<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 13, 1997
REGISTRATION NO. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
<TABLE>
<CAPTION>
<S> <C> <C>
GREAT WESTERN FINANCIAL
CORPORATION DELAWARE 95-1913457
GREAT WESTERN FINANCIAL TRUST II
GREAT WESTERN FINANCIAL TRUST III DELAWARE APPLIED FOR
(EXACT NAME OF REGISTRANT (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
AS 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 II........ (1)(6) NA
- -------------------------------------------------------------------------------
Guarantee of Preferred Securities of
Great Western Financial Trust II.. (1)(7) NA
- -------------------------------------------------------------------------------
Preferred Securities of Great
Western Financial Trust III....... (1)(8) NA
- -------------------------------------------------------------------------------
Guarantee of Preferred Securities of
Great Western Financial
Trust III......................... (1)(9) NA
- -------------------------------------------------------------------------------
Securities Warrants................ (1)(10) NA
- -------------------------------------------------------------------------------
Total.............................. $650,330,000 $100(11)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
</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 $650,330,000 (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 $650,330,000 (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 II or Great Western Financial Trust III, 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 II or Great Western Financial Trust III, as the case may be.
(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 II.
(7) Includes the rights of holders of the Preferred Securities of Great
Western Financial Trust II under its Guarantee and the obligations of GWFC
with respect to such Preferred Securities under the Amended and Restated
Declaration of Trust included herein as Exhibit 4.15 and the Third
Supplemental Indenture included herein as Exhibit 4.13. No separate
consideration will be received for such Guarantee.
(8) 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 III.
(9) Includes the rights of holders of the Preferred Securities of Great
Western Financial Trust III under its Guarantee and the obligations of
GWFC with respect to such Preferred Securities under the Amended and
Restated Declaration of Trust to be included herein as Exhibit 4.18 and
the Fourth Supplemental Indenture to be included herein as Exhibit 4.21.
No separate consideration will be received for such Guarantee.
(10) 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.
(11) Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933, as amended. Includes $650,000,000 aggregate
amount of Securities which were previously registered under Great Western
Financial Corporation's Registration Statements on Form S-3 (Registration
Nos. 33-60206 and 33-63057). The registration statement fee specified in
the table has been computed on the basis of $330,000 aggregate amount of
Securities registered hereby, prior to including the previously
registered and unsold Securities referred to above.
THIS REGISTRATION STATEMENT INCLUDES $650,000,000 AGGREGATE AMOUNT OF
SECURITIES WHICH WERE PREVIOUSLY REGISTERED UNDER GREAT WESTERN FINANCIAL
CORPORATION'S REGISTRATION STATEMENTS ON FORM S-3 (33-60206 AND 33-63057) 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. GREAT WESTERN FINANCIAL TRUST I WAS A
REGISTRANT UNDER REGISTRATION STATEMENT NO. 33-63057. NO ADDITIONAL SECURITIES
WILL BE SOLD BY GREAT WESTERN FINANCIAL TRUST I UNDER THAT REGISTRATION
STATEMENT.
<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 JANUARY 13, 1997
PROSPECTUS
[LOGO of GREAT WESTERN FINANCIAL CORPORATION]
GREAT WESTERN FINANCIAL TRUST II
GREAT WESTERN FINANCIAL TRUST III
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"), Depositary Shares
(as defined below), warrants to purchase Depositary Shares (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 II and Great Western Financial Trust III (each
referred to herein individually as the "Trust") may offer preferred securities
representing undivided beneficial interests in the assets of the Trust (the
"Preferred Securities"). The payment of periodic cash distributions with
respect to the Preferred Securities out of moneys held by the Trust and
payments on liquidation, redemption or otherwise with respect to the Preferred
Securities, will be guaranteed by the Company to the extent described herein
(the "Guarantee"). The Senior Debt Securities, the Subordinated Debt
Securities, the Preferred Stock, the Common Stock, the Securities Warrants, the
Preferred Securities and the Guarantee are collectively referred to herein as
the "Securities." Securities will have an aggregate offering price of
$650,330,000 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.
, 1997
<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, as amended (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 or may be
examined without charge at the offices of the Commission, or accessed through
the Commission's Internet address at http://www.sec.gov. 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) taken
together, the obligations of the Company under the Declaration, the Guarantee,
the Subordinated Indenture and the Subordinated Debt Securities (each as
defined herein) provide a full, irrevocable and unconditional guarantee of the
obligations of the Trust under the Trust Securities (as defined herein) on a
subordinated basis. 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, as amended, 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, 1995; (2) Quarterly Reports on Form 10-Q for
the quarters ended March 31, 1996, June 30, 1996 and September 30, 1996;
(3) Current Report on Form 8-K, event date December 2, 1996 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 contained
2
<PAGE>
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 416 offices
located primarily in California and Florida. Real estate lending operations
are conducted directly by GWB or by direct subsidiaries through approximately
225 offices in 27 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 506 offices in 24 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 September 30, 1996, the Company had
consolidated total assets of approximately $43.5 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 (including, as applicable, any amendments
thereto, 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 January , 1997. 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
4
<PAGE>
Securities"), (ii) investing the 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. At least one 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 and surplus 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 First Chicago Delaware Inc., 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 Trust 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,
-----------------------------------------------------------
1995 1994 1993 1992 1991
----------- ----------- ----------- ----------- -----------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE)
<S> <C> <C> <C> <C> <C>
SUMMARY OF OPERATIONS
Interest income......... $ 3,238,711 $ 2,629,718 $ 2,680,784 $ 3,091,093 $ 3,718,796
Interest expense........ 1,936,582 1,307,448 1,297,930 1,668,731 2,453,540
----------- ----------- ----------- ----------- -----------
Net interest income..... 1,302,129 1,322,270 1,382,854 1,422,362 1,265,256
Provision for loan
losses................. 187,700 207,200 463,000 420,000 149,900
----------- ----------- ----------- ----------- -----------
Net interest income
after provision for
loan losses............ 1,114,429 1,115,070 919,854 1,002,362 1,115,356
Other income............ 327,668 367,897 327,855 282,131 257,582
Noninterest expense..... 1,019,975 1,076,433 1,155,662 1,188,981 867,508
----------- ----------- ----------- ----------- -----------
Earnings before taxes on
income................. 422,122 406,534 92,047 95,512 505,430
Federal and state taxes
on income.............. 161,100 155,300 30,000 41,600 207,300
Accounting changes...... -- -- -- 31,094 --
----------- ----------- ----------- ----------- -----------
Net earnings............ $ 261,022 $ 251,234 $ 62,047 $ 85,006 $ 298,130
=========== =========== =========== =========== ===========
SUMMARY OF FINANCIAL
CONDITION
Cash and securities..... $ 2,186,876 $ 2,065,660 $ 1,846,780 $ 1,660,485 $ 1,397,529
Loans receivable and
mortgage-backed
securities............. 39,690,790 37,647,975 33,850,799 33,752,661 35,115,730
Real estate............. 217,112 256,967 434,077 1,153,383 1,123,043
Other assets............ 2,491,986 2,247,655 2,216,704 1,872,657 1,963,326
----------- ----------- ----------- ----------- -----------
Total assets............ $44,586,764 $42,218,257 $38,348,360 $38,439,186 $39,599,628
=========== =========== =========== =========== ===========
Deposits................ $29,234,928 $28,700,947 $31,531,563 $30,908,665 $30,570,368
Borrowings and
debentures............. 11,345,634 10,120,660 3,479,341 4,151,052 5,592,453
Other liabilities....... 1,083,726 912,864 914,055 929,735 1,115,747
Company-obligated
mandatorily redeemable
preferred securities of
the Company's
subsidiary trust,
holding solely
$103,092,800 aggregate
principal amount of
8.25% subordinated
deferrable interest
notes, due 2025, of the
Company................ 100,000 -- -- -- --
Stockholders' equity.... 2,822,476 2,483,786 2,423,401 2,449,734 2,321,060
----------- ----------- ----------- ----------- -----------
Total liabilities and
equity................. $44,586,764 $42,218,257 $38,348,360 $38,439,186 $39,599,628
=========== =========== =========== =========== ===========
PER COMMON SHARE DATA
Fully diluted earnings
....................... $ 1.71 $ 1.69 $ .28 $ .53 $ 2.24
Dividends............... .92 .92 .92 .91 .87
</TABLE>
6
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges and
the ratio of earnings to fixed charges and preferred stock dividends 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 deposits, 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 deposits, represent all
interest expense (including capitalized interest) and one-third of rents.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------
1995 1994 1993 1992 1991
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges:
Excluding interest on deposits..................... 1.56 2.05 1.23 1.26 1.96
Including interest on deposits..................... 1.21 1.30 1.07 1.05 1.20
Ratio of earnings to fixed charges and preferred
stock dividends:
Excluding interest on deposits..................... 1.48 1.85 1.13 1.17 1.92
Including interest on deposits..................... 1.19 1.27 1.04 1.04 1.19
</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 and a Second Supplemental Indenture, dated December 6, 1995 (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 summaries of the material general 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
material general terms and provisions of the Debt Securities. Further material
terms of the Offered Debt Securities will be summarized in the Prospectus
Supplement relating thereto.
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
7
<PAGE>
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 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.
8
<PAGE>
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 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.
The Prospectus Supplement relating to an issue of Subordinated Debt
Securities will set forth the aggregate amount of outstanding indebtedness as
of the most recent practicable date that by the terms of such Subordinated
Debt Securities will be senior to the Subordinated Debt Securities. The
Prospectus Supplement will also describe any limitations on the issuance of
additional Senior Indebtedness.
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.
9
<PAGE>
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 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, or 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.
10
<PAGE>
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 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
11
<PAGE>
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 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, the foregoing 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.
If Subordinated Debt Securities are issued to the Trust or a Trustee of the
Trust in connection with the issuance of Trust Securities, (i) the aggregate
principal amount of the Subordinated Debt Securities 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 Debt Securities will match
the distribution rate and distribution and other payment dates on the Trust
Securities; and (iii) the Company will agree to pay all costs, expenses, debts
and obligations of the Trust other than with respect to the Trust Securities.
If Subordinated Debt Securities are issued to the Trust or a Trustee of the
Trust in connection with the issuance of Trust Securities and an Event of
Default with respect to the Subordinated Debt Securities, constituting the
failure to pay interest or principal on the Subordinated Debt Securities on
the date such interest or principal is otherwise payable, has occurred and is
continuing, then a holder of Trust Securities may directly institute a
proceeding for enforcement of payment to such holder directly of the principal
of or interest on the Subordinated Debt Securities having a principal amount
equal to the aggregate liquidation amount of the Trust Securities of such
holder on or after the respective due date specified in the Subordinated Debt
Securities. The holders of Trust Securities will not be able to exercise
directly any other remedy available to the holders of the Subordinated Debt
Securities unless the Trustee of the Trust fails to do so.
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.
12
<PAGE>
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 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.
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<PAGE>
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
material general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. Other material terms of any series of the
Preferred Stock offered by any Prospectus Supplement will be described in such
Prospectus Supplement. The description of the 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 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. Further material
provisions of the Preferred Stock will be summarized in the Prospectus
Supplement relating thereto.
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
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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 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
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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 Share 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 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.
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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
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
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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.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of the
material general 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. Further
material provisions of the Depositary Shares will be summarized in the
Prospectus Supplement relating thereto.
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 "Share 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 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 Share 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
Share 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 Share 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,
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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 Share 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 Share Depositary for
distribution to record holders of Depositary Receipts then outstanding.
In the event of a distribution other than in cash, the Share 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 Share Depositary determines that it is
not feasible to make such distribution, in which case the Share 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.
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 Share 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 Share Depositary resulting from the redemption, in
whole or in part, of such series of the Preferred Stock held by the Share
Depositary. The Share 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 Share
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 Share
Depositary, the Share 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 Share 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 Share 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 Share 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 Share 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 Share Depositary will
endeavor, insofar as practicable, to vote, or give
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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 Share Depositary
in order to enable the Share Depositary to do so. The Share 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 Share 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 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 Share 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 Share Depositary will forward to record holders of Depositary Receipts,
at their respective addresses appearing in the Share Depositary's books, all
reports and communications from the Company which are delivered to the Share
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 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.
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 Share 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
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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 SHARE DEPOSITARY
The Share 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
Share Depositary, any such resignation or removal to take effect upon the
appointment of a successor Share Depositary and its acceptance of such
appointment. Such successor Share Depositary must be appointed within 60 days
after delivery of the notice of resignation or removal.
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
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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.
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 of the material general provisions of the
Preferred Securities 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, which is filed as an exhibit to the Registration
Statement of which this Prospectus is a part, and the Trust Indenture Act.
Further material provisions of the Preferred Securities will be summarized in
the Prospectus Supplement relating thereto.
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 the 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 the 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 the 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 the Preferred Securities in addition to those required by law,
including the number of votes per Preferred Security and any requirement for
the
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approval by the holders of the 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 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 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 of the material general
provisions of the Guarantee 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. Further material
provisions of the Guarantee will be summarized in the Prospectus Supplement
relating thereto.
GENERAL
Pursuant to the Guarantee, the Company will irrevocably agree, to the extent
set forth therein, 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
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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 guarantee on a subordinated basis 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 obligations of the Company under the Declaration, the Guarantee, the
Subordinated Indenture and the Subordinated Debt Securities will collectively
provide a full, irrevocable and unconditional guarantee on a subordinated
basis by the Company of payments due on the Preferred Securities.
The Company has also agreed to irrevocably 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. Any
holder of Preferred Securities may institute a legal proceeding directly
against the Company to enforce its rights under the Guarantee, without first
instituting a legal proceeding against the Trust, the Guarantee Trustee or any
other person.
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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 the 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 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
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trust for or with any holders of Securities Warrant certificates or beneficial
owners of Securities Warrants. The following summaries of the material general
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 Securities Warrants.
Further material provisions of the Securities Warrants will be summarized in
the Prospectus Supplement relating thereto.
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 with which such Securities Warrants are being offered and the
number of such Securities Warrants being offered with each such Debt Security;
(iv) the date, if any, on and after which such Securities Warrants and the
related series of Debt Securities 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 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 share of Preferred Stock
or Depositary Share; (iv) the date, if any, on and after which such Securities
Warrants and the Common Stock or related series of Preferred Stock or
Depositary Shares 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.
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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, 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
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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.
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.
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.
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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, 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, 1995, 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.
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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.
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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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............................................. 14
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>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
$650,330,000
[LOGO of GREAT WESTERN FINANCIAL CORPORATION]
SECURITIES
----------------
PROSPECTUS
----------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Registration fee................................................... $ 100
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...................................................... 14,900
--------
Total............................................................ $600,000
========
</TABLE>
- --------
* 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>
*1.1 Forms of Underwriting Agreement.
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>
- --------
* To be filed by amendment or pursuant to a Form 8-K.
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 Second Supplemental Indenture, dated as of December 6, 1995, to
Indenture dated as of September 12, 1990, as amended, between the
Company and Harris Trust and Savings Bank (included as an exhibit to
the Company's Current Report on Form 8-K, dated December 14, 1995, and
incorporated herein by reference).
