Exhibit 4.13
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GREAT WESTERN FINANCIAL CORPORATION
TO
XXXXXX TRUST AND SAVINGS BANK, as Trustee
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THIRD SUPPLEMENTAL INDENTURE
dated as of January __, 1997
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__% Subordinated Deferrable
Interest Notes Due 2027
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TABLE OF CONTENTS
ARTICLE I
Definitions . . . . . . . . . . . . . . 2
Section 1.1. Definition of Terms . . . . . . . . . . . . . . . . . . . . 2
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ARTICLE II
General Terms and Conditions of the Notes . . . . . . 5
Section 2.1. Designation and Principal Amount . . . . . . . . . . . . . 5
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Section 2.2. Maturity . . . . . . . . . . . . . . . . . . . . . . . . . 5
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Section 2.3. Form and Payment . . . . . . . . . . . . . . . . . . . . . 6
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Section 2.4. Global Note . . . . . . . . . . . . . . . . . . . . . . . 6
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Section 2.5. Interest . . . . . . . . . . . . . . . . . . . . . . . . . 8
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ARTICLE III
Redemption of the Notes . . . . . . . . . . . 9
Section 3.1. Tax Event Redemption . . . . . . . . . . . . . . . . . . . 9
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Section 3.2. Optional Redemption by Company . . . . . . . . . . . . . . 9
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Section 3.3. Redemption Procedures . . . . . . . . . . . . . . . . . . 10
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Section 3.4. No Sinking Fund . . . . . . . . . . . . . . . . . . . . . 10
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ARTICLE IV
Extension of Interest Payment Period . . . . . . . . 10
Section 4.1. Extension of Interest Payment Period . . . . . . . . . . . 10
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Section 4.2. Notice of Extension . . . . . . . . . . . . . . . . . . . 11
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ARTICLE V
Expenses . . . . . . . . . . . . . . 11
Section 5.1. Payment of Expenses . . . . . . . . . . . . . . . . . . . 11
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ARTICLE VI
Subordination . . . . . . . . . . . . . 12
Section 6.1. Agreement to Subordinate . . . . . . . . . . . . . . . . . 12
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ARTICLE VII
Covenants . . . . . . . . . . . . . . . 12
Section 7.1. Limitation on Dividends; Transactions with Affiliates . . . 12
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Section 7.2. Covenants as to the Trust . . . . . . . . . . . . . . . . . 13
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ARTICLE VIII
Events of Default . . . . . . . . . . . . 14
Section 8.1. Events of Default . . . . . . . . . . . . . . . . . . . . . 14
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Section 8.2. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . 14
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ARTICLE IX
Form of Note . . . . . . . . . . . . . . 14
Section 9.1. Form of Note . . . . . . . . . . . . . . . . . . . . . . . 14
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ARTICLE X
Original Issue of Notes . . . . . . . . . . . 20
Section 10.1. Original Issue of Notes . . . . . . . . . . . . . . . . . . 20
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ARTICLE XI
Miscellaneous . . . . . . . . . . . . . 21
Section 11.1. Ratification of Indenture . . . . . . . . . . . . . . . . . 21
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Section 11.2. Trustee Not Responsible for Recitals . . . . . . . . . . . 21
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Section 11.3. Governing Law . . . . . . . . . . . . . . . . . . . . . . . 21
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Section 11.4. Separability . . . . . . . . . . . . . . . . . . . . . . . 21
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Section 11.5. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 21
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Section 11.6. Acknowledgement of Rights of Holders of Capital Securities 21
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Section 11.7. Supplemental Indentures . . . . . . . . . . . . . . . . . . 22
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THIRD SUPPLEMENTAL INDENTURE, dated as of January __, 1997 (the "Third
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, and the Second Supplemental Indenture, dated as of December 6, 1995,
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 "__% Subordinated Deferrable Interest Notes due 2027" (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 Third Supplemental
Indenture;
WHEREAS, Great Western Financial Trust II, a Delaware statutory business
trust (the "Trust"), has offered to the public $165 million aggregate
liquidation amount of its __% Capital Securities, Series A (the "Capital
Securities"), representing undivided beneficial interests in the assets of the
Trust and proposes to invest the proceeds from such offering in $165 million
aggregate principal amount of the Notes; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this Third Supplemental Indenture and all requirements necessary to make this
Third 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 Third 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
Third Supplemental Indenture;
(b) a term defined anywhere in this Third 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
Third 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) Capital Securities
Guarantee; (iii) Common Security; (iv) Delaware Trustee; (v)
Depositary; (vi) Dissolution Tax Opinion; (vii) Ministerial Action;
(viii) No Recognition Opinion; (ix) Property Trustee; (x) Redemption
Tax Opinion; (xi) Regular Trustee; (xii) Special Event; (xiii) Trust
Securities; (xiv) Tax Event; (xv) Underwriting Agreement; 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(c).
