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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
________________________________________
Date of Report
(Date of earliest event reported)
May 14, 1999
PROVIDIAN FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 1-12897 94-2933952
- ------------------------ ---------------------------- ------------------------------------
(State of incorporation) (Commission File Number) (IRS Employer Identification No.)
</TABLE>
201 Mission Street
San Francisco, California 94105
------------------------------------------ ---------------
(Address of principal executive offices) (Zip Code)
(415) 543-0404
______________________________________
(Registrant's telephone number,
including area code)
N/A
_______________________________________________________________________
(Former name or former address, if changed since last report)
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Item 5. Other Events.
In connection with the commencement of a Medium-Term Note Program on
May 14, 1999, the registrant is filing herewith the documents listed in Item 7
below and such documents are incorporated by reference into the registrant's
Registration Statement (Form S-3), Registration No. 333-55937.
Item 7. Exhibits
1.3 Distribution Agreement between the registrant and Chase Securities
Inc., Credit Suisse First Boston Corporation, Goldman, Sachs & Co.
and Lehman Brothers Inc.
4.25 Indenture between the registrant and First National Bank of Chicago
relating to certain Senior Debt Securities.
4.26 Indenture between the registrant and Chase Manhattan Bank and Trust
Company, National Association relating to certain Subordinated Debt
Securities.
4.27 Form of Senior Medium-Term Fixed Rate Note.
4.28 Form of Senior Medium-Term Floating Rate Note.
4.29 Form of Subordinated Medium-Term Fixed Rate Note.
4.30 Form of Subordinated Medium-Term Floating Rate Note.
8.1 Opinion of Orrick, Harrington & Sutcliffe LLP, as to certain tax
matters.
23.2 The consent of Orrick, Herrington & Sutcliffe LLP is contained in
their opinion filed as Exhibit 8.1.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PROVIDIAN FINANCIAL CORPORATION
(Registrant)
Date: May 14, 1999 By: /s/ Ellen Richey
-------------------------------
Ellen Richey
Secretary
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EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
1.3 Distribution Agreement between the registrant and Chase
Securities Inc., Credit Suisse First Boston Corporation,
Goldman, Sachs & Co. and Lehman Brothers Inc.
4.25 Indenture between the registrant and First National Bank of
Chicago relating to certain Senior Debt Securities.
4.26 Indenture between the registrant and Chase Manhattan Bank
and Trust Company, National Association relating to certain
Subordinated Debt Securities.
4.27 Form of Senior Medium-Term Fixed Rate Note.
4.28 Form of Senior Medium-Term Floating Rate Note.
4.29 Form of Subordinated Medium-Term Fixed Rate Note.
4.30 Form of Subordinated Medium-Term Floating Rate Note.
8.1 Opinion of Orrick, Herrington & Sutcliffe LLP, as to certain
tax matters.
23.2 The consent of Orrick, Herrington & Sutcliffe LLP is
contained in their opinion filed as Exhibit 8.1.
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EXHIBIT 1.3
Providian Financial Corporation
$1,000,000,000
Medium-Term Notes, Series A
Due 9 Months or More from Date of Issue
Distribution Agreement
----------------------
May 14, 1999
Chase Securities Inc.
270 Park Avenue, 8th Floor
New York, NY 10017
Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, NY 10010
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Lehman Brothers Inc.
3 World Financial Center, 12th Floor
New York, NY 10285
Dear Sirs:
Providian Financial Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell its Medium-Term Notes, Series A Due 9
Months or More from Date of Issue (the "Securities") in an aggregate principal
amount of up to $1,000,000,000 or its equivalent in foreign currencies or
currency units and agrees with Chase Securities Inc., Credit Suisse First Boston
Corporation, Goldman, Sachs & Co. and Lehman Brothers Inc. (each individually an
"Agent", and collectively the "Agents") as set forth in this Distribution
Agreement (the "Agreement"). Subject to the terms and conditions stated herein,
the Company
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hereby (i) appoints each of the Agents as an agent of the Company for the
purpose of soliciting offers to purchase the Securities from the Company and
(ii) agrees that, except as otherwise contemplated herein, whenever it
determines to sell Securities directly to any of the Agents as principal for
resale to others, it will enter into a separate agreement, which may be a
written agreement, substantially in the form of Annex I hereto or an oral
agreement confirmed in writing by such Agent (each a "Terms Agreement") relating
to such sale in accordance with Section 2(b) hereof. The Company may sell
Securities directly to purchasers on its own behalf and accept offers to
purchase Securities through or from a person other than an Agent, whether
pursuant to the assumption by such person of the rights and duties of an Agent
hereunder (which assumption may be evidenced by the execution by such person of
a counterpart signature page to this Agreement) or otherwise. In addition, the
Company may from time to time authorize the issuance of additional Securities
and such additional Securities may be sold through or to the Agents pursuant to
the terms of this Agreement, all as though the issuance of such Securities were
authorized on the date hereof.
The terms and rights of the Securities shall be as specified in or
established pursuant to the senior indenture, dated as of May 1, 1999 (the
"Senior Indenture"), between the Company and The First National Bank of Chicago,
as trustee (the "Senior Trustee") and/or the subordinated indenture, dated as of
May 1, 1999 (the "Subordinated Indenture," and together with the Senior
Indenture, the "Indentures"), between the Company and Chase Manhattan Bank and
Trust Company, National Association, as trustee (the "Subordinated Trustee," and
together with the Senior Trustee, the "Trustees"). The Securities shall have
the maturity ranges, annual interest rates, redemption provisions and other
terms set forth in the Prospectus referred to below as it may be supplemented
from time to time. The Securities will be issued, and the terms thereof
established, from time to time by the Company in accordance with the Indentures
and the Administrative Procedure attached hereto as Annex II or as otherwise
agreed upon and, if applicable, will be specified in a related Terms Agreement.
1. The Company represents and warrants to, and agrees with, you as
of the date hereof, as of the date of each acceptance by the Company of an offer
to purchase the Securities (whether through you as agent or to you as
principal), as of the date of delivery of Securities (whether through you as
agent or to you as principal) (the date of each such delivery to you is referred
to herein as the "Time of Delivery"), and as of any other time that the
Registration Statement or the Prospectus shall be amended or supplemented (each
of the times referenced above is referred to herein as a "Representation Date"),
as follows:
(a) A registration statement on Form S-3 (Registration No. 333-55937)
in respect of the Securities has been filed with the Securities and Exchange
Commission (the "Commission") in the form heretofore delivered or to be
delivered to you, including all documents incorporated by reference in the
prospectus included therein (except for any statements in such documents which
are deemed under Rule 412 under the Securities Act of 1933, as amended (the
"Act"), not to be incorporated by reference in such prospectus), and such
registration statement in such form has been declared effective by the
Commission and no stop order suspending the effectiveness of such registration
statement has been issued and no proceeding for that purpose has been initiated
or threatened by the Commission (any preliminary prospectus included in such
registration statement being hereinafter called a "Preliminary Prospectus"; the
various parts of such registration statement, including all exhibits thereto but
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excluding Form T-1, each as amended at the time such part became effective,
being hereinafter collectively called the "Registration Statement", provided
that, if the Company files a related registration statement with the Commission
pursuant to Rule 462(b) under the Act (a "Rule 462(b) Registration Statement"),
all references to "Registration Statement" shall also be deemed to include the
Rule 462(b) Registration Statement; the prospectus (including, if applicable,
any prospectus supplement) relating to the Securities, in the form in which it
has most recently been filed, or transmitted for filing, with the Commission on
or prior to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to the applicable form
under the Act as of the date of such Registration Statement, Preliminary
Prospectus or Prospectus, as the case may be; any reference to any amendment or
supplement to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed after the
date of such Registration Statement, Preliminary Prospectus or Prospectus, as
the case may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated therein by reference; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the Prospectus
as each time amended or supplemented (including any applicable supplement to the
Prospectus that sets forth the terms of a particular issue of the Securities (a
"Pricing Supplement")) to relate to Securities sold pursuant to this Agreement,
in the form in which it is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Act, including any documents
incorporated therein by reference as of the date of such filing or mailing).
For purposes of this Agreement, all references to the Registration Statement,
Preliminary Prospectus or Prospectus or any amendment or supplement thereto
shall be deemed to include any copy filed with the Commission pursuant to its
Electronic Data Gathering and Analysis Retrieval System ("EDGAR").
(b) The documents incorporated by reference in the Registration
Statement and Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents contained,
in the case of a registration statement which became effective under the Act, an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and, in the case of other documents which were filed under the Act or the
Exchange Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, in each case after excluding any statement in any such document
which does not constitute part of the Registration Statement or the Prospectus
pursuant to Rule 412 under the Act; and any further documents so filed and
incorporated by reference in the Registration Statement or Prospectus, when such
documents become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain, in the case of a registration statement which
becomes effective under the Act, an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading and, in the case of other documents which are
filed under the Act or the Exchange Act, an untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in
the light of the
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circumstances under which they are made, not misleading; provided, however, that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing to
the Company by an Agent expressly for use in the Prospectus as amended or
supplemented to relate to a particular issuance of Securities.
(c) The Registration Statement and the Prospectus conform, and any
amendments or supplements thereto will conform, in all material respects to the
applicable requirements of the Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of the
Commission thereunder, and do not as of the date hereof and will not as of each
Representation Date, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by
an Agent expressly for use in the Prospectus as amended or supplemented to
relate to a particular issuance of Securities. Each Preliminary Prospectus and
the Prospectus delivered to you in connection with the offering of the
Securities are identical to any electronically filed copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by Regulations
S-T.
(d) Since the respective dates as of which information is given in
the Registration Statement and Prospectus, (i) there has not been any material
adverse change in or affecting the condition, financial or otherwise, business
affairs, or business prospects of the Company and its subsidiaries, taken as a
whole, otherwise than as set forth or contemplated in the Prospectus and (ii)
there have been no material transactions entered into by the Company or any of
its subsidiaries other than those in the ordinary course of business and other
than those which have been and are required to be disclosed in the Prospectus.
(e) Each of the Company and each Significant Subsidiary (as such term
is defined in Rule 1-02 of Regulation S-X promulgated under the Act) of the
Company (each, a "Significant Subsidiary") has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus and has been
duly qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns or
leases substantial property, except to the extent that the failure to be so
qualified or to be in good standing would not have a material adverse effect on
the Company and its subsidiaries taken as a whole.
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company and
each Significant Subsidiary have been duly and validly authorized and issued and
are fully paid and non-assessable, and, subject to the effect of any
transactions after the date hereof permitted by Section 1008 of the Senior
Indenture, all such shares of each Significant Subsidiary are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, security
interests or claims.
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(g) This Agreement and any Terms Agreement have been duly authorized,
executed and delivered by the Company; the Securities have been duly authorized,
and, when executed, authenticated and delivered pursuant to this Agreement, any
Terms Agreement and the applicable Indenture, such Securities will have been
duly executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company enforceable in accordance with their
terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors' rights
and to general equity principles and entitled to the benefits provided by such
Indenture; the Indentures have been duly authorized and qualified under the
Trust Indenture Act and constitute valid and legally binding instruments,
enforceable in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles; and
the Indentures conform and the Securities will conform to the descriptions
thereof in the Prospectus as amended or supplemented to relate to the
Securities.
(h) Neither the Company nor any Significant Subsidiary is in
violation of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant, or condition contained in any
contract, indenture, mortgage, deed of trust, loan agreement, credit agreement,
note, lease or other agreement or instrument to which the Company or such
Significant Subsidiary is a party or by which any of them may be bound or to
which the property or assets of the Company or such Significant Subsidiary is
subject which is reasonably likely to have a material adverse effect on the
condition (financial or other) or business, or materially affect the property or
assets, of the Company and its subsidiaries taken as a whole. The issue and sale
of the Securities and the compliance by the Company with all of the provisions
of the Securities, the Indentures, this Agreement and any Terms Agreement, and
the consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, any contract, indenture, mortgage, deed of trust,
loan agreement, credit agreement, note, lease or other agreement or instrument
to which the Company is a party or by which the Company is bound or to which any
of the property or assets of the Company is subject, nor will such action result
in any violation of the provisions of the Certificate of Incorporation, as
amended, or By-Laws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its properties; and no filing consent, approval,
authorization, order, registration or qualification of or with any court or
governmental agency or body is required for the solicitation of offers to
purchase Securities and the issue and sale of the Securities or the consummation
by the Company of the other transactions contemplated by this Agreement, any
Terms Agreement or the Indentures, except such as have been, or will have been
prior to the Closing Date (as defined in Section 3 hereof), obtained under the
Act or the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the solicitation by you of offers to purchase
the Securities from the Company and with purchases of the Securities by you as
principals, as the case may be, both in the manner contemplated hereby.
(i) Except as set forth in the Prospectus, there is no action, suit
or proceeding to which the Company or any of its subsidiaries is a party pending
before or brought by any court, arbitrator or governmental body, nor is any such
action, suit or proceeding to the knowledge of the Company threatened, in
respect of which, in the judgment of the Company,
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there is any reasonable likelihood that it will result in a material adverse
change in the condition (financial or other) or business, or materially affect
the properties or assets, of the Company and its subsidiaries taken as a whole.
(j) The Company is not and, upon the issuance and sale of Securities
as herein contemplated, will not be an "investment company" within the meaning
of the Investment Company Act of 1940, as amended (the "1940 Act").
(k) The accountants who reported on the financial statements and any
required supporting schedules thereto included in the Registration Statement and
Prospectus are independent accountants as required by the Act and the rules and
regulations of the Commission thereunder.
(l) The Securities, when issued, authenticated and delivered pursuant
to the terms of this Agreement, will be excluded or exempted under the Commodity
Exchange Act.
(m) The Indentures conform and the Securities when issued will
conform in all material respects to the statements relating thereto contained in
the Prospectus and are substantially in the forms filed or incorporated by
reference, as the case may be, as exhibits to the Registration Statement.
(n) The Company has reviewed its operations and those of its
subsidiaries and any third parties with which the Company or any of its
subsidiaries has a material relationship to evaluate the extent to which the
business or operations of the Company or any of its subsidiaries will be
affected by the Year 2000 Problem. As a result of such review, the Company has
no reason to believe, and does not believe, that the Year 2000 Problem will have
a material adverse effect on the condition (financial or other), business
affairs or business prospects, or materially affect the properties or assets, of
the Company and its subsidiaries taken as a whole. The "Year 2000 Problem" as
used herein means any significant risk that computer hardware or software used
in the receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data will not, in the case of dates or
time periods occurring after December 31, 1999, function at least as effectively
as in the case of dates or time periods occurring prior to January 1, 2000.
2. (a) On the basis of the representations and warranties, and
subject to the terms and conditions, herein set forth, each of the Agents hereby
severally agrees, as an agent of the Company, to use its reasonable best efforts
to solicit offers to purchase the Securities from the Company upon the terms and
conditions set forth in the Prospectus as amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct
any or all of the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Securities. As soon as
practicable after receipt of instructions from the Company, the Agent or Agents
receiving such instructions will forthwith suspend solicitation of offers to
purchase Securities from the Company until such time as the Company has advised
such Agent or Agents that such solicitation may be resumed.
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Unless otherwise agreed to by the Company and such Agent, the Company
agrees to pay the presenting Agent (or jointly to two or more Agents if such
presentation is jointly made) a commission, at the time of settlement of each
sale of a Security by the Company as a result of a solicitation made by such
Agent, in an amount agreed to by the Company and such Agent within the following
ranges of percentage of the principal amount of such Security sold:
<TABLE>
<CAPTION>
Fee Range as a Percentage
Range of Maturities of Principal Amount
------------------- -------------------
<S> <C>
From 9 months to less than 12 months 0.125% - 0.425%
From 12 months to less than 18 months 0.150% - 0.450%
From 18 months to less than 24 months 0.200% - 0.500%
From 2 years to less than 3 years 0.250% - 0.550%
From 3 years to less than 4 years 0.350% - 0.650%
From 4 years to less than 5 years 0.450% - 0.750%
From 5 years to less than 6 years 0.500% - 0.800%
From 6 years to less than 7 years 0.550% - 0.850%
From 7 years up to 10 years 0.600% - 0.900%
From 10 years up to 15 years 0.625% - 0.925%
From 15 years up to 20 years 0.700% - 1.000%
From 20 years up to 30 years` 0.750% - 1.050%
</TABLE>
Where the term of the Security is more than 30 years, the commission
shall be as agreed upon between the Company and the Agent at the time of sale.
Each Agent shall communicate to the Company, orally or in writing,
each offer to purchase Securities other than those rejected by such Agent. The
Company shall have the sole right to accept offers to purchase Securities and
may reject any proposed purchase of Securities as a whole or in part. Each of
the Agents shall have the right, in its discretion reasonably exercised, to
reject any offer received by it to purchase Securities, as a whole or in part,
and any such rejection by an Agent shall not be deemed a breach of its
agreements contained herein.
(b) Except to the extent obligated by any Terms Agreement executed by
an Agent, no such Agent shall have any obligation to purchase Securities as
principal. Any sale of Securities to any Agent as principal shall be made in
accordance with the terms of this Agreement and (unless the Company and such
Agent shall otherwise agree) a Terms Agreement which will provide for the sale
of such Securities to, and the purchase thereof by, such Agent. Each Terms
Agreement will take the form of either (i) a written agreement between you and
the Company which shall be substantially in the form of Annex I hereto or (ii)
an oral agreement between you and the Company confirmed in writing by you to the
Company in such form as may be mutually agreed to. Any Agent's commitment to
purchase Securities pursuant to any Terms Agreement or otherwise shall be deemed
to have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions herein
set forth; provided that for purposes of any Terms Agreement all references in
this Agreement to "you" or "the Agents" shall be deemed to refer only to the
Agent or Agents party to such Terms Agreement. Each Terms Agreement shall
include a specification of the principal amount of Securities to be purchased by
an Agent pursuant thereto, the price to be paid to the
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Company for such Securities, any provisions relating to rights of, and default
by, underwriters acting together with such Agent in the reoffering of the
Securities, and the Time of Delivery and place of delivery of and payment for
such Securities. Such Terms Agreement shall also specify any requirements for
officers' certificates, opinions of counsel and accountants' letters pursuant to
Section 4 hereof and any additional agreements pursuant to Section 5 hereof. In
connection with any purchase of Securities by an Agent as principal, such Agent
may utilize dealer groups and reallow commissions and discounts.
For each sale of Securities to an Agent as principal, the procedural
details relating to the issue and delivery of such Securities and payment
thereof shall be as set forth in the Administrative Procedure attached hereto as
Annex II (the "Procedure"), unless otherwise agreed to by the Agent and the
Company. For each such sale of Securities to an Agent as principal, the Company
agrees to pay such agent a commission (or grant an equivalent discount) as
provided in Section 2(a) hereof and in accordance with the schedule set forth
therein unless otherwise agreed to by the Agent and the Company.
(c) Procedural details relating to the issue and delivery of
Securities, the solicitation of offers to purchase, and purchases by any Agent
as principal of, Securities, and the payment in each case therefor, are set
forth in the Procedure. The provisions of the Procedure shall apply to all
transactions contemplated hereunder except to the extent otherwise expressly
covered by a Terms Agreement. Each of the Agents and the Company agrees to
perform the respective duties and obligations specifically provided to be
performed by each of the Agents and the Company in the Procedure as it may be
amended from time to time by written agreement between the Agents and the
Company.
(d) Each Agent agrees, with respect to any Security denominated in a
currency other than U.S. dollars, as agent, directly or indirectly, not to
solicit offers to purchase, and as principal under any Terms Agreement or
otherwise, directly or indirectly, not to offer, sell or deliver, such Security
in, or to residents of, the country issuing such currency (or if such Security
is denominated in a composite currency, in any country issuing a currency
comprising a portion of such composite currency), except as permitted by
applicable law.
3. The documents required to be delivered pursuant to Section 6
hereof shall be delivered at the offices of Orrick, Herrington & Sutcliffe LLP,
400 Sansome Street, San Francisco, California, 94111 at 9:00 a.m., San Francisco
time, on the date of this Agreement, which date and time of such delivery may be
postponed by agreement between the Agents and the Company but in no event shall
be later than the day prior to the date on which Securities are first sold
hereunder, such time and date being herein called the "Closing Date."
4. The Company covenants and agrees with you:
(a) To make no amendment or supplement to the Registration Statement
or the Prospectus prior to the Closing Date or after the date of any Terms
Agreement and prior to the related Time of Delivery which has been disapproved
by you promptly after reasonable notice thereof unless in the opinion of counsel
to the Company such amendment or supplement is required by law; to make no such
amendment or supplement, other than any Pricing Supplement
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relating to Securities not purchased through or by you, at any other time prior
to having afforded you a reasonable opportunity to review it; to file within the
time periods required by the Exchange Act and the regulations thereunder all
reports and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of the Prospectus and for so long as
the delivery of a prospectus is required in connection with the offering or sale
of the Securities, and during such same period to advise you, promptly after it
receives notice thereof (i) of the time when any amendment to the Registration
Statement has been filed or become effective or any supplement to the Prospectus
or any amended Prospectus (other than any Pricing Supplement relating to
Securities not purchased through or by such Agent) has been filed with, or
transmitted for filing to, the Commission, (ii) of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
any prospectus relating to the Securities, (iii) of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, (iv)
of the initiation or threatening of any proceeding for any such purpose, or (v)
of any request by the Commission for the amendment or supplement of the
Registration Statement or Prospectus or for additional information; and, in the
event of the issuance of any such stop order or of any such order preventing or
suspending the use of any such prospectus or suspending any such qualification,
to use promptly its best efforts to obtain its withdrawal. In addition, the
Company shall notify you of any change in the rating assigned by any nationally
recognized statistical rating organization to the Securities or any other debt
securities of the Company, or the public announcement by any nationally
recognized statistical rating organization that it has under review or
surveillance, with possible negative implications, its rating of the Securities
or any such debt securities, or the withdrawal by any nationally recognized
statistical rating organization of its rating of the Securities or any such debt
securities.
(b) Promptly from time to time to take such action as you reasonably
may request to qualify the Securities for offering and sale under the securities
laws of such jurisdictions as you may request and to comply with such laws so as
to permit the continuance of sales and dealings therein for as long as may be
necessary to complete the distribution or sale of the Securities; provided,
however, that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction.
(c) To furnish you with copies of the Registration Statement and each
amendment thereto, and with copies of the Prospectus and each amendment or
supplement thereto, other than any Pricing Supplement relating to Securities not
purchased through or by you, in the form in which it is filed with, or
transmitted for filing to, the Commission pursuant to Rule 424 under the Act,
both in such quantities as you may reasonably request from time to time; and, if
the delivery of a prospectus is required at any time in connection with the
offering or sale of the Securities (including Securities purchased from the
Company by any Agent as principal) and if at such time any event shall have
occurred as a result of which the Registration Statement as then amended or
supplemented would contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or any event shall have occurred as a result
of which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any
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other reason it shall be necessary during such same period to amend or
supplement the Registration Statement or Prospectus or to file under the
Exchange Act any document incorporated by reference in the Registration
Statement or Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify you and request you to suspend solicitation of
offers to purchase Securities from the Company, in your capacity as agents of
the Company and, if so notified, you shall forthwith cease such solicitations;
and if the Company shall decide to amend or supplement the Registration
Statement or the Prospectus as then amended or supplemented, other than by any
Pricing Supplement relating to Securities not purchased through or by you,, to
so advise you promptly by telephone (with confirmation in writing) and to
prepare and cause to be filed promptly with the Commission an amendment or
supplement to the Registration Statement or the Prospectus as then amended or
supplemented that will correct such statement or omission or effect such
compliance; provided, however, that if during such same period any Agent
continues to own Securities purchased from the Company by such Agent as
principal, the Company shall promptly prepare and file with the Commission such
an amendment or supplement. In such event, the Company shall furnish such
amendment or supplement to such Agent a reasonable amount of time prior to such
filing and will not file any such amendment or supplement to which the Agent
reasonably objects.
(d) To prepare with respect to Securities to be sold through or to
one or more Agents pursuant to this Agreement, a Pricing Supplement with respect
to the Securities in a form previously approved by the Agents. The Company shall
deliver such Pricing Supplement no later than 2:00 p.m., New York City time, on
the business day following the date of the Company's acceptance of the offer for
the purchase of the Securities and will file such Pricing Supplement pursuant to
Rule 424(b) under the Act not later than the time required by such rule.
(e) On or prior to the date on which there shall be released to the
general public interim financial statement information related to the Company
with respect to the first three quarters of any fiscal year or preliminary
financial statement information with respect to any fiscal year, the Company
shall furnish such information to you and shall cause the Prospectus to be
amended or supplemented to include such information with respect thereto and
corresponding information for the comparable period of the preceding fiscal
year, as well as such other information as shall be necessary for an
understanding thereof or shall be required by the Act or the regulations
thereunder. On or prior to the date on which there shall be released to the
general public financial information included or derived from the audited
consolidated financial statements of the Company for the preceding fiscal year,
the Company shall cause the Prospectus to be amended or supplemented to include
such audited consolidated financial statements and the report or reports, and
consent or consents to such inclusion, of the independent accountants with
respect thereto, as well as such other information and explanations as shall be
necessary for an understanding of such consolidated financial statements or as
shall be required by the Act and the regulations thereunder.
(f) That, from the date of any Terms Agreement or other agreement by
an Agent to purchase Securities as principal and continuing to and including the
related Time of Delivery, the Company will not, without the prior written
consent of such Agent or Agents, offer, sell, contract to sell or otherwise
dispose of any debt securities of the Company which mature more than nine months
after such Time of Delivery and which are substantially similar to the
Securities.
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(g) To make generally available to its security holders as soon as
practicable, but in any event not later than 90 days after the close of the
period covered thereby, an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of the Act
and the rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158) and covering each twelve-month period beginning
not later than the first day of the Company's fiscal quarter next following the
effective date of the Registration Statement or a post-effective amendment
thereto (within the meaning of Rule 158).
(h) During the period when this Agreement is in effect, to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements the Company furnishes to or files with the Commission or any national
securities exchange on which any class of securities of the Company is listed;
and (ii) such additional information concerning the business and financial
condition of the Company as you may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the accounts of
the Company and its subsidiaries are consolidated in reports furnished to the
Commission).
(i) That each acceptance by the Company of an offer to purchase
Securities hereunder (whether to one or more of the Agents as principal or
through an Agent as agent) shall be deemed to be an affirmation to such Agent or
Agents that the representations and warranties of the Company contained in or
made pursuant to this Agreement are true and correct as of the date of such
acceptance as though made at and as of such time, and an undertaking that such
representations and warranties will be true and correct as of the settlement
date for the Securities relating to such acceptance and as of the Time of
Delivery to such Agent(s) or to the purchaser or its agents, as the case may be,
as though made at and as of each such date (except that such representations and
warranties shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented relating to such Securities).
(j) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by an amendment or supplement relating
solely to a change in the terms of the Securities), each time a document filed
under the Act or the Exchange Act is incorporated by reference into the
Registration Statement or Prospectus, and each time, if so indicated in the
applicable Terms Agreement, the Company sells Securities to an Agent as
principal, the Company shall furnish or cause to be furnished forthwith to you a
certificate of officers of the Company satisfactory to you, dated the date of
such amendment, supplement, incorporation or Time of Delivery relating to such
sale, in form satisfactory to you in your reasonable judgment, to the effect
that the statements contained in the certificate referred to in Section 6(f)
hereof which were last furnished to you are true and correct at such date, as
though made at and as of such date (except that such statements shall be deemed
to relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, certificates of the
same tenor as the certificates referred to in said Section 6(f) but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date.
(k) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by an amendment or supplement relating
solely to a change in the terms of the Securities), each time a document filed
under the Act or the Exchange Act is incorporated by reference into the
Registration Statement or Prospectus, and each time, if
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so indicated in the applicable Terms Agreement, the Company sells Securities to
an Agent as principal, the Company shall furnish or cause to be furnished
forthwith to you a written opinion of counsel for the Company, or other counsel
satisfactory to you in your reasonable judgment, dated the date of such
amendment, supplement, incorporation or Time of Delivery relating to such sale,
in form satisfactory to you in your reasonable judgment, to the effect that you
may rely on the opinion referred to in Section 6(c) hereof which was last
furnished to you to the same extent as though it were dated the date of such
letter authorizing reliance (except that statements in such last opinion shall
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to such date) or, in lieu of such opinion, an opinion of the
same tenor as the opinion referred to in Section 6(c) hereof but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date.
(l) That each time the Registration Statement or the Prospectus shall
be amended or supplemented and each time that a document filed under the Act or
the Exchange Act is incorporated by reference into the Registration Statement or
Prospectus, in either case to set forth financial information included in or
derived from the Company's consolidated financial statements, or, if so
indicated in the applicable Terms Agreement, each time the Company sells
Securities to an Agent as principal, the Company shall cause its independent
public accountants forthwith to furnish you a letter, dated the date of such
amendment, supplement, incorporation or Time of Delivery relating to such sale,
in form satisfactory to you in your reasonable judgment, of the same tenor as
the letter referred to in Section 6(d) hereof but modified to relate to the
Registration Statement and the Prospectus as amended or supplemented to the date
of such letter, with such changes as may be necessary to reflect changes in the
financial statements and other information derived from the accounting records
of the Company, to the extent such financial statements and other information
are available as of a date not more than five business days prior to the date of
such letter; provided, however, that where such amendment, supplement or
document incorporated by reference only sets forth unaudited quarterly financial
information, the scope of such letter may be limited to relate to such unaudited
financial information unless any other accounting or financial information
included or incorporated by reference therein is of such a character that, in
your reasonable judgment, such letter should address such other information.
(m) That, in the event the Company determines to solicit offers to
purchase and sell the Securities to or through agents other than the Agents, the
Company shall provide the Agents prompt notice of such determination.
(n) To offer to any person who has agreed to purchase Securities as
the result of an offer to purchase solicited by such Agent the right to refuse
to purchase and pay for such Securities if, on the related settlement date fixed
pursuant to the Procedure, any condition set forth in Section 6(a), 6(e), 6(g)
or the preamble to Section 6 hereof shall not have been satisfied (it being
understood that the judgment of such person with respect to the impracticability
or inadvisability of such purchase of Securities shall be substituted, for
purposes of this Section 4(n), for the respective judgments of an Agent with
respect to certain matters referred to in such Sections 6(a), 6(e), 6(g) and the
preamble to Section 6, and that such Agent shall have no duty or obligation
whatsoever to exercise the judgment permitted under such Sections 6(a), 6(e),
6(g) and the preamble to Section 6 on behalf of any such person).
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5. Unless otherwise provided in any applicable Terms Agreement, the
Company covenants and agrees with you that the Company will pay or cause to be
paid the following: (i) the fees and expenses of the Company's counsel and
accountants in connection with the registration of the Securities under the Act
and all other expenses in connection with the preparation, printing and filing
of the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to you; (ii) the reasonable fees and expenses of your counsel in
connection with the transactions contemplated hereunder; (iii) the reasonable
cost of printing or reproducing this Agreement, any Terms Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda and any other documents
in connection with the offering, purchase, sale and delivery of the Securities;
(iv) all reasonable expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 4(b) hereof, including reasonable fees and disbursements of your counsel
in connection with such qualification and in connection with the Blue Sky and
legal investment surveys; (v) any fees charged by security rating services for
rating the Securities; (vi) the cost of preparing the Securities; (vii) the fees
and expenses of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture and
the Securities; (viii) the fees and expenses of any Depositary (as defined in
the Indentures) and any nominees thereof in connection with the Securities; (ix)
any advertising expenses connected with the solicitation of offers to purchase
and the sale of Securities so long as such advertising expenses have been
approved by the Company; (x) the fees and expenses incurred in connection with
any listing by the Company of the Securities on a securities exchange, (xi) any
fees, including filing fees, in connection with any required review, by the
National Association of Securities Dealers, Inc., and (xii) all other reasonable
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section. Each Agent
shall pay all other fees and expenses incurred by such Agent.
6. The obligations of each Agent, as agent of the Company, to
solicit offers to purchase the Securities, the obligation of each Agent to
purchase Securities as principal pursuant to any Terms Agreement or otherwise,
and the obligation of any purchasers of Securities to purchase securities sold
through an Agent as agent for the Company shall in each case be subject to the
condition that all representations and warranties and other statements of the
Company herein are true and correct at and as of the Closing Date, the date of
each such solicitation, any settlement date related to the acceptance of such an
offer, and each Time of Delivery, the condition that the Company shall have
performed all of its obligations hereunder theretofore in each case to be
performed and the following additional conditions:
(a) The Registration Statement (including any related Rule 462(b)
Registration Statement) has become effective under the Act. No stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Your counsel shall have furnished to you such opinion or
opinions, dated the Closing Date, with respect to the incorporation of the
Company, the validity of the Indentures, the Securities, the Registration
Statement, the Prospectus as amended or
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supplemented and other related matters as you may reasonably request, and such
counsel shall have received such papers and information as you may reasonably
request to enable them to pass upon such matters;
(c) Counsel for the Company satisfactory to you (which may be inside
or outside counsel) shall have furnished to you their written opinion, dated the
Closing Date or any applicable date required by Section 4(k), as the case may
be, in form and substance satisfactory to you, to the effect that:
(i) Each of the Company and each Significant Subsidiary has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus;
(ii) Such counsel does not know of any litigation or any
governmental proceeding instituted or threatened against the Company
or any of its consolidated subsidiaries which in such counsel's
opinion would individually or in the aggregate reasonably be expected
to have a material adverse effect on the business or financial
position of the Company and its subsidiaries taken as a whole or be
required to be disclosed in the Registration Statement which is not
disclosed and accurately summarized in the Prospectus;
(iii) This Agreement (and any applicable Terms Agreement) has
been duly authorized, executed and delivered by the Company;
(iv) The Securities have been duly authorized and, when the
terms of any Securities have been established in accordance with the
Indentures and such Securities have been duly executed, issued and
delivered by the Company and authenticated by the applicable Trustee,
such Securities will constitute valid and legally binding obligations
of the Company enforceable in accordance with their terms, subject, as
to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles, and such Securities are
entitled to the benefits provided by the applicable Indenture; and the
Indentures conform and the Securities will conform in all material
respects to the descriptions thereof in the Prospectus;
(v) The Indentures have been duly authorized, executed and
delivered by the Company and constitute valid and legally binding
obligations of the Company, enforceable in accordance with their
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, arrangement, fraudulent conveyance, moratorium or
other laws relating to or affecting creditors' rights generally, and
to general principles of equity, including without limitation concepts
of materiality, reasonableness, good faith and fair dealing, and the
possible unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at law;
and the Indentures have been duly qualified under the Trust Indenture
Act;
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(vi) The issue and sale of the Securities and the compliance
by the Company with all of the provisions of the Securities, the
Indentures, this Agreement and any Terms Agreement, and the
consummation of the transactions herein and therein contemplated, will
not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any agreement or
instrument known to such counsel to which the Company is a party or by
which the Company is bound, which conflict, breach or default, if any,
would individually or in the aggregate have a material adverse effect
on the business or financial position of the Company and its
subsidiaries taken as a whole; nor will such action result in any
violation of the provisions of the Certificate of Incorporation or the
By-Laws of the Company or to such counsel's knowledge, any statute of
the United States of America or the Delaware General Corporation Law
or any rule or regulation thereunder (provided that no opinion need be
expressed in this paragraph as to compliance with the Act, the Trust
Indenture Act, the Exchange Act, the Commodity Exchange Act (and the
rules and regulations of the Commodity Futures Trading Commission
thereunder) or the Delaware Securities Act, or with the Bankruptcy
Code of 1978, as amended, with respect to any proceeding in which the
Company is the debtor) or, to such counsel's knowledge, any order of
any court or governmental agency or body of the United States of
America; and no filing, consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Securities by the Company or the consummation by the Company of the
other transactions contemplated by this Agreement or any Terms
Agreement or the Indentures, except such as have been obtained under
the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under Delaware securities laws or Blue Sky laws in connection with the
issue and sale of the Securities;
(vii) The Registration Statement has been declared effective
under the Act, any required filing of the Prospectus pursuant to Rule
424(b) has been made in accordance therewith and, to the best of such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Act and no
proceedings for that purpose have been instituted or are pending or
threatened under Section 8(d) of the Act;
(viii) The documents incorporated by reference in the
Prospectus (other than the financial statements and related schedules
and other financial data therein, as to which such counsel need
express no opinion or belief), when they were filed with the
Commission, complied as to form in all material respects with the
requirements of the Act or the Exchange Act and the rules and
regulations of the Commission thereunder;
(ix) The Registration Statement, as of the date on which any
part thereof became effective, and the Prospectus, as of its date or
the date of such opinion (other than the financial statements and
related schedules and other financial data therein, as to which such
counsel need express no opinion or belief)
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complied or complies as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the rules and
regulations thereunder;
(x) The Company is not, and upon the issuance and sale of the
Securities as described in the Prospectus will not be, an "investment
company" under the 1940 Act;
(xi) The information in the Prospectus under the captions
"Description of the Debt Securities", "Description of Notes,"
"Supplemental Plan of Distribution" and "Certain United States Federal
Income Tax Consequences" to the extent that it constitutes matters of
law and legal conclusions and to the extent it summarizes the
documents referred to therein, has been reviewed by such counsel and
is correct in all material respects; and
(xii) With respect to any opinion furnished to you at a Time of
Delivery, the Securities, when issued, authenticated and delivered
pursuant to the terms of this Agreement, will be excluded or exempted
under the Commodity Exchange Act.
In addition, such counsel shall state that while they make no
representation that they have independently verified the accuracy or
completeness of the information contained in the documents incorporated by
reference in the Prospectus, they have no reason to believe that any of such
documents (other than the financial statements and related schedules and other
financial data therein, as to which they need express no opinion or belief),
when they were so filed, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
documents were so filed, not misleading, in each case after excluding any
statement in any such documents which does not constitute part of the
Registration Statement or Prospectus pursuant to Rule 412 of Regulation C under
the Act. Further, such counsel shall state that while they make no
representation that they have independently verified the accuracy or
completeness of the information contained in the Registration Statement and the
Prospectus (other than as set forth in subsection (xi) above), they have no
reason to believe that any part of the Registration Statement, as of the date on
which such part became effective, or the Prospectus, as of its date or the date
of such opinion (other than the financial statements and related schedules and
other financial data therein, as to which they need express no opinion or
belief), contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case after excluding any
statement in any such document which does not constitute part of the
Registration Statement or the Prospectus pursuant to Rule 412 of Regulation C
under the Act; and they do not know of any contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus or required to be
described in the Registration Statement or the Prospectus which are not filed or
incorporated by reference or described as required;
(d) 9:00 a.m., San Francisco time, on the Closing Date or on any
applicable date required by Section 4(l), as the case may be, the independent
accountants who have certified the financial statements of the Company and its
subsidiaries included or
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incorporated by reference in the Registration Statement shall have furnished to
you a letter, dated the Closing Date or such applicable date, in form and
substance satisfactory to you, to the effect set forth in Annex III hereto;
(e) Since the respective dates as of which information is given in
the Prospectus as amended or supplemented and (i) prior to the Closing Date,
there shall not have been any change in or affecting the condition, financial or
otherwise, business affairs, and business prospects of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated in
the Prospectus, as amended or supplemented through the date of this Agreement
and (ii) prior to each Time of Delivery, there shall not have been any such
change, otherwise than as set forth or contemplated in the Prospectus as amended
and supplemented through the date of each corresponding Terms Agreement, the
effect of which in either clause (i) or (ii) is in your judgment so material and
adverse as to make it impracticable or inadvisable to proceed with your
solicitation of offers to purchase Securities from the Company or your purchase
of Securities from the Company as principal, as the case may be;
(f) The Company shall have furnished or caused to be furnished to
you a certificate of officers of the Company reasonably satisfactory to you,
dated the Closing Date or any applicable date required by Section 4(j), as the
case may be, as to the accuracy of the representations and warranties of the
Company herein at and as of the Closing Date or such applicable date, as to the
performance by the Company of all of its obligations hereunder to be performed
at or prior to the Closing Date or such applicable date, as to the matters set
forth in subsections (a) and (e) of this Section 6, and as to such other matters
as you may reasonably request; and
(g) During the period in which you are soliciting offers to purchase
Securities, and during the period between the date of any Terms Agreement and
the related Time of Delivery, there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in the trading of securities of the Company on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities in New
York declared by either Federal or New York State authorities; (iv) the outbreak
or escalation of hostilities involving the United States or the declaration by
the United States of a national emergency or war, if the effect of any such
event specified in clauses (i), (ii), (iii) or (iv) in your judgment makes it
impracticable or inadvisable to proceed with your solicitation of offers to
purchase Securities or your purchase of Securities from the Company as
principal, pursuant to the applicable Terms Agreement or otherwise, as the case
may be; or (v) any downgrading in the rating accorded the Company's debt
securities by any nationally recognized statistical rating organization, or a
public announcement by either such organization that it has under surveillance
or review, with possible negative implications, its rating of any of the
Company's debt securities.
7. (a) The Company will indemnify and hold you harmless against any
losses, claims, damages or liabilities, joint or several, to which you may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus as amended or supplemented, and any other prospectus relating to the
Securities or any
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amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Agent for any legal or other expenses reasonably incurred by it
in connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities or any amendment or supplement thereto, in
each case in reliance upon and in conformity with written information furnished
to the Company by an Agent expressly for use in the Prospectus as amended or
supplemented relating to such Securities; and provided, further, that the
Company shall not be liable to any Agent under the indemnity agreement in this
subsection (a) with respect to any Preliminary Prospectus to the extent that any
such loss, claim, damage or liability results from the fact that such Agent sold
Securities to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus (excluding documents
incorporated by reference) or of the Prospectus as then amended or supplemented
(excluding documents incorporated by reference) if the Company has previously
furnished copies thereof to such Agent and the untrue statement or omission of a
material fact contained in the Preliminary Prospectus was corrected in such
Prospectus (or any amendment or supplement thereto).
(b) Each Agent will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities or any
amendment or supplement thereto, in each case in reliance upon and in conformity
with written information furnished to the Company by such Agent expressly for
use therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim .
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; provided, however, the omission so to
notify the indemnifying party shall not relieve it from any liability which it
may have to any indemnified party unless such failure to give prompt notice has
materially prejudiced the indemnifying party's ability to defend such claim; and
provided, further, that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have to an indemnified party
otherwise than under this Section 7. In case any such action shall be brought
against any
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indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel
or any other expenses, in each case, subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation; provided, that an indemnified party shall have the right to
employ its own counsel in any such action, but the fees, expenses and other
charges of such counsel for the indemnified party will be at the expense of such
indemnified party unless (i) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (ii) the indemnified
party has reasonably concluded (based upon advice of counsel to the indemnified
party) that there may be legal defenses available to it or other indemnified
parties that are different from or in addition to those available to the
indemnifying party, (iii) a conflict or potential conflict exists (based upon
advice of counsel to the indemnified party) between the indemnified party and
the indemnifying party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified party)
or (iv) the indemnifying party has not in fact employed counsel reasonably
satisfactory to the indemnified party to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties.
It is understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees, disbursements and other charges of more than one
separate firm of attorneys (in addition to any local counsel) at any one time
for all such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 7(a) and 7(b), shall
use all reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) above in respect of any losses, claims, damages or liabilities
(or actions in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such
19
<PAGE>
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the contributing Agent on the other from the
offering of the Securities to which such loss, claim, damage or liability (or
action in respect thereof) relates. If the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefi ts but also the relative fault of the Company on the one hand
and the contributing Agent on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the contributing Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of such Securities (before
deducting expenses) received by the Company bear to the total commissions or
discounts received by the contributing Agent in respect thereof. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading relates to information
supplied by the Company on the one hand or by the contributing Agent on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the contributing Agent agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Agent shall be required to contribute any amount in excess of
the amount by which the total price at which the Securities that were the
subject of the claim for indemnification purchased by or through such Agent were
sold exceeds the amount of any damages which such Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
respective obligations of the Agents to contribute pursuant to this Section 7(d)
are several, and not joint.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Agent within the meaning of the Act; and each Agent's obligations under this
Section 7 shall be in addition to any liability which such Agent may otherwise
have and shall extend, upon the same terms and conditions, to each officer and
director of the Company and to each person, if any, who controls the Company
within the meaning of the Act.
8. In soliciting offers by others to purchase Securities from the
Company, each Agent is acting solely as an agent for the Company, and not as
principal. Each Agent will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Securities from
the Company was solicited by such Agent and has been
20
<PAGE>
accepted by the Company, but such Agent shall not have any liability to the
Company in the event such purchase for any reason is not consummated. If the
Company shall default on its obligation to deliver Securities to a purchaser
whose offer it has accepted, the Company shall hold each Agent harmless against
any loss, claim or damage arising from or as a result of such default by the
Company.
9. The respective indemnities, agreements, representations,
warranties and other statements by you and the Company set forth in or pursuant
to this Agreement, shall remain in full force and effect regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any of you or the Company or any of your or its officers or directors or any
controlling person, and shall survive each delivery of and payment for any of
the Securities.