4.13 Form of Third Supplemental Indenture to Indenture, dated as of
September 12, 1990, as amended, between the Company and Harris Trust
and Savings Bank.
4.14 Declaration of Trust of Great Western Financial Trust II.
4.15 Form of Amended and Restated Declaration of Trust of Great Western
Financial Trust II.
4.16 Form of Preferred Security of Great Western Financial Trust II
(attached as Annex 1 to Exhibit A to the Form of Amended and Restated
Declaration of Trust included as Exhibit 4.15 hereto).
4.17 Form of Guarantee Agreement with respect to Preferred Securities of
Great Western Financial Trust II.
*4.18 Form of Amended and Restated Declaration of Trust of Great Western
Financial Trust III.
*4.19 Form of Preferred Security of Great Western Financial Trust III
(attached as Annex I to Exhibit A to the Form of Amended and Restated
Declaration of Trust included as Exhibit 4.18 hereto).
*4.20 Form of Guarantee Agreement with respect to Preferred Securities of
Great Western Financial Trust III.
*4.21 Form of Fourth Supplemental Indenture to Indenture, dated as of
September 12, 1990, as amended, between the Company and Harris Trust
and Savings Bank.
4.22 Declaration of Trust of Great Western Financial Trust III
5.1 Opinion of O'Melveny & Myers LLP as to the validity of the Securities
other than the Preferred Securities and the Guarantee with respect to
the Preferred Securities of Great Western Financial Trust III.
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom as to the validity of
the Preferred Securities of Great Western Financial Trust II.
*5.3 Opinion of O'Melveny & Myers LLP as to the validity of the Guarantee
with respect to the Preferred Securities of Great Western Financial
Trust III.
*5.4 Opinion of Skadden, Arps, Slate, Meagher & Flom as to the validity of
the Preferred Securities of Great Western Financial Trust III.
</TABLE>
- --------
* To be filed by amendment or pursuant to a Form 8-K.
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
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, 1995 and is included in the Company's
Quarterly Reports on Form 10-Q for the quarters ended March 31, 1996,
June 30, 1996 and September 30, 1996 and incorporated herein by
reference).
23.1 Consent of Price Waterhouse LLP
23.2 Consent of O'Melveny & Myers LLP (included in Exhibit 5.1).
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom (included in Exhibit
5.2).
*23.4 Consent of O'Melveny & Myers LLP (included in Exhibit 5.3).
*23.5 Consent of Skadden, Arps, Slate, Meagher & Flom (included in Exhibit
5.4).
24 Power of Attorney (included on pages II-5 and II-6).
*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 II.
25.4 Form T-1 Statement of Eligibility of The First National Bank of
Chicago with respect to the Guarantee with respect to the Preferred
Securities of Great Western Financial Trust II.
*25.5 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 III.
*25.6 Form T-1 Statement of Eligibility of The First National Bank of
Chicago with respect to the Guarantee with respect to the Preferred
Securities of Great Western Financial Trust III.
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:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(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 (notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) promulgated under the
Securities Act of 1933 if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table
in the effective Registration Statement);
(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;
II-3
<PAGE>
provided, however, that paragraph (1)(i) and (1)(ii) above shall not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference
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.
Each of the undersigned Registrants hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
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.
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-4
<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 January 13,
1997.
Great Western Financial Corporation
/s/ Carl F. Geuther
By __________________________________
CARL F. GEUTHER
VICE CHAIRMAN
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
John F. Maher, Carl F. Geuther, J. Lance Erikson and Stephen F. Adams, 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
/s/ John F. Maher President and Chief January 13, 1997
- ------------------------------------- Executive Officer
JOHN F. MAHER (Principal
Executive Officer)
and Director
/s/ Carl F. Geuther Vice Chairman and January 13, 1997
- ------------------------------------- Chief Financial
CARL F. GEUTHER Officer (Principal
Financial Officer)
/s/ Barry R. Barkley Senior Vice January 13, 1997
- ------------------------------------- President and
BARRY R. BARKLEY Controller (Chief
Accounting Officer)
Chairman and January , 1997
- ------------------------------------- Director
JAMES F. MONTGOMERY
Director January , 1997
- -------------------------------------
DR. DAVID ALEXANDER
/s/ H. Frederick Christie Director January 13, 1997
- -------------------------------------
H. FREDERICK CHRISTIE
II-5
<PAGE>
SIGNATURE TITLE DATE
/s/ Stephen E. Frank Director January 13, 1997
- -------------------------------------
STEPHEN E. FRANK
/s/ John V. Giovenco Director January 13, 1997
- -------------------------------------
JOHN V. GIOVENCO
/s/ Firmin A. Gryp Director January 13, 1997
- -------------------------------------
FIRMIN A. GRYP
/s/ Enrique Hernandez, Jr. Director January 13, 1997
- -------------------------------------
ENRIQUE HERNANDEZ, JR.
Director January , 1997
- -------------------------------------
CHARLES D. MILLER
Director January , 1997
- -------------------------------------
DR. ALBERTA E. SIEGEL
/s/ Willis B. Wood, Jr. Director January 13, 1997
- -------------------------------------
WILLIS B. WOOD, JR.
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
John F. Maher, Carl F. Geuther, J. Lance Erikson and Stephen F. Adams, 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, Great Western
Financial Trust II 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 13th
day of January, 1997.
Great Western Financial Trust II
By: /s/ Carl F. Geuther
_____________________________________
Carl F. Geuther, as Trustee
By: /s/ J. Lance Erikson
_____________________________________
J. Lance Erikson, as Trustee
By: /s/ Bruce F. Antenberg
_____________________________________
Bruce F. Antenberg, as Trustee
II-6
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
John F. Maher, Carl F. Geuther, J. Lance Erikson and Stephen F. Adams, 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, Great Western
Financial Trust III 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 13th day of January, 1997.
Great Western Financial Trust III
By: /s/ Carl F. Geuther
_____________________________________
Carl F. Geuther, as Trustee
By: /s/ J. Lance Erikson
_____________________________________
J. Lance Erikson, as Trustee
By: /s/ Bruce F. Antenberg
_____________________________________
Bruce F. Antenberg, as Trustee
II-7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF EXHIBIT PAGE
------- ---------------------- ------------
<C> <S> <C>
*1.1 Forms of Underwriting Agreement........................
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)...................................
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 Second Supplemental Indenture, dated as of December 6,
1995, to Indenture dated as of September 12, 1990, as
amended, between the Company and Harris Trust and
Savings Bank (included as an exhibit to the Company's
Current Report on Form 8-K, dated December 14, 1995,
and incorporated herein by reference)..................
4.13 Form of Third Supplemental Indenture to Indenture,
dated as of September 12, 1990, as amended, between the
Company and Harris Trust and Savings Bank..............
4.14 Declaration of Trust of Great Western Financial Trust
II.....................................................
4.15 Form of Amended and Restated Declaration of Trust of
Great Western Financial Trust II.......................
</TABLE>
- --------
* To be filed by amendment or pursuant to a Form 8-K.
<PAGE>
EXHIBIT INDEX--(CONTINUED)
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF EXHIBIT PAGE
------- ---------------------- ------------
<C> <S> <C>
4.16 Form of Preferred Security of Great Western Financial
Trust II (attached as Annex 1 to Exhibit A to the Form
of Amended and Restated Declaration of Trust included
as Exhibit 4.15 hereto)................................
4.17 Form of Guarantee Agreement with respect to Preferred
Securities of Great Western Financial Trust II.........
*4.18 Form of Amended and Restated Declaration of Trust of
Great Western Financial Trust III......................
*4.19 Form of Preferred Security of Great Western Financial
Trust III (attached as Annex I to Exhibit A to the Form
of Amended and Restated Declaration of Trust included
as Exhibit 4.18 hereto)................................
*4.20 Form of Guarantee Agreement with respect to Preferred
Securities of Great Western Financial Trust III........
*4.21 Form of Fourth Supplemental Indenture to Indenture,
dated as of September 12, 1990, as amended, between the
Company and Harris Trust and Savings Bank..............
4.22 Declaration of Trust of Great Western Financial Trust
III
5.1 Opinion of O'Melveny & Myers LLP as to the validity of
the Securities other than the Preferred Securities and
the Guarantee with respect to the Preferred Securities
of Great Western Financial Trust II....................
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom as to
the validity of the Preferred Securities of Great
Western Financial Trust II.............................
*5.3 Opinion of O'Melveny & Myers LLP as to the validity of
the Guarantee with respect to the Preferred Securities
of Great Western Financial Trust III...................
*5.4 Opinion of Skadden, Arps, Slate, Meagher & Flom as to
the validity of the Preferred Securities of Great
Western Financial Trust III............................
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,
1995 and is included in the Company's Quarterly Reports
on Form 10-Q for the quarters ended March 31, 1996,
June 30, 1996 and September 30, 1996 and incorporated
herein by reference)...................................
23.1 Consent of Price Waterhouse LLP........................
23.2 Consent of O'Melveny & Myers LLP (included in Exhibit
5.1)...................................................
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom
(included in Exhibit 5.2)..............................
*23.4 Consent of O'Melveny & Myers LLP (included in Exhibit
5.3)...................................................
*23.5 Consent of Skadden, Arps, Slate, Meagher & Flom
(included in Exhibit 5.4)..............................
24 Power of Attorney (included on pages II-5 and II-6)....
*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 II.....................................
</TABLE>
- --------
* To be filed by amendment or pursuant to a Form 8-K.
<PAGE>
EXHIBIT INDEX--(CONTINUED)
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION OF EXHIBIT PAGE
------- ---------------------- ------------
<C> <S> <C>
25.4 Form T-1 Statement of Eligibility of The First National
Bank of Chicago with respect to the Guarantee with
respect to the Preferred Securities of Great Western
Financial Trust II......................................
*25.5 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
III.....................................................
*25.6 Form T-1 Statement of Eligibility of The First National
Bank of Chicago with respect to the Guarantee with
respect to the Preferred Securities of Great Western
Financial Trust III.....................................
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.
<PAGE>
EXHIBIT 4.13
================================================================================
GREAT WESTERN FINANCIAL CORPORATION
TO
HARRIS TRUST AND SAVINGS BANK, as Trustee
THIRD SUPPLEMENTAL INDENTURE
dated as of January __, 1997
__% Subordinated Deferrable
Interest Notes Due 2027
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
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................................ 5
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. Optional Redemption by Company.................. 8
Section 3.3. Redemption Procedures........................... 8
Section 3.4. No Sinking Fund................................. 9
ARTICLE IV
Extension of Interest Payment Period....... 9
Section 4.1. Extension of Interest Payment Period............ 9
Section 4.2. Notice of Extension............................. 9
ARTICLE V
Expenses..................... 10
Section 5.1. Payment of Expenses............................. 10
ARTICLE VI
Subordination.................. 11
Section 6.1. Agreement to Subordinate........................ 11
ARTICLE VII
Covenants.................... 11
Section 7.1. Listing on an Exchange.......................... 11
Section 7.2. Limitation on Dividends; Transactions with
Affiliates...................................... 12
Section 7.3. Covenants as to the Trust....................... 12
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
ARTICLE VIII
Events of Default................ 13
<C> <S>............................................. <C>
Section 8.1. Events of Default............................... 13
Section 8.2. Waiver of Past Defaults......................... 13
ARTICLE IX
Form of Note................... 13
Section 9.1. Form of Note.................................... 13
ARTICLE X
Original Issue of Notes............. 20
Section 10.1. Original Issue of Notes......................... 20
ARTICLE XI
Miscellaneous.................. 20
Section 11.1. Ratification of Indenture....................... 20
Section 11.2. Trustee Not Responsible for Recitals............ 20
Section 11.3. Governing Law................................... 21
Section 11.4. Separability.................................... 21
Section 11.5. Counterparts.................................... 21
Section 11.6. Acknowledgement of Rights of Holders of
Preferred Securities............................ 21
Section 11.7. Supplemental Indentures......................... 21
</TABLE>
ii
<PAGE>
THIRD SUPPLEMENTAL INDENTURE, dated as of January __, 1997 (the "Third
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, and the Second Supplemental Indenture, dated as of December 6, 1995,
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 2027" (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 Third Supplemental
Indenture;
WHEREAS, Great Western Financial Trust II, a Delaware statutory business
trust (the "Trust"), has offered to the public $150 million aggregate
liquidation amount of its __% Preferred Securities, Series A (the "Preferred
Securities"), representing undivided beneficial interests in the assets of the
Trust and proposes to invest the proceeds from such offering in $150 million
aggregate principal amount of the Notes; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this Third Supplemental Indenture and all requirements necessary to make this
Third 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 Third 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:
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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
Third Supplemental Indenture;
(b) a term defined anywhere in this Third 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
Third 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 Security; (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 Trustee; (xii) Special Event; (xiii) Trust
Securities; (xiv) Tax Event; (xv) Underwriting Agreement; 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).
"Capital Treatment Event" means that the Company (or its successor) is,
becomes or pursuant to law or regulation will become within 180 days, subject to
the capital requirements under which all or a portion of the Preferred
Securities would not constitute Tier 1 Capital applied as if the Company (or its
successor)
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were a bank holding company (as that concept is used in the guidelines or
regulations issued by the Board of Governors of the Federal Reserve System as of
__________, 1977 or its then equivalent).
"Compounded Interest" has the meaning given such term in Section 4.1.
"Coupon Rate" has the meaning given such term in Section 2.5(a).
"Deferred Interest" means Additional Interest and Compounded Interest.
"Declaration" means the Amended and Restated Declaration of Trust of the
Trust dated January __, 1997.
"Dissolution Event" means that as a result of the occurrence and
continuation of a Special 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 March 31, 2046.
"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).
"Redemption Price," for purposes of the Notes, has the meaning given such
term in Section 3.1(b).
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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 March 31, 2027", limited in aggregate
principal amount to $___________, 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:
(i) March 31, 2027; or
(ii) if a Tax Event occurs which relates to the deductibility of
interest payable to the Company on the Notes, and if the
Redemption Tax Opinion states that the risk of non-deductibility
would be avoided if the maturity of the Notes were shortened,
then such date as specified by the Company by written notice to
the Trustee within ___ days after receipt of the Redemption Tax
Opinion, but in no event may the Company shorten the date of
maturity of the Notes to a date less than 19-1/2 years after the
date of initial issuance of the Notes; or
(iii) if the Company elects to extend the Maturity Date beyond
March 31, 2027 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
March 31, 2027, 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 March 31, 2027:
(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;
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(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 Ratings Group, Moody's Investors
Service, Inc., Fitch Investor Services, Inc., 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 March 31, 2027.
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.
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 Third 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
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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 Third 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.
(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
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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 premium, if
any, 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 Third Supplemental Indenture) quarterly in
arrears on March 31, June 30, September 30 and December 31 of each
year (each, an "Interest Payment Date", commencing on March 31, 1997),
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 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) 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
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immediately preceding Business Day, in each case with the same force
and effect as if made on such date.
