EXHIBIT 4.1
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GREAT WESTERN FINANCIAL CORPORATION
TO
XXXXXX TRUST AND SAVINGS BANK, as Trustee
____________________
SECOND SUPPLEMENTAL INDENTURE
dated as of December 6, 1995
____________________
8 1/4% Subordinated Deferrable
Interest Notes Due 2025
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Table of Contents
Page
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ARTICLE I
Definitions
Section 1.1. Definition of Terms................................. 2
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ARTICLE II
General Terms and Conditions of the Notes
Section 2.1. Designation and Principal Amount.................... 3
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Section 2.2. Maturity............................................ 3
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Section 2.3. Form and Payment.................................... 4
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Section 2.4. Global Note......................................... 5
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Section 2.5. Interest............................................ 6
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ARTICLE III
Redemption of the Notes
Section 3.1. Tax Event Redemption................................ 8
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Section 3.2. Regulatory Redemption Event......................... 8
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Section 3.3. Option Redemption by Company........................ 9
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Section 3.4. Clean Up Redemption by the Company.................. 9
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Section 3.5. Redemption Procedures............................... 9
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Section 3.6. No Sinking Fund..................................... 10
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ARTICLE IV
Extension of Interest Payment Period
Section 4.1. Extension of Interest Payment Period................ 10
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Section 4.2. Notice of Extension................................. 10
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ARTICLE V
Expenses
Section 5.1. Payment of Expenses................................. 11
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ARTICLE VI
Subordination
Section 6.1. Agreement to Subordinate............................ 12
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ARTICLE VII
CONVERSION OF NOTES
Section 7.1. Conversion Privilege................................ 12
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Section 7.2. Exercise of Retention Privilege..................... 12
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ARTICLE VIII
Covenants
Section 8.1. Listing on an Exchange.............................. 13
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Section 8.2. Notification of Regulatory Event.................... 13
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Section 8.3. Limitation on Dividends; Transactions with
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Affiliates.......................................... 13
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Section 8.4. Covenants as to the Trust........................... 14
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ARTICLE IX
Events of Default
Section 9.1. Events of Default................................... 14
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Section 9.2. Waiver of Past Defaults............................. 15
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ARTICLE X
Form of Note
Section 10.1. Form of Note........................................ 15
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ARTICLE XI
Original Issue of Notes
Section 11.1. Original Issue of Notes............................. 24
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ARTICLE XII
Miscellaneous
Section 12.1. Ratification of Indenture........................... 24
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Section 12.2. Trustee Not Responsible for Recitals................ 24
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Section 12.3. Governing Law....................................... 24
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Section 12.4. Separability........................................ 24
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Section 12.5. Counterparts........................................ 25
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Section 12.6. Acknowledgement of Rights of Holders
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of Preferred Securities............................. 25
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Section 12.7. Supplemental Indentures............................. 25
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SECOND SUPPLEMENTAL INDENTURE, dated as of December 6, 1995 (the "Second
Supplemental Indenture"), between Great Western Financial Corporation, a
Delaware corporation (the "Company"), Xxxxxx Trust and Savings Bank, as trustee
(the "Trustee") under the Indenture, dated as of September 12, 1990, as amended
and supplemented by the First Supplemental Indenture, dated as of April 30,
1993, between the Company and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the Trustee to
provide for the future issuance of the Company's unsecured and subordinated debt
securities to be issued from time to time in one or more series as might be
determined by the Company under the Indenture, in an unlimited aggregate
principal amount which may be authenticated and delivered as provided in the
Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a new series of its Securities to be known as
its "8 1/4% Subordinated Deferrable Interest Notes due 2025" (the "Notes"), the
form and substance of such Notes and the terms, provisions and conditions
thereof to be set forth as provided in the Indenture and this Second
Supplemental Indenture;
WHEREAS, Great Western Financial Trust I, a Delaware statutory business
trust (the "Trust"), has offered to the public $100 million aggregate
liquidation amount of its 8 1/4% Trust Originated Preferred Securities(SM) (the
"Preferred Securities"), representing undivided beneficial interests in the
assets of the Trust and proposes to invest the proceeds from such offering in
$100 million aggregate principal amount of the Notes; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this Second Supplemental Indenture and all requirements necessary to make this
Second Supplemental Indenture a valid instrument in accordance with its terms
and to make the Notes, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company have been
performed, and the execution and delivery of this Second Supplemental Indenture
has been duly authorized in all respects;
NOW THEREFORE, in consideration of the purchase and acceptance of the Notes
by the Holders thereof, and for the purpose of setting forth, as provided in the
Indenture, the form and substance of the Notes and the terms, provisions and
conditions thereof, the Company covenants and agrees with the Trustee as
follows:
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ARTICLE I
DEFINITIONS
Section 1.1. Definition of Terms.
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Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in this
Second Supplemental Indenture;
(b) a term defined anywhere in this Second Supplemental Indenture has the
same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of this
Second Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) for purposes of the Notes only, the following terms have the meanings
given to them in the Declaration notwithstanding a contrary definition
in the Indenture: (i) Business Day; (ii) Common Security; (iii)
Delaware Trustee; (iv) Depositary; (v) Dissolution Tax Opinion; (vi)
Ministerial Action; (vii) No Recognition Opinion; (viii) Preferred
Securities Guarantee; (ix) Property Trustee; (x) Purchase Agreement;
(xi) Redemption Tax Opinion; (xii) Regular Trustee; (xiii) Regulatory
Event; (xiv) Regulatory Redemption Event; (xv) Special Event; (xvi)
Trust Securities; and (xvii) Tax Event; and
(g) the following terms have the meanings given to them in this Section
1.1(g):
"Additional Interest" has the meaning given such term in Section 2.5(d).
