EXHIBIT 10.31
ISSUING AND PAYING AGENCY AGREEMENT
ISSUING AND PAYING AGENCY AGREEMENT dated as of February 20, 1998 (the
"Agreement"), between Providian National Bank (the "Bank") and The First
National Bank of Chicago, as issuing and paying agent (the "Issuing and Paying
Agent," which term shall also refer to any duly appointed successor thereto).
WITNESSETH:
Section 1. Appointment of Issuing and Paying Agent. The Bank proposes to
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issue from time to time its Senior and Subordinated Bank Notes (each, a "Bank
Note" and collectively, the "Bank Notes") in such amounts as may be duly
authorized by the Bank pursuant to the Distribution Agreement, dated February
20, 1998 (the "Distribution Agreement"), between the Bank and the agents named
therein (the "Agents").
Each Bank Note will be issued in book-entry form and will be represented by
a global certificate (each, a "Global Bank Note" and collectively, the "Global
Bank Notes") registered in the name of The Depository Trust Company, as
depository ("DTC," which term includes any successor thereof), or a nominee
thereof (which successor shall be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, if so required by applicable law)
(each beneficial interest in a Global Bank Note, a "Book-Entry Bank Note" and
collectively, the "Book-Entry Bank Notes").
The Bank hereby appoints the Issuing and Paying Agent to act, on the terms
and conditions specified herein, as issuing and paying agent for the Global Bank
Notes and as registrar, transfer agent and authenticating agent for the Global
Bank Notes and to perform such other responsibilities as are described herein
and in the Administrative Procedures attached as Annex II to the Distribution
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Agreement as such Administrative Procedures may be amended from time to time by
agreement of the Bank and the Agents with notice of such amendments to the
Issuing and Paying Agent, and the Issuing and Paying Agent hereby accepts such
appointments. The aggregate principal amount of the Global Bank Notes which may
be issued pursuant to this Agreement outstanding at any one time is unlimited.
The Issuing and Paying Agent shall exercise due care in the performance of
its obligations hereunder and shall perform such obligations in a manner
consistent with industry standards.
Section 2. Global Bank Note Forms; Terms; Execution.
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(i) The Global Bank Notes shall be substantially (i) in the form set
forth in Exhibit A-1 hereto if such Global Bank Note is a Senior Bank Note
(each, a "Senior Bank Note" and collectively, the "Senior Bank Notes") and bears
interest at a fixed rate of interest (each such Global Bank Note, a "Fixed Rate
Global Senior Bank Note" and collectively, the "Fixed Rate Global Senior Bank
Notes"), (ii) in the form of Exhibit A-2 hereto if such Global Bank Note is a
Senior Bank Note and bears interest at a floating rate of interest determined by
reference to an interest rate basis specified therein (each such Global Bank
Note, a "Floating Rate Global Senior Bank Note" and collectively, the "Floating
Rate Global Senior Bank Notes"), (iii) in the form of Exhibit A-3 hereto if such
Global Bank Note is a Subordinated Bank Note (each, a "Subordinated Bank Note"
and collectively, the "Subordinated Bank Notes") and bears interest at a fixed
rate of interest (each such Global Bank Note, a "Fixed Rate Global Subordinated
Bank Note" and collectively, the "Fixed Rate Global Subordinated Bank Notes"),
(iv) in the form of Exhibit A-4 hereto if such Global Bank Note is a
Subordinated Bank Note and bears interest at a floating rate of interest
determined by reference to an interest rate basis specified therein (each such
Global Bank Note, a "Floating Rate Global Subordinated Bank Note" and
collectively, the "Floating Rate Global Subordinated Bank Notes"), or (v) in
such other form as the Bank may from time to time designate.
(ii) Each Senior Bank Note issued by the Bank shall have a maturity of
7 days to 15 years from its original date of issue, and each Subordinated Bank
Note issued by the Bank shall have a maturity from five years to 15 years from
its original date of issue. The Bank Notes shall be issued in minimum
denominations of $250,000 and in integral multiples of $1,000 in excess thereof.
The interest rate borne by any particular Global Bank Note may vary from
the interest rates borne by any other Global Bank Notes. Any such variation
shall not affect the interest rate borne by any other Global Bank Notes
previously issued hereunder.
(iii) The Bank will from time to time deliver or cause to be
delivered to the Issuing and Paying Agent a supply of blank Global Bank Notes in
such quantities as the Bank shall determine, bearing consecutive control
numbers. Each Global Bank Note will have been executed by the manual or
facsimile signature of an Authorized Representative (as defined in Section 3
hereof) of the Bank. The Issuing and Paying Agent will acknowledge receipt of
the Global Bank Notes delivered to it and will hold such blank Global Bank Notes
in safekeeping in accordance with its customary practice and shall complete,
authenticate and deliver such Global Bank Notes in accordance with the
provisions hereof.
Section 3. Authorized Representatives. From time to time, the Bank will
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furnish the Issuing and Paying Agent with a certificate executed by an officer
of the Bank certifying the incumbency and specimen signatures of those officers
of the Bank authorized to execute Global Bank Notes on behalf of the Bank by
manual or facsimile signature and to give instructions and notices on behalf of
the Bank hereunder (the "Authorized Representatives"). Until the Issuing and
Paying Agent receives a subsequent certificate, the Issuing and Paying Agent
shall be entitled to rely on the last such certificate delivered to it for the
purposes of determining the identities of Authorized Representatives of the
Bank. Any Global Bank Note bearing the manual or facsimile signatures of
persons who are Authorized Representatives of the Bank on the date such
signatures are affixed shall bind the Bank after the completion, authentication
and delivery thereof by the Issuing and Paying Agent, notwithstanding that such
persons shall have ceased to hold office on the date such Global Bank Note is so
completed, authenticated and delivered by the Issuing and Paying Agent.
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Section 4. Issuance Instructions; Completion, Authentication and Delivery
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of Global Bank Notes.
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(i) All instructions regarding the completion, authentication and
delivery of Global Bank Notes shall be given by an Authorized Representative of
the Bank by telephone (confirmed in writing), by facsimile transmission or by
other acceptable written means by such Authorized Representative.
(ii) Upon receipt of the instructions described above, the Issuing and
Paying Agent shall cause to be withdrawn the necessary and applicable Global
Bank Notes from safekeeping and, in accordance with such instructions, shall:
(a) assign a CUSIP number (if then generally in use) and
complete each Global Bank Note;
(b) record each Global Bank Note in the applicable Bank Note
Register (as defined in Section 10 hereof);
(c) cause each Global Bank Note to be manually authenticated by
any one of the signatories of the Issuing and Paying Agent
duly authorized and designated by it for such purpose; and
(d) hold each Global Bank Note in safekeeping on behalf of the
registered holder thereof;
provided that instructions regarding the completion and
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authenti cation of a Global Bank Note, whether delivered by
facsimile transmission or by other written means, are
received by the Issuing and Paying Agent by 12:00 noon, New
York City time, on the Business Day immediately preceding
the date of settlement relating to such Global Bank Note (or
11:30 a.m., New York City time, on the date of settlement
relating to such Bank Note if the trade date and the date of
settlement relating to such Bank Note are the same day). As
used in this Agreement, the term "Business Day" shall mean
any day that is not a Saturday or Sunday and that is not a
day on which banking institutions in The City of New York or
the city in which the Bank is headquartered are authorized
or required by law, regulation or executive order to close,
and with respect to LIBOR Notes (as defined in the
applicable Floating Rate Global Bank Note) only, any day
that is also a London Business Day. As used in this
Agreement, "London Business Day" means any day on which
dealings in deposits in U.S. dollars are transacted in the
London interbank market.
Section 5. Reliance on Instructions; Request for Instructions. The
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Issuing and Paying Agent shall incur no liability to the Bank in acting
hereunder upon instructions contemplated hereby which the Issuing and Paying
Agent reasonably believed in good faith to have been given by an Authorized
Representative of the Bank. In the event a discrepancy exists between the
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instructions as originally received by the Issuing and Paying Agent and any
subsequent written confirmation thereof, such original instructions will be
deemed controlling if action has already been taken by the Issuing and Paying
Agent in good faith reliance on such instructions; provided that the Issuing and
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Paying Agent gives notice to the Bank of such discrepancy promptly upon the
receipt of such written confirmation.
Any application by the Issuing and Paying Agent for written instructions
from the Bank may, at the option of the Issuing and Paying Agent, set forth in
writing any action proposed to be taken or omitted by the Issuing and Paying
Agent under this Agreement and the date on and/or after which such action shall
be taken or such omission shall be effective. The Issuing and Paying Agent
shall not be liable for any action taken by, or omission of, the Issuing and
Paying Agent in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
three Business Days after the date any Authorized Representative of the Bank
actually receives such application, unless any such Authorized Representative
shall have consented in writing to any earlier date) unless prior to taking any
such action (or the effective date in the case of an omission), the Issuing and
Paying Agent shall have received written instructions in response to such
application specifying the action to be taken or omitted.
Section 6. The Bank's Representations and Warranties. Each instruction
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given to the Issuing and Paying Agent in accordance with Section 4 hereof shall
constitute a representation and warranty to the Issuing and Paying Agent by the
Bank that the issuance and delivery of the Global Bank Notes have been duly and
validly authorized by the Bank and that the Global Bank Notes, when completed
and authenticated pursuant hereto, will constitute the valid and legally binding
obligations of the Bank subject to applicable bankruptcy, liquidation,
insolvency, reorganization, moratorium and similar laws of general applicability
relating to, or affecting, creditors' rights and to general equity principles.
The Bank further warrants that it is free to enter into this Agreement and to
perform the terms hereof.
Section 7. Payments of Interest; Interest Payment Dates; Record Dates.
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Interest payments on Global Bank Notes with maturities of more than one year
will be made: (i) in the case of the Fixed Rate Global Senior Bank Notes and
Fixed Rate Global Subordinated Bank Notes (collectively, the "Fixed Rate Global
Bank Notes"), semi-annually on May 15 and November 15 of each year (unless
otherwise specified in any applicable Fixed Rate Global Bank Notes) and (ii) in
the case of Floating Rate Global Senior Bank Notes and Floating Rate Global
Subordinated Bank Notes (collectively, the "Floating Rate Global Bank Notes"),
on such dates as are specified therein (collectively, the "Interest Payment
Dates") and, in each case, at maturity or upon earlier redemption or repayment
if so indicated in the applicable Global Bank Note. All such interest payments
(other than interest due at maturity or upon earlier redemption or repayment)
will be made to the Holders (as defined in Section 10 hereof) in whose names
Fixed Rate Global Bank Notes are registered at the close of business on the May
1 or November 1 (unless otherwise specified in any applicable Fixed Rate Global
Bank Notes) (whether or not a Business Day) next preceding such Interest Payment
Dates and in whose names Floating Rate Global Bank Notes are registered at the
close of business on the fifteenth calendar day (whether or not a Business Day)
prior to each such Interest Payment Date (each such May 1, November 1 and
fifteenth calendar day, a "Record Date"). Notwithstanding the foregoing, if the
Original Issue Date of any Global Bank Note with a maturity of more than one
year occurs between a Record Date and the next succeeding Interest Payment Date,
the first payment of interest on any
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such Global Bank Note will be made on the second Interest Payment Date
succeeding the Original Issue Date (as defined in the Global Bank Notes).
Interest payments will be calculated and made in the manner provided in the
applicable Global Bank Note.
If the Bank does not deposit adequate funds pursuant to Section 9 hereof
with respect to the interest due on a Global Bank Note with a maturity of more
than one year on an Interest Payment Date, such interest will cease to be due to
the Holder of such Global Bank Note as of the close of business on the Record
Date relating to such Interest Payment Date and will be paid to the Holder of
such Global Bank Note as of the close of business on a special record date to be
fixed by the Issuing and Paying Agent when funds for the payment of such
interest have been deposited pursuant to Section 9 hereof. Notice of such
special record date shall be given by the Issuing and Paying Agent, at the
Bank's expense, to the registered Holder of such Global Bank Note not less than
10 calendar days prior to such special record date.
Interest payments on Fixed Rate Global Bank Notes with maturities of one
year or less will be made only upon maturity upon presentation and surrender of
the applicable Fixed Rate Global Bank Note (unless otherwise specified in the
applicable Fixed Rate Global Bank Note). Interest payments on Fixed Rate Global
Bank Notes with maturities of one year or less will be calculated in the manner
provided in the applicable Fixed Rate Global Bank Note. Interest payments on
Floating Rate Global Bank Notes with maturities of one year or less will be made
on the Interest Payment Dates specified in such Floating Rate Global Bank Note
and, in each case, at maturity or upon earlier redemption or repayment.
Interest payments on Floating Rate Global Bank Notes with maturities of one year
or less will be calculated in the manner provided in the applicable Floating
Rate Global Bank Note.
Section 8. Payment of Principal. The Issuing and Paying Agent will pay
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the Holder of each Global Bank Note the principal amount of each such Global
Bank Note, together with accrued interest and premium, if any, at maturity or
upon earlier redemption or repayment.
Section 9. Deposit of Funds. The total amount of any principal of,
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premium, if any, and interest due on Global Bank Notes on any Interest Payment
Date or any maturity date or date of redemption or repayment shall be paid by
the Bank to the Issuing and Paying Agent as of 1:00 p.m., New York City time, in
funds available for use by the Issuing and Paying Agent on such date. The Bank
will make such payment on such Global Bank Notes via Fedwire to an account
specified by the Issuing and Paying Agent. Upon receipt of funds from the Bank,
on such date or as soon as possible thereafter, the Issuing and Paying Agent
will pay by separate wire transfer (using message entry instructions in a form
previously specified by DTC) to an account previously specified by DTC, in funds
available for immediate use by DTC, each payment of principal of, premium, if
any, and interest due on a Global Bank Note on such date.
The Issuing and Paying Agent shall hold such amounts paid to it by the Bank
in trust for the Holders but shall, pending payment by it to the account
specified above, not be under any liability for interest on monies at any time
received by it pursuant to any of the terms of this Agreement or of the Global
Bank Notes, nor shall the Issuing and Paying Agent be required to invest such
monies.
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Section 10. Bank Note Registers; Registration, Transfer, Exchange; Persons
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Deemed Owners.
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(i) The Issuing and Paying Agent shall maintain at its offices the
Senior Note Register and Subordinated Note Register (together, the "Bank Note
Registers"). The Issuing and Paying Agent is hereby appointed as Registrar for
the purpose of registering each Global Bank Note and transfers of such Global
Bank Note as herein provided. The terms "Senior Note Register" and
"Subordinated Note Register" shall mean the definitive records in which shall be
recorded the names, addresses and taxpayer identifying numbers of the holders of
the Global Senior Bank Notes and Global Subordinated Bank Notes, respectively
(collectively, the "Holders"), the serial and CUSIP numbers of each such Global
Bank Note and the Original Issue Date thereof and details with respect to the
transfer and exchange of each Global Bank Note.
(ii) Upon surrender for registration of transfer of any Global Bank
Note at the offices of the Issuing and Paying Agent, the Bank shall execute, and
the Issuing and Paying Agent shall complete, authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Global Bank
Notes, of any authorized denominations and having identical terms and provisions
and for an equal aggregate principal amount.
(iii) At the option of the Holder of a Global Bank Note, such Global
Bank Note may be exchanged for other Global Bank Notes of any authorized
denominations of an equal aggregate principal amount and having identical terms
and provisions, upon surrender of the Global Bank Notes to be exchanged at the
designated offices of the Issuing and Paying Agent. Whenever any Global Bank
Notes are so surrendered for exchange, the Bank shall execute, and the Issuing
and Paying Agent shall complete, authenticate and deliver, the Global Bank Notes
which the Holder of the Global Bank Note making the exchange is entitled to
receive. Except as provided below, owners of beneficial interests in a Global
Bank Note representing Book-Entry Bank Notes will not be entitled to have such
Book-Entry Bank Notes registered in their names, will not receive or be entitled
to receive physical delivery of Bank Notes in certificated form and will not be
considered the owners or holders thereof under this Agreement. However, if DTC
notifies the Bank that it is unwilling or unable to continue as depositary or if
at any time DTC ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and a successor depositary is not appointed by
the Bank within 60 days, or the Bank in its sole discretion determines not to
have Book-Entry Bank Notes represented by one or more Global Bank Notes, then
Global Bank Notes representing Book-Entry Bank Notes may be exchanged in whole
for definitive Bank Notes in registered form, of like tenor and of an equal
aggregate principal amount, in minimum denominations of $250,000 and integral
multiples of $1,000 in excess thereof, upon surrender of the Global Bank Notes
to be exchanged at the offices of the Issuing and Paying Agent.
(iv) Notwithstanding the foregoing, the Issuing and Paying Agent shall
not register the transfer or exchange of (i) any Global Bank Note that has been
called for redemption in whole or in part, except the unredeemed portion of
Global Bank Notes being redeemed in part, (ii) any Global Bank Note during the
period beginning at the opening of business 15 days before the mailing of a
notice of such redemption and ending at the close of business on the day of such
mailing, or (iii) any Global Bank Note in violation of the legend contained on
the face of such Global Bank Note.
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(v) All Global Bank Notes issued upon any registration of transfer or
exchange of Global Bank Notes shall be the valid obligations of the Bank,
evidencing the same debt, and entitled to the same benefits as the Global Bank
Notes surrendered upon such registration of transfer or exchange.
(vi) Every Global Bank Note presented or surrendered for registration
of transfer or for exchange shall be duly endorsed, or be accompanied by a
written instrument of transfer with such evidence of due authorization and
guaranty of signature as may reasonably be required by the Issuing and Paying
Agent, in form satisfactory to the Issuing and Paying Agent, duly executed by
the Holder thereof or his attorney duly authorized in writing.
(vii) No service charge shall be made to a Holder of Global Bank
Notes for any transfer or exchange of Global Bank Notes, but the Bank may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith.
(viii) The Bank and the Issuing and Paying Agent, and any agent of
the Bank or the Issuing and Paying Agent may treat the Holder in whose name a
Global Bank Note is registered as the owner of such Global Bank Note for all
purposes, whether or not such Global Bank Note be overdue, and neither the Bank,
the Issuing and Paying Agent nor any such agent shall be affected by notice to
the contrary except as required by applicable law.
Section 11. Mutilated, Destroyed, Lost, or Stolen Global Bank Notes. In
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case any Global Bank Note shall at any time become mutilated, destroyed, lost or
stolen, and such Global Bank Note or evidence of the loss, theft or destruction
thereof satisfactory to the Bank and the Issuing and Paying Agent (together with
indemnity hereinafter referred to and such other documents or proof as may be
required by the Bank and the Issuing and Paying Agent) shall be delivered to the
Issuing and Paying Agent, the Bank shall execute a new Global Bank Note, of like
tenor and principal amount, having a serial number not contemporaneously
outstanding, in exchange and substitution for the mutilated Global Bank Note or
in lieu of the Global Bank Note destroyed, lost or stolen but, in the case of
any destroyed, lost or stolen Global Bank Note, only upon receipt of evidence
satisfactory to the Issuing and Paying Agent and the Bank that such Global Bank
Note was destroyed, stolen or lost, and, if required, upon receipt of indemnity
satisfactory to each of them. The Issuing and Paying Agent shall authenticate
any such substituted Global Bank Note and deliver the same upon the written
request or authorization of any Authorized Representative of the Bank. Upon the
issuance of any substituted Global Bank Note, the Bank and the Issuing and
Paying Agent may require the payment of a sum sufficient to cover all expenses
and reasonable charges connected with the preparation, authentication and
delivery of a new Global Bank Note. If any Global Bank Note which has matured
or has been redeemed or repaid or is about to mature or to be redeemed or repaid
shall become mutilated, destroyed, lost or stolen, the Bank may, instead of
issuing a substitute Global Bank Note, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Global Bank Note)
upon compliance by the Holder with the provisions of this Section.
