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.................................... 2
Section 1.1 Definitions................................................................. 2
ARTICLE II
Trust Indenture Act............................................. 10
Section 2.1 Trust Indenture Act; Application............................................ 10
Section 2.2 Lists of Holders of Trust Securities........................................ 10
Section 2.3 Reports by the Property Trustee............................................. 11
Section 2.4 Periodic Reports to Property Trustee........................................ 11
Section 2.5 Evidence of Compliance with Conditions Precedent............................ 11
Section 2.6 Events of Default; Waiver................................................... 12
Section 2.7 Event of Default; Notice.................................................... 13
ARTICLE III
Organization................................................. 14
Section 3.1 Name........................................................................ 14
Section 3.2 Office...................................................................... 14
Section 3.3 Purpose..................................................................... 14
Section 3.4 Authority................................................................... 15
Section 3.5 Title to Property of the Trust.............................................. 15
Section 3.6 Powers and Duties of the Regular Trustees................................... 15
Section 3.7 Prohibition of Actions by the Trust and the Trustees........................ 18
Section 3.8 Powers and Duties of the Property Trustee................................... 19
Section 3.9 Certain Duties and Responsibilities of the Property Trustee................. 21
Section 3.10 Certain Rights of Property Trustee.......................................... 23
Section 3.11 Delaware Trustee............................................................ 26
Section 3.12 Execution of Documents...................................................... 26
Section 3.13 Not Responsible for Recitals or Issuance of Trust Securities................ 26
Section 3.14 Duration of Trust........................................................... 27
Section 3.15 Mergers..................................................................... 27
ARTICLE IV
Sponsor................................................... 29
Section 4.1 Sponsor's Purchase of Common Securities.............................................. 29
Section 4.2 Responsibilities of the Sponsor............................................. 29
ARTICLE V
Trustees................................................... 29
Section 5.1 Number of Trustees.......................................................... 29
Section 5.2 Delaware Trustee............................................................ 30
Section 5.3 Property Trustee; Eligibility............................................... 30
Section 5.4 Qualifications of Regular Trustees and Delaware Trustee Generally........... 31
Section 5.5 Initial Trustees............................................................ 31
Section 5.6 Appointment, Removal and Resignation of Trustees............................ 32
Section 5.7 Vacancies Among Trustees.................................................... 33
Section 5.8 Effect of Vacancies......................................................... 34
Section 5.9 Meetings.................................................................... 34
Section 5.10 Delegation of Power......................................................... 34
Section 5.11 Merger, Conversion, Consolidation or Succession to Business................. 35
ARTICLE VI
Distributions................................................ 35
Section 6.1 Distributions............................................................... 35
ARTICLE VII
Issuance of Trust Securities......................................... 36
Section 7.1 General Provisions Regarding Trust Securities............................... 36
ARTICLE VIII
Termination................................................. 37
Section 8.1 Termination of Trust........................................................ 37
ARTICLE IX
Transfer of Interest............................................. 38
Section 9.1 Transfer of Trust Securities................................................ 38
Section 9.2 Transfer of Certificates.................................................... 38
Section 9.3 Deemed Trust Security Holders............................................... 39
Section 9.4 Book Entry Interests........................................................ 39
Section 9.5 Notices to Depositary....................................................... 40
Section 9.6 Appointment of Successor Depositary......................................... 40
Section 9.7 Definitive Capital Security Certificates ................................... 40
Section 9.8 Mutilated, Destroyed, Lost or Stolen Certificates........................... 41
ARTICLE X
Limitation of Liability of Holders
of Trust Securities, Trustees or Others................................... 42
Section 10.1 Liability................................................................... 42
Section 10.2 Exculpation................................................................. 42
Section 10.3 Fiduciary Duty.............................................................. 43
Section 10.4 Indemnification............................................................. 44
Section 10.5 Outside Businesses.......................................................... 45
ARTICLE XI
Accounting.................................................. 45
Section 11.1 Fiscal Year................................................................. 45
Section 11.2 Certain Accounting Matters.................................................. 45
Section 11.3 Banking..................................................................... 46
Section 11.4 Withholding................................................................. 46
ARTICLE XII
Amendments and Meetings ........................................... 47
Section 12.1 Amendments.................................................................. 47
Section 12.2 Meetings of the Holders of Trust
Securities; Action by Written Consent....................................... 49
ARTICLE XIII
Representations and Warranties of Property Trustee.............................. 51
Section 13.1 Representations and Warranties of
Property Trustee............................................................ 51
Section 13.2 Representations and Warranties of
Delaware Trustee............................................................ 52
ARTICLE XIV
Miscellaneous................................................ 52
Section 14.1 Notices..................................................................... 52
Section 14.2 Governing Law............................................................... 53
Section 14.3 Intention of the Parties.................................................... 54
Section 14.4 Headings.................................................................... 54
Section 14.5 Successors and Assigns...................................................... 54
Section 14.6 Partial Enforceability...................................................... 54
Section 14.7 Counterparts................................................................ 54
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 10, 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.
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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.
"Adjusted Treasury Rate" means, with respect to any redemption date,
the Treasury Rate plus (a) __% if such redemption date occurs on or before
_______________, 1998, or (b) __% if such Redemption Date occurs after 1998.
"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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"Calculation Date" means the third Business Day preceding any
redemption date.