10. Except as specifically set forth below, the provisions of this
Agreement may be suspended or terminated at any time by the Company as to any or
all Agents or by any Agent insofar as this Agreement relates to such Agent, upon
the giving of written notice of such suspension or termination to the other
parties hereto. In the event of any such suspension or termination, no party
shall have any liability to the other party hereto, except as provided in the
third paragraph of Section 2(a), Section 4(g), Section 5, Section 7, Section 8
and Section 9 and except that, if at the time of such suspension or termination,
an offer for the purchase of Securities shall have been accepted by the Company
but the delivery of the Securities relating thereto to the purchaser or his
agent shall not yet have occurred, the Company shall have the obligations
provided in subsections (c), (d), (e), (f), (g), (h), (j), (k), (l) and (m) of
Section 4. In addition, if any such termination of this Agreement shall occur at
a time when any Agent shall own any of the Securities purchased from the Company
with the intention of reselling them, the obligations of the Company under
Section 4 shall also remain in effect so long as such Agent owns any of such
Securities.
11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in writing,
and if to Chase Securities Inc., shall be sufficient in all respects when
delivered or sent by facsimile transmission or registered mail to Chase
Securities Inc., 270 Park Avenue, 8th Floor, New York, New York 10017,
Attention: Medium-Term Note Desk, facsimile (212) 834-6081, telephone (212) 834-
4421, except that notices pursuant to Section 7 shall also be sent to 1 Chase
Manhattan Plaza, 26th Floor, New York, New York 10081, Attention: Legal
Department; if to Credit Suisse First Boston Corporation, shall be sufficient in
all respects when delivered or sent by facsimile transmission or registered mail
to , Eleven Madison Avenue, New York, New York 10010, Facsimile Transmission No.
212-325-8183, Attention: Short and Medium-Term Finance; if to Goldman, Sachs &
Co., shall be sufficient in all respects when delivered or sent by facsimile
transmission or registered mail to 85 Broad Street New York, New York 10004,
Facsimile Transmission No. 212-902-0658, Attention: Ben Smilchemsky; if to
Lehman Brothers, Inc., shall be sufficient in all respects when delivered or
sent by facsimile transmission or registered mail to 3 World Financial Center,
12th Floor, New York, NY 10285, Facsimile Transmission No. 212-526-1532,
Attention: Medium-Term Note Department; and if to the Company shall be
sufficient in all respects when delivered or sent by facsimile transmission or
registered mail to Providian Financial Corporation, 201
21
<PAGE>
Mission Street, San Francisco, California 94105, Facsimile Transmission No.
(415) 278-6028, Attention: Treasurer.
12. This Agreement and any Terms Agreement shall be binding upon, and
inure solely to the benefit of, each of you and the Company, and to the extent
provided in Section 7, Section 8 and Section 9 hereof, the officers and
directors of the Company and any person who controls any of you or the Company,
and your respective personal representatives, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any Terms Agreement. No purchaser of any of the Securities through
or from any of you shall be deemed a successor or assign by reason of such
purchase.
13. This Agreement and any Terms Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
14. Time shall be of the essence in this Agreement and any Terms
Agreement.
15. This Agreement and any Terms Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be an original, but all of such respective counterparts shall
together constitute one and the same instrument.
22
<PAGE>
If the foregoing is in accordance with your understanding, please
sign and return to us five counterparts hereof, whereupon this letter and the
acceptance by you thereof shall constitute a binding agreement between the
Company and each of you in accordance with its terms.
Very truly yours,
PROVIDIAN FINANCIAL CORPORATION
By: /s/ David J. Petrini
_______________________________
Name: David J. Petrini
Title: Executive Vice President
Accepted in New York, New York, as of the date hereof:
CHASE SECURITIES INC.
By: /s/ Therese Esperdy
__________________________________
Name: Therese Esperdy
Title: Managing Director
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Julie A. Keogh
__________________________________
Name: Julie A. Keogh
Title: Authorized Signatory
GOLDMAN, SACHS & CO.
By: /s/ Goldman, Sachs & Co.
__________________________________
(Goldman, Sachs & Co.)
LEHMAN BROTHERS INC.
By: /s/ James W. Merli
__________________________________
Name: James W. Merli
Title: Managing Director
23
<PAGE>
ANNEX I
-------
Providian Financial Corporation
TERMS AGREEMENT
---------------
__________ __, ____
Chase Securities Inc.
270 Park Avenue
New York, NY 10017
Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, NY 10010
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Lehman Brothers Inc.
3 World Financial Center, 12th Floor
New York, NY 10285
Dear Sirs:
Providian Financial Corporation (the "Company") proposes, subject to
the terms and conditions stated herein and in the Distribution Agreement, dated
May 14, 1999 (the "Distribution Agreement"), between the Company and Chase
Securities Inc., Credit Suisse First Boston Corporation, Goldman, Sachs & Co.
and Lehman Brothers Inc. to issue and sell to you the securities specified in
the Schedule hereto (the "Purchased Securities"). Each of the provisions of the
Distribution Agreement not specifically related to the solicitation by such
firms, as agents of the Company, of offers to purchase Securities is
incorporated herein by reference in its entirety, and shall be deemed to be part
of this Terms Agreement to the same extent as if such provisions had been set
forth in full herein, provided that for purposes of this Terms Agreement all
references in the Distribution Agreement to "you" or "the Agents" shall be
deemed to refer to you alone. Nothing contained herein or in the Distribution
Agreement shall make you an agent of the Company or make you subject to the
provisions therein relating to the solicitation of offers to purchase securities
from the Company, solely by virtue of your execution of this Terms Agreement.
Each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Terms Agreement, except that each
representation and warranty with respect to the Prospectus in Section 1 of the
Distribution Agreement shall be deemed to be a representation and warranty as of
the date of the Distribution Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the
<PAGE>
date of this Terms Agreement in relation to the Prospectus as amended and
supplemented to relate to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company agrees to
issue and sell to you and you severally agree to purchase from the Company the
Purchased Securities, at the time and place, in the principal amount set forth
opposite your names and at the purchase price set forth in the Schedule hereto.
You may terminate this Terms Agreement, by written notice from all of
you to the Company, at any time at or prior to the Time of Delivery, if any
condition set forth in Section 6 of the Distribution Agreement shall not have
been satisfied when and as required to be satisfied, and such termination shall
be without liability of any party to any other party except as provided in the
following sentence and in Section 5 of the Distribution Agreement and except
that Sections 4(g), 5, 7 and 9 of the Distribution Agreement shall survive such
termination and remain in full force and effect. If you terminate this Terms
Agreement in accordance with the preceding sentence, the Company shall reimburse
you for all of your out-of-pocket expenses, including the reasonable fees and
disbursements of your counsel.
If the foregoing is in accordance with your understanding, please sign
and return to us five counterparts hereof, and upon acceptance by you, this
letter, including those provisions of the Distribution Agreement incorporated
herein by reference, shall constitute a binding agreement between you and the
Company.
PROVIDIAN FINANCIAL CORPORATION
By: ___________________________________
Name:
Title:
Accepted as of the date hereof:
CHASE SECURITIES INC.
By:___________________________
Name:
Title:
I-2
<PAGE>
CREDIT SUISSE FIRST BOSTON CORPORATION
By:_____________________________
Name:
Title:
GOLDMAN, SACHS & CO.
By:_____________________________
(Goldman, Sachs & Co.)
LEHMAN BROTHERS INC.
By:_____________________________
Name:
Title:
I-3
<PAGE>
Schedule to Annex I
Agent Allocation:
- ----------------
Principal Amount
Name of Purchased Securities
---- -----------------------
[ ]....................... $[ ]
[ ]....................... $[ ]
[ ]....................... $[ ]
[ ]....................... $[ ]
[ ]....................... $[ ]
Total............................. $[ ]
Title of Purchased Securities:
Medium-Term Notes, Series A [ % [Senior] [Subordinated] Notes due ]
Specified Currency:
Aggregate principal amount:
[$ or units of other Specified Currency]
[Price to Public:]
Purchase Price:
% of the principal amount of the Purchased
Securities, plus accrued interest from to
[and accrued amortization, if any, from to ]
Specified funds for payment of purchase price:
[New York Clearing House] [same day] funds
Rank:
Indenture:
[Senior Indenture, dated as of May 1, 1999, as amended or supplemented to
the date hereof, between the Company and The First National Bank of
Chicago, as trustee.] [Subordinated Indenture, dated as of May 1, 1999, as
amended or supplemented to the date hereof, between the Company and Chase
Manhattan Bank and Trust Company, National Association, as trustee.]
I-4
<PAGE>
Maturity:
Denominations (if other than U.S. dollars):
Interest Rate:
[ %] [Specify floating rate provisions]
Interest Payment Dates:
[months and dates]
[Amortizing Security:
Initial Principal Repayment Date:
Amortization Schedule:]
[Interest Rate Reset:
Optional Reset Date(s):
Basis for Interest Rate Reset:]
[Extension of Maturity:
Extension Period(s):
Final Maturity Date:
Basis for Interest Rate [During Extension]:]
[Renewal of Maturity:
Renewal Period(s):
Final Maturity Date:
Basis for Interest Rate [During Renewal]:]
Time of Delivery:
Closing Location:
Documents to be Delivered:
The following documents referred to in the Distribution Agreement shall be
delivered:
[(1) The officers' certificate referred to in Section 4(j).]
I-5
<PAGE>
[(2) The opinion referred to in Section 4(k).]
[(3) The accountants' letter referred to in Section 4(l).]
Syndicate Provisions:
[Set forth any provisions relating to underwriters' default and step-
up of amounts to be purchased by underwriters acting with ___________________.]
Other Provisions:
I-6
<PAGE>
ANNEX II
--------
PROVIDIAN FINANCIAL CORPORATION
Administrative Procedure
------------------------
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated May 14, 1999 (the "Distribution Agreement"),
between Providian Financial Corporation (the "Company") and Chase Securities
Inc., Credit Suisse First Boston Corporation, Goldman, Sachs & Co., and Lehman
Brothers Inc., as agents of the Company (together, the "Agents"), to which this
Administrative Procedure is attached as Annex II. Defined terms used herein and
not defined herein shall have the meanings given such terms in the Distribution
Agreement, the Prospectus, as amended or supplemented, or the Indentures. To
the extent any procedure set forth below conflicts with the provisions of the
Securities, the Indentures or the Distribution Agreement, the relevant
provisions of the Securities, the Indentures and the Distribution Agreement
shall control.
The procedures to be followed with respect to the settlement of sales
of Securities directly by the Company to purchasers solicited by an Agent, as
agent, are set forth below. Part I describes procedures of general applicability
with respect to such Securities. Part II describes procedures specifically and
exclusively applicable (any procedure in Part I below to the contrary
notwithstanding) to such Securities which are Global Securities. Part III
describes procedures specifically applicable to such Securities which are
Certificated Securities. The terms and settlement details related to a purchase
of Securities by an Agent, as principal, from the Company will be set forth in a
Terms Agreement pursuant to the Distribution Agreement. An Agent, in relation
to a purchase of a Security by a purchaser solicited by such Agent, is referred
to herein as the "Selling Agent" and, in relation to a purchase of a Security by
such Agent as principal other than pursuant to a Terms Agreement, as the
"Purchasing Agent".
The Company will advise each Agent in writing of those persons
representing the Company with whom such Agent is to communicate regarding offers
to purchase Securities and the related settlement details.
Each Security will be issued only in fully registered form and will be
represented by either a permanent global certificate (a "Global Certificate")
delivered to the Issuing Agent, as agent for The Depository Trust Company (the
"Depositary"), or a certificate issued in definitive form without coupons (a
"Certificated Security") as set forth in the applicable Pricing Supplement.
Each Security which is represented by a Global Certificate is referred to herein
as a "Book-Entry Security" (it being understood that only such Global
Certificate -- and not any such Book-Entry Security represented thereby --
constitutes a "Security" under each Indenture).
The Company has appointed The First National Bank of Chicago as
trustee under the Senior Indenture (the "Senior Trustee") and Chase Manhattan
Bank and Trust Company, National Association, as trustee under the Subordinated
Indenture (the "Subordinated Trustee," and together with the Senior Trustee, the
"Trustees"). In addition, the Company has appointed The First National Bank of
Chicago as Senior Issuing Agent (the "Senior Issuing Agent") and Chase Manhattan
Bank and Trust Company, National Association, as Subordinated Issuing
<PAGE>
Agent (the "Subordinated Issuing Agent", and together with the Senior Issuing
Agent, the "Issuing Agents") in connection with certain procedures to be
followed with respect to the settlement of sales of Securities as set forth in
this Administrative Procedure. The Company has also appointed The First National
Bank of Chicago as Calculation Agent for the Securities issued under the Senior
Indenture (the "Senior Calculation Agent") and Chase Manhattan Bank and Trust
Company, National Association, as Calculation Agent for the Securities issued
under the Subordinated Indenture (the "Subordinated Calculation Agent", and
together with the Senior Calculation Agent, the "Calculation Agents") In
addition, the Company has appointed The First National Bank of Chicago as
Determination Agent (the "Determination Agent") and as Exchange Rate Agent (the
"Exchange Rate Agent") for the Securities.
ANY REFERENCE IN THIS ADMINISTRATIVE PROCEDURE TO THE "TRUSTEE" AND
"ISSUING AGENT" SHALL MEAN THE SENIOR TRUSTEE AND SENIOR ISSUING AGENT,
RESPECTIVELY, WITH RESPECT TO THE SENIOR NOTES (AS DESCRIBED IN THE PROSPECTUS)
AND THE SUBORDINATED TRUSTEE AND SUBORDINATED ISSUING AGENT, RESPECTIVELY, WITH
RESPECT TO THE SUBORDINATED NOTES (AS DESCRIBED IN THE PROSPECTUS).
PART I: PROCEDURES OF GENERAL APPLICABILITY
Posting Rates by Company:
- ------------------------
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Securities that may be
sold as a result of the solicitation of offers by an Agent. The Company may
establish a fixed set of interest rates and maturities for an offering period
("posting"). If the Company decides to change already posted rates, it will
promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
Acceptance of Offers by Company:
- -------------------------------
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Securities, other than
those rejected by such Agent. Each Agent may, in its discretion reasonably
exercised, reject any offer received by it in whole or in part. Each Agent also
may make offers to the Company to purchase Securities as a Purchasing Agent (in
such capacity, a "Purchasing Agent"). The Company will have the sole right to
accept offers to purchase Securities and may reject any such offer in whole or
in part.
The Company will promptly notify the Selling Agent or Purchasing
Agent, as the case may be, of its acceptance or rejection of an offer to
purchase Securities. If the Company accepts an offer to purchase Securities, it
will confirm such acceptance in writing to the Selling Agent or Purchasing
Agent, as the case may be, and the Issuing Agent.
Preparation of Pricing Supplement by Company:
- --------------------------------------------
If the Company accepts an offer to purchase a Security, it will
prepare a Pricing Supplement. The Company will send a copy of such Pricing
Supplement to the Selling Agent or Purchasing Agent, as the case may be, not
later than 2:00 p.m., New York City time, on the business day following the date
of acceptance of such offer, or if the Company and the purchaser
II-2
<PAGE>
agree to settlement of such Security on the date of such acceptance, not later
than noon, New York City time, on such date. In addition, if Chase Securities
Inc. is Selling Agent or Purchasing Agent, the Company will send at least one
copy of such Pricing Supplement, to arrive not later than 2:00 p.m., New York
City time, on the business day in New York following the date of acceptance of
such offer, by facsimile transmission or registered mail to 270 Park Avenue, 8th
Floor, New York, New York 10017, Facsimile Transmission No. (212) 834-6081,
Attention: Medium-Term Note Desk. In addition, if Credit Suisse First Boston
Corporation is Selling Agent or Purchasing Agent, the Company will send at least
one copy of such Pricing Supplement, to arrive not later than 2:00 p.m., New
York City time, on the business day in New York following the date of acceptance
of such officer, by facsimile transmission or registered mail to Eleven Madison
Avenue, New York, New York 10010, Facsimile Transmission No. (212) 325-8183,
Attention: Short and Medium-Term Finance. In addition, if Goldman, Sachs & Co.
is Selling Agent or Purchasing Agent, the Company will send at least one copy of
such Pricing Supplement, to arrive not later than 2:00 p.m., New York City time,
on the business day in New York following the date of acceptance of such offer,
by facsimile transmission or registered mail to: 85 Broad Street, New York, New
York 10004, Facsimile Transmission No. (212) 902-0658, Attention: Ben
Smilchemsky. In addition, if Lehman Brothers Inc. is Selling Agent or Purchasing
Agent, the Company will send at least one copy of such Pricing Supplement, to
arrive not later than 2:00 p.m., New York City time, on the business day in New
York following the date of acceptance of such offer, by facsimile transmission
or registered mail to 3 World Financial Center, 12th Floor, New York, NY 10285,
Facsimile Transmission No. 212-526-1532, Attention: Medium-Term Note Department.
The Company will arrange to have the Pricing Supplement filed with the
Commission via EDGAR not later than the close of business of the Commission on
the second business day following the earlier of the date of the determination
of the offering price or the date on which such Pricing Supplement is first
used.
Delivery of Confirmation and
Prospectus to Purchaser by Selling Agent:
- -----------------------------------------
The Selling Agent will deliver to the purchaser of a Security a
written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Security prior to or together with the earlier of the delivery
to such purchaser or its agent of (a) the confirmation of sale (including, in
the case of a Book-Entry Security, the confirmation through the Depositary's
Institutional Delivery System) or (b) the Security.
Business Day:
- ------------
"Business Day" means (a) with respect to any Note, any day that is not
a Saturday or Sunday and that, in the City of New York is not a day on which
banking institutions generally are authorized or obligated by law to close, and
(b) if the Note is denominated in a Specified Currency other than United States
dollars, not a day on which banking institutions are authorized or required by
law to close in the financial center of the country issuing the Specified
Currency, and (c) with respect to LIBOR Notes only, a London Business Day. As
used in the preceding sentence, "financial center" means the capital city of the
country issuing the Specified Currency, or the capital city of the country to
which the LIBOR Currency relates, as applicable, except that
II-3
<PAGE>
with respect to United States dollars, Australian dollars, Canadian dollars,
Deutsche marks, Dutch guilders, Euro, Italian lire, Portuguese Escudos, South
African rand and Swiss francs, the "financial center" shall be the City of New
York, Sydney and (solely in the case of the LIBOR Currency) Melbourne, Toronto,
Frankfurt, Amsterdam, London and Luxembourg, Milan, London (solely in the case
of the LIBOR Currency), Johannesburg and Zurich, respectively. "London Business
Day" means any day (a) if the LIBOR Currency is other than the Euro, on which
dealings in deposits in such LIBOR Currency are transacted in the London
interbank market or (b) if the LIBOR Currency is the Euro, any day on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET)
System is open. "LIBOR Currency" means, with respect to any Notes, the currency
specified in the Pricing Supplement applicable to such Notes as the currency for
which LIBOR shall be calculated; provided that, if no such currency is specified
in such Pricing Supplement, the LIBOR Currency shall be United States dollars.
PART II: PROCEDURES APPLICABLE TO BOOK-ENTRY
SECURITIES AND GLOBAL SECURITIES
In connection with the qualification of Book-Entry Securities for
eligibility in the book-entry system maintained by the Depositary, the
applicable Issuing Agent and the applicable Trustee will perform the custodial,
document control and administrative functions described below, in accordance
with their respective obligations under (i) a Letter of Representations from the
Company and The First National Bank of Chicago, as Senior Trustee and Senior
Issuing Agent, to the Depositary, dated May 14, 1999, and a Medium-Term Note
Certificate Agreement, dated May 26, 1989, between The First National Bank of
Chicago and the Depositary, and the obligations of The First National Bank of
Chicago as a participant in the Depositary, including the Depositary's Same-Day
Funds Settlement System ("SDFS") and (ii) a Letter of Representations from the
Company and Chase Manhattan Bank and Trust Company, National Association, as
Subordinated Trustee and Subordinated Issuing Agent, to the Depositary, dated
May 14, 1999, and a Medium-Term Note Certificate Agreement, dated December 2,
1988, between Chase Manhattan Bank and Trust Company, National Association and
the Depositary, and the obligations of Chase Manhattan Bank and Trust Company,
National Association, as a participant in the Depositary, including the
Depositary's SDFS. It is understood that the ownership interests of purchasers
of Book-Entry Securities will be credited to the book-entry accounts of one or
more participants in the Depositary (each a "Participant") in accordance with
the Depositary's customary practices and reflected in the records of such
Participants or one or more indirect participants in the Depositary designated
by such purchasers in accordance with the arrangements between such purchasers
and such Participants and indirect participants.
Issuance: All Fixed Rate Securities which are Book-Entry
Securities and have the same rank (senior or
subordinated), Original Issue Date, redemption
provisions, Interest Payment Dates, interest rate,
interest payment periods, Specified Currency, Stated
Maturity and other terms, if any (collectively, the
"Fixed Rate Terms"), will be represented by a single
Global Certificate in fully registered form without
coupons; and all Floating Rate Securities which are
Book-Entry Securities and have the
II-4
<PAGE>
same rank (senior or subordinated), Original Issue
Date, redemption provisions, Interest Payment Dates,
interest payment periods, Interest Rate Basis or Bases,
Initial Interest Rate, Index Maturity, Spread or Spread
Multiplier, if any, Minimum Interest Rate, if any,
Maximum Interest Rate, if any, Specified Currency,
Stated Maturity and other terms, if any (collectively,
the "Floating Rate Terms"), will be represented by a
single Global Certificate in fully registered form
without coupons.
Identification: The Company has arranged with the CUSIP Service Bureau
of Standard & Poor's Rating Services, a division of The
McGraw-Hill Companies, Inc. (the "CUSIP Service
Bureau"), for the reservation of two series of CUSIP
numbers (including tranche numbers), each of which
series consists of approximately 900 CUSIP numbers
which have been reserved for future assignment and
relating to one of the two ranks of Book-Entry
Securities, and the Company has delivered to the
Issuing Agent and the Depositary such list of such
CUSIP numbers. The Company will assign CUSIP numbers to
Book-Entry Securities as described below under
Settlement Procedure C. The Depositary will notify the
CUSIP Service Bureau periodically of the CUSIP numbers
that the Company has assigned to Book-Entry Securities.
The Issuing Agent will notify the Company at any time
when fewer than 100 of the reserved CUSIP numbers
remain unassigned to Book-Entry Securities, and, if it
deems necessary, the Company will reserve additional
CUSIP numbers for assignment to Book-Entry Securities.
Upon obtaining such additional CUSIP numbers, the
Company will deliver a list of such additional numbers
to the Issuing Agent and the Depositary. Book-Entry
Securities having an aggregate principal amount in
excess of $200,000,000 and otherwise required to be
represented by the same Global Certificate will instead
be represented by two or more Global Certificates which
shall all be assigned the same CUSIP number.
Registration: Each Global Certificate will be registered in the name
of Cede & Co., as nominee for the Depositary, on the
Security Register maintained by the Trustee under the
applicable Indenture. On the first Business Day of each
month, the Trustee will deliver to the Company a
written statement indicating the total principal amount
of Outstanding Book-Entry Securities as of the
immediately preceding Business Day.
Transfers: Transfers of interests in a Book-Entry Security will be
effected in accordance with arrangements in effect
between Participants (and in certain cases, one or more
indirect participants in the Depositary) and the
beneficial transferors and beneficial transferees of
such Book-Entry Security, and the interests of
Participants therein will be reflected as
II-5
<PAGE>
appropriate by book entries made by the Depositary.
Exchanges: The Issuing Agent may deliver to the Depositary and the
CUSIP Service Bureau at any time a written notice
specifying (a) the CUSIP numbers of two or more Global
Certificates (i) having the same rank and Fixed Rate
Terms or Floating Rate Terms, as the case may be
(except that Original Issue Dates need not be the
same), (ii) for which interest (if any) has been paid
to the same date and (iii) which otherwise constitute
Securities of the same series and tenor under the
Indenture; (b) a date, occurring at least 30 days after
such written notice is delivered and at least 30 days
before the next Interest Payment Date (if any) for such
Book-Entry Securities, on which such Global
Certificates shall be exchanged for a single
replacement Global Certificate; and (c) a new CUSIP
number to be assigned to such replacement Global
Certificate. Upon receipt of such a notice, the
Depositary will send to its Participants (including the
Issuing Agent) a written reorganization notice to the
effect that such exchange will occur on such date.
Prior to the specified exchange date, the Issuing Agent
will deliver to the CUSIP Service Bureau written notice
setting forth such exchange date and the new CUSIP
number and stating that, as of such exchange date, the
CUSIP numbers of the Global Certificates to be
exchanged will no longer be valid. On the specified
exchange date, the Issuing Agent will exchange such
Global Certificates for a single Global Certificate
authenticated by the Trustee and bearing the new CUSIP
number, and the CUSIP numbers of the exchanged Global
Certificates will, in accordance with CUSIP Service
Bureau procedures, be retired and not reassigned.
Notwithstanding the foregoing, if the Global
Certificates to be exchanged exceed $200,000,000 in
aggregate principal amount, one replacement Global
Certificate will be authenticated and issued to
represent each $200,000,000 of principal amount of the
exchanged Global Certificates and an additional Global
Certificate will be authenticated and issued to
represent any remaining principal amount of such Global
Certificates (see "Denominations" below).
Denominations: Book-Entry Securities denominated in U.S. dollars will
be issued in denominations of $1,000 and any larger
denomination which is an integral multiple of $1,000.
Global Certificates will be denominated in principal
amounts not in excess of $200,000,000. If one or more
Book-Entry Securities having an aggregate principal
amount in excess of $200,000,000 would, but for the
preceding sentence, be represented by a single Global
Certificate, then one Global Certificate will be issued
to represent each $200,000,000 principal amount of such
Book-Entry Security or Book-Entry Securities and an
additional Global Certificate will be issued to
represent any remaining principal amount of such Book-
Entry Security or Book-Entry Securities. In such a
case, each of the Global Certificates representing such
Book-Entry Security or
II-6
<PAGE>
Securities shall be assigned the same CUSIP number.
Book-Entry Securities denominated in currencies or
currency units other than U.S. dollars shall be issued
in the denominations set forth in the relevant Pricing
Supplement.
Interest: General. The Depositary will arrange for each pending
-------
deposit message described under Settlement Procedure C
below to be transmitted to Standard & Poor's Rating
Services, a division of The McGraw-Hill Companies, Inc.
("S&P"), which will use the message to include certain
information regarding the related Book-Entry Securities
in the appropriate daily bond report published by S&P.
Notice of Interest Payments and Regular Record Dates.
----------------------------------------------------
Promptly after the amount of interest to be paid on the
following interest payment date is determined for Book-
Entry Securities which are Floating Rate Notes, the
Issuing Agent will notify S&P.
Payments of Payments of Interest Only. Promptly after each
-------------------------
Principal and Regular Record Date, the Issuing Agent will deliver
Interest: to the Company and the Dividend Department of the
Depositary a written notice specifying by CUSIP number
the amount of interest (if any) per $1,000 principal
amount to be paid on each Book-Entry Security on the
following Interest Payment Date (other than an Interest
Payment Date coinciding with the Maturity of such
Security) and the total of such amounts. The Depositary
will confirm the amount payable (if any) on each Book-
Entry Security on such Interest Payment Date by
reference to the daily bond reports published by S&P.
On such Interest Payment Date, the Company will pay to
the Trustee, and the Trustee in turn will pay to the
Depositary, such total amount of interest due (other
than at Maturity of such Security), at the times and in
the manner set forth below under "Manner of Payment".
Payments at Maturity. On or about the first Business
--------------------
Day of each month, the Trustee will deliver to the
Company and the Depositary, to the extent then known, a
written list of principal, premium, if any, and
interest to be paid on each Book-Entry Security
maturing at Stated Maturity, on a Repayment Date or on
a Redemption Date ("Maturity") in the following month.
The Trustee, the Company and the Depositary will
confirm the amounts of such principal, premium (if any)
and interest payments with respect to each such Book-
Entry Security on or about the fifth Business Day
preceding the Maturity of such Book-Entry Security. At
such Maturity, the Company will pay to the Trustee, and
the Trustee in turn will pay to the Depositary, the
principal amount of such Book-Entry Security, together
with interest and premium, if any, due at such
Maturity, at the times and in the manner set forth
below
II-7
<PAGE>
under "Manner of Payment". Promptly after payment to
the Depositary of the principal, interest and premium,
if any, due at the Maturity of all Book-Entry
Securities represented by a particular Global
Certificate, the Trustee will cancel such Global
Certificate and destroy it or return it to the Company,
at the direction of the Company.
Manner of Payment. The total amount of any principal,
-----------------
premium and interest due on Book-Entry Securities on
any Interest Payment Date or at Maturity shall be paid
by the Company to the Trustee, in funds immediately
available for use by the Trustee as of 2:00 p.m., New
York City time, on such date. The Company will make
such payment on such Book-Entry Securities by wire
transfer to the Trustee or, if acceptable to the
Trustee, by instructing the Trustee to withdraw funds
from an account maintained by the Company at the
Trustee. The Company will confirm such instructions in
writing to the Trustee. For principal payments at
Maturity, prior to 3:00 p.m., New York City time, on
such Maturity or as soon as possible thereafter, the
Trustee will pay by separate wire transfer (using
Fedwire message entry instructions in a form previously
specified by the Depositary) to an account at the
Federal Reserve Bank of New York previously specified
by the Depositary, in funds available for immediate use
by the Depositary, each payment of interest, principal
and premium, if any, due on Book-Entry Securities on
such date; and for interest payments, the Trustee will
pay the Depositary in same-day funds on the Interest
Payment Date in accordance with existing arrangements
between the Trustee and the Depositary. Thereafter on
each such date, the Depositary will pay, in accordance
with its SDFS operating procedures then in effect, such
amounts in funds available for immediate use to the
respective Participants in whose names such Book-Entry
Securities are recorded in the book-entry system
maintained by the Depositary. Once payment has been
made to the Depositary, neither the Company nor the
Trustee shall have any responsibility or liability for
the payment by the Depositary of the principal of, or
premium, if any, or interest on, the Book-Entry
Securities to such Participants.
Withholding Taxes. The amount of any taxes required
-----------------
under applicable law to be withheld from any interest
payment on a Book-Entry Security will be determined and
withheld by the Participant, indirect participant in
the Depositary or other Person responsible for
forwarding payments and materials directly to the
beneficial owner of such Book-Entry Security, or as
applicable laws may otherwise require.
Settlement Procedures: Settlement Procedures with regard to each Book-Entry
Security sold by each Agent, as agent of the Company,
will be as follows:
A. After the acceptance of an offer by the Company with
respect to a
II-8
<PAGE>
Book-Entry Security, the Selling Agent or Purchasing
Agent, as the case may be, will communicate the
following details of the terms of such offer (the
"Book-Entry Sale Information") to the Company by
telephone (confirmed in writing) or by facsimile
transmission or other acceptable written means:
(1) Principal amount of the Book-Entry Security to be
purchased;
(2) Ranking of Security (Senior or Subordinated);
(3) If a Fixed Rate Security, the interest rate;
(4) Maturity Date;
(5) Specified Currency and, if the Specified Currency
is other than U.S. dollars, the applicable
Exchange Rate for such Specified Currency;
(6) Issue Price;
(7) Selling Agent's commission or Purchasing Agent's
discount, as the case may be;
(8) Net proceeds to the Company;
(9) Settlement Date;
(10) If a Security redeemable by the Company, such of
the following as are applicable:
(i) Redemption Date(s), and
(ii) Redemption Price applicable to each Redemption
Date;
(11) If a Security repayable at the option of the
Holder, such of the following as are applicable:
(i) Repayment Date(s), and
(ii) Repayment Price applicable to each Repayment
Date;
(12) If a Floating Rate Security, such of the following
as are applicable:
(i) Interest Rate Basis or Bases,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
II-9
<PAGE>
(iv) Minimum Interest Rate,
(v) Maximum Interest Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Interest Payment Period,
(xii) Interest Reset Period,
(xiii) LIBOR Currency, and
(xiv) Calculation Agent;
(13) If an Amortizing Security:
(i) Initial Principal Repayment Date,
(ii) Amortization Schedule;
(14) If Interest Rate Reset option:
(i) Optional Reset Date(s),
(ii) Basis for interest rate reset;
(15) If Extension or Renewal of Maturity option:
(i) Extension or Renewal Period(s),
(ii) Final Maturity Date,
(iii) Basis for Interest Rate during Extension or
Renewal;
(16) Original Issue Discount provisions, if any;
(17) Name, address and taxpayer identification number
of the registered owner;
(18) Denomination of certificates to be delivered at
settlement;
(19) Depositary delivery instructions; and
(20) Any other terms of the Security.
B. Upon receiving the Book-Entry Sale Information from the
Selling Agent or the Purchasing Agent, as the case may
be, the Company will advise the Issuing Agent by
telephone (confirmed by the Company's communication of
the CUSIP number as described below under Settlement
Procedure C) of the Book-Entry Sale Information received
from the Selling Agent or the Purchasing Agent, as the
case may be, and the name of such Selling or
II-10
<PAGE>
Purchasing Agent.
C. The Company will assign a CUSIP number to the Global
Certificate representing such Book-Entry Security and
will communicate such assignment to the Issuing Agent,
which will communicate to the Depositary, such Selling
or Purchasing Agent, S&P, and Interactive Data
Corporation, through the Depositary's Participant
Terminal System, a pending deposit message (the form of
which has been previously furnished to the Issuing Agent
by the Depositary) specifying the following settlement
information:
(1) The Book-Entry Sale Information.
(2) Identification numbers of the participant accounts
maintained by the Depositary on behalf of the
Issuing Agent and such Agent.
(3) Identification as a Senior Security or Subordinated
Security.
(4) Identification as a Fixed Rate Security or a
Floating Rate Security.
(5) Initial Interest Payment Date for such Security,
number of days by which such date succeeds the
related record date for Depositary purposes (or, in
the case of Floating Rate Notes which reset daily
or weekly, the date five calendar days preceding
such Initial Interest Payment Date) and, if then
calculable, the amount of interest payable on such
Initial Interest Payment Date (which amount shall
have been confirmed by the Company).
(6) CUSIP number of the Global Certificate representing
such Book-Entry Security.
(7) Whether such Global Certificate will represent any
other Book-Entry Securities issued or to be issued
(to the extent then known).
II-11
<PAGE>
D. The Issuing Agent will complete and deliver to the
Trustee a Global Certificate representing such Book-
Entry Security in the form previously provided by the
Company, and the Company will instruct the Trustee by
facsimile transmission or other acceptable written means
to authenticate such Global Certificate, to register
such Global Certificate in the name of Cede & Co., as
nominee of the Depositary, and to effect delivery
thereof to the Depositary by delivering possession of
such authenticated Global Certificate to the Issuing
Agent as agent for the Depositary.
E. The Trustee will authenticate the Global Certificate
representing such Book-Entry Security and register such
Global Certificate in the name of Cede & Co., as nominee
of the Depositary. The Issuing Agent will take delivery
thereof as agent for the Depositary.
F. The Depositary will credit such Book-Entry Security to
the participant account of the Issuing Agent maintained
by the Depositary.
G. The Issuing Agent will enter an SDFS deliver order
through the Depositary's Participant Terminal System
instructing the Depositary (i) to debit such Book-Entry
Security to the Issuing Agent's participant account and
credit such Book-Entry Security to the participant
account of the Selling Agent or the Purchasing Agent, as
the case may be, maintained by the Depositary and (ii)
to debit the settlement account of the Selling Agent or
the Purchasing Agent, as the case may be, and credit the
settlement account of the Issuing Agent maintained by
the Depositary, in an amount equal to the price of such
Book-Entry Security less such Selling or Purchasing
Agent's commission or discount, as the case may be. Any
entry of such a deliver order shall be deemed to
constitute a confirmation by the Trustee and the Issuing
Agent to the Depositary that (i) the Global Certificate
representing such Book-Entry Security has been issued
and authenticated and (ii) the Issuing Agent is holding
such Global Certificate as agent of the Depositary
pursuant to its Medium-Term Certificate Agreement.
H. The Selling Agent or the Purchasing Agent, as the case
may be, will enter an SDFS deliver instruction through
the Depositary's Participant Terminal System instructing
the Depositary (i) to debit such Book-Entry Security to
the participant account of such Selling or Purchasing
Agent and credit such Book-Entry Security to the
participant accounts of the Participants with respect to
such Book-Entry Security maintained by the Depositary
and (ii) to debit the settlement accounts of such
Participants and credit the
II-12
<PAGE>
settlement account of such Selling or Purchasing Agent
maintained by the Depositary in an amount equal to the
price of such Book-Entry Security.
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures G and H will
be settled in accordance with SDFS operating procedures
in effect on the Settlement Date.
J. The Issuing Agent will credit to an account of the
Company maintained at the Issuing Agent, or such other
account as the Company may direct in writing, funds
available for immediate use in the amount transferred to
the Issuing Agent in accordance with Settlement
Procedure G.
K. The Issuing Agent will send a copy of the Global
Certificate by first-class mail to the Company together
with a statement setting forth the principal amount of
Securities Outstanding and of Book-Entry Securities
Outstanding as of the related Settlement Date after
giving effect to such transaction.
L. The Selling Agent or the Purchasing Agent, as the case
may be, will confirm the purchase of such Book-Entry
Security to the purchaser either by transmitting to the
Participants with respect to such Book-Entry Security a
confirmation order through the Depositary's Participant
Terminal System or by mailing a written confirmation to
such purchaser.
M. Notwithstanding the foregoing, the Selling Agent shall
in all cases take the actions described under the
caption "Delivery of Confirmation and Prospectus to
Purchaser by Selling Agent" in Part I of this
Administrative Procedure, at the time or times specified
under such caption for such actions.
Settlement For orders of Book-Entry Securities accepted by the
Procedures Company, Settlement Procedures "A" through "L" set forth
Timetable: above shall be completed as soon as possible but not
later than the respective times (New York City time) set
forth below:
Settlement
Procedure Time
--------- ----
A 11:00 a.m. on the trade date (or
one hour following the
trade)
B 12:00 Noon on the trade date (or
one hour following the
trade)
II-13
<PAGE>
C 5:00 p.m. on the trade date
D 3:00 p.m. on the Business Day
before Settlement Date
E 9:00 a.m. on Settlement Date
F 10:00 a.m. on Settlement Date
G-H 2:00 p.m. on Settlement Date
I 4:45 p.m. on Settlement Date
J-L 5:00 p.m. on Settlement Date
If a sale is to be settled more than one Business Day
after the trade date, Settlement Procedures A, B, and C
may, if necessary, be completed at any time prior to the
specified times on the first Business Day after the
trade date. In connection with a sale which is to be
settled more than one Business Day after the trade date,
if the initial interest rate for a Floating Rate Note is
not known at the time that Settlement Procedure A is
completed, Settlement Procedures B and C shall be
completed as soon as such rates have been determined,
but no later than 11:00 a.m. and 2:00 p.m., New York
City time, respectively, on the Business Day before the
Settlement Date. Settlement Procedure I is subject to
extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in
effect on the settlement date.
If settlement of a Book-Entry Security is rescheduled or
canceled, the Company will as soon as practicable give
the Issuing Agent notice to such effect. The Issuing
Agent will deliver to the Depositary, through the
Depositary's Participant Terminal System, a cancellation
message (the form of which has been previously furnished
to the Issuing Agent by the Depositary) to such effect
by no later than 2:00 p.m., New York City time, on the
Business Day immediately preceding the scheduled
Settlement Date (provided the Issuing Agent received
such notice from the Company by noon on the Business Day
immediately preceding the Settlement Date) and in any
case as soon as practicable. A copy of such message will
be routed through the facilities of the Depositary to
the Selling Agent and S&P.
Failure to Settle: If the Issuing Agent fails to enter in timely fashion an
SDFS deliver order with respect to any portion of a
Book-Entry Security pursuant to Settlement Procedure G,
or if the Selling Agent or the Purchasing Agent, as the
case may be, fails to enter in timely fashion an SDFS
deliver order with respect to such Book-Entry Security
pursuant to Settlement Procedure H, the Company may
direct the Issuing Agent to deliver to the Depositary,
through the Depositary's Participant Terminal System, as
soon as practicable, a withdrawal message (the form of
which has been previously furnished to the Issuing Agent
by the Depositary) instructing the Depositary to debit
such Book-Entry Security to the participant account of
the Issuing Agent maintained at
II-14
<PAGE>
the Depositary. A copy of such message will be routed
through the facilities of the Depositary to such Selling
or Purchasing Agent. The Depositary will process the
withdrawal message, provided that such participant
account contains Book-Entry Securities having the same
Fixed Rate Terms or Floating Rate Terms, as the case may
be, having an aggregate principal amount that is at
least equal to the principal amount to be debited. If
withdrawal messages are processed with respect to all
the Book-Entry Securities represented by a particular
Global Certificate, the Issuing Agent will deliver the
Global Certificate to the Trustee, and the Company will
instruct the Trustee to cancel immediately such Global
Certificate, make appropriate entries in its records
and, unless otherwise instructed by the Company, destroy
the Global Certificate. The CUSIP number assigned to
such Global Certificate shall, in accordance with CUSIP
Service Bureau procedures, be retired and not
reassigned. If withdrawal messages are processed with
respect to only a portion of the Book-Entry Securities
represented by a particular Global Certificate, the
Issuing Agent will exchange such Global Certificate for
two Global Certificates authenticated by the Trustee,
one of which shall represent the Book-Entry Securities
for which withdrawal messages are processed and shall,
at the direction of the Company, be canceled by the
Trustee and destroyed immediately after issuance, and
the other of which shall represent the other Book-Entry
Securities previously represented by the surrendered
Global Certificate and shall bear the CUSIP number of
the surrendered Global Certificate. If such failure
shall have occurred for any reason other than default by
the Selling or Purchasing Agent in the performance of
its obligations under the Distribution Agreement, the
Company will reimburse such Selling or Purchasing Agent
on an equitable basis for its loss of the use of funds
during any period when the funds were credited to the
account of the Company in connection with such attempted
settlement.
If the purchase price for any Book-Entry Security is not
timely paid to the Participants with respect to such
Security by the beneficial purchaser thereof or by a
person, including an indirect participant in the
Depositary, acting on behalf of such purchaser (other
than the Purchasing Agent, if any), such Participants
and, in turn, the Selling Agent or the Purchasing Agent,
as the case may be, may enter SDFS deliver orders
through the Depositary's Participant Terminal System
reversing the orders entered pursuant to Settlement
Procedures G and H, respectively. Immediately
thereafter, the Company may direct the Issuing Agent to
deliver the withdrawal message and take the related
actions described in the preceding paragraph. If such
lack of timely payment shall have occurred for any
reason other than default by the Selling or Purchasing
Agent in the performance of its obligations under the
Distribution Agreement, the Company will reimburse such
Agent on an equitable basis for its loss of the use of
funds during any period when
II-15
<PAGE>
the funds were credited to the account of the Company in
connection with such attempted settlement.
Notwithstanding the foregoing, upon any failure to
settle with respect to any portion of a Book-Entry
Security, the Depositary may take any actions in
accordance with its SDFS operating procedures then in
effect. In the event of a failure to settle with respect
to any portion of a Book-Entry Security that was to have
been represented by a Global Certificate also
representing other Book-Entry Securities, the Issuing
Agent and, if applicable, the Trustee will provide, in
accordance with Settlement Procedures D and E, for the
authentication and issuance of a Global Certificate
representing the remaining principal amount to have been
represented by such Global Certificate and will make
appropriate entries in its records.
II-16
<PAGE>
Issuing Agent and Nothing herein will be deemed to require the Issuing
Trustee Not to Risk Agent or the Trustee to risk or expend its own funds in
Funds: connection with any payment to the Company, the Selling
or Purchasing Agents, the Depositary or any
Securityholder, it being understood by all parties that
payments made by the Issuing Agent or the Trustee to any
party will be made only to the extent that funds are
provided to the Issuing Agent, or the Trustee, as the
case may be, for such purpose.
II-17
<PAGE>
PART III: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED
SECURITIES
Currency:
- --------
Each Note in certificated form shall be denominated in the currencies
or currency units specified in the relevant Pricing Supplement. Notes
denominated in other than U.S. dollars are herein referred to as "Multi-Currency
Notes".
Denominations:
- -------------
Notes denominated in other than U.S. dollars will be issuable in
denominations as set forth in the relevant Pricing Supplement.
Payments of Principal and Interest:
- ----------------------------------
For provisions relating to Notes denominated in a foreign currency,
see the applicable Supplement to the Prospectus.
