<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 28, 1995
REGISTRATION NO. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
<TABLE>
<S> <C> <C>
GREAT WESTERN FINANCIAL
CORPORATION DELAWARE 95-1913457
GREAT WESTERN FINANCIAL
TRUST I DELAWARE TO BE APPLIED FOR
(EXACT NAME OF REGISTRANT AS (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
SPECIFIED IN ITS CHARTER) INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
---------------
9200 OAKDALE AVENUE
CHATSWORTH, CALIFORNIA 91311
(818) 775-3411
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANTS' PRINCIPAL EXECUTIVE OFFICES)
---------------
J. LANCE ERIKSON, ESQ.
EXECUTIVE VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
GREAT WESTERN FINANCIAL CORPORATION
9200 OAKDALE AVENUE
CHATSWORTH, CALIFORNIA 91311
(818) 775-3411
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement as determined by
market conditions.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
TITLE OF EACH CLASS OF PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED AGGREGATE OFFERING PRICE REGISTRATION FEE
- -------------------------------------------------------------------------------
<S> <C> <C>
Debt Securities.................... (1)(2) NA
- -------------------------------------------------------------------------------
Preferred Stock ($1.00 par value).. (1)(3) NA
- -------------------------------------------------------------------------------
Depositary Shares.................. (1)(3)(4) NA
- -------------------------------------------------------------------------------
Common Stock ($1.00 par value)..... (1)(5) NA
- -------------------------------------------------------------------------------
Preferred Securities of Great
Western Financial Trust I......... (1)(6) NA
- -------------------------------------------------------------------------------
Guarantee of Preferred Securities of
Great Western Financial Trust I... (1)(7) NA
- -------------------------------------------------------------------------------
Securities Warrants................ (1)(8) NA
- -------------------------------------------------------------------------------
Total.............................. $750,000,000 $77,586(9)
- -------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
</TABLE>
(footnotes on following page)
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
(footnotes from preceding page)
(1) In no event will the aggregate maximum offering price of all securities
issued pursuant to this Registration Statement exceed $750,000,000 (or its
equivalent in foreign currency) or, if any Debt Securities are issued with
original issue discount, such greater amount as shall result in an
aggregate offering price of $750,000,000 (or its equivalent in foreign
currency). Any securities registered hereunder may be sold separately or as
units with other securities registered hereunder.
(2) Subject to Footnote (1), there is being registered hereunder an
indeterminate principal amount of Debt Securities (which may be senior or
subordinated). Without limiting the generality of the forgoing,
Subordinated Debt Securities may be issued and sold to Great Western
Financial Trust I, in which event such Subordinated Debt Securities may
later be distributed to the holders of Preferred Securities upon a
dissolution of Great Western Financial Trust I.
(3) Subject to Footnote (1), there is being registered hereunder an
indeterminate number of shares of Preferred Stock (par value $1.00 per
share) as may be sold, from time to time, by Great Western Financial
Corporation ("GWFC"). There is also being registered hereunder an
indeterminate number of shares of Preferred Stock and Depositary Shares as
shall be issuable upon conversion of Debt Securities registered hereby.
(4) Subject to Footnote (1), there is being registered hereunder an
indeterminate number of Depositary Shares to be issued pursuant to one or
more Deposit Agreements. In the event GWFC elects to offer to the public
fractional interests in shares of the Preferred Stock registered hereunder,
Depositary Receipts will be distributed to those persons purchasing such
fractional interests, and the shares of Preferred Stock will be issued to
the Depositary under any such Deposit Agreement.
(5) Subject to Footnote (1), there is being registered hereunder an
indeterminate number of shares of Common Stock as may be sold, from time to
time, by GWFC (including Rights appurtenant thereto). There is also being
registered hereunder an indeterminate number of shares of Common Stock
(including Rights appurtenant thereto) as shall be issuable upon conversion
of the Preferred Stock or Debt Securities registered hereby.
(6) Subject to Footnote (1), there is being registered hereunder an
indeterminate number of Preferred Securities as may be sold, from time to
time, by Great Western Financial Trust I.
(7) No separate consideration will be received for the Guarantee.
(8) Subject to Footnote (1), there is being registered hereunder an
indeterminate number of Senior Debt Securities Warrants, Subordinated Debt
Securities Warrants, Preferred Stock Warrants, Depositary Shares Warrants
and Common Stock Warrants representing rights to purchase Senior Debt
Securities, Subordinated Debt Securities, Preferred Stock, Depositary
Shares and Common Stock, respectively, registered pursuant to this
Registration Statement.
(9) Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933, as amended. Includes $525,000,000 aggregate amount
of Securities which were previously registered under Great Western
Financial Corporation's Registration Statement on Form S-3 (Registration
No. 33-60206). The registration statement fee specified in the table has
been computed on the basis of $225,000,000 aggregate amount of Securities
registered hereby, prior to including the previously registered and unsold
Securities referred to above.
THIS REGISTRATION STATEMENT INCLUDES $525,000,000 AGGREGATE AMOUNT OF
SECURITIES WHICH WERE PREVIOUSLY REGISTERED UNDER GREAT WESTERN FINANCIAL
CORPORATION'S REGISTRATION STATEMENT ON FORM S-3 (33-60206) AND REMAIN UNSOLD
AS OF THE DATE HEREOF. AS PERMITTED BY RULE 429, THE PROSPECTUS WITH RESPECT TO
THIS REGISTRATION STATEMENT ALSO RELATES TO THE PREVIOUSLY UNSOLD SECURITIES
COVERED HEREBY.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED SEPTEMBER 28, 1995
PROSPECTUS
[LOGO OF GREAT WESTERN FINANCIAL CORPORATION]
GREAT WESTERN FINANCIAL CORPORATION
GREAT WESTERN FINANCIAL TRUST I
SECURITIES
Great Western Financial Corporation (the "Company") may offer from time to
time, in one or more series, its unsecured senior debt securities (the "Senior
Debt Securities"), warrants to purchase Senior Debt Securities (the "Senior
Debt Securities Warrants"), its unsecured subordinated debt securities (the
"Subordinated Debt Securities"), warrants to purchase Subordinated Debt
Securities (the "Subordinated Debt Securities Warrants"), shares of its
Preferred Stock, par value $1.00 per share (the "Preferred Stock"), warrants to
purchase Preferred Stock (the "Preferred Stock Warrants"), warrants to purchase
Depositary Shares (as defined below) (the "Depositary Shares Warrants"), shares
of its Common Stock, par value $1.00 per share (the "Common Stock"), and
warrants to purchase Common Stock (the "Common Stock Warrants," and with the
Senior Debt Securities Warrants, the Subordinated Debt Securities Warrants, the
Preferred Stock Warrants and the Depositary Shares Warrants, being collectively
referred to herein as the "Securities Warrants"). Great Western Financial Trust
I (the "Trust") may offer from time to time preferred securities representing
undivided beneficial interests in the assets of the Trust (the "Preferred
Securities"). The Senior Debt Securities, the Subordinated Debt Securities, the
Preferred Stock, the Common Stock, the Securities Warrants and the Preferred
Securities are collectively referred to herein as the "Securities." Securities
will have an aggregate offering price of $750,000,000 and will be offered on
terms to be determined at the time of offering.
In the case of Senior Debt Securities or Subordinated Debt Securities
(collectively, the "Debt Securities"), the specific title, the aggregate
principal amount, the purchase price, the maturity, the rate (or method of
calculation) and time of payment of any interest, if any, the right of the
Company, if any, to defer payment of interest on the Debt Securities and the
maximum length of such deferral period, any redemption or sinking fund
provisions, any conversion provisions and any other specific term of the Debt
Securities will be set forth in the accompanying supplement to this Prospectus
(the "Prospectus Supplement"). In the case of Preferred Stock, the specific
number of shares, designation, stated value per share, liquidation preference
per share, issuance price, dividend rate (or method of calculation), dividend
payment dates, any redemption or sinking fund provisions, any conversion rights
and other specific terms of the series of Preferred Stock will be set forth in
the accompanying Prospectus Supplement. In addition, the Prospectus Supplement
will describe whether interests in the Preferred Stock will be represented by
depositary shares (the "Depositary Shares") evidenced by depositary receipts.
In the case of Common Stock, the specific number of shares and issuance price
per share will be set forth in the accompanying Prospectus Supplement. In the
case of Securities Warrants, the duration, offering price, exercise price and
detachability, if applicable, will be set forth in the accompanying Prospectus
Supplement. In the case of Preferred Securities, the designation, number of
securities, liquidation preference per security, purchase price, distribution
rate (or method of calculation thereof), dates on which distributions shall be
payable and dates from which distributions shall accrue, any voting rights,
terms for any conversion or exchange into other securities, any redemption,
exchange or sinking fund provisions and any other rights, preferences,
privileges, limitations or restrictions related to the Preferred Securities and
the terms upon which the proceeds of the sale of the Preferred Securities shall
be used to purchase Subordinated Debt Securities of the Company will be set
forth in the accompanying Prospectus Supplement. The Prospectus Supplement will
also disclose whether the Securities will be listed on a national securities
exchange and if they are not to be listed, the possible effects thereof on
their marketability.
Securities may be sold directly, through agents from time to time or through
underwriters and/or dealers. If any agent of the Company or the Trust or any
underwriter is involved in the sale of the Securities, the name of such agent
or underwriter and any applicable commission or discount will be set forth in
the accompanying Prospectus Supplement. See "Plan of Distribution."
The Senior Debt Securities, if issued, will rank on a parity with all other
unsecured and unsubordinated indebtedness of the Company. The Subordinated Debt
Securities, if issued, will be unsecured and subordinated to all present and
future Senior Indebtedness (as defined) of the Company. See "Description of
Debt Securities."
THE SECURITIES WILL NOT BE SAVINGS ACCOUNTS OR DEPOSITS AND WILL NOT BE
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE UNITED STATES OR ANY
AGENCY OR FUND OF THE UNITED STATES.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
, 1995
<PAGE>
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE COMMISSIONER OF
INSURANCE FOR THE STATE OF NORTH CAROLINA, NOR HAS THE COMMISSIONER OF
INSURANCE RULED UPON THE ACCURACY OR THE ADEQUACY OF THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT HERETO.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and, in accordance therewith, files
reports, proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy statements and
other information can be inspected and copied at Room 1024 of the offices of
the Commission, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549, and should be available for inspection and copying at the regional
offices of the Commission located at Seven World Trade Center, 13th Floor, New
York, New York 10048 and Suite 1400, Citicorp Center, 500 West Madison Street,
Chicago, Illinois 60661. Copies of such material can be obtained from the
principal offices of the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. Reports, proxy materials and other
information concerning the Company may also be inspected at the offices of the
New York Stock Exchange, 20 Broad Street, New York, New York 10005, at the
office of the Pacific Stock Exchange, 301 Pine Street, San Francisco,
California 94104, and at the offices of The International Stock Exchange of the
United Kingdom and the Republic of Ireland.
No separate financial statements of the Trust have been included herein. The
Company does not consider that such financial statements would be material to
holders of the Preferred Securities because (i) all of the voting securities of
the Trust will be owned directly or indirectly by the Company, a reporting
company under the Exchange Act, (ii) the Trust has no independent operations
but exists for the sole purpose of issuing securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in Subordinated Debt Securities issued by the Company, and (iii) the
obligations of the Trust under the Trust Securities (as defined herein) are
fully and unconditionally guaranteed by the Company to the extent that the
Trust has funds available to meet such obligations. For financial statement
purposes, the Trust will be consolidated with the Company. See "Description of
Debt Securities--Particular Terms of the Subordinated Debt Securities Issued to
the Trust" and "Description of Guarantee."
This Prospectus does not contain all the information set forth in the
Registration Statement and exhibits thereto which the Company has filed with
the Commission under the Securities Act of 1933, and reference is hereby made
to such Registration Statement, including the exhibits thereto.
----------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are incorporated herein by reference the following documents of the
Company filed with the Commission: (1) Annual Report on Form 10-K for the
fiscal year ended December 31, 1994; (2) Quarterly Report on Form 10-Q for the
quarters ended March 31, 1995 and June 30, 1995; (3) Current Report on Form 8-K
dated June 30, 1995; and (4) all documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
of this Prospectus and prior to the termination of the offering of the
Securities.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement
2
<PAGE>
contained herein, in a Prospectus Supplement or in any subsequently filed
document which is incorporated by reference herein modifies or supersedes such
statements. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial holder, to whom a copy of this Prospectus is delivered, upon the
written or oral request of any such person, a copy of any or all the foregoing
documents incorporated by reference herein, including exhibits specifically
incorporated by reference in such documents but excluding all other exhibits to
such documents. Requests should be made to the Corporate Secretary of the
Company at 9200 Oakland Avenue, Chatsworth, California 91311, telephone number
(818) 775-3411.
3
<PAGE>
THE COMPANY
GENERAL
The Company is a savings and loan holding company organized in 1955 under the
laws of the State of Delaware. The principal assets of the Company are the
capital stock of Great Western Bank, a Federal Savings Bank ("GWB") and
Aristar, Inc. ("Aristar"). GWB is a federally chartered stock savings bank. GWB
conducts most of its retail banking through approximately 418 offices located
primarily in California and Florida. Real estate lending operations are
conducted directly by GWB or by direct subsidiaries through approximately 254
offices in 23 states with concentration in California, Florida and Washington.
Directly or through its subsidiaries, GWB also engages in mortgage banking, and
other related financial services. Aristar conducts consumer finance operations
through 476 offices in 21 states, most of which operate principally under the
names Blazer Financial Services or City Finance and provide direct installment
loans and related credit insurance services and purchase retail installment
contracts. At June 30, 1995, the Company had consolidated total assets of
approximately $44.5 billion.
GWB is regulated by the Office of Thrift Supervision ("OTS") and the Federal
Deposit Insurance Corporation ("FDIC") which, through the Savings Association
Insurance Fund, insures the deposit accounts of savings associations. GWB is a
member of the Federal Home Loan Bank of San Francisco, which is one of several
regional banks for federally insured savings institutions comprising the
Federal Home Loan Bank System. GWB is further subject to certain regulations of
the Board of Governors of the Federal Reserve System governing reserves
required to be maintained against deposits and other matters.
The Company is a legal entity separate and distinct from GWB. The principal
source of the Company's revenues on an unconsolidated basis has been dividends,
interest and management fees from GWB. Various statutory and regulatory
restrictions and tax considerations, however, can limit, directly or
indirectly, the amount of dividends, interest and management fees payable by
GWB. Dividends from Aristar continue to be a source of revenue to the Company.
The operations of savings associations such as GWB are significantly
influenced by general economic conditions, the monetary and fiscal policies of
the federal government, and the policies of regulatory authorities, including
the Federal Reserve Board, the OTS and the FDIC. Deposit flows and costs of
funds are influenced by interest rates on competing investments and general
market rates of interest. The Company competes with commercial banks and other
financial intermediaries for funds. Lending and other investment activities are
affected by the demand for mortgage financing and consumer and other types of
loans, which in turn are affected by the interest rates at which such financing
may be offered and other factors affecting the supply of housing and the
availability of funds.
The Company from time to time engages in merger discussions with other
financial institutions and reviews various acquisition opportunities, including
transactions with governmental agencies. No assurances can be given that the
Company will complete any particular transaction.
The Company's executive offices are located at 9200 Oakdale Avenue,
Chatsworth, California 91311, and its telephone number is (818) 775-3411.
THE TRUST
The Trust is a statutory business trust formed under Delaware law pursuant to
(i) a declaration of trust (the "Declaration") executed by the Company, as
sponsor for the Trust (the "Sponsor"), and Trustees (as defined herein) of the
Trust and (ii) the filing of a certificate of trust with the Secretary of State
of the State of Delaware on September 27, 1995. The Trust exists for the
exclusive purpose of (i) issuing the Preferred Securities and common securities
representing undivided beneficial interests in the assets of the Trust (the
"Common Securities" and, together with the Preferred Securities, the "Trust
Securities"), (ii) investing the
4
<PAGE>
gross proceeds from the sale of the Trust Securities in Subordinated Debt
Securities of the Company and (iii) engaging in only those other activities
necessary or incidental thereto. All of the Common Securities will be directly
or indirectly owned by the Company. The Common Securities will rank pari passu,
and payments will be made thereon pro rata with the Preferred Securities,
except that, upon an event of default under the Declaration, the rights of the
holders of the Common Securities to payment in respect of distributions and
payments upon liquidation, redemption and otherwise will be subordinated to the
rights of the holders of the Preferred Securities. The Company will directly or
indirectly acquire Common Securities in an aggregate liquidation amount equal
to 3% of the total capital of the Trust. The Trust has a term of approximately
55 years but may terminate earlier, as provided in the Declaration.
The Trust's business and affairs will be conducted by the trustees (the
"Trustees") appointed by the Company as the direct or indirect holder of all
the Common Securities. The holder of the Common Securities will be entitled to
appoint, remove or replace any of, or increase or reduce the number of, the
Trustees of the Trust. The duties and obligations of the Trustees shall be
governed by the Declaration. A majority of the Trustees of the Trust will be
persons who are employees or officers of, or who are affiliated with, the
Company (the "Regular Trustees"). One Trustee of the Trust will be either a
natural person who is a resident of the State of Delaware or an entity which
has its principal place of business in the State of Delaware (the "Delaware
Trustee"). A financial institution that is not affiliated with the Company and
has a specified minimum amount of aggregate capital, surplus and undivided
profits of not less than $50,000,000 shall act as property trustee and as
indenture trustee for the purposes of the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), pursuant to the terms set forth in a
Prospectus Supplement (the "Property Trustee"). The Property Trustee will be
the only trustee of the Trust that will be a trustee for purposes of the Trust
Indenture Act. The Company will pay all debts and obligations of the Trust
(other than with respect to Trust Securities) and all fees and expenses related
to the Trust and the offering of the Trust Securities. The initial Delaware
Trustee for the Trust is Michael J. Majchrzak, FCC National Bank, 300 King
Street, Wilmington, Delaware 19801. The initial Property Trustee is The First
National Bank of Chicago, One First National Plaza, Suite 0126, Chicago,
Illinois 60670-0126. The address for the Trust is c/o Great Western Financial
Corporation, the Sponsor of the Trust, at the Company's corporate headquarters
at 9200 Oakdale Avenue, Chatsworth, California 91311.
USE OF PROCEEDS
Except as otherwise disclosed in the accompanying Prospectus Supplement, the
net proceeds from the sale of the Securities by the Company (including the sale
of any Subordinated Debt Securities to the Trust) are intended to be used for
general corporate purposes, which may include lending and investment
activities, repayment or purchase of outstanding debt, investments in or
extensions of credit to subsidiaries or development of new business. The Trust
will use all proceeds received from the sale of Preferred Securities to
purchase Subordinated Debt Securities from the Company.
5
<PAGE>
SELECTED FINANCIAL DATA
The following table sets forth selected financial and other data for the
Company and its consolidated subsidiaries for the periods indicated. Such
information is qualified in its entirety by the more detailed financial
information set forth in the financial statements and the notes thereto
incorporated by reference herein. See "Incorporation of Certain Documents by
Reference."
<TABLE>
<CAPTION>
AT OR FOR THE YEAR ENDED DECEMBER 31,
-----------------------------------------------------------
1994 1993 1992 1991 1990
----------- ----------- ----------- ----------- -----------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE)
<S> <C> <C> <C> <C> <C>
SUMMARY OF OPERATIONS
Interest income......... $ 2,629,718 $ 2,680,784 $ 3,091,093 $ 3,718,796 $ 4,073,085
Interest expense........ 1,307,448 1,297,930 1,668,731 2,453,540 2,905,134
----------- ----------- ----------- ----------- -----------
Net interest income..... 1,322,270 1,382,854 1,422,362 1,265,256 1,167,951
Provision for loan
losses................. 207,200 463,000 420,000 149,900 285,000
----------- ----------- ----------- ----------- -----------
Net interest income
after provision for
loan losses............ 1,115,070 919,854 1,002,362 1,115,356 882,951
Other income............ 367,897 327,855 282,131 257,582 192,393
Noninterest expense..... 1,076,433 1,155,662 1,188,981 867,508 799,670
----------- ----------- ----------- ----------- -----------
Earnings before taxes on
income................. 406,534 92,047 95,512 505,430 275,674
Federal and state taxes
on income.............. 155,300 30,000 41,600 207,300 148,600
Accounting changes...... -- -- 31,094 -- --
----------- ----------- ----------- ----------- -----------
Net earnings............ $ 251,234 $ 62,047 $ 85,006 $ 298,130 $ 127,074
=========== =========== =========== =========== ===========
SUMMARY OF FINANCIAL
CONDITION
Cash and securities..... $ 2,065,660 $ 1,846,780 $ 1,660,485 $ 1,397,529 $ 1,819,823
Loans receivable and
mortgage-backed
securities............. 37,647,975 33,850,799 33,752,661 35,115,730 34,767,295
Real estate............. 256,967 434,077 1,153,383 1,123,043 960,815
Other assets............ 2,247,655 2,216,704 1,872,657 1,963,326 1,857,874
----------- ----------- ----------- ----------- -----------
Total assets............ $42,218,257 $38,348,360 $38,439,186 $39,599,628 $39,405,807
=========== =========== =========== =========== ===========
Customer accounts....... $28,700,947 $31,531,563 $30,908,665 $30,570,368 $29,649,038
Borrowings and
debentures............. 10,120,660 3,479,341 4,151,052 5,592,453 6,539,388
Other liabilities....... 912,864 914,055 929,735 1,115,747 1,207,539
Stockholders' equity.... 2,483,786 2,423,401 2,449,734 2,321,060 2,009,842
----------- ----------- ----------- ----------- -----------
Total liabilities and
equity................. $42,218,257 $38,348,360 $38,439,186 $39,599,628 $39,405,807
=========== =========== =========== =========== ===========
PER COMMON SHARE DATA
Fully diluted earnings.. $ 1.69 $ .28 $ .53 $ 2.24 $ .99
Dividends............... .92 .92 .91 .87 .83
</TABLE>
6
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for the
Company for each of the periods indicated. Earnings represent earnings before
income taxes, accounting changes and fixed charges. Fixed charges, excluding
interest on customer accounts, represent other interest expense (including
capitalized interest) and one-third (the proportion deemed representative of
the interest factor) of rents. Fixed charges, including interest on customer
accounts, represent all interest expense (including capitalized interest) and
one-third of rents.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31
------------------------
1994 1993 1992 1991 1990
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Excluding interest on customer accounts................ 2.05 1.23 1.26 1.96 1.30
Including interest on customer accounts................ 1.30 1.07 1.05 1.20 1.09
</TABLE>
DESCRIPTION OF DEBT SECURITIES
Senior Debt Securities may be issued from time to time in series under an
Indenture dated as of September 12, 1990, between the Company and First
Interstate Bank, Ltd., as amended and supplemented by a First Supplemental
Indenture, dated April 30, 1993 (as amended and supplemented, the "Senior
Indenture"), among the Company, First Interstate Bank, Ltd. and Citibank, N.A.,
as Trustee (the "Senior Trustee"). Subordinated Debt Securities may be issued
from time to time in series under an Indenture dated as of September 12, 1990,
as amended and supplemented by a First Supplemental Indenture, dated April 30,
1993 (as amended and supplemented, the "Subordinated Indenture"), between the
Company and Harris Trust and Savings Bank, as Trustee (the "Subordinated
Trustee"). The Senior Indenture and the Subordinated Indenture are sometimes
referred to collectively as the "Indentures," and the Senior Trustee and the
Subordinated Trustee are sometimes referred to collectively as the "Indenture
Trustees." As used under this caption, unless the context otherwise requires,
Offered Senior Debt Securities, Offered Subordinated Debt Securities and
Offered Debt Securities shall mean the Senior Debt Securities, the Subordinated
Debt Securities and the Debt Securities, respectively, offered by this
Prospectus and the accompanying Prospectus Supplement. The statements under
this caption are brief summaries of certain provisions contained in the
Indentures, do not purport to be complete and are qualified in their entirety
by reference to the Indentures, including the definition therein of certain
terms, copies of which are incorporated by reference as exhibits to the
Registration Statement of which this Prospectus is a part. The following sets
forth certain general terms and provisions of the Debt Securities. Further
terms of the Offered Debt Securities will be set forth in the Prospectus
Supplement.
GENERAL
Each Indenture provides for the issuance of Debt Securities in series, and
does not limit the principal amount of Debt Securities which may be issued
thereunder. The Debt Securities will not be savings accounts or deposits and
will not be insured by the Federal Deposit Insurance Corporation, the United
States or any agency or fund of the United States.
Reference is made to the Prospectus Supplement for the following terms of the
Offered Debt Securities: (1) the specific title of the Offered Debt Securities;
(2) whether the Offered Debt Securities are Senior Debt Securities or
Subordinated Debt Securities; (3) the aggregate principal amount of the Offered
Debt Securities; (4) the percentage of their principal amount at which the
Offered Debt Securities will be issued; (5) the date on which the Offered Debt
Securities will mature; (6) the rate or rates per annum or the method for
determining such rate or rates, if any, at which the Offered Debt Securities
will bear interest; (7) the times at which any such interest will be payable;
(8) any provisions relating to optional or mandatory redemption of the Offered
Debt Securities at the option of the Company or pursuant to sinking fund or
analogous provisions; (9) the denominations in which the Offered Debt
Securities are authorized to be issued; (10) any provisions relating to the
conversion or exchange of the Offered Debt Securities into Common Stock,
Preferred Stock or
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into Debt Securities of another series; (11) whether the Offered Debt
Securities are to be issued in fully registered form without coupons or in
bearer form with interest coupons or both; (12) whether the Offered Debt
Securities are denominated in United States dollars or a foreign currency or
units of two or more of such foreign currencies and whether interest is payable
in a currency other than the currency in which the Offered Debt Securities are
denominated; (13) the place or places at which the Company will make payments
of principal (and premium, if any) and interest, if any, and the method of such
payment; (14) whether the Offered Debt Securities will be issued in whole or in
part in global form; (15) any additional covenants and Events of Default and
the remedies with respect thereto not currently set forth in the respective
Indenture; and (16) any other specific terms of the Offered Debt Securities.
The applicable Prospectus Supplement with respect to a series of Offered
Subordinated Debt Securities issued by the Company to the Trust will describe
the rights, if any, of the Company to defer payments of interest on the Offered
Subordinated Debt Securities by extending the interest payment period, and the
duration of any such extensions.
One or more series of the Debt Securities may be issued as discounted Debt
Securities (bearing no interest or bearing interest at a rate which at the time
of issuance is below market rates) to be sold at a substantial discount below
their stated principal amount. Tax and other special considerations applicable
to any such discounted Debt Securities will be described in the Prospectus
Supplement relating thereto.
STATUS OF SENIOR DEBT SECURITIES
The Senior Debt Securities will be unsecured and unsubordinated obligations
of the Company and will rank on a parity with all other unsecured and
unsubordinated indebtedness of the Company. However, since the Company is a
savings and loan holding company, the right of the Company, and hence the right
of creditors of the Company (including the holders of the Senior Debt
Securities), to participate in any distribution of the assets of any subsidiary
upon its liquidation or reorganization or otherwise is necessarily subject to
the prior claims of creditors of the subsidiary, except to the extent that
claims of the Company itself as a creditor of the subsidiary may be recognized.
In addition, dividends, loans and advances from certain subsidiaries, including
GWB, to the Company are subject to statutory and regulatory restrictions and
tax considerations.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
The obligations of the Company pursuant to Subordinated Debt Securities will
be subordinate in right of payment to all Senior Indebtedness of the Company.
"Senior Indebtedness" of the Company is defined to mean the principal of, and
premium, if any, and interest (including interest accruing subsequent to the
commencement of any proceeding for the bankruptcy or reorganization of the
Company under any applicable bankruptcy, insolvency or similar law now or
hereafter in effect) on (a) all indebtedness of the Company whether heretofore
or hereafter incurred (i) for borrowed money or (ii) incurred in connection
with the acquisition by the Company or a subsidiary of assets other than in the
ordinary course of business, for the payment of which the Company is liable
directly or indirectly by guarantee, letter of credit, obligation to purchase
or acquire or otherwise, or the payment of which is secured by a lien, charge
or encumbrance on assets acquired by the Company unless the terms of the
instrument evidencing such indebtedness or pursuant to which such indebtedness
is issued specifically provide that such indebtedness is not superior in right
of payment to the Subordinated Debt Securities, (b) amendments, modifications,
renewals, extensions and deferrals of any such indebtedness, and (c) any
indebtedness issued in exchange for any such indebtedness. The Subordinated
Indenture does not contain any limitations on the amount of Senior Indebtedness
which may be hereafter incurred by the Company.
No payment pursuant to the Subordinated Debt Securities may be made unless
all amounts of principal (and premium, if any) and interest then due on all
Senior Indebtedness of the Company shall have been paid in full or if there
shall have occurred and be continuing beyond any applicable grace period a
default in any
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payment with respect to any such Senior Indebtedness, or if there shall have
occurred any event of default with respect to any Senior Indebtedness
permitting the holders thereof to accelerate the maturity thereof, or if any
judicial proceeding shall be pending with respect to any such default. Upon any
distribution of the assets of the Company upon dissolution, winding-up,
liquidation or reorganization, the holders of Senior Indebtedness of the
Company will be entitled to receive payment in full of principal, premium, if
any, and interest (including interest accruing subsequent to the commencement
of any proceeding for the bankruptcy or reorganization of the Company under any
applicable bankruptcy, insolvency or similar law now or hereafter in effect)
before any payment is made on the Subordinated Debt Securities. By reason of
such subordination, in the event of insolvency of the Company, holders of
Senior Indebtedness of the Company may receive more, ratably, and holders of
the Subordinated Debt Securities having a claim pursuant to the Subordinated
Debt Securities may receive less, ratably, than the other creditors of the
Company. Such subordination will not prevent the occurrence of any Event of
Default in respect of the Subordinated Debt Securities.
CONVERSION RIGHTS
The terms, if any, on which Debt Securities of a series may be exchanged for
or converted into shares of Common Stock, Preferred Stock or Debt Securities of
another series will be set forth in the Prospectus Supplement relating thereto.
ABSENCE OF RESTRICTIVE COVENANTS
The Company is not restricted by the Indentures from paying dividends or from
incurring, assuming or becoming liable for any type of debt or other
obligations or, except as noted below, from creating liens on its property for
any purpose. The Indentures do not require the maintenance of any financial
ratios or specified levels of net worth or liquidity. Except as set forth in
the Indenture and described under the heading "Covenants for Debt Securities"
below, there are no provisions of the Indentures which afford holders of the
Debt Securities protection in the event of a highly leveraged transaction
involving the Company.
COVENANTS FOR DEBT SECURITIES
With respect to both the Senior Debt Securities and the Subordinated Debt
Securities, the Indentures contain the following covenants:
Limitations on Liens. The Company may not create, assume, incur or permit to
exist any indebtedness for borrowed money secured by a pledge, lien or other
encumbrance (except for certain liens specifically permitted by the Indentures,
including liens in favor of the United States or any state thereof) on the
Voting Stock (as defined in the Indentures) of GWB owned directly or indirectly
by the Company without making effective provision whereby the outstanding Debt
Securities will be secured equally and ratably with such secured indebtedness,
except that the foregoing shall not restrict any such pledge, lien or other
encumbrance if (i) GWB (having obtained any necessary regulatory approval) has
guaranteed payment of the principal of and interest on the outstanding Debt
Securities, or (ii) after giving effect to such pledge, lien or other
encumbrance, the Company will own directly or indirectly more than 80% of the
outstanding shares of the Voting Stock (except for directors' qualifying
shares) of GWB (which term includes any successor by merger, assumption,
conversion or otherwise) free of any such pledge, lien or other encumbrance.
Limitations on Disposition of Voting Stock of, and Merger and Sale of Assets
by, GWB. The Company (which term includes any successor by merger, assumption
or otherwise) will own directly or indirectly more than 80% of the outstanding
shares of the Voting Stock (except for directors' qualifying shares) of GWB
(which term includes any successor by merger, assumption, conversion or
otherwise); except that the foregoing shall not restrict (i) any transfer where
the proceeds are invested, within 30 days of such transfer, in an 80% owned
subsidiary (including any corporation or other entity which upon such
investment becomes such a subsidiary) engaged principally in a savings, banking
or other depository institution business, (ii) any
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disposition in exchange for (or in connection with which the Company becomes
the owner of) more than 80% of the stock of any savings, banking or other
depository institutions, or (iii) any transfer following a guarantee by GWB
(having obtained any necessary regulatory approval) of payment of the principal
of and interest on the outstanding Debt Securities.
EVENTS OF DEFAULT
An Event of Default with respect to Debt Securities of any series is defined
in each of the Indentures as being: (a) failure to pay principal of or any
premium on any Debt Security of that series when due; (b) failure to pay any
interest on any Debt Security of that series when due, continued for 30 days;
(c) failure to deposit any sinking fund payment when due, in respect of any
Debt Security of that series; (d) failure to perform any other covenant of the
Company in the Indenture (other than a covenant included in the Indenture
solely for the benefit of one or more series of Debt Securities other than that
series), continued for 60 days after written notice as provided in the
Indenture; (e) certain events of bankruptcy, insolvency, conservatorship,
receivership or reorganization of the Company; (f) a default under any
mortgage, indenture or instrument evidencing any indebtedness for borrowed
money by the Company (including the Indenture) resulting in an aggregate
principal amount exceeding $10,000,000 becoming or being declared due and
payable prior to its maturity date or constituting a failure to pay at maturity
an aggregate principal amount exceeding $10,000,000, unless such acceleration
has been rescinded or annulled or such indebtedness has been discharged within
10 days after written notice to the Company by the Indenture Trustee or Holders
of at least 25% in aggregate principal amount of the outstanding Debt
Securities declaring a default of the Company is contesting the validity of
such default in good faith by appropriate proceedings; and (g) any other Event
of Default provided with respect to the Debt Securities of that series.
If an Event of Default with respect to the outstanding Debt Securities of any
series occurs and is continuing, either the Indenture Trustee or the Holders of
at least 25% in aggregate principal amount of the outstanding Debt Securities
of that series may declare the principal amount (or, if the Debt Securities of
that series are original issue discount Debt Securities, such portion of the
principal amount as may be specified in the terms of that series) of all the
outstanding Debt Securities of that series to be due and payable immediately.
At any time after the declaration of acceleration with respect to the Debt
Securities of any series has been made, but before a judgment or decree based
on acceleration has been obtained, the Holders of a majority in aggregate
principal amount of the outstanding Debt Securities of that series may, under
certain circumstances, rescind and annul such acceleration.
The Indentures provide that, subject to the duty of the Indenture Trustee
during default to act with the required standard of care, the Indenture Trustee
will be under no obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the Holders, unless such
Holders shall have offered to the Indenture Trustee reasonable indemnity.
Subject to such provisions for the indemnification of the Indenture Trustee and
subject to certain limitations, the Holders of a majority in aggregate
principal amount of the outstanding Debt Securities of any series will have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Indenture Trustee, or exercising any trust or power
conferred on the Indenture Trustee, with respect to the Debt Securities of that
series.
The Company is required to furnish to the Indenture Trustees annually a
statement as to the performance by the Company of certain of its obligations
under the Indentures and as to any default in such performance.
MODIFICATION AND WAIVER
Modifications and amendments of each of the Indentures may be made by the
Company and the respective Indenture Trustee without the consent of any Holders
to, among other things, (a) evidence the succession of another corporation to
the Company, (b) add to the covenants of the Company or surrender any right or
power conferred upon the Company, (c) cure any ambiguity, correct or supplement
any provision
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which may be defective or inconsistent or make any other provisions, provided
that such action does not adversely affect the interests of the Holders of Debt
Securities of any series in any material respect, or (d) evidence and provide
for a successor Indenture Trustee.
Modifications and amendments of each of the Indentures may be made by the
Company and the respective Indenture Trustee with the consent of the Holders of
a majority in aggregate principal amount of the outstanding Debt Securities of
each series affected by such modifications or amendment; provided, however,
that no such modification or amendment may, without the consent of the Holder
of each outstanding Debt Security affected thereby, (a) change the stated
maturity date of the principal of, or any installment of principal of or
interest, if any, on any Debt Security, (b) reduce the principal amount of, or
premium or interest, if any, on any Debt Security, (c) reduce the amount of
principal of an original issue discount Debt Security payable upon acceleration
of the maturity thereof, (d) change the currency of payment of the principal
of, or premium or interest, if any, on any Debt Security, (e) impair the right
to institute suit for the enforcement of any payment on or with respect to any
Debt Security, (f) in the case of Subordinated Debt Securities, modify the
subordination provisions in a manner adverse to the Holders of the outstanding
Subordinated Debt Securities, (g) modify the conversion provisions, if any, of
any Debt Security in a manner adverse to the Holder of that Debt Security, or
(h) reduce the percentage in principal amount of the outstanding Debt Security
of any series, the consent of whose Holders is required for modification or
amendment of that Indenture or for waiver of compliance with certain provisions
of that Indenture or for waiver of certain defaults.
The Holders of a majority in aggregate principal amount of the outstanding
Debt Securities of each series may, on behalf of all Holders of the Debt
Securities of that series, waive, insofar as that series is concerned,
compliance by the Company with certain restrictive provisions of the
Indentures. The Holders of a majority in aggregate principal amount of the
outstanding Debt Securities of each series may, on behalf of all Holders of the
Debt Securities of that series, waive any past default under the Indentures
with respect to the Debt Securities of that series, except a default in the
payment of principal or premium or interest, if any, or a default in respect of
a covenant or provision which under the terms of the Indentures cannot be
modified or amended without the consent of the Holder of each outstanding Debt
Security of the series affected.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Each of the Indentures provide that the Company, without the consent of the
Holders of any of the Debt Securities, may consolidate or merge with or into,
or transfer its assets substantially as an entirety to, any corporation
organized under the laws of the United States or any state, provided that the
successor corporation assumes the Company's obligations under the Indentures,
that after giving effect to the transaction no Event of Default, and no event
which, after notice or lapse of time, would become an Event of Default, shall
have occurred and be continuing, and that certain other conditions are met.
PARTICULAR TERMS OF THE SUBORDINATED DEBT SECURITIES ISSUED TO THE TRUST
In the event Subordinated Debt Securities are issued to the Trust (or a
Trustee of the Trust) in connection with the issuance of Trust Securities by
the Trust, such Subordinated Debt Securities subsequently may be distributed
pro rata to the holders of the Trust Securities in connection with the
dissolution of the Trust upon the occurrence of certain events to be described
in the Prospectus Supplement relating to the Trust Securities. Only one series
of Subordinated Debt Securities will be issued to the Trust, or a Trustee of
the Trust.
If Subordinated Debt Securities of the Company are issued to the Trust or a
Trustee of the Trust in connection with the issuance of Trust Securities and
(i) there shall have occurred any event that would constitute an Event of
Default, (ii) the Company shall be in default with respect to its payment of
any obligations under the Guarantee (as defined herein) or Common Securities
guarantee (see "Description of Guarantee"), or (iii) the Company shall have
given notice of its election to defer payments of interest on such Subordinated
Debt Securities by extending the interest payment period as provided with
respect to that series
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of Subordinated Debt Securities and such period, or any extension thereof,
shall be continuing, then (a) the Company shall not, and shall cause any
subsidiary of the Company that is not a wholly owned subsidiary of the Company
not to, declare or pay any dividend on, make any distribution with respect to,
or redeem, purchase or acquire, or make a liquidation payment with respect to,
any of its capital stock or the capital stock of any such subsidiary, and (b)
the Company shall not make any payment of interest, principal or premium, if
any, on or repay, repurchase or redeem any debt securities (including
guarantees) issued by the Company that rank pari passu with or junior to such
Subordinated Debt Securities; provided however, that, restriction (a) above
will not apply to any stock dividend paid by the Company or any of its
subsidiaries where the dividend stock is the same stock as that on which the
dividend is being paid.
In the event Subordinated Debt Securities are issued to the Trust or a
Trustee of the Trust in connection with the issuance of Trust Securities, for
so long as the Trust Securities remain outstanding, the Company will covenant
(i) to directly or indirectly maintain 100% ownership of the Common Securities;
provided, however, that any permitted successor of the Company under the
Indenture may succeed to the Company's ownership of the Common Securities and
(ii) to use its reasonable efforts to cause the Trust (a) to remain a statutory
business trust, except in connection with the distribution of Subordinated Debt
Securities to the holders of Trust Securities in liquidation of the Trust, the
redemption of all of the Trust Securities, or certain mergers, consolidations
or amalgamations, each as permitted by the Declaration, and (b) to otherwise
continue to be classified as a grantor trust for United States federal income
tax purposes.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in global
form (the "Global Securities"). The Global Securities will be deposited with a
depositary (the "Depositary"), or with a nominee for a Depositary, identified
in the Prospectus Supplement. In such case, one or more Global Securities will
be issued in a denomination or aggregate denominations equal to the portion of
the aggregate principal amount of outstanding Debt Securities of the series to
be represented by such Global Security or Securities. Unless and until it is
exchanged in whole or in part for Debt Securities in definitive form, a Global
Security may not be transferred except as a whole by the Depositary for such
Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor of such Depositary or a nominee
of such successor.
The specific material terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Global Security
will be described in the Prospectus Supplement. The Company anticipates that
the following provisions will apply to all depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by such Global
Security to the accounts of persons that have accounts with such Depositary
("participants"). The accounts to be credited shall be designated by any
underwriters or agents participating in the distribution of such Debt
Securities. Ownership of beneficial interests in a Global Security will be
limited to participants or persons that may hold interests through
participants. Ownership of beneficial interests in such Global Security will be
shown on, and the transfer of that ownership will be effected only through,
records maintained by the Depositary for such Global Security (with respect to
interests or participants) or by participants or persons that hold through
participants (with respect to interest of persons other than participants). So
long as the Depositary for a Global Security, or its nominee, is the registered
owner of such Global Security, such Depositary or such nominee, as the case may
be, will be considered the sole owner or Holder of the Debt Securities
represented by such Global Security for all purposes under the Indenture;
provided, however, that for purposes of obtaining any consents or directions
required to be given by the Holders of the Debt Securities, the Company, the
Indenture Trustee and their respective agents will treat a person as the holder
of such principal amount of Debt Securities as specified in a written statement
of the Depositary. In addition, notwithstanding any other provisions to the
contrary in the Indenture, the rights of the beneficial owners of the Debt
Securities to receive payment of the principal of and interest on such Debt
Securities, on or after the respective due dates expressed in such Debt
Securities, or to institute suit for the
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enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of the beneficial owners. Except as
set forth herein or otherwise provided in the Prospectus Supplement, owners of
beneficial interests in a Global Security will not be entitled to have the Debt
Securities represented by such Global Security registered in their names, will
not receive physical delivery of such Debt Securities in definitive form and
will not be considered the owners or Holders thereof under the Indenture.
Principal, premium, if any, and interest payments on Debt Securities
represented by a Global Security registered in the name of a Depositary or its
nominee will be made to such Depositary or its nominee, as the case may be, as
the registered owner of such Global Security. None of the Company, the
Indenture Trustee or any Paying Agent for such Debt Securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in such Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
The Company expects that the Depositary for any Debt Securities represented
by a Global Security, upon receipt of any payment of principal, premium, if
any, or interest will immediately credit participants' accounts with payments
in amounts proportionate to their respective beneficial interests in the
principal amount of such Global Security as shown on the records of such
Depositary. The Company also expects that payments by participants will be
governed by standing instructions and customary practices, as is now the case
with the securities held for the accounts of customers registered in "street
names" and will be the responsibility of such participants.
If the Depositary for any Debt Securities represented by a Global Security is
at any time unwilling or unable to continue as Depositary and a successor
Depositary is not appointed by the Company within 90 days, the Company will
issue such Debt Securities in definitive form in exchange for such Global
Security. In addition, the Company may at any time and in its sole discretion
determine not to have any of the Debt Securities of a series represented by one
or more Global Securities and, in such event, will issue Debt Securities of
such series in definitive form in exchange for all of the Global Security or
Securities representing such Debt Securities.
The laws of some states require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such laws may impair
the ability to transfer beneficial interests in Debt Securities represented by
Global Securities.
REGARDING THE INDENTURE TRUSTEES
Senior Trustee
The Company maintains deposit accounts and banking relationships with the
Senior Trustee and engages in various investments and borrowing transactions
with the Senior Trustee.
Subordinated Trustee
GWB maintains deposit accounts and banking relationships with the
Subordinated Trustee and engages in various investments and borrowing
transactions with the Subordinated Trustee.
DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. Certain other terms of any series of the
Preferred Stock offered by any Prospectus Supplement will be described in such
Prospectus Supplement. The description of certain provisions of the Preferred
Stock set forth below and in any Prospectus Supplement does not purport to be
complete and is subject to and qualified in its entirety by reference to the
Company's Restated Certificate of Incorporation (the "Certificate of
Incorporation"), and
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the certificate of designations (a "Certificate of Designations") relating to
each series of the Preferred Stock which will be filed with the Commission and
incorporated by reference as an exhibit to the Registration Statement of which
this Prospectus is a part at or prior to the time of the issuance of such
series of the Preferred Stock.
GENERAL
The authorized capital stock of the Company consists of 200,000,000 shares of
Common Stock, $1.00 par value per share, and 10,000,000 shares of preferred
stock, $1.00 par value per share ("preferred stock of the Company," which term,
as used herein, includes the Preferred Stock offered hereby). See "Description
of Common Stock."
Under the Certificate of Incorporation, the Board of Directors of the Company
is authorized without further stockholder action to provide for the issuance of
up to 10,000,000 shares of preferred stock of the Company, in one or more
series, with such voting powers, full or limited, and with such designations,
preferences and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as shall be stated in the
resolution or resolutions providing for the issue of a series of such stock,
adopted, at any time or from time to time, by the Board of Directors of the
Company (as used herein the term "Board of Directors of the Company" includes
any duly authorized committee thereof).
As described under "Description of Depositary Shares," the Company may, at
its option, elect to offer Depositary Shares evidenced by depositary receipts
(the "Depositary Receipts"), each representing a fraction (to be specified in
the Prospectus Supplement relating to the particular series of the Preferred
Stock) of a share of the particular series of the Preferred Stock issued and
deposited with a depositary, in lieu of offering full shares of such series of
the Preferred Stock.
Under regulations adopted by the OTS, if the holders of shares of any series
of Preferred Stock of the Company become entitled to vote for the election of
directors because dividends on such series are in arrears, such series may then
be deemed a "class of voting securities" and a holder of more than 25% of such
series (or a holder of more than 10% if it has any "control factor" with
respect to the Company or a holder of any shares of Preferred Stock if it
exercises a "controlling influence" over the Company) may then be subject to
regulation as a savings and loan holding company in accordance with the Savings
and Loan Holding Company Act, as amended. In addition, at such time as such
series is deemed a class of voting securities, (i) any other savings and loan
holding company may be required to obtain the approval of the OTS under the
Savings and Loan Holding Company Act, as amended, to acquire or retain more
than 5% of such series and (ii) any person other than a savings and loan
holding company may be required to obtain the approval of the OTS under the
Change in Bank Control Act to acquire or retain more than 10% of such series.
The Preferred Stock shall have the dividend, liquidation, redemption and
voting rights set forth below unless otherwise provided in a Prospectus
Supplement relating to a particular series of the Preferred Stock. Reference is
made to the Prospectus Supplement relating to the particular series of the
Preferred Stock offered thereby for specific terms, including: (i) the
designation and stated value per share of such Preferred Stock and the number
of shares offered; (ii) the amount of liquidation preference per share; (iii)
the initial public offering price at which such Preferred Stock will be issued;
(iv) the dividend rate (or method of calculation), the dates on which dividends
shall be payable and the dates from which dividends shall commence to cumulate,
if any; (v) any redemption or sinking fund provisions; (vi) any conversion
rights; (vii) whether the Company has elected to offer Depositary Shares as
described below under "Description of Depositary Shares;" and (viii) any
additional voting, dividend, liquidation, redemption, sinking fund and other
rights, preferences, privileges, limitations and restrictions.
The Preferred Stock will, when issued, be fully paid and nonassessable and
will have no preemptive rights. Unless otherwise stated in a Prospectus
Supplement relating to a particular series of the Preferred Stock, each series
of the Preferred Stock will rank on a parity as to dividends and distributions
of assets with
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each other series of the Preferred Stock. The rights of the holders of each
series of the Preferred Stock will be subordinate to those of the Company's
general creditors.
CERTAIN PROVISIONS OF THE CERTIFICATE OF INCORPORATION
Pursuant to the Certificate of Incorporation, the Company's Board of
Directors is classified into three classes, such classes to include as nearly
equal a number of directors as possible. Each class of directors serves for a
term of three years, with one class being elected each year. As of the date of
this Prospectus, there are eleven directors. The Certificate of Incorporation
provides that (i) notwithstanding any increase or decrease in the authorized
number of directors, each director then serving shall continue as a director
until the expiration of his term, (ii) no director may be removed except for
cause, and (iii) any vacancy in any class of directors, including a vacancy
arising through an increase in the number of directors, shall be filled by a
majority of the remaining directors of such class or by the sole remaining
director of such class or, if none, by a majority of the remaining directors.
Notwithstanding the foregoing, whenever the stockholders of any class of stock
or series thereof are entitled to elect one or more directors of the Company by
the provisions of the Certificate of Incorporation, including any Certificate
of Designations, vacancies and newly created directorships of such class or
series may be filled by a majority of the directors elected by such class or
series thereof then in office, or by the sole remaining director so elected.
The affirmative vote of stockholders representing at least 75 percent of the
shares entitled to vote thereon is required to amend or repeal the provisions
described in the preceding two sentences or the classification of the Company's
Board of Directors into three classes.
Certain of the foregoing provisions of the Certificate of Incorporation will
likely make it more difficult for another entity to effect certain business
combinations with the Company or to take control of the Board of Directors of
the Company. In addition, the foregoing summary of certain provisions of the
Certificate of Incorporation does not purport to be complete or to give effect
to provisions of statutory or common law. The foregoing summary is subject to,
and qualified in its entirety by reference to, the provisions of applicable law
and the Certificate of Incorporation, a copy of which is incorporated by
reference as an exhibit to the Registration Statement of which this Prospectus
is a part.
DIVIDEND RIGHTS
Holders of the Preferred Stock of each series will be entitled to receive,
when, as and if declared by the Board of Directors of the Company, out of funds
of the Company legally available therefor, cash dividends on such dates and at
such rates as are set forth in, or as are determined by the method described
in, the Prospectus Supplement relating to such series of the Preferred Stock.
Such rate may be fixed or variable or both. Each such dividend will be payable
to the holders of record as they appear on the stock books of the Company (or,
if applicable, the records of the Depositary (as hereinafter defined) referred
to under "Description of Depositary Shares") on such record dates, fixed by the
Board of Directors of the Company, as specified in the Prospectus Supplement
relating to such series of Preferred Stock.
Such dividends may be cumulative or noncumulative, as provided in the
Prospectus Supplement relating to such series of Preferred Stock. If the Board
of Directors of the Company fails to declare a dividend payable on a dividend
payment date on any series of Preferred Stock for which dividends are
noncumulative, then the right to receive a dividend in respect of the dividend
period ending on such dividend payment date will be lost, and the Company shall
have no obligation to pay the dividend accrued for such period, whether or not
dividends on such series are declared payable on any future dividend payment
dates. Dividends on the shares of each series of Preferred Stock for which
dividends are cumulative will accrue from the date on which the Company
initially issues shares of such series.
So long as the shares of any series of the Preferred Stock shall be
outstanding, unless (i) full dividends (including if such Preferred Stock is
cumulative, dividends for prior dividend periods) shall have been paid or
declared and set apart for payment on all outstanding shares of the Preferred
Stock of such series and all
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other classes and series of preferred stock of the Company (other than Junior
Stock, as defined below) and (ii) the Company is not in default or in arrears
with respect to the mandatory or optional redemption or mandatory repurchase or
other mandatory retirement of, or with respect to any sinking or other
analogous fund for, any shares of Preferred Stock of such series or any shares
of any other preferred stock of the Company of any class or series (other than
Junior Stock), the Company may not declare any dividends on any shares of
Common Stock of the Company or any other stock of the Company ranking as to
dividends or distributions of assets junior to such series of Preferred Stock
(the Common Stock and any such other stock being herein referred to as "Junior
Stock"), or make any payment on account of, or set apart money for, the
purchase, redemption or other retirement of, or for a sinking or other
analogous fund for, any shares of Junior Stock or make any distribution in
respect thereof, whether in cash or property or in obligations or stock of the
Company, other than Junior Stock which is neither convertible into, nor
exchangeable or exercisable for, any securities of the Company other than
Junior Stock and other than the redemption of Rights (as defined below) of the
Company.
LIQUIDATION PREFERENCE
In the event of any liquidation, dissolution or winding up of the Company,
voluntary or involuntary, the holders of each series of the Preferred Stock
will be entitled to receive out of the assets of the Company available for
distribution to stockholders, before any distribution of assets is made to the
holders of Common Stock or any other shares of stock of the Company ranking
junior as to such distribution to such series of the Preferred Stock, the
amount set forth in the Prospectus Supplement relating to such series of the
Preferred Stock. If, upon any voluntary or involuntary liquidation, dissolution
or winding up of the Company, the amounts payable with respect to the Preferred
Stock of any series and any other shares of preferred stock of the Company
(including any other series of the Preferred Stock) ranking as to any such
distribution on a parity with such series of the Preferred Stock are not paid
in full, the holders of the Preferred Stock of such series and of such other
shares of preferred stock of the Company will share ratably in any such
distribution of assets of the Company in proportion to the full respective
preferential amounts to which they are entitled. After payment to the holders
of the Preferred Stock of each series of the full preferential amounts of the
liquidating distribution to which they are entitled, the holders of each such
series of the Preferred Stock will be entitled to no further participation in
any distribution of assets by the Company.
REDEMPTION
A series of the Preferred Stock may be redeemable, in whole or from time to
time in part, at the option of the Company, and may be subject to mandatory
redemption pursuant to a sinking fund or otherwise, in each case upon terms, at
the times and at the redemption prices set forth in the Prospectus Supplement
relating to such series. Shares of the Preferred Stock redeemed by the Company
will be restored to the status of authorized but unissued shares of preferred
stock of the Company.
In the event that fewer than all of the outstanding shares of a series of the
Preferred Stock are to be redeemed, whether by mandatory or optional
redemption, the number of shares to be redeemed will be determined by lot or
pro rata (subject to rounding to avoid fractional shares) as may be determined
by the Company or by any other method as may be determined by the Company in
its sole discretion to be equitable. From and after the redemption date (unless
default shall be made by the Company in providing for the payment of the
redemption price plus accumulated and unpaid dividends, if any), dividends
shall cease to accumulate on the shares of the Preferred Stock called for
redemption and all rights of the holders thereof (except the right to receive
the redemption price plus accumulated and unpaid dividends, if any) shall
cease.
So long as any dividends on shares of any series of the Preferred Stock or
any other series of preferred stock of the Company ranking on a parity as to
dividends and distribution of assets with such series of the Preferred Stock
are in arrears, no shares of any such series of the Preferred Stock or such
other series of preferred stock of the Company will be redeemed (whether by
mandatory or optional redemption) unless all such shares are simultaneously
redeemed, and the Company will not purchase or otherwise acquire any such
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shares; provided, however, that the foregoing will not prevent the purchase or
acquisition of such shares pursuant to a purchase or exchange offer made on the
same terms to holders of all such shares outstanding.
CONVERSION RIGHTS
The terms, if any, on which shares of Preferred Stock of any series may be
exchanged for or converted (mandatorily or otherwise) into shares of Common
Stock or another series of Preferred Stock will be set forth in the Prospectus
Supplement relating thereto. See "Description of Common Stock."
VOTING RIGHTS
Except as indicated below or in a Prospectus Supplement relating to a
particular series of the Preferred Stock, or except as required by applicable
law, the holders of the Preferred Stock will not be entitled to vote for any
purpose.
So long as any shares of the Preferred Stock of a series remain outstanding,
the consent or the affirmative vote of the holders of at least 66 2/3% of the
votes entitled to be cast with respect to the then outstanding shares of such
series of the Preferred Stock together with any Other Preferred Stock (as
defined below), voting as one class, either expressed in writing or at a
meeting called for that purpose, will be necessary (i) to permit, effect or
validate the authorization, or any increase in the authorized amount, of any
class or series of shares of the Company ranking prior to the Preferred Stock
of such series as to dividends, voting or upon distribution of assets and (ii)
to repeal, amend or otherwise change any of the provisions applicable to the
Preferred Stock of such series in any manner which adversely affects the
powers, preferences, voting power or other rights or privileges of such series
of the Preferred Stock. In case any series of the Preferred Stock would be so
affected by any such action referred to in clause (ii) above in a different
manner than one or more series of the Other Preferred Stock then outstanding,
the holders of shares of the Preferred Stock of such series, together with any
series of the Other Preferred Stock which will be similarly affected, will be
entitled to vote as a class, and the Company will not take such action without
the consent or affirmative vote, as above provided, of at least 66 2/3% of the
total number of votes entitled to be cast with respect to each such series of
the Preferred Stock and the Other Preferred Stock, then outstanding, in lieu of
the consent or affirmative vote hereinabove otherwise required.