Section 12. Cancellation. All Global Bank Notes surrendered for payment,
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registration of transfer or exchange shall, if surrendered to any person other
than the Issuing and Paying Agent, be delivered to the Issuing and Paying Agent
and shall be promptly cancelled by it. The Bank may at any time deliver to the
Issuing and Paying Agent for cancellation any Global Bank
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Notes previously authenticated and delivered hereunder which the Bank may have
acquired in any manner whatsoever, and all Global Bank Notes so delivered shall
be promptly cancelled by the Issuing and Paying Agent. No Global Bank Note
shall be authenticated in lieu of or in exchange for any Global Bank Note
cancelled as provided in this Section, except as expressly permitted by this
Agreement. All cancelled Global Bank Notes held by the Issuing and Paying Agent
shall be returned to the Bank.
Section 13. Redemption of Global Bank Notes.
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(i) If any Global Bank Notes are to be redeemed prior to maturity, the
Bank shall notify the Issuing and Paying Agent not more than 60 nor less than 45
calendar days prior to the date fixed by the Bank for such redemption (the
"Redemption Date") of the Bank's election to redeem such Global Bank Notes in
whole or in part in increments of $1,000 (provided that any remaining principal
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amount of such Global Bank Notes shall be at least $250,000). Unless otherwise
specified in the applicable Global Bank Note, redemption of a Subordinated Bank
Note by the Bank prior to maturity is subject to the prior written approval of
the Comptroller of the Currency of the United States (the "Comptroller").
(ii) Whenever less than all the Global Bank Notes at any time
outstanding are to be redeemed, the terms of the Global Bank Notes to be so
redeemed shall be selected by the Bank. If less than all the Global Bank Notes
with identical terms at any time outstanding are to be redeemed, the Global Bank
Notes to be so redeemed shall be selected by the Issuing and Paying Agent by lot
or in any usual manner approved by it. The Issuing and Paying Agent shall
promptly notify the Bank in writing of the Global Bank Notes selected for
redemption and, in the case of Global Bank Notes selected for partial
redemption, the principal amount thereof to be redeemed.
(iii) Unless otherwise specified in the applicable Global Bank Note,
notice of redemption shall be given by the Issuing and Paying Agent, at the
Bank's expense, by first-class mail, postage prepaid, mailed not more than 60
nor less than 30 calendar days prior to the Redemption Date, to each Holder of
such Global Bank Note to be redeemed, at its address appearing in the applicable
Bank Note Register. All notices of redemption shall identify the Global Bank
Notes to be redeemed (including CUSIP number) and shall state: (i) the
Redemption Date; (ii) the redemption price, which shall be determined in
accordance with the terms of the Global Bank Note (the "Redemption Price"),
(iii) if less than all of the Global Bank Notes at any time outstanding are to
be redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Global Bank Notes to be redeemed; (iv) that
on the Redemption Date the Redemption Price plus accrued interest, if any, to
the Redemption Date will become due and payable with respect to each Global Bank
Note to be redeemed and that interest thereon will cease to accrue on and after
said date; and (v) the place or places where such Global Bank Notes are to be
surrendered for payment.
(iv) Notice of redemption having been given as described above, the
Global Bank Notes so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price, and from and after such date such Global
Bank Notes shall cease to bear interest. The Bank shall deposit funds with the
Issuing and Paying Agent prior to the Redemption Date which are sufficient to
redeem such Global Bank Notes which are scheduled to be so redeemed. Upon
surrender of any such Global Bank Notes for redemption in
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accordance with such notice, the Issuing and Paying Agent shall pay such Global
Bank Notes at the Redemption Price, together with unpaid interest accrued on
such Global Bank Notes at the applicable rate borne by such Global Bank Notes to
the Redemption Date.
(v) Any Global Bank Note which is to be redeemed only in part shall be
surrendered to the Issuing and Paying Agent, and the Issuing and Paying Agent
shall complete, authenticate and deliver to the Holder of such Global Bank Note,
without service charge, a new Global Bank Note or Global Bank Notes, of any
authorized denomination as requested by such Holder (which shall be $250,000 or
an integral multiple of $1,000 in excess thereof), in an aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Global Bank Note so surrendered.
(vi) The Bank, in issuing the Global Bank Notes, may use "CUSIP"
numbers (if then generally in use) and, if so, the Issuing and Paying Agent
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided, however, that any such notice may state that no representation is made
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as to the correctness of such numbers either as printed on the Global Bank Notes
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Global Bank Notes, and
any such redemption shall not be affected by any defect in or omission of such
numbers.
Section 14. Repayment of Global Bank Notes.
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(i) In order for any Global Bank Note to be repaid in whole or in part
at the option of the Holder thereof, such Global Bank Note must be delivered by
the Holder thereof, with the form entitled "Option to Elect Repayment" (set
forth in such Global Bank Note) duly completed, to the Issuing and Paying Agent
at its offices located at the address set forth in Section 21 hereof, or such
other place or places of which the Bank shall from time to time notify the
Holders of the Global Bank Notes, not more than 60 nor less than 30 calendar
days prior to any date fixed for such repayment of such Global Bank Notes (the
"Optional Repayment Date"). Unless otherwise specified in the applicable Global
Bank Note, a Subordinated Bank Note may not be repaid prior to maturity without
the prior written approval of the Comptroller.
(ii) Upon surrender of any Global Bank Note for repayment in
accordance with the provisions set forth above, the Global Bank Note to be
repaid shall, on the Optional Repayment Date, become due and payable, and the
Issuing and Paying Agent shall pay such Global Bank Note on the Optional
Repayment Date at a price equal to 100% of the principal amount thereof,
together with accrued interest to the Optional Repayment Date.
(iii) If less than the entire principal amount of any Global Bank
Note is to be repaid, the Holder thereof shall specify the portion thereof
(which shall be in increments of $1,000) which such Holder elects to have repaid
and shall surrender such Global Bank Note to the Issuing and Paying Agent, and
the Issuing and Paying Agent shall complete, authenticate and deliver to the
Holder of such Global Bank Note, without service charge, a new Global Bank Note
or Global Bank Notes in an aggregate principal amount equal to and in exchange
for the unrepaid portion of the principal of the Global Bank Note so surrendered
and in such denominations as shall be specified by such Holder (which shall be
$250,000 or an integral multiple of $1,000 in excess thereof).
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Section 15. Acceleration of Maturity. If an Event of Default (as defined
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in the applicable Global Bank Note) with respect to a Senior Bank Note or
Subordinated Bank Note, as the case may be, issued by the Bank shall occur and
be continuing, then the Holder of the applicable Senior Bank Note or
Subordinated Bank Note may declare the principal amount of, and accrued interest
and premium, if any, on such Senior Bank Note or Subordinated Bank Note due and
payable by written notice to the Bank; provided, however, that no accelerated
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payment may be made on a Subordinated Bank Note without the prior written
approval of the Comptroller. Upon such declaration and notice, and subject to
the foregoing proviso, such principal amount, accrued interest and premium, if
any, shall become immediately due and payable. The Bank shall promptly notify,
and provide copies of any such notice to, the Issuing and Paying Agent, and the
Issuing and Paying Agent shall promptly mail by first-class mail, postage
prepaid, copies of such notice to the Holders of the Senior Bank Notes or the
Subordinated Bank Notes, as the case may be, upon the occurrence of an Event of
Default or of the curing or waiver of an Event of Default. Any Event of Default
with respect to a Bank Note may be waived by the Holder thereof.
Section 16. Application of Funds; Return of Unclaimed Funds. Any monies
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paid by the Bank and held by the Issuing and Paying Agent in trust for payment
of principal of, premium, if any, or interest on, any Global Bank Notes that
remain unclaimed for two years following the date on which such principal,
premium or interest shall have become due and payable shall be returned to the
Bank by the Issuing and Paying Agent and the Issuing and Paying Agent shall
inform the Bank as to the specific Global Bank Notes to which such monies
related, and any Holder shall thereafter look, as an unsecured general creditor,
only to the Bank for the payment thereof and all liability of the Issuing and
Paying Agent with respect to such trust monies shall thereupon cease. Any funds
deposited by the Bank with the Issuing and Paying Agent for the payment of
principal of, premium, if any, or interest on, any Bank Note shall be held in
trust on behalf of the Bank by the Issuing and Paying Agent for the payment of
principal of, premium, if any, or interest on, any Bank Note until paid or
returned to the Bank.
Section 17. Cancellation of Unissued Notes. Upon the written request of
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the Bank, the Issuing and Paying Agent promptly shall cancel and return to the
Bank all unissued Bank Notes in its possession.
Section 18. Liability. Neither the Issuing and Paying Agent nor its
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directors, officers, employees or agents shall be liable to the Bank for any act
or omission hereunder except in the case of gross negligence, bad faith or
willful misconduct. The duties and obligations of the Issuing and Paying Agent,
its directors, officers and employees shall be determined by the express
provisions of this Agreement and no implied covenants shall be read into this
Agreement against any of them. Notwithstanding any other provision elsewhere
contained in this Agreement, the Issuing and Paying Agent is acting solely as
agent of the Bank and does not assume any obligation or relationship of trust or
agency for or with any Holders. Neither the Issuing and Paying Agent nor any of
its directors, officers or employees shall be required to ascertain whether any
issuance or sale of Bank Notes (or any amendment or termination of this
Agreement) has been duly authorized (provided that the Issuing and Paying Agent
--------
in good faith has determined that the facsimile or manual signature of the
Authorized Representative or any person who has been designated by the
Authorized Representative in writing to the Issuing and Paying Agent reasonably
resembles the specimen signatures filed with the Issuing and Paying Agent) or is
in compliance with any other agreement to which the Bank is a party (whether or
not the Issuing and Paying Agent is also a party to such other agreement), and
the Issuing and
10
Paying Agent and each of its officers and employees shall be entitled to rely
upon any instructions reasonably believed (in accordance with Section 3 hereof)
by the Issuing and Paying Agent and its officers and employees to be given on
behalf of the Bank by an Authorized Representative or by any person who has been
designated by an Authorized Representative in writing to the Issuing and Paying
Agent as a person authorized to give such instructions hereunder, whether or not
in fact given by the Authorized Representative or such designated person.
The Issuing and Paying Agent 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 Issuing and Paying Agent shall not be responsible
for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder, provided that the use of any such agent or
--------
attorney shall be subject to the approval of the Bank which approval shall not
be unreasonably withheld. The Issuing and Paying Agent may consult with counsel
of its selection (and shall give the Bank notice before consulting with any
outside counsel whose legal fees are subject to reimbursement by the Bank
pursuant to Section 20 hereof), and the 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 in
accordance with and in reliance thereon. The Issuing and Paying Agent shall not
be liable for any action taken, suffered, or omitted to be taken by it in good
faith and reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Agreement.
Section 19. Indemnification, Risk of Funds. The Bank shall indemnify and
------------------------------
hold harmless the Issuing and Paying Agent, its directors, officers, employees
and agents from and against all actions, claims, losses, damages, liabilities,
losses and expenses (including reasonable legal fees and expenses) relating to
or arising out of their actions or inactions taken or omitted to be taken by the
Issuing and Paying Agent in good faith in connection with its performance under
this Agreement including, but not limited to, any actions taken or omitted upon
instructions by the Bank (in accordance with Section 3 hereof) or the issuance,
delivery, payment or non-payment of any Bank Note or interest thereon, or other
receipt or other funds for the payment of the Bank Notes or interest or premium
thereon; provided, however, that the Issuing and Paying Agent shall be liable
-------- -------
for any liabilities, losses, claims, damages, costs and expenses (including
reasonable legal fees and expenses) caused by the gross negligence, bad faith or
willful misconduct of the Issuing and Paying Agent or its directors, officers,
employees or agents. This indemnity shall survive the termination of this
Agreement.
No provision of this Agreement shall require the Issuing and Paying Agent
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 hereunder, 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.
Section 20. Compensation of the Issuing and Paying Agent. The Bank agrees
--------------------------------------------
to pay the compensation of the Issuing and Paying Agent, at such rates as shall
be mutually agreed upon in writing between the Bank and the Issuing and Paying
Agent from time to time. The Bank shall reimburse upon demand the Issuing and
Paying Agent for all reasonable out-of-pocket expenses (including reasonable
legal fees and expenses), disbursements and advances incurred or made by the
Issuing and Paying Agent with respect to the Bank in accordance with any
11
provisions of this Agreement, except any such expense, disbursement or advance
proven to be attributable to the breach of this Agreement or the gross
negligence, bad faith or willful misconduct of such Issuing and Paying Agent,
upon receipt of such invoices as the Bank may reasonably require. The
provisions of this Section shall survive the termination of this Agreement.
Section 21. Notices.
-------
(i) All communications by or on behalf of the Bank relating to the
issuance, transfer, exchange or payment of Bank Notes or interest thereon shall
be directed to the offices of the Issuing and Paying Agent located at Xxx Xxxxx
Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Telecopy: (000) 000-0000,
Attention: Corporate Trust Administration, or to such other offices as the
Issuing and Paying Agent shall specify in writing to the Bank. The Bank will
send all Global Bank Notes to be completed and delivered by the Issuing and
Paying Agent to such offices or such other offices as the Issuing and Paying
Agent shall specify in writing to the Bank.
(ii) All other notices and communications hereunder shall be in
writing and shall be addressed as follows:
(a) if to the Bank:
Providian National Bank
c/o Providian Financial Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Treasurer
Telecopy: (000) 000-0000
(b) if to the Issuing and Paying Agent:
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Telecopy: (000) 000-0000
Section 22. Resignation or Removal of Issuing and Paying Agent and
------------------------------------------------------
Appointment of Successor Issuing and Paying Agent; Merger, Conversion and
-------------------------------------------------------------------------
Consolidation. The Bank agrees, for the benefit of the Holders from time to
-------------
time of the Bank Notes, that there shall at all times be an Issuing and Paying
Agent hereunder which shall be a bank or trust company organized and doing
business under the laws of the United States or any state thereof authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least $10,000,000 and subject to supervision and examination
by federal or state authority, until all the Global Bank Notes authenticated and
delivered hereunder (A) shall have been delivered to the Issuing and Paying
Agent for cancellation or (B) shall have become due and payable and funds
sufficient to pay the principal of, premium, if any, and interest on, the Global
Bank Notes shall have been made available for payment and either paid or
returned to the Bank, whichever
12
event occurs earlier. The foregoing capital and surplus requirements shall not
be applicable if the Bank or an affiliate of the Bank is appointed as successor
Issuing and Paying Agent.
The Issuing and Paying Agent may resign at any time as such agent upon
written notice to the Bank of such intention on its part, specifying the date on
which its desired resignation shall become effective; provided, however, that
-------- -------
such date shall be not less than 90 calendar days after the giving of such
notice by the Issuing and Paying Agent to the Bank. The Issuing and Paying
Agent may be removed at any time as such agent by the filing with it of an
instrument in writing signed by a duly authorized officer of the Bank (unless
the Bank is the Issuing and Paying Agent) and specifying such removal and the
date, which shall be at least 30 calendar days following receipt of such written
notice, upon which it is intended to become effective. Any such resignation or
removal shall take effect on the date of the appointment by the Bank (unless the
Bank is the Issuing and Paying Agent) of a successor Issuing and Paying Agent
and the acceptance of such appointment by such successor Issuing and Paying
Agent that qualifies as such under the first paragraph of this Section. In the
event of the resignation or removal of the Issuing and Paying Agent, if a
successor Issuing and Paying Agent has not been appointed by the Bank within 90
calendar days after the giving of notice of resignation or within 30 calendar
days after receipt of notice of removal, the Issuing and Paying Agent may, at
the expense of the Bank, petition any court of competent jurisdiction for
appointment of a successor Issuing and Paying Agent. Upon any such resignation
or removal, the Issuing and Paying Agent shall transfer to the successor Issuing
and Paying Agent (or, if none shall have been appointed, to the Bank) all monies
held by the Issuing and Paying Agent on behalf of the Bank in respect of any
Global Bank Notes, any unissued Global Bank Notes and all books and records or
copies thereof related to Global Bank Notes maintained by the Issuing and Paying
Agent, including copies of the Bank Note Registers. Any resignation or removal
hereunder shall not affect the Issuing and Paying Agent's rights to the payment
of fees earned or charges incurred through the effective date of such
resignation or removal or the Issuing and Paying Agent's rights to receive any
indemnification payments pursuant to Section 19 hereof.
Any corporation or bank into which the Issuing and Paying Agent hereunder
may be merged or consolidated, or any corporation or bank resulting from any
merger or consolidation to which the Issuing and Paying Agent shall be a party,
or any corporation or bank to which the Issuing and Paying Agent shall sell or
otherwise transfer all or substantially all of its assets and business and which
assumes the obligations of the Issuing and Paying Agent hereunder, provided that
--------
it shall be qualified under the first paragraph of this Section, shall be the
successor Issuing and Paying Agent under this Agreement without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
Notice in writing of any such merger, consolidation or sale shall be given by
the Issuing and Paying Agent to the Bank prior to the effectiveness of such
merger, consolidation or sale.
Section 23. Benefit of Agreement. This Agreement is solely for the
--------------------
benefit of the parties hereto, Holders of Bank Notes, and their successors and
assigns, and nothing herein, express or implied, shall give to any other persons
any benefits or any legal or equitable right, remedy or claim under or by virtue
of this Agreement. No party hereto may assign any of its rights or obligations
hereunder except with the prior written consent of all the parties hereto.
Section 24. Bank Notes Held by the Issuing and Paying Agent. The Issuing
-----------------------------------------------
and Paying Agent, in its individual or other capacity, may become the owner or
pledgee of the Bank Notes
13
with the same rights it would have if it were not acting as an issuing and
paying agent hereunder.
Section 25. Amendment. This Agreement shall not be amended by any party
---------
hereto except in writing executed by the duly authorized officers of all parties
hereto.
Section 26. Governing Law. This Agreement shall be governed by, construed
-------------
and enforced in accordance with, the laws of the State of New York applicable to
agreements made and to be performed in such State, without regard to conflicts
of laws principles.
Section 27. Counterparts. This Agreement may be executed by the parties
------------
hereto in any number of counterparts, and by each of the parties hereto in
separate counterparts, and each such counterpart, when so executed and
delivered, shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on their behalf by their officers thereunto duly authorized, all as of
the day and year first above written.
PROVIDIAN NATIONAL BANK
By:______________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President and Treasurer
THE FIRST NATIONAL BANK OF CHICAGO,
as Issuing and Paying Agent
By:_______________________________
Name:
Title:
14
Exhibit A-1
(Form of Fixed Rate Global Senior Bank Note)
15
THIS SENIOR NOTE IS AN OBLIGATION SOLELY OF THE BANK AND WILL NOT BE AN
OBLIGATION OF, OR OTHERWISE GUARANTEED BY, ANY OTHER BANK OR PROVIDIAN FINANCIAL
CORPORATION. THIS SENIOR NOTE DOES NOT EVIDENCE DEPOSITS OF THE BANK AND IS NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENT
AGENCY. THE OBLIGATIONS EVIDENCED BY THIS SENIOR NOTE RANK PARI PASSU AMONG
THEMSELVES AND WITH ALL OTHER SENIOR UNSECURED INDEBTEDNESS OF THE BANK, EXCEPT
DEPOSIT LIABILITIES (AS PROVIDED IN SECTION 11(d)(11) OF THE FEDERAL DEPOSIT
INSURANCE ACT) AND OTHER OBLIGATIONS THAT ARE SUBJECT TO ANY PRIORITIES OR
PREFERENCES. IN A LIQUIDATION OR OTHER RESOLUTION OF THE BANK, THIS SENIOR NOTE
WOULD BE TREATED DIFFERENTLY FROM, AND HOLDERS OF THIS SENIOR NOTE COULD
RECEIVE, IF ANYTHING, SIGNIFICANTLY LESS THAN HOLDERS OF, DEPOSIT LIABILITIES OF
THE BANK.
