AMENDED AND RESTATED DECLARATION OF TRUST
GREAT WESTERN FINANCIAL TRUST II
Dated as of January 22, 1997
TABLE OF CONTENTS
Page
ARTICLE I
INTERPRETATION AND DEFINITIONS. . . . . . . . 3
Section 1.1 Definitions. . . . . . . . . . . . . . . . 3
ARTICLE II
TRUST INDENTURE ACT . . . . . . . . . . 11
Section 2.1 Trust Indenture Act; Application . . . . . 11
Section 2.2 Lists of Holders of Trust Securities . . . 12
Section 2.3 Reports by the Property Trustee. . . . . . 12
Section 2.4 Periodic Reports to Property Trustee . . . 12
Section 2.5 Evidence of Compliance with Conditions
Precedent. . . . . . . . . . . . . . . . . . . . . . 13
Section 2.6 Events of Default; Waiver. . . . . . . . . 13
Section 2.7 Event of Default; Notice . . . . . . . . . 15
ARTICLE III
ORGANIZATION . . . . . . . . . . . . 15
Section 3.1 Name . . . . . . . . . . . . . . . . . . . 15
Section 3.2 Office . . . . . . . . . . . . . . . . . . 16
Section 3.3 Purpose. . . . . . . . . . . . . . . . . . 16
Section 3.4 Authority. . . . . . . . . . . . . . . . . 16
Section 3.5 Title to Property of the Trust . . . . . . 16
Section 3.6 Powers and Duties of the Regular
Trustees . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.7 Prohibition of Actions by the Trust and
the
Trustees. . . . . . . . . . . . . . . . . . . . 19
Section 3.8 Powers and Duties of the Property
Trustee. . . . . . . . . . . . . . . . . . . . . . . 20
Section 3.9 Certain Duties and Responsibilities of
the Property Trustee . . . . . . . . . . . 22
Section 3.10 Certain Rights of Property Trustee . . . . 25
Section 3.11 Delaware Trustee . . . . . . . . . . . . . 27
Section 3.12 Execution of Documents . . . . . . . . . . 27
Section 3.13 Not Responsible for Recitals or Issuance
of Trust
Securities. . . . . . . . . . . . . . . . . . . 28
Section 3.14 Duration of Trust. . . . . . . . . . . . . 28
Section 3.15 Mergers. . . . . . . . . . . . . . . . . . 28
ARTICLE IV
SPONSOR . . . . . . . . . . . . . 30
Section 4.1 Sponsor's Purchase of Common Securities . . . . 30
Section 4.2 Responsibilities of the Sponsor. . . . . . 30
ARTICLE V
TRUSTEES . . . . . . . . . . . . . 30
Section 5.1 Number of Trustees . . . . . . . . . . . . 30
Section 5.2 Delaware Trustee . . . . . . . . . . . . . 31
Section 5.3 Property Trustee; Eligibility. . . . . . . 31
Section 5.4 Qualifications of Regular Trustees and
Delaware
Trustee Generally . . . . . . . . . . . . . . . 32
Section 5.5 Initial Trustees . . . . . . . . . . . . . 32
Section 5.6 Appointment, Removal and Resignation of
Trustees . . . . . . . . . . . . . . . . . . . . . . 33
Section 5.7 Vacancies Among Trustees . . . . . . . . . 34
Section 5.8 Effect of Vacancies. . . . . . . . . . . . 35
Section 5.9 Meetings . . . . . . . . . . . . . . . . . 35
Section 5.10 Delegation of Power. . . . . . . . . . . . 35
Section 5.11 Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . 36
ARTICLE VI
DISTRIBUTIONS. . . . . . . . . . . . 36
Section 6.1 Distributions. . . . . . . . . . . . . . . 36
ARTICLE VII
ISSUANCE OF TRUST SECURITIES . . . . . . . . 37
Section 7.1 General Provisions Regarding Trust
Securities . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE VIII
TERMINATION . . . . . . . . . . . . 38
Section 8.1 Termination of Trust . . . . . . . . . . . 38
ARTICLE IX
TRANSFER OF INTEREST . . . . . . . . . . 39
Section 9.1 Transfer of Trust Securities . . . . . . . 39
Section 9.2 Transfer of Certificates . . . . . . . . . 39
Section 9.3 Deemed Trust Security Holders. . . . . . . 40
Section 9.4 Book Entry Interests . . . . . . . . . . . 40
Section 9.5 Notices to Depositary. . . . . . . . . . . 41
Section 9.6 Appointment of Successor Depositary. . . . 41
Section 9.7 Definitive Capital Security
Certificates . . . . . . . . . . . . . . . . . . . . 42
Section 9.8 Mutilated, Destroyed, Lost or Stolen
Certificates . . . . . . . . . . . . . . . . . . . . 42
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS
OF TRUST SECURITIES, TRUSTEES OR OTHERS . . . . . 43
Section 10.1 Liability. . . . . . . . . . . . . . . . . 43
Section 10.2 Exculpation. . . . . . . . . . . . . . . . 43
Section 10.3 Fiduciary Duty . . . . . . . . . . . . . . 44
Section 10.4 Indemnification. . . . . . . . . . . . . . 45
Section 10.5 Outside Businesses . . . . . . . . . . . . 46
ARTICLE XI
ACCOUNTING. . . . . . . . . . . . . 46
Section 11.1 Fiscal Year. . . . . . . . . . . . . . . . 46
Section 11.2 Certain Accounting Matters . . . . . . . . 47
Section 11.3 Banking. . . . . . . . . . . . . . . . . . 47
Section 11.4 Withholding. . . . . . . . . . . . . . . . 48
ARTICLE XII
AMENDMENTS AND MEETINGS . . . . . . . . . 48
Section 12.1 Amendments . . . . . . . . . . . . . . . . 48
Section 12.2 Meetings of the Holders of Trust
Securities; Action by Written Consent. . . 50
ARTICLE XIII
REPRESENTATIONS AND WARRANTIES OF PROPERTY TRUSTEE. . . 52
Section 13.1 Representations and Warranties of
Property Trustee . . . . . . . . . . . . . 52
Section 13.2 Representations and Warranties of
Delaware Trustee . . . . . . . . . . . . . 53
ARTICLE XIV
MISCELLANEOUS. . . . . . . . . . . . 54
Section 14.1 Notices. . . . . . . . . . . . . . . . . . 54
Section 14.2 Governing Law. . . . . . . . . . . . . . . 55
Section 14.3 Intention of the Parties . . . . . . . . . 55
Section 14.4 Headings . . . . . . . . . . . . . . . . . 55
Section 14.5 Successors and Assigns . . . . . . . . . . 55
Section 14.6 Partial Enforceability . . . . . . . . . . 55
Section 14.7 Counterparts . . . . . . . . . . . . . . . 55
EXHIBIT A. . . . . . . . . . . . . . . . . . . . . . . . . . .A-1
ANNEX I. . . . . . . . . . . . . . . . . . . . . . . . . . . .I-1
ANNEX II . . . . . . . . . . . . . . . . . . . . . . . . . . II-1
AMENDED AND RESTATED DECLARATION OF TRUST
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration")
dated and effective as of January 22, 1997, by the undersigned
trustees (together with all other Persons from time to time duly
appointed and serving as trustees in accordance with the
provisions of this Declaration, the "Trustees"), Great Western
Financial Corporation, a Delaware corporation, as trust sponsor
(the "Sponsor"), and by the Holders, from time to time, of
undivided beneficial interests in the Trust to be issued pursuant
to this Declaration;
WHEREAS, the Trustees and the Sponsor established Great
Western Financial Trust II (the "Trust"), a trust under the
Delaware Business Trust Act pursuant to a Declaration of Trust
dated as of January 6, 1997, (the "Original Declaration") and
a Certificate of Trust filed with the Secretary of State of
Delaware on January 10, 1997, for the sole purpose of issuing and
selling certain securities representing undivided beneficial
interests in the assets of the Trust and investing the proceeds
thereof in certain Notes of the Note Issuer (as hereinafter
defined);
WHEREAS, as of the date hereof, no interests in the Trust
have been issued;
WHEREAS, all of the Trustees and the Sponsor, by this
Declaration, amend and restate each and every term and provision
of the Original Declaration; and
NOW, THEREFORE, it being the intention of the parties hereto
to continue the Trust as a business trust under the Business
Trust Act and that this Declaration, including Exhibit A hereto
which is expressly made a part hereof, constitute the governing
instrument of such business trust, the Trustees declare that all
assets contributed to the Trust will be held in trust for the
benefit of the Holders, from time to time, of the securities
representing undivided beneficial interests in the assets of
the Trust issued hereunder, subject to the provisions of this
Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
Section 1.1 Definitions.
(a) Capitalized terms used in this Declaration but not
defined in the preamble above have the respective
meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Declaration has the
same meaning throughout;
(c) all references to "the Declaration" or "this
Declaration" are to this Declaration as modified,
supplemented or amended from time to time;
(d) all references in this Declaration to Articles and
Sections and Exhibits are to Articles and Sections of
and Exhibits to this Declaration unless otherwise
specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Declaration unless otherwise
defined in this Declaration or unless the context
otherwise requires; and
(f) a reference to the singular includes the plural and
vice versa.
"Additional Interest" has the meaning given such term in the
Third Supplemental Indenture dated as of January 22, 1997 to the
Indenture.
"Adjusted Treasury Rate" means, with respect to any
redemption date, the Treasury Rate plus (a) 1.10% if such
redemption date occurs on or before February 1, 1998, or (b) .50%
if such redemption date occurs after February 1, 1998.
"Affiliate" has the same meaning as given to that term in
Rule 405 of the Securities Act or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Book Entry Interest" means a beneficial interest in a
Global Certificate, ownership and transfers of which shall be
maintained and made through book entries by a Depositary as
described in Section 9.4.
"Business Day" means any day other than a day on which
banking institutions in New York, New York or Los Angeles,
California are authorized or required by any applicable law to
close.
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be
amended from time to time.
"Calculation Date" means the third Business Day preceding
any redemption date.
"Capital Securities Guarantee" means the guarantee agreement
to be dated as of January 22, 1997, of the Sponsor in respect of
the Capital Securities.
"Capital Security" has the meaning specified in Section 7.1.
"Capital Security Beneficial Owner" means, with respect to a
Book Entry Interest, a Person who is the beneficial owner of such
Book Entry Interest, as reflected on the books of the Depositary,
or on the books of a Person maintaining an account with such
Depositary (directly as a Depositary Participant or as an
indirect participant, in each case in accordance with the rules
of such Depositary).
"Capital Security Certificate" means a certificate
representing a Capital Security substantially in the form of
Annex I to Exhibit A.
"Certificate" means a Common Security Certificate or a
Capital Security Certificate.
"Closing Date" means January 27, 1997.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act
or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body performing
such duties at such time.
"Common Security" has the meaning specified in Section 7.1.
"Common Securities Guarantee" means the guarantee agreement
dated as of January 22, 1997, of the Sponsor in respect of the
Common Securities.
"Common Security Certificate" means a definitive certificate
in fully registered form representing a Common Security
substantially in the form of Annex II to Exhibit A.
"Comparable Treasury Issue" means, with respect to any
redemption date, the United States Treasury security selected by
the Quotation Agent as having a maturity comparable to the
Remaining Life that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of comparable maturity to
the Remaining Life. If no United States Treasury security has a
maturity which is within a period from three months before to
three months after February 1, 2007, the two most closely
corresponding United States Treasury securities shall be used as
the Comparable Treasury Issue, and the Treasury Rate shall be
interpolated or extrapolated on a straight-line basis, rounding
to the nearest month using such securities.
"Comparable Treasury Price" means, with respect to any
redemption date (a) the average of five Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest
and lowest such Reference Treasury Dealer Quotations, or (b) if
the Note Trustee obtains fewer than five such Reference Treasury
Dealer Quotations, the average of all such quotations.
"Compound Interest" has the meaning given such term in the
Third Supplemental Indenture dated as of January 22, 1997 to the
Indenture.
"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent
of (i) the Trust or (ii) the Trust's Affiliates; and (b) any
Holder of Trust Securities.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Definitive Capital Security Certificates" has the meaning
set forth in Section 9.4.
"Depositary" means an organization registered as a clearing
agency pursuant to Section 17A of the Exchange Act that is acting
as depositary for the Capital Securities and in whose name or in
the name of a nominee of that organization shall be registered a
Global Certificate and which shall undertake to effect book entry
transfers and pledges of the Capital Securities.
"Depositary Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time
the Depositary effects book entry transfers and pledges of
securities deposited with the Depositary.
"Direction" by a Person means a written direction signed:
(a) if the Person is a natural person, by that Person; or
(b) in any other case, in the name of such Person by one or
more Authorized Officers of that Person.
"Distribution" means a distribution payable to Holders of
Trust Securities in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial
Depositary.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Event of Default" in respect of the Trust Securities means
an Event of Default (as defined in the Indenture) has occurred
and is continuing in respect of the Notes.
"Guarantees" means, collectively, the Common Securities
Guarantee and the Capital Securities Guarantee.
"Holder" means a Person in whose name a Certificate
representing a Trust Security is registered on the books and
records of the Trust, such Person being a beneficial owner within
the meaning of the Business Trust Act, provided, 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 Sponsor, as
guarantor of the Trust Securities, or any Affiliate of the
Sponsor.
"Indemnified Person" means (a) any Trustee; (b) any
Affiliate of any Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or
agents of any Trustee; or (d) any employee or agent of the Trust
or its Affiliates.
"Indenture" means the Indenture dated as of September 12,
1990 between the Note Issuer and the Note Trustee as amended and
supplemented by a First Supplemental Indenture, dated as of
April 30, 1993, the Second Supplemental Indenture, dated as of
December 6, 1995, and the Third Supplemental Indenture, dated as
of January 22, 1997.
"Investment Company" means an investment company as defined
in the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"Investment Company Event" has the meaning set forth in
Exhibit A.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Majority in liquidation amount of the Trust Securities"
means, except as provided in the terms of the Capital Securities
and the Trust Indenture Act, Holder(s) of outstanding Trust
Securities voting together as a single class or, as the context
may require, Holders of outstanding Capital Securities or
Holder(s) of outstanding Common Securities voting separately as a
class, who are the record owners of more than 50% of the
aggregate liquidation amount (including the stated amount that
would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Trust
Securities of the relevant class.
"Make-Whole Amount" means, with respect to any Note, an
amount equal to the greater of (a) 100% of the principal amount
of the Note or (b) as determined by the Quotation Agent, the sum
of the present values of the principal amount and premium payable
as part of the Redemption Price with respect to an optional
redemption of such Note on February 1, 2007, together with the
present values of the scheduled payments of interest for the
Remaining Life, in each case discounted to the redemption date on
a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Adjusted Treasury Rate.
"Ministerial Action" has the meaning set forth in Exhibit A.
"Note Issuer" means the Sponsor in its capacity as issuer
of the Notes.
"Note Trustee" means Harris Trust and Savings Bank, as
trustee under the Indenture until a successor is appointed
thereunder, and thereafter means such successor trustee.
"Notes" means the series of debt securities of the Note
Issuer under the Indenture to be held by the Property Trustee for
the benefit of the Holders.
"Officers' Certificate" means, with respect to any Person,
a certificate signed by two Authorized Officers of such Person.
Any Officers' Certificate delivered with respect to compliance
with a condition or covenant provided for in this Declaration
shall include:
(a) a statement that each officer signing the Certificate
has read the covenant or condition and the definition
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer
in rendering the Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's
opinion, is necessary to enable such officer to express
an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied
with.
"Paying Agent" has the meaning specified in Section 3.8(h).
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association,
joint stock company, limited liability company, trust,
unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
"Primary Treasury Dealer" means a primary U.S. Government
securities dealer in The City of New York.
