$300,000,000
WASHINGTON MUTUAL CAPITAL I
__% SUBORDINATED CAPITAL INCOME SECURITIES (SKIS-SM-)
UNDERWRITING AGREEMENT
May __, 1997
▇▇▇▇▇▇ BROTHERS INC.,
As Representative of the several
Underwriters named in Schedule ▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Washington Mutual Capital I, a Delaware statutory business trust (the
"Trust") and Washington Mutual, Inc., a Washington corporation (the "Company")
propose to issue and sell an aggregate of $ million of % Subordinated
Capital Income Securities (the "Capital Securities"), liquidation preference
$1,000 per Capital Security, of the Trust, guaranteed (the "Guarantee" and,
together with the Capital Securities and the Junior Subordinated Debentures
referred to below, the "Securities") by the Company pursuant to the Guarantee
Agreement (the "Guarantee Agreement") to be entered into between the Company and
The Bank of New York (the "Guarantee Trustee"), the form of which has been filed
as an exhibit to the Registration Statements (as defined below). The Company
will be the owner of all of the beneficial ownership interests represented by
the common securities (the "Common Securities") of the Trust. Concurrently with
the issuance of the Securities and the Company's purchase of all of the Common
Securities, the Trust will invest the proceeds of each thereof in % Junior
Subordinated Debentures (the "Junior Subordinated Debentures") issued by the
Company. The Junior Subordinated Debentures are to be issued pursuant to an
Indenture (the "Indenture") to be entered into between the Company and The Bank
of New York (the "Indenture Trustee"), the form of which has been filed as an
exhibit to the Registration Statements. This is to confirm the agreement
concerning the purchase of the Capital Securities from the Trust by the
Underwriters named in Schedule 1 hereto (the "Underwriters").
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY AND THE
TRUST. The Company and the Trust, jointly and severally, represent, warrant and
agree that:
(a) A registration statement on Form S-3, and any amendments thereto,
with respect to the Securities has (i) been prepared by the Company and the
Trust in conformity with the requirements of the Securities Act of 1933
(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 second
registration statement on Form S-3 with respect to the Securities (i) may
also be prepared
2
by the Company and the Trust in conformity with the requirements of the
Securities Act and the Rules and Regulations and (ii) if so prepared, will
be filed with the Commission under the Securities Act pursuant to Rule
462(b) of the Rules and Regulations on the date hereof; and the Indenture
and the Guarantee have been qualified under the Trust Indenture Act of 1939
(the "Trust Indenture Act"). Copies of the first such registration
statement, together with the form of any such second registration
statement, have been delivered by the Company and the Trust to you as the
representative (the "Representative") of the Underwriters. As used in this
Agreement, "Effective Time" means (i) with respect to the first such
registration statement, the date and the time as of which such registration
statement, or the most recent post-effective amendment thereto, if any, was
declared effective by the Commission and (ii) with respect to any second
registration statement, the date and time as of which such second
registration statement is filed with the Commission, and "Effective Times"
is the collective reference to both Effective Times; "Effective Date" means
(i) with respect to the first such registration statement, the date of the
Effective Time of such registration statement and (ii) with respect to any
second registration statement, the date of the Effective Time of such
second registration statement, and "Effective Dates" is the collective
reference to both Effective Dates; "Preliminary Prospectus" means each
prospectus included in any such registration statement, or amendments
thereof, before it became effective under the Securities Act and any
prospectus filed with the Commission by the Company and the Trust with the
consent of the Representative pursuant to Rule 424(a) of the Rules and
Regulations; "Primary Registration Statement" means the first registration
statement referred to in this Section 1(a), as amended at its Effective
Time, "Rule 462(b) Registration Statement" means the second registration
statement, if any, referred to in this Section 1(a), as filed with the
Commission, and "Registration Statements" means both the Primary
Registration Statement and any Rule 462(b) Registration Statement,
including in each case any documents incorporated by reference therein at
such time and all information contained in the final prospectus filed with
the Commission pursuant to Rule 424(b) of the Rules and Regulations in
accordance with Section 5(a) hereof and deemed to be a part of the
Registration Statements as of the Effective Time of the Primary
Registration Statement pursuant to paragraph (b) of Rule 430A of the Rules
and Regulations; and "Prospectus" means such final prospectus, as first
filed with the Commission pursuant to paragraph (1) or (4) of Rule 424(b)
of the Rules and Regulations. Reference made herein to any Preliminary
Prospectus or to the Prospectus shall be deemed to refer to and include any
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act, as of the date of such Preliminary Prospectus or
the Prospectus, as the case may be, and any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include any document filed under the Securities Exchange
Act of 1934 (the "Exchange Act") after the date of such Preliminary
Prospectus or the Prospectus, as the case may be, and incorporated by
reference in such Preliminary Prospectus or the Prospectus, as the case may
be; and any reference to any amendment to either of the Registration
Statements 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 Statements. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus.
3
(b) The Primary Registration Statement conforms (and the Rule 462(b)
Registration Statement, if any, the Prospectus and any further amendments
or supplements to the Registration Statements 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 do not and will not, as of the applicable
effective date (as to the Registration Statements and any amendment
thereto) and as of the applicable filing date (as to the Prospectus and any
amendment or supplement thereto) contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; PROVIDED that no
representation or warranty is made as to information contained in or
omitted from the Registration Statements or the Prospectus in reliance upon
and in conformity with written information furnished to the Company and the
Trust through the Representative by or on behalf of any Underwriter
specifically for inclusion therein; and the Indenture and the Guarantee
conform in all material respects to the requirements of the Trust Indenture
Act and the applicable rules and regulations thereunder.