UNLESS THIS SENIOR NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) (THE
"DEPOSITARY") TO THE BANK OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY SENIOR NOTE ISSUED UPON REGISTRATION OF TRANSFER OF, OR IN
EXCHANGE FOR, OR IN LIEU OF, THIS SENIOR NOTE IS REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY 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.
THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
THIS SENIOR NOTE IS ISSUABLE ONLY IN FULLY REGISTERED FORM IN MINIMUM
DENOMINATIONS OF $250,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF.
EACH OWNER OF A BENEFICIAL INTEREST IN THIS SENIOR NOTE MUST BE AN INSTITUTIONAL
INVESTOR WHO IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND IS REQUIRED TO HOLD A BENEFICIAL
INTEREST IN $250,000 PRINCIPAL AMOUNT OR ANY INTEGRAL MULTIPLE OF $1,000 IN
EXCESS THEREOF OF THIS SENIOR NOTE AT ALL TIMES.
No. FXR-________
CUSIP NO.: _______ REGISTERED
GLOBAL SENIOR BANK NOTE
(Fixed Rate)
16
ORIGINAL ISSUE DATE: PRINCIPAL AMOUNT:
INTEREST RATE: _______% MATURITY DATE:
INTEREST PAYMENT DATE(S): REGULAR RECORD DATES (FOR
[ ] At Maturity only NOTES WITH MATURITIES OF
[ ] May 15 and November 15 MORE THAN ONE YEAR)
[ ] Other: (if other than May 1
or November 1, prior to each
INITIAL REDEMPTION Interest Payment Date):
DATE:
INITIAL REDEMPTION
PERCENTAGE:
ANNUAL REDEMPTION HOLDER'S OPTIONAL
PERCENTAGE REDUCTION: REPAYMENT DATE(S):
DAY COUNT CONVENTION
[ ] 30/360 FOR THE PERIOD FROM TO .
[ ] ACTUAL/360 FOR THE PERIOD FROM TO .
[ ] ACTUAL/ACTUAL FOR THE PERIOD FROM TO .
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT:
[ ] Yes [ ] Yes
[ ] No [ ] No
Total Amount of OID:
DEFAULT RATE: _______% Yield to Maturity:
Initial Accrual Period:
OTHER PROVISIONS:
17
Providian National Bank, a national banking association (the "Bank"), for
value received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of ______________________________________________________________
United States Dollars on the Maturity Date specified above (except to the extent
redeemed or repaid prior to the Maturity Date) and to pay interest thereon from
and including the Original Issue Date specified above or from and including the
most recent interest payment date on which interest on this Senior Note (or any
predecessor Senior Note) has been paid or duly provided for, semi-annually on
May 15 and November 15 of each year (unless otherwise specified on the face
hereof) (each, an "Interest Payment Date") and at maturity or upon earlier
redemption or repayment, if applicable, commencing on the first Interest Payment
Date next succeeding the Original Issue Date (or, if the Original Issue Date is
between a Regular Record Date (as defined below) and the Interest Payment Date
immediately following such Regular Record Date, on the second Interest Payment
Date following the Original Issue Date), at the Interest Rate per annum
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 Senior Note specified above. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will be paid to the person in
whose name this Senior Note (or any predecessor Senior Note) is registered at
the close of business on the Regular Record Date, which shall be the May 1 and
November 1 (whether or not a Business Day (as defined below)), as the case may
be, next preceding the applicable Interest Payment Date (unless otherwise
specified on the face hereof) (each, a "Regular Record Date"); provided,
--------
however, that interest payable at maturity or upon earlier redemption or
-------
repayment, if applicable, will be payable to the person to whom principal shall
be payable. Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the holder as of the close of business on such
Regular Record Date, and may either be paid to the person in whose name this
Senior Note (or any predecessor Senior Note) is registered at the close of
business on a special record date for the payment of such defaulted interest
(the "Special Record Date") to be fixed by the Bank, notice of which shall be
given to the holders of Senior Notes not less than 10 calendar days prior to
such Special Record Date, or be paid at any time in any other lawful manner.
Payment of principal of, premium, if any, and interest on, this Senior Note
will be made in such coin or currency of the United States of America as at the
time of payment is legal tender
18
for payment of public and private debts. The Bank will at all times appoint and
maintain an issuing and paying agent (the "Issuing and Paying Agent," which term
shall include any successor Issuing and Paying Agent), authorized by the Bank to
pay principal of, premium, if any, and interest on, this Senior Note on behalf
of the Bank pursuant to an issuing and paying agency agreement (the "Issuing and
Paying Agency Agreement") and having an office or agency (the "Issuing and
Paying Agent Office") in Chicago, Illinois, New York, New York or the city in
which the Bank is headquartered (the "Place of Payment"), where this Senior Note
may be presented or surrendered for payment and where notices, designations or
requests in respect of payments with respect to this Senior Note may be served.
The Bank has initially appointed The First National Bank of Chicago as the
Issuing and Paying Agent, with the Issuing and Paying Agent Office currently
located at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Administration. The Bank may remove the Issuing and Paying
Agent pursuant to the terms of the Issuing and Paying Agency Agreement and may
appoint a successor Issuing and Paying Agent.
Payment of principal of, premium, if any, and interest on, this Senior Note
due at maturity or upon earlier redemption or repayment, if applicable, will be
made in immediately available funds upon presentation and surrender of this
Senior Note to the Issuing and Paying Agent at the Issuing and Paying Agent
Office; provided that this Senior Note is presented to the Issuing and Paying
Agent in time for the Issuing and Paying Agent to make such payment in
accordance with its normal procedures. Payments of interest on this Senior Note
(other than at maturity or upon earlier redemption or repayment) will be made by
wire transfer to such account as has been appropriately designated to the
Issuing and Paying Agent by the person entitled to such payments.
Reference herein to "this Senior Note", "hereof", "herein" and comparable
terms shall include an Addendum hereto if an Addendum is specified above.
Reference is hereby made to the further provisions of this Senior 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.
19
IN WITNESS WHEREOF, the Bank has caused this Senior Note to be duly
executed.
By:
-------------------------------
Authorized Signatory
Dated:
ISSUING AND PAYING AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Senior Notes referred to in the Issuing and Paying Agency
Agreement.
The First National Bank of Chicago,
as Issuing and Paying Agent
By:
--------------------------
Authorized Signatory
20
[Reverse]
This Senior Note is one of a duly authorized issue of Senior Bank Notes of
the Bank due from 7 days to 15 years from date of issue (the "Senior Notes").
Payments of interest hereon will include interest accrued to but excluding
the relevant Interest Payment Date or Maturity Date or date of earlier
redemption or repayment, as the case may be. Unless otherwise specified on the
face hereof, interest on Senior Notes with maturities of greater than one year
will be computed on the basis of a 360-day year of twelve 30-day months. Unless
otherwise specified on the face hereof, interest on Senior Notes with maturities
of one year or less will be computed on the basis of the actual number of days
in the year divided by 360 and will be payable only at maturity to the person to
whom principal shall be payable.
Any provision contained herein with respect to the calculation of the rate
of interest applicable to this Senior Note, its Interest Payment Dates or any
other matter relating hereto may be modified as specified in an Addendum
relating hereto if so specified on the face hereof.
If any Interest Payment Date, Maturity Date or date of earlier redemption
or repayment of this Senior Note falls on a day which is not a Business Day, the
related payment of principal of, premium, if any, or interest on, this Senior
Note shall be made on the next succeeding Business Day with the same force and
effect as if made on the date such payment were due, and no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date, Maturity Date or date of earlier redemption or repayment, as the
case may be. "Business Day" means, unless otherwise specified on the face
hereof, any day that is not a Saturday or Sunday and that in The City of New
York or in the city in which the Bank is headquartered is not a day on which
banking institutions are authorized or required by law, regulation or executive
order to close.
This Senior Note will not be subject to any sinking fund. If so provided
on the face of this Senior Note, this Senior Note may be redeemed by the Bank
either in whole or in part on and after the Initial Redemption Date, if any,
specified on the face hereof. If no Initial Redemption Date is specified on the
face hereof, this Senior Note may not be redeemed prior to the Maturity Date.
On and after the Initial Redemption Date, if any, this Senior Note may be
redeemed in increments of $1,000 (provided that any remaining principal amount
hereof shall be at least $250,000) at the option of the Bank at the applicable
Redemption Price (as defined below), together with unpaid interest accrued
hereon at the applicable rate
21
borne by this Senior Note to the date of redemption (each such date, a
"Redemption Date"), on written notice given not more than 60 nor less than 30
calendar days prior to the Redemption Date to the registered holder hereof.
Whenever less than all the Senior Notes at any time outstanding are to be
redeemed, the terms of the Senior Notes to be so redeemed shall be selected by
the Bank. If less than all the Senior Notes with identical terms at any time
outstanding are to be redeemed, the Senior Notes to be so redeemed shall be
selected by the Issuing and Paying Agent by lot or in any usual manner approved
by it. In the event of redemption of this Senior Note in part only, a new
Senior Note for the unredeemed portion hereof shall be issued in the name of the
holder hereof upon the surrender hereof.
The "Redemption Price" shall initially be the Initial Redemption Percentage
specified on the face hereof of the principal amount of this Senior Note to be
redeemed and shall decline at each anniversary of the Initial Redemption Date
specified on the face hereof by the Annual Redemption Percentage Reduction, if
any, specified on the face hereof, of the principal amount to be redeemed until
the Redemption Price is 100% of such principal amount.
This Senior Note may be subject to repayment at the option of the holder
hereof in accordance with the terms hereof on any Holder's Optional Repayment
Date(s), if any, specified on the face hereof. If no Holder's Optional
Repayment Date is specified on the face hereof, this Senior Note will not be
repayable at the option of the holder hereof prior to maturity. On any Holder's
Optional Repayment Date, this Senior Note will be repayable in whole or in part
in increments of $1,000 (provided that any remaining principal amount hereof
will be at least $250,000) at the option of the holder hereof at a repayment
price equal to 100% of the principal amount to be repaid, together with accrued
and unpaid interest hereon payable to the date of repayment. For this Senior
Note to be repaid in whole or in part at the option of the holder hereof on a
Holder's Optional Repayment Date, this Senior Note must be delivered, with the
form entitled "Option to Elect Repayment" attached hereto duly completed, to the
Issuing and Paying Agent at its offices located at Xxx Xxxxx Xxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Administration, or at such
other address which the Bank shall from time to time notify the holders of the
Senior Notes, not more than 60 nor less than 30 calendar days prior to such
Holder's Optional Repayment Date. In the event of repayment of this Senior Note
in part only, a new Senior Note for the unrepaid portion hereof shall be issued
in the name of the holder hereof upon the surrender hereof. Exercise of such
repayment option by the holder hereof shall be irrevocable.
If this Senior Note is an Original Issue Discount Note and if an Event of
Default with respect to this Senior Note shall have
22
occurred and be continuing, the Default Amount (as defined hereafter) of this
Senior Note may be declared due and payable in the manner and with the effect
provided herein. The "Default Amount" shall be equal to the adjusted issue
price as of the first day of the accrual period as determined under Final
Treasury Regulation Section 1.1275-1(b) (or successor regulation) under the
United States Internal Revenue Code of 1986, as amended, in which the date of
acceleration occurs increased by the daily portion of the original issue
discount for each day in such accrual period ending on the date of acceleration,
as determined under Final Treasury Regulation Section 1.1272-1(b) (or successor
regulation) under the United States Internal Revenue Code of 1986, as amended.
Upon payment of (i) the principal, or premium, if any, so declared due and
payable and (ii) interest on any overdue principal and overdue interest or
premium, if any (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Bank's obligations in respect of the
payment of principal of, premium, if any, and interest on, this Senior Note
shall terminate.
In case any Senior Note shall at any time become mutilated, destroyed, lost
or stolen, and such Senior Note or evidence of the loss, theft or destruction
thereof satisfactory to the Bank and the Issuing and Paying Agent and such other
documents or proof as may be required by the Bank and the Issuing and Paying
Agent shall be delivered to the Issuing and Paying Agent, the Bank shall issue a
new Senior Note, of like tenor and principal amount, having a serial number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Senior Note or in lieu of the Senior Note destroyed, lost or stolen but, in the
case of any destroyed, lost or stolen Senior Note, only upon receipt of evidence
satisfactory to the Bank and the Issuing and Paying Agent that such Senior Note
was destroyed, stolen or lost, and, if required, upon receipt of indemnity
satisfactory to the Bank and the Issuing and Paying Agent. Upon the issuance of
any substituted Senior Note, the Bank and the Issuing and Paying Agent may
require the payment of a sum sufficient to cover all expenses and reasonable
charges connected with the preparation and delivery of a new Senior Note. If
any Senior Note which has matured or has been redeemed or repaid or is about to
mature or to be redeemed or repaid shall become mutilated, destroyed, lost or
stolen, the Bank may, instead of issuing a substitute Senior Note, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated Senior Note) upon compliance by the holder with the provisions of
this paragraph.
No recourse shall be had for the payment of principal of, premium, if any,
or interest on, this Senior Note for any claim based hereon, or otherwise in
respect hereof, against any shareholder, employee, agent, officer or director,
as such, past, present or future, of the Bank or of any successor corporation,
23
banking association or other legal entity (collectively, "corporation"), either
directly or through the Bank or any corporation, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issue hereof, expressly waived and released.
The occurrence of any of the following events shall constitute an "Event of
Default" with respect to this Senior Note: (i) default in the payment of any
interest with respect to any of the Senior Notes issued by the Bank when due,
which continues for 30 calendar days; (ii) default in the payment of any
principal of, or premium, if any, on, any of the Senior Notes issued by the Bank
when due; (iii) the entry by a court having jurisdiction in the premises of (a)
a decree or order for relief in respect of the Bank in an involuntary case or
proceeding under any applicable United States federal or state bankruptcy,
insolvency, reorganization or other similar law or (b) a decree or order
appointing a conservator, receiver, liquidator, assignee, trustee, sequestrator
or any other similar official of the Bank, or of substantially all of the
property of the Bank, or ordering the winding up or liquidation of the affairs
of the Bank, 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 (iv) the commencement by the Bank of a voluntary case or proceeding
under any applicable United States federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated as bankrupt or insolvent, or the consent by the Bank to the entry of
a decree or order for relief in an involuntary case or proceeding under any
applicable United States federal or state bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any bankruptcy or insolvency case
or proceeding, or the filing by the Bank of a petition or answer or consent
seeking reorganization or relief under any applicable United States federal or
state bankruptcy, insolvency, reorganization or similar law, or the consent by
the Bank to the filing of such petition or to the appointment of or taking
possession by a custodian, conservator, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Bank or of substantially all of the
property of the Bank, or the making by the Bank of an assignment for the benefit
of creditors, or the taking of corporate action by the Bank in furtherance of
any such action. If an Event of Default shall occur and be continuing, the
holder of this Senior Note may declare the principal amount of, accrued interest
and premium, if any, on, this Senior Note due and payable immediately by written
notice to the Bank. Upon such declaration and notice, such principal amount,
accrued interest and premium, if any, shall become immediately due and payable.
Any Event of Default with respect to this Senior Note may be waived by the
holder hereof.
24
The Issuing and Paying Agency Agreement provides that the Bank will
promptly notify, and provide copies of any such notice to, the Issuing and
Paying Agent, and the Issuing and Paying Agent will promptly mail by first-class
mail, postage prepaid, copies of such notice to the holders of the Senior Notes,
upon the occurrence of an Event of Default or of the curing or waiver of an
Event of Default.
Nothing contained herein shall prevent any consolidation or merger of the
Bank with any other corporation or successive consolidations or mergers in which
the Bank or its successor or successors shall be a party or parties, or shall
prevent any sale, conveyance, transfer or lease of the property of the Bank as
an entirety or substantially as an entirety to any other corporation authorized
to acquire and operate the same; provided, however (and the Bank hereby
-------- -------
covenants and agrees) that any such consolidation, merger, sale or conveyance
shall be upon the condition that: (i) immediately after such consolidation,
merger, sale or conveyance the corporation (whether the Bank or such other
corporation) formed by or surviving any such consolidation or merger, or the
corporation to which such sale or conveyance shall have been made, shall not be
in default in the performance or observance of any of the terms, covenants and
conditions of this Senior Note to be observed or performed by the Bank; and (ii)
the corporation (if other than the Bank) formed by or surviving any such
consolidation or merger, or the corporation to which such sale or conveyance
shall have been made, shall be organized under the laws of the United States of
America or any state thereof or the District of Columbia and shall expressly
assume the due and punctual payment of the principal of, premium, if any, and
interest on, this Senior Note. In case of any such consolidation, merger, sale,
conveyance, transfer or lease, and upon the assumption by the successor
corporation of the due and punctual performance of all of the covenants in this
Senior Note to be performed or observed by the Bank, such successor corporation
shall succeed to and be substituted for the Bank with the same effect as if it
had been named in this Senior Note as the Bank and thereafter the predecessor
corporation shall be relieved of all obligations and covenants in this Senior
Note and may be liquidated and dissolved.
Any action by the holder of this Senior Note shall bind all future holders
of this Senior Note, and of any Senior Note issued in exchange or substitution
herefor or in place hereof, in respect of anything done or permitted by the Bank
or by the Issuing and Paying Agent in pursuance of such action.
The Issuing and Paying Agent shall maintain at its offices a register (the
register maintained in such office or any other office or agency of the Issuing
and Paying Agent, herein referred to as the "Senior Note Register") in which,
subject to such reasonable regulations as it may prescribe, the Issuing and
Paying
25
Agent shall provide for the registration of the Senior Notes and of transfers of
the Senior Notes (in such capacity, the "Senior Notes Registrar").
The transfer of this Senior Note is registrable in the Senior Note
Register, upon surrender of this Senior Note for registration of transfer at the
office or agency of the Issuing and Paying Agent in the Place of Payment, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Bank and the Issuing and Paying Agent duly executed by, the
holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Senior Notes of like tenor, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
No provision of this Senior Note shall alter or impair the obligation of
the Bank, which is absolute and unconditional, to pay principal of, premium, if
any, and interest on, this Senior Note in U.S. dollars at the times, places and
rate herein prescribed in accordance with its terms.
No service charge shall be made to a holder of this Senior Note for any
transfer or exchange of this Senior Note, but the Bank may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith.
Beneficial interests represented by this Senior Note are exchangeable for
definitive Senior Notes in registered form, of like tenor and of an equal
aggregate principal amount, only if (x) The Depository Trust Company, as
Depositary (the "Depositary") notifies the Bank that it is unwilling or unable
to continue as Depositary for this Senior Note or if at any time the Depositary
ceases to be a clearing agency registered under the Securities Exchange Act of
1934, as amended, and a successor depositary is not appointed by the Bank within
60 days, or (y) the Bank in its sole discretion determines not to have such
beneficial interests represented by this Senior Note. Any Senior Note
representing such beneficial interests that is exchangeable pursuant to the
preceding sentence shall be exchangeable in whole for definitive Senior Notes in
registered form, of like tenor and of an equal aggregate principal amount, in
minimum denominations of $250,000 and integral multiples of $1,000 in excess
thereof. Such definitive Senior Notes shall be registered in the name or names
of such person or persons as the Depositary shall instruct the Issuing and
Paying Agent.