(c) 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) the Regular Trustees shall have been informed by independent tax
counsel experienced in such matters that a No Recognition Opinion
cannot be delivered to the Trust, then 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 Interest
and Compounded Interest, if any (the "Redemption Price"), shall be
paid.
Section 3.2. Optional Redemption by Company.
------------------------------
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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
Third Supplemental Indenture, the Company shall have the right to redeem the
Notes, without premium or penalty, in whole or in part, from time to time, on or
after March 31, 2002, at the Redemption Price. In addition, at any time within
90 days after the occurrence and continuance of a Capital Treatment Event, the
Company shall have the right to redeem the Notes, in whole but not in part, at
the Redemption Price.
Section 3.3. 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 3.4. 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
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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
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.
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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, and in connection with the maintenance of the Trust for so long as the
Trust Securities are outstanding, the Company, in its capacity as borrower with
respect to the Notes, 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
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 Regular Trustees,
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 of 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
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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
COVENANTS
Section 7.1. Listing on an Exchange.
----------------------
In connection with the distribution of the Notes to the holders of the
Preferred Securities issued by the Trust upon a Dissolution Event, the Company
will use its best efforts to list such Notes on the New York Stock Exchange or
on such other exchange as the Preferred Securities are then listed.
Section 7.2. 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
of any 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 on, 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
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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.
Section 7.3. 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 VIII
EVENTS OF DEFAULT
Section 8.1. 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.
Section 8.2. Waiver of Past Defaults.
-----------------------
For the Notes only, any waiver pursuant to Section 513 of the Indenture or
any modification of such a waiver shall not be effective until the holders of a
majority in liquidation preference of Trust Securities shall have consented to
such waiver or modification to such waiver; provided, however, that if the
consent of the Holder of each Outstanding Debt Security is required, such waiver
shall not be effective until each holder of the Trust Securities shall have
consented to such waiver.
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ARTICLE IX
FORM OF NOTE
Section 9.1. 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 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 2027
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 March 31, 2027; provided that the Company may, subject to certain
conditions specified in the Indenture, (i) shorten the maturity of this Note to
a date not earlier than _________, 2016, and (ii) extend the
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maturity date of this Note at any time prior to ________, 202__, but in no event
to a date later than March 31, 2046. The Company further promises to pay
interest on said principal sum from January __, 1997, 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 March 31, 1997, at the rate of __% per annum 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
ispayable on this Note is not a Business Day, then payment of interest 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. 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
15
<PAGE>
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 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
16
<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, a Second Supplemental
Indenture dated as of December 6, 1995 and a Third Supplemental Indenture dated
as of January __, 1997, 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 Third 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 March 31, 2002 (a "Optional Redemption") or at any time in certain
circumstances upon the occurrence of a Tax Event, or in whole only within a
limited time after the occurrence and continuance of a Capital Treatment Event,
in each case at a redemption price equal to 100% of the principal amount plus
any accrued but unpaid interest, to the date of such
17
<PAGE>
redemption (the "Redemption Price"). Any redemption pursuant to this paragraph
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
by the Company, 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.
In the event of a redemption of this Note in part only, a new Note for
the unredeemed 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 indenture shall (i) extend the fixed maturity
- -------
of any Notes of any series, or reduce the principal amount thereof, or reduce
the rate, 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.
18
<PAGE>
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 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
19
<PAGE>
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.
ARTICLE X
ORIGINAL ISSUE OF NOTES
Section 10.1. Original Issue of Notes.
-----------------------
Notes in the aggregate principal amount of $___________ may, upon
execution of this Third 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 XI
MISCELLANEOUS
Section 11.1. Ratification of Indenture.
-------------------------
The Indenture, as supplemented by this Third Supplemental Indenture,
is in all respects ratified and confirmed, and this Third Supplemental Indenture
shall be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
Section 11.2. 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
Third Supplemental Indenture.
20
<PAGE>
Section 11.3. Governing Law.
-------------
This Third 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 11.4. Separability.
------------
In case any one or more of the provisions contained in this Third
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 Third
Supplemental Indenture or of the Notes, but this Third Supplemental Indenture
and the Notes shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
Section 11.5. Counterparts.
------------
This Third 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.
Section 11.6. Acknowledgement of Rights of Holders of Preferred Securities.
------------------------------------------------------------
The Company acknowledges that the holders of the Preferred Securities
are each entitled to enforce and exercise the rights and remedies under the
Indenture to the extent set forth in Section 5(b) of Exhibit A to the
Declaration.
Section 11.7. Supplemental Indentures.
-----------------------
For the Notes only, any supplemental indenture referred to in Section
902 of the Indenture shall not be effective until the holders of a majority in
liquidation preference of Trust Securities shall have consented to such
supplemental indenture; provided, however, that if the consent of the Holder of
each Outstanding Debt Security is required, such supplemental indenture shall
not be effective until each holder of the Trust Securities shall have consented
to such supplemental indenture.
21
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Third
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: __________________________
Name:
Title:
Attest:
_______________________
Secretary
HARRIS TRUST AND SAVINGS BANK,
as Trustee
By: __________________________
Name:
Title:
Attest:
_______________________
Assistant Secretary
22
<PAGE>
EXHIBIT 4.14
________________________________________
DECLARATION OF TRUST
GREAT WESTERN FINANCIAL TRUST II
DATED AS OF JANUARY 6, 1997
________________________________________
<PAGE>
DECLARATION OF TRUST
DECLARATION OF TRUST ("Declaration") dated and effective as of January 6,
1997 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;
<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, share-holder,
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 2.1 Name.
----
The Trust is named "Great Western Financial Trust II". The Trust's
activities may be conducted under the name of the Trust or any other name deemed
advisable by the Regular Trustees.
Section 2.2. 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 2.3 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 2.4 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 2.5 Title to Property of the Trust.
------------------------------
Legal title to all assets of the Trust shall be vested in the Trust.
Section 2.6 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 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 2.7 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 2.8 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 2.9 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:
First Chicago Delaware Inc.
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
7
<PAGE>
and authority to cause the Trust to execute pursuant to Section 2.7 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
8
<PAGE>
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, 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
/s/ CARL GEUTHER
-----------------------------
J. LANCE ERIKSON,
as Trustee
/s/ J. LANCE ERIKSON
-----------------------------
BRUCE F. ANTENBERG,
as Trustee
/s/ BRUCE ANTENBERG
-----------------------------
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: /s/ STEVEN M. WAGNER
------------------------
Name: Steven M. Wagner
Title: Vice President
GREAT WESTERN FINANCIAL CORPORATION,
as Sponsor
By: /s/ BRUCE ANTENBERG
-------------------------
Name: Bruce F. Antenberg
Title: Senior Vice President-
Finance and Treasurer
13
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
The undersigned, the trustees of Great Western Financial Trust II
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 II.
(b) The name and business address of the trustee of the Trust who is
a resident of the State of Delaware is as follows:
First Chicago Delaware Inc.
300 King Street
Wilmington, Delaware 19801
Dated: _________, 1997
CARL F. GEUTHER,
as Trustee
___________________________
J. LANCE ERIKSON,
as Trustee
___________________________
BRUCE F. ANTENBERG,
as Trustee
___________________________
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: _______________________
Name:
Title:
<PAGE>
EXHIBIT 4.15
================================================================================
AMENDED AND RESTATED DECLARATION OF TRUST
GREAT WESTERN FINANCIAL TRUST II
Dated as of January __, 1997
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE I
INTERPRETATION AND DEFINITIONS
<S> <C> <C>
Section 1.1 Definitions................................................ 2
ARTICLE II
TRUST INDENTURE ACT
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.................................. 9
Section 2.7 Event of Default; Notice................................... 11
ARTICLE III
ORGANIZATION
Section 3.1 Name....................................................... 12
Section 3.2 Office..................................................... 12
Section 3.3 Purpose.................................................... 12
Section 3.4 Authority.................................................. 12
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......................... 21
Section 3.11 Delaware Trustee........................................... 24
Section 3.12 Execution of Documents..................................... 24
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
Section 4.1 Sponsor's Purchase of Common Securities.................... 27
Section 4.2 Responsibilities of the Sponsor............................ 27
</TABLE>
<PAGE>
ARTICLE V
TRUSTEES
<TABLE>
<S> <C> <C>
Section 5.1 Number of Trustees......................................... 28
Section 5.2 Delaware Trustee........................................... 28
Section 5.3 Property Trustee; Eligibility.............................. 29
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
Section 5.11 Merger, Conversion, Consolidation or Succession to Business 33
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions.............................................. 33
ARTICLE VII
ISSUANCE OF TRUST SECURITIES
Section 7.1 General Provisions Regarding Trust Securities.............. 34
ARTICLE VIII
TERMINATION
Section 8.1 Termination of Trust....................................... 35
ARTICLE IX
TRANSFER OF INTEREST
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
</TABLE>
<PAGE>
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS
OF TRUST SECURITIES, TRUSTEES OR OTHERS
<TABLE>
<S> <C> <C>
Section 10.1 Liability.................................................. 40
Section 10.2 Exculpation................................................ 40
Section 10.3 Fiduciary Duty............................................. 41
Section 10.4 Indemnification............................................ 42
Section 10.5 Outside Businesses......................................... 43
ARTICLE XI
ACCOUNTING
Section 11.1 Fiscal Year................................................ 43
Section 11.2 Certain Accounting Matters................................. 43
Section 11.3 Banking.................................................... 44
Section 11.4 Withholding................................................ 44
ARTICLE XII
AMENDMENTS AND MEETINGS
Section 12.1 Amendments................................................. 45
Section 12.2 Meetings of the Holders of Trust Securities; Action by
Written Consent.......................................... 47
ARTICLE XIII
REPRESENTATIONS AND WARRANTIES OF PROPERTY TRUSTEE
Section 13.1 Representations and Warranties of Property Trustee......... 49
Section 13.2 Representations and Warranties of Delaware Trustee......... 50
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Notices.................................................... 51
Section 14.2 Governing Law.............................................. 52
Section 14.3 Intention of the Parties................................... 52
Section 14.4 Headings................................................... 52
Section 14.5 Successors and Assigns..................................... 52
Section 14.6 Partial Enforceability..................................... 52
Section 14.7 Counterparts............................................... 52
EXHIBIT A................................................................. A-1
ANNEX I................................................................... I-1
ANNEX II.................................................................. II-1
</TABLE>
<PAGE>
AMENDED AND RESTATED DECLARATION OF TRUST
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of January __, 1997, 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 Great Western
Financial Trust II (the "Trust"), a trust under the Delaware Business Trust Act
pursuant to a Declaration of Trust dated as of January 6, 1997, (the "Original
Declaration") and a Certificate of Trust filed with the Secretary of State of
Delaware on January __, 1997, 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, including Exhibit A hereto which is expressly made a part
hereof, 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.
<PAGE>
ARTICLE I
INTERPRETATION AND DEFINITIONS
Section 1.1 Definitions.
-----------
(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
any applicable 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.
2
<PAGE>
"Closing Date" means January __, 1997.
"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 dated as of
January __, 1997, 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.
"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.
3
<PAGE>
"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 as of April 30, 1993, the Second Supplemental
Indenture, dated as of December 6, 1995, and the Third Supplemental Indenture,
dated as of January __, 1997.
"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.
"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
4
<PAGE>
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).
"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.
5
<PAGE>
"Preferred Securities Guarantee" means the guarantee agreement to be dated
as of January __, 1997, of the Sponsor in respect of the Preferred Securities.
"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).
"Quorum" means a majority of the Regular Trustees or, if there are only two
Regular Trustees, both of them.
"Regular Trustee" has the meaning set forth in Section 5.1.
"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.
"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.
6
<PAGE>
"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.
"Super-Majority" has the meaning set forth in Exhibit A.
"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 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.
7
<PAGE>
"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.
"Underwriting Agreement" means the Underwriting Agreement for the offering
and sale of 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 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
8
<PAGE>
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 May 15 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 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:
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(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 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-
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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 a
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, identifying such
default as a Declaration Event of Default, unless such defaults have
been cured before the giving of such notice (the term "default" 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 any
periods of grace provided for therein and irrespective of the giving
of any notice provided therein); provided that, except for a 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
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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 II", 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.
-------
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 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
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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:
(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;
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(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 Underwriting 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 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 power to bring such Legal Action;
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(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;
(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;
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(ii) causing the Trust to be classified for United States federal
income tax purposes 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, or cause or permit
the Trust to take, any action that is inconsistent with the purposes and
functions of the Trust set forth in Section 3.3. Any expenses incurred by the
Regular Trustees pursuant to this Section 3.6 shall be reimbursed by the Note
Issuer.
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 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;
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(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) other than as provided in this Declaration (including
Exhibit A hereto), (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 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
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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 written notice of distribution issued by the Regular
Trustees in accordance with the terms of the Trust 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.
(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.
(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
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(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.
-----------------------------------------------------------
(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.
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(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, 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;
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(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
(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,
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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, 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
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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, 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
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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.
Section 3.12 Execution of Documents.
----------------------
Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act, any Regular Trustee is authorized
to execute on behalf of the Trust any documents which the Regular Trustees have
the power and authority to execute pursuant to Section 3.6; provided that, the
registration statement referred to in Section 3.6(b)(i), including any
amendments thereto, shall be executed by a majority of the Regular Trustees. 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 3.6.
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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
or, if there are only two, both 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 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;
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(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 entity); and
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity will
be 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 not, except with the
consent of Holders of 100% in liquidation amount of the Trust
Securities, consolidate, amalgamate, merge with or into, or be
26
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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 the 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 at least 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 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 Underwriting Agreement providing for the
sale of the Preferred Securities.
27
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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; provided, however,
-------- -------
that the number of Trustees shall in no event be less than three (3);
provided further that (i) one Trustee, in the case of a natural
-------- -------
person, shall be a person who is a resident of the State of Delaware
or that, if not a natural person, is an entity which has its principal
place of business in the State of Delaware (the "Delaware Trustee");
(ii) there shall be at least one Trustee who is an employee or officer
of, or is affiliated with, the Sponsor (a "Regular Trustee") and all
Trustees other than the Delaware Trustee and the Property Trustee
shall be Regular Trustees; and (iii) one Trustee shall be the Property
Trustee for so long as this Declaration is required to qualify as an
indenture under the Trust Indenture Act, and such Trustee may also
serve as Delaware Trustee if it meets the applicable requirements.
Section 5.2 Delaware Trustee.
----------------
If required by the Business Trust Act, 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.
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Section 5.3 Property Trustee; Eligibility.
-----------------------------
(a) There shall at all times be one Trustee which shall act as Property
Trustee which shall:
(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
29
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natural person who is at least 21 years of age or a legal entity that shall act
through one or more Authorized Officers.
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:
First Chicago Delaware Inc.
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
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 Trust 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
30
<PAGE>
Delaware Trustee") has been appointed and has 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
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<PAGE>
Successor Delaware Trustee. Such court may thereupon, 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.
--------
If there is more than one Regular Trustee, 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
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without a meeting by the unanimous written consent of the Regular Trustees.
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.