(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 any
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed and
incorporated by reference 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 any material fact required to be stated
therein or necessary to make the statements therein not misleading.
(d) The Company and each of Washington Mutual Bank, American
Savings Bank, N.A. Capital Holdings, Inc., New American Capital, Inc. and
New American Holdings, Inc. have been duly incorporated and are validly
existing as corporations or depository institutions in good standing under
the laws of their respective jurisdictions of incorporation are duly
qualified to do business and are in good standing as foreign corporations
in each jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires such
qualification other than where such failures would not, either individually
or in the aggregate, have a material adverse effect on the business,
financial condition, operating results or prospects of the Company and its
subsidiaries taken as a whole, and have all power and authority necessary
to own or hold their respective properties and to conduct the businesses in
which they are engaged; and none of the subsidiaries of the Company (other
than Washington Mutual Bank, American Savings Bank, N.A. Capital
Holdings, Inc., New American Capital, Inc. and New American Holdings, Inc.
(collectively, the "Significant Subsidiaries")) is a "significant
subsidiary", as such term is defined in Rule 405 of the Rules and
Regulations.
4
(e) The Company has been duly registered as a savings and loan
holding company under the applicable provisions of the Home Owners' Loan
Act; the Company and each of its Significant Subsidiaries are in compliance
in all material respects with all laws administered by and regulations of
the Federal Deposit Insurance Corporation (the "FDIC"), the Office of
Thrift Supervision and any other federal or state bank regulatory authority
(the "Bank Regulatory Authorities") with jurisdiction over the Company or
any of its subsidiaries, other than where such failures to comply would not
have a material adverse effect on the Company and its subsidiaries, taken
as a whole; and neither the Company nor any of its Significant Subsidiaries
or Washington Mutual Bank fsb is a party to any written agreement or
memorandum of understanding with, or a party to any commitment letter or
similar undertaking to, or is subject to any order or directive by, or is a
recipient of any extraordinary supervisory letter from, or has adopted any
board resolutions at the request of, any Bank Regulatory Authority which
restricts materially the conduct of its business, or in any manner relates
to its capital adequacy, its credit policies or its management, nor have
any of them been advised by any Bank Regulatory Authority that it is
contemplating issuing or requesting (or is considering the appropriateness
of issuing or requesting) any such order, decree, agreement, memorandum of
understanding, extraordinary supervisory letter, commitment letter or
similar submission, or any such board resolutions.
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; and all of the issued shares of capital stock of each
Significant Subsidiary of the Company have been duly and validly authorized
and issued and are fully paid and non-assessable and (except for directors'
qualifying shares) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims.
(g) The Capital Securities and the Common Securities have been duly
and validly authorized and, when issued and delivered against payment
therefor as provided herein, will be duly and validly issued, fully paid
and non-assessable; and the Capital Securities and the Common Securities,
when issued and delivered, will conform in all material respects to the
descriptions thereof contained in the Prospectus.
(h) The Indenture has been duly authorized, and when duly executed by
the proper officers of the Company (assuming due execution and delivery by
the Indenture Trustee) and delivered by the Company will constitute a valid
and binding agreement of the Company enforceable against the Company in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing; and the Junior
Subordinated Debentures have been duly authorized, and, when duly executed,
authenticated, issued and delivered as contemplated in the Indenture, will
constitute valid and binding obligations of the Company entitled to the
benefits of the Indenture and enforceable in accordance with their terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
5
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; and the Junior Subordinated Debentures, when
issued and delivered, will conform in all material respects to the
description thereof contained in the Prospectus.
(i) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act of
the State of Delaware (the "Delaware Business Trust Act") with the trust
power and authority to own property and conduct its business as described
in the Prospectus, and has conducted and will conduct no business other
than the transactions contemplated by this Agreement as described in the
Prospectus; the Trust is not a party to or bound by any agreement or
instrument other than this Agreement, the Amended and Restated Declaration
of Trust (the "Declaration") among the Company, The Bank of New York, as
property trustee (the "Property Trustee"), The Bank of New York (Delaware),
as Delaware trustee (the "Delaware Trustee") and the individuals named
therein as the Regular Trustees (the "Regular Trustees", and together with
the Property Trustee and the Delaware Trustees, the "Trustees"), and the
agreements and instruments contemplated by the Declaration and described in
the Prospectus; the Trust has no liabilities or obligations other than
those arising out of the transactions contemplated by this Agreement and
the agreements and instruments contemplated by the Declaration and
described in the Prospectus; and the Trust is not a party to or subject to
any action, suit or proceeding of any nature.
(j) The Declaration has been duly authorized by the Company and, when
duly executed and delivered by the Company and the Trustees, will be a
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting the rights of creditors generally,
general equitable principles (whether considered in a proceeding in equity
or at law) and an implied covenant of good faith and fair dealing, and will
conform in all material respects to the description thereof contained in
the Prospectus. Each of the Regular Trustees is an employee of the Company
and has been duly authorized by the Company to serve in such capacity and
to execute and deliver the Declaration.
(k) The Guarantee Agreement has been duly authorized and, when duly
executed and delivered by the proper officers of the Company and the
Guarantee Trustee, will constitute a valid and legally binding agreement of
the Company enforceable against the Company in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; and the Guarantee Agreement, when executed and
delivered, will conform in all material respects to the description thereof
contained in the Prospectus.
(l) This Agreement has been duly authorized, executed and delivered
by each of the Company and the Trust.