Prior to due presentment of this Senior Note for registration of transfer,
the Bank, the Issuing and Paying Agent or any agent of the Bank or the Issuing
and Paying Agent may treat the holder in whose name this Senior Note is
registered as the owner hereof for all purposes, whether or not this Senior Note
be overdue, and
26
neither the Bank, the Issuing and Paying Agent nor any such agent shall be
affected by notice to the contrary except as required by applicable law.
All notices to the Bank under this Senior Note shall be in writing and
addressed to Providian National Bank, c/o Providian Financial Corporation, 000
Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Treasurer, or to
such other address of the Bank as the Bank may notify the holders of the Senior
Notes.
This Senior Note shall be governed by, and construed in accordance with,
the laws of the State of New York, without regard to conflicts of laws
principles and all applicable federal laws and regulations.
27
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
the within Senior Note, 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.
28
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY NUMBER OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
____________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address,
including postal zip code, of assignee)
the within Senior Note and all rights thereunder, and hereby irrevocably
constitutes and appoints _______________________________________________________
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
to transfer said Senior Note on the books of the Issuing and Paying Agent, 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 Senior Note in
every particular, without
alteration or enlargement or any
change whatsoever.
________________________________
Signature Guarantee
29
OPTION TO ELECT REPAYMENT
-------------------------
The undersigned hereby irrevocably request(s) and instruct(s) the Bank
to repay this Senior Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount hereof to be repaid,
together with accrued and unpaid interest hereon, payable to the date of
repayment, to the undersigned, at_______________________________________________
_______________________________________________________________________________.
(Please print or typewrite name and address of the undersigned)
For this Senior Note to be repaid, the undersigned must give to the Issuing
and Paying Agent at its offices located at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000, Attention: Corporate Trust Administration, or at such other
place or places of which the Bank shall from time to time notify the holders of
the Senior Notes, not more than 60 days nor less than 30 days prior notice to
the date of repayment, with this "Option to Elect Repayment" form duly
completed.
If less than the entire principal amount of this Senior Note is to be
repaid, specify the portion hereof (which shall be increments of $1,000) which
the holder elects to have repaid and specify the denomination or denominations
(which shall be $250,000 or an integral multiple of $1,000 in excess thereof) of
the Senior Notes to be issued to the holder for the portion of this Senior Note
not being repaid (in the absence of any such specification, one such Senior Note
will be issued for the portion not being repaid):
$______________________________ ______________________________
NOTICE: The signature on this
Dated: ________________________ "Option to Elect Repayment" form must
correspond with the name as written upon the
face of the within Senior Note in every
particular, without alteration or
enlargement or any change whatsoever.
________________________________
Signature Guarantee
30
Exhibit A-2
(Form of Floating Rate Global Senior Bank Note)
31
THIS SENIOR NOTE IS AN OBLIGATION SOLELY OF THE BANK AND WILL NOT BE AN
OBLIGATION OF, OR OTHERWISE GUARANTEED BY, ANY OTHER BANK OR PROVIDIAN FINANCIAL
CORPORATION. THIS SENIOR NOTE DOES NOT EVIDENCE DEPOSITS OF THE BANK AND IS NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENT
AGENCY. THE OBLIGATIONS EVIDENCED BY THIS SENIOR NOTE RANK PARI PASSU AMONG
THEMSELVES AND WITH ALL OTHER SENIOR UNSECURED INDEBTEDNESS OF THE BANK, EXCEPT
DEPOSIT LIABILITIES (AS PROVIDED IN SECTION 11(d)(11) OF THE FEDERAL DEPOSIT
INSURANCE ACT) AND OTHER OBLIGATIONS THAT ARE SUBJECT TO ANY PRIORITIES OR
PREFERENCES. IN A LIQUIDATION OR OTHER RESOLUTION OF THE BANK, THIS SENIOR NOTE
WOULD BE TREATED DIFFERENTLY FROM, AND HOLDERS OF THIS SENIOR NOTE COULD
RECEIVE, IF ANYTHING, SIGNIFICANTLY LESS THAN HOLDERS OF, DEPOSIT LIABILITIES OF
THE BANK.
UNLESS THIS SENIOR NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) (THE
"DEPOSITARY") TO THE BANK OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY SENIOR NOTE ISSUED UPON REGISTRATION OF TRANSFER OF, OR IN
EXCHANGE FOR, OR IN LIEU OF, THIS SENIOR NOTE IS REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY 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.
THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
THIS SENIOR NOTE IS ISSUABLE ONLY IN FULLY REGISTERED FORM IN MINIMUM
DENOMINATIONS OF $250,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF.
EACH OWNER OF A BENEFICIAL INTEREST IN THIS SENIOR NOTE MUST BE AN INSTITUTIONAL
INVESTOR WHO IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND IS REQUIRED TO HOLD A BENEFICIAL
INTEREST IN $250,000 PRINCIPAL AMOUNT OR ANY INTEGRAL MULTIPLE OF $1,000 IN
EXCESS THEREOF OF THIS SENIOR NOTE AT ALL TIMES.
No. FLR-_____ REGISTERED
CUSIP NO.: _____
GLOBAL SENIOR BANK NOTE
(Floating Rate)
32
ORIGINAL ISSUE DATE: PRINCIPAL AMOUNT:
INITIAL INTEREST RATE: _____% MATURITY DATE:
INTEREST RATE INDEX MATURITY:
BASIS OR BASES:
IF LIBOR: REGULAR RECORD
[ ] Libor Telerate DATES (if other than the 15th day
[ ] Libor Reuters prior to each Interest Payment
Date):
INDEX CURRENCY:
SPREAD (PLUS OR MINUS) MINIMUM INTEREST RATE:
AND/OR SPREAD MULTIPLIER:
INTEREST PAYMENT PERIOD:
MAXIMUM INTEREST RATE:
INTEREST RESET PERIOD:
INTEREST PAYMENT DATES:
CALCULATION AGENT:
INITIAL INTEREST RESET DATE:
ANNUAL REDEMPTION
INTEREST RESET DATES: PERCENTAGE REDUCTION:
INITIAL REDEMPTION DATE: HOLDER'S OPTIONAL
REPAYMENT DATE(S):
INITIAL REDEMPTION
PERCENTAGE: DAY COUNT CONVENTION
[ ] 30/360 for the period
INTEREST CALCULATION: from __________ to __________.
[ ] Regular Floating Rate [ ] Actual/360 for the
Senior Note period from _______ to _______.
[ ] Floating Rate/Fixed Rate [ ] Actual/Actual for the
Senior Note period from __________ to
Fixed Rate Commencement Date: ____________.
Fixed Interest Rate:
[ ] Inverse Floating Rate Senior ORIGINAL ISSUE DISCOUNT
Note [ ] Yes
Fixed Interest Rate: [ ] No
ADDENDUM ATTACHED: Total Amount of OID:
[ ] Yes Yield to Maturity:
[ ] No Initial Accrual Period:
DEFAULT RATE: ______%
OTHER PROVISIONS:
33
Providian National Bank, a national banking association (the "Bank"), for
value received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of ______________________________________________________________
United States Dollars on the Maturity Date specified above (except to the extent
redeemed or repaid prior to the Maturity Date) and to pay interest thereon from
and including the Original Issue Date specified above or from and including the
most recent interest payment date to which interest on this Senior Note (or any
predecessor Senior Note) has been paid or duly provided for (each, an "Interest
Payment Date"), on the Interest Payment Dates specified above and at maturity or
upon earlier redemption or repayment, if applicable, commencing on the first
Interest Payment Date next succeeding the Original Issue Date (or, if the
Original Issue Date is between a Regular Record Date (as defined below) and the
Interest Payment Date immediately following such Regular Record Date, on the
second Interest Payment Date following the Original Issue Date), at a rate per
annum equal to the Initial Interest Rate specified above until the Initial
Interest Reset Date specified above and thereafter at a rate per annum
determined in accordance with the provisions hereof and any Addendum relating
hereto depending upon the Interest Rate Basis or Bases, if any, and such other
terms 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 Senior Note specified above. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will be paid to the person in
whose name this Senior Note (or any predecessor Senior Note) is registered at
the close of business on the Regular Record Date, which shall be the 15th
calendar day (whether or not a Business Day (as defined below)) prior to such
Interest Payment Date (unless otherwise specified on the face hereof) (each, a
"Regular Record Date"); provided, however, that interest payable at maturity or
-------- -------
upon earlier redemption or repayment, if applicable, will be payable to the
person to whom principal shall be payable. Any such interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the holder as
of the close of business on such Regular Record Date and may either be paid to
the person in whose name this Senior Note (or any predecessor Senior Note) is
registered at the close of business on a special record date for the payment of
such defaulted interest (the "Special Record Date") to be fixed by the Bank,
notice of which shall be given to the holders of Senior Notes not less than 10
calendar days prior to such Special Record Date, or be paid at any time in any
other lawful manner.
Payment of principal of, premium, if any, and interest on, this Senior Note
will be made in such coin or currency of the
00
Xxxxxx Xxxxxx xx Xxxxxxx as at the time of payment is legal tender for payment
of public and private debts. The Bank will at all times appoint and maintain an
issuing and paying agent (the "Issuing and Paying Agent", which term shall
include any successor Issuing and Paying Agent), authorized by the Bank to pay
principal of, premium, if any, and interest on, this Senior Note on behalf of
the Bank pursuant to an issuing and paying agency agreement (the "Issuing and
Paying Agency Agreement") and having an office or agency (the "Issuing and
Paying Agent Office") in Chicago, Illinois, New York, New York or the city in
which the Bank is headquartered (the "Place of Payment"), where this Senior Note
may be presented or surrendered for payment and where notices, designations or
requests in respect of payments with respect to this Senior Note may be served.
The Bank has initially appointed The First National Bank of Chicago as the
Issuing and Paying Agent, with the Issuing and Paying Agent Office currently
located at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention:
Corporate Trust Administration. The Bank may remove the Issuing and Paying
Agent pursuant to the terms of the Issuing and Paying Agency Agreement, and
appoint a successor Issuing and Paying Agent.
Payment of principal of, premium, if any, and interest on, this Senior Note
due at maturity or upon earlier redemption or repayment, if applicable, will be
made in immediately available funds upon presentation and surrender of this
Senior Note to the Issuing and Paying Agent at the Issuing and Paying Agent
Office; provided that this Senior Note is presented to the Issuing and Paying
Agent in time for the Issuing and Paying Agent to make such payment in
accordance with its normal procedures. Payments of interest on this Senior Note
(other than at maturity or upon earlier redemption or repayment) will be made by
wire transfer to such account as has been appropriately designated to the
Issuing and Paying Agent by the person entitled to such payments.
Reference herein to "this Senior Note", "hereof", "herein" and comparable
terms shall include an Addendum hereto if an Addendum is specified above.
Reference is hereby made to the further provisions of this Senior 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.
35
IN WITNESS WHEREOF, the Bank has caused this Senior Note to be duly
executed.
By: ___________________________________
Authorized Signatory
Dated:
ISSUING AND PAYING AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Senior Notes referred to in the Issuing and Paying Agency
Agreement.
The First National Bank of Chicago,
as Issuing and Paying Agent
By:
________________________
Authorized Signatory
36
[Reverse]
This Senior Note is one of a duly authorized issue of Senior Bank Notes of
the Bank due from 7 days to 15 years from date of issue (the "Senior Notes").
If any Interest Payment Date (other than an Interest Payment Date at the
Maturity Date or date of earlier redemption or repayment of this Senior Note)
would otherwise fall on a day that is not a Business Day, such Interest Payment
Date shall be postponed to the next succeeding day that is a Business Day,
except that if an Interest Rate Basis is LIBOR, as indicated on the face hereof,
and such next Business Day falls in the next succeeding calendar month, such
Interest Payment Date shall be the immediately preceding day that is a Business
Day. Except as provided above, interest payments will be made on the Interest
Payment Dates shown on the face hereof. If the Maturity Date or date of earlier
redemption or repayment of this Senior Note falls on a day which is not a
Business Day, the related payment of principal of, premium, if any, and interest
on, this Senior Note will be made on the next succeeding Business Day with the
same force and effect as if made on the date such payment was due, and no
interest shall accrue on the amount so payable for the period from and after
such Maturity Date or date of earlier redemption or repayment, as the case may
be.
This Senior Note will not be subject to any sinking fund. If so provided
on the face of this Senior Note, this Senior Note may be redeemed by the Bank
either in whole or in part on and after the Initial Redemption Date, if any,
specified on the face hereof. If no Initial Redemption Date is specified on the
face hereof, this Senior Note may not be redeemed prior to the Maturity Date.
On and after the Initial Redemption Date, if any, this Senior Note may be
redeemed in increments of $1,000 (provided that any remaining principal amount
hereof shall be at least $250,000) at the option of the Bank at the applicable
Redemption Price (as defined below), together with unpaid interest accrued
hereon at the applicable rate borne by this Senior Note to the date of
redemption (each such date, a "Redemption Date"), on written notice given not
more than 60 nor less than 30 calendar days prior to the Redemption Date to the
registered holder hereof. Whenever less than all the Senior Notes at any time
outstanding are to be redeemed, the terms of the Senior Notes to be so redeemed
shall be selected by the Bank. If less than all the Senior Notes with identical
terms at any time outstanding are to be redeemed, the Senior Notes to be so
redeemed shall be selected by the Issuing and Paying Agent by lot or in any
usual manner approved by it. In the event of redemption of this Senior Note in
part only, a new Senior Note for the unredeemed portion hereof shall be issued
in the name of the holder hereof upon the surrender hereof.
37
The "Redemption Price" shall initially be the Initial Redemption Percentage
specified on the face hereof of the principal amount of this Senior Note to be
redeemed and shall decline at each anniversary of the Initial Redemption Date
specified on the face hereof by the Annual Redemption Percentage Reduction, if
any, specified on the face hereof, of the principal amount to be redeemed until
the Redemption Price is 100% of such principal amount.
This Senior Note may be subject to repayment at the option of the holder
hereof in accordance with the terms hereof on any Holder's Optional Repayment
Date(s), if any, specified on the face hereof. If no Holder's Optional
Repayment Date is specified on the face hereof, this Senior Note will not be
repayable at the option of the holder hereof prior to maturity. On any Holder's
Optional Repayment Date, this Senior Note will be repayable in whole or in part
in increments of $1,000 (provided that any remaining principal amount hereof
will be at least $250,000) at the option of the holder hereof at a repayment
price equal to 100% of the principal amount to be repaid, together with accrued
and unpaid interest hereon payable to the date of repayment. For this Senior
Note to be repaid in whole or in part at the option of the holder hereof on a
Holder's Optional Repayment Date, this Senior Note must be delivered, with the
form entitled "Option to Elect Repayment" attached hereto duly completed, to the
Issuing and Paying Agent at its offices located at Xxx Xxxxx Xxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Administration, or at such
other address which the Bank shall from time to time notify the holders of the
Senior Notes, not more than 60 nor less than 30 calendar days prior to such
Holder's Optional Repayment Date. In the event of repayment of this Senior Note
in part only, a new Senior Note for the unrepaid portion hereof shall be issued
in the name of the holder hereof upon the surrender hereof. Exercise of such
repayment option by the holder hereof shall be irrevocable.
The interest rate borne by this Senior Note shall be determined as follows:
1. If this Senior Note is designated as a Regular Floating Rate
Senior Note on the face hereof or if no designation is made for Interest
Calculation on the face hereof, then, except as described below or in an
Addendum hereto, this Senior Note shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis or Bases
shown on the face hereof (i) plus or minus the applicable Spread, if any,
and/or (ii) multiplied by the applicable Spread Multiplier, if any,
specified and applied in the manner described on the face hereof.
Commencing on the Initial Interest Reset Date, the rate at which interest
on this Senior Note is payable shall be reset as of each Interest Reset
Date specified on the face hereof; provided, however,
-------- -------
38
that the interest rate in effect for the period from the Original Issue
Date to the Initial Interest Reset Date will be the Initial Interest Rate.
2. If this Senior Note is designated as a Floating Rate/Fixed Rate
Senior Note on the face hereof, then, except as described below or in an
Addendum hereto, this Senior Note shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis or Bases
shown on the face hereof (i) plus or minus the applicable Spread, if any,
and/or (ii) multiplied by the applicable Spread Multiplier, if any,
specified and applied in the manner described on the face hereof.
Commencing on the Initial Interest Reset Date, the rate at which interest
on this Senior Note is payable shall be reset as of each Interest Reset
Date specified on the face hereof; provided, however, that (i) the interest
-------- -------
rate in effect for the period from the Original Issue Date to the Initial
Interest Reset Date shall be the Initial Interest Rate; and (ii) the
interest rate in effect commencing on, and including, the Fixed Rate
Commencement Date to the Maturity Date or date of earlier redemption or
repayment shall be the Fixed Interest Rate, if such a rate is specified on
the face hereof, or if no such Fixed Interest Rate is so specified, the
interest rate in effect hereon on the Business Day immediately preceding
the Fixed Rate Commencement Date.
3. If this Senior Note is designated as an Inverse Floating Rate
Senior Note on the face hereof, then, except as described below or in an
Addendum hereto, this Senior Note shall bear interest equal to the Fixed
Interest Rate indicated on the face hereof minus the rate determined by
reference to the applicable Interest Rate Basis or Bases shown on the face
hereof (i) plus or minus the applicable Spread, if any, and/or (ii)
multiplied by the applicable Spread Multiplier, if any, specified and
applied in the manner described on the face hereof; provided, however,
-------- -------
that, unless otherwise specified on the face hereof, the interest rate
hereon will not be less than zero percent. Commencing on the Initial
Interest Reset Date, the rate at which interest on this Senior Note is
payable shall be reset as of each Interest Rate Reset Date specified on the
face hereof; and provided further that the interest rate in effect for the
-------- -------
period from the Original Issue Date to the Initial Interest Reset Date
shall be the Initial Interest Rate.
Notwithstanding the foregoing, if this Senior Note is designated on the
face hereof as having an Addendum attached, this Senior Note shall bear interest
in accordance with the terms described in such Addendum.
39
Except as provided above, the interest rate in effect on each day shall be
(a) if such day is an Interest Reset Date, the interest rate determined as of
the Interest Determination Date (as defined below) immediately preceding such
Interest Reset Date or (b) if such day is not an Interest Reset Date, the
interest rate determined as of the Interest Determination Date immediately
preceding the next preceding Interest Reset Date. Each Interest Rate Basis
shall be the rate determined in accordance with the applicable provision below.
If any Interest Reset Date (which term includes the term Initial Interest Reset
Date unless the context otherwise requires) would otherwise be a day that is not
a Business Day, such Interest Reset Date shall be postponed to the next
succeeding day that is a Business Day, except that if an Interest Rate Basis
specified on the face hereof is LIBOR and such next Business Day falls in the
next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day.
Unless otherwise specified on the face hereof, interest payable on this
Senior Note on any Interest Payment Date shall be the amount of interest accrued
from and including the next preceding Interest Payment Date in respect of which
interest has been paid (or from and including the Original Issue Date specified
on the face hereof, if no interest has been paid), to but excluding the related
Interest Payment Date or Maturity Date or date of earlier redemption or
repayment, as the case may be.
Unless otherwise specified on the face hereof, accrued interest hereon
shall be an amount calculated by multiplying the face amount hereof by an
accrued interest factor. Such accrued interest factor shall be computed by
adding the interest factor calculated for each day in the period for which
accrued interest is being calculated. Unless otherwise specified on the face
hereof, the interest factor for each such day shall be computed and paid on the
basis of a 360-day year of twelve 30-day months if the Day Count Convention
specified on the face hereof is "30/360" for the period specified thereunder, or
by dividing the interest rate applicable to such day by 360 if the Day Count
Convention specified on the face hereof is "Actual/360" for the period specified
thereunder or by the actual number of days in the year if the Day Count
Convention specified on the face hereof is "Actual/Actual" for the period
specified thereunder. If interest on this Senior Note is to be calculated with
reference to two or more Interest Rate Bases as specified on the face hereof,
the interest factor will be calculated in each period in the same manner as if
only one of the applicable Interest Rate Bases applied.
