EXHIBIT 4.17
========================================
CAPITAL SECURITIES GUARANTEE AGREEMENT
GREAT WESTERN FINANCIAL TRUST II
Dated as of January __, 1997
========================================
TABLE OF CONTENTS
Section Page
- ------- ----
ARTICLE I
Definitions and Interpretation............................. 2
Section 1.1. Definitions and Interpretation.......................................... 2
ARTICLE II
Trust Indenture Act.................................. 5
Section 2.1. Trust Indenture Act; Application........................................ 5
Section 2.2. Lists of Holders of Trust Securities.................................... 5
Section 2.3. Reports by the Capital Guarantee Trustee................................ 6
Section 2.4. Periodic Reports to Capital Guarantee Trustee........................... 6
Section 2.5. Evidence of Compliance with Conditions Precedent........................ 6
Section 2.6. Events of Default; Waiver............................................... 6
Section 2.7. Event of Default; Notice................................................ 7
Section 2.8. Conflicting Interests................................................... 7
ARTICLE III
Power, Duties and Rights of
Capital Guarantee Trustee............................... 7
Section 3.1. Powers and Duties of the Capital Guarantee Trustee...................... 7
Section 3.2. Certain Rights of Capital Guarantee Trustee............................. 9
Section 3.3. Not Responsible for Recitals or Issuance of Guarantee................... 12
ARTICLE IV
Capital Guarantee Trustee............................... 12
Section 4.1. Capital Guarantee Trustee; Eligibility.................................. 12
Section 4.2. Appointment Removal and Resignation of Capital Guarantee Trustees....... 13
ARTICLE V
Guarantee....................................... 13
Section 5.1. Guarantee............................................................... 13
Section 5.2. Subordination........................................................... 14
Section 5.3. Waiver of Notice and Demand............................................. 14
Section 5.4. Obligations Not Affected................................................ 14
Section 5.5. Rights of Holders....................................................... 15
Section 5.6. Guarantee of Payment.................................................... 15
Section 5.7. Subrogation............................................................. 15
Section 5.8. Independent Obligations................................................. 16
ARTICLE VI
Limitation of Transactions; Subordination....................... 16
Section 6.1. Limitation of Transactions.............................................. 16
i
Section 6.2. Ranking................................................................. 16
ARTICLE VII
Termination...................................... 17
Section 7.1. Termination............................................................. 17
ARTICLE VIII
Indemnification.................................... 17
Section 8.1. Exculpation............................................................. 17
Section 8.2. Indemnification......................................................... 18
ARTICLE IX
Miscellaneous..................................... 18
Section 9.1. Successors and Assigns.................................................. 18
Section 9.2. Amendments.............................................................. 18
Section 9.3. Notices................................................................. 19
Section 9.4. Benefit................................................................. 19
Section 9.5. Governing Law........................................................... 19
ARTICLE I
Definitions and Interpretation
Section 1.1. Definitions and Interpretation......................................... 2
ARTICLE II
Trust Indenture Act
Section 2.1. Trust Indenture Act; Application....................................... 5
Section 2.2. Lists of Holders of Trust Securities................................... 5
Section 2.3. Reports by the Capital Guarantee Trustee............................... 6
Section 2.4. Periodic Reports to Capital Guarantee Trustee.......................... 6
Section 2.5. Evidence of Compliance with Conditions Precedent....................... 6
Section 2.6. Events of Default; Waiver.............................................. 6
Section 2.7. Event of Default; Notice............................................... 7
Section 2.8. Conflicting Interests.................................................. 7
ARTICLE III
Power, Duties and Rights of
Capital Guarantee Trustee
Section 3.1. Powers and Duties of the Capital Guarantee Trustee...................... 7
Section 3.2. Certain Rights of Capital Guarantee Trustee............................. 9
Section 3.3. Not Responsible for Recitals or Issuance of Guarantee................... 12
ARTICLE IV
Capital Guarantee Trustee
ii