6
(m) The execution, delivery and performance of this Agreement, the
Declaration, the Guarantee Agreement, the Indenture and the Junior
Subordinated Debentures by the Company and the Trust, as applicable, and
the consummation of the transactions contemplated herein and therein 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 Significant Subsidiaries is a party or by which the
Company or any of its Significant Subsidiaries is bound or to which any of
the properties or assets of the Company or any of its Significant
Subsidiaries is subject and will not violate or conflict with 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 properties or assets or court, except for such conflict, breach,
violations or defaults as would not, either individually or in the
aggregate, have a material adverse effect on the business, financial
condition, operating results or prospects of the Company and its
subsidiaries taken as a whole, nor will such actions result in any
violation of the provisions of the charter or by-laws of the Company or any
of its Significant Subsidiaries; and except for the registration of the
Securities under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
the Exchange Act and applicable state securities laws in connection with
the purchase and distribution of the Capital Securities by the
Underwriters, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this Agreement, the
Declaration, the Guarantee Agreement, the Indenture or the Junior
Subordinated Securities or the consummation of the transactions
contemplated herein and therein, including the issuance of the Common
Securities and the Capital Securities by the Trust and the purchase of the
Junior Subordinated Debentures by the Trust from the Company.
(n) There are no contracts, agreements or understandings between the
Company or any of its subsidiaries or the Trust and any person granting
such person the right to require the Company or the Trust to file a
registration statement under the Securities Act with respect to any
securities of the Company or the Trust owned or to be owned by such person
or to require the Company or the Trust to include such securities in the
securities registered pursuant to the Registration Statements.
(o) Neither the Company nor any of its Significant Subsidiaries has
sustained, since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, any material loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus; and, since such date, there has not been
any material change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or contemplated
in the Prospectus.
7
(p) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statements or
included or incorporated by reference in the Prospectus 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; the pro
forma financial information included in the Prospectus has been prepared in
accordance with the requirements of Regulation S-X promulgated by the
Commission and contains all adjustments necessary for a fair presentation
of the information set forth therein; and the information contained in the
Prospectus that constitutes "forward-looking statements" within the meaning
of Section 21E(i)(1) of the Exchange Act has been prepared on the basis of
the Company's best current judgments and estimations as to future operating
plans and results.
(q) Deloitte & Touche, LLP, who have certified certain financial
statements of the Company, whose report appears in the Prospectus or is
incorporated by reference therein and who have delivered the initial letter
referred to in Section 7(e) hereof, are independent public accountants as
required by the Securities Act and the Rules and Regulations.
(r) There are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
or asset of the Company or any of its subsidiaries is the subject which
could reasonably be expected to have a material adverse effect on the
consolidated financial position, results of operations, business or
prospects of the Company and its subsidiaries taken as a whole; and to the
best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(s) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(t) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to either of the
Registration Statements by the Securities Act or by the Rules and
Regulations which have not been described in the Prospectus or filed as
exhibits to either of the Registration Statements or incorporated therein
by reference as permitted by the Rules and Regulations.
(u) Neither the Company nor any of its Significant Subsidiaries (i) is
in violation of its charter or by-laws, (ii) is in default in any material
respect, and no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its
properties or assets is subject or (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
8
governmental authorization or permit necessary to the ownership of its
properties or assets or to the conduct of its business.
(v) Neither the Trust, the Company nor any subsidiary will be required
to register as an "investment company" within the meaning of such term
under the Investment Company Act of 1940 (the "Investment Company Act") and
the rules and regulations of the Commission thereunder as a result of the
consummation of the transactions contemplated by this Agreement, the
Declaration, the Indenture, the Junior Subordinated Debentures or the
Guarantee Agreement.
2. PURCHASE OF THE CAPITAL SECURITIES BY THE UNDERWRITERS. The Trust
and the Company hereby agree to sell to the several Underwriters, and each
Underwriter, upon the basis of the representations, warranties and agreements
herein contained, but subject to the conditions hereinafter stated, agrees,
severally and not jointly, to purchase from the Trust, the respective
liquidation amount of Capital Securities set forth in Schedule 1 hereto opposite
their names at a purchase price of % of the liquidation amount thereof.
As compensation to the Underwriters for their commitments hereunder,
the Company agrees to pay the Underwriters a commission of % of the
liquidation amount of the Capital Securities set forth in Schedule 1 opposite
each Underwriter's name.
3. OFFERING OF CAPITAL SECURITIES BY THE UNDERWRITERS. Upon
authorization by the Representative of the release of the Capital Securities,
the several Underwriters propose to offer the Capital Securities for sale upon
the terms and conditions set forth in the Prospectus; PROVIDED, HOWEVER, that no
Capital Securities registered pursuant to the Rule 462(b) Registration
Statement, if any, shall be offered prior to the Effective Time thereof.
4. DELIVERY OF AND PAYMENT FOR THE STOCK. Delivery of and payment
for the Capital Securities shall be made at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at 10:00 A.M., New York
City time, on the [third] [fourth] full business day following the date of this
Agreement or at such other date or place as shall be determined by agreement
between the Representative, the Trust and the Company. This date and time are
sometimes referred to as the "Closing Date". On the Closing Date, the Trust
shall deliver or cause to be delivered to the Representative for the account of
each Underwriter against payment to or upon the order of the Trust of the
purchase price in Federal or other funds immediately available in New York City,
the Capital Securities in the form of one or more permanent global securities in
definitive form (the "Global Securities") deposited with the Property Trustee as
custodian for the Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent Global Securities
will be held only in book-entry form through DTC. Time shall be of the essence,
and delivery at the time and place specified pursuant to this Agreement is a
further condition of the obligation of each Underwriter hereunder. On the
Closing Date, the Company will pay, or cause to be paid, the commission payable
on the Closing Date to the Underwriters under the last paragraph of Section 2 in
Federal or other funds immediately available in New York City.
