EXHIBIT 4.15
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AMENDED AND RESTATED DECLARATION OF TRUST
GREAT WESTERN FINANCIAL TRUST II
Dated as of January __, 1997
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TABLE OF CONTENTS
Page
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ARTICLE I
INTERPRETATION AND DEFINITIONS
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
ARTICLE V
TRUSTEES
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
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS
OF TRUST SECURITIES, TRUSTEES OR OTHERS
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
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.
ARTICLE I
INTERPRETATION AND DEFINITIONS
Section 1.1 Definitions.
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(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to this
Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and
Exhibits are to Articles and Sections of and Exhibits to this
Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Declaration unless otherwise defined in this Declaration
or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Book Entry Interest" means a beneficial interest in a Global Certificate,
ownership and transfers of which shall be maintained and made through book
entries by a Depositary as described in Section 9.4.
"Business Day" means any day other than a day on which banking institutions
in New York, New York or Los Angeles, California are authorized or required by
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.
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"Certificate" means a Common Security Certificate or a Preferred Security
Certificate.
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"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.
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"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,
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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
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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.
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"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.
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"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.
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"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
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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.
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(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.
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(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
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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
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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
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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.
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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.
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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.
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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.
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(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
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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
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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.
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(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
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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.
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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.
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The address of the principal office of the Trust is c/o Great Western
Financial Corporation, 9200 Oakdale Avenue, Chatsworth, California 91311. On
ten Business Days written notice to the Holders of Trust Securities, the Regular
Trustees may designate another principal office.
Section 3.3 Purpose.
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The exclusive purposes and functions of the Trust are (a) to issue and sell
Trust Securities and use the proceeds from such sale to acquire the Notes and
(b) except as otherwise limited herein, to engage in only those other activities
necessary, or incident thereto. The Trust shall not borrow money, issue debt 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.
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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.
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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.
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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
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may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided further, that
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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;
13
(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;
14
(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;
15
(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;
16
(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
17
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
18
(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.
19
(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;
20
(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,
21
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
22
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
23
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.
24
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;
25
(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
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
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.
28
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
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
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:
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(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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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
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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
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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
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
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
(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
(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
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
40
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
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
42
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-
43
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
44
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);
45
(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
46
(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.
47
(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;
48
(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
49
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,
50
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
51
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
force and effect as though all of the signers had signed a single signature
page.
53
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
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
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
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
A-3
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
A-4
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
A-5
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,
A-6
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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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
A-9
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
A-11
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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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.
A-13
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
A-14
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.
A-15
13. Miscellaneous.
-------------
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Preferred
Securities Guarantee or the Common Securities Guarantee (as may be appropriate),
and the Indenture to a Holder without charge on written request to the Trust at
its principal place of business.
A-16
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
I-1
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
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
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
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
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