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.3.
"Property Trustee Account" has the meaning set forth in
Section 3.8(c).
"Quorum" means a majority of the Regular Trustees or, if
there are only two Regular Trustees, both of them, and if there
is only one Regular Trustee, such Regular Trustee.
"Quotation Agent" means Goldman, Sachs & Co. and its
successors; provided, however, that if the foregoing shall cease
to be a Primary Treasury Dealer, the Sponsor shall substitute
therefor another Primary Treasury Dealer.
"Redemption Price" means, in the case of any redemption
permitted hereunder on or after February 1, 2007, a price equal
to the following prices, expressed in percentages of the
liquidation amount, plus any accrued and unpaid interest,
including any Compound Interest and Additional Interest, to the
date fixed for redemption. If redeemed during the 12-month
period beginning February 1:
Year Redemption Price
---- ----------------
2007 104.1030%
2008 103.6927%
2009 103.2824%
2010 102.8721%
2011 102.4618%
2012 102.0515%
2013 101.6412%
2014 101.2309%
2015 100.8206%
2016 100.4103%
and at 100% on or after February 1, 2017. Redemption Price means
in the case of a redemption permitted hereunder prior to February
1, 2007, a price equal to the Make-Whole Amount, plus any accrued
interest, including any Compound Interest and Additional
Interest, to the date fixed for redemption.
"Reference Treasurer Dealer" means (a) the Quotation Agent
and (b) any other Primary Treasury Dealer selected by the Note
Trustee after consultation with the Sponsor.
"Reference Treasury Dealer Quotations" means, with respect
to each Reference Treasury Dealer and any redemption date, the
average, as determined by the Note Trustee, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case
as a percentage of its principal amount) quoted in writing to the
Note Trustee by such Reference Treasury Dealer at 5:00 p.m., New
York City time, on the Calculation Date.
"Regular Trustee" has the meaning set forth in Section 5.1.
"Related Party" means, with respect to the Sponsor, any
direct or indirect wholly owned subsidiary of the Sponsor or any
other Person that owns, directly or indirectly, 100% of the
outstanding voting securities of the Sponsor.
"Remaining Life" means the period from the redemption date
to February 1, 2007.
"Responsible Officer" means, with respect to the Property
Trustee, any vice-president, any assistant vice-president, the
secretary, any assistant secretary, the treasurer, any assistant
treasurer, any trust officer or assistant trust officer or any
other officer in the Corporate Trust Services Division of the
Property Trustee customarily performing functions similar to
those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular
subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company
Act.
"Securities Act" means the Securities Act of 1933, as
amended from time to time, or any successor legislation.
"66-2/3% in liquidation amount of the Trust Securities"
means, except as provided in the terms of the Capital Securities
and by the Trust Indenture Act, Holders of outstanding Trust
Securities voting together as a single class or, as the context
may require, Holders of outstanding Capital Securities or
Holder(s) of outstanding Common Securities voting separately as a
class, representing at least 66-2/3% of the aggregate liquidation
amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid
Distributions, to the date upon which the voting percentages are
determined) of all outstanding Trust Securities of the relevant
class.
"Special Event" has the meaning set forth in Exhibit A.
"Sponsor" means Great Western Financial Corporation, a
Delaware corporation, or any successor entity in a merger,
consolidation or amalgamation, in its capacity as sponsor of the
Trust.
"Super-Majority" has the meaning set forth in Exhibit A.
"Tax Event" has the meaning set forth in Exhibit A.
"10% in liquidation amount of the Trust Securities" means,
except as provided in the terms of the Trust Securities or by the
Trust Indenture Act, Holders of outstanding Trust Securities
voting together as a single class or, as the context may require,
Holders of outstanding Capital Securities or Holder(s) of
outstanding Common Securities, voting separately as a class,
representing at least 10% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions
to the date upon which the voting percentages are determined) of
all outstanding Trust Securities of the relevant class.
"Treasury Rate" means, with respect to any redemption date,
(a) the yield, under the heading which represents the average for
the week immediately prior to the Calculation Date, appearing in
the most recently published statistical release designated
"H.15(519)" or any successor publication which is published
weekly by the Board of Governors of the Federal Reserve System
and which establishes yields on actively traded United States
Treasury securities adjusted to constant maturity under the
caption "Treasury Constant Maturities," for the maturity
corresponding to the Remaining Life (if no maturity is within
three months before or after the Remaining Life, yields for the
two published maturities most closely corresponding to the
Remaining Life shall be determined and the Treasury Rate shall be
interpolated or extrapolated from such yields on a straight-line
basis, rounding to the nearest month) or (b) if such release (or
any successor release) is not published during the week preceding
the Calculation Date or does not contain such yields, the rate
per annum equal to the semi-annual equivalent yield to maturity
of the Comparable Treasury Issue, calculated using a price for
the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price on the
Calculation Date for such redemption date.
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under
the Code by the United States Treasury, as such regulations may
be amended from time to time (including corresponding provisions
of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed
this Declaration as a trustee, so long as such person shall
continue in office in accordance with the terms hereof, and all
other Persons who may from time to time be duly appointed,
qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the
Trustees shall refer to such Person or Persons solely in their
capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of
1939 as in effect at the date as of which this instrument
was executed, provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Securities" means collectively the Common Securities
and the Capital Securities.
"Underwriting Agreement" means the Underwriting Agreement
for the offering and sale of Capital Securities.
ARTICLE II
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the
Trust Indenture Act that are required to be part of
this Declaration and shall, to the extent applicable,
be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is
a Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of
the Trust Indenture Act, such duties imposed by the
Trust Indenture Act shall control.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Trust
Securities as equity securities representing undivided
beneficial interests in the assets of the Trust.
Section 2.2 Lists of Holders of Trust Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf
of the Trust shall provide the Property Trustee
(i) within 14 days after each record date for payment
of Distributions, a list, in such form as the Property
Trustee may reasonably require, of the names and
addresses of the Holders of the Trust Securities ("List
of Holders") as of such record date, provided that none
of the Sponsor or the Regular Trustees on behalf of the
Trust shall be obligated to provide such list of
Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the
Property Trustee by the Sponsor and the Regular
Trustees on behalf of the Trust, and (ii) at any other
time, within 30 days of receipt by the Trust of a
written request for a List of Holders as of a date no
more than 14 days before such List of Holders is given
to the Property Trustee. The Property Trustee shall
preserve, in as current a form as is reasonably
practicable, all information contained in Lists of
Holders given to it or which it receives in the
capacity as Paying Agent (if acting in such capacity)
provided that the Property Trustee may destroy any List
of Holders previously given to it on receipt of a new
List of Holders.
(b) The Property Trustee shall comply with the obligations
of an indenture trustee under Sections 311(a), 311(b)
and 312(b) of the Trust Indenture Act.
Section 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year, the Property
Trustee shall provide to the Holders of the Capital Securities
such reports as are required by Section 313 of the Trust
Indenture Act, if any, in the form and in the manner provided by
Section 313 of the Trust Indenture Act. The Property Trustee
shall also comply with the requirements of Section 313(d) of the
Trust Indenture Act.
Section 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf of
the Trust shall provide to the Property Trustee such documents,
reports and information as required by Section 314 (if any) and
the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act.
Section 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of
the Trust shall provide to the Property Trustee such evidence of
compliance with any conditions precedent, if any, provided for in
this Declaration that relate to any of the matters set forth in
Section 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
Section 2.6 Events of Default; Waiver.
(a) The Holders of a Majority in liquidation amount of
Capital Securities may, by vote, on behalf of the
Holders of all of the Capital Securities, waive any
past Event of Default in respect of the Capital
Securities and its consequences, provided that, if
the underlying Event of Default under the Indenture:
(i) is not waivable under the Indenture, the Event of
Default under the Declaration shall also not be
waivable; or
(ii) requires the consent or vote of all or a Super-
Majority of the holders of the Notes to be waived
under the Indenture, the Event of Default under
the Declaration may only be waived by the vote of
all of the Holders of the Capital Securities or
such proportion thereof in liquidation amount as
represents the relevant Super-Majority of the
aggregate principal amount of the Notes
outstanding, as applicable.
Upon such waiver, any such default shall cease to
exist, and any Event of Default with respect to the
Capital Securities arising therefrom shall be deemed to
have been cured, for every purpose of this Declaration,
but no such waiver shall extend to any subsequent or
other default or an Event of Default with respect to
the Capital Securities or impair any right consequent
thereon. Any waiver by the Holders of the Capital
Securities of an Event of Default with respect to the
Capital Securities shall also be deemed to constitute a
waiver by the Holder(s) of the Common Securities of any
such Event of Default with respect to the Common
Securities for all purposes of this Declaration without
any further act, vote, or consent of the Holder(s) of
the Common Securities.
(b) The Holder(s) of a Majority in liquidation amount of
the Common Securities may, by vote, on behalf of the
Holder(s) of all of the Common Securities, waive any
past Event of Default with respect to the Common
Securities and its consequences, provided that, if the
underlying Event of Default under the Indenture:
(i) which is not waivable under the Indenture, except
where the Holder(s) of the Common Securities are
deemed to have waived such Event of Default under
the Declaration as provided below in this Section
2.6(b), the Event of Default under the Declaration
shall also not be waivable; or
(ii) which requires the consent or vote of a Super-
Majority to be waived, except where the Holder(s)
of the Common Securities are deemed to have waived
such Event of Default under the Declaration as
provided below in this Section 2.6(b), the Event
of Default under the Declaration may only be
waived by the vote of the Holders of at least the
proportion in liquidation amount of the Capital
Securities as represents the relevant Super-
Majority of the aggregate principal amount of
the Notes outstanding;
provided that, each Holder of Common Securities will be
deemed to have waived any such Event of Default and all
Events of Default with respect to the Common Securities
and its consequences until all Events of Default with
respect to the Capital Securities have been cured,
waived or otherwise eliminated, and until such Events
of Default have been so cured, waived or otherwise
eliminated, the Property Trustee will be deemed to be
acting solely on behalf of the Holders of the Capital
Securities and only the Holders of the Capital
Securities will have the right to direct the Property
Trustee in accordance with the terms of the Trust
Securities. Subject to the foregoing provisions of
this Section 2.6(b), upon such waiver, any such default
shall cease to exist and any Event of Default with
respect to the Common Securities arising therefrom
shall be deemed to have been cured for every purpose of
this Declaration but no such waiver shall extend to any
subsequent or other default or Event of Default with
respect to the Common Securities or impair any right
consequent thereon.
(c) A waiver of an Event of Default under the Indenture by
the Property Trustee at the direction of the Holders of
the Capital Securities, constitutes a waiver of the
corresponding Event of Default under this Declaration.
Section 2.7 Event of Default; Notice.
(a) The Property Trustee shall, within 90 days after the
occurrence of a default known to the Property Trustee,
transmit by mail, first class postage prepaid, to the
Holders of the Trust Securities, notices of such
defaults with respect to the Trust Securities,
identifying such default as a Declaration Event of
Default, unless such defaults have been cured before
the giving of such notice (the term "default" for the
purposes of this Section 2.7(a) being hereby defined to
be an Event of Default as defined in the Indenture, not
including any periods of grace provided for therein and
irrespective of the giving of any notice provided
therein); provided that, except for a default in the
payment of principal of (or premium, if any) or
interest on any of the Notes or in the payment of any
sinking fund installment established for the Notes, the
Property Trustee shall be protected in withholding such
notice if and so long as the board of directors, the
executive committee, or a trust committee of directors
and/or Responsible Officers of the Property Trustee in
good faith determines that the withholding of such
notice is in the interests of the Holders of the Trust
Securities.
(b) The Property Trustee shall not be deemed to have
knowledge of any default except:
(i) a default under Sections 501(1) and 501(2) of the
Indenture; or
(ii) any default as to which the Property Trustee shall
have received written notice or a Responsible
Officer charged with the administration of the
Declaration shall have obtained written notice.
ARTICLE III
ORGANIZATION
Section 3.1 Name.
The Trust is named "Great Western Financial Trust II", as
such name may be modified from time to time by the Regular
Trustees following written notice to the Holders of Trust
Securities. The Trust's activities may be conducted under the
name of the Trust or any other name deemed advisable by the
Regular Trustees.
Section 3.2 Office.
The address of the principal office of the Trust is c/o
Great Western Financial Corporation, 9200 Oakdale Avenue,
Chatsworth, California 91311. On ten Business Days written
notice to the Holders of Trust Securities, the Regular Trustees
may designate another principal office.
Section 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Trust Securities and use the proceeds from such
sale to acquire the Notes and (b) except as otherwise limited
herein, to engage in only those other activities necessary, or
incident thereto. The Trust shall not borrow money, issue debt
or reinvest proceeds derived from investments, pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified for
United States federal income tax purposes as a grantor trust.
Section 3.4 Authority.
Subject to the limitations provided in this Declaration
and to the specific duties of the Property Trustee, the Regular
Trustees shall have exclusive and complete authority to carry
out the purposes of the Trust. An action taken by the Regular
Trustees in accordance with their powers shall constitute the
act of and serve to bind the Trust and an action taken by the
Property Trustee in accordance with its powers shall constitute
the act of and serve to bind the Trust. In dealing with the
Trustees acting on behalf of the Trust, no Person shall be
required to inquire into the authority of the Trustees to bind
the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set
forth in this Declaration.
Section 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Notes
and the Property Trustee Account or as otherwise provided in this
Declaration, legal title to all assets of the Trust shall be
vested in the Trust. The Holders shall not have legal title to
any part of the assets of the Trust, but shall have an undivided
beneficial interest in the assets of the Trust.
Section 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty
and authority to cause the Trust to engage in the following
activities:
(a) to issue and sell the Capital Securities and the Common
Securities in accordance with this Declaration;
provided, however, that the Trust may issue no more
than one series of Capital Securities and no more than
one series of Common Securities, and, provided further,
that there shall be no interests in the Trust other
than the Trust Securities, and the issuance of Trust
Securities shall be limited to a one-time, simultaneous
issuance of both Capital Securities and Common
Securities on the Closing Date;
(b) in connection with the issue and sale of the Capital
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission the
Registration Statement on Form S-3 prepared by the
Sponsor, including any amendments thereto,
pertaining to the Capital Securities;
(ii) execute and file any documents prepared by the
Sponsor, or take any acts as determined by the
Sponsor to be necessary in order to qualify or
register all or part of the Capital Securities in
any State in which the Sponsor has determined to
qualify or register such Capital Securities for
sale; and
(iii) execute and enter into the Underwriting Agreement
providing for the sale of the Capital Securities;
(c) to acquire the Notes with the proceeds of the sale of
the Capital Securities and the Common Securities;
provided, however, that the Regular Trustee shall cause
legal title to the Notes to be held of record in the
name of the Property Trustee for the benefit of the
Holders of the Capital Securities and the Holder(s) of
Common Securities;
(d) to give the Sponsor and the Property Trustee prompt
written notice of the occurrence of a Special Event;
provided that the Regular Trustees shall consult with
the Sponsor and the Property Trustee before taking or
refraining from taking any Ministerial Action in
relation to a Special Event;
(e) to establish a record date with respect to all actions
to be taken hereunder that require a record date be
established, including and with respect to, for the
purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and
exchanges, and to issue relevant notices to the Holders
of Capital; Securities and Holder(s) of Common
Securities as to such actions and applicable record
dates;
(f) to take all actions and perform such duties as may be
required of the Regular Trustees pursuant to the terms
of the Trust Securities;
(g) to bring or defend, pay, collect, compromise,
arbitrate, resort to legal action, or otherwise adjust
claims or demands of or against the Trust ("Legal
Action"), unless pursuant to Section 3.8(e), the
Property Trustee has the power to bring such Legal
Action;
(h) to employ or otherwise engage employees and agents
(who may be designated as officers with titles) and
managers, contractors, advisors, and consultants and
pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's
obligations under the Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4)
of the Trust Indenture Act to the Property Trustee,
which certificate may be executed by a Regular Trustee;
(k) to incur expenses that are necessary or incidental to
carry out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as,
registrar and transfer agent for the Trust Securities;
(m) to give prompt written notice to the Holders of the
Trust Securities of any notice received from the Note
Issuer of its election to defer payments of interest on
the Notes by extending the interest payment period
under the Indenture;
(n) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf
of the Trust in all matters necessary or incidental to
the foregoing;
(o) to take all action that may be necessary or appropriate
for the preservation and the continuation of the
Trust's valid existence, rights, franchises and
privileges as a statutory business trust under the laws
of the State of Delaware and of each other jurisdiction
in which such existence is necessary to protect the
limited liability of the Holders of the Trust
Securities or to enable the Trust to effect the
purposes for which the Trust was created;
(p) to take any action, not inconsistent with this
Declaration or with applicable law, that the Regular
Trustees determine in their discretion to be necessary
or desirable in carrying out the activities of the
Trust as set out in this Section 3.6, including, but
not limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under
the Investment Company Act;
(ii) causing the Trust to be classified for United
States federal income tax purposes as a grantor
trust; and
(iii)cooperating with the Note Issuer to ensure that
the Notes will be treated as indebtedness of the
Note Issuer for United States federal income tax
purposes,
provided that such action does not adversely affect the
interests of Holders of the Capital Securities; and
(q) to take all action necessary to cause all applicable
tax returns and tax information reports that are
required to be filed with respect to the Trust to be
duly prepared and filed by the Regular Trustees, on
behalf of the Trust.
