EXHIBIT 4.11
FIRST AMENDMENT TO GUARANTEE AGREEMENT
by and among
PROVIDIAN FINANCIAL CORPORATION, as original Guarantor,
THE BANK OF NEW YORK, as Trustee,
and
NEW AMERICAN CAPITAL, INC., as successor Guarantor
Dated as of October 1, 2005
Guarantee Agreement
February 4, 1997
FIRST AMENDMENT TO GUARANTEE AGREEMENT
THIS FIRST AMENDMENT TO GUARANTEE AGREEMENT (this "AMENDMENT") is made as
of this 1st day of October, 2005, by and among Providian Financial Corporation,
a Delaware corporation, as original guarantor ("PROVIDIAN" or, before the
Effective Time, the "GUARANTOR"), New American Capital, Inc., a Delaware
corporation, as successor guarantor ("NEW AMERICAN" or, as of and after the
Effective Time, the "GUARANTOR"), and The Bank of New York, a New York banking
corporation, as trustee (the "GUARANTEE TRUSTEE").
WHEREAS, Providian and the Guarantee Trustee have entered into a Guarantee
Agreement, dated as of February 4, 1997 (the "GUARANTEE"), pursuant to which
Providian agreed to guarantee certain payments and distributions with respect to
$160,000,000 aggregate Liquidation Amount of the 9.525% Capital Securities,
Series A (Liquidation Amount $1,000 per capital security) of Providian Capital
I, a Delaware statutory business trust (the "CAPITAL SECURITIES");
WHEREAS, Providian, Washington Mutual, Inc. and New American, which is a
direct, wholly owned subsidiary of Washington Mutual, Inc., have entered into an
Agreement and Plan of Merger, dated as of June 5, 2005, as amended and
supplemented, that provides for the merger (the "MERGER") of Providian with and
into New American;
WHEREAS, the Merger will become effective as set forth in the certificate
of merger which shall be filed with the Secretary of State of Delaware on or
before the Closing Date, as defined in the Agreement and Plan of Merger (the
time and date when the Merger becomes effective is referred to herein as the
"EFFECTIVE TIME");
WHEREAS, at the Effective Time, the separate corporate existence of
Providian will cease and New American will continue as the surviving corporation
following the Merger; and
WHEREAS, this Amendment has been duly authorized by all necessary action on
the part of Providian and New American.
NOW, THEREFORE, in consideration of the premises set forth herein and other
good and valuable consideration, Providian, New American and the Guarantee
Trustee agree as follows for the equal and ratable benefit of the Holders:
ARTICLE I
DEFINITIONS; INTERPRETATION
1.1 Definitions. Capitalized terms that are defined in the preamble or the
recitals hereto shall have such meanings throughout this Amendment. Capitalized
terms used but not defined in this Amendment shall have the meanings assigned
thereto in the Guarantee. The term "Guarantee" as used herein means the
Guarantee, as amended and supplemented by this Amendment, or as otherwise
supplemented or amended from time to time by one or more amendments thereto or
hereto entered into pursuant to the applicable provisions of the Guarantee.
1.2 Interpretation. All of the covenants, agreements and provisions of this
Amendment shall be deemed to be and construed as part of the Guarantee to the
same effect as if fully set forth therein and shall be fully enforceable in the
manner provided in the Guarantee. Except as otherwise provided in this
Amendment, all of the covenants, agreements and provisions of the Guarantee
shall remain in full force and effect.
ARTICLE II
MERGER
2.1 Assumption by New American. New American, as the surviving corporation
of the Merger, shall become fully responsible as of the Effective Time, without
any further action, for the due and punctual performance and observance of all
of the covenants and conditions of the Guarantee to be kept or performed by the
Guarantor. Upon such assumption, New American shall succeed to and be
substituted for Providian with the same effect as if it had been named in the
Guarantee as the original guarantor, and Providian thereupon shall be relieved
of any further liability or obligation under the Guarantee. Upon and following
the Effective Time, the parties hereto agree that all references to the
"Guarantor" in the Guarantee shall be deemed references to New American, until a
successor replaces it pursuant to the applicable provisions of the Guarantee,
and thereafter the "Guarantor" shall mean such successor.
2.2 Notice Provision. Section 8.3(a) of the Guarantee, as of the Effective
Time, shall be amended so as to be the following address for the Guarantor: New
American Capital, Inc., c/o Washington Mutual, Inc., 0000 Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx 00000, Facsimile No.: (000) 000-0000; Attention: Secretary.
ARTICLE III
MISCELLANEOUS
3.1 Capital Securities Deemed Conformed. Beginning at the Effective Time,
the provisions of each Capital Security then outstanding shall be deemed to be
conformed, without the necessity for any reissuance or exchange of such Capital
Security or any other action on the part of the Holders, Providian, New American
or the Guarantee Trustee, so as to reflect this Amendment.
3.2 Successors. All agreements of Providian, New American and the Guarantee
Trustee in this Amendment and in the Guarantee shall bind their respective
successors.
3.3 Benefits of Amendment. Nothing in this Amendment, express or implied,
shall give to any person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Amendment or the Guarantee.
3.4 Separability. In case any provision in this Amendment, or in the
Guarantee, shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby, it being intended that all of the provisions hereof shall
be enforceable to the full extent permitted by law.
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3.5 Trustee Responsibility. The Guarantee Trustee assumes no duties,
responsibilities or liabilities by reason of this Amendment other than as set
forth in the Guarantee. The Guarantee Trustee assumes no responsibility for the
correctness of the statements herein contained, which shall be taken as
statements of Providian and New American. This Amendment is executed and
accepted by the Guarantee Trustee subject to all of the terms and conditions of
its acceptance of the trust under the Guarantee, as fully as if said terms and
conditions were herein set forth in full.
3.6 Headings. The Article and Section headings of this Amendment have been
inserted for convenience of reference only, are not to be considered a part of
this Amendment and shall in no way modify or restrict any of the terms or
provisions hereof.
3.7 Counterparts. This Amendment may be executed in counterparts, each of
which shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same instrument.
3.8 Governing Law. This Amendment shall be governed by and construed and
interpreted in accordance with the laws of the State of New York without regard
to the conflict of laws principles thereof.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
Guarantee Agreement to be duly executed, and their respective corporate seals to
be hereunto affixed and attested, all as of the day and year first above
written.
PROVIDIAN FINANCIAL CORPORATION,
as the Guarantor prior to the
Effective Time
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
NEW AMERICAN CAPITAL, INC., as the
Guarantor as of the Effective Time
By: /s/ Xxx X. Xxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxx
Title: Executive Vice President
THE BANK OF NEW YORK, as the
Guarantee Trustee
By: /s/ Van X. Xxxxx
------------------------------------
Name: Van X. Xxxxx
Title: Vice President
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