Section 5.11 Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Property Trustee or the Delaware Trustee, as
the case may be, may be merged or converted or with which either may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Property Trustee or the Delaware Trustee, as the case
may be, shall be a party, or any corporation succeeding to all or substantially
all the corporate trust business of the Property Trustee or the Delaware
Trustee, as the case may be, shall be the successor of the Property Trustee or
the Delaware Trustee, as the case may be, hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
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/or principal on the Notes held by the Property
Trustee (the amount of any such
33
<PAGE>
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 respective
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 in the assets of the Trust
having such terms as are set forth in Exhibit A (the "Common
Securities"). The Trust shall issue 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
34
<PAGE>
any stock exchange on which Trust Securities may be listed, or to
conform to usage.
(c) The consideration received by the Trust 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 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 pursuant
to which the Trust shall have been dissolved in accordance with
the terms of the Trust Securities and all of the Notes shall have
been distributed to the Holders of Trust
35
<PAGE>
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) March 31, 2052.
(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.
(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
36
<PAGE>
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 or such Holder's attorney duly
authorized in writing. Each Certificate surrendered for registration of
transfer shall be cancelled 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 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 regis tered, 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;
37
<PAGE>
(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 Certifi cates 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
(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 agree ments 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
38
<PAGE>
(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 Certifi cates to be delivered to Preferred Security
Beneficial Owners in accordance with the instructions of the
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
39
<PAGE>
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.
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 Guarantee, 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
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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 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 lia bilities 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
41
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and burdens relating to such interests, any customary or accepted
industry practices, and any applicable gen erally 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.
(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 considera tion to any
interest of or factors affecting the Trust or any other Person;
or
(ii) in its "good faith" or under another express stan dard, 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 Indemni fied 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
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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.
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
transac tion of the Trust. The books of account shall be main tained
on the accrual method of accounting, in accordance with generally
accepted accounting princi-
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ples, 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.
(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
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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 Trustees
shall file required forms with applicable jurisdictions and, unless an exemption
from withholding is properly established 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);
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(ii) unless, in the case of any proposed amendment which affects the
rights, powers, duties, obliga tions 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 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
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(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;
(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.
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(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 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;
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(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
(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, 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
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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).
(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.
Section 13.2 Representations and Warranties of Delaware Trustee.
--------------------------------------------------
The Trustee that acts as initial Delaware Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Declaration, and each
Successor Delaware Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a) The Delaware Trustee is 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.
(b) 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).
(c) No consent, approval or authorization of, or registration with or
notice to, any State or Federal banking authority is required for the
execution,
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delivery or performance by the Delaware Trustee of the Declaration.
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):
GREAT WESTERN FINANCIAL TRUST II
c/o Great Western Financial Corporation
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: Corporate Trust Services Division
(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: General Counsel
(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
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<PAGE>
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 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
52
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force and effect as though all of the signers had signed a single signature
page.
53
<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
___________________________
FIRST CHICAGO DELAWARE INC.
as Delaware Trustee
By: _______________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By: _______________________
Name:
Title:
GREAT WESTERN FINANCIAL CORPORATION,
as Sponsor
By: ______________________
Name:
Title:
54
<PAGE>
EXHIBIT A
TERMS OF
% PREFERRED SECURITIES
% COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of January __, 1997 (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." 6,000,000 Preferred Securities of the Trust
with an aggregate liquidation amount with respect to the assets of the
Trust of One Hundred Fifty Million Dollars ($150,000,000) and a
liquidation amount with respect to the assets of the Trust of $25 per
Preferred Security, are hereby designated for the purposes of
identification only as "____% Preferred Securities, Series A (the
"Preferred Securities"). The Certificates evidencing the Preferred
Securities shall be substantially in the form attached hereto as Annex
I, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice or to conform to
the rules of any stock exchange on which the Preferred Securities are
listed.
(b) "Common Securities." ________ Common Securities of the Trust with an
aggregate liquidation amount with respect to the assets of the Trust
of _______ Million Dollars ($____________) 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
"____% Common Securities, Series A" (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.
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
A-1
<PAGE>
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 January __, 1997, 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 March 31, 1997, 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 no interest shall be due and payable on the Notes, provided
--------
that no Extension Period shall last beyond the date of maturity of the
----
Notes. As a consequence of such deferral, 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 as if no Extension Period
had previously been declared, subject to the above requirements.
(c) Distributions on the Trust Securities will be payable to the Holders
thereof as they appear on the books and
A-2
<PAGE>
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. 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 in respect of the Preferred Securities
will be made as described under the heading "Description of the
Offered Preferred Securities -- Book-Entry Only Issuance -- The
Depository Trust Company" in the Prospectus Supplement dated January
__, 1997 (the "Prospectus Supplement"), to the Prospectus dated
January __, 1997 (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 more than 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
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hereunder, such property shall be distributed Pro Rata (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
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Preferred Securities to be redeemed will be as described in Paragraph
4(g)(ii) below.
(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 Trustees 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 or
the Note Issuer will pursue such Ministerial Action in lieu of such
dissolution and distribution.
In the case of the occurrence of a Tax Event, if (i) the Note Issuer
has received an opinion (a "Redemption Tax Opinion") of independent
tax counsel experienced in such matters that, as a result of such 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
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not less than 30 nor more than 60 days notice, to redeem the 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 (ii) 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 (irrespective of any retroactive
effect), in each case on or after the date of the Prospectus
Supplement, there is more than an insubstantial risk that (i) the
Trust would be subject to United States federal income tax with
respect to interest accrued or received on the Notes, (ii) the Trust
would be 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 would not be deductible 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 within 90 days of the
date of such opinion be considered an "investment company" which is
required to be registered under the Investment Company Act of 1940,
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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 written request of the Note Issuer, 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 written request.
(e) 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.
(f) 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; provided, however, that if the Note
Issuer has given notice of its intention to redeem the Notes, the Note
Issuer will not be under an obligation to use its best efforts to have
the Notes listed.
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(g) 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 Holder 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(g)(i), a
Redemption/Distribution Notice shall be deemed to be given on the
day such notice is first 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 procedures; 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
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<PAGE>
redeemed as set out in this paragraph 4 (which notice will be
irrevocable), 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 its nominee (or any
successor Depositary or its nominee) 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
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
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<PAGE>
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 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 and 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
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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 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. Other than with respect to directing
the time, method and place of conducting any proceeding for 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 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 States federal income tax law the Trust
will not fail to be classified as a grantor trust on account of such
action. If an Event of Default with respect to the Notes, constituting
the failure to pay interest or principal on the Notes on the date such
interest or principal is otherwise payable, has occurred and is
continuing, then a holder of Trust Securities may directly institute a
proceeding for enforcement of payment to such holder directly of the
principal of or interest on the Notes having a principal amount equal
to the aggregate liquidation amount of the Trust Securities of such
holder on or after the respective due date specified in the Notes. The
holders of Trust Securities will not be able to exercise directly any
other remedy available to the holders of the Notes unless the Property
Trustee fails to do so.
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 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
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<PAGE>
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.
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 and
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 a Super-Majority, the
Property Trustee may only give such consent or take such action at the
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<PAGE>
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 pursuant to paragraph 5(b). Other than with respect to
directing the time, method and place of conducting any proceeding for
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 that for the purposes of United States federal income tax law
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
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.
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<PAGE>
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 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 or the applicable Guarantee
Agreement with respect to any amendment, modification 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 or the applicable Guarantee Agreement would
require the consent of 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
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tax counsel experienced in such matters to the effect that for the
purposes of United States federal income tax law 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
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.
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<PAGE>
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.
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<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 II
Preferred Securities
(liquidation amount $25 per Preferred Security)
GREAT WESTERN FINANCIAL TRUST II, 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 ____% Preferred Securities, Series A
(liquidation amount $25 per Preferred Security) (the "Preferred Securities").
The Preferred Securities are transferable on the
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<PAGE>
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 Preferred Securities represented hereby are issued and shall
in all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of January __, 1997, 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 January, 1997.
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 II
Common Securities
(liquidation amount $25 per Common Security)
GREAT WESTERN FINANCIAL TRUST II, 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 ____% Common Securities, Series A (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 January __,
1997, 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 January, 1997.
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 4.17
========================================
PREFERRED SECURITIES GUARANTEE AGREEMENT
GREAT WESTERN FINANCIAL TRUST II
Dated as of January __, 1997
========================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Section Page
- ------- ----
ARTICLE I
DEFINITIONS AND INTERPRETATION
<S> <C> <C>
Section 1.1. Definitions and Interpretation.................. 2
ARTICLE II
TRUST INDENTURE ACT
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....................... 6
Section 2.7. Event of Default; Notice........................ 7
Section 2.8. Conflicting Interests........................... 7
ARTICLE III
POWER, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of the Preferred Guarantee
Trustee........................................ 7
Section 3.2. Certain Rights of Preferred Guarantee Trustee... 9
Section 3.3. Not Responsible for Recitals or Issuance of
Guarantee...................................... 12
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
Section 4.1. Preferred Guarantee Trustee; Eligibility........ 12
Section 4.2. Appointment Removal and Resignation of Preferred
Guarantee Trustees............................. 13
</TABLE>
i
<PAGE>
ARTICLE V
GUARANTEE
<TABLE>
<S> <C> <C>
Section 5.1. Guarantee....................................... 13
Section 5.2. Subordination................................... 14
Section 5.3. Waiver of Notice and Demand..................... 14
Section 5.4. Obligations Not Affected........................ 14
Section 5.5. Rights of Holders............................... 15
Section 5.6. Guarantee of Payment............................ 15
Section 5.7. Subrogation..................................... 16
Section 5.8. Independent Obligations......................... 16
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
Section 6.1. Limitation of Transactions...................... 16
Section 6.2. Ranking......................................... 16
ARTICLE VII
TERMINATION
Section 7.1. Termination..................................... 17
ARTICLE VIII
INDEMNIFICATION
Section 8.1. Exculpation..................................... 17
Section 8.2. Indemnification................................. 18
ARTICLE IX
MISCELLANEOUS
Section 9.1. Successors and Assigns.......................... 18
Section 9.2. Amendments...................................... 18
Section 9.3. Notices......................................... 19
Section 9.4. Benefit......................................... 19
Section 9.5. Governing Law................................... 19
</TABLE>
ii
<PAGE>
PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of January __,
1997, is executed and delivered by Great Western Financial Corporation, a
Delaware corporation (the "Guarantor"), and The First National Bank of Chicago,
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 II, a Delaware statutory business trust
(the "Issuer").
RECITALS
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of January __, 1997, 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 $150 million aggregate stated liquidation amount of
Preferred Securities designated the ____% Preferred Securities, Series A (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 and delivers this Guarantee Agreement for
the benefit of the Holders.
1
<PAGE>
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
(b) in any other case, in the name of such Person by one or more
Authorized Officers of that Person.
2
<PAGE>
"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, the Second Supplemental Indenture; dated as of December 6, 1995 and
the Third Supplemental Indenture, dated as of January __, 1997, 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.
"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
3
<PAGE>
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.
"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 customarily performing functions
similar to those performed by any of the above designated
4
<PAGE>
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
Securities ("List of Holders") as of such date, (i) within 14 days
after each record date for payment of distributions on the Preferred
Securities, 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
5
<PAGE>
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 May 15 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.
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.
6
<PAGE>
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 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
7
<PAGE>
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
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
8
<PAGE>
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.
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
9
<PAGE>
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 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.
10
<PAGE>
(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 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
11
<PAGE>
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. 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
12
<PAGE>
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 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
13
<PAGE>
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.
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;
14
<PAGE>
(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.
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) Any Holder of Preferred Securities may 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
15
<PAGE>
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.
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 (including guarantees) 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
16
<PAGE>
respect of any preferred or preference stock of any Affiliate of the Guarantor,
and (iii) senior to the Guarantor's common stock.
ARTICLE VII
TERMINATION
Section 7.1. Termination.
-----------
This Guarantee Agreement shall terminate and the Guarantee will no
longer be deemed to be outstanding 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.
17
<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.
18
<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 National 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 No. (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.
19
<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:
20
<PAGE>
EXHIBIT 4.22
________________________________________
DECLARATION OF TRUST
GREAT WESTERN FINANCIAL TRUST III
DATED AS OF JANUARY 6, 1997
________________________________________
<PAGE>
DECLARATION OF TRUST
DECLARATION OF TRUST ("Declaration") dated and effective as of January 6,
1997 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;
<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, share-holder,
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 2.1 Name.
----
The Trust is named "Great Western Financial Trust III". The Trust's
activities may be conducted under the name of the Trust or any other name deemed
advisable by the Regular Trustees.
Section 2.2. 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 2.3 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 2.4 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 2.5 Title to Property of the Trust.
------------------------------
Legal title to all assets of the Trust shall be vested in the Trust.
Section 2.6 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 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 2.7 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 2.8 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 2.9 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:
First Chicago Delaware Inc.
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
7
<PAGE>
and authority to cause the Trust to execute pursuant to Section 2.7 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
8
<PAGE>
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, 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
/s/ CARL GEUTHER
-----------------------------
J. LANCE ERIKSON,
as Trustee
/s/ J. LANCE ERIKSON
-----------------------------
BRUCE F. ANTENBERG,
as Trustee
/s/ BRUCE ANTENBERG
-----------------------------
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: /s/ STEVEN M. WAGNER
------------------------
Name: Steven M. Wagner
Title: Vice President
GREAT WESTERN FINANCIAL CORPORATION,
as Sponsor
By: /s/ BRUCE ANTENBERG
-------------------------
Name: Bruce F. Antenberg
Title: Senior Vice President-
Finance and Treasurer
13
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
The undersigned, the trustees of Great Western Financial Trust III
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 III.
(b) The name and business address of the trustee of the Trust who is
a resident of the State of Delaware is as follows:
First Chicago Delaware Inc.
300 King Street
Wilmington, Delaware 19801
Dated: _________, 1997
CARL F. GEUTHER,
as Trustee
___________________________
J. LANCE ERIKSON,
as Trustee
___________________________
BRUCE F. ANTENBERG,
as Trustee
___________________________
FIRST CHICAGO DELAWARE INC.,
as Trustee
By: _______________________
Name:
Title:
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF O'MELVENY & MYERS LLP]
January
13th
1 9 9 7
(213) 669-6000
330,955-138
LA1-684010
Great Western Financial Corporation
9200 Oakdale Avenue
Chatsworth, California 91311
Re: $650,330,000 Aggregate Offering Price of
Securities of Great Western Financial
Corporation, Great Western Financial Trust II
and Great Western Financial Trust III
------------------------------------------------
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on
Form S-3 (the "Registration Statement"), to be filed by Great Western Financial
Corporation (the "Company"), Great Western Financial Trust II and Great Western
Financial Trust III (collectively, the "Trusts") with the Securities and
Exchange Commission in connection with the registration of $650,330,000
aggregate offering price of securities (the "Securities"), consisting of one or
more series of unsecured debt securities (the "Debt Securities"), which may be
issued in the form of senior Debt Securities or subordinated Debt Securities;
one or more series of shares of preferred stock, par value $1.00 per share (the
"Preferred Stock"); depositary shares representing interests in the Preferred
Stock (the "Depositary Shares"); shares of common stock, par value $1.00 per
share (the "Common Stock"); preferred securities of the Trusts (the "Preferred
Securities"); the guarantee of Preferred Securities of the Trusts, including
certain back-up undertakings (the "Guarantee"); and warrants to purchase senior
Debt Securities, subordinated Debt Securities, Preferred Stock, Depository
Shares and/or Common Stock (the "Securities Warrants"). We are familiar with the
proceedings heretofore taken by the Company and Great Western Financial Trust II
in
<PAGE>
connection with the authorization, registration, issuance and sale of the
Securities.