Communication of Sale Information
to Company by Selling Agent:
- ---------------------------
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate the following details of
the terms of such offer (the "Sale Information") to the Company by telephone
(confirmed in writing) or by facsimile transmission or other acceptable written
means:
(1) Principal amount of Securities to be purchased;
(2) If a Fixed Rate Security, the interest rate;
(3) Maturity Date;
(4) Specified Currency and, if the Specified Currency is other than
U.S. dollars:
(i) Applicable Exchange Rate for such Specified Currency, and
(ii) Authorized denominations;
(5) Issue Price;
(6) Selling Agent's commission or Purchasing Agent's discount, as the
case may be;
(7) Net proceeds to the Company;
(8) Settlement Date and Settlement Place;
II-18
<PAGE>
(9) If a Security redeemable by the Company, such of the following as
are applicable:
(i) Redemption Date(s), and
(ii) Redemption Price applicable to each Redemption Date;
(10) If a Security repayable at the option of the Holder, such of the
following as are applicable:
(i) Repayment Date(s), and
(ii) Repayment Price applicable to each Repayment Date;
(11) If a Floating Rate Security, such of the following as are
applicable:
(i) Interest Rate Basis or Bases,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Minimum Interest Rate,
(v) Maximum Interest Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Interest Payment Period,
(xii) Interest Reset Period,
(xiii) LIBOR Currency, and
(xiii) Calculation Agent;
(12) If an Amortizing Security:
(i) Initial Principal Repayment Date,
(ii) Amortization Schedule;
(13) If Interest Rate Reset option:
(i) Optional Reset Date(s),
(ii) Basis for interest rate reset;
(14) If Extension or Renewal of Maturity option:
(i) Extension or Renewal Period(s),
(ii) Final Maturity Date,
(iii) Basis for Interest Rate during Extension or Renewal;
(15) Original Issue Discount provisions, if any;
(16) Name, address and taxpayer identification number of the
registered owner;
II-19
<PAGE>
(17) Denomination of certificates to be delivered at settlement;
(18) Physical delivery instructions; and
(19) Any other terms of the Security.
Date of Settlement:
- ------------------
All offers solicited by a Selling Agent or made by a Purchasing Agent
and accepted by the Company will be settled on a date (the "Settlement Date" or
"Original Issue Date") which is the third business day after the date of
acceptance of such offer, unless the Company and the purchaser agree to
settlement (a) on any other business day after the acceptance of such offer or
(b) with respect to an offer accepted by the Company prior to 10:00 a.m., New
York City time, on the date of such acceptance.
Instruction from the Company to
Issuing Agent for Preparation of Securities:
- -------------------------------------------
After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Issuing Agent by telephone (confirmed in writing) or by
facsimile transmission or other acceptable electronic or written means.
The Company will instruct the Trustee by facsimile transmission or
other acceptable electronic or written means to authenticate and deliver the
Securities no later than 2:15 p.m., New York City time, on the Settlement Date.
Such instruction will be given by the Company prior to 3:00 p.m., New York City
time, on the business day prior to the Settlement Date unless the Settlement
Date is the date of acceptance by the Company of the offer to purchase
Securities in which case such instruction will be given by the Company by 11:00
a.m., New York City time. The Trustee will authenticate and deliver to the
Issuing Agent each Security in accordance with the Company's instruction.
Preparation and Delivery of Securities
by Issuing Agent and Receipt of Payment Therefor:
- ------------------------------------------------
The Issuing Agent will prepare each Security and appropriate receipts
that will serve as the documentary control of the transaction.
In the case of a sale of Securities to a purchaser solicited by a
Selling Agent, the Issuing Agent will, by 2:15 p.m., New York City time, on the
Settlement Date, deliver the Securities to the Selling Agent for the benefit of
the purchaser of such Securities against delivery by the Selling Agent of a
receipt therefor. On the Settlement Date the Selling Agent will deliver payment
for such Securities in immediately available funds to the Company in an amount
equal to the issue price of the Securities less the Selling Agent's commission;
provided that the Selling Agent reserves the right to withhold payment for which
it has not received funds from the purchaser. The Company shall not use any
proceeds advanced by a Selling Agent to purchase securities or carry any
securities in violation of Regulations T, U or X of the Federal Reserve Board or
otherwise in violation of law.
II-20
<PAGE>
In the case of a sale of Securities to a Purchasing Agent, the Issuing
Agent will, by 2:15 p.m., New York City time, on the Settlement Date, deliver
the Securities to the Purchasing Agent against delivery of payment for such
Securities in immediately available funds to the Company in an amount equal to
the issue price of the Securities less the Purchasing Agent's discount.
Failure of Purchaser to Pay Selling Agent:
- -----------------------------------------
If a purchaser (other than a Purchasing Agent) fails to make payment
to the Selling Agent for a Security, the Selling Agent will promptly notify the
Issuing Agent, the Trustee and the Company thereof by telephone (confirmed in
writing) or by facsimile transmission or other acceptable written means. The
Selling Agent will immediately return the Security to the Issuing Agent.
Immediately upon receipt of such Security by the Issuing Agent, the Company will
return to the Selling Agent an amount equal to the amount previously paid to the
Company in respect of such Security. If such failure shall have occurred for
any reason other than default by the Selling Agent in the performance of its
obligations under the Distribution Agreement, the Company will reimburse the
Selling Agent on an equitable basis for its loss of the use of funds during the
period when they were credited to the account of the Company.
The Issuing Agent will deliver to the Trustee for cancellation the
Security in respect of which the failure occurred, and instruct the Trustee to
make appropriate entries in its records and, unless otherwise instructed by the
Company, to destroy the Security.
II-21
<PAGE>
ANNEX III
---------
Pursuant to Section 6(d) of the Distribution Agreement, the Company's
independent public accountants shall furnish letters to you to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited by them and included or incorporated
by reference in the Prospectus comply as to form in all material respects with
the applicable accounting requirements of the Act or the Exchange Act, as
applicable, and the published rules and regulations thereunder; and if
applicable, they have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the consolidated
interim financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have been
furnished to you;
(iii) In their opinion, the unaudited selected financial information,
if any, with respect to the consolidated results of operations and financial
position of the Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 2 of the Company's
Form 10 or Item 6 of the Company's Annual Report on Form 10-K for the most
recent fiscal year agrees with the corresponding amounts (after restatement
where applicable) in the audited consolidated financial statements for such five
fiscal years which were included or incorporated by reference in the Company's
Form 10 or Annual Reports on Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting of a reading
of the unaudited financial statements and other information referred to below, a
reading of the latest available interim financial statements of the Company and
its subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus, inquiries of officials of the
Company responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements of profit,
consolidated statements of financial position and consolidated statements
of cash flows included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in the Prospectus
do not comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the published rules and
regulations thereunder or that any material modifications should be made to
such financial statements for them to be in conformity with generally
accepted accounting principles;
(B) any unaudited income statement data and balance sheet items, if
any, included in the Prospectus do not agree with the corresponding items
in the unaudited
<PAGE>
consolidated financial statements from which such data and items were
derived, and any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the corresponding amounts
in the audited consolidated financial statements included or incorporated
by reference in the Company's Form 10 or Annual Report on Form 10-K for the
most recent fiscal year;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited financial statements
referred to in Clause (A) and any unaudited income statement data and
balance sheet items included in the Prospectus and referred to in Clause
(B) were not determined on a basis substantially consistent with the basis
for the audited financial statements included or incorporated by reference
in the Company's Form 10 or Annual Report on Form 10-K for the most recent
fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements, if any, included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and regulations
thereunder or the pro forma adjustments have not been properly applied to
the historical amounts in the compilation of those statements;
(E) as of a specified date not more than five business days prior to
the date of delivery of such letter, there have been any changes in the
capital stock or any increase in the consolidated long-term debt of the
Company and its subsidiaries, or any decreases in consolidated total assets
or other items specified by you, or any increases in any items specified by
you, in each case as compared with amounts shown in the latest statement of
financial position included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are described in
such letter; and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the specified
date referred to in Clause (E), there were any decreases in consolidated
total revenues or net profit or other items specified by you, or any
increases in any items specified by you, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by you, except in each case for decreases or
increases which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(v) In addition to the audit referred to in their report(s) included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
subparagraphs (iii) and (iv) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and financial
information specified by you which are derived from the general accounting
records of the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by you or in
documents incorporated by reference in the Prospectus
III-2
<PAGE>
specified by you, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries, and have found them to be in agreement.
All references to the Prospectus in this Annex III shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein), as defined in the Distribution Agreement, as of the Closing Date
referred to in Section 6(d) thereof and to the Prospectus as amended or
supplemented (including the documents incorporated by reference therein), as
defined in such Agreement, as of the date of the amendment, supplement,
incorporation or the Time of Delivery related to the Terms Agreement requiring
the delivery of such letter under Section 4(l) thereof.
III-3
<PAGE>
EXHIBIT 4.25
________________________________________________________________________________
PROVIDIAN FINANCIAL CORPORATION
TO
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
______________
INDENTURE
Dated as of May 1, 1999
______________
SENIOR DEBT SECURITIES
________________________________________________________________________________
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.......................................... 1
SECTION 101 Definition................................................................................ 1
"Act"......................................................................................... 2
"Affiliate"................................................................................... 2
"Authenticating Agent"........................................................................ 2
"Board of Directors........................................................................... 2
"Board Resolution"............................................................................ 2
"Business Day"................................................................................ 2
"Commission".................................................................................. 2
"Company"..................................................................................... 2
"Company Request" or "Company Order".......................................................... 2
"Consolidated Assets"......................................................................... 2
"Controlled Subsidiary"....................................................................... 3
"Corporate Trust Office"...................................................................... 3
"corporation"................................................................................. 3
"Covenant Defeasance"......................................................................... 3
"Defaulted Interest".......................................................................... 3
"Defeasance".................................................................................. 3
"Depositary".................................................................................. 3
"Event of Default"............................................................................ 3
"Exchange Act"................................................................................ 3
"Expiration Date"............................................................................. 3
"Global Security"............................................................................. 3
"Holder"...................................................................................... 3
"Indenture"................................................................................... 3
"interest".................................................................................... 3
"Interest Payment Date"....................................................................... 4
"Investment Company Act"...................................................................... 4
"Maturity".................................................................................... 4
"Notice of Default"........................................................................... 4
</TABLE>
-i-
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
PAGE
<S> <C>
"Officers' Certificate"....................................................................... 4
"Opinion of Counsel".......................................................................... 4
"Original Issue Discount Security"............................................................ 4
"Outstanding"................................................................................. 4
"Paying Agent"................................................................................ 5
"Person"...................................................................................... 5
"Place of Payment"............................................................................ 5
"PNB"......................................................................................... 5
"Predecessor Security"........................................................................ 5
"Redemption Date"............................................................................. 5
"Redemption Price"............................................................................ 6
"Regular Record Date"......................................................................... 6
"Responsible Officer"......................................................................... 6
"Securities".................................................................................. 6
"Securities Act".............................................................................. 6
"Security Register"........................................................................... 6
"Special Record Date"......................................................................... 6
"Stated Maturity"............................................................................. 6
"Subsidiary".................................................................................. 6
"Trust Indenture Act"......................................................................... 6
"Trustee"..................................................................................... 6
"U.S. Government Obligation".................................................................. 7
"Vice President".............................................................................. 7
"Voting Stock"................................................................................ 7
SECTION 102 Compliance Certificates and Opinions................................................... 7
SECTION 103 Form of Documents Delivered to Trustee................................................. 7
SECTION 104 Acts of Holders; Record Dates.......................................................... 8
SECTION 105 Notices, Etc., to Trustee and Company.................................................. 10
SECTION 106 Notice to Holders; Waiver.............................................................. 10
SECTION 107 Conflict with Trust Indenture Act...................................................... 11
SECTION 108 Effect of Headings and Table of Contents............................................... 11
</TABLE>
-ii-
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
PAGE
<S> <C>
SECTION 109 Successors and Assigns................................................................. 11
SECTION 110 Separability Clause.................................................................... 11
SECTION 111 Benefits of Indenture.................................................................. 11
SECTION 112 Governing Law.......................................................................... 11
SECTION 113 Legal Holidays......................................................................... 11
ARTICLE II SECURITY FORMS................................................................................... 12
SECTION 201 Forms Generally........................................................................ 12
SECTION 202 Form of Face of Security............................................................... 12
SECTION 203 Form of Reverse of Security............................................................ 14
SECTION 204 Form of Legend for Global Securities................................................... 17
SECTION 205 Form of Trustee's Certificate of Authentication........................................ 18
ARTICLE III THE SECURITIES................................................................................... 18
SECTION 301 Amount Unlimited; Issuable in Series................................................... 18
SECTION 302 Denominations.......................................................................... 21
SECTION 303 Execution, Authentication, Delivery and Dating......................................... 21
SECTION 304 Temporary Securities................................................................... 23
SECTION 305 Registration, Registration of Transfer and Exchange.................................... 23
SECTION 306 Mutilated, Destroyed, Lost and Stolen Securities....................................... 25
SECTION 307 Payment of Interest; Interest Rights Preserved......................................... 26
SECTION 308 Persons Deemed Owners.................................................................. 27
SECTION 309 Cancellation........................................................................... 27
SECTION 310 Computation of Interest................................................................ 27
ARTICLE IV SATISFACTION AND DISCHARGE....................................................................... 27
SECTION 401 Satisfaction and Discharge of Indenture................................................ 27
SECTION 402 Application of Trust Money............................................................. 28
ARTICLE V REMEDIES......................................................................................... 29
SECTION 501 Events of Default...................................................................... 29
SECTION 502 Acceleration of Maturity; Rescission and Annulment..................................... 30
SECTION 503 Collection of Indebtedness and Suits for Enforcement by Trustee........................ 31
SECTION 504 Trustee May File Proofs of Claim....................................................... 32
</TABLE>
-iii-
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
PAGE
<S> <C>
SECTION 505 Trustee May Enforce Claims Without Possession of Securities............................ 32
SECTION 506 Application of Money Collected......................................................... 33
SECTION 507 Limitation on Suits.................................................................... 33
SECTION 508 Unconditional Right of Holders to Receive Principal, Premium and Interest.............. 34
SECTION 509 Restoration of Rights and Remedies..................................................... 34
SECTION 510 Rights and Remedies Cumulative......................................................... 34
SECTION 511 Delay or Omission Not Waiver........................................................... 34
SECTION 512 Control by Holders..................................................................... 34
SECTION 513 Waiver of Past Defaults................................................................ 35
SECTION 514 Undertaking for Costs.................................................................. 35
SECTION 515 Waiver of Usury, Stay or Extension Laws................................................ 35
ARTICLE VI THE TRUSTEE...................................................................................... 36
SECTION 601 Certain Duties and Responsibilities.................................................... 36
SECTION 602 Notice of Defaults..................................................................... 36
SECTION 603 Certain Rights of Trustee.............................................................. 36
SECTION 604 Not Responsible for Recitals or Issuance of Securities................................. 37
SECTION 605 May Hold Securities.................................................................... 38
SECTION 606 Money Held in Trust.................................................................... 38
SECTION 607 Compensation and Reimbursement......................................................... 38
SECTION 608 Conflicting Interests.................................................................. 38
SECTION 609 Corporate Trustee Required; Eligibility................................................ 39
SECTION 610 Resignation and Removal; Appointment of Successor...................................... 39
SECTION 611 Acceptance of Appointment by Successor................................................. 40
SECTION 612 Merger, Conversion, Consolidation or Succession to Business............................ 41
SECTION 613 Preferential Collection of Claims Against Company...................................... 42
SECTION 614 Appointment of Authenticating Agent.................................................... 42
ARTICLE VII HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY................................................ 43
SECTION 701 Company to Furnish Trustee Names and Addresses of Holders.............................. 43
SECTION 702 Preservation of Information; Communications to Holders................................. 44
SECTION 703 Reports by Trustee..................................................................... 44
</TABLE>
-iv-
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
PAGE
<S> <C>
SECTION 704 Reports by Company..................................................................... 44
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE............................................. 45
SECTION 801 Company May Consolidate, Etc., Only on Certain Terms................................... 45
SECTION 802 Successor Substituted.................................................................. 45
ARTICLE IX SUPPLEMENTAL INDENTURES.......................................................................... 46
SECTION 901 Supplemental Indentures Without Consent of Holders..................................... 46
SECTION 902 Supplemental Indentures With Consent of Holders........................................ 47
SECTION 903 Execution of Supplemental Indentures................................................... 48
SECTION 904 Effect of Supplemental Indentures...................................................... 48
SECTION 905 Conformity with Trust Indenture Act.................................................... 48
SECTION 906 Reference in Securities to Supplemental Indentures..................................... 48
ARTICLE X COVENANTS........................................................................................ 49
SECTION 1001 Payment of Principal, Premium and Interest............................................. 49
SECTION 1002 Maintenance of Office or Agency........................................................ 49
SECTION 1003 Money for Securities Payments to Be Held in Trust...................................... 49
SECTION 1004 Statement by Officers as to Default.................................................... 50
SECTION 1005 Existence.............................................................................. 51
SECTION 1006 Maintenance of Properties.............................................................. 51
SECTION 1007 Payment of Taxes and Other Claims...................................................... 51
SECTION 1008 Limitation upon Disposition of Voting Stock of PNB..................................... 51
SECTION 1009 Limitation on Creation of Certain Liens................................................ 52
SECTION 1010 Waiver of Certain Covenants............................................................ 52
ARTICLE XI REDEMPTION OF SECURITIES......................................................................... 53
SECTION 1101 Applicability of Article............................................................... 53
SECTION 1102 Election to Redeem; Notice to Trustee.................................................. 53
SECTION 1103 Selection by Trustee of Securities to Be Redeemed...................................... 53
SECTION 1104 Notice of Redemption................................................................... 54
SECTION 1105 Deposit of Redemption Price............................................................ 54
SECTION 1106 Securities Payable on Redemption Date.................................................. 55
SECTION 1107 Securities Redeemed in Part............................................................ 55
</TABLE>
-v-
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE XII SINKING FUNDS.................................................................................... 55
SECTION 1201 Applicability of Article............................................................... 55
SECTION 1202 Satisfaction of Sinking Fund Payments with Securities.................................. 56
SECTION 1203 Redemption of Securities for Sinking Fund.............................................. 56
ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE............................................................... 56
SECTION 1301 Company's Option to Effect Defeasance or Covenant Defeasance........................... 56
SECTION 1302 Defeasance and Discharge............................................................... 57
SECTION 1303 Covenant Defeasance.................................................................... 57
SECTION 1304 Conditions to Defeasance or Covenant Defeasance........................................ 57
SECTION 1305 Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions............................................................... 59
SECTION 1306 Reinstatement.......................................................................... 60
TESTIMONIUM.....................................................................................................
SIGNATURES......................................................................................................
ACKNOWLEDGMENTS.................................................................................................
</TABLE>
-vi-
<PAGE>
_____________________________________________________
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
(S) 310(a)(1).............................................................................. 609
(a)(2)..................................................................................... 609
(a)(3)..................................................................................... Not Applicable
(a)(4)..................................................................................... Not Applicable
(b)........................................................................................ 608, 610
(S) 311(a)................................................................................. 613
(b)........................................................................................ 613
(S) 312(a)................................................................................. 701, 702
(b)........................................................................................ 702
(c)........................................................................................ 702
(S) 313(a)................................................................................. 703
(b)........................................................................................ 703
(c)........................................................................................ 703
(d)........................................................................................ 703
(S) 314(a)................................................................................. 704
(a)(4)..................................................................................... 101, 1004
(b)........................................................................................ Not Applicable
(c)(1)..................................................................................... 102
(c)(2)..................................................................................... 102
(c)(3)..................................................................................... Not Applicable
(d)........................................................................................ Not Applicable
(e)........................................................................................ 102
(S) 315(a)................................................................................. 601
(b)........................................................................................ 602
(c)........................................................................................ 601
(d)........................................................................................ 601
(e)........................................................................................ 514
(S) 316(a)................................................................................. 101
(a)(1)(A).................................................................................. 502, 512
(a)(1)(B).................................................................................. 513
(a)(2)..................................................................................... Not Applicable
(b)........................................................................................ 508
(c)........................................................................................ 104
(S) 317(a)(1).............................................................................. 503
(a)(2)..................................................................................... 504
(b)........................................................................................ 1003
(S) 318(a)................................................................................. 107
</TABLE>
___________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
INDENTURE, dated as of May 1, 1999, between PROVIDIAN FINANCIAL
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
201 Mission Street, San Francisco, California, and The First National Bank of
Chicago, a national banking association duly organized and existing under the
laws of the United States of America, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of any series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101 Definition.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
<PAGE>
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law or executive order to close.
"Commission" means the Securities and Exchange Commission, from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Assets" means all assets owned directly by the
Company or indirectly by the Company through any Subsidiary and reflected on the
Company's consolidated balance sheet prepared in accordance with generally
accepted accounting principles.
2
<PAGE>
"Controlled Subsidiary" means a Subsidiary if at least 80% of the
issued and outstanding shares of its Voting Stock is at the time owned by the
Company or by one or more Controlled Subsidiaries of the Company or by the
Company and one or more Controlled Subsidiaries.
"Corporate Trust Office" means the principal office of the
Trustee in Chicago, Illinois at which at any particular time its corporate trust
business shall be administered.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act as
Depositary for such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or part of
the Securities of any series and bears the legend set forth in Section 204 (or
such legend as may be specified as contemplated by Section 301 for such
Securities).
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indenture" means this instrument as originally executed and as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of any
particular series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
3
<PAGE>
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940
and any statute successor thereto, in each case as amended from time to time.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified
in Section 501(4) or 501(5).
"Officers' Certificate" means a certificate signed by the
chairman of the board of directors, a vice chairman of the board of directors,
the president or a Vice President, and by the treasurer, an assistant treasurer,
the secretary or an assistant secretary, of the Company, and delivered to the
Trustee. One of the officers signing an Officers' Certificate given pursuant to
Section 1004 shall be the principal executive, financial or accounting officer
of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been
4
<PAGE>
presented to the Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"PNB" means Providian National Bank.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
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"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any Vice President, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as
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used with respect to the Securities of any series shall mean the Trustee with
respect to Securities of that series.
"U.S. Government Obligation" has the meaning specified in
Section 1304.
"Vice President", when used with respect to the Company or
the Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president".
"Voting Stock" means stock which ordinarily has voting power
for the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
SECTION 102 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
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Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104 Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to give, make or
take any request,
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demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken by Holders of
Securities of such series, provided that the Company may not set a record date
for, and the provisions of this paragraph shall not apply with respect to, the
giving or making of any notice, declaration, request or direction referred to in
the next paragraph. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities of the relevant series on such record date,
and no other Holders, shall be entitled to take the relevant action, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Company from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with
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respect to any record date set pursuant to this Section, the party hereto which
set such record date shall be deemed to have initially designated the 180th day
after such record date as the Expiration Date with respect thereto, subject to
its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the 180th
day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 105 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administrator, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
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The Company in issuing the Securities may use "CUSIP" numbers, and if so,
the Trustee shall use such numbers in notices of redemption or other related
material as a convenience to Holders; provided that any such notice or other
related material may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any
notice of redemption or other related material and that reliance may be placed
only on the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
SECTION 107 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110 Separability Clause.
In case any provision in this Indenture or in the Securities 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.
SECTION 111 Benefits of Indenture.
Nothing in this Indenture or in the Securities, 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 Indenture.
SECTION 112 Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York without regard to the conflicts
of law rules of such State.
SECTION 113 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security
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which specifically states that such provision shall apply)) payment of interest
or principal (and premium, if any) need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity.
ARTICLE II
SECURITY FORMS
SECTION 201 Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202 Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
___________________________
_____________________________________________________
No. ____ $_________
Providian Financial Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to_______________ or registered assigns,
the principal sum of _____________________ Dollars on ___________ [if the
Security is to bear interest prior to Maturity, insert -, and to pay interest
thereon from or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually on ________ and ________ in each
year, commencing , at the rate of ___% per annum, until the
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principal hereof is paid or made available for payment [if applicable, insert -,
provided that any principal and premium, and any such installment of interest,
which is overdue shall bear interest at the rate of ___% per annum (to the
extent that the payment of such interest shall be legally enforceable), from the
dates such amounts are due until they are paid or made available for payment,
and such interest shall be payable on demand]. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the ________ or
________ (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert - The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ____% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert - any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in __________, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert -;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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In Witness Whereof, the Company has caused this instrument to be duly
executed.
Dated:
__________________________________
By________________________________
SECTION 203 Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of _________ (herein called the "Indenture",
which term shall have the meaning assigned to it in such instrument), between
the Company and __________, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), and reference is hereby
made to the Indenture for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [if applicable, insert -, limited in aggregate
principal amount to $______].
[If applicable, insert - The Securities of this series are subject to redemption
upon not less than 30 days' notice by mail, [if applicable, insert -(1)_____ on
in any year commencing with the year ___ and ending with the year ____ through
operation of the sinking fund for this series at a Redemption Price equal to
100% of the principal amount, and (2)] at any time [if applicable, insert - on
or after ______, 19__], as a whole or in part, at the election of the Company,
at the following Redemption Prices (expressed as percentages of the principal
amount): if redeemed [if applicable, insert - on or before _________, ___%, and
if redeemed] during the 12-month period beginning_______ of the years indicated,
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
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and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption [if applicable, insert - (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on_______in any year
commencing with the year ___ and ending with the year ___ through operation of
the sinking fund for this series at the Redemption Prices for redemption through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below, and (2) at any time [if applicable, insert - on or
after _________], as a whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below: if redeemed during the 12-month period beginning ________ of the years
indicated,
Redemption Price Redemption Price For
For Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
---- ------------------- ----------------------
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert - Notwithstanding the foregoing, the Company may
not, prior to __________, redeem any Securities of this series as contemplated
by [if applicable, insert - Clause (2) of] the preceding paragraph as a part of,
or in anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than ____% per annum.]
[If applicable, insert - The sinking fund for this series provides for the
redemption on in each year beginning with the year ____ and ending with the
year ____ of [if applicable, insert - not less than $______ ("mandatory sinking
fund") and not more than] $________ aggregate principal amount of Securities of
this series. Securities of this series acquired or redeemed by the Company
otherwise than through [if applicable, insert - mandatory] sinking fund payments
may be credited against subsequent [if applicable, insert - mandatory] sinking
fund payments otherwise required to be made [if applicable, insert - , in the
inverse order in which they become due].]
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[If the Security is subject to redemption of any kind, insert - In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert - The Indenture contains provisions for defeasance
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default with respect to this Security] [, in
each case] upon compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to - insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in
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principal amount of Securities of this series at the time Outstanding a
direction inconsistent with such request, and shall have failed to institute any
such proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $______ and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
SECTION 204 Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE
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EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS
SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER
THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
SECTION 205 Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
_______________________________,
As Trustee
By_____________________________,
Authorized Officer
ARTICLE III
THE SECURITIES
SECTION 301 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
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(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable (which, if so provided in or pursuant to such Board
Resolution or supplemental indenture, may be determined by the Company from
time to time and set forth in the Securities of the series issued from time
to time);
(5) the rate or rates (or method of determination thereof) at which
any Securities of the series shall bear interest, if any, the date or dates
from which any such interest shall accrue (or method of determination
thereof), the Interest Payment Dates on which any such interest shall be
payable (or method of determination thereof) and the Regular Record Date
(which, in either case or both, if so provided in or pursuant to such Board
Resolution or supplemental indenture, may be determined by the Company from
time to time and set forth in the Securities of the series issued from time
to time) for any such interest payable on any Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than by a Board Resolution, the manner in which any election by the Company
to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which any Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be
determined;
(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and
the manner of determining the equivalent thereof in the currency of the
United States of America for any purpose, including for purposes of the
definition of "Outstanding" in Section 101;
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(12) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or the
Holder thereof, in one or more currencies or currency units other than that
or those in which such Securities are stated to be payable, the currency,
currencies or currency units in which the principal of or any premium or
interest on such Securities as to which such election is made shall be
payable, the periods within which and the terms and conditions upon which
such election is to be made and the amount so payable (or the manner in
which such amount shall be determined);
(13) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(15) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1302 or Section
1303 or both such Sections and, if other than by a Board Resolution, the
manner in which any election by the Company to defease such Securities
shall be evidenced;
(16) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities,
the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 204 and any
circumstances in addition to or in lieu of those set forth in Clause (2) of
the last paragraph of Section 305 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any transfer
of such Global Security in whole or in part may be registered, in the name
or names of Persons other than the Depositary for such Global Security or a
nominee thereof;
(17) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 502;
(18) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series; and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
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All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto. Not all Securities of any
one series need be issued at the same time, and, unless otherwise provided, a
series may be reopened for issuances of additional Securities of such series.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302 Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(1) all instruments furnished by the Company to the Trustee in
connection with the authentication and delivery of such Securities conform
to the requirements of this Indenture and constitute sufficient authority
hereunder for the Trustee to authenticate and deliver such Securities;
(2) the forms and terms of such Securities have been established in
conformity with the provisions of this Indenture;
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(3) in the event that the forms or terms of such Securities have been
established in a supplemental indenture, the execution and delivery of such
supplemental indenture has been duly authorized by all necessary corporate
action of the Company, such supplemental indenture has been duly executed
and delivered by the Company and, assuming due authorization, execution and
delivery by the Trustee, is a valid and binding obligation enforceable
against the Company in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law);
(4) the execution and delivery of such Securities have been duly
authorized by all necessary corporate action of the Company and such
Securities have been duly executed by the Company and, assuming due
authentication by the Trustee and delivery by the Company, are valid and
binding obligations of the Company enforceable against the Company in
accordance with their terms, entitled to the benefit of the Indenture,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and subject to such other exceptions as
counsel shall reasonably request and as to which the Trustee shall not
reasonably object; and
(5) to the best of such counsel's knowledge, all governmental
consents, authorizations and approvals which are required for the execution
and delivery of the Indenture and the Securities under all applicable laws
of the State of Delaware and the State of New York, have been received
other than such as may be required by the securities or blue sky laws of
the various states in connection with the offer and sale of the Securities.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security
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shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 304 Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount. Until so exchanged, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
SECTION 305 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of like tenor and aggregate
principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency.
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Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered,
in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary (i) has notified
the Company that it is unwilling or unable to continue as Depositary for
such Global Security or (ii) has ceased to be a clearing agency registered
under the Exchange Act, (B) there shall have occurred and be continuing an
Event of Default with respect to such Global Security or (C) there shall
exist such circumstances, if any, in addition to or in lieu of the
foregoing as have been specified for this purpose as contemplated by
Section 301.
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(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued
in exchange for a Global Security or any portion thereof shall be
registered in such names as the Depositary for such Global Security shall
direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906 or
1107 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
SECTION 306 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 307 Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be given to each Holder of Securities of such series in the manner set
forth in Section 106, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
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Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any premium and
(subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309 Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
SECTION 310 Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
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(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose money in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and any premium and interest to the date of
such deposit (in the case of Securities which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
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determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE V
REMEDIES
SECTION 501 Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest on any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in the performance of which or a breach of which is elsewhere in
this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of series of Securities other than
that series), and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
not less than 25% in principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) if any event of default as defined in any mortgage, indenture or
instrument under which there may be issued, or by which there may be
secured or evidenced, any indebtedness of the Company or PNB for money
borrowed, whether such indebtedness now exists or shall hereafter be
created, shall happen and shall result in such indebtedness in principal
amount in excess of $5,000,000 becoming or being declared due and payable
prior to the date on which it would otherwise become due and payable, and
such acceleration shall not be rescinded or annulled within a period of 30
days after there shall have been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the Holders
of not less than 25% in principal amount of the Outstanding Securities of
that series, a written notice specifying such event of default and
requiring the Company to cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default" hereunder;
or
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(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(7) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(8) any other Event of Default provided with respect to Securities of
that series.
SECTION 502 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section
501(6) or 501(7)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable. If an Event of Default specified in Section 501(6)
or 501(7) with respect to Securities of any series at the time Outstanding
occurs, the principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified by the terms
thereof) shall automatically, and without any declaration or other action on the
part of the Trustee or any Holder, become immediately due and payable.
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At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
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If the Company fails to pay such amounts forthwith upon such demand, the
Trustee in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 505 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
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SECTION 506 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of
and any premium and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal and any premium and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 507 Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
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SECTION 508 Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512 Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or with the Securities of any series,
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(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of the
other Holders of Securities of such series not joining in such action.
SECTION 513 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company, in any suit instituted
by the Trustee, in any suit instituted by any Holder, or group of Holders,
holding in the aggregate not less than 25% in principal amount of the
Outstanding Securities of any series, or in any suit instituted by any Holder
for the enforcement of the payment of the principal of and any premium and
interest on any Security on or after the Stated Maturity or Maturities expressed
in such Security (or, in the case of redemption, on or after the Redemption
Date).
SECTION 515 Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE VI
THE TRUSTEE
SECTION 601 Certain Duties and Responsibilities.
Except as otherwise provided herein, the duties and responsibilities of the
Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the
foregoing, no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it. Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section and shall extend to the Paying Agent, Security Registrar, and
Authenticating Agent.
SECTION 602 Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
The Trustee shall not be deemed to have knowledge of any default specified
in Section 501(4), 501(5), 501(6), 501(7) or 501(8) hereunder unless and until a
Responsible Officer shall have actual knowledge thereof, or shall have received
written notice thereof at its corporate trust office in Chicago. In the absence
of such actual knowledge or notice, the Trustee may conclusively assume that no
such default has occurred and is continuing under this Indenture. Except as
otherwise expressly provided herein, the Trustee shall not be bound to ascertain
or inquire as to the performance or observance of any of the terms, conditions,
covenants or agreements herein or of any of the documents executed in connection
with Securities issued hereunder, or as to the existence of a default or Event
of Default hereunder.
SECTION 603 Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it in good faith to be genuine and to have been signed
or presented by the proper party or parties;
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(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, request and rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(8) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty unless so specified herein.
SECTION 604 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity,
sufficiency or priority of this Indenture or of the Securities, except that the
Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder and
that the statements made by it in a Statement of Eligibility and Qualification
on Form T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth therein. Neither the Trustee nor any
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Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607 Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or willful
misconduct; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or willful
misconduct on its part, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
All indemnifications and releases from liability granted hereunder to the
Trustee shall extend to its officers, directors, employees, agents, successors
and assigns. The provisions of this Section 607 shall survive the resignation
or removal of the Trustee or the termination of this Indenture.
SECTION 608 Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the
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manner provided by, and subject to the provisions of, the Trust Indenture Act
and this Indenture. To the extent permitted by such Act, the Trustee shall not
be deemed to have a conflicting interest by virtue of being a trustee under this
Indenture with respect to Securities of more than one series.
SECTION 609 Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such which shall have
(or, in the case of a corporation included in a bank holding company system, the
related bank holding company shall have) a combined capital and surplus of at
least $100,000,000. If any such Person or bank holding company publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person or bank holding company shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee with respect to the Securities of any
series shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610 Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or
more series by giving written notice thereof to the Company. If the instrument
of acceptance by a successor Trustee required by Section 611 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
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(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the successor
Trustee with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 611 Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the
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retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article and the Trust Indenture Act.
SECTION 612 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article and the
Trust Indenture Act, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the
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Trustee then in office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
SECTION 613 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, which shall have (or, in the case of a corporation included in a bank
holding company system, the related bank holding company shall have) a combined
capital and surplus of not less than $100,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent or bank
holding company publishes reports of condition at least annually, pursuant to
law or to the requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
Authenticating Agent or bank holding company shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the
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Company. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall give notice of such appointment in the manner provided in Section 106 to
all Holders of Securities of the series with respect to which such
Authenticating Agent will serve. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
____________________________
As Trustee
By _________________________
As Authenticating Agent
By _________________________
Authorized Officer
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than March 1 and September 1 in each
year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities of each series as of the
preceding February 15 or August 15, as the case may be, and
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(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702 Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
agent of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
SECTION 703 Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
Reports so required to be transmitted at stated intervals of not more than
12 months shall be transmitted no later than September 15 in each calendar year,
commencing in 1999.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
SECTION 704 Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
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ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801 Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and the Company shall not permit any Person to consolidate with
or merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the Person formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and any premium and interest on all
the Securities and the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or any
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by this Indenture, the Company or
such successor Person, as the case may be, shall take such steps as shall
be necessary effectively to secure the Securities equally and ratably with
(or prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 802 Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or
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lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 901 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (A) shall neither (i) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify the
rights of the Holder of any such Security with respect to such provision or
(B) shall become effective only when there is no such Security Outstanding;
or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
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(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action pursuant
to this Clause (9) shall not adversely affect the interests of the Holders
of Securities of any series in any material respect.
SECTION 902 Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security or any other Security which would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or the coin
or currency in which, any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513, Section
1008, Section 1009 or Section 1010, except to increase any such percentage
or to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding
Security affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section, or the
deletion of this proviso, in accordance with the requirements of Sections
611 and 901(8).
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A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel and an Officer's Certificate, each stating that the execution
of such supplemental indenture is authorized or permitted by this Indenture.
The Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
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ARTICLE X
COVENANTS
SECTION 1001 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
SECTION 1002 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
SECTION 1003 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, prior to each due date of the principal of or any premium
or interest on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided by the Trust
Indenture Act, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall
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agree with the Trustee, subject to the provisions of this Section, that such
Paying Agent will (1) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (2) during the continuance of any default
by the Company (or any other obligor upon the Securities of that series) in the
making of any payment in respect of the Securities of that series, upon the
written request of the Trustee, forthwith pay to the Trustee all sums held in
trust by such Paying Agent for payment in respect of the Securities of that
series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan in the City of New York, New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
The Trustee shall not be liable to the Company or any Holder for interest
on funds held by it for the payment and discharge of the principal, interest, or
premium on any of the Securities to any Holder.
SECTION 1004 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
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SECTION 1005 Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its and PNB's
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1006 Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 1007 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and (2) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
SECTION 1008 Limitation upon Disposition of Voting Stock of PNB
So long as any of the Securities shall be Outstanding but subject to the
provisions of Article Eight, the Company:
(1) will not, nor will it permit PNB to, sell, assign, transfer or
otherwise dispose of any shares of, securities convertible into or options,
warrants or rights to subscribe for or purchase shares of, Voting Stock of
PNB (other than sales of directors qualifying shares), and will not permit
PNB to issue any shares of, or securities convertible into or options,
warrants or rights to subscribe for or purchase shares of, such Voting
Stock (other than sales of directors qualifying shares) if, in each case,
after giving effect to any such transaction and to the issuance of the
maximum number of shares of Voting Stock of PNB issuable upon the exercise
of all such convertible securities, options, warrants or rights, PNB would
cease to be a Controlled Subsidiary, or
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(2) will not permit PNB to
(A) merge or consolidate with or into any other corporation,
unless the surviving corporation is the Company or is, or upon
consummation of the merger or consolidation will become, a Controlled
Subsidiary; or
(B) lease, sell or transfer all or substantially all of its
properties and assets to any corporation or other Person, except to
the Company or to a Controlled Subsidiary or a Person that, upon such
lease, sale or transfer, will become a Controlled Subsidiary.
Notwithstanding the foregoing, any such sale, assignment or transfer of
securities, any such merger or consolidation or any such lease, sale or transfer
of properties and assets shall not be prohibited if required (A) by any law or
any rule, regulation or order of any governmental agency or authority or (B) as
a condition imposed by any law or any rule, regulation or order of any
governmental agency or authority to the acquisition by the Company, directly or
indirectly, through purchase of stock or assets, merger, consolidation or
otherwise, of any Person, provided that, after giving effect to such disposition
and acquisition, (i) such Person will be a Controlled Subsidiary, and (ii) the
Consolidated Assets of the Company will be at least equal to the Consolidated
Assets of the Company prior thereto; and nothing in this section shall prohibit
the Company from the sale or transfer of assets pursuant to any securitization
transaction.
SECTION 1009 Limitation on Creation of Certain Liens
So long as any of the Securities shall be outstanding, the Company will
not, nor will it permit PNB to, create, assume, incur, or suffer to be created,
assumed or incurred or to exist, any pledge, encumbrance or lien, as security
for indebtedness for borrowed money, upon any shares of, or securities
convertible into or options, warrants or rights to subscribe for or purchase
shares of, Voting Stock of PNB, directly or indirectly, without making effective
provision whereby the Securities of all series shall be equally and ratably
secured with any and all such indebtedness if, treating such pledge, encumbrance
or lien as a transfer of the shares of, or securities convertible into or
options, warrants or rights to subscribe for or purchase shares of, Voting Stock
of PNB subject thereto to the secured party and after giving effect to the
issuance of the maximum number of shares of Voting Stock of PNB issuable upon
the exercise of all such convertible securities, options, warrants or rights,
PNB would not continue to be a Controlled Subsidiary.
SECTION 1010 Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for Securities
of such series, the Company may, with respect to the Securities of any series,
omit in any particular instance to comply with any term, provision or condition
set forth in any covenant provided pursuant to Section 301(18), 901(2) or 901(7)
for the benefit of the Holders of such series if before the time for such
compliance the Holders of at least 66 2/3% in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of
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the Company and the duties of the Trustee in respect of any such term, provision
or condition shall remain in full force and effect.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 1101 Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
SECTION 1102 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution or in another manner specified as contemplated by Section 301
for such Securities. In case of any redemption at the election of the Company
of less than all the Securities of any series (including any such redemption
affecting only a single Security), the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed and shall deliver to the Trustee
such documentation and records as shall enable the Trustee to select the
Securities to be redeemed pursuant to Section 1103. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption as aforesaid and, in case of any Securities selected for
partial redemption as aforesaid, the principal amount thereof to be redeemed.
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The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part,
the unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal amount of
the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security, or the portion thereof, to be redeemed
and, if applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 1105 Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and
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(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date.
SECTION 1106 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 1201 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the terms of such
Securities is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202.
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Each sinking fund payment shall be applied to the redemption of Securities as
provided for by the terms of such Securities.
SECTION 1202 Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and/or (2) may apply as a credit
Securities of such series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that the Securities to be so credited
have not been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 1203 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering or crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days prior to each such sinking fund payment
date, the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301 Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1302 or
Section 1303 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 301 as being defeasible pursuant to such
Section 1302 or 1303, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 301 for such Securities.
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SECTION 1302 Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations with
respect to such Outstanding Securities as provided in this Section on and after
the date the conditions set forth in Section 1304 are satisfied (hereinafter
called "Defeasance"). For this purpose, such Defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness represented
by such Outstanding Securities and to have satisfied all its other obligations
under such Securities and this Indenture insofar as such Securities are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), subject to the following which shall
survive until otherwise terminated or discharged hereunder: (1) the rights of
Holders of such Outstanding Securities to receive, solely from the trust fund
described in Section 1304 and as more fully set forth in such Section, payments
in respect of the principal of and any premium and interest on such Securities
when payments are due, (2) the Company's obligations with respect to such
Securities under Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (4) this Article.
Subject to compliance with this Article, the Company may exercise its option (if
any) to have this Section applied to any Securities notwithstanding the prior
exercise of its option (if any) to have Section 1303 applied to such Securities.
SECTION 1303 Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (1)
the Company shall be released from its obligations under Section 801(3),
Sections 1006 through 1009, inclusive, and any covenants provided pursuant to
Section 301(18), 901(2) or 901(7) for the benefit of the Holders of such
Outstanding Securities and (2) the occurrence of any event specified in Sections
501(4) (with respect to any of Section 801(3), Sections 1006 through 1009,
inclusive, and any such covenants provided pursuant to Section 301(18), 901(2)
or 901(7)) 501(5) and 501(8) shall be deemed not to be or result in an Event of
Default, in each case with respect to such Securities as provided in this
Section on and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that, with respect to such Securities, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section (to the extent
so specified in the case of Section 501(4)), whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 1304 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302 or
Section 1303 to any Outstanding Securities or any series of Outstanding
Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by
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Section 609 and agrees to comply with the provisions of this Article
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated
solely to, the benefits of the Holders of such Securities, (A) money in an
amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one business day before the due
date of any payment, money in an amount, or (C) a combination thereof, in
each case sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied
by the Trustee (or any such other qualifying trustee) to pay and discharge,
the principal of and any premium and interest on such Outstanding
Securities on the respective Stated Maturities, in accordance with the
terms of this Indenture and such Securities. As used herein, "U.S.
Government Obligation" means (x) any security which is (i) a direct
obligation of the United States of America for the payment of which the
full faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency
or instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation
which is specified in Clause (x) above and held by such bank for the
account of the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any U.S. Government
Obligation which is so specified and held, provided that (except as
required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depositary receipt from any
amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest evidenced by
such depositary receipt.
(2) In the event of an election to have Section 1302 apply to any
Outstanding Securities or any series of Outstanding Securities, as the case
may be, the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date
of this Indenture, there has been a change in the applicable Federal income
tax law, in either case (A) or (B) to the effect that, and based thereon
such opinion shall confirm that, the Holders of such Outstanding Securities
will not recognize gain or loss for Federal income tax purposes as a result
of the deposit, Defeasance and discharge to be effected with respect to
such Outstanding Securities and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would be the
case if such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 1303 apply to any
Outstanding Securities or any series of Outstanding Securities, as the case
may be, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Outstanding Securities will
not recognize gain or loss for Federal income tax purposes as a result of
the deposit and Covenant Defeasance to be effected with respect to such
Securities and will be subject to Federal income tax on the same amount, in
the same
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manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Outstanding Securities nor any
other Securities of the same series, if then listed on any securities
exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Outstanding Securities or
any other Securities shall have occurred and be continuing at the time of
such deposit or, with regard to any such event specified in Sections 501(6)
and (7), at any time on or prior to the 90th day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture
Act (assuming all Securities are in default within the meaning of such
Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act unless such trust shall be
registered under such Act or exempt from registration thereunder.