"Compounded Interest" has the meaning given such term in Section 4.1.
"Coupon Rate" has the meaning given such term in Section 2.5(b).
"Deferred Interest" means Additional Interest and Compounded Interest.
"Declaration" means the Amended and Restated Declaration of Trust of the
Trust dated December 6, 1995.
"Depositary Shares" means the Depositary Shares of the Company, $25.00
liquidation preference per share, each representing a one-tenth interest in a
share of 8 1/4% Cumulative
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Preferred Stock of the Company, $250 liquidation preference per share (the
"Cumulative Preferred"). The rights and preferences of the Cumulative Preferred
are as established in the Certificate of Designations of Rights and Preferences
of Preferred Stock filed with the Secretary of State of the State of Delaware on
December 8, 1995.
"Dissolution Event" means that as a result of the occurrence and
continuation of a Special Event or as a result of a Regulatory Event, the Trust
is to be dissolved in accordance with the Declaration, and the Notes held by the
Property Trustee are to be distributed to the holders of the Trust Securities
issued by the Trust pro rata in accordance with the Declaration.
"Extended Maturity Date" means, if the Company elects to extend the
Maturity Date in accordance with Section 2.2(b), the date selected by the
Company which is after the Stated Maturity Date but before December 31, 2044.
"Extended Interest Payment Period" has the meaning given such term in
Section 4.1.
"Global Note" has the meaning given such term in Section 2.4(a)(i).
"Maturity Date" means the date on which the Notes mature and on which the
principal shall be due and payable together with all accrued and unpaid interest
thereon, including Deferred Interest, if any.
"Non Book-Entry Preferred Securities" has the meaning given such term in
Section 2.4(a)(ii).
"Redemption Price," for purposes of the Notes, has the meaning given such
term in Section 3.1(b).
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 2.1. Designation and Principal Amount.
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There is hereby authorized a series of Debt Securities designated the "8
1/4% Subordinated Deferrable Interest Notes due 2025", limited in aggregate
principal amount to $103,092,800, which amount shall be as set forth in any
written Company Order for the authentication and delivery of Notes pursuant to
Section 303 of the Indenture.
Section 2.2. Maturity.
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(a) The Maturity Date will be either:
(i) December 31, 2025; or
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(ii) if the Company elects to extend the Maturity Date beyond December
31, 2025 in accordance with Section 2.2(b), the Extended Maturity
Date;
(b) the Company may at any time before the day which is 90 days before
December 31, 2025, elect to extend the Maturity Date only once to the
Extended Maturity Date, provided that the following conditions in this
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Section 2.2(b) are satisfied both at the date the Company gives notice
in accordance with Section 2.2(c) of its election to extend the
Maturity Date and at December 31, 2025:
(i) the Company is not in bankruptcy or otherwise insolvent;
(ii) the Company is not in default on any Notes issued to the Trust or
any trustee of the Trust or to any trust or trustee of the Trust
in connection with the issuance of Trust Securities by the Trust;
(iii) the Company has made timely payments on the Notes for the
immediately preceding 18 months without deferrals;
(iv) the Trust is not in arrears on payments of Distributions on the
Trust Securities issued by it; and
(v) the Notes are rated in one of the four highest rating categories
by any one of Standard & Poor's Ratings Group, Xxxxx'x Investors
Service, Inc., Fitch Investor Services, Inc., Duff & Xxxxxx
Credit Rating Company or any other nationally recognized
statistical rating organization; and
(c) if the Company elects to extend the Maturity Date in accordance with
Section 2.2(b), the Company shall give notice to Holders of the Notes,
the Property Trustee, the Trust and the Trustee of the extension of
the Maturity Date and the Extended Maturity Date at least 90 days
before December 31, 2025.
Section 2.3. Form and Payment.
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Except as provided in Section 2.4, the Notes shall be issued as Registered
Debt Securities in fully registered certificated form without interest coupons.
So long as the Holder of any Notes is the Property Trustee, the payment of the
principal of and interest, including Deferred Interest, if any, on such Notes
held by the Property Trustee will be made at such place and to such account as
may be designated by the Property Trustee.
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Section 2.4. Global Note.
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(a) In connection with a Dissolution Event:
(i) the Notes in certificated form may be presented to the Trustee by
the Property Trustee in exchange for one or more global Notes in
an aggregate principal amount equal to all Outstanding Notes (a
"Global Note") to be registered in the name of the Depositary, or
its nominee, and delivered by the Trustee to or for the account
of the Depositary for crediting to the accounts of its
participants pursuant to the instructions of the Regular
Trustees. The Company upon any such presentation shall execute a
Global Note in such aggregate principal amount and deliver the
same to the Trustee for authentication and delivery in accordance
with the Indenture and this Second Supplemental Indenture.