With respect to any matter as to which the Preferred Stock of any series is
entitled to vote, holders of the Preferred Stock of such series and any other
series of preferred stock of the Company ranking on a parity with such series
of the Preferred Stock as to dividends and distributions of assets and which by
its terms provides for similar voting rights (the "Other Preferred Stock") will
be entitled to cast the number of votes set forth in the Prospectus Supplement
with respect to that series of Preferred Stock. As a result of the provisions
described in the preceding paragraph requiring the holders of shares of a
series of the Preferred Stock to vote together as a class with the holders of
shares of one or more series of Other Preferred Stock, it is possible that the
holders of such shares of Other Preferred Stock could approve action that would
adversely affect such series of Preferred Stock, including the creation of a
class of capital stock ranking prior to such series of Preferred Stock as to
dividends, voting or distributions of assets.
As more fully described below under "Description of Depositary Shares," if
the Company elects to issue Depositary Shares, each representing a fraction of
a share of a series of the Preferred Stock, each such Depositary Share will, in
effect, be entitled to such fraction of a vote per Depositary Share.
TRANSFER AGENT AND REGISTRAR
Unless otherwise indicated in a Prospectus Supplement relating thereto,
Harris Trust Company of California will be the transfer agent, dividend and
redemption price disbursement agent and registrar for shares of each series of
the Preferred Stock.
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DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of certain
provisions of the Deposit Agreement (as defined below) and of the Depositary
Shares and Depositary Receipts do not purport to be complete and are subject to
and qualified in their entirety by reference to the Deposit Agreement and
Depositary Receipts relating to each series of the Preferred Stock which will
be filed with the Commission and incorporated by reference as an exhibit to the
Registration Statement of which this Prospectus is a part at or prior to the
time of the issuance of such series of the Preferred Stock. The forms of
Deposit Agreement and Depositary Receipt are filed as exhibits to the
Registration Statement of which this Prospectus is a part.
GENERAL
The Company may, at its option, elect to offer fractional shares of Preferred
Stock rather than full shares of Preferred Stock. In the event such option is
exercised, the Company will issue to the public receipts for Depositary Shares,
each of which will represent a fraction (to be set forth in the Prospectus
Supplement relating to a particular series of the Preferred Stock) of a share
of a particular series of the Preferred Stock as described below.
The shares of any series of the Preferred Stock represented by Depositary
Shares will be deposited under a separate deposit agreement (the "Deposit
Agreement") among the Company, a bank or trust company selected by the Company
(the "Depositary") and the holders from time to time of the Depositary
Receipts. Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share will in general be entitled, in proportion to the applicable
fraction of a share of Preferred Stock represented by such Depositary Share, to
all the rights and preferences of the Preferred Stock represented thereby
(including dividend, voting, redemption and liquidation rights).
The Depositary Shares relating to any series of the Preferred Stock will be
evidenced by Depositary Receipts issued pursuant to the related Deposit
Agreement. Depositary Receipts will be distributed to those persons purchasing
such Depositary Shares in accordance with the terms of the offering made by the
related Prospectus Supplement.
Upon surrender of Depositary Receipts at the office of the Depositary and
upon payment of the charges provided in the Deposit Agreement and subject to
the terms thereof, a holder of Depositary Receipts is entitled to have the
Depositary deliver to such holder the whole shares of Preferred Stock
underlying the Depositary Shares evidenced by the surrendered Depositary
Receipts.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash distributions
received in respect of the Preferred Stock to the record holders of Depositary
Receipts relating to such Preferred Stock in proportion, insofar as
practicable, to the respective numbers of Depositary Shares evidenced by such
Depositary Receipts held by such holders on the relevant record date. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any holder of Depositary Receipts a fraction of one
cent, and any balance not so distributed shall be added to and treated as part
of the next sum received by the Depositary for distribution to record holders
of Depositary Receipts then outstanding.
In the event of a distribution other than in cash, the Depositary will
distribute such amounts of the securities or property received by it as are, as
nearly as practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Depositary Receipts held by such holders on the
relevant record date, unless the Depositary determines that it is not feasible
to make such distribution, in which case the Depositary may, with the approval
of the Company, adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including the sale of such securities
or property.
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The Deposit Agreement will also contain provisions relating to the manner in
which any subscription or similar rights offered by the Company to holders of
the Preferred Stock shall be made available to holders of Depositary Receipts.
The amount distributed in all of the foregoing cases will be reduced by any
amounts required to be withheld by the Company or the Depositary on account of
taxes and governmental charges.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Stock represented by Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or in part,
of such series of the Preferred Stock held by the Depositary. The Depositary
shall mail notice of redemption not less than 30 and not more than 60 days
prior to the date fixed for redemption to the record holders of the Depositary
Receipts evidencing the Depositary Shares to be so redeemed at their respective
addresses appearing in the Depositary's books. The redemption price per
Depositary Share will be equal to the applicable fraction of the redemption
price per share payable with respect to such series of the Preferred Stock plus
all money and other property, if any, payable with respect to such Depositary
Share, including all amounts payable by the Company in respect of any
accumulated but unpaid dividends. Whenever the Company redeems shares of
Preferred Stock held by the Depositary, the Depositary will redeem as of the
same redemption date the number of Depositary Shares representing shares of
Preferred Stock so redeemed. If less than all the Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed will be selected by lot or pro
rata (subject to rounding to avoid fractions of Depositary Shares) as may be
determined by the Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of Depositary Receipts evidencing such Depositary Shares will cease,
except the right to receive the moneys payable upon such redemption and any
money or other property to which such holders were entitled upon such
redemption upon surrender to the Depositary of the Depositary Receipts
evidencing such Depositary Shares.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting or action to be taken by written
consent at or as to which the holders of the Preferred Stock are entitled to
vote or consent, the Depositary will mail the information contained in such
notice of meeting or action to the record holders of the Depositary Receipts
evidencing the Depositary Shares relating to such Preferred Stock. Each record
holder of such Depositary Receipts on the record date (which will be the same
date as the record date for the Preferred Stock) will be entitled to instruct
the Depositary as to the exercise of the voting rights or the giving or refusal
of consent, as the case may be, pertaining to the number of shares of the
Preferred Stock represented by the Depositary Shares evidenced by such holder's
Depositary Receipts. The Depositary will endeavor, insofar as practicable, to
vote, or give or withhold consent with respect to, the maximum number of whole
shares of the Preferred Stock represented by all Depositary Shares as to which
any particular voting or consent instructions are received, and the Company
will agree to take all action which may be deemed necessary by the Depositary
in order to enable the Depositary to do so. The Depositary will abstain from
voting, or giving consents with respect to, shares of the Preferred Stock to
the extent it does not receive specific instructions from the holders of
Depositary Receipts evidencing Depositary Shares representing such Preferred
Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares relating to
any series of Preferred Stock and any provision of the related Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary in any respect which they may deem necessary or
desirable. However, any amendment which imposes or increases any fees, taxes or
charges upon holders of
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Depositary Shares or Depositary Receipts relating to any series of Preferred
Stock or which materially and adversely alters the existing rights of such
holders will not be effective unless such amendment has been approved by the
record holders of Depositary Receipts evidencing at least a majority of such
Depositary Shares then outstanding. Notwithstanding the foregoing, no such
amendment may impair the right of any holder of Depositary Shares or Depositary
Receipts to receive any moneys or other property to which such holder may be
entitled under the terms of such Depositary Receipts or the Deposit Agreement
at the times and in the manner and amount provided for therein. A Deposit
Agreement may be terminated by the Company or the Depositary only after (i) all
outstanding Depositary Shares relating thereto have been redeemed and any
accumulated and unpaid dividends on the Preferred Stock represented by the
Depositary Shares, together with all other moneys and property, if any, to
which holders of the related Depositary Receipts are entitled under the terms
of such Depositary Receipts or the related Deposit Agreement, have been paid or
distributed as provided in the Deposit Agreement or provision therefor has been
duly made, (ii) there has been a final distribution in respect of the Preferred
Stock of the relevant series in connection with any liquidation, dissolution or
winding up of the Company and such distribution has been distributed to the
holders of the related Depositary Receipts, or (iii) in the event the
Depositary Shares relate to a series of Preferred Stock which is convertible
into shares of Common Stock or another series of Preferred Stock, all
outstanding Depositary Shares have been converted into shares of Common Stock
or another series of Preferred Stock.
MISCELLANEOUS
The Depositary will forward to record holders of Depositary Receipts, at
their respective addresses appearing in the Depositary's books, all reports and
communications from the Company which are delivered to the Depositary and which
the Company is required to furnish to the holders of the Preferred Stock or
Depositary Receipts.
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay charges of the Depositary in connection with the initial deposit of
the Preferred Stock and the initial issuance of the Depositary Receipts
evidencing the Depositary Shares, any redemption of the Preferred Stock and any
withdrawals of Preferred Stock by the holders of Depositary Shares. Holders of
Depositary Shares will pay other transfer and other taxes and governmental
charges and such other charges as are expressly provided in the Deposit
Agreement to be for their accounts.
The Deposit Agreement will contain provisions relating to adjustments in the
fraction of a share of Preferred Stock represented by a Depositary Share in the
event of a change in par or stated value, split-up, combination or other
reclassification of the Preferred Stock or upon any recapitalization, merger or
sale of substantially all of the assets of the Company.
Neither the Depositary nor any of its agents nor any registrar nor the
Company will be (i) liable if it is prevented or delayed by law or any
circumstance beyond its control in performing its obligations under the Deposit
Agreement, (ii) subject to any liability under the Deposit Agreement to holders
of Depositary Receipts other than for the relevant party's gross negligence or
willful misconduct, or (iii) obligated to prosecute or defend any legal
proceeding in respect of any Depositary Receipts, Depositary Shares or the
Preferred Stock unless satisfactory indemnity is furnished. They may rely upon
written advice of counsel or accountants, or information provided by holders of
Depositary Receipts or other persons in good faith believed to be competent and
on documents reasonably believed to be genuine.
RESIGNATION OR REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Company notice of
its election to do so, and the Company may at any time remove the Depositary,
any such resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal.
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DESCRIPTION OF COMMON STOCK
GENERAL
The holders of the outstanding shares of Common Stock have full voting
rights, one vote for each share held of record. Subject to the rights of
holders of preferred stock of the Company, holders of Common Stock are entitled
to receive such dividends as may be declared by the Board of Directors of the
Company out of funds legally available therefor. Upon liquidation, dissolution,
or winding up of the Company (but subject to the rights of holders of preferred
stock of the Company), the assets legally available for distribution to holders
of Common Stock shall be distributed ratably among such holders. Holders of
Common Stock have no preemptive or other subscription or conversion rights, and
no liability for further calls upon shares. The Common Stock is not subject to
assessment.
The Transfer Agent and Registrar for the Common Stock is Harris Trust Company
of California.
RIGHTS
On June 24, 1986, the Board of Directors of the Company adopted a Rights Plan
pursuant to which the Company distributed one right (a "Right") for each
outstanding share of Common Stock held as of the close of business on July 14,
1986. As a result of the five for two stock dividend paid on May 28, 1987 to
holders of record of the Common Stock on May 14, 1987, effective May 28, 1987
each Right was proportionally adjusted so that each share of Common Stock is
accompanied by two-fifths of a Right instead of one full Right. Only full
Rights will be exercisable if the Rights become exercisable. In addition, the
Rights Plan was amended by amendments dated as of February 19, 1988 and June
27, 1995.
Each full Right, if it becomes exercisable, initially entitles the holder to
purchase from the Company a unit of one one-hundredth of a share of Series A
Junior Participating Preferred Stock, par value $1.00 per share, at a purchase
price of $175 per unit, subject to adjustment. The Rights attach to shares of
Common Stock issued after July 14, 1986, and will expire on July 14, 1996
unless redeemed earlier. The Rights may not be exercised, and will not detach
or trade separately from the Common Stock, except as described below.
The Rights will detach from the Common Stock and may be exercised only if a
person or group becomes the beneficial owner of 15% or more of the Common Stock
(a "Stock Acquisition"). If a Stock Acquisition occurs (except pursuant to an
offer for all outstanding shares of the Common Stock which the Company's
independent directors determine is fair to and otherwise in the best interests
of the Company and its stockholders), the Rights "flip-in" and each Right not
owned by such person will entitle the holder to purchase, at the Right's then
current exercise price, Common Stock (or, if the number of shares of authorized
Common Stock is insufficient to permit the full exercise of the Rights, cash,
property or other securities of the Company) having a formula value equal to
twice the Right's exercise price. In addition, if at any time following a Stock
Acquisition, (i) the Company is acquired in a merger or other business
combination transaction in which the Company is not the surviving corporation
(other than a merger which follows an offer at the same price and for the same
consideration as the offer approved by the Board of Directors of the Company as
described in the immediately preceding sentence), or (ii) 50% or more of the
Company's assets or earnings power is sold or transferred, the Rights "flip-
over" and each unexercised Right will entitle its holder to purchase, at the
Right's then current exercise price, common shares of the other person having a
formula value equal to twice the Right's exercise price. The Rights may be
redeemed by the Company at any time prior to ten days following the date of a
Stock Acquisition (which period may be extended by the Company's Board of
Directors at any time while the Rights are still redeemable). Upon the
occurrence of a "flip-in" or "flip-over" event, if the Rights are not redeemed,
the Rights would result in substantial dilution to any person who has acquired
15% or more of the outstanding Common Stock or who attempts to merge or
consolidate with the Company. As a result, the Rights may deter potential
attempts to acquire control of the Company without the approval of the
Company's Board of Directors.
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On June 27, 1995, the Board of Directors of the Company also declared a
dividend distribution of one Right (each a "New Right") for each outstanding
share of Common Stock to stockholders of record at the close of business on the
earlier of the date on which the current Rights Plan expires or the date on
which the existing Rights are redeemed in accordance with the provisions of the
current Rights Plan. Each New Right is identical to the existing Rights, except
that the New Rights will initially entitle the holder to purchase from the
Company a unit of one one-hundredth of a share of Series A Junior Participating
Preferred Stock, par value $1.00 per share, at a purchase price of $80.00 per
unit, subject to adjustment, and the New Rights will expire on July 14, 2006.
DESCRIPTION OF PREFERRED SECURITIES
Set forth below is a summary of information concerning the Preferred
Securities which may be issued by the Trust. The Declaration authorizes the
Regular Trustees of the Trust to issue on behalf of the Trust one series of
Preferred Securities having the terms described in the Prospectus Supplement
relating thereto. The Declaration will be qualified as an indenture under the
Trust Indenture Act. The terms of the Preferred Securities will be those set
forth in the Declaration and those made part of the Declaration by the Trust
Indenture Act. This summary does not purport to be complete and is subject in
all respects to the provisions of, and is qualified in its entirety by
reference to, the form of Declaration, as amended and restated, which is filed
as an exhibit to the Registration Statement of which this Prospectus is a part,
and the Trust Indenture Act.
The Preferred Securities will have such terms, including distribution,
redemption, voting, liquidation and such other preferred, deferred or other
special rights or such restrictions as shall be set forth in the Declaration or
made part of the Declaration by the Trust Indenture Act. Reference is made to
the Prospectus Supplement relating to the Preferred Securities for specific
terms, including (i) the distinctive designation of the Preferred Securities,
(ii) the number of Preferred Securities and the date or dates upon which such
distributions shall be payable (provided, however, that distributions on the
Preferred Securities shall be payable on a quarterly basis to holders of the
Preferred Securities as of a record date in each quarter during which the
Preferred Securities are outstanding), (iii) the annual distribution rate (or
method for determining such rate) for the Preferred Securities, (iv) whether
distributions on Preferred Securities issued by the Trust shall be cumulative,
and, in the case of Preferred Securities having such cumulative distribution
rights, the date or dates or method of determining the date or dates from which
distributions on Preferred Securities shall be cumulative, (v) the amount or
amounts which shall be paid out of the assets of the Trust to the holders of
Preferred Securities upon voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Trust, (vi) the obligation, if any, of the
Trust to purchase or redeem Preferred Securities and the price or prices at
which, the period or periods within which and the terms and conditions upon
which the Preferred Securities shall be purchased or redeemed, in whole or in
part, pursuant to such obligation, (vii) the voting rights, if any, of
Preferred Securities in addition to those required by law, including the number
of votes per Preferred Security and any requirement for the approval by the
holders of Preferred Securities, as a condition to specified action or
amendments to the Declaration, and (viii) any other relevant rights,
preferences, privileges, limitations or restrictions on Preferred Securities
consistent with the Declaration and applicable law.
All Preferred Securities offered hereby will be guaranteed by the Company to
the extent set forth below under "Description of the Guarantee." Certain United
States federal income tax considerations applicable to any offering of
Preferred Securities will be described in the Prospectus Supplement relating
thereto.
In connection with the issuance of Preferred Securities, the Trust will issue
one series of Common Securities having such terms including distribution,
redemption, voting, liquidation and such other preferred, deferred or other
special rights or such restrictions as shall be set forth therein. The terms of
the Common Securities will be substantially identical to the terms of the
Preferred Securities and the Common Securities
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will rank pari passu, and payments will be made thereon pro rata with the
Preferred Securities except that, upon an event of default under the
Declaration, the rights of the holders of the Common Securities to payment in
respect of distributions and payments upon liquidation, redemption and
otherwise will be subordinated to the rights of the holders of the Preferred
Securities. Except in certain limited circumstances, the Common Securities will
also carry the right to vote and to appoint, remove or replace any of the
Trustees of the Trust. All of the Common Securities will be directly or
indirectly owned by the Company.
DESCRIPTION OF GUARANTEE
Set forth below is a summary of information concerning the Guarantee that
will be executed and delivered by the Company for the benefit of the holders of
Preferred Securities. The Guarantee will be qualified as an indenture under the
Trust Indenture Act. The First National Bank of Chicago will act as indenture
trustee under the Guarantee (the "Guarantee Trustee"). The terms of the
Guarantee will be those set forth in the Guarantee and those made part of the
Guarantee by the Trust Indenture Act. This summary does not purport to be
complete and is subject in all respects to the provisions of, and is qualified
in its entirety by reference to, the form of Guarantee, which is filed as an
exhibit to the Registration Statement of which this Prospectus forms a part,
and the Trust Indenture Act. The Guarantee will be held by the Guarantee
Trustee for the benefit of the holders of the Preferred Securities.
GENERAL
Pursuant to the Guarantee, the Company will irrevocably and unconditionally
agree, to the extent set forth herein, to pay in full to the holders of the
Preferred Securities, the Guarantee Payments (as defined herein) (except to the
extent paid by the Trust), as and when due, regardless of any defense, right of
set-off or counterclaim that the Trust may have or assert. The following
amounts with respect to the Preferred Securities (the "Guarantee Payments"), to
the extent not paid by the Trust, will be subject to the Guarantee (without
duplication): (i) any accrued and unpaid distributions that are required to be
paid on the Preferred Securities, to the extent the Trust shall have funds
available therefor, which funds would exist only to the extent the Company has
made a payment of interest or principal on the Subordinated Debt Securities,
(ii) the redemption price, including all accrued and unpaid distributions (the
"Redemption Price"), to the extent the Trust has funds available therefor with
respect to any Preferred Securities called for redemption by the Trust, which
funds would exist only to the extent the Company has paid the redemption price
for the Subordinated Debt Securities called for redemption and (iii) upon a
voluntary or involuntary liquidation, dissolution, winding-up or termination of
the Trust (other than in connection with the distribution of Subordinated Debt
Securities of the Company to the holders of Preferred Securities or the
redemption of all the Preferred Securities upon maturity or redemption of the
Subordinated Debt Securities), the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid distributions on the Preferred
Securities to the date of payment to the extent the Trust has funds available
therefor or (b) the amount of assets of the Trust remaining available for
distribution to holders of the Preferred Securities in liquidation of the
Trust. The Company's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by the Company to the holders of
Preferred Securities or by causing the Trust to pay such amounts to such
holders.
The Guarantee will be a full and unconditional guarantee with respect to the
Preferred Securities from the time of issuance, but will not apply to any
payment of distributions except to the extent the Trust shall have funds
available therefor. If the Company does not make interest payments on the
Subordinated Debt Securities purchased by the Trust, the Trust will not pay
distributions on the Preferred Securities and will not have funds available
therefor. See "Description of Debt Securities--Particular Terms of the
Subordinated Debt Securities Issued to the Trust."
The Company and the Trust believe that the rights of the holders of the
Preferred Securities and the obligations of the Company under the Declaration,
the Guarantee, the Preferred Securities, the Subordinated Indenture and the
Subordinated Debt Securities will collectively provide the substantial
equivalent of a full and unconditional guarantee by the Company of payments due
on the Preferred Securities.
23
<PAGE>
The Company has also agreed to irrevocably and unconditionally guarantee the
obligations of the Trust with respect to the Common Securities (the "Common
Securities guarantee") to the same extent as the Guarantee, except that, upon
an Event of Default under the Subordinated Indenture, holders of Preferred
Securities under the Guarantee shall have priority over holders of Common
Securities under the Common Securities guarantee with respect to distributions
and payments on liquidation, redemption or otherwise.
CERTAIN COVENANTS OF THE COMPANY
In the Guarantee, the Company will covenant that, so long as any Preferred
Securities issued by the Trust remain outstanding, if there shall have occurred
any event that would constitute an event of default under the Guarantee or the
Declaration, then (a) the Company shall not, and shall cause any subsidiary of
the Company which is not a wholly-owned subsidiary of the Company not to,
declare or pay any dividend on, or make any distribution with respect to, or
redeem, purchase or acquire or make a liquidation payment with respect to, any
of its capital stock or the capital stock of any such subsidiary and (b) the
Company shall not make any payment of interest, principal or premium, if any,
on or repay, repurchase or redeem any debt securities (including guarantees)
issued by the Company which rank pari passu with or junior to such Subordinated
Debt Securities. However, the restriction in (a) above will not apply to any
stock dividend paid by the Company, or any of its subsidiaries, where the
dividend stock is the same stock as that on which the dividend is being paid.
MODIFICATIONS OF THE GUARANTEE; ASSIGNMENT
Except with respect to any changes that do not adversely affect the rights of
holders of the Preferred Securities (in which case no vote will be required),
the Guarantee may be amended only with the prior approval of the holders of not
less than 66 2/3% in liquidation amount of the Preferred Securities then
outstanding. All guarantees and agreements contained in a Guarantee shall bind
the successors, assigns, receivers, trustees and representatives of the Company
and shall inure to the benefit of the holders of the Preferred Securities then
outstanding.
EVENTS OF DEFAULT
An Event of Default under the Guarantee will occur upon the failure of the
Company to make any of the payments required by the Guarantee or to perform its
other obligations thereunder. The holders of a majority in liquidation amount
of the Preferred Securities have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Guarantee Trustee
in respect of the Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under the Guarantee.
The Company will be required to provide annually to the Guarantee Trustee a
statement as to the performance by the Company of certain of its obligations
under the Guarantee and as to any default in such performance.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, prior to the occurrence of a default, undertakes to
perform only such duties as are specifically set forth in the Guarantee and,
after default with respect to a Guarantee, shall exercise the same degree of
care a prudent person would exercise under the circumstances in the conduct of
his or her own affairs. Subject to such provision, the Guarantee Trustee is
under no obligation to exercise any of the powers vested in it by the Guarantee
at the request of any holder of the Preferred Securities unless it is offered
reasonable indemnity against the costs, expenses and liabilities that might be
incurred thereby.
TERMINATION OF THE GUARANTEE
The Guarantee will terminate as to the Preferred Securities upon full payment
of the Redemption Price of all Preferred Securities, upon distribution of the
Subordinated Debt Securities of the Company held by the
24
<PAGE>
Trust to the holders of the Preferred Securities or upon full payment of the
amounts payable in accordance with the Declaration upon liquidation of the
Trust. The Guarantee will continue to be effective or will be reinstated, as
the case may be, if at any time any holder of Preferred Securities must restore
payment of any sums paid under the Preferred Securities or the Guarantee.
STATUS OF THE GUARANTEE
The Guarantee will constitute an unsecured obligation of the Company and will
rank (i) subordinate and junior in right of payment to all other liabilities of
the Company (other than the Common Securities guarantee or any guarantee now or
hereafter entered into by the Company in respect of any preferred or preference
stock of any affiliate of the Company), (ii) pari passu with the most senior
preferred or preference stock now or hereafter issued by the Company and with
any guarantee now or hereafter entered into by the Company in respect of any
preferred or preference stock of any affiliate of the Company and (iii) senior
to the Company's Common Stock. The terms of the Preferred Securities provide
that each holder of Preferred Securities by acceptance thereof agrees to the
subordination provisions and other terms of the Guarantee.
The Guarantee will constitute a guarantee of payment and not of collection
(that is, the guaranteed party may institute a legal proceeding directly
against the Company as the guarantor to enforce its rights under the Guarantee
without instituting a legal proceeding against any other person or entity).
GOVERNING LAW
The Guarantee will be governed by and construed in accordance with the
internal laws of the State of New York.
DESCRIPTION OF SECURITIES WARRANTS
The Company may issue Securities Warrants for the purchase of Debt
Securities, Preferred Stock, Depositary Shares or Common Stock, Securities
Warrants may be issued independently or together with Debt Securities,
Preferred Stock. Depositary Shares or Common Stock offered by any Prospectus
Supplement and may be attached to or separate from such Debt Securities,
Preferred Stock, Depositary Shares or Common Stock. Each series of Securities
Warrants will be issued under a separate warrant agreement (a "Securities
Warrant Agreement") to be entered into between the Company and a bank or trust
company, as Securities Warrant agent, all as set forth in the Prospectus
Supplement relating to the particular issue of offered Securities Warrants. The
Securities Warrant agent will act solely as an agent of the Company in
connection with the Securities Warrant certificates relating to the Securities
Warrants and will not assume any obligation or relationship of agency or trust
for or with any holders of Securities Warrant certificates or beneficial owners
of Securities Warrants. The following summaries of certain provisions of the
Securities Warrant Agreements and Securities Warrants do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the Securities Warrant Agreement and the Securities
Warrant certificates relating to each series of Security Warrants which will be
filed with the Commission and incorporated by reference as an exhibit to the
Registration Statement of which this Prospectus is a part at or prior to the
time of the issuance of such series of Security Warrants.
GENERAL
If Securities Warrants are offered, the applicable Prospectus Supplement will
describe the terms of such Securities Warrants, including, in the case of
Securities Warrants for the purchase of Debt Securities, the following where
applicable: (i) the offering price; (ii) the denominations and terms of the
series of Debt Securities purchasable upon exercise of such Securities Warrants
and whether such Debt Securities are Senior Debt Securities or Subordinated
Debt Securities; (iii) the designation and terms of any series of Debt
Securities, Preferred Stock or Depositary Shares with which such Securities
Warrants are being offered and the number of such Securities Warrants being
offered with each such Debt Security, Preferred Stock or
25
<PAGE>
Depositary Share; (iv) the date, if any, on and after which such Securities
Warrants and the related series of Debt Securities, Preferred Stock or
Depositary Shares will be transferable separately; (v) the principal amount of
the series of Debt Securities purchasable upon exercise of each such Securities
Warrant and the price at which such principal amount of Debt Securities of such
series may be purchased upon such exercise; (vi) the date on which the right to
exercise such Securities Warrants shall commence and the date (the "Expiration
Date") on which such right shall expire; (vii) whether the Securities Warrants
will be issued in registered or bearer form; (viii) any special United States
Federal income tax consequences; (ix) the terms, if any, on which the Company
may accelerate the date by which the Securities Warrants must be exercised; and
(x) any other terms of such Securities Warrants.
In the case of Securities Warrants for the purchase of Preferred Stock,
Depositary Shares or Common Stock, the applicable Prospectus Supplement will
describe the terms of such Securities Warrants, including the following where
applicable: (i) the offering price; (ii) the aggregate number of shares
purchasable upon exercise of such Securities Warrants, the exercise price, and
in the case of Securities Warrants for Preferred Stock or Depositary Shares,
the designation, aggregate number and terms of the series of Preferred Stock
purchasable upon exercise of such Securities Warrants or underlying the
Depositary Shares purchasable upon exercise of such Securities Warrants; (iii)
the designation and terms of the series of Debt Securities, Preferred Stock or
Depositary Shares with which such Securities Warrants are being offered and the
number of such Securities Warrants being offered with each such Debt Security,
Preferred Stock or Depositary Share; (iv) the date, if any, on and after which
such Securities Warrants and the related series of Debt Securities, Preferred
Stock, Depositary Shares or Common Stock will be transferable separately; (v)
the date on which the right to exercise such Securities Warrants shall commence
and the Expiration Date; (vi) any special United States Federal income tax
consequences; and (vii) any other terms of such Securities Warrants. Securities
Warrants for the purchase of Preferred Stock, Depositary Shares or Common Stock
will be offered and exercisable for United States dollars only and will be in
registered form only.
Securities Warrant certificates may be exchanged for new Securities Warrant
certificates of different denominations, may (if in registered form) be
presented for registration of transfer, and may be exercised at the corporate
trust office of the Securities Warrant agent or any other office indicated in
the applicable Prospectus Supplement. Prior to the exercise of any Securities
Warrant to purchase Debt Securities, holders of such Securities Warrants will
not have any of the rights of Holders of the Debt Securities purchasable upon
such exercise, including the right to receive payments of principal of,
premium, if any, or interest, if any, on such Debt Securities or to enforce
covenants in the applicable indenture. Prior to the exercise of any Securities
Warrants to purchase Preferred Stock, Depositary Shares or Common Stock,
holders of such Securities Warrants will not have any rights of holders of such
Preferred Stock, Depositary Shares or Common Stock, including the right to
receive payments of dividends, if any, on such Preferred Stock or Common Stock,
or to exercise any applicable right to vote.
CERTAIN RISK CONSIDERATIONS
Any Securities Warrants issued by the Company will involve a certain degree
of risk, including risks arising from fluctuations in the price of the
underlying securities and general risks applicable to the stock market (or
markets) on which the underlying securities are traded.
Prospective purchasers of the Securities Warrants should recognize that the
Securities Warrants may expire worthless and, thus, purchasers should be
prepared to sustain a total loss of the purchase price of their Securities
Warrants. This risk reflects the nature of a Securities Warrant as an asset
which, other factors held constant, tends to decline in value over time and
which may, depending on the price of the underlying securities, become
worthless when it expires. The trading price of a Securities Warrant at any
time is expected to increase if the price or, if applicable, dividend rate on
the underlying securities, increases. Conversely, the trading price of a
Securities Warrant is expected to decrease as the time remaining to expiration
of the Securities Warrant decreases and as the price or, if applicable,
dividend rate on the underlying securities,
26
<PAGE>
decreases. Assuming all other factors are held constant, the more a Securities
Warrant is "out-of-the-money" (i.e., the more the exercise price exceeds the
price of the underlying securities and the shorter its remaining term to
expiration), the greater the risk that a purchaser of the Securities Warrant
will lose all or part of his or her investment. If the price of the underlying
securities does not rise before the Securities Warrant expires to an extent
sufficient to cover a purchaser's cost of the Securities Warrant, the purchaser
will lose all or part of his or her investment in such Securities Warrant upon
expiration.
In addition, prospective purchasers of the Securities Warrants should be
experienced with respect to options and option transactions and understand the
risks associated with options and should reach an investment decision only
after careful consideration, with their financial advisers, of the suitability
of the Securities Warrants in light of their particular financial circumstances
and the information discussed herein and, if applicable, the Prospectus
Supplement. Before purchasing, exercising or selling any Securities Warrants,
prospective purchasers and holders of Securities Warrants should carefully
consider, among other things, (i) the trading price of the Securities Warrants,
(ii) the price of the underlying securities at such time, (iii) the time
remaining to expiration and (iv) any related transaction costs. Some of the
factors referred to above are in turn influenced by various political, economic
and other factors that can affect the trading price of the underlying
securities and should be carefully considered prior to making any investment
decisions.
Purchasers of the Securities Warrants should further consider that the
initial offering price of the Securities Warrants may be in excess of the price
that a purchaser of options might pay for a comparable option in a private,
less liquid transaction. In addition, it is not possible to predict the price
at which the Securities Warrants will trade in the secondary market or whether
any such market will be liquid. The Company may, but is not obligated to, file
an application to list any Securities Warrants issued on a United States
national securities exchange. To the extent that any Securities Warrants are
exercised, the number of Securities Warrants outstanding will decrease, which
may result in a lessening of the liquidity of the Securities Warrants. Finally,
the Securities Warrants will constitute direct, unconditional and unsecured
obligations of the Company and as such will be subject to any changes in the
perceived creditworthiness of the Company.
EXERCISE OF SECURITIES WARRANTS
Each Securities Warrant will entitle the holder thereof to purchase such
principal amount of Debt Securities or number of shares of Preferred Stock,
Depositary Shares or Common Stock, as the case may be, at such exercise price
as shall in each case be set forth in, or calculable from, the Prospectus
Supplement relating to the offered Securities Warrants. After the close of
business on the Expiration Date (or such later date to which such Expiration
Date may be extended by the Company), unexercised Securities Warrants will
become void.
Securities Warrants may be exercised by delivering to the Securities Warrant
agent payment as provided in the applicable Prospectus Supplement of the amount
required to purchase the Debt Securities, Preferred Stock, Depositary Shares or
Common Stock, as the case may be, purchasable upon such exercise together with
certain information set forth on the reverse side of the Securities Warrant
certificate. Securities Warrants will be deemed to have been exercised upon
receipt of payment of the exercise price, subject to the receipt within five
(5) business days, of the Securities Warrants certificate evidencing such
Securities Warrants. Upon receipt of such payment and the Securities Warrant
certificate properly completed and duly executed at the corporate trust office
of the Securities Warrant agent or any other office indicated in the applicable
Prospectus Supplement, the Company will, as soon as practicable, issue and
deliver the Debt Securities, Preferred Stock, Depositary Shares or Common
Stock, as the case may be, purchasable upon such exercise. If fewer than all of
the Securities Warrants represented by such Securities Warrant certificate are
exercised, a new Securities Warrant certificate will be issued for the
remaining amount of Securities Warrants.
27
<PAGE>
AMENDMENTS AND SUPPLEMENTS TO SECURITIES WARRANT AGREEMENTS
The Securities Warrant Agreements may be amended or supplemented without the
consent of the holders of the Securities Warrants issued thereunder to effect
changes that are not inconsistent with the provisions of the Securities
Warrants and that do not adversely affect the interests of the holders of the
Securities Warrants.
COMMON STOCK WARRANT ADJUSTMENTS
Unless otherwise indicated in the applicable Prospectus Supplement, the
exercise price of, and the number of shares of Common Stock covered by, a
Common Stock Warrant are subject to adjustment in certain events, including (i)
payment of a dividend on the Common Stock payable in capital stock and stock
splits, combinations or reclassifications of the Common Stock, (ii) issuance to
all holders of Common Stock of rights or warrants to subscribe for or purchase
shares of Common Stock at less than their current market price (as defined in
the Securities Warrant Agreement for such series of Common Stock Warrants), and
(iii) certain distributions of evidences of indebtedness or assets (including
securities but excluding cash dividends or distributions paid out of
consolidated earnings or retained earnings or dividends payable in Common
Stock) or of subscription rights and warrants (excluding those referred to
above). If after the distribution date fixed for purposes of distributing to
holders of Common Stock any Rights, exercising holders of any Common Stock
Warrant are not entitled to receive Rights that would otherwise be attributable
(but for the date of exercise) to the shares of Common Stock received upon such
exercise, then adjustment of the exercise price will be made under clause (iii)
of this paragraph as if the Rights were then being distributed to holders of
Common Stock. If such an adjustment is made and the Rights are later redeemed,
invalidated or terminated, then a corresponding reversing adjustment will be
made to the number of shares of Common Stock issuable upon the exercise of such
Common Stock Warrant, on an equitable basis, to take account of such event.
However, the Company may elect to make provision with respect to Rights so that
each share of Common Stock issuable upon exercise of such Common Stock Warrant
whether or not issued after the distribution date for such Rights, will be
accompanied by the Rights that would otherwise be attributable (but for the
date of exercise) to such shares of Common Stock, in which event the preceding
two sentences will not apply.
No adjustment in the exercise price of, and the number of shares of Common
Stock covered by, a Common Stock Warrant will be made for regular quarterly or
other periodic or recurring cash dividends or distributions or for cash
dividends or distributions to the extent paid from consolidated earnings or
retained earnings. No adjustment will be required unless such adjustment would
require a change of at least 1% in the exercise price then in effect. Except as
stated above, the exercise price of, and the number of shares of Common Stock
covered by, a Common Stock Warrant will not be adjusted for the issuance of
Common Stock or any securities convertible into or exchangeable for Common
Stock, or carrying the right or option to purchase or otherwise acquire the
foregoing, in exchange for cash, other property or services.
In the event of any (i) consolidation or merger of the Company with or into
any entity (other than a consolidation or a merger that does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock), (ii) sale, transfer, lease or conveyance of all or substantially
all of the assets of the Company or (iii) reclassification, capital
reorganization or change of the Common Stock (other than solely a change in par
value or from par value to no par value), then any holder of a Common Stock
Warrant will be entitled, on or after the occurrence of any such event, to
receive on exercise of such Common Stock Warrant the kind and amount of shares
of stock or other securities, cash or other property (or any combination
thereof) that the holder would have received had such holder exercised such
holder's Common Stock Warrant immediately prior to the occurrence of such
event. If the consideration to be received upon exercise of the Common Stock
Warrant following any such event consists of common stock of the surviving
entity, then from and after the occurrence of such event, the exercise price of
such Common Stock Warrant will be subject to the same anti-dilution and other
adjustments described in the second preceding paragraph, applied as if such
common stock were Common Stock.
28
<PAGE>
PLAN OF DISTRIBUTION
The Company and/or the Trust may sell the Securities to one or more
underwriters for public offering and sale by them or may sell the Securities to
investors directly or through agents. Any such underwriter or agent involved in
the offer and sale of Securities will be named in the applicable Prospectus
Supplement. Each of the Company and the Trust has reserved the right to sell
Securities directly to investors on its own behalf in those jurisdictions where
and in such manner as it is authorized to do so.
Underwriters may offer and sell Securities at a fixed price or prices, which
may be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. Each of the
Company and the Trust also may offer and sell Securities in exchange for one or
more of its outstanding issues of the Securities or other securities. Each of
the Company and the Trust also may, from time to time, authorize dealers,
acting as agents of the Company and/or the Trust, to offer and sell Securities
upon the terms and conditions as are set forth in the applicable Prospectus
Supplement. In connection with the sale of Securities, underwriters may receive
compensation from the Company or the Trust in the form of underwriting
discounts or commissions and may also receive commissions from purchasers of
the Securities for whom they may act as agent. Underwriters may sell Securities
to or through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agent.
Any underwriting compensation paid by the Company or the Trust to
underwriters or agents in connection with the offering of Securities, and any
discounts, concessions or commissions allowed by underwriters to participating
dealers, will be set forth in the applicable Prospectus Supplement. Dealers and
agents participating in the distribution of Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the Securities may be deemed to be underwriting
discounts and commissions. Underwriters, dealers and agents may be entitled,
under agreements entered into with the Company or the Trust, to indemnification
against and contribution toward certain civil liabilities.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-K of the Company for the year ended
December 31, 1994, have been so incorporated in reliance on the report of Price
Waterhouse LLP, independent accountants, given on the authority of said firm as
experts in auditing and accounting.
29
<PAGE>
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NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY IN-
FORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPO-
RATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER MADE BY THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY AGENT, DEALER OR
UNDERWRITER. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUN-
DER SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY STATE IN WHICH
SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH
OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UN-
LAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
----------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
PROSPECTUS
<S> <C>
Available Information...................................................... 2
Incorporation of Certain Documents by Reference............................ 2
The Company................................................................ 4
The Trust.................................................................. 4
Use of Proceeds............................................................ 5
Selected Financial Data.................................................... 6
Ratio of Earnings to Fixed Charges......................................... 7
Description of Debt Securities............................................. 7
Description of Preferred Stock............................................. 13
Description of Depositary Shares........................................... 18
Description of Common Stock................................................ 21
Description of Preferred Securities........................................ 22
Description of Guarantee................................................... 23
Description of Securities Warrants......................................... 25
Plan of Distribution....................................................... 29
Experts.................................................................... 29
</TABLE>
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$750,000,000
[LOGO OF GREAT WESTERN FINANCIAL CORPORATION]
SECURITIES
----------------
PROSPECTUS
----------------
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Registration fee................................................... $ 77,586
Rating agency fees................................................. 75,000
Printing and engraving expenses.................................... 150,000
Accounting fees and expenses....................................... 100,000
Legal fees and expenses............................................ 200,000
Blue sky fees and expenses......................................... 30,000
Fees and expenses of Transfer Agent or Trustee..................... 30,000
Miscellaneous...................................................... 12,414
--------
Total............................................................ $675,000
========
</TABLE>
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* Expenses are estimated except for the registration fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article TWELFTH of the Restated Certificate of Incorporation of the Company
eliminates, to the fullest extent permitted by Delaware law, director liability
for monetary damages for breaches of the directors' fiduciary duty of care.
The Company's Bylaws as well as certain employment agreements and other
indemnity agreements also provide that the Company shall indemnify directors
and officers under certain circumstances for liabilities and expenses incurred
by reason of their actions as agents of the Company. In addition, the Company
maintains no insurance policy that indemnifies directors and officers against
certain liabilities.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
4.1 Restated Certificate of Incorporation of the Company (included as an
exhibit to the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1992 and incorporated herein by reference).
4.2 Rights Agreement, dated as of June 24, 1986 (filed as an exhibit to
the Company's Current Report on Form 8-K, dated July 3, 1986, and
incorporated herein by reference).
4.3 First Amendment to Rights Agreement, dated as of February 19, 1988
(filed as an exhibit to the Company's Current Report on Form 8-K,
dated February 24, 1988, and incorporated herein by reference).
4.4 Second Amendment to Rights Agreement, dated as of June 27, 1995 (filed
as an exhibit to the Company's Current Report on Form 8-K dated June
30, 1995 and incorporated herein by reference).
4.5 New Rights Agreement, dated as of June 27, 1995, between the Company
and First Chicago Trust Company of New York (filed as an exhibit to
the Company's Current Report on Form 8-K dated June 30, 1995 and
incorporated herein by reference).
4.6 Form of Deposit Agreement (filed as an exhibit to Registration
Statement No. 33-60206 and incorporated herein by reference).
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
4.7 Form of Depositary Receipt (attached as Exhibit A to Deposit Agreement
included as Exhibit 4.6 hereto).
4.8 Indenture, dated as of September 12, 1990, between the Company and
First Interstate Bank, Ltd., relating to the Senior Debt Securities
(included as an exhibit to Registration Statement No. 33-34322 and
incorporated herein by reference).
4.9 First Supplemental Indenture, dated as of April 30, 1993, to Indenture
dated as of September 12, 1990, among the Company, First Interstate
Bank, Ltd. and Citibank, N.A. (filed as an exhibit to Registration
Statement No. 33-60206 and incorporated herein by reference).
4.10 Indenture, dated as of September 12, 1990, between the Company and
Harris Trust and Savings Bank, relating to the Subordinated Debt
Securities (included as an exhibit to Registration Statement
No. 33-34322 and incorporated herein by reference).
4.11 First Supplemental Indenture, dated as of April 30, 1993, to Indenture
dated as of September 12, 1990, between the Company and Harris Trust
and Savings Bank (filed as an exhibit to Registration Statement
No. 33-60206 and incorporated herein by reference).
4.12 Form of Second Supplemental Indenture to Indenture dated as of
September 12, 1990, as amended, between the Company and Harris Trust
and Savings Bank.
4.13 Declaration of Trust of Great Western Financial Trust I.
4.14 Form of Amended and Restated Declaration of Trust of Great Western
Financial Trust I.
4.15 Form of Preferred Security (attached as Annex 1 to Exhibit A to the
Form of Amended and Restated Declaration of Trust included as Exhibit
4.14 hereto).
4.16 Form of Guarantee with respect to Preferred Securities.
4.17 Form of Certificate of Designations with respect to a series of
Preferred Stock.
*5 Opinion of O'Melveny & Myers as to the validity of the Securities.
12 Computation of Ratio of Earnings to Fixed Charges (included as an
exhibit to the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1994 and the Company's Quarterly Reports on
Form 10-Q for the quarters ended March 31, 1995 and June 30, 1995 and
incorporated herein by reference).
23.1 Consent of Price Waterhouse LLP
*23.2 Consent of O'Melveny & Myers (included in Exhibit 5).
24 Power of Attorney (see page II-4).
*25.1 Form T-1 Statement of Eligibility of Citibank, N.A. with respect to
the Senior Indenture.
25.2 Form T-1 Statement of Eligibility of Harris Trust and Savings Bank
with respect to the Subordinated Indenture.
25.3 Form T-1 Statement of Eligibility of The First National Bank of
Chicago with respect to the Amended and Restated Declaration of Trust
of Great Western Financial Trust I.
25.4 Form T-1 Statement of Eligibility of The First National Bank of
Chicago with respect to the Guarantee.
99.1 Form of Prospectus Supplement for an offering of Preferred Securities.
</TABLE>
- --------
* To be filed by amendment or pursuant to a Form 8-K.
ITEM 17. UNDERTAKINGS.
Each of the undersigned Registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to the Registration Statement:
II-2
<PAGE>
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, unless the information required to be included
in such post-effective amendment is contained in a periodic report
filed by Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 and incorporated herein by reference;
(ii) To reflect in the Prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement, unless the information required to be
included in such post-effective amendment is contained in a periodic
report filed by the Company pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 and incorporated herein by
reference;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Company's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the Registration Statement shall be deemed to
be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of each
of the Registrants pursuant to the provisions described in Item 15 above, or
otherwise, each of the Registrants has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by a Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, each of the Registrants
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
The Company hereby undertakes to file an application for the purpose of
determining the eligibility of the trustee under the Senior Indenture to act
under subsection (a) of Section 310 of the Trustee Indenture Act in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Trust Indenture Act.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF LOS ANGELES, STATE OF CALIFORNIA, ON SEPTEMBER 28,
1995.
Great Western Financial Corporation
By Carl F. Geuther
--------------------------------
CARL F. GEUTHER
EXECUTIVE VICE PRESIDENT
POWER OF ATTORNEY
EACH PERSON WHOSE SIGNATURE APPEARS BELOW HEREBY CONSTITUTES AND APPOINTS
JOHN F. MAHER, CARL F. GEUTHER AND J. LANCE ERIKSON, AND EACH OF THEM, HIS OR
HER TRUE AND LAWFUL ATTORNEYS-IN-FACT AND AGENTS, WITH FULL POWERS OF
SUBSTITUTION, FOR HIM OR HER AND IN HIS OR HER NAME, PLACE AND STEAD, IN ANY
AND ALL CAPACITIES, TO SIGN AND FILE ANY AND ALL AMENDMENTS, INCLUDING POST-
EFFECTIVE AMENDMENTS, TO THIS REGISTRATION STATEMENT, AND OTHER DOCUMENTS
THEREWITH, WITH THE SECURITIES AND EXCHANGE COMMISSION, GRANTING TO SAID
ATTORNEYS-IN-FACT FULL POWER AND AUTHORITY TO PERFORM ANY OTHER ACT ON BEHALF
OF THE UNDERSIGNED REQUIRED TO BE DONE IN THE PREMISES.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES AND
ON THE DATES INDICATED.
SIGNATURE TITLE DATE
--------- ----- ----
James F. Montgomery Chairman and Chief September 28, 1995
- ------------------------------ Executive
JAMES F. MONTGOMERY (Principal
Executive Officer)
and Director
John F. Maher President and Chief September 28, 1995
- ------------------------------ Operating Officer
JOHN F. MAHER and Director
Carl F. Geuther Executive Vice September 28, 1995
- ------------------------------ President and
CARL F. GEUTHER Chief Financial
Officer (Principal
Financial Officer
and Chief
Accounting
Officer)
Director , 1995
- ------------------------------
DR. DAVID ALEXANDER
H. Frederick Christie Director September 28, 1995
- ------------------------------
H. FREDERICK CHRISTIE
II-4
<PAGE>
SIGNATURE TITLE DATE
--------- ----- ----
S. E. Frank Director September 28, 1995
- ------------------------------
STEPHEN E. FRANK
John V. Giovenco Director September 28, 1995
- ------------------------------
JOHN V. GIOVENCO
Director , 1995
- ------------------------------
FIRMIN A. GRYP
Enrique Hernandez, Jr. Director September 28, 1995
- ------------------------------
ENRIQUE HERNANDEZ, JR.
Charles D. Miller Director September 28, 1995
- ------------------------------
CHARLES D. MILLER
Director , 1995
- ------------------------------
DR. ALBERTA E. SIEGEL
Willis B. Wood, Jr. Director September 28, 1995
- ------------------------------
WILLIS B. WOOD, JR.
Pursuant to the requirements of the Securities Act of 1933, Great Western
Financial Trust I certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Los Angeles, State of California on the 28th
day of September 1995.
Great Western Financial Trust I
Carl F. Geuther
By: __________________________________
Carl F. Geuther, as Trustee
J. Lance Erikson
By: __________________________________
J. Lance Erikson, as Trustee
Bruce Antenberg
By: __________________________________
Bruce F. Antenberg, as Trustee
II-5
<PAGE>
EXHIBIT 4.12
================================================================================
GREAT WESTERN FINANCIAL CORPORATION
TO
HARRIS TRUST AND SAVINGS BANK, as Trustee
---------------------
SECOND SUPPLEMENTAL INDENTURE
dated as of , 1995
--------
---------------------
% Subordinated Deferrable
----
Interest Notes Due 2025
================================================================================
<PAGE>
Table of Contents
Page
----
ARTICLE I
Definitions............................. 2
Section 1.1. Definition of Terms......................................... 2
-------------------
ARTICLE II
General Terms and Conditions of the Notes.............. 3
Section 2.1. Designation and Principal Amount............................ 3
--------------------------------
Section 2.2. Maturity.................................................... 3
--------
Section 2.3. Form and Payment............................................ 4
----------------
Section 2.4. Global Note................................................. 5
-----------
Section 2.5. Interest.................................................... 6
--------
ARTICLE III
Redemption of the Notes....................... 8
Section 3.1. Tax Event Redemption........................................ 8
--------------------
Section 3.2. Regulatory Redemption Event................................. 9
---------------------------
Section 3.3. Optional Redemption by Company.............................. 9
------------------------------
Section 3.4 Clean Up Redemption by the Company.......................... 10
----------------------------------
Section 3.5 Redemption Procedures....................................... 10
---------------------
Section 3.6. No Sinking Fund............................................. 10
---------------
ARTICLE IV
Extension of Interest Payment Period................. 10
Section 4.1. Extension of Interest Payment Period........................ 10
------------------------------------
Section 4.2. Notice of Extension......................................... 11
-------------------
ARTICLE V
Expenses............................... 11
Section 5.1. Payment of Expenses......................................... 11
-------------------
ARTICLE VI
Subordination............................ 12
Section 6.1. Agreement to Subordinate.................................... 12
------------------------
i
<PAGE>
ARTICLE VII
CONVERSION OF NOTES.......................... 12
Section 7.1. Conversion Privilege......................................... 12
--------------------
Section 7.2. Exercise of Retention Privilege.............................. 13
-------------------------------
ARTICLE VIII
Covenants............................... 13
Section 8.1. Listing on an Exchange....................................... 13
----------------------
Section 8.2. Notification of Regulatory Event............................. 14
--------------------------------
Section 8.3 Limitation on Dividends; Transactions with Affiliates........ 14
-----------------------------------------------------
Section 8.4 Covenants as to the Trust.................................... 15
-------------------------
ARTICLE IX
Events of Default........................... 15
Section 9.1. Events of Default............................................ 15
-----------------
ARTICLE X
Form of Note.............................. 15
Section 10.1. Form of Note................................................. 15
------------
ARTICLE XI
Original Issue of Notes........................ 23
Section 11.1. Original Issue of Notes...................................... 23
-----------------------
ARTICLE XII
Miscellaneous............................. 23
Section 12.1. Ratification of Indenture................................... 23
-------------------------
Section 12.2. Trustee Not Responsible for Recitals........................ 23
------------------------------------
Section 12.3. Governing Law............................................... 23
-------------
Section 12.4. Separability................................................ 23
------------
Section 12.5. Counterparts................................................ 24
------------
ii
<PAGE>
SECOND SUPPLEMENTAL INDENTURE, dated as of , 1995 (the
--------------
"Second Supplemental Indenture"), between Great Western Financial Corporation, a
Delaware corporation (the "Company"), Harris Trust and Savings Bank, as trustee
(the "Trustee") under the Indenture dated as of September 12, 1990, as amended
and supplemented by the First Supplemental Indenture, dated as of April 30,
1993, between the Company and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the Trustee to
provide for the future issuance of the Company's unsecured and subordinated debt
securities to be issued from time to time in one or more series as might be
determined by the Company under the Indenture, in an unlimited aggregate
principal amount which may be authenticated and delivered as provided in the
Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a new series of its Securities to be known as
its " % Subordinated Deferrable Interest Notes due 2025" (the "Notes"), the
----
form and substance of such Notes and the terms, provisions and conditions
thereof to be set forth as provided in the Indenture and this Second
Supplemental Indenture;
WHEREAS, Great Western Financial Trust I, a Delaware statutory business
trust (the "Trust"), has offered to the public $[ ] aggregate liquidation
amount of its % Trust Originated Preferred Securities (the "Preferred
----
Securities"), representing undivided beneficial interests in the assets of the
Trust and proposes to invest the proceeds from such offering in $[ ]
aggregate principal amount of the Notes; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this Second Supplemental Indenture and all requirements necessary to make this
Second Supplemental Indenture a valid instrument in accordance with its terms
and to make the Notes, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company have been
performed, and the execution and delivery of this Second Supplemental Indenture
has been duly authorized in all respects;
NOW THEREFORE, in consideration of the purchase and acceptance of the Notes
by the Holders thereof, and for the purpose of setting forth, as provided in the
Indenture, the form and substance of the Notes and the terms, provisions and
conditions thereof, the Company covenants and agrees with the Trustee as
follows:
1
<PAGE>
ARTICLE I
Definitions
Section 1.1. Definition of Terms.
-------------------
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in this
Second Supplemental Indenture;
(b) a term defined anywhere in this Second Supplemental Indenture has the
same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of this
Second Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) for purposes of the Notes only, the following terms have the meanings
given to them in the Declaration notwithstanding a contrary definition
in the Indenture: (i) Business Day; (ii) Common Securities; (iii)
Delaware Trustee; (iv) Depositary; (v) Dissolution Tax Opinion; (vi)
Ministerial Action; (vii) No Recognition Opinion; (viii) Preferred
Securities Guarantee; (ix) Property Trustee; (x) Redemption Tax
Opinion; (xi) Regular Trustees; (xii) Regulatory Event; (xiii)
Regulatory Redemption Event; (xiv) Special Event; (xv) Trust
Securities; and (xvi) Tax Event; and
(g) the following terms have the meanings given to them in this Section
1.1(g):
"Additional Interest" has the meaning given such term in Section 2.5(c).
"Compounded Interest" has the meaning given such term in Section 4.1.
"Coupon Rate" has the meaning given such term in Section 2.5.
"Deferred Interest" means Additional Interest and Compounded Interest.
"Declaration" means the Amended and Restated Declaration of Trust of the
Trust dated , 1995.
------------
"Depositary Shares" means the Depositary Shares of the Company, $25.00
liquidation preference per share, each representing a one-tenth interest in a
share of % Cumulative
---
2
<PAGE>
Preferred Stock of the Company, $250 liquidation preference per share (the
"Cumulative Preferred"). The rights and preferences of the Cumulative Preferred
are as established in the Certificate of Designations of Rights and Preferences
of Preferred Stock filed with the Secretary of State of the State of Delaware on
, 1995.
- -------
"Dissolution Event" means that as a result of the occurrence and
continuation of a Special Event or as a result of a Regulatory Event, the Trust
is to be dissolved in accordance with the Declaration, and the Notes held by the
Property Trustee are to be distributed to the holders of the Trust Securities
issued by the Trust pro rata in accordance with the Declaration.
"Extended Maturity Date" means, if the Company elects to extend the
Maturity Date in accordance with Section 2.2(b), the date selected by the
Company which is after the Stated Maturity Date but before , 2044.
--------------
"Extended Interest Payment Period" has the meaning given such term in
Section 4.1.
"Global Note" has the meaning given such term in Section 2.4(a)(i).
"Maturity Date" means the date on which the Notes mature and on which the
principal shall be due and payable together with all accrued and unpaid interest
thereon, including Deferred Interest, if any.
"Non Book-Entry Preferred Securities" has the meaning given such term in
Section 2.4(a)(ii).
