$300,000,000
Great Western Financial Trust II
8.206% Capital Securities, Series A
(Liquidation Amount $1,000 per Capital Security)
guaranteed to the extent set forth
in the Prospectus Supplement by
Great Western Financial Corporation
___________________________________
Underwriting Agreement
January 22, 1997
GOLDMAN, SACHS & CO. MERRILL LYNCH, PIERCE, FENNER & SMITH
85 Broad Street INCORPORATED
New York, NY 10004 World Financial Center
North Tower
250 Vesey Street
New York, NY 10281
LEHMAN BROTHERS INC.
3 World Financial Center SMITH BARNEY INC.
New York, NY 10285 388 Greenwich Street
New York, NY 10013
$300,000,000
Great Western Financial Trust II
8.206% Capital Securities, Series A
(Liquidation Amount $1,000 per Capital Security)
guaranteed to the extent set forth
in the Prospectus Supplement by
Great Western Financial Corporation
Underwriting Agreement
----------------------
January 22, 1997
Goldman, Sachs & Co.,
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
Lehman Brothers Inc.,
Smith Barney Inc.,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
Great Western Financial Trust II (the "Trust" and together
with the Company, as defined below, the "Offerors"), a statutory
business trust created under the Business Trust Act of the State
of Delaware (the "Delaware Business Trust Act"), and Great
Western Financial Corporation, a Delaware corporation (the
"Company"), as depositor of the Trust and as Guarantor (the
"Guarantor"), propose, subject to the terms and conditions stated
herein, to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") for whom you are acting as represen-
tatives (in such capacity, you shall hereinafter be referred to
as the "Representatives") an aggregate of 300,000 8.206% Capital
Securities, Series A (the "Securities"), of the Trust with a
liquidation amount of $1,000 per security. The Securities
represent undivided beneficial interests in the assets of the
Trust, guaranteed by the Guarantor to the extent set forth in the
guarantee (the "Guarantee") dated as of January 22, 1997, between
the Guarantor and The First National Bank of Chicago ("First
Chicago"), as trustee (the "Guarantee Trustee"). The entire
proceeds from the sale of the Securities will be combined with
the entire proceeds from the sale by the Trust to the Company of
its common securities (the "Common Securities"), and will be used
by the Trust to purchase $309,279,000 aggregate principal amount
of 8.206% Subordinated Deferrable Interest Notes due February 1,
2027 (the "Subordinated Notes") issued by the Company. The
Securities and the Common Securities will be issued pursuant to
the Amended and Restated Declaration of Trust dated as of
January 22, 1997 (the "Declaration") among the Company, as
depositor, Carl F. Geuther, J. Lance Erikson and Bruce F.
Antenberg (the "Regular Trustees"), First Chicago, as property
trustee (the "Property Trustee"), and First Chicago Delaware
Inc., as Delaware trustee (the "Delaware Trustee," and together
with the Issuer Trustees and the Property Trustee, the
"Trustees"), and the holders from time to time of undivided
beneficial interests in the assets of the Trust. The
Subordinated Notes will be issued pursuant to an Indenture, dated
as of September 12, 1990, as amended and supplemented by a First
Supplemental Indenture, dated April 30, 1993, a Second
Supplemental Indenture, dated as of December 6, 1995, and the
Third Supplemental Indenture, dated as of January 22, 1997 (as
amended and supplemented, the "Subordinated Indenture"), between
the Company and Harris Trust and Savings Bank, as Indenture
Trustee. The Securities may be exchangeable into Subordinated
Notes.
The Offerors have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form
S-3 (No. 333-19711) for the registration under the Securities Act
of 1933, as amended (the "1933 Act"), of certain securities,
including (i) the Securities, (ii) the Guarantee of the
Securities, (iii) the Preferred Stock, par value $1.00 per share,
of the Company (the "Company Preferred Stock"), (iv) the Common
Stock, par value $1.00 per share, of the Company (the "Common
Stock"), (v) the Depository Shares of the Company with respect to
the Company Preferred Stock (the "Depository Shares"), (vi) the
Senior Debt Securities Warrants, the Subordinated Debt Securities
Warrants, the Company Preferred Stock Warrants, the Depository
Shares Warrants and the Common Stock Warrants representing the
right to purchase Senior Debt Securities, Subordinated Debt
Securities, Company Preferred Stock, Depository Shares, and
Common Stock, respectively (such warrants are collectively
referred to herein as the "Securities Warrants"), and (vii) debt
securities of the Company, including the Subordinated Notes to be
issued and sold to the Trust by the Company (the securities set
forth in the foregoing clauses (i) to (vii) inclusive, are
collectively referred to herein as the "Registered Securities")
and the offering thereof from time to time in accordance with
Rule 415 under the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"), which registration
statement has been declared effective by the Commission and
copies of which have heretofore been delivered to you. Such
registration statement (as amended, if applicable), including a
preliminary prospectus and preliminary prospectus supplement
relating to the offering of the Securities (such preliminary
prospectus and preliminary prospectus supplement are collectively
referred to herein as the "Preliminary Prospectus"), all
documents incorporated or deemed to be incorporated by reference
therein, any registration statement increasing the size of the
offering (a "Rule 462(b) Registration Statement") filed pursuant
to Rule 462(b) under the 1933 Act which became effective upon
filing, and the information, if any, deemed to be part thereof
pursuant to Rule 430A(b) of the 1933 Act Regulations, as from
time to time amended or supplemented pursuant to the 1933 Act,
the Securities Exchange Act of 1934, as amended (the "1934 Act")
or otherwise, is hereinafter referred to as the "Registration
Statement." The Offerors propose to file with the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations the prospec-
tus supplement dated the date hereof (the "Prospectus
Supplement") relating to the Securities and the prospectus dated
January 21, 1997 (the "Base Prospectus") relating to the
Registered Securities, and have previously advised you of all
further information (financial and other) with respect to the
Company set forth therein. The Base Prospectus together with the
Prospectus Supplement, in their respective forms on the date
hereof (being the forms in which they are to be filed with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations),
including all documents incorporated or deemed to be incorporated
by reference therein through the date hereof, are hereinafter
referred to as the "Prospectus," except that if any revised
prospectus or prospectus supplement shall be provided to the
Underwriters by the Offerors for use in connection with the
offering of the Securities which differs from the Prospectus
(whether or not such revised prospectus or prospectus supplement
is required to be filed by the Offerors pursuant to Rule 424(b)
of the 1933 Act Regulations), the term "Prospectus" shall refer
to such revised prospectus or prospectus supplement, as the case
may be, from and after the time it is first provided to the
Underwriters for such use. Unless the context otherwise
requires, all references in this Agreement to documents,
financial statements and schedules and other information which is
"contained," "included," "stated," "described" or "referred to"
in the Registration Statement or the Prospectus (and all other
references of like import) shall be deemed to mean and include
all such documents, financial statements and schedules and other
information which is or is deemed to be incorporated by reference
in the Registration Statement or the Prospectus, as the case may
be; and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall
be deemed to mean and include the filing of any document under
the 1934 Act after the date of this Agreement which is or is
deemed to be incorporated by reference in the Registration
Statement or the Prospectus, as the case may be.
