EXHIBIT 1
EXECUTION COPY
4,000,000 PREFERRED SECURITIES
GREAT WESTERN FINANCIAL TRUST I
(A DELAWARE TRUST)
8 1/4 % TRUST ORIGINATED PREFERRED SECURITIES ("TOPRS")(SM)
(LIQUIDATION AMOUNT OF $25 PER PREFERRED SECURITY)
PURCHASE AGREEMENT
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December 6, 1995
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
GOLDMAN, SACHS & CO.
BEAR, STEARNS & CO. INC.
DEAN WITTER REYNOLDS INC.
SMITH BARNEY INC.
as Representatives of the several Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Great Western Financial Trust I (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12 of the Delaware Code, 12 Del. C. Section 3801 et
seq.) and Great Western Financial Corporation, a Delaware corporation (the
"Company" and, together with the Trust, the "Offerors") confirm their agreement
(the "Agreement") with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated ("Merrill Lynch"), Goldman, Sachs & Co., Bear, Stearns & Co.
Inc., Dean Witter Reynolds Inc. and Smith Barney Inc., and each of the other
Underwriters named in Schedule A hereto (collectively, the "Underwriters", which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom you are acting as representatives (in such
capacity, you shall hereinafter be referred to as the "Representatives"), with
___________________
(SM) "Trust Originated Preferred Securities" and "TOPrS" are service marks
of Merrill Lynch & Co., Inc.
respect to the sale by the Trust and the purchase by the Underwriters, acting
severally and not jointly, of the respective numbers of 8 1/4% Trust Originated
Preferred Securities (liquidation amount of $25 per preferred security) of the
Trust (the "Preferred Securities") set forth in Schedule A hereto. The Preferred
Securities will be guaranteed by the Company with respect to distributions and
payments upon liquidation, redemption and otherwise (the "Preferred Securities
Guarantee") pursuant to the Preferred Securities Guarantee Agreement (the
"Preferred Securities Guarantee Agreement"), dated as of December 6, 1995,
between the Company and The First National Bank of Chicago ("First Chicago"), as
trustee (the "Guarantee Trustee"), and entitled to the benefits of certain
backup undertakings described in the Prospectus (as defined herein) with respect
to the Company's agreement pursuant to the Supplemental Indenture (as defined
herein) to pay all expenses relating to administration of the Trust. Upon the
occurrence, if any, of a "Regulatory Event" as defined in the Prospectus, at the
option of the Company the Adjusted Subordinated Notes (as defined below) will be
converted into the depositary shares (the "Depositary Shares") representing
interests in the Company Preferred Stock (as defined below), unless prior to
such conversion the holder of a Preferred Security elects not to convert such
holder's Adjusted Subordinated Notes, in which event such holder will instead be
entitled to receive the Adjusted Subordinated Notes. Each Depositary Share, if
any, will represent a one-tenth interest in a share of the Company's 8 1/4%
Cumulative Preferred Stock, par value $1.00 per share, liquidation value, $250
per share (the "Company Preferred Stock"). The Depositary Shares, if any, will
be evidenced by Depositary Receipts (the "Depositary Receipts") to be issued
pursuant to a Deposit Agreement (the "Deposit Agreement") among the Company, the
depositary to be named therein (the "Depositary") and the holders from time to
time of the Depositary Receipts issued thereunder.
The Offerors have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-63057) for the
registration under the Securities Act of 1933, as amended (the "1933 Act"), of
certain securities, including (i) the Preferred Securities, (ii) the Preferred
Securities Guarantee, (iii) the Company Preferred Stock, (iv) the Depositary
Shares, and (v) debt securities of the Company, including the 8 1/4%
Subordinated Deferrable Interest Notes (such Subordinated Deferrable Interest
Notes, including the Adjusted Subordinated Notes bearing an interest rate of 7
3/4% per annum (the "Adjusted Subordinated Notes"), herein, unless the context
otherwise requires, collectively, the "Subordinated Notes") to be issued and
sold to the Trust by the Company (the securities set forth in the foregoing
clauses (i) to (v) inclusive, collectively, the "Registered Securities") and
the offering
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thereof from time to time in accordance with Rule 415 under the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations"),
which registration statement has been declared effective by the Commission and
copies of which have heretofore been delivered to you. Such registration
statement (as amended, if applicable), including all documents incorporated or
deemed to be incorporated by reference therein and the information, if any,
deemed to be part thereof pursuant to Rule 430A(b) of the 1933 Act Regulations,
as from time to time amended or supplemented pursuant to the 1933 Act, the
Securities Exchange Act of 1934, as amended (the "1934 Act") or otherwise, is
hereinafter referred to as the "Registration Statement." The Offerors propose to
file with the Commission pursuant to Rule 424(b) of the 1933 Act Regulations the
prospectus supplement dated the date hereof (the "Prospectus Supplement")
relating to the Preferred Securities and the prospectus dated December 1, 1995
(the "Base Prospectus") relating to the Registered Securities, and has
previously advised you of all further information (financial and other) with
respect to the Company set forth therein. The Base Prospectus together with the
Prospectus Supplement, in their respective forms on the date hereof (being the
forms in which they are to be filed with the Commission pursuant to Rule 424(b)
of the 1933 Act Regulations), including all documents incorporated or deemed to
be incorporated by reference therein through the date hereof, are hereinafter
referred to as the "Prospectus," except that if any revised prospectus or
prospectus supplement shall be provided to the Underwriters by the Offerors for
use in connection with the offering of the Preferred Securities which differs
from the Prospectus (whether or not such revised prospectus or prospectus
supplement is required to be filed by the Offerors pursuant to Rule 424(b) of
the 1933 Act Regulations), the term "Prospectus" shall refer to such revised
prospectus or prospectus supplement, as the case may be, from and after the time
it is first provided to the Underwriters for such use. Unless the context
otherwise requires, all references in this Agreement to documents, financial
statements and schedules and other information which is "contained," "included,"
"stated," "described" or "referred to" in the Registration Statement or the
Prospectus (and all other references of like import) shall be deemed to mean and
include all such documents, financial statements and schedules and other
information which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be; and all references
in this Agreement to amendments or supplements to the Registration Statement or
the Prospectus shall be deemed to mean and include the filing of any document
under the 1934 Act after the date of this Agreement which is or is deemed to be
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
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The Offerors understand that the Underwriters propose to make a public
offering of the Preferred Securities as soon as the Representatives deem
advisable after this Agreement has been executed and delivered.
The entire proceeds from the sale of the Preferred Securities will be
combined with the entire proceeds from the sale by the Trust to the Company of
its common securities (the "Common Securities"), as guaranteed by the Company,
to the extent set forth in the Prospectus, with respect to distributions and
payments upon liquidation and redemption (the "Common Securities Guarantee" and
together with the Preferred Securities Guarantee, the "Guarantees") pursuant to
the Common Securities Guarantee Agreement (the "Common Securities Guarantee
Agreement" and, together with the Preferred Securities Guarantee Agreement, the
"Guarantee Agreements"), and will be used by the Trust to purchase the
Subordinated Notes issued by the Company. The Preferred Securities and the
Common Securities will be issued pursuant to the amended and restated
declaration of trust of the Trust, dated as of December 6, 1995 (the
"Declaration"), among the Company, as Sponsor, J. Lance Erikson, Carl F. Geuther
and Bruce F. Antenberg (the "Regular Trustees"), First Chicago, as property
trustee (the "Property Trustee"), and Michael J. Majchrzak, as Delaware trustee
(the "Delaware Trustee," and together with the Regular Trustees and the Property
Trustee, the "Trustees"), and the holders from time to time of undivided
beneficial interests in the assets of the Trust. The Subordinated Notes will be
issued pursuant to an indenture, dated as of September 12, 1990, as amended and
supplemented by the First Supplemental Indenture dated as of April 30, 1993
(together, the "Base Indenture"), between the Company and Harris Trust and
Savings Bank, as trustee (the "Indenture Trustee"), and a supplement to the Base
Indenture, dated as of December 6, 1995 (the "Supplemental Indenture," and
together with the Base Indenture and any other amendments or supplements
thereto, the "Indenture"), between the Company and the Indenture Trustee.