ARTICLE II
General Terms and Conditions of the Notes
Section 2.1. Designation and Principal Amount.
--------------------------------
There is hereby authorized a series of Debt Securities designated the " %
---
Subordinated Deferrable Interest Notes due 2025", limited in aggregate principal
amount to $[ million], which amount shall be as set forth in any written
Company Order for the authentication and delivery of Notes pursuant to Section
303 of the Indenture.
Section 2.2. Maturity.
--------
(a) The Maturity Date will be either:
(i) , 2025; or
--------------------
3
<PAGE>
(ii) if the Company elects to extend the Maturity Date beyond
, 2025 in accordance with Section 2.2(b), the
----------------
Extended Maturity Date;
(b) the Company may at any time before the day which is 90 days before
, 2025, elect to extend the Maturity Date only once to the
------------
Extended Maturity Date, provided that the following conditions in this
-------- ----
Section 2.2(b) are satisfied both at the date the Company gives notice
in accordance with Section 2.2(c) of its election to extend the
Maturity Date and at , 2025:
----------
(i) the Company is not in bankruptcy or otherwise insolvent;
(ii) the Company is not in default on any Notes issued to the Trust
or any trustee of the Trust or to any trust or trustee of the
Trust in connection with the issuance of Trust Securities by the
Trust;
(iii) the Company has made timely payments on the Notes for the
immediately preceding 18 months without deferrals;
(iv) the Trust is not in arrears on payments of Distributions on the
Trust Securities issued by it; and
(v) the Notes are rated in one of the four highest rating categories
by any one of Standard & Poor's Corporation, Moody's Investors
Service, Inc., Fitch Investor Services, Duff & Phelps Credit
Rating Company or any other nationally recognized statistical
rating organization; and
(c) if the Company elects to extend the Maturity Date in accordance with
Section 2.2(b), the Company shall give notice to Holders of the Notes,
the Property Trustee, the Trust and the Trustee of the extension of
the Maturity Date and the Extended Maturity Date at least 90 days
before , 2025.
--------------
Section 2.3. Form and Payment.
----------------
Except as provided in Section 2.4, the Notes shall be issued as Registered
Debt Securities in fully registered certificated form without interest coupons.
So long as the Holder of any Notes is the Property Trustee, the payment of the
principal of and interest, including Deferred Interest, if any, on such Notes
held by the Property Trustee will be made at such place and to such account as
may be designated by the Property Trustee.
4
<PAGE>
Section 2.4. Global Note.
-----------
(a) In connection with a Dissolution Event:
(i) the Notes in certificated form may be presented to the Trustee by
the Property Trustee in exchange for one or more global Notes in
an aggregate principal amount equal to all Outstanding Notes (a
"Global Note") to be registered in the name of the Depositary, or
its nominee, and delivered by the Trustee to or for the account
of the Depositary for crediting to the accounts of its
participants pursuant to the instructions of the Regular
Trustees. The Company upon any such presentation shall execute a
Global Note in such aggregate principal amount and deliver the
same to the Trustee for authentication and delivery in accordance
with the Indenture and this Second Supplemental Indenture.
Payments on the Notes issued as a Global Note will be made to the
Depositary; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Notes in certificated form may be
presented to the Trustee by the Property Trustee and any
Preferred Security Certificate which represents Preferred
Securities other than Preferred Securities held by the Depositary
or its nominee ("Non Book-Entry Preferred Securities") will be
deemed to represent beneficial interests in Notes presented to
the Trustee by the Property Trustee having an aggregate principal
amount equal to the aggregate liquidation amount of the Non Book-
Entry Preferred Securities until such Preferred Security
Certificates are presented to the Debt Securities Registrar for
transfer or reissuance at which time such Preferred Security
Certificates will be cancelled and a Note registered in the name
of the holder of the Preferred Security Certificate or the
transferee of the holder of such Preferred Security Certificate,
as the case may be, with an aggregate principal amount equal to
the aggregate liquidation amount of the Preferred Security
Certificate cancelled will be executed by the Company and
delivered to the Trustee for authentication and delivery in
accordance with the Indenture and this Second Supplemental
Indenture. On issue of such Notes, Notes with an equivalent
aggregate principal amount that were presented by the Property
Trustee to the Trustee will be deemed to have been cancelled.
5
<PAGE>
(b) A Global Note may be transferred, in whole but not in part only to
another nominee of the Depositary, or to a successor Depositary
selected or approved by the Company or to a nominee of such successor
Depositary.
(c) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or if at any time the
Depositary for such series shall no longer be registered or in good
standing under the Securities Exchange Act of 1934, as amended, or
other applicable statute or regulation, and a successor Depositary for
such series is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such condition, as
the case may be, the Company will execute, and, subject to the
Indenture, the Trustee will authenticate and deliver the Notes in
definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the
principal amount of the Global Note in exchange for such Global Note.
In addition, the Company may at any time determine that the Notes
shall no longer be represented by a Global Note. In such event the
Company will execute and, subject to Article Two of the Indenture, the
Trustee will authenticate and deliver the Notes in definitive
registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the
Global Note in exchange for such Global Note. Upon the exchange of
the Global Note for such Notes in definitive registered form without
coupons, in authorized denominations, the Global Note shall be
cancelled by the Trustee. Such Notes in definitive registered form
issued in exchange for the Global Note shall be registered in such
names and in such authorized denominations as the Depositary, pursuant
to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Notes to
the Depositary for delivery to the Persons in whose names such Notes
are so registered.
Section 2.5. Interest.
--------
(a) Each Note will bear interest at the rate of % per annum (the
---
"Coupon Rate") from the original date of issuance until the principal
thereof becomes due and payable, and on any overdue principal and (to
the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the Coupon
Rate, compounded quarterly, payable (subject to the provisions of
Article Four of this Second Supplemental Indenture) quarterly in
arrears on March 31, June 30, September 30 and December 31 of each
year (each, an "Interest Payment Date",
6
<PAGE>
commencing on , 1995), to the Person in whose name such
--------------
Note or any predecessor Note is registered, at the close of business
on the regular record date for such interest installment, which, in
respect of any Notes of which the Property Trustee is the Holder of or
a Global Note, shall be the close of business on the Business Day next
preceding that Interest Payment Date. Notwithstanding the foregoing
sentence, if the Preferred Securities are no longer in book-entry only
form or if pursuant to the Indenture the Notes are not represented by
a Global Note, the Company may select a regular record date for such
interest installment which shall be any date at least one Business Day
before an Interest Payment Date.
(b) Notwithstanding the foregoing, upon the occurrence of a Regulatory
Event, for a period of 90 days following written notice to the Trustee
of the occurrence of a Regulatory Event, the Company may elect to
reduce the annual interest rate on the Notes to % per annum,
----
effective for all periods on and after the date of distribution of the
Notes to holders of Preferred Securities pursuant to a Dissolution
Event; provided, however, that if the Company has elected to defer
payments of interest as set forth in Article IV, all deferred interest
payments and accrued interest thereon shall be paid before the
distribution of the Notes to holder of Preferred Securities. On and
after the effective date of such reduction, the term "Coupon Rate"
shall mean % per annum and all references to the Notes herein shall
---
be to Notes with the revised Coupon Rate for all periods on and after
the date of distribution of the Notes to holders of Preferred
Securities pursuant to a Dissolution Event.
(c) The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. Except as provided
in the following sentence, the amount of interest payable for any
period shorter than a full quarterly period for which interest is
computed, will be computed on the basis of the actual number of days
elapsed in such a 30-day month. In the event that any date on which
interest is payable on the Notes is not a Business Day, then payment
of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay), except that,
notwithstanding the provisions of Section 113 of the Indenture, if
such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date.
7
<PAGE>
(d) If at any time while the Property Trustee is the Holder of any Notes,
the Trust or the Property Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed by the United States, or any other
taxing authority, then, in any case, the Company will pay as
additional interest ("Additional Interest") on the Notes held by the
Property Trustee, such additional amounts as shall be required so that
the net amounts received and retained by the Trust and the Property
Trustee after paying such taxes, duties, assessments or other
governmental charges will be equal to the amounts the Trust and the
Property Trustee would have received had no such taxes, duties,
assessments or other governmental charges been imposed.
ARTICLE III
Redemption of the Notes
Section 3.1. Tax Event Redemption.
--------------------
If a Tax Event has occurred and is continuing and:
(a) the Company has received a Redemption Tax Opinion; or
(b) after receiving a Dissolution Tax Opinion, the Regular Trustees shall
have been informed by tax counsel rendering the Dissolution Tax
Opinion that a No Recognition Opinion cannot be delivered to the
Trust, then, notwithstanding Section 3.3(a) but subject to Section
3.1(c), the Company shall have the right upon not less than 30 days
nor more than 60 days notice to the Holders of the Notes to redeem the
Notes in whole or in part for cash within 90 days following the
occurrence of such Tax Event (the "90-Day Period"), provided that, if
at the time there is available to the Company the opportunity to
eliminate, within the 90-Day Period, the Tax Event by taking some
Ministerial Action, the Company shall pursue such Ministerial Action
in lieu of redemption, and provided, further, that the Company shall
have no right to redeem the Notes while the Trust is pursuing any
Ministerial Action pursuant to its obligations under the Declaration.
A redemption price equal to 100% of the principal amount of the Notes
redeemed plus any accrued and unpaid interest thereon to the date of
redemption plus Additional and Compounded Interest, if any (the
"Redemption Price"), shall be paid.
8
<PAGE>
Section 3.2. Regulatory Redemption Event.
---------------------------
If a Regulatory Redemption Event has occurred, for a period of 90 days
following written notice to the Trustee of the occurrence of a
Regulatory Redemption Event, the Company shall have the right to
redeem the Notes in whole at the Redemption Price.
Section 3.3. Optional Redemption by Company.
------------------------------
Subject to the provisions of Section 3.3(b) and to the provisions of
Article Eleven of the Indenture, except as otherwise may be specified
in this Second Supplemental Indenture, the Company shall have the
right to redeem the Notes, in whole or in part, from time to time, on
or after , 2000, at the Redemption Price.
--------------
9
<PAGE>
Section 3.4 Clean Up Redemption by the Company.
-----------------------------------
If (i) a Regulatory Event has occurred and Notes with a reduced Coupon Rate
have been distributed to holders of Preferred Securities as contemplated by
Section 2.5(b) hereof and (ii) immediately after such distribution $___________
or less of aggregate principal amount of Notes remain outstanding, the Company
shall have the right to redeem the Notes in whole at the Redemption Price at any
time during the period from the Interest Payment Date on which such Notes were
distributed to holders of Preferred Securities to and including the next
succeeding Interest Payment Date.
Section 3.5 Redemption Procedures.
----------------------
(a) Any redemption pursuant to this Article III will be made upon not less
than 30 nor more than 60 days' notice to the Holder of the Notes at the
Redemption Price. If the Notes are only partially redeemed, the Notes will be
redeemed pro rata or by lot or by any other method utilized by the Trustee;
provided that, if at the time of redemption the Notes are registered as a Global
Note, the Depositary shall determine by lot the principal amount of such Notes
held by each Holder of Notes to be redeemed. The Redemption Price shall be paid
prior to 12:00 noon, New York time, on the date of such redemption or at such
earlier time as the Company determines provided that the Company shall deposit
with the Trustee an amount sufficient to pay the Redemption Price by 10:00 a.m.
on the date such Redemption Price is to be paid.
(b) If a partial redemption of the Notes would result in the delisting of
the Preferred Securities issued by the Trust from any national securities
exchange or other organization on which the Preferred Securities are then
listed, the Company shall not be permitted to effect such partial redemption
and may only redeem the Notes in whole.
Section 3.6. No Sinking Fund.
---------------
The Notes are not entitled to the benefit of any sinking fund.
ARTICLE IV
Extension of Interest Payment Period
Section 4.1. Extension of Interest Payment Period.
------------------------------------
The Company shall have the right, at any time during the term of the Notes,
from time to time, to defer payments of interest by extending the interest
payment period of such Notes for up to 20 consecutive quarters (the "Extended
Interest Payment Period"). To the extent permitted by applicable law, interest,
the payment of which has been deferred because of the extension of the interest
payment period pursuant to this Section 4.1, will bear interest thereon at the
Coupon Rate compounded quarterly for each quarter of the Extended Interest
Payment Period ("Compounded Interest"). At the end of the Extended Interest
Payment Period the Company shall pay all interest accrued and unpaid on the
Notes, including any Deferred Interest that shall be payable, to the Holders of
the Notes in whose names the Notes are registered in the Security Register on
the first record date after the end of the Extended Interest Payment Period.
Before the termination of any Extended Interest Payment Period, the Company may
further extend such period, provided that such period together with all such
further extensions thereof shall not exceed 20 consecutive quarters. Upon the
termination of any Extended Interest Payment Period and upon the payment of all
Deferred Interest then due, the Company may commence a new Extended Interest
Payment Period as if no Extended Interest Payment Period had previously been
declared, subject to the foregoing requirements. No interest
10
<PAGE>
shall be due and payable during an Extended Interest Payment Period, except at
the end thereof.
Section 4.2. Notice of Extension.
-------------------
(a) If the Property Trustee is the only registered Holder of the Notes at
the time the Company selects an Extended Interest Payment Period, the
Company shall give written notice to the Regular Trustees, the
Property Trustee and the Trustee of its selection of such Extended
Interest Payment Period one Business Day before the earlier of (a) the
next succeeding date on which Distributions on the Trust Securities
issued by the Trust are payable, or (b) the date the Trust is required
to give notice of the record date or the date such Distributions are
payable to the New York Stock Exchange or other applicable self-
regulatory organization or to holders of the Preferred Securities
issued by the Trust, but in any event at least one Business Day before
such record date.
(b) If the Property Trustee is not the only Holder of the Notes at the
time the Company selects an Extended Interest Payment Period, the
Company shall give the Holders of the Notes and the Trustee written
notice of its selection of such Extended Interest Payment Period 10
Business Days before the earlier of (i) the next succeeding Interest
Payment Date, or (ii) the date the Company is required to give notice
of the record or payment date of such interest payment to the New York
Stock Exchange or other applicable self-regulatory organization or to
Holders of the Notes.
(c) The quarter in which any notice is given pursuant to paragraphs (a) or
(b) of this Section 4.2 shall be counted as one of the 20 quarters
permitted in the maximum Extended Interest Payment Period permitted
under Section 4.1.
ARTICLE V
Expenses
Section 5.1. Payment of Expenses.
-------------------
In connection with the offering, sale and issuance of the Notes to the
Property Trustee in connection with the sale of the Trust Securities by the
Trust, the Company shall:
(a) pay all costs and expenses relating to the offering, sale and issuance
of the Notes, including commissions to the underwriters payable
pursuant to the Underwriting Agreement and compensation of the Trustee
11
<PAGE>
under the Indenture in accordance with the provisions of Section 607
of the Indenture;
(b) pay all debts and obligations of the Trust (other than with respect to
the Trust Securities) and all costs and expenses of the Trust
(including, but not limited to, costs and expenses relating to the
organization of the Trust, the offering, sale and issuance of the
Trust Securities (including commissions to the underwriters in
connection therewith), the fees and expenses of the Property Trustee
and the Delaware Trustee, the costs and expenses relating to the
operation of the Trust, including without limitation, costs and
expenses of accountants, attorneys, statistical or bookkeeping
services, expenses or printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in
connection with the acquisition, financing, and disposition of Trust
assets);
(c) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs
and expenses with respect to such taxes of the Trust; and
(d) pay any and all fees and expenses related to the enforcement by the
Property Trustee of the rights of the holders of the Preferred
Securities.
ARTICLE VI
Subordination
Section 6.1. Agreement to Subordinate.
------------------------
The Company covenants and agrees, and each Holder of Notes issued hereunder
by such Holder's acceptance thereof likewise covenants and agrees, that all
Notes shall be issued subject to the provisions of Article THIRTEEN of the
Indenture; and each Holder of a Note, whether upon original issue or upon
transfer or assignment thereof, accepts and agrees to be bound by such
provisions.
ARTICLE VII
CONVERSION OF NOTES
Section 7.1. Conversion Privilege.
--------------------
If the Company has elected to adjust the annual interest rate on the Notes
as provided in Section 2.5(b), then on the next Interest Payment Date which is
at least 30 days after notice to
12
<PAGE>
the holders of Trust Securities of the Company's election to adjust the annual
interest rate on the Notes as a result of a Regulatory Event, each Note shall be
converted into Depositary Shares with a liquidation preference equal to the
principal amount of the Notes converted, plus, in cash, any accrued but unpaid
interest on the Notes to the date of conversion, unless prior to such conversion
the holder of the Trust Securities elects not to convert such Note (the
"Retention Privilege"), in which event such holder shall be entitled to receive
the Note.
Section 7.2. Exercise of Retention Privilege.
-------------------------------
In order to exercise the Retention Privilege, if available, the Holder of
any Note or right to receive any Note shall surrender Preferred Securities, duly
endorsed or assigned to the Company or in blank, with a liquidation preference
equal to the principal amount of Notes to be retained, accompanied by written
notice to the Company and delivered to any office or agency of the Company
maintained for that purpose, or if less than the entire principal amount of
Notes to which such holder is entitled is to be retained, the portion thereof to
be retained.
Notes shall be deemed to be converted as of the date Notes are otherwise
distributed to holders of Preferred Securities pursuant to a Dissolution Event
as a result of a Regulatory Event, and at such time the rights of such Holder to
Notes shall cease, and the Person or Persons entitled to receive the Depositary
Shares issuable upon conversion shall be treated for all purposes as the record
holder or holders of such Depositary Shares at such time.
In the case of any Note converted in part only, upon such conversion the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder thereof, at the expense of the Company, a new Note of authorized
denominations in aggregate principal amount to the unconverted portion of the
principal amount of such Note.
ARTICLE VIII
Covenants
Section 8.1. Listing on an Exchange.
----------------------
If the Notes are to be issued as a Global Note in connection with the
distribution of the Notes to the holders of the Preferred Securities issued by
the Trust upon a Dissolution Event and/or Depositary Shares are issued upon
conversion as provided in Article VII, the Company will use its best efforts to
list such Notes or Depositary Shares, as the case may be, on the New York Stock
Exchange or on such other exchange as the Preferred Securities are then listed.
13
<PAGE>
Section 8.2. Notification of Regulatory Event.
--------------------------------
The Company shall promptly notify the Regular Trustees and the Trustee of
the occurrence of a Regulatory Event.
Section 8.3 Limitation on Dividends; Transactions with Affiliates.
-----------------------------------------------------
(a) If Notes are issued to the Trust or a trustee of the Trust and
(i) there shall have occurred any event that would constitute an Event of
Default or (ii) the Company shall be in default with respect of its payment
or any other obligations under the Preferred Securities Guarantee, then (A)
the Company shall not, and shall cause any subsidiary of the Company that
is not a wholly owned subsidiary of the Company not to, declare or pay any
dividend on, make any distributions with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of its capital
stock or the capital stock of any such subsidiary, and (B) the Company
shall not make any payment of interest, principal or premium, if any, on or
repay, repurchase or redeem any debt securities (including guarantees)
issued by the Company which rank pari passu with or junior to the Notes,
provided that the foregoing restriction in clause (A) does not apply to any
stock dividends paid by the Company, or any of its subsidiaries, where the
dividend stock is the same stock as that on which the dividend is being
paid.
(b) If Notes are issued to the Trust or a trustee of the Trust and
the Company shall have given notice of its election to defer payments of
interest on the Notes by extending the interest payment period as provided
in Article IV hereof and such period, or any extension thereof, shall be
continuing, then (A) the Company shall not, and shall cause any subsidiary
of the Company that is not a wholly owned subsidiary of the Company not to,
declare or pay any dividend or, make any distributions with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to,
any of its capital stock or the capital stock of any such subsidiary, and
(B) the Company shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees) issued by the Company which rank pari passu with or
junior to the Notes, provided that the foregoing restriction in clause (A)
does not apply to any stock dividends paid by the Company, or any of its
subsidiaries, where the dividend stock is the same as that on which the
dividend is being paid.
14
<PAGE>
Section 8.4 Covenants as to the Trust.
-------------------------
For so long as such Trust Securities remain outstanding, the Company
will (i) maintain 100% direct or indirect ownership of the Common Securities of
the Trust; provided, however, that any permitted successor of the Company under
the Indenture may succeed to the Company's ownership of the Common Securities,
and (ii) use its reasonable efforts to cause the Trust (A) to remain a statutory
business trust, except in connection with a distribution of Notes as provided in
the Declaration, the redemption of all of the Trust Securities or certain
mergers, consolidations or amalgamations permitted by the Declaration, and (B)
otherwise continue to be treated as a grantor trust for United States federal
income tax purposes.
ARTICLE IX
Events of Default
Section 9.1. Events of Default.
-----------------
For the Notes only, a valid extension of the interest payment period in
accordance with Article IV hereof shall not constitute a Default or Event of
Default under Section 501(1) or (8) of the Indenture.
For the Notes only, the voluntary or involuntary dissolution, winding-up or
termination of the Trust, except in connection with the distribution of the
Notes to the holders of the Trust Securities in liquidation of the Trust, the
redemption of all the Trust Securities, or mergers, consolidations or
amalgamations, each as permitted by the Declaration, shall constitute an Event
of Default.
ARTICLE X
Form of Note
Section 10.1. Form of Note.
------------
The Notes and the Trustee's Certificate of Authentication to be endorsed
thereon are to be substantially in the following forms:
(FORM OF FACE OF NOTE)
(IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT - This Note is a Global Note
within the meaning of the Indenture hereinafter referred to and is registered in
the name of a Depositary or a nominee of a Depositary. This Note is
exchangeable for Global Notes registered in the name of a person other than the
Depositary or its nominee only in the limited circumstances described in the
Indenture, and no transfer of this Note (other than a transfer of this Note as a
whole by the Depositary to a
15
<PAGE>
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary) may be registered except in limited
circumstances. Every Note delivered upon registration of transfer of, or in
exchange for, or in lieu of, this Global Security shall be a Global Security,
subject to the foregoing, except in the limited circumstances described above.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC") to the issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
requested by an authorized representative of DTC (or to such other entity as is
requested by an authorized representative of DTC) and any payment is made to
Cede & Co. (or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof,
Cede & Co., has an interest herein.)
No.
------------------
$
-----------------
CUSIP No.
----------------------
% SUBORDINATE DEFERRABLE INTEREST NOTE
-----
DUE 2025
Great Western Financial Corporation, a Delaware corporation (the
"Company"), which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
, or registered assigns, the principal sum of
- --------------- --------------
Dollars on , 2025, (or on such later date before , 2044,
----------------- -------
if the Company elects to extend the maturity date as further described herein),
and to pay interest on said principal sum from , 1995, or from
---------------
the most recent interest payment date (each such date, an "Interest Payment
Date") to which interest has been paid or duly provided for, quarterly (subject
to deferral as set forth herein) in arrears on March 31, June 30, September 30
and December 31 of each year commencing , 1995, at the rate of
------------------
% per annum (or at % per annum if the Company elects to reduce the
- ----- ---
interest rate per annum as further described herein) until the principal hereof
shall have become due and payable, and on any overdue principal and premium, if
any, and (without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
same rate per annum compounded quarterly. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day year of twelve
30-day months. In the event that any date on which interest is payable on this
Note is not a Business Day, then payment of interest payable on such date will
be made on the next
16
<PAGE>
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Note (or one or more Predecessor Notes,
as defined in said Indenture) is registered at the close of business on the
regular record date for such interest installment, which shall be the close of
business on the Business Day next preceding such Interest Payment Date. [IF
PURSUANT TO THE PROVISIONS OF THE INDENTURE THE NOTES ARE NO LONGER REPRESENTED
BY A GLOBAL NOTE -- which shall be the close of business of the Business
----
Day next preceding such Interest Payment Date.] Any such interest installment
not punctually paid or duly provided for shall forthwith cease to be payable to
the registered Holders on such regular record date and may be paid to the Person
in whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on a special record date to be fixed by the Trustee for the
payment of such defaulted interest, notice whereof shall be given to the
registered Holders of this series of Notes not less than 10 days prior to such
special record date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture. The principal of (and premium, if any) and
the interest on this Note shall be payable at the office or agency of the
Trustee maintained for that purpose in any coin or currency of the United States
of America that at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the registered Holder at such address
as shall appear in the Security Register. Notwithstanding the foregoing, so long
as the Holder of this Note is the Property Trustee, the payment of the principal
of (and premium, if any) and interest on this Note will be made at such place
and to such account as may be designated by the Property Trustee.
The indebtedness evidenced by this Note is, to the extent provided in the
Indenture, subordinate and junior in right of payment to the prior payment in
full of all Senior Indebtedness, and this Note is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Note, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
so provided and (c) appoints the Trustee his or her attorney-in-fact for any and
all such purposes. Each Holder hereof, by his or her acceptance hereof, hereby
waives all notice of the acceptance of the
17
<PAGE>
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
Unless the Certificate of Authentication hereon has been executed by the
Trustee referred to on the reverse side hereof, this Note shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
The provisions of this Note are continued on the reverse side hereof and
such continued provisions shall for all purposes have the same effect as though
fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated
---------------------
GREAT WESTERN FINANCIAL CORPORATION
By
----------------------------------
{ }
Attest:
By
--------------------------
Secretary
18
<PAGE>
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in the within-
mentioned Indenture.
HARRIS TRUST AND SAVINGS BANK,
as Trustee
HARRIS TRUST AND SAVINGS BANK,
---------------------------------
as Trustee or as Authentication Agent
By By
------------------------------ --------------------------------
Authorized Signatory Authorized Signatory
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of Notes of the Company
(herein sometimes referred to as the "Notes"), specified in the Indenture, all
issued or to be issued in one or more series under and pursuant to an Indenture
dated as of September 12, 1990, as amended and supplemented by a First
Supplemental Indenture dated as of April 30, 1993 and a Second Supplemental
Indenture dated as of , 1995, duly executed and delivered
------------------
between the Company and Harris Trust and Savings Bank, as Trustee (the
"Trustee") (the Indenture as so supplemented, the "Indenture"), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Holders of the Notes.
By the terms of the Indenture, the Notes are issuable in series that may vary as
to amount, date of maturity, rate of interest and in other respects as provided
in the Indenture. This series of Notes is limited in aggregate principal amount
as specified in said First Supplemental Indenture.
The Company shall have the right to redeem this Note at the option of
the Company, without premium or penalty, in whole or in part at any time on or
after , 2000 (a "Optional Redemption") or at any time in certain
----------------
circumstances upon the occurrence of a Tax Event, or in whole at the Company's
election upon the occurrence of a Regulatory Redemption Event, at a redemption
price equal to 100% of the principal amount plus any accrued but unpaid
interest, to the date of such redemption (the "Redemption
19
<PAGE>
Price"). Any redemption pursuant to this paragraph will be made upon not less
than 30 nor more than 60 days' notice, at the Optional Redemption Price. If the
Notes are only partially redeemed by the Company pursuant to an Optional
Redemption, the Notes will be redeemed pro rata or by lot or by any other method
utilized by the Trustee; provided that if, at the time of redemption, the Notes
are registered as a Global Note, the Depositary shall determine by lot the
principal amount of such Notes held by each Holder of Notes to be redeemed.
Upon the occurrence of a Regulatory Event, the Company may elect to
reduce the interest rate per annum on this Note by 50 basis points, effective
for all periods on and after the date of distribution of this Note to holders of
Trust Securities; provided, however, that if the Company has elected to defer
payments of interest as set forth below, all deferred interest payments and
accrued interest thereon shall be paid before the distribution of this Note to
holders of Preferred Securities. If the interest rate per annum on this Note is
reduced, on the date of the next Interest Payment Date which is at least 30 days
after notice to the holders of Trust Securities of the Company's election to
reduce the interest rate per annum on the Notes, this Note shall be converted
into Depositary Shares of the Company with a liquidation preference equal to the
principal amount of this Note, plus in cash any accrued but unpaid interest on
this Note to the date of conversion, unless prior to such conversion the holder
of this Note elects not to convert this Note, in whole or in part, in which
event such holder shall be entitled to receive this Note or a new Note with a
principal amount equal to the portion of this Note not converted. Depositary
Shares have a liquidation preference of $25 per share, each representing a one-
tenth interest in a share of % Cumulative Preferred Stock of the Company,
---
$250 liquidation preference per share.
In the event of a redemption or conversion of this Note in part only,
a new Note for the unredeemed or unconverted portion thereof will be issued in
the name of the Holder hereof upon cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Notes may be declared,
and upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Notes; provided,
--------
however, that no such supplemental
- -------
20
<PAGE>
indenture shall (i) extend the fixed maturity of any Notes of any series, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any premium payable upon the redemption
thereof, without the consent of the Holder of each Note so affected, or (ii)
reduce the aforesaid percentage of Notes, the Holders of which are required to
consent to any such supplemental indenture, without the consent of the Holders
of each Note then outstanding and affected thereby. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount of
the Notes of any series at the time outstanding affected thereby, on behalf of
all of the Holders of the Notes of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture with respect to such series, and its consequences,
except a default in the payment of the principal of or premium, if any, or
interest on any of the Notes of such series. Any such consent or waiver by the
registered Holder of this Note (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders and
owners of this Note and of any Note issued in exchange herefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the time and place and at the rate and in the money
herein prescribed.
The Company shall have the right at any time during the term of the
Notes from time to time to extend the interest payment period of such Notes to
up to 20 consecutive quarters (an "Extended Interest Payment Period"), at the
end of which period the Company shall pay all interest then accrued and unpaid
(together with interest thereon at the rate specified for the Notes to the
extent that payment of such interest is enforceable under applicable law).
Before the termination of any such Extended Interest Payment Period, the Company
may further extend such Extended Interest Payment Period, provided that such
Extended Interest Payment Period together with all such further extensions
thereof shall not exceed 20 consecutive quarters. At the termination of any
such Extended Interest Payment Period and upon the payment of all accrued and
unpaid interest and any additional amounts then due, the Company may commence a
new Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations
therein set forth, this Note is transferable by the registered Holder hereof on
the Security Register of the Company, upon surrender of this Note for
registration of transfer at the office or agency of the Company in the City and
State of New York
21
<PAGE>
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the registered
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes of authorized denominations and for the same aggregate principal
amount and series will be issued to the designated transferee or transferees.
No service charge will be made for any such transfer, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note,
the Company, the Trustee, any paying agent and any Security Registrar may deem
and treat the registered Holder hereof as the absolute owner hereof (whether or
not this Note shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Security Registrar) for the purpose
of receiving payment of or on account of the principal hereof and premium, if
any, and interest due hereon and for all other purposes, and neither the Company
nor the Trustee nor any paying agent nor any Security Registrar shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
The notes of this series are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. This Global
Note is exchangeable for Notes in definitive form only under certain limited
circumstances set forth in the Indenture. Notes of this series so issued are
issuable only in registered form without coupons in denominations of $25 and any
integral multiple thereof as provided in the Indenture and subject to certain
limitations herein and therein set forth. Notes of this series so issued are
exchangeable for a like aggregate principal amount of Notes of this series of a
different authorized denomination, as requested by the Holder surrendering the
same.
All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
22
<PAGE>
ARTICLE XI
Original Issue of Notes
Section 11.1. Original Issue of Notes.
-----------------------
Notes in the aggregate principal amount of $ may, upon
-------
execution of this Second Supplemental Indenture, be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Notes to or upon the written order of the Company,
signed by its Chairman of the Board, its President, or one of its Vice
Presidents and attested to by its Secretary or one of its Assistant Secretaries,
without any further action by the Company.
ARTICLE XII
Miscellaneous
Section 12.1. Ratification of Indenture.
-------------------------
The Indenture, as supplemented by this Second Supplemental Indenture,
is in all respects ratified and confirmed, and this Second Supplemental
Indenture shall be deemed part of the Indenture in the manner and to the extent
herein and therein provided.
Section 12.2. Trustee Not Responsible for Recitals.
------------------------------------
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
Second Supplemental Indenture.
Section 12.3. Governing Law.
-------------
This Second Supplemental Indenture and each Note shall be deemed to be
a contract made under the internal laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said State.
Section 12.4. Separability.
------------
In case any one or more of the provisions contained in this Second
Supplemental Indenture or in the Notes shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Second
Supplemental Indenture or of the Notes, but this Second Supplemental Indenture
and the Notes shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
23
<PAGE>
Section 12.5. Counterparts.
------------
This Second Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, on the date or dates indicated in the
acknowledgements and as of the day and year first above written.
GREAT WESTERN FINANCIAL CORPORATION
By
---------------------------------
Attest:
- ----------------------------
Secretary
HARRIS TRUST AND SAVINGS BANK,
as Trustee
By
---------------------------------
Attest:
---------------------------
Secretary
24
<PAGE>
EXHIBIT 4.13
----------------------------------------
DECLARATION OF TRUST
GREAT WESTERN FINANCIAL TRUST I
Dated as of September 25, 1995
----------------------------------------
<PAGE>
DECLARATION OF TRUST
OF
GREAT WESTERN FINANCIAL TRUST I
Dated as of September 25, 1995
ARTICLE I
Definitions.............................. 1
Section 1.1 Definitions........................................... 1
-----------
ARTICLE II
Organization.............................. 3
Section 2.2 Name.................................................. 3
----
Section 2.3 Office................................................ 3
------
Section 2.4 Purpose............................................... 4
-------
Section 2.5 Authority............................................. 4
---------
Section 2.6 Title to Property of the Trust........................ 4
------------------------------
Section 2.7 Powers of Trustees.................................... 4
------------------
Section 2.8 Filing of Certificate of Trust........................ 6
------------------------------
Section 2.9 Duration of Trust..................................... 6
-----------------
Section 2.10 Responsibilities of the Sponsor....................... 6
-------------------------------
ARTICLE III
Trustees............................... 7
Section 3.1 Trustees.............................................. 7
--------
Section 3.2 Delaware Trustee...................................... 7
----------------
Section 3.3 Execution of Documents................................ 7
----------------------
ARTICLE IV
Limitation of Liability of
Holders of Trust Securities, Trustees or Others............ 8
Section 4.1 Exculpation........................................... 8
-----------
Section 4.2 Fiduciary Duty........................................ 8
--------------
Section 4.3 Indemnification....................................... 10
---------------
Section 4.4 Outside Businesses.................................... 10
------------------
ARTICLE V
Amendments, Termination, Miscellaneous................. 11
Section 5.1 Amendments............................................ 11
----------
Section 5.2 Termination of Trust.................................. 11
--------------------
Section 5.3 Governing Law......................................... 11
-------------
Section 5.4 Headings.............................................. 11
--------
Section 5.5 Successors and Assigns................................ 12
----------------------
Section 5.6 Partial Enforceability................................ 12
----------------------
Section 5.7 Counterparts.......................................... 12
------------
<PAGE>
DECLARATION OF TRUST
DECLARATION OF TRUST ("Declaration") dated and effective as of
September 25, 1995 by the undersigned trustees (together with all other Persons
from time to time duly appointed and serving as trustees in accordance with the
provisions of this Declaration, the "Trustees"), Great Western Financial
Corporation, a Delaware corporation, as trust sponsor (the "Sponsor"), and by
the holders, from time to time, of undivided beneficial interests in the Trust
to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a trust (the
"Trust") pursuant to the Delaware Business Trust Act for the sole purpose of
issuing and selling certain securities representing undivided beneficial
interests in the assets of the Trust and investing the proceeds thereof in
certain Notes of the Note Issuer (as hereafter defined); and
NOW, THEREFORE, it being the intention of the parties hereto that the
Trust constitute a business trust under the Delaware Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust and
issued hereunder, subject to the provisions of this Declaration.
ARTICLE I
Definitions
Section 1.1. Definitions.
-----------
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration of Trust as modified, supplemented or amended from time to
time;
1
<PAGE>
(d) all references in this Declaration to Articles and Sections are to
Articles and Sections of this Declaration unless otherwise specified;
and
(e) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor rule thereunder.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code (S)3801 et seq., as it may be amended from time to time.
-- ---
"Business Day" means any day other than a day on which banking
institutions in New York, New York or Los Angeles, California are authorized or
required by law to close.
"Commission" means the Securities and Exchange Commission.
"Common Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Covered Person" means (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any holder of Trust Securities.
"Delaware Trustee" has the meaning set forth in Section 3.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Indemnified Person" means (a) any Trustee; (b) any Affiliate of any
Trustee; (c) any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Trustee; or (d) any employee or
agent of the Trust or its Affiliates.
"Note Issuer" means the Sponsor in its capacity as the issuer of the
Notes.
"Notes" means the subordinated deferrable interest debt securities of
the Note Issuer acquired by the Trust.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated
2
<PAGE>
association, or government or any agency or political subdivision thereof, or
any other entity of whatever nature.
"Preferred Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Regular Trustee" means any Trustee other than the Delaware Trustee.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor legislation.
"Sponsor" means Great Western Financial Corporation, a Delaware
corporation, or any successor entity in a merger, consolidation or amalgamation,
in its capacity as sponsor of the Trust.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Trust Securities" means the Common Securities and the Preferred
Securities.
ARTICLE II
Organization
Section 2.2 Name.
----
The Trust is named "Great Western Financial Trust I". The Trust's
activities may be conducted under the name of the Trust or any other name deemed
advisable by the Regular Trustees.
Section 2.3 Office.
------
The address of the principal office of the Trust is c/o Great Western
Financial Corporation, 9200 Oakdale Avenue, Chatsworth, California 91311. At
any time, the Regular Trustees may designate another principal office.
3
<PAGE>
Section 2.4 Purpose.
-------
The exclusive purposes and functions of the Trust are (a) to issue and
sell Trust Securities and use the proceeds from such sale to acquire the Notes,
and (b) except as otherwise limited herein, to engage in only those other
activities necessary, or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust.
Section 2.5 Authority.
---------
Subject to the limitations provided in this Declaration, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Regular Trustees acting on behalf of the Trust, no person shall be required
to inquire into the authority of the Regular Trustees to bind the Trust.
Persons dealing with the Trust are entitled to rely conclusively on the power
and authority of the Regular Trustees as set forth in this Declaration.
Section 2.6 Title to Property of the Trust.
------------------------------
Legal title to all assets of the Trust shall be vested in the Trust.
Section 2.7 Powers of the Trustees.
----------------------
The Regular Trustees shall have the exclusive power and authority to
cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided,
--------
however, that the Trust may issue no more than one series of
-------
Preferred Securities and no more than one series of Common
Securities, and, provided further, that there shall be no
-------- -------
interests in the Trust other than the Trust Securities and the
issuance of the Trust Securities shall be limited to a one-time,
simultaneous issuance of both Preferred Securities and Common
Securities;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
4
<PAGE>
(i) execute and file with the Commission a Registration
Statement on Form S-3 prepared by the Sponsor, including
any amendments thereto in relation to the Preferred
Securities;
(ii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary
in order to qualify or register all or part of the
Preferred Securities in any State in which the Sponsor
has determined to qualify or register such Preferred
Securities for sale;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange or any other
national stock exchange or the NASDAQ National Market
System for listing upon notice of issuance of any Preferred
Securities;
(iv) qualify this Declaration and any amendment thereto under
the Trust Indenture Act of 1939, as amended;
(v) execute and file with the Commission a registration
statement on Form 8-A, including any amendments thereto,
prepared by the Sponsor relating to the registration of the
Preferred Securities under Section 12(b) of the Exchange
Act; and
(vi) execute and enter into an underwriting agreement and
pricing agreement providing for the sale of the Preferred
Securities;
(c) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors,
advisors, and consultants and provide for reasonable compensation
for such services;
(d) to incur expenses which are necessary or incidental to carry out
any of the purposes of this Declaration; and
(e) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing.
5
<PAGE>
Section 2.8 Filing of Certificate of Trust.
------------------------------
On or after the date of execution of this Declaration, the Trustees
shall cause the filing of the Certificate of Trust for the Trust in the form
attached hereto as Exhibit A with the Secretary of State of the State of
Delaware.
Section 2.9 Duration of Trust.
-----------------
The Trust, absent termination pursuant to the provisions of Section
5.2, shall have existence for 55 years from the date hereof.
Section 2.10 Responsibilities of the Sponsor.
-------------------------------
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission a
Registration Statement on Form S-3 in relation to the Preferred
Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions
which must be taken by the Trust, and advise the Trust of actions
it must take, and prepare for execution and filing documents to
be executed and filed by the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable
laws of any such States;
(c) to prepare for filing by the Trust an application to the New York
Stock Exchange or any other national stock exchange or the NASDAQ
National Market System for listing upon notice of issuance of any
Preferred Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration
of the Preferred Securities under Section 12(b) of the Exchange
Act, including any amendments thereto; and
(e) to negotiate the terms of an underwriting or similar agreement
providing for the sale of the Preferred Securities.
6
<PAGE>
ARTICLE III
Trustees
Section 3.1 Trustees.
--------
The initial number of Trustees shall be at least four (4), and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor. The Sponsor is
entitled to appoint or remove without cause any Trustee at any time; provided,
--------
however, that the number of Trustees shall in no event be less than three (3);
- -------
and provided further that one Trustee, in the case of a natural person, shall be
-------- -------
a person who is a resident of the State of Delaware or which, if not a natural
person, an entity which has its principal place of business in the State of
Delaware (the "Delaware Trustee"). Except as expressly set forth in this
Declaration, any power of the Regular Trustees may be exercised by, or with the
consent of, a majority of the Regular Trustees.
The initial Regular Trustees shall be:
Carl F. Geuther
J. Lance Erikson
Bruce F. Antenberg
Great Western Financial Corporation
9200 Oakdale Avenue
Chatsworth, California 91311
The initial Delaware Trustee shall be:
Michael J. Majchrzak
FCC National Bank
300 King Street
Wilmington, Delaware 19801
Section 3.2 Delaware Trustee.
----------------
Notwithstanding any other provision of this Declaration, the Delaware
Trustee shall not be entitled to exercise any of the powers, nor shall the
Delaware Trustee have any of the duties and responsibilities of the Regular
Trustees described in this Declaration. The Delaware Trustee shall be a Trustee
for the sole and limited purpose of fulfilling the requirements of (S)3807 of
the Business Trust Act.
Section 3.3 Execution of Documents.
----------------------
(a) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act, any Regular Trustee is, or if
there are more than two Regular Trustees, any two Regular Trustees are,
authorized to execute on behalf of the Trust any documents which the Regular
Trustees have the power and authority to cause the Trust to execute pursuant to
Section 2.7
7
<PAGE>
provided, that, the registration statement referred to in Section 2.7(b)(i),
- -------- ----
including any amendment thereto, shall be signed by all of the Regular Trustees
and any listing application prepared by the Sponsor referred to in Section
2.6(b)(iii) may be executed by one Regular Trustee; and
(b) a Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 2.7.
ARTICLE IV
Limitation of Liability of
Holders of Trust Securities, Trustees or Others
Section 4.1 Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's gross negligence or willful
misconduct with respect to such acts or omissions; and
(b) an Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which distributions to
Holders of Trust Securities might properly be paid.
Section 4.2 Fiduciary Duty.
--------------
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The
8
<PAGE>
provisions of this Declaration, to the extent that they restrict the duties and
liabilities of an Indemnified Person otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person;
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that
are, fair and reasonable to the Trust or any Holder of Trust
Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such
interests and factors as it desires, including its own
interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the
Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or by
applicable law.
9
<PAGE>
Section 4.3 Indemnification.
---------------
(a) To the fullest extent permitted by applicable law, the Sponsor
shall indemnify and hold harmless each Indemnified Person from and against any
loss, damage or claim incurred by such Indemnified Person by reason of any act
or omission performed or omitted by such Indemnified Person in good faith on
behalf of the Trust and in a manner such Indemnified Person reasonably believed
to be within the scope of authority conferred on such Indemnified Person by this
Declaration, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such Indemnified
Person by reason of gross negligence or willful misconduct with respect to such
acts or omissions; and
(b) to the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in defending any claim,
demand, action, suit or proceeding shall, from time to time, be advanced by the
Sponsor prior to the final disposition of such claim, demand, action, suit or
proceeding upon receipt by the Sponsor of an undertaking by or on behalf of the
Indemnified Person to repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified as authorized in Section
4.3(a).
Section 4.4 Outside Businesses.
------------------
Any Covered Person and the Delaware Trustee may engage in or possess
an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the Holders of Trust Securities shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person or the Delaware Trustee shall be obligated to
present any particular investment or other opportunity to the Trust even if such
opportunity is of a character that, if presented to the Trust, could be taken by
the Trust, and any Covered Person and the Delaware Trustee shall have the right
to take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person and the Delaware Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate of the Sponsor,
or may act as depositary for, trustee or agent for or may act on any committee
or body of holders of, securities or other obligations of the Sponsor or its
Affiliates.
10
<PAGE>
ARTICLE V
Amendments, Termination, Miscellaneous
Section 5.1 Amendments.
----------
At any time before the issue of any Trust Securities, this Declaration
may be amended by, and only by, a written instrument executed by all of the
Regular Trustees and the Sponsor.
Section 5.2 Termination of Trust.
--------------------
(a) The Trust shall terminate and be of no further force or effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation of
the Sponsor's charter or of the Trust's certificate of
trust;
(iii) upon the entry of a decree of judicial dissolution of
the Sponsor, or the Trust; and
(iv) before the issue of any Trust Securities, with the consent
of all of the Regular Trustees and the Sponsor; and
(b) as soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall file a
certificate of cancellation with the Secretary of State of the
State of Delaware.
Section 5.3 Governing Law.
-------------
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
Section 5.4 Headings.
--------
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
11
<PAGE>
Section 5.5 Successors and Assigns.
----------------------
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
Section 5.6 Partial Enforceability.
----------------------
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder
of this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
Section 5.7 Counterparts.
------------
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
12
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
CARL F. GEUTHER,
as Trustee
CARL F. GEUTHER
-----------------------------
J. LANCE ERIKSON,
as Trustee
J. LANCE ERIKSON
------------------------------
BRUCE F. ANTENBERG,
as Trustee
BRUCE F. ANTENBERG
------------------------------
MICHAEL J. MAJCHRZAK,
as Trustee
MICHAEL J. MAJCHRZAK
------------------------------
GREAT WESTERN FINANCIAL CORPORATION,
as Sponsor
By: J. LANCE ERIKSON
---------------------------
Name: J. Lance Erikson
Title: Executive Vice President
13
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
The undersigned, the trustees of Great Western Financial Trust I
desiring to form a business trust pursuant to Delaware Business Trust Act, 12
Del. C. (S) 3810 hereby certify as follows:
- --- --
(a) The name of the business trust being formed hereby (the "Trust")
is Great Western Financial Trust I.
(b) The name and business address of the trustee of the Trust
who is a resident of the State of Delaware is as follows:
Michael J. Majchrzak
FCC National Bank
300 King Street
Wilmington, Delaware 19801
Dated: , 1995
----------
CARL F. GEUTHER,
as Trustee
---------------------------
J. LANCE ERIKSON,
as Trustee
---------------------------
BRUCE F. ANTENBERG,
as Trustee
---------------------------
MICHAEL J. MAJCHRZAK,
as Trustee
By:
------------------------
Name:
Title:
<PAGE>
EXHIBIT 4.14
===============================================================================
FORM OF
AMENDED AND RESTATED DECLARATION OF TRUST
GREAT WESTERN FINANCIAL TRUST I
Dated as of ________, 1995
=============================================================================
<PAGE>
TABLE OF CONTENTS
Page #
------
ARTICLE I
Interpretation and Definitions..................... 2
Section 1.1 Definitions............................................. 2
-----------
ARTICLE II
Trust Indenture Act.......................... 8
Section 2.1 Trust Indenture Act; Application........................ 8
--------------------------------
Section 2.2 Lists of Holders of Trust Securities.................... 8
------------------------------------
Section 2.3 Reports by the Property Trustee......................... 9
-------------------------------
Section 2.4 Periodic Reports to Property Trustee.................... 9
------------------------------------
Section 2.5 Evidence of Compliance with Conditions
--------------------------------------
Precedent............................................... 9
---------
Section 2.6 Events of Default; Waiver............................... 10
-------------------------
Section 2.7 Event of Default; Notice................................ 11
------------------------
ARTICLE III
Organization.............................. 12
Section 3.1 Name.................................................... 12
----
Section 3.2 Office.................................................. 12
------
Section 3.3 Purpose................................................. 12
-------
Section 3.4 Authority............................................... 13
---------
Section 3.5 Title to Property of the Trust.......................... 13
------------------------------
Section 3.6 Powers and Duties of the Regular
--------------------------------
Trustees................................................ 13
--------
Section 3.7 Prohibition of Actions by the Trust and
---------------------------------------
the Trustees............................................ 16
------------
Section 3.8 Powers and Duties of the Property
---------------------------------
Trustee................................................. 17
-------
Section 3.9 Certain Duties and Responsibilities of
--------------------------------------
the Property Trustee.................................... 19
--------------------
Section 3.10 Certain Rights of Property Trustee...................... 22
----------------------------------
Section 3.11 Delaware Trustee........................................ 24
----------------
Section 3.12 Execution of Documents.................................. 25
----------------------
Section 3.13 Not Responsible for Recitals or Issuance
----------------------------------------
of Trust Securities..................................... 25
-------------------
Section 3.14 Duration of Trust....................................... 25
-----------------
Section 3.15 Mergers................................................. 25
-------
ARTICLE IV
Sponsor................................ 27
Section 4.1 Sponsor's Purchase of Common Securities................. 27
---------------------------------------
Section 4.2 Responsibilities of the Sponsor......................... 27
-------------------------------
ARTICLE V
Trustees................................ 28
<PAGE>
Section 5.1 Number of Trustees....................................... 28
------------------
Section 5.2 Delaware Trustee......................................... 28
----------------
Section 5.3 Property Trustee; Eligibility............................ 28
-----------------------------
Section 5.4 Qualifications of Regular Trustees and
--------------------------------------
Delaware Trustee Generally............................... 29
--------------------------
Section 5.5 Initial Trustees......................................... 30
----------------
Section 5.6 Appointment, Removal and Resignation of
---------------------------------------
Trustees................................................. 30
--------
Section 5.7 Vacancies Among Trustees................................. 32
------------------------
Section 5.8 Effect of Vacancies...................................... 32
-------------------
Section 5.9 Meetings................................................. 32
--------
Section 5.10 Delegation of Power...................................... 33
-------------------
ARTICLE VI
Distributions.............................. 33
Section 6.1 Distributions............................................ 33
-------------
ARTICLE VII
Issuance of Trust Securities....................... 33
Section 7.1 General Provisions Regarding Trust
----------------------------------
Securities............................................... 33
----------
ARTICLE VIII
Termination............................... 35
Section 8.1 Termination of Trust..................................... 35
--------------------
ARTICLE IX
Transfer of Interest........................... 36
Section 9.1 Transfer of Trust Securities............................. 36
----------------------------
Section 9.2 Transfer of Certificates................................. 36
------------------------
Section 9.3 Deemed Trust Security Holders............................ 37
-----------------------------
Section 9.4 Book Entry Interests..................................... 37
--------------------
Section 9.5 Notices to Depositary.................................... 38
---------------------
Section 9.6 Appointment of Successor Depositary...................... 38
-----------------------------------
Section 9.7 Definitive Preferred Security
------------------------------
Certificates............................................. 38
------------
Section 9.8 Mutilated, Destroyed, Lost or Stolen
------------------------------------
Certificates............................................. 39
------------
ARTICLE X
Limitation of Liability of Holders
of Trust Securities, Trustees or Others................. 40
Section 10.1 Liability................................................ 40
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Section 10.2 Exculpation.............................................. 40
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Section 10.3 Fiduciary Duty........................................... 41
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Section 10.4 Indemnification.......................................... 42
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Section 10.5 Outside Businesses....................................... 43
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ARTICLE XI
Accounting................................ 43
Section 11.1 Fiscal Year.............................................. 43
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Section 11.2 Certain Accounting Matters............................... 43
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<PAGE>
Section 11.3 Banking................................................ 44
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Section 11.4 Withholding............................................ 44
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ARTICLE XII
Amendments and Meetings....................... 45
Section 12.1 Amendments............................................. 45
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Section 12.2 Meetings of the Holders of Trust
--------------------------------
Securities; Action by Written Consent.................. 47
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ARTICLE XIII
Representations and Warranties of Property Trustee.......... 49
Section 13.1 Representations and Warranties of
---------------------------------
Property Trustee....................................... 49
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ARTICLE XIV
Miscellaneous............................ 50
Section 14.1 Notices................................................ 50
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Section 14.2 Governing Law.......................................... 51
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Section 14.3 Intention of the Parties............................... 51
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Section 14.4 Headings............................................... 52
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Section 14.5 Successors and Assigns................................. 52
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Section 14.6 Partial Enforceability................................. 52
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Section 14.7 Counterparts........................................... 52
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EXHIBIT A................................................................. A-1
ANNEX I................................................................... I-1
ANNEX II.................................................................. II-1
<PAGE>
AMENDED AND RESTATED DECLARATION OF TRUST
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of , 1995, by the undersigned trustees (together with all
--------
other Persons from time to time duly appointed and serving as trustees in
accordance with the provisions of this Declaration, the "Trustees"), Great
Western Financial Corporation, a Delaware corporation, as trust sponsor (the
"Sponsor"), and by the Holders, from time to time, of undivided beneficial
interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established a trust (the "Trust")
under the Delaware Business Trust Act pursuant to a Declaration of Trust dated
as of September 25, 1995, (the "Original Declaration") and a Certificate of
------------
Trust filed with the Secretary of State of Delaware on September 27, 1995, for
------------
the sole purpose of issuing and selling certain securities representing
undivided beneficial interests in the assets of the Trust and investing the
proceeds thereof in certain Notes of the Note Issuer (as hereinafter defined);
WHEREAS, as of the date hereof, no interests in the Trust have been issued;
WHEREAS, all of the Trustees and the Sponsor, by this Declaration, amend
and restate each and every term and provision of the Original Declaration; and
NOW, THEREFORE, it being the intention of the parties hereto to continue
the Trust as a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the Holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
1
<PAGE>
ARTICLE I
Interpretation and Definitions
Section 1.1 Definitions.
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(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and
Exhibits are to Articles and Sections of and Exhibits to this
Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Declaration unless otherwise defined in this Declaration
or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Book Entry Interest" means a beneficial interest in a Global Certificate,
ownership and transfers of which shall be maintained and made through book
entries by a Depositary as described in Section 9.4.
"Business Day" means any day other than a day on which banking institutions
in New York, New York or Los Angeles, California are authorized or required by
law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code, 12
Del. Code Section 3801 et seq., as it may be amended from time to time.
-- ---
"Certificate" means a Common Security Certificate or a Preferred Security
Certificate.
"Closing Date" means , 1995.
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2
<PAGE>
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor legislation.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Security" has the meaning specified in Section 7.1.
"Common Securities Guarantee" means the guarantee agreement to be dated as
of , 1995, of the Sponsor in respect of the Common Securities.
--------
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security substantially in the form of
Annex II to Exhibit A.
"Covered Person" means: (a) any officer, director, shareholder, partner,
member, representative, employee or agent of (i) the Trust or (ii) the Trust's
Affiliates; and (b) any Holder of Trust Securities.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Definitive Preferred Security Certificates" has the meaning set forth in
Section 9.4.
"Depositary" means an organization registered as a clearing agency pursuant
to Section 17A of the Exchange Act that is acting as depositary for the
Preferred Securities and in whose name or in the name of a nominee of that
organization shall be registered a Global Certificate and which shall undertake
to effect book entry transfers and pledges of the Preferred Securities.
"Depositary Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time the Depositary effects
book entry transfers and pledges of securities deposited with the Depositary.
"Depositary Shares" means the Depositary Shares of the Note Issuer, having
a liquidation preference of $25.00 per share, each representing a one-tenth
interest in a share of % Cumulative Preferred Stock of the Note Issuer, $250
----
liquidation preference per share (the "Cumulative Preferred"). The rights and
preferences of the Cumulative Preferred are as established in the Certificate of
Designations of Rights and Preferences of Preferred Stock filed with the
Secretary of State of Delaware on , 1995.
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3
<PAGE>
"Direction" by a Person means a written direction signed:
(a) if the Person is a natural person, by that Person; or
(b) in any other case, in the name of such Person by one or more
Authorized Officers of that Person.
"Distribution" means a distribution payable to Holders of Trust Securities
in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Depositary.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, or any successor legislation.
"Event of Default" in respect of the Trust Securities means an Event of
Default (as defined in the Indenture) has occurred and is continuing in respect
of the Notes.
"Guarantees" means, collectively, the Common Securities Guarantee and the
Preferred Securities Guarantee.
"Holder" means a Person in whose name a Certificate representing a Trust
Security is registered on the books and records of the Trust, such Person being
a beneficial owner within the meaning of the Business Trust Act, provided, that,
-------- ----
in determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Sponsor, as guarantor of the Trust Securities, or any
Affiliate of the Sponsor.
"Indemnified Person" means (a) any Trustee; (b) any Affiliate of any
Trustee; (c) any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Trustee; or (d) any employee or
agent of the Trust or its Affiliates.