(9) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 1305 Deposited Money and U.S. Government Obligations to Be Held in
Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section and
Section 1306, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in respect of any
Outstanding Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any such Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in respect of
principal and any premium and interest, but money so held in trust need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section
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1304 or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the Holders of
Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations with respect to any Securities held by it as
provided in Section 1304 which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
SECTION 1306 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1305 with respect to such Securities
in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to receive such payment
from the money so held in trust.
_____________________________
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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In Witness Whereof, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
PROVIDIAN FINANCIAL CORPORATION
By /s/ David J. Petrini
_______________________________
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Barbara G. Grosse
________________________________
<PAGE>
EXHIBIT 4.26
- --------------------------------------------------------------------------------
PROVIDIAN FINANCIAL CORPORATION
TO
CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION
Trustee
______________
INDENTURE
DATED AS OF MAY 1, 1999
______________
SUBORDINATED DEBT SECURITIES
________________________________________________________________________________
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION...................................... 1
SECTION 101 Definition......................................................................... 1
"Act" ...................................................................................... 2
"Affiliate".................................................................................... 2
"Authenticating Agent"......................................................................... 2
"Board of Directors............................................................................ 2
"Board Resolution"............................................................................. 2
"Business Day"................................................................................. 2
"Commission"................................................................................... 2
"Company"...................................................................................... 2
"Company Request" or "Company Order"........................................................... 2
"Corporate Trust Office"....................................................................... 2
"corporation".................................................................................. 3
"Covenant Defeasance".......................................................................... 3
"Default"...................................................................................... 3
"Defaulted Interest"........................................................................... 3
"Defeasance"................................................................................... 3
"Depositary"................................................................................... 3
"Designated Obligations"....................................................................... 3
"Event of Default"............................................................................. 3
"Exchange Act"................................................................................. 3
"Expiration Date".............................................................................. 3
"Global Security".............................................................................. 3
"Holder"....................................................................................... 3
"Indenture".................................................................................... 4
"interest"..................................................................................... 4
"Interest Payment Date"........................................................................ 4
"Investment Company Act"....................................................................... 4
"Junior Subordinated Indenture"................................................................ 4
"Maturity"..................................................................................... 4
"Notice of Default"............................................................................ 4
"Officers' Certificate"........................................................................ 4
"Opinion of Counsel"........................................................................... 4
"Original Issue Discount Security"............................................................. 4
"Outstanding".................................................................................. 4
"Paying Agent"................................................................................. 5
"Person"....................................................................................... 5
"Place of Payment"............................................................................. 6
"Predecessor Security"......................................................................... 6
"Redemption Date".............................................................................. 6
"Redemption Price"............................................................................. 6
"Regular Record Date".......................................................................... 6
"Responsible Officer".......................................................................... 6
</TABLE>
-i-
<PAGE>
TABLE OF CONTENTS
(continued)
<TABLE>
<CAPTION>
Page
<S> <C>
"Securities".................................................................................. 6
"Securities Act".............................................................................. 6
"Security Register"........................................................................... 6
"Senior Indebtedness"......................................................................... 6
"Special Record Date"......................................................................... 7
"Stated Maturity"............................................................................. 7
"Subsidiary".................................................................................. 7
"Trust Indenture Act"......................................................................... 7
"Trustee"..................................................................................... 7
"U.S. Government Obligation".................................................................. 7
"Vice President".............................................................................. 7
"Voting Stock"................................................................................ 7
SECTION 102 Compliance Certificates and Opinions.............................................. 7
SECTION 103 Form of Documents Delivered to Trustee............................................ 8
SECTION 104 Acts of Holders; Record Dates..................................................... 8
SECTION 105 Notices, Etc., to Trustee and Company............................................. 10
SECTION 106 Notice to Holders; Waiver......................................................... 11
SECTION 107 Conflict with Trust Indenture Act................................................. 11
SECTION 108 Effect of Headings and Table of Contents.......................................... 11
SECTION 109 Successors and Assigns............................................................ 11
SECTION 110 Separability Clause............................................................... 12
SECTION 111 Benefits of Indenture............................................................. 12
SECTION 112 Governing Law..................................................................... 12
SECTION 113 Legal Holidays.................................................................... 12
ARTICLE II SECURITY FORMS.............................................................................. 12
SECTION 201 Forms Generally................................................................... 12
SECTION 202 Form of Face of Security.......................................................... 13
SECTION 203 Form of Reverse of Security....................................................... 14
SECTION 204 Form of Legend for Global Securities.............................................. 18
SECTION 205 Form of Trustee's Certificate of Authentication................................... 18
ARTICLE III THE SECURITIES.............................................................................. 19
SECTION 301 Amount Unlimited; Issuable in Series.............................................. 19
SECTION 302 Denominations..................................................................... 22
SECTION 303 Execution, Authentication, Delivery and Dating.................................... 22
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SECTION 304 Temporary Securities.............................................................. 24
SECTION 305 Registration, Registration of Transfer and Exchange............................... 24
SECTION 306 Mutilated, Destroyed, Lost and Stolen Securities.................................. 26
SECTION 307 Payment of Interest; Interest Rights Preserved.................................... 26
SECTION 308 Persons Deemed Owners............................................................. 27
SECTION 309 Cancellation...................................................................... 28
SECTION 310 Computation of Interest........................................................... 28
ARTICLE IV SATISFACTION AND DISCHARGE.................................................................. 28
SECTION 401 Satisfaction and Discharge of Indenture........................................... 28
SECTION 402 Application of Trust Money........................................................ 29
ARTICLE V REMEDIES.................................................................................... 30
SECTION 501 Events of Default................................................................. 30
SECTION 502 Acceleration of Maturity; Rescission and Annulment................................ 30
SECTION 503 Collection of Indebtedness and Suits for Enforcement by Trustee................... 31
SECTION 504 Trustee May File Proofs of Claim.................................................. 32
SECTION 505 Trustee May Enforce Claims Without Possession of Securities....................... 33
SECTION 506 Application of Money Collected.................................................... 33
SECTION 507 Limitation on Suits............................................................... 33
SECTION 508 Unconditional Right of Holders to Receive Principal, Premium and Interest......... 35
SECTION 509 Restoration of Rights and Remedies................................................ 35
SECTION 510 Rights and Remedies Cumulative.................................................... 35
SECTION 511 Delay or Omission Not Waiver...................................................... 35
SECTION 512 Control by Holders................................................................ 35
SECTION 513 Waiver of Past Defaults........................................................... 36
SECTION 514 Undertaking for Costs............................................................. 36
SECTION 515 Waiver of Usury, Stay or Extension Laws........................................... 36
ARTICLE VI THE TRUSTEE................................................................................. 37
SECTION 601 Certain Duties and Responsibilities............................................... 37
SECTION 602 Notice of Defaults................................................................ 37
SECTION 603 Certain Rights of Trustee......................................................... 37
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SECTION 604 Not Responsible for Recitals or Issuance of Securities............................ 38
SECTION 605 May Hold Securities............................................................... 39
SECTION 606 Money Held in Trust............................................................... 39
SECTION 607 Compensation and Reimbursement.................................................... 39
SECTION 608 Conflicting Interests............................................................. 40
SECTION 609 Corporate Trustee Required; Eligibility........................................... 40
SECTION 610 Resignation and Removal; Appointment of Successor................................. 40
SECTION 611 Acceptance of Appointment by Successor............................................ 41
SECTION 612 Merger, Conversion, Consolidation or Succession to Business....................... 42
SECTION 613 Preferential Collection of Claims Against Company................................. 43
SECTION 614 Appointment of Authenticating Agent............................................... 43
ARTICLE VII HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY........................................... 44
SECTION 701 Company to Furnish Trustee Names and Addresses of Holders......................... 44
SECTION 702 Preservation of Information; Communications to Holders............................ 45
SECTION 703 Reports by Trustee................................................................ 45
SECTION 704 Reports by Company................................................................ 45
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE........................................ 46
SECTION 801 Company May Consolidate, Etc., Only on Certain Terms.............................. 46
SECTION 802 Successor Substituted............................................................. 46
ARTICLE IX SUPPLEMENTAL INDENTURES..................................................................... 47
SECTION 901 Supplemental Indentures Without Consent of Holders................................ 47
SECTION 902 Supplemental Indentures With Consent of Holders................................... 48
SECTION 903 Execution of Supplemental Indentures.............................................. 49
SECTION 904 Effect of Supplemental Indentures................................................. 49
SECTION 905 Conformity with Trust Indenture Act............................................... 49
SECTION 906 Reference in Securities to Supplemental Indentures................................ 49
SECTION 907 Subordination Unimpaired.......................................................... 50
ARTICLE X COVENANTS................................................................................... 50
SECTION 1001 Payment of Principal, Premium and Interest........................................ 50
SECTION 1002 Maintenance of Office or Agency................................................... 50
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SECTION 1003 Money for Securities Payments to Be Held in Trust................................. 50
SECTION 1004 Statement by Officers as to Default............................................... 51
SECTION 1005 Existence......................................................................... 52
SECTION 1006 Maintenance of Properties......................................................... 52
SECTION 1007 Payment of Taxes and Other Claims................................................. 52
SECTION 1008 Waiver of Certain Covenants....................................................... 52
ARTICLE XI REDEMPTION OF SECURITIES.................................................................... 53
SECTION 1101 Applicability of Article.......................................................... 53
SECTION 1102 Election to Redeem; Notice to Trustee............................................. 53
SECTION 1103 Selection by Trustee of Securities to Be Redeemed................................. 53
SECTION 1104 Notice of Redemption.............................................................. 54
SECTION 1105 Deposit of Redemption Price....................................................... 54
SECTION 1106 Securities Payable on Redemption Date............................................. 55
SECTION 1107 Securities Redeemed in Part....................................................... 55
ARTICLE XII SINKING FUNDS............................................................................... 55
SECTION 1201 Applicability of Article.......................................................... 55
SECTION 1202 Satisfaction of Sinking Fund Payments with Securities............................. 56
SECTION 1203 Redemption of Securities for Sinking Fund......................................... 56
ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE.......................................................... 56
SECTION 1301 Company's Option to Effect Defeasance or Covenant Defeasance...................... 56
SECTION 1302 Defeasance and Discharge.......................................................... 56
SECTION 1303 Covenant Defeasance............................................................... 57
SECTION 1304 Conditions to Defeasance or Covenant Defeasance................................... 57
SECTION 1305 Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions.......................................................... 59
SECTION 1306 Reinstatement..................................................................... 60
ARTICLE XIV SUBORDINATION OF SECURITIES................................................................. 60
SECTION 1401 Agreement to Subordinate.......................................................... 60
SECTION 1402 Distribution on Dissolution, Liquidation and Reorganization; Subrogation
of Securities..................................................................... 61
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SECTION 1403 Payments on Securities Prohibited During Event of Default under
Senior Indebtedness............................................................... 63
SECTION 1404 Payments on Securities Permitted.................................................. 64
SECTION 1405 Authorization of Holders to Trustee To Effect Subordination....................... 64
SECTION 1406 Notice to Trustee................................................................. 64
SECTION 1407 Right of Trustee To Hold Senior Indebtedness or Designated Obligations............ 64
SECTION 1408 Article Fourteen Not To Prevent Defaults or Events of Default..................... 65
SECTION 1409 Payment of Proceeds in Certain Cases.............................................. 65
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INDENTURE, dated as of May 1, 1999, between PROVIDIAN FINANCIAL
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
201 Mission Street, San Francisco, California, and CHASE MANHATTAN BANK AND
TRUST COMPANY, NATIONAL ASSOCIATON, a national banking association duly
organized and existing under the laws of the United States of America, as
Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of any series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101 Definition.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
<PAGE>
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law or executive order to close.
"Commission" means the Securities and Exchange Commission, from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee in San Francisco, California at which at any particular time its
corporate trust business shall be administered.
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"corporation" means a corporation, association, company, joint-
stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Default" has the meaning specific in Section 507.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act as
Depositary for such Securities as contemplated by Section 301.
"Designated Obligations" means, unless otherwise determined with
respect to any series of Securities pursuant to Section 301, all obligations of
the Company to make payment on account of claims in respect of derivative
products such as interest and foreign exchange rate contracts, commodity
contracts and similar arrangements, other than (i) obligations on account of
Senior Indebtedness, (ii) obligations on account of indebtedness for money
borrowed ranking pari passu with or subordinate to the Securities and (iii)
obligations which by their terms are expressly stated not to be superior in
right of payment to the Securities or to rank on a parity with the Securities;
provided, however, that notwithstanding the foregoing, in the event that any
rule, guideline or interpretation promulgated or issued by the Board of
Governors of the Federal Reserve System (or other competent regulatory agency or
authority), as from time to time in effect, establishes or specifies criteria
for the inclusion in regulatory capital of subordinated debt of a bank holding
company requiring that such subordinated debt be subordinated to obligations to
creditors in addition to those set forth above, then the term "Designated
Obligations" shall also include such additional obligations to creditors, as
from time to time in effect pursuant to such rules, guidelines or
interpretations. For purposes of this definition, "claim" shall have the meaning
assigned thereto in Section 101(4) of the Bankruptcy Code of 1978, as amended to
the date of this instrument.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Security" means a Security that evidences all or part of
the Securities of any series and bears the legend set forth in Section 204 (or
such legend as may be specified as contemplated by Section 301 for such
Securities).
"Holder" means a Person in whose name a Security is registered in
the Security Register.
3
<PAGE>
"Indenture" means this instrument as originally executed and as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of any
particular series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940
and any statute successor thereto, in each case as amended from time to time.
"Junior Subordinated Indenture" means that certain Junior
Subordinated Indenture, dated as of February 4, 1997, by and between the Company
(then known as Providian Bancorp, Inc.) and The Bank of New York, as trustee.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified
in Section 507(e) or 507(f).
"Officers' Certificate" means a certificate signed by the
chairman of the board of directors, a vice chairman of the board of directors,
the president or a Vice President, and by the treasurer, an assistant treasurer,
the secretary or an assistant secretary, of the Company, and delivered to the
Trustee. One of the officers signing an Officers' Certificate given pursuant to
Section 1004 shall be the principal executive, financial or accounting officer
of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
4
<PAGE>
(1) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
5
<PAGE>
"Place of Payment", when used with respect to the Securities of
any series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"PNB" means Providian National Bank.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee,
means any officer assigned by the Trustee to administer corporate trust matters
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means the principal of, premium, if any,
and interest on (i) all of the Company's indebtedness for money borrowed, other
than the Securities and the securities issued under the Junior Subordinated
Indenture, whether outstanding on the date of execution of this Indenture or
thereafter created, assumed or incurred, except such indebtedness for money
borrowed as is by its terms expressly stated to be not superior in right of
payment to the Securities or the securities issued under the Junior Subordinated
Indenture or to rank pari passu with the Securities or the securities issued
under the Junior Subordinated Indenture and (ii) any deferrals, renewals or
extensions of any such Senior Indebtedness. The term "indebtedness for money
borrowed" as used in the foregoing sentence shall include, without limitation,
any obligation of, or any obligation guaranteed by, the Company for the
repayment of borrowed money, whether or not evidenced by bonds, debentures,
notes or other written
6
<PAGE>
instruments, and any deferred obligation for the payment of the purchase price
of property or assets.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section
1304.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" means stock which ordinarily has voting power for
the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
SECTION 102 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
7
<PAGE>
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104 Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient
8
<PAGE>
for any purpose of this Indenture and (subject to Section 601) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders of Securities of such series, provided that the Company may not set a
record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of Outstanding Securities of the relevant series
on such record date, and no other Holders, shall be entitled to take the
relevant action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on
or prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing in
this paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Trustee in writing and to
each Holder of Securities of the relevant series in the manner set forth in
Section 106.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this
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<PAGE>
paragraph, the Holders of Outstanding Securities of such series on such record
date, and no other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders remain Holders
after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Securities of such series on
such record date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be cancelled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Trustee,
at the Company's expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be given to the Company
in writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 105 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administrator, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal
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office specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 106 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder. The Company in issuing
the Securities may use "CUSIP" numbers, and if so, the Trustee shall use such
numbers in notices of redemption or other related material as a convenience to
Holders; provided that any such notice or other related material may state that
no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of redemption or other
related material and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
SECTION 107 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
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<PAGE>
SECTION 110 Separability Clause.
In case any provision in this Indenture or in the Securities 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.
SECTION 111 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness, the creditors in respect of
Designated Obligations and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112 Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York without regard to the conflicts
of law rules of such State.
SECTION 113 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply)) payment of interest or principal (and premium, if any)
need not be made at such Place of Payment on such date, but may be made on the
next succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity.
ARTICLE II
SECURITY FORMS
SECTION 201 Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
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<PAGE>
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202 Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
____________________________________
____________________________________________________
No. ____ $_________
Providian Financial Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to or registered assigns, the principal
sum of Dollars on [if the Security is to bear interest prior to Maturity,
insert -, and to pay interest thereon from or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
on ________ and ________ in each year, commencing , at the rate of ___% per
annum, until the principal hereof is paid or made available for payment [if
applicable, insert -, provided that any principal and premium, and any such
installment of interest, which is overdue shall bear interest at the rate of
___% per annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on demand]. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the ________ or ________ (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert - The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ____% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are
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<PAGE>
paid or made available for payment. Interest on any overdue principal or premium
shall be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert - any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in __________, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert -;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
In Witness Whereof, the Company has caused this instrument to be duly
executed.
Dated:
______________________________________
By.___________________________________
SECTION 203 Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of _________ (herein called the "Indenture",
which term shall have the meaning assigned to it in such instrument), between
the Company and __________, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), and reference is hereby
made to the Indenture for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee, the
holders of Senior Indebtedness, the creditors in respect of Designated
Obligations and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof [if applicable, insert -, limited in
aggregate principal amount to $_________].
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert -
(1) on ________ in any year
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<PAGE>
commencing with the year ___ and ending with the year ____ through operation of
the sinking fund for this series at a Redemption Price equal to 100% of the
principal amount, and (2)] at any time [if applicable, insert - on or after
______, 19__], as a whole or in part, at the election of the Company, at the
following Redemption Prices (expressed as percentages of the principal amount):
if redeemed [if applicable, insert - on or before _________, ___%, and if
redeemed] during the 12-month period beginning of the years indicated,
<TABLE>
<CAPTION>
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption [if applicable, insert - (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert - The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on _______ in any
year commencing with the year ___ and ending with the year ___ through operation
of the sinking fund for this series at the Redemption Prices for redemption
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below, and (2) at any time [if applicable,
insert - on or after _________], as a whole or in part, at the election of the
Company, at the Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below: if redeemed during the 12-month period beginning
________ of the years indicated,
<TABLE>
<CAPTION>
Redemption Price Redemption Price For
For Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
---- ------------------- ----------------------
<S> <C> <C>
</TABLE>
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<PAGE>
and thereafter at a Redemption Price equal to ___% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert - Notwithstanding the foregoing, the Company may
not, prior to __________, redeem any Securities of this series as contemplated
by [if applicable, insert - Clause (2) of] the preceding paragraph as a part of,
or in anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than ____% per annum.]
[If applicable, insert - The sinking fund for this series provides for the
redemption on ______ in each year beginning with the year ____ and ending with
the year ____ of [if applicable, insert - not less than $______ ("mandatory
sinking fund") and not more than] $________ aggregate principal amount of
Securities of this series. Securities of this series acquired or redeemed by the
Company otherwise than through [if applicable, insert - mandatory] sinking fund
payments may be credited against subsequent [if applicable, insert - mandatory]
sinking fund payments otherwise required to be made [if applicable, insert - ,
in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert - In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert - The Securities shall be subordinated in right of
payment to Senior Indebtedness and creditors in respect of Designated
Obligations as provided in the provisions of the Indenture with respect thereto.
Each Holder of this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on its behalf
to take such actions as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee its attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance hereof, waives
all notice of the acceptance of the subordination provisions contained herein
and in the Indenture by each holder of Senior Indebtedness and each creditor in
respect of Designated Obligations, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.]
[If applicable, insert - The Indenture contains provisions for defeasance
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default with respect to this Security] [, in
each case] upon compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the
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<PAGE>
Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert - If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to - insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
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<PAGE>
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $______ and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
SECTION 204 Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SECTION 205 Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the
following form:
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<PAGE>
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
______________________________________________,
As Trustee
By____________________________________________,
Authorized Officer
ARTICLE III
THE SECURITIES
SECTION 301 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable (which, if so provided in or pursuant to such Board
Resolution or supplemental indenture, may be determined by the Company from
time to time and set forth in the Securities of the series issued from time
to time);
(5) the rate or rates (or method of determination thereof) at which
any Securities of the series shall bear interest, if any, the date or dates
from which any such
19
<PAGE>
interest shall accrue (or method of determination thereof), the Interest
Payment Dates on which any such interest shall be payable (or method of
determination thereof) and the Regular Record Date (which, in either case
or both, if so provided in or pursuant to such Board Resolution or
supplemental indenture, may be determined by the Company from time to time
and set forth in the Securities of the series issued from time to time) for
any such interest payable on any Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which
and the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than by a Board Resolution, the manner in which any election by the Company
to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which any Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be
determined;
(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and
the manner of determining the equivalent thereof in the currency of the
United States of America for any purpose, including for purposes of the
definition of "Outstanding" in Section 101;
(12) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or the
Holder thereof, in one or more currencies or currency units other than that
or those in which such Securities are stated to be payable, the currency,
currencies or currency units in which the principal of or any premium or
interest on such Securities as to which such election is made shall be
payable, the periods within which and the terms and conditions upon which
such election is to be made and the amount so payable (or the manner in
which such amount shall be determined);
(13) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
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<PAGE>
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(15) if applicable, that the Securities of the series, in whole or
any specified part, shall be defeasible pursuant to Section 1302 or Section
1303 or both such Sections and, if other than by a Board Resolution, the
manner in which any election by the Company to defease such Securities
shall be evidenced;
(16) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities,
the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 204 and any
circumstances in addition to or in lieu of those set forth in Clause (2) of
the last paragraph of Section 305 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any transfer
of such Global Security in whole or in part may be registered, in the name
or names of Persons other than the Depositary for such Global Security or a
nominee thereof;
(17) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 502;
(18) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series; and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto. Not all Securities of any
one series need be issued at the same time, and, unless otherwise provided, a
series may be reopened for issuances of additional Securities of such series.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
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The Securities shall be subordinated in right of payment to Senior
Indebtedness and creditors in respect of Designated Obligations as provided in
Article Fourteen.
SECTION 302 Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(1) all instruments furnished by the Company to the Trustee in
connection with the authentication and delivery of such Securities conform
to the requirements of this Indenture and constitute sufficient authority
hereunder for the Trustee to authenticate and deliver such Securities;
(2) the forms and terms of such Securities have been established in
conformity with the provisions of this Indenture;
(3) in the event that the forms or terms of such Securities have been
established in a supplemental indenture, the execution and delivery of such
supplemental indenture has been duly authorized by all necessary corporate
action of the Company, such supplemental indenture has been duly executed
and delivered by the Company and, assuming due authorization, execution and
delivery by the Trustee, is a valid and binding obligation enforceable
against the Company in accordance with its terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally
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and subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law);
(4) the execution and delivery of such Securities have been duly
authorized by all necessary corporate action of the Company and such
Securities have been duly executed by the Company and, assuming due
authentication by the Trustee and delivery by the Company, are valid and
binding obligations of the Company enforceable against the Company in
accordance with their terms, entitled to the benefit of the Indenture,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and subject to such other exceptions as
counsel shall reasonably request and as to which the Trustee shall not
reasonably object; and
(5) to the best of such counsel's knowledge, all governmental
consents, authorizations and approvals which are required for the execution
and delivery of the Indenture and the Securities under all applicable laws
of the State of Delaware and the State of New York, have been received
other than such as may be required by the securities or blue sky laws of
the various states in connection with the offer and sale of the Securities.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
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SECTION 304 Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount. Until so exchanged, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
SECTION 305 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of like tenor and aggregate
principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
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All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered,
in the name of any Person other than the Depositary for such Global
Security or a nominee thereof unless (A) such Depositary (i) has notified
the Company that it is unwilling or unable to continue as Depositary for
such Global Security or (ii) has ceased to be a clearing agency registered
under the Exchange Act, (B) there shall have occurred and be continuing an
Event of Default with respect to such Global Security or (C) there shall
exist such circumstances, if any, in addition to or in lieu of the
foregoing as have been specified for this purpose as contemplated by
Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security
for other Securities may be made in whole or in part, and all Securities
issued in exchange for a Global Security or any portion thereof shall be
registered in such names as the Depositary for such Global Security shall
direct.
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(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906 or
1107 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
SECTION 306 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307 Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
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Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be given to each Holder of Securities of such series in the manner set
forth in Section 106, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such
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Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and any premium and (subject to Section 307)
any interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
SECTION 309 Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
SECTION 310 Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
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(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose money in an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal and any
premium and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive. Funds held pursuant to this Section
shall not be subject to the provisions of Article Fourteen.
SECTION 402 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
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ARTICLE V
REMEDIES
SECTION 501 Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be occasioned by the provisions of Article
Fourteen or be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(2) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(3) any other Event of Default provided with respect to Securities of
that series.
SECTION 502 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section
501(1) or 501(2)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of
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that series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable. If an Event of Default specified in Section 501(1)
or 501(2) with respect to Securities of any series at the time Outstanding
occurs, the principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified by the terms
thereof) shall automatically, and without any declaration or other action on the
part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all other Defaults with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
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(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If a Default with respect to Securities of any series occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
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SECTION 505 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 506 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: Subject to Article Fourteen, to the payment of the amounts then
due and unpaid for principal of and any premium and interest on the Securities
in respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal and any premium and interest,
respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 507 Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
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(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
The following events shall be "Defaults" with respect to any series of
Securities under this Indenture:
(a) an Event of Default with respect to such series specified in
Section 501; or
(b) default in the payment of any interest on any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(c) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(d) default in the deposit of any sinking fund payment, when and as
due by the terms of any Security of that series; or
(e) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in the performance of which or a breach of which is
elsewhere in this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder.
(f) if any event of default as defined in any mortgage, indenture or
instrument under which there may be issued, or by which there may be
secured or evidenced, any indebtedness of the Company or PNB for money
borrowed, whether such indebtedness now exists or shall hereafter be
created, shall happen and shall result in such indebtedness in principal
amount in excess of $5,000,000 becoming or being declared due and payable
prior to the date on which it would otherwise become due and payable, and
such acceleration shall not be rescinded or annulled within a period of 30
days after there shall have been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the Holders
of not less than 25% in principal amount of the Outstanding Securities of
that series, a written notice specifying such event of default and
requiring the Company to cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default" hereunder.
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SECTION 508 Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512 Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or with the Securities of any series,
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(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of the
other Holders of Securities of such series not joining in such action.
SECTION 513 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Default or
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company, in any suit instituted
by the Trustee, in any suit instituted by any Holder, or group of Holders,
holding in the aggregate not less than 25% in principal amount of the
Outstanding Securities of any series, or in any suit instituted by any Holder
for the enforcement of the payment of the principal of and any premium and
interest on any Security on or after the Stated Maturity or Maturities expressed
in such Security (or, in the case of redemption, on or after the Redemption
Date).
SECTION 515 Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to
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the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 601 Certain Duties and Responsibilities.
Except as otherwise provided herein, the duties and responsibilities of the
Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the
foregoing, no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it. Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section and shall extend to the Paying Agent, Security Registrar, and
Authenticating Agent.
SECTION 602 Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
507(d) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, a Default with respect to
Securities of such series.
The Trustee shall not be deemed to have knowledge of any default specified
in Section 507(a), 507(e) or 507(f) hereunder unless and until a Responsible
Officer shall have actual knowledge thereof, or shall have received written
notice thereof at its corporate trust office in San Francisco. In the absence
of such actual knowledge or notice, the Trustee may conclusively assume that no
such default has occurred and is continuing under this Indenture. Except as
otherwise expressly provided herein, the Trustee shall not be bound to ascertain
or inquire as to the performance or observance of any of the terms, conditions,
covenants or agreements herein or of any of the documents executed in connection
with Securities issued hereunder, or as to the existence of a default, Default
or Event of Default hereunder.
SECTION 603 Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness
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or other paper or document believed by it in good faith to be genuine and
to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(8) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty unless so specified herein.
SECTION 604 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity,
sufficiency or priority of this Indenture or of the Securities, except that the
Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder and
that the statements made by
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it in a Statement of Eligibility and Qualification on Form T-1 supplied to the
Company are true and accurate, subject to the qualifications set forth therein.
Neither the Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of Securities or the proceeds thereof.
SECTION 605 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607 Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or willful
misconduct; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or willful
misconduct on its part, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
All indemnifications and releases from liability granted hereunder to the
Trustee shall extend to its officers, directors, employees, agents, successors
and assigns. The provisions of this Section 607 shall survive the resignation
or removal of the Trustee or the termination of this Indenture.
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SECTION 608 Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
SECTION 609 Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such which shall have
(or, in the case of a corporation included in a bank holding company system, the
related bank holding company shall have) a combined capital and surplus of at
least $100,000,000. If any such Person or bank holding company publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person or bank holding company shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee with respect to the Securities of any
series shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 610 Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or
more series by giving written notice thereof to the Company. If the instrument
of acceptance by a successor Trustee required by Section 611 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
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(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the successor
Trustee with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 611 Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
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powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article and the Trust Indenture Act.
SECTION 612 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided
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such corporation shall be otherwise qualified and eligible under this Article
and the Trust Indenture Act, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 613 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, which shall have (or, in the case of a corporation included in a bank
holding company system, the related bank holding company shall have) a combined
capital and surplus of not less than $100,000,000 and subject to supervision or
examination by Federal or State authority. If such Authenticating Agent or bank
holding company publishes reports of condition at least annually, pursuant to
law or to the requirements of said supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
Authenticating Agent or bank holding company shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
_____________________________________,
As Trustee
By___________________________________,
As Authenticating Agent
By___________________________________,
Authorized Officer
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than March 1 and September 1 in each
year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities of each series as of the
preceding February 15 or August 15, as the case may be, and
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(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702 Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
agent of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
SECTION 703 Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
Reports so required to be transmitted at stated intervals of not more than
12 months shall be transmitted no later than September 15 in each calendar year,
commencing in 1999.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
SECTION 704 Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
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ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801 Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and the Company shall not permit any Person to consolidate with
or merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the Person formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and any premium and interest on all
the Securities and the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or any
Subsidiary as a result of such transaction as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Default, and
no event which, after notice or lapse of time or both, would become a
Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by this Indenture, the Company or
such successor Person, as the case may be, shall take such steps as shall
be necessary effectively to secure the Securities equally and ratably with
(or prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
SECTION 802 Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or
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lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 901 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Defaults or Events of Default for the
benefit of the Holders of all or any series of Securities (and if such
additional Defaults or Events of Default are to be for the benefit of less
than all series of Securities, stating that such additional Defaults or
Events of Default are expressly being included solely for the benefit of
such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (A) shall neither (i) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify the
rights of the Holder of any such Security with respect to such provision or
(B) shall become effective only when there is no such Security Outstanding;
or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
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(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action pursuant
to this Clause (9) shall not adversely affect the interests of the Holders
of Securities of any series in any material respect.
SECTION 902 Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the principal
of an Original Issue Discount Security or any other Security which would be
due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or the coin
or currency in which, any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or modify the provisions of
this Indenture with respect to the subordination of the Securities in a
manner adverse to the Holders, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to
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"the Trustee" and concomitant changes in this Section, or the deletion of
this proviso, in accordance with the requirements of Sections 611 and
901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel and an Officer's Certificate, each stating that the execution
of such supplemental indenture is authorized or permitted by this Indenture.
The Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
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SECTION 907 Subordination Unimpaired.
No supplemental indenture executed pursuant to this Article shall directly
or indirectly modify the provisions of Article Fourteen in any manner which
might alter the subordination of the Securities.
ARTICLE X
COVENANTS
SECTION 1001 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
SECTION 1002 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
SECTION 1003 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, prior to each due date of the principal of or any premium
or interest on any
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Securities of that series, deposit with a Paying Agent a sum sufficient to pay
such amount, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will (1) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan in the City of New York, New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
The Trustee shall not be liable to the Company or any Holder for interest
on funds held by it for the payment and discharge of the principal, interest, or
premium on any of the Securities to any Holder.
SECTION 1004 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to
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any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 1005 Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its and PNB's
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1006 Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 1007 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and (2) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
SECTION 1008 Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for Securities
of such series, the Company may, with respect to the Securities of any series,
omit in any particular instance to comply with any term, provision or condition
set forth in any covenant provided pursuant to Section 301(18), 901(2) or 901(7)
for the benefit of the Holders of such series if before the time for such
compliance the Holders of at least 66 2/3% in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of
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the Company and the duties of the Trustee in respect of any such term, provision
or condition shall remain in full force and effect.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 1101 Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
SECTION 1102 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution or in another manner specified as contemplated by Section 301
for such Securities. In case of any redemption at the election of the Company
of less than all the Securities of any series (including any such redemption
affecting only a single Security), the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed and shall deliver to the Trustee
such documentation and records as shall enable the Trustee to select the
Securities to be redeemed pursuant to Section 1103. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption as aforesaid and, in case of any Securities selected for
partial redemption as aforesaid, the principal amount thereof to be redeemed.
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The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part,
the unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal amount of
the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security, or the portion thereof, to be redeemed
and, if applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where each such Security is to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 1105 Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and
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(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date.
SECTION 1106 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 1201 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the terms of such
Securities is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202.
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Each sinking fund payment shall be applied to the redemption of Securities as
provided for by the terms of such Securities.
SECTION 1202 Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and/or (2) may apply as a credit
Securities of such series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for by
the terms of such Securities; provided that the Securities to be so credited
have not been previously so credited. The Securities to be so credited shall be
received and credited for such purpose by the Trustee at the Redemption Price,
as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 1203 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering or crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days prior to each such sinking fund payment
date, the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301 Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1302 or
Section 1303 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 301 as being defeasible pursuant to such
Section 1302 or 1303, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 301 for such Securities.
SECTION 1302 Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have
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been discharged from its obligations, and the provisions of Article Fourteen
shall cease to be effective, with respect to such Outstanding Securities as
provided in this Section on and after the date the conditions set forth in
Section 1304 are satisfied (hereinafter called "Defeasance"). For this purpose,
such Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities
and to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of such Outstanding
Securities to receive, solely from the trust fund described in Section 1304 and
as more fully set forth in such Section, payments in respect of the principal of
and any premium and interest on such Securities when payments are due, (2) the
Company's obligations with respect to such Securities under Sections 304, 305,
306, 1002 and 1003, (3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (4) this Article. Subject to compliance with this Article,
the Company may exercise its option (if any) to have this Section applied to any
Securities notwithstanding the prior exercise of its option (if any) to have
Section 1303 applied to such Securities.
SECTION 1303 Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (1)
the Company shall be released from its obligations under Section 801(3),
Sections 1006 through 1007, inclusive, and any covenants provided pursuant to
Section 301(18), 901(2) or 901(7) for the benefit of the Holders of such
Outstanding Securities, (2) the occurrence of any event specified in Sections
507(e) (with respect to any of Section 801(3), Sections 1006 through 1007,
inclusive, and any such covenants provided pursuant to Section 301(18), 901(2)
or 901(7)), 507(f) and 501(3) shall be deemed not to be or result in a Default
or an Event of Default and (3) the provisions of Article Fourteen shall cease to
be effective, in each case with respect to such Securities as provided in this
Section on and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that, with respect to such Securities, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section (to the extent
so specified in the case of Section 507(e)) or Article Fourteen, whether
directly or indirectly by reason of any reference elsewhere herein to any such
Section or Article or by reason of any reference in any such Section or Article
to any other provision herein or in any other document, but the remainder of
this Indenture and such Securities shall be unaffected thereby.
SECTION 1304 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302 or
Section 1303 to any Outstanding Securities or any series of Outstanding
Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically
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pledged as security for, and dedicated solely to, the benefits of the
Holders of such Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will provide, not later
than one business day before the due date of any payment, money in an
amount, or (C) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the principal of and any
premium and interest on such Outstanding Securities on the respective
Stated Maturities, in accordance with the terms of this Indenture and such
Securities. As used herein, "U.S. Government Obligation" means (x) any
security which is (i) a direct obligation of the United States of America
for the payment of which the full faith and credit of the United States of
America is pledged or (ii) an obligation of a Person controlled or
supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which, in
either case (i) or (ii), is not callable or redeemable at the option of the
issuer thereof, and (y) any depositary receipt issued by a bank (as defined
in Section 3(a)(2) of the Securities Act) as custodian with respect to any
U.S. Government Obligation which is specified in Clause (x) above and held
by such bank for the account of the holder of such depositary receipt, or
with respect to any specific payment of principal of or interest on any
U.S. Government Obligation which is so specified and held, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt
from any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest evidenced by
such depositary receipt.
(2) In the event of an election to have Section 1302 apply to any
Outstanding Securities or any series of Outstanding Securities, as the case
may be, the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date
of this Indenture, there has been a change in the applicable Federal income
tax law, in either case (A) or (B) to the effect that, and based thereon
such opinion shall confirm that, the Holders of such Outstanding Securities
will not recognize gain or loss for Federal income tax purposes as a result
of the deposit, Defeasance and discharge to be effected with respect to
such Outstanding Securities and will be subject to Federal income tax on
the same amount, in the same manner and at the same times as would be the
case if such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 1303 apply to any
Outstanding Securities or any series of Outstanding Securities, as the case
may be, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Outstanding Securities will
not recognize gain or loss for Federal income tax purposes as a result of
the deposit and Covenant Defeasance to be effected with respect to such
Securities and will be subject to Federal income tax on the same amount, in
the same manner and at the same times as would be the case if such deposit
and Covenant Defeasance were not to occur.
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(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Outstanding Securities nor any
other Securities of the same series, if then listed on any securities
exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Outstanding Securities or
any other Securities shall have occurred and be continuing at the time of
such deposit or, with regard to any such event specified in Sections 501(1)
and (2), at any time on or prior to the 90th day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning of
such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act unless such trust shall be
registered under such Act or exempt from registration thereunder.
(9) At the time of such deposit, (A) no default in the payment of any
principal of or premium or interest on any Senior Indebtedness shall have
occurred and be continuing, (B) no event of default with respect to any
Senior Indebtedness shall have resulted in such Senior Indebtedness
becoming, and continuing to be, due and payable prior to the date on which
it would otherwise have become due and payable (unless payment of such
Senior Indebtedness has been made or duly provided for), and (C) no other
event of default with respect to any Senior Indebtedness shall have
occurred and be continuing permitting (after notice or lapse of time or
both) the holders of such Senior Indebtedness (or a trustee on behalf of
such holders) to declare such Senior Indebtedness due and payable prior to
the date on which it would otherwise have become due and payable.
(10) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 1305 Deposited Money and U.S. Government Obligations to Be Held in
Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section and
Section 1306, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in respect of
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any Outstanding Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any such Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in respect of
principal and any premium and interest, but money so held in trust need not be
segregated from other funds except to the extent required by law. Money and U.S.
Government Obligations so held in trust shall not be subject to the provisions
of Article Fourteen.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations with respect to any Securities held by it as
provided in Section 1304 which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
SECTION 1306 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1305 with respect to such Securities
in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to receive such payment
from the money so held in trust.
ARTICLE XIV
SUBORDINATION OF SECURITIES
SECTION 1401 Agreement to Subordinate.
The Company, for itself, its successors and assigns, covenants and agrees,
and each Holder of a Security by his acceptance thereof, likewise covenants and
agrees, that the payment of the principal and premium, if any, and interest on
each and all of the Securities is hereby expressly subordinated, to the extent
and in the manner hereinafter set forth, in right of payment
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to the prior payment in full of all Senior Indebtedness and, subject to the
provisions of Section 1409, Designated Obligations of the Company.
SECTION 1402 Distribution on Dissolution, Liquidation and Reorganization;
Subrogation of Securities.
Upon any distribution of assets of the Company upon any dissolution,
winding up, liquidation or reorganization of the Company, whether in bankruptcy,
insolvency, reorganization or receivership proceedings or upon an assignment for
the benefit of creditors or any other marshalling of the assets and liabilities
of the Company or otherwise (subject to the power of a court of competent
jurisdiction to make other equitable provision reflecting the rights conferred
in this Indenture upon the Senior Indebtedness and the holders thereof with
respect to the Securities and the Holders thereof (and, upon the Designated
Obligations and the creditors in respect thereof with respect to the Securities
and the Holders thereof) by a lawful plan of reorganization under applicable
bankruptcy law);
(i) the holders of all Senior Indebtedness shall first be entitled
to receive payment in full in accordance with the terms of such Senior
Indebtedness of the principal thereof, premium, if any, and the interest due
thereon (including interest accruing subsequent to the commencement of any
proceeding for the bankruptcy or reorganization of the Company under any
applicable bankruptcy, insolvency, or similar law now or hereafter in effect)
before the Holders of the Securities are entitled to receive any payment upon
the principal of or premium, if any, or interest on indebtedness evidenced by
the Securities;
(ii) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article Fourteen, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other indebtedness of the
Company being subordinated to the payment of the Securities, shall be paid by
the liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee
or otherwise, directly to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior Indebtedness
may have been issued, in accordance with the priorities then existing among
holders of Senior Indebtedness for payment of the aggregate amounts remaining
unpaid on account of the principal of and premium, if any, and interest
(including interest accruing subsequent to the commencement of any proceeding
for the bankruptcy or reorganization of the Company under any applicable
bankruptcy, insolvency or similar law now or hereafter in effect) on the Senior
Indebtedness held or represented by each, to the extent necessary to make
payment in full of all Senior Indebtedness remaining unpaid, after giving effect
to any concurrent payment or distribution to the holders of such Senior
Indebtedness; it being understood that if the Holders of Securities shall fail
to file a proper claim in the form required by any proceeding referred to in
this subparagraph (ii) prior to 30 days before the expiration of the time to
file such claim or claims, then the holders of Senior Indebtedness are hereby
authorized to file an appropriate claim or claims for and on behalf of the
Holders of Securities in the form required in any such proceeding (as are the
creditors in respect of Designated Obligations in the event Section 1409 is
applicable); and
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(iii) in the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, including any such payment or distribution which
may be payable or deliverable by reason of the payment of any other indebtedness
of the Company being subordinate to the payment of the Securities, shall be
received by the Trustee or Holders of the Securities before all Senior
Indebtedness is paid in full, such payment or distribution shall be held in
trust for the benefit of and shall be paid over to the holders of such Senior
Indebtedness or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably as aforesaid, for application
to the payment of all Senior Indebtedness remaining unpaid until all such Senior
Indebtedness shall have been paid in full, after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as the Securities
are subordinated and is entitled to like rights of subrogation) to the rights of
the holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Indebtedness
until the principal of and premium, if any, and interest on the Securities shall
be paid in full and no such payments or distributions to holders of such Senior
Indebtedness to which the Holders of the Securities would be entitled except for
the provisions hereof of cash, property or securities otherwise distributable to
the Senior Indebtedness shall, as between the Company, its creditors, other than
the holders of Senior Indebtedness and the Holders of the Securities, be deemed
to be a payment by the Company to or on account of the Securities. It is
understood that the provisions of this Article Fourteen are and are intended
solely for the purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of Senior Indebtedness (and, in the
case of Section 1409, the Holders of the Securities, on the one hand, and
creditors in respect of Designated Obligations) on the other hand. Nothing
contained in this Article Fourteen or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Company, its
creditors, other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is unconditional and absolute
(and which, subject to the rights under this Article Fourteen of the holders of
the Senior Indebtedness and the rights under Section 1409 of creditors in
respect of Designated Obligations, is intended to rank equally with all other
general obligations of the Company), to pay to the Holders of the Securities the
principal of, premium, if any, and interest on the Securities as and when the
same shall become due and payable in accordance with their terms or to affect
the relative rights of the Holders of the Securities and creditors of the
Company, other than the holders of the Senior Indebtedness and creditors in
respect of Designated Obligations, nor shall anything herein or in the
Securities prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon Default under this
Indenture, subject to the rights, if any, under this Article Fourteen of the
holders of Senior Indebtedness and under Section 1409 of creditors in respect of
Designated Obligations in respect of cash, property or securities of the Company
received upon the exercise of any such remedy. Upon any payment or distribution
of assets of the Company referred to in this Article Fourteen, the Trustee,
subject to the provisions of Section 801, and the Holders of the Securities
shall be entitled to rely upon any order or decree of a court of competent
jurisdiction in which such dissolution, winding up, liquidation or
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reorganization proceedings are pending or upon a certificate of the liquidating
trustee or agent or other person making any distribution to the Trustee or to
the Holders of the Securities for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company and the creditors in respect
of Designated Obligations, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article Fourteen. In the absence of any such liquidating trustee, agent or
other person, the Trustee shall be entitled to rely upon a written notice by a
Person representing himself to be a holder of Senior Indebtedness (or a trustee
or representative on behalf of such holder) or a creditor in respect of
Designated Obligations as evidence that such Person is a holder of Senior
Indebtedness (or is such a trustee or representative) or a creditor in respect
of Designated Obligations, as the case may be. In the event that the Trustee
determines, in good faith, that further evidence is required with respect to the
right of any Person, as a holder of Senior Indebtedness or a creditor in respect
of Designated Obligations, to participate in any payment or distribution
pursuant to this Section or Section 1409, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness or Designated Obligations held by such Person, as to the
extent to which such Person is entitled to participation in such payment or
distribution, and as to other facts pertinent to the rights of such Person under
this Section or Section 1409, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment. With respect to the holders of
Senior Indebtedness or creditors in respect of Designated Obligations, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness or
creditors in respect of Designated Obligations shall be read into this Indenture
against the Trustee. The Trustee, however, shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness or creditors in respect of
Designated Obligations, and shall not be liable to any such holders or creditors
if it shall mistakenly pay over or distribute to or on behalf of Holders of
Securities or the Company moneys or assets to which any holders of Senior
Indebtedness or creditors in respect of Designated Obligations shall be entitled
by virtue of this Article Fourteen.