SECTION 1. Representations and Warranties.
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(a) The Offerors jointly and severally represent and warrant to each
Underwriter as of the date hereof as follows:
(i) The Registration Statement, at the time it became effective
and as of the date hereof, complied and complies in all material respects
with the requirements of the 1933 Act, the 1933 Act Regulations and the
Trust Indenture Act of 1939, as amended (the "1939 Act") and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act
Regulations"). The Registration Statement, at the time it became effective
and the date hereof, did not
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contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus, as of the date hereof (unless the
term "Prospectus" refers to a prospectus which has been provided to the
Underwriters by the Offerors for use in connection with the offering of the
Preferred Securities which differs from the Prospectus filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations, in which
case at the time it is first provided to the Underwriters for such use) and
at Closing Time, does not and will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or omissions
from the Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Offerors in writing by any
Underwriter through the Representatives expressly for use in the
Registration Statement or the Prospectus, or to those parts of the
Registration Statement that constitute the Statements of Qualification of
the Trustees under the 1939 Act, filed as exhibits to the Registration
Statement (the "Forms T-1"). For purposes of this Section 1(a), all
references to the Registration Statement, any post-effective amendments
thereto and the Prospectus shall be deemed to include, without limitation,
any electronically transmitted copies thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis, and Retrieval system
("EDGAR").
(ii) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement or the Prospectus, at the time they
were filed with the Commission, complied in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission under the 1934 Act (the "1934 Act Regulations").
(iii) Since the respective dates as of which information is given
in the Prospectus, except for regular quarterly dividends on the Company's
Common Stock, par value $1.00 per share (the "Common Stock"), and regular
quarterly dividends on the Company's 8 3/4% Cumulative Convertible
Preferred Stock, par value $1.00 per share (the "Convertible Preferred
Stock") and the Company's 8.30% Cumulative Preferred Stock, par value $1.00
per share, (the "Cumulative Preferred Stock"), there has been no dividend
or distribu-
5
tion of any kind declared, paid or made by the Offerors on any class of
their capital stock.
(iv) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus (except for subsequent issuances,
if any, pursuant to reservations or agreements referred to in the
Prospectus); all of the shares of issued and outstanding Common Stock have
been duly authorized and validly issued and are fully paid and non-
assessable and are not subject to any preemptive or other similar rights;
all of the shares of issued and outstanding Convertible Preferred Stock and
Cumulative Preferred Stock have been duly authorized and validly issued and
are fully paid and non-assessable and are not subject to any preemptive or
other similar rights; the Depositary Receipts, if any, when executed and
delivered pursuant to the Deposit Agreement, will be validly issued and
will entitle the persons in whose names the Depositary Shares represented
by such Depositary Receipts are registered to the rights specified in the
Deposit Agreement; the Preferred Securities, the Common Securities, the
Subordinated Notes, the Guarantees, the Company Preferred Stock, the
Depositary Shares and the Depositary Receipts conform to all statements
relating thereto contained in the Prospectus; and the issuance of the
Preferred Securities and the Guarantees is not subject to any preemptive or
other similar rights.
(v) The Trust has been duly created and is validly existing and
in good standing as a business trust under the Delaware Act with the power
and authority to own property and to conduct its business as described in
the Registration Statement and Prospectus and to enter into and perform its
obligations under this Agreement, the Preferred Securities, the Common
Securities and the Declaration, and the Trust is not required to be
qualified to transact business in any other jurisdiction; the Trust is not
a party to or otherwise bound by any agreement other than those described
in the Prospectus; the Trust is and will be classified for United States
federal income tax purposes as a grantor trust and not as an association
taxable as a partnership or corporation; and the Trust is and will be
treated as a consolidated subsidiary of the Company pursuant to generally
accepted accounting principles.
(vi) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company
against payment therefor as described in the Registration Statement and
Prospectus, will be validly issued (subject to the terms of the
Declaration)
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and fully paid and non-assessable undivided beneficial interests in the
assets of the Trust, and will be entitled to the benefits of the
Declaration; the issuance of the Common Securities is not subject to
preemptive or other similar rights; and at the Closing Time, all of the
issued and outstanding Common Securities of the Trust will be directly
owned by the Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(vii) The Declaration has been duly authorized by the Company and,
at the Closing Time, will have been duly executed and delivered by the
Company and the Regular Trustees, and assuming due authorization, execution
and delivery of the Declaration by the Property Trustee and the Delaware
Trustee, the Declaration will, at the Closing Time, be a valid and binding
obligation of the Company and the Regular Trustees, enforceable against the
Company and the Regular Trustees in accordance with its terms, except as
may be limited by bankruptcy, insolvency, moratorium, reorganization,
conservatorship, receivership 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 (the "Bankruptcy Exceptions") and will conform to all
statements relating thereto in the Prospectus; and at the Closing Time, the
Declaration will have been duly qualified under the 1939 Act.
(viii) Each of the Guarantee Agreements has been duly authorized by
the Company (no stockholder action being required) and, when validly
executed and delivered by the Company and, with respect to the Preferred
Securities Guarantee Agreement, assuming due authorization, execution and
delivery thereof by the Guarantee Trustee, each Guarantee Agreement will
constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms except as may be limited
by the Bankruptcy Exceptions; and the Preferred Securities Guarantee
Agreement, at the Closing Time, will have been duly qualified under the
1939 Act.
(ix) The Preferred Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust against payment of
the consideration therefor in accordance with the terms of this Agreement,
will be
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validly issued (subject to the terms of the Declaration) and fully paid and
non-assessable undivided beneficial interests in the assets of the Trust,
and will be entitled to the benefits of the Declaration; and holders of
Preferred Securities will be entitled to the same limitation of personal
liability under Delaware law as extended to stockholders of private
corporations for profit.
(x) The Indenture has been duly authorized by the Company (no
stockholder action being required) and, when the Supplemental Indenture is
validly executed and delivered by the Company, the Indenture will
constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms except as may be limited
by the Bankruptcy Exceptions; and at the Closing Time, the Indenture will
have been duly qualified under the 1939 Act.
(xi) The Subordinated Notes have been duly authorized by the
Company (no stockholder action being required) and, at the Closing Time,
will have been duly executed by the Company; the Subordinated Notes, when
authenticated in the manner provided for in the Indenture and delivered
against payment therefor as described in the Prospectus, will constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms except as may be limited by the
Bankruptcy Exceptions; and the Subordinated Notes will be in the form
contemplated by, and entitled to the benefits of, the Indenture.