"Capital Securities Guarantee" means the guarantee agreement to be
dated as of January __, 1997, of the Sponsor in respect of the Capital
Securities.
"Capital Security" has the meaning specified in Section 7.1.
"Capital 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).
"Capital Security Certificate" means a certificate representing a
Capital Security substantially in the form of Annex I to Exhibit A.
"Certificate" means a Common Security Certificate or a Capital Security
Certificate.
"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.
"Comparable Treasury Issue" means, with respect to any redemption date,
the United States Treasury security selected by the Quotation Agent as having a
maturity comparable to the Remaining Life that would be utilized at the time of
selection and in accordance with customary financial practice in pricing new
issues of corporate debt securities of comparable maturity to the Remaining
Life. If no United States Treasury security has a
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maturity which is within a period from three months before to three months after
_____________, 2007, the two most closely corresponding United States Treasury
securities shall be used as the Comparable Treasury Issue, and the Treasury Rate
shall be interpolated or extrapolated on a straight-line basis, rounding to the
nearest month using such securities.
"Comparable Treasury Price" means, with respect to any redemption date
(a) the average of five Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (b) if the Note Trustee obtains fewer than five such Reference
Treasury Dealer Quotations, the average of all such quotations.
"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 Capital 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
Capital 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 Capital 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.
"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.
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"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 Capital 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,
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that, in determining whether the holders of the requisite percentage of Capital
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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).
"Majority in liquidation amount of the Trust Securities" means, except
as provided in the terms of the Capital Securities and the Trust Indenture Act,
Holder(s) of outstanding Trust Securities voting together as a single class or,
as the context may require, Holders of outstanding Capital 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
5
voting percentages are determined) of all outstanding Trust Securities of the
relevant class.
"Make-Whole Amount" means, with respect to any redemption date, an
amount equal to the greater of (a) 100% of the principal amount of the Notes or
(b) as determined by the Quotation Agent, the sum of the present values of the
principal amount and premium payable as part of the Redemption Price with
respect to the redemption of the Notes upon the occurrence of a Tax Event or
Capital Treatment Event on ___________, 2007, together with the present values
of the scheduled payments of interest for the Remaining Life, in each case,
discounted to the redemption date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30 day months) at the Adjusted Treasury Rate.
"Ministerial Action" has the meaning set forth in Exhibit A.
"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).
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"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.
"Primary Treasury Dealer" means a primary U.S. Government securities
dealer in The City of New York.
"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.
"Quotation Agent" means Goldman, Sachs & Co. and its successors;
provided, however, that if the foregoing shall cease to be a Primary Treasury
Dealer, the Sponsor shall substitute therefore another Primary Treasury Dealer.
"Redemption Price" means, in the case of any redemption permitted
hereunder on or after ________, 2007, a price equal to the following prices,
expressed in percentages of the principal amount, plus any accrued and unpaid
interest, including any Compound Interest and Additional Interest, to the date
fixed for redemption. If redeemed during the 12-month period beginning
____________:
Year Redemption Price
2007 %
2008 %
2009 %
2010 %
2011 %
2012 %
2013 %
2014 %
2015 %
2016 %
and at 100% on or after ___________, 2017. Redemption Price means in the case of
a redemption permitted hereunder prior to __________, 2007, a price equal to the
Make-Whole Amount, plus any accrued interest, including any Compound Interest
and Additional Interest, to the date fixed for redemption.
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"Reference Treasurer Dealer" means (a) the Quotation Agent and (b) any
other Primary Treasury Dealer selected by the Note Trustee after consultation
with the Sponsor.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Note Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Note Trustee by such Reference Treasury Dealer at 5:00 p.m., New
York City time, on the Calculation Date.
"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.
"Remaining Life" means the period from the redemption date until
__________, 2007
"Responsible Officer" means, with respect to the Property Trustee, any
vice-president, any assistant vice-president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or
assistant trust officer or any other officer in the Corporate Trust Services
Division of the Property Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter any other officer to whom such
matter is referred because of that officer's knowledge of and familiarity with
the particular subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, or any successor legislation.
"66-2/3% in liquidation amount of the Trust Securities" means, except
as provided in the terms of the Capital 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 Capital 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.
8
"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 Capital 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 Rate" means, with respect to any redemption date, (a) the
yield under the heading which represents the average for the week immediately
prior to the Calculation Date, appearing in the most recently published
statistical release designated "H.15(519)" or any successor publication which is
published weekly by the Board of Governors of the Federal Reserve System and
which establishes yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption "Treasury Constant Maturities,"
for the maturity corresponding to the Remaining Life (if no maturity is within
three months before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Remaining Life shall be determined
and the Treasury Rate shall be interpolated or extrapolated from such yields on
a straight-line basis, rounding to the nearest month) or (b) if such release (or
any successor release) is not published during the week preceding the
Calculation Date or does not contain such yields, the rate per annum equal to
the semi-annual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue, calculated using a
price for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price on the Calculation Date
for such redemption date.
"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).
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"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
effect at the date as of which this instrument was executed, provided, however,
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that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trust Securities" means collectively the Common Securities and the
Capital Securities.