Section 4.1. Capital Guarantee Trustee; Eligibility.................................. 12
Section 4.2. Appointment Removal and Resignation of Capital Guarantee Trustees....... 13
ARTICLE V
Guarantee
Section 5.1. Guarantee............................................................... 13
Section 5.2. Subordination........................................................... 14
Section 5.3. Waiver of Notice and Demand............................................. 14
Section 5.4. Obligations Not Affected................................................ 14
Section 5.5. Rights of Holders....................................................... 15
Section 5.6. Guarantee of Payment.................................................... 15
Section 5.7. Subrogation............................................................. 16
Section 5.8. Independent Obligations................................................. 16
ARTICLE VI
Limitation of Transactions; Subordination
Section 6.1. Limitation of Transactions.............................................. 16
Section 6.2. Ranking................................................................. 16
ARTICLE VII
Termination
Section 7.1. Termination............................................................. 17
ARTICLE VIII
Indemnification
Section 8.1. Exculpation............................................................. 17
Section 8.2. Indemnification......................................................... 18
ARTICLE IX
Miscellaneous
Section 9.1. Successors and Assigns.................................................. 18
Section 9.2. Amendments.............................................................. 18
Section 9.3. Notices................................................................. 19
Section 9.4. Benefit................................................................. 19
Section 9.5. Governing Law........................................................... 19
iii
CAPITAL SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee Agreement"), dated as of
January __, 1997, is executed and delivered by Great Western Financial
Corporation, a Delaware corporation (the "Guarantor"), and The First National
Bank of Chicago, as trustee (the "Capital Guarantee Trustee"), for the benefit
of the Holders (as defined herein) from time to time of the Capital Securities
(as defined herein) of Great Western Financial Trust II, a Delaware statutory
business trust (the "Issuer").
RECITALS
WHEREAS, pursuant to an Amended and Restated Declaration of Trust
(the "Declaration"), dated as of January __, 1997, among the trustees of the
Issuer named therein, the Guarantor, as sponsor, and the holders from time to
time of undivided beneficial interests in the assets of the Issuer, the Issuer
is issuing on the date hereof $165 million aggregate stated liquidation amount
of Capital Securities designated the ____% Capital Securities, Series A (the
"Capital Securities");
WHEREAS, as incentive for the Holders (as hereinafter defined) to
purchase the Capital Securities, the Guarantor desires irrevocably
and unconditionally to agree, to the extent set forth in this Guarantee
Agreement, to pay to the Holders of the Capital Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee Agreement") with substantially
identical terms to this Guarantee Agreement for the benefit of the holders of
the Common Securities (as defined herein) except that if an Event of Default (as
defined in the Indenture (as defined herein)), has occurred and is continuing,
the rights of holders of the Common Securities to receive Guarantee Payments
under the Common Securities Guarantee Agreement are subordinated to the rights
of Holders of Capital Securities to receive Guarantee Payments under this
Guarantee Agreement.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Capital Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee Agreement for the
benefit of the Holders.
1
ARTICLE I
Definitions and Interpretation
Section 1.1. Definitions and Interpretation.
------------------------------
In this Guarantee Agreement, unless the context otherwise
requires:
(a) capitalized terms used in this Guarantee Agreement but not defined
in the preamble above have the respective meanings assigned to them
in this Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented
or amended from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections
are to Articles and Sections of this Guarantee Agreement unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is authorized
to bind such Person.
"Capital Guarantee Trustee" means The First National Bank of Chicago
until a Successor Capital Guarantee Trustee has been appointed and has accepted
such appointment pursuant to the terms of this Guarantee Agreement and
thereafter means each such Successor Capital Guarantee Trustee.
"Common Securities" means the common securities representing
undivided beneficial interests in the assets of the Issuer.
"Covered Person" means any Holder or beneficial owner of Capital
Securities.