(xii) The Company's obligations under the Guarantees are
subordinate and junior in right of payment to all liabilities of the
Company and are, and for so long as the Preferred Securities are
outstanding, will be, pari passu with the most senior preferred stock
issued by the Company.
(xiii) The Subordinated Notes are subordinate and junior in right
of payment to all "Senior Indebtedness" (as defined in the Indenture) of
the Company.
(xiv) Each of the Regular Trustees of the Trust is an employee of
the Company and has been duly authorized by the Company to execute and
deliver the Declaration.
(xv) Neither of the Offerors is an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
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(xvi) The shares of Company Preferred Stock issuable by the
Company upon conversion of the Adjusted Subordinated Notes have been duly
and validly authorized and reserved for issuance upon such conversion by
all necessary corporate action (no stockholder action being required) and
such shares, when issued upon such conversion, will be duly and validly
issued and will be fully paid and non-assessable, and the issuance of such
shares upon such conversion will not be subject to any preemptive or other
similar rights.
(xvii) The Registration Statement is effective under the 1933 Act
and no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
(xviii) Each of the Offerors meets the registrant requirements for
use of Form S-3 and Rule 415 under the 1933 Act Regulations; after giving
effect to the sale of the Preferred Securities and the sale of any other of
the Registered Securities to be issued prior to the delivery of the
Preferred Securities, the aggregate amount of securities which have been
issued and sold by the Offerors pursuant to the Registration Statement will
not exceed the aggregate amount of theretofore unsold Registered Securities
pursuant to the Registration Statement.
(xix) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
properties of the Trust or the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business,
and (B) neither the Company or any of its subsidiaries nor the Trust has
incurred any liability, direct or contingent, or entered into any
transaction, other than in the ordinary course of business, that is
material to the Trust or the Company and its subsidiaries taken as a whole.
(xx) Each of the Offerors is in compliance with all provisions of
Section 1 of the Laws of Florida, Chapter 92-198, An Act Relating to
Disclosure of Doing Business with Cuba.
Any certificate signed by any officer of the Company or any Trustee of the
Trust and delivered to the Representatives or to counsel for the Underwriters
shall be deemed a representation and
9
warranty by the Company or the Trust, as applicable, to each Underwriter as to
the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Trust agrees to
sell to each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Trust, at the price per
Preferred Security of $25.00, the number of Preferred Securities set forth in
Schedule A opposite the name of such Underwriter, plus any additional number of
Preferred Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
(b) Payment of the purchase price for, and delivery of the certificates
evidencing, the Preferred Securities to be purchased by the Underwriters shall
be made at the office of O'Melveny & Myers, 400 South Hope Street, Los Angeles,
California 90071, or at such other place as shall be agreed upon by the
Representatives and the Offerors, at 7:00 a.m., Los Angeles time, on December
11, 1995 (unless postponed in accordance with the provisions of Section 10
hereof), or at such other time as shall be agreed upon by the Representatives
and the Offerors (such time and date being herein called "Closing Time").
Payment shall be made to the Trust by certified or official bank check or checks
in next day funds payable to the order of the Trust against delivery to the
Representatives for the respective accounts of the Underwriters of the
certificates for the Preferred Securities purchased by them. Certificates for
the Preferred Securities shall be in such denominations and registered in such
names as the Representatives may request in writing at least one business day
prior to Closing Time. It is understood that each Underwriter has authorized
the Representatives, for their respective accounts, to accept delivery of,
receipt for, and make payment of the purchase price for, the Preferred
Securities which it has agreed to purchase. Merrill Lynch, individually and not
as representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Preferred Securities to be purchased by
any Underwriter whose check has not been received by Closing Time, but such
payment shall not relieve such Underwriter from its obligations hereunder. The
certificates for the Preferred Securities will be made available for examination
and packaging by the Representatives on or before 10:00 a.m. New York City time
on the last business day prior to Closing Time.
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(c) In view of the fact that the proceeds of the sale of the Preferred
Securities will be invested by the Trust in the Subordinated Notes, the Company
hereby agrees to pay the several Underwriters as compensation (the
"Underwriters' Compensation") for their arranging for the investment therein of
such proceeds, $.7875 per Preferred Security ($3,150,000 in the aggregate);
provided, however, that the compensation per Preferred Security for sales of
10,000 or more Preferred Securities to a single purchaser shall be $.50. Such
Underwriters' Compensation shall be payable to the Underwriters by wire transfer
of immediately available funds to Merrill Lynch or to its order at the Closing
Time.
SECTION 3. Covenants of the Offerors. Each of the Offerors jointly and
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severally covenants with each Underwriter as follows:
(a) Promptly following the execution of this Agreement, the Offerors will
complete and deliver to the Underwriters a Prospectus setting forth the number
of Preferred Securities covered thereby, the names of the Underwriters and the
number of Preferred Securities which each severally has agreed to purchase, the
initial public offering price, the Underwriters' Compensation, the selling
concession and reallowances, if any, and such other information as the
Representatives and the Offerors deem appropriate in connection with the
offering of the Preferred Securities. The Offerors will promptly transmit
copies of the Prospectus to the Commission for filing pursuant to Rule 424 of
the 1933 Act Regulations and will furnish to the Underwriters as many copies of
the Prospectus as the Representatives shall reasonably request. If required by
Rule 430A of the 1933 Act Regulations, the Offerors will prepare and file or
transmit for filing a post-effective amendment to the Registration Statement
(including an amended Prospectus).
(b) The Offerors will notify the Representatives immediately, and confirm
the notice in writing, (i) of the effectiveness of any post-effective amendment
to the Registration Statement, (ii) of the mailing or the delivery to the
Commission for filing of the Prospectus or any supplement to the Prospectus or
any document to be filed pursuant to the 1934 Act, (iii) of the receipt of any
comments from the Commission, (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. The Offerors
will make every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
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(c) The Offerors will give the Representatives notice of their intention
to file or prepare any post-effective amendment to the Registration Statement or
any amendment or supplement to the Prospectus, whether pursuant to the 1934 Act,
the 1933 Act or otherwise, and will furnish the Representatives with copies of
any such amendment or supplement or other document proposed to be filed a
reasonable amount of time prior to such proposed filing and will not file any
such amendment or supplement or other document or use any such prospectus to
which the Representatives or counsel to the Underwriters shall reasonably
object.
(d) The Company will deliver to each Underwriter a copy of each document
incorporated by reference in the Prospectus.
(e) The Offerors will deliver to the Representatives a signed copy of the
registration statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein) and
will also deliver to the Representatives as many conformed copies of the
Registration Statement and of each amendment thereto as the Representatives may
reasonably request.
(f) If any event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel to the Underwriters, to amend or supplement
the Prospectus in order to make the Prospectus not misleading in the light of
circumstances existing at the time it is delivered to a purchaser, the Offerors
will forthwith amend or supplement the Prospectus (in form and substance
reasonably satisfactory to such counsel), whether by filing documents pursuant
to the 1934 Act or otherwise, so that, as so amended or supplemented, the
Prospectus will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is delivered to a purchaser,
not misleading, and the Offerors will furnish to the Underwriters a reasonable
number of copies of such amendment or supplement.