Unless otherwise specified on the face hereof, the "Interest Determination
Date" with respect to the Commercial Paper Rate, the Federal Funds Rate and the
Prime Rate will be the second Business Day preceding each Interest Reset Date;
the "Interest Determination
40
Date" with respect to the Eleventh District Cost of Funds Rate will be the last
working day of the month immediately preceding each Interest Reset Date on which
the Federal Home Loan Bank of San Francisco (the "FHLB of San Francisco")
publishes the Index (as defined below); the "Interest Determination Date" with
respect to LIBOR shall be the second London Business Day (as defined below)
preceding each Interest Reset Date; the "Interest Determination Date" with
respect to the Treasury Rate will be the day in the week in which the related
Interest Reset Date falls on which day Treasury Bills (as defined below) are
normally auctioned (Treasury Bills are normally sold at auction on Monday of
each week, unless that day is a legal holiday, in which case the auction is
normally held on the following Tuesday, except that such auction may be held on
the preceding Friday); provided, however, that if an auction is held on the
-------- -------
Friday of the week preceding the related Interest Reset Date, the related
Interest Determination Date shall be such preceding Friday; and provided further
-------- -------
that if an auction shall fall on any Interest Reset Date, then the Interest
Reset Date shall instead be the first Business Day following such auction. If
the interest rate of this Senior Note is determined with reference to two or
more Interest Rate Bases as specified on the face hereof, the Interest
Determination Date pertaining to this Senior Note will be the latest Business
Day which is at least two Business Days prior to such Interest Reset Date on
which each Interest Rate Basis is determinable. Each Interest Rate Basis shall
be determined on such date, and the applicable interest rate shall take effect
on the Interest Reset Date.
Unless otherwise specified on the face hereof, the "Calculation Date"
pertaining to any Interest Determination Date will be the earlier of (i) the
tenth calendar day after such Interest Determination Date or, if such day is not
a Business Day, the next succeeding Business Day and (ii) the Business Day
immediately preceding the applicable Interest Payment Date or Maturity Date or
date of earlier redemption or repayment, as the case may be. All calculations
on this Senior Note shall be made by the Calculation Agent specified on the face
hereof or such successor thereto as is duly appointed by the Bank.
All percentages resulting from any calculation on this Senior Note will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward (e.g.,
9.876545% (or 0.09876545) would be rounded to 9.87655% (or 0.0987655) and
9.876544% (or 0.09876544) would be rounded to 9.87654% (or 0.0987654)), and all
dollar amounts used in or resulting from such calculation will be rounded to the
nearest cent (with one-half cent being rounded upward).
As used herein, "Business Day" means, unless otherwise specified on the
face hereof, any day that is not a Saturday or
41
Sunday and that in The City of New York or in the city in which the Bank is
headquartered is not a day on which banking institutions are authorized or
required by law, regulation or executive order to close and, if an Interest Rate
Basis shown on the face hereof is LIBOR, is also a London Business Day.
As used herein, unless otherwise specified on the face hereof, "London
Business Day" means any day on which dealings in deposits in U.S. dollars are
transacted in the London interbank market.
Determination of Commercial Paper Rate. If an Interest Rate Basis for this
--------------------------------------
Senior Note is the Commercial Paper Rate, as indicated on the face hereof, the
Commercial Paper Rate shall be determined as of the applicable Interest
Determination Date (a "Commercial Paper Rate Interest Determination Date"), as
the Money Market Yield (as defined below) on such date of the rate for
commercial paper having the Index Maturity specified on the face hereof as
published by the Board of Governors of the Federal Reserve System in the weekly
statistical release entitled "Statistical Release H.15(519), Selected Interest
Rates," or any successor publication of the Board of Governors of the Federal
Reserve System ("H.15(519)") under the heading "Commercial Paper-Nonfinancial"
or, if such heading is no longer available and applicable, such other heading
representing commercial paper issued by non-financial entities whose bond rating
is "Aa," or the equivalent, from a nationally recognized statistical rating
organization. In the event that such rate is not published by 3:00 P.M., New
York City time, on the related Calculation Date, then the Commercial Paper Rate
shall be the Money Market Yield on such Commercial Paper Rate Interest
Determination Date of the rate for commercial paper having the Index Maturity
specified on the face hereof as published by the Federal Reserve Bank of New
York in the daily statistical release entitled "Composite 3:30 P.M. Quotations
for U.S. Government Securities" or any successor publication ("Composite
Quotations") under the heading "Commercial Paper" (with an Index Maturity of one
month or three months being deemed to be equivalent to an Index Maturity of 30
days or 90 days, respectively). If by 3:00 P.M., New York City time, on the
related Calculation Date such rate is not yet published in either H.15(519) or
Composite Quotations, then the Commercial Paper Rate on such Commercial Paper
Rate Interest Determination Date shall be calculated by the Calculation Agent
and shall be the Money Market Yield of the arithmetic mean of the offered rates
at approximately 11:00 A.M., New York City time, on such Commercial Paper Rate
Interest Determination Date of three leading dealers of commercial paper in The
City of New York selected by the Calculation Agent for commercial paper having
the Index Maturity specified on the face hereof placed for a non-financial
entity whose bond rating is "Aa," or the equivalent, from a nationally
recognized statistical rating organization; provided, however, that if any of
-------- -------
the dealers selected as aforesaid by the Calculation Agent are not quoting
42
offered rates as mentioned in this sentence, the Commercial Paper Rate
determined as of such Commercial Paper Rate Interest Determination Date shall be
the Commercial Paper Rate in effect on such Commercial Paper Rate Interest
Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage)
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. If an Interest Rate
-----------------------------------------------------
Basis for this Senior Note is the Eleventh District Cost of Funds Rate, as
indicated on the face hereof, the Eleventh District Cost of Funds Rate shall be
determined as of the applicable Interest Determination Date (an "Eleventh
District Cost of Funds Rate Interest Determination Date"), as 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 Rate Interest
Determination Date falls, as set forth under the caption "11th District" on
Telerate Page 7058 as of 11:00 A.M., San Francisco time, on such Eleventh
District Cost of Funds Rate Interest Determination Date. If such rate does not
appear on Telerate Page 7058 on any related Eleventh District Cost of Funds Rate
Interest Determination Date, the Eleventh District Cost of Funds Rate for such
Eleventh District Cost of Funds Rate Interest Determination Date shall 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 FHLB of San Francisco as such cost of funds for the calendar
month immediately preceding the date of such announcement. If the FHLB of San
Francisco fails to announce such rate for the calendar month immediately
preceding such Eleventh District Cost of Funds Rate Interest Determination Date,
then the Eleventh District Cost of Funds Rate determined as of such Eleventh
District Cost of Funds Rate Interest Determination Date shall be the Eleventh
District Cost of Funds Rate in effect on such Eleventh District Cost of Funds
Rate Interest Determination Date.
"Telerate Page 7058" means the display designated as page "7058" on the Dow
Xxxxx Telerate Service (or such other page as may replace the 7058 page on that
service for the purpose of displaying the monthly weighted average cost of funds
paid by member institutions of the Eleventh Federal Home Loan Bank District).
Determination of Federal Funds Rate. If an Interest Rate Basis for this
-----------------------------------
Senior Note is the Federal Funds Rate, as indicated
43
on the face hereof, the Federal Funds Rate shall be determined as of the
applicable Interest Determination Date (a "Federal Funds Rate Interest
Determination Date"), as the rate on such date for federal funds as published in
H.15(519) under the heading "Federal Funds (Effective)" or, if not so published
by 3:00 P.M., New York City time, on the related Calculation Date, the rate on
such Federal Funds Rate Interest Determination Date, as published in Composite
Quotations under the heading "Federal Funds/Effective Rate." If by 3:00 P.M.,
New York City time, on the related Calculation Date such rate is not published
in either H.15(519) or Composite Quotations, then the Federal Funds Rate on such
Federal Funds Rate Interest Determination Date shall be calculated by the
Calculation Agent and shall be the arithmetic mean of the rates for the last
transaction in overnight U.S. dollar federal funds arranged prior to 9:00 A.M.,
New York City time, on such Federal Funds Rate Interest Determination Date by
three leading brokers of federal funds transactions in The City of New York
selected by the Calculation Agent; provided, however, that if any of the brokers
-------- -------
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, the Federal Funds Rate determined as of such Federal Funds Rate
Interest Determination Date shall be the Federal Funds Rate in effect on such
Federal Funds Rate Interest Determination Date.
Determination of LIBOR. If an Interest Rate Basis for this Senior Note is
----------------------
LIBOR, as indicated on the face hereof, LIBOR shall be determined by the
Calculation Agent as of the applicable Interest Determination Date (a "LIBOR
Interest Determination Date") in accordance with the following provisions:
(a) With respect to any LIBOR Interest Determination Date, LIBOR will
be, as specified on the face hereof, either: (i) the rate for deposits in
U.S. dollars having the Index Maturity designated on the face hereof,
commencing on the second London Business Day immediately following that
LIBOR Interest Determination Date, that appears on Telerate Page 3750 as of
11:00 A.M., London time, on that LIBOR Interest Determination Date ("LIBOR
Telerate") or (ii) the arithmetic mean of the offered rates for deposits in
U.S. dollars having the Index Maturity designated on the face hereof,
commencing on the second London Business Day immediately following that
LIBOR Interest Determination Date, that appear on the Reuters Screen LIBO
Page as of 11:00 A.M., London time, on that LIBOR Interest Determination
Date, if at least two such offered rates appear on the Reuters Screen LIBO
Page ("LIBOR Reuters"). "Telerate Page 3750" means the display designated
as page "3750" on the Dow Xxxxx Telerate Service (or such other page as may
replace the 3750 page on that service or such other service or services as
may be nominated by the British Bankers' Association for the purpose of
displaying London interbank offered rates for U.S. dollar deposits).
44
"Reuters Screen LIBO Page" means the display designated as page "LIBO" on
the Reuters Monitor Money Rates Service (or such other page as may replace
the LIBO page on that service for the purpose of displaying London
interbank offered rates of major banks). If neither LIBOR Telerate nor
LIBOR Reuters is specified on the face hereof, LIBOR will be determined as
if LIBOR Telerate had been specified. If no rate appears on Telerate Page
3750, or if fewer than two offered rates appear on the Reuters Screen LIBO
Page, as applicable, LIBOR in respect of that LIBOR Interest Determination
Date will be determined as if the parties had specified the rate described
in (b) below.
(b) With respect to a LIBOR Interest Determination Date on which no
rate appears on Telerate Page 3750, as specified in (a)(i) above, or on
which fewer than two offered rates appear on the Reuters Screen LIBO Page,
as specified in (a)(ii) above, as applicable, LIBOR will be determined on
the basis of the rates at which deposits in U.S. dollars having the Index
Maturity designated on the face hereof, are offered at approximately 11:00
A.M., London time, on that LIBOR Interest Determination Date by four major
banks in the London interbank market selected by the Calculation Agent
("Reference Banks") to prime banks in the London interbank market
commencing on the second London Business Day immediately following that
LIBOR Interest Determination Date and in a principal amount equal to an
amount of not less than $1,000,000 that is representative for a single
transaction in such market at such time. The Calculation Agent will
request the principal London office of each of the Reference Banks to
provide a quotation of its rate. If at least two such quotations are
provided, LIBOR in respect of that LIBOR Interest Determination Date will
be the arithmetic mean of such quotations. If fewer than two quotations
are provided, LIBOR in respect of that LIBOR Interest Determination Date
will be the arithmetic mean of the rates quoted at approximately 11:00
A.M., New York City time, on that LIBOR Interest Determination Date by
three major banks in The City of New York selected by the Calculation Agent
for loans in U.S. dollars to leading European banks having the Index
Maturity designated on the face hereof, commencing on the second London
Business Day immediately following that LIBOR Interest Determination Date
and in a principal amount equal to an amount of not less than $1,000,000
that is representative for a single transaction in such market at such
time; provided, however, that if the banks selected as aforesaid by the
-------- -------
Calculation Agent are not quoting as mentioned in this sentence, LIBOR with
respect to such LIBOR Interest Determination Date will be the LIBOR rate in
effect on such date.
45
Determination of Prime Rate. If an Interest Rate Basis for this Senior
---------------------------
Note is the Prime Rate, as indicated on the face hereof, the Prime Rate shall be
determined as of the applicable Interest Determination Date (a "Prime Rate
Interest Determination Date") as the rate on such date as such rate is published
in H.15(519) under the heading "Bank Prime Loan". If such rate is not published
prior to 3:00 P.M., New York City time, on the related Calculation Date, then
the Prime Rate shall be the arithmetic mean of the rates of interest publicly
announced by each bank that appears on the Reuters Screen USPRIME1 Page (as
defined below) as such bank's prime rate or base lending rate as in effect for
such Prime Rate Interest Determination Date. If fewer than four such rates
appear on the Reuters Screen USPRIME1 Page for such Prime Rate Interest
Determination Date, the Prime Rate shall be the arithmetic mean 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 four major money center banks in The City of
New York selected by the Calculation Agent. If fewer than four major money
center banks provide such quotations, the Prime Rate will be determined by the
Calculation Agent and will be the arithmetic mean of four prime 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 as
furnished in The City of New York by the major money center banks, if any, that
have provided quotations and as many substitute banks or trust companies as is
necessary in order to obtain four such prime rate quotations, provided such
substitute banks or trust companies are organized and doing business under the
laws of the United States, or any state thereof, each having total equity
capital of at least U.S. $500 million and being subject to supervision or
examination by federal or state authority, selected by the Calculation Agent to
provide such rate or rates; provided, however, that if the banks or trust
-------- -------
companies selected as aforesaid are not quoting as mentioned in this sentence,
the Prime Rate determined as of such Prime Rate Interest Determination Date
shall be the Prime Rate in effect on such Prime Rate Interest Determination
Date.
"Reuters Screen USPRIME1 Page" means the display designated as page
"USPRIME1" on the Reuters Monitor Money Rates Service (or such other page as may
replace the USPRIME1 page on that service for the purpose of displaying prime
rates or base lending rates of major United States banks).
Determination of Treasury Rate. If an Interest Rate Basis for this Senior
------------------------------
Note is the Treasury Rate, as specified on the face hereof, the Treasury Rate
shall be determined as of the applicable Interest Determination Date (a
"Treasury Rate Interest Determination Date") as the rate applicable to the most
recent auction of direct obligations of the United States ("Treasury
46
Bills") having the Index Maturity specified on the face hereof, as such rate is
published in H.15(519) under the heading "Treasury Bills -- auction average
(investment)" or, if not published by 3:00 P.M., New York City time, on the
related Calculation Date, the auction average rate (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) as otherwise announced by the United States Department of the
Treasury. In the event that the results of the auction of Treasury Bills having
the Index Maturity specified on the face hereof are not reported as provided by
3:00 P.M., New York City time, on such Calculation Date, or if no such auction
is held in a particular week, then the Treasury Rate shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent 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 Rate 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;
provided, however, that if any of the dealers selected as aforesaid by the
-------- -------
Calculation Agent are not quoting as mentioned in this sentence, the Treasury
Rate determined as of such Treasury Rate Interest Determination Date shall be
the Treasury Rate in effect on such Treasury Rate Interest Determination Date.
Any provision contained herein, including the determination of an Interest
Rate Basis, the specification of an Interest Rate Basis, calculation of the
interest rate applicable to this Senior Note, its Interest Payment Dates or any
other matter relating hereto may be modified as specified in an Addendum
relating hereto if so specified on the face hereof.
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 the face hereof. In addition to any Maximum
Interest Rate applicable hereto pursuant to the above provisions, the interest
rate on this Senior 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 application. The Calculation Agent shall calculate the interest rate
hereon in accordance with the foregoing on or before each Calculation Date.
Unless otherwise specified on the face hereof, The First National Bank of
Chicago will be the Calculation Agent.
At the request of the Holder hereof, the Calculation Agent shall provide to
the Holder hereof the interest rate hereon then in effect and, if determined,
the interest rate which shall become effective as of the next Interest Reset
Date.
47
If this Senior Note is an Original Issue Discount Note and if an Event of
Default with respect to this Senior Note shall have occurred and be continuing,
the Default Amount (as defined hereafter) of this Senior Note may be declared
due and payable in the manner and with the effect provided herein. The "Default
Amount" shall be equal to the adjusted issue price as of the first day of the
accrual period as determined under Final Treasury Regulation Section 1.1275-1(b)
(or successor regulation) under the United States Internal Revenue Code of 1986,
as amended, in which the date of acceleration occurs increased by the daily
portion of the original issue discount for each day in such accrual period
ending on the date of acceleration, as determined under Final Treasury
Regulation Section 1.1272-1(b) (or successor regulation) under the United States
Internal Revenue Code of 1986, as amended. Upon payment of (i) the principal,
or premium, if any, so declared due and payable and (ii) interest on any overdue
principal and overdue interest or premium, if any (in each case to the extent
that the payment of such interest shall be legally enforceable), all of the
Bank's obligations in respect of the payment of principal of, premium, if any,
and interest on, this Senior Note shall terminate.
In case any Senior Note shall at any time become mutilated, destroyed, lost
or stolen, and such Senior Note or evidence of the loss, theft or destruction
thereof satisfactory to the Bank and the Issuing and Paying Agent and such other
documents or proof as may be required by the Bank and the Issuing and Paying
Agent shall be delivered to the Issuing and Paying Agent, the Bank shall issue a
new Senior Note, of like tenor and principal amount, having a serial number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Senior Note or in lieu of the Senior Note destroyed, lost or stolen but, in the
case of any destroyed, lost or stolen Senior Note, only upon receipt of evidence
satisfactory to the Bank and the Issuing and Paying Agent that such Senior Note
was destroyed, stolen or lost, and, if required, upon receipt of indemnity
satisfactory to the Bank and the Issuing and Paying Agent. Upon the issuance of
any substituted Senior Note, the Bank and the Issuing and Paying Agent may
require the payment of a sum sufficient to cover all expenses and reasonable
charges connected with the preparation and delivery of a new Senior Note. If
any Senior Note which has matured or has been redeemed or repaid or is about to
mature or to be redeemed or repaid shall become mutilated, destroyed, lost or
stolen, the Bank may, instead of issuing a substitute Senior Note, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated Senior Note) upon compliance by the holder with the provisions of
this paragraph.
48
No recourse shall be had for the payment of principal of, premium, if any,
or interest on, this Senior Note for any claim based hereon, or otherwise in
respect hereof, against any shareholder, employee, agent, officer or director,
as such, past, present or future, of the Bank or of any successor corporation,
banking association or other legal entity (collectively, "corporation"), either
directly or through the Bank or any corporation, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issue hereof, expressly waived and released.