SECTION 1403 Payments on Securities Prohibited During Event of Default under
Senior Indebtedness.
In the event and during the continuation of any default in the payment of
principal of, or premium, if any, or interest on, any Senior Indebtedness beyond
any applicable period of grace, or in the event that any event of default with
respect to any Senior Indebtedness shall have occurred and be continuing, or
would occur as a result of the payment referred to hereinafter, permitting the
holders of such Senior Indebtedness (or a trustee on behalf of the holders
thereof) to accelerate the maturity thereof, then, unless and until such default
or event of default shall have been cured or waived or shall have ceased to
exist, no payment of principal of, or premium or interest on the Securities, or
in respect of any redemption, retirement, purchase or other acquisition of any
of the Securities, shall be made by the Company.
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SECTION 1404 Payments on Securities Permitted.
Nothing contained in this Indenture or in any of the Securities shall (i)
impair, as between the Company and Holders of Securities, the obligation of the
Company to make, or prevent the Company from making, at any time except as
provided in Sections 1402, 1403, 1408 and 1409, payments of principal of or
premium, if any, or interest (including interest accruing subsequent to the
commencement of any proceeding for the bankruptcy or reorganization of the
Company under any applicable bankruptcy, insolvency or similar law now or
hereafter in effect) on the Securities, as and when the same shall become due
and payable in accordance with the terms of the Securities, (ii) affect the
relative rights of the Holders of the Securities and creditors of the Company
other than the holders of the Senior Indebtedness of the Company and the
creditors in respect of Designated Obligations, (iii) prevent the Trustee or the
Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default thereunder, subject to the rights, if any, under
Article Fourteen of the holders of Senior Indebtedness and the creditors in
respect of Designated Obligations in respect of cash, property or securities of
the Company received upon the exercise of such remedy, or (iv) prevent the
application by the Trustee or any Paying Agent of any moneys deposited with it
hereunder to the payment of or on account of the principal of or premium, if
any, or interest on the Securities or prevent the receipt by the Trustee or any
Paying Agent of such moneys, if, prior to the second Business Day prior to such
deposit, the Trustee or such Paying Agent did not have written notice of any
event prohibiting the making of such deposit by the Company.
SECTION 1405 Authorization of Holders to Trustee To Effect Subordination.
Each Holder of a Security by his acceptance thereof authorizes and directs
the Trustee in his behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in this Article Fourteen and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1406 Notice to Trustee.
Notwithstanding the provisions of this Article or any other provisions of
this Indenture, but subject to Section 1404 hereof, neither the Trustee nor any
Paying Agent shall be charged with knowledge of the existence of any Senior
Indebtedness or Designated Obligations or of any event which would prohibit the
making of any payment of moneys to or by the Trustee or such Paying Agent,
unless and until the Trustee or such Paying Agent shall have received written
notice thereof from the Company or from the holder of any Senior Indebtedness or
from the representative of any such holder or from any creditor in respect of
Designated Obligations.
SECTION 1407 Right of Trustee To Hold Senior Indebtedness or Designated
Obligations.
The Trustee shall be entitled to all of the rights set forth in this
Article in respect of any Senior Indebtedness or General Obligation at any time
held by it in its individual capacity to the same extent as any other holder of
such Senior Indebtedness or creditor in respect of such General Obligation and
nothing in this Indenture shall be construed to deprive the Trustee of any of
its rights as such holder or creditor.
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Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1408 Article Fourteen Not To Prevent Defaults or Events of Default.
The failure to make a payment pursuant to the Securities by reason of any
provision in this Article shall not be construed as preventing the occurrence of
a Default or an Event of Default.
SECTION 1409 Payment of Proceeds in Certain Cases.
(i) If, after giving effect to the provisions of Section 1402, any
amount of cash, property or securities shall be available for payment or
distribution in respect of the Securities ("Excess Proceeds"), and any creditors
in respect of Designated Obligations shall not have received payment in full of
all amounts due or to become due on or in respect of such Designated Obligations
(and provision shall not have been made for such payment in money or money's
worth), then such Excess Proceeds shall first be applied (ratably with any
amount of cash, property or securities available for payment or distribution in
respect of any other indebtedness of the Company that by its express terms
provides for the payment over of amounts corresponding to Excess Proceeds to
creditors in respect of Designated Obligations) to pay or provide for the
payment of the Designated Obligations remaining unpaid, to the extent necessary
to pay all Designated Obligations in full, after giving effect to any concurrent
payment or distribution to or for creditors in respect of Designated
Obligations. Any Excess Proceeds remaining after payment (or provision for
payment) in full of all Designated Obligations shall be available for payment or
distribution in respect of the Securities.
(ii) In the event that, notwithstanding the foregoing provisions of
subsection (ii) of this Section, the Trustee or Holder of any Security shall, in
the circumstances contemplated by such subsection, have received any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, before all Designated Obligations are paid in full or
payment thereof duly provided for, and if such fact shall, at or prior to the
time of such payment or distribution have been made known to the Trustee or, as
the case may be, such Holder, then and in such event, subject to any obligation
that the Trustee or such Holder may have pursuant to Section 1402, such payment
or distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for payment in
accordance with subsection (ii).
(iii) Subject to the payment in full of all Designated Obligations,
the Holder of the Securities shall be subrogated (equally and ratably with the
holders of all indebtedness of the Company that by its express terms provides
for the payment over of amounts corresponding to Excess Proceeds to creditors in
respect of Designated Obligations and is entitled to like rights of subrogation)
to the rights of the creditors in respect of Designated Obligations to receive
payments or distributions of cash, property or securities applicable to the
Designated Obligations until the principal of and interest on the Securities
shall be paid in full. For purposes of such subrogation, no payments or
distributions to creditors in respect of Designated Obligations of any cash,
property or securities to which Holders of the Securities or the Trustee would
be
65
<PAGE>
entitled except for the provisions of this Section, and no payments over
pursuant to the provisions of this Section to creditors in respect of Designated
Obligations by Holders of Securities or the Trustee, shall, as among the
Company, its creditors (other than creditors in respect of Designated
Obligations) and the Holders of Securities be deemed to be a payment or
distribution by the Company to or on account of the Securities.
(iv) The provisions of this Section are and are intended solely for
the purpose of defining the relative rights of the Holders of the Securities, on
the one hand, and the creditors in respect of Designated Obligations, on the
other hand, after giving effect to the rights of the holders of Senior
Indebtedness, as provided in this Article. Nothing contained in this Section is
intended to or shall affect the relative rights against the Company of the
Holders of the Securities and (a) the holders of Senior Indebtedness or (b)
other creditors of the Company other than creditors in respect of Designated
Obligations.
_____________________________
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
66
<PAGE>
In Witness Whereof, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
PROVIDIAN FINANCIAL CORPORATION
By /s/ David J. Petrini
___________________________________________
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION
By /s/ Rose T. Maravilla
___________________________________________
<PAGE>
EXHIBIT 4.27
[FACE OF SECURITY]
REGISTERED REGISTERED
No. FXR
CUSIP
PROVIDIAN FINANCIAL CORPORATION
MEDIUM-TERM NOTE, SERIES A
(Fixed Rate)
(Senior)
[Insert if the Security is to be a Global Security - This Note is a Global
Security 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 Global
Security is exchangeable for 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 such limited circumstances.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) 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 such other name as requested
by an authorized representative of The Depository Trust Company and any payment
hereon made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof,
Cede & Co., has an interest herein.]
THE FOLLOWING SUMMARY OF TERMS IS SUBJECT TO THE INFORMATION SET FORTH ON
THE REVERSE HEREOF:
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT: INTEREST PAYMENT DATES (if other than April REGULAR RECORD DATES (if other than March
1 and October 1): 15 and September 15):
<S> <C> <C>
ORIGINAL ISSUE DATE: INTEREST RATE: MATURITY DATE:
SPECIFIED CURRENCY: OPTION TO ELECT PAYMENT IN U.S. DOLLARS AUTHORIZED DENOMINATIONS (only applicable
(only applicable if Specified Currency is if Specified Currency is other than U.S.
[_] U.S. dollars other than U.S. dollars): dollars):
[_] Other: [_] Yes [_] No
EXCHANGE RATE AGENT (if other than The THIS NOTE IS A:
First National Bank of Chicago):
[_] Global Note
[_] Certificated Note (only applicable if
Specified Currency is other than U.S.
dollars)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
ORIGINAL ISSUE DISCOUNT NOTE: TOTAL AMOUNT OF OID: ISSUE PRICE (expressed as a percentage of
aggregate principal amount):
[_] Yes [_] No DEFAULT RATE:
REDEMPTION DATE(S) (including any REDEMPTION PRICE(S): TERMS OF AMORTIZING NOTES:
applicable regular or special record
dates):
REPAYMENT DATE(S) (including any REPAYMENT PRICE(S):
applicable regular or special record
dates):
OTHER TERMS: STATED MATURITY EXTENSION OPTION: CONDITIONAL AUTOMATIC EXTENSION OF STATED
MATURITY (RENEWAL)
[_] Yes [_] No
[_] Yes [_] No
EXTENSION PERIOD(S) AND FINAL MATURITY DATE
(only applicable if option to extend stated RENEWAL PERIOD(S) AND FINAL MATURITY DATE
maturity): (only applicable if option to renew stated
maturity).
BASIS FOR INTEREST RATE DURING EXTENSION
PERIOD (only applicable if option to extend BASIS FOR INTEREST RATE DURING RENEWAL
stated maturity): PERIOD (only applicable if option to renew
stated maturity).
INTEREST RATE RESET OPTION:
[_] Yes [_] No
OPTIONAL RESET DATES (only applicable if
option to reset interest rates):
BASIS FOR INTEREST RATE RESET (only
applicable if option to reset interest
rates):
</TABLE>
PROVIDIAN FINANCIAL CORPORATION, a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to [Insert if the Security is to be a
Certificated Security - ] [Insert if the Security is to be a Global
Security - Cede & Co., as nominee for The Depository Trust Company], or
registered assigns, the Principal Amount stated above on the Maturity Date shown
above, and to pay interest thereon from and including the Original Issue Date
shown above or, in the case of a Note issued upon registration of transfer or
exchange, from and including the most recent Interest Payment Date to which
interest has been paid or duly provided for, unless otherwise specified on the
face hereof, semi-annually on April 1 and October 1 of each year and on the
Maturity Date, commencing on the first such Interest Payment Date next
succeeding the Original Issue Date, provided that if the Original Issue Date is
--------
after a Regular Record Date and before the Interest Payment Date immediately
following such Regular Record Date, interest payments will commence on the
second Interest Payment Date following the Original Issue Date, at the rate per
annum set forth above, until the principal hereof is paid or made available for
payment and (to the extent that the payment of such interest shall be legally
enforceable) at the Default Rate per annum specified above on any overdue
principal and premium, if any, and on
2
<PAGE>
any overdue installment of interest. If no Default Rate is specified above, the
Default Rate shall be the Interest Rate on this Note specified above. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest, which shall be, unless
otherwise specified on the face hereof, the March 15 or September 15 (whether or
not a Business Day), as the case may be, next preceding the April 1 and October
1 Interest Payment Dates (unless otherwise specified on the face hereof);
provided, however, that interest payable at the Maturity Date will be payable to
- -------- -------
the Person to whom principal shall be payable. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either 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 for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Notes of
this series not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
Unless otherwise specified on the face hereof, payments of principal of
(and premium, if any) and interest on this Note will be made in the applicable
Specified Currency, provided, however, that if this Note is denominated in a
-------- -------
Specified Currency other than United States dollars (a "Foreign Currency Note")
payments of principal of (and premium, if any) and interest hereon will [insert
if the Security is to be a Global Security - be made in United States dollars
unless the beneficial holder hereof gives notice to the Depositary that it
elects to receive payments in such Specified Currency. Upon receipt of such
notice, the Depositary will notify the Trustee of the portion of the payment to
be made by the Trustee which is to be made in the Specified Currency and the
applicable wire transfer instructions. In such event, the Trustee will pay the
beneficial holder directly.] [insert if the Security is to be a Certificated
Security - nevertheless be made in United States dollars if the Holder hereof
elects to receive all payments in respect hereof in United States dollars by
delivery of a written request to the Trustee on or prior to the applicable
Regular Record Date or at least 15 days prior to Maturity, as the case may be.
Such election may be in writing (mailed or hand delivered) or by cable, telex or
other form of facsimile transmission. A Holder of such a Note may elect to
receive payment in United States dollars for all principal (and premium, if any)
and interest payments and need not file a separate election for each payment.
Such election will remain in effect until revoked by written notice to the
Trustee, but written notice of such revocation must be received by the Trustee
on or prior to the applicable Regular Record Date or at least 15 days prior to
Maturity, as the case may be.]
Payment of the principal of (and premium, if any) and interest on this Note
due at Maturity in United States dollars will be made in immediately available
funds, provided that this Note is presented to the Trustee in time for the
--------
Trustee to make such payment in accordance with its normal procedures.
[Insert if the Security is to be a Certificated Security - Payment of the
principal of (and premium, if any) and interest on this Note due at Maturity in
United States dollars will be made
3
<PAGE>
at the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, The City of New York, in immediately available funds.
Payment of interest (other than interest due at Maturity) will be made by United
States dollar check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register. Notwithstanding the foregoing,
unless otherwise specified on the face hereof, a holder of U.S. $10,000,000 or
more in aggregate principal amount of Notes of like tenor and terms shall be
entitled to receive such payment of interest in United States dollars by wire
transfer of immediately available funds to such account with a bank located in
the United States as shall be designated by such person, but only if appropriate
payment instructions have been received in writing by the Trustee on or prior to
the Regular Record Date.] [Insert if the Security is to be a Global Security -
Payment of the principal of (and premium, if any) and interest (other than
interest payable at Maturity) on this Note in United States dollars will be made
by transfer of immediately available funds to the Depositary or its nominee.]
All payments of principal (and premium, if any) and interest in a Specified
Currency other than United States dollars will be made in the manner set forth
on the reverse hereof.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an Authenticating
Agent, by manual signature of an authorized signatory, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
4
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: PROVIDIAN FINANCIAL CORPORATION
By: ____________________________________
Executive Vice President
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series
designated therein referred to in the within-
mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By _________________________________
Authorized Officer
5
<PAGE>
[BACK OF SECURITY]
PROVIDIAN FINANCIAL CORPORATION
MEDIUM-TERM NOTE, SERIES A
(Fixed Rate)
(Senior)
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Notes"), issued and to be issued in one or more series under
an Indenture dated as of May 1, 1999, as supplemented from time to time (herein
called the "Indenture"), between the Company and The First National Bank of
Chicago, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Notes and of the terms upon which the Notes
are, and are to be, authenticated and delivered. This Note is one of the series
designated on the face hereof. The Notes of this series may be denominated in
different currencies, bear different dates, mature at different times and bear
interest at different rates. The Notes of this series may be issued from time to
time in an aggregate principal amount of up to $1,000,000,000 (including in such
amount the offering price of any such Notes sold at a discount), which amount
may be increased if duly authorized by the Company. All capitalized terms not
defined herein shall have the meanings given to them in the Indenture.
The United States dollar equivalent of Notes denominated in currencies
other than United States dollars (the "Market Exchange Rate") will be determined
by the Exchange Rate Agent on the basis of the noon buying rate for cable
transfers in The City of New York as determined by the Federal Reserve Bank of
New York for such currencies on the Business Day (as defined below) immediately
preceding the applicable issue dates.
Interest payments for this Note will include interest accrued from and
including the last date in respect of which interest has been paid or duly
provided for (or from and including the Original Issue Date if no interest has
been paid or provided for) to but excluding the Interest Payment Dates or the
Maturity Date. Interest payments for this Note shall be computed and paid on the
basis of a 360-day year of twelve 30-day months.
If the Interest Payment Date or the Maturity Date for any fixed rate note
falls on a day that is not a Business Day, the payment of principal, premium, if
any, and interest may be made on the next succeeding Business Day, and no
interest on such payment shall accrue for the period from and after such
Interest Payment Date or Maturity Date, as the case may be.
If the Company has the option with respect to this Note to reset the
interest rate, such option will be indicated on the face hereof, together with
(i) the date or dates on which such interest rate may be reset (each an
"Optional Reset Date") and (ii) the basis or formula, if any,
6
<PAGE>
for such resetting. The Company may exercise such option by notifying the
Trustee of such exercise at least 45 but not more than 60 days prior to an
Optional Reset Date. Not later than 40 days prior to such Optional Reset Date,
the Trustee will mail to the Holder hereof a notice (the "Reset Notice"), first
class, postage prepaid, setting forth (i) the election of the Company to reset
the interest rate, (ii) such new interest rate, and (iii) the provisions, if
any, for redemption during the period from such Optional Reset Date to the next
Optional Reset Date or, if there is no such next Optional Reset Date, to the
Stated Maturity of this Note (each such period a "Subsequent Interest Period"),
including the date or dates on which or the period or periods during which and
the price or prices at which such redemption may occur during such Subsequent
Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to an Optional
Reset Date, the Company may, at its option, revoke the interest rate provided
for in the Reset Notice and establish a higher interest rate for the Subsequent
Interest Period commencing on such Optional Reset Date by mailing or causing the
Trustee to mail notice of such higher interest rate first class, postage
prepaid, to the Holder hereof. Such notice shall be irrevocable. If the interest
rate is reset on an Optional Reset Date this Note will bear such higher interest
rate.
If the Company elects to reset the interest rate of this Note, the Holder
hereof will have the option to elect repayment of this Note by the Company on
any Optional Reset Date at a price equal to the principal amount hereof plus any
accrued interest to such Optional Reset Date. In order for this Note to be so
repaid on an Optional Reset Date, the Holder hereof must follow the procedures
set forth below for optional repayment, except that the period for delivery of
this Note or notification to the Trustee shall be at least 25 but not more than
35 days prior to such Optional Reset Date and except that a Holder who has
tendered this Note for repayment pursuant to a Reset Notice may, by written
notice to the Trustee, revoke any such tender for repayment until the close of
business on the tenth day prior to such Optional Reset Date.
If the Company has the option to extend the Stated Maturity of this Note
for one or more periods (each an "Extension Period") up to but not beyond a date
(the "Final Maturity Date") set forth on the face hereof, such option will be
indicated on the face hereof together with the basis or formula, if any, for
setting the interest rate applicable to any such Extension Period. The Company
may exercise such option with respect to this Note by notifying the Trustee of
such exercise at least 45 but not more than 60 days prior to the Stated Maturity
of this Note in effect prior to the exercise of such option (the "Original
Stated Maturity"). No later than 40 days prior to the Original Stated Maturity,
the Trustee will mail to the Holder hereof a notice (the "Extension Notice")
relating to such Extension Period, first class, postage prepaid, setting forth
(i) the election of the Company to extend the Stated Maturity of this Note, (ii)
the new Stated Maturity, (iii) the interest rate applicable to the Extension
Period, and (iv) the provisions, if any, for redemption during the Extension
Period, including the date or dates on which or the period or periods during
which and the price or prices at which such redemption may occur during the
Extension Period. Upon the mailing by the Trustee of an Extension Notice to the
Holder hereof, the Stated Maturity of this Note shall be extended automatically
as set forth in the Extension Notice, and, except as modified by the Extension
Notice and as described in the next paragraph, this Note will have the same
terms as prior to the mailing of such Extension Notice.
7
<PAGE>
Notwithstanding the foregoing, not later than 20 days prior to the Original
Stated Maturity for this Note, the Company may, at its option, revoke the
interest rate provided for in the Extension Notice and establish a higher
interest rate for the Extension Period by mailing or causing the Trustee to mail
notice of such higher interest rate first class, postage prepaid, to the Holder
hereof. Such notice shall be irrevocable. All Notes with respect to which the
Stated Maturity is extended will bear such higher interest rate for the
Extension Period.
If the Company elects to extend the Stated Maturity of this Note, the
Holder hereof will have the option to elect repayment of this Note by the
Company at the Original Stated Maturity at a price equal to the principal amount
hereof plus any accrued interest to such date. In order for this Note to be so
repaid on the Original Stated Maturity, the Holder hereof must follow the
procedures set forth below for optional repayment, except that the period for
delivery of this Note or notification to the Trustee shall be at least 25 but
not more than 35 days prior to the Original Stated Maturity and except that a
Holder who has tendered this Note for repayment pursuant to an Extension Notice
may, by written notice to the Trustee, revoke any such tender for repayment
until the close of business on the tenth day prior to the Original Stated
Maturity.
If the Company has provided for the conditional automatic extension of the
Stated Maturity of this Note for one or more periods (each a "Renewal Period")
up to but not beyond a date (the "Final Maturity Date") set forth on the face
hereof, such provision will be indicated on the face hereof together with the
basis or formula, if any, for setting the interest rate applicable to any such
Renewal Period. In such case this note is referred to herein, where applicable,
as a "Renewable Note."
The Renewable Note will mature on the initial Stated Maturity specified on
the face hereof, unless the Stated Maturity of all or any portion of the
principal amount thereof is extended in accordance with the procedures described
below. On the Interest Payment Dates specified on the face hereof (each such
Interest Payment Date, an "Election Date"), the Stated Maturity of the Renewable
Note will be extended to the Interest Payment Date occurring twelve months after
such Election Date, unless the Holder elects to terminate the automatic
extension of the Stated Maturity of the Renewable Note by delivering a notice to
such effect to the Trustee not less than nor more than the number of days
specified on the face hereof prior to such Election Date. Such option may be
exercised with respect to less than the entire principal amount of the Renewable
Note; provided that the principal amount for which such option is not exercised
--------
is at least $1,000 or any larger amount that is an integral multiple of $1,000.
Notwithstanding the foregoing, the Stated Maturity of the Renewable Note may not
be extended beyond the Final Maturity Date. If the Holder elects to terminate
the automatic extension of the Stated Maturity of any portion of the principal
amount of the Renewable Note and such election is not revoked as described
below, such portion will become due and payable on the Interest Payment Date
falling six months (unless another period is specified on the face hereof) after
the Election Date prior to which the holder made such election.
An election to terminate the automatic extension of the Stated Maturity of
the Renewable Note may be revoked by delivering a notice to such effect to the
Trustee on any day following the effective date of the election to terminate the
automatic extension of maturity of the Stated Maturity of the Renewable Note and
prior to the date 15 days before the date on which such
8
<PAGE>
portion would otherwise mature. Such a revocation may be made for less than the
entire principal amount of the Renewable Note for which the automatic extension
of Stated Maturity has been terminated; provided that the principal amount of
--------
the Renewable Note for which the automatic extension of Stated Maturity has been
terminated and for which such a revocation has not been made is at least $1,000
or any larger amount that is an integral multiple of $1,000. Notwithstanding the
foregoing, a revocation may not be made during the period from and including a
Record Date to but excluding the immediately succeeding Interest Payment Date.
An election to terminate the automatic extension of the Stated Maturity of
the Renewable Note, if not revoked as described above by the Holder making the
election or any subsequent Holder, will be binding upon such subsequent Holder.
The Renewable Note may be redeemed in whole or in part at the option of the
Company on or commencing with the date or dates specified on the face hereof.
The Renewable Note will be redeemed at the Redemption Price stated on the face
hereof, together with accrued and unpaid interest to the Redemption Date.
Unless one or more Redemption Dates is specified on the face hereof, this
Note shall not be redeemable at the option of the Company before the Maturity
Date specified on the face hereof. If one or more Redemption Dates (or ranges of
Redemption Dates) is so specified, this Note is subject to redemption on any
such date (or during any such range) at the option of the Company, upon notice
by first-class mail, mailed not less than 30 days nor more than 60 days prior to
the Redemption Date specified in such notice, at the applicable Redemption Price
specified on the face hereof (expressed as a percentage of the principal amount
of this Note), together in the case of any such redemption with accrued interest
to the Redemption Date, but interest installments whose Stated Maturity is prior
to the Redemption Date will be payable to the Holder of this Note, or one or
more predecessor Notes, of record at the close of business on the relevant
Regular or Special Record Dates referred to on the face hereof, all as provided
in the Indenture. The Company may elect to redeem less than the entire principal
amount hereof, provided that the principal amount, if any, of this Note that
--------
remains outstanding after such redemption is an Authorized Denomination as
defined herein.
Unless one or more Repayment Dates is specified on the face hereof, this
Note shall not be repayable at the option of the Holder on any date prior to the
Maturity Date specified on the face hereof. If one or more Repayment Dates (or
ranges of Repayment Dates) is so specified, this Note is subject to repayment on
any such date (or during any such range) at the option of the Holder at the
applicable Repayment Price specified on the face hereof (expressed as a
percentage of the principal amount of this Note), together in the case of any
such repayment with accrued interest to the Repayment Date, but interest
installments whose Stated Maturity is prior to the Repayment Date will be
payable to the Holder of this Note, or one or more predecessor Notes, of record
at the close of business on the relevant Regular or Special Record Dates
referred to on the face hereof, all as provided in the Indenture. For this Note
to be repaid at the option of the Holder, the Trustee must receive at the
principal office of its Corporate Trust Department in Chicago, Illinois, at
least 30 days but not more than 45 days prior to the Repayment Date on which
this Note is to be repaid, this Note and a statement that the option to elect
repayment is being exercised thereby. Exercise of the repayment option by the
Holder shall be irrevocable
9
<PAGE>
except to the extent permitted in connection with an interest rate reset or an
extension or renewal of maturity, each as described above. The repayment option
with respect to this Note may be exercised by the Holder for less than the
entire principal amount hereof, provided that the principal amount, if any, of
--------
this Note that remains outstanding after such repayment is an Authorized
Denomination as defined herein.
[Insert if the Security is to be a Certificated Security - In the event of
redemption or repayment of this Note in part only, a new Note or Notes of this
series and of like tenor and for a principal amount equal to the unredeemed or
unrepaid portion will be delivered to the registered Holder upon the
cancellation hereof.]
[Insert if the Security is to be a Global Security - In the event of
redemption or repayment of this Note in part only, the principal amount shall be
reduced.]
If this is a Foreign Currency Note to be paid in United States dollars, the
United States dollar amount to be received in respect hereof will be based upon
the exchange rate as determined by the Exchange Rate Agent based on the highest
firm bid quotation for United States dollars received by such Exchange Rate
Agent at approximately 11:00 a.m., New York City time, on the second Business
Day preceding the applicable payment date from three recognized foreign exchange
dealers in The City of New York selected by the Exchange Rate Agent and approved
by the Company (one of which may be the Exchange Rate Agent) for the purchase by
the quoting dealer, for settlement on such payment date, of the aggregate amount
of the Specified Currency payable on such payment date in respect of this Note.
If no such bid quotations are available, payments will be made in the Specified
Currency, unless such Specified Currency is unavailable due to the imposition of
exchange controls or to other circumstances beyond the Company's control, in
which case the Company will make payments in respect hereof in United States
dollars as provided below. All currency exchange costs will be borne by the
Holder hereof by deductions from such payments.
If a Holder is to receive payments in a Specified Currency other than
United States dollars as described on the face hereof, payments of principal of
(and premium, if any) and interest will be paid in immediately available funds
by wire transfer to an account maintained by the Holder with a bank designated
by the Holder (which in the case of Global Securities will be the Depositary or
its nominee) on or prior to the Regular Record Date or at least 15 days prior to
Maturity, as the case may be, provided that such bank has the appropriate
--------
facilities for such a payment in the Specified Currency, provided, however, that
-------- -------
with respect to payments of principal and premium, if any, and interest at
Maturity this Note is presented to the Trustee in time for the Trustee to make
such payment in accordance with its normal procedures, which shall require
presentation no later than two Business Days prior to Maturity in order to
ensure the availability of immediately available funds in the Specified Currency
at Maturity.
If payment on this Note is required to be made in a Specified Currency
other than United States dollars and such currency is unavailable in the good
faith judgment of the Company due to the imposition of exchange controls or to
other circumstances beyond the Company's control, or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions of or within the international banking
community, then all
10
<PAGE>
payments with respect to this Note shall be made in United States dollars until
such currency is again available or so used. The amount so payable on any date
in such Specified Currency shall be converted into United States dollars at a
rate determined by the Exchange Rate Agent on the basis of the Market Exchange
Rate on the second Business Day prior to such payment, or, if the Market
Exchange Rate is not then available, the most recently available Market Exchange
Rate or as otherwise determined in good faith by the Company if the foregoing is
impracticable.
If this is a Foreign Currency Note, in the event of an official
redenomination of such foreign currency the obligations of the Company with
respect to payments on this Note denominated in such currency shall, in all
cases, be deemed immediately following such redenomination to provide for the
payment of that amount of redenominated currency representing the amount of such
obligations immediately before such redenomination. No adjustment will be made
to any amount payable under this Note as a result of any change in the value of
a foreign currency relative to any other currency due solely to fluctuations in
exchange rates.
If an Event of Default with respect to Notes of this series shall occur and
be continuing, the principal of the Notes of this series may be declared due and
payable in the manner and with the effect provided in the Indenture. Unless
otherwise specified on the face hereof, if any Original Issue Discount Note (as
defined below) is redeemed by the Company or repaid at the option of the Holder,
each as described above, or if the principal of any Original Issue Discount Note
is declared to be due and payable immediately pursuant to this paragraph, the
amount of principal due and payable with respect to this Note shall be limited
to the sum of the aggregate principal amount of this Note multiplied by the
Issue Price (expressed as a percentage of the aggregate principal amount) plus
the original issue discount accrued from the date of issue to the date of
redemption, repayment or declaration, as applicable, which accrual shall be
calculated using the "interest method" (computed in accordance with generally
accepted accounting principles) in effect on the date of redemption, repayment
or declaration. Unless otherwise specified on the face hereof, an Original Issue
Discount Note is a Note which has a stated redemption price at maturity that
exceeds its Issue Price by at least 0.25% of its stated redemption price at
maturity, multiplied by the number of complete years from the Original Issue
Date to the Maturity Date for this Note.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than 66 2/3% in principal amount of the Notes at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Notes of each series at the time Outstanding on behalf of the Holders of
all Notes of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
11
<PAGE>
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 times, places and rate, and in the coin or
currency, herein prescribed. However, the Indenture limits the Holder's right to
enforce the Indenture and this Note.
As provided in the Indenture and subject to certain limitations set forth
therein and as may be set forth on the face hereof, the transfer of this Note is
registrable in the Security Register, upon surrender of this Note for
registration of transfer at the office or agency of the Company in any place
where the principal of (and premium, if any) and interest on this Note are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Notes of this series of like tenor, of Authorized Denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
[Insert if the Security is a Global Security - This Note is a Global Note
and shall be exchangeable for Notes registered in the names of Persons other
than the Depositary with respect to this Global Note or its nominee only if (A)
such Depositary notifies the Company that it is unwilling or unable to continue
as Depositary for this Global Note or at any time ceases to be a clearing agency
registered as such under the Securities Exchange Act of 1934, as amended, (B)
the Company in its discretion executes and delivers to the Trustee a Company
Order that this Global Note shall be exchangeable or (C) there shall have
occurred and be continuing an Event of Default with respect to the Notes. If
this Global Note is exchangeable pursuant to the preceding sentence, it shall be
exchangeable for Notes issuable in denominations of $1,000 and any integral
multiple of $1,000 in excess thereof, registered in such names as such
Depositary shall direct.]
The Notes of this series are issuable, in the case of Notes denominated in
United States dollars, in denominations of U.S. $1,000 and any integral multiple
of U.S. $1,000 in excess thereof and, in the case of Notes denominated in a
Specified Currency other than United States dollars, in the authorized
denominations set forth on the face hereof (in each case, an "Authorized
Denomination"). As provided in the Indenture and subject to certain limitations
set forth therein and as may be set forth on the face hereof, Notes of this
series are exchangeable for a like aggregate principal amount of Notes of this
series of like tenor of a different Authorized Denomination, as requested by the
Holder surrendering the same.
"Business Day" means (a) with respect to any Note, any day that is not a
Saturday or Sunday and that, in The City of New York, is not a day on which
banking institutions generally are authorized or obligated by law to close and
(b) if the Note is denominated in a Specified Currency other than United States
dollars, any day that is not a day on which banking institutions are authorized
or required by law to close in the Financial Center of the country issuing the
Specified Currency. As used in the preceding sentence, "Financial Center" means
the capital city of the country issuing the Specified Currency, except that with
respect to United States dollars, Australian dollars, Canadian dollars, Deutsche
marks, Dutch guilders, Euro, Italian lire, South African rand and Swiss francs,
the "Financial Center" shall be The City of New York,
12
<PAGE>
Sydney and Melbourne, Toronto, Frankfurt, Amsterdam, London and Luxembourg,
Milan, Johannesburg and Zurich, respectively.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Notes of this series may be issued in the form of one or more Global
Securities to The Depository Trust Company as depositary for the Global
Securities of this series (the "Depositary") or its nominee and registered in
the name of the Depositary or such nominee.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
__________________________
13
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT - _____________ Custodian __________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
________________________________
(State)
Additional abbreviations may also be used though not in the above list.
__________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
/_________________________/ ______________________________________
______________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
______________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ______
______________________________________________________________________________
attorney to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated: _____________ ________________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
the within instrument in every particular, without
alteration or enlargement or any change whatever.
14
<PAGE>
EXHIBIT 4.28
[FACE OF SECURITY]
REGISTERED REGISTERED
No. FLR
CUSIP
PROVIDIAN FINANCIAL CORPORATION
MEDIUM-TERM NOTE, SERIES A
(Floating Rate)
(Senior)
[Insert if the Security is to be a Global Security - This Note is a
Global Security 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
Global Security is exchangeable for 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 such limited circumstances.
Unless this Certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) 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 such other name as
requested by an authorized representative of The Depository Trust Company and
any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.]
THE FOLLOWING SUMMARY OF TERMS IS SUBJECT TO THE INFORMATION SET FORTH
ON THE REVERSE HEREOF:
PRINCIPAL AMOUNT:
<TABLE>
<S> <C> <C>
ORIGINAL ISSUE DATE: INITIAL INTEREST RATE: MATURITY DATE:
SPECIFIED CURRENCY: OPTION TO ELECT PAYMENT IN U.S. DOLLARS (only AUTHORIZED DENOMINATIONS (only applicable if
[_] U.S. dollars applicable if Specified Currency is other than Specified Currency is other than U.S. dollars):
[_] Other: U.S. dollars):
[_]Yes [_] No
EXCHANGE RATE AGENT (if other than THIS NOTE IS A:
The First National Bank of Chicago
[_] Global Note
[_] Certificated Note (only applicable if
Specified Currency is other than U.S. dollars)
</TABLE>
1
<PAGE>
<TABLE>
<S> <C> <C>
INDEX MATURITY: INTEREST RATE BASIS OR BASES: SPREAD (plus or minus):
LIBOR SOURCE (only applicable if LIBOR SPREAD MULTIPLIER: INTEREST RESET DATES:
Interest Rate Basis):
[_] LIBOR Reuters
[_] LIBOR Telerate
LIBOR CURRENCY (only applicable if INTEREST PAYMENT PERIOD: INTEREST RESET PERIOD:
LIBOR Interest Rate Basis):
CMT SOURCE (only applicable if CMT
Interest Rate Basis)
CMT Maturity Index:
CMT Telerate Page:
MAXIMUM INTEREST RATE: MINIMUM INTEREST RATE: INTEREST PAYMENT DATES:
SPREAD/SPREAD MULTIPLIER RESET OPTION: CONDITIONAL AUTOMATIC EXTENSION OF STATED STATED MATURITY EXTENSION OPTION:
MATURITY (RENEWAL)
[_] Yes
[_] No [_] Yes [_] No [_] Yes [_] No
OPTIONAL RESET DATES (only applicable if RENEWAL PERIOD(S) AND FINAL EXTENSION PERIOD(S) and FINAL
option to reset spread or spread MATURITY DATE (option to renew stated maturity). MATURITY DATE (only applicable if
multiplier): option to extend stated maturity):
BASIS FOR SPREAD/SPREAD MULTIPLIER RESET BASIS FOR INTEREST RATE DURING RENEWAL PERIOD BASIS FOR SPREAD/SPREAD MULTIPLIER
(only applicable if option to reset spread (only applicable if option to renew stated DURING EXTENSION PERIOD (only
or spread multiplier): maturity). applicable if option to extend
stated maturity):
INTEREST RESET DATES: CALCULATION DATES: TERMS OF AMORTIZING NOTES:
INTEREST DETERMINATION DATES: CALCULATION AGENT (if other than The First
National Bank of Chicago):
ORIGINAL ISSUE DISCOUNT NOTE: TOTAL AMOUNT OF a: ISSUE PRICE (expressed as a
[_] Yes [_] No percentage of aggregate principal
amount):
REDEMPTION DATE(S) (including any applicable REDEMPTION PRICE(S): DEFAULT RATE:
regular or special record dates):
REPAYMENT DATE(S) (including any applicable REPAYMENT PRICE(S):
regular or special record dates):
</TABLE>
2
<PAGE>
OTHER TERMS:
PROVIDIAN FINANCIAL CORPORATION, a corporation duly organized and
existing under the laws of Delaware (herein called the "Company," which term
includes any successor Person under the Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to [Insert if the Security
is to be a Certificated Security - ______________] [Insert if the Security is to
be a Global Security - Cede & Co., as nominee for The Depository Trust Company],
or registered assigns, the Principal Amount stated above on the Maturity Date
shown above, and to pay interest thereon from and including the Original Issue
Date shown above or, in the case of a Note issued upon registration of transfer
or exchange, from and including the most recent Interest Payment Date to which
interest has been paid or duly provided for, on the Interest Payment Dates set
forth above and on the Maturity Date, commencing on the first such Interest
Payment Date next succeeding the Original Issue Date, provided that if the
--------
Original Issue Date is after a Regular Record Date and before the Interest
Payment Date immediately following such Regular Record Date, interest payments
will commence on the second Interest Payment Date following the Original Issue
Date, at the rate per annum determined in accordance with the provisions on the
reverse hereof, depending on the Interest Rate Basis or Bases specified above,
until the principal hereof is paid or made available for payment and (to the
extent that the payment of such interest shall be legally enforceable) at the
Default Rate per annum specified above on any overdue principal and premium, if
any, and on any overdue installment of interest. If no Default Rate is
specified above, the Default Rate shall be the Interest Rate on this Note
specified above. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the fifteenth calendar day (whether or not such date is
a Business Day) next preceding each Interest Payment Date; provided, however,
-------- --------
that interest payable at the Maturity Date will be payable to the Person to whom
principal shall be payable. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either 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 for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Notes of this series not
less than 10 days prior to such Special Record Date, or be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes of this series may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture.
Unless otherwise specified on the face hereof, payments of principal
of (and premium, if any) and interest on this Note will be made in the
applicable Specified Currency, provided, however, that if this Note is
-------- --------
denominated in a Specified Currency other than United States dollars (a "Foreign
Currency Note") payments of principal of (and premium, if any) and interest
hereon will [insert if the Security is to be a Global Security - be made in
United States dollars unless the beneficial holder hereof gives notice to the
Depositary that it elects to receive payments in such Specified Currency. Upon
receipt of such notice, the Depositary will notify
3
<PAGE>
the Trustee of the portion of the payment to be made by the Trustee which is to
be made in the Specified Currency and the applicable wire transfer instructions.
In such event, the Trustee will pay the beneficial holder directly.] [insert if
the Security is to be a Certificated Security - nevertheless be made in United
States dollars if the Holder hereof elects to receive all payments in respect
hereof in United States dollars by delivery of a written request to the Trustee
on or prior to the applicable Regular Record Date or at least 15 days prior to
Maturity, as the case may be. Such election may be in writing (mailed or hand
delivered) or by cable, telex or other form of facsimile transmission. A Holder
of such a Note may elect to receive payment in United States dollars for all
principal (and premium, if any) and interest payments and need not file a
separate election for each payment. Such election will remain in effect until
revoked by written notice to the Trustee, but written notice of such revocation
must be received by the Trustee on or prior to the applicable Regular Record
Date or at least 15 days prior to Maturity, as the case may be.]
Payment of the principal of (and premium, if any) and interest on this
Note due at Maturity in United States dollars will be made in immediately
available funds, provided that this Note is presented to the Trustee in time for
--------
the Trustee to make such payment in accordance with its normal procedures.
[Insert if the Security is to be a Certificated Security - Payment of
the principal of (and premium, if any) and interest on this Note due at Maturity
in United States dollars will be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
in immediately available funds. Payment of interest (other than interest due at
Maturity) will be made by United States dollar check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register. Notwithstanding the foregoing, unless otherwise specified on the face
hereof, a holder of U.S. $10,000,000 or more in aggregate principal amount of
Notes of like tenor and terms shall be entitled to receive such payment of
interest in United States dollars by wire transfer of immediately available
funds to such account with a bank located in the United States as shall be
designated by such Person, but only if appropriate payment instructions have
been received in writing by the Trustee on or prior to the Regular Record Date.]
[Insert if the Security is to be a Global Security - Payment of the principal of
(and premium, if any) and interest (other than interest payable at Maturity) on
this Note in United States dollars will be made by transfer of immediately
available funds to the Depositary or its nominee.]
All payments of principal (and premium, if any) and interest in a
Specified Currency other than United States dollars will be made in the manner
set forth on the reverse hereof.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual
4
<PAGE>
signature of an authorized signatory, this Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
5
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: PROVIDIAN FINANCIAL
CORPORATION
By:_______________________________________
Executive Vice President
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated
therein referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By ________________________________
Authorized Officer
6
<PAGE>
[BACK OF SECURITY]
PROVIDIAN FINANCIAL CORPORATION
MEDIUM-TERM NOTE, SERIES A
(Floating Rate)
(Senior)
This Note is one of a duly authorized issue of securities of the
Company (herein called the "Notes"), issued and to be issued in one or more
series under an Indenture dated as of May [ ], 1999, as supplemented from time
to time (herein called the "Indenture"), between the Company and The First
National Bank of Chicago, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered. This Note is
one of the series designated on the face hereof. The Notes of this series may
be denominated in different currencies, bear different dates, mature at
different times and bear interest at different rates. The Notes of this series
may be issued from time to time in an aggregate principal amount of up to
$1,000,000,000 (including in such amount the offering price of any such Notes
sold at a discount), which amount may be increased if duly authorized by the
Company. All capitalized terms not defined herein shall have the meanings given
to them in the Indenture.
The United States dollar equivalent of Notes denominated in currencies
other than United States dollars (the "Market Exchange Rate") will be determined
by the Exchange Rate Agent on the basis of the noon buying rate for cable
transfers in The City of New York as determined by the Federal Reserve Bank of
New York for such currencies on the Business Day (as defined below) immediately
preceding the applicable issue dates.
The rate of interest on this Note will be reset daily, weekly,
monthly, quarterly, semi-annually or annually (each an "Interest Reset Date"),
as specified on the face hereof. Unless otherwise specified on the face hereof,
the Interest Reset Date will be, if this Note resets daily, each Business Day;
if this Note resets weekly (unless the Interest Rate Basis on this Note is the
Treasury Rate), the Wednesday of each week; if this Note resets weekly and the
Interest Rate Basis on this Note is the Treasury Rate, the Tuesday of each week;
if this Note resets monthly, the third Wednesday of each month; if this Note
resets quarterly, the third Wednesday of March, June, September and December; if
this Note resets semi-annually, the third Wednesday of two months of each year,
as specified on the face hereof; and if this Note resets annually, the third
Wednesday of one month of each year, as specified on the face hereof; provided,
--------
however, that the interest rate in effect from the date of issue to the first
- -------
Interest Reset Date will be the Initial Interest Rate specified on the face
hereof. If any Interest Reset Date would otherwise be a day that is not a
Business Day, the Interest Reset Date shall be postponed to the next day that is
a Business Day except that if (i) the rate of interest on this Note will be
determined in accordance with the provisions of the heading "Determination of
LIBOR" below and (ii) such Business Day is in the next succeeding calendar
month, such Interest Reset Date shall be the immediately preceding Business Day.