"Direction" by a Person means a written direction signed:
(a) if the Person is a natural person by that Person; or
2
(b) in any other case, in the name of such Person by one or more
Authorized Officers of that Person.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Capital Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid Distributions (as defined
in the Declaration) that are required to be paid on such Capital Securities to
the extent the Issuer shall have received a payment of interest or principal on
the Notes therefor, (ii) the redemption price, including all accrued and unpaid
Distributions to the date of redemption (the "Redemption Price") to the extent
the Issuer has received a payment of interest or principal or premium, if any,
on the Notes with respect to any Capital Securities called for redemption by the
Issuer, and (iii) upon a voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Issuer (other than in connection with the
distribution of Notes to the Holders in exchange for Capital Securities as
provided in the Declaration or the redemption of all of the Capital Securities
upon the maturity or redemption of the Notes), the lesser of (a) the aggregate
of the liquidation amount and all accrued and unpaid Distributions on the
Capital Securities to the date of payment to the extent the Issuer has received
a payment on the Notes therefor, and (b) the amount of assets of the Issuer
remaining available for distribution to Holders in liquidation of the Issuer (in
either case, the "Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and
records of the Issuer of any Capital Securities; provided, that, in determining
whether the holders of the requisite percentage of Capital Securities have given
any request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Capital Guarantee Trustee, any
Affiliate of the Capital Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives or agents of the
Capital Guarantee Trustee.
"Indenture" means the Indenture dated as of September 12, 1990, as
amended and supplemented by a First Supplemental Indenture, dated as of April
30, 1993, the Second Supplemental Indenture; dated as of December 6, 1995 and
the Third Supplemental Indenture, dated as of January __, 1997, among the Note
Issuer and Harris Trust and Savings Bank, as trustee, and any indenture
supplemental thereto pursuant to which certain Notes are to be issued.
3
"Majority in liquidation amount of the Trust Securities" means,
except as provided by the Trust Indenture Act, a vote by Holder(s) of Capital
Securities, voting separately as a class, of more than 50% of the liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date upon
which the voting percentages are determined) of all Capital Securities.
"Note Issuer" means the Guarantor in its capacity as issuer of the
Notes.
"Notes" means the subordinated debt securities of the Note Issuer
issued pursuant to the Indenture and acquired by the Issuer.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Responsible Officer" means, with respect to the Capital Guarantee
Trustee, any vice-president, any assistant vice-president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, any trust officer
or assistant trust officer or any other officer customarily performing functions
similar to those performed by any of the above designated officers
4
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor legislation.
"Successor Capital Guarantee Trustee" means a successor Capital
Guarantee Trustee possessing the qualifications to act as Capital Guarantee
Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, in
effect at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trust Securities" means collectively the Common Securities and the
Capital Securities.
ARTICLE II
Trust Indenture Act
Section 2.1. Trust Indenture Act; Application.
--------------------------------
(a) This Guarantee Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this
Guarantee Agreement and shall, to the extent applicable, be
governed by such provisions; and
(b) if and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties
imposed by Section 310 to 317, inclusive, of the Trust
Indenture Act, such duties imposed by the Trust Indenture
Act shall control.
Section 2.2. Lists of Holders of Trust Securities.
------------------------------------
(a) The Guarantor shall provide the Capital Guarantee Trustee with a
list, in such form as the Capital Guarantee Trustee may reasonably
require, of the names and addresses of the Holders of the Capital
Securities ("List of Holders") as of such date, (i) within 14 days
after each record date for payment of distributions on the Capital
Securities, and (ii) at any other time within 30 days of receipt by
the Guarantor of a written request for a List of Holders as of a
date no more than 14 days before such List of Holders is given to
the Capital Guarantee Trustee provided that the Guarantor shall not
be obligated to provide such List of Holders at
5
any time the List of Holders does not differ from the most recent
List of Holders given to the Capital Guarantee Trustee by the
Guarantor. The Capital Guarantee Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Capital Guarantee Trustee shall comply with its obligations
under Section 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
Section 2.3. Reports by the Capital Guarantee Trustee.
----------------------------------------
Within 60 days after May 15 of each year, the Capital Guarantee
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 Capital
Guarantee Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.
Section 2.4. Periodic Reports to Capital Guarantee Trustee.
---------------------------------------------
The Guarantor shall provide to the Capital Guarantee Trustee such
documents, reports and information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
Section 2.5. Evidence of Compliance with Conditions Precedent.
------------------------------------------------
The Guarantor shall provide to the Capital Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Guarantee
Agreement that relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
Section 2.6. Events of Default; Waiver.