Payments on the Notes issued as a Global Note will be made to the
Depositary; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Notes in certificated form may be
presented to the Trustee by the Property Trustee and any
Preferred Security Certificate which represents Preferred
Securities other than Preferred Securities held by the Depositary
or its nominee ("Non Book-Entry Preferred Securities") will be
deemed to represent beneficial interests in Notes presented to
the Trustee by the Property Trustee having an aggregate principal
amount equal to the aggregate liquidation amount of the Non Book-
Entry Preferred Securities until such Preferred Security
Certificates are presented to the Debt Securities Registrar for
transfer or reissuance at which time such Preferred Security
Certificates will be cancelled and a Note registered in the name
of the holder of the Preferred Security Certificate or the
transferee of the holder of such Preferred Security Certificate,
as the case may be, with an aggregate principal amount equal to
the aggregate liquidation amount of the Preferred Security
Certificate cancelled will be executed by the Company and
delivered to the Trustee for authentication and delivery in
accordance with the Indenture and this Second Supplemental
Indenture. On issue of such Notes, Notes with an equivalent
aggregate principal amount that were presented by the Property
Trustee to the Trustee will be deemed to have been cancelled.
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(b) A Global Note may be transferred, in whole but not in part only to
another nominee of the Depositary, or to a successor Depositary
selected or approved by the Company or to a nominee of such successor
Depositary.
(c) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or if at any time the
Depositary for such series shall no longer be registered or in good
standing under the Securities Exchange Act of 1934, as amended, or
other applicable statute or regulation, and a successor Depositary for
such series is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such condition, as
the case may be, the Company will execute, and, subject to the
Indenture, the Trustee will authenticate and deliver the Notes in
definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the
principal amount of the Global Note in exchange for such Global Note.
In addition, the Company may at any time determine that the Notes
shall no longer be represented by a Global Note. In such event, the
Company will execute and, subject to Article Two of the Indenture, the
Trustee will authenticate and deliver the Notes in definitive
registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the
Global Note in exchange for such Global Note. Upon the exchange of
the Global Note for such Notes in definitive registered form without
coupons, in authorized denominations, the Global Note shall be
cancelled by the Trustee. Such Notes in definitive registered form
issued in exchange for the Global Note shall be registered in such
names and in such authorized denominations as the Depositary, pursuant
to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Notes to
the Depositary for delivery to the Persons in whose names such Notes
are so registered.
Section 2.5. Interest.
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(a) Each Note will bear interest at the rate of 8 1/4% per annum (the
"Coupon Rate") from the original date of issuance until the principal
thereof becomes due and payable, and on any overdue principal and (to
the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the Coupon
Rate, compounded quarterly, payable (subject to the provisions of
Article Four of this Second Supplemental Indenture) quarterly in
arrears on March 31, June 30, September 30 and December 31 of each
year (each, an "Interest Payment Date",
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commencing on December 31, 1995), to the Person in whose name such
Note or any predecessor Note is registered, at the close of business
on the regular record date for such interest installment, which, in
respect of any Notes of which the Property Trustee is the Holder of or
a Global Note, shall be the close of business on the Business Day next
preceding that Interest Payment Date. Notwithstanding the foregoing
sentence, if the Preferred Securities are no longer in book-entry only
form or if pursuant to the Indenture the Notes are not represented by
a Global Note, the Company may select a regular record date for such
interest installment which shall be any date at least one Business Day
before an Interest Payment Date.
(b) Notwithstanding the foregoing, upon the occurrence of a Regulatory
Event, for a period of 90 days following written notice to the Trustee
of the occurrence of a Regulatory Event, the Company may elect to
reduce the annual interest rate on the Notes to 7 3/4% per annum,
effective for all periods on and after the date of distribution of the
Notes to holders of Preferred Securities pursuant to a Dissolution
Event; provided, however, that if the Company has elected to defer
payments of interest as set forth in Article IV, all deferred interest
payments and accrued interest thereon shall be paid before the
distribution of the Notes to holder of Preferred Securities. On and
after the effective date of such reduction, the term "Coupon Rate"
shall mean 7 3/4% per annum and all references to the Notes herein
shall be to Notes with the revised Coupon Rate for all periods on and
after the date of distribution of the Notes to holders of Preferred
Securities pursuant to a Dissolution Event.
(c) The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. Except as provided
in the following sentence, the amount of interest payable for any
period shorter than a full quarterly period for which interest is
computed, will be computed on the basis of the actual number of days
elapsed in such a 30-day month. In the event that any date on which
interest is payable on the Notes is not a Business Day, then payment
of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay), except that,
notwithstanding the provisions of Section 113 of the Indenture, 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.
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(d) If at any time while the Property Trustee is the Holder of any Notes,
the Trust or the Property Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed by the United States, or any other
taxing authority, then, in any case, the Company will pay as
additional interest ("Additional Interest") on the Notes held by the
Property Trustee, such additional amounts as shall be required so that
the net amounts received and retained by the Trust and the Property
Trustee after paying such taxes, duties, assessments or other
governmental charges will be equal to the amounts the Trust and the
Property Trustee would have received had no such taxes, duties,
assessments or other governmental charges been imposed.
ARTICLE III
REDEMPTION OF THE NOTES
Section 3.1. Tax Event Redemption.