"Indenture" means the Indenture dated as of September 12, 1990 between the
Note Issuer and the Note Trustee as amended and supplemented by a First
Supplemental Indenture, dated April 30, 1993 and the Second Supplemental
Indenture dated , 1995.
---------
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Investment Company Event" has the meaning set forth in Exhibit A.
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<PAGE>
"Legal Action" has the meaning set forth in Section 3.6(g).
"Ministerial Action" has the meaning set forth in Exhibit A.
"Majority in liquidation amount of the Trust Securities" means, except as
provided in the terms of the Preferred Securities and the Trust Indenture Act,
Holder(s) of outstanding Trust Securities voting together as a single class or,
as the context may require, Holders of outstanding Preferred Securities or
Holders of outstanding Common Securities voting separately as a class, who are
the record owners of more than 50% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Trust Securities of the
relevant class.
"Note Issuer" means the Sponsor in its capacity as issuer of the Notes.
"Note Trustee" means Harris Trust and Savings Bank, as trustee under the
Indenture until a successor is appointed thereunder, and thereafter means such
successor trustee.
"Notes" means the series of debt securities of the Note Issuer under the
Indenture to be held by the Property Trustee for the benefit of the Holders.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Declaration shall include:
(a) a statement that each officer signing the Certificate has read the
covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Paying Agent" has the meaning specified in Section 3.8(h).
5
<PAGE>
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Securities Guarantee" means the guarantee agreement to be dated
as of , 1995, of the Sponsor in respect of the Preferred Securities.
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"Preferred Security" has the meaning specified in Section 7.1.
"Preferred Security Beneficial Owner" means, with respect to a Book Entry
Interest, a Person who is the beneficial owner of such Book Entry Interest, as
reflected on the books of the Depositary, or on the books of a Person
maintaining an account with such Depositary (directly as a Depositary
Participant or as an indirect participant, in each case in accordance with the
rules of such Depositary).
"Preferred Security Certificate" means a certificate representing a
Preferred Security substantially in the form of Annex I to Exhibit A.
"Property Trustee" means the Trustee meeting the eligibility requirements
set forth in Section 5.3.
"Property Trustee Account" has the meaning set forth in Section 3.8(c).
"Purchase Agreement" means the Purchase Agreement for the offering and sale
of Preferred Securities.
"Quorum" means a majority of the Regular Trustees or, if there are only two
Regular Trustees, both of them.
"Regular Trustee" means any Trustee other than the Property Trustee and the
Delaware Trustee.
"Regulatory Event" has the meaning set forth in Exhibit A.
"Regulatory Redemption Event" has the meaning set forth in Exhibit A.
"Related Party" means, with respect to the Sponsor, any direct or indirect
wholly owned subsidiary of the Sponsor or any other Person that owns, directly
or indirectly, 100% of the outstanding voting securities of the Sponsor.
6
<PAGE>
"Responsible Officer" means, with respect to the Property Trustee, any
vice-president, any assistant vice-president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or
assistant trust officer or any other officer in the Corporate Trust Services
Division of the Property Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, or any successor legislation.
"66-2/3% in liquidation amount of the Trust Securities" means, except as
provided in the terms of the Preferred Securities and by the Trust Indenture
Act, Holders of outstanding Trust Securities voting together as a single class
or, as the context may require, Holders of outstanding Preferred Securities or
Holder(s) of outstanding Common Securities voting separately as a class,
representing at least 66-2/3% of the aggregate liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions, to the date upon which the voting percentages
are determined) of all outstanding Trust Securities of the relevant class.
"Special Event" has the meaning set forth in Exhibit A.
"Sponsor" means Great Western Financial Corporation, a Delaware
corporation, or any successor entity in a merger, consolidation or amalgamation,
in its capacity as sponsor of the Trust.
"Tax Event" has the meaning set forth in Exhibit A.
"10% in liquidation amount of the Trust Securities" means, except as
provided in the terms of the Trust Securities or by the Trust Indenture Act,
Holders of outstanding Trust Securities voting together as a single class or, as
the context may require, Holders of outstanding Preferred Securities or Holders
of outstanding Common Securities, voting separately as a class, representing at
least 10% of the aggregate liquidation amount (including the stated amount that
would be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of
all outstanding Trust Securities of the relevant class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under
7
<PAGE>
the Code by the United States Treasury, as such regulations may be amended from
time to time (including corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this Declaration
as a trustee, so long as such person shall continue in office in accordance with
the terms hereof, and all other Persons who may from time to time be duly
appointed, qualified and serving as Trustees in accordance with the provisions
hereof, and references herein to a Trustee or the Trustees shall refer to such
Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in effect at
the date as of which this instrument was executed, provided, however, that in
-------- -------
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Securities" means collectively the Common Securities and the
Preferred Securities.
ARTICLE II
Trust Indenture Act
Section 2.1 Trust Indenture Act; Application.
--------------------------------
(a) This Declaration is subject to the provisions of the Trust Indenture
Act that are required to be part of this Declaration and shall, to the
extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a Trustee for
the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such duties imposed by the
Trust Indenture Act shall control.
(d) The application of the Trust Indenture Act to this Declaration shall
not affect the nature of the Trust Securities as equity securities
representing undivided beneficial interests in the assets of the
Trust.
Section 2.2 Lists of Holders of Trust Securities.
------------------------------------
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide the Property Trustee (i) within 14 days after each
record date for payment
8
<PAGE>
of Distributions, a list, in such form as the Property Trustee may
reasonably require, of the names and addresses of the Holders of the
Trust Securities ("List of Holders") as of such record date, provided
--------
that none of the Sponsor or the Regular Trustees on behalf of the
----
Trust shall be obligated to provide such list of Holders at any time
the List of Holders does not differ from the most recent List of
Holders given to the Property Trustee by the Sponsor and the Regular
Trustees on behalf of the Trust, and (ii) at any other time, within 30
days of receipt by the Trust of a written request for a List of
Holders as of a date no more than 14 days before such List of Holders
is given to the Property Trustee. The Property Trustee shall
preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or which it
receives in the capacity as Paying Agent (if acting in such capacity)
provided that the Property Trustee may destroy any List of Holders
-------- ----
previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with the obligations of an indenture
trustee under Sections 311(a), 311(b) and 312(b) of the Trust
Indenture Act.
Section 2.3 Reports by the Property Trustee.
-------------------------------
Within 60 days after of each year, the Property Trustee shall
---------
provide to the Holders of the Preferred Securities such reports as are required
by Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Property Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
Section 2.4 Periodic Reports to Property Trustee.
------------------------------------
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Property Trustee such documents, reports and information as
required by Section 314 (if any) and the compliance certificate required by
Section 314 of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act.
Section 2.5 Evidence of Compliance with Conditions Precedent.
------------------------------------------------
Each of the Sponsor and the Regular Trustees on behalf of the Trust shall
provide to the Property Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Declaration that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate
or
9
<PAGE>
opinion required to be given by an officer pursuant to Section 314(c)(1) may be
given in the form of an Officers' Certificate.
Section 2.6 Events of Default; Waiver.
-------------------------
(a) The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the
Preferred Securities, waive any past Event of Default in respect of
the Preferred Securities and its consequences, provided that, if the
underlying Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default under
the Declaration shall also not be waivable; or
(ii) requires the consent or vote of all or a Super-Majority of the
holders of the Notes to be waived under the Indenture, the Event
of Default under the Declaration may only be waived by the vote
of all of the Holders of the Preferred Securities or such
proportion thereof in liquidation amount as represents the
relevant Super-Majority of the aggregate principal amount of the
Notes outstanding, as applicable.
Upon such waiver, any such default shall cease to exist, and any Event
of Default with respect to the Preferred Securities arising therefrom
shall be deemed to have been cured, for every purpose of this
Declaration, but no such waiver shall extend to any subsequent or
other default or an Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the
Holders of the Preferred Securities of an Event of Default with
respect to the Preferred Securities shall also be deemed to constitute
a waiver by the Holders of the Common Securities of any such Event of
Default with respect to the Common Securities for all purposes of this
Declaration without any further act, vote, or consent of the Holders
of the Common Securities.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying
-------- ----
Event of Default under the Indenture:
(i) Which is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such
Event of Default under the Declaration as provided below in this
Section
10
<PAGE>
2.6(b), the Event of Default under the Declaration shall also not
be waivable; or
(ii) which requires the consent or vote of a Super-Majority to be
waived, except where the Holders of the Common Securities are
deemed to have waived such Event of Default under the Declaration
as provided below in this Section 2.6(b), the Event of Default
under the Declaration may only be waived by the vote of the
Holders of at least the proportion in liquidation amount of the
Preferred Securities as represents the relevant Super-Majority of
the aggregate principal amount of the Notes outstanding;
provided that, each Holder of Common Securities will be deemed to have
-------- ----
waived any such Event of Default and all Events of Default with
respect to the Common Securities and its consequences until all Events
of Default with respect to the Preferred Securities have been cured,
waived or otherwise eliminated, and until such Events of Default have
been so cured, waived or otherwise eliminated, the Property Trustee
will be deemed to be acting solely on behalf of the Holders of the
Preferred Securities and only the Holders of the Preferred Securities
will have the right to direct the Property Trustee in accordance with
the terms of the Trust Securities. Subject to the foregoing
provisions of this Section 2.6(b), upon such waiver, any such default
shall cease to exist and any Event of Default with respect to the
Common Securities arising therefrom shall be deemed to have been cured
for every purpose of this Declaration but no such waiver shall extend
to any subsequent or other default or Event of Default with respect to
the Common Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the Property
Trustee at the direction of the Holders of the Preferred Securities,
constitutes a waiver of the corresponding Event of Default under this
Declaration.
Section 2.7 Event of Default; Notice.
------------------------
(a) The Property Trustee shall, within 90 days after the occurrence of an
Event of Default, transmit by mail, first class postage prepaid, to
the Holders of the Trust Securities, notices of all defaults with
respect to the Trust Securities known to the Property Trustee, unless
such defaults have been cured before the giving of such notice (the
term "defaults" for the purposes of this Section 2.7(a) being hereby
defined to be an Event of Default as defined in the Indenture, not
including
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<PAGE>
any periods of grace provided for therein and irrespective of the
giving of any notice provided therein; provided that, except for a
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default in the payment of principal of (or premium, if any) or
interest on any of the Notes or in the payment of any sinking fund
installment established for the Notes, the Property Trustee shall be
protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors
and/or Responsible Officers of the Property Trustee in good faith
determines that the withholding of such notice is in the interests of
the Holders of the Trust Securities.
(b) The Property Trustee shall not be deemed to have knowledge of any
default except:
(i) a default under Sections 501(1) and 501(2) of the Indenture; or
(ii) any default as to which the Property Trustee shall have received
written notice or a Responsible Officer charged with the
administration of the Declaration shall have obtained written
notice.
ARTICLE III
Organization
Section 3.1 Name.
----
The Trust is named "Great Western Financial Trust I", as such name may be
modified from time to time by the Regular Trustees following written notice to
the Holders of Trust Securities. The Trust's activities may be conducted under
the name of the Trust or any other name deemed advisable by the Regular
Trustees.
Section 3.2 Office.
------
The address of the principal office of the Trust is c/o Great Western
Financial Corporation, 9200 Oakdale Avenue, Chatsworth, California 91311. On ten
Business Days written notice to the Holders of Trust Securities, the Regular
Trustees may designate another principal office.
Section 3.3 Purpose.
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The exclusive purposes and functions of the Trust are (a) to issue and sell
Trust Securities and use the proceeds from such sale to acquire the Notes and
(b) except as otherwise limited herein, to engage in only those other activities
necessary, or incident thereto. The Trust shall not borrow money, issue debt
12
<PAGE>
or reinvest proceeds derived from investments, pledge any of its assets, or
otherwise undertake (or permit to be undertaken) any activity that would cause
the Trust not to be classified for United States federal income tax purposes as
a grantor trust.
Section 3.4 Authority.
---------
Subject to the limitations provided in this Declaration and to the specific
duties of the Property Trustee, the Regular Trustees shall have exclusive and
complete authority to carry out the purposes of the Trust. An action taken by
the Regular Trustees in accordance with their powers shall constitute the act of
and serve to bind the Trust and an action taken by the Property Trustee in
accordance with its powers shall constitute the act of and serve to bind the
Trust. In dealing with the Trustees acting on behalf of the Trust, no Person
shall be required to inquire into the authority of the Trustees to bind the
Trust. Persons dealing with the Trust are entitled to rely conclusively on the
power and authority of the Trustees as set forth in this Declaration.
Section 3.5 Title to Property of the Trust.
------------------------------
Except as provided in Section 3.8 with respect to the Notes and the
Property Trustee Account or as otherwise provided in this Declaration, legal
title to all assets of the Trust shall be vested in the Trust. The Holders shall
not have legal title to any part of the assets of the Trust, but shall have an
undivided beneficial interest in the assets of the Trust.
Section 3.6 Powers and Duties of the Regular Trustees.
-----------------------------------------
The Regular Trustees shall have the exclusive power, duty and authority to
cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common Securities
in accordance with this Declaration; provided, however, that the Trust
-------- -------
may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided further, that
-------- -------
there shall be no interests in the Trust other than the Trust
Securities, and the issuance of Trust Securities shall be limited to a
one-time, simultaneous issuance of both Preferred Securities and
Common Securities on the Closing Date;
(b) in connection with the issue and sale of the Preferred Securities, at
the direction of the Sponsor, to:
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(i) execute and file with the Commission the Registration Statement
on Form S-3 prepared by the Sponsor, including any amendments
thereto, pertaining to the Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor, or take
any acts as determined by the Sponsor to be necessary in order to
qualify or register all or part of the Preferred Securities in
any State in which the Sponsor has determined to qualify or
register such Preferred Securities for sale;
(iii) execute and file an application, prepared by the Sponsor, to
the New York Stock Exchange or any other national stock exchange
or the NASDAQ National Market System for listing upon notice of
issuance of any Preferred Securities;
(iv) execute and file with the Commission a registration statement on
Form 8-A, including any amendments thereto, prepared by the
Sponsor relating to the registration of the Preferred Securities
under Section 12(b) of the Exchange Act; and
(v) execute and enter into the Purchase Agreement providing for the
sale of the Preferred Securities;
(c) to acquire the Notes with the proceeds of the sale of the Preferred
Securities and the Common Securities; provided, however, that the
-------- -------
Regular Trustee shall cause legal title to the Notes to be held of
record in the name of the Property Trustee for the benefit of the
Holders of the Preferred Securities and the Holders of Common
Securities;
(d) to give the Sponsor and the Property Trustee prompt written notice of
the occurrence of a Special Event; provided that the Regular Trustees
-------- ----
shall consult with the Sponsor and the Property Trustee before taking
or refraining from taking any Ministerial Action in relation to a
Special Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and
with respect to, for the purposes of Section 316(c) of the Trust
Indenture Act, Distributions, voting rights, redemptions and
exchanges, and to issue relevant notices to the Holders of Preferred
Securities and Holders of Common
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<PAGE>
Securities as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required of the
Regular Trustees pursuant to the terms of the Trust Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the
Trust ("Legal Action"), unless pursuant to Section 3.8(e), the
Property Trustee has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors,
advisors, and consultants and pay reasonable compensation for such
services;
(i) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the Trust
Indenture Act to the Property Trustee, which certificate may be
executed by a Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry out any of
the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and transfer
agent for the Trust Securities;
(m) to give prompt written notice to the Holders of the Trust Securities
of any notice received from the Note Issuer of its election (i) to
defer payments of interest on the Notes by extending the interest
payment period under the Indenture or, (ii) to extend the scheduled
maturity date on the Notes;
(n) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing;
(o) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence,
rights, franchises and privileges as a statutory business trust under
the laws of the State of Delaware and of each other jurisdiction in
which such existence is necessary to protect the limited liability of
the Holders of the Trust Securities or to enable the Trust to effect
the purposes for which the Trust was created;
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(p) to take any action, not inconsistent with this Declaration or with
applicable law, that the Regular Trustees determine in their discretion
to be necessary or desirable in carrying out the activities of the
Trust as set out in this Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States federal
income tax as a grantor trust; and
(iii) cooperating with the Note Issuer to ensure that the Notes
will be treated as indebtedness of the Note Issuer for United
States federal income tax purposes,
provided that such action does not adversely affect the interests of
-------- ----
Holders of the Preferred Securities; and
(q) to take all action necessary to cause all applicable tax returns and
tax information reports that are required to be filed with respect to
the Trust to be duly prepared and filed by the Regular Trustees, on
behalf of the Trust.
The Regular Trustees must exercise the powers set forth in this Section 3.6
in a manner that is consistent with the purposes and functions of the Trust set
out in Section 3.3, and the Regular Trustees shall not take any action that is
inconsistent with the purposes and functions of the Trust set forth in Section
3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of the
powers or the authority of the Property Trustee set forth in Section 3.8.
Section 3.7 Prohibition of Actions by the Trust and the Trustees
----------------------------------------------------
(a) The Trust shall not, and the Trustees (including the Property Trustee)
shall not, engage in any activity other than as required or authorized
by this Declaration. In particular, the Trust shall not and the
Trustees (including the Property Trustee) shall cause the Trust not
to:
(i) invest any proceeds received by the Trust from holding the Notes,
but shall distribute all such proceeds to Holders of Trust
Securities pursuant
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to the terms of this Declaration and of the Trust Securities;
(ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Notes;
(v) possess any power or otherwise act in such a way as to vary the
Trust assets or the terms of the Trust Securities in any way
whatsoever;
(vi) issue any securities or other evidences of beneficial ownership
of, or beneficial interest in, the Trust other than the Trust
Securities; or
(vii) (A) direct the time, method and place of exercising any
trust or power conferred upon the Note Trustee with respect to
the Notes, (B) waive any past default that is waivable under
Section 513 of the Indenture, (C) exercise any right to rescind
or annul any declaration that the principal of all the Notes
shall be due and payable or (D) consent to any amendment,
modification or termination of the Indenture or the Notes where
such consent shall be required unless the Trust shall have
received an opinion of independent counsel experienced in such
matters to the effect that such action will not cause more than
an insubstantial risk that for United States federal income tax
purposes the Trust will not be classified as a grantor trust.
Section 3.8 Powers and Duties of the Property Trustee.
-----------------------------------------
(a) The legal title to the Notes shall be owned by and held of record in
the name of the Property Trustee in trust for the benefit of the
Holders of the Trust Securities. The right, title and interest of the
Property Trustee to the Notes shall vest automatically in each Person
who may hereafter be appointed as Property Trustee in accordance with
Section 5.6. Such vesting and cessation of title shall be effective
whether or not conveyancing documents with regard to the Notes have
been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and interest
in the Notes to the Regular Trustees
17
<PAGE>
or to the Delaware Trustee (if the Property Trustee does not also act
as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing trust
account (the "Property Trustee Account") in the name of and under
the exclusive control of the Property Trustee on behalf of the
Holders of the Trust Securities and, upon the receipt of payments
of funds made in respect of the Notes held by the Property
Trustee, deposit such funds into the Property Trustee Account and
make payments to the Holders of the Preferred Securities and
Holders of the Common Securities from the Property Trustee
Account in accordance with Section 6.1. Funds in the Property
Trustee Account shall be held uninvested until disbursed in
accordance with this Declaration. The Property Trustee Account
shall be an account that is maintained with a banking institution
the rating on whose long term unsecured indebtedness is at least
equal to the then outstanding rating assigned to the Preferred
Securities by a "nationally recognized statistical rating
organization", as that term is defined for purposes of Rule
436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect the redemption of the Preferred Securities
and the Common Securities to the extent the Notes are redeemed or
mature; and
(iii) upon notice of distribution issued by the Regular Trustees
in accordance with the terms of the Preferred Securities and
forms of the Common Securities, engage in such ministerial
activities as shall be necessary or appropriate to effect the
distribution of the Notes to Holders of Trust Securities in
accordance with such Holders' interests therein upon the
occurrence of certain special events (as may be defined in the
terms of the Trust Securities) arising from a change in law or a
change in legal interpretation or other specified circumstances
pursuant to the terms of the Trust Securities.
(d) The Property Trustee shall take all actions and perform such duties as
may be specifically required of the Property Trustee pursuant to the
terms of the Trust Securities.
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(e) The Property Trustee shall take any Legal Action which arises out of
or in connection with an Event of Default or the Property Trustee's
duties and obligations under this Declaration or the Trust Indenture
Act.
(f) The Property Trustee shall not resign as a Trustee unless either:
(i) the Trust has been completely liquidated and the proceeds of the
liquidation distributed to the Holders of Trust Securities
pursuant to the terms of the Trust Securities; or
(ii) a Successor Property Trustee has been appointed and has accepted
that appointment in accordance with Section 5.6.
(g) The Property Trustee shall have the legal power to exercise all of the
rights, powers and privileges of a holder of Notes under the Indenture
and, if an Event of Default occurs and is continuing, the Property
Trustee shall, for the benefit of Holders of the Trust Securities,
enforce its rights as holder of the Notes subject to the rights of the
Holders pursuant to the terms of such Trust Securities.
(h) The Property Trustee may authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all Trust
Securities and any such Paying Agent shall comply with Section 317(b)
of the Trust Indenture Act. Any Paying Agent may be removed by the
Property Trustee at any time and a successor Paying Agent or
additional Paying Agents may be appointed at any time by the Property
Trustee.
(i) Subject to this Section 3.8, the Property Trustee shall have none of
the duties, liabilities, powers or the authority of the Regular
Trustees set forth in Section 3.6.
The Property Trustee must exercise the powers set forth in this Section 3.8
in a manner that is consistent with the purposes and functions of the Trust set
out in Section 3.3, and the Property Trustee shall not take any action that is
inconsistent with the purposes and functions of the Trust set out in Sections
3.3 and 3.7.
Section 3.9 Certain Duties and Responsibilities of the Property Trustee.
-----------------------------------------------------------
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(a) The Property Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set
forth in this Declaration and no implied covenants shall be read into
this Declaration against the Property Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to
Section 2.6), the Property Trustee shall exercise such of the rights
and powers vested in it by this Declaration, and use the same degree
of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her
own affairs.
(b) No provision of this Declaration shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property Trustee shall be
determined solely by the express provisions of this
Declaration and the Property Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Declaration, and no
implied covenants or obligations shall be read into this
Declaration against the Property Trustee; and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to
the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or
opinions furnished to the Property Trustee and conforming to
the requirements of this Declaration; but in the case of any
such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Property
Trustee, the Property Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Declaration;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the
Property Trustee,
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unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in liquidation amount of the Trust Securities at the
time outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon
the Property Trustee under this Declaration;
(iv) no provision of this Declaration shall require the Property
Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that the repayment of
such funds or liability is not reasonably assured to it under the
terms of this Declaration or adequate indemnity against such risk
or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the custody,
safekeeping and physical preservation of the Notes and the
Property Trustee Account shall be to deal with such property in a
similar manner as the Property Trustee deals with similar
property for its own account, subject to the protections and
limitations on liability afforded to the Property Trustee under
this Declaration and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability for or with
respect to the value, genuineness, existence or sufficiency of
the Notes or the payment of any taxes or assessments levied
thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any interest on
any money received by it except as it may otherwise agree with
the Sponsor. Money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Property Trustee Account maintained by the Property Trustee
pursuant to Section 3.8(c)(i) and except to the extent otherwise
required by law; and
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(viii) the Property Trustee shall not be responsible for monitoring
the compliance by the Regular Trustees or the Sponsor with their
respective duties under this Declaration, nor shall the Property
Trustee be liable for the default or misconduct of the Regular
Trustees or the Sponsor.
Section 3.10 Certain Rights of Property Trustee.
----------------------------------
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may rely and shall be fully protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by
the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular Trustees
contemplated by this Declaration shall be sufficiently evidenced
by a Direction or an Officers' Certificate;
(iii) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be proved
or established before taking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its
part request and rely upon an Officers' Certificate which, upon
receipt of such request, shall be promptly delivered by the
Sponsor or the Regular Trustees;
(iv) the Property Trustee shall have no duty to see to any recording,
filing or registration of any instrument (including any financing
or continuation statement or any filing under tax or securities
laws) (or any rerecording, refiling or registration thereof);
(v) the Property Trustee may consult with counsel or other experts
and the advice or opinion of such counsel and experts with
respect to legal matters or advice within the scope of such
experts' area of expertise shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion. Except as otherwise
specified herein,
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<PAGE>
such counsel may be counsel to the Sponsor or any of its
Affiliates, and may include any of its employees. The Property
Trustee shall have the right at any time to seek instructions
concerning the administration of this Declaration from any court
of competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Declaration at the
request or direction of any Holder, unless such Holder shall have
provided to the Property Trustee adequate security and indemnity,
which would satisfy a reasonable person in the position of the
Property Trustee, against the costs, expenses (including
attorneys' fees and expenses) and liabilities that might be
incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the
Property Trustee provided, that, nothing contained in this
Section 3.10(a)(vi) shall be taken to relieve the Property
Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this
Declaration;
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Property Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see
fit;
(viii) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Property Trustee shall not
be responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder;
(ix) any action taken by the Property Trustee or its agents hereunder
shall bind the Trust and the Holders of the Trust Securities, and
the signature of the Property Trustee or its agents alone shall
be sufficient and effective to perform any such action and no
third party shall be required to inquire as to the authority of
the Property Trustee to so act or as to its compliance with any
of the terms and provisions of this Declaration,
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both of which shall be conclusively evidenced by the Property
Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration the Property
Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other
action hereunder the Property Trustee (i) may request
instructions from the Holders of the Trust Securities which
instructions may only be given by the Holders of the same
proportion in liquidation amount of the Trust Securities as would
be entitled to direct the Property Trustee under the terms of the
Trust Securities in respect of such remedy, right or action, (ii)
may refrain from enforcing such remedy or right or taking such
other action until such instructions are received, and (iii)
shall be protected in acting in accordance with such
instructions; and
(xi) except as otherwise expressly provided by this Declaration, the
Property Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this
Declaration.
(b) No provision of this Declaration shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on
it, in any jurisdiction in which it shall be illegal, or in which the
Property Trustee shall be unqualified or incompetent in accordance
with applicable law, to perform any such act or acts, or to exercise
any such right, power, duty or obligation. No permissive power or,
authority available to the Property Trustee shall be construed to be a
duty.
Section 3.11 Delaware Trustee.
----------------
Notwithstanding any other provision of this Declaration other than
Section 5.2, the Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and responsibilities of
the Regular Trustees or the Property Trustee described in this Declaration.
Except as set forth in Section 5.2, the Delaware Trustee shall be a Trustee for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Business Trust Act.
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Section 3.12 Execution of Documents.
----------------------
Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act, a majority of or, if there are
only two, both of the Regular Trustees are authorized to execute on behalf of
the Trust any documents that the Regular Trustees have the power and authority
to execute pursuant to Section 3.6; provided that, any listing application
prepared by the Sponsor referred to in Section 3.6(b)(iii) may be executed by
one Regular Trustee.
Section 3.13 Not Responsible for Recitals or Issuance of Trust
-------------------------------------------------
Securities.
----------
The recitals contained in this Declaration and the Trust Securities
shall be taken as the statements of the Sponsor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any part thereof.
The Trustees make no representations as to the validity or sufficiency of this
Declaration or the Trust Securities.
Section 3.14 Duration of Trust.
-----------------
The Trust, unless terminated pursuant to the provisions of Article
VIII hereof, shall have existence for 55 years from the Closing Date.
Section 3.15 Mergers.
-------
(a) The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except
as described in Section 3.15(b) and (c).
(b) The Trust may, with the consent of a majority of the Regular Trustees
and without the consent of the Holders of the Trust Securities, the
Delaware Trustee or the Property Trustee, consolidate, amalgamate,
merge with or into, or be replaced by a trust organized as such under
the laws of any State; provided that:
-------- ----
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust under
the Trust Securities; or
(B) substitutes for the Trust Securities other securities having
substantially the same terms as the Trust Securities (the
"Successor Securities") so long as the Successor
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Securities rank the same as the Preferred Securities rank
with respect to Distributions and payments upon liquidation,
redemption and maturity;
(ii) the Note Issuer expressly acknowledges a trustee of the Successor
Entity that possesses the same powers and duties as the Property
Trustee as the holder of the Notes;
(iii) the Preferred Securities or any Successor Securities are
listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange,
the NASDAQ National Market System or other organization on which
the Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation or replacement does not
cause the Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized
statistical rating organization;
(v) such merger, consolidation, amalgamation or replacement does not
adversely affect the rights, preferences and privileges of the
Holders of the Trust Securities (including any Successor
Securities) in any material respect (other than with respect to
any dilution of the Holders' interest in the new entity);
(vi) such successor entity has a purpose identical to that of the
Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of independent
counsel to the Trust experienced in such matters to the effect
that:
(A) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges
of the Holders of the Trust Securities (including any
Successor Securities) in any material respect (other than
with respect to any dilution of the Holders' interest in the
new equity); and
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity will
be
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required to register as an Investment Company; and
(viii) the Sponsor guarantees the obligations of such Successor
Entity under the Successor Securities at least to the extent
provided by the Guarantees.
(c) Notwithstanding Section 3.15(b), the Trust shall, except with the
consent of Holders of 100% in liquidation amount of the Trust
Securities, not consolidate, amalgamate, merge with or into, or be
replaced by any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger or replacement would cause the
Trust or Successor Entity for United States federal income tax
purposes not to be classified as a grantor trust.
ARTICLE IV
Sponsor
Section 4.1 Sponsor's Purchase of Common Securities.
---------------------------------------
On the Closing Date the Sponsor will purchase all the Common
Securities issued by the Trust, in an amount equal to 3% of the capital of the
Trust, at the same time as the Preferred Securities are sold.
Section 4.2 Responsibilities of the Sponsor.
-------------------------------
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission a Registration
Statement on Form S-3 in relation to the Preferred Securities,
including any amendments thereto;
(b) to determine the States in which to take appropriate action to qualify
or register for sale all or part of the Preferred Securities and to do
any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for
execution and filing any documents to be executed and filed by the
Trust, as the Sponsor deems necessary or advisable in order to comply
with the applicable laws of any such States;
(c) to prepare for filing by the Trust an application to the New York
Stock Exchange or any other national stock exchange or the NASDAQ
National Market System for
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listing upon notice of issuance of any Preferred Securities;
(d) to prepare for filing by the Trust with the Commission a registration
statement on Form 8-A relating to the registration of the Preferred
Securities under Section 12(b) of the Exchange Act, including any
amendments thereto; and
(e) to negotiate the terms of the Purchase Agreement providing for the
sale of the Preferred Securities.
ARTICLE V
Trustees
Section 5.1 Number of Trustees.
------------------
The number of Trustees shall initially be five (5), and:
(a) at any time before the issuance of any Trust Securities, the Sponsor
may, by written instrument, increase or decrease the number of
Trustees; and
(b) after the issuance of any Trust Securities the number of Trustees may
be increased or decreased by vote of the Holders of a Majority in
liquidation amount of the Common Securities voting as a class at a
meeting of the Holders of the Common Securities.
Section 5.2 Delaware Trustee.
----------------
If required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place of
business in the State of Delaware, and otherwise meets the
requirements of applicable law,
provided that, if the Property Trustee has its principal place of business in
- -------- ----
the State of Delaware and otherwise meets the requirements of applicable law,
then the Property Trustee shall also be the Delaware Trustee and Section 3.11
shall have no application.
Section 5.3 Property Trustee; Eligibility.
-----------------------------
(a) There shall at all times be one Trustee which shall act as Property
Trustee which shall:
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(i) not be an Affiliate of the Sponsor;
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or
of the District of Columbia, or a corporation or Person permitted
by the Commission to act as an institutional trustee under the
Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of
at least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, state, Territorial or
District of Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority referred
to above, then for the purposes of this Section 5.3(a)(ii), the
combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most
recent report of condition so published.
(b) If at any time the Property Trustee shall cease to be eligible to so
act under Section 5.3(a), the Property Trustee shall immediately
resign in the manner and with the effect set forth in Section 5.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture
Act, the Property Trustee and the Holder of the Common Securities (as
if it were the obligor referred to in Section 310(b) of the Trust
Indenture Act) shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.
(d) The Preferred Securities Guarantee shall be deemed to be specifically
described in this Declaration for purposes of clause (i) of the first
provision contained in Section 310(b) of the Trust Indenture Act.
Section 5.4 Qualifications of Regular Trustees and Delaware
-----------------------------------------------
Trustee Generally.
-----------------
Each Regular Trustee and the Delaware Trustee (unless the Property
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
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Section 5.5 Initial Trustees.
The initial Regular Trustees shall be:
Carl F. Geuther
J. Lance Erikson
Bruce F. Antenberg
Great Western Financial Corporation
9200 Oakdale Avenue
Chatsworth, California 91311
The initial Delaware Trustee shall be:
Michael J. Majchrzak
FCC National Bank
300 King Street
Wilmington, Delaware 19801
The Initial Property Trustee shall be:
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention:
Section 5.6 Appointment, Removal and Resignation of Trustees.
------------------------------------------------
(a) Subject to Section 5.6(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of any Trust Securities by vote of the Holders
of a Majority in liquidation amount of the Common Securities
voting as a class at a meeting of the Holders of the Common
Securities; and
(b) (i) The Trustee that acts as Property Trustee shall not be removed in
accordance with Section 5.6(a) until a Successor Property Trustee
has been appointed and has accepted such appointment by written
instrument executed by such Successor Property Trustee and
delivered to the Regular Trustees and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not be removed in
accordance with this Section 5.6(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under
Sections 5.2 and 5.4 (a "Successor Delaware Trustee") has been
appointed and has
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accepted such appointment by written instrument executed by such
Successor Delaware Trustee and delivered to the Regular Trustees
and the Sponsor.
(c) A Trustee appointed to office shall hold office until his successor
shall have been appointed or until his death, removal or resignation.
Any Trustee may resign from office (without need for prior or
subsequent accounting) by any instrument in writing signed by the
Trustee and delivered to the Sponsor and the Trust, which resignation
shall take effect upon such delivery or upon such later date as is
specified therein; provided, however, that:
-------- -------
(i) No such resignation of the Trustee that acts as the Property
Trustee shall be effective:
(A) until a Successor Property Trustee has been appointed and
has accepted such appointment by instrument executed by such
Successor Property Trustee and delivered to the Trust, the
Sponsor and the resigning Property Trustee; or
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the
Holders of the Trust Securities; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has
been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the
Trust, the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best efforts to
promptly appoint a Successor Delaware Trustee or Successor Property
Trustee as the case may be as the Property Trustee or the Delaware
Trustee delivers an instrument of resignation in accordance with this
Section 5.6.
(e) If no Successor Property Trustee or Successor Delaware Trustee shall
have been appointed and accepted appointment as provided in this
Section 5.6 within 60 days after delivery to the Sponsor and the Trust
of an instrument of resignation, the resigning Property Trustee or
Delaware Trustee, as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Property Trustee or
Successor Delaware Trustee. Such court may thereupon,
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after prescribing such notice, if any, as it may deem proper, appoint
a Successor Property Trustee or Successor Delaware Trustee, as the
case may be.
Section 5.7 Vacancies Among Trustees.
------------------------
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by a majority of the Regular Trustees
shall be conclusive evidence of the existence of such vacancy. The vacancy shall
be filled with a Trustee appointed in accordance with Section 5.6.
Section 5.8 Effect of Vacancies.
-------------------
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul the Trust. Whenever a vacancy in the number of Regular
Trustees shall occur, until such vacancy is filled by the appointment of a
Regular Trustee in accordance with Section 5.6, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees by
this Declaration.
Section 5.9 Meetings.
--------
Meetings of the Regular Trustees shall be held from time to time upon the
call of any Regular Trustee. Regular meetings of the Regular Trustees may be
held at a time and place fixed by resolution of the Regular Trustees. Notice of
any in-person meetings of the Regular Trustees shall be hand delivered or
otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 48 hours before such meeting. Notice of any
telephonic meetings of the Regular Trustees or any committee thereof shall be
hand delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 24 hours before a meeting. Notices
shall contain a brief statement of the time, place and anticipated purposes of
the meeting. The presence (whether in person or by telephone) of a Regular
Trustee at a meeting shall constitute a waiver of notice of such meeting except
where a Regular Trustee attends a meeting for the express purpose of objecting
to the transaction of any activity on the ground that the meeting has not been
lawfully called or convened. Unless provided otherwise in this Declaration, any
action of the Regular Trustees may be taken at a meeting by vote of a majority
of the Regular Trustees present (whether in person or by telephone) and eligible
to vote with respect to such matter, provided that a Quorum is present, or
without a meeting by the unanimous written consent of the Regular Trustees.
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Section 5.10 Delegation of Power.
-------------------
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of
21 his or her power for the purpose of executing any documents
contemplated in Section 3.6, including any registration statement or
amendment thereto filled with the Commission, or making any other
governmental filing; and
(b) the Regular Trustees shall have power to delegate from time to time to
such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the
Trust or the names of the Regular Trustees or otherwise as the Regular
Trustees may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of the
Trust, as set forth herein.
ARTICLE VI
Distributions
Section 6.1 Distributions.
-------------
Holders shall receive Distributions in accordance with the applicable terms
of the relevant Holder's Trust Securities. Distributions shall be made on the
Preferred Securities and the Common Securities in accordance with the
preferences set forth in their respective terms. If and to the extent that the
Note Issuer makes a payment of interest (including Deferred Interest (as defined
in the Indenture)), premium and principal on the Notes held by the Property
Trustee (the amount of any such payment being a "Payment Amount"), the Property
Trustee shall and is directed, to the extent funds are available for that
purpose, to make a distribution (a "Distribution") of the Payment Amount on the
next succeeding Distribution Date (as defined in Exhibit A) to Holders of record
in accordance with the terms of the Trust Securities.
ARTICLE VII
Issuance of Trust Securities
Section 7.1 General Provisions Regarding Trust Securities.
---------------------------------------------
(a) The Regular Trustees shall on behalf of the Trust issue one class of
preferred securities representing undivided beneficial interests in
the assets of the Trust having such terms as are set forth in Exhibit
A (the "Preferred Securities") and one class of common securities
representing undivided beneficial interests
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in the assets of the Trust having such terms as are set forth in
Exhibit A (the "Common Securities"). The Preferred Securities shall
represent a 97% ownership interest in the Trust and the Common
Securities shall represent a 3% interest in the Trust. The Trust
shall have no securities or other interests in the assets of the Trust
other than the Preferred Securities and the Common Securities.
(b) The Certificates shall be signed on behalf of the Trust by the Regular
Trustees (or if there are more than two Regular Trustees by any two of
the Regular Trustees). Such signatures may be the manual or facsimile
signatures of the present or any future Regular Trustee.
Typographical and other minor errors or defects in any such
reproduction of any such signature shall not affect the validity of
any Certificate. In case any Regular Trustee of the Trust who shall
have signed any of the Trust Securities shall cease to be such Regular
Trustee before the Certificates so signed shall be delivered by the
Trust, such Certificates nevertheless may be delivered as though the
person who signed such Certificates had not ceased to be such Regular
Trustee; and any Certificate may be signed on behalf of the Trust by
such persons who, at the actual date of execution of such Trust
Security, shall be the Regular Trustees of the Trust, although at the
date of the execution and delivery of the Declaration any such person
was not such a Regular Trustee. Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Regular Trustees, as evidenced by their
execution thereof, and may have such letters, numbers or other marks
or identification or designation and such legends or endorsements as
the Regular Trustees may deem appropriate, or as may be required to
comply with any law or with any rule or regulation of any stock
exchange on which Trust Securities may be listed, or to conform to
usage.
(c) The consideration received by the Trustee for the issuance of the
Trust Securities shall constitute a contribution to the capital of the
Trust and shall not constitute a loan to the Trust.
(d) Upon issuance of the Trust Securities as provided in this Declaration,
the Trust Securities so issued shall be deemed to be validly issued,
fully paid and non-assessable.
(e) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have
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expressly assented and agreed to the terms of, and shall be bound by,
this Declaration.
ARTICLE VIII
Termination
Section 8.1 Termination of Trust.
--------------------
(a) The Trust shall terminate:
(i) upon the bankruptcy of the Holder of the Common Securities or the
Sponsor;
(ii) upon the filing of a certificate of dissolution or its equivalent
with respect to the Holder of the Common Securities or the
Sponsor; the filing of a certificate of cancellation with respect
to the Trust or the revocation of the Holder of the Common
Securities or the Sponsor's charter and the expiration of 90 days
after the date of revocation without a reinstatement thereof;
(iii) upon the entry of a decree of judicial dissolution of the
Holder of the Common Securities, the Sponsor or the Trust;
(iv) when all of the Trust Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall
have been paid to the Holders in accordance with the terms of the
Trust Securities;
(v) upon the occurrence and continuation of a Special Event or
Regulatory Event pursuant to which the Trust shall have been
dissolved in accordance with the terms of the Trust Securities
and all of the Notes endorsed thereon shall have been distributed
to the Holders of Trust Securities in exchange for all of the
Trust Securities;
(vi) before the issuance of any Trust Securities, with the consent of
all of the Regular Trustees and the Sponsor; or
(vii) , 2050.
---------
(b) As soon as is practicable after the occurrence of an event referred to
in Section 8.1(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
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(c) The provisions of Section 3.9 and Article X shall survive the
termination of the Trust.
ARTICLE IX
Transfer of Interest
Section 9.1 Transfer of Trust Securities.
----------------------------
(a) Trust Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration
and in the terms of the Trust Securities. Any transfer or purported
transfer of any Trust Security not made in accordance with this
Declaration shall be null and void.
(b) Subject to this Article IX, Preferred Securities shall be freely
transferable.
(c) Subject to this Article IX, the Sponsor and any Related Party may only
transfer Common Securities to the Sponsor or a Related Party of the
Sponsor; provided that, any such transfer is subject to the conditions
-------- ----
precedent that the transferor obtain the written opinion of
independent counsel experienced in such matters that such transfer
would not cause more than an insubstantial risk that:
(i) the Trust would not be classified for United States federal
income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company or the transferee would
become an Investment Company.
Section 9.2 Transfer of Certificates.
------------------------
The Regular Trustees shall provide for the registration of Certificates and
of transfers of Certificates, which will be effected without charge but only
upon payment (with such indemnity as the Regular Trustees may require) in
respect of any tax or other government charges that may be imposed in relation
to it. Upon surrender for registration of transfer of any Certificate, the
Regular Trustees shall cause one or more new Certificates to be issued in the
name of the designated transferee or transferees. Every Certificate surrendered
for registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Regular Trustees duly executed by the
Holder of such Holder's attorney duly authorized in writing. Each Certificate
surrendered for registration of transfer shall be canceled by the Regular
Trustees. A transferee of a Certificate shall be entitled to the rights and
subject to the obligations of a Holder hereunder upon
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the receipt by such transferee of a Certificate. By acceptance of a Certificate,
each transferee shall be deemed to have agreed to be bound by this Declaration
and the documents incorporated by reference herein.
Section 9.3 Deemed Trust Security Holders.
-----------------------------
The Trustees may treat the Person in whose name any Certificate shall be
registered on the books and records of the Trust as the sole Holder of such
Certificate and of the Trust Securities represented by such Certificate for
purposes of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Trust Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
Section 9.4 Book Entry Interests.
--------------------
Unless otherwise specified in the terms of the Preferred Securities, the
Preferred Securities Certificates, on original issuance, will be issued in the
form of one or more, fully registered, global Preferred Security Certificates
(each a "Global Certificate"), to be delivered to DTC, the initial Depositary,
by, or on behalf of, the Trust. Such Global Certificates shall initially be
registered on the books and records of the Trust in the name of Cede & Co., the
nominee of DTC, and no Preferred Security Beneficial Owner will receive a
definitive Preferred Security Certificate representing such Preferred Security
Beneficial Owner's interests in such Global Certificates, except as provided in
Section 9.7. Unless and until definitive, fully registered Preferred Security
Certificates (the "Definitive Preferred Security Certificates") have been issued
to the Preferred Security Beneficial Owners pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full force and effect;
(b) the Trust and the Trustees shall be entitled to deal with the
Depositary for all purposes of this Declaration (including the payment
of Distributions on the Global Certificates and receiving approvals,
votes or consents hereunder) as the Holder of the Preferred Securities
and the sole Holder of the Global Certificates and shall have no
obligation to the Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4 conflict with
any other provisions of the Declaration, the provisions of this
Section 9.4 shall control; and
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(d) the rights of the Preferred Security Beneficial Owners shall be
exercised only through the Depositary and shall be limited to those
established by law and agreements between such Preferred Security
Beneficial Owners and the Depositary and/or the Depositary
Participants and receive and transmit payments of Distributions on the
Global Certificates to such Depositary Participants. DTC will make
book entry transfers among the Depositary Participants.
Section 9.5 Notices to Depositary.
---------------------
Whenever a notice or other communication to the Preferred Security Holder
is required under this Declaration, unless and until Definitive Preferred
Security Certificates shall have been issued to the Preferred Security
Beneficial Owners pursuant to Section 9.7 the Regular Trustees shall give all
such notices and communications specified herein to be given to the Preferred
Security Holders to the Depositary, and shall have no notice obligations to the
Preferred Security Beneficial Owners.
Section 9.6 Appointment of Successor Depositary.
-----------------------------------
If any Depositary elects to discontinue its services as securities
depositary with respect to the Preferred Securities, the Regular Trustees may,
in their sole discretion, appoint a successor Depositary with respect to such
Preferred Securities.
Section 9.7 Definitive Preferred Security Certificates.
------------------------------------------
If:
(a) a Depositary elects to discontinue its services as securities
depositary with respect to the Preferred Securities and a successor
Depositary is not appointed within 90 days after such discontinuance
pursuant to Section 9.6; or
(b) the Regular Trustees elect with the consent of the Sponsor to
terminate the book entry system through the Depositary with respect to
the Preferred Securities,
then:
(c) Definitive Preferred Security Certificates shall be prepared by the
Regular Trustees on behalf of the Trust with respect to such Preferred
Securities; and
(d) upon surrender of the Global Certificates by the Depositary,
accompanied by registration instructions, the Regular Trustees shall
cause Definitive Certificates to be delivered to Preferred Security
Beneficial Owners in accordance with the instructions of the
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Depositary. Neither the Trustees nor the Trust shall be liable for
any delay in delivery of such instructions and each of them may
conclusively rely on and shall be protected in relying on, said
instructions of the Depositary. The Definitive Preferred Security
Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the
Regular Trustees, as evidenced by their execution thereof, and may
have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the Regular Trustees
may deem appropriate, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which Preferred Securities may be
listed, or to conform to usage.
Section 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
-------------------------------------------------
If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such security or
indemnity as may be required by them to keep each of them harmless.
then:
In the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any two Regular Trustees on behalf of the Trust shall
execute and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like denomination.
In connection with the issuance of any new Certificate under this Section 9.8,
the Regular Trustees may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
Any duplicate Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the relevant Trust Securities,
as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
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ARTICLE X
Limitation of Liability of Holders
of Trust Securities, Trustees or Others
Section 10.1 Liability.
---------
(a) Except as expressly set forth in this Declaration, the Preferred
Securities Guarantees, the Common Securities Guarantee and the terms
of the Trust Securities the Sponsor shall not be:
(i) personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders of the Trust
Securities which shall be made solely from assets of the Trust;
and
(ii) be required to pay to the Trust or to any Holder of Trust
Securities any deficit upon dissolution of the Trust or
otherwise.
(b) The Holder of the Common Securities shall be liable for all of the
debts and obligations of the Trust (other than with respect to the
Trust Securities) to the extent not satisfied out of the Trust's
assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the Holders of
the Preferred Securities shall 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.
Section 10.2 Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Trust or any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the
Trust and in a manner such Indemnified Person reasonably believed to
be within the scope of the authority conferred on such Indemnified
Person by this Declaration or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim incurred by
reason of such Indemnified Person's gross negligence (or, in the case
of the Property Trustee, negligence) or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person
as to matters the
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Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information,
opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts pertinent to
the existence and amount of assets from which Distributions to Holders
of Trust Securities might properly be paid.
Section 10.3 Fiduciary Duty.
--------------
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto
to the Trust or to any other Covered Person, an Indemnified Person
acting under this Declaration shall not be liable to the Trust or to
any other Covered Person for its good faith reliance on the provisions
of this Declaration. The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of an Indemnified
Person otherwise existing at law or in equity (other than the duties
imposed on the Property Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and
liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between an
Indemnified Person and any Covered Person; or
(ii) whenever this Declaration or any other agreement contemplated
herein or therein provides that an Indemnified Person shall act
in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Trust Securities,
the Indemnified Person shall resolve such conflict of interest, take
such action or provide such terms, considering in each case the
relative interest of each party (including its own interest) to such
conflict, agreement, transaction or situation and the benefits and
burdens relating to such interests, any customary or accepted industry
practices, and any applicable generally accepted accounting practices
or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by this
Indemnified Person shall not constitute a breach of this Declaration
or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise.
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(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision
(i) in its "discretion" or under a grant of similar authority, the
Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and shall
have no duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other Person;
or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and
shall not be subject to any other or different standard imposed
by this Declaration or by applicable law.
Section 10.4 Indemnification.
---------------
(a) To the fullest extent permitted by applicable law, the Sponsor shall
indemnify and hold harmless each Indemnified Person from and against
any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by such Indemnified Person by
reason of the creation, operation or termination of the Trust or any
act or omission performed or omitted by such Indemnified Person in
good faith on behalf of the Trust and in a manner such Indemnified
Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Declaration, except that
no Indemnified Person shall be entitled to be indemnified in respect
of any loss, damage or claim incurred by such Indemnified Person by
reason of gross negligence (or, in the case of the Property Trustee,
negligence) or willful misconduct with respect to such acts or
omissions.
(b) To the fullest extent permitted by applicable law, expenses (including
legal fees) incurred by an Indemnified Person in defending any claim,
demand, action, suit or proceeding shall, from time to time, be
advanced by the Sponsor prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the Sponsor of an
undertaking by or on behalf of the Indemnified Person to repay such
amount if it shall be determined that the Indemnified Person is not
entitled to be indemnified as authorized in Section 10.4(a). The
indemnification shall survive the termination of this Declaration.
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Section 10.5 Outside Businesses.
------------------
Any Covered Person, the Sponsor, the Note Issuer, the Delaware Trustee and
the Property Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of Trust
Securities shall have no rights by virtue of this Declaration in and to such
independent ventures or the income or profits derived therefrom and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. No Covered Person, the Sponsor, the Note
Issuer, the Delaware Trustee, or the Property Trustee shall be obligated to
present any particular investment or other opportunity to the Trust even if such
opportunity is of a character that, if presented to the Trust, could be taken by
the Trust, and any Covered Person, the Sponsor, the Note Issuer, the Delaware
Trustee and the Property Trustee shall have the right to take for its own
account (individually or as a partner or fiduciary) or to recommend to others
any such particular investment or other opportunity. Any Covered Person, the
Delaware Trustee and the Property Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate of the Sponsor,
or may act as depositary for, trustee or agent for, or act on any committee or
body of holders of, securities or other obligations of the Sponsor or its
Affiliates.
ARTICLE XI
Accounting
Section 11.1 Fiscal Year.
-----------
The fiscal year ("Fiscal Year") of the Trust shall be the calendar year, or
such other year as is required by the Code.
Section 11.2 Certain Accounting Matters.
--------------------------
(a) At all times during the existence of the Trust, the Regular Trustees
shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail, each
transaction of the Trust. The books of account shall be maintained on
the accrual method of accounting, in accordance with generally
accepted accounting principles, consistently applied. The Trust shall
use the accrual method of accounting for United States federal income
tax purposes. The books of account and the records of the Trust shall
be examined by and reported upon as of the end of each Fiscal Year by
a firm of independent certified public accountants selected by the
Regular Trustees.
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(b) The Regular Trustees shall cause to be prepared and delivered to each
of the Holders of Trust Securities, within 90 days after the end of
each Fiscal Year of the Trust, annual financial statements of the
Trust, including a balance sheet of the Trust as of the end of such
Fiscal Year, and the related statements of income or loss.
(c) The Regular Trustees shall cause to be duly prepared and delivered to
each of the Holders of Trust Securities, any annual United States
federal income tax information statement, required by the Code,
containing such information with regard to the Trust Securities held
by each Holder as is required by the Code and the Treasury
Regulations. Notwithstanding any right under the Code to deliver any
such statement at a later date, the Regular Trustees shall endeavor to
deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed with
the appropriate taxing authority, an annual United States federal
income tax return, on a Form 1041 or such other form required by
United States federal income tax law, and any other annual income tax
returns required to be filed by the Regular Trustees on behalf of the
Trust with any state or local taxing authority.
Section 11.3 Banking.
-------
The Trust shall maintain one or more bank accounts in the name and for the
sole benefit of the Trust; provided, however, that all payments of
------- --------
funds in respect of the Notes held by the Property Trustee shall be made
directly to the Property Trustee Account and no other funds of the Trust shall
be deposited in the Property Trustee Account. The signatories for such accounts
shall be designated by the Regular Trustees; provided, however, that the
-------- -------
Property Trustee shall designate the sole signatories for the Property Trustee
Account.
Section 11.4 Withholding.
-----------
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustee shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established
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by a Holder, shall remit amounts withheld with respect to the Holder to
applicable jurisdictions. To the extent that the Trust is required to withhold
and pay over any amounts to any authority with respect to distributions or
allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding.
ARTICLE XII
Amendments and Meetings
Section 12.1 Amendments.
----------
(a) Except as otherwise provided in this Declaration or by any applicable
terms of the Trust Securities, this Declaration may only be amended by
a written instrument approved and executed by:
(i) the Regular Trustees (or, if there are more than two Regular
Trustees a majority of the Regular Trustees);
(ii) if the amendment affects the rights, powers, duties, obligations
or immunities of the Property Trustee, the Property Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware
Trustee;
(b) No amendment shall be made, and any purported amendment shall be void
and ineffective:
(i) unless, in the case of any proposed amendment, the Property
Trustee shall have first received an Officers' Certificate from
each of the Trust and the Sponsor that such amendment is
permitted by, and conforms to, the terms of this Declaration
(including the terms of the Trust Securities);
(ii) unless, in the case of any proposed amendment which affects the
rights, powers, duties, obligations or immunities of the Property
Trustee, the Property Trustee shall have first received:
(A) an Officers' Certificate from each of the Trust and the
Sponsor that such amendment is permitted by, and conforms
to, the terms of
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this Declaration (including the terms of the Trust
Securities); and
(B) an opinion of counsel (who may be counsel to the Sponsor or
the Trust) that such amendment is permitted by, and conforms
to, the terms of this Declaration (including the terms of
the Trust Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue to be classified for
purposes of United States federal income taxation as a
grantor trust;
(B) reduce or otherwise adversely affect the powers of the
Property Trustee in contravention of the Trust Indenture
Act; or
(C) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act.
(c) at such time after the Trust has issued any Trust Securities that
remain outstanding, any amendment that would adversely affect the
rights, privileges or preferences of any Holder of Trust Securities
may be effected only with such additional requirements as may be set
forth in the terms of such Trust Securities;
(d) Section 9.1(c) and this Section 12.1 shall not be amended without the
consent of all of the Holders of the Trust Securities;
(e) Article IV shall not be amended without the consent of the Holders of
a Majority in liquidation amount of the Common Securities and;
(f) the rights of the Holders of the Common Securities under Article V to
increase or decrease the number of, and appoint and remove Trustees
shall not be amended without the consent of the Holders of a Majority
in liquidation amount of the Common Securities; and
(g) notwithstanding Section 12.1(c), this Declaration may be amended
without the consent of the Holders of the Trust Securities to:
(i) cure any ambiguity;
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(ii) correct or supplement any provision in this Declaration that may
be defective or inconsistent with any other provision of this
Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor; and
(iv) conform to any change in Rule 3a-5 or other exemption from the
requirement to register as an Investment Company under the
Investment Company Act or written change in the interpretation or
application thereof by any legislative body, court, government
agency or regulatory authority which amendment does not have a
material adverse effect on the rights, preferences or privileges
of the Holders.
Section 12.2 Meetings of the Holders of Trust Securities; Action by Written
--------------------------------------------------------------
Consent.
-------
(a) Meetings of the Holders of any class of Trust Securities may be called
at any time by the Regular Trustees (or as provided in the terms of
the Trust Securities) to consider and act on any matter on which
Holders of such class of Trust Securities are entitled to act under
the terms of this Declaration, the terms of the Trust Securities or
the rules of any stock exchange, the NASDAQ National Market System or
other organization on which the Preferred Securities are listed or
admitted for trading. The Regular Trustees shall call a meeting of
the Holders of such class if directed to do so by the Holders of at
least 10% in liquidation amount of such class of Trust Securities.
Such direction shall be given by delivering to the Regular Trustees
one or more calls in a writing stating that the signing Holders of
Trust Securities wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any Holders
of Trust Securities calling a meeting shall specify in writing the
Certificates held by the Holders of Trust Securities exercising the
right to call a meeting and only those Trust Securities specified
shall be counted for purposes of determining whether the required
percentage set forth in the second sentence of this paragraph has been
met.