-------------------------
The Holders of a Majority in liquidation amount of Capital
Securities may, by vote, on behalf of the Holders of all of the Capital
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
6
Section 2.7. Event of Default; Notice.
------------------------
(a) The Capital Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Capital Securities, notices of all Events of
Default known to the Capital Guarantee Trustee, unless such defaults have been
cured before the giving of such notice, provided, that, the Capital Guarantee
-------- ----
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
and/or Responsible Officers of the Capital Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Capital Securities.
(b) The Capital Guarantee Trustee shall not be deemed to have knowledge of
any Event of Default unless the Capital Guarantee Trustee shall have received
written notice, or a Responsible Officer shall have obtained written notice, of
such Event of Default.
Section 2.8. Conflicting Interests.
---------------------
The Declaration shall be deemed to be specifically described in this
Guarantee Agreement for the purposes of the first proviso contained in Section
310(b) of the Trust Indenture Act.
ARTICLE III
Power, Duties and Rights of
Capitalc Guarantee Trustee
Section 3.1. Powers and Duties of the Capital Guarantee Trustee.
--------------------------------------------------
(a) This Guarantee Agreement shall be held by the Capital Guarantee Trustee
for the benefit of the Holders of the Capital Securities, and the
Capital Guarantee Trustee shall not transfer this Guarantee Agreement
to any Person except a Holder of Capital Securities exercising his or
her rights pursuant to Section 5.4(b) or to a Successor Capital
Guarantee Trustee on acceptance by such Successor Capital Guarantee
Trustee of its appointment to act as Successor Capital Guarantee
Trustee. The right, title and interest of the Capital Guarantee Trustee
shall automatically vest in any Successor Capital Guarantee Trustee,
and such vesting and cessation of title shall be effective whether or
not conveyancing documents have been executed and delivered pursuant to
the appointment of such Successor Capital Guarantee Trustee.
7
(b) If an Event of Default has occurred and is continuing, the Capital
Guarantee Trustee shall enforce this Guarantee Agreement for the
benefit of the Holders of the Capital Securities.
(c) The Capital Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are
specifically set forth in this Guarantee Agreement, and no implied
covenants shall be read into this Guarantee Agreement against the
Capital Guarantee Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6), the
Capital Guarantee Trustee shall exercise such of the rights and powers
vested in it by this Guarantee Agreement, and use the same degree of
care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her
own affairs.
(d) No provision of this Guarantee Agreement shall be construed to relieve
the Capital Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Capital Guarantee Trustee
shall be determined solely by the express provisions of this
Guarantee Agreement, and the Capital Guarantee Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Guarantee
Agreement, and no implied covenants or obligations shall be
read into this Guarantee Agreement against the Capital
Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Capital
Guarantee Trustee, the Capital Guarantee Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Capital Guarantee
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or opinions
that by any provision hereof are specifically required to be
8
furnished to the Capital Guarantee Trustee, the Capital
Guarantee Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of
this Guarantee Agreement;
(ii) the Capital Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Capital
Guarantee Trustee, unless it shall be proved that the Capital
Guarantee Trustee was negligent in ascertaining the pertinent facts
upon which such judgment was made;
(iii) the Capital Guarantee Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in liquidation amount of the Capital Securities relating
to the time, method and place of conducting any proceeding for any
remedy available to the Capital Guarantee Trustee, or exercising
any trust or power conferred upon the Capital Guarantee Trustee
under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the Capital
Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if the
Capital Guarantee Trustee shall have reasonable grounds for
believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Guarantee
Agreement or adequate indemnity against such risk or liability is
not reasonably assured to it.
Section 3.2. Certain Rights of Capital Guarantee Trustee.
-------------------------------------------
(a) Subject to the provisions of Section 3.1:
(i) The Capital Guarantee Trustee may rely and shall be fully protected
in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed, sent or presented by the
proper party or parties.
9
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by a Direction
or an Officers' Certificate.
(iii) Whenever, in the administration of this Guarantee Agreement, the
Capital Guarantee Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting any
action hereunder, the Capital Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon an Officers'
Certificate which, upon receipt of such request, shall be promptly
delivered by the Guarantor.