"Underwriting Agreement" means the Underwriting Agreement for the
offering and sale of Capital 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
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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
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Regular Trustees on behalf of the Trust shall be obligated to
provide such list of Holders at any time the List of Holders
does not differ from the most recent List of Holders given to
the Property Trustee by the Sponsor and the Regular Trustees
on behalf of the Trust, and (ii) at any other time, within 30
days of receipt by the Trust of a written request for a List
of Holders as of a date no more than 14 days before such List
of Holders is given to the Property Trustee. The Property
Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in Lists of Holders
given to it or which it receives in the capacity as Paying
Agent (if acting in such capacity) provided that the Property
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Trustee may destroy any List of Holders previously given to it
on receipt of a new List of Holders.
(b) The Property Trustee shall comply with the obligations of an
indenture trustee under Sections 311(a), 311(b) and 312(b) of
the Trust Indenture Act.
Section 2.3 Reports by the Property Trustee.
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Within 60 days after May 15 of each year, the Property Trustee shall
provide to the Holders of the Capital 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.
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Section 2.6 Events of Default; Waiver.
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(a) The Holders of a Majority in liquidation amount of Capital
Securities may, by vote, on behalf of the Holders of all of
the Capital Securities, waive any past Event of Default in
respect of the Capital Securities and its consequences,
provided that, if the underlying Event of Default under the
Indenture:
(i) is not waivable under the Indenture, the Event of
Default under the Declaration shall also not be
waivable; or
(ii) requires the consent or vote of all or a Super-
Majority of the holders of the Notes to be waived
under the Indenture, the Event of Default under the
Declaration may only be waived by the vote of all of
the Holders of the Capital 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
Capital 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 Capital Securities or impair any right consequent
thereon. Any waiver by the Holders of the Capital
Securities of an Event of Default with respect to the
Capital 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
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(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 Capital
Securities as represents the relevant Super-
Majority of the aggregate principal amount of
the Notes outstanding;
provided that, each Holder of Common Securities will be
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deemed to have waived any such Event of Default and all
Events of Default with respect to the Common Securities
and its consequences until all Events of Default with
respect to the Capital 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 Capital
Securities and only the Holders of the Capital
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 Capital Securities, constitutes a waiver of the
corresponding Event of Default under this Declaration.
Section 2.7 Event of Default; Notice.
------------------------
(a) The Property Trustee shall, within 90 days after the
occurrence of a default, transmit by mail, first class
postage prepaid, to the Holders of the Trust
Securities, notices of all defaults with respect to the
Trust Securities known to the Property Trustee,
identifying such default as a Declaration Event of
Default, unless such defaults have been cured before
the giving of such notice (the term "default" for the
purposes of this Section 2.7(a) being hereby defined to
be an Event of Default as defined in the Indenture, not
including any periods of grace provided for therein and
irrespective of the giving of any notice provided
13
therein); provided that, except for a default in the
-------- ----
payment of principal of (or premium, if any) or
interest on any of the Notes or in the payment of any
sinking fund installment established for the Notes, the
Property Trustee shall be protected in withholding such
notice if and so long as the board of directors, the
executive committee, or a trust committee of directors
and/or Responsible Officers of the Property Trustee in
good faith determines that the withholding of such
notice is in the interests of the Holders of the Trust
Securities.
(b) The Property Trustee shall not be deemed to have
knowledge of any default except:
(i) a default under Sections 501(1) and 501(2) of the
Indenture; or
(ii) any default as to which the Property Trustee shall
have received written notice or a Responsible Officer
charged with the administration of the Declaration
shall have obtained written notice.
ARTICLE III
Organization
Section 3.1 Name.
----
The Trust is named "Great Western Financial Trust II", as such name may
be modified from time to time by the Regular Trustees following written notice
to the Holders of Trust Securities. The Trust's activities may be conducted
under the name of the Trust or any other name deemed advisable by the Regular
Trustees.
Section 3.2 Office.
------
The address of the principal office of the Trust is c/o Great Western
Financial Corporation, 9200 Oakdale Avenue, Chatsworth, California 91311. On ten
Business Days written notice to the Holders of Trust Securities, the Regular
Trustees may designate another principal office.
Section 3.3 Purpose.
-------
The exclusive purposes and functions of the Trust are (a) to issue and
sell Trust Securities and use the proceeds from such sale to acquire the Notes
and (b) except as otherwise limited herein, to engage in only those other
activities necessary, or incident thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any
14
activity that would cause the Trust not to be classified for United States
federal income tax purposes as a grantor trust.
Section 3.4 Authority.
Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and an action taken by the
Property Trustee in accordance with its powers shall constitute the act of and
serve to bind the Trust. In dealing with the Trustees acting on behalf of the
Trust, no Person shall be required to inquire into the authority of the Trustees
to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this
Declaration.
Section 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Notes and the
Property Trustee Account or as otherwise provided in this Declaration, legal
title to all assets of the Trust shall be vested in the Trust. The Holders shall
not have legal title to any part of the assets of the Trust, but shall have an
undivided beneficial interest in the assets of the Trust.