(b) Except to the extent otherwise provided in the terms of the Trust
Securities, the following provisions shall apply to meetings of
Holders of Trust Securities:
(i) notice of any such meeting shall be given to all the Holders of
Trust Securities having a right to vote thereat at least 7 days
and not more than 60
47
<PAGE>
days before the date of such meeting. Whenever a vote, consent
or approval of the Holders of Trust Securities is permitted or
required under this Declaration or the rules of any stock
exchange, the NASDAQ National Market System or other organization
on which the Preferred Securities are listed or admitted for
trading, such vote, consent or approval may be given at a meeting
of the Holders of Trust Securities. Any action that may be taken
at a meeting of the Holders of Trust Securities may be taken
without a meeting if a consent in writing setting forth the
action so taken is signed by the Holders of Trust Securities
owning not less than the minimum amount of Trust Securities in
liquidation amount that would be necessary to authorize or take
such action at a meeting at which all Holders of Trust Securities
having a right to vote thereon were present and voting. Prompt
notice of the taking of action without a meeting shall be given
to the Holders of Trust Securities entitled to vote who have not
consented in writing. The Regular Trustees may specify that any
written ballot submitted to a Holder for the purpose of taking
any action without a meeting shall be returned to the Trust
within the time specified by the Regular Trustees;
(ii) each Holder of a Trust Security may authorize any Person to act
for it by proxy on all matters in which a Holder of Trust
Securities is entitled to participate, including waiving notice
of any meeting, or voting or participating at a meeting. No
proxy shall be valid after the expiration of 11 months from the
date thereof unless otherwise provided in the proxy. Every proxy
shall be revocable at the pleasure of the Holder of Trust
Securities executing it. Except as otherwise provided herein,
all matters relating to the giving, voting or validity of proxies
shall be governed by the General Corporation Law of the State of
Delaware relating to proxies, and judicial interpretations
thereunder, as if the Trust were a Delaware corporation and the
Holders of the Trust Securities were stockholders of a Delaware
corporation;
(iii) each meeting of the Holders of the Trust Securities shall be
conducted by the Regular Trustees or by such other Person that
the Regular Trustees may designate; and
48
<PAGE>
(iv) unless the Business Trust Act, this Declaration, the terms of the
Trust Securities, the Trust Indenture Act or the listing rules of
any stock exchange, the NASDAQ National Market System or other
organization on which the Preferred Securities are then listed or
trading, otherwise provides, the Regular Trustees, in their sole
discretion, shall establish all other provisions relating to
meetings of Holders of Trust Securities, including notice of the
time, place or purpose of any meeting at which any matter is to
be voted on by any Holders of Trust Securities, waiver of any
such notice, action by consent without a meeting, the
establishment of a record date, quorum requirements, voting in
person or by proxy or any other matter with respect to the
exercise of any such right to vote.
ARTICLE XIII
Representations and Warranties of Property Trustee
Section 13.1 Representations and Warranties of Property Trustee.
--------------------------------------------------
The Trustee that acts as initial Property Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Declaration, and each
Successor Property Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Property Trustee's acceptance of its appointment as
Property Trustee that:
(a) The Property Trustee is a banking corporation with trust powers, duly
organized, validly existing and in good standing under the laws of the
United States or the State of Delaware, with trust power and authority
to execute and deliver, and to carry out and perform its obligations
under the terms of, the Declaration and with its principal place of
business in Illinois.
(b) The execution, delivery and performance by the Property Trustee of the
Declaration has been duly authorized by all necessary corporate action
on the part of the Property Trustee. The Declaration has been duly
executed and delivered by the Property Trustee, and it constitutes a
legal, valid and binding obligation of the Property Trustee,
enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency, and
other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court
(regardless of whether the
49
<PAGE>
enforcement of such remedies is considered in a proceeding in equity
or at law).
(c) The execution, delivery and performance of the Declaration by the
Property Trustee does not conflict with or constitute a breach of the
charter or By-laws of the Property Trustee.
(d) No consent, approval or authorization of, or registration with or
notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Property Trustee, of the
Declaration.
(e) The Property Trustee, pursuant to the Declaration, shall hold legal
title and a valid ownership interest in the Notes.
(f) If the Property Trustee does not also act as the Delaware Trustee, the
Delaware Trustee shall be a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware.
(g) The Delaware Trustee has been authorized to perform its obligations
under the Certificate of Trust and the Declaration. The Declaration
under Delaware law constitutes a legal, valid and binding obligation
of the Delaware Trustee, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of
the court (regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law).
ARTICLE XIV
Miscellaneous
Section 14.1 Notices.
-------
All notices provided for in this Declaration shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the Trust's
mailing address set forth below (or such other address as the Trust
may give notice of to the Holders of the Trust Securities):
50
<PAGE>
GREAT WESTERN FINANCIAL TRUST I
9200 Oakdale Avenue
Chatsworth, California 91311
(b) if given to the Property Trustee, at the mailing address set forth
below (or such other address as the Property Trustee may give notice
of to the Holders of the Trust Securities):
The First National Bank of Chicago
One First National Plaza, Suite 0126
Chicago, Illinois 60670-0126
Attention:
(c) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice to the Trust):
Great Western Financial Corporation
9200 Oakdale Avenue
Chatsworth, California 91311
Attention: [ ]
(d) if given to any other Holder, at the address set forth on the books
and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
Section 14.2 Governing Law.
-------------
This Declaration and the rights of the parties hereunder shall be governed
by and interpreted in accordance with the laws of the State of Delaware and all
rights and remedies shall be governed by such laws without regard to principles
of conflict of laws.
Section 14.3 Intention of the Parties.
------------------------
It is the intention of the parties hereto that the Trust not be
characterized for United States federal income tax purposes as an association
taxable as a corporation or a partnership but rather that the Trust be
characterized as a grantor trust or otherwise in a manner such that each Holder
of Trust Securities will be treated as owning an undivided beneficial interest
in the
51
<PAGE>
Notes. The provisions of this Declaration shall be interpreted to further this
intention of the parties.
Section 14.4 Headings.
--------
Headings contained in this Declaration are inserted for convenience of
reference only and do not affect the interpretation of this Declaration or any
provision hereof.
Section 14.5 Successors and Assigns.
----------------------
Whenever in this Declaration any of the parties hereto is named or referred
to, the successors and assigns of such party shall be deemed to be included, and
all covenants and agreements in this Declaration by the Sponsor and the Trustees
shall bind and inure to the benefit of their respective successors and assigns,
whether so expressed.
Section 14.6 Partial Enforceability.
----------------------
If any provision of this Declaration, or the application of such provision
to any Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
Section 14.7 Counterparts.
------------
This Declaration may contain more than one counterpart of the signature
page and this Declaration may be executed by the affixing of the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
52
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
CARL F. GEUTHER,
as Trustee
------------------------------
J. LANCE ERIKSON,
as Trustee
------------------------------
BRUCE F. ANTENBERG,
as Trustee
-----------------------------
MICHAEL J. MAJCHRZAK,
as Delaware Trustee
------------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
GREAT WESTERN FINANCIAL CORPORATION,
as Sponsor
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
53
<PAGE>
EXHIBIT A
TERMS OF
% TRUST ORIGINATED PREFERRED SECURITIES
--
% TRUST ORIGINATED COMMON SECURITIES
--
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of , 1995 (as amended from time to time, the
---------------
"Declaration"), the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities and the Common
Securities are set out below (each capitalized term used but not defined herein
has the meaning set forth in the Declaration or, if not defined in such
Declaration, as defined in the Prospectus referred to below):
1. Designation and Number.
----------------------
(a) "Preferred Securities." Preferred Securities of the
-------------
Trust with an aggregate liquidation amount with respect to the assets
of the Trust of $ million ($ ) and a
--------------- -----------
liquidation amount with respect to the assets of the Trust of $25 per
Preferred Security, are hereby designated for the purposes of
identification only as " % Trust Originated Preferred Securities"
----
(the "Preferred Securities"). The Certificates evidencing the
Preferred Securities shall be substantially in the form attached
hereto as Annex I, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage, custom or
practice or to conform to the rules of any stock exchange on which the
Preferred Securities are listed.
(b) "Common Securities." Common Securities of the Trust with
---------------
an aggregate liquidation amount with respect to the assets of the
Trust of $ million ($ ) and a liquidation amount
---------- ----------
with respect to the assets of the Trust of $25 per Common Security,
are hereby designated for the purposes of identification only as
" % Trust Originated Common Securities" (the "Common Securities").
----
The Certificates evidencing the Common Securities shall be
substantially in the form attached hereto as Annex II, with such
changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice.
A-1
<PAGE>
2. Distributions.
-------------
(a) Distributions payable on each Trust Security will be fixed at a rate
per annum of [ ]% (the "Coupon Rate") of the stated liquidation
amount of $25 per Trust Security, such rate being the rate of interest
payable on the Notes to be held by the Property Trustee.
Distributions in arrears for more than one quarter will bear interest
thereon compounded quarterly at the Coupon Rate (to the extent
permitted by applicable law). The term "Distributions" as used herein
includes any such interest payable unless otherwise stated. A
Distribution is payable only to the extent that payments are made in
respect of the Notes held by the Property Trustee. The amount of
Distributions payable for any period will be computed for any full
quarterly Distribution period on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, on the basis
of the actual number of days elapsed per 30-day month.
(b) Distributions on the Trust Securities will be cumulative, will accrue
from , 1995, and will be payable quarterly in
------------------
arrears, on March 31, June 30, September 30, and December 31 of each
year (each a "Distribution Date") to the Holders of record on the
applicable record date, commencing on , 1995, when, as
------------
and if available for payment, except as otherwise described below.
The Note Issuer has the right under the Indenture to defer payments of
interest by extending the interest payment period from time to time on
the Notes for a period not exceeding 20 consecutive quarters (each an
"Extension Period") and, during such Extension Period, Distributions
will also be deferred. Despite such deferral, quarterly Distributions
will continue to accrue with interest thereon (to the extent permitted
by applicable law) at the Coupon Rate compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension
Period, the Note Issuer may further extend such Extension Period;
provided that such Extension Period together with all such previous
-------- ----
and further extensions thereof may not exceed 20 consecutive quarters.
Payments of accrued Distributions will be payable to Holders as they
appear on the books and records of the Trust on the first record date
after the end of the Extension Period. Upon the termination of any
Extension Period and the payment of all amounts then due, the Note
Issuer may commence a new Extension Period, subject to the above
requirements.
A-2
<PAGE>
(c) Distributions on the Trust Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust on the
relevant record dates. While the Preferred Securities remain in book-
entry only form, the relevant record dates shall be one Business Day
prior to the relevant payment dates which payment dates correspond to
the interest payment dates on the Notes. Subject to any applicable
laws and regulations and the provisions of the Declaration, each such
payment in respect of the Preferred Securities will be made as
described under the heading "Description of the Preferred Securities
-- Book-Entry Only Issuance -- The Depository Trust Company" in the
Prospectus Supplement dated , 1995 (the "Prospectus
------------------
Supplement"), to the Prospectus dated , 1995 (together, the
----------
"Prospectus"), of the Trust included in the Registration Statement on
Form S-3 of the Sponsor and the Trust. The relevant record dates for
the Common Securities shall be the same record date as for the
Preferred Securities. If the Preferred Securities shall not continue
to remain in book-entry only form, the relevant record dates for the
Preferred Securities, shall conform to the rules of any securities
exchange on which the securities are listed and, if none, shall be
selected by the Regular Trustees, which dates shall be at least one
Business Day but less than 60 Business Days before the relevant
payment dates, which payment dates correspond to the interest payment
dates on the Notes. Distributions payable on any Trust Securities
that are not punctually paid on any Distribution payment date, as a
result of the Note Issuer having failed to make a payment under the
Notes, will cease to be payable to the Person in whose name such Trust
Securities are registered on the relevant record date, and such
defaulted Distribution will instead be payable to the Person in whose
name such Trust Securities are registered on the special record date
or other specified date determined in accordance with the Indenture.
If any date on which Distributions are payable on the Trust Securities
is not a Business Day, then payment of the Distribution payable on
such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding
Business Day, in each case with the same force and effect as if made
on such date.
(d) In the event that there is any money or other property held by or for
the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata
A-3
<PAGE>
(as defined herein) among the Holders of the Trust Securities.
3. Liquidation Distribution Upon Dissolution.
-----------------------------------------
In the event of any voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Trust, the Holders of the Trust Securities on
the date of the liquidation, dissolution, winding-up or termination, as the case
may be, will be entitled to receive out of the assets of the Trust available for
distribution to Holders of Trust Securities after satisfaction of liabilities of
creditors an amount equal to the aggregate of the stated liquidation amount of
$25 per Trust Security plus accrued and unpaid Distributions thereon to the date
of payment (such amount being the "Liquidation Distribution"), unless, in
connection with such liquidation, dissolution, winding-up or termination, Notes
in an aggregate principal amount equal to the aggregate stated liquidation
amount of such Trust Securities and bearing accrued and unpaid interest in an
amount equal to the accrued and unpaid Distributions on, such Trust Securities,
shall be distributed on a Pro Rata basis to the Holders of the Trust Securities
in exchange for such Trust Securities.
If, upon any such liquidation, dissolution, winding-up or termination,
the Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then the amounts payable directly by the Trust on the Trust
Securities shall be paid on a Pro Rata basis.
4. Redemption and Distribution.
---------------------------
(a) Upon the repayment of the Notes in whole or in part, whether at
maturity or upon redemption, the proceeds from such repayment or
payment shall be simultaneously applied to redeem Trust Securities
having an aggregate liquidation amount equal to the aggregate
principal amount of the Notes so repaid or redeemed at a redemption
price of $25 per Trust Security plus an amount equal to accrued and
unpaid Distributions thereon at the date of the redemption, payable in
cash (the "Redemption Price"). Holders will be given not less than 30
nor more than 60 days notice of such redemption.
(b) If fewer than all the outstanding Trust Securities are to be so
redeemed, the Common Securities and the Preferred Securities will be
redeemed Pro Rata and the Preferred Securities to be redeemed will be
as described in Paragraph 4(h)(ii) below.
A-4
<PAGE>
(c) If a Special Event (as defined below) shall occur and be continuing
the Regular Trustees shall dissolve the Trust and, after satisfaction
of creditors, cause Notes held by the Property Trustee, having an
aggregate principal amount equal to the aggregate stated liquidation
amount of, with an interest rate identical to the Coupon Rate of, and
accrued and unpaid interest equal to accrued and unpaid Distributions
on and having the same record date for payment as the Trust
Securities, to be distributed to the Holders of the Trust Securities
in liquidation of such Holders' interests in the Trust on a Pro Rata
basis, within 90 days following the occurrence of such Special Event
(the "90-Day Period"); provided, however, that, in the case of the
-------- -------
occurrence of a Tax Event (as defined below), as a condition of such
dissolution and distribution, the Regular Trustee shall have received
an opinion of independent tax counsel experienced in such matters (a
"No Recognition Opinion"), which opinion may rely on published revenue
rulings of the Internal Revenue Service, to the effect that the
Holders of the Trust Securities will not recognize any gain or loss
for United States federal income tax purposes as a result of the
dissolution of the Trust and the distribution of Notes, and provided,
--------
further, that, if at the time there is available to the Trust the
-------
opportunity to eliminate, within the 90-Day Period, the Special Event
by taking some ministerial action, such as filing a form or making an
election, or pursuing some other similar reasonable measure that has
no adverse effect on the Trust, the Note Issuer, the Sponsor or the
Holders of the Trust Securities ("Ministerial Action"), the Trust will
pursue such Ministerial Action in lieu of such dissolution and
distribution.
In the case of the occurrence of a Tax Event, if (i) after receipt of
a Dissolution Tax Opinion (as hereafter defined) by the Regular
Trustees the Note Issuer has received an opinion (a "Redemption Tax
Opinion") of independent tax counsel experienced in such matters that,
as a result of a Tax Event, there is more than an insubstantial risk
that the Note Issuer would be precluded from deducting the interest on
the Notes for United States federal income tax purposes even if the
Notes were distributed to the Holders of Trust Securities in
liquidation of such Holders' interests in the Trust as described in
this paragraph 4(c), or (ii) the Regular Trustees shall have been
informed by such tax counsel that a No Recognition Opinion cannot be
delivered to the Trust, the Note Issuer shall have the right at any
time, upon not less than 30 nor more than 60 days notice, to redeem
the
A-5
<PAGE>
Notes in whole or in part for cash within the 90-Day Period and
following such redemption, Trust Securities with an aggregate
liquidation amount equal to the aggregate principal amount of the
Notes so redeemed shall be redeemed by the Trust at the Redemption
Price on a Pro Rata basis; provided, however, that, if at the time
-------- -------
there is available to the Trust the opportunity to eliminate within
such 90-Day Period, the Tax Event by taking some Ministerial Action,
the Trust or the Note Issuer will pursue such Ministerial Action in
lieu of redemption.
"Special Event" means a Tax Event or an Investment Company Event (as
defined below). "Tax Event" means that the Regular Trustees shall
have received an opinion of independent tax counsel experienced in
such matters (a "Dissolution Tax Opinion") to the effect that on or
after the date of the Prospectus Supplement, as a result of (a) any
amendment to, or change (including any announced prospective change)
in, the laws (or any regulations thereunder of the United States or,
with respect to clause (iii) below, any political subdivision or
taxing authority thereof or therein, or (b) any amendment to, or
change in, an interpretation or application of any such laws or
regulations by any legislative body, court, governmental agency or
regulatory authority, which amendment or change is enacted,
promulgated, issued or announced or which interpretation or
pronouncement is issued or announced or which action is taken, in each
case on or after the date of the Prospectus Supplement, there is more
than an insubstantial risk that (i) the Trust is or will be within 90
days of the date thereof, subject to United States federal income tax
with respect to interest accrued or receive on the Notes, (ii) the
Trust is, or will be within 90 days of the date thereof, subject to
more than a de minimis amount of other taxes, duties or other
governmental charges, or (iii) interest payable by the Note Issuer to
the Trust on the Notes is not, or within 90 days of the date thereof
will not be, deductible, in whole or in part, by the Note Issuer for
United States federal income tax purposes. "Investment Company Event"
means that the Regular Trustees shall have received an opinion from
independent counsel experienced in such matters to the effect that, as
a result of the occurrence of a change in law or regulation or a
written change in interpretation or application of law or regulation
by any legislative body, court, governmental agency or regulatory
authority, there is more than an insubstantial risk that the Trust is
or will be considered an "investment company" which is required to be
registered under the Investment Company
A-6
<PAGE>
Act of 1940, as amended, which change becomes effective on or after
the date of the Prospectus Supplement.
On and from the date fixed by the Regular Trustees for any
distribution of Notes and dissolution of the Trust: (i) the Trust
Securities will no longer be deemed to be outstanding, (ii) The
Depository Trust Company (the "Depositary") or its nominee (or any
successor Depositary or its nominee), as the record Holder of the
Preferred Securities, will receive a registered global certificate or
certificates representing the Notes to be delivered upon such
distribution, and (iii) any certificates representing Trust Securities
not held by the Depositary or its nominee (or any successor Depositary
or its nominee), will be deemed to represent beneficial interests in
the Notes having an aggregate principal amount equal to the aggregate
stated liquidation amount of such Trust Securities until such
certificates are presented to the Note Issuer or its agent for
transfer or reissue.
(d) Upon the occurrence of a Regulatory Event (as defined below), the Note
Issuer may, for a period of 90 days following written notice to the
Regular Trustees of the occurrence of a Regulatory Event, notify the
Regular Trustees in writing that the Note Issuer has elected to reduce
the annual interest rate on the Notes by 50 basis points effective
upon distribution of the adjusted Notes to the Holders of the Trust
Securities; provided, however, that if the Note Issuer has elected to
defer payments of interest to the holders of the Trust Securities as
set in Paragraph 2(a) above, all deferred distributions and accrued
interest thereon shall be paid before the adjusted Notes are
distributed. If notice of the Note Issuer's election as specified
above is not given within the 90-day period, the Note Issuer will
forfeit the right to make such election.
If the Note Issuer elects to lower the annual interest rate on the
Notes as described above, at least 30 but not more than 60 days prior
to the distribution of the adjusted Notes, notice of such election
will be sent to the Holders of the Trust Securities. Such notice will
state that (i) a Regulatory Event has occurred and that the Note
Issuer has elected to reduce the interest rate on the Notes, (ii) that
on the specified date (which shall be the next Distribution Date which
is at least 30 days after the date of such notice), the adjusted Notes
will be converted into Depositary Shares with a liquidation preference
equal to the principal amount of the adjusted Notes converted, unless
prior to such conversion the Holder of Trust Securities elects not to
A-7
<PAGE>
convert such Holder's adjusted Notes, in which case such Holder will
be entitled to receive the adjusted Notes, (iii) that the Trust will
be dissolved and that the Holders of Trust Securities will receive
adjusted Notes and/or Depositary Shares, as the case may be, (iv) the
date upon which the adjusted Notes and/or Depositary Shares, as the
case may be, will be distributed, and (v) the procedure for a Holder
of Trust Securities to exercise his or her right not to have the
Adjusted Notes to which such Holder is entitled converted to
Depositary Shares.
If the Note Issuer elects to lower the annual interest rate on the
Notes, on the next Distribution Date which is at least 30 days after
notice to the Holders of Trust Securities as provided above, (i) the
adjusted Notes will be converted into Depositary Shares having a
distribution liquidation preference equal to the principal amount of
the adjusted Notes converted, unless prior to such conversion the
Holder of Trust Securities elects not to convert such Holder's
adjusted Notes, in which event such Holder will be entitled to receive
the adjusted Notes and (ii) the Trust shall be dissolved, with the
result that the adjusted Notes and/or the Depositary Shares, as the
case may be, will be distributed to the Holders of the Trust
Securities in lieu of any cash distribution.
After the date for any distribution of adjusted Notes upon dissolution
of the Trust, (i) the Trust Securities will no longer be deemed to be
outstanding, (ii) the Depositary or its nominee, as the record holder
of the Trust Securities, will receive a registered global certificate
or certificates representing the adjusted Notes to be delivered upon
such distribution and (iii) any certificates representing Trust
Securities not held by the Depositary or its nominee will be deemed to
represent adjusted Notes having an aggregate principal amount equal to
the aggregate stated liquidation amount of such Trust Securities,
until such certificates are presented to the Note Issuer or its agent
for transfer or reissuance.
"Regulatory Event" means that, after , 1995, the Note
------------
Issuer (or its successor) is, becomes, or within 180 days will become,
subject to capital requirements by a bank or savings and loan holding
company regulator under which 33 1/3% or more of the liquidation
amount of the outstanding Preferred Securities will not constitute
Tier 1 capital (as that concept is used in the regulations issued by
the Board of Governors of the Federal Reserve System under Section
5(b) of the Bank Holding Company Act of 1956,
A-8
<PAGE>
as amended, as of , 1995) or its then equivalent ("Tier 1
--------
Capital").
(e) Note Issuer shall promptly notify the Regular Trustees of the
occurrence of a Regulatory Redemption Event. During a period of 90
days after the occurrence of a Regulatory Redemption Event, Note
Issuer may elect to redeem the Notes in whole for cash. If the Note
Issuer elects to redeem the Notes in whole for cash, the written
notice of its election shall specify a date for such redemption, which
shall not be less than 30 nor more than 60 days after such notice.
"Regulatory Redemption Event" means that (i) a Regulatory Event has
occurred and (ii) (a) a bank, savings and loan association, savings
bank, or bank or savings and loan holding company (each a "Depository
Institution") has issued or has been the sponsor of a trust or other
entity that has issued securities that constitute Tier 1 Capital for
such Depository Institution, and which issued securities, or the
securities underlying such issued securities, are to be treated by
such Depository Institution as indebtedness for U.S. federal income
tax purposes, as evidenced by the disclosure document pursuant to
which such securities were offered, and (b) Note Issuer has within 60
days of such issuance, received an opinion of independent counsel
experienced in such matters that securities having substantially
identical terms (except for rate, maturity and payment dates), if
issued by Note Issuer or by a Note Issuer sponsored trust or other
entity, should constitute Tier 1 Capital for the Note Issuer if the
securities issued by such Depositary Institution constituted Tier 1
Capital for such Depositary Institution and should be treated as
indebtedness for U.S. federal income tax purposes.
(f) The Trust may not redeem fewer than all the outstanding Trust
Securities unless all accrued and unpaid Distributions have been paid
on all Trust Securities for all quarterly Distribution periods
terminating on or before the date of redemption.
(g) If the Notes are distributed to Holders of the Trust Securities,
pursuant to the terms of the Indenture, the Note Issuer will use its
best efforts to have the Notes listed on the New York Stock Exchange
or on such other exchange, the NASDAQ National Market System or other
organization as the Preferred Securities were listed immediately prior
to the distribution of the Notes.
(h) "Redemption or Distribution Procedures."
(i) Notice of any redemption of, or notice of distribution of Notes
in exchange for the Trust Securities (a) "Redemption/Distribution
Notice" will be given by the Trust by mail to each Holders of
Trust Securities to be redeemed or exchanged not fewer than 30
nor more than 60 days before the date fixed for redemption or
exchange thereof which, in the case of a redemption, will be the
date fixed for redemption of the Notes. For purposes of the
calculation of the date of redemption or exchange and the dates
on which notices are given pursuant to this paragraph 4(h)(i), a
Redemption/Distribution Notice shall be deemed to be given on the
day such notice is first
A-9
<PAGE>
mailed by first-class mail, postage prepaid, to Holders of Trust
Securities. Each Redemption/Distribution Notice shall be
addressed to the Holders of Trust Securities at the address of
each such Holder appearing in the books and records of the Trust.
No defect in the Redemption/Distribution Notice or in the mailing
of either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with respect
to any other Holder.
(ii) In the event that fewer than all the outstanding Trust Securities
are to be redeemed, the Trust Securities to be redeemed shall be
redeemed Pro Rata and, in the event Preferred Securities are held
in book-entry only form by the Depositary or its nominee (or any
successor Depositary or its nominee), the Depositary will reduce
Pro Rata the amount of the interest of each Depositary
Participant in the Preferred Securities to be redeemed in
accordance with its procedure; provided, that if, as a result of
-------- ----
such Pro Rata redemption, Depositary Participants would hold
fractional interests in the Preferred Securities, the Depositary
will adjust the amount of the interest of each Depositary
Participant to be redeemed to avoid such fractional interests;
provided, however, if the partial redemption of the Preferred
Securities would result in the delisting of the Preferred
Securities from any exchange on which they are then listed, the
Preferred Securities may only be redeemed in whole.
(iii) If Trust Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be issued
if the Notes are redeemed as set out in this paragraph 4 (which
notice will be irrevocably), then (A) while the Preferred
Securities are in book-entry only form, with respect to the
Preferred Securities, by 12:00 noon, New York City time, on the
redemption date, provided that the Note Issuer has paid the
Property Trustee a sufficient amount of cash in connection with
the related redemption or maturity of the Notes, the Property
Trustee will deposit irrevocably with the Depositary (or
successor Depositary) funds sufficient to pay the applicable
Redemption Price with respect to the Preferred Securities and
will give the Depositary irrevocable instructions and authority
to pay the Redemption Price to the Holders of the Preferred
Securities, and (B) with respect to Preferred
A-10
<PAGE>
Securities issued in definitive form and Common Securities,
provided, that the Note Issuer has paid the Property Trustee a
-------- ----
sufficient amount of cash in connection with the related
redemption or maturity of the Notes, the Property Trustee will
pay the relevant Redemption Price to the Holders of such Trust
Securities by check mailed to the address of the relevant Holder
appearing on the books and records of the Trust on the redemption
date. If a Redemption/Distribution Notice shall have been given
and funds deposited as required, if applicable, then immediately
prior to the close of business on the date of such deposit, or on
the redemption date, if later, as applicable, Distributions will
cease to accrue on the Trust Securities so called for redemption
and all rights of Holders of such Trust Securities so called for
redemption will cease, except the right of the Holders of such
Trust Securities to receive the Redemption Price, but without
interest on such Redemption Price. Neither the Regular Trustees
nor the Trust shall be required to register or cause to be
registered the transfer of any Trust Securities that have been so
called for redemption. If any date fixed for redemption of Trust
Securities is not a Business Day, then payment of the Redemption
Price payable on such date will be made on the next succeeding
day that is a Business Day (and without any interest or other
payment in respect of any such delay) except that, if such
Business Day falls in the next calendar year, such payment will
be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date fixed for
redemption. If payment of the Redemption Price in respect of any
Trust Securities is improperly withheld or refused and not paid
either by the Property Trustee or by the Sponsor as guarantor
pursuant to the Preferred Securities Guarantee or Common
Securities Guarantee, as the case may be, Distributions on such
Trust Securities will continue to accrue from the original
redemption date to the actual date of payment, in which case the
actual payment date will be considered the date fixed for
redemption for purpose of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to (A) in respect of the
Preferred Securities, the Depositary or its nominee (or any
successor Depositary or its nominee) if the Global Certificates
have been issued or, if Definitive
A-11
<PAGE>
Preferred Security Certificates have been issued, to the Holder
thereof, and (B) in respect of the Common Securities to the
Holder thereof.
(v) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), provided the
acquirer is not the Holder of the Common Securities or the
obligor under the Indenture, the Sponsor or any of its
subsidiaries may at any time and from time to time purchase
outstanding Preferred Securities by tender, in the open market or
by private agreement.
5. Voting Rights - Preferred Securities.
------------------------------------
(a) Except as provided under paragraphs 5(b) and 7 and as otherwise
required by law and the Declaration, the Holders of the Preferred
Securities will have no voting rights.
(b) Subject to the requirements set forth in this paragraph, the Holders
of a majority in liquidation amount of the Preferred Securities,
voting separately as a class, may direct the time, method, and place
of conducting any proceeding for any remedy available to the Property
Trustee, or direct the exercise of any trust or power conferred upon
the Property Trustee under the Declaration, including (i) directing
the time, method, place of conducting any proceeding for any remedy
available to the Note Trustee, or exercising any trust or power
conferred on the Note Trustee with respect to the Notes, (ii) waive
any past default and its consequences that is waivable under Section
513 of the Indenture, or (iii) exercise any right to rescind or annul
a declaration that the principal of all the Notes shall be due and
payable, provided, however, that, where a consent under the Indenture
-------- -------
would require the consent or act of the Holders of all of or of
greater than a majority of the Holders in principal amount of Notes
affected thereby (a "Super-Majority"), the Property Trustee may only
give such consent or take such action at the direction of the Holders
of all of or of at least the proportion in liquidation amount of the
Preferred Securities which the relevant Super-Majority represents of
the aggregate principal amount of the Notes outstanding, as
applicable. The Property Trustee shall not revoke any action
previously authorized or approved by a vote of the applicable Holders
of the Preferred Securities as aforesaid. Other than with respect to
directing the time, method and place of conducting any remedy
available to the
A-12
<PAGE>
Property Trustee or the Note Trustee as set forth above, the Property
Trustee shall not take any action in accordance with the directions of
the Holders of the Preferred Securities under this paragraph unless
the Property Trustee has obtained an opinion of independent tax
counsel experienced in such matters to the effect that for the
purposes of United Stats federal income tax the Trust will not fail to
be classified as a grantor trust on account of such action. If the
Property Trustee fails to enforce its rights under the Declaration,
any Holder of Preferred Securities may after written request to the
Property Trustee to enforce such rights, institute a legal proceeding
directly against any Person to enforce the Property Trustee's rights
under the Declaration without first instituting a legal proceeding
against the Property Trustee or any other Person.
Any approval or direction of Holders of Preferred Securities may be
given at a separate meeting of Holders of Preferred Securities
convened for such purpose, at a meeting of all of the Holders of Trust
Securities in the Trust or pursuant to written consent. The Regular
Trustees will cause a notice of any meeting at which Holders of
Preferred Securities are entitled to vote, or of any matter upon which
action by written consent of such Holders is to be taken, to be mailed
to each Holder of record of Preferred Securities. Each such notice
will include a statement setting forth (i) the date of such meeting or
the date by which such action is to be taken, (ii) a description of
any resolution proposed for adoption at such meeting on which such
Holders are entitled to vote or of such matter upon which the written
consent is sought and (iii) instructions for the delivery of proxies
or consents.
No vote or consent of the Holders of the Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities or to
distribute the Notes in accordance with the Declaration and the terms
of the Trust Securities.
Notwithstanding that Holders of Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any of
the Preferred Securities that are owned by the Sponsor or any
Affiliate of the Sponsor shall not be entitled to vote or consent and
shall, for purposes of such vote or consent, be treated as if they
were not outstanding.
A-13
<PAGE>
6. Voting Rights - Common Securities.
---------------------------------
(a) Except as provided under paragraphs 6(b), 6(c) and 7 or as otherwise
required by law and the Declaration, the Holders of the Common
Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in accordance with
Article V of the Declaration, to vote to appoint, remove or replace
any Trustee or to increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only after an Event of
Default with respect to the Preferred Securities has been cured,
waived or otherwise eliminated and to the requirements of the second
to last sentence of this paragraph, the Holders of a Majority in
liquidation amount of the Common Securities, voting separately as a
class, may direct the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or
exercising any trust or power conferred upon the Property Trustee
under the Declaration, including (i) directing the time, method, place
of conducting any proceeding for any remedy available to the Note
Trustee, or exercising any trust or power conferred on the Note
Trustee with respect to the Notes, (ii) waive any past default and its
consequences that is waivable under Section 513 of the Indenture, or
(iii) exercise any right to rescind or annul a declaration that the
principal of all the Notes shall be due and payable, provided,
--------
however, that, where a consent or action under the Indenture would
-------
require the consent or act of the Holders of all of or of greater than
a majority in principal amount of Notes affected thereby (a "Super-
Majority"), the Property Trustee may only give such consent or take
such action at the direction of the Holders of all of or of at least
the proportion in liquidation amount of the Common Securities which
the relevant Super-Majority represents of the aggregate principal
amount of the Notes outstanding, as applicable. Pursuant to this
paragraph 6(c), the Property Trustee shall not revoke any action
previously authorized or approved by a vote of the applicable Holders
of the Preferred Securities as aforesaid. Other than with respect to
directing the time, method and place of conducting any remedy
available to the Property Trustee or the Note Trustee as set forth
above, the Property Trustee shall not take any action in accordance
with the directions of the Holders of the Common Securities under this
paragraph unless the Property Trustee has obtained an opinion of
independent tax counsel experienced in such matters to the effect
A-14
<PAGE>
that for the purposes of United States federal income tax the Trust
will not fail to be classified as a grantor trust on account of such
action. If the Property Trustee fails to enforce its rights under the
Declaration, any Holder of Common Securities may after written request
to the Property Trustee to enforce such rights, institute a legal
proceeding directly against any Person to enforce the Property
Trustee's rights under the Declaration, without first instituting a
legal proceeding against the Property Trustee or any other person.
Any approval or direction of Holders of Common Securities may be given
at a separate meeting of Holders of Common Securities convened for
such purpose, at a meeting of all of the Holders of Trust Securities
in the Trust or pursuant to written consent. The Regular Trustees
will cause a notice of any meeting at which Holders of Common
Securities are entitled to vote, or of any matter upon which action by
written consent of such Holders is to be taken, to be mailed to each
Holder of record of Common Securities. Each such notice will include
a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are
entitled to vote or of such matter upon which written consent is
sought and (iii) instructions for the delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to
distribute the Notes in accordance with the Declaration and the terms
of the Trust Securities.
7. Amendments to Declaration and Indenture.
---------------------------------------
(a) In addition to any requirements under Section 12.1 of the Declaration,
if any proposed amendment to the Declaration provides for, or the
Regular Trustees otherwise propose to effect (i) any action that would
adversely affect the powers, preferences or special rights of the
Trust Securities, whether by way of amendment to the Declaration or
otherwise, or (ii) the liquidation, dissolution, winding-up or
termination of the Trust, other than as described in Section 8.1 of
the Declaration, then the Holders of outstanding Trust Securities,
voting together as a single class, will be entitled to vote on such
amendment or proposal (but not on any other amendment or proposal) and
such amendment or proposal shall not be effective except with the
approval of the Holders of at least 66-2/3% in
A-15
<PAGE>
liquidation amount of the Trust Securities, voting together as a
single class; provided, however, if any amendment or proposal referred
-------- -------
to in clause (i) above would adversely affect only the Preferred
Securities or only the Common Securities, then only the affected class
will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the approval
of 66-2/3% in liquidation amount of such class of Trust Securities.
(b) In the event the consent of the Property Trustee as the holder of the
Notes, the Preferred Securities Guarantee and the Common Securities
Guarantee is required under the Indenture with respect to any
amendment, modifications or termination on the Indenture, the Notes,
the Preferred Securities Guarantees or the Common Securities
Guarantee, the Property Trustee shall request the direction of the
Holders of the Trust Securities with respect to such amendment,
modification or termination and shall vote with respect to such
amendment, modification or termination as directed by a Majority in
liquidation amount of the Trust Securities voting together as a single
class; provided, however, that where a consent under the Indenture
-------- -------
would require the consent of all of the Holders or a Super-Majority,
the Property Trustee may only give such consent at the direction of
the Holders of all of or of at least the proportion in liquidation
amount of the Trust Securities which the relevant Super-Majority
represents of the aggregate principal amount of the Notes outstanding,
as applicable; provided, further, that the Property Trustee shall not
-------- -------
take any action in accordance with the directions of the Holders of
the Trust Securities under this paragraph 7(b) unless the Property
Trustee has obtained an opinion of independent tax counsel experienced
in such matters to the effect that for the purposes of United States
federal income tax the Trust will not be classified as other than a
grantor trust on account of such action.
8. Pro Rata.
--------
A reference to any payment, distribution or treatment as being "Pro Rata"
shall mean pro rata to each Holder of Trust Securities according to the
aggregate liquidation amount of the Trust Securities held by the relevant Holder
in relation to the aggregate liquidation amount of all Trust Securities
outstanding unless, in relation to a payment, an Event of Default under the
Indenture has occurred and is continuing, in which case any funds available to
make such payment shall be paid first to each Holder of the Preferred Securities
pro rata according to the aggregate liquidation amount of Preferred Securities
held by the relevant Holder relative to the aggregate liquidation amount of all
A-16
<PAGE>
Preferred Securities outstanding, and only after satisfaction of all amounts
owed to the Holders of the Preferred Securities, to each Holder of Common
Securities pro rata according to the aggregate liquidation amount of Common
Securities held by the relevant Holder relative to the aggregate liquidation
amount of all Common Securities outstanding.
9. Ranking.
-------
The Preferred Securities rank pari passu and payment thereon shall be made
Pro Rata with the Common Securities except that, where an Event of Default
occurs and is continuing hereunder, the rights of Holders of the Common
Securities to payment in respect of Distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights to payment of the
Holders of the Preferred Securities.
10. Listing.
-------
The Regular Trustees shall use their best efforts to cause the Preferred
Securities to be listed for quotation on the New York Stock Exchange.
11. Acceptance of Trust Securities Guarantee and Indenture.
------------------------------------------------------
Each Holder of Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture.
12. No Preemptive Rights.
--------------------
The Holders of the Trust Securities shall have no preemptive rights to
subscribe for any additional securities.
13. Miscellaneous.
-------------
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Preferred
Securities Guarantee or the Common Securities Guarantee (as may be appropriate),
and the Indenture to a Holder without charge on written request to the Trust at
its principal place of business.
A-17
<PAGE>
ANNEX I
IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT - This
Preferred Security is a Global Certificate within the meaning of the Declaration
hereinafter referred to and is registered in the name of The Depository Trust
Company, a New York Corporation (the "Depositary") or a nominee of the
Depositary. This Preferred Security is exchangeable for Preferred Securities
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Declaration and no transfer of
this Preferred Security (other than a transfer of this Preferred Security as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of the Depositary to the Trust or its agent for registration of
transfer, exchange or payment, and any Preferred Security issued is registered
in the name of Cede & Co. or such other name as is requested by an authorized
representative of the Depositary and any payment hereon is made to Cede & Co. or
such other entity as is requested by an authorized representative of the
Depositary, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.]
Certificate Number Number of Preferred Securities
CUSIP NO.
------------
Certificate Evidencing Preferred Securities
of
GREAT WESTERN FINANCIAL TRUST I
Preferred Securities
(liquidation amount $25 per Preferred Security)
GREAT WESTERN FINANCIAL TRUST I, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that
(the "Holder") is the registered owner of preferred
- ------------------------
securities of the Trust representing undivided beneficial interests in the
assets of the Trust designated the % Trust Originated Preferred Securities
------
(liquidation amount $25 per Preferred Security) (the "Preferred Securities").
The Preferred Securities are transferable on the books and records of the Trust,
in person or by a duly authorized
I-1
<PAGE>
attorney, upon surrender of this certificate duly endorsed and in proper form
for transfer. The designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities represented hereby
are issued and shall in all respects be subject to the provision of the Amended
and Restated Declaration of Trust of the Trust dated as of , 1995,
-------------
as the same may be amended from time to time (the "Declaration"), including the
designation of the terms of the Preferred Securities as set forth in Exhibit A
to the Declaration. Capitalized terms used herein but not defined shall have
the meaning given them in the Declaration. The Holder is entitled to the
benefits of the Preferred Securities Guarantee to the extent provided therein.
The Sponsor will provide a copy of the Declaration, the Preferred Securities
Guarantee and the Indenture to a Holder without charge upon written request to
the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat for United States federal income
tax purposes, the Notes as indebtedness and the Preferred Securities as evidence
of indirect beneficial ownership in the Notes.
IN WITNESS WHEREOF, the Trust has executed this certificate this day
-----
of , 199 .
---------------- --
CARL F. GEUTHER,
as Trustee
------------------------------
J. LANCE ERIKSON,
as Trustee
------------------------------
BRUCE F. ANTENBERG,
as Trustee
------------------------------
I-2
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee) and irrevocably appoints)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer this Preferred Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
-----------------------
Signature:
-----------------------------------------
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
Signature(s) must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Property Trustee, which requirements include
membership or participation in STAMP or such other "signature guaranty program"
as may be determined by the Property Trustee in addition to or in substitution
for STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
I-3
<PAGE>
ANNEX II
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
GREAT WESTERN FINANCIAL TRUST I
Common Securities
(liquidation amount $25 per Common Security)
GREAT WESTERN FINANCIAL TRUST I, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), hereby certifies that
(the "Holder") is the registered owner of common securities of
- ---------------
the Trust representing undivided beneficial interests in the assets of the Trust
designated the % Trust Originated Common Securities (liquidation
---------
amount $25 per Common Security) (the "Common Securities"). The Common
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this certificate duly endorsed
and in proper form for transfer. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities represented hereby are issued and shall in all respects be subject to
the provisions of the Amended and Restated Declaration of Trust of the Trust
dated as of , 1995, as the same may be amended from time to
---------------------
time (the "Declaration"), including the designation of the terms of the Common
Securities as set forth in Exhibit A to the Declaration. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration.
The Holder is entitled to the benefits of the Common Securities Guarantee
to the extent provided therein. The Trust will provide a copy of the
Declaration, the Common Securities Guarantee and the Indenture to the Holder
without charge upon written request to the Trust at its principal place of
business.
Upon receipt of this certificate, the Sponsor is bound by the Declaration
and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat for United States federal income
tax purposes the Notes as indebtedness and the Common Securities as evidence of
indirect beneficial ownership in the Notes.
II-1
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this day
-----
of , 199 .
------------------ --
CARL F. GEUTHER,
as Trustee
------------------------------
J. LANCE ERIKSON,
as Trustee
------------------------------
BRUCE F. ANTENBERG,
as Trustee
------------------------------
II-2
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
Certificate to:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Insert address and zip code of assignee) and irrevocably appoints)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
agent to transfer this Common Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:
-------------------------
Signature:
----------------------------------
(Sign exactly as your name appears on the other side of this Common Security
Certificate)
Signature(s) must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Property Trustee, which requirements include
membership or participation in STAMP or such other "signature guaranty program"
as may be determined by the Property Trustee in addition to or in substitution
for STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
II-3
<PAGE>
EXHIBIT 4.16
========================================
PREFERRED SECURITIES GUARANTEE AGREEMENT
GREAT WESTERN FINANCIAL TRUST I
Dated as of , 1995
------------
========================================
<PAGE>
TABLE OF CONTENTS
Section Page
- ------- ----
ARTICLE I
Definitions and Interpretation....................... 2
Section 1.1. Definitions and Interpretation................................ 2
------------------------------
ARTICLE II
Trust Indenture Act............................ 5
Section 2.1. Trust Indenture Act; Application.............................. 5
--------------------------------
Section 2.2. Lists of Holders of Trust Securities.......................... 5
------------------------------------
Section 2.3. Reports by the Preferred Guarantee Trustee.................... 6
------------------------------------------
Section 2.4. Periodic Reports to Preferred Guarantee
---------------------------------------
Trustee....................................................... 6
-------
Section 2.5. Evidence of Compliance with Conditions
--------------------------------------
Precedent..................................................... 6
---------
Section 2.6. Events of Default; Waiver..................................... 7
-------------------------
Section 2.7. Event of Default; Notice...................................... 7
------------------------
Section 2.8. Conflicting Interests......................................... 7
---------------------
ARTICLE III
Power, Duties and Rights of
Preferred Guarantee Trustee........................ 7
Section 3.1. Powers and Duties of the Preferred Guarantee
--------------------------------------------
Trustee....................................................... 7
-------
Section 3.2. Certain Rights of Preferred Guarantee Trustee................. 10
---------------------------------------------
Section 3.3. Not Responsible for Recitals or Issuance of
-------------------------------------------
Guarantee..................................................... 12
---------
ARTICLE IV
Preferred Guarantee Trustee........................ 12
Section 4.1. Preferred Guarantee Trustee; Eligibility...................... 12
----------------------------------------
Section 4.2. Appointment Removal and Resignation of
--------------------------------------
Preferred Guarantee Trustees.................................. 13
----------------------------
ARTICLE V
Guarantee................................. 14
Section 5.1. Guarantee..................................................... 14
---------
Section 5.2. Subordination................................................. 14
-------------
Section 5.3. Waiver of Notice and Demand................................... 14
---------------------------
Section 5.4. Obligations Not Affected...................................... 15
------------------------
Section 5.5. Rights of Holders............................................. 16
-----------------
Section 5.6. Guarantee of Payment.......................................... 16
--------------------
Section 5.7. Subrogation................................................... 16
-----------
Section 5.8. Independent Obligations....................................... 17
-----------------------
ARTICLE VI
Limitation of Transactions; Subordination................. 17
Section 6.1. Limitation of Transactions.................................... 17
--------------------------
Section 6.2. Ranking....................................................... 17
-------
i
<PAGE>
ARTICLE VII
Termination................................ 18
Section 7.1. Termination................................................... 18
-----------
ARTICLE VIII
Indemnification.............................. 18
Section 8.1. Exculpation................................................... 18
-----------
Section 8.2. Indemnification............................................... 19
---------------
ARTICLE IX
Miscellaneous............................... 19
Section 9.1. Successors and Assigns........................................ 19
----------------------
Section 9.2. Amendments.................................................... 19
----------
Section 9.3. Notices....................................................... 20
-------
Section 9.4. Benefit....................................................... 20
-------
Section 9.5. Governing Law................................................. 20
-------------
ii
<PAGE>
PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of ,
-----------
1995, is executed and delivered by Great Western Financial Corporation, a
Delaware corporation (the "Guarantor"), and The First National Bank of Chicago,
a , not individually but solely as trustee (the "Preferred Guarantee
-----------
Trustee"), for the benefit of the Holders (as defined herein) from time to time
of the Preferred Securities (as defined herein) of Great Western Financial Trust
I, a Delaware statutory business trust (the "Issuer").
RECITALS
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of , 1995, among the trustees of the Issuer
------------
named therein, the Guarantor as sponsor and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof $ aggregate stated liquidation amount of
------------
Preferred Securities designated the % Trust Originated Preferred Securities
-----
(the "Preferred Securities");
WHEREAS, as incentive for the Holders (as hereinafter defined) to purchase
the Preferred Securities, the Guarantor desires irrevocably and unconditionally
to agree, to the extent set forth in this Guarantee Agreement, to pay to the
Holders of the Preferred Securities the Guarantee Payments (as defined herein)
and to make certain other payments on the terms and conditions set forth herein;
and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee Agreement") with substantially
identical terms to this Guarantee Agreement for the benefit of the holders of
the Common Securities (as defined herein) except that if an Event of Default (as
defined in the Indenture (as defined herein)), has occurred and is continuing,
the rights of holders of the Common Securities to receive Guarantee Payments
under the Common Securities Guarantee Agreement are subordinated to the rights
of Holders of Preferred Securities to receive Guarantee Payments under this
Guarantee Agreement.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes
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and delivers this Guarantee Agreement for the benefit of the Holders.
ARTICLE I
Definitions and Interpretation
Section 1.1. Definitions and Interpretation.
------------------------------
In this Guarantee Agreement, unless the context otherwise requires:
(a) Capitalized terms used in this Guarantee Agreement but not defined in
the preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented
or amended from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections
are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized
to bind such Person.
"Common Securities" means the common securities representing undivided
beneficial interests in the assets of the Issuer.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Direction" by a Person means a written direction signed:
(a) if the Person is a natural person by that Person; or
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(b) in any other case, in the name of such Person by one or more
Authorized Officers of that Person.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid Distributions (as
defined in the Declaration) that are required to be paid on such Preferred
Securities to the extent the Issuer shall have received a payment of interest or
principal on the Notes therefor, (ii) the redemption price, including all
accrued and unpaid Distributions to the date of redemption (the "Redemption
Price") to the extent the Issuer has received a payment of interest or principal
on the Notes with respect to any Preferred Securities called for redemption by
the Issuer, and (iii) upon a voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Issuer (other than in connection with the
distribution of Notes to the Holders in exchange for Preferred Securities as
provided in the Declaration) or the redemption of all of the Preferred
Securities upon the maturity or redemption of the Notes, the lesser of (a) the
aggregate of the liquidation amount and all accrued and unpaid Distributions on
the Preferred Securities to the date of payment to the extent the Issuer has
received a payment on the Notes therefor, and (b) the amount of assets of the
Issuer remaining available for distribution to Holders in liquidation of the
Issuer (in either case, the "Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and records
of the Issuer of any Preferred Securities; provided, that, in determining
-------- ----
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives or agents of the
Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of September 12, 1990, as
amended and supplemented by a First Supplemental Indenture, dated as of April
30, 1993, and the Second Supplemental Indenture dated as of , 1995,
----------
among the Note Issuer and Harris Trust and Savings Bank, as trustee, and any
indenture supplemental thereto pursuant to which certain Notes are to be issued.
3
<PAGE>
"Majority in liquidation amount of the Trust Securities" means, except
as provided by the Trust Indenture Act, a vote by Holder(s) of Preferred
Securities, voting separately as a class, of more than 50% of the liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all Preferred Securities.
"Note Issuer" means the Guarantor in its capacity as issuer of the
Notes.
"Notes" means the subordinated debt securities of the Note Issuer
issued pursuant to the Indenture and acquired by the Issuer.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Guarantee Trustee" means The First National Bank of Chicago
until a Successor Preferred Guarantee Trustee has been appointed and has
accepted such appointment pursuant to the terms of this Guarantee Agreement and
thereafter means each such Successor Preferred Guarantee Trustee.
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"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, any vice-president, any assistant vice-president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, any trust officer
or assistant trust officer or any other officer of customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor legislation.
"Successor Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, in effect
at the date as of which this instrument was executed; provided, however, that in
-------- -------
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Securities" means collectively the Common Securities and the
Preferred Securities.
ARTICLE II
Trust Indenture Act
Section 2.1. Trust Indenture Act; Application.
--------------------------------
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement
and shall, to the extent applicable, be governed by such provisions;
and
(b) if and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Section 310
to 317, inclusive, of the Trust Indenture Act, such duties imposed by
the Trust Indenture Act shall control.
Section 2.2. Lists of Holders of Trust Securities.
------------------------------------
(a) The Guarantor shall provide the Preferred Guarantee Trustee with a
list, in such form as the Preferred Guarantee Trustee may reasonably
require, of the names and addresses of the Holders of the Preferred
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Securities ("List of Holders") as of such date, (i) within 14 days
after and of each year, and (ii) at any other time
--------- -------
within 30 days of receipt by the Guarantor of a written request for a
List of Holders as of a date no more than 14 days before such List of
Holders is given to the Preferred Guarantee Trustee provided that the
Guarantor shall not be obligated to provide such List of Holders at
any time the List of Holders does not differ from the most recent List
of Holders given to the Preferred Guarantee Trustee by the Guarantor.
The Preferred Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its obligations
under Section 311(a), 311(b) and Section 312(b) of the Trust Indenture
Act.
Section 2.3. Reports by the Preferred Guarantee Trustee.
------------------------------------------
Within 60 days after of each year, the Preferred
------------
Guarantee Trustee shall provide to the Holders of the Preferred Securities such
reports as are required by Section 313 of the Trust Indenture Act, if any, in
the form and in the manner provided by Section 313 of the Trust Indenture Act.
The Preferred Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
Section 2.4. Periodic Reports to Preferred Guarantee Trustee.
-----------------------------------------------
The Guarantor shall provide to the Preferred Guarantee Trustee
such documents, reports and information as required by Section 314 (if any) and
the compliance certificate required by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
Section 2.5. Evidence of Compliance with Conditions Precedent.
------------------------------------------------
The Guarantor shall provide to the Preferred Guarantee Trustee
such evidence of compliance with any conditions precedent, if any, provided for
in this Guarantee Agreement that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate or opinion required
to be given by an officer pursuant to Section 314(c)(1) may be given in the form
of an Officers' Certificate.
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Section 2.6. Events of Default; Waiver.
-------------------------
The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
Section 2.7. Event of Default; Notice.
------------------------
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Preferred Securities, notices of all Events of
Default known to the Preferred Guarantee Trustee, unless such defaults have been
cured before the giving of such notice, provided, that, the Preferred Guarantee
-------- ----
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
and/or Responsible Officers of the Preferred Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Preferred Guarantee Trustee shall
have received written notice, or a Responsible Officer shall have obtained
written notice, of such Event of Default.
Section 2.8. Conflicting Interests.
---------------------
The Declaration shall be deemed to be specifically described in this
Guarantee Agreement for the purposes of the first proviso contained in Section
310(b) of the Trust Indenture Act.
ARTICLE III
Power, Duties and Rights of
Preferred Guarantee Trustee
Section 3.1. Powers and Duties of the Preferred Guarantee Trustee.
----------------------------------------------------
(a) This Guarantee Agreement shall be held by the Preferred Guarantee
Trustee for the benefit of the Holders of the Preferred Securities,
and the Preferred Guarantee
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Trustee shall not transfer this Guarantee Agreement to any Person
except a Holder of Preferred Securities exercising his or her rights
pursuant to Section 5.4(b) or to a Successor Preferred Guarantee
Trustee on acceptance by such Successor Preferred Guarantee Trustee of
its appointment to act as Successor Preferred Guarantee Trustee. The
right, title and interest of the Preferred Guarantee Trustee shall
automatically vest in any Successor Preferred Guarantee Trustee, and
such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to
the appointment of such Successor Preferred Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Preferred
Guarantee Trustee shall enforce this Guarantee Agreement for the
benefit of the Holders of the Preferred Securities.
(c) The Preferred Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are
specifically set forth in this Guarantee Agreement, and no implied
covenants shall be read into this Guarantee Agreement against the
Preferred Guarantee Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6), the
Preferred Guarantee Trustee shall exercise such of the rights and
powers vested in it by this Guarantee Agreement, and use the same
degree of care and skill in its exercise thereof, as a prudent person
would exercise or use under the circumstances in the conduct of his or
her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to relieve
the Preferred Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Preferred Guarantee
Trustee shall be determined solely by the express
provisions of this Guarantee Agreement, and the Preferred
Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Guarantee Agreement, and no
implied covenants or
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<PAGE>
obligations shall be read into this Guarantee Agreement
against the Preferred Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Preferred
Guarantee Trustee, the Preferred Guarantee Trustee may
conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Preferred
Guarantee Trustee and conforming to the requirements of
this Guarantee Agreement; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Preferred
Guarantee Trustee, the Preferred Guarantee Trustee shall be
under a duty to examine the same to determine whether or
not they conform to the requirements of this Guarantee
Agreement;
(ii) the Preferred Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of
the Preferred Guarantee Trustee, unless it shall be proved that
the Preferred Guarantee Trustee was negligent in ascertaining
the pertinent facts upon which such judgment was made;
(iii) the Preferred Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of not less than
a Majority in liquidation amount of the Preferred Securities
relating to the time, method and place of conducting any
proceeding for any remedy available to the Preferred Guarantee
Trustee, or exercising any trust or power conferred upon the
Preferred Guarantee Trustee under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
Preferred Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or
powers, if the Preferred Guarantee Trustee shall have reasonable
grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of
this Guarantee Agreement or adequate indemnity against such risk
or liability is not reasonably assured to it.