Subject to applicable provisions of law and except as specified herein or on the
face hereof, on each Interest Reset Date, the rate of interest
7
<PAGE>
on this Note shall be the rate determined in accordance with the provisions of
the applicable heading below.
Determination of CD Rate. Unless otherwise indicated on the face
------------------------
hereof, if the Interest Rate Basis on this Note is the CD Rate, the interest
rate with respect to this Note shall equal (i) the rate on such date for
negotiable U.S. dollar certificates of deposit having the Index Maturity
specified on the face hereof as published in H.15(519) (as defined below) under
the heading "CDs (Secondary Market)," or (ii) if not so published by 3:00 p.m.,
New York City time, on the Calculation Date pertaining to such CD Interest
Determination Date, the rate on such CD Interest Determination Date set forth in
H.15 Daily Update (as defined below) for the day in respect of certificates of
deposit having the Index Maturity specified on the face hereof under the caption
"CDs (Secondary Market)" or another recognized electronic source used for the
purpose of displaying the applicable rate, or (iii) if such rate is not
published either in H.15(519) or H.15 Daily Update or in another recognized
electronic source by 3:00 p.m., New York City time, on the Calculation Date, the
arithmetic mean (rounded, if necessary, to the nearest one-hundred-thousandth of
a percentage point, with five-millionths of a percentage point rounded upwards)
of the secondary market offered rates as of 10:00 a.m., New York City time, on
such CD Interest Determination Date of three leading nonbank dealers in
negotiable U.S. dollar certificates of deposit in The City of New York selected
by the Calculation Agent for negotiable certificates of deposit of major United
States money center banks (in the market for negotiable certificates of deposit)
with a remaining maturity closest to the Index Maturity specified on the face
hereof, adjusted by the addition or subtraction of the Spread, if any, specified
on the face hereof, and/or by multiplication by the Spread Multiplier, if any,
specified on the face hereof; provided, however, that if the dealers selected as
-------- --------
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the CD Rate will be the CD Rate then in effect on such CD Interest
Determination Date.
"H.15(519)" means the weekly statistical release designated as such,
or any successor publication, published by the Board of Governors of the Federal
Reserve System ("Federal Reserve Board").
"H.15 Daily Update" means the daily update of H.15(519), available
through the world-wide-web site of the Federal Reserve Board at
http://www.bog.frb.fed.us/releases/h15/update, or any successor site or
- ---------------------------------------------
publication.
Determination of CMT Rate. Unless otherwise indicated on the face
-------------------------
hereof, if the Interest Rate Basis on this Note is the CMT Rate, the interest
rate with respect to this Note shall equal the rate displayed on the Designated
CMT Telerate Page (as described below) under the caption ". . . Treasury
Constant Maturities . . . Federal Reserve Board Release H.15 . . . Mondays
Approximately 3:45 p.m.", under the column for the designated CMT Maturity Index
(as described below) for (i) if the Designated CMT Telerate Page is 7051, the
rate on such CMT Interest Determination Date, and (ii) if the Designated CMT
Telerate Page is 7052, the weekly or monthly average specified on the face
hereof for the week or the month, as applicable, ended immediately preceding the
week or the month, as applicable, in which the related CMT Interest
Determination Date occurs.
8
<PAGE>
"Designated CMT Telerate page" means the display on the Bridge
Telerate, Inc. (or any successor service) on the page designated on the face
hereof (or any other page as may replace such page on that service for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519)),
for the purpose of displaying Treasury Constant Maturities as reported in
H.15(519). If no such page is specified on the face hereof, the designated CMT
Telerate page will be 7052.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified in the applicable pricing supplement with respect to which the CMT
Rate will be calculated. If no such maturity is specified in the applicable
pricing supplement, the Designated CMT Maturity Index shall be 2 years.
The following procedures will be used if the CMT Rate cannot be
determined as described above:
(i) If such rate is no longer displayed on the relevant page, or
is not displayed by 3:00 p.m., New York City time, the Calculation Date
pertaining to such CMT Interest Determination Date, the CMT Rate will be such
Treasury Constant Maturity rate for the Designated CMT Maturity Index as
published in the relevant H.15(519).
(ii) If that rate is no longer published, or is not published by
3:00 p.m., New York City time, on the Calculation Date pertaining to such CMT
Interest Determination Date, the CMT Rate will be such Treasury Constant
Maturity rate for the designated CMT Maturity Index (or other United States
Treasury rate for the Designated CMT Maturity Index) for the CMT Interest
Determination Date with respect to such Interest Reset Date as may then be
published by either the Federal Reserve Board or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519).
(iii) If such information is not provided by 3:00 p.m., New York
City time, on the Calculation Date pertaining to such CMT Interest Determination
Date, the Calculation Agent will determine the CMT Rate to be a yield to
maturity, based on the arithmetic mean of the secondary market closing offer
side prices as of approximately 3:30 p.m., New York City time on the CMT
Interest Determination Date reported, according to their written records, by
three leading primary United States government securities dealers (each, a
reference dealer) in The City of New York selected by the Calculation Agent (as
described in the following sentence) for the most recently issued direct
noncallable fixed rate obligations of the United States (Treasury notes) with an
original maturity of approximately the Designated CMT Maturity Index and a
remaining term to maturity of not less than such Designated CMT Maturity Index
minus one year.
(iv) The Calculation Agent will select five reference dealers and
will eliminate the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of quality, one of the
lowest). If three or four (and not five) of such reference dealers are quoting
as described above, the CMT Rate will be based on the arithmetic mean of the
offer prices obtained and neither the highest nor the lowest of such quotes will
be eliminated.
9
<PAGE>
(v) If the calculation agent cannot obtain three such Treasury
notes quotations, the Calculation Agent will determine the CMT Rate to be a
yield to maturity based on the arithmetic mean of the secondary market offer
side prices as of approximately 3:30 p.m., New York City time, on the CMT
Interest Determination Date of three reference dealers in The City of New York
(selected using the same method described above), for Treasury notes with an
original maturity of the number of years that is the next highest to the
Designated CMT Maturity Index and a remaining term to maturity closest to the
Designated CMT Maturity Index and in an amount of at least $100,000,000.
(vi) If fewer than three reference dealers selected by the
Calculation Agent are quoting as described above, the CMT Rate will be the CMT
Rate in effect on such CMT Interest Determination Date.
(vii) If two Treasury notes with an original maturity as described
in clause (v) above have remaining terms to maturity equally close to the
Designated CMT Maturity Index, the quotes for the Treasury note with the shorter
remaining term to maturity will be used.
In each of the above cases the interest rate with respect to the Note
will be adjusted by the addition or subtraction of the spread, if any, specified
on the face hereof, and/or by multiplication by the Spread Multiplier, if any,
specified on the face hereof.
Determination of Commercial Paper Rate. Unless otherwise specified on
--------------------------------------
the face hereof, if the Interest Rate Basis on this Note is the Commercial Paper
Rate, the interest rate with respect to this Note shall equal (i) the Money
Market Yield (calculated as described below) on such Commercial Paper Interest
Determination Date (as defined below) of the rate for commercial paper having
the Index Maturity specified on the face hereof, as such rate is published in
H.15(519) under the heading "Commercial Paper--Nonfinancial," or (ii) if such
rate is not published prior to 3:00 p.m., New York City time, on the Calculation
Date pertaining to such Commercial Paper Interest Determination Date, the Money
Market Yield of the rate on such Commercial Paper Interest Determination Date
for commercial paper having the Index Maturity specified on the face hereof as
published in H.15 Daily Update under the heading "Commercial Paper --
Nonfinancial" or another recognized electronic source used for the purpose of
displaying the applicable rate, or (iii) if such rate is not published either in
H.15(519) or H.15 Daily Update or in another recognized electronic source by
3:00 p.m., New York City time, on such Calculation Date, the Money Market Yield
of the arithmetic mean (rounded, if necessary, to the nearest one-hundred-
thousandth of a percentage point, with five-millionths of a percentage point
rounded upwards) of the offered rates, as of 11:00 a.m., New York City time, on
such Commercial Paper Interest Determination Date of three leading dealers of
U.S. dollar commercial paper in The City of New York selected by the Calculation
Agent for commercial paper of the Index Maturity specified on the face hereof
placed for an industrial issuer whose bond rating is "Aa," or the equivalent,
from a nationally recognized statistical rating organization, adjusted in each
of the above cases by the addition or subtraction of the Spread, if any,
specified on the face hereof, and/or by multiplication by the Spread Multiplier,
if any, specified on the face hereof; provided, however, that if the dealers
-------- --------
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, the Commercial Paper Rate will be the Commercial Paper Rate then
in effect on such Commercial Paper Interest Determination Date.
10
<PAGE>
"Money Market Yield" shall be the yield (expressed as a percentage
rounded, if necessary, to the nearest one-hundred-thousandth of a percentage
point, with five-millionths of a percentage point rounded upwards) calculated in
accordance with the following formula:
D x 360
Money Market Yield = -------------------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper, quoted
on a bank discount basis and expressed as a decimal and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
Determination of Eleventh District Cost of Funds Rate. Unless
-----------------------------------------------------
otherwise indicated on the face hereof, if the Interest Rate Basis on this Note
is the Eleventh District Cost of Funds Rate, the interest rate with respect to
this Note shall equal the rate equal to the monthly weighted average cost of
funds for the calendar month immediately preceding the month in which such
Eleventh District Cost of Funds Interest Determination Date falls, as such rate
is displayed on Bridge Telerate, Inc., or any successor service, on page 7058,
or any other page as may replace such page on such service, under the heading
"Eleventh District" as of 11:00 a.m., San Francisco time, on such Eleventh
District Cost of Funds Interest Determination Date.
The following procedures will be followed if the Eleventh District
Cost of Funds Rate cannot be determined as described above:
(i) If the above rate is not published by 11:00 a.m., San Francisco
time, on the Calculation Date pertaining to the Eleventh District Cost of Funds
Interest Determination Date, the Eleventh District Cost of Funds Rate will be
the monthly weighted average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District that was most recently announced (the
"Index") by the Federal Home Loan Bank of San Francisco as such cost of funds
for the calendar month immediately preceding such Eleventh District Cost of
Funds Interest Determination Date.
(ii) If the Federal Home Loan Bank of San Francisco fails to announce
the Index on or prior to such Eleventh District Cost of Funds Interest
Determination Date for the calendar month immediately preceding such Eleventh
District Cost of Funds Interest Determination Date, the Eleventh District Cost
of Funds Rate will be the Eleventh District Cost of Funds Rate then in effect on
the Eleventh District Cost of Funds Interest Determination Date.
In each of the above cases the interest rate with respect to the Note
will be adjusted by the addition or subtraction of the spread, if any, specified
on the face hereof, and/or by multiplication by the Spread Multiplier, if any,
specified on the face hereof.
Determination of Federal Funds Rate. Unless otherwise specified on
-----------------------------------
the face hereof, if the Interest Rate Basis on this Note is the Federal Funds
Rate, the interest rate with respect to this Note shall equal (i) the rate on
such date for U.S. dollar federal funds as published in H.15(519) under the
heading "Federal Funds (Effective)," as such rate is displayed on Bridge
Telerate, Inc. (or any successor service) on page 120 (or any other page as may
replace such
11
<PAGE>
page on such service) or (ii) if not so published by 3:00 p.m., New York City
time, on the Calculation Date pertaining to such Federal Funds Interest
Determination Date, the rate on such Federal Funds Interest Determination Date
for U.S. dollar federal funds as published in H.15 Daily Update under the
heading "Federal Funds/(Effective)" or another recognized electronic source used
for the purpose of displaying the applicable rate, or (iii) if such rate is not
published either in H.15(519) or in H.15 Daily Update or another recognized
electronic source by 3:00 p.m., New York City time, on such Calculation Date,
the arithmetic mean (rounded, if necessary, to the nearest one-hundred-
thousandth of a percentage point, with five-millionths of a percentage point
rounded upwards) of the rates for the last transaction in overnight U.S. dollar
federal funds arranged by each of three leading brokers of U.S. dollar federal
funds transactions in The City of New York selected by the Calculation Agent
prior to 9:00 a.m., New York City time, on such Federal Funds Interest
Determination Date, in each of the above cases adjusted by the addition or
subtraction of the Spread, if any, specified on the face hereof, and/or by
multiplication by the Spread Multiplier, if any, specified on the face hereof;
provided, however, that if the brokers selected as aforesaid by the Calculation
- -------- --------
Agent are not quoting as mentioned in this sentence, the Federal Funds Rate will
be the Federal Funds Rate then in effect on such Federal Funds Interest
Determination Date.
Determination of LIBOR. Unless otherwise specified on the face
----------------------
hereof, if the Interest Rate Basis on this Note is LIBOR, the interest rate
payable with respect to this Note shall be determined in accordance with the
following provisions:
(i) With respect to any LIBOR Interest Determination Date (as
defined below), LIBOR will be either: (a) if "LIBOR Reuters" is specified on the
face hereof, the arithmetic mean (rounded, if necessary, to the nearest one-
hundred-thousandth of a percentage point, with five-millionths of a percentage
point rounded upwards) of the offered rates (unless the specified Designated
LIBOR Page (as defined below) by its terms provides only for a single rate, in
which case such single rate shall be used) for deposits in the LIBOR Currency
(as defined below) having the Index Maturity specified on the face hereof
commencing on the second London Business Day immediately following such LIBOR
Interest Determination Date, that appear on the Designated LIBOR Page as of
11:00 a.m., London time, on such LIBOR Interest Determination Date, if at least
two such offered rates appear (unless, as aforesaid, only a single rate is
required) on such Designated LIBOR Page, or (b) if "LIBOR Telerate" is specified
on the face hereof, the rate for deposits in the LIBOR Currency having the Index
Maturity specified on the face hereof, commencing on the second London Business
Day immediately following such LIBOR Interest Determination Date, that appears
on such Designated LIBOR Page as of 11:00 a.m., London time, on such LIBOR
Interest Determination Date, adjusted in each case by the addition or
subtraction of the Spread, if any, specified on the face hereof, and/or by
multiplication by the Spread Multiplier, if any, specified on the face hereof.
"LIBOR Currency" means the currency specified on the face hereof as the currency
for which LIBOR shall be calculated. If no such currency is specified on the
face hereof, the LIBOR Currency shall be U.S. dollars. "Designated LIBOR Page"
means either if "LIBOR Reuters" is specified on the face hereof, the display on
the Reuter Monitor Money Rates Service, or any successor service on the page
specified on the face hereof (or any other page as may replace such page on such
service), for the purpose of displaying the London interbank rates of major
banks for the applicable LIBOR Currency, or if "LIBOR Telerate" is specified on
the face hereof or neither LIBOR Reuters nor LIBOR Telerate is specified on the
face hereof as the method for calculating
12
<PAGE>
LIBOR, the display on Bridge Telerate, Inc., or any successor service on the
page specified on the face hereof (or any other page as may replace such page on
such service), for the purpose of displaying the London interbank rates of major
banks for the applicable LIBOR Currency. If neither LIBOR Reuters nor LIBOR
Telerate is specified on the face hereof, LIBOR for the applicable LIBOR
Currency will be determined as if LIBOR Telerate had been specified. In the case
where (a) above applies, if fewer than two offered rates appear on the
Designated LIBOR Page, or in the case where (b) above applies, if no rate
appears on the Designated LIBOR Page, as applicable, LIBOR in respect of such
LIBOR Interest Determination Date will be determined as if the parties had
specified the rate described in (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which
fewer than two offered rates appear, unless the specified Designated LIBOR Page
by its terms provides only for a single rate, in which case such single rate
shall be used, (if "LIBOR Reuters" is specified on the face hereof) or no rate
appears (if "LIBOR Telerate" is specified on the face hereof), the Calculation
Agent will determine LIBOR in respect of such LIBOR Interest Determination Date
as follows: the Calculation Agent will request the principal London offices of
each of four major reference banks in the London interbank market, as selected
by the Calculation Agent, to provide the Calculation Agent with its offered
quotation for deposits in the LIBOR Currency for the period of the Index
Maturity specified on the face hereof, commencing on the second London Business
Day immediately following such LIBOR Interest Determination Date, to prime banks
in the London interbank market at approximately 11:00 a.m., London time, on such
LIBOR Interest Determination Date and in a principal amount that is
representative of a single transaction in such LIBOR Currency in such market at
such time, adjusted by the addition or subtraction of the Spread, if any,
specified on the face hereof, and/or by multiplication by the Spread Multiplier,
if any, specified on the face hereof and (a) if at least two such quotations are
provided, LIBOR determined on such LIBOR Interest Determination Date will be the
arithmetic mean (rounded, if necessary, to the nearest one-hundred-thousandth of
a percentage point, with five-millionths of a percentage point rounded upwards)
of such quotations, or (b) if fewer than two quotations are provided, LIBOR
determined on such LIBOR Interest Determination Date will be the arithmetic mean
(rounded, if necessary, to the nearest one-hundred-thousandth of a percentage
point, with five-millionths of a percentage point rounded upwards) of the rates
quoted at approximately 11:00 a.m. (or such other time specified on the face
hereof), in the applicable Financial Center (as defined below) for the country
of the LIBOR Currency on such LIBOR Interest Determination Date, by three major
banks in such Financial Center selected by the Calculation Agent for loans in
the LIBOR Currency to leading European banks, having the Index Maturity
specified on the face hereof and in a principal amount that is representative
for a single transaction in such LIBOR Currency in such market at such time, in
either case adjusted by the addition or subtraction of the Spread, if any,
specified on the face hereof, and/or by multiplication by the Spread Multiplier,
if any, specified on the face hereof; provided, however, that if the banks
-------- --------
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, LIBOR will be the LIBOR then in effect on such LIBOR Interest
Determination Date.
Determination of Prime Rate. Unless otherwise specified on the face
---------------------------
hereof, if the Interest Rate Basis on this Note is the Prime Rate, the interest
rate with respect to this Note shall equal (i) the rate set forth for the
relevant Prime Rate Interest Determination Date (as defined below) as published
in H.15(519) under the heading "Bank Prime Loan," or (ii) if such
13
<PAGE>
rate is not published prior to 3:00 p.m., New York City time, on the Calculation
Date pertaining to such Prime Rate Interest Determination Date, the rate on such
Prime Rate Interest Determination Date as published in H.15 Daily Update
opposite the caption "Bank Prime Loan" or another recognized electronic source
used for the purpose of displaying the applicable rate, or (iii) if the rate is
not published prior to 3:00 p.m., New York City time, on such Calculation Date,
either in H.15(519) or H.15 Daily Update or in another recognized electronic
source, the arithmetic mean (rounded, if necessary, to the nearest one-hundred-
thousandth of a percentage point, with five-millionths of a percentage point
rounded upwards) of the rates of interest publicly announced by each bank that
appears on the Reuters Screen US PRIME 1 Page (as defined below) as such bank's
prime rate or base lending rate as of 11:00 a.m., New York City time, on such
Prime Rate Interest Determination Date, or (iv) if fewer than four such
quotations appear on the Reuters Screen US PRIME 1 Page for the Prime Rate
Interest Determination Date, the arithmetic mean (rounded, if necessary, to the
nearest one-hundred-thousandth of a percentage point, with five-millionths of a
percentage point rounded upwards) of the prime rates or base lending rates
quoted on the basis of the actual number of days in the year divided by a 360-
day year as of the close of business on such Prime Rate Interest Determination
Date by at least three major banks in The City of New York selected by the
Calculation Agent; provided, however, that if the banks or trust companies
-------- --------
selected as aforesaid are not quoting as mentioned in this sentence, the Prime
Rate will be the Prime Rate then in effect on such Prime Rate Interest
Determination Date. "Reuters Screen US PRIME 1 Page" means the display on the
Reuter Monitor Money Rates Service (or any successor service) on the "US PRIME
1" page (or such other page as may replace the US PRIME 1 page on that service)
for the purpose of displaying prime rates or base lending rates of major United
States banks.
Determination of Treasury Rate. Unless otherwise specified on the
------------------------------
face hereof, if the Interest Rate Basis on this Note is the Treasury Rate, the
interest rate payable with respect to this Note shall equal the rate for the
auction held on the related Treasury Interest Determination Date of direct
obligations of the United States ("Treasury bills") having the Index Maturity
specified on the face hereof as such rate appears on either page 56 or page 57
on the display on Bridge Telerate, Inc. (or such other page or pages as may
replace page 56 or page 57 on that service or such other successor service)
under the heading "INVESTMENT RATE" or, if not so published by 3:00 p.m., New
York City time, on the Calculation Date pertaining to such Treasury Interest
Determination Date, the Treasury Rate will be the Bond Equivalent Yield (as
defined below), rounded, if necessary, to the nearest one-hundred-thousandth of
a percentage point, with five-millionths of a percentage point rounded upwards,
on the basis of a year of 365 or 366 days as applicable, and applied on a daily
basis, of the rate for such Treasury bills as published in H.15 Daily Update, or
such other recognized electronic source used for the purpose of displaying such
rate, under the caption "U.S. Government Securities/Treasury Bills/Auction High"
or, if not so published by 3:00 p.m., New York City time, on the related
Calculation Date, the Bond Equivalent Yield of the auction rate of such Treasury
bills as announced by the United States Department of the Treasury, in either
case, adjusted by the addition or subtraction of the Spread, if any, specified
on the face hereof, or, by multiplication by the Spread Multiplier, if any,
specified on the face hereof. In the event that the results of the auction of
Treasury bills having the Index Maturity shown on the face hereof are not
published or reported as provided above by 3:00 p.m., New York City time, on
such Calculation Date or if no such auction is held on such Treasury Interest
Determination Date, then the Treasury Rate will be the rate (expressed as a Bond
Equivalent Yield, rounded, if necessary, to the nearest one-hundred-thousandth
of a
14
<PAGE>
percentage point, with five-millionths of a percentage point rounded upwards on
the basis of a year of 365 or 366 days as applicable, and applied on a daily
basis) on such Treasury Interest Determination Date of Treasury bills having the
Index Maturity specified on the face hereof as published in H.15(519) under the
caption "U.S. Government Securities/Treasury Bills/Secondary Market" or, if not
yet published by 3:00 p.m., New York City time, on such Calculation Date, the
rate (expressed as a Bond Equivalent Yield, rounded, if necessary, to the
nearest one-hundred-thousandth of a percentage point, with five-millionths of a
percentage point rounded upwards, on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) on such Treasury Interest
Determination Date of Treasury bills having the Index Maturity specified on the
face hereof as published in H.15 Daily Update under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market" or another recognized electronic
source used for the purpose of displaying the applicable rate. If such rate is
not yet published either in H.15(519) or H.15 Daily Update or in another
recognized electronic source, the Calculation Agent will determine the Treasury
Rate to be a yield to maturity (expressed as a Bond Equivalent Yield, rounded,
if necessary, to the nearest one-hundred-thousandth of a percentage point, with
five-millionths of a percentage point rounded upwards, on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) of the arithmetic
mean of the secondary market bid rates, as of approximately 3:30 p.m., New York
City time, on such Treasury Interest Determination Date, of three leading
primary United States government securities dealers selected by the Calculation
Agent, for the issue of Treasury bills with a remaining maturity closest to the
Index Maturity specified on the face hereof, adjusted by the addition or
subtraction of the Spread, if any, specified on the face hereof, and/or by
multiplication by the Spread Multiplier, if any, specified on the face hereof;
provided, however, that if the dealers selected as aforesaid by the Calculation
- -------- --------
Agent are not quoting as mentioned in this sentence, the Treasury Rate will be
the Treasury Rate then in effect on such Treasury Interest Determination Date.
"Bond Equivalent Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
D x N
Bond Equivalent Yield = -------------------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for Treasury Bills
quoted on a bank discount basis, "N" refers to 365 or 366, as the case may be,
and "M" refers to the actual number of days in the interest period for which
interest is being calculated.
Indexed Notes. This Note may be issued with the principal amount
-------------
payable at Maturity and/or with interest payable hereon on an Interest Payment
Date to be determined by reference to the price or prices of specified
securities or commodities, securities or commodities exchange indices, the
relationship between two or more specified currencies or other factors (each an
"Indexed Note"), as shall be indicated above under "Other Terms." Specific
information pertaining to the method for determining the principal amount
payable at Maturity or the amount of interest to be paid on an Interest Payment
Date with reference to the specified index shall be included above under "Other
Terms."
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on
15
<PAGE>
the face hereof. The Calculation Agent shall calculate the interest rate on this
Note in accordance with the foregoing on or before each Calculation Date. The
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law as the same may be modified by United States law of
general applicability.
The Calculation Agent will, upon the request of the Holder of this
Note, provide to such Holder the interest rate hereon then in effect and, if
different, the interest rate which will become effective as a result of a
determination made on the most recent Interest Determination Date.
Unless otherwise indicated on the face hereof and except as provided
below, interest will be payable, in the case of Notes which reset daily, weekly
or monthly, on the third Wednesday of each month or on the third Wednesday of
March, June, September and December of each year, as indicated on the face
hereof; in the case of Notes which reset quarterly, on the third Wednesday of
March, June, September and December of each year; in the case of Notes which
reset semi-annually, on the third Wednesday of the two months of each year
specified on the face hereof; and in the case of Notes which reset annually, on
the third Wednesday of the month specified on the face hereof (each an "Interest
Payment Date"), and in each case, at Maturity. If any Interest Payment Date
specified on the face hereof would otherwise be a day that is not a Business
Day, the Interest Payment Date shall be postponed to the next day that is a
Business Day, except that if (i) the rate of interest on this Note shall be
determined in accordance with the provisions of the heading "Determination of
LIBOR" above, and (ii) such Business Day is in the next succeeding calendar
month, such Interest Payment Date shall be the immediately preceding Business
Day.
"Business Day" means (a) with respect to any Note, any day that is not
a Saturday or Sunday and that, in The City of New York, is not a day on which
banking institutions generally are authorized or obligated by law to close, (b)
if the Note is denominated in a Specified Currency other than United States
dollars, any day that is not a day on which banking institutions are authorized
or required by law to close in the Financial Center of the country issuing the
Specified Currency, and (c) if the rate of interest on this Note shall be
determined in accordance with the provisions of the heading "Determination of
LIBOR" above, a London Business Day. As used in the preceding sentence,
"Financial Center" means the capital city of the country issuing the Specified
Currency or the capital city of the country to which the LIBOR Currency relates,
as applicable, except that with respect to United States dollars, Australian
dollars, Canadian dollars, Deutsche marks, Dutch guilders, Euro, Italian lire,
Portuguese escudos, South African rand, and Swiss francs, the "Financial Center"
shall be The City of New York, Sydney and (solely in the case of the Specified
Currency) Melbourne, Toronto, Frankfurt, Amsterdam, London and Luxembourg,
Milan, London (solely in the case of the LIBOR Currency), Johannesburg and
Zurich, respectively. Unless otherwise specified on the face hereof, "London
Business Day" means any day which (i) if the LIBOR Currency is other than the
Euro, any day on which dealings in deposits in such LIBOR Currency are
transacted in the London interbank market or (ii) if the LIBOR Currency is the
Euro, any day on which the Trans-European Automated Real-Time Gross Settlement
Express Transfer (TARGET) System is open.
Unless otherwise specified on the face hereof, the Interest
Determination Date pertaining to an Interest Reset Date if the rate of interest
on this Note shall be determined
16
<PAGE>
in accordance with the provisions of the headings (a) "Determination of
Commercial Paper Rate" above (the "Commercial Paper Interest Determination
Date"), (b) "Determination of Federal Funds Rate" above (the "Federal Funds
Interest Determination Date"), (c) "Determination of CD Rate" above (the "CD
Interest Determination Date") (d) "Determination of Prime Rate" above (the
"Prime Rate Interest Determination Date") or (e) "Determination of CMT Rate"
above (the "CMT Interest Determination Date") will be the second Business Day
preceding such Interest Reset Date with respect to this Note. Unless otherwise
specified on the face hereof, the Interest Determination Date pertaining to an
Interest Reset Date if the rate of interest on this Note shall be determined in
accordance with the provisions of the heading "Determination of LIBOR" above
(the "LIBOR Interest Determination Date") will be the second London Business Day
preceding such Interest Reset Date unless the LIBOR Currency is British Pounds
Sterling, in which case the LIBOR Interest Determination Date will be the
applicable Interest Reset Date. Unless otherwise specified on the face hereof,
the Interest Determination Date pertaining to an Interest Reset Date if the rate
of interest on this Note shall be determined in accordance with the provisions
of the heading "Determination of Treasury Rate" above (the "Treasury Interest
Determination Date") will be the day of the week in which such Interest Reset
Date falls on which Treasury bills would normally be auctioned. Treasury bills
are usually sold at auction on Monday of each week, unless that day is a legal
holiday, in which case the auction is usually held on the following Tuesday,
except that such auction may be held on the preceding Friday. If, as the result
of a legal holiday, an auction is so held on the preceding Friday, such Friday
will be the Treasury Interest Determination Date pertaining to the Interest
Reset Date occurring in the next succeeding week. If an auction date shall fall
on any Interest Reset Date for a Treasury Rate Note, then such Interest Reset
Date shall instead be the first Business Day immediately following such auction
date. Unless otherwise specified on the face hereof, the Interest Determination
Date pertaining to an Interest Reset Date if the rate of interest on this Note
shall be determined in accordance with the provisions of the heading
"Determination of Eleventh District Cost of Funds Rate" above (the "Eleventh
District Cost of Funds Determination Date") will be the last Business Day of the
month immediately preceding the applicable Interest Reset Date in which the
Federal Home Loan Bank of San Francisco published the Index (as defined in such
heading).
Unless otherwise specified on the face hereof, the Calculation Date
pertaining to any Interest Determination Date, other than with respect to LIBOR
Notes, is the earlier of (i) the tenth day after such Interest Determination
Date or, if any such day is not a Business Day, the next succeeding Business
Day, or (ii) the Business Day preceding the applicable Interest Payment Date or
Maturity, as the case may be.
Unless otherwise specified on the face hereof, interest payments, if
any, will be the amount of interest accrued from and including the last date in
respect of which interest has been paid or duly provided for (or from and
including the Original Issue Date if no interest has been paid or provided for
with respect to this Note) to but excluding the Interest Payment Date or the
date of Maturity. Accrued interest hereon from the Original Issue Date or from
the last date to which interest hereon has been paid is calculated by
multiplying the face amount hereof by an accrued interest factor. Such accrued
interest factor is computed by adding the interest factor calculated for each
day from the Original Issue Date or from the last date to which interest shall
have been paid, to the date for which accrued interest is being calculated. The
interest factor (expressed as a decimal rounded, if necessary, to the nearest
one-hundred-thousandth of a
17
<PAGE>
percentage point, with five-millionths of a percentage point rounded upwards
(e.g., 9.876545% or .09876545 being rounded to 9.87655% or .0987655,
respectively)) for each such day shall be computed by dividing the interest rate
(expressed as a decimal rounded, if necessary, to the nearest one-hundred-
thousandth of a percentage point, with five-millionths of a percentage point
rounded upwards) applicable to such day by 360, in the case of the Commercial
Paper Rate, Eleventh District Cost of Funds Rate, Federal Funds Rate, Prime
Rate, CD Rate or LIBOR, or by the actual number of days in the year in the case
of the CMT Rate or Treasury Rate.
If the Company has the option with respect to this Note to reset the
Spread and/or Spread Multiplier, such option will be indicated on the face
hereof, together with (i) the date or dates on which such Spread and/or Spread
Multiplier may be reset (each an "Optional Reset Date") and (ii) the basis or
formula, if any, for such resetting. The Company may exercise such option by
notifying the Trustee of such exercise at least 45 but not more than 60 days
prior to an Optional Reset Date. Not later than 40 days prior to such Optional
Reset Date, the Trustee will mail to the Holder hereof a notice (the "Reset
Notice"), first class, postage prepaid, setting forth (i) the election of the
Company to reset the Spread and/or Spread Multiplier, (ii) such new Spread
and/or Spread Multiplier, and (iii) the provisions, if any, for redemption
during the period from such Optional Reset Date to the next Optional Reset Date
or, if there is no such next Optional Reset Date, to the Stated Maturity of this
Note (each such period a "Subsequent Interest Period"), including the date or
dates on which or the period or periods during which and the price or prices at
which such redemption may occur during such Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to an
Optional Reset Date, the Company may, at its option, revoke the Spread and/or
Spread Multiplier provided for in the Reset Notice and establish a higher Spread
and/or Spread Multiplier for the Subsequent Interest Period commencing on such
Optional Reset Date by mailing or causing the Trustee to mail notice of such
higher Spread and/or Spread Multiplier first class, postage prepaid, to the
Holder hereof. Such notice shall be irrevocable. If the Spread and/or Spread
Multiplier is reset on an Optional Reset Date this Note will bear such higher
Spread and/or Spread Multiplier.
If the Company elects to reset the Spread and/or Spread Multiplier of
this Note, the Holder hereof will have the option to elect repayment of this
Note by the Company on any Optional Reset Date at a price equal to the principal
amount hereof plus any accrued interest to such Optional Reset Date. In order
for this Note to be so repaid on an Optional Reset Date, the Holder hereof must
follow the procedures set forth below for optional repayment, except that the
period for delivery of this Note or notification to the Trustee shall be at
least 25 but not more than 35 days prior to such Optional Reset Date and except
that a Holder who has tendered this Note for repayment pursuant to a Reset
Notice may, by written notice to the Trustee, revoke any such tender for
repayment until the close of business on the tenth day prior to such Optional
Reset Date.
If the Company has the option to extend the Stated Maturity of this
Note for one or more periods (each an "Extension Period") up to but not beyond
the date (the "Final Maturity Date") set forth on the face hereof, such option
will be indicated on the face hereof together with the basis or formula, if any,
for setting the Spread and/or Spread Multiplier applicable to any such Extension
Period. The Company may exercise such option with respect to this Note by
notifying the Trustee of such exercise at least 45 but not more than 60 days
prior to the Stated
18
<PAGE>
Maturity in effect prior to the exercise of such option (the "Original Stated
Maturity"). No later than 40 days prior to the Original Stated Maturity, the
Trustee will mail to the Holder hereof a notice (the "Extension Notice")
relating to such Extension Period, first class, postage prepaid, setting forth
(i) the election of the Company to extend the Stated Maturity hereof, (ii) the
new Stated Maturity, (iii) the Spread and/or Spread Multiplier applicable to the
Extension Period, and (iv) the provisions, if any, for redemption during the
Extension Period, including the date or dates on which or the period or periods
during which and the price or prices at which such redemption may occur during
the Extension Period. Upon the mailing by the Trustee of an Extension Notice to
the Holder of this Note, the Stated Maturity of this Note shall be extended
automatically as set forth in the Extension Notice, and, except as modified by
the Extension Notice and as described in the next paragraph, this Note will have
the same terms as prior to the mailing of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days prior to the
Original Stated Maturity for this Note, the Company may, at its option, revoke
the Spread and/or Spread Multiplier provided for in the Extension Notice and
establish a higher Spread and/or Spread Multiplier for the Extension Period by
mailing or causing the Trustee to mail notice of such higher Spread and/or
Spread Multiplier first class, postage prepaid, to the Holder hereof. Such
notice shall be irrevocable. All Notes with respect to which the Stated
Maturity is extended will bear such higher Spread and/or Spread Multiplier for
the Extension Period.
If the Company elects to extend the Stated Maturity of this Note, the
Holder hereof will have the option to elect repayment of this Note by the
Company at the Original Stated Maturity at a price equal to the principal amount
hereof plus any accrued interest to such date. In order for this Note to be so
repaid on the Original Stated Maturity, the Holder hereof must follow the
procedures set forth below for optional repayment, except that the period for
delivery of this Note or notification to the Trustee shall be at least 25 but
not more than 35 days prior to the Original Stated Maturity and except that a
Holder who has tendered this Note for repayment pursuant to an Extension Notice
may, by written notice to the Trustee, revoke any such tender for repayment
until the close of business on the tenth day prior to the Original Stated
Maturity.
If the Company has provided for the conditional automatic extension of
the Stated Maturity of this Note for one or more periods (each a "Renewal
Period") up to but not beyond a date (the "Final Maturity Date") set forth on
the face hereof, such provision will be indicated on the face hereof together
with the basis or formula, if any, for setting the interest rate applicable to
any such Renewal Period. In such case this note is referred to herein, where
applicable, as a "Renewable Note."
The Renewable Note will mature on the initial Stated Maturity
specified on the face hereof, unless the Stated Maturity of all or any portion
of the principal amount thereof is extended in accordance with the procedures
described below. On the Interest Payment Dates specified on the face hereof
(each such Interest Payment Date, an "Election Date"), the Stated Maturity of
the Renewable Note will be extended to the Interest Payment Date occurring
twelve months after such Election Date, unless the Holder elects to terminate
the automatic extension of the Stated Maturity of the Renewable Note by
delivering a notice to such effect to the Trustee not less than nor more than
the number of days specified on the face hereof prior to such Election
19
<PAGE>
Date. Such option may be exercised with respect to less than the entire
principal amount of the Renewable Note; provided that the principal amount for
--------
which such option is not exercised is at least $1,000 or any larger amount that
is an integral multiple of $1,000. Notwithstanding the foregoing, the Stated
Maturity of the Renewable Note may not be extended beyond the Final Maturity
Date. If the Holder elects to terminate the automatic extension of the Stated
Maturity of any portion of the principal amount of the Renewable Note and such
election is not revoked as described below, such portion will become due and
payable on the Interest Payment Date falling six months (unless another period
is specified on the face hereof) after the Election Date prior to which the
holder made such election.
An election to terminate the automatic extension of the Stated
Maturity of the Renewable Note may be revoked by delivering a notice to such
effect to the Trustee on any day following the effective date of the election to
terminate the automatic extension of maturity of the Stated Maturity of the
Renewable Note and prior to the date 15 days before the date on which such
portion would otherwise mature. Such a revocation may be made for less than the
entire principal amount of the Renewable Note for which the automatic extension
of Stated Maturity has been terminated; provided that the principal amount of
--------
the Renewable Note for which the automatic extension of Stated Maturity has been
terminated and for which such a revocation has not been made is at least $1,000
or any larger amount that is an integral multiple of $1,000. Notwithstanding
the foregoing, a revocation may not be made during the period from and including
a Record Date to but excluding the immediately succeeding Interest Payment Date.
An election to terminate the automatic extension of the Stated
Maturity of the Renewable Note, if not revoked as described above by the Holder
making the election or any subsequent Holder, will be binding upon such
subsequent Holder.
The Renewable Note may be redeemed in whole or in part at the option
of the Company on or commencing with the date or dates specified on the face
hereof. The Renewable Note will be redeemed at the Redemption Price stated on
the face hereof, together with accrued and unpaid interest to the Redemption
Date.
Unless one or more Redemption Dates is specified on the face hereof,
this Note shall not be redeemable at the option of the Company before the
Maturity Date specified on the face hereof. If one or more Redemption Dates (or
ranges of Redemption Dates) is so specified, this Note is subject to redemption
on any such date (or during any such range) at the option of the Company, upon
notice by first-class mail, mailed not less than 30 days nor more than 60 days
prior to the Redemption Date specified in such notice, at the applicable
Redemption Price specified on the face hereof (expressed as a percentage of the
principal amount of this Note), together in the case of any such redemption with
accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is prior to the Redemption Date will be payable to the Holder of this
Note, or one or more Predecessor Notes, of record at the close of business on
the relevant Regular or Special Record Dates referred to on the face hereof, all
as provided in the Indenture. The Company may elect to redeem less than the
entire principal amount hereof, provided that the principal amount, if any, of
--------
this Note that remains outstanding after such redemption is an Authorized
Denomination as defined herein.
20
<PAGE>
Unless one or more Repayment Dates is specified on the face hereof,
this Note shall not be repayable at the option of the Holder on any date prior
to the Maturity Date specified on the face hereof. If one or more Repayment
Dates (or ranges of Repayment Dates) is so specified, this Note is subject to
repayment on any such date (or during any such range) at the option of the
Holder at the applicable Repayment Price specified on the face hereof (expressed
as a percentage of the principal amount of this Note), together in the case of
any such repayment with accrued interest to the Repayment Date, but interest
installments whose Stated Maturity is prior to the Repayment Date will be
payable to the Holder of this Note, or one or more Predecessor Notes, of record
at the close of business on the relevant Regular or Special Record Dates
referred to on the face hereof, all as provided in the Indenture. For this Note
to be repaid at the option of the Holder, the Trustee must receive at the
principal office of its Corporate Trust Department in Chicago, Illinois, at
least 30 days but not more than 45 days prior to the Repayment Date on which
this Note is to be repaid, this Note and a statement that the option to elect
repayment is being exercised thereby. Exercise of the repayment option by the
Holder shall be irrevocable except to the extent permitted in connection with an
interest rate reset or an extension or renewal of maturity, each as described
above. The repayment option with respect to this Note may be exercised by the
Holder for less than the entire principal amount hereof, provided that the
--------
principal amount, if any, of this Note that remains outstanding after such
repayment is an Authorized Denomination as defined herein.
[Insert if the Security is to be a Certificated Security - In the
event of redemption or repayment of this Note in part only, a new Note or Notes
of this series and of like tenor and for a principal amount equal to the
unredeemed or unrepaid portion will be delivered to the registered Holder upon
the cancellation hereof.]
[Insert if the Security is to be a Global Security - In the event of
redemption or repayment of this Note in part only, the principal amount shall be
reduced.]
If this is a Foreign Currency Note to be paid in United States
dollars, the United States dollar amount to be received in respect hereof will
be based upon the exchange rate as determined by the Exchange Rate Agent based
on the highest firm bid quotation for United States dollars received by such
Exchange Rate Agent at approximately 11:00 a.m., New York City time, on the
second Business Day preceding the applicable payment date from three recognized
foreign exchange dealers in The City of New York selected by the Exchange Rate
Agent and approved by the Company (one of which may be the Exchange Rate Agent)
for the purchase by the quoting dealer, for settlement on such payment date, of
the aggregate amount of the Specified Currency payable on such payment date in
respect of this Note. If no such bid quotations are available, payments will be
made in the Specified Currency, unless such Specified Currency is unavailable
due to the imposition of exchange controls or to other circumstances beyond the
Company's control, in which case the Company will make payments in respect
hereof in United States dollars as provided below. All currency exchange costs
will be borne by the Holder hereof by deductions from such payments.
If a Holder is to receive payments in a Specified Currency other than
United States dollars as described on the face hereof, payments of principal of
(and premium, if any) and interest will be paid in immediately available funds
by wire transfer to an account maintained by the Holder with a bank designated
by the Holder (which in the case of Global Securities will be
21
<PAGE>
the Depositary or its nominee) on or prior to the Regular Record Date or at
least 15 days prior to Maturity, as the case may be, provided that such bank has
--------
the appropriate facilities for such a payment in the Specified Currency,
provided, however, that with respect to payments of principal and premium, if
- -------- -------
any, and interest at Maturity this Note is presented to the Trustee in time for
the Trustee to make such payment in accordance with its normal procedures, which
shall require presentation no later than two Business Days prior to Maturity in
order to ensure the availability of immediately available funds in the Specified
Currency at Maturity.
If payment on this Note is required to be made in a Specified Currency
other than United States dollars and such currency is unavailable in the good
faith judgment of the Company due to the imposition of exchange controls or to
other circumstances beyond the Company's control, or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions of or within the international banking
community, then all payments with respect to this Note shall be made in United
States dollars until such currency is again available or so used. The amount so
payable on any date in such Specified Currency shall be converted into United
States dollars at a rate determined by the Exchange Rate Agent on the basis of
the Market Exchange Rate on the second Business Day prior to such payment, or,
if the Market Exchange Rate is not then available, the most recently available
Market Exchange Rate or as otherwise determined in good faith by the Company if
the foregoing is impracticable.
If this is a Foreign Currency Note, in the event of an official
redenomination of such foreign currency the obligations of the Company with
respect to payments on this Note denominated in such currency shall, in all
cases, be deemed immediately following such redenomination to provide for the
payment of that amount of redenominated currency representing the amount of such
obligations immediately before such redenomination. No adjustment will be made
to any amount payable under this Note as a result of any change in the value of
a foreign currency relative to any other currency due solely to fluctuations in
exchange rate.
If an Event of Default with respect to Notes of this series shall
occur and be continuing, the principal of the Notes of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Unless otherwise specified on the face hereof, if any Original Issue
Discount Note (as defined below) is redeemed by the Company or repaid at the
option of the Holder, each as described above, or if the principal of any
Original Issue Discount Note is declared to be due and payable immediately
pursuant to this paragraph, the amount of principal due and payable with respect
to this Note shall be limited to the sum of the aggregate principal amount of
this Note multiplied by the Issue Price (expressed as a per-cent-age of the
aggregate principal amount) plus the original issue discount accrued from the
date of issue to the date of redemption, repayment or declaration, as
applicable, which accrual shall be calculated using the "interest method"
(computed in accordance with generally accepted accounting principles) in effect
on the date of redemption, repayment or declaration. Unless otherwise specified
on the face hereof, an Original Issue Discount Note is a Note which has a stated
redemption price at maturity that exceeds its Issue Price by at least 0.25% of
the stated redemption price at maturity, multiplied by the number of complete
years from the Original Issue Date to the Maturity Date for this Note.