(iv) The Captial Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
(v) The Captial Guarantee Trustee may consult with counsel, and the
written advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in accordance with such advice or opinion. Such
counsel may be counsel to the Guarantor or any of its Affiliates
and may include any of its employees. The Capital Guarantee Trustee
shall have the right at any time to seek instructions concerning
the administration of this Guarantee Agreement from any court of
competent jurisdiction.
(vi) The Capital Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder, unless such
Holder shall have provided to the Capital Guarantee Trustee such
adequate security and indemnity as would satisfy a reasonable
person in the position of the Capital Guarantee Trustee, against
the costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may be
requested by the Capital Guarantee Trustee; provided that, nothing
contained in this Section 3.2(a)(vi) shall be taken to relieve the
Capital Guarantee Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise
10
the rights and powers vested in it by this Guarantee
Agreement.
(vii) The Capital Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Capital Guarantee Trustee, in its
discretion may make such further inquiry or investigation
into such facts or matters as it may see fit.
(viii) The Capital Guarantee Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys, and the
Capital Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
(ix) Any action taken by the Capital Guarantee Trustee or its
agents hereunder shall bind the Holders of the Capital
Securities, and the signature of the Capital Guarantee
Trustee or its agents alone shall be sufficient and
effective to perform any such action. No third party shall
be required to inquire as to the authority of the Capital
Guarantee Trustee to so act or as to its compliance with any
of the terms and provisions of this Guarantee Agreement,
both of which shall be conclusively evidenced by the Capital
Guarantee Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Guarantee Agreement
the Capital Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Capital
Guarantee Trustee (i) may request instructions from the
Holders of the Capital Securities, (ii) may refrain from
enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be
protected in acting in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to
impose any duty or obligation on the Capital Guarantee
Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the
Capital Guarantee Trustee shall be
11
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 Capital Guarantee Trustee shall be construed to be a duty.
Section 3.3. Not Responsible for Recitals or Issuance of Guarantee.
-----------------------------------------------------
The recitals contained in this Guarantee shall be taken as the
statements of the Guarantor, and the Capital Guarantee Trustee does not assume
any responsibility for their correctness. The Capital Guarantee Trustee makes no
representation as to the validity or sufficiency of this Guarantee Agreement.
ARTICLE IV
Capital Guarantee Trustee
Section 4.1. Capital Guarantee Trustee; Eligibility.
--------------------------------------
(a) There shall at all times be a Capital Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws
of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or
Person permitted by the Securities and Exchange Commission
to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least 50
million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or
District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or
examining authority referred to above, then, for the
purposes of this Section 4.1(a)(ii), the combined capital
and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Capital Guarantee Trustee shall cease to
be eligible to so act under Section 4.1(a), the Capital
Guarantee Trustee shall immediately resign in the manner and
with the effect set out in Section 4.2(c).
12
(c) If the Capital Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b)
of the Trust Indenture Act, the Capital Guarantee Trustee
and Guarantor shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
Section 4.2. Appointment Removal and Resignation of Capital Guarantee
--------------------------------------------------------
Trustees.
--------
(a) Subject to Section 4.2(b), the Capital Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Capital Guarantee Trustee shall not be removed in accordance
with Section 4.2(a) until a Successor Capital Guarantee Trustee has
been appointed and has accepted such appointment by written
instrument executed by such Successor Capital Guarantee Trustee and
delivered to the Guarantor.
(c) The Capital Guarantee Trustee appointed to office shall hold office
until a Successor Capital Guarantee Trustee shall have been
appointed or until its removal or resignation. The Capital Guarantee
Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Capital
Guarantee Trustee and delivered to the Guarantor, which resignation
shall not take effect until a Successor Capital Guarantee Trustee
has been appointed and has accepted such appointment by instrument
in writing executed by such Successor Capital Guarantee Trustee and
delivered to the Guarantor and the resigning Capital Guarantee
Trustee.
(d) If no Successor Capital Guarantee Trustee shall have been appointed
and accepted appointment as provided in this Section 4.2 within 60
days after delivery to the Guarantor of an instrument of
resignation, the resigning Capital Guarantee Trustee may petition
any court of competent jurisdiction for appointment of a Successor
Capital Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a
Successor Capital Guarantee Trustee.