Subject to (i) the proposed additional proceedings being taken as now
contemplated by us as your counsel prior to the issuance of the Securities; (ii)
the effectiveness of the Registration Statement under the Securities Act of
1933, as amended; (iii) the due authorization, execution and delivery of the
indentures and any supplement or supplements thereto relating to the Debt
Securities and the establishment of the terms of the senior Debt Securities or
subordinated Debt Securities, as applicable, in accordance with the terms of the
form of Indenture relating to the senior Debt Securities and the Indenture
relating to the subordinated Debt Securities, respectively; (iv) the
establishment of the terms of the Preferred Stock, if applicable, in accordance
with the terms of the Company's Restated Certificate of Incorporation and
applicable law; (v) the due, authorization, execution and delivery of a Deposit
Agreement (in the case of Depositary Shares) and the Guarantee (in the case of
Preferred Securities of Great Western Financial Trust II); (vi) the due,
authorization, execution and delivery of the Amended and Restated Declaration of
the Trust and establishment of the terms of the Preferred Securities, if
applicable, in accordance with the terms of the Amended and Restated Declaration
of Great Western Financial Trust II; (vii) the due authorization, execution and
delivery of a Warrant Agreement in the case of Securities Warrants; and (viii)
the execution, delivery and authentication of and payment for the Securities, it
is our opinion that:
1. The Debt Securities will, upon the issuance and sale thereof in
the manner referred to in the Registration Statement, constitute legally
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or affecting creditors' rights generally (including, without limitation,
fraudulent conveyance laws) and by general principles of equity including,
without limitation, concepts of materiality, reasonableness, good faith and
fair dealing and the possible unavailability of specific performance or
injunctive relief, regardless of whether considered in a proceeding in
equity or at law.
2. The Preferred Stock will, upon the issuance and sale thereof in
the manner referred to in the Registration Statement, be validly issued,
fully paid and nonassessable.
3. The persons in whose names the Depositary Shares represented by
depositary receipts are registered will be entitled to the rights specified
in the Deposit Agreement.
<PAGE>
4. The Common Stock, including any Common Stock that may be issuable
pursuant to the conversion of any Debt Securities or Preferred Stock will,
upon the issuance and sale thereof in the manner specified in the
Registration Statement, be validly issued, fully paid and nonassessable.
5. The Guarantee with respect to the Preferred Securities of Great
Western Financial Trust II will, upon the execution thereof and the
issuance and sale of such Preferred Securities and other securities to be
issued in connection therewith in the manner referred to in the
Registration Statement, constitute the legally valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to affecting creditor's rights
generally (including, without limitation, fraudulent conveyance laws), by
general principles of equity including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief, regardless of
whether considered in a proceeding in equity or at law and by the
unenforceability under certain circumstances of waivers of rights granted
by law where the waivers are against public policy or prohibited by law.
6. The Securities Warrants will, upon the issuance and sale thereof
in the manner specified in the Registration Statement, be validly issued,
fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Respectfully submitted,
O'MELVENY & MYERS LLP
<PAGE>
EXHIBIT 5.2
[LETTERHEAD OF SASMF (DELAWARE)]
January
13th
1 9 9 7
Great Western Financial Trust II
c/o Great Western Financial Corporation
9200 Oakdale Avenue
Chatsworth, Calfiornia 91311
Re: Great Western Financial Corporation;
Great Western Financial Trust II;
Registration Statement on Form S-3
------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Great Western Financial Trust II,
a statutory business trust formed under the laws of the State of Delaware (the
"Trust"), in connection with the preparation of a Registration Statement on Form
S-3 (the "Registration Statement"), to be filed by Great Western Financial
Corporation, a Delaware corporation (the "Company"), the Trust and Great Western
Financial Trust III with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), relating
to, among other things, the registration under the Act of the preferred
securities (the "Preferred Securities") of the Trust.
The Preferred Securities are to be issued pursuant to the Amended and
Restated Declaration of Trust (the "Declaration") among the Company, as sponsor,
and The First National Bank of Chicago, as the property trustee, First Chicago
Delaware Inc., as Delaware Trustee (the "Delaware Trustee"), and Carl F.
Geuther, J. Lance Erikson and Bruce F. Antenberg, as regular trustees (together,
the "Regular Trustees"). Capitalized terms used but not otherwise defined herein
have the meanings ascribed to them in the Registration Statement.
<PAGE>
This opinion is being delivered in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Act.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the certificate of
trust filed by the Delaware Trustee and the Regular Trustees with the Secretary
of State of the State of Delaware on January 10, 1997; (ii) the form of the
Declaration (including the form of the terms of the Preferred Securities annexed
thereto); and (iii) the form of the Preferred Securities. We have also examined
originals or copies, certified or otherwise identified to our satisfaction, of
such other documents, certificates and records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies. In making our examination of
documents executed by parties other than the Trust, we have assumed that such
parties had the power, corporate or other, to enter into and perform all
obligations thereunder and have also assumed the due authorization by all
requisite action, corporate or other, and execution and delivery by such parties
of such documents and that such documents constitute valid and binding
obligations of such parties. In addition, we have assumed that each of the
Declaration and the Preferred Securities as executed will be in substantially
the form reviewed by us. As to any facts material to the opinions expressed
herein which were not independently established or verified, we have relied upon
oral or written statements and representations of officers, trustees and other
representatives of the Company, the Trust and others.
Members of our firm are admitted to the bar in the State of Delaware,
and we express no opinion as to the laws of any other jurisdiction.
Based on and subject to the foregoing and to the other qualifications
and limitations set forth herein, we are of the opinion that the Preferred
Securities, when the Declaration is executed and delivered and the terms of the
Preferred Securities are established in accordance with the terms of the
Declaration, will be duly authorized for issuance and, when issued and executed
in accordance with the Declaration and delivered and paid for as set forth in
the form of Prospectus Supplement included as an Exhibit to the Registration
Statement, will be validly issued, fully paid and nonassessable, representing
undivided beneficial interests in the assets of Trust. We bring to your
attention that the Preferred Securities holders may be obligated, pursuant to
the Declaration, to (i) provide
<PAGE>
Page 3
indemnity and/or security in connection with and pay taxes or governmental
charges arising from transfers of Preferred Securities and (ii) provide security
and indemnity in connection with the requests of or directions to the Property
Trustee to exercise its rights and powers under the Declaration.
This opinion is furnished to you solely for your benefit in connection
with the filing of the Registration Statement and, except as set forth in the
next sentence, is not to be used, circulated, quoted or otherwise referred to
for any other purpose or relied upon by any other person for any purpose without
our prior written consent. We hereby consent to the filing of this opinion with
the Commission as Exhibit 5.2 to the Registration Statement. We also consent to
the use of our name under the heading "Legal Matters" in the form of Prospectus
Supplement included as an exhibit to the Registration Statement. In giving this
consent, we do not thereby admit that we are within the category of persons
whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission promulgated thereunder. This opinion is expressed
as of the date hereof unless otherwise expressly stated and we disclaim any
undertaking to advise you of any subsequent changes of the facts stated or
assumed herein or any subsequent changes in applicable law.
Very truly yours,
SKADDEN, ARPS, SLATE, MEAGHER & FLOM (DELAWARE)
<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, 1996, appearing on page 88 of Great Western Financial Corporation's
Annual Report on Form 10-K for the year ended December 31, 1995. We also consent
to the reference to us under the heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
Los Angeles, California
January 10, 1997
<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)
Judith Bartolini, Harris Trust and Savings Bank,
311 West Monroe Street, Chicago, Illinois, 60606
312-461-2527 phone 312-461-3525 facsimile
(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)
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 C-Cube Microsystems Inc., File No.
33-97166, 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 7th day of January, 1997.
HARRIS TRUST AND SAVINGS BANK
By: /s/ J. Bartolini
----------------------------
J. Bartolini
Vice President
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/ J. Bartolini
----------------------------
J. Bartolini
Vice President
2
<PAGE>
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of September 30, 1996, 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 September 30, 1996, 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........... $ 1,751,494
Interest bearing balances........ $ 839,856
Securities:.............................
a. Held-to-maturity securities $ 0
b. Available-for-sale securities $ 3,137,919
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............... $ 478,625
Securities purchased under
agreements to resell............ $ 0
Loans and lease financing receivables:
Loans and leases, net of
unearned income................. $7,897,067
LESS: Allowance for loan and
lease losses.................... $ 108,949
----------
Loans and leases, net of
unearned income, allowance, and
reserve (item 4.a minus 4.b).... $ 7,788,118
Assets held in trading accounts......... $ 74,302
Premises and fixed assets (including
capitalized leases).................... $ 172,267
Other real estate owned................. $ 142
Investments in unconsolidated
subsidiaries and associated companies.. $ 60
Customer's liability to this bank on
acceptances outstanding................ $ 100,950
Intangible assets....................... $ 299,478
Other assets............................ $ 563,022
--------------------------------
TOTAL ASSETS $15,206,233
================================
</TABLE>
3
<PAGE>
<TABLE>
<S> <C> <C>
LIABILITIES
Deposits:
In domestic offices................... $ 8,013,146
Non-interest bearing............. $3,248,897
Interest bearing................. $4,764,249
In foreign offices, Edge and
Agreement subsidiaries, and IBF's.... $ 2,055,520
Non-interest bearing............. $ 32,775
Interest bearing................. $2,022,745
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............... $ 886,457
Securities sold under agreements to
repurchase........................... $ 1,841,475
Trading Liabilities $ 40,157
Other borrowed money:...................
a. With remaining maturity of one year
or less $ 606,331
b. With remaining maturity of more
than one year $ 9,434
Bank's liability on acceptances
executed and outstanding $ 100,950
Subordinated notes and debentures....... $ 310,000
Other liabilities....................... $ 186,408
-----------
TOTAL LIABILITIES $14,049,878
===========
EQUITY CAPITAL
Common stock............................ $ 100,000
Surplus................................. $ 600,295
a. Undivided profits and capital
reserves............................ $ 486,054
b. Net unrealized holding gains
(losses) on available-for-sale
securities ($29,994)
-----------
TOTAL EQUITY CAPITAL $ 1,156,355
===========
Total liabilities, limited-life
preferred stock, and equity capital.... $15,206,233
===========
</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
10/30/96
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.
EDWARD W. LYMAN,
ALAN G. McNALLY,
MARIBETH S. RAHE
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 II
(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
CHATWORTH, 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.
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.
2
<PAGE>
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 the State of Illinois, on this 8th day of January, 1997.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
January 8, 1997
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Great Western
Financial Trust II 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: 09/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1996
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>
C400
DOLLAR AMOUNTS IN ------------
THOUSANDS RCFD BIL MIL THOU less than -
----------------- ---- ------------ -----------
<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 4,041,784 1.a.
b. Interest-bearing balances(2)...................................... 0071 5,184,890 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)......... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)...... 1773 3,173,481 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 3,505,874 3.a.
b. Securities purchased under agreements to resell................... 0277 145,625 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C)................................................................ RCFD 2122 22,835,958 4.a.
b. LESS: Allowance for loan and lease losses......................... RCFD 3123 418,851 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 22,417,107 4.d.
5. Assets held in trading accounts...................................... 3545 8,121,948 5.
6. Premises and fixed assets (including capitalized leases)............. 2145 707,971 6.
7. Other real estate owned (from Schedule RC-M)......................... 2150 9,184 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)....................................... 2130 53,803 8.
9. Customers' liability to this bank on acceptances outstanding......... 2155 626,690 9.
10. Intangible assets (from Schedule RC-M)............................... 2143 310,246 10.
11. Other assets (from Schedule RC-F).................................... 2160 1,658,123 11.
12. Total assets (sum of items 1 through 11)............................. 2170 49,956,726 12.
</TABLE>
- ------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE>
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
----------------- ------------
<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 22,369,341 13.a.
(1) Noninterest-bearing(1)..................................... RCON 6631 9,726,987 13.a.
(2) Interest-bearing........................................... RCON 6636 12,642,354 13.a.
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)............................. RCFN 2200 10,026,286 13.b.
(1) Noninterest bearing........................................ RCFN 6631 336,746 13.b.(1)
(2) Interest-bearing........................................... RCFN 6636 9,689,540 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 884,553 14.a.
b. Securities sold under agreements to repurchase................. RCFD 0279 717,211 14.b.
15. a. Demand notes issued to the U.S. Treasury....................... RCON 2840 14,120 15.a.
b. Trading Liabilities............................................ RCFD 3548 5,409,585 15b.
16. Other borrowed money:
a. With original maturity of one year or less..................... RCFD 2332 3,414,577 16.a.
b. With original maturity of more than one year................... RCFD 2333 46,685 16b.
17. Mortgage indebtedness and obligations under capitalized
leases............................................................ RCFD 2910 285,671 17.
18. Bank's liability on acceptance executed and outstanding........... RCFD 2920 626,690 18.
19. Subordinated notes and debentures................................. RCFD 3200 1,250,000 19.
20. Other liabilities (from Schedule RC-G)............................ RCFD 2930 1,005,205 20.
21. Total liabilities (sum of items 13 through 20).................... RCFD 2948 46,049,924 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 2,925,894 25.
26. a. Undivided profits and capital reserves......................... RCFD 3632 770,670 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities..................................................... RCFD 8434 10,194 26.b.
27. Cumulative foreign currency translation adjustments............... RCFD 3284 (814) 27.
28. Total equity capital (sum of items 23 through 27)................. RCFD 3210 3,906,802 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)............................. RCFD 3300 49,956,726 29.
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 Number
performed for the bank by independent external auditors as of any ------
date during 1995........................................................................... RCFD 6724 ... N/A M.1.
</TABLE>
<TABLE>
<S> <C>
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</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)
GUARANTEE OF PREFERRED SECURITIES
OF GREAT WESTERN FINANCIAL TRUST II
(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.
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.
2
<PAGE>
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 the State of Illinois, on this 8th day of January, 1997.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
January 8, 1997
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a guarantee agreement 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: 09/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR SEPTEMBER 30, 1996
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>
C400
DOLLAR AMOUNTS IN ------------
THOUSANDS RCFD BIL MIL THOU less than -
----------------- ---- ------------ -----------
<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 4,041,784 1.a.
b. Interest-bearing balances(2)...................................... 0071 5,184,890 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)......... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)...... 1773 3,173,481 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 3,505,874 3.a.
b. Securities purchased under agreements to resell................... 0277 145,625 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C)................................................................ RCFD 2122 22,835,958 4.a.
b. LESS: Allowance for loan and lease losses......................... RCFD 3123 418,851 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 22,417,107 4.d.