22
<PAGE>
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than 66 2/3% in principal amount of the Notes at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Notes of each series at the time Outstanding, on behalf of the Holders of
all Notes of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not 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 times, places and rate, and in the coin or
currency, herein prescribed. However, the Indenture limits the Holder's right
to enforce the Indenture and this Note.
As provided in the Indenture and subject to certain limitations set
forth therein and as may be set forth on the face hereof, the transfer of this
Note is registrable in the Security Register, upon surrender of this Note for
registration of transfer at the office or agency of the Company in any place
where the principal of (and premium, if any) and interest on this Note are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Notes of this series of like tenor, of Authorized Denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
[Insert if the Security is a Global Security - This Note is a Global
Note and shall be exchangeable for Notes registered in the names of Persons
other than the Depositary with respect to this Global Note or its nominee only
if (A) such Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for this Global Note or at any time ceases to be a
clearing agency registered as such under the Securities Exchange Act of 1934, as
amended, (B) the Company in its discretion executes and delivers to the Trustee
a Company Order that this Global Note shall be exchangeable or (C) there shall
have occurred and be continuing an Event of Default with respect to the Notes.
If this Global Note is exchangeable pursuant to the preceding sentence, it shall
be exchangeable for Notes issuable in denominations of $1,000 and any integral
multiple of $1,000 in excess thereof, registered in such names as such
Depositary shall direct.]
The Notes of this series are issuable, in the case of Notes
denominated in United States dollars, in denominations of U.S. $1,000 and any
integral multiple of U.S. $1,000 in excess thereof and, in the case of Notes
denominated in a Specified Currency other than United States dollars, in the
authorized denominations set forth on the face hereof (in each case, an
"Authorized Denomination"). As provided in the Indenture and subject to certain
limitations set
23
<PAGE>
forth therein and as may be set forth on the face hereof, Notes of this series
are exchangeable for a like aggregate principal amount of Notes of this series
of like tenor of a different Authorized Denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other govern-mental charge payable in connection therewith.
The Notes of this series may be issued in the form of one or more
Global Securities to The Depository Trust Company as depositary for the Global
Securities of this series (the "Depositary") or its nominee and registered in
the name of the Depositary or such nominee.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
______________________________
24
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in common
UNIF GIFT MIN ACT - _______________ Custodian ______________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
________________________________
(State)
Additional abbreviations may also be used though not in the above list.
________________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
/ /
- --------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP
CODE OF ASSIGNEE
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ___________________________attorney to transfer said Note on the
books of the Company, with full power of substitution in the premises.
__________________________________________
Dated: ________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within instrument in
every particular, without alteration or
enlargement or any change whatever.
25
<PAGE>
EXHIBIT 4.29
[FACE OF SECURITY]
REGISTERED REGISTERED
No. FXR
CUSIP
PROVIDIAN FINANCIAL CORPORATION
MEDIUM-TERM NOTE, SERIES A
(Fixed Rate)
(Subordinated)
[Insert if the Security is to be a Global Security - This Note is a Global
Security 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
Global Security is exchangeable for 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 such limited circumstances.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) 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 such other name as requested
by an authorized representative of The Depository Trust Company and any payment
hereon made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof,
Cede & Co., has an interest herein.]
THE FOLLOWING SUMMARY OF TERMS IS SUBJECT TO THE INFORMATION SET FORTH ON
THE REVERSE HEREOF:
<TABLE>
<S> <C> <C>
PRINCIPAL AMOUNT: INTEREST PAYMENT DATES (if other than April RECORD PAYMENT DATES (if other than March
1 and October 1): 15 and September 15):
ORIGINAL ISSUE DATE: INTEREST RATE: MATURITY DATE:
SPECIFIED CURRENCY: OPTION TO ELECT PAYMENT IN U.S. DOLLARS AUTHORIZED DENOMINATIONS (only applicable
(only applicable if Specified Currency is if Specified Currency is other than U.S.
[_] U.S. dollars other than U.S. dollars): dollars):
[_] Other: [_] Yes [_] No
EXCHANGE RATE AGENT (if other than The THIS NOTE IS A:
First National Bank of Chicago):
[_] Global Note
[_] Certificated Note (only applicable if
Specified Currency is other than U.S.
dollars)
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
ORIGINAL ISSUE DISCOUNT NOTE: TOTAL AMOUNT OF OID: ISSUE PRICE (expressed as a percentage of
aggregate principal amount):
[_] Yes [_] No DEFAULT RATE:
REDEMPTION DATE(S) (including any REDEMPTION PRICE(S): TERMS OF AMORTIZING NOTES:
applicable regular or special record
dates):
REPAYMENT DATE(S) (including any REPAYMENT PRICE(S):
applicable regular or special record
dates):
OTHER TERMS: STATED MATURITY EXTENSION OPTION: CONDITIONAL AUTOMATIC EXTENSION OF STATED
MATURITY (RENEWAL)
[_] Yes [_] No
[_] Yes [_] No
EXTENSION PERIOD(S) AND FINAL MATURITY DATE
(only applicable if option to extend stated RENEWAL PERIOD(S) AND FINAL MATURITY DATE
maturity): (only applicable if option to renew stated
maturity).
BASIS FOR INTEREST RATE DURING EXTENSION
PERIOD (only applicable if option to extend BASIS FOR INTEREST RATE DURING RENEWAL
stated maturity): PERIOD (only applicable if option to renew
stated maturity).
INTEREST RATE RESET OPTION:
[_] Yes [_] No
OPTIONAL RESET DATES (only applicable if
option to reset interest rates):
BASIS FOR INTEREST RATE RESET (only
applicable if option to reset interest
rates):
</TABLE>
PROVIDIAN FINANCIAL CORPORATION, a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to [Insert if the Security is to be a
Certificated Security - ] [Insert if the Security is to be a Global
Security - Cede & Co., as nominee for The Depository Trust Company], or
registered assigns, the Principal Amount stated above on the Maturity Date shown
above, and to pay interest thereon from and including the Original Issue Date
shown above or, in the case of a Note issued upon registration of transfer or
exchange, from and including the most recent Interest Payment Date to which
interest has been paid or duly provided for, unless otherwise specified on the
face hereof, semi-annually on April 1 and October 1 of each year and on the
Maturity Date, commencing on the first such Interest Payment Date next
succeeding the Original Issue Date, provided that if the Original Issue Date is
--------
after a Regular Record Date and before the Interest Payment Date immediately
following such Regular Record Date, interest payments will commence on the
second Interest Payment Date following the Original Issue Date, at the rate per
annum set forth above, until the principal hereof is paid or made available for
payment and (to the extent that the payment of such interest shall be legally
enforceable) at the Default Rate per annum specified above on any overdue
principal and premium, if any, and on
2
<PAGE>
any overdue installment of interest. If no Default Rate is specified above, the
Default Rate shall be the Interest Rate on this Note specified above. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest, which shall be, unless
otherwise specified on the face hereof, the March 15 or September 15 (whether or
not a Business Day), as the case may be, next preceding the April 1 and October
1 Interest Payment Dates (unless otherwise specified on the face hereof);
provided, however, that interest payable at the Maturity Date will be payable to
- -------- -------
the Person to whom principal shall be payable. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either 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 for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Notes of
this series not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
Unless otherwise specified on the face hereof, payments of principal of
(and premium, if any) and interest on this Note will be made in the applicable
Specified Currency, provided, however, that if this Note is denominated in a
-------- -------
Specified Currency other than United States dollars (a "Foreign Currency Note")
payments of principal of (and premium, if any) and interest hereon will [insert
if the Security is to be a Global Security - be made in United States dollars
unless the beneficial holder hereof gives notice to the Depositary that it
elects to receive payments in such Specified Currency. Upon receipt of such
notice, the Depositary will notify the Trustee of the portion of the payment to
be made by the Trustee which is to be made in the Specified Currency and the
applicable wire transfer instructions. In such event, the Trustee will pay the
beneficial holder directly.] [insert if the Security is to be a Certificated
Security - nevertheless be made in United States dollars if the Holder hereof
elects to receive all payments in respect hereof in United States dollars by
delivery of a written request to the Trustee on or prior to the applicable
Regular Record Date or at least 15 days prior to Maturity, as the case may be.
Such election may be in writing (mailed or hand delivered) or by cable, telex or
other form of facsimile transmission. A Holder of such a Note may elect to
receive payment in United States dollars for all principal (and premium, if any)
and interest payments and need not file a separate election for each payment.
Such election will remain in effect until revoked by written notice to the
Trustee, but written notice of such revocation must be received by the Trustee
on or prior to the applicable Regular Record Date or at least 15 days prior to
Maturity, as the case may be.]
Payment of the principal of (and premium, if any) and interest on this Note
due at Maturity in United States dollars will be made in immediately available
funds, provided that this Note is presented to the Trustee in time for the
--------
Trustee to make such payment in accordance with its normal procedures.
[Insert if the Security is to be a Certificated Security - Payment of the
principal of (and premium, if any) and interest on this Note due at Maturity in
United States dollars will be made
3
<PAGE>
at the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, The City of New York, in immediately available funds.
Payment of interest (other than interest due at Maturity) will be made by United
States dollar check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register. Notwithstanding the foregoing,
unless otherwise specified on the face hereof, a holder of U.S. $10,000,000 or
more in aggregate principal amount of Notes of like tenor and terms shall be
entitled to receive such payment of interest in United States dollars by wire
transfer of immediately available funds to such account with a bank located in
the United States as shall be designated by such person, but only if appropriate
payment instructions have been received in writing by the Trustee on or prior to
the Regular Record Date.] [Insert if the Security is to be a Global Security -
Payment of the principal of (and premium, if any) and interest (other than
interest payable at Maturity) on this Note in United States dollars will be made
by transfer of immediately available funds to the Depositary or its nominee.]
All payments of principal (and premium, if any) and interest in a Specified
Currency other than United States dollars will be made in the manner set forth
on the reverse hereof.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an Authenticating
Agent, by manual signature of an authorized signatory, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
4
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: PROVIDIAN FINANCIAL CORPORATION
By: ______________________________________
Executive Vice President
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series
designated therein referred to in the within-
mentioned Indenture.
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION,
as Trustee
By _________________________________
Authorized Officer
5
<PAGE>
[BACK OF SECURITY]
PROVIDIAN FINANCIAL CORPORATION
MEDIUM-TERM NOTE, SERIES A
(Fixed Rate)
(Subordinated)
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Notes"), issued and to be issued in one or more series under
an Indenture dated as of May 1, 1999, as supplemented from time to time (herein
called the "Indenture"), between the Company and Chase Manhattan Bank and Trust
Company, National Association, as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered. This Note is
one of the series designated on the face hereof. The Notes of this series may
be denominated in different currencies, bear different dates, mature at
different times and bear interest at different rates. The Notes of this series
may be issued from time to time in an aggregate principal amount of up to
$1,000,000,000 (including in such amount the offering price of any such Notes
sold at a discount), which amount may be increased if duly authorized by the
Company. All capitalized terms not defined herein shall have the meanings given
to them in the Indenture.
The United States dollar equivalent of Notes denominated in currencies
other than United States dollars (the "Market Exchange Rate") will be determined
by the Exchange Rate Agent on the basis of the noon buying rate for cable
transfers in The City of New York as determined by the Federal Reserve Bank of
New York for such currencies on the Business Day (as defined below) immediately
preceding the applicable issue dates.
Interest payments for this Note will include interest accrued from and
including the last date in respect of which interest has been paid or duly
provided for (or from and including the Original Issue Date if no interest has
been paid or provided for) to but excluding the Interest Payment Dates or the
Maturity Date. Interest payments for this Note shall be computed and paid on
the basis of a 360-day year of twelve 30-day months.
If the Interest Payment Date or the Maturity Date for any fixed rate note
falls on a day that is not a Business Day, the payment of principal, premium, if
any, and interest may be made on the next succeeding Business Day, and no
interest on such payment shall accrue for the period from and after such
Interest Payment Date or Maturity Date, as the case may be.
If the Company has the option with respect to this Note to reset the
interest rate, such option will be indicated on the face hereof, together with
(i) the date or dates on which such interest rate may be reset (each an
"Optional Reset Date") and (ii) the basis or formula, if any,
6
<PAGE>
for such resetting. The Company may exercise such option by notifying the
Trustee of such exercise at least 45 but not more than 60 days prior to an
Optional Reset Date. Not later than 40 days prior to such Optional Reset Date,
the Trustee will mail to the Holder hereof a notice (the "Reset Notice"), first
class, postage prepaid, setting forth (i) the election of the Company to reset
the interest rate, (ii) such new interest rate, and (iii) the provisions, if
any, for redemption during the period from such Optional Reset Date to the next
Optional Reset Date or, if there is no such next Optional Reset Date, to the
Stated Maturity of this Note (each such period a "Subsequent Interest Period"),
including the date or dates on which or the period or periods during which and
the price or prices at which such redemption may occur during such Subsequent
Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to an Optional
Reset Date, the Company may, at its option, revoke the interest rate provided
for in the Reset Notice and establish a higher interest rate for the Subsequent
Interest Period commencing on such Optional Reset Date by mailing or causing the
Trustee to mail notice of such higher interest rate first class, postage
prepaid, to the Holder hereof. Such notice shall be irrevocable. If the
interest rate is reset on an Optional Reset Date this Note will bear such higher
interest rate.
If the Company elects to reset the interest rate of this Note, the Holder
hereof will have the option to elect repayment of this Note by the Company on
any Optional Reset Date at a price equal to the principal amount hereof plus any
accrued interest to such Optional Reset Date. In order for this Note to be so
repaid on an Optional Reset Date, the Holder hereof must follow the procedures
set forth below for optional repayment, except that the period for delivery of
this Note or notification to the Trustee shall be at least 25 but not more than
35 days prior to such Optional Reset Date and except that a Holder who has
tendered this Note for repayment pursuant to a Reset Notice may, by written
notice to the Trustee, revoke any such tender for repayment until the close of
business on the tenth day prior to such Optional Reset Date.
If the Company has the option to extend the Stated Maturity of this Note
for one or more periods (each an "Extension Period") up to but not beyond a date
(the "Final Maturity Date") set forth on the face hereof, such option will be
indicated on the face hereof together with the basis or formula, if any, for
setting the interest rate applicable to any such Extension Period. The Company
may exercise such option with respect to this Note by notifying the Trustee of
such exercise at least 45 but not more than 60 days prior to the Stated Maturity
of this Note in effect prior to the exercise of such option (the "Original
Stated Maturity"). No later than 40 days prior to the Original Stated Maturity,
the Trustee will mail to the Holder hereof a notice (the "Extension Notice")
relating to such Extension Period, first class, postage prepaid, setting forth
(i) the election of the Company to extend the Stated Maturity of this Note, (ii)
the new Stated Maturity, (iii) the interest rate applicable to the Extension
Period, and (iv) the provisions, if any, for redemption during the Extension
Period, including the date or dates on which or the period or periods during
which and the price or prices at which such redemption may occur during the
Extension Period. Upon the mailing by the Trustee of an Extension Notice to the
Holder hereof, the Stated Maturity of this Note shall be extended automatically
as set forth in the Extension Notice, and, except as modified by the Extension
Notice and as described in the next paragraph, this Note will have the same
terms as prior to the mailing of such Extension Notice.
7
<PAGE>
Notwithstanding the foregoing, not later than 20 days prior to the Original
Stated Maturity for this Note, the Company may, at its option, revoke the
interest rate provided for in the Extension Notice and establish a higher
interest rate for the Extension Period by mailing or causing the Trustee to mail
notice of such higher interest rate first class, postage prepaid, to the Holder
hereof. Such notice shall be irrevocable. All Notes with respect to which the
Stated Maturity is extended will bear such higher interest rate for the
Extension Period.
If the Company elects to extend the Stated Maturity of this Note, the
Holder hereof will have the option to elect repayment of this Note by the
Company at the Original Stated Maturity at a price equal to the principal amount
hereof plus any accrued interest to such date. In order for this Note to be so
repaid on the Original Stated Maturity, the Holder hereof must follow the
procedures set forth below for optional repayment, except that the period for
delivery of this Note or notification to the Trustee shall be at least 25 but
not more than 35 days prior to the Original Stated Maturity and except that a
Holder who has tendered this Note for repayment pursuant to an Extension Notice
may, by written notice to the Trustee, revoke any such tender for repayment
until the close of business on the tenth day prior to the Original Stated
Maturity.
If the Company has provided for the conditional automatic extension of the
Stated Maturity of this Note for one or more periods (each a "Renewal Period")
up to but not beyond a date (the "Final Maturity Date") set forth on the face
hereof, such provision will be indicated on the face hereof together with the
basis or formula, if any, for setting the interest rate applicable to any such
Renewal Period. In such case this note is referred to herein, where applicable,
as a "Renewable Note."
The Renewable Note will mature on the initial Stated Maturity specified on
the face hereof, unless the Stated Maturity of all or any portion of the
principal amount thereof is extended in accordance with the procedures described
below. On the Interest Payment Dates specified on the face hereof (each such
Interest Payment Date, an "Election Date"), the Stated Maturity of the Renewable
Note will be extended to the Interest Payment Date occurring twelve months after
such Election Date, unless the Holder elects to terminate the automatic
extension of the Stated Maturity of the Renewable Note by delivering a notice to
such effect to the Trustee not less than nor more than the number of days
specified on the face hereof prior to such Election Date. Such option may be
exercised with respect to less than the entire principal amount of the Renewable
Note; provided that the principal amount for which such option is not exercised
--------
is at least $1,000 or any larger amount that is an integral multiple of $1,000.
Notwithstanding the foregoing, the Stated Maturity of the Renewable Note may not
be extended beyond the Final Maturity Date. If the Holder elects to terminate
the automatic extension of the Stated Maturity of any portion of the principal
amount of the Renewable Note and such election is not revoked as described
below, such portion will become due and payable on the Interest Payment Date
falling six months (unless another period is specified on the face hereof) after
the Election Date prior to which the holder made such election.
An election to terminate the automatic extension of the Stated
Maturity of the Renewable Note may be revoked by delivering a notice to such
effect to the Trustee on any day following the effective date of the election to
terminate the automatic extension of maturity of the Stated Maturity of the
Renewable Note and prior to the date 15 days before the date on which such
8
<PAGE>
portion would otherwise mature. Such a revocation may be made for less than the
entire principal amount of the Renewable Note for which the automatic extension
of Stated Maturity has been terminated; provided that the principal amount of
--------
the Renewable Note for which the automatic extension of Stated Maturity has been
terminated and for which such a revocation has not been made is at least $1,000
or any larger amount that is an integral multiple of $1,000. Notwithstanding
the foregoing, a revocation may not be made during the period from and including
a Record Date to but excluding the immediately succeeding Interest Payment Date.
An election to terminate the automatic extension of the Stated
Maturity of the Renewable Note, if not revoked as described above by the Holder
making the election or any subsequent Holder, will be binding upon such
subsequent Holder.
The Renewable Note may be redeemed in whole or in part at the option
of the Company on or commencing with the date or dates specified on the face
hereof. The Renewable Note will be redeemed at the Redemption Price stated on
the face hereof, together with accrued and unpaid interest to the Redemption
Date.
Unless one or more Redemption Dates is specified on the face hereof, this
Note shall not be redeemable at the option of the Company before the Maturity
Date specified on the face hereof. If one or more Redemption Dates (or ranges
of Redemption Dates) is so specified, this Note is subject to redemption on any
such date (or during any such range) at the option of the Company, upon notice
by first-class mail, mailed not less than 30 days nor more than 60 days prior to
the Redemption Date specified in such notice, at the applicable Redemption Price
specified on the face hereof (expressed as a percentage of the principal amount
of this Note), together in the case of any such redemption with accrued interest
to the Redemption Date, but interest installments whose Stated Maturity is prior
to the Redemption Date will be payable to the Holder of this Note, or one or
more predecessor Notes, of record at the close of business on the relevant
Regular or Special Record Dates referred to on the face hereof, all as provided
in the Indenture. The Company may elect to redeem less than the entire
principal amount hereof, provided that the principal amount, if any, of this
--------
Note that remains outstanding after such redemption is an Authorized
Denomination as defined herein.
Unless one or more Repayment Dates is specified on the face hereof, this
Note shall not be repayable at the option of the Holder on any date prior to the
Maturity Date specified on the face hereof. If one or more Repayment Dates (or
ranges of Repayment Dates) is so specified, this Note is subject to repayment on
any such date (or during any such range) at the option of the Holder at the
applicable Repayment Price specified on the face hereof (expressed as a
percentage of the principal amount of this Note), together in the case of any
such repayment with accrued interest to the Repayment Date, but interest
installments whose Stated Maturity is prior to the Repayment Date will be
payable to the Holder of this Note, or one or more predecessor Notes, of record
at the close of business on the relevant Regular or Special Record Dates
referred to on the face hereof, all as provided in the Indenture. For this Note
to be repaid at the option of the Holder, the Trustee must receive at the
principal office of its Corporate Trust Department in San Francisco, California,
at least 30 days but not more than 45 days prior to the Repayment Date on which
this Note is to be repaid, this Note and a statement that the option to elect
repayment is being exercised thereby. Exercise of the repayment option by the
Holder shall be irrevocable
9
<PAGE>
except to the extent permitted in connection with an interest rate reset or an
extension or renewal of maturity, each as described above. The repayment option
with respect to this Note may be exercised by the Holder for less than the
entire principal amount hereof, provided that the principal amount, if any, of
--------
this Note that remains outstanding after such repayment is an Authorized
Denomination as defined herein.
[Insert if the Security is to be a Certificated Security - In the event of
redemption or repayment of this Note in part only, a new Note or Notes of this
series and of like tenor and for a principal amount equal to the unredeemed or
unrepaid portion will be delivered to the registered Holder upon the
cancellation hereof.]
[Insert if the Security is to be a Global Security - In the event of
redemption or repayment of this Note in part only, the principal amount shall be
reduced.]
If this is a Foreign Currency Note to be paid in United States dollars, the
United States dollar amount to be received in respect hereof will be based upon
the exchange rate as determined by the Exchange Rate Agent based on the highest
firm bid quotation for United States dollars received by such Exchange Rate
Agent at approximately 11:00 a.m., New York City time, on the second Business
Day preceding the applicable payment date from three recognized foreign exchange
dealers in The City of New York selected by the Exchange Rate Agent and approved
by the Company (one of which may be the Exchange Rate Agent) for the purchase by
the quoting dealer, for settlement on such payment date, of the aggregate amount
of the Specified Currency payable on such payment date in respect of this Note.
If no such bid quotations are available, payments will be made in the Specified
Currency, unless such Specified Currency is unavailable due to the imposition of
exchange controls or to other circumstances beyond the Company's control, in
which case the Company will make payments in respect hereof in United States
dollars as provided below. All currency exchange costs will be borne by the
Holder hereof by deductions from such payments.
If a Holder is to receive payments in a Specified Currency other than
United States dollars as described on the face hereof, payments of principal of
(and premium, if any) and interest will be paid in immediately available funds
by wire transfer to an account maintained by the Holder with a bank designated
by the Holder (which in the case of Global Securities will be the Depositary or
its nominee) on or prior to the Regular Record Date or at least 15 days prior to
Maturity, as the case may be, provided that such bank has the appropriate
--------
facilities for such a payment in the Specified Currency, provided, however, that
-------- -------
with respect to payments of principal and premium, if any, and interest at
Maturity this Note is presented to the Trustee in time for the Trustee to make
such payment in accordance with its normal procedures, which shall require
presentation no later than two Business Days prior to Maturity in order to
ensure the availability of immediately available funds in the Specified Currency
at Maturity.
If payment on this Note is required to be made in a Specified Currency
other than United States dollars and such currency is unavailable in the good
faith judgment of the Company due to the imposition of exchange controls or to
other circumstances beyond the Company's control, or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions of or within the international banking
community, then all
10
<PAGE>
payments with respect to this Note shall be made in United States dollars until
such currency is again available or so used. The amount so payable on any date
in such Specified Currency shall be converted into United States dollars at a
rate determined by the Exchange Rate Agent on the basis of the Market Exchange
Rate on the second Business Day prior to such payment, or, if the Market
Exchange Rate is not then available, the most recently available Market Exchange
Rate or as otherwise determined in good faith by the Company if the foregoing is
impracticable.
If this is a Foreign Currency Note, in the event of an official
redenomination of such foreign currency the obligations of the Company with
respect to payments on this Note denominated in such currency shall, in all
cases, be deemed immediately following such redenomination to provide for the
payment of that amount of redenominated currency representing the amount of such
obligations immediately before such redenomination. No adjustment will be made
to any amount payable under this Note as a result of any change in the value of
a foreign currency relative to any other currency due solely to fluctuations in
exchange rates.
The Notes shall be subordinated in right of payment to Senior Indebtedness
and creditors in respect of Designated Obligations as provided in 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 its behalf to take such actions as may be necessary
or appropriate to effectuate the subordination so provided and (c) appoints the
Trustee its attorney-in-fact for any and all such purposes. Each Holder hereof,
by his acceptance hereof, waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness and each creditor in respect of Designated Obligations,
whether now outstanding or hereafter incurred, and waives reliance by each such
holder upon said provisions.
If an Event of Default with respect to Notes of this series shall occur and
be continuing, the principal of the Notes of this series may be declared due and
payable in the manner and with the effect provided in the Indenture. Unless
otherwise specified on the face hereof, if any Original Issue Discount Note (as
defined below) is redeemed by the Company or repaid at the option of the Holder,
each as described above, or if the principal of any Original Issue Discount Note
is declared to be due and payable immediately pursuant to this paragraph, the
amount of principal due and payable with respect to this Note shall be limited
to the sum of the aggregate principal amount of this Note multiplied by the
Issue Price (expressed as a percentage of the aggregate principal amount) plus
the original issue discount accrued from the date of issue to the date of
redemption, repayment or declaration, as applicable, which accrual shall be
calculated using the "interest method" (computed in accordance with generally
accepted accounting principles) in effect on the date of redemption, repayment
or declaration. Unless otherwise specified on the face hereof, an Original
Issue Discount Note is a Note which has a stated redemption price at maturity
that exceeds its Issue Price by at least 0.25% of its stated redemption price at
maturity, multiplied by the number of complete years from the Original Issue
Date to the Maturity Date for this Note.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the
11
<PAGE>
Holders of the Notes of each series to be affected under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of not less
than 66 2/3% in principal amount of the Notes at the time Outstanding of each
series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Notes of each series
at the time Outstanding on behalf of the Holders of all Notes of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not 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 times, places and rate, and in the coin or
currency, herein prescribed. However, the Indenture limits the Holder's right
to enforce the Indenture and this Note.
As provided in the Indenture and subject to certain limitations set forth
therein and as may be set forth on the face hereof, the transfer of this Note is
registrable in the Security Register, upon surrender of this Note for
registration of transfer at the office or agency of the Company in any place
where the principal of (and premium, if any) and interest on this Note are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Notes of this series of like tenor, of Authorized Denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
[Insert if the Security is a Global Security - This Note is a Global Note
and shall be exchangeable for Notes registered in the names of Persons other
than the Depositary with respect to this Global Note or its nominee only if (A)
such Depositary notifies the Company that it is unwilling or unable to continue
as Depositary for this Global Note or at any time ceases to be a clearing agency
registered as such under the Securities Exchange Act of 1934, as amended, (B)
the Company in its discretion executes and delivers to the Trustee a Company
Order that this Global Note shall be exchangeable or (C) there shall have
occurred and be continuing an Event of Default with respect to the Notes. If
this Global Note is exchangeable pursuant to the preceding sentence, it shall be
exchangeable for Notes issuable in denominations of $1,000 and any integral
multiple of $1,000 in excess thereof, registered in such names as such
Depositary shall direct.]
The Notes of this series are issuable, in the case of Notes denominated in
United States dollars, in denominations of U.S. $1,000 and any integral multiple
of U.S. $1,000 in excess thereof and, in the case of Notes denominated in a
Specified Currency other than United States dollars, in the authorized
denominations set forth on the face hereof (in each case, an "Authorized
Denomination"). As provided in the Indenture and subject to certain limitations
set forth therein and as may be set forth on the face hereof, Notes of this
series are exchangeable for
12
<PAGE>
a like aggregate principal amount of Notes of this series of like tenor of a
different Authorized Denomination, as requested by the Holder surrendering the
same.
"Business Day" means (a) with respect to any Note, any day that is not a
Saturday or Sunday and that, in The City of New York, is not a day on which
banking institutions generally are authorized or obligated by law to close and
(b) if the Note is denominated in a Specified Currency other than United States
dollars, any day that is not a day on which banking institutions are authorized
or required by law to close in the Financial Center of the country issuing the
Specified Currency. As used in the preceding sentence, "Financial Center" means
the capital city of the country issuing the Specified Currency, except that with
respect to United States dollars, Australian dollars, Canadian dollars, Deutsche
marks, Dutch guilders, Euro, Italian lire, South African rand and Swiss francs,
the "Financial Center" shall be The City of New York, Sydney and Melbourne,
Toronto, Frankfurt, Amsterdam, London and Luxembourg, Milan, Johannesburg and
Zurich, respectively.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Notes of this series may be issued in the form of one or more Global
Securities to The Depository Trust Company as depositary for the Global
Securities of this series (the "Depositary") or its nominee and registered in
the name of the Depositary or such nominee.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
__________________________
13
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT - _____________ Custodian __________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
---------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
__________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
/_________________________/ ______________________________________
______________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
______________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ______
______________________________________________________________________________
attorney to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated: _____________ _____________________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
the within instrument in every particular, without
alteration or enlargement or any change whatever.
<PAGE>
EXHIBIT 4.30
[FACE OF SECURITY]
REGISTERED REGISTERED
No. FLR
CUSIP
PROVIDIAN FINANCIAL CORPORATION
MEDIUM-TERM NOTE, SERIES A
(Floating Rate)
(Subordinated)
[Insert if the Security is to be a Global Security - This Note is a
Global Security 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
Global Security is exchangeable for 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 such limited circumstances.
Unless this Certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) 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 such other name as
requested by an authorized representative of The Depository Trust Company and
any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.]
THE FOLLOWING SUMMARY OF TERMS IS SUBJECT TO THE INFORMATION SET FORTH
ON THE REVERSE HEREOF:
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE: INITIAL INTEREST RATE: MATURITY DATE:
<S> <C> <C>
SPECIFIED CURRENCY: OPTION TO ELECT PAYMENT IN U.S. AUTHORIZED DENOMINATIONS (only
[_] U.S. dollars DOLLARS (only applicable if Specified applicable if Specified Currency is other
[_] Other: Currency is other than U.S. dollars): than U.S. dollars):
[_] Yes [_] No
EXCHANGE RATE AGENT (if other than THIS NOTE IS A:
The First National Bank of Chicago): [_] Global Note
[_] Certificated Note (only applicable if
Specified Currency is other than U.S. dollars)
</TABLE>
1
<PAGE>
<TABLE>
<CAPTION>
INDEX MATURITY: INTEREST RATE BASIS OR BASES: SPREAD (plus or minus):
<S> <C> <C>
LIBOR SOURCE (only applicable if LIBOR SPREAD MULTIPLIER: INTEREST RESET DATES:
Interest Rate Basis):
[_] LIBOR Reuters
[_] LIBOR Telerate
LIBOR CURRENCY (only applicable if INTEREST PAYMENT PERIOD: INTEREST RESET PERIOD:
LIBOR Interest Rate Basis):
CMT SOURCE (only applicable if CMT
Interest Rate Basis)
CMT Maturity Index:
CMT Telerate Page:
MAXIMUM INTEREST RATE: MINIMUM INTEREST RATE: INTEREST PAYMENT DATES:
SPREAD/SPREAD MULTIPLIER RESET CONDITIONAL AUTOMATIC STATED MATURITY EXTENSION OPTION:
OPTION: EXTENSION OF STATED MATURITY
(RENEWAL)
[_] Yes [_] Yes [_] No
[_] No [_] Yes [_] No
OPTIONAL RESET DATES (only applicable RENEWAL PERIOD(S) AND FINAL EXTENSION PERIOD(S) and FINAL
if option to reset spread or spread MATURITY DATE (only applicable if MATURITY DATE (only applicable if option
multiplier): option to renew stated maturity). to extend stated maturity):
BASIS FOR SPREAD/SPREAD BASIS FOR INTEREST RATE DURING BASIS FOR SPREAD/SPREAD
MULTIPLIER RESET (only applicable RENEWAL PERIOD (only applicable if MULTIPLIER DURING EXTENSION
if option to reset spread or spread option to renew stated maturity). PERIOD (only applicable if option to extend
multiplier): stated maturity):
INTEREST RESET DATES: CALCULATION DATES: TERMS OF AMORTIZING NOTES:
INTEREST DETERMINATION DATES: CALCULATION AGENT (if other than Chase
Manhattan Bank and Trust Company,
National Association):
ORIGINAL ISSUE DISCOUNT NOTE: TOTAL AMOUNT OF OID: ISSUE PRICE (expressed as a percentage of
[_] Yes [_] No aggregate principal amount):
REDEMPTION DATE(S) (including any REDEMPTION PRICE(S): DEFAULT RATE:
applicable regular or special record
dates):
REPAYMENT DATE(S) (including any REPAYMENT PRICE(S):
applicable regular or special record
dates):
</TABLE>
2
<PAGE>
PROVIDIAN FINANCIAL CORPORATION, a corporation duly organized and
existing under the laws of Delaware (herein called the "Company," which term
includes any successor Person under the Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to [Insert if the Security
is to be a Certificated Security - ______________] [Insert if the Security is to
be a Global Security - Cede & Co., as nominee for The Depository Trust Company],
or registered assigns, the Principal Amount stated above on the Maturity Date
shown above, and to pay interest thereon from and including the Original Issue
Date shown above or, in the case of a Note issued upon registration of transfer
or exchange, from and including the most recent Interest Payment Date to which
interest has been paid or duly provided for, on the Interest Payment Dates set
forth above and on the Maturity Date, commencing on the first such Interest
Payment Date next succeeding the Original Issue Date, provided that if the
--------
Original Issue Date is after a Regular Record Date and before the Interest
Payment Date immediately following such Regular Record Date, interest payments
will commence on the second Interest Payment Date following the Original Issue
Date, at the rate per annum determined in accordance with the provisions on the
reverse hereof, depending on the Interest Rate Basis or Bases specified above,
until the principal hereof is paid or made available for payment and (to the
extent that the payment of such interest shall be legally enforceable) at the
Default Rate per annum specified above on any overdue principal and premium, if
any, and on any overdue installment of interest. If no Default Rate is
specified above, the Default Rate shall be the Interest Rate on this Note
specified above. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the fifteenth calendar day (whether or not such date is
a Business Day) next preceding each Interest Payment Date; provided, however,
-------- --------
that interest payable at the Maturity Date will be payable to the Person to whom
principal shall be payable. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either 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 for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Notes of this series not
less than 10 days prior to such Special Record Date, or be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes of this series may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture.
Unless otherwise specified on the face hereof, payments of principal
of (and premium, if any) and interest on this Note will be made in the
applicable Specified Currency, provided, however, that if this Note is
-------- --------
denominated in a Specified Currency other than United States dollars (a "Foreign
Currency Note") payments of principal of (and premium, if any) and interest
hereon will [insert if the Security is to be a Global Security - be made in
United States dollars unless the beneficial holder hereof gives notice to the
Depositary that it elects to receive payments in such Specified Currency. Upon
receipt of such notice, the Depositary will notify
3
<PAGE>
the Trustee of the portion of the payment to be made by the Trustee which is to
be made in the Specified Currency and the applicable wire transfer instructions.
In such event, the Trustee will pay the beneficial holder directly.] [insert if
the Security is to be a Certificated Security - nevertheless be made in United
States dollars if the Holder hereof elects to receive all payments in respect
hereof in United States dollars by delivery of a written request to the Trustee
on or prior to the applicable Regular Record Date or at least 15 days prior to
Maturity, as the case may be. Such election may be in writing (mailed or hand
delivered) or by cable, telex or other form of facsimile transmission. A Holder
of such a Note may elect to receive payment in United States dollars for all
principal (and premium, if any) and interest payments and need not file a
separate election for each payment. Such election will remain in effect until
revoked by written notice to the Trustee, but written notice of such revocation
must be received by the Trustee on or prior to the applicable Regular Record
Date or at least 15 days prior to Maturity, as the case may be.]
Payment of the principal of (and premium, if any) and interest on this
Note due at Maturity in United States dollars will be made in immediately
available funds, provided that this Note is presented to the Trustee in time for
--------
the Trustee to make such payment in accordance with its normal procedures.
[Insert if the Security is to be a Certificated Security - Payment of
the principal of (and premium, if any) and interest on this Note due at Maturity
in United States dollars will be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
in immediately available funds. Payment of interest (other than interest due at
Maturity) will be made by United States dollar check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register. Notwithstanding the foregoing, unless otherwise specified on the face
hereof, a holder of U.S. $10,000,000 or more in aggregate principal amount of
Notes of like tenor and terms shall be entitled to receive such payment of
interest in United States dollars by wire transfer of immediately available
funds to such account with a bank located in the United States as shall be
designated by such Person, but only if appropriate payment instructions have
been received in writing by the Trustee on or prior to the Regular Record Date.]
[Insert if the Security is to be a Global Security - Payment of the principal of
(and premium, if any) and interest (other than interest payable at Maturity) on
this Note in United States dollars will be made by transfer of immediately
available funds to the Depositary or its nominee.]
All payments of principal (and premium, if any) and interest in a
Specified Currency other than United States dollars will be made in the manner
set forth on the reverse hereof.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual
4
<PAGE>
signature of an authorized signatory, this Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
5
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: PROVIDIAN FINANCIAL CORPORATION
By:________________________________
Executive Vice President
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein referred to in
the within-mentioned Indenture.
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION,
as Trustee
By________________________________
Authorized Officer
6
<PAGE>
[BACK OF SECURITY]
PROVIDIAN FINANCIAL CORPORATION
MEDIUM-TERM NOTE, SERIES A
(Floating Rate)
(Subordinated)
This Note is one of a duly authorized issue of securities of the
Company (herein called the "Notes"), issued and to be issued in one or more
series under an Indenture dated as of May [ ], 1999, as supplemented from time
to time (herein called the "Indenture"), between the Company and Chase Manhattan
Bank and Trust Company, National Association, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the Notes
and of the terms upon which the Notes are, and are to be, authenticated and
delivered. This Note is one of the series designated on the face hereof. The
Notes of this series may be denominated in different currencies, bear different
dates, mature at different times and bear interest at different rates. The
Notes of this series may be issued from time to time in an aggregate principal
amount of up to $1,000,000,000 (including in such amount the offering price of
any such Notes sold at a discount), which amount may be increased if duly
authorized by the Company. All capitalized terms not defined herein shall have
the meanings given to them in the Indenture.
The United States dollar equivalent of Notes denominated in currencies
other than United States dollars (the "Market Exchange Rate") will be determined
by the Exchange Rate Agent on the basis of the noon buying rate for cable
transfers in The City of New York as determined by the Federal Reserve Bank of
New York for such currencies on the Business Day (as defined below) immediately
preceding the applicable issue dates.
The rate of interest on this Note will be reset daily, weekly,
monthly, quarterly, semi-annually or annually (each an "Interest Reset Date"),
as specified on the face hereof. Unless otherwise specified on the face hereof,
the Interest Reset Date will be, if this Note resets daily, each Business Day;
if this Note resets weekly (unless the Interest Rate Basis on this Note is the
Treasury Rate), the Wednesday of each week; if this Note resets weekly and the
Interest Rate Basis on this Note is the Treasury Rate, the Tuesday of each week;
if this Note resets monthly, the third Wednesday of each month; if this Note
resets quarterly, the third Wednesday of March, June, September and December; if
this Note resets semi-annually, the third Wednesday of two months of each year,
as specified on the face hereof; and if this Note resets annually, the third
Wednesday of one month of each year, as specified on the face hereof; provided,
--------
however, that the interest rate in effect from the date of issue to the first
- -------
Interest Reset Date will be the Initial Interest Rate specified on the face
hereof. If any Interest Reset Date would otherwise be a day that is not a
Business Day, the Interest Reset Date shall be postponed to the next day that is
a Business Day except that if (i) the rate of interest on this Note will be
determined in accordance with the provisions of the heading "Determination of
LIBOR" below and (ii) such Business Day is in the next succeeding calendar
month, such Interest Reset Date shall be the immediately preceding Business Day.
Subject to applicable provisions of law and except as specified herein or on the
face hereof, on each Interest Reset Date, the rate of interest
7
<PAGE>
on this Note shall be the rate determined in accordance with the provisions of
the applicable heading below.
Determination of CD Rate. Unless otherwise indicated on the face
------------------------
hereof, if the Interest Rate Basis on this Note is the CD Rate, the interest
rate with respect to this Note shall equal (i) the rate on such date for
negotiable U.S. dollar certificates of deposit having the Index Maturity
specified on the face hereof as published in H.15(519) (as defined below) under
the heading "CDs (Secondary Market)," or (ii) if not so published by 3:00 p.m.,
New York City time, on the Calculation Date pertaining to such CD Interest
Determination Date, the rate on such CD Interest Determination Date set forth in
H.15 Daily Update (as defined below) for the day in respect of certificates of
deposit having the Index Maturity specified on the face hereof under the caption
"CDs (Secondary Market)" or another recognized electronic source used for the
purpose of displaying the applicable rate, or (iii) if such rate is not
published either in H.15(519) or H.15 Daily Update or in another recognized
electronic source by 3:00 p.m., New York City time, on the Calculation Date, the
arithmetic mean (rounded, if necessary, to the nearest one-hundred-thousandth of
a percentage point, with five-millionths of a percentage point rounded upwards)
of the secondary market offered rates as of 10:00 a.m., New York City time, on
such CD Interest Determination Date of three leading nonbank dealers in
negotiable U.S. dollar certificates of deposit in The City of New York selected
by the Calculation Agent for negotiable certificates of deposit of major United
States money center banks (in the market for negotiable certificates of deposit)
with a remaining maturity closest to the Index Maturity specified on the face
hereof, adjusted by the addition or subtraction of the Spread, if any, specified
on the face hereof, and/or by multiplication by the Spread Multiplier, if any,
specified on the face hereof; provided, however, that if the dealers selected as
-------- --------
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the CD Rate will be the CD Rate then in effect on such CD Interest
Determination Date.
"H.15(519)" means the weekly statistical release designated as such,
or any successor publication, published by the Board of Governors of the Federal
Reserve System ("Federal Reserve Board").
"H.15 Daily Update" means the daily update of H.15(519), available
through the world-wide-web site of the Federal Reserve Board at
http://www.bog.frb.fed.us/releases/h15/update, or any successor site or
- ---------------------------------------------
publication.
Determination of CMT Rate. Unless otherwise indicated on the face
-------------------------
hereof, if the Interest Rate Basis on this Note is the CMT Rate, the interest
rate with respect to this Note shall equal the rate displayed on the Designated
CMT Telerate Page (as described below) under the caption ". . . Treasury
Constant Maturities . . . Federal Reserve Board Release H.15 . . . Mondays
Approximately 3:45 p.m.", under the column for the designated CMT Maturity Index
(as described below) for (i) if the Designated CMT Telerate Page is 7051, the
rate on such CMT Interest Determination Date, and (ii) if the Designated CMT
Telerate Page is 7052, the weekly or monthly average specified on the face
hereof for the week or the month, as applicable, ended immediately preceding the
week or the month, as applicable, in which the related CMT Interest
Determination Date occurs.
8
<PAGE>
"Designated CMT Telerate page" means the display on the Bridge
Telerate, Inc. (or any successor service) on the page designated on the face
hereof (or any other page as may replace such page on that service for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519)),
for the purpose of displaying Treasury Constant Maturities as reported in
H.15(519). If no such page is specified on the face hereof, the designated CMT
Telerate page will be 7052.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified in the applicable pricing supplement with respect to which the CMT
Rate will be calculated. If no such maturity is specified in the applicable
pricing supplement, the Designated CMT Maturity Index shall be 2 years.
The following procedures will be used if the CMT Rate cannot be
determined as described above:
(i) If such rate is no longer displayed on the relevant page, or is
not displayed by 3:00 p.m., New York City time, the Calculation Date pertaining
to such CMT Interest Determination Date, the CMT Rate will be such Treasury
Constant Maturity rate for the Designated CMT Maturity Index as published in the
relevant H.15(519).
(ii) If that rate is no longer published, or is not published by 3:00
p.m., New York City time, on the Calculation Date pertaining to such CMT
Interest Determination Date, the CMT Rate will be such Treasury Constant
Maturity rate for the designated CMT Maturity Index (or other United States
Treasury rate for the Designated CMT Maturity Index) for the CMT Interest
Determination Date with respect to such Interest Reset Date as may then be
published by either the Federal Reserve Board or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519).