The Regular Trustees must exercise the powers set forth in
this Section 3.6 in a manner that is consistent with the purposes
and functions of the Trust set out in Section 3.3, and the
Regular Trustees shall not take, or cause or permit the Trust to
take, any action that is inconsistent with the purposes and
functions of the Trust set forth in Section 3.3. Any expenses
incurred by the Regular Trustees pursuant to this Section 3.6
shall be reimbursed by the Note Issuer.
Subject to this Section 3.6, the Regular Trustees shall have
none of the powers or the authority of the Property Trustee set
forth in Section 3.8.
Section 3.7 Prohibition of Actions by the Trust and the
Trustees.
(a) The Trust shall not, and the Trustees (including the
Property Trustee) shall cause the Trust not to, engage
in any activity other than as required or authorized by
this Declaration. In particular, the Trust shall not
and the Trustees (including the Property Trustee) shall
cause the Trust not to:
(i) invest any proceeds received by the Trust from
holding the Notes, but shall distribute all such
proceeds to Holders of Trust Securities pursuant
to the terms of this Declaration and of the Trust
Securities;
(ii) acquire any assets other than as expressly
provided herein;
(iii)possess Trust property for other than a Trust
purpose;
(iv) make any loans or incur any indebtedness other
than loans represented by the Notes;
(v) possess any power or otherwise act in such a way
as to vary the Trust assets or the terms of the
Trust Securities in any way whatsoever;
(vi) issue any securities or other evidences of
beneficial ownership of, or beneficial interest
in, the Trust other than the Trust Securities; or
(vii)other than as provided in this Declaration
(including Exhibit A hereto), (A) direct the time,
method and place of exercising any trust or power
conferred upon the Note Trustee with respect to
the Notes, (B) waive any past default that is
waivable under Section 513 of the Indenture,
(C) exercise any right to rescind or annul any
declaration that the principal of all the Notes
shall be due and payable or (D) consent to any
amendment, modification or termination of the
Indenture or the Notes where such consent shall be
required unless the Trust shall have received an
opinion of independent counsel experienced in such
matters to the effect that such action will not
cause more than an insubstantial risk that for
United States federal income tax purposes the
Trust will not be classified as a grantor trust.
Section 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Notes shall be owned by and held
of record in the name of the Property Trustee in trust
for the benefit of the Trust and the Holders of the
Trust Securities. The right, title and interest of the
Property Trustee to the Notes shall vest automatically
in each Person who may hereafter be appointed as
Property Trustee in accordance with Section 5.6. Such
vesting and cessation of title shall be effective
whether or not conveyancing documents with regard to
the Notes have been executed and delivered.
(b) The Property Trustee shall not transfer its right,
title and interest in the Notes to the Regular Trustees
or to the Delaware Trustee (if the Property Trustee
does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest
bearing trust account (the "Property Trustee
Account") in the name of and under the exclusive
control of the Property Trustee on behalf of the
Holders of the Trust Securities and, upon the
receipt of payments of funds made in respect of
the Notes held by the Property Trustee, deposit
such funds into the Property Trustee Account and
make payments to the Holders of the Capital
Securities and Holder(s) of the Common Securities
from the Property Trustee Account in accordance
with Section 6.1. Funds in the Property Trustee
Account shall be held uninvested until disbursed
in accordance with this Declaration. The Property
Trustee Account shall be an account that is
maintained with a banking institution the rating
on whose long term unsecured indebtedness is at
least equal to the then outstanding rating
assigned to the Capital Securities by a
"nationally recognized statistical rating
organization", as that term is defined for
purposes of Rule 436(g)(2) under the Securities
Act;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption
of the Capital Securities and the Common
Securities to the extent the Notes are redeemed
or mature; and
(iii) upon written notice of distribution issued by the
Regular Trustees in accordance with the terms of
the Trust Securities, engage in such ministerial
activities as shall be necessary or appropriate to
effect the distribution of the Notes to Holders of
Trust Securities in accordance with such Holders'
interests therein upon the occurrence of certain
Special Events.
(d) The Property Trustee shall take all actions and perform
such duties as may be specifically required of the
Property Trustee pursuant to the terms of the Trust
Securities.
(e) The Property Trustee shall take any Legal Action which
arises out of or in connection with an Event of Default
or the Property Trustee's duties and obligations under
this Declaration or the Trust Indenture Act.
(f) The Property Trustee shall continue to serve as a
Trustee until either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the
Holders of Trust Securities pursuant to the terms
of the Trust Securities; or
(ii) a Successor Property Trustee has been appointed
and has accepted that appointment in accordance
with Section 5.6.
(g) The Property Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a
holder of Notes under the Indenture and, if an Event of
Default occurs and is continuing, the Property Trustee
shall, for the benefit of Holders of the Trust
Securities, enforce its rights as holder of the Notes
subject to the rights of the Holders pursuant to the
terms of such Trust Securities.
(h) The Property Trustee may authorize one or more Persons
(each, a "Paying Agent") to pay Distributions,
redemption payments or liquidation payments on behalf
of the Trust with respect to all Trust Securities and
any such Paying Agent shall comply with Section 317(b)
of the Trust Indenture Act. Any Paying Agent may be
removed by the Property Trustee at any time and a
successor Paying Agent or additional Paying Agents may
be appointed at any time by the Property Trustee.
(i) Subject to this Section 3.8, the Property Trustee shall
have none of the duties, liabilities, powers or the
authority of the Regular Trustees set forth in Section
3.6.
The Property Trustee must exercise the powers set forth in
this Section 3.8 in a manner that is consistent with the purposes
and functions of the Trust set out in Section 3.3, and the
Property Trustee shall not take any action that is inconsistent
with the purposes and functions of the Trust set out in Sections
3.3 and 3.7.
Section 3.9 Certain Duties and Responsibilities of the
Property Trustee.
(a) The Property Trustee, before the occurrence of any
Event of Default and after the curing of all Events of
Default that may have occurred, shall undertake to
perform only such duties as are specifically set forth
in this Declaration and no implied covenants shall be
read into this Declaration against the Property
Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section
2.6), the Property Trustee shall exercise such of the
rights and powers vested in it by this Declaration, and
use the same degree of care and skill in their
exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his or her
own affairs.
(b) No provision of this Declaration shall be construed to
relieve the Property Trustee from liability for its own
negligent action, its own negligent failure to act, or
its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and
after the curing or waiving of all such Events of
Default that may have occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the
express provisions of this Declaration and
the Property Trustee shall not be liable
except for the performance of such duties and
obligations as are specifically set forth in
this Declaration, and no implied covenants
or obligations shall be read into this
Declaration against the Property Trustee; and
(B) in the absence of bad faith on the part of
the Property Trustee, the Property Trustee
may conclusively rely, as to the truth of
the statements and the correctness of the
opinions expressed therein, upon any
certificates or opinions furnished to the
Property Trustee and conforming to the
requirements of this Declaration; but in the
case of any such certificates or opinions
that by any provision hereof are specifically
required to be furnished to the Property
Trustee, the Property Trustee shall be under
a duty to examine the same to determine
whether or not they conform to the
requirements of this Declaration;
(ii) the Property Trustee shall not be liable for
any error of judgment made in good faith by a
Responsible Officer of the Property Trustee,
unless it shall be proved that the Property
Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Property Trustee shall not be liable with
respect to any action taken or omitted to be
taken by it in good faith in accordance with
the direction of the Holders of not less than
a Majority in liquidation amount of the Trust
Securities at the time outstanding relating to
the time, method and place of conducting any
proceeding for any remedy available to the
Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this
Declaration;
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds
or otherwise incur personal financial liability in
the performance of any of its duties or in the
exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that
the repayment of such funds or liability is not
reasonably assured to it under the terms of this
Declaration or adequate indemnity against such
risk or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect
to the custody, safekeeping and physical
preservation of the Notes and the Property Trustee
Account shall be to deal with such property in a
similar manner as the Property Trustee deals with
similar property for its own account, subject to
the protections and limitations on liability
afforded to the Property Trustee under this
Declaration and the Trust Indenture Act;
(vi) the Property Trustee shall have no duty or
liability for or with respect to the value,
genuineness, existence or sufficiency of the Notes
or the payment of any taxes or assessments levied
thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it
may otherwise agree with the Sponsor. Money held
by the Property Trustee need not be segregated
from other funds held by it except in relation to
the Property Trustee Account maintained by the
Property Trustee pursuant to Section 3.8(c)(i) and
except to the extent otherwise required by law;
and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees
or the Sponsor with their respective duties under
this Declaration, nor shall the Property Trustee
be liable for the default or misconduct of the
Regular Trustees or the Sponsor.
Section 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may rely and shall be fully
protected in acting or refraining from acting upon
any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or
document believed by it to be genuine and to have
been signed, sent or presented by the proper party
or parties;
(ii) any direction or act of the Sponsor or the Regular
Trustees contemplated by this Declaration shall be
sufficiently evidenced by a Direction or an
Officers' Certificate;
(iii) whenever in the administration of this
Declaration, the Property Trustee shall deem it
desirable that a matter be proved or established
before taking, suffering or omitting any action
hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may,
in the absence of bad faith on its part request
and rely upon an Officers' Certificate which, upon
receipt of such request, shall be promptly
delivered by the Sponsor or the Regular Trustees;
(iv) the Property Trustee shall have no duty to see
to any recording, filing or registration of
any instrument (including any financing or
continuation statement or any filing under tax
or securities laws) (or any rerecording, refiling
or registration thereof);
(v) the Property Trustee may consult with counsel or
other experts and the advice or opinion of such
counsel and experts with respect to legal matters
or advice within the scope of such experts' area
of expertise shall be full and complete
authorization and protection in respect of any
action taken, suffered or omitted by it hereunder
in good faith and in accordance with such advice
or opinion. Except as otherwise specified herein,
such counsel may be counsel to the Sponsor or any
of its Affiliates, and may include any of its
employees. The Property Trustee shall have the
right at any time to seek instructions concerning
the administration of this Declaration from any
court of competent jurisdiction;
(vi) the Property Trustee shall be under no obligation
to exercise any of the rights or powers vested in
it by this Declaration at the request or direction
of any Holder, unless such Holder shall have
provided to the Property Trustee adequate security
and indemnity, which would satisfy a reasonable
person in the position of the Property Trustee,
against the costs, expenses (including attorneys'
fees and expenses) and liabilities that might be
incurred by it in complying with such request or
direction, including such reasonable advances as
may be requested by the Property Trustee provided,
that, nothing contained in this Section
3.10(a)(vi) shall be taken to relieve the Property
Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights
and powers vested in it by this Declaration;
(vii) the Property Trustee shall not be bound to make
any investigation into the facts or matters stated
in any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or
document, but the Property Trustee, in its
discretion, may make such further inquiry or
investigation into such facts or matters as it may
see fit;
(viii) the Property Trustee may execute any of the trusts
or powers hereunder or perform any duties
hereunder either directly or by or through agents
or attorneys and the Property Trustee shall not be
responsible for any misconduct or negligence on
the part of any agent or attorney appointed with
due care by it hereunder;
(ix) any action taken by the Property Trustee or its
agents hereunder shall bind the Trust and the
Holders of the Trust Securities, and the signature
of the Property Trustee or its agents alone shall
be sufficient and effective to perform any such
action and no third party shall be required to
inquire as to the authority of the Property
Trustee to so act or as to its compliance with any
of the terms and provisions of this Declaration,
both of which shall be conclusively evidenced by
the Property Trustee's or its agent's taking such
action;
(x) whenever in the administration of this Declaration
the Property Trustee shall deem it desirable to
receive instructions with respect to enforcing any
remedy or right or taking any other action
hereunder the Property Trustee (i) may request
instructions from the Holders of the Trust
Securities which instructions may only be given by
the Holders of the same proportion in liquidation
amount of the Trust Securities as would be
entitled to direct the Property Trustee under the
terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from
enforcing such remedy or right or taking such
other action until such instructions are received,
and (iii) shall be protected in acting in
accordance with such instructions; and
(xi) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be
under any obligation to take any action that is
discretionary under the provisions of this
Declaration.
(b) No provision of this Declaration shall be deemed to
impose any duty or obligation on the Property Trustee
to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it,
in any jurisdiction in which it shall be illegal, or in
which the Property Trustee shall be unqualified or
incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such
right, power, duty or obligation. No permissive power
or, authority available to the Property Trustee shall
be construed to be a duty.
Section 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration
other than Section 5.2, the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee
have any of the duties and responsibilities of the Regular
Trustees, the Property Trustee or the Trustees generally, except
as may be required under the Business Trust Act described in this
Declaration. Except as set forth in Section 5.2, the Delaware
Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Business Trust
Act.
Section 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act, any
Regular Trustee is authorized to execute on behalf of the Trust
any documents which the Regular Trustees have the power and
authority to execute pursuant to Section 3.6; provided that, the
registration statement referred to in Section 3.6(b)(i),
including any amendments thereto, shall be executed by a majority
of the Regular Trustees. A Regular Trustee may, by power of
attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the
purposes of signing any documents which the Regular Trustees have
power and authority to cause the Trust to execute pursuant to
Section 3.6.
Section 3.13 Not Responsible for Recitals or Issuance of Trust
Securities.
The recitals contained in this Declaration and the Trust
Securities shall be taken as the statements of the Sponsor, and
the Trustees do not assume any responsibility for their
correctness. The Trustees make no representations as to the
value or condition of the property of the Trust or any part
thereof. The Trustees make no representations as to the validity
or sufficiency of this Declaration or the Trust Securities.
Section 3.14 Duration of Trust.
The Trust, unless terminated pursuant to the provisions of
Article VIII hereof, shall have existence for 55 years from the
Closing Date.
Section 3.15 Mergers.
(a) The Trust may not consolidate, amalgamate, merge with
or into, or be replaced by, or convey, transfer or
lease its properties and assets substantially as an
entirety to any corporation or other body, except as
described in Section 3.15(b) and (c).