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If a Tax Event has occurred and is continuing and:
(a) the Company has received a Redemption Tax Opinion; or
(b) the Regular Trustees shall have been informed by independent tax
counsel experienced in such matters that a No Recognition Opinion
cannot be delivered to the Trust, then the Company shall have the
right upon not less than 30 days nor more than 60 days notice to the
Holders of the Notes to redeem the Notes in whole or in part for cash
within 90 days following the occurrence of such Tax Event (the
"90-Day Period"), provided that, if at the time there is available
to the Company the opportunity to eliminate, within the 90-Day
Period, the Tax Event by taking some Ministerial Action, the Company
shall pursue such Ministerial Action in lieu of redemption, and
provided, further, that the Company shall have no right to redeem the
Notes while the Trust is pursuing any Ministerial Action pursuant to
its obligations under the Declaration. A redemption price equal to
100% of the principal amount of the Notes redeemed plus any accrued
and unpaid interest thereon to the date of redemption plus Additional
and Compounded Interest, if any (the "Redemption Price"), shall be
paid.
Section 3.2. Regulatory Redemption Event.
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If a Regulatory Redemption Event has occurred, for a period of 90 days
following written notice to the Trustee of the
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occurrence of a Regulatory Redemption Event, the Company shall have the right to
redeem the Notes, in whole or in part, at the Redemption Price. Any redemption
pursuant to this paragraph will be made upon not less than 30 nor more than 60
days' notice to the Holder of the Notes, at the Redemption Price.
Section 3.3. Optional Redemption by Company.
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Subject to the provisions of Section 3.5(b) and to the provisions of
Article Eleven of the Indenture, except as otherwise may be specified in this
Second Supplemental Indenture, the Company shall have the right to redeem the
Notes, in whole or in part, from time to time, on or after December 31, 2000, at
the Redemption Price.
Section 3.4. Clean Up Redemption by the Company.
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If (i) a Regulatory Event has occurred and Notes with a reduced Coupon Rate
have been distributed to holders of Preferred Securities as contemplated by
Section 2.5(b) hereof and (ii) immediately after such distribution $10 million
or less of aggregate principal amount of Notes remain outstanding, the Company
shall have the right to redeem the Notes in whole at the Redemption Price at any
time during the period from the Interest Payment Date on which such Notes were
distributed to holders of Preferred Securities to and including the next
succeeding Interest Payment Date.
Section 3.5. Redemption Procedures.
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(a) Any redemption pursuant to this Article III will be made upon not less
than 30 nor more than 60 days' notice to the Holder of the Notes at
the Redemption Price. If the Notes are only partially redeemed, the
Notes will be redeemed pro rata or by lot or by any other method
utilized by the Trustee; provided that, if at the time of redemption
the Notes are registered as a Global Note, the Depositary shall
determine by lot the principal amount of such Notes held by each
Holder of Notes to be redeemed. The Redemption Price shall be paid
prior to 12:00 noon, New York time, on the date of such redemption or
at such earlier time as the Company determines provided that the
Company shall deposit with the Trustee an amount sufficient to pay the
Redemption Price by 10:00 a.m. on the date such Redemption Price is to
be paid.
(b) If a partial redemption of the Notes would result in the delisting of
the Preferred Securities issued by the Trust from any national
securities exchange or other organization on which the Preferred
Securities are then listed, the Company shall not be permitted to
effect such partial redemption and may only redeem the Notes in whole.
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Section 3.6. No Sinking Fund.
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The Notes are not entitled to the benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
Section 4.1. Extension of Interest Payment Period.
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The Company shall have the right, at any time during the term of the Notes,
from time to time, to defer payments of interest by extending the interest
payment period of such Notes for up to 20 consecutive quarters (the "Extended
Interest Payment Period"). To the extent permitted by applicable law, interest,
the payment of which has been deferred because of the extension of the interest
payment period pursuant to this Section 4.1, will bear interest thereon at the
Coupon Rate compounded quarterly for each quarter of the Extended Interest
Payment Period ("Compounded Interest"). At the end of the Extended Interest
Payment Period the Company shall pay all interest accrued and unpaid on the
Notes, including any Deferred Interest that shall be payable, to the Holders of
the Notes in whose names the Notes are registered in the Security Register on
the first record date after the end of the Extended Interest Payment Period.
Before the termination of any Extended Interest Payment Period, the Company may
further extend such period, provided that such period together with all such
further extensions thereof shall not exceed 20 consecutive quarters. Upon the
termination of any Extended Interest Payment Period and upon the payment of all
Deferred Interest then due, the Company may commence a new Extended Interest
Payment Period as if no Extended Interest Payment Period had previously been
declared, subject to the foregoing requirements. No interest shall be due and
payable during an Extended Interest Payment Period, except at the end thereof.
Section 4.2. Notice of Extension.
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(a) If the Property Trustee is the only registered Holder of the Notes at
the time the Company selects an Extended Interest Payment Period, the
Company shall give written notice to the Regular Trustees, the
Property Trustee and the Trustee of its selection of such Extended
Interest Payment Period one Business Day before the earlier of (a) the
next succeeding date on which Distributions on the Trust Securities
issued by the Trust are payable, or (b) the date the Trust is required
to give notice of the record date or the date such Distributions are
payable to the New York Stock Exchange or other applicable self-
regulatory organization or to holders of the Preferred Securities
issued by the Trust, but in any event at least one Business Day before
such record date.