Section 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and authority
to cause the Trust to engage in the following activities:
(a) to issue and sell the Capital Securities and the Common
Securities in accordance with this Declaration;
provided, however, that the Trust may issue no more
-------- -------
than one series of Capital Securities and no more than
one series of Common Securities, and, provided further,
-------- -------
that there shall be no interests in the Trust other
than the Trust Securities, and the issuance of Trust
Securities shall be limited to a one-time, simultaneous
issuance of both Capital Securities and Common
Securities on the Closing Date;
(b) in connection with the issue and sale of the Capital
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 Capital Securities;
15
(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 Capital Securities in any
State in which the Sponsor has determined to qualify
or register such Capital Securities for sale; and
(iii) execute and enter into the Underwriting Agreement
providing for the sale of the Capital Securities;
(c) to acquire the Notes with the proceeds of the sale of the
Capital 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 Capital
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 Capital; 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;
(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;
16
(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 to defer payments of interest on the Notes by
extending the interest payment period under the Indenture;
(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;
(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,
17
provided that such action does not adversely affect the
-------- ----
interests of Holders of the Capital 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;
(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;
18
(iv) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust
other than the Trust Securities; or
(v) 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
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 Capital Securities and Holders of the
Common Securities from the Property Trustee Account
in accordance
19
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
Capital 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 Capital 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
(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
20
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.
(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:
21
(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;
(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
22
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,
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;
23
(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 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
24
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
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
25
(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.
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
26
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
Capital Securities rank with respect to
Distributions and payments upon liquidation,
redemption and maturity;
(ii) the Note Issuer expressly acknowledges a trustee of
the Successor Entity that possesses the same powers
and duties as the Property Trustee as the holder of
the Notes;
(iii) such merger, consolidation, amalgamation or
replacement does not cause the Capital Securities
(including any Successor Securities) to be downgraded
by any nationally recognized statistical rating
organization;
27
(iv) 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);
(v) such successor entity has a purpose identical to
that of the Trust;
(vi) 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
(vii) 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 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.
28
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 Capital Securities are sold.
Section 4.2 Responsibilities of the Sponsor.
-------------------------------
In connection with the issue and sale of the Capital 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 Capital
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 Capital
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 negotiate the terms of the Underwriting Agreement providing
for the sale of the Capital Securities.
ARTICLE V
Trustees
Section 5.1 Number of Trustees.
------------------
The number of Trustees shall initially be five (5), and:
(a) at any time before the issuance of any Trust Securities, the
Sponsor may, by written instrument, increase or decrease the
number of Trustees; and
(b) after the issuance of any Trust Securities the number of
Trustees may be increased or decreased by vote of the Holders
of a Majority in liquidation amount of the Common Securities
voting as a class at a meeting of the Holders of the Common
Securities; provided, however, that the number of Trustees
-------- -------
shall in no event be less
29
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.
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
30
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 Capital Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of
clause (i) of the first provision contained in Section 310(b)
of the Trust Indenture Act.
Section 5.4 Qualifications of Regular Trustees and Delaware
-----------------------------------------------
Trustee Generally.
-----------------
Each Regular Trustee and the Delaware Trustee (unless the Property
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
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
31
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 Delaware Trustee")
has been appointed and has accepted such appointment
by written instrument executed by such Successor
Delaware Trustee and delivered to the Regular
Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death,
removal or resignation. Any Trustee may resign from office
(without need for prior or subsequent accounting) by any
instrument in writing signed by the Trustee and delivered to
the Sponsor and the Trust, which resignation shall take effect
upon such delivery or upon such later date as is specified
therein; provided, however, that:
-------- -------
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment
32
by instrument executed by such Successor
Property Trustee and delivered to the Trust,
the Sponsor and the resigning Property
Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds
thereof distributed to the Holders of the
Trust Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor
Delaware Trustee has been appointed and has accepted
such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the
Trust, the Sponsor and the resigning Delaware
Trustee.
(d) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Delaware Trustee or
Successor Property Trustee as the case may be as the Property
Trustee or the Delaware Trustee delivers an instrument of
resignation in accordance with this Section 5.6.
(e) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided
in this Section 5.6 within 60 days after delivery to the
Sponsor and the Trust of an instrument of resignation, the
resigning Property Trustee or Delaware Trustee, as applicable,
may petition any court of competent jurisdiction for
appointment of a Successor Property Trustee or Successor
Delaware Trustee. Such court may thereupon, 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.
33
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 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
34
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
Capital 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 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.
35
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 capital securities representing undivided beneficial
interests in the assets of the Trust having such terms as are
set forth in Exhibit A (the "Capital 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 Capital 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 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.
36
(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 Capital
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 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.
37
(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, Capital Securities shall be freely
transferable.
(c) Subject to this Article IX, the Sponsor and any Related Party
may only transfer Common Securities to the Sponsor or a
Related Party of the Sponsor; provided that, any such transfer
-------- ----
is subject to the conditions precedent that the transferor
obtain the written opinion of independent counsel experienced
in such matters that such transfer would not cause more than
an insubstantial risk that:
(i) the Trust would not be classified for United States
federal income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company or the
transferee would become an Investment Company.
Section 9.2 Transfer of Certificates.