The Offerors understand that the Underwriters propose to
make a public offering of the Securities as soon as the
Representatives deem advisable after this Agreement has been
executed and delivered.
1. Each of the Offerors, jointly and severally, represents
and warrants to, and agrees with, each of the Underwriters as of
the date hereof that:
(a) The Registration Statement, at the time it became
effective and as of the date hereof, complied and complies in all
material respects with the requirements of the 1933 Act, the 1933
Act Regulations and the Trust Indenture Act of 1939, as amended
(the "1939 Act") and the rules and regulations of the Commission
under the 1939 Act (the "1939 Act Regulations"). The
Registration Statement, at the time it became effective and the
date hereof, did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading. The Prospectus, as of the date hereof (unless the
term "Prospectus" refers to a prospectus which has been provided
to the Underwriters by the Offerors for use in connection with
the offering of the Securities which differs from the Prospectus
filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations, in which case at the time it is first provided to
the Underwriters for such use) and at the Time of Delivery (as
defined in Section 4 hereof), does not and will not include an
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished to the
Offerors in writing by any Underwriter through the
Representatives expressly for use in the Registration Statement
or the Prospectus, or to those parts of the Registration
Statement that constitute the Statements of Qualification of the
Trustees under the 1939 Act, filed as exhibits to the
Registration Statement (the "Forms T-1"). For purposes of this
Section 1(a), all references to the Registration Statement, any
post-effective amendments thereto and the Prospectus shall be
deemed to include, without limitation, any electronically
transmitted copies thereof filed with the Commission pursuant to
its Electronic Data Gathering, Analysis, and Retrieval system
("EDGAR").
(b) The documents incorporated or deemed to be incorporated
by reference in the Registration Statement or the Prospectus, at
the time they were filed with the Commission, complied in all
material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission under the 1934 Act (the
"1934 Act Regulations").
(c) Since the respective dates as of which information is
given in the Prospectus, except for regular quarterly dividends
on the Common Stock, and regular quarterly dividends on the
Company's 8.30% Cumulative Preferred Stock, par value $1.00 per
share, (the "Cumulative Preferred Stock"), there has been no
dividend or distribution of any kind declared, paid or made by
the Offerors on any class of their capital stock.
(d) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus (except for
subsequent issuances, if any, pursuant to reservations or
agreements referred to in the Prospectus); all of the shares of
issued and outstanding Common Stock have been duly authorized and
validly issued and are fully paid and non-assessable and are not
subject to any preemptive or other similar rights; all of the
shares of issued and outstanding Cumulative Preferred Stock have
been duly authorized and validly issued and are fully paid and
non-assessable and are not subject to any preemptive or other
similar rights; the Securities, the Common Securities, the
Subordinated Notes and the Guarantee conform to all statements
relating thereto contained in the Prospectus; and the issuance of
the Securities and the Guarantee is not subject to any preemptive
or other similar rights.
(e) The Trust has been duly created and is validly existing
and in good standing as a business trust under the Delaware
Business Trust Act with the power and authority to own property
and to conduct its business as described in the Registration
Statement and Prospectus and to enter into and perform its
obligations under this Agreement, the Securities, the Common
Securities and the Declaration, and the Trust is not required to
be qualified to transact business in any other jurisdiction; the
Trust is not a party to or otherwise bound by any agreement other
than those described in the Prospectus; the Trust is and will be
classified for United States federal income tax purposes as a
grantor trust and not as an association taxable as a partnership
or corporation; and the Trust is and will be treated as a
consolidated subsidiary of the Company pursuant to generally
accepted accounting principles.
(f) The Common Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the
Company against payment therefor as described in the Registration
Statement and Prospectus, will be validly issued (subject to the
terms of the Declaration) and fully paid and non-assessable
undivided beneficial interests in the assets of the Trust, and
will be entitled to the benefits of the Declaration; the issuance
of the Common Securities is not subject to preemptive or other
similar rights; and at the Time of Delivery, all of the issued
and outstanding Common Securities of the Trust will be directly
owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(g) The Declaration has been duly authorized by the Company
and, at the Time of Delivery, will have been duly executed and
delivered by the Company and the Regular Trustees, and assuming
due authorization, execution and delivery of the Declaration by
the Property Trustee and the Delaware Trustee, the Declaration
will, at the Time of Delivery, be a valid and binding obligation
of the Company and the Regular Trustees, enforceable against the
Company and the Regular Trustees in accordance with its terms,
except as may be limited by bankruptcy, insolvency, moratorium,
reorganization, conservatorship, receivership or similar laws
relating to or affecting creditors' rights generally (including,
without limitation, fraudulent conveyance laws) and by general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance or injunctive
relief, regardless of whether considered in a proceeding in
equity or at law (the "Bankruptcy Exceptions") and will conform
to all statements relating thereto in the Prospectus; and at the
Time of Delivery, the Declaration will have been duly qualified
under the 1939 Act.
(h) The Guarantee has been duly authorized by the Company
(no stockholder action being required) and, when validly executed
and delivered by the Company and assuming due authorization,
execution and delivery thereof by the Guarantee Trustee, the
Guarantee will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its
terms except as may be limited by the Bankruptcy Exceptions; and
the Guarantee, at the Time of Delivery, will have been duly
qualified under the 1939 Act.
(i) The Securities have been duly authorized by the
Declaration and, when issued and delivered by the Trust against
payment of the consideration therefor in accordance with the
terms of this Agreement, will be validly issued (subject to the
terms of the Declaration) and fully paid and non-assessable
undivided beneficial interests in the assets of the Trust, and
will be entitled to the benefits of the Declaration; and holders
of Securities will be entitled to the same limitation of personal
liability under Delaware law as extended to stockholders of
private corporations for profit.