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(b) If the Property Trustee is not the only Holder of the Notes at the
time the Company selects an Extended Interest Payment Period, the
Company shall give the Holders of the Notes and the Trustee written
notice of its selection of such Extended Interest Payment Period 10
Business Days before the earlier of (i) the next succeeding Interest
Payment Date, or (ii) the date the Company is required to give notice
of the record or payment date of such interest payment to the New York
Stock Exchange or other applicable self-regulatory organization or to
Holders of the Notes.
(c) The quarter in which any notice is given pursuant to paragraphs (a) or
(b) of this Section 4.2 shall be counted as one of the 20 quarters
permitted in the maximum Extended Interest Payment Period permitted
under Section 4.1.
ARTICLE V
EXPENSES
Section 5.1. Payment of Expenses.
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In connection with the offering, sale and issuance of the Notes to the
Property Trustee in connection with the sale of the Trust Securities by the
Trust, and in connection with the maintenance of the Trust for so long as the
Trust Securities are outstanding, the Company, in its capacity as borrower
with respect to the Notes, shall:
(a) pay all costs and expenses relating to the offering, sale and issuance
of the Notes, including commissions to the underwriters payable
pursuant to the Purchase Agreement and compensation of the Trustee
under the Indenture in accordance with the provisions of Section 607
of the Indenture;
(b) pay all debts and obligations of the Trust (other than with respect to
the Trust Securities) and all costs and expenses of the Trust
(including, but not limited to, costs and expenses relating to the
organization of the Trust, the offering, sale and issuance of the
Trust Securities (including commissions to the underwriters in
connection therewith), the fees and expenses of the Regular Trustees,
the Property Trustee and the Delaware Trustee, the costs and expenses
relating to the operation of the Trust, including without limitation,
costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses of printing and engraving and computing
or accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses
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incurred in connection with the acquisition, financing, and
disposition of Trust assets);
(c) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) and all liabilities, costs
and expenses with respect to such taxes of the Trust; and
(d) pay any and all fees and expenses related to the enforcement by the
Property Trustee of the rights of the holders of the Preferred
Securities.
ARTICLE VI
SUBORDINATION
Section 6.1. Agreement to Subordinate.
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The Company covenants and agrees, and each Holder of Notes issued hereunder
by such Holder's acceptance thereof likewise covenants and agrees, that all
Notes shall be issued subject to the provisions of Article THIRTEEN of the
Indenture; and each Holder of a Note, whether upon original issue or upon
transfer or assignment thereof, accepts and agrees to be bound by such
provisions.
ARTICLE VII
CONVERSION OF NOTES
Section 7.1. Conversion Privilege.
--------------------
If the Company has elected to adjust the annual interest rate on the Notes
as provided in Section 2.5(b), then on the next Interest Payment Date which is
at least 30 days after notice to the holders of Trust Securities of the
Company's election to adjust the annual interest rate on the Notes as a result
of a Regulatory Event, each Note shall be converted into Depositary Shares with
a liquidation preference equal to the principal amount of the Notes converted,
plus, in cash, any accrued but unpaid interest on the Notes to the date of
conversion, unless prior to such conversion the holder of the Trust Securities
elects not to convert such Note (the "Retention Privilege"), in which event such
holder shall be entitled to receive the Note.
Section 7.2. Exercise of Retention Privilege.
-------------------------------
In order to exercise the Retention Privilege, if available, the Holder of
any Note or right to receive any Note shall surrender Preferred Securities, duly
endorsed or assigned to the Company or in blank, with a liquidation preference
equal to the principal amount of Notes to be retained, accompanied by written
notice to the Company and delivered to any office or agency of the Company
maintained for that purpose, or if less than the
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entire principal amount of Notes to which such holder is entitled is to be
retained, the portion thereof to be retained.
Notes shall be deemed to be converted as of the date Notes are otherwise
distributed to holders of Preferred Securities pursuant to a Dissolution Event
as a result of a Regulatory Event, and at such time the rights of such Holder to
Notes shall cease, and the Person or Persons entitled to receive the Depositary
Shares issuable upon conversion shall be treated for all purposes as the record
holder or holders of such Depositary Shares at such time.
In the case of any Note converted in part only, upon such conversion the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder thereof, at the expense of the Company, a new Note of authorized
denominations in aggregate principal amount to the unconverted portion of the
principal amount of such Note.
ARTICLE VIII
COVENANTS
Section 8.1. Listing on an Exchange.
----------------------
If the Notes are to be issued as a Global Note in connection with the
distribution of the Notes to the holders of the Preferred Securities issued by
the Trust upon a Dissolution Event and/or Depositary Shares are issued upon
conversion as provided in Article VII, the Company will use its best efforts to
list such Notes or Depositary Shares, as the case may be, on the New York Stock
Exchange or on such other exchange as the Preferred Securities are then listed.
Section 8.2. Notification of Regulatory Event.
--------------------------------
The Company shall promptly notify the Regular Trustees and the Trustee of
the occurrence of a Regulatory Event.
Section 8.3. Limitation on Dividends; Transactions with Affiliates.