------------------------
The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Regular Trustees may
require) in respect of any tax or other government charges that may be imposed
in relation to it. Upon surrender for registration of transfer of any
Certificate, the Regular Trustees shall cause one or more new Certificates to be
issued in the name of the designated transferee or transferees. Every
Certificate surrendered for registration of transfer shall be accompanied by a
written instrument of transfer in form satisfactory to the Regular
38
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 Capital Securities, the
Capital Securities Certificates, on original issuance, will be issued in the
form of one or more, fully registered, global Capital 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 Capital Security Beneficial Owner will receive a
definitive Capital Security Certificate representing such Capital Security
Beneficial Owner's interests in such Global Certificates, except as provided in
Section 9.7. Unless and until definitive, fully registered Capital Security
Certificates (the "Definitive Capital Security Certificates") have been issued
to the Capital Security Beneficial Owners pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full force and
effect;
(b) the Trust and the Trustees shall be entitled to deal with the
Depositary for all purposes of this Declaration (including the
payment of Distributions on the Global Certificates and
receiving approvals, votes or consents hereunder) as the
Holder of the Capital Securities and the sole Holder of the
Global Certificates and shall have no obligation to the
Capital Security Beneficial Owners;
39
(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 Capital Security Beneficial Owners shall be
exercised only through the Depositary and shall be limited to
those established by law and agreements between such Capital
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 Capital Security
Holder is required under this Declaration, unless and until Definitive Capital
Security Certificates shall have been issued to the Capital 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 Capital Security Holders
to the Depositary, and shall have no notice obligations to the Capital 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 Capital Securities, the Regular Trustees may, in
their sole discretion, appoint a successor Depositary with respect to such
Capital Securities.
Section 9.7 Definitive Capital Security Certificates.
----------------------------------------
If:
(a) a Depositary elects to discontinue its services as securities
depositary with respect to the Capital Securities and a
successor Depositary is not appointed within 90 days after
such discontinuance pursuant to Section 9.6; or
(b) the Regular Trustees elect with the consent of the Sponsor to
terminate the book entry system through the Depositary with
respect to the Capital Securities,
then:
(c) Definitive Capital Security Certificates shall be prepared by
the Regular Trustees on behalf of the Trust with respect to
such Capital Securities; and
40
(d) upon surrender of the Global Certificates by the Depositary,
accompanied by registration instructions, the Regular Trustees
shall cause Definitive Certificates to be delivered to
Capital 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 Capital 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 to conform to usage.
Section 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
-------------------------------------------------
If:
(a) any mutilated Certificates should be surrendered to the
Regular Trustees, or if the Regular Trustees shall receive
evidence to their satisfaction of the destruction, loss or
theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such security
or indemnity as may be required by them to keep each of them
harmless;
then:
In the absence of notice that such Certificate shall have been
acquired by a bona fide purchaser, any two Regular Trustees on behalf of the
Trust shall execute and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new Certificate under this
Section 9.8, the Regular Trustees may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in the relevant Trust
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
41
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 Capital
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 Capital Securities shall be entitled to the same limitation
of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation
Law of the State of Delaware.
Section 10.2 Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith on
behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by
law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified
Person's gross negligence (or, in the case of the Property
Trustee, negligence) or willful misconduct with respect to such
acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any
Person as to matters the
42
Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Trust,
including information, opinions, reports or statements as to the
value and amount of the assets, liabilities, profits, losses, or
any other facts pertinent to the existence and amount of assets
from which Distributions to Holders of Trust Securities might
properly be paid.
Section 10.3 Fiduciary Duty.
--------------
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration shall not be
liable to the Trust or to any other Covered Person for its good
faith reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they restrict
the duties and liabilities of an Indemnified Person otherwise
existing at law or in equity (other than the duties imposed on the
Property Trustee under the Trust Indenture Act), are agreed by the
parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between an
Indemnified Person and any Covered Person; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms
that are, fair and reasonable to the Trust or any Holder of
Trust Securities,
the Indemnified Person shall resolve such conflict of interest,
take such action or provide such terms, considering in each case
the relative interest of each party (including its own interest)
to such conflict, agreement, transaction or situation and the
benefits and burdens relating to such interests, any customary or
accepted industry practices, and any applicable generally accepted
accounting practices or principles. In the absence of bad faith by
the Indemnified Person, the resolution, action or term so made,
taken or provided by 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.
43
(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such
interests and factors as it desires, including its own
interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the
Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard
and shall not be subject to any other or different standard
imposed by this Declaration or by applicable law.
Section 10.4 Indemnification.
---------------
(a) To the fullest extent permitted by applicable law, the Sponsor
shall indemnify and hold harmless each Indemnified Person from and
against any loss, damage, liability, tax, penalty, expense or
claim of any kind or nature whatsoever incurred by such
Indemnified Person by reason of the creation, operation or
termination of the Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the
Trust and in a manner such Indemnified Person reasonably believed
to be within the scope of authority conferred on such Indemnified
Person by this Declaration, except that no Indemnified Person
shall be entitled to be indemnified in respect of any loss, damage
or claim incurred by such Indemnified Person by reason of gross
negligence (or, in the case of the Property Trustee, negligence)
or willful misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding shall,
from time to time, be advanced by the Sponsor prior to the final
disposition of such claim, demand, action, suit or proceeding upon
receipt by the Sponsor of an undertaking by or on behalf of the
Indemnified Person to repay such amount if it shall be determined
that the Indemnified Person is not entitled to be indemnified as
authorized in Section 10.4(a). The indemnification shall survive
the termination of this Declaration.
44
Section 10.5 Outside Businesses.