9
5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) To prepare the Rule 462(b) Registration Statement, if
necessary, in a form approved by the Representative and to file such
Rule 462(b) Registration Statement with the Commission on the date
hereof; to prepare the Prospectus in a form approved by the
Representative and to file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than 10:00 A.M., New York City
time, on the day following the execution and delivery of this
Agreement; to make no further amendment or any supplement to the
Registration Statements or to the Prospectus prior to the Closing Date
except as permitted herein; to advise the Representative, promptly
after it receives notice thereof, of the time when any amendment to
either 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 Representative 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 Securities; to advise the Representative, 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 any
Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Securities 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 Statements 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
Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) To furnish promptly to the Representative and to counsel for
the Underwriters a signed copy of each of the Registration Statements
as originally filed with the Commission, and each amendment thereto
filed with the Commission, including all consents and exhibits filed
therewith;
(c) To deliver promptly to the Representative in New York City
such number of the following documents as the Representative shall
reasonably request: (i) conformed copies of the Registration
Statements as originally filed with the Commission and each amendment
thereto (in each case excluding exhibits other than this Agreement,
the Indenture, the Declaration, the Guarantee Agreement and the
computation of the ratio of earnings to fixed charges,(ii) each
Preliminary Prospectus, the Prospectus (not later than 10:00 A.M., New
York City time, of the day following the execution and delivery of
this Agreement) and any amended or supplemented Prospectus (not later
than 10:00 A.M., New York City time, on the day following the date of
such amendment or supplement) and (iii) any document incorporated by
reference in the Prospectus (excluding exhibits thereto); and, if the
delivery of a prospectus is required at any time after the Effective
Time of the
10
Primary Registration Statement in connection with the offering or sale
of the Capital Securities (or any other securities relating thereto)
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 Representative and, upon its
request, to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many
copies as the Representative may from time to time reasonably request
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 Statements or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company, the Trust or the
Representative, be required by the Securities Act or requested by the
Commission;
(e) Prior to filing with the Commission either of the
Registration Statements or supplement to the Prospectus, any document
incorporated by reference in the Prospectus or any Prospectus pursuant
to Rule 424 of the Rules and Regulations, to furnish a copy thereof to
the Representative and counsel for the Underwriters and obtain the
consent of the Representative to the filing;
(f) As soon as practicable after the Effective Date of the
Primary Registration Statement, to make generally available to the
Company's security holders and to deliver to the Representative 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) For a period of five years following the Effective Date of
the Primary Registration Statement, to furnish to the Representative
copies of all materials furnished by the Company to its shareholders
and all public reports and all reports and financial statements
furnished by the Company to the principal national securities exchange
or automatic quotation system upon which the Company's common stock
may be listed or quoted pursuant to requirements of or agreements with
such exchange or system or to the Commission pursuant to the Exchange
Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the
Representative may reasonably request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions as
the Representative may request and to
11
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;
(i) For a period of 30 days from the date of the Prospectus, not
to, directly or indirectly, offer for sale, sell or otherwise dispose
of (or enter into any transaction or device which is designed to, or
could be expected to, result in the disposition or purchase by any
person at any time in the future of) (i) any trust certificate or
other securities of the Trust other than the sale of the Common
Securities to the Company and the sale of the Capital Securities to
the Underwriters, as contemplated by the Prospectus, (ii) any
securities that are substantially similar to the Securities, or
(iii) any securities that are convertible into, or exchangeable or
exercisable for, any of the foregoing, without, in any such case, the
prior written consent of the Representative; and
(j) To apply the net proceeds from the sale of the Securities as
set forth in the Prospectus.
6. EXPENSES. The Company and the Trust agree to pay (a) the costs
incident to the authorization, issuance, sale and delivery of the Securities
and any taxes payable in that connection; (b) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statements and any amendments and exhibits thereto; (c) the costs of
distributing the Registration Statements as originally filed and each
amendment thereto and any post-effective amendments thereof (including, in
each case, exhibits), any Preliminary Prospectus, the Prospectus and any
amendment or supplement to the Prospectus or any document incorporated by
reference therein, all as provided in this Agreement; (d) the costs of
reproducing and distributing this Agreement; (e) the costs of distributing
the terms of agreement relating to the organization of the underwriting
syndicate and selling group to the members thereof by mail, telex or other
means of communication; (f) the fees and expenses of qualifying the
Securities under the securities laws of the several jurisdictions as provided
in Section 5(h) and of preparing, printing and distributing a Blue Sky
Memorandum (including related fees and expenses of counsel to the
Underwriters); (g) any fees charged by securities rating services for rating
the Securities; and (h) all other costs and expenses incident to the
performance of the obligations of the Company and the Trust under this
Agreement; PROVIDED that, except as provided in this Section 6 and in Section
11, the Underwriters shall pay their own costs and expenses, including the
costs and expenses of their counsel, any transfer taxes on the Securities
which they may sell and the expenses of advertising any offering of the
Capital Securities made by the Underwriters.
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on the Closing Date, of the representations and warranties of the Company
and the Trust contained herein, to the performance by the Company and the Trust
of their respective obligations hereunder, and to each of the following
additional terms and conditions:
(a) The Rule 462(b) Registration Statement, if any, and the
Prospectus shall have been timely filed with the Commission in
accordance with Section 5(a);
12
no stop order suspending the effectiveness of either of the
Registration Statements 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 either of the Registration Statements or the
Prospectus or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Closing Date that either of the
Registration Statements or the Prospectus or any amendment or
supplement thereto contains any untrue statement of a fact which, in
the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters, 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
Indenture, the Declaration, the Guarantee Agreement, the Securities
and the Prospectus, and all other legal matters relating to this
Agreement and the transactions contemplated hereby, shall be
satisfactory in all respects to counsel for the Underwriters, and the
Company and the Trust shall have furnished to such counsel all
documents and information that they may reasonably request to enable
them to pass upon such matters.
