execute and deliver
this Guarantee; and
WHEREAS,
Guarantor will benefit, directly or indirectly, from the
provision
of this Guarantee.
NOW, THEREFORE,
in consideration of the foregoing, and intending to be
legally bound hereby, Guarantor agrees as
follows:
Section 1.
Guarantees.
(a) Indenture Guarantee. Subject to Section 2(c), Guarantor
hereby
irrevocably and unconditionally guarantees
to each Holder of a Security
authenticated and delivered by the
Indenture Trustee pursuant to the Indenture,
as amended or supplemented, and to the
Indenture Trustee and its successors and
assigns, that: (i) the principal of,
premium, if any, and interest on the
Securities promptly will be paid in full
when due, whether at the Maturity, by
acceleration, call for redemption or
otherwise, and interest on the overdue
principal, premium, if any, and interest,
if any, of the Securities, if lawful,
and all other obligations of New American
to the Holders and the Indenture
Trustee under the Indenture and the
Securities, will be promptly paid in full or
performed, all in accordance with the
applicable terms thereof, and (ii) in case
of any extension of time of payment or
renewal of any Securities or any of such
other obligations, the same will be
promptly paid in full when due or performed
in accordance with the terms of the
extension or renewal, whether at Stated
Maturity, by acceleration or otherwise.
(b) Guarantee Agreement Guarantee. Subject to Section 2(c),
Guarantor
hereby irrevocably and unconditionally
guarantees to the Holders of the Capital
Securities and to the Guarantee Trustee and
its successors and assigns, the
payment and performance of all obligations
of New American under the Guarantee
Agreement, in accordance with the terms
thereof.
(c) Trust Agreement Guarantee. Subject to Section 2(c),
Guarantor
hereby irrevocably and unconditionally
guarantees to the Trust Trustees and each
of their successors and assigns, and to all
other beneficiaries of New
American's obligations under the Trust
Agreement, the payment and performance of
all obligations of New American under the
Trust Agreement, in accordance with
the terms thereof.
(d) Expense Agreement Guarantee. Subject to Section 2(c),
Guarantor
hereby irrevocably and unconditionally
guarantees to the Beneficiaries the
payment and performance of all obligations
of New American under the Expense
Agreement, in accordance with the terms
thereof.
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(e) The guaranteed obligations set forth in paragraphs (a) through
(d)
of this Section 1 are referred to
collectively herein as the "GUARANTEED
OBLIGATIONS."
(f) Each capitalized term used in paragraphs (a) through (d) of
this
Section 1 and not otherwise defined in this
Guarantee has the meaning assigned
to it in the applicable Covered
Agreement.
Section 2.
Additional Provisions.
(a) Failing payment when due by New American of any Guaranteed
Obligation for whatever reason, Guarantor
shall be obligated to pay the same
immediately. Guarantor hereby agrees that
its obligations hereunder shall be
unconditional, irrespective of the
validity, regularity or enforceability of
Indenture, the Securities, the Guarantee
Agreement, the Trust Agreement or the
Expense Agreement, as applicable, the
absence of any action to enforce the same,
any waiver or consent by any beneficiary of
a Guaranteed Obligation with respect
to any provisions hereof or of the
applicable Covered Agreement, the recovery of
any judgment against New American, any
action to enforce the same or any other
circumstance which might otherwise
constitute a legal or equitable discharge or
defense of a guarantor. Guarantor hereby
waives d