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(a) If Notes are issued to the Trust or a trustee of the Trust and
(i) there shall have occurred any event that would constitute an Event of
Default or (ii) the Company shall be in default with respect of its payment
of any obligations under the Preferred Securities Guarantee, then (A) the
Company shall not, and shall cause any subsidiary of the Company that is
not a wholly owned subsidiary of the Company not to, declare or pay any
dividend on, make any distributions with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of its capital
stock or the capital stock of any such subsidiary, and (B) the Company
shall not make any payment
13
of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities (including guarantees) issued by the Company
which rank pari passu with or junior to the Notes, provided that the
foregoing restriction in clause (A) does not apply to any stock dividends
paid by the Company, or any of its subsidiaries, where the dividend stock
is the same stock as that on which the dividend is being paid.
(b) If Notes are issued to the Trust or a trustee of the Trust and
the Company shall have given notice of its election to defer payments of
interest on the Notes by extending the interest payment period as provided
in Article IV hereof and such period, or any extension thereof, shall be
continuing, then (A) the Company shall not, and shall cause any subsidiary
of the Company that is not a wholly owned subsidiary of the Company not to,
declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to,
any of its capital stock or the capital stock of any such subsidiary, and
(B) the Company shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees) issued by the Company which rank pari passu with or
junior to the Notes, provided that the foregoing restriction in clause (A)
does not apply to any stock dividends paid by the Company, or any of its
subsidiaries, where the dividend stock is the same as that on which the
dividend is being paid.
Section 8.4. Covenants as to the Trust.
-------------------------
For so long as such Trust Securities remain outstanding, the Company
will (i) maintain 100% direct or indirect ownership of the Common Securities of
the Trust; provided, however, that any permitted successor of the Company under
the Indenture may succeed to the Company's ownership of the Common Securities,
and (ii) use its reasonable efforts to cause the Trust (A) to remain a statutory
business trust, except in connection with a distribution of Notes as provided in
the Declaration, the redemption of all of the Trust Securities or certain
mergers, consolidations or amalgamations permitted by the Declaration, and (B)
otherwise continue to be treated as a grantor trust for United States federal
income tax purposes.
ARTICLE IX
EVENTS OF DEFAULT
Section 9.1. Events of Default.
-----------------
For the Notes only, a valid extension of the interest payment period in
accordance with Article IV hereof shall not
14
constitute a Default or Event of Default under Section 501(1) or (8) of the
Indenture.
For the Notes only, the voluntary or involuntary dissolution, winding-up or
termination of the Trust, except in connection with the distribution of the
Notes to the holders of the Trust Securities in liquidation of the Trust, the
redemption of all the Trust Securities, or mergers, consolidations or
amalgamations, each as permitted by the Declaration, shall constitute an Event
of Default.
Section 9.2. Waiver of Past Defaults.
-----------------------
For the Notes only, any waiver pursuant to Section 513 of the Indenture or
any modification of such a waiver shall not be effective until the holders of a
majority in liquidation preference of Trust Securities shall have consented to
such waiver or modification to such waiver; provided, however, that if the
consent of the Holder of each Outstanding Debt Security is required, such waiver
shall not be effective until each holder of the Trust Securities shall have
consented to such waiver.
ARTICLE X
FORM OF NOTE
Section 10.1. Form of Note.
------------
The Notes and the Trustee's Certificate of Authentication to be endorsed
thereon are to be substantially in the following forms:
(FORM OF FACE OF NOTE)
(IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT - This Note is a Global Note
within the meaning of the Indenture hereinafter referred to and is registered in
the name of a Depositary or a nominee of a Depositary. This Note is
exchangeable for Global Notes registered in the name of a person other than the
Depositary or its nominee only in the limited circumstances described in the
Indenture, and no transfer of this Note (other than a transfer of this Note 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. Every Note delivered upon
registration of transfer of, or in exchange for, or in lieu of, this Global
Security shall be a Global Security, subject to the foregoing, except in the
limited circumstances described above.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC") to the issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is
15
registered in the name of Cede & Co. or in such other name as requested by an
authorized representative of DTC (or to such other entity as is requested by an
authorized representative of DTC) and any payment is made to Cede & Co. (or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.)
No. __________________
$_____________
CUSIP No.__________________
8 1/4% SUBORDINATE DEFERRABLE INTEREST NOTE
DUE 2025
Great Western Financial Corporation, a Delaware corporation (the
"Company"), which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_______________, or registered assigns, the principal sum of ______________
Dollars on December 31, 2025, (or on such later date before December 31, 2044,
if the Company elects to extend the maturity date as further described herein),
and to pay interest on said principal sum from December 11, 1995, or from the
most recent interest payment date (each such date, an "Interest Payment Date")
to which interest has been paid or duly provided for, quarterly (subject to
deferral as set forth herein) in arrears on March 31, June 30, September 30 and
December 31 of each year commencing December 31, 1995, at the rate of 8 1/4% per
annum (or at 7 3/4% per annum if the Company elects to reduce the interest rate
per annum as further described herein) until the principal hereof shall have
become due and payable, and on any overdue principal and premium, if any, and
(without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
same rate per annum compounded quarterly. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day year of twelve
30-day months. In the event that any date on which interest is payable on this
Note is not a Business Day, then payment of interest 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. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Note (or one
or more Predecessor Notes, as defined in said Indenture) is registered at the
close of business on the regular record date for such interest installment,
which shall be the close of business on the Business Day next preceding such
Interest Payment Date. [IF
16
PURSUANT TO THE PROVISIONS OF THE INDENTURE THE NOTES ARE NO LONGER REPRESENTED
BY A GLOBAL NOTE -- which shall be the close of business of the ____ Business
Day next preceding such Interest Payment Date.] Any such interest installment
not punctually paid or duly provided for shall forthwith cease to be payable to
the registered Holders on such regular record date and may be paid to the Person
in whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on a special record date to be fixed by the Trustee for the
payment of such defaulted interest, notice whereof shall be given to the
registered Holders of this series of Notes not less than 10 days prior to such
special record date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture. The principal of (and premium, if any)
and the interest on this Note shall be payable at the office or agency of the
Trustee maintained for that purpose in any coin or currency of the United States
of America that at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the registered Holder at such address
as shall appear in the Security Register. Notwithstanding the foregoing, so
long as the Holder of this Note is the Property Trustee, the payment of the
principal of (and premium, if any) and interest on this Note will be made at
such place and to such account as may be designated by the Property Trustee.