(d) ▇▇▇▇▇▇ Pepper & Shefelman PLLC shall have furnished to the
Representative its written opinion, as counsel to the Company,
addressed to the Underwriters and dated the Closing Date, in form and
substance satisfactory to the Representative, to the effect that:
(i) The Company and each of its Significant Subsidiaries
have been duly incorporated and are validly existing as
corporations or depository institutions in good standing under
the laws of their respective jurisdictions of incorporation; are
duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective
ownership or lease of property or the conduct of their respective
businesses requires such qualification other than where such
failures would not, either individually or in the aggregate, have
a material adverse effect on the business, financial condition,
operating results or prospects of the Company and its
subsidiaries taken as a whole, and have all power and authority
necessary to own or hold their respective properties and conduct
the businesses in which they are engaged;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus; and all of the issued shares of capital
stock of each Significant Subsidiary of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable and (except for directors' qualifying shares) are
owned of record and, to the best of such
13
counsel's knowledge, beneficially by the Company, either directly
or indirectly, free and clear of all liens, encumbrances,
equities or claims.
(iii) The Indenture has been duly authorized, executed
and delivered by the Company and (assuming due authorization,
execution and delivery thereof by the Indenture Trustee)
constitutes a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair
dealing; and the Junior Subordinated Debentures have been duly
authorized, executed, issued and delivered by the Company as
contemplated in the Indenture and (assuming due authentication by
the Indenture Trustee) constitute valid and binding obligations
of the Company entitled to the benefits of the Indenture and
enforceable in accordance with their terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
(iv) The Declaration has been duly authorized, executed and
delivered by the Company.
(v) The Guarantee Agreement has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Guarantee
Trustee, constitutes a valid and legally binding obligation of
the Company enforceable against the Company in accordance with
its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
(vi) To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or
governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or of which any
property or asset of the Company or any of its subsidiaries is
the subject which could reasonably be expected to have a material
adverse effect on the financial condition, results of operations,
business or prospects of the Company and its subsidiaries,
taken as a whole;
(vii) To the best of such counsel's knowledge neither the
Company, any of its Significant Subsidiaries nor Washington
Mutual Bank fsb is a party to any written agreement or memorandum
of understanding with, or a party to any commitment letter
14
or similar undertaking to, or is subject to any order or
directive by, or is a recipient of any extraordinary supervisory
letter from, or has adopted any board resolutions at the request
of, any Bank Regulatory Authority which restricts materially the
conduct of its business, or in any manner relates to its capital
adequacy, its credit policies or its management, nor have any of
them been advised by any Bank Regulatory Authority that it is
contemplating issuing or requesting (or is considering the
appropriateness of issuing or requesting) any such order, decree,
agreement, memorandum of understanding, extraordinary supervisory
letter, commitment letter or similar submission, or any such
board resolutions.
(viii) The Primary Registration Statement was declared
effective under the Securities Act and the Indenture and the
Guarantee were qualified under the Trust Indenture Act as of the
date and time specified in such opinion, the Rule 462(b)
Registration Statement, if any, was filed with the Commission on
the date specified therein, the Prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b) of the
Rules and Regulations specified in such opinion on the date
specified therein and no stop order suspending the effectiveness
of either of the Registration Statements has been issued and, to
the knowledge of such counsel, no proceeding for that purpose is
pending or threatened by the Commission;
(ix) The Registration Statements, as of their respective
Effective Dates, and the Prospectus, as of its date, and any
further amendments or supplements thereto, as of their respective
dates, made by the Company or the Trust prior to the Closing Date
(other than the financial statements and other financial and
statistical data contained therein, as to which such counsel need
express no opinion) complied as to form in all material respects
with the requirements of the Securities Act and the Rules and
Regulations; the documents incorporated by reference in the
Prospectus and any further amendment or supplement to any such
incorporated document made by the Company or the Trust prior to
the Closing Date (other than the financial statements and other
financial and statistical data contained therein, as to which
such counsel need express no opinion), when they became effective
or were filed with the Commission, as the case may be, complied
as to form in all material respects with the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder; and the Indenture
and the Guarantee conform in all material respects to the
requirements of the Trust Indenture Act and the applicable rules
and regulations thereunder.
(x) The statements contained in the Prospectus under the
caption "CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES"
are accurate in all material respects and constitute a fair
summary of the matters set forth therein;
15
(xi) To the best of such counsel's knowledge, there are no
contracts or other documents which are required to be described
in the Prospectus or filed as exhibits to the Registration
Statements by the Securities Act or by the Rules and Regulations
which have not been described or filed as exhibits to the
Registration Statements or incorporated therein by reference as
permitted by the Rules and Regulations.
(xii) This Agreement has been duly authorized, executed
and delivered by the Company.
(xiii) The execution, delivery and performance of this
Agreement, the Indenture, the Junior Subordinated Debentures, the
Declaration and the Guarantee Agreement by the Company and the
Trust, as applicable, and the consummation of the transactions
contemplated hereby and thereby, 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 material indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument
known to such counsel 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 Significant
Subsidiaries or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body
having jurisdiction over the Company or any of its Significant
Subsidiaries or any of their properties or assets; and, except
for the registration of the Securities under the Securities Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state securities laws in connection with the purchase
and distribution of the Capital Securities by the Underwriters,
no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body
is required for the execution, delivery and performance of this
Agreement the Declaration, the Guarantee Agreement, the Indenture
or the Junior Subordinated Securities by the Company or the
consummation by the Company of the transactions contemplated
herein and therein.