(j) The Subordinated Indenture has been duly authorized by
the Company (no stockholder action being required) and, when the
Subordinated Indenture is validly executed and delivered by the
Company, the Subordinated Indenture will constitute a valid and
binding agreement of the Company, enforceable against the Company
in accordance with its terms except as may be limited by the
Bankruptcy Exceptions; and the Time of Delivery, the Subordinated
Indenture will have been duly qualified under the 1939 Act.
(k) The Subordinated Notes have been duly authorized by the
Company (no stockholder action being required) and, at the Time
of Delivery, will have been duly executed by the Company; the
Subordinated Notes, when authenticated in the manner provided for
in the Subordinated Indenture and delivered against payment
therefor as described in the Prospectus, will constitute valid
and binding obligations of the Company, enforceable against the
Company in accordance with their terms except as may be limited
by the Bankruptcy Exceptions; and the Subordinated Notes will be
in the form contemplated by, and entitled to the benefits of, the
Subordinated Indenture.
(l) The Company's obligations under the Guarantee are
subordinate and junior in right of payment to all liabilities of
the Company and are, and for so long as the Securities are
outstanding, will be, pari passu with the most senior preferred
or preference stock issued by the Company.
(m) The Subordinated Notes are subordinate and junior in
right of payment to all "Senior Indebtedness" (as defined in the
Subordinated Indenture) of the Company.
(n) Each of the Regular Trustees of the Trust is an
employee of the Company and has been duly authorized by the
Company to execute and deliver the Declaration.
(o) Neither of the Offerors is an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the
"1940 Act").
(p) The Registration Statement is effective under the 1933
Act and no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission.
(q) Each of the Offerors meets the registrant requirements
for use of Form S-3 and Rule 415 under the 1933 Act Regulations;
after giving effect to the sale of the Securities and the sale of
any other of the Registered Securities to be issued prior to the
delivery of the Securities, the aggregate amount of securities
which have been issued and sold by the Offerors pursuant to the
Registration Statement will not exceed the aggregate amount of
theretofore unsold Registered Securities pursuant to the
Registration Statement.
(r) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse
change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or in
the earnings, business or properties of the Trust or the Company
and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and (B) neither the
Company or any of its subsidiaries nor the Trust has incurred any
liability, direct or contingent, or entered into any transaction,
other than in the ordinary course of business, that is material
to the Trust or the Company and its subsidiaries taken as a
whole.
Any certificate signed by any officer of the Company or any
Trustee of the Trust and delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and
warranty by the Company or the Trust, as applicable, to each
Underwriter as to the matters covered thereby.
2. Subject to the terms and conditions herein set forth,
the Trust agrees to issue and sell and the Company agrees to
cause the Trust to issue and sell to each of the Underwriters,
and each of the Underwriters agrees, severally and not jointly,
to purchase from the Trust, at a purchase price per Security of
$1,000.00, the number of Securities set forth opposite the name
of such Underwriter in Schedule I hereto.
As compensation to the Underwriters for their commitments
hereunder, and in view of the fact that the proceeds of the sale
of the Securities will be used by the Trust to purchase the
Subordinated Notes of the Company, the Company at the Time of
Delivery will pay to Goldman, Sachs & Co., for the accounts of
the several Underwriters, an amount equal to $10.00 per Security
for the Securities to be delivered by the Trust hereunder at the
Time of Delivery.
3. Upon the authorization by you of the release of the
Securities, the several Underwriters propose to offer the
Securities for sale upon the terms and conditions set forth in
this Agreement and the Prospectus.
4. (a) The Securities to be purchased by each Underwriter
hereunder will be represented by one or more definitive global
Securities in book-entry form which will be deposited by or on
behalf of the Trust with The Depository Trust Company ("DTC") or
its designated custodian. The Trust will deliver the Securities
to Goldman, Sachs & Co., for the account of each Underwriter,
against payment by or on behalf of such Underwriter of the
purchase price therefor by wire transfer of Federal (same day)
funds to an account designated by the Trust, by causing DTC to
credit the Securities to the account of Goldman, Sachs & Co. at
DTC. The Trust will cause the certificates representing the
Securities to be made available to Goldman, Sachs & Co. for
checking at least twenty-four hours prior to the Time of Delivery
at the office of DTC or its designated custodian (the "Designated
Office"). The time and date of such delivery and payment shall
be 9:30 a.m., New York time, on January 27, 1997 or such other
time and date as Goldman, Sachs & Co., the Trust and the Company
may agree upon in writing. Such time and date for delivery of
the Securities is herein called the "Time of Delivery".
At the Time of Delivery, the Company will pay, or cause to
be paid, the commission payable at the Time of Delivery to the
Underwriters under Section 2 hereof by wire transfer of Federal
(same day) funds to an account designated by Goldman, Sachs & Co.
(b) The documents to be delivered at the Time of Delivery
by or on behalf of the parties hereto pursuant to Section 7
hereof, including the cross-receipt for the Securities and any
additional documents requested by the Underwriters pursuant to
Section 7(k) hereof, will be delivered at the offices of: Great
Western Financial Corporation, 9200 Oakdale Avenue, Chatsworth,
California 91311 (the "Closing Location"), and the Securities
will be delivered at the Designated Office, all at the Time of
Delivery. A meeting will be held at the Closing Location at
1:00 p.m., Los Angeles time, on the New York Business Day next
preceding the Time of Delivery, at which meeting the final drafts
of the documents to be delivered pursuant to the preceding
sentence will be available for review by the parties hereto. For
the purposes of this Section 4, "New York Business Day" shall
mean each Monday, Tuesday, Wednesday, Thursday and Friday which
is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to
close.
5. Each of the Trust and the Company, jointly and
severally, agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and
to file such Prospectus pursuant to Rule 424(b) under the 1933
Act not later than the Commission's close of business on the
second business day following the execution and delivery of this
Agreement, or, if applicable, such earlier time as may be
required by Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus prior to
the Time of Delivery which shall be disapproved by you promptly
after reasonable notice thereof; to advise you, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been
filed and to furnish you with copies thereof; to file promptly
all reports and any definitive proxy or information statements
required to be filed by the Trust or the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
1934 Act subsequent to the date of the Prospectus and for so long
as the delivery of a prospectus is required in connection with
the offering or sale of the Securities; to advise you, promptly
after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus
relating to the Securities, of the suspension of the
qualification of the Securities or the Subordinated Notes for
offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of
the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any stop order
or of any order preventing or suspending the use of any
Preliminary Prospectus or prospectus or suspending any such
qualification, promptly to use its best efforts to obtain the
withdrawal of such order.