"Adjusted Treasury Rate" means, with respect to any redemption date, the
Treasury Rate plus (i) ___% if such redemption date occurs on or before
__________, 1998, or (ii) ___% if such Redemption Date occurs after 1998.
"Calculation Date" means the third Business Day preceding a redemption
date.
"Capital Treatment Event" means that the Company (or its successor) is,
becomes or pursuant to law or regulation will become within 180 days, subject to
the capital requirements under which all or a portion of the Capital Securities
would not constitute Tier 1 Capital applied as if the Company (or its successor)
were a bank holding company (as that concept is used in the guidelines or
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regulations issued by the Board of Governors of the Federal Reserve System as of
__________, 1977 or its then equivalent).
"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 __________, 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 Trustee obtains fewer than five such Reference
Treasury Dealer Quotations, the average of all such quotations.
"Compounded Interest" has the meaning given such term in Section 4.1.
"Coupon Rate" has the meaning given such term in Section 2.5(a).
"Deferred Interest" means Additional Interest and Compounded Interest.
"Declaration" means the Amended and Restated Declaration of Trust of the
Trust dated January __, 1997.
"Dissolution Event" means that as a result of the occurrence and
continuation of a Special 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 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).
"Make-Whole Amount" means, with respect to any redemption date, an amount
equal to the greater of (a) 100% of the principal amount of the Notes or (b) as
determined by the Quotation Agent,
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the sum of the present values of the principal amount and premium payable as
part of the Redemption Price with respect to the redemption of the Notes
following a Tax Event or Capital Treatment Event on __________, 2007, together
with the present values of the scheduled payments of interest for the Remaining
Life, in each case discounted to the redemption date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Adjusted
Treasury Rate.
"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 Capital Securities" has the meaning given such term in
Section 2.4(a)(ii).
"Primary Treasury Dealer" means a primary U.S. Government securities dealer
in The City of New York.
"Quotation Agent" means Xxxxxxx, Xxxxx & Co. and its successors; provided,
however, that if the foregoing shall cease to be a Primary Treasury Dealer, the
Company shall substitute therefore another Primary Treasury Dealer.
"Redemption Price" means, in the case of any redemption permitted hereunder
on or after __________, 2007, a price equal to the following prices, expressed
in percentages of the principal amount, plus any accrued and unpaid interest,
including any Compound Interest and Additional Interest, to the date fixed for
redemption. If redeemed during the 12-month period beginning __________:
Year Redemption Price
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2007 %
2008 %
2009 %
2010 %
2011 %
2012 %
2013 %
2014 %
2015 %
2016 %
and at 100% on or after __________, 2017. Redemption Price means in the case of
a redemption permitted hereunder prior to __________, 2007 a price equal to the
Make-Whole Amount, plus any accrued interest, including any Compound Interest
and Additional Interest, to the date fixed for redemption.
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"Reference Treasurer Dealer" means (a) the Quotations Agent and (b) any
other Primary Treasury Dealer selected by the Trustee after consultation with
the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the 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 Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the Calculation Date.
"Remaining Life" means the period from the redemption date until
__________, 2007.
"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.
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 "__%
Subordinated Deferrable Interest Notes due __________, 2027", limited in
aggregate principal amount to $___________, 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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The Maturity Date will be:
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(a) March 31, 2027; or
(b) if a Tax Event occurs which relates to the deductibility of interest
payable to the Company on the Notes, and if the Redemption Tax Opinion
states that the risk of non-deductibility would be avoided if the
maturity of the Notes were shortened, then such date as specified by
the Company by written notice to the Trustee within ___ days after
receipt of the Redemption Tax Opinion, but in no event may the Company
shorten the date of maturity of the Notes to a date less than 19-1/2
years after the date of initial issuance of the Notes.
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.
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 Third Supplemental Indenture.
Payments on the Notes issued as a Global Note will be made to the
Depositary; and
(ii) if any Capital 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 Capital Security
Certificate which represents Capital Securities other than
Capital Securities held by the Depositary or its nominee ("Non
Book-Entry Capital Securities") will be deemed to represent
beneficial interests in Notes presented to the
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Trustee by the Property Trustee having an aggregate principal
amount equal to the aggregate liquidation amount of the Non Book-
Entry Capital Securities until such Capital Security Certificates
are presented to the Debt Securities Registrar for transfer or
reissuance at which time such Capital Security Certificates will
be cancelled and a Note registered in the name of the holder of
the Capital Security Certificate or the transferee of the holder
of such Capital Security Certificate, as the case may be, with an
aggregate principal amount equal to the aggregate liquidation
amount of the Capital 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 Third 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.
(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
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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 __% 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 premium, if
any, 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 semi-annually, payable (subject to the
provisions of Article Four of this Third Supplemental Indenture) semi-
annually in arrears on __________ and __________ of each year (each,
an "Interest Payment Date", commencing on __________, 1997), 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 Note, shall be the close of business on
the Business Day next preceding that Interest Payment Date.