The occurrence of any of the following events shall constitute an "Event of
Default" with respect to this Senior Note: (i) default in the payment of any
interest with respect to any of the Senior Notes issued by the Bank when due,
which continues for 30 calendar days; (ii) default in the payment of any
principal of, or premium, if any, on, any of the Senior Notes issued by the Bank
when due; (iii) the entry by a court having jurisdiction in the premises of (a)
a decree or order for relief in respect of the Bank in an involuntary case or
proceeding under any applicable United States federal or state bankruptcy,
insolvency, reorganization or other similar law or (b) a decree or order
appointing a conservator, receiver, liquidator, assignee, trustee, sequestrator
or any other similar official of the Bank, or of substantially all of the
property of the Bank, or ordering the winding up or liquidation of the affairs
of the Bank, 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 (iv) the commencement by the Bank of a voluntary case or proceeding
under any applicable United States federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated as bankrupt or insolvent, or the consent by the Bank to the entry of
a decree or order for relief in an involuntary case or proceeding under any
applicable United States federal or state bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any bankruptcy or insolvency case
or proceeding, or the filing by the Bank of a petition or answer or consent
seeking reorganization or relief under any applicable United States federal or
state bankruptcy, insolvency, reorganization or similar law, or the consent by
the Bank to the filing of such petition or to the appointment of or taking
possession by a custodian, conservator, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Bank or of substantially all of the
property of the Bank, or the making by the Bank of an assignment for the benefit
of creditors, or the taking of corporate action by the Bank in furtherance of
any such action. If an Event of Default shall occur and be continuing, the
holder of this Senior Note may declare the principal amount of, accrued interest
and premium, if any, on, this
49
Senior Note due and payable immediately by written notice to the Bank. Upon
such declaration and notice, such principal amount, accrued interest and
premium, if any, shall become immediately due and payable. Any Event of Default
with respect to this Senior Note may be waived by the holder hereof.
The Issuing and Paying Agency Agreement provides that the Bank will
promptly notify, and provide copies of any such notice to, the Issuing and
Paying Agent, and the Issuing and Paying Agent will promptly mail by first-class
mail, postage prepaid, copies of such notice to the holders of the Senior Notes,
upon the occurrence of an Event of Default or of the curing or waiver of an
Event of Default.
Nothing contained herein shall prevent any consolidation or merger of the
Bank with any other corporation or successive consolidations or mergers in which
the Bank or its successor or successors shall be a party or parties, or shall
prevent any sale, conveyance, transfer or lease of the property of the Bank as
an entirety or substantially as an entirety to any other corporation authorized
to acquire and operate the same; provided, however (and the Bank hereby
-------- -------
covenants and agrees) that any such consolidation, merger, sale or conveyance
shall be upon the condition that: (i) immediately after such consolidation,
merger, sale or conveyance the corporation (whether the Bank or such other
corporation) formed by or surviving any such consolidation or merger, or the
corporation to which such sale or conveyance shall have been made, shall not be
in default in the performance or observance of any of the terms, covenants and
conditions of this Senior Note to be observed or performed by the Bank; and (ii)
the corporation (if other than the Bank) formed by or surviving any such
consolidation or merger, or the corporation to which such sale or conveyance
shall have been made, shall be organized under the laws of the United States of
America or any state thereof or the District of Columbia and shall expressly
assume the due and punctual payment of the principal of, premium, if any, and
interest on, this Senior Note. In case of any such consolidation, merger, sale,
conveyance, transfer or lease, and upon the assumption by the successor
corporation of the due and punctual performance of all of the covenants in this
Senior Note to be performed or observed by the Bank, such successor corporation
shall succeed to and be substituted for the Bank with the same effect as if it
had been named in this Senior Note as the Bank and thereafter the predecessor
corporation shall be relieved of all obligations and covenants in this Senior
Note and may be liquidated and dissolved.
Any action by the holder of this Senior Note shall bind all future holders
of this Senior Note, and of any Senior Note issued in exchange or substitution
hereof or in place hereof, in respect of anything done or permitted by the Bank
or by the Issuing and Paying Agent in pursuance of such action.
50
The Issuing and Paying Agent shall maintain at its offices a register (the
register maintained in such office or any other office or agency of the Issuing
and Paying Agent herein referred to as the "Senior Note Register") in which,
subject to such reasonable regulations as it may prescribe, the Issuing and
Paying Agent shall provide for the registration of the Senior Notes and of
transfers of the Senior Notes.
The transfer of this Senior Note is registrable in the Senior Note
Register, upon surrender of this Senior Note for registration of transfer at the
office or agency of the Issuing and Paying Agent in the Place of Payment, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Bank and the Issuing and Paying Agent duly executed by, the
holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Senior Notes of like tenor, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
No provision of this Senior Note shall alter or impair the obligation of
the Bank, which is absolute and unconditional, to pay principal of, premium, if
any, and interest on, this Senior Note in U.S. dollars at the times, places and
rate herein prescribed in accordance with its terms.
No service charge shall be made to a holder of this Senior Note for any
transfer or exchange of this Senior Note, but the Bank may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith.
Beneficial interests represented by this Senior Note are exchangeable for
definitive Senior Notes in registered form, of like tenor and of an equal
aggregate principal amount, only if (x) The Depository Trust Company, as
Depositary (the "Depositary") notifies the Bank that it is unwilling or unable
to continue as Depositary for this Senior Note or if at any time the Depositary
ceases to be a clearing agency registered under the Securities Exchange Act of
1934, as amended, and a successor depositary is not appointed by the Bank within
60 days, or (y) the Bank in its sole discretion determines not to have such
beneficial interests represented by this Senior Note. Any Senior Note
representing such beneficial interests that is exchangeable pursuant to the
preceding sentence shall be exchangeable in whole for definitive Senior Notes in
registered form, of like tenor and of an equal aggregate principal amount, in
minimum denominations of $250,000 and integral multiples of $1,000 in excess
thereof. Such definitive Senior Notes shall be registered in the name or names
of such person or persons as the Depositary shall instruct the Issuing and
Paying Agent.
51
Prior to due presentment of this Senior Note for registration of transfer,
the Bank, the Issuing and Paying Agent or any agent of the Bank or the Issuing
and Paying Agent may treat the holder in whose name this Senior Note is
registered as the owner hereof for all purposes, whether or not this Senior Note
be overdue, and neither the Bank, the Issuing and Paying Agent nor any such
agent shall be affected by notice to the contrary except as required by
applicable law.
All notices to the Bank under this Senior Note shall be in writing and
addressed to Providian National Bank, c/o Providian Financial Corporation, 000
Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Treasurer, or to
such other address of the Bank as the Bank may notify the holders of the Senior
Notes.
This Senior Note shall be governed by, and construed in accordance with,
the laws of the State of New York, without regard to conflicts of laws
principles and all applicable federal laws and regulations.
52
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
the within Senior Note, 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.
53
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY NUMBER OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
____________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address,
including postal zip code, of assignee)
the within Senior Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
to transfer said Senior Note on the books of the Issuing and Paying Agent, 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 Senior Note in
every particular, without alteration or
enlargement or any change whatsoever.
________________________________
Signature Guarantee
54
OPTION TO ELECT REPAYMENT
-------------------------
The undersigned hereby irrevocably request(s) and instruct(s) the Bank to
repay this Senior Note (or portion hereof specified below) pursuant to its terms
at a price equal to 100% of the principal amount hereof to be repaid, together
with accrued and unpaid interest hereon, payable to the date of repayment, to
the undersigned, at_____________________________________________________________
______________________________________________________________________________.
(Please print or typewrite name and address of the undersigned)
For this Senior Note to be repaid, the undersigned must give to the Issuing
and Paying Agent at its offices located at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000, Attention: Corporate Trust Administration, or at such other
place or places of which the Bank shall from time to time notify the holders of
the Senior Notes, not more than 60 days nor less than 30 days prior notice to
the date of repayment, with this "Option to Elect Repayment" form duly
completed.
If less than the entire principal amount of this Senior Note is to be
repaid, specify the portion hereof (which shall be increments of $1,000) which
the holder elects to have repaid and specify the denomination or denominations
(which shall be $250,000 or an integral multiple of $1,000 in excess thereof) of
the Senior Notes to be issued to the holder for the portion of this Senior Note
not being repaid (in the absence of any such specification, one such Senior Note
will be issued for the portion not being repaid):
$______________________________ ______________________________
NOTICE: The signature on this
Dated: ________________________ "Option to Elect Repayment" form must
correspond with the name as written upon the
face of the within Senior Note in every
particular, without alteration or
enlargement or any change whatsoever.
________________________________
Signature Guarantee
55
Exhibit A-3
(Form of Fixed Rate Global Subordinated Bank Note)
56
THIS SUBORDINATED NOTE IS AN OBLIGATION SOLELY OF THE BANK AND WILL NOT BE AN
OBLIGATION OF, OR OTHERWISE GUARANTEED BY, ANY OTHER BANK OR PROVIDIAN FINANCIAL
CORPORATION. THIS SUBORDINATED NOTE DOES NOT EVIDENCE DEPOSITS OF THE BANK AND
IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENT AGENCY. THIS SUBORDINATED NOTE IS SUBORDINATED TO THE CLAIMS OF
DEPOSITORS AND GENERAL CREDITORS OF THE BANK, IS INELIGIBLE AS COLLATERAL FOR A
LOAN BY THE BANK AND IS NOT SECURED.
UNLESS THIS SUBORDINATED NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) (THE
"DEPOSITARY") TO THE BANK OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY SUBORDINATED NOTE ISSUED UPON REGISTRATION OF TRANSFER OF, OR
IN EXCHANGE FOR, OR IN LIEU OF, THIS SUBORDINATED NOTE IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY 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.
THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
THIS SUBORDINATED NOTE IS ISSUABLE ONLY IN FULLY REGISTERED FORM IN MINIMUM
DENOMINATIONS OF $250,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF.
EACH OWNER OF A BENEFICIAL INTEREST IN THIS SUBORDINATED NOTE MUST BE AN
INSTITUTIONAL INVESTOR WHO IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF
RULE 501 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND IS REQUIRED TO HOLD A
BENEFICIAL INTEREST IN $250,000 PRINCIPAL AMOUNT OR ANY INTEGRAL MULTIPLE OF
$1,000 IN EXCESS THEREOF OF THIS SUBORDINATED NOTE AT ALL TIMES.
No. FXR-________
CUSIP NO.: _______ REGISTERED
GLOBAL SUBORDINATED BANK NOTE
(Fixed Rate)
57
ORIGINAL ISSUE DATE: PRINCIPAL AMOUNT:
INTEREST RATE: ______% MATURITY DATE:
INTEREST PAYMENT DATE(S): REGULAR RECORD DATES
[ ] At Maturity only (if other than May 1
[ ] May 15 and November 15 or November 1, prior to each
[ ] Other: Interest Payment Date):
INITIAL REDEMPTION INITIAL REDEMPTION
DATE: PERCENTAGE:
ANNUAL REDEMPTION HOLDER'S OPTIONAL
PERCENTAGE REDUCTION: REPAYMENT DATE(S):
DAY COUNT CONVENTION
[ ] 30/360 FOR THE PERIOD FROM TO .
[ ] ACTUAL/360 FOR THE PERIOD FROM TO .
[ ] ACTUAL/ACTUAL FOR THE PERIOD FROM TO .
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT:
[ ] Yes [ ] Yes
[ ] No [ ] No
DEFAULT RATE: ______% Total Amount of OID:
Yield to Maturity:
Initial Accrual Period:
OTHER PROVISIONS:
58
Providian National Bank, a national banking association (the "Bank"), for
value received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of ______________________________________________________________
United States Dollars on the Maturity Date specified above (except to the extent
redeemed or repaid prior to the Maturity Date) and to pay interest thereon from
and including the Original Issue Date specified above or from and including the
most recent interest payment date on which interest on this Subordinated Note
(or any predecessor Subordinated Note) has been paid or duly provided for, semi-
annually on May 15 and November 15 of each year (unless otherwise specified on
the face hereof) (each, an "Interest Payment Date") and at maturity or upon
earlier redemption or repayment, if applicable, commencing on the first Interest
Payment Date next succeeding the Original Issue Date (or, if the Original Issue
Date is between a Regular Record Date (as defined below) and the Interest
Payment Date immediately following such Regular Record Date, on the second
Interest Payment Date following the Original Issue Date), at the Interest Rate
per annum 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 Subordinated Note specified above. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will be paid to the person in whose name this Subordinated Note (or any
predecessor Subordinated Note) is registered at the close of business on the
Regular Record Date, which shall be the May 1 and November 1 (whether or not a
Business Day (as defined below)), as the case may be, next preceding the
applicable Interest Payment Date (unless otherwise specified on the face hereof)
(each, a "Regular Record Date"); provided, however, that interest payable at
-------- -------
maturity or upon earlier redemption or repayment, if applicable, will be payable
to the person to whom principal shall be payable. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
holder as of the close of business on such Regular Record Date, and may either
be paid to the person in whose name this Subordinated Note (or any predecessor
Subordinated Note) is registered at the close of business on a special record
date for the payment of such defaulted interest (the "Special Record Date") to
be fixed by the Bank, notice of which shall be given to the holders of
Subordinated Notes not less than 10 calendar days prior to such Special Record
Date, or be paid at any time in any other lawful manner.
Payment of principal of, premium, if any, and interest on, this
Subordinated Note will be made 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. The Bank will at all times appoint and maintain an issuing and
paying agent (the
59
"Issuing and Paying Agent," which term shall include any successor Issuing and
Paying Agent), authorized by the Bank to pay principal of, premium, if any, and
interest on, this Subordinated Note on behalf of the Bank pursuant to an issuing
and paying agency agreement (the "Issuing and Paying Agency Agreement") and
having an office or agency (the "Issuing and Paying Agent Office") in Chicago,
Illinois, New York, New York or the city in which the Bank is headquartered (the
"Place of Payment"), where this Subordinated Note may be presented or
surrendered for payment and where notices, designations or requests in respect
of payments with respect to this Subordinated Note may be served. The Bank has
initially appointed The First National Bank of Chicago as the Issuing and Paying
Agent, with the Issuing and Paying Agent Office currently located at Xxx Xxxxx
Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Administration. The Bank may remove the Issuing and Paying Agent pursuant to
the terms of the Issuing and Paying Agency Agreement and may appoint a successor
Issuing and Paying Agent.
Payment of principal of, premium, if any, and interest on, this
Subordinated Note due at maturity or upon earlier redemption or repayment, if
applicable, will be made in immediately available funds upon presentation and
surrender of this Subordinated Note to the Issuing and Paying Agent at the
Issuing and Paying Agent Office; provided that this Subordinated Note is
presented to the Issuing and Paying Agent in time for the Issuing and Paying
Agent to make such payment in accordance with its normal procedures. Payments
of interest on this Subordinated Note (other than at maturity or upon earlier
redemption or repayment) will be made by wire transfer to such account as has
been appropriately designated to the Issuing and Paying Agent by the person
entitled to such payments.
Reference herein to "this Subordinated Note", "hereof", "herein" and
comparable terms shall include an Addendum hereto if an Addendum is specified
above.
Reference is hereby made to the further provisions of this Subordinated
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.
60
IN WITNESS WHEREOF, the Bank has caused this Subordinated Note to be duly
executed.
By: ________________________________
Authorized Signatory
Dated:
ISSUING AND PAYING AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Subordinated Notes referred to in the Issuing and Paying
Agency Agreement.
The First National Bank of Chicago,
as Issuing and Paying Agent
By: ______________________________
Authorized Signatory
61
[Reverse]
This Subordinated Note is one of a duly authorized issue of Subordinated
Bank Notes of the Bank due from five years to 15 years from date of issue (the
"Subordinated Notes").
Payments of interest hereon will include interest accrued to but excluding
the relevant Interest Payment Date or Maturity Date or date of earlier
redemption or repayment, as the case may be. Unless otherwise specified on the
face hereof, interest on this Subordinated Note will be computed on the basis of
a 360-day year of twelve 30-day months.
Any provision contained herein with respect to the calculation of the rate
of interest applicable to this Subordinated Note, its Interest Payment Dates or
any other matter relating hereto may be modified as specified in an Addendum
relating hereto if so specified on the face hereof.
If any Interest Payment Date, Maturity Date or date of earlier redemption
or repayment of this Subordinated Note falls on a day which is not a Business
Day, the related payment of principal of, premium, if any, or interest on, this
Subordinated Note shall be made on the next succeeding Business Day with the
same force and effect as if made on the date such payment were due, and no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Maturity Date or date of earlier redemption or
repayment, as the case may be. "Business Day" means, unless otherwise specified
on the face hereof, any day that is not a Saturday or Sunday and that in The
City of New York or in the city in which the Bank is headquartered is not a day
on which banking institutions are authorized or required by law, regulation or
executive order to close.
The indebtedness of the Bank evidenced by this Subordinated Note, including
principal, premium, if any, and interest, shall be subordinate and junior in
right of payment to the Bank's obligations to its depositors, its obligations
under bankers' acceptances, letters of credit and Senior Notes (as such term is
defined in the Issuing and Paying Agency Agreement) and its obligations to its
other creditors (including its obligations to the Federal Reserve Bank, the
Federal Deposit Insurance Corporation and any rights acquired by the Federal
Deposit Insurance Corporation as a result of loans made by the Federal Deposit
Insurance Corporation to the Bank or the purchase or guarantee of any of its
assets by the Federal Deposit Insurance Corporation, pursuant to the provisions
of 12 U.S.C. Section 1823(c) or (d), in each case whether now outstanding or
hereafter incurred, other than to obligations (1) to holders of debt obligations
that by their express terms rank on a parity with or junior to the Subordinated
Notes and (2) for claims of the Federal Deposit Insurance
62
Corporation pursuant to the provisions of 12 U.S.C. Section 1815(e) (relating to
liability incurred in connection with commonly controlled depository
institutions). In the event any default shall have occurred with respect to any
such obligations of the Bank under the Credit Agreement dated as of May 14,
1996, as amended, among the Bank and certain of its affiliates and the Lenders
and Agent named therein, as modified, amended, supplemented, restated or
replaced from time to time, then unless and until such default shall have been
cured or waived or shall cease to exist, no direct or indirect payment of
principal, premium, if any, or interest on this Subordinated Note, or in respect
of any redemption, retirement, purchase or other acquisition of this
Subordinated Note, shall be made by the Bank. In case of any insolvency,
receivership, conservatorship, reorganization, readjustment of debt, marshalling
of assets and liabilities or similar proceedings or any liquidation or winding-
up of or relating to the Bank, whether voluntary or involuntary, all such
obligations (except obligations which rank on a parity with, or junior to, this
Subordinated Note) shall be entitled to be paid in full before any payment shall
be made on account of the principal of, premium, if any, or interest on this
Subordinated Note. In the event of any such proceeding, after payment in full
of all sums owing with respect to such prior obligations, the holder of this
Subordinated Note, together with the holders of any obligations of the Bank
ranking on a parity with this Subordinated Note, shall be entitled to be paid
from the remaining assets of the Bank the unpaid principal of, premium, if any,
and interest on this Subordinated Note and such other obligations before any
payment or other distribution, whether in cash, property or otherwise, shall be
made on account of any capital stock or any obligations of the Bank ranking
junior to this Subordinated Note.
This Subordinated Note will not be subject to any sinking fund. If so
provided on the face of this Subordinated Note, this Subordinated Note may be
redeemed by the Bank either in whole or in part on and after the Initial
Redemption Date, if any, specified on the face hereof; provided, however, that
-------- -------
this Subordinated Note may be so redeemed without the prior approval of the
Comptroller of the Currency of the United States if the Bank would remain an
"eligible bank" (as defined in 12 C.F.R. (S) 5.3(g)) after such redemption,
unless the Comptroller of the Currency of the United States has notified the
Bank that such prior approval is required or such prior approval is otherwise
required by law. If no Initial Redemption Date is specified on the face hereof,
this Subordinated Note may not be redeemed prior to the Maturity Date. On and
after the Initial Redemption Date, if any, this Subordinated Note may be
redeemed in increments of $1,000 (provided that any remaining principal amount
hereof shall be at least $250,000) at the option of the Bank at the applicable
Redemption Price (as defined below), together with unpaid interest accrued
hereon at the applicable rate borne by this Subordinated Note to the date of
redemption (each such date, a "Redemption Date"), on written notice given not
more
63
than 60 nor less than 30 calendar days prior to the Redemption Date to the
registered holder hereof. Whenever less than all the Subordinated Notes at any
time outstanding are to be redeemed, the terms of the Subordinated Notes to be
so redeemed shall be selected by the Bank. If less than all the Subordinated
Notes with identical terms at any time outstanding are to be redeemed, the
Subordinated Notes to be so redeemed shall be selected by the Issuing and Paying
Agent by lot or in any usual manner approved by it. In the event of redemption
of this Subordinated Note in part only, a new Subordinated Note for the
unredeemed portion hereof shall be issued in the name of the holder hereof upon
the surrender hereof.