(b) The Trust may, with the consent of a majority of the
Regular Trustees or, if there are only two, both of the
Regular Trustees, and if there is only one, such
Regular Trustee, and without the consent of the Holders
of the Trust Securities, the Delaware Trustee or the
Property Trustee, consolidate, amalgamate, merge with
or into, or be replaced by a trust organized as such
under the laws of any State; provided that:
(i) such successor entity (the "Successor Entity")
either:
(A) expressly assumes all of the obligations of
the Trust under the Trust Securities; or
(B) substitutes for the Trust Securities other
securities having substantially the same
terms as the Trust Securities (the "Successor
Securities") so long as the Successor
Securities rank the same as the Capital
Securities rank with respect to Distributions
and payments upon liquidation, redemption and
maturity;
(ii) the Note Issuer expressly acknowledges a trustee
of the Successor Entity that possesses the same
powers and duties as the Property Trustee as the
holder of the Notes;
(iii) such merger, consolidation, amalgamation or
replacement does not cause the Capital Securities
(including any Successor Securities) to be
downgraded by any nationally recognized
statistical rating organization;
(iv) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights,
preferences and privileges of the Holders of
the Trust Securities (including any Successor
Securities) in any material respect (other than
with respect to any dilution of the Holders'
interest in the new entity);
(v) such successor entity has a purpose identical to
that of the Trust;
(vi) prior to such merger, consolidation, amalgamation
or replacement, the Sponsor has received an
opinion of independent counsel to the Trust
experienced in such matters to the effect that:
(A) such merger, consolidation, amalgamation or
replacement does not adversely affect the
rights, preferences and privileges of the
Holders of the Trust Securities (including
any Successor Securities) in any material
respect (other than with respect to any
dilution of the Holders' interest in the new
entity); and
(B) following such merger, consolidation,
amalgamation or replacement, neither the
Trust nor the Successor Entity will be
required to register as an Investment
Company; and
(vii) the Sponsor guarantees the obligations of such
Successor Entity under the Successor Securities
at least to the extent provided by the Guarantees.
(c) Notwithstanding Section 3.15(b), the Trust shall not,
except with the consent of Holders of 100% in
liquidation amount of the Trust Securities,
consolidate, amalgamate, merge with or into, or be
replaced by any other entity or permit any other entity
to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger
or replacement would cause the Trust or the Successor
Entity for United States federal income tax purposes
not to be classified as a grantor trust.
ARTICLE IV
SPONSOR
Section 4.1 Sponsor's Purchase of Common Securities.
On the Closing Date the Sponsor will purchase all the Common
Securities issued by the Trust, in an amount at least equal to 3%
of the capital of the Trust, at the same time as the Capital
Securities are sold.
Section 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Capital
Securities, the Sponsor shall have the exclusive right and
responsibility to engage in the following activities:
(a) to prepare for filing by the Trust with the Commission
a Registration Statement on Form S-3 in relation to the
Capital Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate
action to qualify or register for sale all or part of
the Capital Securities and to do any and all such acts,
other than actions which must be taken by the Trust,
and advise the Trust of actions it must take, and
prepare for execution and filing any documents to be
executed and filed by the Trust, as the Sponsor deems
necessary or advisable in order to comply with the
applicable laws of any such States;
(c) to negotiate the terms of the Underwriting Agreement
providing for the sale of the Capital Securities.
ARTICLE V
TRUSTEES
Section 5.1 Number of Trustees.
The number of Trustees shall initially be five (5), and:
(a) at any time before the issuance of any Trust
Securities, the Sponsor may, by written instrument,
increase or decrease the number of Trustees; and
(b) after the issuance of any Trust Securities the number
of Trustees may be increased or decreased by vote of
the Holder(s) of a Majority in liquidation amount of
the Common Securities voting as a class at a meeting of
the Holder(s) of the Common Securities; provided,
however, that the number of Trustees shall in no event
be less than three (3); provided further that (i) one
Trustee, in the case of a natural person, shall be a
person who is a resident of the State of Delaware or
that, if not a natural person, is an entity which has
its principal place of business in the State of
Delaware (the "Delaware Trustee"); (ii) there shall be
at least one Trustee who is an employee or officer of,
or is affiliated with, the Sponsor (a "Regular
Trustee") and all Trustees other than the Delaware
Trustee and the Property Trustee shall be Regular
Trustees; and (iii) one Trustee shall be the Property
Trustee for so long as this Declaration is required to
qualify as an indenture under the Trust Indenture Act,
and such Trustee may also serve as Delaware Trustee if
it meets the applicable requirements.
Section 5.2 Delaware Trustee.
If required by the Business Trust Act, the Delaware Trustee
shall be:
(a) a natural person who is a resident of the State of
Delaware; or
(b) if not a natural person, an entity which has its
principal place of business in the State of Delaware,
and otherwise meets the requirements of applicable law,
provided that, if the Property Trustee has its principal place of
business in the State of Delaware and otherwise meets the
requirements of applicable law, then the Property Trustee shall
also be the Delaware Trustee and Section 3.11 shall have no
application.
Section 5.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall act
as Property Trustee which shall:
(i) not be an Affiliate of the Sponsor;
(ii) be a corporation organized and doing business
under the laws of the United States of America or
any State or Territory thereof or of the District
of Columbia, or a corporation or Person permitted
by the Commission to act as an institutional
trustee under the Trust Indenture Act, authorized
under such laws to exercise corporate trust
powers, having a combined capital and surplus of
at least 50 million U.S. dollars ($50,000,000),
and subject to supervision or examination by
Federal, state, Territorial or District of
Columbia authority. If such corporation publishes
reports of condition at least annually, pursuant
to law or to the requirements of the supervising
or examining authority referred to above, then for
the purposes of this Section 5.3(a)(ii), the
combined capital and surplus of such corporation
shall be deemed to be its combined capital and
surplus as set forth in its most recent report of
condition so published.
(b) If at any time the Property Trustee shall cease to be
eligible to so act under Section 5.3(a), the Property
Trustee shall immediately resign in the manner and with
the effect set forth in Section 5.6(c).
(c) If the Property Trustee has or shall acquire any
"conflicting interest" within the meaning of Section
310(b) of the Trust Indenture Act, the Property Trustee
and the Holder of the Common Securities (as if it were
the obligor referred to in Section 310(b) of the Trust
Indenture Act) shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture
Act.
(d) The Capital Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes
of clause (i) of the first provision contained in
Section 310(b) of the Trust Indenture Act.
Section 5.4 Qualifications of Regular Trustees and Delaware
Trustee Generally.
Each Regular Trustee and the Delaware Trustee (unless the
Property Trustee also acts as Delaware Trustee) shall be either a
natural person who is at least 21 years of age or a legal entity
that shall act through one or more Authorized Officers.
Section 5.5 Initial Trustees.
The initial Regular Trustees shall be:
Carl F. Geuther
J. Lance Erikson
Bruce F. Antenberg
Great Western Financial Corporation
9200 Oakdale Avenue
Chatsworth, California 91311
The initial Delaware Trustee shall be:
First Chicago Delaware Inc.
300 King Street
Wilmington, Delaware 19801
The initial Property Trustee shall be:
The First National Bank of Chicago
One First National Plaza, Suite 0126
Chicago, Illinois 60670-0126
Section 5.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.6(b), Trustees may be appointed
or removed without cause at any time:
(i) until the issuance of any Trust Securities, by
written instrument executed by the Sponsor; and
(ii) after the issuance of any Trust Securities by vote
of the Holder(s) of a Majority in liquidation
amount of the Common Securities voting as a class
at a meeting of the Holder(s) of the Common
Securities; and
(b) (i) The Trustee that acts as Property Trustee shall
not be removed in accordance with Section 5.6(a)
until a successor Property Trustee possessing the
qualifications to act as Property Trustee under
Section 5.3 (the "Successor Property Trustee") has
been appointed and has accepted such appointment
by written instrument executed by such Successor
Property Trustee and delivered to the Regular
Trustees and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall
not be removed in accordance with this
Section 5.6(a) until a successor Trustee
possessing the qualifications to act as Delaware
Trustee under Sections 5.2 and 5.4 (a "Successor
Delaware Trustee") has been appointed and has
accepted such appointment by written instrument
executed by such Successor Delaware Trustee and
delivered to the Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until
his successor shall have been appointed or until his
death, removal or resignation. Any Trustee may resign
from office (without need for prior or subsequent
accounting) by any instrument in writing signed by the
Trustee and delivered to the Sponsor and the Trust,
which resignation shall take effect upon such delivery
or upon such later date as is specified therein;
provided, however, that:
(i) No such resignation of the Trustee that acts as
the Property Trustee shall be effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment
by instrument executed by such Successor
Property Trustee and delivered to the Trust,
the Sponsor and the resigning Property
Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds
thereof distributed to the Holders of the
Trust Securities; and
(ii) no such resignation of the Trustee that acts as
the Delaware Trustee shall be effective until a
Successor Delaware Trustee has been appointed and
has accepted such appointment by instrument
executed by such Successor Delaware Trustee and
delivered to the Trust, the Sponsor and the
resigning Delaware Trustee.
(d) The Holder(s) of the Common Securities shall use their
best efforts to promptly appoint a Successor Delaware
Trustee or Successor Property Trustee, as the case may
be, if the Delaware Trustee or the Property Trustee
delivers an instrument of resignation in accordance
with this Section 5.6.
(e) If no Successor Property Trustee or Successor Delaware
Trustee shall have been appointed and accepted
appointment as provided in this Section 5.6 within 60
days after delivery to the Sponsor and the Trust of an
instrument of resignation, the resigning Property
Trustee or Delaware Trustee, as applicable, may
petition any court of competent jurisdiction for
appointment of a Successor Property Trustee or
Successor Delaware Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem
proper, appoint a Successor Property Trustee or
Successor Delaware Trustee, as the case may be.
Section 5.7 Vacancies Among Trustees.
If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 5.1, or if
the number of Trustees is increased pursuant to Section 5.1, a
vacancy shall occur. A resolution certifying the existence of
such vacancy by a majority of the Regular Trustees shall be
conclusive evidence of the existence of such vacancy. The
vacancy shall be filled with a Trustee appointed in accordance
with Section 5.6.
Section 5.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform
the duties of a Trustee shall not operate to annul the Trust.
Whenever a vacancy in the number of Regular Trustees shall occur,
until such vacancy is filled by the appointment of a Regular
Trustee in accordance with Section 5.6, the Regular Trustees in
office, regardless of their number, shall have all the powers
granted to the Regular Trustees and shall discharge all the
duties imposed upon the Regular Trustees by this Declaration.
Section 5.9 Meetings.
If there is more than one Regular Trustee, meetings of the
Regular Trustees shall be held from time to time upon the call of
any Regular Trustee. Regular meetings of the Regular Trustees
may be held at a time and place fixed by resolution of the
Regular Trustees. Notice of any in-person meetings of the
Regular Trustees shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight
courier) not less than 48 hours before such meeting. Notice of
any telephonic meetings of the Regular Trustees or any committee
thereof shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier)
not less than 24 hours before a meeting. Notices shall contain a
brief statement of the time, place and anticipated purposes of
the meeting. The presence (whether in person or by telephone) of
a Regular Trustee at a meeting shall constitute a waiver of
notice of such meeting except where a Regular Trustee attends a
meeting for the express purpose of objecting to the transaction
of any activity on the ground that the meeting has not been
lawfully called or convened. Unless provided otherwise in this
Declaration, any action of the Regular Trustees may be taken at a
meeting by vote of a majority of the Regular Trustees present
(whether in person or by telephone) and eligible to vote with
respect to such matter, provided that a Quorum is present, or
without a meeting by the unanimous written consent of the Regular
Trustees.
Section 5.10 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney
consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for
the purpose of executing any documents contemplated in
Section 3.6, including any registration statement or
amendment thereto filled with the Commission, or making
any other governmental filing; and
(b) the Regular Trustees shall have power to delegate from
time to time to such of their number or to officers of
the Trust the doing of such things and the execution of
such instruments either in the name of the Trust or the
names of the Regular Trustees or otherwise as the
Regular Trustees may deem expedient, to the extent such
delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth
herein.
Section 5.11 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Property Trustee or the
Delaware Trustee, as the case may be, may be merged or converted
or with which either may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which
the Property Trustee or the Delaware Trustee, as the case may be,
shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Property
Trustee or the Delaware Trustee, as the case may be, shall be the
successor of the Property Trustee or the Delaware Trustee, as the
case may be, hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part
of any of the parties hereto.
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Distributions.
Holders shall receive Distributions in accordance
with the applicable terms of the relevant Holder's Trust
Securities. Distributions shall be made on the Capital
Securities and the Common Securities in accordance with the
preferences set forth in their respective terms. If and to
the extent that the Note Issuer makes a payment of interest
(including Deferred Interest (as defined in the Indenture)),
premium and/or principal on the Notes held by the Property
Trustee (the amount of any such payment being a "Payment
Amount"), the Property Trustee shall and is directed, to the
extent funds are available for that purpose, to make a
distribution (a "Distribution") of the Payment Amount on the next
succeeding Distribution Date (as defined in Exhibit A) to Holders
of record in accordance with the respective terms of the Trust
Securities.
ARTICLE VII
ISSUANCE OF TRUST SECURITIES
Section 7.1 General Provisions Regarding Trust Securities.
(a) The Regular Trustees shall on behalf of the Trust
issue one class of capital securities representing
undivided beneficial interests in the assets of the
Trust having such terms as are set forth in Exhibit A
(the "Capital Securities") and one class of common
securities representing undivided beneficial interests
in the assets of the Trust having such terms as are set
forth in Exhibit A (the "Common Securities"). The
Trust shall issue no securities or other interests in
the assets of the Trust other than the Capital
Securities and the Common Securities.
(b) The Certificates shall be signed on behalf of the Trust
by the Regular Trustees (or if there are more than two
Regular Trustees by any two of the Regular Trustees, or
if there is only one Regular Trustee, by such Regular
Trustee). Such signatures may be the manual or
facsimile signatures of the present or any future
Regular Trustee. Typographical and other minor errors
or defects in any such reproduction of any such
signature shall not affect the validity of any
Certificate. In case any Regular Trustee of the Trust
who shall have signed any of the Trust Securities shall
cease to be such Regular Trustee before the
Certificates so signed shall be delivered by the Trust,
such Certificates nevertheless may be delivered as
though the person who signed such Certificates had not
ceased to be such Regular Trustee; and any Certificate
may be signed on behalf of the Trust by such persons
who, at the actual date of execution of such Trust
Security, shall be the Regular Trustees of the Trust,
although at the date of the execution and delivery of
the Declaration any such person was not such a Regular
Trustee. Certificates shall be printed, lithographed
or engraved or may be produced in any other manner as
is reasonably acceptable to the Regular Trustees, as
evidenced by their execution thereof, and may have such
letters, numbers or other marks or identification or
designation and such legends or endorsements as the
Regular Trustees may deem appropriate, or as may be
required to comply with any law or to conform to usage.
(c) The consideration received by the Trust for the
issuance of the Trust Securities shall constitute a
contribution to the capital of the Trust and shall not
constitute a loan to the Trust.
(d) Upon issuance of the Trust Securities as provided in
this Declaration, the Trust Securities so issued shall
be deemed to be validly issued, fully paid and non-
assessable.
(e) Every Person, by virtue of having become a Holder or a
Capital Security Beneficial Owner in accordance with
the terms of this Declaration, shall be deemed to have
expressly assented and agreed to the terms of, and
shall be bound by, this Declaration.
ARTICLE VIII
TERMINATION
Section 8.1 Termination of Trust.