Notwithstanding the foregoing sentence, if the Capital 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) 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 semi-annual 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.
(c) If at any time while the Property Trustee is the Holder of any Notes,
the Trust or the Property Trustee is
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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
at the Redemption Price 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.
Section 3.2. Optional Redemption by Company.
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Subject to the provisions of Section 3.3(b) and to the provisions of
Article Eleven of the Indenture, except as otherwise may be specified in this
Third Supplemental Indenture, the Company shall have the right to redeem the
Notes, without premium or penalty, in whole or in part, from time to time, on or
after __________, 2007, at the Redemption Price. In addition, at any time within
90 days after the occurrence and continuance of a Capital Treatment Event, the
Company shall have the right to redeem the Notes, in whole but not in part, at
the Redemption Price.
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Section 3.3. Redemption Procedures.
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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.
Section 3.4. 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 10 consecutive semi-annual (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 semi-annually 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 10 consecutive semi-annual periods.
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.
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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 holders of the Capital Securities issued by the Trust, but
in any event at least one Business Day before such record date.
(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 Holders of
the Notes.
(c) The semi-annual period in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be counted as one of
the 10 semi-annual periods 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 Underwriting Agreement and compensation of the Trustee
under the Indenture in accordance with the provisions of Section 607
of the Indenture;
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(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 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 Capital
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
Covenants
Section 7.1. 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 Capital 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
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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 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 7.2. 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.
14
ARTICLE VIII
Events of Default
Section 8.1. Events of Default.
-----------------
For the Notes only, a valid extension of the interest payment period in
accordance with Article IV hereof shall not 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 8.2. 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 IX
Form of Note
Section 9.1. 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
15
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 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.__________________
__% SUBORDINATE DEFERRABLE INTEREST NOTE
DUE 2027
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 __________, 2027; provided that the Company may, subject to certain
conditions specified in the Indenture, shorten the maturity of this Note to a
date not earlier than _________, 2016. The Company further promises to pay
interest on said principal sum from January __, 1997, 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, semi-annually (subject to deferral
as set forth herein) in arrears on __________ and __________ of each year
commencing __________, 1997, at the rate of __% per annum 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
16
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 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, 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.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated
-------------------
GREAT WESTERN FINANCIAL CORPORATION
By
--------------------------------
Attest:
By
----------------------------
Secretary
(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
18
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, a
Second Supplemental Indenture dated as of December 6, 1995 and a Third
Supplemental Indenture dated as of January __, 1997, 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 Third 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
__________, 2007 (a "Optional Redemption") or at any time in certain
circumstances upon the occurrence of a Tax Event, or in whole only within a
limited time after the occurrence and continuance of a Capital Treatment Event,
in each case at the redemption price specified in the Indenture plus any accrued
but 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 to the Holder of the Notes at the Redemption Price. If
the Notes are only partially redeemed by the Company, 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.
In the event of a redemption of this Note in part only, a new Note for the
unredeemed 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 of the Notes; provided, however, that no
-------- -------
such supplemental indenture shall (i)
19
extend the fixed maturity of any Notes of any series, or reduce the principal
amount thereof, or reduce the rate, 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 heretofore 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
10 consecutive semi-annual periods (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 10 consecutive semi-annual periods. 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 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
20
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 $1,000 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 $1,000
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.
ARTICLE X
Original Issue of Notes
Section 10.1. Original Issue of Notes.
-----------------------
Notes in the aggregate principal amount of $___________ may, upon execution
of this Third Supplemental Indenture, be executed by the Company and delivered
to the Trustee for authentication, and
21
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 XI
Miscellaneous
Section 11.1. Ratification of Indenture.
-------------------------
The Indenture, as supplemented by this Third Supplemental Indenture, is in
all respects ratified and confirmed, and this Third Supplemental Indenture shall
be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
Section 11.2. 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
Third Supplemental Indenture.
Section 11.3. Governing Law.
-------------
This Third 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 11.4. Separability.
------------
In case any one or more of the provisions contained in this Third
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 Third
Supplemental Indenture or of the Notes, but this Third Supplemental Indenture
and the Notes shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein or therein.
Section 11.5. Counterparts.
------------
This Third 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 11.6. Acknowledgement of Rights of Holders of Capital Securities.
----------------------------------------------------------
The Company acknowledges that the holders of the Capital Securities are
each entitled to enforce and exercise the rights and
22
remedies under the Indenture to the extent set forth in Section 5(b) of Exhibit
A to the Declaration.
Section 11.7. 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.
23
IN WITNESS WHEREOF, the parties hereto have caused this Third 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:
--------------------------
Name:
Title:
Attest:
-----------------------
Secretary
XXXXXX TRUST AND SAVINGS BANK,
as Trustee
By:
--------------------------
Name:
Title:
Attest:
-----------------------
Assistant Secretary
24