(b) Promptly from time to time to take such action as you
may reasonably request to qualify the Securities or the
Subordinated Notes for offering and sale under the securities
laws of such jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Securities, provided that in
connection therewith neither the Trust nor the Company shall be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction.
(c) Prior to 12:00 p.m., New York City time, on the New
York Business Day next succeeding the date of this Agreement and
from time to time, to use its best efforts to furnish the Under-
writers with copies of the Prospectus in New York City as amended
or supplemented in such quantities as you may from time to time
reasonably request, and, if the delivery of a prospectus is
required at any time prior to the expiration of nine months after
the time of issue of the Prospectus in connection with the
offering or sale of the Securities and if at such time any event
shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall
be necessary during such period to amend or supplement the
Prospectus or to file under the 1934 Act any document
incorporated by reference in the Prospectus in order to comply
with the 1933 Act, the 1934 Act or the 1939 Act, to notify you
and upon your request to file such document and to prepare and
furnish without charge to each Underwriter and to any dealer in
securities as many copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or
effect such compliance, and in case any Underwriter is required
to deliver a prospectus in connection with sales of any of the
Securities at any time nine months or more after the time of
issue of the Prospectus, upon your request but at the expense of
such Underwriter, to prepare and deliver to such Underwriter as
many copies as you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the 1933 Act.
(d) In the case of the Company, to make generally available
to its securityholders as soon as practicable, but in any event
not later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the 1933
Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the
1933 Act and the 1933 Act Regulations thereunder (including, at
the option of the Company, Rule 158).
(e) During the period beginning from the date hereof and
continuing to and including the Time of Delivery, not to offer,
sell, contract to sell or otherwise dispose of, except as
provided hereunder any Securities, any other beneficial interests
in the assets of the Trust, or any preferred securities or any
other securities of the Trust or the Company, as the case may be,
that are substantially similar to the Securities (including any
guarantee of such securities), including but not limited to any
securities that are convertible into or exchangeable for, or that
represent the right to receive, securities, preferred securities
or any such substantially similar securities of the Trust or the
Company (other than pursuant to employee stock option plans
existing on, or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this
Agreement), without your prior written consent.
(f) In the case of the Company, to issue the Guarantee
concurrently with the issue and sale of the Securities as
contemplated herein.
(g) If the Trust and the Company elect to rely upon Rule
462(b), the Trust and the Company shall file a Rule 462(b)
Registration Statement with the Commission in compliance with
Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of
this Agreement, and the Trust and the Company shall at the time
of filing either pay to the Commission the filing fee for the
Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b)
under the 1933 Act.
6. The Company covenants and agrees with the several
Underwriters that it will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the Company's counsel
and accountants in connection with the registration of the
Securities, the Guarantee and the Subordinated Notes under the
1933 Act and all other expenses in connection with the prepara-
tion, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of
producing any Agreement among Underwriters, this Agreement, the
Securities and the Subordinated Notes and any Blue Sky
Memorandum; (iii) all expenses in connection with the
qualification of the Securities, the Guarantee and the Subordi-
nated Notes for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky survey(s);
(iv) any fees charged by securities rating services for rating
the Securities and the Subordinated Notes; (v) any filing fees
incident to, and the fees and disbursements of counsel for the
Underwriters in connection with, any required reviews by the
National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities and the issuance of the Guarantee and
the Subordinated Notes; (vi) the cost of preparing the Securities
and the Subordinated Notes; (vii) the fees and expenses of any
Trustee, Indenture Trustee and Guarantee Trustee, and any agent
of any trustee and the fees and disbursements of counsel for any
trustee in connection with the Declaration, the Subordinated
Indenture, the Guarantee and the Securities; (viii) the cost of
qualifying the Securities with DTC; and (ix) all other costs and
expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this
Section. It is understood, however, that, except as provided in
this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities
by them, and any advertising expenses connected with any offers
they may make.
7. The obligations of the Underwriters hereunder, as to
the Securities to be delivered at the Time of Delivery, shall be
subject, in their discretion, to the condition that all
representations and warranties and other statements of the Trust
and the Company herein are, at and as of the Time of Delivery,
true and correct, the condition that the Trust and the Company
shall have performed all of their respective obligations
hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the rules and regulations
under the 1933 Act and in accordance with Section 5(a) hereof; if
the Trust and the Company have elected to rely upon Rule 462(b),
the Rule 462(b) Registration Statement shall have become
effective by 10:00 p.m., Washington, D.C. time, on the date of
this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued
and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been
complied with to your reasonable satisfaction.
(b) Brown & Wood llp, counsel for the Underwriters, shall
have furnished to you such opinion or opinions, dated the Time of
Delivery, with respect to the matters as you may reasonably
request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass
upon such matters.
In rendering such opinion, such counsel may rely as to
certain matters involving the application of Delaware law as to
the Trust, to the extent deemed proper and specified in such
opinion, upon the opinion of Skadden, Arps, Slate, Meagher & Flom
(Delaware), special counsel to the Trust, which opinion shall be
delivered pursuant to Section 7(e) hereof.
(c) Stephen F. Adams, Esq., Associate General Counsel of
the Company, shall have furnished to you his written opinion,
dated the Time of Delivery, in form and substance satisfactory to
you, to the effect that:
(i) Each of the Company and Great Western Bank, a
Federal Savings Bank (the "Bank") is duly qualified to
conduct business in each jurisdiction in which the conduct
of its business or the ownership or leasing of property
requires such qualification, except for those jurisdictions
where the failure so to qualify will not have a material
adverse effect on the business of the Company and its
subsidiaries taken as a whole.
(ii) To the best of such counsel's knowledge and
information, the issuance and delivery of the Subordinated
Notes and the Guarantee by the Company and the issuance and
sale of the Securities by the Trust pursuant to the terms of
this Agreement and the execution and delivery of this
Agreement, the Declaration, the Securities, the Common
Securities, the Subordinated Indenture, the Subordinated
Notes, and the Guarantee, will not conflict with or
constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Trust or the Company or
any of its subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its
subsidiaries may be bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject,
the effect of which would be material to the Company and its
subsidiaries taken as a whole, nor will any such action
result in any violation of any law, administrative
regulation or administrative or court decree, the effect of
which violation would be material to the Company and its
subsidiaries taken as a whole, or the provisions of the
Certificate of Incorporation or bylaws of the Company.