(a) The Trust shall terminate:
(i) upon the bankruptcy of the Holder of the Common
Securities or the Sponsor;
(ii) upon the filing of a certificate of dissolution or
its equivalent with respect to the Holder of the
Common Securities or the Sponsor; the filing of a
certificate of cancellation with respect to the
Trust or the revocation of the Holder of the
Common Securities or the Sponsor's charter and the
expiration of 90 days after the date of revocation
without a reinstatement thereof;
(iii) upon the entry of a decree of judicial dissolution
of the Holder of the Common Securities, the
Sponsor or the Trust;
(iv) when all of the Trust Securities shall have been
called for redemption and the amounts necessary
for redemption thereof shall have been paid to the
Holders in accordance with the terms of the Trust
Securities;
(v) upon the occurrence and continuation of a Special
Event pursuant to which the Trust shall have been
dissolved in accordance with the terms of the
Trust Securities and all of the Notes shall have
been distributed to the Holders of Trust
Securities in exchange for all of the Trust
Securities;
(vi) before the issuance of any Trust Securities, with
the consent of all of the Regular Trustees and the
Sponsor;
(vii) upon the written request of the Sponsor at any
time; or
(viii) March 31, 2052.
(b) As soon as is practicable after the occurrence of an
event referred to in Section 8.1(a), the Trustees shall
file a certificate of cancellation with the Secretary
of State of the State of Delaware.
(c) The provisions of Section 3.9 and Article X shall
survive the termination of the Trust.
ARTICLE IX
TRANSFER OF INTEREST
Section 9.1 Transfer of Trust Securities.
(a) Trust Securities may only be transferred, in whole or
in part, in accordance with the terms and conditions
set forth in this Declaration and in the terms of the
Trust Securities. Any transfer or purported transfer
of any Trust Security not made in accordance with this
Declaration shall be null and void.
(b) Subject to this Article IX, Capital Securities shall be
freely transferable.
(c) Subject to this Article IX, the Sponsor and any Related
Party may only transfer Common Securities to the
Sponsor or a Related Party of the Sponsor; provided
that, any such transfer is subject to the conditions
precedent that the transferor obtain the written
opinion of independent counsel experienced in such
matters that such transfer would not cause more than an
insubstantial risk that:
(i) the Trust would not be classified for United
States federal income tax purposes as a grantor
trust; and
(ii) the Trust would be an Investment Company or the
transferee would become an Investment Company.
Section 9.2 Transfer of Certificates.
The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be
effected without charge but only upon payment (with such
indemnity as the Regular Trustees may require) in respect of any
tax or other government charges that may be imposed in relation
to it. Upon surrender for registration of transfer of any
Certificate, the Regular Trustees shall cause one or more new
Certificates to be issued in the name of the designated
transferee or transferees. Every Certificate surrendered for
registration of transfer shall be accompanied by a written
instrument of transfer in form satisfactory to the Regular
Trustees duly executed by the Holder or such Holder's attorney
duly authorized in writing. Each Certificate surrendered for
registration of transfer shall be cancelled by the Regular
Trustees. A transferee of a Certificate shall be entitled to the
rights and subject to the obligations of a Holder hereunder upon
the receipt by such transferee of a Certificate. By acceptance
of a Certificate, each transferee shall be deemed to have agreed
to be bound by this Declaration and the documents incorporated by
reference herein.
Section 9.3 Deemed Trust Security Holders.
The Trustees may treat the Person in whose name any
Certificate shall be registered on the books and records of the
Trust as the sole Holder of such Certificate and of the Trust
Securities represented by such Certificate for purposes of
receiving Distributions and for all other purposes whatsoever
and, accordingly, shall not be bound to recognize any equitable
or other claim to or interest in such Certificate or in the Trust
Securities represented by such Certificate on the part of any
Person, whether or not the Trust shall have actual or other
notice thereof.
Section 9.4 Book Entry Interests.
Unless otherwise specified in the terms of the Capital
Securities, the Capital Securities Certificates, on original
issuance, will be issued in the form of one or more, fully regis-
tered, global Capital Security Certificates (each a "Global
Certificate"), to be delivered to DTC, the initial Depositary,
by, or on behalf of, the Trust. Such Global Certificates shall
initially be registered on the books and records of the Trust in
the name of Cede & Co., the nominee of DTC, and no Capital
Security Beneficial Owner will receive a definitive Capital
Security Certificate representing such Capital Security
Beneficial Owner's interests in such Global Certificates, except
as provided in Section 9.7. Unless and until definitive, fully
registered Capital Security Certificates (the "Definitive Capital
Security Certificates") have been issued to the Capital Security
Beneficial Owners pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full
force and effect;
(b) the Trust and the Trustees shall be entitled to deal
with the Depositary for all purposes of this
Declaration (including the payment of Distributions on
the Global Certificates and receiving approvals, votes
or consents hereunder) as the Holder of the Capital
Securities and the sole Holder of the Global Certifi-
cates and shall have no obligation to the Capital
Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4
conflict with any other provisions of the Declaration,
the provisions of this Section 9.4 shall control; and
(d) the rights of the Capital Security Beneficial Owners
shall be exercised only through the Depositary and
shall be limited to those established by law and agree-
ments between such Capital Security Beneficial Owners
and the Depositary and/or the Depositary Participants
and receive and transmit payments of Distributions on
the Global Certificates to such Depositary Participants
provided, that solely for the purposes of determining
whether the Holders of the requisite amount of Trust
Securities have voted on any matter provided for in
this Declaration, so long as Definitive Capital
Security Certificates have not been issued, the
Trustees may conclusively rely on, and shall be
protected in relying on, any written instrument
(including a proxy) delivered to the Trustee by the
Depository setting forth the Capital Security
Beneficial Owners' votes or assigning the right to vote
on any matter to any other Persons either in whole or
in part. DTC will make book entry transfers among the
Depositary Participants.
Section 9.5 Notices to Depositary.
Whenever a notice or other communication to the Capital
Security Holder is required under this Declaration, unless and
until Definitive Capital Security Certificates shall have been
issued to the Capital Security Beneficial Owners pursuant to
Section 9.7 the Regular Trustees shall give all such notices and
communications specified herein to be given to the Capital
Security Holders to the Depositary, and shall have no notice
obligations to the Capital Security Beneficial Owners.
Section 9.6 Appointment of Successor Depositary.
If any Depositary elects to discontinue its services as
securities depositary with respect to the Capital Securities, the
Regular Trustees may, in their sole discretion, appoint a
successor Depositary with respect to such Capital Securities.
Section 9.7 Definitive Capital Security Certificates.
If:
(a) a Depositary elects to discontinue its services as
securities depositary with respect to the Capital
Securities and a successor Depositary is not appointed
within 90 days after such discontinuance pursuant to
Section 9.6; or
(b) the Regular Trustees elect with the consent of the
Sponsor to terminate the book entry system through the
Depositary with respect to the Capital Securities,
then:
(c) Definitive Capital Security Certificates shall be
prepared by the Regular Trustees on behalf of the Trust
with respect to such Capital Securities; and
(d) upon surrender of the Global Certificates by the
Depositary, accompanied by registration instructions,
the Regular Trustees shall cause Definitive Certifi-
cates to be delivered to Capital Security Beneficial
Owners in accordance with the instructions of the
Depositary. Neither the Trustees nor the Trust shall
be liable for any delay in delivery of such
instructions and each of them may conclusively rely on
and shall be protected in relying on, said instructions
of the Depositary. The Definitive Capital Security
Certificates shall be printed, lithographed or engraved
or may be produced in any other manner as is reasonably
acceptable to the Regular Trustees, as evidenced by
their execution thereof, and may have such letters,
numbers or other marks of identification or designation
and such legends or endorsements as the Regular
Trustees may deem appropriate, or as may be required to
comply with any law or with any rule or regulation made
pursuant thereto or to conform to usage.
Section 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to the
Regular Trustees, or if the Regular Trustees shall
receive evidence to their satisfaction of the
destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such
security or indemnity as may be required by them to
keep each of them harmless;
then:
In the absence of notice that such Certificate shall have
been acquired by a bona fide purchaser, any two Regular Trustees
on behalf of the Trust shall execute and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like denomination. In
connection with the issuance of any new Certificate under this
Section 9.8, the Regular Trustees may require the payment of a
sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the relevant
Trust Securities, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS
OF TRUST SECURITIES, TRUSTEES OR OTHERS
Section 10.1 Liability.
(a) Except as expressly set forth in this Declaration, the
Capital Securities Guarantee, the Common Securities
Guarantee and the terms of the Trust Securities, the
Sponsor shall not be:
(i) personally liable for the return of any portion of
the capital contributions (or any return thereon)
of the Holders of the Trust Securities which shall
be made solely from assets of the Trust; and
(ii) be required to pay to the Trust or to any Holder
of Trust Securities any deficit upon dissolution
of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for
all of the debts and obligations of the Trust (other
than with respect to the Trust Securities) to the
extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act,
the Holders of the Capital Securities shall be entitled
to the same limitation of personal liability extended
to stockholders of private corporations for profit
organized under the General Corporation Law of the
State of Delaware.
Section 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any
Covered Person for any loss, damage or claim incurred
by reason of any act or omission performed or omitted
by such Indemnified Person in good faith on behalf of
the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified
Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's
gross negligence (and, in the case of the Property
Trustee, subject to Section 3.9 hereof) or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Trust and
upon such information, opinions, reports or statements
presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such
other Person's professional or expert competence and
who has been selected with reasonable care by or on
behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other
facts pertinent to the existence and amount of assets
from which Distributions to Holders of Trust Securities
might properly be paid.
Section 10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any
other Covered Person, an Indemnified Person acting
under this Declaration shall not be liable to the Trust
or to any other Covered Person for its good faith
reliance on the provisions of this Declaration. The
provisions of this Declaration, to the extent that they
restrict the duties and liabilities of an Indemnified
Person otherwise existing at law or in equity (other
than the duties imposed on the Property Trustee under
the Trust Indenture Act), are agreed by the parties
hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises
between an Indemnified Person and any Covered
Person; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an
Indemnified Person shall act in a manner that is,
or provides terms that are, fair and reasonable to
the Trust or any Holder of Trust Securities,
the Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms,
considering in each case the relative interest of each
party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits
and burdens relating to such interests, any customary
or accepted industry practices, and any applicable gen-
erally accepted accounting practices or principles. In
the absence of bad faith by the Indemnified Person, the
resolution, action or term so made, taken or provided
by the Indemnified Person shall not constitute a breach
of this Declaration or any other agreement contemplated
herein or of any duty or obligation of the Indemnified
Person at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be
entitled to consider such interests and factors as
it desires, including its own interests, and shall
have no duty or obligation to give any considera-
tion to any interest of or factors affecting the
Trust or any other Person; or
(ii) in its "good faith" or under another express stan-
dard, the Indemnified Person shall act under such
express standard and shall not be subject to any
other or different standard imposed by this
Declaration or by applicable law.
Section 10.4 Indemnification.
(a) To the fullest extent permitted by applicable law, the
Sponsor shall indemnify and hold harmless each
Indemnified Person from and against any loss, damage,
liability, tax, penalty, expense or claim of any kind
or nature whatsoever incurred by such Indemnified
Person by reason of the creation, operation or
termination of the Trust or any act or omission
performed or omitted by such Indemnified Person in good
faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the
scope of authority conferred on such Indemnified Person
by this Declaration, except that no Indemnified Person
shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified
Person by reason of gross negligence (and, in the case
of the Property Trustee, subject to Section 3.9 hereof)
or willful misconduct with respect to such acts or
omissions.
(b) To the fullest extent permitted by applicable law,
expenses (including legal fees) incurred by an Indemni-
fied Person in defending any claim, demand, action,
suit or proceeding shall, from time to time, be
advanced by the Sponsor prior to the final disposition
of such claim, demand, action, suit or proceeding upon
receipt by the Sponsor of an undertaking by or on
behalf of the Indemnified Person to repay such amount
if it shall be determined that the Indemnified Person
is not entitled to be indemnified as authorized in
Section 10.4(a). The provisions of this Section 10.4
shall survive the termination of this Declaration and
the removal or resignation of any Trustee.
Section 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Note Issuer, the
Delaware Trustee and the Property Trustee may engage in or
possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar
to the business of the Trust, and the Trust and the Holders of
Trust Securities shall have no rights by virtue of this
Declaration in and to such independent ventures or the income or
profits derived therefrom and the pursuit of any such venture,
even if competitive with the business of the Trust, shall not be
deemed wrongful or improper. No Covered Person, the Sponsor, the
Note Issuer, the Delaware Trustee, or the Property Trustee shall
be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the
Trust, and any Covered Person, the Sponsor, the Note Issuer, the
Delaware Trustee and the Property Trustee shall have the right to
take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular
investment or other opportunity. Any Covered Person, the
Delaware Trustee and the Property Trustee may engage or be
interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor, or may act as depositary for,
trustee or agent for, or act on any committee or body of holders
of, securities or other obligations of the Sponsor or its
Affiliates.
ARTICLE XI
ACCOUNTING
Section 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
Section 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Regular Trustees shall keep, or cause to be kept, full
books of account, records and supporting documents,
which shall reflect in reasonable detail, each transac-
tion of the Trust. The books of account shall be main-
tained on the accrual method of accounting, in
accordance with generally accepted accounting princi-
ples, consistently applied. The Trust shall use the
accrual method of accounting for United States federal
income tax purposes. The books of account and the
records of the Trust shall be examined by and reported
upon as of the end of each Fiscal Year by a firm of
independent certified public accountants selected by
the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared and
delivered to each of the Holders of Trust Securities,
within 90 days after the end of each Fiscal Year of the
Trust, annual financial statements of the Trust,
including a balance sheet of the Trust as of the end of
such Fiscal Year, and the related statements of income
or loss.
(c) The Regular Trustees shall cause to be duly prepared
and delivered to each of the Holders of Trust
Securities, any annual United States federal income tax
information statement, required by the Code, containing
such information with regard to the Trust Securities
held by each Holder as is required by the Code and the
Treasury Regulations. Notwithstanding any right under
the Code to deliver any such statement at a later date,
the Regular Trustees shall endeavor to deliver all such
statements within 30 days after the end of each Fiscal
Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared
and filed with the appropriate taxing authority, an
annual United States federal income tax return, on a
Form 1041 or such other form required by United States
federal income tax law, and any other annual income tax
returns required to be filed by the Regular Trustees on
behalf of the Trust with any state or local taxing
authority.
Section 11.3 Banking.
The Trust shall maintain one or more bank accounts in the
name and for the sole benefit of the Trust; provided, however,
that all payments of funds in respect of the Notes held by the
Property Trustee shall be made directly to the Property Trustee
Account and no other funds of the Trust shall be deposited in the
Property Trustee Account. The signatories for such accounts
shall be designated by the Regular Trustees; provided, however,
that the Property Trustee shall designate the sole signatories
for the Property Trustee Account.
Section 11.4 Withholding.
The Trust and the Regular Trustees shall comply with all
withholding requirements under United States federal, state and
local law. The Trust shall request, and the Holders shall
provide to the Trust, such forms or certificates as are necessary
to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be
requested by the Trust to assist it in determining the extent of,
and in fulfilling, its withholding obligations. The Regular
Trustees shall file required forms with applicable jurisdictions
and, unless an exemption from withholding is properly established
by a Holder, shall remit amounts withheld with respect to the
Holder to applicable jurisdictions. To the extent that the Trust
is required to withhold and pay over any amounts to any authority
with respect to distributions or allocations to any Holder, the
amount withheld shall be deemed to be a distribution in the
amount of the withholding to the Holder. In the event of any
claimed over withholding, Holders shall be limited to an action
against the applicable jurisdiction. If the amount required to
be withheld was not withheld from actual Distributions made, the
Trust may reduce subsequent Distributions by the amount of such
withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
Section 12.1 Amendments.