The "Redemption Price" shall initially be the Initial Redemption Percentage
specified on the face hereof of the principal amount of this Subordinated Note
to be redeemed and shall decline at each anniversary of the Initial Redemption
Date specified on the face hereof by the Annual Redemption Percentage Reduction,
if any, specified on the face hereof, of the principal amount to be redeemed
until the Redemption Price is 100% of such principal amount.
This Subordinated Note may be subject to repayment at the option of the
holder hereof in accordance with the terms hereof on any Holder's Optional
Repayment Date(s), if any, specified on the face hereof. If no Holder's
Optional Repayment Date is specified on the face hereof, this Subordinated Note
will not be repayable at the option of the holder hereof prior to maturity. On
any Holder's Optional Repayment Date, this Subordinated Note will be repayable
in whole or in part in increments of $1,000 (provided that any remaining
principal amount hereof will be at least $250,000) at the option of the holder
hereof at a repayment price equal to 100% of the principal amount to be repaid,
together with accrued and unpaid interest hereon payable to the date of
repayment. For this Subordinated Note to be repaid in whole or in part at the
option of the holder hereof on a Holder's Optional Repayment Date, this
Subordinated Note must be delivered, with the form entitled "Option to Elect
Repayment" attached hereto duly completed, to the Issuing and Paying Agent at
its offices located at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Trust Administration, or at such other address which the
Bank shall from time to time notify the holders of the Subordinated Notes, not
more than 60 nor less than 30 calendar days prior to such Holder's Optional
Repayment Date. In the event of repayment of this Subordinated Note in part
only, a new Subordinated Note for the unrepaid portion hereof shall be issued in
the name of the holder hereof upon the surrender hereof. Exercise of such
repayment option by the holder hereof shall be irrevocable. Unless otherwise
provided for on the face of this Subordinated Note, this Subordinated Note will
not be repayable at the option of the holder hereof prior to the Maturity Date
without the prior approval of the Comptroller of the Currency of the United
States; provided,
--------
64
however, that this Subordinated Note may be so repaid without the prior approval
-------
of the Comptroller of the Currency of the United States if the Bank would remain
an "eligible bank" (as defined in 12 C.F.R. (S) 5.3(g)) after such repayment,
unless the Comptroller of the Currency of the United States has notified the
Bank that such prior approval is required or such prior approval is otherwise
required by law.
If this Subordinated Note is an Original Issue Discount Note and if an
Event of Default with respect to this Subordinated Note shall have occurred and
be continuing, the Default Amount (as defined hereafter) of this Subordinated
Note may be declared due and payable in the manner and with the effect provided
herein. The "Default Amount" shall be equal to the adjusted issue price as of
the first day of the accrual period as determined under Final Treasury
Regulation Section 1.1275-1(b) (or successor regulation) under the United States
Internal Revenue Code of 1986, as amended, in which the date of acceleration
occurs increased by the daily portion of the original issue discount for each
day in such accrual period ending on the date of acceleration, as determined
under Final Treasury Regulation Section 1.1272-1(b) (or successor regulation)
under the United States Internal Revenue Code of 1986, as amended. Upon payment
of (i) the principal, or premium, if any, so declared due and payable and (ii)
interest on any overdue principal and overdue interest or premium, if any (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Bank's obligations in respect of the payment of
principal of, premium, if any, and interest on, this Subordinated Note shall
terminate.
In case any Subordinated Note shall at any time become mutilated,
destroyed, lost or stolen, and such Subordinated Note or evidence of the loss,
theft or destruction thereof satisfactory to the Bank and the Issuing and Paying
Agent and such other documents or proof as may be required by the Bank and the
Issuing and Paying Agent shall be delivered to the Issuing and Paying Agent, the
Bank shall issue a new Subordinated Note, of like tenor and principal amount,
having a serial number not contemporaneously outstanding, in exchange and
substitution for the mutilated Subordinated Note or in lieu of the Subordinated
Note destroyed, lost or stolen but, in the case of any destroyed, lost or stolen
Subordinated Note, only upon receipt of evidence satisfactory to the Bank and
the Issuing and Paying Agent that such Subordinated Note was destroyed, stolen
or lost, and, if required, upon receipt of indemnity satisfactory to the Bank
and the Issuing and Paying Agent. Upon the issuance of any substituted
Subordinated Note, the Bank and the Issuing and Paying Agent may require the
payment of a sum sufficient to cover all expenses and reasonable charges
connected with the preparation and delivery of a new Subordinated Note. If any
Subordinated Note which has matured or has been redeemed or repaid or is about
to mature or to be redeemed or repaid shall become mutilated, destroyed, lost or
stolen, the Bank may, instead of issuing a
65
substitute Subordinated Note, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Subordinated Note) upon
compliance by the holder with the provisions of this paragraph.
No recourse shall be had for the payment of principal of, premium, if any,
or interest on, this Subordinated Note for any claim based hereon, or otherwise
in respect hereof, against any shareholder, employee, agent, officer or
director, as such, past, present or future, of the Bank or of any successor
corporation, banking association or other legal entity (collectively,
"corporation"), either directly or through the Bank or any corporation, whether
by virtue of any constitution, statute or rule of law or by the enforcement of
any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
An "Event of Default" with respect to this Subordinated Note will occur if
the Bank shall consent to, or a court or other governmental agency shall enter a
decree or order for, the appointment of a conservator or receiver or other
similar official in any liquidation, insolvency or similar proceeding with
respect to the Bank or all or substantially all of its property and, in the case
of a decree or order, such decree or order shall have remained in force for a
period of 60 consecutive days. If an Event of Default shall occur and be
continuing, the holder of this Subordinated Note may declare the principal
amount of, and accrued interest and premium, if any, on, this Subordinated Note
due and payable immediately by written notice to the Bank. Upon such
declaration and notice, such principal amount, accrued interest and premium, if
any, shall become immediately due and payable; PROVIDED, HOWEVER, THAT NO
-------- -------
ACCELERATED PAYMENT MAY BE MADE WITHOUT THE PRIOR WRITTEN APPROVAL OF THE
COMPTROLLER OF THE CURRENCY OF THE UNITED STATES. Any Event of Default with
respect to this Subordinated Note may be waived by the holder hereof. THERE IS
NO RIGHT OF ACCELERATION IN THE CASE OF A DEFAULT IN THE PAYMENT OF PRINCIPAL
OF, PREMIUM, IF ANY, OR INTEREST ON, THIS SUBORDINATED NOTE OR IN THE
PERFORMANCE OF ANY OTHER OBLIGATION OF THE BANK UNDER THIS SUBORDINATED NOTE OR
UNDER ANY OTHER SECURITY ISSUED BY THE BANK.
The Issuing and Paying Agency Agreement provides that the Bank will
promptly notify, and provide copies of any such notice to, the Issuing and
Paying Agent, and the Issuing and Paying Agent will promptly mail by first-class
mail, postage prepaid, copies of such notice to the holders of the Subordinated
Notes, upon the occurrence of an Event of Default or of the curing or waiver of
an Event of Default.
ANYTHING TO THE CONTRARY HEREIN NOTWITHSTANDING, THIS SUBORDINATED NOTE IS
NOT SUBJECT TO REDEMPTION PRIOR TO MATURITY
66
AND MAY NOT BE REPAID PRIOR TO MATURITY, EITHER PURSUANT TO ACCELERATION IN THE
EVENT OF DEFAULT OR OTHERWISE, WITHOUT THE PRIOR WRITTEN APPROVAL OF THE
COMPTROLLER OF THE CURRENCY OF THE UNITED STATES.
Nothing contained herein shall prevent any consolidation or merger of the
Bank with any other corporation or successive consolidations or mergers in which
the Bank or its successor or successors shall be a party or parties, or shall
prevent any sale, conveyance, transfer or lease of the property of the Bank as
an entirety or substantially as an entirety to any other corporation authorized
to acquire and operate the same; provided, however (and the Bank hereby
-------- -------
covenants and agrees) that any such consolidation, merger, sale or conveyance
shall be upon the condition that: (i) immediately after such consolidation,
merger, sale or conveyance the corporation (whether the Bank or such other
corporation) formed by or surviving any such consolidation or merger, or the
corporation to which such sale or conveyance shall have been made, shall not be
in default in the performance or observance of any of the terms, covenants and
conditions of this Subordinated Note to be observed or performed by the Bank;
and (ii) the corporation (if other than the Bank) formed by or surviving any
such consolidation or merger, or the corporation to which such sale or
conveyance shall have been made, shall be organized under the laws of the United
States of America or any state thereof or the District of Columbia and shall
expressly assume the due and punctual payment of the principal of, premium, if
any, and interest on, this Subordinated Note. In case of any such
consolidation, merger, sale, conveyance, transfer or lease, and upon the
assumption by the successor corporation of the due and punctual performance of
all of the covenants in this Subordinated Note to be performed or observed by
the Bank, such successor corporation shall succeed to and be substituted for the
Bank with the same effect as if it had been named in this Subordinated Note as
the Bank and thereafter the predecessor corporation shall be relieved of all
obligations and covenants in this Subordinated Note and may be liquidated and
dissolved.
Notwithstanding any other provision of this Subordinated Note, including
specifically the provisions set forth herein relating to subordination, events
of default and covenants of the Bank, it is expressly understood and agreed that
the Comptroller of the Currency of the United States or any receiver or
conservator of the Bank appointed by the Comptroller of the Currency of the
United States shall have the right in the performance of his legal duties, and
as part of any transaction or plan of reorganization or liquidation designed to
protect or further the continued existence of the Bank or the rights of any
parties or agencies with an interest in, or claim against, the Bank or its
assets, to transfer or direct the transfer of the obligations of this
Subordinated Note to any national banking association, state bank or bank
holding company selected by such official which shall expressly assume the
67
obligation of the due and punctual payment of the unpaid principal of, premium,
if any, and interest on, this Subordinated Note and the due and punctual
performance of all covenants and conditions hereof; and that the completion of
such transfer and assumption shall serve to supersede and void any default,
acceleration or subordination which may have occurred, or which may occur due or
related to such transaction, plan, transfer or assumption pursuant to the
provisions of this Subordinated Note, and shall serve to return the holder
hereof to the same position, other than for substitution of the obligor, it
would have occupied had no default, acceleration or subordination occurred;
except that any interest, premium and principal previously due, other than by
reason of acceleration, and not paid shall, in the absence of a contrary
agreement by the holder of this Subordinated Note, be deemed to be immediately
due and payable as of the date of such transfer and assumption, together with
interest from its original due date at the rate provided for herein.
Any action by the holder of this Subordinated Note shall bind all future
holders of this Subordinated Note, and of any Subordinated Note issued in
exchange or substitution hereof or in place hereof, in respect of anything done
or permitted by the Bank or by the Issuing and Paying Agent in pursuance of such
action.
The Issuing and Paying Agent shall maintain at its offices a register (the
register maintained in such office or any other office or agency of the Issuing
and Paying Agent herein referred to as the "Subordinated Note Register") in
which, subject to such reasonable regulations as it may prescribe, the Issuing
and Paying Agent shall provide for the registration of the Subordinated Notes
and of transfers of the Subordinated Notes.
The transfer of this Subordinated Note is registrable in the Subordinated
Note Register, upon surrender of this Subordinated Note for registration of
transfer at the office or agency of the Issuing and Paying Agent in the Place of
Payment, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Bank and the Issuing and Paying Agent duly executed by,
the holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Subordinated Notes of like tenor, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
No provision of this Subordinated Note shall alter or impair the obligation
of the Bank, which is absolute and unconditional, to pay principal of, premium,
if any, and interest on, this Subordinated Note in U.S. dollars at the times,
places and rate herein prescribed in accordance with its terms.
In the event of the failure by the Bank to make payment of principal of,
premium, if any, or interest on this Subordinated
68
Note (and, in the case of payment of interest, such failure to pay shall have
continued for two Business Days), the Bank will, upon demand of the holder of
this Subordinated Note, pay to the holder of this Subordinated Note the whole
amount then due and payable on this Subordinated Note for principal, premium, if
any, and interest, with interest on the overdue principal of, premium, if any,
and interest on, this Subordinated Note to the extent provided for herein. If
the Bank fails to pay such amount upon such demand, the holder of this
Subordinated Note may among other things, institute a judicial proceeding for
the collection of such amount.
No service charge shall be made to a holder of this Subordinated Note for
any transfer or exchange of this Subordinated Note, but the Bank may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith.
Beneficial interests represented by this Subordinated Note are exchangeable
for definitive Subordinated Notes in registered form, of like tenor and of an
equal aggregate principal amount, only if (x) The Depository Trust Company, as
Depositary (the "Depositary") notifies the Bank that it is unwilling or unable
to continue as Depositary for this Subordinated Note or if at any time the
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and a successor depositary is not appointed by
the Bank within 60 days, or (y) the Bank in its sole discretion determines not
to have such beneficial interests represented by this Subordinated Note. Any
Subordinated Note representing such beneficial interests that is exchangeable
pursuant to the preceding sentence shall be exchangeable in whole for definitive
Subordinated Notes in registered form, of like tenor and of an equal aggregate
principal amount, in minimum denominations of $250,000 and integral multiples of
$1,000 in excess thereof. Such definitive Subordinated Notes shall be
registered in the name or names of such person or persons as the Depositary
shall instruct the Issuing and Paying Agent.
Prior to due presentment of this Subordinated Note for registration of
transfer, the Bank, the Issuing and Paying Agent or any agent of the Bank or the
Issuing and Paying Agent may treat the holder in whose name this Subordinated
Note is registered as the owner hereof for all purposes, whether or not this
Subordinated Note be overdue, and neither the Bank, the Issuing and Paying Agent
nor any such agent shall be affected by notice to the contrary except as
required by applicable law.
All notices to the Bank under this Subordinated Note shall be in writing
and addressed to Providian National Bank, c/o Providian Financial Corporation,
000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Treasurer, or
to such other address of the Bank as the Bank may notify the holders of the
Subordinated Notes.
69
This Subordinated Note shall be governed by, and construed in accordance
with, the laws of the State of New York, without regard to conflicts of laws
principles and all applicable federal laws and regulations.
70
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
the within Subordinated Note, 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.
71
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto _________________________________________________
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY NUMBER OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
____________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address,
including postal zip code, of assignee)
the within Subordinated Note and all rights thereunder, and hereby irrevocably
constitutes and appoints _______________________________________________________
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
to transfer said Subordinated Note on the books of the Issuing and Paying Agent,
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 Subordinated Note
in every particular, without
alteration or enlargement or any
change whatsoever.
________________________________
Signature Guarantee
72
OPTION TO ELECT REPAYMENT
-------------------------
The undersigned hereby irrevocably request(s) and instruct(s) the Bank
to repay this Subordinated Note (or portion hereof specified below) pursuant to
its terms at a price equal to 100% of the principal amount hereof to be repaid,
together with accrued and unpaid interest hereon, payable to the date of
repayment, to the undersigned, at ______________________________________________
_______________________________________________________________________________.
(Please print or typewrite name and address of the undersigned)
For this Subordinated Note to be repaid, the undersigned must give to the
Issuing and Paying Agent at its offices located at Xxx Xxxxx Xxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Administration, or at such
other place or places of which the Bank shall from time to time notify the
holders of the Subordinated Notes, not more than 60 days nor less than 30 days
prior notice to the date of repayment, with this "Option to Elect Repayment"
form duly completed.
If less than the entire principal amount of this Subordinated Note is to be
repaid, specify the portion hereof (which shall be increments of $1,000) which
the holder elects to have repaid and specify the denomination or denominations
(which shall be $250,000 or an integral multiple of $1,000 in excess thereof) of
the Subordinated Notes to be issued to the holder for the portion of this
Subordinated Note not being repaid (in the absence of any such specification,
one such Subordinated Note will be issued for the portion not being repaid):
$______________________________ ______________________________
NOTICE: The signature on this
Dated: ________________________ "Option to Elect Repayment" form must
correspond with the name as written upon the
face of the within Subordinated Note in
every particular, without alteration or
enlargement or any change whatsoever.
________________________________
Signature Guarantee
73
Exhibit A-4
(Form of Floating Rate Global Subordinated Bank Note)
74
THIS SUBORDINATED NOTE IS AN OBLIGATION SOLELY OF THE BANK AND WILL NOT BE AN
OBLIGATION OF, OR OTHERWISE GUARANTEED BY, ANY OTHER BANK OR PROVIDIAN FINANCIAL
CORPORATION. THIS SUBORDINATED NOTE DOES NOT EVIDENCE DEPOSITS OF THE BANK AND
IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENT AGENCY. THIS SUBORDINATED NOTE IS SUBORDINATED TO THE CLAIMS OF
DEPOSITORS AND GENERAL CREDITORS OF THE BANK, IS INELIGIBLE AS COLLATERAL FOR A
LOAN BY THE BANK AND IS NOT SECURED.
UNLESS THIS SUBORDINATED NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) (THE
"DEPOSITARY") TO THE BANK OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY SUBORDINATED NOTE ISSUED UPON REGISTRATION OF TRANSFER OF, OR
IN EXCHANGE FOR, OR IN LIEU OF, THIS SUBORDINATED NOTE IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY 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.
THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
THIS SUBORDINATED NOTE IS ISSUABLE ONLY IN FULLY REGISTERED FORM IN MINIMUM
DENOMINATIONS OF $250,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF.
EACH OWNER OF A BENEFICIAL INTEREST IN THIS SUBORDINATED NOTE MUST BE AN
INSTITUTIONAL INVESTOR WHO IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF
RULE 501 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND IS REQUIRED TO HOLD A
BENEFICIAL INTEREST IN $250,000 PRINCIPAL AMOUNT OR ANY INTEGRAL MULTIPLE OF
$1,000 IN EXCESS THEREOF OF THIS SUBORDINATED NOTE AT ALL TIMES.
No. FLR-__________ REGISTERED
CUSIP NO.: __________
GLOBAL SUBORDINATED BANK NOTE
(Floating Rate)
75
ORIGINAL ISSUE DATE: PRINCIPAL AMOUNT:
INITIAL INTEREST RATE: ______% MATURITY DATE:
INTEREST RATE INDEX MATURITY:
BASIS OR BASES:
IF LIBOR: REGULAR RECORD
[ ] Libor Telerate DATES (if other than the 15th day
[ ] Libor Reuters prior to each Interest Payment
Date):
INDEX CURRENCY:
MINIMUM INTEREST RATE:
SPREAD (PLUS OR MINUS)
AND/OR SPREAD MULTIPLIER: INTEREST PAYMENT PERIOD:
MAXIMUM INTEREST RATE: INTEREST RESET PERIOD:
INTEREST PAYMENT DATE: CALCULATION AGENT:
ANNUAL REDEMPTION
INITIAL INTEREST RESET DATE: PERCENTAGE REDUCTION:
HOLDER'S OPTIONAL
INTEREST RESET DATES: REPAYMENT DATE(S):
DAY COUNT CONVENTION
INITIAL REDEMPTION DATE: [ ] 30/360 for the period
from _______ to _________.
[ ] Actual/360 for the
INITIAL REDEMPTION PERCENTAGE: period from _______ to _______.
[ ] Actual/Actual for the
period from _______ to _______.