(xiv) The statements made in the Prospectus under the
captions "Description of Capital Securities", "Description of
Junior Subordinated Debentures", "The Trust", "Description of
Guarantee" and "Relationship Among the Capital Securities, the
Junior Subordinated Debentures and the Guarantee", insofar as
such statements purport to constitute summaries of the terms of
the Capital Securities, the Junior Subordinated Debentures and
the Guarantee Agreement, constitute accurate summaries of the
terms of such instruments in all material respects.
16
(xv) To the best of such counsel's knowledge, there are no
contracts, agreements or understandings between the Company and
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
Statements.
(xvi) Neither the Company nor the Trust is required to
register as an investment company under the Investment Company
Act as a result of the consummation of the transactions
contemplated by this Agreement, the Declaration, the Indenture,
the Junior Subordinated Debentures or the Guarantee Agreement.
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the Federal laws of the United States
of America, the laws of the State of Washington and the General
Corporation Law of Delaware. Such counsel shall also have furnished
to the Representative a written statement, addressed to the
Underwriters and dated the Closing Date, in form and substance
satisfactory to the Representative, to the effect that (x) such
counsel has acted as counsel to the Company on a regular basis
(although the Company is also represented by its General Counsel and
with respect to certain other matters, by other outside counsel), has
acted as counsel to the Company in connection with previous financing
transactions and has acted as counsel to the Company in connection
with the preparation of the Registration Statements, and (y) based on
the foregoing, no facts have come to the attention of such counsel
which lead it to believe that the Registration Statements, as of their
respective Effective Dates, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading, except that no view need be expressed as to the
financial statements and other financial and statistical data included
in the Registration Statements or the Prospectus.
(e) With respect to the letter of Deloitte & Touche LLP and Price
Waterhouse LLP delivered to the Representative concurrently with the
execution of this Agreement (the "initial letter"), the Company shall
have furnished to the Representative letters (the "bring-down
letters") of each of such accountants, addressed to the Underwriters
and dated the Closing Date (i) confirming that they are independent
public accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-down letter (or,
with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given
in the Prospectus, as of a date not more than five days prior to the
date of the bring-down letter), the conclusions and findings of such
firm with respect to the financial information and other matters
covered by the initial
17
letter and (iii) confirming in all material respects the conclusions
and findings set forth in the initial letter.
(f) Morris, Nichols, Arsht & ▇▇▇▇▇▇▇ shall have furnished to the
Representative its written opinion, as special Delaware counsel to the
Company and the Trust, addressed to the Underwriters and dated the
Closing Date, in form and substance satisfactory to the
Representative, to the effect that:
(i) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Business
Trust Act and, under the Declaration and the Delaware Business
Trust Act, has the business trust power and authority to own
property and to conduct its business, all as described in the
Prospectus, and to enter into and perform its obligations under
each of this Agreement, the Capital Securities, the Common
Securities and the Declaration.
(ii) The Common Securities have been duly authorized for
issuance by the Declaration, and, when issued and delivered by the
Trust to the Company as described in the Prospectus and the
Declaration, will be validly issued undivided beneficial interests
in the assets of the Trust; under the Declaration and the Delaware
Business Trust Act, the issuance of the Common Securities is not
subject to preemptive or other similar rights.
(iii) The Capital Securities have been duly authorized for
issuance by the Declaration and, when issued and delivered as set
forth in this Agreement and the Declaration, will be validly
issued and (subject to the qualifications set forth herein) fully
paid and non-assessable undivided beneficial interests in the
assets of the Trust, will be entitled to the benefits of the
Declaration, and the holders of the Capital Securities will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware; provided
that such counsel may note that the holders of Capital Securities
will be subject to the withholding provisions of Section 10.4 of
the Declaration and may be required to make payment or provide
indemnity or security as set forth in the Declaration.
(iv) Under the Declaration and the Delaware Business Trust
Act, all necessary trust action has been taken on the part of the
Trust to duly authorize the execution and delivery of this
Agreement by the Trust.
18
(v) Assuming the Declaration has been duly authorized,
executed and delivered by the Company and the Trustees, the
Declaration constitutes a valid and binding obligation of the
Company and the Trustees, and is enforceable against the Company
and the Trustees in accordance with its terms, except to the
extent that enforcement thereof may be limited by (A) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation,
fraudulent conveyance or transfer and other similar laws relating
to or affecting the rights and remedies of creditors generally,
(ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in
a proceeding in equity or at law), and (iii) the effect of
applicable public policy on the enforceability of provisions
relating to indemnification or contribution.
(vi) The execution, delivery and performance by the Trust
of this Agreement and the consummation by the Trust of the
transactions contemplated by this Agreement will not violate
(i) any of the provisions of the Certificate of Trust or the
Declaration or (ii) any applicable Delaware law or
administrative regulation. After due inquiry on May , 1997,
limited to, and solely to the extent disclosed thereupon, court
dockets for active cases of the Court of Chancery of the State of
Delaware in and for New Castle County, Delaware, of the Superior
Court of the State of Delaware in and for New Castle County,
Delaware, and of the United States District Court sitting in the
State of Delaware, such counsel is not aware of any legal or
governmental proceeding pending against the Trust.