(a) Except as otherwise provided in this Declaration or by
any applicable terms of the Trust Securities, this
Declaration may only be amended by a written instrument
approved and executed by the Regular Trustees (or, if
there are more than two Regular Trustees a majority of
the Regular Trustees); and
(i) if the amendment affects the rights, powers,
duties, obligations or immunities of the Property
Trustee, by the Property Trustee; and
(ii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Delaware
Trustee, by the Delaware Trustee;
(b) No amendment shall be made, and any purported amendment
shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an
Officers' Certificate from each of the Trust and
the Sponsor that such amendment is permitted by,
and conforms to, the terms of this Declaration
(including the terms of the Trust Securities);
(ii) unless, in the case of any proposed amendment
which affects the rights, powers, duties, obliga-
tions or immunities of the Property Trustee, the
Property Trustee shall have first received:
(A) an Officers' Certificate from each of the
Trust and the Sponsor that such amendment is
permitted by, and conforms to, the terms of
this Declaration (including the terms of the
Trust Securities); and
(B) an opinion of counsel (who may be counsel to
the Sponsor or the Trust) that such amendment
is permitted by, and conforms to, the terms
of this Declaration (including the terms of
the Trust Securities); and
(iii) to the extent the result of such amendment would
be to:
(A) cause the Trust to fail to continue to be
classified for purposes of United States
federal income taxation as a grantor trust;
(B) reduce or otherwise adversely affect the
powers of the Property Trustee in
contravention of the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an
Investment Company required to be registered
under the Investment Company Act.
(c) at such time after the Trust has issued any Trust
Securities that remain outstanding, any amendment that
would adversely affect the rights, privileges or
preferences of any Holder of Trust Securities may be
effected only with such additional requirements as may
be set forth in the terms of such Trust Securities;
(d) Section 9.1(c) and this Section 12.1 shall not be
amended without the consent of all of the Holders of
the Trust Securities;
(e) Article IV shall not be amended without the consent of
the Holder(s) of a Majority in liquidation amount of
the Common Securities and;
(f) the rights of the Holder(s) of the Common Securities
under Article V to increase or decrease the number of,
and appoint and remove Trustees shall not be amended
without the consent of the Holder(s) of a Majority in
liquidation amount of the Common Securities; and
(g) notwithstanding Section 12.1(c), this Declaration may
be amended without the consent of the Holders of the
Trust Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Declaration that may be defective or inconsistent
with any other provision of this Declaration;
(iii) add to the covenants, restrictions or obligations
of the Sponsor; and
(iv) conform to any change in Rule 3a-5 or other
exemption from the requirement to register as an
Investment Company under the Investment Company
Act or written change in the interpretation or
application thereof by any legislative body,
court, government agency or regulatory authority
which amendment does not have a material adverse
effect on the rights, preferences or privileges of
the Holders.
Section 12.2 Meetings of the Holders of Trust Securities;
Action by Written Consent.
(a) Meetings of the Holders of any class of Trust
Securities may be called at any time by the Regular
Trustees (or as provided in the terms of the Trust
Securities) to consider and act on any matter on which
Holders of such class of Trust Securities are entitled
to act under the terms of this Declaration or the terms
of the Trust Securities. The Regular Trustees shall
call a meeting of the Holders of such class if directed
to do so by the Holders of at least 10% in liquidation
amount of such class of Trust Securities. Such
direction shall be given by delivering to the Regular
Trustees one or more calls in a writing stating that
the signing Holders of Trust Securities wish to call a
meeting and indicating the general or specific purpose
for which the meeting is to be called. Any Holders of
Trust Securities calling a meeting shall specify in
writing the Certificates held by the Holders of Trust
Securities exercising the right to call a meeting and
only those Trust Securities specified shall be counted
for purposes of determining whether the required
percentage set forth in the second sentence of this
paragraph has been met.
(b) Except to the extent otherwise provided in the terms of
the Trust Securities, the following provisions shall
apply to meetings of Holders of Trust Securities:
(i) notice of any such meeting shall be given to all
the Holders of Trust Securities having a right to
vote thereat at least 7 days and not more than 60
days before the date of such meeting. Whenever a
vote, consent or approval of the Holders of Trust
Securities is permitted or required under this
Declaration, such vote, consent or approval may
be given at a meeting of the Holders of Trust
Securities. Any action that may be taken at a
meeting of the Holders of Trust Securities may be
taken without a meeting if a consent in writing
setting forth the action so taken is signed by the
Holders of Trust Securities owning not less than
the minimum amount of Trust Securities in
liquidation amount that would be necessary to
authorize or take such action at a meeting at
which all Holders of Trust Securities having a
right to vote thereon were present and voting.
Prompt notice of the taking of action without a
meeting shall be given to the Holders of Trust
Securities entitled to vote who have not consented
in writing. The Regular Trustees may specify that
any written ballot submitted to a Holder for the
purpose of taking any action without a meeting
shall be returned to the Trust within the time
specified by the Regular Trustees;
(ii) each Holder of a Trust Security may authorize any
Person to act for it by proxy on all matters in
which a Holder of Trust Securities is entitled to
participate, including waiving notice of any
meeting, or voting or participating at a meeting.
No proxy shall be valid after the expiration of 11
months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be
revocable at the pleasure of the Holder of Trust
Securities executing it. Except as otherwise
provided herein, all matters relating to the
giving, voting or validity of proxies shall be
governed by the General Corporation Law of the
State of Delaware relating to proxies, and
judicial interpretations thereunder, as if the
Trust were a Delaware corporation and the Holders
of the Trust Securities were stockholders of a
Delaware corporation;
(iii) each meeting of the Holders of the Trust
Securities shall be conducted by the Regular
Trustees or by such other Person that the Regular
Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration or
the terms of the Trust Securities or the Trust
Indenture Act otherwise provides, the Regular
Trustees, in their sole discretion, shall
establish all other provisions relating to
meetings of Holders of Trust Securities, including
notice of the time, place or purpose of any
meeting at which any matter is to be voted on by
any Holders of Trust Securities, waiver of any
such notice, action by consent without a meeting,
the establishment of a record date, quorum
requirements, voting in person or by proxy or any
other matter with respect to the exercise of any
such right to vote.
ARTICLE XIII
REPRESENTATIONS AND WARRANTIES OF PROPERTY TRUSTEE
Section 13.1 Representations and Warranties of Property
Trustee.
The Trustee that acts as initial Property Trustee represents
and warrants to the Trust and to the Sponsor at the date of this
Declaration, and each Successor Property Trustee represents and
warrants to the Trust and the Sponsor at the time of the
Successor Property Trustee's acceptance of its appointment as
Property Trustee that:
(a) The Property Trustee is a banking association with
trust powers, duly organized, validly existing and in
good standing under the laws of the United States, with
trust power and authority to execute and deliver, and
to carry out and perform its obligations under the
terms of, the Declaration and, with respect to the
initial Property Trustee, its principal place of
business in Illinois, and, with respect to any
Successor Property Trustee, its principal place of
business, in any state in the United States.
(b) The execution, delivery and performance by the Property
Trustee of the Declaration has been duly authorized by
all necessary corporate action on the part of the
Property Trustee. The Declaration has been duly
executed and delivered by the Property Trustee, and it
constitutes a legal, valid and binding obligation of
the Property Trustee, enforceable against it in
accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency, and
other similar laws affecting creditors' rights
generally and to general principles of equity and the
discretion of the court (regardless of whether the
enforcement of such remedies is considered in a
proceeding in equity or at law).
(c) The execution, delivery and performance of the
Declaration by the Property Trustee does not conflict
with or constitute a breach of the charter or By-laws
of the Property Trustee.
(d) No consent, approval or authorization of, or
registration with or notice to, any State or Federal
banking authority is required for the execution,
delivery or performance by the Property Trustee, of the
Declaration.
Section 13.2 Representations and Warranties of Delaware
Trustee.
The Trustee that acts as initial Delaware Trustee represents
and warrants to the Trust and to the Sponsor at the date of this
Declaration, and each Successor Delaware Trustee represents and
warrants to the Trust and the Sponsor at the time of the
Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee that:
(a) The Delaware Trustee is a natural person who is a
resident of the State of Delaware or, if not a natural
person, an entity which has its principal place of
business in the State of Delaware.
(b) The Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and the
Declaration. The Declaration under Delaware law
constitutes a legal, valid and binding obligation of
the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency, and
other similar laws affecting creditors' rights
generally and to general principles of equity and the
discretion of the court (regardless of whether the
enforcement of such remedies is considered in a
proceeding in equity or at law).
(c) No consent, approval or authorization of, or
registration with or notice to, any State or Federal
banking authority is required for the execution,
delivery or performance by the Delaware Trustee of the
Declaration.
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Notices.
All notices provided for in this Declaration shall be in
writing, duly signed by the party giving such notice, and shall
be delivered, telecopied or mailed by registered or certified
mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees
at the Trust's mailing address set forth below (or such
other address as the Trust may give notice of to the
Holders of the Trust Securities):
GREAT WESTERN FINANCIAL TRUST II
c/o Great Western Financial Corporation
9200 Oakdale Avenue
Chatsworth, California 91311
(b) if given to the Property Trustee, at the mailing
address set forth below (or such other address as the
Property Trustee may give notice of to the Holders of
the Trust Securities):
The First National Bank of Chicago
One First National Plaza, Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust Services Division
(c) if given to the Holder of the Common Securities, at
the mailing address of the Sponsor set forth below (or such other
address as the Holder of the Common Securities may give notice to
the Trust):
Great Western Financial Corporation
9200 Oakdale Avenue
Chatsworth, California 91311
Attention: General Counsel
(d) if given to any other Holder, at the address set
forth on the books and records of the Trust.
(e) if given to the Delaware Trustee, at the mailing
address set forth below (or such other address as the Delaware
Trustee may give notice of to the Holders of the Trust
Securities):
First Chicago Delaware Inc.
300 King Street
Wilmington, Delaware 19801
Attention: Michael J. Majchrzak
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed
by first class mail, postage prepaid except that if a notice or
other document is refused delivery or cannot be delivered because
of a changed address of which no notice was given, such notice or
other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
Section 14.2 Governing Law.
This Declaration and the rights of the parties hereunder
shall be governed by and interpreted in accordance with the laws
of the State of Delaware and all rights and remedies shall be
governed by such laws without regard to principles of conflict of
laws.
Section 14.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust not
be characterized for United States federal income tax purposes as
an association taxable as a corporation or a partnership but
rather that the Trust be characterized as a grantor trust or
otherwise in a manner such that each Holder of Trust Securities
will be treated as owning an undivided beneficial interest in the
Notes. The provisions of this Declaration shall be interpreted
to further this intention of the parties.
Section 14.4 Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the
interpretation of this Declaration or any provision hereof.
Section 14.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is
named or referred to, the successors and assigns of such party
shall be deemed to be included, and all covenants and agreements
in this Declaration by the Sponsor and the Trustees shall bind
and inure to the benefit of their respective successors and
assigns, whether so expressed.
Section 14.6 Partial Enforceability.
If any provision of this Declaration, or the application of
such provision to any Person or circumstance, shall be held
invalid, the remainder of this Declaration, or the application of
such provision to persons or circumstances other than those to
which it is held invalid, shall not be affected thereby.
Section 14.7 Counterparts.
This Declaration may contain more than one counterpart of
the signature page and this Declaration may be executed by the
affixing of the signature of each of the Trustees to one of such
counterpart signature pages. All of such counterpart signature
pages shall be read as though one, and they shall have the same
force and effect as though all of the signers had signed a single
signature page.
IN WITNESS WHEREOF, the undersigned has caused these
presents to be executed as of the day and year first above
written.
CARL F. GEUTHER,
as Trustee
___________________________
J. LANCE ERIKSON,
as Trustee
___________________________
BRUCE F. ANTENBERG,
as Trustee
___________________________
FIRST CHICAGO DELAWARE INC.
as Delaware Trustee
By: _______________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee
By: _______________________
Name:
Title:
GREAT WESTERN FINANCIAL CORPORATION,
as Sponsor
By: ______________________
Name:
Title:
EXHIBIT A
TERMS OF
8.206% CAPITAL SECURITIES, SERIES A
8.206% COMMON SECURITIES, SERIES A
Pursuant to Section 7.1 of the Amended and Restated
Declaration of Trust, dated as of January 22, 1997 (as amended
from time to time, the "Declaration"), the designation, rights,
privileges, restrictions, preferences and other terms and
provisions of the Capital Securities and the Common Securities
are set out below (each capitalized term used but not defined
herein has the meaning set forth in the Declaration or, if not
defined in such Declaration, as defined in the Prospectus
referred to below):
1. Designation and Number.
(a) "Capital Securities." 300,000 Capital Securities of
the Trust with an aggregate liquidation amount with
respect to the assets of the Trust of Three Hundred
Million Dollars ($300,000,000) and a liquidation amount
with respect to the assets of the Trust of $1,000 per
Capital Security, are hereby designated for the
purposes of identification only as "8.206% Capital
Securities, Series A (the "Capital Securities"). The
Certificates evidencing the Capital Securities shall be
substantially in the form attached hereto as Annex I,
with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom
or practice.
(b) "Common Securities." 9,279 Common Securities of the
Trust with an aggregate liquidation amount with respect
to the assets of the Trust of Nine Million Two Hundred
Seventy-Nine Thousand Dollars ($9,279,000) and a
liquidation amount with respect to the assets of the
Trust of $1,000 per Common Security, are hereby
designated for the purposes of identification only as
"8.206% Common Securities, Series A" (the "Common
Securities"). The Certificates evidencing the Common
Securities shall be substantially in the form attached
hereto as Annex II, with such changes and additions
thereto or deletions therefrom as may be required by
ordinary usage, custom or practice.
2. Distributions.
(a) Distributions payable on each Trust Security will be
fixed at a rate per annum of 8.206% (the "Coupon Rate")
of the stated liquidation amount of $1,000 per Trust
Security, such rate being the rate of interest payable
on the Notes to be held by the Property Trustee.
Distributions in arrears for more than one semi-annual
period will bear interest thereon compounded semi-
annually at the Coupon Rate (to the extent permitted by
applicable law). The term "Distributions" as used
herein includes any such interest payable unless
otherwise stated. A Distribution is payable only to
the extent that payments are made in respect of the
Notes held by the Property Trustee. The amount of
Distributions payable for any period will be computed
for any full semi-annual Distribution period on the
basis of a 360-day year of twelve 30-day months, and
for any period shorter than a full semi-annual
Distribution period for which Distributions are
computed, on the basis of the actual number of days
elapsed per 30-day month.
(b) Distributions on the Trust Securities will be
cumulative, will accrue from January 27, 1997, and will
be payable semi-annually in arrears, on February 1 and
August 1 of each year (each a "Distribution Date") to
the Holders of record on the applicable record date,
commencing on August 1, 1997, except as otherwise
described below. The Note Issuer has the right under
the Indenture to defer payments of interest by
extending the interest payment period from time to time
on the Notes for a period not exceeding 10 consecutive
semi-annual periods (each an "Extension Period") and,
during such Extension Period no interest shall be due
and payable on the Notes, provided that no Extension
Period shall last beyond the date of maturity of the
Notes. As a consequence of such deferral,
Distributions will also be deferred. Despite such
deferral, semi-annual Distributions will continue to
accrue with interest thereon (to the extent permitted
by applicable law) at the Coupon Rate compounded semi-
annually during any such Extension Period. Prior to
the termination of any such Extension Period, the Note
Issuer may further extend such Extension Period;
provided that such Extension Period together with all
such previous and further extensions thereof may not
exceed 10 consecutive semi-annual periods. Payments of
accrued Distributions will be payable to Holders as
they appear on the books and records of the Trust on
the first record date after the end of the Extension
Period. Upon the termination of any Extension Period
and the payment of all amounts then due, the Note
Issuer may commence a new Extension Period as if no
Extension Period had previously been declared, subject
to the above requirements.