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Section 3.2. Certain Rights of Preferred Guarantee Trustee.
---------------------------------------------
(a) Subject to the provisions of Section 3.1:
(i) The Preferred Guarantee Trustee may rely and shall be fully
protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by a
Direction or an Officers' Certificate.
(iii) Whenever, in the administration of this Guarantee Agreement, the
Preferred Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or
omitting any action hereunder, the Preferred Guarantee Trustee
(unless other evidence is herein specifically prescribed) may,
in the absence of bad faith on its part, request and rely upon
an Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Guarantor.
(iv) The Preferred Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
(v) The Preferred Guarantee Trustee may consult with counsel, and
the written advice or opinion of such counsel with respect to
legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with such advice
or opinion. Such counsel may be counsel to the Guarantor or any
of its Affiliates and may include any of its employees. The
Preferred Guarantee Trustee shall have the right at any time to
seek instructions concerning the administration of this
Guarantee Agreement from any court of competent jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers
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vested in it by this Guarantee Agreement at the request or
direction of any Holder, unless such Holder shall have provided
to the Preferred Guarantee Trustee such adequate security and
indemnity as would satisfy a reasonable person in the position
of the Preferred Guarantee Trustee, against the costs, expenses
(including attorneys' fees and expenses) and liabilities that
might be incurred by it in complying with such request or
direction, including such reasonable advances as may be
requested by the Preferred Guarantee Trustee; provided that,
nothing contained in this Section 3.2(a)(vi) shall be taken to
relieve the Preferred Guarantee Trustee, upon the occurrence of
an Event of Default, of its obligation to exercise the rights
and powers vested in it by this Guarantee Agreement.
(vii) The Preferred Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document,
but the Preferred Guarantee Trustee, in its discretion may make
such further inquiry or investigation into such facts or matters
as it may see fit.
(viii)The Preferred Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly
or by or through agents or attorneys, and the Preferred
Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with
due care by it hereunder.
(ix) Any action taken by the Preferred Guarantee Trustee or its
agents hereunder shall bind the Holders of the Preferred
Securities, and the signature of the Preferred Guarantee Trustee
or its agents alone shall be sufficient and effective to perform
any such action. No third party shall be required to inquire as
to the authority of the Preferred Guarantee Trustee to so act or
as to its compliance with any of the terms and provisions of
this Guarantee Agreement, both of which shall be conclusively
evidenced by the Preferred Guarantee Trustee's or its agent's
taking such action.
(x) Whenever in the administration of this Guarantee Agreement the
Preferred Guarantee Trustee shall
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deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action
hereunder, the Preferred Guarantee Trustee (i) may request
instructions from the Holders of the Preferred Securities, (ii)
may refrain from enforcing such remedy or right or taking such
other action until such instructions are received, and (iii)
shall be protected in acting in accordance with such
instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose any
duty or obligation on the Preferred Guarantee Trustee to perform any
act or acts or exercise any right, power, duty or obligation conferred
or imposed on it in any jurisdiction in which it shall be illegal, or
in which the Preferred Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act
or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Preferred Guarantee
Trustee shall be construed to be a duty.
Section 3.3. Not Responsible for Recitals or Issuance of Guarantee.
-----------------------------------------------------
The recitals contained in this Guarantee shall be taken as the
statements of the Guarantor, and the Preferred Guarantee Trustee does not assume
any responsibility for their correctness. The Preferred Guarantee Trustee makes
no representation as to the validity or sufficiency of this Guarantee Agreement.
ARTICLE IV
Preferred Guarantee Trustee
Section 4.1. Preferred Guarantee Trustee; Eligibility.
----------------------------------------
(a) There shall at all times be a Preferred Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or
of the District of Columbia, or a corporation or Person permitted
by the Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture Act, authorized
under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 50 million U.S.
12
<PAGE>
dollars ($50,000,000), and subject to supervision or examination
by Federal, State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then, for
the purposes of this Section 4.1(a)(ii), the combined capital and
surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Preferred Guarantee
Trustee shall immediately resign in the manner and with the effect set
out in Section 4.2(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Preferred Guarantee Trustee and Guarantor
shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
Section 4.2. Appointment Removal and Resignation of Preferred Guarantee
----------------------------------------------------------
Trustees.
--------
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in accordance
with Section 4.2(a) until a Successor Preferred Guarantee Trustee has
been appointed and has accepted such appointment by written instrument
executed by such Successor Preferred Guarantee Trustee and delivered
to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall hold office
until a Successor Preferred Guarantee Trustee shall have been
appointed or until its removal or resignation. The Preferred
Guarantee Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by the
Preferred Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment
by instrument in writing executed by such Successor Preferred
Guarantee Trustee and delivered to
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the Guarantor and the resigning Preferred Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall have been appointed
and accepted appointment as provided in this Section 4.2 within 60
days after delivery to the Guarantor of an instrument of resignation,
the resigning Preferred Guarantee Trustee may petition any court of
competent jurisdiction for appointment of a Successor Preferred
Guarantee Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper, appoint a Successor Preferred
Guarantee Trustee.
ARTICLE V
Guarantee
Section 5.1. Guarantee.
---------
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and when due, regardless of any defense, right of set-
off or counterclaim that the Issuer may have or assert. The Guarantor's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Issuer to pay
such amounts to the Holders.
Section 5.2. Subordination.
-------------
If an event of default under the Indenture has occurred and is
continuing, the rights of holders of the Common Securities to receive payments
under the Common Securities Guarantee Agreement are subordinated to the rights
of Holders of Preferred Securities to receive Guarantee Payments.
Section 5.3. Waiver of Notice and Demand.
---------------------------
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Issuer
or any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
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Section 5.4. Obligations Not Affected.
------------------------
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement shall in no way be affected or impaired
by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the
Preferred Securities or the extension of time for the performance of
any other obligation under, arising out of, or in connection with, the
Preferred Securities (other than an extension of time for payment of
Distributions, Redemption Price, Liquidation Distribution or other
sums payable that results from the extension of any interest payment
period on the Notes or any extension of the maturity date of the Notes
permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Issuer granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Issuer or any of the assets of the Issuer;
(e) invalidity of, or defect or deficiency in the Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the
intent of this Section 5.3 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all
circumstances.
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There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
Section 5.5. Rights of Holders.
-----------------
(a) The Holders of a Majority in liquidation amount of the Preferred
Securities have the right to direct the time, method and place of
conducting of any proceeding for any remedy available to the Preferred
Guarantee Trustee in respect of this Guarantee Agreement or to direct
the exercise of any trust or power conferred upon the Preferred
Guarantee Trustee under this Guarantee Agreement.
(b) If the Preferred Guarantee Trustee fails to enforce this Guarantee
Agreement, any Holder of Preferred Securities may, after such Holder
makes written request to the Preferred Guarantee Trustee to enforce
this Guarantee Agreement, institute a legal proceeding directly
against the Guarantor to enforce its rights under this Guarantee
Agreement, without first instituting a legal proceeding against the
Issuer, the Preferred Guarantee Trustee or any other Person.
Section 5.6. Guarantee of Payment.
--------------------
This Guarantee Agreement creates a guarantee of payment and not of
collection.
Section 5.7. Subrogation.
-----------
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Preferred Securities against the Issuer in respect of any amounts
paid to such Holders by the Guarantor under this Guarantee Agreement; provided,
--------
however, that the Guarantor shall not (except to the extent required by
- -------
mandatory provisions of law) be entitled to enforce or exercise any right that
it may acquire by way of subrogation or any indemnity reimbursement or other
agreement, in all cases as a result of payment under this Guarantee Agreement,
if, at the time of any such payment, any amounts are due and unpaid under this
Guarantee Agreement. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
16
<PAGE>
Section 5.8. Independent Obligations.
-----------------------
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.4 hereof.
ARTICLE VI
Limitation of Transactions; Subordination
Section 6.1. Limitation of Transactions.
--------------------------
So long as any Preferred Securities remain outstanding, if there shall
have occurred an Event of Default or an event of default under the Declaration,
then (a) the Guarantor shall not, and shall cause any subsidiary of Guarantor
that is not a wholly owned subsidiary of Guarantor not to, declare or pay any
dividend on, or make any distribution with respect to, or redeem, purchase or
acquire or make a liquidation payment with respect to, any of its capital stock
or the capital stock of any such subsidiary and (b) the Guarantor shall not make
any payment of interest, principal or premium, if any, on or repay, repurchase
or redeem any debt securities issued by the Guarantor which rank pari passu with
or junior to the Notes, provided, that, the foregoing restriction in this
Section 6.1(a) shall not apply to any stock dividends paid by Guarantor, or any
of its subsidiaries, where the dividend stock is the same stock as that on which
the dividend is being paid.
Section 6.2. Ranking.
-------
This Guarantee Agreement will constitute an unsecured obligation of
the Guarantor and will rank (i) subordinate and junior in right of payment to
all other liabilities of the Guarantor (other than the Common Securities
Guarantee or any guarantee now or hereafter entered into by the Guarantor in
respect of any preferred or preference stock of any Affiliate of the Guarantor),
(ii) pari passu with the most senior preferred or preference stock now or
hereafter issued by the Guarantor and with any guarantee now or hereafter
entered into by the Guarantor in respect of any preferred or preference stock of
any Affiliate of the Guarantor, and (iii) senior to the Guarantor's common
stock.
17
<PAGE>
ARTICLE VII
Termination
Section 7.1. Termination.
-----------
This Guarantee Agreement shall terminate upon (i) full payment of the
Redemption Price of all Preferred Securities, (ii) upon the distribution of the
Notes to the Holders of all Preferred Securities or (iii) upon full payment of
the amounts payable in accordance with the Declaration upon liquidation of the
Issuer. Notwithstanding the foregoing, this Guarantee Agreement will continue
to be effective or will be reinstated, as the case may be, if at any time any
Holder of Preferred Securities must restore payment of any sums paid under the
Preferred Securities or under this Preferred Securities Guarantee.
ARTICLE VIII
Indemnification
Section 8.1. Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Indemnified Person in good faith in accordance with this Guarantee
Agreement and in a manner that such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by this
Guarantee Agreement or by law, except that an Indemnified Person shall be liable
for any such loss, damage or claim incurred by reason of such Indemnified
Person's negligence or willful misconduct with respect to such acts or
omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Preferred Securities might properly be paid.
18
<PAGE>
Section 8.2. Indemnification.
---------------
(a) To the fullest extent permitted by applicable law, the Guarantor
shall indemnify and hold harmless each Indemnified Person from and against any
loss, damage or claim incurred by such Indemnified Person by reason of any act
or omission performed or omitted by such Indemnified Person in good faith in
accordance with this Guarantee Agreement and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Guarantee Agreement, except that no Indemnified
Person shall be entitled to be indemnified in respect of any loss, damage or
claim incurred by such Indemnified Person by reason of negligence or willful
misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in defending any claim,
demand, action, suit or proceeding shall, from time to time, be advanced by the
Guarantor prior to the final disposition of such claim, demand, action, suit or
proceeding upon receipt by the Guarantor of any undertaking by or on behalf of
the Indemnified Person to repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified as authorized in Section
8.2(a).
ARTICLE IX
Miscellaneous
Section 9.1. Successors and Assigns.
----------------------
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding.
Section 9.2. Amendments.
----------
Except with respect to any changes that do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Guarantee Agreement may only be amended with the prior approval of the Holders
of at least 66-2/3% in liquidation amount (including the stated amount that
would be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of
all the outstanding Preferred Securities. The provisions of Section 12.2 of the
Declaration with respect to meetings of Holders of the Trust Securities apply to
the giving of such approval.
19
<PAGE>
Section 9.3. Notices.
-------
All notices provided for in this Guarantee Agreement shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail as follows:
(a) If given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other
address as the Preferred Guarantee Trustee may give notice of to the
Holders of the Preferred Securities):
The First National Bank of Chicago
One First Financial Plaza
Suite 0126
Chicago, Illinois 60670-0126
Telecopy No. (312) 407-1708
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of
to the Holders of the Preferred Securities):
Great Western Financial Corporation
9200 Oakdale Avenue
Chatsworth, California 91311
Telecopy Number: (818) 775-3434
(c) If given to any Holder of Preferred Securities, at the address set
forth in the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
Section 9.4. Benefit.
-------
This Guarantee Agreement is solely for the benefit of the Holders of
the Preferred Securities and, subject to Section 3.1(a), is not separately
transferable from the Preferred Securities.
Section 9.5. Governing Law.
-------------
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
20
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Guarantee
Agreement to be executed by their respective officers thereunto duly authorized,
as of the day and year first above written.
GREAT WESTERN FINANCIAL CORPORATION
By:_______________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Preferred Guarantee Trustee
By:________________________________
Name:
Title:
21
<PAGE>
EXHIBIT 4.17
FORM OF
CERTIFICATE OF DESIGNATIONS
OF RIGHTS AND PREFERENCES
OF THE
% CUMULATIVE PREFERRED STOCK
----
PAR VALUE $1.00 PER SHARE
OF
GREAT WESTERN FINANCIAL CORPORATION
-----------------------------------
Pursuant to Section 151(g) of the
General Corporation Law
of the State of Delaware
-----------------------------------
GREAT WESTERN FINANCIAL CORPORATION, a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
DOES HEREBY CERTIFY:
FIRST: The Restated Certificate of Incorporation of the Corporation
authorizes the issuance of 10,000,000 shares of preferred stock, par value $1.00
per share, of the Corporation ("Preferred Stock") in one or more series, and
authorizes the Board of Directors to fix by resolution or resolutions the
designation of each series of Preferred Stock and the powers, preferences and
privileges and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof.
SECOND: The Board of Directors of the Corporation, at a meeting duly held
and called on , 1995, authorized, among other things, the Securities
---------
Committee of the Board of Directors (the "Committee") to authorize the issuance
of shares of Preferred Stock of the Corporation upon the conversion of a series
of the Debt Securities of the Corporation.
THIRD: The Committee, by unanimous written consent in lieu of a meeting
dated , 1995, did duly adopt the following resolutions providing
---------------
for the designation, powers, preferences and rights, and the qualifications,
limitations and/or restrictions thereof, of the % Cumulative Preferred Stock,
---
$1.00 par value, of the Corporation.
NOW, THEREFORE, BE IT RESOLVED, that the Committee, pursuant to authority
vested in it by the Board of Directors and in accordance with the provisions of
the Restated Certificate of Incorporation of the Corporation, hereby approves
the issuance of a series of Preferred Stock and hereby fixes the designation
<PAGE>
of such series and the powers, preferences, privileges, and relative,
participating, optional or other special rights, and qualifications, limitations
and restrictions thereof in addition to those set forth in said Restated
Certificate of Incorporation as follows:
1. Designation. The designation of the series of Preferred Stock
-----------
created by this resolution shall be % Cumulative Preferred Stock, $1.00 par
----
value, of Great Western Financial Corporation (the "Corporation") (hereinafter
referred to as "Cumulative Preferred Stock"), and the number of shares
constituting such series shall be [ ], which number may be increased (but
-------
not above the total number of authorized but unissued shares of Preferred Stock
of the Corporation) or decreased (but not below the number of shares then
outstanding) from time to time by the Board of Directors or any authorized
committee thereof.
2. Dividend Rights.
---------------
(a) The holders of shares of Cumulative Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors, out of funds
legally available therefor, cash dividends, accruing from [ ],
-----------------
at the annual rate of % per annum, and no more, payable, when, as and if
----
declared by the Board of Directors, quarterly on February 1, May 1, August 1 and
November 1 of each year (each quarterly period ending on any such date
being hereinafter referred to as a "dividend period"), commencing [ ],
----------
at such annual rate. Each dividend will be payable to holders of record as they
appear on the stock books of the Corporation on such record dates, not exceeding
45 days preceding the payment dates thereof, as shall be fixed by the Board of
Directors of the Corporation. The date of initial issuance of shares of
Cumulative Preferred Stock is hereinafter referred to as the "Issue Date".
Dividends payable on the Cumulative Preferred Stock (i) for any period other
than a full dividend period, shall be computed on the basis of a 360-day year
consisting of twelve 30-day months and (ii) for each full dividend period, shall
be computed by dividing the annual dividend rate by four.
(b) Dividends on shares of Cumulative Preferred Stock shall be cumulative
from the Issue Date whether or not there shall be funds legally available for
the payment thereof. If there shall be outstanding shares of any other series
of Preferred Stock ranking on a parity with the Cumulative Preferred Stock as to
dividends, no full dividends shall be declared or paid or set apart for payment
on any such other series for any period unless full cumulative dividends have
been or contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for such payment on the Cumulative Preferred
Stock for all dividend periods terminating on or prior to the date of payment of
such dividends. If dividends on the
2
<PAGE>
Cumulative Preferred Stock and on any other series of Preferred Stock ranking on
a parity as to dividends with the Cumulative Preferred Stock are in arrears, in
making any dividend payment on account of such arrears, the Corporation shall
make payments ratably upon all outstanding shares of the Cumulative Preferred
Stock and shares of such other series of Preferred Stock in proportion to the
respective amounts of dividends in arrears on the Cumulative Preferred Stock and
on such other series of Preferred Stock to the date of such dividend payment.
Holders of shares of the Cumulative Preferred Stock shall not be entitled to any
dividend, whether payable in cash, property or stock, in excess of full
cumulative dividends on such shares. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments which
may be in arrears.
(c) Unless full cumulative dividends on all outstanding shares of the
Cumulative Preferred Stock shall have been paid or declared and set aside for
payment for all past dividend periods and the Corporation is not in default or
in arrears in respect to the optional redemption of any shares of Cumulative
Preferred Stock, no dividend shall be declared upon the Common Stock or upon any
other stock ranking junior to the Cumulative Preferred Stock as to dividends or
the distribution of assets upon liquidation, dissolution or winding up of the
affairs of the Corporation (the Common Stock and any other such stock being
herein referred to as "Junior Stock"), nor shall the Corporation make any
payment on account of, or set apart money for, the purchase, redemption or other
retirement of, or for a sinking or other analogous fund for any shares of Junior
Stock or make any distribution in respect thereof, whether in cash or property
or in obligations or stock of the Corporation, other than Junior Stock which is
neither convertible into, nor exchangeable or exercisable for, any securities of
the Corporation other than Junior Stock and other than the redemption of Rights
(the "Rights") distributed pursuant to a Rights Agreement, dated as of June 24,
1986, as amended, between the Corporation and Morgan Shareholder Services Trust
Company (the "Rights Agreement").
3. Liquidation Preferences.
-----------------------
(a) In the event of any liquidation, dissolution or winding up of the
affairs of the Corporation, whether voluntary or involuntary, the holders of
Cumulative Preferred Stock shall be entitled to receive out of the assets of the
Corporation available for distribution to stockholders an amount equal to $250
per share of Cumulative Preferred Stock plus an amount equal to any accrued and
unpaid dividends thereon to and including the date of such distribution, and no
more, before any distribution shall be made to the holders of Common Stock or
any other class of stock of the Corporation ranking junior to the Cumulative
Preferred Stock as to the distribution of assets upon any such liquidation,
dissolution or winding up. After payment
3
<PAGE>
of such liquidating distributions, the holders of shares of Cumulative Preferred
Stock will not be entitled to any further participation in any distribution of
assets by the Corporation.
(b) In the event the assets of the Corporation available for distribution to
stockholders upon any liquidation, dissolution or winding up of the affairs of
the Corporation, whether voluntary or involuntary, shall be insufficient to pay
in full the amounts payable with respect to the Cumulative Preferred Stock and
any other shares of Preferred Stock ranking on a parity with the Cumulative
Preferred Stock as to the distribution of assets upon any such liquidation,
dissolution or winding up, the holders of Cumulative Preferred Stock and the
holders of such other Preferred Stock shall share ratably in any distribution of
assets of the Corporation in proportion to the full respective preferential
amounts to which they are entitled.
(c) The merger or consolidation of the Corporation into or with any other
corporation, the merger or consolidation of any other corporation into or with
the Corporation or the sale of the assets of the Corporation substantially as an
entirety shall not be deemed a liquidation, dissolution or winding up of the
affairs of the Corporation within the meaning of this Section 3.
4. Redemption.
----------
(a) The Corporation, at its option, may redeem any or all shares of
Cumulative Preferred Stock, at any time or from time to time, on or after
, 2000, at a redemption price of $250.00 per share, plus an amount
- ----------
equal to accrued and unpaid dividends thereon to and including the date of
redemption (the "Redemption Price"). In addition, during a period of 90 days
after the occurrence of a Regulatory Redemption Event (as defined below), the
Corporation may elect to redeem all shares of Cumulative Preferred Stock at the
Redemption Price. Redemption of all shares of Cumulative Preferred Stock will
require the prior consent of the Corporation's then banking supervisory
authority if such consent is required by applicable law, regulation or
interpretation then in effect in order for one hundred percent of the Cumulative
Preferred Stock to constitute Tier 1 capital (as that concept is used in the
regulations issued by the Board of Governors of the Federal Reserve System under
Section 5(b) of the Bank Holding Company Act of 1956, as amended, as of ,
-------
1995) or its then equivalent ("Tier 1 Capital"). "Regulatory Redemption Event"
means that (i) a bank, savings and loan association, savings bank, or bank or
savings and loan holding company (each a "Depository Institution") has issued or
has been the sponsor of a trust or other entity that has issued securities that
constitute Tier 1 Capital for such Depository Institution, and which securities,
or the securities underlying such issued securities, are to be treated by such
Depository Institution as indebtedness for U.S. federal income tax purposes, as
evidenced by the disclosure document pursuant to which such securities were
offered, and (ii) the Company has within 60 days of such issuance, received an
opinion of independent counsel experienced in such matters that securities
having substantially identical terms (except for rate, maturity and payment
dates), if issued by the Company or by a Company sponsored trust or other
entity, should constitute Tier 1 Capital for the Company if the securities
issued by such Depositary Institution constituted Tier 1 Capital for such
Depositary Institution and should be treated as indebtedness for U.S. federal
income tax purposes.
(b) If less than all the outstanding shares of Cumulative Preferred Stock
are to be redeemed, the shares to be redeemed
4
<PAGE>
shall be selected pro rata (subject to rounding to avoid fractional shares) as
nearly as practicable or by lot, or by such other method as the Board of
Directors may determine to be equitable.
(c) Notice of any redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the date fixed
for redemption to the holders of record of the shares of Cumulative Preferred
Stock to be redeemed, at their respective addresses appearing on the stock books
of the Corporation. Notice so mailed shall be conclusively presumed to have
been duly given whether or not actually received. Such notice shall state: (i)
the date fixed for redemption; (ii) the Redemption Price; (iii) the number of
shares of Cumulative Preferred Stock to be redeemed and if less than all the
shares held by such holder are to be redeemed, the number of such shares to be
so redeemed from such holder; (iv) the place where certificates for such shares
are to be surrendered for payment of the Redemption Price; and (v) that after
the close of business on such date fixed for redemption the shares to be
redeemed shall not accrue dividends. If such notice is mailed as aforesaid, and
if on or before the date fixed for redemption funds sufficient to redeem the
shares called for redemption are set aside by the Corporation in trust for the
account of the holders of the shares to be redeemed, notwithstanding the fact
that any certificate for shares called for redemption shall not have been
surrendered for cancellation, from and after the related redemption date the
shares represented thereby so called for redemption shall be deemed to be no
longer outstanding, dividends thereon shall cease to accrue, and all rights of
the holders of such shares as stockholders of the Corporation shall cease,
except the right to receive the Redemption Price, without interest, upon
surrender of the certificate representing such shares. Upon surrender in
accordance with the aforesaid notice of the certificate for any shares so
redeemed (duly endorsed or accompanied by appropriate instruments of transfer,
if so required by the Corporation in such notice), the holders of record of such
shares shall be entitled to receive the Redemption Price, without interest. In
case fewer than all the shares represented by any such certificate are redeemed,
a new certificate shall be issued representing the unredeemed shares without
cost to the holder thereof.
(d) At the option of the Corporation, if notice of redemption is mailed as
aforesaid, and if prior to the date fixed for redemption funds sufficient to pay
in full the Redemption Price are deposited in trust, for the account of the
holders of the shares to be redeemed, with a bank or trust company named in such
notice doing business in the Borough of Manhattan, The City of New York, State
of New York or The City of Los Angeles, State of California and having capital
surplus and undivided profits of at least $50 million (which bank or
5
<PAGE>
trust company also may be the transfer agent and/or paying agent for the
Cumulative Preferred Stock), notwithstanding the fact that any certificate(s)
for shares called for redemption shall not have been surrendered for
cancellation, on and after such date of deposit the shares represented thereby
so called for redemption shall be deemed to be no longer outstanding, and all
rights of the holders of such shares as stockholders of the Corporation shall
cease, except the right of the holders thereof to receive out of the funds so
deposited in trust the Redemption Price, without interest, upon surrender of the
certificate(s) representing such shares. Any funds so deposited with such bank
or trust company which shall remain unclaimed by the holders of shares called
for redemption at the end of two years after the related redemption date shall
be repaid to the Corporation, on demand, and thereafter the holder of any such
shares shall look only to the Corporation for the payment, without interest
thereon, of the Redemption Price.
(e) Any provision of this Section 4 to the contrary notwithstanding, in the
event that any quarterly dividend payable on the Cumulative Preferred Stock or
any dividend on any other series of Preferred Stock of the Corporation ranking
on a parity with the Cumulative Preferred Stock as to dividends and distribution
of assets upon liquidation, dissolution or winding up of the affairs of the
Corporation (the "Parity Preferred Stock") shall be in arrears and until all
such dividends in arrears shall have been paid or declared and set apart for
payment, the Corporation shall not redeem any shares of Cumulative Preferred
Stock or Parity Preferred Stock unless all outstanding shares of Cumulative
Preferred Stock and Parity Preferred Stock are simultaneously redeemed and shall
not purchase or otherwise acquire any shares of Cumulative Preferred Stock or
the Parity Preferred Stock except in accordance with a purchase or exchange
offer made on the same terms to all holders of record of Cumulative Preferred
Stock and Parity Preferred Stock for the purchase of all outstanding shares
thereof.
5. Voting Rights. Other than as required by applicable law, the
-------------
Cumulative Preferred Stock shall not have any voting powers either general or
special, except that:
(a) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the affirmative vote or consent of the
holders of at least 66-2/3% of all of the shares of the Cumulative Preferred
Stock, and any one or more other series of Parity Preferred Stock which by its
terms provides for similar voting rights (the "Other Preferred Stock") and is
similarly affected, at the time outstanding, given in person or by proxy, either
in writing or by a vote at a meeting called for the purpose at which the holders
of shares of the Cumulative Preferred Stock and any such other series of Other
Preferred Stock shall vote together as a separate and single class, shall be
necessary for authorizing, effecting or
6
<PAGE>
validating the amendment, alteration or repeal of, or any other change in, any
of the provisions of the Restated Certificate of Incorporation or of any
amendment or supplement thereto (including any Certificate of Designations or
any similar document relating to any series of Preferred Stock) of the
Corporation, which would adversely affect the preferences, rights, powers or
privileges, qualifications, limitations and restrictions of the Cumulative
Preferred Stock and any such other series of Other Preferred Stock.
(b) Unless the vote or consent of the holders of a greater number of
shares shall then be required by law, the affirmative vote or consent of the
holders of at least 66-2/3% of all of the shares of the Cumulative Preferred
Stock and any series of Other Preferred Stock of the Corporation at the time
outstanding, given in person or by proxy, either in writing or by a vote at a
meeting called for the purpose at which the holders of shares of the Cumulative
Preferred Stock and any such series of Other Preferred Stock of the Corporation
shall vote together as a single class without regard to series, shall be
necessary to create, authorize or issue, or reclassify any authorized stock of
the Corporation into, or create, authorize or issue any obligation or security
convertible into or evidencing a right to purchase, or increase the authorized
amount of, any shares of any class of stock of the Corporation ranking prior to
the Cumulative Preferred Stock and any series of Other Preferred Stock. Subject
to the foregoing, the Corporation's Restated Certificate of Incorporation may be
amended to increase the number of authorized shares of Preferred Stock without
the vote of the holders of Preferred Stock, including the Cumulative Preferred
Stock.
(c) Whenever, at any time or times, dividends payable on the shares of
Cumulative Preferred Stock shall be in arrears in an amount equal to at least
six full quarterly dividends on shares of the Cumulative Preferred Stock at the
time outstanding, the holders of the outstanding shares of Cumulative Preferred
Stock shall have the exclusive right, voting separately as a class together with
holders of shares of any one or more series of Other Preferred Stock to elect
two directors of the Corporation at the Corporation's next annual meeting of
stockholders and at each subsequent annual meeting of stockholders at which such
directors or their successors are to be elected. At elections for such
directors, each holder of Cumulative Preferred Stock shall be entitled to one
vote for each share held (the holders of shares of any series of Other Preferred
Stock being entitled to such number of votes, if any, for each such share of
Other Preferred Stock held as may be granted to them). Upon the vesting of such
right of the holders of Cumulative Preferred Stock, the maximum authorized
number of members of the Board of Directors shall automatically be increased by
two and the two vacancies so created shall be filled by vote of the holders of
the outstanding shares of
7
<PAGE>
Cumulative Preferred Stock (either alone or together with the holders of shares
of any series of Other Preferred Stock) as hereinafter set forth. The right of
the holders of Cumulative Preferred Stock, voting separately as a class to elect
(either alone or together with the holders of shares of any series of Other
Preferred Stock) members of the Board of Directors of the Corporation as
aforesaid shall continue until such time as all dividends accumulated on the
Cumulative Preferred Stock shall have been paid in full or declared and set
apart for payment, at which time such right shall terminate, except as herein or
by law expressly provided, subject to revesting in the event of each and every
subsequent default of the character above mentioned.
(d) Each director elected by the holders of shares of Cumulative
Preferred Stock (either alone or together with the holders of shares of any
series of Other Preferred Stock) shall continue to serve as such director for
the full term for which he or she shall have been elected, notwithstanding that
prior to the end of such term all dividends on the Cumulative Preferred Stock
shall have been paid in full. If the office of any director elected by the
holders of Cumulative Preferred Stock voting as a class becomes vacant by reason
of death, resignation, retirement, disqualification, removal from office, or
otherwise, such vacancy shall be filled as provided in the Restated Certificate
of Incorporation of the Corporation and the applicable provisions of the General
Corporation Law of the State of Delaware. Whenever the term of office of the
directors elected by the holders of the Cumulative Preferred Stock and the
special voting powers vested in the holders of Cumulative Preferred Stock as
provided in this subsection (d) shall have expired, the number of directors
shall be such number as may be provided for in the Restated Certificate of
Incorporation or the By-Laws, as amended, irrespective of any increase made
pursuant to the provisions of this subsection (d).
6. Reacquired Shares. Shares of Cumulative Preferred Stock redeemed or
-----------------
otherwise purchased or acquired by the Corporation shall be restored to the
status of authorized but unissued shares of Preferred Stock without designation
as to series.
7. No Sinking Fund. Shares of Cumulative Preferred Stock are not subject
---------------
to the operation of a sinking fund or other obligation of the Corporation to
redeem or retire the Cumulative Preferred Stock.
8
<PAGE>
8. Rank. The Cumulative Preferred Stock shall rank on a parity, both as
----
to the payment of dividends and the distribution of assets upon dissolution,
liquidation or winding up of the affairs of the Corporation, with
[ ]. The Cumulative Preferred Stock shall rank prior, both as
-------------------
to the payment of dividends and the distribution of assets upon dissolution,
liquidation or winding up of the affairs of the Corporation, to the Common Stock
and the Series A Junior Participating Preferred Stock, par value $1.00 per
share, of the Corporation.
FURTHER RESOLVED, that the Chairman of the Board, the Vice Chairman, the
President, any Executive or Senior Vice President, or any Vice President are,
and each of them is hereby, authorized and directed, in the name and on behalf
of the Corporation, to execute and file a copy of this Certificate of
Designations in accordance with the provisions of Sections 103 and 151(g) of the
General Corporation Law of the State of Delaware.
9
<PAGE>
IN WITNESS WHEREOF, GREAT WESTERN FINANCIAL CORPORATION, has caused this
Certificate of Designations to be signed by [ ], its and
-------------- --------
[ ], its , and its Corporate Seal to be
-------------- -------------------
hereunder affixed this th day of , .
-- --------- ----
GREAT WESTERN FINANCIAL CORPORATION
[Seal]
By
---------------------------------------
Attest:
------------------------------------
10
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated January 18, 1995, which appears on page 74 of Great Western Financial
Corporation's Annual Report on Form 10-K for the year ended December 31, 1994.
We also consent to the reference to us under the heading "Experts" in such
Prospectus.
Price Waterhouse LLP
Los Angeles, California
September 28, 1995
<PAGE>
EXHIBIT 25.2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement of Eligibility
Under the Trust Indenture Act of 1939
of a Corporation Designated to Act as
Trustee
Check if an Application to Determine
Eligibility of a Trustee Pursuant to Section
305(b)(2) _______________
HARRIS TRUST AND SAVINGS BANK
(Name of Trustee)
Illinois 36-1194448
(State of Incorporation) (I.R.S. Employer Identification No.)
111 West Monroe Street, Chicago, Illinois 60603
(Address of principal executive offices)
Keith R. Richardson, Harris Trust and Savings Bank,
111 West Monroe Street, Chicago, Illinois, 60603
312-461-2647
(Name, address and telephone number for agent for service)
GREAT WESTERN FINANCIAL CORPORATION
(Name of obligor)
Delaware 95-1913457
(State of Incorporation) (I.R.S. Employer Identification No.)
9200 Oakdale Avenue
Chatsworth, California 91311
(Address of principal executive offices)
Subordinated Debt Securities
(Title of indenture securities)
<PAGE>
1. GENERAL INFORMATION. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois; Chicago Clearing House Association, 164 West
Jackson Boulevard, Chicago, Illinois; Federal Deposit Insurance
Corporation, Washington, D.C.; The Board of Governors of the Federal
Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise corporate
trust powers.
2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the Trustee,
describe each such affiliation.
The Obligor is not an affiliate of the Trustee.
3. thru 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee is now in effect
which includes the authority of the trustee to commence business and to
exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972 between Harris
Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which
constitutes the articles of association of the Trustee as now in effect
and includes the authority of the Trustee to commence business and to
exercise corporate trust powers was filed in connection with the
Registration Statement of Louisville Gas and Electric Company, File No.
2-44295, and is incorporated herein by reference.
2. A copy of the existing by-laws of the Trustee.
A copy of the existing by-laws of the Trustee was filed in connection
with the Registration Statement of Hillenbrand Industries, Inc., File
No. 33-44086, and is incorporated herein by reference.
3. The consents of the Trustee required by Section 321(b) of the Act.
(included as Exhibit A on page 2 of this statement)
4. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority.
(included as Exhibit B on page 3 of this statement)
1
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the
laws of the State of Illinois, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago, and State of Illinois, on the 22nd day of September, 1995.
HARRIS TRUST AND SAVINGS BANK
By: /s/ KEITH R. RICHARDSON
------------------------------
Keith R. Richardson
Trust Officer
EXHIBIT A
The consents of the trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby consents that
reports of examinations of said trustee by Federal and State authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
HARRIS TRUST AND SAVINGS BANK
By: /s/ KEITH R. RICHARDSON
-------------------------------
Keith R. Richardson
Trust Officer
2
<PAGE>
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of June 30, 1995, as published in accordance with a
call made by the State Banking Authority and by the Federal Reserve Bank of the
Seventh Reserve District.
[LOGO OF HARRIS BANK]
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of
business on June 30, 1995, a state banking institution organized and operating
under the banking laws of this State and a member of the Federal Reserve System.
Published in accordance with a call made by the Commissioner of Banks and Trust
Companies of the State of Illinois and by the Federal Reserve Bank of this
District.
Bank's Transit Number 71000288
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
<S> <C> <C>
Cash and balances due from depository
institutions:
Non-interest bearing balances
and currency and coin.......... $ 975,130
Interest bearing balances....... $ 619,550
Securities:.............................
a. Held-to-maturity securities $ 654,606
b. Available-for-sale securities $ 1,597,462
Federal funds sold and securities
purchased under agreements to resell in
domestic offices of the bank and of its
Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold................... $ 272,684
Securities purchased under
agreements to resell............... $ 0
Loans and lease financing receivables:
Loans and leases, net of
unearned income.................... $7,184,420
LESS: Allowance for loan and
lease losses....................... $ 91,061
----------
Loans and leases, net of
unearned income, allowance, and
reserve (item 4.a minus 4.b)....... $ 7,093,359
Assets held in trading accounts......... $ 335,699
Premises and fixed assets (including
capitalized leases).................... $ 139,368
Other real estate owned................. $ 1,018
Investments in unconsolidated
subsidiaries and associated companies.. $ 195
Customer's liability to this bank on
acceptances outstanding................ $ 120,891
Intangible assets....................... $ 21,763
Other assets............................ $ 246,739
-----------
TOTAL ASSETS $12,078,464
===========
</TABLE>
3
<PAGE>
<TABLE>
LIABILITIES
Deposits:
<S> <C> <C>
In domestic offices..................... $ 4,184,673
Non-interest bearing.................. $2,391,354
Interest bearing...................... $1,793,319
In foreign offices, Edge and
Agreement subsidiaries, and IBF's...... $ 2,559,227
Non-interest bearing.................. $ 33,115
Interest bearing...................... $2,526,112
Federal funds purchased and securities
sold under agreements to repurchase in
domestic offices of the bank and of
its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds purchased................. $ 1,361,248
Securities sold under agreements to
repurchase............................. $ 1,496,277
Trading Liabilities
Other borrowed money:..................... $ 264,633
a. With original maturity of one year
or less $ 883,157
b. With original maturity of more than
one year $ 13,390
Bank's liability on acceptances
executed and outstanding $ 120,891
Subordinated notes and debentures........ $ 235,000
Other liabilities........................ $ 178,632
----------------------------
TOTAL LIABILITIES $11,297,128
============================
EQUITY CAPITAL
Common stock............................. $ 100,000
Surplus.................................. $ 275,000
a. Undivided profits and capital
reserves............................. $ 409,797
b. Net unrealized holding gains (losses)
on available-for-sale securities..... ($ 3,461)
----------------------------
TOTAL EQUITY CAPITAL $ 781,336
============================
Total liabilities, limited-life
preferred stock, and equity capital..... $12,078,464
============================
</TABLE>
I, Steve Neudecker, Vice President of the above-named bank, do hereby declare
that this Report of Condition has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
STEVE NEUDECKER
7/28/95
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and, to the best of our
knowledge and belief, has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and the
Commissioner of Banks and Trust Companies of the State of Illinois and is true
and correct.
ALAN G. McNALLY,
DONALD S. HUNT,
JAMES J. GLASSER,
Directors.
4
<PAGE>
EXHIBIT 25.3
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------------------
GREAT WESTERN FINANCIAL TRUST I
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE TO BE APPLIED FOR
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
9200 OAKDALE AVENUE
CHATSWORTH, CALIFORNIA 91311
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
--------------------
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
------------------------------
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
-----------------
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
2
<PAGE>
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois, on the 22nd day of September,
1995.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE,
BY /S/ JOHN R. PRENDIVILLE
JOHN R. PRENDIVILLE
VICE PRESIDENT
*Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 12 of the Form T-1 of The First National
Bank of Chicago, filed as Exhibit 26 to the Registration Statement on Form
S-3 of The CIT Group Holdings, Inc. filed with the Securities and Exchange
Commission on February 16, 1993 (Registration No. 33-58418).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
September 22, 1995
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Great Western
Financial Trust I and The First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY /S/ JOHN R. PRENDIVILLE
JOHN R. PRENDIVILLE
VICE PRESIDENT
4
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/95 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-1
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1995
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN C400 GREATER THAN
THOUSANDS RCFD BIL MIL THOU MINUS
----------------- ---- ------------ -------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions
(from Schedule RC-A):
a. Noninterest-bearing balances and
currency and coin(1)............................... 0081 3,184,875 1.a.
b. Interest-bearing balances(2)....................... 0071 8,932,069 1.b.
2. Securities
a. Held-to-maturity securities (from
Schedule RC-B, column A)........................... 1754 249,502 2.a.
b. Available-for-sale securities (from
Schedule RC-B, column D)........................... 1773 536,856 2.b.
3. Federal funds sold and securities purchased under
agreements to resell in domestic offices of
the bank and its Edge and Agreement subsidiaries,
and in IBFs:
a. Federal Funds sold................................. 0276 2,897,736 3.a.
b. Securities purchased under agreements to
resell............................................. 0277 1,417,129 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income
(from Schedule RC-C)............................... RCFD 2122 16,567,408 4.a.
b. LESS: Allowance for loan
and lease losses................................... RCFD 3123 358,877 4.b.
c. LESS: Allocated transfer risk reserve.............. RCFD 3128 0 4.c.
d. Loans and leases, net of
unearned income, allowance,
and reserve (item 4.a minus 4.b and 4.c)........... 2125 16,208,531 4.d.
5. Assets held in trading accounts...................... 3545 13,486,931 5.
6. Premises and fixed assets (including capitalized leases) 2145 516,279 6.
7. Other real estate owned (from Schedule RC-M)......... 2150 11,216 7.
8. Investments in unconsolidated subsidiaries and
associated companies (from Schedule RC-M)............ 2130 12,946 8.
9. Customers' liability to this bank on
acceptances outstanding.............................. 2155 501,943 9.
10. Intangible assets (from Schedule RC-M)............... 2143 111,683 10.
11. Other assets (from Schedule RC-F).................... 2160 1,258,270 11.
12. Total assets (sum of items 1 through 11)............. 2170 49,325,966 12.
</TABLE>
- ------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
5
<PAGE>
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/95 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-2
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN C400 GREATER THAN
THOUSANDS RCFD BIL MIL THOU MINUS
----------------- ---- ------------ ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A
and C from Schedule RC-E, part 1).................. RCON 2200 14,889,235 13.a.
(1) Noninterest-bearing(1)......................... RCON 6631 5,895,584 13.a.(1)
(2) Interest-bearing............................... RCON 6636 8,993,651 13.a.(2)
b. In foreign offices, Edge and Agreement
subsidiaries, and IBFs (from Schedule RC-E,
part II)........................................... RCFN 2200 13,289,760 13.b.
(1) Noninterest bearing............................ RCFN 6631 315,549 13.b.(1)
(2) Interest-bearing............................... RCFN 6636 12,974,211 13.b.(2)
14. Federal funds purchased and securities sold
under agreements to repurchase in domestic
offices of the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal funds purchased............................ RCFD 0278 2,942,186 14.a.
b. Securities sold under agreements to repurchase..... RCFD 0279 1,160,512 14.b.
15. a. Demand notes issued to the U.S. Treasury........... RCON 2840 112,768 15.a.
b. Trading Liabilities................................ RCFD 3548 7.872,221 15.b.
16. Other borrowed money:
a. With original maturity of one year or less......... RCFD 2332 2,402,829 16.a.
b. With original maturity of more than one year...... RCFD 2333 643,987 16.b.
17. Mortgage indebtedness and obligations under
capitalized leases.................................... RCFD 2910 278,108 17.
18. Bank's liability on acceptance executed and outstanding RCFD 2920 501,943 18.
19. Subordinated notes and debentures..................... RCFD 3200 1,225,000 19.
20. Other liabilities (from Schedule RC-G)................ RCFD 2930 981,938 20.
21. Total liabilities (sum of items 13 through 20)........ RCFD 2948 46,300,487 21.
22. Limited-Life preferred stock and related surplus...... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus......... RCFD 3838 0 23.
24. Common stock.......................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 2,314,642 25.
26. a. Undivided profits and capital reserves............. RCFD 3632 510,093 26.a.
b. Net unrealized holding gains (losses) on
available-for-sale securities...................... RCFD 8434 (880) 26.b.
27. Cumulative foreign currency translation adjustments... RCFD 3284 766 27.
28. Total equity capital (sum of items 23 through 27)..... RCFD 3210 3,025,479 28.
29. Total liabilities, limited-life preferred stock,
and equity capital (sum of items 21, 22, and 28)...... RCFD 3300 49,325,966 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external Number
auditors as of any date during 1993 . . . . . . . RCFD 6724 N/A M.1.
<TABLE>
<C> <S>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated holding
company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
</TABLE>
- ---------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
<PAGE>
EXHIBIT 25.4
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------------------
GREAT WESTERN FINANCIAL CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 95-1913457
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
9200 OAKDALE AVENUE
CHATSWORTH, CALIFORNIA 91311
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
--------------------
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
------------------------------
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
-----------------
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
2
<PAGE>
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois, on the 22nd day of September,
1995.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE,
BY /S/ JOHN R. PRENDIVILLE
JOHN R. PRENDIVILLE
VICE PRESIDENT
*Exhibits 1, 2, 3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 12 of the Form T-1 of The First National
Bank of Chicago, filed as Exhibit 26 to the Registration Statement on Form
S-3 of The CIT Group Holdings, Inc. filed with the Securities and Exchange
Commission on February 16, 1993 (Registration No. 33-58418).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
September 22, 1995
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Great Western
Financial Corporation and The First National Bank of Chicago, the undersigned,
in accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, hereby consents that the reports of examinations of the undersigned,
made by Federal or State authorities authorized to make such examinations, may
be furnished by such authorities to the Securities and Exchange Commission upon
its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY /S/ JOHN R. PRENDIVILLE
JOHN R. PRENDIVILLE
VICE PRESIDENT
4
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/95 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-1
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1995
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN C400 GREATER THAN
THOUSANDS RCFD BIL MIL THOU MINUS
----------------- ---- ------------ -------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions
(from Schedule RC-A):
a. Noninterest-bearing balances and
currency and coin(1)............................... 0081 3,184,875 1.a.
b. Interest-bearing balances(2)....................... 0071 8,932,069 1.b.
2. Securities
a. Held-to-maturity securities (from
Schedule RC-B, column A)........................... 1754 249,502 2.a.
b. Available-for-sale securities (from
Schedule RC-B, column D)........................... 1773 536,856 2.b.
3. Federal funds sold and securities purchased under
agreements to resell in domestic offices of
the bank and its Edge and Agreement subsidiaries,
and in IBFs:
a. Federal Funds sold................................. 0276 2,897,736 3.a.
b. Securities purchased under agreements to
resell............................................. 0277 1,417,129 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income
(from Schedule RC-C)............................... RCFD 2122 16,567,408 4.a.
b. LESS: Allowance for loan
and lease losses................................... RCFD 3123 358,877 4.b.
c. LESS: Allocated transfer risk reserve.............. RCFD 3128 0 4.c.
d. Loans and leases, net of
unearned income, allowance,
and reserve (item 4.a minus 4.b and 4.c)........... 2125 16,208,531 4.d.
5. Assets held in trading accounts...................... 3545 13,486,931 5.
6. Premises and fixed assets (including capitalized leases) 2145 516,279 6.
7. Other real estate owned (from Schedule RC-M)......... 2150 11,216 7.
8. Investments in unconsolidated subsidiaries and
associated companies (from Schedule RC-M)............ 2130 12,946 8.
9. Customers' liability to this bank on
acceptances outstanding.............................. 2155 501,943 9.
10. Intangible assets (from Schedule RC-M)............... 2143 111,683 10.
11. Other assets (from Schedule RC-F).................... 2160 1,258,270 11.
12. Total assets (sum of items 1 through 11)............. 2170 49,325,966 12.
</TABLE>
- ------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
5
<PAGE>
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/95 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-2
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN C400 GREATER THAN
THOUSANDS RCFD BIL MIL THOU MINUS
----------------- ---- ------------ ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A
and C from Schedule RC-E, part 1).................. RCON 2200 14,889,235 13.a.
(1) Noninterest-bearing(1)......................... RCON 6631 5,895,584 13.a.(1)
(2) Interest-bearing............................... RCON 6636 8,993,651 13.a.(2)
b. In foreign offices, Edge and Agreement
subsidiaries, and IBFs (from Schedule RC-E,
part II)........................................... RCFN 2200 13,289,760 13.b.
(1) Noninterest bearing............................ RCFN 6631 315,549 13.b.(1)
(2) Interest-bearing............................... RCFN 6636 12,974,211 13.b.(2)
14. Federal funds purchased and securities sold
under agreements to repurchase in domestic
offices of the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal funds purchased............................ RCFD 0278 2,942,186 14.a.
b. Securities sold under agreements to repurchase..... RCFD 0279 1,160,512 14.b.
15. a. Demand notes issued to the U.S. Treasury........... RCON 2840 112,768 15.a.
b. Trading Liabilities................................ RCFD 3548 7.872,221 15.b.
16. Other borrowed money:
a. With original maturity of one year or less......... RCFD 2332 2,402,829 16.a.
b. With original maturity of more than one year...... RCFD 2333 643,987 16.b.
17. Mortgage indebtedness and obligations under
capitalized leases.................................... RCFD 2910 278,108 17.
18. Bank's liability on acceptance executed and outstanding RCFD 2920 501,943 18.
19. Subordinated notes and debentures..................... RCFD 3200 1,225,000 19.
20. Other liabilities (from Schedule RC-G)................ RCFD 2930 981,938 20.
21. Total liabilities (sum of items 13 through 20)........ RCFD 2948 46,300,487 21.
22. Limited-Life preferred stock and related surplus...... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus......... RCFD 3838 0 23.
24. Common stock.......................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 2,314,642 25.
26. a. Undivided profits and capital reserves............. RCFD 3632 510,093 26.a.
b. Net unrealized holding gains (losses) on
available-for-sale securities...................... RCFD 8434 (880) 26.b.
27. Cumulative foreign currency translation adjustments... RCFD 3284 766 27.
28. Total equity capital (sum of items 23 through 27)..... RCFD 3210 3,025,479 28.
29. Total liabilities, limited-life preferred stock,
and equity capital (sum of items 21, 22, and 28)...... RCFD 3300 49,325,966 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external Number
auditors as of any date during 1993 . . . . . . . RCFD 6724 N/A M.1.
<TABLE>
<C> <S>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated holding
company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
</TABLE>
- ---------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
<PAGE>
EXHIBIT 99.1
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+THIS PRELIMINARY PROSPECTUS SUPPLEMENT AND THE INFORMATION CONTAINED HEREIN +
+ARE SUBJECT TO COMPLETION OR AMENDMENT AND PROSPECTIVE PURCHASERS ARE +
+REFERRED TO THE RELATED FINAL PROSPECTUS SUPPLEMENT FOR DEFINITIVE +
+INFORMATION ON ANY MATTER CONTAINED HEREIN. NEITHER THIS PRELIMINARY +
+PROSPECTUS SUPPLEMENT NOR THE ACCOMPANYING PROSPECTUS SHALL CONSTITUTE AN +
+OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY +
+SALE OF THESE SECURITIES IN ANY JURISDICTION IN WHICH SUCH OFFER, +
+SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION +
+UNDER THE SECURITIES LAWS OF ANY SUCH JURISDICTION. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED , 1995
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED , 1995)
[ ] PREFERRED SECURITIES
GREAT WESTERN FINANCIAL TRUST I
% TRUST ORIGINATED PREFERRED SECURITIES(SM) ("TOPrS(SM)")
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
GREAT WESTERN FINANCIAL CORPORATION
----------
The % Trust Originated Preferred Securities (the "Preferred Securities")
offered hereby represent preferred undivided beneficial interests in the assets
of Great Western Financial Trust I, a statutory business trust formed under the
laws of the State of Delaware (the "Trust"). Great Western Financial
Corporation, a Delaware corporation ("GWFC"), will own all the common
securities (the "Common Securities" and, together with the Preferred
Securities, the "Trust Securities") representing undivided beneficial interests
in the assets of the Trust. The Trust exists for the sole purpose of issuing
the Preferred Securities and Common Securities and investing the proceeds
thereof in an equivalent amount of % Subordinated Deferrable Interest Notes
due 2025 (the "Subordinated Notes") of GWFC. The amount of interest payable on
the Subordinated Notes may be reduced under the limited circumstances (a
"Regulatory Event") described under "Description of the Offered Preferred
Securities--Regulatory Event Distribution or Conversion." Upon an event of a
default under the Declaration (as defined herein), the holders of Preferred
Securities will have a preference over the holders of the Common Securities
with respect to payments in respect of distributions and payments upon
redemption, liquidation and otherwise.
(CONTINUED ON NEXT PAGE)
----------
SEE "RISK FACTORS" COMMENCING ON PAGE S-4 FOR CERTAIN INFORMATION RELEVANT TO
AN INVESTMENT IN THE PREFERRED SECURITIES, INCLUDING THE PERIOD AND
CIRCUMSTANCES DURING AND UNDER WHICH PAYMENTS OF DISTRIBUTIONS MAY BE DEFERRED
ON THE PREFERRED SECURITIES AND ANY SUBORDINATED NOTES OR ADJUSTED SUBORDINATED
NOTES THAT MAY BE ISSUED IN EXCHANGE THEREFOR AND THE RELATED UNITED STATES
FEDERAL INCOME TAX CONSEQUENCES OF ANY SUCH DEFERRAL.
The Preferred Securities have been approved for listing on the New York Stock
Exchange, Inc. (the "New York Stock Exchange"). Trading of the Preferred
Securities on the New York Stock Exchange is expected to commence within a 30-
day period after the initial delivery of the Preferred Securities. See
"Underwriting."
----------
THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS TO
WHICH IT RELATES. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
INITIAL PUBLIC UNDERWRITING PROCEEDS TO THE TRUST
OFFERING PRICE(1) COMMISSION(2) (3)(4)
- ------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Preferred Security.. $25.00 (3) $25.00
- ------------------------------------------------------------------------------
Total................... $ (3) $
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(1) Plus accrued distributions, if any, from , 1995.
(2) GWFC and the Trust have agreed to indemnify the several Underwriters
against certain liabilities, including liabilities under the Securities Act
of 1933, as amended. See "Underwriting."
(3) In view of the fact that the proceeds of the sale of Preferred Securities
will be invested in Subordinated Notes of GWFC, GWFC has agreed to pay the
Underwriters as compensation ("Underwriters' Compensation") for their
arranging the investment therein of such proceeds $. per Preferred
Security (or $ in the aggregate); provided that such compensation for
sales of 10,000 or more Preferred Securities to a single purchaser will be
$ per Preferred Security. Therefore, to the extent of such sales, the
actual amount of Underwriters' Compensation will be less than the aggregate
amount specified in the preceding sentence. See "Underwriting."
(4) Expenses of the offering which are payable by GWFC are estimated to be
$ .
----------
The Preferred Securities offered hereby are offered severally by the
Underwriters, as specified herein, subject to receipt and acceptance by them
and subject to their right to reject any order in whole or in part. It is
expected that delivery of the Preferred Securities will be made only in book-
entry form through the facilities of The Depository Trust Company, on or about
, 1995.
----------
MERRILL LYNCH & CO. GOLDMAN, SACHS & CO.
----------
The date of this Prospectus Supplement is , 1995.
(SM)"Trust Originated Preferred Securities" and "TOPrS" are service marks of
Merrill Lynch & Co., Inc.
<PAGE>
(continued from previous page)
Holders of the Preferred Securities are entitled to receive cumulative cash
distributions at an annual rate of % of the liquidation amount of $25 per
Preferred Security ("distributions"), accruing from the date of original
issuance and payable quarterly in arrears on March 31, June 30, September 30
and December 31 of each year, commencing December 31, 1995 (each a
"Distribution Date"). The payment of distributions out of moneys held by the
Trust and payments on liquidation of the Trust or the redemption of Preferred
Securities, as set forth below, are guaranteed by GWFC (the "Guarantee") to
the extent the Trust has funds available therefor as described under
"Description of Guarantee" in the accompanying Prospectus. The obligations of
GWFC under the Guarantee are subordinate and junior in right of payment to all
other liabilities of GWFC and pari passu with the most senior preferred or
preference stock issued, from time to time, if any, by GWFC. The obligations
of GWFC under the Subordinated Notes are subordinate and junior in right of
payment to all present and future Senior Indebtedness (as defined herein) of
GWFC, which aggregated approximately $673 million at June 30, 1995, and rank
pari passu with GWFC's other general unsecured creditors. In addition, because
GWFC is a holding company, its obligations under the Guarantee and the
Subordinated Notes will be effectively subordinated to all existing and future
liabilities of its subsidiaries. At June 30, 1995, the subsidiaries of GWFC
had total liabilities of approximately $41 billion.
The distribution rate and the distribution and other payment dates for the
Preferred Securities will correspond to the interest rate and interest and
other payment dates on the Subordinated Notes, which will be the sole assets
of the Trust. As a result, if principal or interest is not paid on the
Subordinated Notes, no amounts will be paid on the Preferred Securities. If
GWFC does not make principal or interest payments on the Subordinated Notes,
the Trust will not have sufficient funds to make distributions on the
Preferred Securities, in which event the Guarantee will not apply to such
distributions until the Trust has sufficient funds available therefor.