(iii) If such information is not provided by 3:00 p.m., New York City
time, on the Calculation Date pertaining to such CMT Interest Determination
Date, the Calculation Agent will determine the CMT Rate to be a yield to
maturity, based on the arithmetic mean of the secondary market closing offer
side prices as of approximately 3:30 p.m., New York City time on the CMT
Interest Determination Date reported, according to their written records, by
three leading primary United States government securities dealers (each, a
reference dealer) in The City of New York selected by the Calculation Agent (as
described in the following sentence) for the most recently issued direct
noncallable fixed rate obligations of the United States (Treasury notes) with an
original maturity of approximately the Designated CMT Maturity Index and a
remaining term to maturity of not less than such Designated CMT Maturity Index
minus one year.
(iv) The Calculation Agent will select five reference dealers and
will eliminate the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of quality, one of the
lowest). If three or four (and not five) of such reference dealers are quoting
as described above, the CMT Rate will be based on the arithmetic mean of the
offer prices obtained and neither the highest nor the lowest of such quotes will
be eliminated.
9
<PAGE>
(v) If the calculation agent cannot obtain three such Treasury notes
quotations, the Calculation Agent will determine the CMT Rate to be a yield to
maturity based on the arithmetic mean of the secondary market offer side prices
as of approximately 3:30 p.m., New York City time, on the CMT Interest
Determination Date of three reference dealers in The City of New York (selected
using the same method described above), for Treasury notes with an original
maturity of the number of years that is the next highest to the Designated CMT
Maturity Index and a remaining term to maturity closest to the Designated CMT
Maturity Index and in an amount of at least $100,000,000.
(vi) If fewer than three reference dealers selected by the
Calculation Agent are quoting as described above, the CMT Rate will be the CMT
Rate in effect on such CMT Interest Determination Date.
(vii) If two Treasury notes with an original maturity as described in
clause (v) above have remaining terms to maturity equally close to the
Designated CMT Maturity Index, the quotes for the Treasury note with the shorter
remaining term to maturity will be used.
In each of the above cases the interest rate with respect to the Note
will be adjusted by the addition or subtraction of the spread, if any, specified
on the face hereof, and/or by multiplication by the Spread Multiplier, if any,
specified on the face hereof.
Determination of Commercial Paper Rate. Unless otherwise specified on
--------------------------------------
the face hereof, if the Interest Rate Basis on this Note is the Commercial Paper
Rate, the interest rate with respect to this Note shall equal (i) the Money
Market Yield (calculated as described below) on such Commercial Paper Interest
Determination Date (as defined below) of the rate for commercial paper having
the Index Maturity specified on the face hereof, as such rate is published in
H.15(519) under the heading "Commercial Paper--Nonfinancial," or (ii) if such
rate is not published prior to 3:00 p.m., New York City time, on the Calculation
Date pertaining to such Commercial Paper Interest Determination Date, the Money
Market Yield of the rate on such Commercial Paper Interest Determination Date
for commercial paper having the Index Maturity specified on the face hereof as
published in H.15 Daily Update under the heading "Commercial Paper --
Nonfinancial" or another recognized electronic source used for the purpose of
displaying the applicable rate, or (iii) if such rate is not published either in
H.15(519) or H.15 Daily Update or in another recognized electronic source by
3:00 p.m., New York City time, on such Calculation Date, the Money Market Yield
of the arithmetic mean (rounded, if necessary, to the nearest one-hundred-
thousandth of a percentage point, with five-millionths of a percentage point
rounded upwards) of the offered rates, as of 11:00 a.m., New York City time, on
such Commercial Paper Interest Determination Date of three leading dealers of
U.S. dollar commercial paper in The City of New York selected by the Calculation
Agent for commercial paper of the Index Maturity specified on the face hereof
placed for an industrial issuer whose bond rating is "Aa," or the equivalent,
from a nationally recognized statistical rating organization, adjusted in each
of the above cases by the addition or subtraction of the Spread, if any,
specified on the face hereof, and/or by multiplication by the Spread Multiplier,
if any, specified on the face hereof; provided, however, that if the dealers
-------- --------
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, the Commercial Paper Rate will be the Commercial Paper Rate then
in effect on such Commercial Paper Interest Determination Date.
10
<PAGE>
"Money Market Yield" shall be the yield (expressed as a
percentage rounded, if necessary, to the nearest one-hundred-thousandth of a
percentage point, with five-millionths of a percentage point rounded upwards)
calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100
---------------------
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper, quoted
on a bank discount basis and expressed as a decimal and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
Determination of Eleventh District Cost of Funds Rate. Unless
-----------------------------------------------------
otherwise indicated on the face hereof, if the Interest Rate Basis on this Note
is the Eleventh District Cost of Funds Rate, the interest rate with respect to
this Note shall equal the rate equal to the monthly weighted average cost of
funds for the calendar month immediately preceding the month in which such
Eleventh District Cost of Funds Interest Determination Date falls, as such rate
is displayed on Bridge Telerate, Inc., or any successor service, on page 7058,
or any other page as may replace such page on such service, under the heading
"Eleventh District" as of 11:00 a.m., San Francisco time, on such Eleventh
District Cost of Funds Interest Determination Date.
The following procedures will be followed if the Eleventh District
Cost of Funds Rate cannot be determined as described above:
(i) If the above rate is not published by 11:00 a.m., San Francisco
time, on the Calculation Date pertaining to the Eleventh District Cost of Funds
Interest Determination Date, the Eleventh District Cost of Funds Rate will be
the monthly weighted average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District that was most recently announced (the
"Index") by the Federal Home Loan Bank of San Francisco as such cost of funds
for the calendar month immediately preceding such Eleventh District Cost of
Funds Interest Determination Date.
(ii) If the Federal Home Loan Bank of San Francisco fails to announce
the Index on or prior to such Eleventh District Cost of Funds Interest
Determination Date for the calendar month immediately preceding such Eleventh
District Cost of Funds Interest Determination Date, the Eleventh District Cost
of Funds Rate will be the Eleventh District Cost of Funds Rate then in effect on
the Eleventh District Cost of Funds Interest Determination Date.
In each of the above cases the interest rate with respect to the Note
will be adjusted by the addition or subtraction of the spread, if any, specified
on the face hereof, and/or by multiplication by the Spread Multiplier, if any,
specified on the face hereof.
Determination of Federal Funds Rate. Unless otherwise specified on
-----------------------------------
the face hereof, if the Interest Rate Basis on this Note is the Federal Funds
Rate, the interest rate with respect to this Note shall equal (i) the rate on
such date for U.S. dollar federal funds as published in H.15(519) under the
heading "Federal Funds (Effective)," as such rate is displayed on Bridge
Telerate, Inc. (or any successor service) on page 120 (or any other page as may
replace such
11
<PAGE>
page on such service) or (ii) if not so published by 3:00 p.m., New York City
time, on the Calculation Date pertaining to such Federal Funds Interest
Determination Date, the rate on such Federal Funds Interest Determination Date
for U.S. dollar federal funds as published in H.15 Daily Update under the
heading "Federal Funds/(Effective)" or another recognized electronic source used
for the purpose of displaying the applicable rate, or (iii) if such rate is not
published either in H.15(519) or in H.15 Daily Update or another recognized
electronic source by 3:00 p.m., New York City time, on such Calculation Date,
the arithmetic mean (rounded, if necessary, to the nearest one-hundred-
thousandth of a percentage point, with five-millionths of a percentage point
rounded upwards) of the rates for the last transaction in overnight U.S. dollar
federal funds arranged by each of three leading brokers of U.S. dollar federal
funds transactions in The City of New York selected by the Calculation Agent
prior to 9:00 a.m., New York City time, on such Federal Funds Interest
Determination Date, in each of the above cases adjusted by the addition or
subtraction of the Spread, if any, specified on the face hereof, and/or by
multiplication by the Spread Multiplier, if any, specified on the face hereof;
provided, however, that if the brokers selected as aforesaid by the Calculation
- -------- --------
Agent are not quoting as mentioned in this sentence, the Federal Funds Rate will
be the Federal Funds Rate then in effect on such Federal Funds Interest
Determination Date.
Determination of LIBOR. Unless otherwise specified on the face
----------------------
hereof, if the Interest Rate Basis on this Note is LIBOR, the interest rate
payable with respect to this Note shall be determined in accordance with the
following provisions:
(i) With respect to any LIBOR Interest Determination Date (as defined
below), LIBOR will be either: (a) if "LIBOR Reuters" is specified on the face
hereof, the arithmetic mean (rounded, if necessary, to the nearest one-hundred-
thousandth of a percentage point, with five-millionths of a percentage point
rounded upwards) of the offered rates (unless the specified Designated LIBOR
Page by its terms provides only for a single rate, in which case such single
rate shall be used) for deposits in the LIBOR Currency (as defined below) having
the Index Maturity specified on the face hereof commencing on the second London
Business Day immediately following such LIBOR Interest Determination Date, that
appear on the Designated LIBOR Page (as defined below) as of 11:00 a.m., London
time, on such LIBOR Interest Determination Date, if at least two such offered
rates appear (unless, as aforesaid, only a single rate is required) on such
Designated LIBOR Page, or (b) if "LIBOR Telerate" is specified on the face
hereof, the rate for deposits in the LIBOR Currency having the Index Maturity
specified on the face hereof, commencing on the second London Business Day
immediately following such LIBOR Interest Determination Date, that appears on
such Designated LIBOR Page as of 11:00 a.m., London time, on such LIBOR Interest
Determination Date, adjusted in each case by the addition or subtraction of the
Spread, if any, specified on the face hereof, and/or by multiplication by the
Spread Multiplier, if any, specified on the face hereof. "LIBOR Currency" means
the currency specified on the face hereof as the currency for which LIBOR shall
be calculated. If no such currency is specified on the face hereof, the LIBOR
Currency shall be U.S. dollars. "Designated LIBOR Page" means either if "LIBOR
Reuters" is specified on the face hereof, the display on the Reuter Monitor
Money Rates Service, or any successor service on the page specified on the face
hereof (or any other page as may replace such page on such service), for the
purpose of displaying the London interbank rates of major banks for the
applicable LIBOR Currency, or if "LIBOR Telerate" is specified on the face
hereof or neither LIBOR Reuters nor LIBOR Telerate is specified on the face
hereof as the method for calculating
12
<PAGE>
LIBOR, the display on Bridge Telerate, Inc., or any successor service on the
page specified on the face hereof (or any other page as may replace such page on
such service), for the purpose of displaying the London interbank rates of major
banks for the applicable LIBOR Currency. If neither LIBOR Reuters nor LIBOR
Telerate is specified on the face hereof, LIBOR for the applicable LIBOR
Currency will be determined as if LIBOR Telerate had been specified. In the case
where (a) above applies, if fewer than two offered rates appear on the
Designated LIBOR Page, or in the case where (b) above applies, if no rate
appears on the Designated LIBOR Page, as applicable, LIBOR in respect of such
LIBOR Interest Determination Date will be determined as if the parties had
specified the rate described in (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which
fewer than two offered rates appear, unless the specified Designated LIBOR Page
by its terms provides only for a single rate, in which case such single rate
shall be used, (if "LIBOR Reuters" is specified on the face hereof) or no rate
appears (if "LIBOR Telerate" is specified on the face hereof), the Calculation
Agent will determine LIBOR in respect of such LIBOR Interest Determination Date
as follows: the Calculation Agent will request the principal London offices of
each of four major reference banks in the London interbank market, as selected
by the Calculation Agent, to provide the Calculation Agent with its offered
quotation for deposits in the LIBOR Currency for the period of the Index
Maturity specified on the face hereof, commencing on the second London Business
Day immediately following such LIBOR Interest Determination Date, to prime banks
in the London interbank market at approximately 11:00 a.m., London time, on such
LIBOR Interest Determination Date and in a principal amount that is
representative of a single transaction in such LIBOR Currency in such market at
such time, adjusted by the addition or subtraction of the Spread, if any,
specified on the face hereof, and/or by multiplication by the Spread Multiplier,
if any, specified on the face hereof and (a) if at least two such quotations are
provided, LIBOR determined on such LIBOR Interest Determination Date will be the
arithmetic mean (rounded, if necessary, to the nearest one-hundred-thousandth of
a percentage point, with five-millionths of a percentage point rounded upwards)
of such quotations, or (b) if fewer than two quotations are provided, LIBOR
determined on such LIBOR Interest Determination Date will be the arithmetic mean
(rounded, if necessary, to the nearest one-hundred-thousandth of a percentage
point, with five-millionths of a percentage point rounded upwards) of the rates
quoted at approximately 11:00 a.m. (or such other time specified on the face
hereof), in the applicable Financial Center (as defined below) for the country
of the LIBOR Currency on such LIBOR Interest Determination Date, by three major
banks in such Financial Center selected by the Calculation Agent for loans in
the LIBOR Currency to leading European banks, having the Index Maturity
specified on the face hereof and in a principal amount that is representative
for a single transaction in such LIBOR Currency in such market at such time, in
either case adjusted by the addition or subtraction of the Spread, if any,
specified on the face hereof, and/or by multiplication by the Spread Multiplier,
if any, specified on the face hereof; provided, however, that if the banks
-------- --------
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, LIBOR will be the LIBOR then in effect on such LIBOR Interest
Determination Date.
Determination of Prime Rate. Unless otherwise specified on the face
---------------------------
hereof, if the Interest Rate Basis on this Note is the Prime Rate, the interest
rate with respect to this Note shall equal (i) the rate set forth for the
relevant Prime Rate Interest Determination Date (as defined below) as published
in H.15(519) under the heading "Bank Prime Loan," or (ii) if such
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<PAGE>
rate is not published prior to 3:00 p.m., New York City time, on the Calculation
Date pertaining to such Prime Rate Interest Determination Date, the rate on such
Prime Rate Interest Determination Date as published in H.15 Daily Update
opposite the caption "Bank Prime Loan" or another recognized electronic source
used for the purpose of displaying the applicable rate, or (iii) if the rate is
not published prior to 3:00 p.m., New York City time, on such Calculation Date,
either in H.15(519) or H.15 Daily Update or in another recognized electronic
source, the arithmetic mean (rounded, if necessary, to the nearest one-hundred-
thousandth of a percentage point, with five-millionths of a percentage point
rounded upwards) of the rates of interest publicly announced by each bank that
appears on the Reuters Screen US PRIME 1 Page (as defined below) as such bank's
prime rate or base lending rate as of 11:00 a.m., New York City time, on such
Prime Rate Interest Determination Date, or (iv) if fewer than four such
quotations appear on the Reuters Screen US PRIME 1 Page for the Prime Rate
Interest Determination Date, the arithmetic mean (rounded, if necessary, to the
nearest one-hundred-thousandth of a percentage point, with five-millionths of a
percentage point rounded upwards) of the prime rates or base lending rates
quoted on the basis of the actual number of days in the year divided by a 360-
day year as of the close of business on such Prime Rate Interest Determination
Date by at least three major banks in The City of New York selected by the
Calculation Agent; provided, however, that if the banks or trust companies
-------- --------
selected as aforesaid are not quoting as mentioned in this sentence, the Prime
Rate will be the Prime Rate then in effect on such Prime Rate Interest
Determination Date. "Reuters Screen US PRIME 1 Page" means the display on the
Reuter Monitor Money Rates Service (or any successor service) on the "US PRIME
1" page (or such other page as may replace the US PRIME 1 page on that service)
for the purpose of displaying prime rates or base lending rates of major United
States banks.
Determination of Treasury Rate. Unless otherwise specified on the
------------------------------
face hereof, if the Interest Rate Basis on this Note is the Treasury Rate, the
interest rate payable with respect to this Note shall equal the rate for the
auction held on the related Treasury Interest Determination Date of direct
obligations of the United States ("Treasury bills") having the Index Maturity
specified on the face hereof as such rate appears on either page 56 or page 57
on the display on Bridge Telerate, Inc. (or such other page or pages as may
replace page 56 or page 57 on that service or such other successor service)
under the heading "INVESTMENT RATE" or, if not so published by 3:00 p.m., New
York City time, on the Calculation Date pertaining to such Treasury Interest
Determination Date, the Treasury Rate will be the Bond Equivalent Yield (as
defined below), rounded, if necessary, to the nearest one-hundred-thousandth of
a percentage point, with five-millionths of a percentage point rounded upwards,
on the basis of a year of 365 or 366 days as applicable, and applied on a daily
basis, of the rate for such Treasury bills as published in H.15 Daily Update, or
such other recognized electronic source used for the purpose of displaying such
rate, under the caption "U.S. Government Securities/Treasury Bills/Auction High"
or, if not so published by 3:00 p.m., New York City time, on the related
Calculation Date, the Bond Equivalent Yield of the auction rate of such Treasury
bills as announced by the United States Department of the Treasury, in either
case, adjusted by the addition or subtraction of the Spread, if any, specified
on the face hereof, or, by multiplication by the Spread Multiplier, if any,
specified on the face hereof. In the event that the results of the auction of
Treasury bills having the Index Maturity shown on the face hereof are not
published or reported as provided above by 3:00 p.m., New York City time, on
such Calculation Date or if no such auction is held on such Treasury Interest
Determination Date, then the Treasury Rate will be the rate (expressed as a Bond
Equivalent Yield, rounded, if necessary, to the nearest one-hundred-thousandth
of a
14
<PAGE>
percentage point, with five-millionths of a percentage point rounded upwards on
the basis of a year of 365 or 366 days as applicable, and applied on a daily
basis) on such Treasury Interest Determination Date of Treasury bills having the
Index Maturity specified on the face hereof as published in H.15(519) under the
caption "U.S. Government Securities/Treasury Bills/Secondary Market" or, if not
yet published by 3:00 p.m., New York City time, on such Calculation Date, the
rate (expressed as a Bond Equivalent Yield, rounded, if necessary, to the
nearest one-hundred-thousandth of a percentage point, with five-millionths of a
percentage point rounded upwards, on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) on such Treasury Interest
Determination Date of Treasury bills having the Index Maturity specified on the
face hereof as published in H.15 Daily Update under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market" or another recognized electronic
source used for the purpose of displaying the applicable rate. If such rate is
not yet published either in H.15(519) or H.15 Daily Update or in another
recognized electronic source, the Calculation Agent will determine the Treasury
Rate to be a yield to maturity (expressed as a Bond Equivalent Yield, rounded,
if necessary, to the nearest one-hundred-thousandth of a percentage point, with
five-millionths of a percentage point rounded upwards, on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) of the arithmetic
mean of the secondary market bid rates, as of approximately 3:30 p.m., New York
City time, on such Treasury Interest Determination Date, of three leading
primary United States government securities dealers selected by the Calculation
Agent, for the issue of Treasury bills with a remaining maturity closest to the
Index Maturity specified on the face hereof, adjusted by the addition or
subtraction of the Spread, if any, specified on the face hereof, and/or by
multiplication by the Spread Multiplier, if any, specified on the face hereof;
provided, however, that if the dealers selected as aforesaid by the Calculation
- -------- --------
Agent are not quoting as mentioned in this sentence, the Treasury Rate will be
the Treasury Rate then in effect on such Treasury Interest Determination Date.
"Bond Equivalent Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
Bond Equivalent Yield = D x N x 100
--------------------------
360 - (D x M)
where "D" refers to the applicable per annum rate for Treasury Bills quoted on a
bank discount basis, "N" refers to 365 or 366, as the case may be, and "M"
refers to the actual number of days in the interest period for which interest is
being calculated.
Indexed Notes. This Note may be issued with the principal amount
-------------
payable at Maturity and/or with interest payable hereon on an Interest Payment
Date to be determined by reference to the price or prices of specified
securities or commodities, securities or commodities exchange indices, the
relationship between two or more specified currencies or other factors (each an
"Indexed Note"), as shall be indicated above under "Other Terms." Specific
information pertaining to the method for determining the principal amount
payable at Maturity or the amount of interest to be paid on an Interest Payment
Date with reference to the specified index shall be included above under "Other
Terms."
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on
15
<PAGE>
the face hereof. The Calculation Agent shall calculate the interest rate on this
Note in accordance with the foregoing on or before each Calculation Date. The
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law as the same may be modified by United States law of
general applicability.
The Calculation Agent will, upon the request of the Holder of this
Note, provide to such Holder the interest rate hereon then in effect and, if
different, the interest rate which will become effective as a result of a
determination made on the most recent Interest Determination Date.
Unless otherwise indicated on the face hereof and except as provided
below, interest will be payable, in the case of Notes which reset daily, weekly
or monthly, on the third Wednesday of each month or on the third Wednesday of
March, June, September and December of each year, as indicated on the face
hereof; in the case of Notes which reset quarterly, on the third Wednesday of
March, June, September and December of each year; in the case of Notes which
reset semi-annually, on the third Wednesday of the two months of each year
specified on the face hereof; and in the case of Notes which reset annually, on
the third Wednesday of the month specified on the face hereof (each an "Interest
Payment Date"), and in each case, at Maturity. If any Interest Payment Date
specified on the face hereof would otherwise be a day that is not a Business
Day, the Interest Payment Date shall be postponed to the next day that is a
Business Day, except that if (i) the rate of interest on this Note shall be
determined in accordance with the provisions of the heading "Determination of
LIBOR" above, and (ii) such Business Day is in the next succeeding calendar
month, such Interest Payment Date shall be the immediately preceding Business
Day.
"Business Day" means (a) with respect to any Note, any day that is not
a Saturday or Sunday and that, in The City of New York, is not a day on which
banking institutions generally are authorized or obligated by law to close, (b)
if the Note is denominated in a Specified Currency other than United States
dollars, any day that is not a day on which banking institutions are authorized
or required by law to close in the Financial Center of the country issuing the
Specified Currency, and (c) if the rate of interest on this Note shall be
determined in accordance with the provisions of the heading "Determination of
LIBOR" above, a London Business Day. As used in the preceding sentence,
"Financial Center" means the capital city of the country issuing the Specified
Currency or the capital city of the country to which the LIBOR Currency relates,
as applicable, except that with respect to United States dollars, Australian
dollars, Canadian dollars, Deutsche marks, Dutch guilders, Euro, Italian lire,
Portuguese escudos, South African rand, and Swiss francs, the "Financial Center"
shall be The City of New York, Sydney and (solely in the case of the Specified
Currency) Melbourne, Toronto, Frankfurt, Amsterdam, London and Luxembourg,
Milan, London (solely in the case of the LIBOR Currency), Johannesburg and
Zurich, respectively. Unless otherwise specified on the face hereof, "London
Business Day" means any day which (i) if the LIBOR Currency is other than the
Euro, any day on which dealings in deposits in such LIBOR Currency are
transacted in the London interbank market or (ii) if the LIBOR Currency is the
Euro, any day on which the Trans-European Automated Real-Time Gross Settlement
Express Transfer (TARGET) System is open.
Unless otherwise specified on the face hereof, the Interest
Determination Date pertaining to an Interest Reset Date if the rate of interest
on this Note shall be determined in
16
<PAGE>
accordance with the provisions of the headings (a) "Determination of Commercial
Paper Rate" above (the "Commercial Paper Interest Determination Date"), (b)
"Determination of Federal Funds Rate" above (the "Federal Funds Interest
Determination Date"), (c) "Determination of CD Rate" above (the "CD Interest
Determination Date") (d) "Determination of Prime Rate" above (the "Prime Rate
Interest Determination Date") or (e) "Determination of CMT Rate" above (the "CMT
Interest Determination Date") will be the second Business Day preceding such
Interest Reset Date with respect to this Note. Unless otherwise specified on the
face hereof, the Interest Determination Date pertaining to an Interest Reset
Date if the rate of interest on this Note shall be determined in accordance with
the provisions of the heading "Determination of LIBOR" above (the "LIBOR
Interest Determination Date") will be the second London Business Day preceding
such Interest Reset Date unless the LIBOR Currency is British Pounds Sterling,
in which case the LIBOR Interest Determination Date will be the applicable
Interest Reset Date. Unless otherwise specified on the face hereof, the Interest
Determination Date pertaining to an Interest Reset Date if the rate of interest
on this Note shall be determined in accordance with the provisions of the
heading "Determination of Treasury Rate" above (the "Treasury Interest
Determination Date") will be the day of the week in which such Interest Reset
Date falls on which Treasury bills would normally be auctioned. Treasury bills
are usually sold at auction on Monday of each week, unless that day is a legal
holiday, in which case the auction is usually held on the following Tuesday,
except that such auction may be held on the preceding Friday. If, as the result
of a legal holiday, an auction is so held on the preceding Friday, such Friday
will be the Treasury Interest Determination Date pertaining to the Interest
Reset Date occurring in the next succeeding week. If an auction date shall fall
on any Interest Reset Date for a Treasury Rate Note, then such Interest Reset
Date shall instead be the first Business Day immediately following such auction
date. Unless otherwise specified on the face hereof, the Interest Determination
Date pertaining to an Interest Reset Date if the rate of interest on this Note
shall be determined in accordance with the provisions of the heading
"Determination of Eleventh District Cost of Funds Rate" above (the "Eleventh
District Cost of Funds Determination Date") will be the last Business Day of the
month immediately preceding the applicable Interest Reset Date in which the
Federal Home Loan Bank of San Francisco published the Index (as defined in such
heading).
Unless otherwise specified on the face hereof, the Calculation Date
pertaining to any Interest Determination Date, other than with respect to LIBOR
Notes, is the earlier of (i) the tenth day after such Interest Determination
Date or, if any such day is not a Business Day, the next succeeding Business
Day, or (ii) the Business Day preceding the applicable Interest Payment Date or
Maturity, as the case may be.
Unless otherwise specified on the face hereof, interest payments, if
any, will be the amount of interest accrued from and including the last date in
respect of which interest has been paid or duly provided for (or from and
including the Original Issue Date if no interest has been paid or provided for
with respect to this Note) to but excluding the Interest Payment Date or the
date of Maturity. Accrued interest hereon from the Original Issue Date or from
the last date to which interest hereon has been paid is calculated by
multiplying the face amount hereof by an accrued interest factor. Such accrued
interest factor is computed by adding the interest factor calculated for each
day from the Original Issue Date or from the last date to which interest shall
have been paid, to the date for which accrued interest is being calculated. The
interest factor (expressed as a decimal rounded, if necessary, to the nearest
one-hundred-thousandth of a
17
<PAGE>
percentage point, with five-millionths of a percentage point rounded upwards
(e.g., 9.876545% or .09876545 being rounded to 9.87655% or .0987655,
respectively)) for each such day shall be computed by dividing the interest rate
(expressed as a decimal rounded, if necessary, to the nearest one-hundred-
thousandth of a percentage point, with five-millionths of a percentage point
rounded upwards) applicable to such day by 360, in the case of the Commercial
Paper Rate, Eleventh District Cost of Funds Rate, Federal Funds Rate, Prime
Rate, CD Rate or LIBOR, or by the actual number of days in the year in the case
of the CMT Rate or Treasury Rate.
If the Company has the option with respect to this Note to reset the
Spread and/or Spread Multiplier, such option will be indicated on the face
hereof, together with (i) the date or dates on which such Spread and/or Spread
Multiplier may be reset (each an "Optional Reset Date") and (ii) the basis or
formula, if any, for such resetting. The Company may exercise such option by
notifying the Trustee of such exercise at least 45 but not more than 60 days
prior to an Optional Reset Date. Not later than 40 days prior to such Optional
Reset Date, the Trustee will mail to the Holder hereof a notice (the "Reset
Notice"), first class, postage prepaid, setting forth (i) the election of the
Company to reset the Spread and/or Spread Multiplier, (ii) such new Spread
and/or Spread Multiplier, and (iii) the provisions, if any, for redemption
during the period from such Optional Reset Date to the next Optional Reset Date
or, if there is no such next Optional Reset Date, to the Stated Maturity of this
Note (each such period a "Subsequent Interest Period"), including the date or
dates on which or the period or periods during which and the price or prices at
which such redemption may occur during such Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to an
Optional Reset Date, the Company may, at its option, revoke the Spread and/or
Spread Multiplier provided for in the Reset Notice and establish a higher Spread
and/or Spread Multiplier for the Subsequent Interest Period commencing on such
Optional Reset Date by mailing or causing the Trustee to mail notice of such
higher Spread and/or Spread Multiplier first class, postage prepaid, to the
Holder hereof. Such notice shall be irrevocable. If the Spread and/or Spread
Multiplier is reset on an Optional Reset Date this Note will bear such higher
Spread and/or Spread Multiplier.
If the Company elects to reset the Spread and/or Spread Multiplier of
this Note, the Holder hereof will have the option to elect repayment of this
Note by the Company on any Optional Reset Date at a price equal to the principal
amount hereof plus any accrued interest to such Optional Reset Date. In order
for this Note to be so repaid on an Optional Reset Date, the Holder hereof must
follow the procedures set forth below for optional repayment, except that the
period for delivery of this Note or notification to the Trustee shall be at
least 25 but not more than 35 days prior to such Optional Reset Date and except
that a Holder who has tendered this Note for repayment pursuant to a Reset
Notice may, by written notice to the Trustee, revoke any such tender for
repayment until the close of business on the tenth day prior to such Optional
Reset Date.
If the Company has the option to extend the Stated Maturity of this
Note for one or more periods (each an "Extension Period") up to but not beyond
the date (the "Final Maturity Date") set forth on the face hereof, such option
will be indicated on the face hereof together with the basis or formula, if any,
for setting the Spread and/or Spread Multiplier applicable to any such Extension
Period. The Company may exercise such option with respect to this Note by
notifying the Trustee of such exercise at least 45 but not more than 60 days
prior to the Stated
18
<PAGE>
Maturity in effect prior to the exercise of such option (the "Original Stated
Maturity"). No later than 40 days prior to the Original Stated Maturity, the
Trustee will mail to the Holder hereof a notice (the "Extension Notice")
relating to such Extension Period, first class, postage prepaid, setting forth
(i) the election of the Company to extend the Stated Maturity hereof, (ii) the
new Stated Maturity, (iii) the Spread and/or Spread Multiplier applicable to the
Extension Period, and (iv) the provisions, if any, for redemption during the
Extension Period, including the date or dates on which or the period or periods
during which and the price or prices at which such redemption may occur during
the Extension Period. Upon the mailing by the Trustee of an Extension Notice to
the Holder of this Note, the Stated Maturity of this Note shall be extended
automatically as set forth in the Extension Notice, and, except as modified by
the Extension Notice and as described in the next paragraph, this Note will have
the same terms as prior to the mailing of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days prior to the
Original Stated Maturity for this Note, the Company may, at its option, revoke
the Spread and/or Spread Multiplier provided for in the Extension Notice and
establish a higher Spread and/or Spread Multiplier for the Extension Period by
mailing or causing the Trustee to mail notice of such higher Spread and/or
Spread Multiplier first class, postage prepaid, to the Holder hereof. Such
notice shall be irrevocable. All Notes with respect to which the Stated
Maturity is extended will bear such higher Spread and/or Spread Multiplier for
the Extension Period.
If the Company elects to extend the Stated Maturity of this Note, the
Holder hereof will have the option to elect repayment of this Note by the
Company at the Original Stated Maturity at a price equal to the principal amount
hereof plus any accrued interest to such date. In order for this Note to be so
repaid on the Original Stated Maturity, the Holder hereof must follow the
procedures set forth below for optional repayment, except that the period for
delivery of this Note or notification to the Trustee shall be at least 25 but
not more than 35 days prior to the Original Stated Maturity and except that a
Holder who has tendered this Note for repayment pursuant to an Extension Notice
may, by written notice to the Trustee, revoke any such tender for repayment
until the close of business on the tenth day prior to the Original Stated
Maturity.
If the Company has provided for the conditional automatic extension of
the Stated Maturity of this Note for one or more periods (each a "Renewal
Period") up to but not beyond a date (the "Final Maturity Date") set forth on
the face hereof, such provision will be indicated on the face hereof together
with the basis or formula, if any, for setting the interest rate applicable to
any such Renewal Period. In such case this note is referred to herein, where
applicable, as a "Renewable Note."
The Renewable Note will mature on the initial Stated Maturity
specified on the face hereof, unless the Stated Maturity of all or any portion
of the principal amount thereof is extended in accordance with the procedures
described below. On the Interest Payment Dates specified on the face hereof
(each such Interest Payment Date, an "Election Date"), the Stated Maturity of
the Renewable Note will be extended to the Interest Payment Date occurring
twelve months after such Election Date, unless the Holder elects to terminate
the automatic extension of the Stated Maturity of the Renewable Note by
delivering a notice to such effect to the Trustee not less than nor more than
the number of days specified on the face hereof prior to such Election
19
<PAGE>
Date. Such option may be exercised with respect to less than the entire
principal amount of the Renewable Note; provided that the principal amount for
--------
which such option is not exercised is at least $1,000 or any larger amount that
is an integral multiple of $1,000. Notwithstanding the foregoing, the Stated
Maturity of the Renewable Note may not be extended beyond the Final Maturity
Date. If the Holder elects to terminate the automatic extension of the Stated
Maturity of any portion of the principal amount of the Renewable Note and such
election is not revoked as described below, such portion will become due and
payable on the Interest Payment Date falling six months (unless another period
is specified on the face hereof) after the Election Date prior to which the
holder made such election.
An election to terminate the automatic extension of the Stated
Maturity of the Renewable Note may be revoked by delivering a notice to such
effect to the Trustee on any day following the effective date of the election to
terminate the automatic extension of maturity of the Stated Maturity of the
Renewable Note and prior to the date 15 days before the date on which such
portion would otherwise mature. Such a revocation may be made for less than the
entire principal amount of the Renewable Note for which the automatic extension
of Stated Maturity has been terminated; provided that the principal amount of
--------
the Renewable Note for which the automatic extension of Stated Maturity has been
terminated and for which such a revocation has not been made is at least $1,000
or any larger amount that is an integral multiple of $1,000. Notwithstanding
the foregoing, a revocation may not be made during the period from and including
a Record Date to but excluding the immediately succeeding Interest Payment Date.
An election to terminate the automatic extension of the Stated
Maturity of the Renewable Note, if not revoked as described above by the Holder
making the election or any subsequent Holder, will be binding upon such
subsequent Holder.
The Renewable Note may be redeemed in whole or in part at the option
of the Company on or commencing with the date or dates specified on the face
hereof. The Renewable Note will be redeemed at the Redemption Price stated on
the face hereof, together with accrued and unpaid interest to the Redemption
Date.
Unless one or more Redemption Dates is specified on the face hereof,
this Note shall not be redeemable at the option of the Company before the
Maturity Date specified on the face hereof. If one or more Redemption Dates (or
ranges of Redemption Dates) is so specified, this Note is subject to redemption
on any such date (or during any such range) at the option of the Company, upon
notice by first-class mail, mailed not less than 30 days nor more than 60 days
prior to the Redemption Date specified in such notice, at the applicable
Redemption Price specified on the face hereof (expressed as a percentage of the
principal amount of this Note), together in the case of any such redemption with
accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is prior to the Redemption Date will be payable to the Holder of this
Note, or one or more Predecessor Notes, of record at the close of business on
the relevant Regular or Special Record Dates referred to on the face hereof, all
as provided in the Indenture. The Company may elect to redeem less than the
entire principal amount hereof, provided that the principal amount, if any, of
--------
this Note that remains outstanding after such redemption is an Authorized
Denomination as defined herein.
20
<PAGE>
Unless one or more Repayment Dates is specified on the face hereof,
this Note shall not be repayable at the option of the Holder on any date prior
to the Maturity Date specified on the face hereof. If one or more Repayment
Dates (or ranges of Repayment Dates) is so specified, this Note is subject to
repayment on any such date (or during any such range) at the option of the
Holder at the applicable Repayment Price specified on the face hereof (expressed
as a percentage of the principal amount of this Note), together in the case of
any such repayment with accrued interest to the Repayment Date, but interest
installments whose Stated Maturity is prior to the Repayment Date will be
payable to the Holder of this Note, or one or more Predecessor Notes, of record
at the close of business on the relevant Regular or Special Record Dates
referred to on the face hereof, all as provided in the Indenture. For this Note
to be repaid at the option of the Holder, the Trustee must receive at the
principal office of its Corporate Trust Department in San Francisco, California,
at least 30 days but not more than 45 days prior to the Repayment Date on which
this Note is to be repaid, this Note and a statement that the option to elect
repayment is being exercised thereby. Exercise of the repayment option by the
Holder shall be irrevocable except to the extent permitted in connection with an
interest rate reset or an extension or renewal of maturity, each as described
above. The repayment option with respect to this Note may be exercised by the
Holder for less than the entire principal amount hereof, provided that the
--------
principal amount, if any, of this Note that remains outstanding after such
repayment is an Authorized Denomination as defined herein.
[Insert if the Security is to be a Certificated Security - In the
event of redemption or repayment of this Note in part only, a new Note or Notes
of this series and of like tenor and for a principal amount equal to the
unredeemed or unrepaid portion will be delivered to the registered Holder upon
the cancellation hereof.]
[Insert if the Security is to be a Global Security - In the event of
redemption or repayment of this Note in part only, the principal amount shall be
reduced.]
If this is a Foreign Currency Note to be paid in United States
dollars, the United States dollar amount to be received in respect hereof will
be based upon the exchange rate as determined by the Exchange Rate Agent based
on the highest firm bid quotation for United States dollars received by such
Exchange Rate Agent at approximately 11:00 a.m., New York City time, on the
second Business Day preceding the applicable payment date from three recognized
foreign exchange dealers in The City of New York selected by the Exchange Rate
Agent and approved by the Company (one of which may be the Exchange Rate Agent)
for the purchase by the quoting dealer, for settlement on such payment date, of
the aggregate amount of the Specified Currency payable on such payment date in
respect of this Note. If no such bid quotations are available, payments will be
made in the Specified Currency, unless such Specified Currency is unavailable
due to the imposition of exchange controls or to other circumstances beyond the
Company's control, in which case the Company will make payments in respect
hereof in United States dollars as provided below. All currency exchange costs
will be borne by the Holder hereof by deductions from such payments.
If a Holder is to receive payments in a Specified Currency other than
United States dollars as described on the face hereof, payments of principal of
(and premium, if any) and interest will be paid in immediately available funds
by wire transfer to an account maintained by the Holder with a bank designated
by the Holder (which in the case of Global Securities will be
21
<PAGE>
the Depositary or its nominee) on or prior to the Regular Record Date or at
least 15 days prior to Maturity, as the case may be, provided that such bank has
--------
the appropriate facilities for such a payment in the Specified Currency,
provided, however, that with respect to payments of principal and premium, if
- -------- -------
any, and interest at Maturity this Note is presented to the Trustee in time for
the Trustee to make such payment in accordance with its normal procedures, which
shall require presentation no later than two Business Days prior to Maturity in
order to ensure the availability of immediately available funds in the Specified
Currency at Maturity.
If payment on this Note is required to be made in a Specified Currency
other than United States dollars and such currency is unavailable in the good
faith judgment of the Company due to the imposition of exchange controls or to
other circumstances beyond the Company's control, or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions of or within the international banking
community, then all payments with respect to this Note shall be made in United
States dollars until such currency is again available or so used. The amount so
payable on any date in such Specified Currency shall be converted into United
States dollars at a rate determined by the Exchange Rate Agent on the basis of
the Market Exchange Rate on the second Business Day prior to such payment, or,
if the Market Exchange Rate is not then available, the most recently available
Market Exchange Rate or as otherwise determined in good faith by the Company if
the foregoing is impracticable.
If this is a Foreign Currency Note, in the event of an official
redenomination of such foreign currency the obligations of the Company with
respect to payments on this Note denominated in such currency shall, in all
cases, be deemed immediately following such redenomination to provide for the
payment of that amount of redenominated currency representing the amount of such
obligations immediately before such redenomination. No adjustment will be made
to any amount payable under this Note as a result of any change in the value of
a foreign currency relative to any other currency due solely to fluctuations in
exchange rate.
The Notes shall be subordinated in right of payment to Senior
Indebtedness and creditors in respect of Designated Obligations as provided in
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 its behalf to take such actions as may be
necessary or appropriate to effectuate the subordination so provided and (c)
appoints the Trustee its attorney-in-fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Indebtedness and each creditor in respect of Designated
Obligations, whether now outstanding or hereafter incurred, and waives reliance
by each such holder upon said provisions.
If an Event of Default with respect to Notes of this series shall
occur and be continuing, the principal of the Notes of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Unless otherwise specified on the face hereof, if any Original Issue
Discount Note (as defined below) is redeemed by the Company or repaid at the
option of the Holder, each as described above, or if the principal of any
Original Issue Discount Note is declared to be due and payable immediately
pursuant to this paragraph,
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<PAGE>
the amount of principal due and payable with respect to this Note shall be
limited to the sum of the aggregate principal amount of this Note multiplied by
the Issue Price (expressed as a per-cent-age of the aggregate principal amount)
plus the original issue discount accrued from the date of issue to the date of
redemption, repayment or declaration, as applicable, which accrual shall be
calculated using the "interest method" (computed in accordance with generally
accepted accounting principles) in effect on the date of redemption, repayment
or declaration. Unless otherwise specified on the face hereof, an Original Issue
Discount Note is a Note which has a stated redemption price at maturity that
exceeds its Issue Price by at least 0.25% of the stated redemption price at
maturity, multiplied by the number of complete years from the Original Issue
Date to the Maturity Date for this Note.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than 66 2/3% in principal amount of the Notes at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Notes of each series at the time Outstanding, on behalf of the Holders of
all Notes of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not 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 times, places and rate, and in the coin or
currency, herein prescribed. However, the Indenture limits the Holder's right
to enforce the Indenture and this Note.
As provided in the Indenture and subject to certain limitations set
forth therein and as may be set forth on the face hereof, the transfer of this
Note is registrable in the Security Register, upon surrender of this Note for
registration of transfer at the office or agency of the Company in any place
where the principal of (and premium, if any) and interest on this Note are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Notes of this series of like tenor, of Authorized Denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
[Insert if the Security is a Global Security - This Note is a Global
Note and shall be exchangeable for Notes registered in the names of Persons
other than the Depositary with respect to this Global Note or its nominee only
if (A) such Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for this Global Note or at any time ceases to be a
clearing agency registered as such under the Securities Exchange Act of 1934, as
amended, (B) the Company in its discretion executes and delivers to the Trustee
a Company Order that this
23
<PAGE>
Global Note shall be exchangeable or (C) there shall have occurred and be
continuing an Event of Default with respect to the Notes. If this Global Note is
exchangeable pursuant to the preceding sentence, it shall be exchangeable for
Notes issuable in denominations of $1,000 and any integral multiple of $1,000 in
excess thereof, registered in such names as such Depositary shall direct.]
The Notes of this series are issuable, in the case of Notes
denominated in United States dollars, in denominations of U.S. $1,000 and any
integral multiple of U.S. $1,000 in excess thereof and, in the case of Notes
denominated in a Specified Currency other than United States dollars, in the
authorized denominations set forth on the face hereof (in each case, an
"Authorized Denomination"). As provided in the Indenture and subject to certain
limitations set forth therein and as may be set forth on the face hereof, Notes
of this series are exchangeable for a like aggregate principal amount of Notes
of this series of like tenor of a different Authorized Denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other govern-mental charge payable in connection therewith.
The Notes of this series may be issued in the form of one or more
Global Securities to The Depository Trust Company as depositary for the Global
Securities of this series (the "Depositary") or its nominee and registered in
the name of the Depositary or such nominee.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
______________________________
24
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in common
UNIF GIFT MIN ACT - _______________ Custodian ______________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
________________________________
(State)
Additional abbreviations may also be used though not in the above list.
________________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
/ /
___________________________________
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ___________________________attorney to transfer said Note on the
books of the Company, with full power of substitution in the premises.
__________________________________________
Dated: ________________ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within instrument in
every particular, without alteration or
enlargement or any change whatever.
25
<PAGE>
EXHIBIT 8.1
May 14, 1999
Providian Financial Corporation
201 Mission Street
San Francisco, CA 94105
Re: Providian Financial Corporation
Registration Statement on Form S-3
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form
S-3 (the "Registration Statement"), filed on June 3, 1998 with the Securities
and Exchange Commission in connection with the registration under the Securities
Act of 1933, as amended (the "Act"), of $2,000,000,000 aggregate principal
amount of Debt Securities of Providian Financial Corporation, a Delaware
corporation (the "Company"), and the Prospectus dated May 14 1999 and the
Prospectus Supplement dated May 14, 1999 (the "Prospectus Supplement") in the
form to be filed with the Commission pursuant to its Rule 424(b).
We have examined instruments, documents, and records that we deemed
relevant and necessary for the basis of our opinion hereinafter expressed.
Based on such examination, we are of the opinion that the information set forth
under the heading "Certain United States Federal Income Tax Consequences" in the
Prospectus Supplement correctly describes certain United States federal income
tax consequences of the ownership of the notes described therein of the date
hereof.
Our opinion is limited to the tax matters specifically covered under
the heading "Certain United States Federal Income Tax Consequences" in the
Prospectus Supplement, and we have not been asked to address, nor have we
addressed, any other tax matters.
We hereby consent to the reference to our name and our opinion under
the heading "Certain United States Federal Income Tax Consequences" in the
Prospectus Supplement and the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Orrick, Herrington & Sutcliffe LLP
ORRICK, HERRINGTON & SUTCLIFFE LLP