(c) Distributions on the Trust Securities will be payable
to the Holders thereof as they appear on the books and
records of the Trust on the relevant record dates.
While the Capital Securities remain in book-entry only
form, the relevant record dates shall be one Business
Day prior to the relevant payment dates which payment
dates correspond to the interest payment dates on the
Notes. Such distributions will be paid through the
Property Trustee, who will hold amounts received in
respect of the Notes for the benefit of the holders of
the Trust Securities. Subject to any applicable laws
and regulations and the provisions of the Declaration,
each such payment in respect of the Capital Securities
will be made as described under the heading
"Description of the Offered Capital Securities -- Book-
Entry Only Issuance -- The Depository Trust Company" in
the Prospectus Supplement dated January 22, 1997 (the
"Prospectus Supplement"), to the Prospectus dated
January 21, 1997 (together, the "Prospectus"), of the
Trust included in the Registration Statement on
Form S-3 of the Sponsor and the Trust. The relevant
record dates for the Common Securities shall be the
same record date as for the Capital Securities. If the
Capital Securities shall not continue to remain in
book-entry only form, the relevant record dates for the
Capital Securities shall be selected by the Regular
Trustees, which dates shall be more than one Business
Day but less than 60 Business Days before the relevant
payment dates, which payment dates correspond to the
interest payment dates on the Notes. Distributions
payable on any Trust Securities that are not punctually
paid on any Distribution payment date, as a result of
the Note Issuer having failed to make a payment under
the Notes, will cease to be payable to the Person in
whose name such Trust Securities are registered on the
relevant record date, and such defaulted Distribution
will instead be payable to the Person in whose name
such Trust Securities are registered on the special
record date or other specified date determined in
accordance with the Indenture. If any date on which
Distributions are payable on the Trust Securities is
not a Business Day, then payment of the Distribution
payable on such date will be made on the next
succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay)
except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on
the immediately preceding Business Day, in each case
with the same force and effect as if made on such date.
(d) In the event that there is any money or other property
held by or for the Trust that is not accounted for
hereunder, such property shall be distributed Pro Rata
(as defined herein) among the Holders of the Trust
Securities.
3. Liquidation Distribution Upon Dissolution.
In the event of any voluntary or involuntary liquidation,
dissolution, winding-up or termination of the Trust, the Holders
of the Trust Securities on the date of the liquidation,
dissolution, winding-up or termination, as the case may be, will
be entitled to receive out of the assets of the Trust available
for distribution to Holders of Trust Securities after
satisfaction of liabilities of creditors an amount equal to the
aggregate of the stated liquidation amount of $1,000 per Trust
Security plus accrued and unpaid Distributions thereon to the
date of payment (such amount being the "Liquidation
Distribution"), unless, in connection with such liquidation,
dissolution, winding-up or termination, Notes in an aggregate
principal amount equal to the aggregate stated liquidation amount
of such Trust Securities and bearing accrued and unpaid interest
in an amount equal to the accrued and unpaid Distributions on,
such Trust Securities, shall be distributed on a Pro Rata basis
to the Holders of the Trust Securities in exchange for such Trust
Securities.
If, upon any such liquidation, dissolution, winding-up
or termination, the Liquidation Distribution can be paid only in
part because the Trust has insufficient assets available to pay
in full the aggregate Liquidation Distribution, then the amounts
payable directly by the Trust on the Trust Securities shall be
paid on a Pro Rata basis.
4. Redemption and Distribution.
(a) Upon the repayment of the Notes in whole or in part,
whether at maturity or upon redemption, the proceeds
from such repayment or payment shall be simultaneously
applied to redeem Trust Securities having an aggregate
liquidation amount equal to the aggregate principal
amount of the Notes so repaid or redeemed at a
redemption price (the "Redemption Price") which, in the
case of any permitted redemption on or after February
1, 2007, shall equal the following prices, expressed in
percentages of the liquidation amount, together with
accumulated Distributions to the redemption date, if
redeemed during the 12 month period beginning February
1:
Redemption
Year Price
---- ----------
2007 104.1030%
2008 103.6927%
2009 103.2824%
2010 102.8721%
2011 102.4618%
2012 102.0515%
2013 101.6412%
2014 101.2309%
2015 100.8206%
2016 100.4103%
and at 100% on or after February 1, 2017.
The Redemption Price, in the case of a permitted redemption
prior to February 1, 2007 shall equal the Make-Whole Amount for a
corresponding $1,000 principal amount of Notes together with
accumulated Distributions to the redemption date. Holders will
be given not less than 30 nor more than 60 days notice of such
redemption.
(b) If fewer than all the outstanding Trust Securities are
to be so redeemed, the Common Securities and the
Capital Securities will be redeemed Pro Rata and the
Capital Securities to be redeemed will be as described
in Paragraph 4(f)(ii) below.
(c) If a Special Event (as defined below) shall occur and
be continuing the Regular Trustees shall dissolve the
Trust and, after satisfaction of creditors, cause Notes
held by the Property Trustee, having an aggregate
principal amount equal to the aggregate stated
liquidation amount of, with an interest rate identical
to the Coupon Rate of, and accrued and unpaid interest
equal to accrued and unpaid Distributions on and having
the same record date for payment as the Trust
Securities, to be distributed to the Holders of the
Trust Securities in liquidation of such Holders'
interests in the Trust on a Pro Rata basis, within 90
days following the occurrence of such Special Event
(the "90-Day Period"); provided, however, that, in the
case of the occurrence of a Tax Event (as defined
below), as a condition of such dissolution and
distribution, the Regular Trustees shall have received
an opinion of independent tax counsel experienced in
such matters (a "No Recognition Opinion"), which
opinion may rely on published revenue rulings of the
Internal Revenue Service, to the effect that the
Holders of the Trust Securities will not recognize any
gain or loss for United States federal income tax
purposes as a result of the dissolution of the Trust
and the distribution of Notes, and provided, further,
that, if at the time there is available to the Trust
the opportunity to eliminate, within the 90-Day Period,
the Special Event by taking some ministerial action,
such as filing a form or making an election, or
pursuing some other similar reasonable measure that has
no adverse effect on the Trust, the Note Issuer, the
Sponsor or the Holders of the Trust Securities
("Ministerial Action"), the Trust or the Note Issuer
will pursue such Ministerial Action in lieu of such
dissolution and distribution.
In the case of the occurrence of a Tax Event, if
(i) the Note Issuer has received an opinion (a
"Redemption Tax Opinion") of independent tax counsel
experienced in such matters that, as a result of such
Tax Event, there is more than an insubstantial risk
that the Note Issuer would be precluded from deducting
the interest on the Notes for United States federal
income tax purposes even if the Notes were distributed
to the Holders of Trust Securities in liquidation of
such Holders' interests in the Trust as described in
this paragraph 4(c), or (ii) the Regular Trustees shall
have been informed by such tax counsel that a No
Recognition Opinion cannot be delivered to the Trust,
the Note Issuer shall have the right at any time, upon
not less than 30 nor more than 60 days notice, to
redeem the Notes in whole or in part for cash within
the 90-Day Period and following such redemption, Trust
Securities with an aggregate liquidation amount equal
to the aggregate principal amount of the Notes so
redeemed shall be redeemed by the Trust at the
Redemption Price on a Pro Rata basis; provided,
however, that, if at the time there is available to the
Trust the opportunity to eliminate within such 90-Day
Period, the Tax Event by taking some Ministerial
Action, the Trust or the Note Issuer will pursue such
Ministerial Action in lieu of redemption.
"Special Event" means a Tax Event or an Investment
Company Event (as defined below). "Tax Event" means
that the Regular Trustees shall have received an
opinion of independent tax counsel experienced in such
matters (a "Dissolution Tax Opinion") to the effect
that on or after the date of the Prospectus Supplement,
as a result of (a) any amendment to, or change
(including any announced prospective change) in, the
laws (or any regulations thereunder) of the
United States or, with respect to clause (ii) below,
any political subdivision or taxing authority thereof
or therein, or (b) any amendment to, or change in, an
interpretation or application of any such laws or
regulations by any legislative body, court,
governmental agency or regulatory authority, which
amendment or change is enacted, promulgated, issued or
announced or which interpretation or pronouncement is
issued or announced or which action is taken
(irrespective of any retroactive effect), in each case
on or after the date of the Prospectus Supplement,
there is more than an insubstantial risk that (i) the
Trust would be subject to United States federal income
tax with respect to interest accrued or received on the
Notes, (ii) the Trust would be subject to more than a
de minimis amount of other taxes, duties or other
governmental charges, or (iii) interest payable by the
Note Issuer to the Trust on the Notes would not be
deductible by the Note Issuer for United States federal
income tax purposes. "Investment Company Event" means
that the Regular Trustees shall have received an
opinion from independent counsel experienced in such
matters to the effect that, as a result of the
occurrence of a change in law or regulation or a
written change in interpretation or application of law
or regulation by any legislative body, court,
governmental agency or regulatory authority, there is
more than an insubstantial risk that the Trust is or
will within 90 days of the date of such opinion be
considered an "investment company" which is required to
be registered under the Investment Company Act of 1940,
as amended, which change becomes effective on or after
the date of the Prospectus Supplement.
On and from the date fixed by the Regular Trustees for
any distribution of Notes and dissolution of the Trust:
(i) the Trust Securities will no longer be deemed to be
outstanding, (ii) The Depository Trust Company (the
"Depositary") or its nominee (or any successor
Depositary or its nominee), as the record Holder of the
Capital Securities, will receive a registered global
certificate or certificates representing the Notes to
be delivered upon such distribution, and (iii) any
certificates representing Trust Securities not held
by the Depositary or its nominee (or any successor
Depositary or its nominee), will be deemed to represent
beneficial interests in the Notes having an aggregate
principal amount equal to the aggregate stated
liquidation amount of such Trust Securities until such
certificates are presented to the Note Issuer or its
agent for transfer or reissue.
(d) Upon the written request of the Note Issuer, the
Regular Trustees shall dissolve the Trust and, after
satisfaction of creditors, cause Notes held by the
Property Trustee, having an aggregate principal amount
equal to the aggregate stated liquidation amount of,
with an interest rate identical to the Coupon Rate of,
and accrued and unpaid interest equal to accrued and
unpaid Distributions on and having the same record date
for payment as the Trust Securities, to be distributed
to the Holders of the Trust Securities in liquidation
of such Holders' interests in the Trust on a Pro Rata
basis, within 90 days following the written request.
(e) The Trust may not redeem fewer than all the outstanding
Trust Securities unless all accrued and unpaid
Distributions have been paid on all Trust Securities
for all semi-annual Distribution periods terminating on
or before the date of redemption.
(f) Redemption or Distribution Procedures.
(i) Notice of any redemption of, or notice of
distribution of Notes in exchange for the Trust
Securities (a "Redemption/Distribution Notice")
will be given by the Trust by mail to each Holder
of Trust Securities to be redeemed or exchanged
not fewer than 30 nor more than 60 days before the
date fixed for redemption or exchange thereof
which, in the case of a redemption, will be the
date fixed for redemption of the Notes. For
purposes of the calculation of the date of
redemption or exchange and the dates on which
notices are given pursuant to this paragraph
4(f)(i), a Redemption/Distribution Notice shall be
deemed to be given on the day such notice is first
mailed by first-class mail, postage prepaid, to
Holders of Trust Securities. Each
Redemption/Distribution Notice shall be addressed
to the Holders of Trust Securities at the address
of each such Holder appearing in the books and
records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing
of either thereof with respect to any Holder shall
affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding
Trust Securities are to be redeemed, the Trust
Securities to be redeemed shall be redeemed
Pro Rata and, in the event Capital Securities are
held in book-entry only form by the Depositary or
its nominee (or any successor Depositary or its
nominee), the Depositary will reduce Pro Rata
the amount of the interest of each Depositary
Participant in the Capital Securities to be
redeemed in accordance with its procedures;
provided, that if, as a result of such Pro Rata
redemption, Depositary Participants would hold
fractional interests in the Capital Securities,
the Depositary will adjust the amount of the
interest of each Depositary Participant to be
redeemed to avoid such fractional interests;
(iii) If Trust Securities are to be redeemed and the
Trust gives a Redemption/Distribution Notice,
which notice may only be issued if the Notes are
redeemed as set out in this paragraph 4 (which
notice will be irrevocable), then (A) while the
Capital Securities are in book-entry only form,
with respect to the Capital Securities, by 12:00
noon, New York City time, on the redemption date,
provided that the Note Issuer has paid the
Property Trustee a sufficient amount of cash in
connection with the related redemption or maturity
of the Notes, the Property Trustee will deposit
irrevocably with the Depositary or its nominee (or
any successor Depositary or its nominee) funds
sufficient to pay the applicable Redemption Price
with respect to the Capital Securities and will
give the Depositary irrevocable instructions and
authority to pay the Redemption Price to the
Holders of the Capital Securities, and (B) with
respect to Capital Securities issued in definitive
form and Common Securities, provided, that the
Note Issuer has paid the Property Trustee a
sufficient amount of cash in connection with the
related redemption or maturity of the Notes, the
Property Trustee will pay the relevant Redemption
Price to the Holders of such Trust Securities by
check mailed to the address of the relevant Holder
appearing on the books and records of the Trust on
the redemption date. If a Redemption/Distribution
Notice shall have been given and funds deposited
as required, if applicable, then immediately prior
to the close of business on the date of such
deposit, or on the redemption date, if later, as
applicable, Distributions will cease to accrue on
the Trust Securities so called for redemption and
all rights of Holders of such Trust Securities so
called for redemption will cease, except the right
of the Holders of such Trust Securities to receive
the Redemption Price, but without interest on such
Redemption Price. Neither the Regular Trustees
nor the Trust shall be required to register or
cause to be registered the transfer of any Trust
Securities that have been so called for
redemption. If any date fixed for redemption of
Trust Securities is not a Business Day, then
payment of the Redemption Price payable on such
date will be made on the next succeeding day that
is a Business Day (and without any interest or
other payment in respect of any such delay) except
that, if such Business Day falls in the next
calendar year, such payment will be made on the
immediately preceding Business Day, in each case
with the same force and effect as if made on such
date fixed for redemption. If payment of the
Redemption Price in respect of any Trust
Securities is improperly withheld or refused and
not paid either by the Property Trustee or by the
Sponsor as guarantor pursuant to the Capital
Securities Guarantee or Common Securities
Guarantee, as the case may be, Distributions on
such Trust Securities will continue to accrue from
the original redemption date to the actual date of
payment, in which case the actual payment date
will be considered the date fixed for redemption
for purpose of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by
the Regular Trustees on behalf of the Trust to
(A) in respect of the Capital Securities, the
Depositary or its nominee (or any successor
Depositary or its nominee) if the Global
Certificates have been issued or, if Definitive
Capital Security Certificates have been issued, to
the Holder thereof, and (B) in respect of the
Common Securities to the Holder thereof.
(v) Subject to the foregoing and applicable law
(including, without limitation, United States
federal securities laws), provided the acquirer is
not the Holder of the Common Securities or the
obligor under the Indenture, the Sponsor or any of
its subsidiaries may at any time and from time to
time purchase outstanding Capital Securities by
tender, in the open market or by private
agreement.
5. Voting Rights - Capital Securities.
(a) Except as provided under paragraphs 5(b) and 7 and as
otherwise required by law and the Declaration, the
Holders of the Capital Securities will have no voting
rights.