GWFC has the right to defer payments of interest on the Subordinated Notes
by extending the interest payment period on the Subordinated Notes at any time
for up to 20 consecutive quarters (each an "Extension Period"). If interest
payments are so deferred, distributions will also be deferred. During such
Extension Period, distributions will continue to accrue with interest thereon
(to the extent permitted by applicable law) at the then applicable annual rate
compounded quarterly, and during any Extension Period, holders of Preferred
Securities will be required to include deferred interest income in their gross
income for United States federal income tax purposes in advance of receipt of
the cash distributions with respect to such deferred interest payments. There
could be multiple Extension Periods of varying lengths throughout the term of
the Subordinated Notes and hence on the Preferred Securities. Extension of the
interest payment period will not extend the maturity date of the Subordinated
Notes. See "Risk Factors--Option to Extend Interest Payment Period,"
"Description of the Subordinated Notes--Option to Extend Interest Payment
Period" and "Certain Federal Income Tax Consequences--Original Issue
Discount."
The Subordinated Notes are redeemable by GWFC, in whole or in part, from
time to time, on or after , 2000, or at any time in certain circumstances
upon the occurrence of a Tax Event (as defined herein) or in whole for a
limited time upon the occurrence of a Regulatory Redemption Event (as defined
herein). If GWFC redeems Subordinated Notes, the Trust must redeem Trust
Securities having an aggregate liquidation amount equal to the aggregate
principal amount of the Subordinated Notes to be redeemed at $25 per Trust
Security plus accrued and unpaid distributions thereon (the "Redemption
Price") to the date fixed for redemption. See "Description of the Offered
Preferred Securities--Mandatory Redemption." The Trust Securities will be
redeemed upon maturity of the Subordinated Notes. The Subordinated Notes
mature on , 2025, but the maturity date may be extended only once, for up
to an additional 19 years at the option of GWFC, provided certain financial
covenants are met. See "Description of the Subordinated Notes--Option to
Extend Maturity Date." In addition, upon the occurrence of a Special Event (as
defined herein) arising from a change in law or a change in legal
interpretation, unless the Subordinated Notes are redeemed in the limited
circumstances described herein, the Trust shall be dissolved, with the result
that the Subordinated Notes will be distributed to the holders of the Trust
Securities, on a pro rata basis. See
S-2
<PAGE>
"Description of the Offered Preferred Securities-- Special Event Redemption or
Distribution." If the Subordinated Notes are distributed to the holders of the
Preferred Securities, GWFC will use its best efforts to have the Subordinated
Notes listed on the New York Stock Exchange or on such other exchange as the
Preferred Securities are then listed. See "Description of the Offered Preferred
Securities--Special Event Redemption or Distribution" and "Description of the
Subordinated Notes."
Upon the occurrence of a Regulatory Event (as defined herein), GWFC may, at
its election, reduce the annual interest rate on the Subordinated Notes by 50
basis points (the "Reduction Election"). If GWFC exercises the Reduction
Election, on the next Distribution Date occurring at least 30 days after notice
to the holders of Trust Securities of the Reduction Election, (i) the
Subordinated Notes will be converted into Depositary Shares of GWFC, having a
liquidation preference of $25.00 per share (the "Depositary Shares"), each
representing a one-tenth interest in a share of % Cumulative Preferred Stock
of GWFC, $250 liquidation preference per share (the "Preferred Stock"), unless
prior to such conversion the holder of Trust Securities elects not to convert
such holder's Subordinated Notes, in which event such holder will be entitled
to receive Subordinated Notes with the lower interest rate, and (ii) the Trust
shall be dissolved, with the result that the Subordinated Notes with the lower
interest rate and/or the Depositary Shares, as the case may be, will be
distributed to the holders of the Trust Securities. See "Description of the
Offered Preferred Securities--Regulatory Event Distribution or Conversion,"
"Description of the Subordinated Notes," "Description of Depositary Shares" and
"Description of Cumulative Preferred Stock."
In the event of the involuntary or voluntary liquidation, dissolution,
winding up or termination of the Trust prior to a Reduction Election, the
holders of the Preferred Securities will be entitled to receive for each
Preferred Security a liquidation amount of $25 plus accrued and unpaid
distributions thereon (including interest thereon) to the date of payment,
unless, in connection with such dissolution, the Subordinated Notes are
distributed to the holders of the Preferred Securities. See "Description of the
Offered Preferred Securities--Liquidation Distribution Upon Dissolution."
----------------
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS THAT STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES
OFFERED HEREBY AT LEVELS ABOVE THOSE THAT MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN
THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING TRANSACTIONS, IF
COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
S-3
<PAGE>
RISK FACTORS
Prospective purchasers of Preferred Securities should carefully review the
information contained elsewhere in this Prospectus Supplement and in the
accompanying Prospectus and should particularly consider the following matters:
RANKING OF SUBORDINATE OBLIGATIONS UNDER THE GUARANTEE AND SUBORDINATED NOTES
GWFC's obligations under the Guarantee are subordinate and junior in right of
payment to all liabilities of GWFC and pari passu with the most senior
preferred or preference stock outstanding, from time to time, if any, by GWFC.
The obligations of GWFC under the Subordinated Notes are subordinate and junior
in right of payment to all present and future Senior Indebtedness of GWFC and
pari passu with obligations to or rights of GWFC's other general unsecured
creditors. As of June 30, 1995, Senior Indebtedness aggregated approximately
$673 million. In addition, because GWFC is a holding company, its obligations
under the Guarantee and the Subordinated Notes will be effectively subordinated
to all existing and future liabilities of its subsidiaries. At June 30, 1995,
such subsidiaries had total liabilities of approximately $41 billion. There are
no terms in the Preferred Securities, the Subordinated Notes or the Guarantee
that limit the ability of GWFC or its subsidiaries (other than the Trust) to
incur additional indebtedness, including indebtedness that ranks senior to the
Subordinated Notes and the Guarantee. See "Description of Guarantee--Status of
the Guarantee" and "Description of Debt Securities--Particular Terms of
Subordinated Debt Issued to the Trust" in the accompanying Prospectus, and
"Description of the Subordinated Notes--Subordination" herein.
RIGHTS UNDER THE GUARANTEE
The Guarantee will be qualified as an indenture under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"). The First National Bank of
Chicago will act as indenture trustee under the Guarantee for the purposes of
compliance with the Trust Indenture Act (the "Guarantee Trustee"). The
Guarantee Trustee will hold the Guarantee for the benefit of the holders of the
Preferred Securities.
The Guarantee guarantees to the holders of the Preferred Securities the
payment of (i) any accrued and unpaid distributions that are required to be
paid on the Preferred Securities, to the extent the Trust has funds available
therefor, (ii) the Redemption Price, including all accrued and unpaid
distributions with respect to Preferred Securities called for redemption by the
Trust, to the extent the Trust has funds available therefor, and (iii) upon a
voluntary or involuntary liquidation, dissolution, winding-up or termination of
the Trust (other than in connection with the distribution of Subordinated Notes
to the holders of Preferred Securities or a redemption of all the Preferred
Securities), the lesser of (a) the aggregate of the liquidation amount and all
accrued and unpaid distributions on the Preferred Securities to the date of the
payment to the extent the Trust has funds available therefor or (b) the amount
of assets of the Trust remaining available for distribution to holders of the
Preferred Securities in liquidation of the Trust. The holders of a majority in
liquidation amount of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee or to direct the exercise of any trust or power conferred
upon the Guarantee Trustee under the Guarantee. If GWFC were to default on its
obligation to pay amounts payable on the Subordinated Notes, the Trust would
lack available funds for the payment of distributions or amounts payable on
redemption of the Preferred Securities or otherwise, and, in such event,
holders of the Preferred Securities would not be able to rely upon the
Guarantee for payment of such amounts. Instead, holders of the Preferred
Securities would rely on the enforcement by the Property Trustee of its rights
as registered holder of the Subordinated Notes against GWFC pursuant to the
terms of the Subordinated Notes. See "Description of Guarantee" and
"Description of Debt Securities--Particular Terms of the Subordinated Debt
Securities Issued to the Trust" in the accompanying Prospectus. The Declaration
provides that each holder of Preferred Securities, by acceptance thereof,
agrees to the provisions of the Guarantee, including the subordinated
provisions thereof, and the Subordinated Indenture (as defined in the
accompanying Prospectus).
S-4
<PAGE>
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If a Declaration Event of Default (as defined herein) occurs and is
continuing, then the holders of Preferred Securities would rely on the
enforcement by the Property Trustee of its rights as a holder of the
Subordinated Notes against GWFC. In addition, the holders of a majority in
aggregate liquidation amount of the Preferred Securities will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee or to direct the exercise of any trust or
power conferred upon the Property Trustee under the Declaration, including the
right to direct the Property Trustee to exercise the remedies available to it
as a holder of the Subordinated Notes.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
GWFC has the right under the Subordinated Indenture to defer payments of
interest on the Subordinated Notes by extending the interest payment period at
any time, and from time to time, on the Subordinated Notes in accordance with
the terms thereof. As a consequence of such an extension, quarterly
distributions on the Preferred Securities would be deferred (but despite such
deferral would continue to accrue with interest thereon compounded quarterly)
by the Trust during any such extended interest payment period. Such right to
extend the interest payment period for the Subordinated Notes is limited to a
period not exceeding 20 consecutive quarters. The extension of the interest
payment period will not extend the maturity date of the Subordinated Notes. In
the event that GWFC exercises this right to defer interest payments, then (a)
GWFC shall not, and shall cause any subsidiary of GWFC that is not a wholly
owned subsidiary of GWFC not to, declare or pay dividends on, or make any
distributions with respect to, or redeem, purchase or acquire, or make a
liquidation payment with respect to, any of its capital stock or the capital
stock of any such subsidiary and (b) GWFC shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities (including guarantees) issued by GWFC that rank pari passu with
or junior to the Subordinated Notes; provided, however, that restriction (a)
above does not apply to any stock dividend paid by GWFC, or any of its
subsidiaries, where the dividend stock is the same stock as that on which the
dividend is being paid. Prior to the termination of any such Extension Period
(as defined), GWFC may further extend the interest payment period; provided
that such Extension Period, together with all such previous and further
extensions thereof, may not exceed 20 consecutive quarters. Upon the
termination of any Extension Period and the payment of all amounts then due,
GWFC may commence a new Extension Period, as if no Extension Period had
previously been declared, subject to the above requirements. See "Description
of the Offered Preferred Securities--Distributions" and "Description of the
Subordinated Notes--Option to Extend Interest Payment Period."
Should GWFC exercise its right to defer payments of interest on the
Subordinated Notes by extending the interest payment period thereon, each
holder of Preferred Securities will continue to accrue income (as original
issue discount) in respect of the deferred interest allocable to its Preferred
Securities for United States federal income tax purposes, which will be
allocated but not distributed, to holders of record of Preferred Securities. As
a result, each such holder of Preferred Securities will recognize income for
United States federal income tax purposes in advance of the receipt of cash and
will not receive the cash from the Trust related to such income if such holder
disposes of its Preferred Securities prior to the record date for the date on
which distributions of such amounts are made.
GWFC has no intention of exercising its right to defer payments of interest
by extending the interest payment period on the Subordinated Notes and
considers it unlikely that it will exercise that right in the future. However,
should GWFC determine to exercise such right in the future, the market price of
the Preferred Securities is likely to be affected. A holder that disposes of
its Preferred Securities during an Extension Period, therefore, might not
receive the same return on its investment as a holder that continues to hold
its Preferred Securities. In addition, as a result of the existence of GWFC's
right to defer interest payments, the market price of the Preferred Securities
(which represent an undivided beneficial interest in the Subordinated Notes)
may be more volatile than other securities on which original issue discount
accrues to which such rights do not apply. See "Certain Federal Income Tax
Consequences--Original Issue Discount."
S-5
<PAGE>
SPECIAL EVENT REDEMPTION OR DISTRIBUTION
Upon the occurrence of a Special Event, the Trust shall be dissolved, except
in the limited circumstance described below under "Description of the Offered
Preferred Securities--Special Event Redemption or Distribution," with the
result that the Subordinated Notes would be distributed to the holders of the
Trust Securities in connection with the liquidation of the Trust. In certain
circumstances relating to a Tax Event, GWFC shall have the right to redeem the
Subordinated Notes, in whole or in part, in lieu of a distribution of the
Subordinated Notes by the Trust, in which event the Trust will redeem the Trust
Securities on a pro rata basis to the same extent as the Subordinated Notes are
redeemed by GWFC. See "Description of the Offered Preferred Securities--Special
Event Redemption or Distribution."
There can be no assurance as to the market prices for the Preferred
Securities or the Subordinated Notes that may be distributed in exchange for
Preferred Securities if a dissolution or liquidation of the Trust were to
occur. Accordingly, the Preferred Securities that an investor may purchase,
whether pursuant to the offer made hereby or in the secondary market, or the
Subordinated Notes that a holder of Preferred Securities may receive on
dissolution and liquidation of the Trust, may trade at a discount to the price
that the investor paid to purchase the Preferred Securities. Because holders of
Preferred Securities may receive Subordinated Notes upon the occurrence of a
Special Event, prospective purchasers of Preferred Securities are also making
an investment decision with regard to the Subordinated Notes and should
carefully review all the information regarding the Subordinated Notes contained
herein and in the accompanying Prospectus. See "Description of the Offered
Preferred Securities--Special Event Redemption or Distribution" and
"Description of the Subordinated Notes."
REGULATORY EVENT DISTRIBUTION OR CONVERSION
During a period of 90 days after the occurrence of a Regulatory Event, GWFC
may elect to reduce the annual interest rate on the Subordinated Notes by 50
basis points effective upon the distribution of the Subordinated Notes (the
"Adjusted Subordinated Notes") to the holders of the Trust Securities. If GWFC
exercises the Reduction Election, on the next Distribution Date occurring at
least 30 days after notice to the holders of Trust Securities of the Reduction
Election, (i) the Adjusted Subordinated Notes will be converted into Depositary
Shares of GWFC, with a liquidation preference equal to the principal amount of
the Adjusted Subordinated Notes converted, each Depositary Share representing a
one-tenth interest in a share of % Cumulative Preferred Stock of GWFC, unless
prior to such conversion the holder of Trust Securities elects not to convert
such holder's Adjusted Subordinated Notes, in which event such holder will be
entitled to receive the Adjusted Subordinated Notes and (ii) the Trust shall be
dissolved, with the result that the Adjusted Subordinated Notes and/or the
Depositary Shares, as the case may be, will be distributed to the holders of
the Trust Securities. See "Description of the Offered Preferred Securities--
Regulatory Event Distribution or Conversion," "Description of the Subordinated
Notes," "Description of Depositary Shares" and "Description of Cumulative
Preferred Stock."
There can be no assurance as to the market prices for the Adjusted
Subordinated Notes or the Depositary Shares, if distributed to holders of Trust
Securities. Accordingly, the Preferred Securities that an investor may
purchase, whether pursuant to the offer made hereby or in the secondary market,
or the Adjusted Subordinated Notes or Depositary Shares that a holder of
Preferred Securities may receive, may trade at a discount to the price that the
investor paid to purchase the Preferred Securities. Because holders of
Preferred Securities may receive Adjusted Subordinated Notes or Depositary
Shares upon the occurrence of a Regulatory Event, prospective purchasers should
also consider carefully the information regarding the Subordinated Notes
(including the Adjusted Subordinated Notes) and the Depositary Shares contained
herein and in the accompanying Prospectus.
REGULATORY REDEMPTION EVENT
For a period of 90 days after the occurrence of a Regulatory Redemption
Event, GWFC may elect to redeem the then outstanding Subordinated Notes or
Depositary Shares, in each case in whole only, for cash. See "Description of
the Offered Preferred Securities--Regulatory Redemption Event" and "Description
of Cumulative Preferred Stock--Redemption."
S-6
<PAGE>
LIMITED VOTING RIGHTS
Holders of Preferred Securities will have limited voting rights and will not
be entitled to vote to appoint, remove or replace, or to increase or decrease
the number of Regular Trustees, which voting rights are vested exclusively in
the holder of the Common Securities.
TRADING PRICE
The Preferred Securities may trade at a price that does not fully reflect the
value of accrued but unpaid interest with respect to the underlying
Subordinated Notes. A holder who disposes of his or her Preferred Securities
between record dates for payments of distributions thereon will be required to
include accrued but unpaid interest on the Subordinated Notes through the date
of disposition in income as ordinary income (i.e., OID), and to add such amount
to his or her adjusted tax basis in his or her pro rata share of the underlying
Subordinated Notes deemed disposed of. To the extent the selling price is less
than the holder's adjusted tax basis (which will include, in the form of OID,
all accrued but unpaid interest), a holder will recognize a capital loss.
Subject to certain limited exceptions, capital losses cannot be applied to
offset ordinary income for United States federal income tax purposes. See
"Certain Federal Income Tax Consequences--Original Issue Discount" and "--Sale
of Preferred Securities."
S-7
<PAGE>
RECENT FINANCIAL RESULTS
The following table sets forth selected financial data of GWFC and its
consolidated subsidiaries for the six months ended June 30, 1995 and 1994 and
at June 30, 1995 and 1994. This selected financial data is derived from GWFC's
unaudited consolidated financial statements which are incorporated herein by
reference and which include, in the opinion of management, all adjustments
(consisting of only normal, recurring accruals) necessary for the fair
presentation of the consolidated results of operations and consolidated
financial condition of GWFC for the periods and at the dates presented. The
operating results for the six months ended June 30, 1995 are not necessarily
indicative of the results to be expected for the full year.
<TABLE>
<CAPTION>
FOR THE SIX MONTHS
ENDED JUNE 30,
------------------------
1995 1994
----------- -----------
(DOLLARS IN THOUSANDS,
EXCEPT PER SHARE
DATA AND RATIOS)
<S> <C> <C>
SUMMARY OF OPERATIONS
Interest income..................................... $ 1,564,727 $ 1,263,795
Interest expense.................................... 947,038 591,828
Net interest income................................. 617,689 671,967
Provision for loan losses........................... 90,800 104,700
Operating and administrative expenses............... 497,825 499,406
Earnings before taxes on income..................... 155,220 179,230
Taxes on income..................................... 61,300 73,900
Net earnings........................................ 93,920 105,330
Fully diluted earnings per share.................... .60 .70
Cash dividends per common share..................... .46 .46
Ratio of earnings to fixed charges(1)
Excluding interest on customer accounts............ 1.40x 2.19x
Including interest on customer accounts............ 1.16x 1.29x
Ratio of earnings to fixed charges and preferred
stock dividends(1):
Excluding interest on customer accounts............ 1.33x 1.92x
Including interest on customer accounts............ 1.14x 1.25x
</TABLE>
<TABLE>
<CAPTION>
AT JUNE 30,
-----------------------
1995 1994
----------- -----------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
SUMMARY OF FINANCIAL CONDITION
Cash and securities................................... $ 2,122,649 $ 1,571,508
Loans receivable, net................................. 29,240,751 31,398,047
Mortgage-backed securities............................ 10,881,500 3,281,304
Total assets.......................................... 44,516,733 38,506,584
Customer accounts..................................... 29,246,964 30,208,548
Borrowings............................................ 11,663,945 4,955,355
Stockholders' equity.................................. 2,610,475 2,424,725
</TABLE>
- --------
(1) For purposes of computing the ratio of earnings to fixed charges and the
ratio of earnings to fixed charges and preferred stock dividends, earnings
represent earnings before income taxes and fixed charges. Fixed charges,
excluding interest on customer accounts, represent other interest expense
(including capitalized interest) and one-third (the proportion deemed
representative of the interest factor) of rents. Fixed charges, including
interest on customer accounts, represent all interest expense (including
capitalized interest) and one-third of rents.
S-8
<PAGE>
CAPITALIZATION OF GWFC
The following table sets forth the unaudited summary capitalization of GWFC
and its consolidated subsidiaries as of June 30, 1995, and as adjusted to
reflect issuance of [ ] Preferred Securities and the application of the
estimated net proceeds therefrom. See "Use of Proceeds" below. The table should
be read in conjunction with GWFC's consolidated financial statements and notes
thereto and other financial data incorporated by reference herein. See
"Incorporation of Certain Documents by Reference" in the accompanying
Prospectus.
<TABLE>
<CAPTION>
AT JUNE 30, 1995
-----------------------
ACTUAL AS ADJUSTED
----------- -----------
(IN THOUSANDS)
<S> <C> <C>
Borrowings:
Federal Home Loan Bank.............................. $ 115,000 $ 115,000
Commercial paper.................................... 1,524,245 1,524,245
Other short-term debt............................... 355,000 355,000
Senior debt......................................... 2,240,002 2,240,402
Securities sold under agreement to repurchase....... 7,429,298 7,429,298
----------- -----------
Total Borrowings.................................. 11,663,945 11,663,945
Company-obligated preferred securities of subsidiary
trust (1)............................................ --
Preferred stock....................................... 294,375 294,375
Common stockholders' equity........................... 2,316,100 2,316,100
----------- -----------
Total Capitalization.............................. $ 2,610,475 $
=========== ===========
</TABLE>
- --------
(1) As described in this Prospectus Supplement, the sole assets of the Trust
will be the Subordinated Notes.
ACCOUNTING TREATMENT
The financial statements of the Trust will be reflected in GWFC's
consolidated financial statements with the Preferred Securities shown as
Company-obligated preferred securities of subsidiary trust. The sole assets of
the Trust will be the Subordinated Notes.
USE OF PROCEEDS
All of the proceeds from the sale of the Preferred Securities will be
invested by the Trust in the Subordinated Notes described herein and ultimately
will be used by GWFC for general corporate purposes, which may include
investments in or extensions of credit to subsidiaries of GWFC.
DESCRIPTION OF THE OFFERED PREFERRED SECURITIES
The Preferred Securities will be issued pursuant to the terms of the
Declaration. The Declaration will be qualified as an indenture under the Trust
Indenture Act. The Property Trustee, The First National Bank of Chicago, will
act as the indenture trustee under the Declaration for purposes of compliance
with the provisions of the Trust Indenture Act. The terms of the Preferred
Securities will include those stated in the Declaration and those made part of
the Declaration by the Trust Indenture Act. The following summary of the
principal terms and provisions of the Preferred Securities does not purport to
be complete and is subject to, and qualified in its entirety by reference to,
the Declaration, a copy of which is filed as an exhibit to the Registration
Statement of which this Prospectus Supplement is a part, the Delaware Business
Trust Act (the "Trust Act") and the Trust Indenture Act.
S-9
<PAGE>
GENERAL
The Declaration authorizes the Regular Trustees to issue on behalf of the
Trust the Trust Securities, which represent undivided beneficial interests in
the assets of the Trust. All of the Common Securities will be owned, directly
or indirectly, by GWFC. The Common Securities rank pari passu, and payments
will be made thereon on a pro rata basis, with the Preferred Securities, except
that upon the occurrence of a Declaration Event of Default, the rights of the
holders of the Common Securities to receive payment of periodic distributions
and payments upon liquidation, redemption and otherwise will be subordinated to
the rights to payment of the holders of the Preferred Securities. The
Declaration does not permit the issuance by the Trust of any securities other
than the Trust Securities or the incurrence of any indebtedness by the Trust.
Pursuant to the Declaration, the Property Trustee will own the Subordinated
Notes purchased by the Trust for the benefit of the holders of the Trust
Securities. The payment of distributions out of money held by the Trust, and
payments upon redemption of the Preferred Securities or liquidation of the
Trust, are guaranteed by GWFC to the extent described under "Description of
Guarantee" in the accompanying Prospectus. The Guarantee will be held by The
First National Bank of Chicago, the Guarantee Trustee, for the benefit of the
holders of the Preferred Securities. The Guarantee does not cover payment of
distributions when the Trust does not have sufficient available funds to pay
such distributions.
The Preferred Securities will not be savings accounts or deposits and will
not be insured by the Federal Deposit Insurance Corporation (the "FDIC"), the
United States or any agency or fund of the United States.
DISTRIBUTIONS
Distributions on the Preferred Securities will be fixed at a rate per annum
of % of the stated liquidation amount of $25 per Preferred Security.
Distributions in arrears for more than one quarter will bear interest thereon
at the rate per annum of % compounded quarterly. The term "distribution" as
used herein includes any such interest payable unless otherwise stated. The
amount of distributions payable for any period will be computed on the basis of
a 360-day year of twelve 30-day months (or for any period shorter than a full
quarterly period, on the basis of the actual number of days elapsed per 30-day
month).
Distributions on the Preferred Securities will be cumulative, will accrue
from , 1995, and will be payable quarterly in arrears on March 31, June
30, September 30 and December 31 of each year to the holders of record on the
applicable record date, commencing December 31, 1995, when, as and if available
for payment, except as otherwise described below.
GWFC has the right under the Subordinated Indenture to defer payments of
interest on the Subordinated Notes by extending the interest payment period
from time to time on the Subordinated Notes, which, if exercised, would defer
quarterly distributions on the Preferred Securities (though such distributions
would continue to accrue with interest thereon, compounded quarterly (to the
extent permitted by applicable law), since interest would continue to accrue on
the Subordinated Notes) during any such extended interest payment period. Such
right to extend the interest payment period for the Subordinated Notes is
limited to a period not exceeding 20 consecutive quarters. In the event that
GWFC exercises this right, then (a) GWFC shall not, and shall cause any
subsidiary of GWFC that is not a wholly owned subsidiary of GWFC not to,
declare or pay dividends on, make any distributions with respect to, or redeem,
purchase or acquire, or make a liquidation payment with respect to, any of its
capital stock or the capital stock of any such subsidiary and (b) GWFC shall
not make any payment of interest, principal or premium, if any, on or repay,
repurchase or redeem any debt securities (including guarantees) issued by GWFC
that rank pari passu with or junior to such Subordinated Notes; provided,
however, that, the foregoing restriction (a) does not apply to any stock
dividend paid by GWFC, or any of its subsidiaries, where the dividend stock is
the same stock as that on which the dividend is being paid. Prior to the
termination of any such Extension Period, GWFC may further defer payments of
interest by extending the interest payment period, provided that such Extension
Period, together with all such previous and further extensions thereof, may not
exceed 20 consecutive quarters. Upon the termination of any Extension Period
and the payment of all amounts then due, GWFC may select a new
S-10
<PAGE>
Extension Period as if no Extension Period had previously been declared,
subject to the above requirements. See "Description of the Subordinated Notes--
Interest" and "--Option to Extend Interest Payment Period." If distributions
are deferred, the deferred distributions and accrued interest thereon shall be
paid to holders of record of the Preferred Securities as they appear on the
books and records of the Trust on the record date next following the
termination of such Extension Period.
Distributions on the Preferred Securities must be paid on the dates payable
to the extent that the Trust has funds available for the payment of such
distributions. The Trust's funds available for distribution to the holders of
the Preferred Securities will be limited to payments received from GWFC on the
Subordinated Notes. See "Description of the Subordinated Notes." The payment of
distributions out of moneys held by the Trust is guaranteed by GWFC to the
extent set forth under "Description of Guarantee" in the accompanying
Prospectus.
Distributions on the Preferred Securities will be payable to the holders
thereof as they appear on the books and records of the Trust on the relevant
record dates, which, as long as the Preferred Securities remain in book-entry
only form, will be one Business Day prior to the relevant payment dates. Such
distributions will be paid through the Property Trustee who will hold amounts
received in respect of the Subordinated Notes for the benefit of the holders of
the Trust Securities. Subject to any applicable laws and regulations and the
provisions of the Declaration, each such payment will be made as described
under "Book-Entry Only Issuance--The Depository Trust Company" below. In the
event that the Preferred Securities do not continue to remain in book-entry
only form, the Regular Trustees shall have the right to select relevant record
dates, which shall be more than one but less than 60 Business Days prior to the
relevant payment dates. In the event that any date on which distributions are
to be made on the Preferred Securities is not a Business Day, then payment of
the distributions payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in respect
of any such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such
distribution date. A "Business Day" shall mean any day other than Saturday,
Sunday or any other day on which banking institutions in the City of New York
[and Los Angeles, California] are permitted or required by any applicable law
to close.
MANDATORY REDEMPTION
The Subordinated Notes will mature on , 2025, unless the maturity date
is extended at the option of GWFC (provided certain financial covenants are
met), and may be redeemed, in whole or in part, at any time on or after ,
2000, or at any time in certain circumstances upon the occurrence of a Tax
Event or in whole for a limited time upon the occurrence of a Regulatory
Redemption Event. Upon the repayment of the Subordinated Notes, whether at
maturity or upon redemption, the proceeds from such repayment or payment shall
simultaneously be applied to redeem Trust Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the Subordinated
Notes so repaid or redeemed at the Redemption Price; provided that, holders of
Trust Securities shall be given not less than 30 nor more than 60 days notice
of such redemption. See "Description of the Subordinated Notes--Optional
Redemption." In the event that fewer than all of the outstanding Preferred
Securities are to be redeemed, the Preferred Securities will be redeemed pro
rata as described under "Book-Entry Only Issuance--The Depository Trust
Company" below.
SPECIAL EVENT REDEMPTION OR DISTRIBUTION
"Tax Event" means that the Regular Trustees shall have received an opinion
from independent tax counsel experienced in such matters (a "Dissolution Tax
Opinion") to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or, with respect to clause (iii) below, any
political subdivision or taxing authority thereof or therein or (b) any
amendment to, or change in, an interpretation or application of such laws or
regulations, there is more than an insubstantial risk that (i) the Trust would
be subject to United
S-11
<PAGE>
States federal income tax with respect to income accrued or received on the
Subordinated Notes, (ii) interest payable to the Trust on the Subordinated
Notes would not be deductible by GWFC for United States federal income tax
purposes or (iii) the Trust would be subject to more than a de minimis amount
of other taxes, duties or other governmental charges, which change or amendment
is enacted (irrespective of any retroactive effect) on or after the date of
this Prospectus Supplement.
"Investment Company Event" means that the Regular Trustees shall have
received an opinion from independent counsel experienced in such matters to the
effect that, as a result of the occurrence of a change in law or regulation or
a written change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority (a "Change
in 1940 Act Law"), there is more than an insubstantial risk that the Trust is
or will be considered an "investment company" which is required to be
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), which Change in 1940 Act Law becomes effective on or after the date of
this Prospectus Supplement.
If, at any time, a Tax Event or an Investment Company Event (each, as defined
above, a "Special Event") shall occur and be continuing, the Trust shall,
except in the circumstances described below, be dissolved with the result that
Subordinated Notes with an aggregate principal amount equal to the aggregate
stated liquidation amount of the Trust Securities would be distributed to the
holders of the Trust Securities, in liquidation of such holders' interests in
the Trust on a pro rata basis, within 90 days following the occurrence of such
Special Event; provided, however, that in the case of the occurrence of a Tax
Event, as a condition of such dissolution and distribution, the Regular
Trustees shall have received an opinion from independent tax counsel
experienced in such matters (a "No Recognition Opinion"), which opinion may
rely on published revenue rulings of the Internal Revenue Service, to the
effect that the holders of the Trust Securities will not recognize any gain or
loss for United States federal income tax purposes as a result of such
dissolution and distribution of Subordinated Notes; and provided, further,
that, if at the time there is available to the Trust the opportunity to
eliminate, within such 90 day period, the Special Event by taking some
ministerial action, such as filing a form or making an election, or pursuing
some other similar reasonable measure, which has no adverse effect on the
Trust, GWFC or the holders of the Trust Securities, the Trust will pursue such
measure in lieu of such dissolution and distribution. Furthermore, if in the
case of the occurrence of a Tax Event, (i) GWFC has received an opinion (a
"Redemption Tax Opinion") from independent tax counsel experienced in such
matters that, as a result of a Tax Event, there is more than an insubstantial
risk that GWFC would be precluded from deducting the interest on the
Subordinated Notes for United States federal income tax purposes even if the
Subordinated Notes were distributed to the holders of Trust Securities in
liquidation of such holders' interests in the Trust as described above or (ii)
the Regular Trustees shall have been informed by such tax counsel that a No
Recognition Opinion cannot be delivered, GWFC shall have the right, upon not
less than 30 nor more than 60 days notice, to redeem the Subordinated Notes in
whole or in part for cash within 90 days following the occurrence of such Tax
Event, and, following such redemption, Trust Securities with an aggregate
liquidation amount equal to the aggregate principal amount of the Subordinated
Notes so redeemed shall be redeemed by the Trust at the Redemption Price on a
pro rata basis; provided, however, that, if at the time there is available to
GWFC or the Trust the opportunity to eliminate, within such 90 day period, the
Tax Event by taking some ministerial action, such as filing a form or making an
election, or pursuing some other similar reasonable measure which has no
adverse effect on the Trust, or the holders of the Trust Securities or GWFC,
the Trust will pursue such measure in lieu of redemption.
If Subordinated Notes are distributed to the holders of the Preferred
Securities, GWFC will use its best efforts to have the Subordinated Notes
listed on the New York Stock Exchange or on such other exchange as the
Preferred Securities are then listed.
After the date for any distribution of Subordinated Notes upon dissolution of
the Trust, (i) the Preferred Securities and Guarantee will no longer be deemed
to be outstanding, (ii) the depositary or its nominee, as the record holder of
the Preferred Securities, will receive a registered global certificate or
certificates representing the Subordinated Notes to be delivered upon such
distribution and (iii) any certificates representing Preferred Securities and
the Guarantee not held by the depositary or its nominee will be deemed
S-12
<PAGE>
to represent Subordinated Notes having an aggregate principal amount equal to
the aggregate stated liquidation amount of such Preferred Securities, until
such certificates are presented to GWFC or its agent for transfer or
reissuance.
There can be no assurance as to the market prices for the Preferred
Securities or the Subordinated Notes that may be distributed in exchange for
the Preferred Securities if a dissolution and liquidation of the Trust were to
occur. Accordingly, the Preferred Securities that an investor may purchase, or
the Subordinated Notes that the investor may receive on dissolution and
liquidation of the Trust, may trade at a discount to the price that the
investor paid to purchase the Preferred Securities.
REGULATORY EVENT DISTRIBUTION OR CONVERSION
"Regulatory Event" means that, after the date of this Prospectus Supplement,
GWFC (or its successor) is, becomes, or within 180 days will become, subject to
capital requirements by a bank or savings and loan holding company regulator
under which 33 1/3% or more of the liquidation amount of the outstanding
Preferred Securities will not constitute Tier 1 capital (as that concept is
used in the regulations issued by the Board of Governors of the Federal Reserve
System under Section 5(b) of the Bank Holding Company Act of 1956, as amended,
as of the date of this Prospectus Supplement) or its then equivalent ("Tier 1
Capital").
GWFC shall promptly notify the Regular Trustees of the occurrence of a
Regulatory Event. During a period of 90 days after the occurrence of a
Regulatory Event, GWFC may notify the Regular Trustees in writing that GWFC has
elected to reduce the annual interest rate on all of the outstanding
Subordinated Notes by 50 basis points (i.e. from % per annum to % per annum)
effective upon distribution of the Adjusted Subordinated Notes to the holders
of the Trust Securities; provided, however, that if GWFC has elected to defer
payments of interest on the Subordinated Notes as described under
"Distributions" above, all deferred distributions and accrued interest thereon
shall be paid before the Adjusted Subordinated Notes are distributed.
If GWFC elects to lower the annual interest rate on the Subordinated Notes as
described above, at least 30 but not more than 60 days prior to the
distribution of the Adjusted Subordinated Notes, notice of such election will
be sent to the holders of the Trust Securities. Such notice will state (i) that
a Regulatory Event has occurred and that GWFC has elected to reduce the
interest rate on the Subordinated Notes, (ii) that on the specified date (which
shall be the next Distribution Date occurring at least 30 days after the date
of such notice), the Adjusted Subordinated Notes will be converted into
Depositary Shares with a liquidation preference equal to the principal amount
of the Adjusted Subordinated Notes converted, unless prior to such conversion
the holder of Trust Securities elects not to convert such holder's Adjusted
Subordinated Notes, in which case such holder will be entitled to receive the
Adjusted Subordinated Notes, (iii) that the Trust will be dissolved and that
the holders of Trust Securities will receive Adjusted Subordinated Notes and/or
Depositary Shares, as the case may be, (iv) the date upon which the Adjusted
Subordinated Notes and/or Depositary Shares, as the case may be, will be
distributed, and (v) the procedure for a holder of Trust Securities to exercise
his or her right not to have the Adjusted Subordinated Notes to which such
holder is entitled converted into Depositary Shares. See "Description of
Depositary Shares" and "Description of Cumulative Preferred Stock" for a
description of the terms of the Depositary Shares and the related Preferred
Stock.
If GWFC elects to lower the annual interest rate on the Subordinated Notes,
on the next Distribution Date occurring at least 30 days after notice to the
holders of Trust Securities as described in the previous paragraph, (i) the
Adjusted Subordinated Notes will be converted into Depositary Shares of GWFC
having a liquidation preference equal to the principal amount of the Adjusted
Subordinated Notes converted, each Depositary Share representing a one-tenth
interest in a share of % Cumulative Preferred Stock of GWFC, unless prior to
such conversion the holder of Trust Securities elects not to convert such
holder's Adjusted Subordinated Notes, in which event such holder will be
entitled to receive the Adjusted Subordinated Notes,
S-13
<PAGE>
and (ii) the Trust shall be dissolved, with the result that the Adjusted
Subordinated Notes and/or the Depositary Shares, as the case may be, will be
distributed to the holders of the Trust Securities.
If Adjusted Subordinated Notes and/or Depositary Shares are distributed to
any holder of Preferred Securities, GWFC will use its best efforts to have the
Adjusted Subordinated Notes and the Depositary Shares, as the case may be,
listed on the New York Stock Exchange or on such other exchange as the
Preferred Securities are then listed. GWFC will not attempt to have Adjusted
Subordinated Notes listed on any exchange if it has given notice of its intent
to redeem such Adjusted Subordinated Notes as described under "Description of
the Subordinated Notes--Optional Redemption."
After the date for any distribution of Adjusted Subordinated Notes, upon
dissolution of the Trust, (i) the Preferred Securities and Guarantee will no
longer be deemed to be outstanding, (ii) the depositary or its nominee, as the
record holder of the Preferred Securities, will receive a registered global
certificate or certificates representing the Adjusted Subordinated Notes or the
Depositary Shares, as the case may be, to be delivered upon such distribution
and (iii) any certificates representing Preferred Securities and the Guarantee
not held by the depositary or its nominee will be deemed to represent Adjusted
Subordinated Notes or Depositary Shares, as the case may be, having an
aggregate principal amount equal to the aggregate stated liquidation amount of
such Preferred Securities, until such certificates are presented to GWFC or its
agent for transfer or reissuance.
There can be no assurance as to the market prices for the Preferred
Securities, the Adjusted Subordinated Notes or the Depositary Shares that may
be distributed in exchange for the Preferred Securities if a dissolution and
liquidation of the Trust were to occur. Accordingly, the Preferred Securities
that an investor may purchase, or the Adjusted Subordinated Notes or the
Depositary Shares that the investor may receive on dissolution and liquidation
of the Trust, may trade at a discount to the price that the investor paid to
purchase the Preferred Securities.
REGULATORY REDEMPTION EVENT
"Regulatory Redemption Event" means that (i) a Regulatory Event has occurred
and (ii) (a) a bank, savings and loan association, savings bank, or bank or
savings and loan holding company (each a "Depository Institution") has issued
or has been the sponsor of a trust or other entity that has issued securities
that constitute Tier 1 Capital for such Depository Institution, and which
issued securities, or the securities underlying such issued securities, are to
be treated by such Depository Institution as indebtedness for U.S. federal
income tax purposes, as evidenced by the disclosure document pursuant to which
such securities were offered, and (b) GWFC has within 60 days of such issuance,
received an opinion of independent counsel experienced in such matters that
securities having substantially identical terms (except for rate, maturity and
payment dates), if issued by GWFC or by a GWFC sponsored trust or other entity,
should constitute Tier 1 Capital for GWFC if the securities issued by such
Depository Institution constituted Tier 1 Capital for such Depository
Institution and should be treated as indebtedness for U.S. federal income tax
purposes.
GWFC shall promptly notify the Regular Trustees of the occurrence of a
Regulatory Redemption Event. During a period of 90 days following the
occurrence of a Regulatory Redemption Event, GWFC may elect to redeem the
Subordinated Notes (which may be in the form of Adjusted Subordinated Notes) in
whole only, for cash. See "Description of the Subordinated Notes--Optional
Redemption." See also "Description of Cumulative Preferred Stock--Redemption"
for a description of the possible redemption of Depositary Shares, if issued,
upon the occurrence of a Regulatory Redemption Event.
If GWFC elects to redeem the Subordinated Notes for cash, the written notice
of its election shall specify a date for such redemption, which shall not be
less than 30 nor more than 60 days after such notice. Upon the redemption of
the Subordinated Notes, the Trust Securities, if still outstanding, with an
aggregate liquidation amount equal to the aggregate principal amount of the
Subordinated Notes so redeemed shall be redeemed by the Trust at the Redemption
Price.
S-14
<PAGE>
REDEMPTION PROCEDURES
The Trust may not redeem fewer than all of the outstanding Preferred
Securities unless all accrued and unpaid distributions have been paid on all
Preferred Securities for all quarterly distribution periods terminating on or
prior to the date of redemption.
If the Trust gives a notice of redemption in respect of Preferred Securities
(which notice will be irrevocable), then by 12:00 noon, New York City time, on
the redemption date, and if GWFC has paid to the Property Trustee a sufficient
amount of cash in connection with the related redemption or maturity of the
Subordinated Notes, then GWFC will irrevocably deposit with the depositary
funds sufficient to pay the applicable Redemption Price and will give the
depositary irrevocable instructions and authority to pay the Redemption Price
to holders of the Preferred Securities. See "Book-Entry Only Issuance--The
Depository Trust Company" below. If notice of redemption shall have been given
and funds deposited as required, then, immediately prior to the close of
business on the date of such deposit or redemption date, if later,
distributions will cease to accrue and all rights of holders of such Preferred
Securities so called for redemption will cease, except the right of the holders
of such Preferred Securities to receive the Redemption Price but without
interest on such Redemption Price. In the event that any date fixed for
redemption of Preferred Securities is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (without any interest or other payment in respect of any
such delay), except that, if such Business Day falls in the next calendar year,
such payment will be made on the immediately preceding Business Day. In the
event that payment of the Redemption Price in respect of Preferred Securities
is improperly withheld or refused and not paid either by the Trust, or by GWFC
pursuant to the Guarantee, distributions on such Preferred Securities will
continue to accrue at the then applicable rate from the original redemption
date to the actual date of payment, in which case the actual payment date will
be considered the date fixed for redemption for purposes of calculating the
Redemption Price.
In the event that fewer than all of the outstanding Preferred Securities are
to be redeemed, the Preferred Securities will be redeemed pro rata as described
below under "Book-Entry Only Issuance--The Depository Trust Company" below;
provided, however, that if the partial redemption of the Preferred Securities
would result in the delisting of the Preferred Securities, Preferred Securities
may only be redeemed in whole.
Subject to the foregoing and applicable law (including, without limitation,
United States federal securities laws), GWFC or its subsidiaries may at any
time, and from time to time, purchase outstanding Preferred Securities by
tender, in the open market or by private agreement.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
In the event of any voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Trust (each a "Liquidation"), the then holders
of the Preferred Securities will be entitled to receive out of the assets of
the Trust, after satisfaction of liabilities to creditors, an amount equal to
the aggregate of the stated liquidation amount of $25 per Preferred Security
plus accrued and unpaid distributions thereon to the date of payment (the
"Liquidation Distribution"), unless, in connection with such Liquidation,
Subordinated Notes, Adjusted Subordinated Notes or Depositary Shares, as the
case may be, in an aggregate stated principal or liquidation amount, as
applicable, equal to the aggregate stated liquidation amount of the Preferred
Securities have been distributed on a pro rata basis to the holders of the
Preferred Securities.
If, upon any such Liquidation, the Liquidation Distribution can be paid only
in part because the Trust has insufficient assets available to pay in full the
aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on the Preferred Securities shall be paid on a pro rata basis. The
holders of the Common Securities will be entitled to receive distributions upon
any such dissolution pro rata with the holders of the Preferred Securities,
except that if a Declaration Event of Default has occurred and is continuing,
the Preferred Securities shall have a preference over the Common Securities
with regard to such distributions.
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Pursuant to the Declaration, the Trust shall terminate (i) on , 2050, the
expiration of the term of the Trust, (ii) upon the bankruptcy of GWFC or the
holder of the Common Securities, (iii) upon the filing of a certificate of
dissolution or its equivalent with respect to the holder of the Common
Securities or GWFC, the filing of a certificate of cancellation with respect to
the Trust, or the revocation of the charter of the holder of the Common
Securities or GWFC and the expiration of 90 days after the date of revocation
without a reinstatement thereof, (iv) upon the distribution of Subordinated
Notes upon the occurrence of a Special Event or upon the distribution of
Adjusted Subordinated Notes and/or Depositary Shares as a result of a
Regulatory Event, (v) upon the entry of a decree of a judicial dissolution of
the holder of the Common Securities, GWFC or the Trust, or (vi) upon the
redemption of all the Trust Securities.
DECLARATION EVENTS OF DEFAULT
An event of default under the Subordinated Indenture (an "Indenture Event of
Default") constitutes an event of default under the Declaration with respect to
the Trust Securities (a "Declaration Event of Default"); provided that,
pursuant to the Declaration, the holder of the Common Securities will be deemed
to have waived any Declaration Event of Default with respect to the Common
Securities until all Declaration Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated. Until
such Declaration Events of Default with respect to the Preferred Securities
have been so cured, waived, or otherwise eliminated, the Property Trustee will
be deemed to be acting solely on behalf of the holders of the Preferred
Securities and only the holders of the Preferred Securities will have the right
to direct the Property Trustee with respect to certain matters under the
Declaration, and therefore the Subordinated Indenture. See "Voting Rights"
below.
Upon the occurrence of a Declaration Event of Default, the Property Trustee
as sole holder of the Subordinated Notes will have the right under the
Subordinated Indenture to declare the principal of and interest on the
Subordinated Notes to be immediately due and payable. GWFC and the Trust are
each required to file annually with the Property Trustee an officer's
certificate as to its compliance with all conditions and covenants under the
Declaration.
VOTING RIGHTS
Except as described herein, under the Trust Act, the Trust Indenture Act and
under "Description of Guarantee--Modifications of the Guarantee; Assignment" in
the accompanying Prospectus, and as otherwise required by law and the
Declaration, the holders of the Preferred Securities will have no voting
rights.
Subject to the requirement of the Property Trustee obtaining a tax opinion in
certain circumstances set forth in the last sentence of this paragraph, the
holders of a majority in aggregate liquidation amount of the Preferred
Securities, voting separately as a class, have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Property Trustee, or to direct the exercise of any trust or power conferred
upon the Property Trustee under the Declaration, including the right to direct
the Property Trustee, as holder of the Subordinated Notes, to (i) exercise the
remedies available under the Indenture with respect to the Subordinated Notes,
(ii) waive any past Indenture Event of Default that is waivable under the
Subordinated Indenture, or (iii) exercise any right to rescind or annul a
declaration that the principal of all the Subordinated Notes shall be due and
payable; provided, however, that, where a consent or action under the
Subordinated Indenture would require the consent or act of more than a majority
of the holders in aggregate principal amount of Subordinated Notes (a "Super-
Majority") affected thereby (or all of such holders, as applicable), only the
holders of at least such Super-Majority of the Preferred Securities (or all of
such holders, as applicable) may direct the Property Trustee to give such
consent to take such action. The Property Trustee shall notify all holders of
the Preferred Securities of any notice of default received from the Indenture
Trustee with respect to the Subordinated Notes. Such notice shall state that
such Indenture Event of Default also constitutes a Declaration Event of
Default. Except with respect to directing the time, method and place of
conducting a proceeding for a remedy, the Property Trustee shall not take any
of the actions described in clauses (i), (ii) or (iii) above unless the
Property Trustee has obtained an opinion of independent tax counsel experienced
in such matters to the effect that, as a result of such action, the Trust will
not fail to be classified as a grantor trust for United States federal income
tax purposes.
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In the event the consent of the Property Trustee, as the holder of the
Subordinated Notes, is required under the Subordinated Indenture with respect
to any amendment, modification or termination of the Subordinated Indenture,
the Property Trustee shall request the direction of the holders of the Trust
Securities with respect to such amendment, modification or termination and
shall vote with respect to such amendment, modification or termination as
directed by a majority in liquidation amount of the Trust Securities voting
together as a single class; provided, however, that where a consent under the
Subordinated Indenture would require the consent of a Super Majority, the
Property Trustee may only give such consent at the direction of the holders of
at least the proportion in liquidation amount of the Trust Securities which the
relevant Super Majority represents of the aggregate principal amount of the
Subordinated Notes outstanding. The Property Trustee shall not take any such
action in accordance with the directions of the holders of the Trust Securities
unless the Property Trustee has obtained an opinion of independent tax counsel
experienced in such matters to the affect that for the purposes of United
States federal income tax the Trust will not be classified as other than a
grantor trust.
A waiver of an Indenture Event of Default will constitute a waiver of the
corresponding Declaration Event of Default.
Any required approval or direction of holders of Preferred Securities may be
given at a separate meeting of holders of Preferred Securities convened for
such purpose, at a meeting of all of the holders of Trust Securities or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which holders of Preferred Securities are entitled to vote, or of
any matter upon which action by written consent of such holders is to be taken,
to be mailed to each holder of record of Preferred Securities. Each such notice
will include a statement setting forth the following information: (i) the date
of such meeting or the date by which such action is to be taken; (ii) a
description of any resolution proposed for adoption at such meeting on which
such holders are entitled to vote or of such matter upon which written consent
is sought; and (iii) instructions for the delivery of proxies or consents. No
vote or consent of the holders of Preferred Securities will be required for the
Trust to redeem and cancel Preferred Securities or distribute Subordinated
Notes, Adjusted Subordinated Notes or Depositary Shares in accordance with the
Declaration. The Regular Trustees shall be obligated to call a meeting of the
holders of the Preferred Securities if directed to do so by the holders of at
least 10% in liquidation amount of the Preferred Securities requesting such
meeting in accordance with the terms of the Declaration.
Notwithstanding that holders of Preferred Securities are entitled to vote or
consent under any of the circumstances described above, any of the Preferred
Securities that are owned at such time by GWFC or any entity directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, GWFC shall not be entitled to vote or consent and shall, for
purposes of such vote or consent, be treated as if such Preferred Securities
were not outstanding.
The procedures by which holders of Preferred Securities may exercise their
voting rights are described below. See "Book-Entry Only Issuance--The
Depository Trust Company" below.
Holders of the Preferred Securities will have no rights to appoint or remove
the Regular Trustees, who may be appointed, removed or replaced solely by GWFC
as the indirect or direct holder of all the Common Securities.
MODIFICATION OF THE DECLARATION
The Declaration may be modified and amended if approved by a majority of the
Regular Trustees (and in certain circumstances the Property Trustee), provided
that, if any proposed amendment provides for, or the Regular Trustees otherwise
propose to effect, (i) any action that would adversely affect the powers,
preferences or special rights of the Trust Securities, whether by way of
amendment to the Declaration or otherwise, or (ii) the liquidation,
dissolution, winding-up or termination of the Trust other than pursuant to the
terms of the Declaration, then the holders of the Trust Securities voting
together as a single class will be
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entitled to vote on such amendment or proposal and such amendment or proposal
shall not be effective except with the approval of at least 66 2/3% in
liquidation amount of the Trust Securities; provided that, if any amendment or
proposal referred to in clause (i) above would adversely affect only the
Preferred Securities or the Common Securities, then only the affected class
will be entitled to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of 66 2/3% in
liquidation amount of such class of Trust Securities.
Notwithstanding the foregoing, no amendment or modification may be made to
the Declaration if such amendment or modification would (i) cause the Trust to
be classified for purposes of United States federal income taxation as other
than a grantor trust, (ii) reduce or otherwise adversely affect the powers of
the Property Trustee in contravention of the Trust Indenture Act or (iii) cause
the Trust to be deemed an "investment company" which is required to be
registered under the 1940 Act.
MERGERS, CONSOLIDATIONS OR AMALGAMATIONS
The Trust may not consolidate, amalgamate, merge or be replaced by, or
convey, transfer or lease its properties and assets substantially as an
entirety to, any corporation or other body, except as described below. The
Trust may, with the consent of a majority of the Regular Trustees and without
the consent of the holders of the Trust Securities, consolidate, amalgamate,
merge with or into, or be replaced by a trust organized as such under the laws
of any State; provided that, (i) such successor entity either (x) expressly
assumes all of the obligations of the Trust under the Trust Securities or (y)
substitutes for the Trust Securities other securities having substantially the
same terms of the Trust Securities (the "Successor Securities"), so long as the
Successor Securities rank the same as the Trust Securities rank with respect to
distributions and payments upon liquidation, redemption and otherwise, (ii)
GWFC expressly acknowledges a trustee of such successor entity possessing the
same powers and duties as the Property Trustee as the holder of the
Subordinated Notes, (iii) the Preferred Securities or any Successor Securities
are listed, or any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or with another organization on
which the Preferred Securities are then listed or quoted, (iv) such merger,
consolidation, amalgamation or replacement does not cause the Preferred
Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation or replacement does not adversely affect the
rights, preferences and privileges of the holders of the Trust Securities
(including any Successor Securities) in any material respect (other than with
respect to any dilution of the holders' interest in the new entity), (vi) such
successor entity has a purpose identical to that of the Trust, (vii) prior to
such merger, consolidation, amalgamation or replacement, GWFC has received an
opinion of a tax counsel to the Trust experienced in such matters to the effect
that, (A) such merger, consolidation, amalgamation or replacement does not
adversely affect the rights, preferences and privileges of the holders of the
Trust Securities (including any Successor Securities) in any material respect
(other than with respect to any dilution of the holders' interest in the new
entity), and (B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor such successor entity will be required to
register as an investment company under the 1940 Act and (viii) GWFC guarantees
the obligations of such successor entity under the Successor Securities at
least to the extent provided by the Guarantee and the Common Securities
guarantee (as defined in the accompanying Prospectus). Notwithstanding the
foregoing, the Trust shall not, except with the consent of holders of 100% in
liquidation amount of the Trust Securities, consolidate, amalgamate, merge with
or into, or be replaced by any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it, if such
consolidation, amalgamation, merger or replacement would cause the Trust or
such successor entity to be classified as other than a grantor trust for United
States federal income tax purposes.
There are no provisions which afford the holders of the Preferred Securities
protection in the event of a highly leveraged transaction, reorganization,
restructuring, merger or similar transaction involving GWFC. There are also no
provisions which require the repurchase of the Preferred Securities upon a
change in control of GWFC.
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BOOK-ENTRY ONLY ISSUANCE--THE DEPOSITORY TRUST COMPANY
The Depository Trust Company ("DTC") will act as initial securities
depositary for the Preferred Securities. The Preferred Securities will be
issued only as fully-registered securities registered in the name of Cede & Co.
(DTC's nominee). One or more fully-registered global Preferred Securities
certificates, representing the total aggregate number of Preferred Securities,
will be issued to or on behalf of DTC.
The laws of some jurisdictions require that certain purchasers of securities
take physical delivery of securities in definitive form. Such laws may impair
the ability to transfer beneficial interests in the global Preferred Securities
as represented by a global certificate.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"). DTC holds securities that its
participants ("Participants") deposit with DTC. DTC also facilitates the
settlement among Participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. Direct Participants include securities
brokers and dealers, banks, trust companies, clearing corporations and certain
other organizations ("Direct Participants"). DTC is owned by a number of its
Direct Participants and by the New York Stock Exchange, the American Stock
Exchange, Inc., and the National Association of Securities Dealers, Inc. Access
to the DTC system is also available to others, such as securities brokers and
dealers, banks and trust companies that clear transactions through or maintain
a direct or indirect custodial relationship with a Direct Participant either
directly or indirectly ("Indirect Participants"). The rules applicable to DTC
and its Participants are on file with the Securities and Exchange Commission.
Purchases of Preferred Securities within the DTC system must be made by or
through Direct Participants, which will receive a credit for the Preferred
Securities on DTC's records. The ownership interest of each actual purchaser of
each Preferred Security ("Beneficial Owner") is in turn to be recorded on the
Direct and Indirect Participants' records. Beneficial Owners will not receive
written confirmation from DTC of their purchases, but Beneficial Owners are
expected to receive written confirmations providing details of the
transactions, as well as periodic statements of their holdings, from the Direct
or Indirect Participants through which the Beneficial Owners purchased
Preferred Securities. Transfers of ownership interests in the Preferred
Securities are to be accomplished by entries made on the books of Participants
acting on behalf of Beneficial Owners. Beneficial Owners will not receive
certificates representing their ownership interests in the Preferred
Securities, except in the event that use of the book-entry system for the
Preferred Securities is discontinued.
To facilitate subsequent transfers, all the Preferred Securities deposited by
Participants with DTC are registered in the name of DTC's nominee, Cede & Co.