(g) The Offerors will endeavor, in cooperation with the Underwriters, to
qualify the Preferred Securities, the Subordinated Notes and the Depositary
Shares for offering and sale under the applicable securities laws of such states
and other jurisdictions of the United States as the Representatives may
designate; provided, however, that neither of the Offerors shall be obligated to
qualify as a foreign corporation in any jurisdiction in which it is not so
qualified. In each jurisdiction in which the Preferred Securities, the
Subordinated Notes and the Depositary Shares have been so qualified, the
Offerors will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in
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effect for as long as may be required for the distribution of the Preferred
Securities or, in the case of such Subordinated Notes and Depositary Shares, for
as long as such Subordinated Notes and Depositary Shares are issuable as
contemplated by the Prospectus. The Offerors will promptly advise the
Representatives of the receipt by either of the Offerors of any notification
with respect to the suspension of the qualification of the Preferred Securities,
the Subordinated Notes or the Depositary Shares for sale or issuance, as the
case may be, in any such state or jurisdiction or the initiating or threatening
of any proceeding for such purpose.
(h) The Company will, on behalf of the Trust, make generally available to
the Trust's security holders as soon as practicable, but not later than 60 days
after the close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations) covering
a twelve month period beginning not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in said Rule 158)
of the Registration Statement.
(i) The Offerors will use their best efforts to effect the listing of the
Preferred Securities on the New York Stock Exchange; if the Preferred Securities
are exchanged for either or both of the Subordinated Notes and/or the Depositary
Shares, the Company will use its reasonable efforts to effect the listing of the
such securities on the exchange on which the Preferred Securities were then
listed.
(j) The Offerors, during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, will file promptly all documents
required to be filed with the Commission pursuant to Section 13, 14 or 15 of the
1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
(k) The Offerors will use the net proceeds received in connection with the
sale of the Preferred Securities in the manner specified in the Prospectus under
"Use of Proceeds".
(l) During the period beginning the date hereof and continuing for 30 days
from such date, neither the Trust nor the Company will, without the prior
written consent of the Representatives, directly or indirectly, sell, offer to
sell, grant any option for the sale of, or otherwise dispose of, any Preferred
Securities, any equity securities substantially similar to the Preferred
Securities, Subordinated Notes or any debt securities substantially similar to
the Subordinated Notes, or any securities convertible into, exchangeable into or
exercisable
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for Preferred Securities, any equity securities substantially similar to the
Preferred Securities, Subordinated Notes or any debt securities substantially
similar to the Subordinated Notes (except for the Subordinated Notes and the
Preferred Securities offered by the Prospectus).
SECTION 4. Payment of Expenses. The Company will pay all expenses
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incident to the performance of the obligations of the Offerors under this
Agreement, including (i) the printing and filing of the Registration Statement
as originally filed and of each amendment thereto, (ii) the preparation,
issuance and delivery of the certificates for the Preferred Securities, (iii)
the fees and disbursements of the Company's and the Trust's counsel (except,
other than as set forth in the next succeeding paragraph, the fees and expenses
of special counsel to the Trust, Skadden, Arps, Slate, Meagher & Flom) and
accountants, (iv) the qualification of the Preferred Securities, the
Subordinated Notes and the Depositary Shares under securities laws in accordance
with the provisions of Section 3(g) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey, (v) the
printing and delivery to the Underwriters of copies of the Registration
Statement as originally filed and all amendments thereto, of each preliminary
prospectus, and of the Prospectus and any amendments or supplements thereto,
(vi) the reproduction and delivery to the Underwriters of copies of the Blue Sky
Survey, (vii) the fees and expenses of the Indenture Trustee, including the fees
and disbursements of counsel for the Indenture Trustee in connection with the
Indenture, (viii) the fees and expenses of the Property Trustee, including the
fees and disbursements of counsel for the Property Trustee in connection with
the Declaration and the certificate of trust of the Trust, dated September 27,
1995 (the "Certificate of Trust"), (ix) the fee of the National Association of
Securities Dealers, Inc., (x) any fees in connection with the rating of the
Preferred Securities, and if applicable, the Subordinated Notes and the
Depositary Shares, and (xi) the fees and expenses incurred in connection with
the listing on the New York Stock Exchange of the Preferred Securities (and the
related Preferred Guarantee), and if applicable, the Subordinated Notes and the
Depositary Shares, (xii) the cost and charges of any transfer agent or
registrar, and (xiii) the cost of qualifying the Preferred Securities, and if
applicable, the Subordinated Notes and the Depositary Shares, with The
Depository Trust Company.
If this Agreement is cancelled or terminated by the Representatives in
accordance with the provisions of Section 5 or Section 9(a)(i) hereof, the
Company shall reimburse the Underwriters for all of their reasonable out-of-
pocket expenses,
14
including the reasonable fees and disbursements of counsel for the Underwriters
and special counsel for the Trust.
SECTION 5. Conditions of Underwriters' Obligations. The several
---------------------------------------
obligations of the Underwriters to purchase the Preferred Securities pursuant to
this Agreement are subject to the accuracy of the representations and warranties
of the Offerors herein contained, to the accuracy of the statements of the
Company's officers or the Trust's Trustees, as the case may be, made in any
certificate furnished pursuant to the provisions hereof, to the performance by
the Offerors of all of their respective covenants and other obligations
hereunder, and to the following further conditions:
(a) The Registration Statement shall be effective as of the time of
execution of this Agreement; and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission. The
Prospectus shall have been filed with the Commission pursuant to Rule 424(b) no
later than the second business day following the date hereof or transmitted by a
means reasonably calculated to result in filing with the Commission by that date
or by such later date as shall have been consented to by the Representatives.
(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing Time, of Stephen F. Adams,
Esq., Associate General Counsel of the Company (or such other counsel
satisfactory to the Representatives) to the effect that:
(i) Each of the Company and Great Western Bank, a Federal
Savings Bank (the "Bank") is duly qualified to conduct business in each
jurisdiction in which the conduct of its business or the ownership or
leasing of property requires such qualification, except for those
jurisdictions where the failure so to qualify will not have a material
adverse effect on the business of the Company and its subsidiaries taken as
a whole.
(ii) To the best of such counsel's knowledge and information,
the issuance and delivery of the Subordinated Notes and the Guarantees by
the Company and the issuance and sale of the Preferred Securities by the
Trust pursuant to the terms of this Agreement and the execution and
delivery of this Agreement, the Declaration, the Preferred Securities, the
Common Securities, the Indenture, the Subordinated Notes, the Guarantee
Agreements and the Deposit Agreement, the issuance of the Company Preferred
Stock, the
15
issuance of the Deposit Receipts pursuant to the Deposit Agreement, and the
conversion of the Adjusted Subordinated Notes into the Depositary Shares,
will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Trust or the Company or any of its
subsidiaries pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries may be bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, the effect of which would be
material to the Company and its subsidiaries taken as a whole, nor will any
such action result in any violation of any law, administrative regulation
or administrative or court decree, the effect of which violation would be
material to the Company and its subsidiaries taken as a whole, or the
provisions of the Certificate of Incorporation or bylaws of the Company.
(iii) Such counsel has no knowledge of any action, suit or
proceeding pending or threatened against the Trust or the Company or any of
its subsidiaries or any of their respective properties before or by any
court, governmental official, commission, board, or other administrative
agency which would materially and adversely affect the financial condition
or results of operations of the Trust or the Company and its subsidiaries
taken as a whole, except as may be disclosed and correctly summarized in
the Prospectus.