------------------
Any Covered Person, the Sponsor, the Note Issuer, the Delaware Trustee
and the Property Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of Trust
Securities shall have no rights by virtue of this Declaration in and to such
independent ventures or the income or profits derived therefrom and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. No Covered Person, the Sponsor, the Note
Issuer, the Delaware Trustee, or the Property Trustee shall be obligated to
present any particular investment or other opportunity to the Trust even if such
opportunity is of a character that, if presented to the Trust, could be taken by
the Trust, and any Covered Person, the Sponsor, the Note Issuer, the Delaware
Trustee and the Property Trustee shall have the right to take for its own
account (individually or as a partner or fiduciary) or to recommend to others
any such particular investment or other opportunity. Any Covered Person, the
Delaware Trustee and the Property Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate of the Sponsor,
or may act as depositary for, trustee or agent for, or act on any committee or
body of holders of, securities or other obligations of the Sponsor or its
Affiliates.
ARTICLE XI
Accounting
Section 11.1 Fiscal Year.
-----------
The fiscal year ("Fiscal Year") of the Trust shall be the calendar year,
or such other year as is required by the Code.
Section 11.2 Certain Accounting Matters.
--------------------------
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books of account,
records and supporting documents, which shall reflect in
reasonable detail, each transaction of the Trust. The books of
account shall be maintained on the accrual method of accounting,
in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of
accounting for United States federal income tax purposes. The
books of account and the records of the Trust shall be examined by
and reported upon as of the end of each Fiscal Year by a firm of
independent certified public accountants selected by the Regular
Trustees.
45
(b) The Regular Trustees shall cause to be prepared and delivered to
each of the Holders of Trust Securities, within 90 days after the
end of each Fiscal Year of the Trust, annual financial statements
of the Trust, including a balance sheet of the Trust as of the end
of such Fiscal Year, and the related statements of income or loss.
(c) The Regular Trustees shall cause to be duly prepared and delivered
to each of the Holders of Trust Securities, any annual United
States federal income tax information statement, required by the
Code, containing such information with regard to the Trust
Securities held by each Holder as is required by the Code and the
Treasury Regulations. Notwithstanding any right under the Code to
deliver any such statement at a later date, the Regular Trustees
shall endeavor to deliver all such statements within 30 days after
the end of each Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed
with the appropriate taxing authority, an annual United States
federal income tax return, on a Form 1041 or such other form
required by United States federal income tax law, and any other
annual income tax returns required to be filed by the Regular
Trustees on behalf of the Trust with any state or local taxing
authority.
Section 11.3 Banking.
-------
The Trust shall maintain one or more bank accounts in the name and for
the sole benefit of the Trust; provided, however, that all payments of funds in
-------- -------
respect of the Notes held by the Property Trustee shall be made directly to the
Property Trustee Account and no other funds of the Trust shall be deposited in
the Property Trustee Account. The signatories for such accounts shall be
designated by the Regular Trustees; provided, however, that the Property Trustee
-------- -------
shall designate the sole signatories for the Property Trustee Account.
Section 11.4 Withholding.
-----------
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustees shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established
46
by a Holder, shall remit amounts withheld with respect to the Holder to
applicable jurisdictions. To the extent that the Trust is required to withhold
and pay over any amounts to any authority with respect to distributions or
allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding.
ARTICLE XII
Amendments and Meetings
Section 12.1 Amendments.
----------
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Trust Securities, this Declaration may
only be amended by a written instrument approved and executed by:
(i) the Regular Trustees (or, if there are more than two
Regular Trustees a majority of the Regular Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the
Property Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the
Delaware Trustee;
(b) No amendment shall be made, and any purported amendment shall be
void and ineffective:
(i) unless, in the case of any proposed amendment, the Property
Trustee shall have first received an Officers' Certificate
from each of the Trust and the Sponsor that such amendment
is permitted by, and conforms to, the terms of this
Declaration (including the terms of the Trust Securities);
(ii) unless, in the case of any proposed amendment which affects
the rights, powers, duties, obligations or immunities of
the Property Trustee, the Property Trustee shall have first
received:
(A) an Officers' Certificate from each of the Trust and
the Sponsor that such amendment is permitted by, and
conforms to, the terms of
47
this Declaration (including the terms of the Trust
Securities); and
(B) an opinion of counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is permitted
by, and conforms to, the terms of this Declaration
(including the terms of the Trust Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue to be classified
for purposes of United States federal income taxation
as a grantor trust;
(B) reduce or otherwise adversely affect the powers of the
Property Trustee in contravention of the Trust
Indenture Act; or
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment
Company Act.
(c) at such time after the Trust has issued any Trust Securities that
remain outstanding, any amendment that would adversely affect the
rights, privileges or preferences of any Holder of Trust
Securities may be effected only with such additional requirements
as may be set forth in the terms of such Trust Securities;
(d) Section 9.1(c) and this Section 12.1 shall not be amended without
the consent of all of the Holders of the Trust Securities;
(e) Article IV shall not be amended without the consent of the Holders
of a Majority in liquidation amount of the Common Securities and;
(f) the rights of the Holders of the Common Securities under Article V
to increase or decrease the number of, and appoint and remove
Trustees shall not be amended without the consent of the Holders
of a Majority in liquidation amount of the Common Securities; and
(g) notwithstanding Section 12.1(c), this Declaration may be amended
without the consent of the Holders of the Trust Securities to:
(i) cure any ambiguity;
48
(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 or the terms of the Trust
Securities. The Regular Trustees shall call a meeting of the
Holders of such class if directed to do so by the Holders of at
least 10% in liquidation amount of such class of Trust Securities.