The deposit of Preferred Securities with DTC and their registration in the name
of Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of
the actual Beneficial Owners of the Preferred Securities. DTC's records reflect
only the identity of the Direct Participants to whose accounts such Preferred
Securities are credited, which may or may not be the Beneficial Owners. The
Participants will remain responsible for keeping account of their holdings on
behalf of their customers.
Conveyance of notices and other communications by DTC to Direct Participants,
by Direct Participants to Indirect Participants and by Direct Participants and
Indirect Participants to Beneficial Owners will be governed by arrangements
among them, subject to any statutory or regulatory requirements that may be in
effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the
Preferred Securities are being redeemed, DTC will reduce the amount of the
interest of each Direct Participant in such Preferred Securities in accordance
with its procedures.
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Although voting with respect to the Preferred Securities is limited, in those
cases where a vote is required, neither DTC nor Cede & Co. will itself consent
or vote with respect to Preferred Securities. Under its usual procedures, DTC
would mail an Omnibus Proxy to the Trust as soon as possible after the record
date. The Omnibus Proxy assigns Cede & Co. consenting or voting rights to those
Direct Participants to whose accounts the Preferred Securities are credited on
the record date (identified in a listing attached to the Omnibus Proxy). GWFC
and the Trust believe that the arrangements among DTC, Direct and Indirect
Participants, and Beneficial Owners will enable the Beneficial Owners to
exercise rights equivalent in substance to the rights that can be directly
exercised by a holder of a beneficial interest in the Trust.
Distribution payments on the Preferred Securities will be made to DTC. DTC's
practice is to credit Direct Participants' accounts on the relevant payment
date in accordance with their respective holdings shown on DTC's records unless
DTC has reason to believe that it will not receive payments on such payment
date. Payments by participants to Beneficial Owners will be governed by
standing instructions and customary practices, as is the case with securities
held for the account of customers in bearer form or registered in "street
name," and such payments will be the responsibility of such Participant and not
of DTC, the Trust or GWFC, subject to any statutory or regulatory requirements
to the contrary that may be in effect from time to time. Payment of
distributions to DTC is the responsibility of the Trust, disbursement of such
payments to the Beneficial Owners is the responsibility of Direct and Indirect
Participants.
Except as provided herein, a Beneficial Owner in a global Preferred Security
certificate will not be entitled to receive physical delivery of Preferred
Securities. Accordingly, each Beneficial Owner must rely on the procedures of
DTC to exercise any rights under the Preferred Securities.
DTC may discontinue providing its services as securities depositary with
respect to the Preferred Securities at any time by giving reasonable notice to
the Trust. Under such circumstances, in the event that a successor securities
depositary is not obtained, Preferred Securities certificates are required to
be printed and delivered. Additionally, the Regular Trustees (with the consent
of GWFC) may decide to discontinue use of the system of book-entry transfers
through DTC (or any successor depositary) with respect to the Preferred
Securities. In that event, certificates for the Preferred Securities will be
printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that GWFC and the Trust believe to be reliable,
but neither GWFC nor the Trust takes responsibility for the accuracy thereof.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, prior to the occurrence of a default with respect to
the Trust Securities, undertakes to perform only such duties as are
specifically set forth in the Declaration and, after default, shall exercise
the same degree of care as a prudent individual would exercise in the conduct
of his or her own affairs. Subject to such provisions, the Property Trustee is
under no obligation to exercise any of the powers vested in it by the
Declaration at the request of any holder of Preferred Securities, unless
offered reasonable indemnity by such holder against the costs, expenses and
liabilities which might be incurred thereby.
PAYING AGENT
In the event that the Preferred Securities do not remain in book-entry only
form, the following provisions would apply:
The Property Trustee will act as paying agent, and may designate an
additional or substitute paying agent at any time.
Registration of transfers of Preferred Securities will be effected without
charge by or on behalf of the Trust, but upon payment (with the giving of such
indemnity as the Trust or GWFC may require) in respect of any tax or other
government charges that may be imposed in relation to it.
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The Trust will not be required to register or cause to be registered the
transfer of Preferred Securities after such Preferred Securities have been
called for redemption.
GOVERNING LAW
The Declaration and the Preferred Securities will be governed by, and
construed in accordance with, the internal laws of the State of Delaware.
MISCELLANEOUS
The Regular Trustees are authorized and directed to operate the Trust in such
a way so that the Trust will not be required to register as an "investment
company" under the 1940 Act or be characterized as other than a grantor trust
for United States federal income tax purposes. GWFC is authorized and directed
to conduct its affairs so that the Subordinated Notes will be treated as
indebtedness of GWFC for United States federal income tax purposes. In this
connection, GWFC and the Regular Trustees are authorized to take any action,
not inconsistent with applicable law, the certificate of trust of the Trust or
the certificate of incorporation of GWFC, as applicable, that each of GWFC and
the Regular Trustees determines in its discretion to be necessary or desirable
to achieve such end, as long as such action does not adversely affect the
interests of the holders of the Preferred Securities.
Holders of the Preferred Securities have no preemptive rights.
DESCRIPTION OF THE SUBORDINATED NOTES
Set forth below is a description of the specific terms of the Subordinated
Notes in which the Trust will invest the proceeds from the issuance and sale of
the Trust Securities. This description supplements the description of the
general terms and provisions of the Subordinated Notes set forth in the
accompanying Prospectus under the caption "Description of Debt Securities" and
in particular "Description of Debt Securities--Particular Terms of the
Subordinated Debt Securities Issued to the Trust." The following description
does not purport to be complete and is subject to, and is qualified in its
entirety by reference to, the description in the accompanying Prospectus and
the Indenture, dated as of September 12, 1990, as amended and supplemented by a
First Supplemental Indenture, dated April 30, 1993 and a Second Supplemental
Indenture, dated as of , 1995 (as amended and supplemented, the
"Subordinated Indenture"), between the Company and Harris Trust and Savings
Bank, as Indenture Trustee, filed as an exhibit to the Registration Statement
of which this Prospectus Supplement and the accompanying Prospectus form a
part. Certain capitalized terms used herein are defined in the Subordinated
Indenture.
Under certain circumstances involving the dissolution of the Trust following
the occurrence of a Special Event or Regulatory Event, Subordinated Notes or
Adjusted Subordinated Notes may be distributed to the holders of the Trust
Securities in liquidation of the Trust. See "Description of the Offered
Preferred Securities--Special Event Redemption or Distribution" and "--
Regulatory Event Distribution or Conversion."
If the Subordinated Notes or Adjusted Subordinated Notes are distributed to
the holders of the Preferred Securities, GWFC will use its best efforts to have
the Subordinated Notes or Adjusted Subordinated Notes, as the case may be,
listed on the New York Stock Exchange or on such other exchange on which the
Preferred Securities are then listed or quoted.
The terms of the Adjusted Subordinated Notes, if issued, will be identical to
the terms of the Subordinated Notes, except for the reduction of the annual
interest rate. The following discussion of the terms of the Subordinated Notes
applies to the Adjusted Subordinated Notes, except as otherwise expressly
stated.
The Subordinated Notes will not be savings accounts or deposits and will not
be insured by the FDIC, the United States or any agency or fund of the United
States.
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GENERAL
The Subordinated Notes will be issued as unsecured debt under the
Subordinated Indenture. The Subordinated Notes will be limited in aggregate
principal amount to approximately $[ ], such amount being the sum of the
aggregate stated liquidation of the Preferred Securities and the capital
contributed by GWFC in exchange for the Common Securities (the "GWFC Payment").
The Subordinated Notes are not subject to a sinking fund provision. The
entire principal amount of the Subordinated Notes will mature and become due
and payable, together with any accrued and unpaid interest thereon including
Compound Interest (as hereinafter defined) and Additional Interest (as
hereinafter defined), if any, on , 2025, subject to the election of GWFC
to extend the scheduled maturity date of the Subordinated Notes to a date not
later than , 2044, which election is subject to GWFC's satisfying certain
financial covenants. See "Option to Extend Maturity" below.
If Subordinated Notes or Adjusted Subordinated Notes are distributed to
holders of Preferred Securities in liquidation of such holders' interests in
the Trust, such Subordinated Notes or Adjusted Subordinated Notes, as the case
may be, will initially be issued as a Global Security (as defined below). As
described herein, under certain limited circumstances, Subordinated Notes or
Adjusted Subordinated Notes may be issued in certificated form in exchange for
a Global Security (as defined below). See "Book-Entry and Settlement" below. In
the event that Subordinated Notes or Adjusted Subordinated Notes are issued in
certificated form, such Subordinated Notes or Adjusted Subordinated Notes will
be in denominations of $25 and integral multiples thereof and may be
transferred or exchanged at the offices described below. Payments on
Subordinated Notes or Adjusted Subordinated Notes, as the case may be, issued
as a Global Security will be made to DTC, a successor depositary or, in the
event that no depositary is used, to a Paying Agent for the Subordinated Notes
or Adjusted Subordinated Notes, as the case may be. In the event Subordinated
Notes or Adjusted Subordinated Notes are issued in certificated form, principal
and interest will be payable, the transfer of the Subordinated Notes or
Adjusted Subordinated Notes will be registrable and Subordinated Notes or
Adjusted Subordinated Notes will be exchangeable for Subordinated Notes or
Adjusted Subordinated Notes, as the case may be, of other denominations of a
like aggregate principal amount at the corporate trust office of the Indenture
Trustee in [ ]; provided that, payment of interest may be made at the option
of GWFC by check mailed to the address of the persons entitled thereto.
INTEREST
Except as described under "Description of the Offered Preferred Securities--
Regulatory Event Distribution or Conversion," each Subordinated Note shall bear
interest at the rate of % per annum (the "Original Coupon Rate") from the
original date of issuance, payable quarterly in arrears on March 31, June 30,
September 30 and December 31 of each year (each, an "Interest Payment Date"),
commencing December 31, 1995, to the person in whose name such Subordinated
Note is registered, subject to certain exceptions, at the close of business on
the Business Day next preceding such Interest Payment Date. In the event the
Subordinated Notes shall not continue to remain in book-entry only form, GWFC
shall have the right to select such record dates which shall be not less than
one Business Day prior to each Interest Payment Date.
In the event the Adjusted Subordinated Notes are issued, each Adjusted
Subordinated Note shall bear interest at the rate of % per annum (the
"Adjusted Rate" and together with the Original Coupon Rate, the "Coupon Rate")
from the date the Adjusted Subordinated Notes are distributed to holders of
Trust Securities, and shall otherwise have payment and other terms identical to
the terms of the Subordinated Notes.
The amount of interest payable for any period will be computed on the basis
of a 360-day year of twelve 30-day months. The amount of interest payable for
any period shorter than a full quarterly period will be computed on the basis
of the actual number of days elapsed per 30-day month. In the event that any
date on which interest is payable on the Subordinated Notes is not a Business
Day, then payment of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any
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interest or other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date.
If at any time the Trust shall be required to pay any taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed by the United States, or any other taxing authority, then, in
any case, GWFC will pay as additional interest ("Additional Interest") such
additional amounts as shall be required so that the net amounts received and
retained by the Trust after paying such taxes, duties, assessments or other
governmental changes will be not less than the amounts the Trust would have
received had no such taxes, duties, assessments or other governmental charges
been imposed. This right shall not accrue to any holder of the Subordinated
Notes other than the Trust.
OPTION TO EXTEND MATURITY DATE
The maturity date of the Subordinated Notes is , 2025 (the "Scheduled
Maturity Date"). GWFC, however, may, before the Scheduled Maturity Date, extend
such maturity date no more than one time, for up to an additional 19 years from
the Scheduled Maturity Date, provided that (a) GWFC is not in bankruptcy or
otherwise insolvent, (b) GWFC is not in default on the Subordinated Notes, (c)
GWFC has made timely payments on the Subordinated Notes for the immediately
preceding six quarters without deferrals, (d) the Trust is not in arrears on
payments of distributions on the Preferred Securities, and (e) the Subordinated
Notes are rated in one of the four highest rating categories by either Standard
& Poor's Rating Group, Moody's Investors Service, Inc., Fitch Investor
Services, Inc., Duff & Phelps Credit Rating Company or any other nationally
recognized statistical rating organization. Pursuant to the Declaration, the
Regular Trustees are required to give notice of GWFC's election to extend the
Scheduled Maturity Date to the holders of the Preferred Securities.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
GWFC shall have the right at any time, and from time to time, during the term
of the Subordinated Notes to defer payments of interest by extending the
interest payment period for a period not exceeding 20 consecutive quarters. To
the extent permitted by applicable law, interest, the payment of which has been
deferred during such Extension Period, will bear interest at the applicable
Coupon Rate, compounded quarterly ("Compound Interest") during the term of such
Extension Period. At the end of any such Extension Period, GWFC shall pay all
interest then accrued and unpaid (including any Compound Interest and
Additional Interest); provided, that, during any such Extension Period, (a)
GWFC shall not, and shall cause any subsidiary of GWFC that is not a wholly
owned subsidiary of GWFC not to, declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase or acquire, or make a
liquidation payment with respect to, any of its capital stock or the capital
stock of any such subsidiary, and (b) GWFC shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities (including guarantees) issued by GWFC which rank pari passu
with or junior to the Subordinated Notes; provided, however, that the foregoing
restriction (a) does not apply to any stock dividend paid by GWFC, or any of
its subsidiaries, where the dividend stock is the same stock as that on which
the dividend is being paid. Prior to the termination of any such Extension
Period, GWFC may further defer payments of interest by extending the interest
payment period, provided that such Extension Period together with all such
previous and further extensions thereof may not exceed 20 consecutive quarters.
Upon the termination of any Extension Period and the payment of all amounts
then due, GWFC may select a new Extension Period, as if no Extension Period had
previously been declared, subject to the above requirements. No interest during
an Extension Period, except at the end thereof, shall be due and payable. GWFC
has no intention of exercising its rights to defer payments of interest by
extending the interest payment period on the Subordinated Notes and considers
it unlikely that it will exercise that right in the future. If the Property
Trustee shall be the sole holder of the Subordinated Notes, GWFC shall give the
Regular Trustees and the Property Trustee notice of its selection of such
Extension Period one Business Day prior to the earlier of (i) the date
distributions on the Preferred Securities are payable or (ii) the date the
Regular Trustees are required to give notice to the New
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York Stock Exchange or other applicable self-regulatory organization or to
holders of the Preferred Securities of the record date or the date such
distribution is payable, but in any event no less than one Business Day prior
to such record date. The Regular Trustees shall give notice of GWFC's selection
of such Extension Period to the holders of the Preferred Securities. If the
Property Trustee shall not be the sole holder of the Subordinated Notes, GWFC
shall give the holders of the Subordinated Notes notice of its selection of
such Extension Period ten Business Days prior to the earlier of (i) the
Interest Payment Date or (ii) the date GWFC is required to give notice to the
New York Stock Exchange or other applicable self-regulatory organization or to
holders of the Subordinated Notes of the record or payment date of such related
interest payment.
OPTIONAL REDEMPTION
GWFC shall have the right to redeem the Subordinated Notes, in whole or in
part, from time to time, on or after , 2000, or at any time in certain
circumstances upon the occurrence of a Tax Event or in whole for a limited time
upon the occurrence of a Regulatory Redemption Event as described under
"Description of the Offered Preferred Securities--Special Event Redemption or
Distribution" and "--Regulatory Redemption Event," upon not less than 30 nor
more than 60 days' notice, at a Redemption Price equal to 100% of the principal
amount to be redeemed plus any accrued and unpaid interest, including Compound
and Additional Interest, if any, to the redemption date. If a partial
redemption of the Preferred Securities resulting from a partial redemption of
the Subordinated Notes would result in the delisting of the Preferred
Securities, GWFC may only redeem the Subordinated Notes in whole.
If, following a distribution of Adjusted Subordinated Notes, holders of
Adjusted Subordinated Notes having an aggregate principal amount of 10% or less
of the original aggregate principal amount of Subordinated Notes purchased by
the Trust elect not to have their Adjusted Subordinated Notes converted into
Depositary Shares, GWFC will have the option to redeem all outstanding Adjusted
Subordinated Notes at such Redemption Price on any Business Day during the
period from the Distribution Date on which the conversion of Adjusted
Subordinated Notes into Depositary Shares is to occur, to and including the
next succeeding Distribution Date. GWFC will give notice of its intent to
redeem such Adjusted Subordinated Notes to the holders thereof at least 30 but
not more than 60 days prior to the date on which such redemption is to occur.
SUBORDINATION
The Subordinated Indenture provides that the Subordinated Notes are
subordinated and junior in right of payment to all present and future Senior
Indebtedness of GWFC. See "Description of Debt Securities--Subordination of
Subordinated Debt Securities" in the accompanying Prospectus. The Subordinated
Indenture does not limit the aggregate amount of Senior Indebtedness which may
be issued by GWFC. As of June 30, 1995, Senior Indebtedness of GWFC aggregated
approximately $673 million. In addition, because GWFC is a holding company, its
obligations under the Subordinated Notes will be effectively subordinated to
all existing and future liabilities of its subsidiaries. At June 30, 1995, such
subsidiaries had total liabilities of approximately $41 billion.
CERTAIN COVENANTS
If (i) there shall have occurred any event that would constitute an Event of
Default under the Subordinated Indenture or (ii) GWFC shall be in default with
respect to its payment of any obligations under the Guarantee, then (a) GWFC
shall not, and shall cause any subsidiary of GWFC that is not a wholly owned
subsidiary of GWFC not to, declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase or make a liquidation
payment with respect to, any of its capital stock or the capital stock of any
such subsidiary, and (b) GWFC shall not make any payment of interest, principal
or premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees) issued by GWFC which rank pari passu with or junior to
the Subordinated Notes; provided, however, that the foregoing restriction (a)
does not apply to any stock dividend paid by GWFC, or any of its subsidiaries,
where the dividend stock is the same stock as that on which the dividend is
being paid.
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If GWFC shall have given notice of its election of an Extension Period as
provided in the Subordinated Indenture and such period, or any extension
thereof, shall be continuing, then (a) GWFC shall not, and shall cause any
subsidiary of GWFC that is not a wholly owned subsidiary of GWFC not to,
declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase or acquire, or make a liquidation payment with respect to, any
of its capital stock or the capital stock of any such subsidiary, and (b) GWFC
shall not make any payment of interest, principal or premium, if any, on or
repay, repurchase or redeem any debt securities (including guarantees) issued
by GWFC which rank pari passu with or junior to the Subordinated Notes;
provided, however, that the foregoing restriction (a) does not apply to any
stock dividend paid by GWFC, or any of its subsidiaries, where the dividend
stock is the same stock as that on which the dividend is being paid.
For so long as the Trust Securities remain outstanding, GWFC will covenant
(i) to directly or indirectly maintain 100% ownership of the Common Securities
of the Trust; provided, however, that any permitted successor of GWFC under the
Subordinated Indenture may succeed to GWFC's ownership of such Common
Securities, and (ii) to use its reasonable efforts to cause the Trust (a) to
remain a statutory business trust, except in connection with the distribution
of Subordinated Notes or Adjusted Subordinated Notes to the holders of Trust
Securities in liquidation of the Trust, the redemption of all of the Trust
Securities of the Trust, or certain mergers, consolidations or amalgamations,
each as permitted by the Declaration, and (b) to otherwise continue to be
classified as a grantor trust for United States federal income tax purposes.
INDENTURE EVENTS OF DEFAULT
An Indenture Event of Default is defined in the Subordinated Indenture as
being: (a) the failure to pay principal of any of the Subordinated Notes when
due; provided, however, that a valid extension by GWFC of the maturity for the
Subordinated Notes shall not constitute a default in the payment for this
purpose; (b) the failure to pay any interest on any of the Subordinated Notes
when due, continued for 10 days; provided, however, that a valid extension by
GWFC of the interest payment period for the Subordinated Notes shall not
constitute a default in the payment for this purpose; (c) failure to perform
any other covenant of GWFC in the Subordinated Indenture (other than a covenant
included in the Subordinated Indenture solely for the benefit of one or more
series of Debt Securities other than the Subordinated Notes), continued for 60
days after written notice as provided in the Subordinated Indenture; (d)
certain events of bankruptcy, insolvency, conservatorship, receivership or
reorganization; (e) a default under any mortgage, indenture or instrument
evidencing any indebtedness for borrowed money by GWFC (including the
Subordinated Indenture) resulting in an aggregate principal amount exceeding
$10,000,000 becoming or being declared due and payable prior to its maturity
date or constituting a failure to pay at a maturity an aggregate principal
amount exceeding $10,000,000 unless such acceleration has been rescinded or
annulled or such indebtedness has been discharged within 10 days after written
notice to GWFC by the Indenture Trustee or holders of at least 25% in aggregate
principal amount of the outstanding Subordinated Notes declaring a default or
GWFC is contesting the validity of such default in good faith by appropriate
proceedings; and (f) the voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Trust to which (or to the Trustee of the Trust
to which) Subordinated Notes were issued in connection with the issuance of the
Trust Securities by the Trust, except in connection with the distribution of
the Subordinated Notes to the holders of Trust Securities in liquidation of the
Trust, the redemption of all the Trust Securities, or certain mergers,
consolidations or amalgamations, each as permitted by the Declaration.
If any Indenture Event of Default shall occur and be continuing, the Property
Trustee, as the holder of the Subordinated Notes, will have the right to
declare the principal of and the interest on the Subordinated Notes (including
any Compound Interest and Additional Interest, if any) and any other amounts
payable under the Subordinated Indenture to be forthwith due and payable and to
enforce its other rights as a creditor with respect to the Subordinated Notes.
See "Description of Debt Securities--Events of Default" in the accompanying
Prospectus for a description of the Events of Default. An Indenture Event of
Default also constitutes a Declaration Event of Default. The holders of
Preferred Securities in certain circumstances have the right to direct the
Property Trustee to exercise its rights as the holder of the Subordinated
Notes. See "Description of the Offered Preferred Securities--Declaration Events
of Default" and "--Voting Rights."
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BOOK-ENTRY AND SETTLEMENT
If distributed to holders of Preferred Securities in connection with the
involuntary or voluntary dissolution, winding-up or liquidation of the Trust as
a result of the occurrence of a Special Event or Regulatory Event, the
Subordinated Notes or Adjusted Subordinated Notes, as the case may be, will be
issued in the form of one or more global certificates (each a "Global
Security") registered in the name of the depositary or its nominee. Except
under the limited circumstances described below, Subordinated Notes or Adjusted
Subordinated Notes represented by the Global Security will not be exchangeable
for, and will not otherwise be issuable as, Subordinated Notes or Adjusted
Subordinated Notes, as the case may be, in definitive form. The Global
Securities described above may not be transferred except by the depositary to a
nominee of the depositary or by a nominee of the depositary to the depositary
or another nominee of the depositary or to a successor depositary or its
nominee.
The laws of some jurisdictions require that certain purchasers of securities
take physical delivery of such securities in definitive form. Such laws may
impair the ability to transfer beneficial interests in such a Global Security.
Except as provided below, owners of beneficial interests in such a Global
Security will not be entitled to receive physical delivery of Subordinated
Notes or Adjusted Subordinated Notes in definitive form and will not be
considered the holders (as defined in the Subordinated Indenture) thereof for
any purpose under the Subordinated Indenture, and no Global Security
representing Subordinated Notes or Adjusted Subordinated Notes shall be
exchangeable, except for another Global Security of like denomination and tenor
to be registered in the name of the depositary or its nominee or to a successor
depositary or its nominee. Accordingly, each Beneficial Owner must rely on the
procedures of the depositary or if such person is not a Participant, on the
procedures of the Participant through which such person owns its interest to
exercise any rights of a holder under the Subordinated Indenture.
THE DEPOSITARY
If Subordinated Notes or Adjusted Subordinated Notes are distributed to
holders of Preferred Securities in liquidation of such holders' interests in
the Trust, DTC will act as securities depositary for the Subordinated Notes or
Adjusted Subordinated Notes, as the case may be. For a description of DTC and
the specific terms of the depositary arrangements, see "Description of the
Offered Preferred Securities--Book-Entry Only Issuance--The Depository Trust
Company." As of the date of this Prospectus Supplement, the description therein
of DTC's book-entry system and DTC's practices as they relate to purchases,
transfers, notices and payments with respect to the Preferred Securities apply
in all material respects to any debt obligations represented by one or more
Global Securities held by DTC. GWFC may appoint a successor to DTC or any
successor depositary in the event DTC or such successor depositary is unable or
unwilling to continue as a depositary for the Global Securities.
None of GWFC, the Trust, the Indenture Trustee, any paying agent and any
other agent of GWFC or the Indenture Trustee will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in a Global Security for such Subordinated
Notes or Adjusted Subordinated Notes or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
DISCONTINUANCE OF THE DEPOSITARY'S SERVICES
A Global Security shall be exchangeable for Subordinated Notes or Adjusted
Subordinated Notes, as the case may be, registered in the names of persons
other than the depositary or its nominee only if (i) the depositary notifies
GWFC that it is unwilling or unable to continue as a depositary for such Global
Security and no successor depositary shall have been appointed, (ii) the
depositary, at any time, ceases to be registered to act as such depositary and
no successor depositary shall have been appointed, or (iii) GWFC, in its sole
discretion, determines that such Global Security shall be so exchangeable. Any
Global Security that is exchangeable pursuant to the preceding sentence shall
be exchangeable for Subordinated Notes or Adjusted Subordinated Notes, as the
case may be, registered in such names as the depositary shall direct. It is
expected that such instructions will be based upon directions received by the
depositary from its Participants with respect to ownership of beneficial
interests in such Global Security.
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MISCELLANEOUS
The Subordinated Indenture will provide that GWFC, in its capacity as issuer
of the Subordinated Notes, will pay all fees and expenses related to (i) the
offering of the Trust Securities and the Subordinated Notes, (ii) the
organization, maintenance and dissolution of the Trust, and (iii) the retention
of the Regular Trustees.
EFFECT OF OBLIGATIONS UNDER THE
SUBORDINATED NOTES AND THE GUARANTEE
As set forth in the Declaration, the sole purpose of the Trust is to issue
the Trust Securities evidencing undivided beneficial interests in the assets of
the Trust, and to invest the proceeds from such issuance and sale in the
Subordinated Notes.
As long as payments of interest and other payments are made when due on the
Subordinated Notes, such payments will be sufficient to cover distributions and
payments due on the Trust Securities primarily because (i) the aggregate
principal amount of Subordinated Notes will be equal to the sum of the
aggregate stated liquidation amount of the Trust Securities; (ii) the interest
rate and payment dates on the Subordinated Notes will match the distribution
rate and distribution and other payment dates for the Preferred Securities;
(iii) GWFC shall pay for all costs and expenses of the Trust; and (iv) the
Declaration provides that the Regular Trustees shall not cause or permit the
Trust to, among other things, engage in any activity that is not consistent
with the purposes of the Trust.
Payments of distributions (to the extent funds therefor are available) and
other payments due on the Preferred Securities (to the extent funds therefor
are available) are guaranteed by GWFC as and to the extent set forth under
"Description of Guarantee" in the accompanying Prospectus. If GWFC does not
make interest payments on the Subordinated Notes purchased by the Trust, it is
expected that the Trust will not have sufficient funds to pay distributions on
the Preferred Securities. The Guarantee is a full and unconditional guarantee
from the time of its issuance, but does not apply to any payment of
distributions unless and until the Trust has sufficient funds for the payment
of such distributions.
If GWFC fails to make interest or other payments on the Subordinated Notes
when due (taking into account any Extension Period), the Declaration provides a
mechanism whereby the holders of the Preferred Securities, using the procedures
described in "Description of the Offered Preferred Securities--Voting Rights,"
may direct the Property Trustee to enforce its rights under the Subordinated
Notes, including proceeding directly against GWFC to enforce the Subordinated
Notes.
If GWFC fails to make payments under the Guarantee, the Guarantee provides a
mechanism whereby the holders of the Preferred Securities may direct the
Guarantee Trustee to enforce its rights thereunder. If the Guarantee Trustee
fails to enforce the Guarantee, any holder of Preferred Securities may
institute a legal proceeding directly against GWFC to enforce the Guarantee
Trustee's rights under the Guarantee, without first instituting a legal
proceeding against the Trust, the Guarantee Trustee or any other person or
entity.
GWFC and the Trust believe that the above mechanisms and obligations, taken
together, provide the substantial equivalent of a full and unconditional
guarantee by GWFC of payments due on the Preferred Securities. See "Description
of Guarantee--General" in the accompanying Prospectus.
DESCRIPTION OF DEPOSITARY SHARES
The following summary description of the Depositary Shares supplements the
information set forth under the heading "Description of Depositary Shares" in
the accompanying Prospectus, to which reference is hereby made. The summary
description of the Depositary Shares set forth below does not purport to be
complete and is subject to and qualified in its entirety by reference to the
Deposit Agreement referred to below which will be filed with the Securities and
Exchange Commission at or prior to the time of the issuance of the Depositary
Shares.
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GENERAL
Each Depositary Share represents a one-tenth interest in a share of the
Preferred Stock. The shares of the Preferred Stock underlying the Depositary
Shares will be deposited with Harris Trust Company of California, as depositary
("Share Depositary"), under a Deposit Agreement (the "Deposit Agreement") among
GWFC, the Share Depositary and the holders from time to time of the depositary
receipts issued by the Share Depositary thereunder (the "Depositary Receipts").
The Depositary Receipts so issued will evidence the Depositary Shares. Subject
to the terms of the Deposit Agreement, each owner of a Depositary Share will be
entitled through the Share Depositary, in proportion to the one-tenth interest
in a share of the Preferred Stock underlying such Depositary Share, to all
rights and preferences of a share of the Preferred Stock (including dividend,
voting, redemption and liquidation rights). Since each share of the Preferred
Stock entitles the holder thereof to one vote on matters on which the Preferred
Stock is entitled to vote, each Depositary Share will, in effect, entitle the
holder thereof to one-tenth of a vote thereon, rather than one full vote. See
"Description of Cumulative Preferred Stock--Voting Rights" herein and
"Description of Depositary Shares" in the accompanying Prospectus.
If the Depositary Shares are distributed to the holders of Preferred
Securities, GWFC will use its best efforts to have the Depositary Shares listed
on the New York Stock Exchange or on such other exchange on which the Preferred
Securities are then listed or quoted.
The Depositary Shares will not be savings accounts or deposits and will not
be insured by the FDIC, the United States or any agency or fund of the United
States.
CHARGES OF DEPOSITARY
GWFC will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. GWFC will pay charges
of the Share Depositary in connection with the initial deposit of the Preferred
Stock and the initial issuance of the Depositary Receipts evidencing the
Depositary Shares, any redemption of the Preferred Stock and any withdrawals of
Preferred Stock by the holders of Depositary Shares. Holders of Depositary
Shares will pay other transfer and other taxes and governmental charges and
such other charges as are expressly provided in the Deposit Agreement to be for
their accounts.
BOOK-ENTRY SETTLEMENT
If distributed upon the conversion of Adjusted Subordinated Notes, the
Depositary Receipts will be issued in the form of one or more global
certificates (each a "Global Security") registered in the name of the
depositary or its nominee. Except under the limited circumstances described
below, Depositary Receipts represented by the Global Security will not be
exchangeable for, and will not otherwise be issuable as, Depositary Receipts in
definitive form. The Global Securities described above may not be transferred
except by the depositary to a nominee of the depositary or by a nominee of the
depositary to the depositary or another nominee of the depositary or to a
successor depositary or its nominee.
The laws of some jurisdictions require that certain purchasers of securities
take physical delivery of such securities in definitive form. Such laws may
impair the ability to transfer beneficial interests in such a Global Security.
Except as provided below, owners of beneficial interests in such a Global
Security will not be entitled to receive physical delivery of Depositary
Receipts in definitive form and will not be considered the holders (as defined
in the Deposit Agreement) thereof for any purpose under the Deposit Agreement
and no Global Security representing Depositary Receipts shall be exchangeable,
except for another Global Security of like denomination and tenor to be
registered in the name of the Depositary or its nominee or to a successor
Depositary or its nominee. Accordingly, each Beneficial Owner must rely on the
procedures of the Depositary or, if such person is not a Participant, on the
procedures of the Participant through which such person owns its interest to
exercise any rights of a holder under the Deposit Agreement.
THE DEPOSITARY
If Depositary Receipts are distributed, DTC will act as securities depositary
for the Depositary Receipts. For a description of DTC and the specific terms of
the depositary arrangements, see "Description of the Offered Preferred
Securities--Book-Entry Only Issuance--The Depository Trust Company." As of the
date
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of this Prospectus Supplement, the description therein of DTC's book-entry
system and DTC's practices as they relate to purchases, transfers, notices and
payments with respect to the Preferred Securities apply in all material
respects to any obligations represented by one or more Global Securities held
by DTC. GWFC may appoint a successor to DTC or any successor depositary in the
event DTC or such successor depositary is unable or unwilling to continue as a
depositary for the Global Securities.
None of GWFC, the Share Depositary and any agent of GWFC or the Share
Depositary will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Security for such Depositary Receipts or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
DISCONTINUANCE OF THE DEPOSITARY'S SERVICES
A Global Security shall be exchangeable for Depositary Receipts registered in
the names of persons other than the Depositary or its nominee only if (i) the
depositary notifies GWFC that it is unwilling or unable to continue as a
depositary for such Global Security and no successor depositary shall have been
appointed, (ii) the Depositary at any time, ceases to be so registered to act
as such depositary and no successor Depositary shall have been appointed, or
(iii) GWFC, in its sole discretion, determines that such Global Security shall
be so exchangeable. Any Global Security that is exchangeable pursuant to the
preceding sentence shall be exchangeable for Depositary Receipts registered in
such names as the Depositary shall direct. It is expected that such
instructions will be based upon directions received by the Depositary from its
Participants with respect to ownership of beneficial interests in such Global
Security.
DESCRIPTION OF CUMULATIVE PREFERRED STOCK
The following description of the particular terms of the shares of %
Cumulative Preferred Stock supplements the information set forth under the
heading "Description of Preferred Stock" in the accompanying Prospectus, to
which description reference is hereby made. The description of certain
provisions of the Preferred Stock set forth below does not purport to be
complete and is subject to and qualified in its entirety by reference to the
Certificate of Designations relating to the Preferred Stock which will be filed
with the Securities and Exchange Commission at or prior to the time of the
issuance of the Depositary Shares.
RANK
The Preferred Stock will rank on a parity as to payment of dividends and
distribution of assets upon dissolution, liquidation or winding up of GWFC with
each other outstanding series of the preferred stock of GWFC. The Preferred
Stock will rank prior to the Common Stock, $1.00 par value per share, of GWFC
(the "Common Stock") as to the payment of dividends and distribution of assets
upon dissolution, liquidation or winding up of GWFC. As of June 30, 1995, the
only shares of preferred stock of GWFC outstanding were 517,500 shares of
GWFC's 8 3/4% Cumulative Convertible Preferred Stock (the "Convertible
Preferred") and 660,000 shares of GWFC's 8.30% Cumulative Preferred Stock (the
"Cumulative Preferred"). The Convertible Preferred is subject to redemption, in
whole or in part, at the option of GWFC at $260.9375 per share during the
period from May 1, 1996 through April 30, 1997 and at decreasing prices
thereafter to $250 per share, in each case plus accrued and unpaid dividends to
the redemption date. The Convertible Preferred is convertible at any time into
Common Stock at a conversion rate of 12.255 shares of Common Stock for each
share of Convertible Preferred. The Cumulative Preferred is subject to
redemption in whole or in part, at any time on or after November 1, 1997, at
$250 per share plus accrued and unpaid dividends to the redemption date.
See "Description of Common Stock--Rights" in the accompanying Prospectus for
a description of GWFC's Series A Junior Participating Preferred Stock, none of
which is outstanding as of the date of this Prospectus Supplement. The
Preferred Stock will rank prior to such Series A Preferred Stock as to both the
payment of dividends and any distribution of assets upon dissolution,
liquidation or winding up of GWFC.
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DIVIDENDS
Holders of shares of the Preferred Stock will be entitled to receive, when,
as and if declared by the Board of Directors of GWFC out of funds of GWFC
legally available for payment, cash dividends at the rate of % per annum
(equivalent to $ per Depositary Share). Dividends on the Preferred Stock
will be payable quarterly on February 1, May 1, August 1 and November 1 of each
year (each a "Dividend Payment Date"), commencing on the first Dividend Payment
Date following the issuance of the Preferred Stock, at such annual rate. Each
dividend will be payable to holders of record as they appear on the stock books
of GWFC (or, if applicable, the records of the Depositary) on such record
dates, not exceeding 45 days preceding the payment dates thereof, as shall be
fixed by the Board of Directors of GWFC. Dividends will be cumulative from the
date of original issue. Dividends payable on the Preferred Stock for any period
greater or less than a full dividend period shall be computed on the basis of a
360-day year consisting of twelve 30-day months. Dividends payable on the
Preferred Stock for each full dividend period shall be computed by dividing the
annual dividend rate by four.
REDEMPTION
Except as noted below, shares of the Preferred Stock will not be redeemable
prior to , 2000. The shares of the Preferred Stock will be redeemable at
the option of GWFC, in whole or in part, at any time or from time to time, on
or after such date, on not less than 30 nor more than 60 days notice by mail,
at a redemption price of $250 per share (equivalent to $25 per Depositary
Share) plus accrued and unpaid dividends to the redemption date (the "Share
Redemption Price"). In addition, during a period of 90 days after the
occurrence of a Regulatory Redemption Event, GWFC may elect to redeem the
shares of Preferred Stock in whole on not less than 30 nor more than 60 days
notice by mail, at the Share Redemption Price. Under certain circumstances, the
redemption of the Preferred Stock may require the prior consent of GWFC's then
banking supervisory authority.
The Preferred Stock will not be subject to any sinking fund or other
obligation of GWFC to redeem or retire the Preferred Stock.
LIQUIDATION RIGHTS
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of GWFC, the holders of shares of Preferred Stock are entitled to
receive out of assets of GWFC available for distribution to stockholders,
before any distribution of assets is made to holders of Common Stock or of any
other shares of stock of GWFC ranking as to such a distribution junior to the
shares of Preferred Stock, liquidating distributions in the amount of $250 per
share (equivalent to $25 per Depositary Share) plus accrued and unpaid
dividends. After payment of such liquidating distributions, the holders of
shares of Preferred Stock will not be entitled to any further participation in
any distribution of assets by GWFC.
VOTING RIGHTS
Except as indicated below and under "Description of Preferred Stock--Voting
Rights" in the accompanying Prospectus, or except as expressly required by
applicable law, the holders of the Preferred Stock will not be entitled to vote
for any purpose.
If the equivalent of six quarterly dividends payable on the Preferred Stock
are in arrears, the number of directors of GWFC will be increased by two and
the holders of Preferred Stock, voting separately as a class with the holders
of shares of any one or more other series of preferred stock ranking on a
parity with the Preferred Stock as to payment of dividends and the distribution
of assets upon liquidation, dissolution or winding up of GWFC and upon which
like voting rights have been conferred and are exercisable, will be entitled to
elect two directors to fill such vacancies. Such right to elect two additional
directors shall continue until all dividends in arrears have been paid or
declared and set apart for payment. Each director elected by the holders of
shares of the Preferred Stock and all other classes of preferred stock whose
holders are so entitled to vote shall continue to serve as such director for
the full term for which he shall have been elected, notwithstanding that prior
to the end of such term such default shall cease to exist.
S-30
<PAGE>
CONVERSION RIGHTS
Shares of the Preferred Stock will not be convertible into shares of any
other class or series of the capital stock of GWFC.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
GENERAL
The following summary of certain United States federal income tax
consequences of the purchase, ownership and disposition of the Preferred
Securities is based upon laws, regulations, rulings and decisions now in
effect, all of which are subject to change (with possible retroactive effect)
and possible differing interpretations. This discussion deals only with
Preferred Securities held as capital assets and does not purport to deal with
persons in special tax situations, such as financial institutions, insurance
companies, regulated investment companies, dealers in securities or currencies,
persons holding Preferred Securities as a hedge against currency risks or as a
position in a "straddle" for tax purposes or as part of a "conversion
transaction," or persons whose functional currency is not the United States
dollar. This discussion also does not deal with holders other than the original
purchasers of the Preferred Securities or with holders who are not U.S. Holders
(as defined below). Persons considering the purchase of the Preferred
Securities should consult their tax advisors concerning the application of
United States federal income tax laws to their particular situations as well as
any consequences of the purchase, ownership and disposition of the Preferred
Securities arising under the laws of any other taxing jurisdiction.
As used herein, the term "U.S. Holder" means a beneficial owner of a
Preferred Security that is for United States federal income tax purposes (i) a
citizen or resident of the United States, (ii) a corporation, partnership or
other entity created or organized in or under the laws of the United States or
of any political subdivision thereof, (iii) an estate or trust the income of
which is subject to United States federal income taxation regardless of its
source, or (iv) any other person whose income or gain in respect of a Preferred
Security is effectively connected with the conduct of a United States trade or
business. As used herein, the term "non-U.S. Holder" means a holder of a
Preferred Security that is not a U.S. Holder.
CLASSIFICATION OF THE TRUST
In connection with the issuance of the Preferred Securities, O'Melveny &
Myers, counsel to GWFC and the Trust, has rendered its opinion to the effect
that, under then current law and assuming full compliance with the terms of the
Declaration and the Subordinated Indenture (and certain other documents), and
based on certain facts and assumptions contained in such opinion, the Trust
will be classified for United States federal income tax purposes as a grantor
trust and not as an association taxable as a corporation. Accordingly, for
United States federal income tax purposes, each U.S. Holder of a Preferred
Security generally will be considered the owner of an undivided interest in the
Subordinated Notes, and each U.S. Holder will be required to include in its
gross income the original issue discount (as described below) accrued with
respect to its undivided interest in those Subordinated Notes. Investors should
be aware that the opinion of O'Melveny & Myers does not address any other issue
and is not binding on the Internal Revenue Service.
CLASSIFICATION OF THE SUBORDINATED NOTES
GWFC intends to take the position that the Subordinated Notes will be
classified for United States federal income tax purposes as indebtedness. No
assurance can be given that such position will not be challenged by the
Internal Revenue Service or, if challenged, that such a challenge will not be
successful. By acceptance of a Preferred Security, each holder covenants to
treat the Subordinated Notes as indebtedness and the Preferred Securities as
evidence of an indirect beneficial ownership in the Subordinated Notes. The
remainder of this discussion assumes that the Subordinated Notes will be
classified for United States federal income tax purposes as indebtedness of
GWFC.
S-31
<PAGE>
ORIGINAL ISSUE DISCOUNT
Because GWFC has the option, under the terms of the Subordinated Notes, to
defer payments of interest by extending interest payment periods for up to 20
quarters, all of the stated interest payments on the Subordinated Notes will be
treated as original issue discount ("OID"). U.S. Holders of debt instruments
issued with OID may be required to include that discount in income on an
economic accrual basis before the receipt of cash attributable to the interest,
regardless of their method of tax accounting. Generally, all of a U.S. Holder's
taxable interest income with respect to the Subordinated Notes will accrue as
OID, and actual distributions of stated interest will not be separately
reported as taxable income. The amount of OID that accrues for any quarter will
approximately equal the amount of the interest that accrues on the Subordinated
Notes in that quarter at the stated interest rate. In the event that the
interest payment period is extended, U.S. Holders will continue to accrue OID
approximately equal to the amount of the interest payment due at the end of the
extended interest payment period, even though no payments of stated interest
are being made.
Corporate U.S. Holders of Preferred Securities will not be entitled to a
dividends received deduction with respect to any income recognized with respect
to the Preferred Securities.
MARKET DISCOUNT AND BOND PREMIUM
U.S. Holders of Preferred Securities, other than U.S. Holders who purchased
the Preferred Securities for a price equal to their par amount plus accrued
interest upon their original issuance, may be considered to have acquired their
undivided interests in the Subordinated Notes at a market discount, premium or
acquisition premium as such phrases are defined for United States federal
income tax purposes. Such U.S. Holders are advised to consult their tax
advisors as to the income tax consequences of the acquisition, ownership and
disposition of the Preferred Securities.
RECEIPT OF SUBORDINATED NOTES OR CASH UPON LIQUIDATION OF THE TRUST
Under certain circumstances, as described under the caption "Description of
the Offered Preferred Securities--Special Event Redemption or Distribution,"
Subordinated Notes may be distributed to U.S. Holders in exchange for the
Preferred Securities and in liquidation of the Trust. Under current law, such a
distribution, for United States federal income tax purposes, would be treated
as a non-taxable event to each U.S. Holder, and each U.S. Holder would receive
an aggregate tax basis in the Subordinated Notes equal to such U.S. Holder's
aggregate tax basis in its Preferred Securities. A U.S. Holder's holding period
in the Subordinated Notes so received in liquidation of the Trust would include
the period during which the Preferred Securities were held by such U.S. Holder.
Under certain circumstances described herein (see "Description of the Offered
Preferred Securities"), the Subordinated Notes may be redeemed for cash and the
proceeds of such redemption distributed to U.S. Holders in redemption of their
Preferred Securities. Under current law, such a redemption would, for United
States federal income tax purposes, constitute a taxable disposition of the
redeemed Preferred Securities, and a U.S. Holder would recognize gain or loss
as if it sold such redeemed Preferred Securities for cash. See "Sales of
Preferred Securities" below.
ADJUSTED SUBORDINATED NOTES AND CONVERSION TO DEPOSITARY SHARES
Under certain circumstances, as described under the caption "Description of
the Offered Preferred Securities--Regulatory Event Distribution or Conversion,"
GWFC has the election to reduce the annual interest rate on the Subordinated
Notes by 50 basis points, thereby creating Adjusted Subordinated Notes. If GWFC
elects to lower the annual interest rate, the Adjusted Subordinated Notes will
be converted into Depositary Shares unless the holder thereof elects to retain
the Adjusted Subordinated Notes. The Trust will then be dissolved and the
Adjusted Subordinated Notes and/or the Depositary Shares, as the case may be,
will be distributed to the holders of Trust Securities.
S-32
<PAGE>
A U.S. Holder that either receives Adjusted Subordinated Notes or Depositary
Shares should not recognize gain or loss for U.S. federal income tax purposes
at that time. No direct authority exists that describes the treatment of the
reduction in interest rate or the operation of the conversion right in a
context identical to those presented by the Subordinated Notes. The Treasury
Department has issued proposed regulations under Section 1001 of the Internal
Revenue Code which discuss the circumstances under which the change in the
terms of an instrument cause such change to be treated as an exchange of
instruments. If the Internal Revenue Service claims that the interest rate
reduction or the conversion constitutes an exchange of the Subordinated Notes
for Adjusted Subordinated Notes or Depositary Shares, any gain or loss on such
deemed sale or exchange would not be recognized at that time because the
exchange would constitute a reorganization under Section 368(a)(1)(E) of the
Internal Revenue Code, as long as the remaining term of the Subordinated Notes
is at least 10 years. Assuming that either the adjustment and conversion does
not cause an exchange or they cause an exchange which results in a
reorganization, (i) the tax basis of Adjusted Subordinated Notes or Depositary
Shares received by an owner of Preferred Securities will, upon receipt, equal
the aggregate tax basis of such owner in such Preferred Securities and (ii) the
holding period for the Adjusted Subordinated Notes or Depositary Shares in the
hands of an owner of Preferred Securities will include the period during which
such person owned such Preferred Securities.
DEPOSITARY SHARES
Owners of the Depositary Shares, if issued, will be treated for United States
federal income tax purposes as if they were owners of the Preferred Stock
represented by such Depositary Shares and, accordingly, will be entitled to
take into account for United States federal income tax purposes income and
deductions to which they would be entitled if they were holders of such
Preferred Stock. The dividends on the Depositary Shares qualify as dividends
for purposes of the dividends received deduction. In addition, (i) no gain or
loss will be recognized for United States federal income tax purposes upon the
withdrawal of Preferred Stock in exchange for Depositary Shares as provided in
the Deposit Agreement, (ii) the tax basis of each share of Preferred Stock to
an exchanging owner of Depositary Shares will, upon such exchange, be the same
as the aggregate tax basis of the Depositary Shares exchanged therefor, and
(iii) the holding period for shares of the Preferred Stock in the hands of an
exchanging owner of Depositary Shares will include the period during which such
person owned such Depositary Shares.
SALES OF PREFERRED SECURITIES
A U.S. Holder that sells a Preferred Security will recognize gain or loss
equal to the difference between its adjusted tax basis in the Preferred
Securities and the amount realized on the sale of such Preferred Securities. A
U.S. Holder's adjusted tax basis in the Preferred Securities generally will be
its initial purchase price increased by the amount of OID previously includible
in such U.S. Holder's gross income to the date of disposition and decreased by
the amount of payments received on the Preferred Securities (whether
denominated as interest or principal). Such gain or loss generally will be a
capital gain or loss and generally will be a long-term capital gain or loss if
the Preferred Securities have been held for more than one year.
NON-U.S. HOLDERS
This discussion does not address the United States federal income tax
consequences of the acquisition, ownership or distribution of a Preferred
Security by a Non-U.S. Holder. Non-U.S. Holders should consult their tax
advisors concerning these matters.
INFORMATION REPORTING TO U.S. HOLDERS
Income on the Preferred Securities will be reported to U.S. Holders on Forms
1099, which forms should be mailed to U.S. Holders of Preferred Securities by
January 31 following each calendar year.
BACKUP WITHHOLDING
Backup withholding of the United States federal income tax at a rate of 31%
may apply to payments made in respect of Subordinated Notes to registered
owners who are not "exempt recipients" or who fail to comply with certain
procedures for providing certain identifying information (such as the
registered owner's taxpayer identification number) in the required manner.
S-33
<PAGE>
Upon the sale of Subordinated Notes to (or through) certain brokers, the
broker must withhold 31% of the entire purchase price, unless either (i) the
broker determines that the seller is an exempt recipient or (ii) the seller
provides, in the required manner, certain identifying information.
Any amounts withheld under the backup withholding rules from a payment to a
beneficial owner would be allowed as a refund or a credit against such
beneficial owner's United States federal income tax provided the required
information is furnished to the Internal Revenue Service.
THE FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A HOLDER'S PARTICULAR
SITUATION. HOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE TAX
CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE
PREFERRED SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL,
FOREIGN AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN FEDERAL OR
OTHER TAX LAWS.
UNDERWRITING
Subject to the terms and conditions set forth in an underwriting agreement
(the "Underwriting Agreement"), the Trust has agreed to sell to each of the
Underwriters named below, and each of the Underwriters, for whom Merrill Lynch,
Pierce, Fenner & Smith Incorporated and Goldman, Sachs & Co. are acting as
representatives (the "Representatives"), has severally agreed to purchase the
number of Preferred Securities set forth opposite its name below. In the
Underwriting Agreement, the several Underwriters have agreed, subject to the
terms and conditions set forth therein, to purchase all the Preferred
Securities offered hereby if any of the Preferred Securities are purchased. In
the event of default by an Underwriter, the Underwriting Agreement provides
that, in certain circumstances, the purchase commitments of the nondefaulting
Underwriters may be increased or the Underwriting Agreement may be terminated.
<TABLE>
<CAPTION>
NUMBER OF
UNDERWRITERS PREFERRED SECURITIES
------------ --------------------
<S> <C>
Merrill Lynch, Pierce, Fenner & Smith
Incorporated.............................
Goldman, Sachs & Co..................................
-----
Total.................................... [ ]
=====
</TABLE>
The Underwriters propose to offer the Preferred Securities, in part, directly
to the public at the initial public offering price set forth on the cover page
of this Prospectus Supplement, and, in part, to certain securities dealers at
such price less a concession of $ per Preferred Security. The Underwriters
may allow, and such dealers may reallow, a concession not in excess of $ per
Preferred Security to certain brokers and dealers. After the Preferred
Securities are released for sale to the public, the offering price and other
selling terms may from time to time be varied by the Representatives.
In view of the fact that the proceeds of the sale of the Preferred Securities
will ultimately be used to purchase the Subordinated Notes of GWFC, the
Underwriting Agreement provides that GWFC will pay as compensation
("Underwriters' Compensation") to the Underwriters' arranging the investment
therein of such proceeds, an amount in New York Clearing House (next day) funds
of $ per Preferred Security (or $ in the aggregate) for the accounts of
the several Underwriters; provided that, such compensation for sales of 10,000
or more Preferred Securities to any single purchaser will be $ per Preferred
Security. Therefore, to the extent of such sales, the actual amount of
Underwriters Compensation will be less than the aggregate amount specified in
the preceding sentence.
S-34
<PAGE>
During a period of 30 days from the date of the Prospectus Supplement,
neither GWFC nor the Trust will, without the prior written consent of the
Underwriters, directly or indirectly, sell, offer to sell, grant any option for
the sale of, or otherwise dispose of, any Preferred Securities, any security
convertible into or exchangeable into or exercisable for Preferred Securities
or Subordinated Notes or any debt securities substantially similar to the
Subordinated Notes or equity securities substantially similar to the Preferred
Securities (except for the Subordinated Notes and the Preferred Securities
offered hereby).
The Preferred Securities have been approved for listing on the New York Stock
Exchange. Trading of the Preferred Securities on the New York Stock Exchange is
expected to commence within a 30-day period after the initial delivery of the
Preferred Securities. The Representatives have advised the Trust that they
intend to make a market in the Preferred Securities prior to the commencement
of trading on the New York Stock Exchange. The Representatives will have no
obligation to make a market in the Preferred Securities, however, and may cease
market making activities, if commenced, at any time.
Prior to this offering there has been no public market for the Preferred
Securities. In order to meet one of the requirements for listing the Preferred
Securities on the New York Stock Exchange, the Underwriters will undertake to
sell lots of 100 or more Preferred Securities to a minimum of 400 beneficial
holders.
The Trust and GWFC have agreed to indemnify the Underwriters against, or
contribute to payments that the Underwriters may be required to make in respect
of, certain liabilities, including liabilities under the Securities Act of
1933, as amended.
Certain of the Underwriters engage in transactions with, and, from time to
time, have performed services for, GWFC and its subsidiaries in the ordinary
course of business.
LEGAL MATTERS
The validity of the Preferred Securities will be passed upon by Skadden,
Arps, Slate, Meager & Flom, special counsel to the Trust. The validity of the
Subordinated Notes, the Guarantee, the Depositary Shares and the Preferred
Stock and certain matters relating thereto will be passed upon for GWFC by
O'Melveny & Myers. Brown & Wood will act as counsel to the Underwriters.
S-35
<PAGE>
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NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR IN-
CORPORATED BY REFERENCE IN THIS PROSPECTUS SUPPLEMENT OR THE ACCOMPANYING PRO-
SPECTUS IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS SUPPLEMENT AND,
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON
AS HAVING BEEN AUTHORIZED BY GREAT WESTERN FINANCIAL CORPORATION, GREAT WEST-
ERN FINANCIAL TRUST I OR THE UNDERWRITERS. NEITHER THE DELIVERY OF THIS PRO-
SPECTUS SUPPLEMENT OR THE ACCOMPANYING PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL UNDER ANY CIRCUMSTANCE CREATE AN IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF GREAT WESTERN FINANCIAL CORPORATION OR GREAT WESTERN
FINANCIAL TRUST I SINCE THE DATE HEREOF. THIS PROSPECTUS SUPPLEMENT AND THE
ACCOMPANYING PROSPECTUS DO NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE
IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH
THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO
ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
---------------
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Risk Factors.............................................................. S-4
Recent Financial Results.................................................. S-8
Capitalization of GWFC.................................................... S-9
Accounting Treatment...................................................... S-9
Use of Proceeds........................................................... S-9
Description of the Offered Preferred Securities........................... S-9
Description of the Subordinated Notes..................................... S-21
Effect of Obligations Under the Subordinated Notes and the Guarantee...... S-27
Description of Depositary Shares.......................................... S-27
Description of Cumulative Preferred Stock................................. S-29
Certain Federal Income Tax Consequences................................... S-31
Underwriting.............................................................. S-34
Legal Matters............................................................. S-35
</TABLE>
PROSPECTUS
<TABLE>
<S> <C>
Available Information..................................................... 2
Incorporation of Certain Documents by Reference........................... 2
The Company............................................................... 4
The Trust................................................................. 4
Use of Proceeds........................................................... 5
Selected Financial Data................................................... 6
Ratio of Earnings to Fixed Charges........................................ 7
Description of Debt Securities............................................ 7
Description of Preferred Stock............................................ 13
Description of Depositary Shares.......................................... 18
Description of Common Stock............................................... 21
Description of Preferred Securities....................................... 22
Description of Guarantee.................................................. 23
Description of Securities Warrants........................................ 25
Plan of Distribution...................................................... 29
Experts................................................................... 29
</TABLE>
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[ ]
PREFERRED SECURITIES
GREAT WESTERN FINANCIAL TRUST I
% TRUST ORIGINATED
PREFERRED SECURITIES ("TOPrS")(SM)
GUARANTEED TO THE EXTENT SET
FORTH HEREIN BY
GREAT WESTERN FINANCIAL CORPORATION
----------------------
PROSPECTUS SUPPLEMENT
----------------------
MERRILL LYNCH & CO.
GOLDMAN, SACHS & CO.
, 1995
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