The indebtedness evidenced by this Note is, to the extent provided in the
Indenture, subordinate and junior in right of payment to the prior payment in
full of all Senior Indebtedness, and this Note is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Note, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
so provided and (c) appoints the Trustee his or her attorney-in-fact for any and
all such purposes. Each Holder hereof, by his or her acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
Unless the Certificate of Authentication hereon has been executed by the
Trustee referred to on the reverse side hereof,
17
this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
The provisions of this Note are continued on the reverse side hereof and
such continued provisions shall for all purposes have the same effect as though
fully set forth at this place.
18
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated___________________
GREAT WESTERN FINANCIAL CORPORATION
By________________________________
{ }
Attest:
By__________________________
Secretary
19
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in the within-
mentioned Indenture.
XXXXXX TRUST AND SAVINGS BANK,
as Trustee
XXXXXX TRUST AND SAVINGS BANK, _________________________
as Trustee or as Authentication Agent
By________________________ By_______________________
Authorized Signatory Authorized Signatory
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of Notes of the Company
(herein sometimes referred to as the "Notes"), specified in the Indenture, all
issued or to be issued in one or more series under and pursuant to an Indenture
dated as of September 12, 1990, as amended and supplemented by a First
Supplemental Indenture dated as of April 30, 1993 and a Second Supplemental
Indenture dated as of December 6, 1995, duly executed and delivered between the
Company and Xxxxxx Trust and Savings Bank, as Trustee (the "Trustee") (the
Indenture as so supplemented, the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the Holders of the Notes. By the terms of the
Indenture, the Notes are issuable in series that may vary as to amount, date of
maturity, rate of interest and in other respects as provided in the Indenture.
This series of Notes is limited in aggregate principal amount as specified in
said Second Supplemental Indenture.
The Company shall have the right to redeem this Note at the option of the
Company, without premium or penalty, in whole or in part at any time on or after
December 31, 2000 (a "Optional Redemption") or at any time in certain
circumstances upon the occurrence of a Tax Event, or in whole for a limited time
as further described below, at the Company's election upon the occurrence of a
Regulatory Redemption Event, at a redemption price equal to 100% of the
principal amount plus any accrued but
20
unpaid interest, to the date of such redemption (the "Redemption Price"). Any
redemption pursuant to this paragraph will be made upon not less than 30 nor
more than 60 days' notice, at the Redemption Price. If the Notes are only
partially redeemed by the Company pursuant to an Optional Redemption, the Notes
will be redeemed pro rata or by lot or by any other method utilized by the
Trustee; provided that if, at the time of redemption, the Notes are registered
as a Global Note, the Depositary shall determine by lot the principal amount of
such Notes held by each Holder of Notes to be redeemed.
Upon the occurrence of a Regulatory Event, the Company may elect to reduce
the interest rate per annum on this Note by 50 basis points, effective for all
periods on and after the date of distribution of this Note to holders of Trust
Securities; provided, however, that if the Company has elected to defer payments
of interest as set forth below, all deferred interest payments and accrued
interest thereon shall be paid before the distribution of this Note to holders
of Preferred Securities. If the interest rate per annum on this Note is reduced,
on the date of the next Interest Payment Date which is at least 30 days after
notice to the holders of Trust Securities of the Company's election to reduce
the interest rate per annum on the Notes, this Note shall be converted into
Depositary Shares of the Company with a liquidation preference equal to the
principal amount of this Note, plus in cash any accrued but unpaid interest on
this Note to the date of conversion, unless prior to such conversion the holder
of this Note elects not to convert this Note, in whole or in part, in which
event such holder shall be entitled to receive this Note or a new Note with a
principal amount equal to the portion of this Note not converted. Depositary
Shares have a liquidation preference of $25 per share, each representing a one-
tenth interest in a share of 8 1/4% Cumulative Preferred Stock of the Company,
$250 liquidation preference per share.