(iii) Such counsel has no knowledge of any action,
suit or proceeding pending or threatened against the Trust
or the Company or any of its subsidiaries or any of their
respective properties before or by any court, governmental
official, commission, board, or other administrative agency
which would materially and adversely affect the financial
condition or results of operations of the Trust or the
Company and its subsidiaries taken as a whole, except as may
be disclosed and correctly summarized in the Prospectus.
(iv) The Registration Statement is effective under
the 1933 Act and, to the best of such counsel's knowledge
and information, no stop order suspending the effectiveness
of the Registration Statement has been issued under the 1933
Act or proceedings therefor initiated or threatened by the
Commission.
(v) No holders of securities of the Offerors have
rights to require either of the Offerors to arrange for the
offer or sale of such securities in connection with the
transactions contemplated by this Agreement.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction
other than the State of California or the United States, to the
extent deemed proper and specified in such opinion, upon the
opinion of other counsel who are satisfactory to counsel to the
Underwriters and (B) as to matters of fact, to the extent deemed
proper, on certificates of the Trustees of the Trust and
responsible officers of the Company and its subsidiaries, as
applicable, and public officials.
(d) O'Melveny & Myers llp, counsel for the Company (or such
other counsel satisfactory to the Representatives), shall have
furnished to you such opinion or opinions, dated the Time of
Delivery, in form and substance satisfactory to you, to the
effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing under the laws of the
State of Delaware and has the corporate power and corporate
authority to conduct the business in which it is generally
engaged as described in the Prospectus and to enter into and
perform its obligations under this Agreement and the
Subordinated Indenture, and to issue the Subordinated Notes
and the Guarantee.
(ii) The Bank has been duly organized and is validly
existing and in good standing under the laws of the United
States, has been authorized by the Office of Thrift
Supervision to conduct the business of a federal savings
bank and has the corporate power and corporate authority to
conduct the business in which it is generally engaged as
described in the Prospectus.
(iii) All of the outstanding capital stock of the Bank
is owned of record by the Company.
(iv) The Company is a savings and loan holding
corporation registered under Section 10 of the Home Owners'
Loan Act of 1933, as amended.
(v) This Agreement has been duly authorized by all
necessary corporate action on the part of the Company and
has been duly executed and (assuming due execution and
delivery thereof by the Trust and by the Representatives,
for themselves and as Representatives of the Underwriters)
delivered by the Company; and the issuance and delivery of
the Subordinated Notes and the offering of the Guarantee by
the Company and the issuance and sale of the Securities by
the Trust pursuant to the terms of this Agreement and the
execution and delivery of this Agreement, the Declaration,
the Securities, the Common Securities, the Subordinated
Indenture, the Subordinated Notes and the Guarantee, will
not result in any violation of the Certificate of
Incorporation or bylaws of the Company.
(vi) The Bank is a member of the Federal Home Loan
Bank of San Francisco and the savings accounts of the
depositors in the Bank are insured by the Federal Deposit
Insurance Corporation (the "FDIC") in accordance with the
rules and regulations of the FDIC.
(vii) The Declaration has been duly qualified under
the 1939 Act.
(viii) All of the outstanding Common Securities of the
Trust are owned of record by the Company.
(ix) The Guarantee has been duly authorized by all
necessary corporate action on the part of the Company, has
been duly executed and (assuming due authorization,
execution and delivery thereof by the Guarantee Trustee)
delivered by the Company, and the Guarantee constitutes a
legally valid and binding obligation of the Company,
enforceable against the Company in accordance with its
terms, except as may be limited by the Bankruptcy Exceptions
and by the unenforceability under certain circumstances of
waivers of rights granted by law where the waivers are
against public policy or prohibited by law; and the
Guarantee has been duly qualified under the 1939 Act.
(x) The Subordinated Indenture has been duly
authorized by all necessary corporate action on the part of
the Company, has been duly executed and (assuming due
authorization, execution and delivery by the Indenture
Trustee) delivered by the Company and constitutes a legally
valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as
may be limited by the Bankruptcy Exceptions; the
Subordinated Indenture has been duly qualified under the
1939 Act.
(xi) The Subordinated Notes are in the form contem-
plated by the Subordinated Indenture, and have been duly
authorized by all necessary corporate action on the part of
the Company and, when authenticated and delivered by the
Indenture Trustee in accordance with the provisions of the
Subordinated Indenture and delivered to the Trust in
exchange for the consideration therefor, will constitute
legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their
terms, except as may be limited by the Bankruptcy
Exceptions.
(xii) The Declaration has been duly authorized by all
necessary corporate action on the part of the Company, has
been duly executed and (assuming due authorization,
execution and delivery by the Delaware Trustee and the
Property Trustee) delivered by the Company and the Regular
Trustees and constitutes a legally valid and binding
obligation of the Company, enforceable against the Company
in accordance with its terms, except as may be limited by
the Bankruptcy Exceptions.
(xiii) The Company is not an "investment company" nor
"controlled" by an "investment company" within the meaning
of the 1940 Act. The Trust is not subject to registration
as an "investment company" under the 1940 Act.
(xiv) The Registration Statement is effective under
the 1933 Act and, to the best of such counsel's knowledge
and information, no stop order suspending the effectiveness
of the Registration Statement has been issued under the 1933
Act or proceedings therefor initiated or threatened by the
Commission.
(xv) No consent, authorization or order of, or filing
of the Prospectus with, any California or federal
governmental authority is required in connection with the
execution and delivery of this Agreement, the Declaration,
the Subordinated Indenture, the Guarantee, the offering of
the Guarantee, or the issuance and delivery of the
Subordinated Notes, nor the issuance and sale of the
Securities by the Trust pursuant to the terms of this
Agreement, other than such authorizations and orders as have
been applied for under the 1934 Act and such consents,
authorizations and orders as have been obtained or filings
as have been made, and except as may be required under state
securities or blue sky laws with respect to which such
counsel need express no opinion.
(xvi) The Registration Statement, as of the date it
was declared effective by the Commission, appeared on its
face to comply in all material respects with the
requirements as to form for registration statements on Form
S-3 under the 1933 Act and the 1933 Act Regulations, except
that no opinion need be expressed concerning the financial
statements and other financial and statistical information
contained or incorporated by reference therein or the
Forms T-1.
(xvii) Each of the documents filed pursuant to the 1934
Act and incorporated by reference in the Prospectus appeared
on their face to comply in all material respects with the
requirements as to form for reports on Form 10-K, Form 10-Q
and Form 8-K, as the case may be, under the 1934 Act and the
1934 Act Regulations thereunder in effect at the respective
dates of their filing, except that no opinion need be
expressed concerning the financial statements and other
financial and statistical information contained or
incorporated by reference therein.