(vii) Assuming that the Trust derives no income from or
connected with services provided within the State of Delaware
and has no assets, activities (other than having a Delaware
Trustee as required by the Delaware Business Trust Act and the
filing of documents with the Secretary of State of the State of
Delaware) or employees in the State of Delaware. No filing with,
or authorization, approval, consent, license, order, registration,
qualification or decree of, any Delaware court or Delaware
governmental authority or Delaware agency (other than as may be
required under the securities or blue sky laws of the State of
Delaware, as to which such counsel need express no opinion) is
necessary or required solely in connection with the due
authorization, execution and delivery of this Agreement by the
Trust or for the offering, issuance, sale or delivery of the
Securities by the Trust in accordance with the Declaration and
the Prospectus.
(g) The Company shall have furnished to the Representative a
certificate, dated the Closing Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating
that:
(i) The representations, warranties and agreements of the
Company and the Trust in Section 1 are true and correct as of the
Closing Date; the Company and the Trust have complied with all
their agreements contained herein; and the conditions set forth
in Section 7 have been fulfilled;
19
(ii) (A) Neither the Company nor any of its Significant
Subsidiaries has sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus and (B) since such date there
has not been any material change in the capital stock or
long-term debt of the Company or any of its Significant
Subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the
Prospectus; and
(iii) They have carefully examined the Registration
Statements and the Prospectus and, in their opinion (A) the
Registration Statements, as of their respective Effective Dates,
and the Prospectus, as of each of the Effective 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 the Effective Date of the Primary Registration Statement,
no event has occurred which should have been set forth in a
supplement or amendment to either of the Registration Statements
or the Prospectus.
(h)(i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus and (ii) since
such date there shall not have been any change in the capital stock or
long-term debt of the Company or any of its Significant Subsidiaries
or any change, or any development involving a prospective change, in
or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is, in the judgment of the
Representative, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities on the terms and in the manner contemplated in the
Prospectus.
(i) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the
Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization", as that term is defined
by the Commission for purposes of Rule 436(g)(2) of the Rules and
Regulations and (ii) no such organization shall have
20
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's
debt securities or preferred stock.
(j) 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 a
majority in interest of the several Underwriters, impracticable or
inadvisable to proceed with the public offering or delivery of the
Securities on the terms and in the manner contemplated in the
Prospectus.
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 satisfactory to counsel
for the Underwriters.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and the Trust, jointly and severally, shall indemnify
and hold harmless each Underwriter, its officers and employees and each person,
if any, who controls any Underwriter 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 Securities),
to which that Underwriter, 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, either of the Registration Statements or the Prospectus,
or in any amendment or supplement thereto, or (B) in any blue sky application or
other document prepared or executed by the Company or the Trust (or based upon
any written information furnished by the Company or the Trust) specifically for
the purpose of qualifying any or all of the Securities under the securities laws
of any state or other jurisdiction (any such application, document or
information being hereinafter called a "Blue Sky Application"), or (ii) the
omission or alleged omission to state in any Preliminary Prospectus, either of
the Registration Statements or the Prospectus, 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 each Underwriter and each such officer, employee and controlling
person promptly upon demand for any legal or other expenses reasonably incurred
21
by that Underwriter, 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 and the Trust 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 Statements
or the Prospectus, 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 through the Representative by or on behalf of any
Underwriter specifically for inclusion therein and described in Section 8(e).
The foregoing indemnity agreement is in addition to any liability which the
Company or the Trust may otherwise have to any Underwriter or to any officer,
employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company and the Trust, their officers and employees, each of
their 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 or the Trust or any such director, officer 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, either of the Registration Statements or the
Prospectus, 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, either of the Registration Statements or the Prospectus, 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 and
the Trust through the Representative by or on behalf of that Underwriter
specifically for inclusion therein and described in Section 8(e), and shall
reimburse the Company and the Trust and any such director, officer or
controlling person for any legal or other expenses reasonably incurred by the
Company or the Trust or any such director, officer 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.
The foregoing indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Company and the Trust or any such
director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under this Section
8 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 8, 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 8 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 8.
If any such claim or action shall be brought against an indemnified party, and
it shall
22
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 8 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
any indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in the
reasonable judgment of such counsel it is advisable for such indemnified party
to employ separate counsel or (iii) the indemnifying party has failed to assume
the defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for all such indemnified
parties, which firm shall be designated in writing by the Representative, if the
indemnified parties under this Section 8 consist of any Underwriter or any of
their respective officers, employees or controlling persons, or by the Company,
if the indemnified parties under this Section consist of the Company or the
Trust or any of the Company's or the Trust's directors, officers, employees or
controlling persons. 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 of liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(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
23
appropriate to reflect the relative benefits received by the Company and the
Trust on the one hand and the Underwriters on the other from the offering of the
Securities 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 and the Trust on the one hand and the Underwriters 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 and the Trust on the one hand and the Underwriters on the other with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Securities purchased under this
Agreement (before deducting expenses) received by the Company and the Trust, on
the one hand, and the total underwriting discounts and commissions received by
the Underwriters with respect to the shares of the Securities purchased under
this Agreement, on the other hand, bear to the total gross proceeds from the
offering of the shares of the Securities under this Agreement, in each case as
set forth in the table on the cover page of the Prospectus. The relative fault
shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company and the Trust or the
Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
For purposes of the preceding two sentences, the net proceeds deemed to be
received by the Company shall be deemed to be also for the benefit of the Trust
and information supplied by the Company shall also be deemed to have been
supplied by the Trust. The Company and the Trust and the Underwriters agree
that it would not be just and equitable if contributions pursuant to this
Section 8(d) were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) 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 8(d) shall be deemed to include, for purposes
of this Section 8(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 8(d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public was offered to the public exceeds the amount of any damages which such
Underwriter 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. The Underwriters' obligations to
contribute as provided in this Section 8(d) are several in proportion to their
respective underwriting obligations and not joint.