ARTICLE V
Guarantee
Section 5.1. Guarantee.
---------
The Guarantor irrevocably and unconditionally agrees to pay
in full to the Holders the Guarantee Payments (without
13
duplication of amounts theretofore paid by the Issuer), as and when due,
regardless of any defense, right of set-off or counterclaim that the Issuer may
have or assert. The Guarantor's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Guarantor to the
Holders or by causing the Issuer to pay such amounts to the Holders.
Section 5.2. Subordination.
-------------
If an Event of Default under the Indenture has occurred and is
continuing, the rights of holders of the Common Securities to receive payments
under the Common Securities Guarantee Agreement are subordinated to the rights
of Holders of Capital Securities to receive Guarantee Payments.
Section 5.3. Waiver of Notice and Demand.
---------------------------
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Issuer
or any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
Section 5.4. Obligations Not Affected.
------------------------
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Capital
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the
Capital Securities or the extension of time for the performance of
any other obligation under, arising out of, or in connection with,
the Capital Securities (other than an extension of time for payment
of Distributions, Redemption Price, Liquidation Distribution or
other sums payable that results from the extension of any interest
payment period on the Notes or any extension of the maturity date of
the Notes permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any
14
right, privilege, power or remedy conferred on the Holders pursuant
to the terms of the Capital Securities, or any action on the part of
the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the
Issuer or any of the assets of the Issuer;
(e) invalidity of, or defect or deficiency in the Capital Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the
intent of this Section 5.3 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
Section 5.5. Rights of Holders.
-----------------
(a) The Holders of a Majority in liquidation amount of the Capital
Securities have the right to direct the time, method and place of
conducting of any proceeding for any remedy available to the Capital
Guarantee Trustee in respect of this Guarantee Agreement or to
direct the exercise of any trust or power conferred upon the Capital
Guarantee Trustee under this Guarantee Agreement.
(b) Any Holder of Capital Securities may institute a legal proceeding
directly against the Guarantor to enforce its rights under this
Guarantee Agreement, without first instituting a legal proceeding
against the Issuer, the Capital Guarantee Trustee or any other
Person.
Section 5.6. Guarantee of Payment.
--------------------
This Guarantee Agreement creates a guarantee of payment and not of
collection.
15
Section 5.7. Subrogation.
-----------
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Capital Securities against the Issuer in respect of any amounts paid
to such Holders by the Guarantor under this Guarantee Agreement; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any right that
it may acquire by way of subrogation or any indemnity reimbursement or other
agreement, in all cases as a result of payment under this Guarantee Agreement,
if, at the time of any such payment, any amounts are due and unpaid under this
Guarantee Agreement. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
Section 5.8. Independent Obligations.
-----------------------
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Capital
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.4 hereof.
ARTICLE VI
Limitation of Transactions; Subordination
Section 6.1. Limitation of Transactions.
--------------------------
So long as any Capital Securities remain outstanding, if there shall
have occurred an Event of Default or an event of default under the Declaration,
then (a) the Guarantor shall not, and shall cause any subsidiary of Guarantor
that is not a wholly owned subsidiary of Guarantor not to, declare or pay any
dividend on, or make any distribution with respect to, or redeem, purchase or
acquire or make a liquidation payment with respect to, any of its capital stock
or the capital stock of any such subsidiary and (b) the Guarantor shall not make
any payment of interest, principal or premium, if any, on or repay, repurchase
or redeem any debt securities (including guarantees) issued by the Guarantor
which rank pari passu with or junior to the Notes, provided, that, the foregoing
restriction in this Section 6.1(a) shall not apply to any stock dividends paid
by Guarantor, or any of its subsidiaries, where the dividend stock is the same
stock as that on which the dividend is being paid.
Section 6.2. Ranking.