(iv) The Registration Statement is effective under the 1933 Act
and, to the best of such counsel's knowledge and information, no stop order
suspending the effectiveness of the Registration Statement has been issued
under the 1933 Act or proceedings therefor initiated or threatened by the
Commission.
(v) No holders of securities of the Offerors have rights to
require either of the Offerors to arrange for the offer or sale of such
securities in connection with the transactions contemplated by this
Agreement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
California or the United States, to the extent deemed proper and specified in
such opinion, upon the opinion of other counsel who are satisfactory to counsel
to the Underwriters and (B) as to matters of fact, to the extent deemed proper,
on certificates of the Trustees of the Trust and
16
responsible officers of the Company and its subsidiaries, as applicable, and
public officials.
(2) The favorable opinion, dated as of Closing Time, of O'Melveny & Myers,
counsel for the Company (or such other counsel satisfactory to the
Representatives), to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Delaware and
has the corporate power and corporate authority to conduct the business in
which it is generally engaged as described in the Prospectus and to enter
into and perform its obligations under this Agreement and the Indenture, to
issue the Subordinated Notes, the Guarantees, the Company Preferred Stock,
and the Deposit Receipts pursuant to the Deposit Agreement, and to convert
the Adjusted Subordinated Notes into the Depositary Shares.
(ii) The Bank has been duly organized and is validly existing and
in good standing under the laws of the United States, has been authorized
by the Office of Thrift Supervision to conduct the business of a federal
savings bank and has the corporate power and corporate authority to conduct
the business in which it is generally engaged as described in the
Prospectus.
(iii) All of the outstanding capital stock of the Bank is owned
of record by the Company.
(iv) The Company is a savings and loan holding corporation
registered under Section 10 of the Home Owners' Loan Act of 1933, as
amended.
(v) This Agreement has been duly authorized by all necessary
corporate action on the part of the Company and has been duly executed and
(assuming due execution and delivery thereof by the Trust and by the
Representatives, for themselves and as Representatives of the Underwriters)
delivered by the Company; and the issuance and delivery of the Subordinated
Notes and the offering of the Guarantees by the Company and the issuance
and sale of the Preferred Securities by the Trust pursuant to the terms of
this Agreement and the execution and delivery of this Agreement, the
Declaration, the Preferred Securities, the Common Securities, the
Indenture, the Subordinated Notes, the Guarantee Agreements and the Deposit
Agreement, the issuance of the Company Preferred Stock, the issuance of the
Deposit Receipts pursuant to the Deposit Agreement, and the conversion of
the Adjusted Subordinated Notes into the
17
Depositary Shares, will not result in any violation of the Certificate of
Incorporation or bylaws of the Company.
(vi) The Bank is a member of the Federal Home Loan Bank of San
Francisco and the savings accounts of the depositors in the Bank are
insured by the Federal Deposit Insurance Corporation (the "FDIC") in
accordance with the rules and regulations of the FDIC.
(vii) The Declaration has been duly qualified under the 1939 Act.
(viii) All of the outstanding Common Securities of the Trust are
owned of record by the Company.
(ix) Each of the Guarantee Agreements has been duly authorized by
all necessary corporate action on the part of the Company, has been duly
executed and (assuming, with respect to the Preferred Securities Guarantee
Agreement, due authorization, execution and delivery thereof by the
Guarantee Trustee) delivered by the Company, and each of the Guarantee
Agreements constitutes a legally valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except as may be limited by the Bankruptcy Exceptions 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;
and the Preferred Securities Guarantee Agreement has been duly qualified
under the 1939 Act.
(x) The Indenture has been duly authorized by all necessary
corporate action on the part of the Company, has been duly executed and
(assuming due authorization, execution and delivery by the Indenture
Trustee) delivered by the Company and constitutes a legally valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as may be limited by the Bankruptcy
Exceptions; the Indenture has been duly qualified under the 1939 Act.
(xi) The Subordinated Notes are in the form contemplated by the
Indenture, and have been duly authorized by all necessary corporate action
on the part of the Company and, when authenticated and delivered by the
Indenture Trustee in accordance with the provisions of the Indenture and
delivered to the Trust in exchange for the consideration therefor, will
constitute legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as
may be limited by the Bankruptcy Exceptions.
18
(xii) The Declaration has been duly authorized by all necessary
corporate action on the part of the Company, has been duly executed and
(assuming due authorization, execution and delivery by the Delaware Trustee
and the Property Trustee) delivered by the Company and the Regular Trustees
and constitutes a legally valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as may
be limited by the Bankruptcy Exceptions.
(xiii) Neither the Company nor the Trust is an "investment company"
or "controlled" by an "investment company" within the meaning of the 1940
Act.
(xiv) The shares of Company Preferred Stock issuable upon
conversion of the Adjusted Subordinated Notes have been duly authorized and
reserved for issuance upon such conversion by all necessary corporate
action and, when issued upon such conversion, will be validly issued, fully
paid and non-assessable, and the issuance of such shares will not be
subject to any preemptive rights arising by operation of law or under the
Certificate of Incorporation or bylaws of the Company.
(xv) The Registration Statement is effective under the 1933 Act
and, to the best of such counsel's knowledge and information, no stop order
suspending the effectiveness of the Registration Statement has been issued
under the 1933 Act or proceedings therefor initiated or threatened by the
Commission.
(xvi) No consent, authorization or order of, or filing of the
Prospectus with, any California or federal governmental authority is
required in connection with the execution and delivery of this Agreement,
the Declaration, the Indenture, the Guarantee Agreements or the Deposit
Agreement, the offering of the Guarantees, the issuance and delivery of the
Subordinated Notes or the Company Preferred Stock, the issuance of the
Deposit Receipts pursuant to the Deposit Agreement, nor the issuance and
sale of the Preferred Securities by the Trust pursuant to the terms of this
Agreement, other than such authorizations and orders as have been applied
for under the 1934 Act and such consents, authorizations and orders as have
been obtained or filings as have been made, and except as may be required
under state securities or blue sky laws with respect to which such counsel
need express no opinion.
19
(xvii) Assuming the due execution and delivery of the Depositary
Receipts by or on behalf of the Depositary against the deposit of the
Company Preferred Stock pursuant to the Deposit Agreement, the persons in
whose names the Depositary Shares represented by such Depositary Receipts
are registered will be entitled to the rights specified in the Deposit
Agreement.
(xviii) The Registration Statement, as of the date it was declared
effective by the Commission, appeared on its face to comply in all material
respects with the requirements as to form for registration statements on
Form S-3 under the 1933 Act and the 1933 Act Regulations, except that no
opinion need be expressed concerning the financial statements and other
financial and statistical information contained or incorporated by
reference therein or the Forms T-1.
(xix) Each of the documents filed pursuant to the 1934 Act and
incorporated by reference in the Prospectus appeared on their face to
comply in all material respects with the requirements as to form for
reports on Form 10-K, Form 10-Q and Form 8-K, as the case may be, under the
1934 Act and the rules and regulations thereunder in effect at the
respective dates of their filing, except that no opinion need be expressed
concerning the financial statements and other financial and statistical
information contained or incorporated by reference therein.
(xx) The authorized capital stock of the Company consists of
200,000,000 shares of Common Stock and 10,000,000 shares of Preferred
Stock, par value $1.00 per share.