(e) The Underwriters severally confirm that the statements with
respect to the public offering of the Securities set forth on the cover page of,
and under the caption "Underwriting" in, the Prospectus are correct and
constitute the only information furnished in writing to the Company by or on
behalf of the Underwriters specifically for inclusion in the Registration
Statements and the Prospectus.
24
9. DEFAULTING UNDERWRITERS.
If, on the Closing Date, any Underwriter defaults in the performance
of its obligations under this Agreement, the remaining non-defaulting
Underwriters shall be obligated to purchase the Capital Securities which the
defaulting Underwriter agreed but failed to purchase on the Closing Date in the
respective proportions which the Capital Securities set opposite the name of
each remaining non-defaulting Underwriter in Schedule 1 hereto bears to the
total Capital Securities set opposite the names of all the remaining
non-defaulting Underwriters in Schedule 1 hereto; PROVIDED, HOWEVER, that the
remaining non-defaulting Underwriters shall not be obligated to purchase any of
the Capital Securities on the Closing Date if the total Capital Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total Capital Securities to be purchased on the
Closing Date, and any remaining non-defaulting Underwriter shall not be
obligated to purchase more than 110% of the Capital Securities which it agreed
to purchase on the Closing Date pursuant to the terms of Section 2. If the
foregoing maximums are exceeded, the remaining non-defaulting Underwriters, or
those other underwriters satisfactory to the Representative who so agree, shall
have the right, but shall not be obligated, to purchase, in such proportion as
may be agreed upon among them, all the Capital Securities to be purchased on the
Closing Date. If the remaining Underwriters or other underwriters satisfactory
to the Representative do not elect to purchase the Capital Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase on the
Closing Date, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company and the Trust, except that the
Company and the Trust will continue to be liable for the payment of expenses to
the extent set forth in Sections 6 and 11. As used in this Agreement, the term
"Underwriter" includes, for all purposes of this Agreement unless the context
requires otherwise, any party not listed in Schedule 1 hereto who, pursuant to
this Section 9, purchases the Capital Securities which a defaulting Underwriter
agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company or the Trust for damages caused by its
default. If other underwriters are obligated or agree to purchase the Capital
Securities of a defaulting or withdrawing Underwriter, either the
Representative, the Company or the Trust may postpone the Closing Date for up to
seven full business days in order to effect any changes that in the opinion of
counsel for the Company or counsel for the Underwriters may be necessary in the
Registration Statements, the Prospectus or in any other document or arrangement.
10. TERMINATION. The obligations of the Underwriters hereunder may
be terminated by the Representative by notice given to and received by the
Company and the Trust prior to delivery of and payment for the Capital
Securities if, prior to that time, any of the events described in Sections 7(h),
7(i) or 7(j) shall have occurred or if the Underwriters shall decline to
purchase the Capital Securities for any reason permitted under this Agreement.
11. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) the Company or
the Trust shall fail to tender the Securities for delivery to the Underwriters
for any reason permitted under this Agreement, or (b) the Underwriters shall
decline to purchase the Capital Securities for any reason permitted under this
Agreement (including the termination of this Agreement pursuant to Section 10)
the Company and the Trust shall reimburse the Underwriters for the fees and
25
expenses of their counsel and for such other out-of-pocket expenses as shall
have been incurred by them in connection with this Agreement and the proposed
purchase of the Capital Securities, and upon demand the Company and the Trust
shall pay the full amount thereof to the Representative. If this Agreement is
terminated pursuant to Section 9 by reason of the default of one or more
Underwriters, neither the Company nor the Trust shall be obligated to reimburse
any defaulting Underwriter on account of those expenses.
12. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to ▇▇▇▇▇▇ Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate
Department (Fax: ▇▇▇-▇▇▇-▇▇▇▇);
(b) if to the Company or to the Trust, shall be delivered or sent
by mail, telex or facsimile transmission to the address of the Company
set forth in the Primary Registration Statement, Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Fax: ▇▇▇-▇▇▇-▇▇▇▇);
PROVIDED, HOWEVER, that any notice to an Underwriter pursuant to Section 8(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representative, which address will be supplied to any other party hereto by the
Representative upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company and
the Trust shall be entitled to act and rely upon any request, consent, notice or
agreement given or made on behalf of the Underwriters by ▇▇▇▇▇▇ Brothers Inc.
13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company and
the Trust and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(A) the representations, warranties, indemnities and agreements of the Company
and the Trust contained in this Agreement shall also be deemed to be for the
benefit of the officers and employees of each Underwriter and the person or
persons, if any, who control each Underwriter within the meaning of Section 15
of the Securities Act and (B) the indemnity agreement of the Underwriters
contained in Section 8(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 in this Section 13, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
14. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Company and the Trust and the Underwriters
contained in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Securities 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.
26
15. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY". For
purposes of this Agreement,(a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF NEW YORK.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
27
If the foregoing correctly sets forth the agreement among the Company
and the Trust and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
WASHINGTON MUTUAL, INC.
By
----------------------------------
Name:
Title:
WASHINGTON MUTUAL CAPITAL I
By
----------------------------------
Name:
Title:
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
By
----------------------------------
AUTHORIZED REPRESENTATIVE
For itself and as Representative
of the several Underwriters named
in Schedule 1 hereto
SCHEDULE 1
Number of
Underwriters Shares
------------ ---------
▇▇▇▇▇▇ Brothers Inc. . . . . . . . . . . . . .
---------
Total . . . . . . . . . . . . . . . . . . . . . . . ---------
---------