5. Assets held in trading accounts...................................... 3545 8,121,948 5.
6. Premises and fixed assets (including capitalized leases)............. 2145 707,971 6.
7. Other real estate owned (from Schedule RC-M)......................... 2150 9,184 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)....................................... 2130 53,803 8.
9. Customers' liability to this bank on acceptances outstanding......... 2155 626,690 9.
10. Intangible assets (from Schedule RC-M)............................... 2143 310,246 10.
11. Other assets (from Schedule RC-F).................................... 2160 1,658,123 11.
12. Total assets (sum of items 1 through 11)............................. 2170 49,956,726 12.
</TABLE>
- ------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE>
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 09/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
----------------- ------------
<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 22,369,341 13.a.
(1) Noninterest-bearing(1)..................................... RCON 6631 9,726,987 13.a.
(2) Interest-bearing........................................... RCON 6636 12,642,354 13.a.
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)............................. RCFN 2200 10,026,286 13.b.
(1) Noninterest bearing........................................ RCFN 6631 336,746 13.b.(1)
(2) Interest-bearing........................................... RCFN 6636 9,689,540 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 884,553 14.a.
b. Securities sold under agreements to repurchase................. RCFD 0279 717,211 14.b.
15. a. Demand notes issued to the U.S. Treasury....................... RCON 2840 14,120 15.a.
b. Trading Liabilities............................................ RCFD 3548 5,409,585 15b.
16. Other borrowed money:
a. With original maturity of one year or less..................... RCFD 2332 3,414,577 16.a.
b. With original maturity of more than one year................... RCFD 2333 46,685 16b.
17. Mortgage indebtedness and obligations under capitalized
leases............................................................ RCFD 2910 285,671 17.
18. Bank's liability on acceptance executed and outstanding........... RCFD 2920 626,690 18.
19. Subordinated notes and debentures................................. RCFD 3200 1,250,000 19.
20. Other liabilities (from Schedule RC-G)............................ RCFD 2930 1,005,205 20.
21. Total liabilities (sum of items 13 through 20).................... RCFD 2948 46,049,924 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 2,925,894 25.
26. a. Undivided profits and capital reserves......................... RCFD 3632 770,670 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities..................................................... RCFD 8434 10,194 26.b.
27. Cumulative foreign currency translation adjustments............... RCFD 3284 (814) 27.
28. Total equity capital (sum of items 23 through 27)................. RCFD 3210 3,906,802 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)............................. RCFD 3300 49,956,726 29.
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 Number
performed for the bank by independent external auditors as of any --------
date during 1995......................................................................... RCFD 6724 N/A M.1.
</TABLE>
<TABLE>
<S> <C>
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- -------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
<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. NEITHER THIS PROSPECTUS SUPPLEMENT NOR THE PROSPECTUS TO +
+WHICH IT RELATES 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 STATE IN +
+WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO +
+REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED JANUARY 13, 1997
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED JANUARY , 1997
$165,000,000
GREAT WESTERN FINANCIAL TRUST II
% PREFERRED SECURITIES, SERIES A
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN, BY
GREAT WESTERN FINANCIAL CORPORATION
----------
The % Preferred Securities, Series A (the "Preferred Securities") offered
hereby represent preferred undivided beneficial interests in the assets of
Great Western Financial Trust II, 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 Trust Securities and investing the proceeds thereof in an equivalent amount
of % Subordinated Deferrable Interest Notes due 2027 (the "Subordinated
Notes") of GWFC. The Subordinated Notes will mature on March 31, 2027, subject
to GWFC's right to shorten the maturity or to extend the maturity. 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.
----------
THESE SECURITIES ARE NOT 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.
----------
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
OFFERING PRICE(1) COMMISSION(2) TRUST(1)(3)(4)
----------------- ------------- ---------------
<S> <C> <C> <C>
Per Preferred Security........ $25.00 (3) $25.00
Total(5)...................... $165,000,000 (3) $165,000,000
</TABLE>
- -----
(1) Plus accrued distributions, if any, from the date of original issuance.
(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 for their arranging the investment therein of
such proceeds $ per Preferred Security (or $ in the aggregate). See
"Underwriting."
(4) Before deducting estimated expenses of $ payable by GWFC.
(5) The Trust and the Company have granted the Underwriters an option for 30
days to purchase up to an additional 990,000 Preferred Securities at the
initial public offering price per security solely to cover over-allotments.
If such option is exercised in full, the total initial public offering
price, underwriting commission and proceeds to the Trust will be
$189,750,000, $ , and $189,750,000, respectively. See "Underwriting".
----------
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 the Preferred Securities will be ready for delivery in book-entry
form only through the facilities of The Depository Trust Company in New York,
New York, on or about January , 1997, against payment therefor in immediately
available funds.
<TABLE>
<S> <C>
GOLDMAN, SACHS & CO. MERRILL LYNCH & CO.
LEHMAN BROTHERS SMITH BARNEY INC.
</TABLE>
----------
The date of this Prospectus Supplement is January , 1997.
<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 March 31, 1997 (each a "Distribution
Date"). The first distribution will be in an amount equal to $ per Preferred
Security. 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) and
any other subordinated debt (unless otherwise stated) of GWFC, which
aggregated approximately $673 million at September 30, 1996, 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 September 30, 1996, the subsidiaries of GWFC had total
liabilities of approximately $39.9 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--Interest Income and
Original Issue Discount."
The Subordinated Notes are redeemable by GWFC, in whole or in part, from
time to time, on or after March 31, 2002, or at any time in certain
circumstances upon the occurrence of a Tax Event (as defined herein) or in
whole (but not in part) for a limited time upon the occurrence of a Capital
Treatment 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 March 31, 2027, but the maturity date may be
shortened as described under "Description of the Subordinated Notes--Right to
Shorten Maturity" and 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
S-2
<PAGE>
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 "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."
GWFC will have the right at any time to terminate the Trust and cause the
Subordinated Notes to be distributed to the holders of the Preferred
Securities in liquidation of the Trust. See "Description of Offered Preferred
Securities--Liquidation of Trust and Distribution of Subordinated Notes to
Holders." In the event of the termination of the Trust, after satisfaction of
liabilities to creditors of the Trust as required by applicable law, the
holders of the Preferred Securities will be entitled to receive a liquidation
amount of $25 per Preferred Security plus accumulated and unpaid distributions
thereon to the date of payment, which may be in the form of a distribution of
such amount in Subordinated Notes, subject to certain exceptions. See
"Description of Offered Preferred Securities--Liquidation Distribution Upon
Dissolution."
If the Subordinated Notes are distributed to the holders of Preferred
Securities upon the liquidation of the Trust, 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.
In the event of the involuntary or voluntary liquidation, dissolution,
winding up or termination of the Trust, the holders of the Trust Securities
will be entitled to receive for each Trust 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 Trust Securities. See
"Description of the Offered Preferred Securities--Liquidation Distribution
Upon Dissolution."
The Preferred Securities have not yet been listed 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 Preferred Securities will be represented by global certificates
registered in the name of The Depository Trust Company ("DTC") or its nominee.
Beneficial interests in the Preferred Securities will be shown on, and
transfers thereof will be effected only through, records maintained by
participants in DTC. Except as described in this Prospectus Supplement and in
the accompanying Prospectus, Preferred Securities in certificated form will
not be issued in exchange for the global certificates. See "Book-Entry Only
Issuance--The Depositary Trust Company."
----------------
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, of GWFC.
The obligations of GWFC under the Subordinated Notes are subordinate and
junior in right of payment to all present and future Senior Indebtedness and
any other subordinated debt (unless otherwise stated) of GWFC and pari passu
with obligations to or rights of GWFC's other general unsecured creditors. As
of September 30, 1996, 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 September 30,
1996, such subsidiaries had total liabilities of approximately $39.9 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 the Subordinated Debt Securities Issued to the Trust" in
the accompanying Prospectus, and "Description of the Subordinated Notes--
Subordination" herein.
The ability of the Trust to pay amounts on the Preferred Securities is
solely dependent upon GWFC making payments on the Subordinated Notes as and
when required.
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, which funds would exist only to the extent GWFC has made a payment
of interest or principal on the Subordinated Notes, (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, which funds would exist only to the extent GWFC has
made a payment of interest or principal on the Subordinated Notes, 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 the 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 and (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 of the rights 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
S-4
<PAGE>
the Guarantee, including the subordination provisions thereof, and the
Subordinated Indenture (as defined in the accompanying Prospectus).
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 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. If an Event of Default with respect to the Subordinated
Notes, constituting the failure to pay interest or principal on the
Subordinated Notes on the date such interest or principal is otherwise
payable, has occurred and is continuing, then a holder of Preferred Securities
may directly institute a proceeding for enforcement of payment to such holder
directly of the principal of or interest on the Subordinated Notes having a
principal amount equal to the aggregate liquidation amount of the Preferred
Securities of such holder on or after the respective due date specified in the
Subordinated Notes. The holders of Preferred Securities will not be able to
exercise directly any other remedy available to the holders of the
Subordinated Notes unless the Property Trustee fails to do so.
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 the
foregoing 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 be required to accrue income (in the form
of original issue discount) in respect of its pro rata share of the
Subordinated Notes held by the Trust for United States federal income tax
purposes. As a result, a holder of Preferred Securities will be required to
include such income in gross income for United States federal income tax
purposes in advance of the receipt of cash attributable to such income, and
will not receive the cash related to such income from the Trust if the holder
disposes of the Preferred Securities prior to the record date for the payment
of distributions. See "Certain Federal Income Tax Consequences--Interest
Income and Original Issue Discount."
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,
S-5
<PAGE>
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 to which
such rights do not apply.
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."
See "Possible Tax Law Changes Affecting the Preferred Securities" below for
a discussion of certain legislative proposals that, if adopted, could give
rise to a Tax Event, which may permit GWFC to cause a redemption of the
Preferred Securities prior to March 31, 2002 or to shorten the maturity of the
Subordinated Notes to a date not earlier than 19 1/2 years after the date of
initial issuance of the Subordinated Notes, which would result in the
redemption of the Preferred Securities on such date.
CAPITAL TREATMENT EVENT REDEMPTION
Upon the occurrence and during the continuation of a Capital Treatment
Event, GWFC has the right to redeem the Subordinated Notes in whole (but not
in part) at any time within 90 days following the occurrence of such Capital
Treatment Event and thereby cause a mandatory redemption of the Preferred
Securities.
A "Capital Treatment Event" means that GWFC (or its successor) is, becomes
or pursuant to law or regulation will become within 180 days, subject to
capital requirements under which all or any portion of the Preferred
Securities would not constitute Tier 1 Capital applied as if GWFC (or its
successor) were a bank holding company (as that concept is used in the
guidelines or regulations issued by the Board of Governors of the Federal
Reserve System ("Federal Reserve Board") as of the date of this Prospectus
Supplement) or its then equivalent ("Tier 1 Capital").
EXCHANGE OF PREFERRED SECURITIES FOR SUBORDINATED NOTES
GWFC will have the right at any time to terminate the Trust and after
satisfaction of liabilities to creditors of the Trust as required by
applicable law, to cause Subordinated Notes to be distributed to the holders
of the Preferred Securities in exchange therefor upon liquidation of the
Trust. See "Description of Offered Preferred Securities--Liquidation of Trust
and Distribution of Subordinated Notes to Holders."
S-6
<PAGE>
Under current United States federal income tax law and interpretations, a
distribution of the Subordinated Notes upon liquidation of the Trust should
not be a taxable event to holders of the Preferred Securities. However, if a
Tax Event were to occur which would cause the Trust to be subject to United
States federal income tax with respect to income received or accrued on the
Subordinated Notes, a distribution of the Subordinated Notes by the Trust
could be a taxable event to the holders of the Preferred Securities. See
"Certain Federal Income Tax Consequences--Receipt of Subordinated Notes or
Cash Upon Liquidation of the Trust."
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. Accordingly, the Preferred Securities may trade at a
discount to the price that an investor paid to purchase the Preferred
Securities offered hereby. To the extent the selling price is less than the
holder's adjusted tax basis, 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--Interest Income and Original Issue Discount"
and "--Sale of Preferred Securities."
POSSIBLE TAX LAW CHANGES AFFECTING THE PREFERRED SECURITIES
On March 19, 1996, the Revenue Reconciliation Bill of 1996 (the "Bill") was
released which would have, among other things, generally denied interest
deductions for interest on an instrument issued by a corporation that has a
maximum weighted average maturity of more than 40 years. The Bill would also
have generally denied interest deductions for interest on an instrument issued
by a corporation that has a maximum term of more than 20 years and that is not
shown as indebtedness on the separate balance sheet of the issuer or, where
the instrument is issued to a related party (other than a corporation), where
the holder or some other related party issues a related instrument that is not
shown as indebtedness on the issuer's consolidated balance sheet. For purposes
of determining the weighted average maturity or the term of an instrument, any
right to extend would be treated as exercised. The above-described provisions
of the Bill were proposed to be effective generally for instruments issued on
or after December 7, 1995. If either provision were to apply to the
Subordinated Notes, GWFC would not be able to deduct interest on the
Subordinated Notes. However, on March 29, 1996, the Chairmen of the Senate
Finance and House Ways and Means Committees issued a joint statement (the
"Joint Statement") to the effect that it was their intention that the
effective date of the Presidents's legislative proposals, if adopted, would be
no earlier that the date of appropriate Congressional action. In addition,
subsequent to the publication of the Joint Statement, Senator Daniel Patrick
Moynihan and Representatives Sam M. Gibbons and Charles B. Rangel wrote
letters to Treasury Department officials concurring with the view expressed in
the Joint Statement (the "Democrat Letters"). If the principles contained in
the Joint Statement and the Democrat Letters were enacted, such legislation
would not apply to the Subordinated Notes. Under current law, GWFC will be
able to deduct interest on the Subordinated Notes. There can be no assurance,
however, that current or future legislative proposals or final legislation
will not adversely affect the ability of GWFC to deduct interest on the
Subordinated Notes. Such a change could give rise to a Tax Event, which would
permit GWFC to cause a redemption of the Preferred Securities before March 31,
2002, or to shorten the maturity of the Subordinated Notes to a period of not
less than 19 1/2 years from the date of initial issuance, which will result in
redemption of the Preferred Securities as of such earlier maturity. See
"Description of the Subordinated Notes--Redemption," "Description of the
Offered Preferred Securities--Mandatory Redemption" and "--Right to Shorten
Maturity," and "Certain Federal Income Tax Consequences--Possible Tax Law
Changes."
S-7
<PAGE>
RECENT FINANCIAL RESULTS
The following table sets forth selected financial data of GWFC and its
consolidated subsidiaries for the nine months ended September 30, 1996 and
1995 and at September 30, 1996 and 1995. 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 nine months ended September 30, 1996
are not necessarily indicative of the results to be expected for the full
year.