(xxi) The information in the Base Prospectus under the captions
"Description of Debt Securities," "Description of Preferred Stock,"
"Description of Depositary Shares," "Description of Common Stock,"
"Description of Preferred Securities," "Description of Guarantee" and
"Description of Securities Warrants" and in the Prospectus Supplement under
the captions "Risk Factors," "Description of Offered Preferred Securities"
(except under the sub-caption "Book-Entry Only Issuance--The Depository
Trust Company"), "Description of the Subordinated Notes," "Effect of
Obligations Under the Subordinated Notes and the Guarantee," "Description
of Depositary Shares" and "Description of Cumulative Preferred Stock"
insofar as it purports to summarize matters of California, New York or
federal law applicable to the Offerors or the provisions of the debt
securities, capital stock and securities warrants of the
20
Company and the Preferred Securities, the Subordinated Notes, the Company
Preferred Stock, the Guarantee Agreements, the Depositary Shares and the
Depositary Receipts, is correct in all material respects.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the federal
laws of the United States of America, the laws of the States of California and
New York and the General Corporation Law of the State of Delaware, to the extent
deemed proper and specified in such opinion, upon the opinion of other counsel
who are satisfactory to counsel for the Underwriters and (B) as to matters of
fact, to the extent deemed proper, on certificates of the Trustees of the Trust
and responsible officers of the Company and the Bank and public officials.
(3) The opinion, dated as of Closing Time, of Skadden, Arps, Slate,
Meagher & Flom, special Delaware counsel for the Trust and special tax counsel
for the Company and the Trust, shall be rendered in form and substance
satisfactory to counsel for the Underwriters to the extent set forth below. To
the extent used herein, (a) "Applicable Law" shall mean only the Delaware Act
and only those other laws of the State of Delaware which, in such counsel's
experience, are normally applicable to transactions of the type contemplated by
this Agreement, and (b) "Governmental Approval" shall mean any consent,
approval, license, authorization or validation of, or filing, recording or
registration with, any governmental authority pursuant to Applicable Law.
(i) The issuance and sale by the Trust of the Preferred
Securities and Common Securities; the execution, delivery and performance
by the Trust of this Agreement; the consummation by the Trust of the
transactions contemplated herein and therein; and compliance by the Trust
with its obligations hereunder and thereunder have been duly authorized by
all necessary action on the part of the Trust and do not and will not
result in any violation of (i) the provisions of the Certificate of Trust
or the Declaration or (ii) any Applicable Law; except that such counsel
does not express any opinion in this paragraph with respect to state
securities (blue sky) laws.
(ii) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Act; all filings
required under the laws of the State of Delaware with respect to the
creation and valid existence of the Trust as a business trust have been
made; under the Delaware Act and the Declaration, the Trust has all
necessary power and authority to own property and to
21
conduct its business as described in the Registration Statement and the
Prospectus and to enter into and perform its obligations under this
Agreement, the Preferred Securities and the Common Securities.
(iii) The Common Securities have been duly authorized for issuance
and when issued, delivered and paid for, will be validly issued and, except
as otherwise provided in Section 10.1 of the Declaration, fully paid and
non-assessable undivided beneficial interests in the assets of the Trust;
and the issuance of the Common Securities is not subject to preemptive or
other similar rights under the Delaware Act or the Declaration.
(iv) The Preferred Securities have been duly authorized for
issuance and, subject to the qualifications set forth below, when issued,
delivered and paid for in accordance with the terms of this Agreement, will
be validly issued, fully paid and non-assessable undivided beneficial
interests in the assets of the Trust; the holders of the Preferred
Securities will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware; and the issuance of
the Preferred Securities is not subject to preemptive or other similar
rights under the Delaware Act or the Declaration. Such counsel may bring
to the attention of the Underwriters that the Preferred Securities holders
may be obligated, pursuant to the Declaration, to (i) provide indemnity
and/or security in connection with and pay taxes or governmental charges
arising from transfers of Preferred Securities and the issuance of
replacement Preferred Securities, and (ii) provide security and indemnity
in connection with requests of or directions to the Property Trustee to
exercise its rights and powers under the Declaration.
(v) Assuming the due authorization, execution and delivery of
the Declaration by the Delaware Trustee, the Property Trustee, the Company
and the Regular Trustees, the Declaration constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, except to the extent that enforcement thereof may be
limited by the Bankruptcy Exceptions.
(vi) No Governmental Approval is required in connection with the
issuance and sale of the Common Securities or the offering of the Preferred
Securities, the Subordinated Notes, or the Guarantees, except for such
approvals as may be required under the state securities
22
(blue sky) laws or such approvals which have been obtained, taken, or made
and are in full force and effect.
(vii) The information in the Base Prospectus under the caption
"Description of Preferred Securities" and in the Prospectus Supplement
under the caption "Description of the Offered Preferred Securities" (except
under the sub-caption "Book-Entry Only Issuance--The Depository Trust
Company"), insofar as they constitute summaries of Delaware law (or the
documents therein described), or legal conclusions, have been reviewed by
them and are, in all material respects, accurate summaries of such
provisions.
(viii) This Agreement has been duly authorized, executed and
delivered by the Trust.
(ix) The Trust will be classified as a grantor trust and not as
an association taxable as a corporation for United States federal income
tax purposes; and although the discussion set forth in the Prospectus
Supplement under the caption "Certain Federal Income Tax Consequences" does
not purport to discuss all possible United States federal income tax
consequences of the purchase, ownership and disposition of Preferred
Securities, such discussion constitutes, in all material respects, a fair
and accurate summary of the United States federal income tax consequences
of the purchase, ownership and disposition of Preferred Securities under
current law.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the General
Corporation Law of the State of Delaware, to the extent deemed proper and
specified in such opinion, upon the opinion of other counsel who are
satisfactory to counsel for the Underwriters and (B) as to matters of fact, to
the extent deemed proper by the Representatives, on certificates of Trustees of
the Trust and public officials.
(4) The favorable opinion, dated as of Closing Time, of the Law Department
of First Chicago, as Property Trustee under the Declaration, and Guarantee
Trustee under the Preferred Securities Guarantee Agreement, to the effect that:
(i) First Chicago is a national banking association with trust
powers, duly organized, validly existing and in good standing under the
laws of the United States of America with all necessary power and authority
to execute and deliver, and to carry out and perform its obligations under
the terms of, the Declaration and the Preferred Securities Guarantee
Agreement.
23
(ii) The execution, delivery and performance by the Property
Trustee of the Declaration and the execution, delivery and performance by
the Guarantee Trustee of the Preferred Securities Guarantee Agreement have
been duly authorized by all necessary corporate action on the part of the
Property Trustee and the Guarantee Trustee, respectively. The Declaration
and the Preferred Securities Guarantee Agreement have been duly executed
and delivered by the Property Trustee and the Guarantee Trustee,
respectively, and constitute the legal, valid and binding obligations of
the Property Trustee and the Guarantee Trustee, respectively, enforceable
against the Property Trustee and the Guarantee Trustee, respectively, in
accordance with their terms, except as may be limited by the Bankruptcy
Exceptions.
(iii) The execution, delivery and performance of the Declaration
and the Preferred Securities Guarantee Agreement by the Property Trustee
and the Guarantee Trustee, respectively, does not conflict with or
constitute a breach of the Articles of Organization or Bylaws of the
Property Trustee and the Guarantee Trustee, respectively.