Such direction shall be given by delivering to the Regular
Trustees one or more calls in a writing stating that the signing
Holders of Trust Securities wish to call a meeting and indicating
the general or specific purpose for which the meeting is to be
called. Any Holders of Trust Securities calling a meeting shall
specify in writing the Certificates held by the Holders of Trust
Securities exercising the right to call a meeting and only those
Trust Securities specified shall be counted for purposes of
determining whether the required percentage set forth in the
second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the Trust
Securities, the following provisions shall apply to meetings of
Holders of Trust Securities:
(i) notice of any such meeting shall be given to all the
Holders of Trust Securities having a right to vote thereat
at least 7 days and not more than 60 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
49
Declaration, such vote, consent or approval may be given at
a meeting of the Holders of Trust Securities. Any action
that may be taken at a meeting of the Holders of Trust
Securities may be taken without a meeting if a consent in
writing setting forth the action so taken is signed by the
Holders of Trust Securities owning not less than the
minimum amount of Trust Securities in liquidation amount
that would be necessary to authorize or take such action at
a meeting at which all Holders of Trust Securities having a
right to vote thereon were present and voting. Prompt
notice of the taking of action without a meeting shall be
given to the Holders of Trust Securities entitled to vote
who have not consented in writing. The Regular Trustees may
specify that any written ballot submitted to a Holder for
the purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the
Regular Trustees;
(ii) each Holder of a Trust Security may authorize any Person to
act for it by proxy on all matters in which a Holder of
Trust Securities is entitled to participate, including
waiving notice of any meeting, or voting or participating
at a meeting. No proxy shall be valid after the expiration
of 11 months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at
the pleasure of the Holder of Trust Securities executing
it. Except as otherwise provided herein, all matters
relating to the giving, voting or validity of proxies shall
be governed by the General Corporation Law of the State of
Delaware relating to proxies, and judicial interpretations
thereunder, as if the Trust were a Delaware corporation and
the Holders of the Trust Securities were stockholders of a
Delaware corporation;
(iii) each meeting of the Holders of the Trust Securities shall
be conducted by the Regular Trustees or by such other
Person that the Regular Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration or the
terms of the Trust Securities or the Trust Indenture Act
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
50
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 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,
51
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, 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:
52
(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 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.
53
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 force and effect as though all of the signers had signed a single signature
page.
54
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:
55
EXHIBIT A
TERMS OF
% CAPITAL 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 Capital 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) "Capital Securities." 165,000 Capital Securities of the Trust with
an aggregate liquidation amount with respect to the assets of the
Trust of One Hundred Sixty-Five Million Dollars ($165,000,000) and
a liquidation amount with respect to the assets of the Trust of
$1,000 per Capital Security, are hereby designated for the
purposes of identification only as "____% Capital Securities",
Series A (the "Capital Securities"). The Certificates evidencing
the Capital Securities shall be substantially in the form attached
hereto as Annex I, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage, custom
or practice.
(b) "Common Securities." ________ Common Securities of the Trust with
an aggregate liquidation amount with respect to the assets of the
Trust of _______ Million Dollars ($____________) and a liquidation
amount with respect to the assets of the Trust of $1,000 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 $1,000 per Trust Security, such rate being
the rate of interest payable
A-1
on the Notes to be held by the Property Trustee. Distributions in
arrears for more than one semi-annual period will bear interest
thereon compounded semi-annually 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 semi-annual 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 semi-annually in
arrears, on ________, _______, ____________, and ___________ of
each year (each a "Distribution Date") to the Holders of record on
the applicable record date, commencing on __________, 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 10 consecutive semi-annual periods (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, semi-annual Distributions will continue to
accrue with interest thereon (to the extent permitted by
applicable law) at the Coupon Rate compounded semi-annually 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 10 consecutive semi-annual periods. 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.
A-2
(c) Distributions on the Trust Securities will be payable to the
Holders thereof as they appear on the books and records of the
Trust on the relevant record dates. While the Capital 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 Capital
Securities will be made as described under the heading
"Description of the Offered Capital 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 Capital Securities. If the Capital Securities shall not
continue to remain in book-entry only form, the relevant record
dates for the Capital Securities 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
$1,000 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 (the "Redemption Price") in the
case of any permitted redemption on or after ______________,
2007 shall equal the following prices, expressed in
percentages of the liquidation amount, together with
accumulated distributions to the redemption date, if redeemed
during the 12 month period beginning ___________:
A-4
Redemption
Year Price
2007 %
2008 %
2009 %
2010 %
2011 %
2012 %
2013 %
2014 %
2015 %
2016 %
and at 100% on or after ____________, 2017.