-------
This Guarantee Agreement will constitute an unsecured obligation of
the Guarantor and will rank (i) subordinate and
16
junior in right of payment to all other liabilities of the Guarantor (other than
the Common Securities Guarantee or any guarantee now or hereafter entered into
by the Guarantor in respect of any preferred or preference stock of any
Affiliate of the Guarantor), (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Guarantor and with any guarantee
now or hereafter entered into by the Guarantor in respect of any preferred or
preference stock of any Affiliate of the Guarantor, and (iii) senior to the
Guarantor's common stock.
ARTICLE VII
Termination
Section 7.1. Termination.
-----------
This Guarantee Agreement shall terminate and the Guarantee will no
longer be deemed to be outstanding upon (i) full payment of the Redemption Price
of all Capital Securities, (ii) upon the distribution of the Notes to the
Holders of all Capital Securities or (iii) upon full payment of the amounts
payable in accordance with the Declaration upon liquidation of the Issuer.
Notwithstanding the foregoing, this Guarantee Agreement will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
of Capital Securities must restore payment of any sums paid under the Capital
Securities or under this Capital Securities Guarantee.
ARTICLE VIII
Indemnification
Section 8.1. Exculpation.
-----------
(a) No Indemnified Person shall be liable, responsible or accountable in
damages or otherwise to the Guarantor or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith in accordance with this Guarantee Agreement and
in a manner that such Indemnified Person reasonably believed to be within the
scope of the authority conferred on such Indemnified Person by this Guarantee
Agreement or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's
negligence or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions,
17
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 Capital Securities might properly
be paid.
Section 8.2. Indemnification.
---------------
(a) To the fullest extent permitted by applicable law, the Guarantor shall
indemnify and hold harmless each Indemnified Person from and against any loss,
damage or claim incurred by such Indemnified Person by reason of any act or
omission performed or omitted by such Indemnified Person in good faith in
accordance with this Guarantee Agreement and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Guarantee Agreement, except that no Indemnified
Person shall be entitled to be indemnified in respect of any loss, damage or
claim incurred by such Indemnified Person by reason of negligence or willful
misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses (including
legal fees) incurred by an Indemnified Person in defending any claim, demand,
action, suit or proceeding shall, from time to time, be advanced by the
Guarantor prior to the final disposition of such claim, demand, action, suit or
proceeding upon receipt by the Guarantor of any undertaking by or on behalf of
the Indemnified Person to repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified as authorized in Section
8.2(a).
ARTICLE IX
Miscellaneous
Section 9.1. Successors and Assigns.
----------------------
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Capital
Securities then outstanding.
Section 9.2. Amendments.
----------
Except with respect to any changes that do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Guarantee Agreement may only be amended with the prior approval of the Holders
of at least 66-2/3% in liquidation amount (including the stated amount that
would be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of
all the outstanding Capital Securities. The provisions of Section 12.2 of the
Declaration with respect to
18
meetings of Holders of the Trust Securities apply to the giving of such
approval.
Section 9.3. Notices.
-------
All notices provided for in this Guarantee Agreement shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail as follows:
(a) If given to the Capital Guarantee Trustee, at the Capital Guarantee
Trustee's mailing address set forth below (or such other address as
the Capital Guarantee Trustee may give notice of to the Holders of the
Capital Securities):
The First National Bank of Chicago
One First National Plaza, Suite 0126
Chicago, Illinois 60670-0126
Telecopy No. (312) 407-1708
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of
to the Holders of the Capital Securities):
Great Western Financial Corporation
9200 Oakdale Avenue
Chatsworth, California 91311
Telecopy No. (818) 775-3434
(c) If given to any Holder of Capital Securities, at the address set forth
in the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
Section 9.4. Benefit.
-------
This Guarantee Agreement is solely for the benefit of the Holders of
the Capital Securities and, subject to Section 3.1(a), is not separately
transferable from the Capital Securities.
19
Section 9.5. Governing Law.
-------------
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
20
IN WITNESS WHEREOF, the parties hereto have caused this Guarantee
Agreement to be executed by their respective officers thereunto duly authorized,
as of the day and year first above written.
GREAT WESTERN FINANCIAL CORPORATION
By:
-------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Capital Guarantee Trustee
By:
-------------------------------
Name:
Title:
21