<TABLE>
<CAPTION>
FOR THE NINE MONTHS
ENDED SEPTEMBER 30,
------------------------
1996 1995
----------- -----------
(DOLLARS IN THOUSANDS,
EXCEPT PER SHARE
DATA AND RATIOS)
<S> <C> <C>
SUMMARY OF OPERATIONS
Interest income..................................... $ 2,432,384 $ 2,403,824
Interest expense.................................... 1,389,378 1,452,536
Net interest income................................. 1,043,006 951,288
Provision for loan losses........................... 123,071 137,400
Operating and administrative expenses(1)............ 956,574 736,829
Earnings before taxes on income..................... 181,090 268,555
Taxes on income..................................... 70,400 106,100
Net earnings(1)..................................... 110,690 162,455
Fully diluted earnings per share.................... .68 1.05
Cash dividends per common share..................... .73 .69
Ratio of earnings to fixed charges(2)
Excluding interest on deposits..................... 1.34x 1.46x
Including interest on deposits..................... 1.13x 1.18x
Ratio of earnings to fixed charges and preferred
stock dividends(2):
Excluding interest on deposits..................... 1.27x 1.39x
Including interest on deposits..................... 1.11x 1.16x
</TABLE>
<TABLE>
<CAPTION>
AT SEPTEMBER 30,
-----------------------
1996 1995
----------- -----------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
SUMMARY OF FINANCIAL CONDITION
Cash and securities................................... $ 2,011,912 $ 2,190,674
Loans receivable, net................................. 30,760,376 29,633,224
Mortgage-backed securities............................ 8,593,389 10,532,266
Total assets.......................................... 43,548,593 44,693,014
Deposits.............................................. 28,852,700 29,432,176
Borrowings............................................ 10,874,586 11,591,999
Stockholders' equity.................................. 2,616,781 2,654,299
</TABLE>
- --------
(1) Includes in 1996 a $188.4 million pre-tax charge with respect to a one-
time special assessment in connection with the recapitalization of the
Savings Association Insurance Fund.
(2) 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 deposits, 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 deposits, represent all interest expense (including
capitalized interest) and one-third of rents.
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<PAGE>
CAPITALIZATION OF GWFC
The following table sets forth the unaudited summary capitalization of GWFC
and its consolidated subsidiaries as of September 30, 1996, and as adjusted to
reflect issuance of the 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 SEPTEMBER 30, 1996
-----------------------
ACTUAL AS ADJUSTED
----------- -----------
(IN THOUSANDS)
<S> <C> <C>
Borrowings:
Federal Home Loan Bank.............................. $ 1,678,039 $ 1,678,039
Short-term debt..................................... 1,350,969 1,350,969
Long-term debt...................................... 3,258,933 3,258,933
Securities sold under agreement to repurchase....... 4,586,645 4,586,645
----------- -----------
Total borrowings.................................. 10,874,586 10,874,586
Company-obligated mandatorily redeemable preferred
securities of GWFC's subsidiary trust, holding solely
$103,093 aggregate principal amount of 8.25%
subordinated deferrable interest notes, due 2025, of
GWFC................................................. 100,000 100,000
Company-obligated mandatorily redeemable preferred
securities of GWFC's subsidiary trust, holding solely
$ aggregate principal amount of % subordinated
deferrable interest notes, due 2027, of GWFC......... -- 150,000
Preferred stock....................................... 165,000 165,000
Common stockholders' equity........................... 2,451,781 2,451,781
----------- -----------
Total capitalization.............................. $13,591,367 $13,741,367
=========== ===========
</TABLE>
ACCOUNTING TREATMENT
For financial reporting purposes, the Trust will be treated as a subsidiary
of GWFC and, accordingly, the accounts of the Trust will be included in the
consolidated financial statements of GWFC. The Preferred Securities will be
presented as a separate line item in the consolidated balance sheets of GWFC,
under the caption "Company-obligated mandatorily redeemable preferred
securities of GWFC's subsidiary trust, holding solely $ aggregate principal
amount of % subordinated deferrable interest notes, due 2027, of GWFC," and
appropriate disclosures about the Trust Securities, the Guarantee, the
Subordinated Notes and the Subordinated Indenture will be included in the
notes to the consolidated financial statements. For financial reporting
purposes, GWFC will record distributions payable on the Preferred Securities
as other expense in the consolidated statement of income.
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
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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 material 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.
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 January , 1997, 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 March 31, 1997, when, as and if
available for payment, except as otherwise described below. The first
distribution will be in an amount equal to $ per Preferred Security.
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
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<PAGE>
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 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 or Los Angeles, California are authorized or required by any
applicable law to close.
MANDATORY REDEMPTION
The Subordinated Notes will mature on March 31, 2027, unless shortened as
described under "Right to Shorten Maturity" below or 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 March
31, 2002, or at any time in certain circumstances upon the occurrence of a Tax
Event or in whole (but not in part) for a limited time upon the occurrence of
a Capital Treatment 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."
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
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<PAGE>
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 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 within 90 days of the date of such opinion 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 or GWFC 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.
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<PAGE>
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 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.
CAPITAL TREATMENT EVENT REDEMPTION
Upon the occurrence and during the continuation of a Capital Treatment
Event, GWFC has the right to redeem the Subordinated Notes in whole (but not
in part) at any time within 90 days following the occurrence of such Capital
Treatment Event and thereby cause a mandatory redemption of the Preferred
Securities.
RIGHT TO SHORTEN MATURITY
If a Tax Event occurs which relates to the deductibility of interest payable
by GWFC on the Subordinated Notes, and if the Redemption Tax Opinion relating
to such Tax Event states that the risk of non-deductibility would be avoided
if the maturity of the Subordinated Notes were shortened, GWFC shall have the
right to shorten the maturity of the Subordinated Notes by the amount stated
in such opinion to be the minimum extent required in order to avoid such risk,
but in no event may GWFC shorten the maturity of the Subordinated Notes to a
stated maturity of less than 19 1/2 years from the date of initial issuance.
In such event, the Preferred Securities would be redeemed as of such earlier
stated maturity of the Subordinated Notes. In addition, upon the exercise of
the right to shorten the maturity of the Subordinated Notes, GWFC will no
longer have the right to redeem the Subordinated Notes prior to the new stated
maturity upon the occurrence of a Tax Event or to further shorten the maturity
of the Subordinated Notes.
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 through the Property Trustee 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
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<PAGE>
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, provided that the acquiror
is not the holder of the Common Securities or the obligor under the
Subordinated Indenture.
LIQUIDATION OF TRUST AND DISTRIBUTION OF SUBORDINATED NOTES TO HOLDERS
GWFC will have the right at any time to liquidate the Trust and cause
Subordinated Notes to be distributed to the holders of the Preferred
Securities in exchange therefor upon liquidation of the Trust.
Under current United States federal income tax law, a distribution of
Subordinated Notes in exchange for Preferred Securities should not be a
taxable event to holders of the Preferred Securities. Should there be a change
in law, a change in legal interpretation, a Tax Event or other circumstances,
however, the distribution of the Subordinated Notes could be a taxable event
to holders of the Preferred Securities. See "Certain Federal Income Tax
Consequences--Receipt of Subordinated Notes or Cash Upon Liquidation of the
Trust." If GWFC elects neither to redeem the Subordinated Notes prior to
maturity nor to liquidate the Trust and distribute the Notes to holders of the
Preferred Securities in exchange therefor, the Preferred Securities will
remain outstanding until the stated maturity of the Subordinated Notes.
If GWFC elects to liquidate the Trust and thereby causes the Subordinated
Notes to be distributed to holders of the Preferred Securities in exchange
therefor upon liquidation of the Trust, GWFC shall continue to have the right
to shorten or extend the maturity of the Subordinated Notes, subject to
certain conditions as described under "Description of the Subordinated Notes--
Right to Shorten Maturity" and "--Option to Extend Maturity Date."
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 in an aggregate stated principal or liquidation amount, as
applicable, equal to the aggregate stated liquidation amount of the Preferred
Securities, with accrued and unpaid interest or dividends, as the case may be,
equal to accrued and unpaid distributions on the Preferred Securities, have
been distributed on a pro rata basis to the holders of the Preferred
Securities in exchange for such Preferred Securities.
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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.
Pursuant to the Declaration, the Trust shall terminate (i) on March 31,
2052, 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, (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.
If an Event of Default with respect to the Subordinated Notes, constituting
the failure to pay interest or principal on the Subordinated Notes on the date
such interest or principal is otherwise payable, has occurred and is
continuing, then a holder of Trust Securities may directly institute a
proceeding for enforcement of payment to such holder directly of the principal
of or interest on the Subordinated Notes having a principal amount equal to
the aggregate liquidation amount of the Trust Securities of such holder on or
after the respective due date specified in the Subordinated Notes. The holders
of Trust Securities will not be able to exercise directly any other remedy
available to the holders of the Subordinated Notes unless the Property Trustee
fails to do so.
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
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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.
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 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.
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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 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 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 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 as the Trust Securities
(the "Successor Securities"), so long as the Successor Securities rank the
same as the Preferred Securities rank with respect to distributions and
payments upon liquidation, redemption and maturity, (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 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 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
S-17
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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.
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.
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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; provided that if, as a result of such redemption, Direct
Participants would hold fractional interests in the Preferred Securities, DTC
will adjust the amount of the interest of each Direct Participant to be
redeemed to avoid such fractional interest.
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.
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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.
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
of the material terms and provisions of the Subordinated Notes 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, a Second Supplemental
Indenture, dated as of December 6, 1995, and the Third Supplemental Indenture,
dated as of January , 1997 (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, 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 "--Liquidation of Trust and Distribution of Subordinated Notes to
Holders."
S-20
<PAGE>
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 on which the
Preferred Securities are then listed or quoted.
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.
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 $ , ($ , if the Underwriters' over-allotment option is
exercised in full) such amount being the sum of the aggregate stated
liquidation amount 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 March 31, 2027, subject to the election of
GWFC to shorten the maturity as described under "Right to Shorten Maturity"
below or extend the scheduled maturity date of the Subordinated Notes to a
date not later than March 31, 2046, which election to extend the maturity date
is subject to GWFC's satisfying certain financial covenants. See "Option to
Extend Maturity Date" below.
If Subordinated Notes are distributed to holders of Preferred Securities in
liquidation of such holders' interests in the Trust, such Subordinated Notes
will initially be issued as a Global Security (as defined below). As described
herein, under certain limited circumstances, 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 are
issued in certificated form, such 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 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. In the event
Subordinated Notes are issued in certificated form, principal and interest
will be payable, the transfer of the Subordinated Notes will be registrable
and Subordinated Notes will be exchangeable for Subordinated Notes of other
denominations of a like aggregate principal amount at the corporate trust
office of the Indenture Trustee; 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
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 March 31, 1997, 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.
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 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.
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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 such 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.
RIGHT TO SHORTEN MATURITY
If a Tax Event occurs which relates to the deductibility of interest payable
by GWFC on the Subordinated Notes, and if the Redemption Tax Opinion relating
to such Tax Event states that the risk of non-deductibility would be avoided
if the maturity of the Subordinated Notes were shortened, GWFC shall have the
right to shorten the maturity of the Subordinated Notes by the amount stated
in such opinion to be the minimum extent required in order to avoid such risk,
but in no event may GWFC shorten the maturity of the Subordinated Notes to a
stated maturity of less than 19 1/2 years from the date of initial issuance.
In such event, the Preferred Securities would be redeemed as of such earlier
stated maturity of the Subordinated Notes. In addition, upon the exercise of
the right to shorten the maturity of the Subordinated Notes, GWFC will no
longer have the right to redeem the Subordinated Notes prior to the new stated
maturity upon the occurrence of a Tax Event or to further shorten the maturity
of the Subordinated Notes.
OPTION TO EXTEND MATURITY DATE
The maturity date of the Subordinated Notes is March 31, 2027 (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 18 months 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 or extend beyond the maturity of the Subordinated Notes. Upon the
termination of any Extension Period
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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 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 March 31, 2002, or at any time in certain
circumstances upon the occurrence of a Tax Event or in whole (but not in part)
for a limited time upon the occurrence of a Capital Treatment Event as
described under "Description of the Offered Preferred Securities--Special
Event Redemption or Distribution" and "--Capital Treatment Event Redemption,"
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 Interest 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.
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
Notes will also be subordinated to all other subordinated debt (unless
otherwise stated) of GWFC, other than subordinated debt issued to trusts
similar to the Trust. The Subordinated Indenture does not limit the aggregate
amount of Senior Indebtedness which may be issued by GWFC. As of September 30,
1996, 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 September 30, 1996, such subsidiaries had
total liabilities of approximately $39.9 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 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: (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."
S-24
<PAGE>
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, the Subordinated Notes 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
represented by the Global Security will not be exchangeable for, and will not
otherwise be issuable as, Subordinated Notes 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 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 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 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. 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 herein
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 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 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 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.
MISCELLANEOUS
The Subordinated Indenture will provide that GWFC, in its capacity as issuer
of the Subordinated Notes, will pay all costs, expenses, debts and obligations
of the Trust other than with respect to the Trust Securities.
S-25
<PAGE>
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, expenses, debts and obligations of the
Trust (other than with respect to the Trust Securities); and (iv) the
Declaration provides that the Regular Trustees shall not take any action, or
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 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. 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.
The obligations of GWFC under the Declaration, the Guarantee, the
Subordinated Notes and the Subordinated Indenture, taken together, provide a
full, irrevocable and unconditional guarantee on a subordinated basis by GWFC
of payments due on the Preferred Securities. See "Description of Guarantee--
General" in the accompanying Prospectus.
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 (i) 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, or persons whose functional currency is not the United States
dollar, (ii) does not include any description of the tax laws of any state or
local government or of any foreign government that may be applicable to the
Preferred Securities, and (iii) does not deal with persons holding Preferred
Securities as part of a position in a "straddle" or as part of a "hedging,"
"conversion" or
S-26
<PAGE>
other integrated investment transaction for federal income tax purposes. 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 LLP, special tax 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 will generally 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 its pro rata share of the interest
income, including original issue discount (as described below), paid or
accrued with respect to its undivided interest in those Subordinated Notes
whether or not cash is actually distributed to the U.S. Holder. See "Interest
Income and Original Issue Discount."
CLASSIFICATION OF THE SUBORDINATED NOTES
In connection with the issuance of the Subordinated Notes, O'Melveny & Myers
LLP, special tax counsel to GWFC and the Trust, will render its opinion
generally to the effect that, under then current United States federal income
tax law and assuming full compliance with the terms of the Indenture (and
certain other documents), and based on certain facts and assumptions contained
in such opinion, the Subordinated Notes held by the Trust will be classified
for United States federal income tax purposes as indebtedness of GWFC. 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.
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Under recently issued Treasury regulations applicable to debt instruments
issued on or after August 13, 1996 (the "Regulations"), a "remote" contingency
that stated interest will not be timely paid will be ignored in determining
whether a debt instrument is issued with original issue discount ("OID"). GWFC
believes that the likelihood of its exercising its option to defer payments is
remote. Based on the foregoing, GWFC believes that the Subordinated Notes will
not be considered to be issued with OID at the time of their original issuance
and, accordingly, a holder of a Preferred Security should include in gross
income such holder's allocable share of interest on the Subordinated Notes.