(xviii) The authorized capital stock of the Company
consists of 200,000,000 shares of Common Stock and
10,000,000 shares of Preferred Stock, par value $1.00 per
share.
(xix) The information in the Base Prospectus under the
captions "Description of Debt Securities," "Description of
Preferred Stock," "Description of Depositary Shares,"
"Description of Common Stock," "Description of Preferred
Securities," "Description of Guarantee" and "Description of
Securities Warrants" and in the Prospectus Supplement under
the captions "Risk Factors," "Description of the Offered
Capital Securities" (except under the sub-caption "Book-
Entry Only Issuance--The Depository Trust Company"),
"Description of the Subordinated Notes" and "Effect of
Obligations Under the Subordinated Notes and the Guarantee,"
insofar as it purports to summarize matters of California,
New York or federal law applicable to the Company or the
provisions of the debt securities, capital stock and
securities warrants of the Company and the Securities, the
Subordinated Notes, and the Guarantee, is correct in all
material respects.
(xx) The Trust will be classified as a grantor trust
and not as an association taxable as a corporation for
United States federal income tax purposes; and although the
discussion set forth in the Prospectus Supplement under the
caption "Certain Federal Income Tax Consequences" does not
purport to discuss all possible United States federal income
tax consequences of the purchase, ownership and disposition
of Securities, such discussion constitutes, in all material
respects, a fair and accurate summary of the United States
federal income tax consequences of the purchase, ownership
and disposition of the Securities under current law.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction
other than the federal laws of the United States of America, the
laws of the States of California and New York and the General
Corporation Law of the State of Delaware, to the extent deemed
proper and specified in such opinion, upon the opinion of other
counsel who are satisfactory to counsel for the Underwriters and
(B) as to matters of fact, to the extent deemed proper, on
certificates of the Trustees of the Trust and responsible
officers of the Company and the Bank and public officials.
(e) Skadden, Arps, Slate, Meagher & Flom (Delaware),
special Delaware counsel for the Trust, shall have furnished to
you their written opinion, dated the Time of Delivery, in form
and substance satisfactory to you, to the extent set forth below.
To the extent used herein, (a) "Applicable Law" shall mean only
the Delaware Business Trust Act and only those other laws of the
State of Delaware which, in such counsel's experience, are
normally applicable to transactions of the type contemplated by
this Agreement, and (b) "Governmental Approval" shall mean any
consent, approval, license, authorization or validation of, or
filing, recording or registration with, any governmental
authority pursuant to Applicable Law.
(i) The issuance and sale by the Trust of the
Securities and Common Securities; the execution, delivery
and performance by the Trust of this Agreement; the
consummation by the Trust of the transactions contemplated
herein and therein; and compliance by the Trust with its
obligations hereunder and thereunder have been duly
authorized by all necessary trust action on the part of the
Trust and do not and will not violate (i) any of the
provisions of the Certificate of Trust or the Declaration or
(ii) any Applicable Law; except that such counsel does not
express any opinion in this paragraph with respect to state
securities (blue sky) laws.
(ii) The Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act; all filings required under the
laws of the State of Delaware with respect to the creation
and valid existence of the Trust as a business trust have
been made; under the Delaware Business Trust Act and the
Declaration, the Trust has all necessary power and authority
to own property and to conduct its business as described in
the Registration Statement and the Prospectus and to enter
into and perform its obligations under this Agreement, the
Securities and the Common Securities.
(iii) The Common Securities have been duly authorized
for issuance and when issued, delivered and paid for, will
be validly issued and, except as otherwise provided in
Section 10.1 of the Declaration, fully paid and
non-assessable undivided beneficial interests in the assets
of the Trust; and the issuance of the Common Securities is
not subject to preemptive or other similar rights under the
Delaware Business Trust Act or the Declaration.
(iv) The Securities have been duly authorized for
issuance and, subject to the qualification set forth below,
when issued, delivered and paid for in accordance with this
Agreement, will be validly issued, fully paid and
non-assessable undivided beneficial interests in the assets
of the Trust; the holders of the Securities will be entitled
to the same limitation of personal liability extended to
stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware;
and the issuance of the Securities is not subject to
preemptive or other similar rights under the Delaware
Business Trust Act or the Declaration. Such counsel may
bring to the attention of the Underwriters that the holders
of Securities may be obligated, pursuant to the Declaration,
to (i) provide indemnity and/or security in connection with
and pay taxes or governmental charges arising from transfers
of Securities and the issuance of replacement Securities,
and (ii) provide security and indemnity in connection with
requests of or directions to the Property Trustee to
exercise its rights and powers under the Declaration.
(v) Assuming the due authorization, execution and
delivery of the Declaration by the Delaware Trustee, the
Property Trustee, the Company and the Regular Trustees, the
Declaration constitutes a valid and binding obligation of
the Company, enforceable against the Company in accordance
with its terms, except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions.
(vi) No Governmental Approval is required in
connection with the issuance and sale of the Common
Securities or the offering of the Securities, the
Subordinated Notes, or the Guarantee, except for such
approvals as may be required under the state securities
(blue sky) laws or such approvals which have been obtained,
taken, or made and are in full force and effect.
(vii) The information in the Base Prospectus under the
caption "Description of Preferred Securities" and in the
Prospectus Supplement under the caption "Description of the
Offered Capital Securities" (except under the sub-caption
"Book-Entry Only Issuance--The Depository Trust Company"),
insofar as such information constitutes a summary of
Delaware law or of the documents therein described that are
governed by Delaware law, or legal conclusions, have been
reviewed by them and is, in all material respects, an
accurate summary of such provisions.
(viii) This Agreement has been duly authorized,
executed and delivered by the Trust.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction
other than the General Corporation Law of the State of Delaware,
to the extent deemed proper and specified in such opinion, upon
the opinion of other counsel who are satisfactory to counsel for
the Underwriters and (B) as to matters of fact, to the extent
deemed proper by the Representatives, on certificates of Trustees
of the Trust and public officials.
(f) Pepper, Hamilton & Scheetz, counsel for the Property
Trustee under the Declaration, and Guarantee Trustee under the
Guarantee, shall have furnished to you their written opinion,
dated the Time of Delivery, in form and substance satisfactory to
you, to the effect that:
(i) First Chicago is a national banking association
with trust powers, duly organized, validly existing and in
good standing under the laws of the United States with all
necessary corporate power and authority to execute, deliver,
and to carry out and perform its obligations under the terms
of, the Declaration and the Guarantee.
