EXHIBIT 4.9
AMENDMENT TO AMENDED AND RESTATED TRUST AGREEMENT
by and among
PROVIDIAN FINANCIAL CORPORATION, as Original Depositor,
THE BANK OF NEW YORK, as Property Trustee,
THE BANK OF NEW YORK (DELAWARE), as Delaware Trustee,
and
NEW AMERICAN CAPITAL, INC., as Successor Depositor
Dated as of October 1, 2005
Amended and Restated Trust Agreement
Dated as of February 4, 1997
AMENDMENT TO AMENDED AND RESTATED TRUST AGREEMENT
THIS AMENDMENT TO AMENDED AND RESTATED TRUST AGREEMENT (this "AMENDMENT")
is made as of this 1st day of October, 2005, by and among (i) Providian
Financial Corporation, a Delaware corporation, as original depositor
("PROVIDIAN" or, before the Effective Time, the "DEPOSITOR"), (ii) New American
Capital, Inc., a Delaware corporation, as successor depositor ("New American"
or, as of and after the Effective Time, the "DEPOSITOR"), (iii) The Bank of New
York, a New York banking corporation, as property trustee (the "PROPERTY
TRUSTEE"), (iv) The Bank of New York, a Delaware banking corporation organized
under the laws of the State of Delaware, as Delaware Trustee (the "DELAWARE
TRUSTEE") (the Property Trustee and the Delaware Trustee referred to
collectively as the "TRUSTEES") and (v) the several Holders.
WHEREAS, Providian and the Trustees have entered into an Amended and
Restated Trust Agreement, dated as of February 4, 1997, related to the issuance
of preferred securities and common securities by Providian Capital I, a Delaware
statutory business trust, on February 4, 1997;
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, as set forth in Section 10.6 of the Trust Agreement, the Merger is
a consolidation, merger or sale involving the Depositor that is permitted under
Article VIII of the Indenture, as defined in the Trust Agreement, and New
American desires to agree in writing to perform the Depositor's obligations
under the Trust Agreement; and
WHEREAS, this Amendment has been duly authorized by all necessary action on
the part of Providian and New American.
NOW, THEREFORE, in consideration of the premises set forth herein and other
good and valuable consideration, Providian, New American and the Trustees 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 Amendment. Capitalized
terms used but not defined in this Amendment shall have the meanings assigned
thereto in the Trust Agreement. The term "Trust Agreement" as used herein means
the Amended and Restated Trust Agreement, as amended and supplemented by this
Amendment, or as otherwise supplemented or amended from time to time by one or
more amendments thereto or hereto entered into pursuant to the applicable
provisions of the Amended and Restated Trust Agreement.
1.2 Interpretation. References in the Trust Agreement (including references
in the Trust Agreement as amended or supplemented hereby) to "this Trust
Agreement" (and indirect references such as "hereunder," "herein" and "hereof")
shall be deemed references to the Trust Agreement as amended and supplemented
hereby. All of the covenants, agreements and provisions of this Amendment shall
be deemed to be and construed as part of the Trust Agreement to the same effect
as if fully set forth therein and shall be fully enforceable in the manner
provided in the Trust Agreement. Except as otherwise provided in this Amendment,
all of the covenants, agreements and provisions of the Trust Agreement shall
remain in full force and effect.
ARTICLE II
MERGER
2.1 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 the due and punctual performance and observance of all
of the obligations of the Trust Agreement to be kept or performed by the
Depositor. 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
Trust Agreement as the original depositor, and Providian thereupon shall be
relieved of any further liability or obligation under the Trust Agreement. Upon
and following the Effective Time, the parties hereto agree that all references
to the "Depositor" in the Trust Agreement shall be deemed references to New
American, until a successor replaces it pursuant to the applicable provisions of
the Trust Agreement, and thereafter the "Depositor" shall mean such successor.
2.2 Notice Provision. Section 10.8 of the Amended and Restated Trust
Agreement, as of the Effective Time, shall be amended so as to provide that
clause (b) of the first sentence thereof shall read: "in the case of the Common
Securityholder or the Depositor, to New American Capital, Inc., c/o Washington
Mutual, Inc., 1201 Third Avenue, Seattle, Washington 98101, Attention:
Secretary, facsimile no.: (206) 377-5309.
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ARTICLE III
MISCELLANEOUS
3.1 Capital Securities and Forms Deemed Conformed. Beginning at the
Effective Time, the provisions of each Capital Security then outstanding shall
be deemed to be conformed, without the necessity for any reissuance or exchange
of such Capital Security or any other action on the part of the Holders,
Providian, New American or the Trustee, so as to reflect this Amendment and the
forms of Security attached to the Amended and Restated Trust Agreement shall
likewise be deemed to be conformed to reflect this Amendment.
3.2 Successors. All agreements of Providian, New American and the Trustees
in this Amendment and in the Trust Agreement shall bind their respective
successors.
3.3 Benefits of Amendment. Nothing in this Amendment, 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 Amendment or the Trust Agreement.
3.4 Separability. In case any provision in this Amendment, or in the Trust
Agreement, 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.
3.5 Trustee Responsibility. The Trustees assume no duties, responsibilities
or liabilities by reason of this Amendment other than as set forth in the Trust
Agreement. The Trustees assume no responsibility for the correctness of the
statements herein contained, which shall be taken as statements of Providian and
New American. This Amendment is executed and accepted by the Trustees subject to
all of the terms and conditions of its acceptance of the trust under the Trust
Agreement, as fully as if said terms and conditions were herein set forth in
full.
3.6 Headings. The Article and Section headings of this Amendment have been
inserted for convenience of reference only, are not to be considered a part of
this Amendment and shall in no way modify or restrict any of the terms or
provisions hereof.
3.7 Counterparts. This Amendment 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.
3.8 Governing Law. This Amendment and the rights and obligations of each of
the Holders, the Trust and the Trustees with respect to the Trust Agreement and
the Trust Securities shall be construed in accordance with and governed by the
laws of the State of Delaware.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
Amended and Restated Trust Agreement to be duly executed, all as of the day and
year first above written.
PROVIDIAN FINANCIAL CORPORATION,
as the Depositor prior to the
Effective Time
By: /s/ Anthony F. Vuoto
------------------------------------
Name: Anthony F. Vuoto
Title: Chief Financial Officer
NEW AMERICAN CAPITAL, INC., as the
Depositor as of the Effective Time
By: /s/ Fay L. Chapman
------------------------------------
Name: Fay L. Chapman
Title: Executive Vice President
THE BANK OF NEW YORK, as Property
Trustee
By: /s/ Van K. Brown
------------------------------------
Name: Van K. Brown
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ Kristine K. Gullo
------------------------------------
Name: Kristine K. Gullo
Title: Vice President
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