Under the Regulations, if GWFC exercised its option to defer any payment of
interest, the Subordinated Notes would at that time be treated as issued with
OID, and all stated interest on the Subordinated Notes would thereafter be
treated as OID as long as the Subordinated Notes remained outstanding. In such
event, all of a holder's taxable interest income with respect to the
Subordinated Notes would be accounted for as OID on an
S-27
<PAGE>
economic accrual basis regardless of such holder's method of tax accounting,
and actual distributions of stated interest would not be reported as taxable
income. Consequently, a holder would be required to include in gross income
OID even though GWFC would not make any actual cash payments during an
Extension Period.
The Regulations have not been addressed in any rulings or other
interpretations by the Internal Revenue Service (the"IRS"), and it is possible
that the IRS could take a position contrary to the interpretation herein.
Subsequent uses of the term "interest" in this summary include income in the
form of OID.
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 captions "Description of
the Offered Preferred Securities--Special Event Redemption or Distribution,"
and "--Liquidation of Trust and Distribution of Subordinated Notes to
Holders," 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.
If, however, the liquidation of the Trust were to occur because the Trust is
subject to United States federal income tax with respect to income accrued or
received on the Subordinated Notes, the distribution of the Subordinated Notes
to holders of Preferred Securities by the Trust would be a taxable event to
the Trust and each holder, and the holder would recognize gain or loss as if
the holder had exchanged its Preferred Securities for the Subordinated Notes
it received upon the liquidation of the Trust. A holder of Preferred
Securities will include interest in income in respect of Subordinated Notes
received from the Trust in the manner described above under "Interest Income
and Original Issue Document."
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.
SALES OF PREFERRED SECURITIES
A holder that sells (including a redemption for cash) Preferred Securities
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. Assuming that GWFC does not exercise its option to defer
payment of interest on the Subordinated Notes, and the Preferred Securities
are not considered issued with OID, a holder's adjusted tax basis in the
Preferred Securities generally will be its initial purchase price. If the
Subordinated Notes are deemed
S-28
<PAGE>
to be issued with OID as a result of GWFC's deferral of any interest payment
or otherwise, a holder's tax basis in the Preferred Securities generally will
be its initial purchase price, increased by OID previously includible in such
holder's gross income to the date of disposition and decreased by
distributions or other payments received on the Preferred Securities since and
including the date of the first Extension Period. Such gain or loss generally
will be a capital gain or loss (except to the extent any amount realized is
treated as a payment of accrued interest with respect to such holder's pro
rata share of the Subordinated Notes required to be included in income) and
generally will be long-term capital gain or loss if the Preferred Securities
have been held for more than one year.
Should GWFC exercise its option to defer any payment of interest on the
Subordinated Notes, the Preferred Securities may trade at a price that does
not accurately reflect the value of accrued but unpaid interest with respect
to the underlying Subordinated Notes. In the event of such a deferral, a
holder who disposes of its Preferred Securities between record dates for
payments of distributions thereon will be required to include in income as
ordinary income accrued but unpaid interest on the Subordinated Notes to the
date of disposition as OID and to add such amount to its adjusted tax basis in
its 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,
such 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.
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.
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.
POSSIBLE TAX LAW CHANGES
On March 19, 1996, President Clinton proposed the Bill, which would have,
among other things, generally denied corporate issuers a deduction for
interest in respect of certain debt obligations, such as the Subordinated
Notes issued on or after December 7, 1995. On March 29, 1996, Senate Finance
Committee Chairman William V. Roth, Jr. and House Ways and Means Committee
Chairman Bill Archer issued the joint statement, which indicated their intent
that the Bill, if adopted by either of the tax-writing committees of Congress,
would have an effective date that is no earlier than the date of "appropriate
Congressional action." In addition, Senator Daniel Patrick Moynihan and
Representatives Sam M. Gibbons and Charles B. Rangel wrote the Democrat
Letters, which supported the view expressed in the Joint Statement. Based upon
the Joint Statement, it is expected that if the Proposed Legislation were to
be enacted, such legislation would not apply to the Subordinated Notes. There
can be no assurances, however, that the effective date guidance contained in
the Joint Statement and Democrat Letters will be incorporated into the Bill,
if enacted, or that other legislation enacted after the date hereof will not
otherwise adversely affect the ability of GWFC to deduct the interest payable
on the Subordinated Notes. Accordingly, there can be no assurance that a Tax
Event will not occur. See "Description of the Offered Preferred Securities--
Special Event Redemption or Distribution" and "Risk Factors--Possible Tax Law
Changes Affecting the Preferred Securities."
S-29
<PAGE>
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.
CERTAIN ERISA CONSIDERATIONS
Each fiduciary of a pension, profit-sharing or other employee benefit plan
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") (a "Plan"), should consider the fiduciary standards of ERISA in the
context of the Plan's particular circumstances before authorizing an
investment in the Preferred Securities. Accordingly, among other factors, the
fiduciary should consider whether the investment would satisfy the prudence
and diversification requirements of ERISA and would be consistent with the
documents and instruments governing the Plan.
Section 406 of ERISA and Section 4975 of the Code prohibit Plans, as well as
individual retirement accounts and Keogh plans subject to Section 4975 of the
Code (also "Plans"), from engaging in certain transactions involving "plan
assets" with persons who are "parties in interest" under ERISA or
"disqualified persons" under the Code ("Parties in Interest") with respect to
such Plan. A violation of these "prohibited transaction" rules may result in
an excise tax or other liabilities under ERISA and/or Section 4975 of the Code
for such persons, unless exemptive relief is available under an applicable
statutory or administrative exemption. Employee benefit plans that are
governmental plans (as defined in Section 3(32) of ERISA), certain church
plans (as defined in Section 3(33) of ERISA) and foreign plans (as described
in Section 4(b)(5) of ERISA) are not subject to the requirements of ERISA or
Section 4975 of the Code.
Under a regulation (the "Plan Assets Regulation") issued by the U.S.
Department of Labor (the "DOL"), the assets of the Trust would be deemed to be
"plan assets" of a Plan for purposes of ERISA and Section 4975 of the Code if
"plan assets" of the Plan were used to acquire an equity interest in the Trust
and no exception were applicable under the Plan Assets Regulation. An "equity
interest" is defined under the Plan Assets Regulation as any interest in an
entity other than an instrument which is treated as indebtedness under
applicable local law and which has no substantial equity features and
specifically includes a beneficial interest in a trust.
Pursuant to an exception contained in the Plan Assets Regulation, the assets
of the Trust would not be deemed to be "plan assets" of investing Plans if,
immediately after the most recent acquisition of any equity interest in the
Trust, less than 25% of the value of each class of equity interests in the
Trust were held by Plans, other employee benefit plans not subject to ERISA or
Section 4975 of the Code (such as governmental, church and foreign plans), and
entities holding assets deemed to be "plan assets" of any Plan (collectively,
"Benefit Plan Investors"), or if the Preferred Securities were "publicly-
offered securities" for purposes of the Plan Assets Regulation. No assurance
can be given that the value of the Preferred Securities held by Benefit Plan
Investors will be less than 25% of the total value of such Preferred
Securities at the completion of the initial offering or thereafter, and no
monitoring or other measures will be taken with respect to the satisfaction of
the conditions to this exception. In addition, the Preferred Securities may be
"publicly-offered securities" under the Plan Assets Regulation if they are
widely held (i.e., held by 100 or more investors independent of the Trust and
each other) and freely transferable; no assurance can be given that these
conditions will be met. All of the Common Securities will be purchased and
initially held by GWFC.
Certain transactions involving the Trust could be deemed to constitute
direct or indirect prohibited transactions under ERISA and Section 4975 of the
Code with respect to a Plan if the Preferred Securities were acquired with
"plan assets" of such Plan and the assets of the Trust were deemed to be "plan
assets" of Plans investing in the Trust. For example, if GWFC is a Party in
Interest with respect to an investing Plan (either
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<PAGE>
directly or by reason of its ownership of its subsidiaries), extensions of
credit between GWFC and the Trust (as represented by the Subordinated Notes
and the Guarantee) would likely be prohibited by Section 406(a)(1)(B) of ERISA
and Section 4975(c)(1)(B) of the Code, unless exemptive relief were available
under an applicable administrative exemption (see below). In addition, if GWFC
were considered to be a fiduciary with respect to the Notes as a result of
certain powers it holds (such as the powers to remove and replace the Property
Trustee), certain operations of the Notes, including the optional redemption
of the Subordinated Notes, could be considered to be prohibited transactions
under Section 406(b) of ERISA and Section 4975(c)(1)(E) of the Code. In
addition, each investing plan, by purchasing the Preferred Securities, will be
deemed to have directed the Trust to invest in the Subordinated Notes, to have
appointed the Property Trustee, and to have agreed that GWFC is not a
fiduciary with respect to such plan's interest in the Preferred Securities.
The DOL has issued five prohibited transaction class exemptions ("PTCEs")
that may provide exemptive relief if required for direct or indirect
prohibited transactions that may arise from the purchase or holding of the
Preferred Securities if assets of the Trust were deemed to be "plan assets" of
Plans investing in the Trust as described above. Those class exemptions are
PTCE 96-23 (for certain transactions determined by in-house asset managers),
PTCE 95-60 (for certain transactions involving insurance company general
accounts), PTCE 91-38 (for certain transactions involving bank collective
investment funds), PTCE 90-1 (for certain transactions involving insurance
company separate accounts), and PTCE 84-14 (for certain transactions
determined by independent qualified asset managers).
Because the Preferred Securities may be deemed to be equity interests in the
Trust for purposes of applying ERISA and Section 4975 of the Code, the
Preferred Securities may not be purchased or held by any Plan, any entity
whose underlying assets include "plan assets" by reason of any Plan's
investment in the entity (a "Plan Asset Entity") or any person investing "plan
assets" of any Plan, unless such purchaser or holder is eligible for the
exemptive relief available under PTCE 96-23, 95-60, 91-38 90-1 or 84-14 or
another applicable exemption. Any purchaser or holder of the Preferred
Securities or any interest therein will be deemed to have represented by its
purchase and holding thereof that it either (a) is not a Plan or (b) is
eligible for the exemptive relief available under PTCE 96-23, 95-60, 91-38,
90-1 or 84-14 or another applicable exemption with respect to such purchase or
holding. If a purchaser or holder of the Preferred Securities that is a Plan
or a Plan Asset Entity elects to rely on an exemption other than PTCE 96-23,
95-60, 91-38, 90-1 or 84-14, GWFC and the Trust may require a satisfactory
opinion of counsel or other evidence with respect to the availability of such
exemption for such purpose and holding.
Due to the complexity of these rules and the penalties that may be imposed
upon persons involved in non-exempt prohibited transactions, it is
particularly important that fiduciaries or other persons considering
purchasing the Preferred Securities on behalf of or with "plan assets" of any
Plan consult with their counsel regarding the potential consequences if the
assets of the Trust were deemed to be "plan assets" and the availability of
exemptive relief under PTCE 96-23, 95-60, 91-38, 90-1 or 84-14 or any other
applicable exemption.
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<PAGE>
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement, GWFC and
the Trust have agreed that the Trust will sell to each of the Underwriters
named below, and each of such Underwriters has severally agreed to purchase
from the Trust, the respective number of Preferred Securities set forth
opposite its name below:
<TABLE>
<CAPTION>
NUMBER OF
PREFERRED
UNDERWRITER SECURITIES
----------- ----------
<S> <C>
Goldman, Sachs & Co. .............................................
Merrill Lynch, Pierce, Fenner & Smith
Incorporated......................................................
Lehman Brothers Inc. .............................................
Smith Barney Inc. ................................................
---------
Total......................................................... 6,600,000
=========
</TABLE>
Under the terms and conditions of the Underwriting Agreement, the
Underwriters are committed to take and pay for all the Preferred Securities
offered hereby, if any are taken.
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 Underwriters.
The Trust and the Company have granted the Underwriters an option
exercisable 30 days after the date of this Prospectus Supplement to purchase
up to an aggregate of 990,000 additional Preferred Securities to cover over-
allotments, if any. If the Underwriters exercise their over-allotment option,
the Underwriters have severally agreed, subject to certain conditions, to
purchase approximately the same percentage thereof that the number of
Preferred Securities to be purchased by each of them, as shown in the
foregoing table, bears to the 6,600,000 Preferred Securities offered.
In view of the fact that the proceeds from the sale of the Preferred
Securities will be used to purchase the Subordinated Notes issued by GWFC, the
Underwriting Agreement provides that GWFC will pay as Underwriters'
compensation for the Underwriters' arranging the investment therein of such
proceeds an amount of $ per Preferred Security for the accounts of the
several Underwriters.
GWFC and the Trust have agreed that, during the period beginning from the
date of the Underwriting Agreement and continuing to and including ,
they will not offer, sell, contract to sell or otherwise dispose of any
Preferred Securities, any other beneficial interests in the assets of the
Trust, or any preferred securities or any other securities of the Trust or
GWFC which are substantially similar to the Preferred Securities, including
any guarantee of such securities, or any securities convertible into or
exchangeable for or representing the right to receive securities, preferred
securities or any such substantially similar securities of either the Trust or
GWFC, without the prior written consent of the Underwriters, except for the
Preferred Securities offered in connection with this offering.
S-32
<PAGE>
Prior to this offering, there has been no public market for the Preferred
Securities. The Underwriters have advised GWFC that they intend to make a
market in the Preferred Securities, but are not obligated to do so and may
discontinue market making at any time without notice. No assurance can be
given as to the liquidity of the trading market for the Preferred Securities.
GWFC and the Trust have agreed to indemnify the several 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.
Certain of the Underwriters or their affiliates have provided from time to
time, and expect to provide in the future, investment or commercial banking
services to GWFC and its affiliates, for which such Underwriters or their
affiliates have received or will receive customary fees and commissions.
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 and certain matters relating thereto will be
passed upon for GWFC by O'Melveny & Myers LLP. Brown & Wood LLP will act as
counsel to the Underwriters.
S-33
<PAGE>
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRE-
SENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS SUPPLEMENT OR THE
PROSPECTUS, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS SUPPLEMENT AND
THE PROSPECTUS DO NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN
OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES DESCRIBED IN THIS PRO-
SPECTUS SUPPLEMENT OR AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY
SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS
UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS
NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CRE-
ATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF GWFC SINCE
THE DATE HEREOF OR THAT THE INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT
AS OF ANY TIME SUBSEQUENT TO ITS DATE.
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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-20
Effect of Obligations Under the Subordinated Notes and the Guarantee...... S-26
Certain Federal Income Tax Consequences................................... S-26
Certain ERISA Considerations.............................................. S-30
Underwriting.............................................................. S-32
Legal Matters............................................................. S-33
</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.............................................. 14
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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GREAT WESTERN FINANCIAL TRUST II
% PREFERRED SECURITIES, SERIES A
FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN, BY
GREAT WESTERN FINANCIAL CORPORATION
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PROSPECTUS SUPPLEMENT
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GOLDMAN, SACHS & CO.
MERRILL LYNCH & CO.
LEHMAN BROTHERS
SMITH BARNEY INC.
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