(ii) The execution, delivery and performance by the
Property Trustee of the Declaration and the execution,
delivery and performance by the Guarantee Trustee of the
Guarantee have been duly authorized by all necessary
corporate action on the part of the Property Trustee and the
Guarantee Trustee. The Declaration and the Guarantee have
been duly executed and delivered by the Property Trustee and
the Guarantee Trustee, respectively, and constitute the
legal, valid and binding obligation of the Property Trustee
and the Guarantee Trustee, respectively, enforceable against
the Property Trustee and the Guarantee Trustee,
respectively, in accordance with their terms, except as may
be limited by the Bankruptcy Exceptions.
(iii) The execution, delivery and performance of the
Declaration and the Guarantee by the Property Trustee and
the Guarantee Trustee, respectively, do not conflict with or
constitute a breach of the charter or by-laws of the
Property Trustee and the Guarantee Trustee, respectively.
(iv) No consent, approval or authorization of, or
registration with or notice to, any Delaware or federal
banking authority is required for the execution, delivery or
performance by the Property Trustee or the Guarantee Trustee
of the Declaration or the Guarantee, respectively.
(g) In giving their opinions required by subsections (b)
and (d), respectively, of this Section, O'Melveny & Myers llp and
Brown & Wood llp shall each additionally state that in connection
with such counsel's participation in the preparation of the
Registration Statement and Prospectus (exclusive of the documents
incorporated by reference therein), such counsel has not
independently verified the accuracy, completeness or fairness of
the statements contained or incorporated therein and the
limitations inherent in the examination made by such counsel and
the knowledge available to such counsel are such that such
counsel is unable to assume, and does not assume, any responsi-
bility for the accuracy, completeness or fairness of the
statements contained or incorporated in the Registration
Statement or Prospectus or the documents incorporated therein
(except as otherwise specifically stated in clause (xix) of
Subsection (d) above). However, on the basis of such counsel's
examination and participation in conferences in connection with
the preparation of the Registration Statement and Prospectus
(exclusive of the documents incorporated by reference therein),
such counsel shall state that such counsel does not believe that
the Registration Statement and the documents incorporated by
reference therein, considered as a whole at the date the
Registration Statement was declared effective by the Commission,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus and the documents incorporated by reference therein,
considered as a whole at the date of the Prospectus and at the
Time of Delivery, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
Such counsel need express no opinion or belief, however, as to
the financial statements or schedules contained in or excluded
from the Registration Statement or the Prospectus or the
documents incorporated by reference therein, or incorporated by
reference in the Registration Statement or the Prospectus or such
incorporated documents or those parts of the Registration
Statement that constitute the Forms T-1.
(h) Pepper, Hamilton & Scheetz, counsel to the Delaware
Trustee, shall have furnished to you their written opinion, dated
the Time of Delivery, in form and substance satisfactory to you,
to the effect that:
(i) First Chicago Delaware Inc. is a Delaware
corporation, duly organized, validly existing and in good
standing under the laws of the State of Delaware, with full
corporate power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of,
the Declaration.
(ii) The execution, delivery and performance by the
Delaware Trustee of the Declaration has been duly authorized
by all necessary corporate action on the part of the
Delaware Trustee. The Declaration has been duly executed
and delivered by the Delaware Trustee and constitutes the
legal, valid and binding obligation of the Delaware Trustee,
enforceable against the Delaware Trustee in accordance with
its terms, except as enforcement may be limited by the
Bankruptcy Exceptions.
(iii) The execution, delivery and performance of the
Declaration by the Delaware Trustee do not conflict with or
constitute a breach of the charter or by-laws of the
Delaware Trustee.
(iv) No consent, approval or authorization of, or
registration with or notice to, any federal or Delaware
banking authority is required for the execution, delivery or
performance by the Delaware Trustee of the Declaration.
(i) Price Waterhouse llp shall have furnished to you a
letter, dated as of the Time of Delivery, in form and substance
reasonably satisfactory to you, containing statements and
information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial
statements and certain financial information contained or
incorporated by reference in the Registration Statement and the
Prospectus.
(j) (i) None of the Trust, the Company or any of the
Company's subsidiaries shall have sustained since the date of the
latest audited financial statements included or incorporated by
reference in the Prospectus as amended prior to the date of this
Agreement any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order, decree or regulation, otherwise than as set forth
or contemplated in the Prospectus as amended prior to the date of
this Agreement, and (ii) since the respective dates as of which
information is given in the Prospectus as amended prior to the
date of this Agreement there shall not have been any change in
the capital stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, otherwise than
as set forth or contemplated in the Prospectus as amended or
supplemented prior to the date of this Agreement, the effect of
which, in any such case described in Clause (i) or (ii), is in
the judgment of the Representatives so material and adverse as to
make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities on the terms and in
the manner contemplated in the Prospectus.
(k) Prior to the Time of Delivery, the Company and the
Trust shall have furnished to you certificates of officers of the
Trust and the Company satisfactory to you as to the accuracy of
the representations and warranties of the Trust and the Company
herein at and as of the Time of Delivery, as to the performance
by the Trust and the Company of all of its obligations hereunder
to be performed at or prior to the Time of Delivery, as to the
matters set forth in subsections (a) and (j) of this Section and
as to such other matters as you may reasonably request.
(l) On or after the date hereof and on or prior to the Time
of Delivery, there shall not have occurred any of the following:
(i) the outbreak or escalation of hostilities
involving the United States or the declaration by the
United States of a national emergency or war or the
occurrence of any other calamity or crisis if the
effect of such event specified in this clause (i) in
your judgment makes it impracticable or inadvisable to
proceed with the purchase of the Securities, on the
terms and in the manner contemplated in the Prospectus;
(ii) any downgrading in the rating accorded the
Company's debt securities or preferred stock by any
"nationally recognized statistical rating
organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the
1933 Act, or any public announcement by any such
organization that it has under surveillance or review,
with possible negative implications, its rating of any
of the Company's debt securities or preferred stock;
(iii) trading in securities generally, or in the
securities of the Company, on the New York Stock
Exchange shall have been suspended or materially
limited (excluding a limitation on trading referred to
in paragraph 2080A (Limitations on Trading During Significant
Market Declines) of the Rules of Board--Auction Market-
-Bids and Offers of the New York Stock Exchange Guide)
or minimum prices shall have been established on such
exchange; or
(iv) a banking moratorium shall have been declared
by Federal, California or New York authorities.
