EXHIBIT 4.7
FIRST SUPPLEMENTAL INDENTURE
by and among
PROVIDIAN FINANCIAL CORPORATION, as original Issuer
NEW AMERICAN CAPITAL, INC., as successor Issuer
and
THE BANK OF NEW YORK, as Trustee
Dated as of October 1, 2005
Supplement to Junior Subordinated Indenture dated as of February 4, 1997
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"), dated as
of October 1, 2005, is by and among Providian Financial Corporation, a Delaware
corporation, as original issuer ("PROVIDIAN" or, before the Effective Time, the
"COMPANY"), New American Capital, Inc., a Delaware corporation, as successor
issuer ("NEW AMERICAN" or, as of and after the Effective Time, the "COMPANY"),
and The Bank of New York, a New York banking corporation, as trustee (the
"TRUSTEE").
RECITALS
WHEREAS, Providian and the Trustee are parties to a Junior Subordinated
Indenture dated as of February 4, 1997 (as supplemented or amended from time to
time, the "INDENTURE") providing for the issuance by Providian of securities
from time to time;
WHEREAS, Providian, Washington Mutual, Inc. and New American, which is a
direct, wholly owned subsidiary of Washington Mutual, Inc., have entered into an
Agreement and Plan of Merger, dated as of June 5, 2005, as amended and
supplemented, that provides for the merger (the "MERGER") of Providian with and
into New American;
WHEREAS, the Merger will become effective as set forth in the certificate
of merger which shall be filed with the Secretary of State of Delaware on or
before the Closing Date, as defined in the Agreement and Plan of Merger (the
time and date when the Merger becomes effective is referred to herein as the
"EFFECTIVE TIME");
WHEREAS, at the Effective Time, the separate corporate existence of
Providian will cease and New American will continue as the surviving corporation
following the Merger;
WHEREAS, pursuant to Section 8.1 of the Indenture, the Company may merge
into another corporation only if, among other things, the successor corporation
expressly assumes by supplemental indenture the due and punctual payment of the
principal of (and premium, if any) and interest (including any Additional
Interest) on all of the Securities and the performance of every covenant of the
Indenture on the part of the Company to be performed or observed;
WHEREAS, pursuant to Section 9.1(1) and Section 9.1(7) of the Indenture,
Providian and the Trustee may enter into a supplement to the Indenture to
evidence the succession of another Person to the Company and the assumption by
any such successor of the covenants of the Company therein and in the Securities
and to make any provision with respect to matters arising under the Indenture
that does not adversely affect in any material respect the interest of the
Holders of Securities of any series or the holders of any corresponding series
of Capital Securities; and
WHEREAS, the execution and delivery of this Supplemental Indenture has been
duly authorized by the parties hereto, and all other acts necessary to make this
Supplemental Indenture a valid and binding supplement to the Indenture
effectively amending the Indenture as set forth herein have been duly taken.
NOW, THEREFORE, in consideration of the premises set forth herein and other
good and valuable consideration, Providian, New American and the Trustee agree
as follows for the equal and ratable benefit of the Holders:
ARTICLE I
DEFINITIONS; INTERPRETATION
1.1 Definitions. Capitalized terms that are defined in the preamble or the
recitals hereto shall have such meanings throughout this Supplemental Indenture.
Capitalized terms used but not defined in this Supplemental Indenture shall have
the meanings assigned thereto in the Indenture. The term "Indenture" as used
herein means the Indenture, as amended and supplemented by this Supplemental
Indenture, or as otherwise supplemented or amended from time to time by one or
more indentures supplemental thereto or hereto entered into pursuant to the
applicable provisions of the Indenture.