In the event of a redemption or conversion of this Note in part only, a new
Note for the unredeemed or unconverted portion thereof will be issued in the
name of the Holder hereof upon cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Notes may be declared,
and upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Notes of each series affected at the time outstanding,
as defined in the Indenture, to execute supplemental indentures for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Holders
21
of the Notes; provided, however, that no such supplemental indenture shall (i)
-------- -------
extend the fixed maturity of any Notes of any series, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof, without the
consent of the Holder of each Note so affected, or (ii) reduce the aforesaid
percentage of Notes, the Holders of which are required to consent to any such
supplemental indenture, without the consent of the Holders of each Note then
outstanding and affected thereby. The Indenture also contains provisions
permitting the Holders of a majority in aggregate principal amount of the Notes
of any series at the time outstanding affected thereby, on behalf of all of the
Holders of the Notes of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture with respect to such series, and its consequences,
except a default in the payment of the principal of or premium, if any, or
interest on any of the Notes of such series. Any such consent or waiver by the
registered Holder of this Note (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders and
owners of this Note and of any Note issued in exchange herefor or in place
hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the time and place and at the rate and in the money
herein prescribed.
The Company shall have the right at any time during the term of the Notes
from time to time to extend the interest payment period of such Notes to up to
20 consecutive quarters (an "Extended Interest Payment Period"), at the end of
which period the Company shall pay all interest then accrued and unpaid
(together with interest thereon at the rate specified for the Notes to the
extent that payment of such interest is enforceable under applicable law).
Before the termination of any such Extended Interest Payment Period, the Company
may further extend such Extended Interest Payment Period, provided that such
Extended Interest Payment Period together with all such further extensions
thereof shall not exceed 20 consecutive quarters. At the termination of any such
Extended Interest Payment Period and upon the payment of all accrued and unpaid
interest and any additional amounts then due, the Company may commence a new
Extended Interest Payment Period.
As provided in the Indenture and subject to certain limitations therein set
forth, this Note is transferable by the registered Holder hereof on the Security
Register of the Company, upon surrender of this Note for registration of
transfer at the
22
office or agency of the Company in the City and State of New York accompanied by
a written instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the registered Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Notes of
authorized denominations and for the same aggregate principal amount and series
will be issued to the designated transferee or transferees. No service charge
will be made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any paying agent and any Security Registrar may deem and
treat the registered Holder hereof as the absolute owner hereof (whether or not
this Note shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Security Registrar) for the purpose
of receiving payment of or on account of the principal hereof and premium, if
any, and interest due hereon and for all other purposes, and neither the Company
nor the Trustee nor any paying agent nor any Security Registrar shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
The notes of this series are issuable only in registered form without
coupons in denominations of $25 and any integral multiple thereof. This Global
Note is exchangeable for Notes in definitive form only under certain limited
circumstances set forth in the Indenture. Notes of this series so issued are
issuable only in registered form without coupons in denominations of $25 and any
integral multiple thereof as provided in the Indenture and subject to certain
limitations herein and therein set forth. Notes of this series so issued are
exchangeable for a like aggregate principal amount of Notes of this series of a
different authorized denomination, as requested by the Holder surrendering the
same.
All terms used in this Note that are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
23
ARTICLE XI
ORIGINAL ISSUE OF NOTES
Section 11.1. Original Issue of Notes.
-----------------------
Notes in the aggregate principal amount of $103,092,800 may, upon execution
of this Second Supplemental Indenture, be executed by the Company and delivered
to the Trustee for authentication, and the Trustee shall thereupon authenticate
and deliver said Notes to or upon the written order of the Company, signed by
its Chairman of the Board, its President, or one of its Vice Presidents and
attested to by its Secretary or one of its Assistant Secretaries, without any
further action by the Company.
ARTICLE XII
MISCELLANEOUS
Section 12.1. Ratification of Indenture.
-------------------------
The Indenture, as supplemented by this Second Supplemental Indenture, is in
all respects ratified and confirmed, and this Second Supplemental Indenture
shall be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
Section 12.2. Trustee Not Responsible for Recitals.
------------------------------------
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
Second Supplemental Indenture.
Section 12.3. Governing Law.
-------------
This Second Supplemental Indenture and each Note shall be deemed to be a
contract made under the internal laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said State.
Section 12.4. Separability.
------------
In case any one or more of the provisions contained in this Second
Supplemental Indenture or in the Notes shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Second
Supplemental Indenture or of the Notes, but this Second Supplemental Indenture
and the Notes shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
24
Section 12.5. Counterparts.
------------
This Second Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
Section 12.6. Acknowledgment of Rights of Holders of Preferred Securities.
-----------------------------------------------------------
The Company acknowledges that the holders of the Preferred Securities are
each entitled to enforce and exercise the rights and remedies under the
Indenture to the extent set forth in Section 5(b) of Exhibit A to the
Declaration.
Section 12.7. Supplemental Indentures.
-----------------------
For the Notes only, any supplemental indenture referred to in Section 902
of the Indenture shall not be effective until the holders of a majority in
liquidation preference of Trust Securities shall have consented to such
supplemental indenture; provided, however, that if the consent of the Holder of
each Outstanding Debt Security is required, such supplemental indenture shall
not be effective until each holder of the Trust Securities shall have consented
to such supplemental indenture.
25
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, on the date or dates indicated in the
acknowledgements and as of the day and year first above written.
GREAT WESTERN FINANCIAL CORPORATION
By /s/ Xxxxx X. Xxxxxxxxx
Attest:
/s/ J. Xxxxx Xxxxxxx
Secretary
XXXXXX TRUST AND SAVINGS BANK,
as Trustee
By /s/ Xxxxx X. Xxxxxx
Attest:
/s/ X.X. Xxxxxxx
Assistant Secretary
26