8. (a) The Company and the Trust, jointly and severally
will indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or
claim as such expenses are incurred; provided, however, that
neither the Company nor the Trust shall be liable in any such
case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the
Company by any Underwriter through Goldman, Sachs & Co. expressly
for use therein.
(b) Each Underwriter will indemnify and hold harmless the
Company and the Trust against any losses, claims, damages or
liabilities to which the Company and the Trust may become
subject, under the 1933 Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the
Company by such Underwriter through Goldman, Sachs & Co.
expressly for use therein; and will reimburse the Company and the
Trust for any legal or other expenses reasonably incurred by the
Company and the Trust in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party under such
subsection, notify such indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemni-
fying party shall not relieve it from any liability which it may
have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect
of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise
or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on
behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the
Company and the Trust on the one hand and the Underwriters on the
other from the offering of the Securities. If, however, the
allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to
give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Trust on the one hand
and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative
benefits received by the Company and the Trust on the one hand
and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company and the Trust
bear to the total underwriting discounts and commissions received
by the Underwriters, in each case as set forth on the cover page
of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Company and the Trust on the one hand or the Underwriters
on the other and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such
statement or omission. The Company, the Trust and the
Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were determined by
pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at
which the Securities underwritten by it and distributed to the
public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Company and the Trust under this
Section 8 shall be in addition to any liability which the Company
and the Trust may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the 1933 Act; and the
obligations of the Underwriters under this Section 8 shall be in
addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company or the
Trust and to each person, if any, who controls the Company or the
Trust within the meaning of the 1933 Act.
9. (a) If any Underwriter shall default in its obligation
to purchase the Securities which it has agreed to purchase
hereunder at the Time of Delivery, you may in your discretion
arrange for you or another party or other parties to purchase
such Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not
arrange for the purchase of such Securities, then the Company and
the Trust shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties
satisfactory to you to purchase such Securities on such terms.
In the event that, within the respective prescribed periods, you
notify the Company and the Trust that you have so arranged for
the purchase of such Securities, or the Company and the Trust
notifies you that it has so arranged for the purchase of such
Securities, you or the Company and the Trust shall have the right
to postpone the Time of Delivery for a period of not more than
seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus,
or in any other documents or arrangements, and the Company and
the Trust, jointly and severally, agree to file promptly any
amendments to the Registration Statement or the Prospectus which
in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person
had originally been a party to this Agreement with respect to
such Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or
Underwriters by you and the Company and the Trust as provided in
subsection (a) above, the aggregate number of such Securities
which remains unpurchased does not exceed one-eleventh of the
aggregate number of all the Securities to be purchased at the
Time of Delivery, then the Company and the Trust shall have the
right to require each non-defaulting Underwriter to purchase the
number of Securities which such Underwriter agreed to purchase
hereunder at the Time of Delivery and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share
(based on the number of Securities which such Underwriter agreed
to purchase hereunder) of the Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or
Underwriters by you and the Company and the Trust as provided in
subsection (a) above, the aggregate number of such Securities
which remains unpurchased exceeds one-eleventh of the aggregate
number of all the Securities to be purchased at the Time of
Delivery, or if the Company and the Trust shall not exercise the
right described in subsection (b) above to require non-defaulting
Underwriters to purchase Securities of a defaulting Underwriter
or Underwriters, then this Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter
or the Company or the Trust, except for the expenses to be borne
by the Company and the Trust and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements,
representations, warranties and other statements of the Company
or the Trust and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant
to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any
controlling person of any Underwriter, or the Company or the
Trust, or any officer or director or controlling person or
administrator of the Company or the Trust, and shall survive
delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to
Section 9 hereof, neither the Company nor the Trust shall then be
under any liability to any Underwriter except as provided in
Sections 6 and 8 hereof; but, if for any other reason (other than
as a result of the failure of any of the conditions set forth in
Section 7(l)(i), (iii) or (iv) hereof), any Securities are not
delivered by or on behalf of the Company or the Trust as provided
herein, the Company and the Trust jointly and severally will
reimburse the Underwriters through you for all out-of-pocket
expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters
in making preparations for the purchase, sale and delivery of the
Securities not so delivered, but the Company or the Trust shall
then be under no further liability to any Underwriter except as
provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of
each of the Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or
agreement on behalf of any Underwriter made or given by you
jointly or by Goldman, Sachs & Co. on behalf of you as the
Representatives.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be
delivered or sent by mail, telex or facsimile transmission to you
as the Representatives in care of Goldman, Sachs & Co., 85 Broad
Street, New York, New York 10004, Attention: Registration
Department; and if to the Company or the Trust shall be delivered
or sent by mail to the address of the Company or the Trust,
respectively set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter
pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire, or telex
constituting such Questionnaire, which address will be supplied
to the Company and the Trust by you upon request. Any such
statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely
to the benefit of, the Underwriters, the Company, the Trust and,
to the extent provided in Sections 8 and 10 hereof, the officers
and directors of the Company, the Trust and each person who
controls the Company, the Trust or any Underwriter, and their
respective heirs, executors, administrators, successors and
assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As
used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
15. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
16. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts
shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding,
please sign and return to us five counterparts hereof, and upon
the acceptance hereof by you, on behalf of each of the
Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Underwriters
and the Company and the Trust. It is understood that your
acceptance of this letter on behalf of each of the Underwriters
is pursuant to the authority set forth in a form of Agreement
among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on
your part as to the authority of the signers thereof.
Very truly yours,
Great Western Financial Corporation
By: __/s/ Bruce F. Antenberg___
Name: Bruce F. Antenberg
Title: Senior Vice President-
Finance and Treasurer
Great Western Financial Trust II
By: __/s/ Bruce F. Antenberg___
Bruce F. Antenberg, as Regular
Trustee
By: __/s/ J. Lance Erikson___
J. Lance Erikson, as Regular
Trustee
Accepted as of the date hereof:
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Lehman Brothers Inc.
Smith Barney Inc.
By: __/s/ Goldman, Sachs & Co.___
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
SCHEDULE I
Underwriters
Total Number
of Securities to
Underwriters be Purchased
Goldman, Sachs & Co. 75,000
Merrill Lynch, Pierce, Fenner & Smith 75,000
Incorporated
Lehman Brothers Inc. 75,000
Smith Barney Inc. 75,000
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Total 300,000
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