The Redemption Price, in the case of a permitted redemption prior to
___________, 2007 shall equal the Make-Whole Amount for a corresponding $1,000
principal amount of Notes together with accumulated distributions to the
redemption date. 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 Capital Securities
will be redeemed Pro Rata and the Capital Securities to be
redeemed will be as described in Paragraph 4(f)(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
A-5
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
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
A-6
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, 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 Capital 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,
A-7
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) 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(f)(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 Capital 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
Capital Securities to be redeemed in accordance with
its procedures; provided, that if, as a result of
such Pro Rata redemption, Depositary Participants
would hold
A-8
fractional interests in the Capital Securities, the Depositary
will adjust the amount of the interest of each Depositary
Participant to be redeemed to avoid such fractional interests;
(iii) If Trust Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be
issued if the Notes are redeemed as set out in this paragraph
4 (which notice will be irrevocable), then (A) while the
Capital Securities are in book-entry only form, with respect
to the Capital 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 Capital Securities and will give the Depositary
irrevocable instructions and authority to pay the Redemption
Price to the Holders of the Capital Securities, and (B) with
respect to Capital 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
A-9
other payment in respect of any such delay) except
that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately
preceding Business Day, in each case with the same
force and effect as if made on such date fixed for
redemption. If payment of the Redemption Price in
respect of any Trust Securities is improperly
withheld or refused and not paid either by the
Property Trustee or by the Sponsor as guarantor
pursuant to the Capital 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 Capital Securities, the Depositary or
its nominee (or any successor Depositary or its
nominee) if the Global Certificates have been issued
or, if Definitive Capital 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 Capital Securities by
tender, in the open market or by private
agreement.
5. Voting Rights - Capital Securities.
----------------------------------
(a) Except as provided under paragraphs 5(b) and 7 and as
otherwise required by law and the Declaration, the Holders of
the Capital 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 Capital
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
A-10
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 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 Capital 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 Capital 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 Capital Securities may
be given at a separate meeting of Holders of Capital
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 Capital Securities are entitled to
vote,
A-11
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 Capital Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the
date by which such action is to be taken, (ii) a description
of any resolution proposed for adoption at such meeting on
which such Holders are entitled to vote or of such matter upon
which the written consent is sought and (iii) instructions for
the delivery of proxies or consents.
No vote or consent of the Holders of the Capital Securities
will be required for the Trust to redeem and cancel Capital
Securities or to distribute the Notes in accordance with the
Declaration and the terms of the Trust Securities.
Notwithstanding that Holders of Capital Securities are
entitled to vote or consent under any of the circumstances
described above, any of the Capital 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 Capital 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
A-12
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 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 Capital
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
A-13
consent is sought and (iii) instructions for the delivery of
proxies or consents.
No vote or consent of the Holders of the Common Securities
will be required for the Trust to redeem and cancel Common
Securities or to distribute the Notes in accordance with the
Declaration and the terms of the Trust Securities.
7. Amendments to Declaration and Indenture.
---------------------------------------
(a) In addition to any requirements under Section 12.1 of the
Declaration, if any proposed amendment to the Declaration
provides for, or the Regular Trustees otherwise propose to
effect (i) any action that would adversely affect the powers,
preferences or special rights of the Trust Securities, whether
by way of amendment to the Declaration or otherwise, or (ii)
the liquidation, dissolution, winding-up or termination of the
Trust, other than as described in Section 8.1 of the
Declaration, then the Holders of outstanding Trust Securities,
voting together as a single class, will be entitled to vote on
such amendment or proposal (but not on any other amendment or
proposal) and such amendment or proposal shall not be
effective except with the approval of the Holders of at least
66-2/3% in 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 Capital 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 Capital 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
Capital 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
A-14
consent at the direction of the Holders of all of or of at
least the proportion in liquidation amount of the Trust
Securities which the relevant Super-Majority represents of the
aggregate principal amount of the Notes outstanding, as
applicable; provided, further, that the Property Trustee shall
-------- -------
not take any action in accordance with the directions of the
Holders of the Trust Securities under this paragraph 7(b)
unless the Property Trustee has obtained an opinion of
independent tax counsel experienced in such matters to the
effect that for the purposes of United States federal income
tax 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 Capital Securities
pro rata according to the aggregate liquidation amount of Capital Securities
held by the relevant Holder relative to the aggregate liquidation amount of all
Capital Securities outstanding, and only after satisfaction of all amounts owed
to the Holders of the Capital 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 Capital 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 Capital Securities.
10. Acceptance of Trust Securities Guarantee and Indenture.
------------------------------------------------------
Each Holder of Capital Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Capital Securities Guarantee
and the Common Securities Guarantee, respectively, including the subordination
provisions therein and to the provisions of the Indenture.
A-15
11. No Preemptive Rights.
--------------------
The Holders of the Trust Securities shall have no preemptive rights to
subscribe for any additional securities.
12. Miscellaneous.
-------------
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Capital
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 CAPITAL SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT- This
Capital 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 Capital Security is exchangeable for Capital 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 Capital Security (other than a transfer of this Capital 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 Capital 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 Capital 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 Capital Securities
CUSIP NO.
-----------------
Certificate Evidencing Capital Securities
of
GREAT WESTERN FINANCIAL TRUST II
Capital Securities
(liquidation amount $1,000 per Capital 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 capital securities of
the Trust representing undivided beneficial interests in the assets of the Trust
designated the ____% Capital Securities, Series A (liquidation amount $1,000 per
Capital Security) (the "Capital Securities"). The Capital Securities are
transferable on the books and records of the Trust, in person or by a duly
I-1
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 Capital 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 Capital 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 Capital Securities Guarantee to the extent provided therein.
The Sponsor will provide a copy of the Declaration, the Capital 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 Capital 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 Capital 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 Capital 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 Capital 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 $1,000 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
$1,000 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