(iv) No consent, approval or authorization of, or registration
with or notice to, any federal banking authority is required for the
execution, delivery or performance by the Property Trustee and the
Guarantee Trustee of the Declaration and the Preferred Securities Guarantee
Agreement.
(5) The favorable opinion, dated as of Closing Time, of Brown & Wood,
counsel for the Underwriters, in form and substance satisfactory to the
Representatives, with respect to the legal existence of the Company and the
Trust and with respect to the Preferred Securities, the Subordinated Notes, the
Indenture, the Preferred Securities Guarantee Agreement, this Agreement, the
Registration Statement, the Prospectus and such other related matters as the
Representatives may require.
In rendering such opinion, such counsel may rely as to certain matters
involving the application of the General Corporation Law of the State of
Delaware as to the Trust, to the extent deemed proper and specified in such
opinion, upon the opinion of Skadden, Arps, Slate, Meagher & Flom, special
counsel to the Trust, which opinion shall be delivered pursuant to Section
5(b)(3) hereof.
(6) In giving their opinions required by subsections, (b)(2) and (b)(5),
respectively, of this Section, O'Melveny & Myers and Brown & Wood shall each
additionally state that in
24
connection with such counsel's participation in the preparation of the
Registration Statement and Prospectus (exclusive of the documents incorporated
by reference therein), such counsel has not independently verified the accuracy,
completeness or fairness of the statements contained or incorporated therein and
the limitations inherent in the examination made by such counsel and the
knowledge available to such counsel are such that such counsel is unable to
assume, and does not assume, any responsibility for the accuracy, completeness
or fairness of the statements contained or incorporated in the Registration
Statement or Prospectus or the documents incorporated therein (except as
otherwise specifically stated in clause (xxi) of Subsection (b)(2) above).
However, on the basis of such counsel's examination and participation in
conferences in connection with the preparation of the Registration Statement and
Prospectus (exclusive of the documents incorporated by reference therein), such
counsel shall state that such counsel does not believe that the Registration
Statement and the documents incorporated by reference therein, considered as a
whole at the date the Registration Statement was declared effective by the
Commission, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus and the documents
incorporated by reference therein, considered as a whole at the date of the
Prospectus and at Closing Time, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. Such counsel need express no opinion or belief,
however, as to the financial statements or schedules and other financial or
statistical data or information contained in or excluded from the Registration
Statement or the Prospectus or the documents incorporated by reference therein,
or incorporated by reference in the Registration Statement or the Prospectus or
such incorporated documents or those parts of the Registration Statement that
constitute the Forms T-1.
(c) At Closing Time, there shall not have been, since the date hereof or
since the respective dates as of which information is given in the Prospectus,
any material adverse change or any development involving a prospective material
adverse change not otherwise disclosed or contemplated by the Prospectus in the
condition, financial or otherwise, or in the earnings, business or properties of
the Trust or the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the
Representatives shall have received with respect to the Company, a certificate
of the Chairman of the Board or the President or a Senior Vice President or a
First Vice President of the Company and of the Treasurer or
25
chief financial or chief accounting officer of the Company and with respect to
the Trust, a certificate of two Regular Trustees of the Trust, dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1 are true and
correct in all material respects at and as of Closing Time with the same effect
as if made at and as of Closing Time, (iii) the Trust or the Company, as
applicable, in all material respects, has performed all its obligations and
satisfied all conditions on its part to be performed or satisfied at or prior to
Closing Time, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act or, to their
knowledge, proceedings therefor initiated or threatened by the Commission.
(d) At the time of the execution of this Agreement and at Closing Time,
Price Waterhouse shall have furnished to the Representatives a letter or
letters, dated such date, in form and substance satisfactory to the
Representatives, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained or incorporated
by reference in the Registration Statement and the Prospectus.
(e) At Closing Time, the Preferred Securities shall have been rated at
least BBB- by Standard and Poor's Ratings Group ("Standard & Poor's") and Baa2
by Moody's Investors Service Inc. ("Moody's") as evidenced by letters from such
rating agencies; and there shall not have occurred any decrease in the ratings
of any of the securities of the Company by Standard & Poor's or Moody's or any
other nationally recognized statistical rating organization and neither Standard
& Poor's nor Moody's nor any other nationally recognized statistical rating
organization shall have publicly announced that it has placed any securities of
the Company on what is commonly termed a "watch list" for possible downgrading.
(f) At Closing Time all proceedings taken by the Company in connection
with the issuance and sale of the Preferred Securities as herein contemplated
shall be reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters.
(g) The Underwriters shall have received a certificate of two Regular
Trustees of the Trust, dated as of the Closing Time, to the effect that (i) the
Trust is not a party to or otherwise bound by any agreement other than those
attached to such certificate and (ii) the Trust is not subject to any judgment,
order or decree of any government, governmental instrumentality
26
or court, domestic or foreign, or any regulatory body or administrative agency
or other governmental body having jurisdiction over the Trust or any of its
properties.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Representatives by notice to the Company at any time at or prior to Closing
Time, and such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof.
SECTION 6. Indemnification.
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(a) Each of the Offerors agrees to jointly and severally indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto) or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements of
counsel chosen by Merrill Lynch), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement
27
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
- -------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Trust or the
Company by any Underwriter through the Representatives expressly for use in the
Prospectus (or any amendment or supplement thereto); and provided, further, that
the foregoing indemnity with respect to any untrue statement contained in or
omission from a preliminary prospectus shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the person
asserting any such loss, liability, claim, damage or expense purchased the
Preferred Securities which are the subject thereof if a copy of the Prospectus
(or the Prospectus as then amended or supplemented if the Trust or the Company
shall have furnished any amendments or supplements thereto), excluding documents
incorporated therein by reference, was not sent or given by or on behalf of
such Underwriter to such person at or prior to the written confirmation of the
sale of such Preferred Securities to such person in any case where such delivery
is required by the 1933 Act, such untrue statement contained in or omission from
such preliminary prospectus was corrected in the Prospectus (or the Prospectus
as so amended or supplemented) and the Company or the Trust had previously
furnished copies of such corrected Prospectus to the Underwriters.
(b) The Company agrees to indemnify and hold harmless the Trust against
any claim, damage and expense whatsoever, as due from the Trust under Section
6(a) hereunder.
(c) Each Underwriter severally agrees to indemnify and hold harmless the
Offerors, each of their directors or Trustees and each of their officers or
Trustees, as the case may be, who signed the Registration Statement, and each
person, if any, who controls the Offerors within the meaning of Section 15 of
the 1933 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Offerors by such Underwriter through the Representatives
expressly for use in the Prospectus (or any amendment or supplement thereto).
28
(d) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of any such
action. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
SECTION 7. Contribution. In order to provide for just and equitable
------------
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Offerors and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Offerors and one or more of the Underwriters, as incurred, in
such proportions that the Underwriters are responsible for that portion
represented by the percentage that the Underwriters' Compensation paid by the
Company bears to the initial public offering price appearing on the cover page
of the Prospectus and the Offerors are responsible for the balance; provided,
however, that no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement, each Trustee of the Trust
and each person, if any, who controls an Offeror within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as the Offerors.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------- ----------------
All representations, warranties and agreements contained in this Agreement or
contained in certificates of executive officers or Trustees of the Offerors
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Offerors, and shall survive
delivery of the Preferred Securities to the Underwriters.