(b) Subject to the requirements set forth in this
paragraph, the Holders of a majority in liquidation
amount of the Capital Securities, voting separately as
a class, may direct the time, method, and place of
conducting any proceeding for any remedy available to
the Property Trustee, or direct the exercise of any
trust or power conferred upon the Property Trustee
under the Declaration, including (i) directing the
time, method and place of conducting any proceeding for
any remedy available to the Note Trustee, or exercising
any trust or power conferred on the Note Trustee with
respect to the Notes, (ii) waive any past default and
its consequences that is waivable under Section 513 of
the Indenture, or (iii) exercise any right to rescind
or annul a declaration that the principal of all the
Notes shall be due and payable, provided, however,
that, where a consent or action under the Indenture
would require the consent or act of the Holders of all
of or of greater than a majority of the Holders in
principal amount of Notes affected thereby (a "Super-
Majority"), the Property Trustee may only give such
consent or take such action at the direction of the
Holders of all of or of at least the proportion in
liquidation amount of the Capital Securities which the
relevant Super-Majority represents of the aggregate
principal amount of the Notes outstanding, as
applicable. Other than with respect to directing the
time, method and place of conducting any proceeding for
any remedy available to the Property Trustee or the
Note Trustee as set forth above, the Property Trustee
shall not take any action in accordance with the
directions of the Holders of the Capital Securities
under this paragraph unless the Property Trustee has
obtained an opinion of independent tax counsel
experienced in such matters to the effect that for the
purposes of United States federal income tax law the
Trust will not fail to be classified as a grantor trust
on account of such action. If an Event of Default with
respect to the Notes, constituting the failure to pay
interest or principal on the Notes on the date such
interest or principal is otherwise payable, has
occurred and is continuing, then a holder of Trust
Securities may directly institute a proceeding for
enforcement of payment to such holder directly of the
principal of or interest on the Notes having a
principal amount equal to the aggregate liquidation
amount of the Trust Securities of such holder on or
after the respective due date specified in the Notes.
The holders of Trust Securities will not be able to
exercise directly any other remedy available to the
holders of the Notes unless the Property Trustee fails
to do so.
Any approval or direction of Holders of Capital
Securities may be given at a separate meeting of
Holders of Capital Securities convened for such
purpose, at a meeting of all of the Holders of Trust
Securities or pursuant to written consent. The Regular
Trustees will cause a notice of any meeting at which
Holders of Capital Securities are entitled to vote, or
of any matter upon which action by written consent of
such Holders is to be taken, to be mailed to each
Holder of record of Capital Securities. Each such
notice will include a statement setting forth (i) the
date of such meeting or the date by which such action
is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such
Holders are entitled to vote or of such matter upon
which the written consent is sought and
(iii) instructions for the delivery of proxies or
consents.
No vote or consent of the Holders of the Capital
Securities will be required for the Trust to redeem and
cancel Capital Securities or to distribute the Notes in
accordance with the Declaration and the terms of the
Trust Securities.
Notwithstanding that Holders of Capital Securities
are entitled to vote or consent under any of the
circumstances described above, any of the Capital
Securities that are owned by the Sponsor or any
Affiliate of the Sponsor shall not be entitled to vote
or consent and shall, for purposes of such vote or
consent, be treated as if they were not outstanding.
6. Voting Rights - Common Securities.
(a) Except as provided under paragraphs 6(b), 6(c) and 7 or
as otherwise required by law and the Declaration, the
Holder(s) of the Common Securities will have no voting
rights.
(b) The Holder(s) of the Common Securities are entitled, in
accordance with Article V of the Declaration, to vote
to appoint, remove or replace any Trustee or to
increase or decrease the number of Trustees.
(c) Subject to Section 2.6 of the Declaration and only
after an Event of Default with respect to the Capital
Securities has been cured, waived or otherwise
eliminated and to the requirements of the second to
last sentence of this paragraph, the Holder(s) of a
Majority in liquidation amount of the Common
Securities, voting separately as a class, may direct
the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee, or
exercising any trust or power conferred upon the
Property Trustee under the Declaration, including
(i) directing the time, method and place of conducting
any proceeding for any remedy available to the Note
Trustee, or exercising any trust or power conferred on
the Note Trustee with respect to the Notes, (ii) waive
any past default and its consequences that is waivable
under Section 513 of the Indenture, or (iii) exercise
any right to rescind or annul a declaration that the
principal of all the Notes shall be due and payable,
provided, however, that, where a consent or action
under the Indenture would require the consent or act of
the Holders of a Super-Majority, the Property Trustee
may only give such consent or take such action at the
direction of the Holder(s) of all of or of at least the
proportion in liquidation amount of the Common
Securities which the relevant Super-Majority represents
of the aggregate principal amount of the Notes
outstanding, as applicable. Pursuant to this
paragraph 6(c), the Property Trustee shall not revoke
any action previously authorized or approved by a vote
of the applicable Holders of the Capital Securities
pursuant to paragraph 5(b). Other than with respect to
directing the time, method and place of conducting any
proceeding for any remedy available to the Property
Trustee or the Note Trustee as set forth above, the
Property Trustee shall not take any action in
accordance with the directions of the Holder(s) of the
Common Securities under this paragraph unless the
Property Trustee has obtained an opinion of independent
tax counsel experienced in such matters to the effect
that for the purposes of United States federal income
tax law the Trust will not fail to be classified as a
grantor trust on account of such action. If the
Property Trustee fails to enforce its rights under the
Declaration, any Holder of Common Securities may after
written request to the Property Trustee to enforce such
rights, institute a legal proceeding directly against
any Person to enforce the Property Trustee's rights
under the Declaration, without first instituting a
legal proceeding against the Property Trustee or any
other person.
Any approval or direction of Holder(s) of Common
Securities may be given at a separate meeting of
Holder(s) of Common Securities convened for such
purpose, at a meeting of all of the Holders of Trust
Securities or pursuant to written consent. The Regular
Trustees will cause a notice of any meeting at which
Holder(s) of Common Securities are entitled to vote, or
of any matter upon which action by written consent of
such Holders is to be taken, to be mailed to each
Holder of record of Common Securities. Each such
notice will include a statement setting forth (i) the
date of such meeting or the date by which such action
is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such
Holders are entitled to vote or of such matter upon
which written consent is sought and (iii) instructions
for the delivery of proxies or consents.
No vote or consent of the Holder(s) of the Common
Securities will be required for the Trust to redeem and
cancel Common Securities or to distribute the Notes in
accordance with the Declaration and the terms of the
Trust Securities.
7. Amendments to Declaration and Indenture.
(a) In addition to any requirements under Section 12.1 of
the Declaration, if any proposed amendment to the
Declaration provides for, or the Regular Trustees
otherwise propose to effect (i) any action that would
adversely affect the powers, preferences or special
rights of the Trust Securities, whether by way of
amendment to the Declaration or otherwise, or (ii) the
liquidation, dissolution, winding-up or termination of
the Trust, other than as described in Section 8.1 of
the Declaration, then the Holders of outstanding Trust
Securities, voting together as a single class, will be
entitled to vote on such amendment or proposal (but not
on any other amendment or proposal) and such amendment
or proposal shall not be effective except with the
approval of the Holders of at least 66-2/3% in
liquidation amount of the Trust Securities, voting
together as a single class; provided, however, if any
amendment or proposal referred to in clause (i) above
would adversely affect only the Capital Securities or
only the Common Securities, then only the affected
class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be
effective except with the approval of 66-2/3% in
liquidation amount of such class of Trust Securities.
(b) In the event the consent of the Property Trustee as the
holder of the Notes, the Capital Securities Guarantee
and the Common Securities Guarantee is required under
the Indenture or the applicable Guarantee with respect
to any amendment, modification or termination on the
Indenture, the Notes, the Capital Securities Guarantee
or the Common Securities Guarantee, the Property
Trustee shall request the direction of the Holders of
the Trust Securities with respect to such amendment,
modification or termination and shall vote with respect
to such amendment, modification or termination as
directed by a majority in liquidation amount of the
Trust Securities voting together as a single class;
provided, however, that where a consent under the
Indenture or the applicable Guarantee would require the
consent of a Super-Majority, the Property Trustee may
only give such consent at the direction of the Holders
of all of or of at least the proportion in liquidation
amount of the Trust Securities which the relevant
Super-Majority represents of the aggregate principal
amount of the Notes outstanding, as applicable;
provided, further, that the Property Trustee shall not
take any action in accordance with the directions of
the Holders of the Trust Securities under this
paragraph 7(b) unless the Property Trustee has obtained
an opinion of independent tax counsel experienced in
such matters to the effect that for the purposes of
United States federal income tax law the Trust will not
be classified as other than a grantor trust on account
of such action.
8. Pro Rata.
A reference to any payment, distribution or treatment as
being "Pro Rata" shall mean pro rata to each Holder of Trust
Securities according to the aggregate liquidation amount of the
Trust Securities held by the relevant Holder in relation to the
aggregate liquidation amount of all Trust Securities outstanding
unless, in relation to a payment, an Event of Default under the
Indenture has occurred and is continuing, in which case any funds
available to make such payment shall be paid first to each Holder
of the Capital Securities pro rata according to the aggregate
liquidation amount of Capital Securities held by the relevant
Holder relative to the aggregate liquidation amount of all
Capital Securities outstanding, and only after satisfaction of
all amounts owed to the Holders of the Capital Securities, to
each Holder of Common Securities pro rata according to the
aggregate liquidation amount of Common Securities held by the
relevant Holder relative to the aggregate liquidation amount of
all Common Securities outstanding.
9. Ranking.
The Capital Securities rank pari passu and payment thereon
shall be made Pro Rata with the Common Securities except that,
where an Event of Default occurs and is continuing hereunder, the
rights of Holder(s) of the Common Securities to payment in
respect of Distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights to
payment of the Holders of the Capital Securities.
10. Acceptance of Trust Securities Guarantee and Indenture.
Each Holder of Capital Securities and Common Securities,
by the acceptance thereof, agrees to the provisions of the
Capital Securities Guarantee and the Common Securities Guarantee,
respectively, including the subordination provisions therein and
to the provisions of the Indenture.
11. No Preemptive Rights.
The Holders of the Trust Securities shall have no preemptive
rights to subscribe for any additional securities.
12. Miscellaneous.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the
Capital Securities Guarantee or the Common Securities Guarantee
(as may be appropriate), and the Indenture to a Holder without
charge on written request to the Trust at its principal place of
business.
ANNEX I
IF THE CAPITAL SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT
- - This Capital Security is a Global Certificate within the
meaning of the Declaration hereinafter referred to and is
registered in the name of The Depository Trust Company, a New
York Corporation (the "Depositary") or a nominee of the
Depositary. This Capital Security is exchangeable for Capital
Securities registered in the name of a person other than the
Depositary or its nominee only in the limited circumstances
described in the Declaration and no transfer of this Capital
Security (other than a transfer of this Capital Security as a
whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of
the Depositary) may be registered except in limited
circumstances.
Unless this Capital Security is presented by an authorized
representative of the Depositary to the Trust or its agent for
registration of transfer, exchange or payment, and any Capital
Security issued is registered in the name of Cede & Co. or such
other name as is requested by an authorized representative of the
Depositary and any payment hereon is made to Cede & Co. or such
other entity as is requested by an authorized representative of
the Depositary, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY A PERSON IS WRONGFUL since the registered
owner hereof, Cede & Co., has an interest herein.
Certificate Number Number of Capital Securities
CUSIP NO. _____________
Certificate Evidencing Capital Securities
of
GREAT WESTERN FINANCIAL TRUST II
Capital Securities
(liquidation amount $1,000 per Capital Security)
GREAT WESTERN FINANCIAL TRUST II, a statutory business trust
formed under the laws of the State of Delaware (the "Trust"),
hereby certifies that ___________________________ (the "Holder")
is the registered owner of capital securities of the Trust
representing undivided beneficial interests in the assets of the
Trust designated the 8.206% Capital Securities, Series A
(liquidation amount $1,000 per Capital Security) (the "Capital
Securities"). The Capital Securities are transferable on the
books and records of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the
Capital Securities represented hereby are issued and shall in all
respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of January 22, 1997,
as the same may be amended from time to time (the "Declaration"),
including the designation of the terms of the Capital Securities
as set forth in Exhibit A to the Declaration. Capitalized terms
used herein but not defined shall have the meaning given them in
the Declaration. The Holder is entitled to the benefits of the
Capital Securities Guarantee to the extent provided therein. The
Sponsor will provide a copy of the Declaration, the Capital
Securities Guarantee and the Indenture to a Holder without charge
upon written request to the Trust at its principal place of
business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat for United States
federal income tax purposes, the Notes as indebtedness and the
Capital Securities as evidence of indirect beneficial ownership
in the Notes.
IN WITNESS WHEREOF, the Trust has executed this certificate
this _____ day of January, 1997.
J. LANCE ERIKSON,
as Trustee
_____________________________
BRUCE F. ANTENBERG,
as Trustee
_____________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Capital Security Certificate to:
________________________________________________________________
________________________________________________________________
________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________
________________________________________________________________
________________________________________________________________
________________________________________________________________
(Insert address and zip code of assignee) and irrevocably
appoints
________________________________________________________________
________________________________________________________________
________________________________________________________________
agent to transfer this Capital Security Certificate on the books
of the Trust. The agent may substitute another to act for him or
her.
Date:________________________
Signature:__________________________________
(Sign exactly as your name appears on the other side of this
Capital Security Certificate)
Signature(s) must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Property Trustee,
which requirements include membership or participation in STAMP
or such other "signature guaranty program" as may be determined
by the Property Trustee in addition to or in substitution for
STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.
ANNEX II
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
GREAT WESTERN FINANCIAL TRUST II
Common Securities
(liquidation amount $1,000 per Common Security)
GREAT WESTERN FINANCIAL TRUST II, a statutory business
trust formed under the laws of the State of Delaware (the
"Trust"), hereby certifies that ____________ (the "Holder") is
the registered owner of common securities of the Trust
representing undivided beneficial interests in the assets of the
Trust designated the 8.206% Common Securities, Series A
(liquidation amount $1,000 per Common Security) (the "Common
Securities"). The Common Securities are transferable on the
books and records of the Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the
Common Securities represented hereby are issued and shall in all
respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of January 22, 1997,
as the same may be amended from time to time (the "Declaration"),
including the designation of the terms of the Common Securities
as set forth in Exhibit A to the Declaration. Capitalized terms
used herein but not defined shall have the meaning given them in
the Declaration.
The Holder is entitled to the benefits of the Common
Securities Guarantee to the extent provided therein. The Trust
will provide a copy of the Declaration, the Common Securities
Guarantee and the Indenture to the Holder without charge upon
written request to the Trust at its principal place of business.
Upon receipt of this certificate, the Sponsor is bound by
the Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat for United States
federal income tax purposes the Notes as indebtedness and the
Common Securities as evidence of indirect beneficial ownership
in the Notes.
IN WITNESS WHEREOF, the Trust has executed this certificate
this _____ day of January, 1997.
J. LANCE ERIKSON,
as Trustee
_____________________________
BRUCE F. ANTENBERG,
as Trustee
_____________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Common Security Certificate to:
________________________________________________________________
________________________________________________________________
________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________
________________________________________________________________
________________________________________________________________
(Insert address and zip code of assignee) and irrevocably
appoints
________________________________________________________________
________________________________________________________________
________________________________________________________________
agent to transfer this Common Security Certificate on the books
of the Trust. The agent may substitute another to act for him or
her.
Date:____________________
Signature:__________________________
(Sign exactly as your name appears on the other side of this
Common Security Certificate)
Signature(s) must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Property Trustee,
which requirements include membership or participation in STAMP
or such other "signature guaranty program" as may be determined
by the Property Trustee in addition to or in substitution for
STAMP, all in accordance with the Securities Exchange Act of
1934, as amended.