1.2 Interpretation. References in the Indenture (including references in
the Indenture as amended or supplemented hereby) to "this Indenture" (and
indirect references such as "hereunder," "herein" and "hereof") shall be deemed
references to the Indenture as amended and supplemented hereby. All of the
covenants, agreements and provisions of this Supplemental Indenture shall be
deemed to be and construed as part of the Indenture to the same effect as if
fully set forth therein and shall be fully enforceable in the manner provided in
the Indenture. Except as otherwise provided in this Supplemental Indenture, all
of the covenants, agreements and provisions of the Indenture shall remain in
full force and effect.
ARTICLE II
THE MERGER
Assumption by New American. New American, as the surviving corporation of
the Merger, shall become fully responsible as of the Effective Time, without any
further action, for: (i) the due and punctual payment of the principal and
interest on all of the Securities Outstanding under the Indenture, according to
their tenor and the Indenture; and (ii) the due and punctual performance and
observance of all of the covenants and conditions of the Indenture to be kept or
performed by the Company. Upon such assumption, New American shall succeed to
and be substituted for Providian with the same effect as if it had been named in
the Indenture as the original issuer, and Providian thereupon shall be relieved
of any further liability or obligation under the Indenture or upon the
Securities. Upon and following the Effective Time, the parties hereto agree that
all references to the "Company" in the Indenture and the Securities shall be
deemed references to New American, until a successor replaces it pursuant to the
applicable provisions of the Indenture and thereafter the "Company" shall mean
such successor.
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ARTICLE III
MISCELLANEOUS
3.1 Conflict with the Trust Indenture Act. If any provision of this
Supplemental Indenture modifies or excludes any provision of the Trust Indenture
Act that is required under such act to be part of and govern the Indenture, the
latter provision of the Trust Indenture Act shall control. If any provision
hereof modifies or excludes any provision of the Trust Indenture Act that may be
so modified or excluded, the latter provision of the Trust Indenture Act shall
be deemed to apply to this Supplemental Indenture, as so modified or excluded,
as the case may be.
3.2 Securities and Forms Deemed Conformed. Beginning at the Effective Time,
the provisions of each Security then Outstanding shall be deemed to be
conformed, without the necessity for any reissuance or exchange of such Security
or any other action on the part of the Holders, Providian, New American or the
Trustee, so as to reflect this Supplemental Indenture, and the forms of Security
within and attached to the Indenture shall likewise be deemed to be conformed to
reflect this Supplemental Indenture.
3.3 Successors. All agreements of Providian, New American and the Trustee
in this Supplemental Indenture and in the Indenture shall bind their respective
successors.
3.4 Benefits of Supplemental Indenture. Nothing in this Supplemental
Indenture, express or implied, shall give to any person, other than the parties
hereto and their successors hereunder and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Supplemental Indenture or the
Indenture.
3.5 Separability. In case any provision in this Supplemental Indenture, or
in the Indenture, shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
3.6 Trustee Responsibility. The Trustee assumes no duties, responsibilities
or liabilities by reason of this Supplemental Indenture other than as set forth
in the Indenture. The Trustee assumes no responsibility for the correctness of
the statements herein contained, which shall be taken as statements of Providian
and New American. This Supplemental Indenture is executed and accepted by the
Trustee subject to all of the terms and conditions of its acceptance of the
trust under the Indenture, as fully as if said terms and conditions were herein
set forth in full.
3.7 Headings. The Article and Section headings of this Supplemental
Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Supplemental Indenture and shall in no way modify or
restrict any of the terms or provisions hereof.
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3.8 Counterparts. This Supplemental Indenture may be executed in
counterparts, each of which shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and the same
instrument.
3.9 Governing Law. This Supplemental Indenture shall be governed by and
construed in accordance with the internal laws of the State of New York, without
regard to its choice of law provisions.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first written above.
Providian Financial Corporation., as the
original issuer and the "Company" prior
to the Effective Time of the Merger
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
New American Capital, Inc., as the
successor issuer and the "Company" from
and after the Effective Time of
the Merger
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
The Bank of New York, as "Trustee"
By: /s/ Van ▇. ▇▇▇▇▇
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Name: Van ▇. ▇▇▇▇▇
Title: Vice President
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