29
SECTION 9. Termination of Agreement.
------------------------
(a) The Representatives may terminate this Agreement, by notice to the
Company, at any time at or prior to Closing Time (i) if there has been since the
date of this Agreement or since the respective dates as of which information is
given in the Prospectus, any material adverse change not otherwise disclosed or
contemplated by the Prospectus in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Trust or the Company
and its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there shall have occurred any outbreak
or escalation of hostilities or other national or international calamity or
crisis the effect of which is to make it, in the judgment of the
Representatives, impracticable to market the Preferred Securities or to enforce
contracts for the sale of the Preferred Securities, or (iii) if trading in the
Preferred Securities or the Common Stock shall have been suspended by the
Commission or a national securities exchange, or if trading generally on the New
York Stock Exchange shall have been suspended, or minimum or maximum prices for
trading shall have been fixed, or maximum ranges for prices for securities shall
have been required, by said Exchange or by order of the Commission or any other
governmental authority, or if a general banking moratorium has been declared by
either federal, New York or California authorities, or (iv) if there shall have
occurred any decrease in the ratings of any of the securities of the Company or
of the Preferred Securities by Standard & Poor's or Moody's or any other
nationally recognized statistical rating organization or Standard & Poor's or
Moody's or any other nationally recognized statistical rating organization shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the securities of the Company or the
Preferred Securities. Notice of any such termination may be given to the
Company by telegram, telecopy or telephone and shall be subsequently confirmed
by letter.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party except as provided in
Section 4. As used in this Section 9(a), the term "Prospectus" means the
Prospectus in the form first used to confirm sales of the Preferred Securities.
SECTION 10. Default by One or More of the Underwriters. If one or more of
------------------------------------------
the Underwriters shall fail at Closing Time to purchase the Preferred Securities
which it or they are obligated to purchase hereunder (the "Defaulted
Securities"), then the Representatives shall have the right, within 24 hours
thereafter,
30
to make arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, during such 24 hours the Representatives shall not have
completed such arrangements for the purchase of all of the Defaulted Securities,
then:
(a) if the number of Defaulted Securities does not exceed 10% of
the number of Preferred Securities to be purchased pursuant to this
Agreement, each of the non-defaulting Underwriters shall be obligated to
purchase the full amount thereof in the proportions that their respective
underwriting obligations bear to the underwriting obligations of all non-
defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of Preferred Securities to be purchased pursuant to this Agreement,
this Agreement shall terminate without liability on the part of any non-
defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement.
In the event of any such default by any Underwriter or Underwriters as set
forth in this Section, either the Representatives or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives c/o Merrill Lynch at the
address set forth above; notices to the Offerors shall be directed to it at 9200
Oakdale Avenue, Chatsworth, California 91311, attention of Mr. Bruce F.
Antenberg, Senior Vice President -- Finance.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
-------
binding upon the Underwriters, the Company, the Trust and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling persons and
officers, trustees and directors referred to in Sections 6 and 7 and their heirs
and legal representatives, any
31
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties and their respective successors and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Preferred
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State.
SECTION 14. Counterparts. This Agreement may be simultaneously
------------
executed in counterparts, each of which when so executed shall be deemed to be
an original. Such counterparts shall together constitute one and the same
instrument.
32
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
along with all counterparts will become a binding agreement between the
Underwriters on the one hand, and the Company and the Trust on the other, in
accordance with its terms.
Very truly yours,
GREAT WESTERN FINANCIAL CORPORATION
By: /s/ J. Lance Erikson
-------------------------------
Authorized Officer
GREAT WESTERN FINANCIAL TRUST I
By: /s/ J. Lance Erikson
-------------------------------
Trustee
By: /s/ Bruce F. Antenberg
-------------------------------
Trustee
Confirmed and Accepted,
as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
GOLDMAN, SACHS & CO.
BEAR, STEARNS & CO. INC.
DEAN WITTER REYNOLDS INC.
SMITH BARNEY INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Frank V. McMahon
-------------------------------------
Authorized Signature
For themselves and as Representatives of the
other Underwriters named in Schedule A hereto.
33
SCHEDULE A
Number of
Preferred
Name of Underwriter Securities
------------------- ----------
Merrill Lynch, Pierce, Fenner & Smith 475,000
Incorporated...................
Goldman, Sachs & Co........................ 475,000
Bear, Stearns & Co. Inc.................... 475,000
Dean Witter Reynolds Inc................... 475,000
Smith Barney Inc........................... 475,000
Robert W. Baird & Co. Incorporated......... 50,000
Alex. Brown & Sons Incorporated............ 50,000
Dain Bosworth Incorporated................. 50,000
Dillon, Read & Co. Inc..................... 50,000
Donaldson, Lufkin & Jenrette Securities
Corporation...................... 50,000
A.G. Edwards & Sons, Inc................... 50,000
EVEREN Securities, Inc..................... 50,000
Oppenheimer & Co., Inc..................... 50,000
PaineWebber Incorporated................... 50,000
Piper Jaffray Inc.......................... 50,000
Prudential Securities Incorporated......... 50,000
Raymond James & Associates, Inc............ 50,000
Tucker Anthony Incorporated................ 50,000
Advest, Inc................................ 25,000
J.C. Bradford & Co......................... 25,000
JW Charles Securities, Inc................. 25,000
Commerzbank Capital Markets Corporation.... 25,000
Cowen & Company............................ 25,000
Craigie Incorporated....................... 25,000
Crowell, Weedon & Co....................... 25,000
Davenport & Co. of Virginia, Inc........... 25,000
Doft & Co., Inc............................ 25,000
Dougherty, Dawkins, Strand & Bigelow Inc... 25,000
Fahnestock & Co. Inc....................... 25,000
First Albany Corporation................... 25,000
First of Michigan Corporation.............. 25,000
Furman Selz Incorporated................... 25,000
Gruntal & Co., Incorporated................ 25,000
J.J.B. Hillard, W.L. Lyons, Inc............ 25,000
Interstate/Johnson Lane Corporation........ 25,000
Janney Montgomery Scott Inc................ 25,000
Josephthal Lyon & Ross Incorporated........ 25,000
Legg Mason Wood Walker, Incorporated....... 25,000
McDonald & Company Securities, Inc......... 25,000
McGinn, Smith & Co., Inc................... 25,000
Mesirow Financial, Inc..................... 25,000
34
Morgan Keegan & Company, Inc............... 25,000
David A. Noyes & Company................... 25,000
The Ohio Company........................... 25,000
Principal Financial Securities, Inc........ 25,000
Pryor, McClendon, Counts & Co., Inc........ 25,000
Rauscher Pierce Refsnes, Inc............... 25,000
The Robinson-Humphrey Company, Inc......... 25,000
Rodman & Renshaw, Inc...................... 25,000
Roney & Co................................. 25,000
Scott & Stringfellow, Inc.................. 25,000
Stifel, Nicolaus & Company, Incorporated... 25,000
Sutro & Co. Incorporated................... 25,000
US Clearing Corp........................... 25,000
Utendahl Capital Partners, L.P............. 25,000
Wheat, First Securities, Inc............... 25,000
Yamaichi International (America), Inc...... 25,000
Total................................. 4,000,000
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35