INTEREST CALCULATION:
[ ] Regular Floating Rate ORIGINAL ISSUE DISCOUNT
Subordinated Note [ ] Yes
[ ] Floating Rate/Fixed Rate [ ] No
Subordinated Note
Fixed Rate Commencement Date: Total Amount of OID:
Fixed Interest Rate: Yield to Maturity:
[ ] Inverse Floating Rate Initial Accrual Period:
Subordinated Note
Fixed Interest Rate: DEFAULT RATE: ______%
ADDENDUM ATTACHED:
[ ] Yes
[ ] No
OTHER PROVISIONS:
76
Providian National Bank, a national banking association (the "Bank"), for
value received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of ______________________________________________________________
United States Dollars on the Maturity Date specified above (except to the extent
redeemed or repaid prior to the Maturity Date) and to pay interest thereon from
and including the Original Issue Date specified above or from and including the
most recent interest payment date to which interest on this Subordinated Note
(or any predecessor Subordinated Note) has been paid or duly provided for (each,
an "Interest Payment Date"), on the Interest Payment Dates specified above and
at maturity or upon earlier redemption or repayment, if applicable, commencing
on the first Interest Payment Date next succeeding the Original Issue Date (or,
if the Original Issue Date is between a Regular Record Date (as defined below)
and the Interest Payment Date immediately following such Regular Record Date, on
the second Interest Payment Date following the Original Issue Date), at a rate
per annum equal to the Initial Interest Rate specified above until the Initial
Interest Reset Date specified above and thereafter at a rate per annum
determined in accordance with the provisions hereof and any Addendum relating
hereto depending upon the Interest Rate Basis or Bases, if any, and such other
terms 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 Subordinated Note specified above. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will be paid to the
person in whose name this Subordinated Note (or any predecessor Subordinated
Note) is registered at the close of business on the Regular Record Date, which
shall be the 15th calendar day (whether or not a Business Day(as defined below))
prior to such Interest Payment Date (unless otherwise specified on the face
hereof) (each, a "Regular Record Date"); provided, however, that interest
-------- -------
payable at maturity or upon earlier redemption or repayment, if applicable, will
be payable to the person to whom principal shall be payable. Any such interest
not so punctually paid or duly provided for shall forthwith cease to be payable
to the holder as of the close of business on such Regular Record Date and may
either be paid to the person in whose name this Subordinated Note (or any
predecessor Subordinated Note) is registered at the close of business on a
special record date for the payment of such defaulted interest (the "Special
Record Date") to be fixed by the Bank, notice of which shall be given to the
holders of Subordinated Notes not less than 10 calendar days prior to such
Special Record Date, or be paid at any time in any other lawful manner.
Payment of principal of, premium, if any, and interest on, this
Subordinated Note will be made in such coin or currency of the
00
Xxxxxx Xxxxxx xx Xxxxxxx as at the time of payment is legal tender for payment
of public and private debts. The Bank will at all times appoint and maintain an
issuing and paying agent (the "Issuing and Paying Agent," which term shall
include any successor Issuing and Paying Agent), authorized by the Bank to pay
principal of, premium, if any, and interest on, this Subordinated Note on behalf
of the Bank pursuant to an issuing and paying agency agreement (the "Issuing and
Paying Agency Agreement") and having an office or agency (the "Issuing and
Paying Agent Office") in Chicago, Illinois, New York, New York or the city in
which the Bank is headquartered (the "Place of Payment"), where this
Subordinated Note may be presented or surrendered for payment and where notices,
designations or requests in respect of payments with respect to this
Subordinated Note may be served. The Bank has initially appointed The First
National Bank of Chicago as the Issuing and Paying Agent, with the Issuing and
Paying Agent Office currently located at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000, Attention: Corporate Trust Administration. The Bank may remove
the Issuing and Paying Agent pursuant to the terms of the Issuing and Paying
Agency Agreement, and appoint a successor Issuing and Paying Agent.
Payment of principal of, premium, if any, and interest on, this
Subordinated Note due at maturity or upon earlier redemption or repayment, if
applicable, will be made in immediately available funds upon presentation and
surrender of this Subordinated Note to the Issuing and Paying Agent at the
Issuing and Paying Agent Office; provided that this Subordinated Note is
presented to the Issuing and Paying Agent in time for the Issuing and Paying
Agent to make such payment in accordance with its normal procedures. Payments
of interest on this Subordinated Note (other than at maturity or upon earlier
redemption or repayment) will be made by wire transfer to such account as has
been appropriately designated to the Issuing and Paying Agent by the person
entitled to such payments.
Reference herein to "this Subordinated Note", "hereof", "herein" and
comparable terms shall include an Addendum hereto if an Addendum is specified
above.
Reference is hereby made to the further provisions of this Subordinated
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.
78
IN WITNESS WHEREOF, the Bank has caused this Subordinated Note to be duly
executed.
By: ___________________________________
Authorized Signatory
Dated:
ISSUING AND PAYING AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Subordinated Notes referred to in the Issuing and Paying
Agency Agreement.
The First National Bank of Chicago,
as Issuing and Paying Agent
By: ___________________________
Authorized Signatory
79
[Reverse]
This Subordinated Note is one of a duly authorized issue of Subordinated
Bank Notes of the Bank due from five years to 15 years from date of issue (the
"Subordinated Notes").
If any Interest Payment Date (other than an Interest Payment Date at the
Maturity Date or date of earlier redemption or repayment of this Subordinated
Note) would otherwise fall on a day that is not a Business Day, such Interest
Payment Date shall be postponed to the next succeeding day that is a Business
Day, except that if an Interest Rate Basis is LIBOR, as indicated on the face
hereof, and such next Business Day falls in the next succeeding calendar month,
such Interest Payment Date shall be the immediately preceding day that is a
Business Day. Except as provided above, interest payments will be made on the
Interest Payment Dates shown on the face hereof. If the Maturity Date or date
of earlier redemption or repayment of this Subordinated Note falls on a day
which is not a Business Day, the related payment of principal of, premium, if
any, and interest on, this Subordinated Note will be made on the next succeeding
Business Day with the same force and effect as if made on the date such payment
was due, and no interest shall accrue on the amount so payable for the period
from and after such Maturity Date or date of earlier redemption or repayment, as
the case may be.
The indebtedness of the Bank evidenced by this Subordinated Note, including
principal, premium, if any, and interest, shall be subordinate and junior in
right of payment to the Bank's obligations to its depositors, its obligations
under bankers' acceptances, letters of credit and Senior Notes (as such term is
defined in the Issuing and Paying Agency Agreement) and its obligations to its
other creditors (including its obligations to the Federal Reserve Bank, the
Federal Deposit Insurance Corporation and any rights acquired by the Federal
Deposit Insurance Corporation as a result of loans made by the Federal Deposit
Insurance Corporation to the Bank or the purchase or guarantee of any of its
assets by the Federal Deposit Insurance Corporation, pursuant to the provisions
of 12 U.S.C. Section 1823(c) or (d), in each case whether now outstanding or
hereafter incurred, other than to obligations (1) to holders of debt obligations
that by their express terms rank on a parity with or junior to the Subordinated
Notes and (2) for claims of the Federal Deposit Insurance Corporation pursuant
to the provisions of 12 U.S.C. Section 1815(e) (relating to liability incurred
in connection with commonly controlled depository institutions). In the event
any default shall have occurred with respect to any such obligations of the Bank
under the Credit Agreement dated as of May 14, 1996, as amended, among the Bank
and certain of its affiliates and the Lenders and Agent named therein, as
modified, amended, supplemented, restated or replaced from time to time, then
unless and until such default
80
shall have been cured or waived or shall cease to exist, no direct or indirect
payment of principal, premium, if any, or interest on this Subordinated Note, or
in respect of any redemption, retirement, purchase or other acquisition of this
Subordinated Note, shall be made by the Bank. In case of any insolvency,
receivership, conservatorship, reorganization, readjustment of debt, marshalling
of assets and liabilities or similar proceedings or any liquidation or winding-
up of or relating to the Bank, whether voluntary or involuntary, all such
obligations (except obligations which rank on a parity with, or junior to, this
Subordinated Note) shall be entitled to be paid in full before any payment shall
be made on account of the principal of, premium, if any, or interest on this
Subordinated Note. In the event of any such proceeding, after payment in full of
all sums owing with respect to such prior obligations, the holder of this
Subordinated Note, together with the holders of any obligations of the Bank
ranking on a parity with this Subordinated Note, shall be entitled to be paid
from the remaining assets of the Bank the unpaid principal of, premium, if any,
and interest on this Subordinated Note and such other obligations, before any
payment or other distribution, whether in cash, property or otherwise, shall be
made on account of any capital stock or any obligations of the Bank ranking
junior to this Subordinated Note.
This Subordinated Note will not be subject to any sinking fund. If so
provided on the face of this Subordinated Note, this Subordinated Note may be
redeemed by the Bank either in whole or in part on and after the Initial
Redemption Date, if any, specified on the face hereof; provided, however, that
-------- -------
this Subordinated Note may be so redeemed without the prior approval of the
Comptroller of the Currency of the United States if the Bank would remain an
"eligible bank" (as defined in 12 C.F.R. (S) 5.3(g)) after such redemption,
unless the Comptroller of the Currency of the United States has notified the
Bank that such prior approval is required or such prior approval is otherwise
required by law. If no Initial Redemption Date is specified on the face hereof,
this Subordinated Note may not be redeemed prior to the Maturity Date. On and
after the Initial Redemption Date, if any, this Subordinated Note may be
redeemed in increments of $1,000 (provided that any remaining principal amount
hereof shall be at least $250,000) at the option of the Bank at the applicable
Redemption Price (as defined below), together with unpaid interest accrued
hereon at the applicable rate borne by this Subordinated Note to the date of
redemption (each such date, a "Redemption Date"), on written notice given not
more than 60 nor less than 30 calendar days prior to the Redemption Date to the
registered holder hereof. Whenever less than all the Subordinated Notes at any
time outstanding are to be redeemed, the terms of the Subordinated Notes to be
so redeemed shall be selected by the Bank. If less than all the Subordinated
Notes with identical terms at any time outstanding are to be redeemed, the
Subordinated Notes to be so redeemed shall be selected by the Issuing and Paying
Agent by lot or in any usual manner approved by
81
it. In the event of redemption of this Subordinated Note in part only, a new
Subordinated Note for the unredeemed portion hereof shall be issued in the name
of the holder hereof upon the surrender hereof.
The "Redemption Price" shall initially be the Initial Redemption Percentage
specified on the face hereof of the principal amount of this Subordinated Note
to be redeemed and shall decline at each anniversary of the Initial Redemption
Date specified on the face hereof by the Annual Redemption Percentage Reduction,
if any, specified on the face hereof, of the principal amount to be redeemed
until the Redemption Price is 100% of such principal amount.
This Subordinated Note may be subject to repayment at the option of the
holder hereof in accordance with the terms hereof on any Holder's Optional
Repayment Date(s), if any, specified on the face hereof. If no Holder's
Optional Repayment Date is specified on the face hereof, this Subordinated Note
will not be repayable at the option of the holder hereof prior to maturity. On
any Holder's Optional Repayment Date, this Subordinated Note will be repayable
in whole or in part in increments of $1,000 (provided that any remaining
principal amount hereof will be at least $250,000) at the option of the holder
hereof at a repayment price equal to 100% of the principal amount to be repaid,
together with accrued and unpaid interest hereon payable to the date of
repayment. For this Subordinated Note to be repaid in whole or in part at the
option of the holder hereof on a Holder's Optional Repayment Date, this
Subordinated Note must be delivered, with the form entitled "Option to Elect
Repayment" attached hereto duly completed, to the Issuing and Paying Agent at
its offices located at Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Trust Administration, or at such other address which the
Bank shall from time to time notify the holders of the Subordinated Notes, not
more than 60 nor less than 30 calendar days prior to such Holder's Optional
Repayment Date. In the event of repayment of this Subordinated Note in part
only, a new Subordinated Note for the unrepaid portion hereof shall be issued in
the name of the holder hereof upon the surrender hereof. Exercise of such
repayment option by the holder hereof shall be irrevocable. Unless otherwise
provided for on the face of this Subordinated Note, this Subordinated Note will
not be repayable at the option of the holder hereof prior to the Maturity Date
without the prior approval of the Comptroller of the Currency of the United
States; provided, however, that this Subordinated Note may be so repaid without
-------- -------
the prior approval of the Comptroller of the Currency of the United States if
the Bank would remain an "eligible bank" (as defined in 12 C.F.R. (S) 5.3(g))
after such repayment, unless the Comptroller of the Currency of the United
States has notified the Bank that such prior approval is required or such prior
approval is otherwise required by law.
82
Notwithstanding the foregoing, unless otherwise provided under "Other
Provisions" on the face hereof, this Subordinated Note may not be repaid, in
whole or in part, prior to its Maturity Date pursuant to the terms hereof
without the prior written approval of the Comptroller of the Currency of the
United States.
The interest rate borne by this Subordinated Note shall be determined as
follows:
1. If this Subordinated Note is designated as a Regular Floating Rate
Subordinated Note on the face hereof or if no designation is made for
Interest Calculation on the face hereof, then, except as described below or
in an Addendum hereto, this Subordinated Note shall bear interest at the
rate determined by reference to the applicable Interest Rate Basis or Bases
shown on the face hereof (i) plus or minus the applicable Spread, if any,
and/or (ii) multiplied by the applicable Spread Multiplier, if any,
specified and applied in the manner described on the face hereof.
Commencing on the Initial Interest Reset Date, the rate at which interest
on this Subordinated Note is payable shall be reset as of each Interest
Reset Date specified on the face hereof; provided, however, that the
-------- -------
interest rate in effect for the period from the Original Issue Date to the
Initial Interest Reset Date will be the Initial Interest Rate.
2. If this Subordinated Note is designated as a Floating Rate/Fixed
Rate Subordinated Note on the face hereof, then, except as described below
or in an Addendum hereto, this Subordinated Note shall bear interest at the
rate determined by reference to the applicable Interest Rate Basis or Bases
shown on the face hereof (i) plus or minus the applicable Spread, if any,
and/or (ii) multiplied by the applicable Spread Multiplier, if any,
specified and applied in the manner described on the face hereof.
Commencing on the Initial Interest Reset Date, the rate at which interest
on this Subordinated Note is payable shall be reset as of each Interest
Reset Date specified on the face hereof; provided, however, that (i) the
-------- -------
interest rate in effect for the period from the Original Issue Date to the
Initial Interest Reset Date shall be the Initial Interest Rate; and (ii)
the interest rate in effect commencing on, and including, the Fixed Rate
Commencement Date to the Maturity Date or date of earlier redemption or
repayment shall be the Fixed Interest Rate, if such a rate is specified on
the face hereof, or if no such Fixed Interest Rate is so specified, the
interest rate in effect hereon on the Business Day immediately preceding
the Fixed Rate Commencement Date.
3. If this Subordinated Note is designated as an Inverse Floating
Rate Subordinated Note on the face hereof, then, except as described below
or in an Addendum hereto, this
83
Subordinated Note shall bear interest equal to the Fixed Interest Rate
indicated on the face hereof minus the rate determined by reference to the
applicable Interest Rate Basis or Bases shown on the face hereof (i) plus
or minus the applicable Spread, if any, and/or (ii) multiplied by the
applicable Spread Multiplier, if any, specified and applied in the manner
described on the face hereof; provided, however, that, unless otherwise
-------- -------
specified on the face hereof, the interest rate hereon will not be less
than zero percent. Commencing on the Initial Interest Reset Date, the rate
at which interest on this Subordinated Note is payable shall be reset as of
each Interest Rate Reset Date specified on the face hereof; and provided
--------
further that the interest rate in effect for the period from the Original
-------
Issue Date to the Initial Interest Reset Date shall be the Initial Interest
Rate.
Notwithstanding the foregoing, if this Subordinated Note is designated on
the face hereof as having an Addendum attached, this Subordinated Note shall
bear interest in accordance with the terms described in such Addendum.
Except as provided above, the interest rate in effect on each day shall be
(a) if such day is an Interest Reset Date, the interest rate determined as of
the Interest Determination Date (as defined below) immediately preceding such
Interest Reset Date or (b) if such day is not an Interest Reset Date, the
interest rate determined as of the Interest Determination Date immediately
preceding the next preceding Interest Reset Date. Each Interest Rate Basis
shall be the rate determined in accordance with the applicable provision below.
If any Interest Reset Date (which term includes the term Initial Interest Reset
Date unless the context otherwise requires) would otherwise be a day that is not
a Business Day, such Interest Reset Date shall be postponed to the next
succeeding day that is a Business Day, except that if an Interest Rate Basis
specified on the face hereof is LIBOR and such next Business Day falls in the
next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day.
Unless otherwise specified on the face hereof, interest payable on this
Subordinated Note on any Interest Payment Date shall be the amount of interest
accrued from and including the next preceding Interest Payment Date in respect
of which interest has been paid (or from and including the Original Issue Date
specified on the face hereof, if no interest has been paid), to but excluding
the related Interest Payment Date or Maturity Date or date of earlier redemption
or repayment, as the case may be.
Unless otherwise specified on the face hereof, accrued interest hereon
shall be an amount calculated by multiplying the face amount hereof by an
accrued interest factor. Such accrued
84
interest factor shall be computed by adding the interest factor calculated for
each day in the period for which accrued interest is being calculated. Unless
otherwise specified on the face hereof, the interest factor for each such day
shall be computed and paid on the basis of a 360-day year of twelve 30-day
months if the Day Count Convention specified on the face hereof is "30/360" for
the period specified thereunder, or by dividing the interest rate applicable to
such day by 360 if the Day Count Convention specified on the face hereof is
"Actual/360" for the period specified thereunder or by the actual number of days
in the year if the Day Count Convention specified on the face hereof is
"Actual/Actual" for the period specified thereunder. If interest on this
Subordinated Note is to be calculated with reference to two or more Interest
Rate Bases as specified on the face hereof, the interest factor will be
calculated in each period in the same manner as if only one of the applicable
Interest Rate Bases applied.
Unless otherwise specified on the face hereof, the "Interest Determination
Date" with respect to the Commercial Paper Rate, the Federal Funds Rate and the
Prime Rate will be the second Business Day preceding each Interest Reset Date;
the "Interest Determination Date" with respect to the Eleventh District Cost of
Funds Rate will be the last working day of the month immediately preceding each
Interest Reset Date on which the Federal Home Loan Bank of San Francisco (the
"FHLB of San Francisco") publishes the Index (as defined below); the "Interest
Determination Date" with respect to LIBOR shall be the second London Business
Day (as defined below) preceding each Interest Reset Date; the "Interest
Determination Date" with respect to the Treasury Rate will be the day in the
week in which the related Interest Reset Date falls on which day Treasury Bills
(as defined below) are normally auctioned (Treasury Bills are normally sold at
auction on Monday of each week, unless that day is a legal holiday, in which
case the auction is normally held on the following Tuesday, except that such
auction may be held on the preceding Friday); provided, however, that if an
-------- -------
auction is held on the Friday of the week preceding the related Interest Reset
Date, the related Interest Determination Date shall be such preceding Friday;
and provided further that if an auction shall fall on any Interest Reset Date,
-------- -------
then the Interest Reset Date shall instead be the first Business Day following
such auction. If the interest rate of this Subordinated Note is determined with
reference to two or more Interest Rate Bases as specified on the face hereof,
the Interest Determination Date pertaining to this Subordinated Note will be the
latest Business Day which is at least two Business Days prior to such Interest
Reset Date on which each Interest Rate Basis is determinable. Each Interest
Rate Basis shall be determined on such date, and the applicable interest rate
shall take effect on the Interest Reset Date.
Unless otherwise specified on the face hereof, the "Calculation Date"
pertaining to any Interest Determination Date will be the earlier of (i) the
tenth calendar day after such
85
Interest Determination Date or, if such day is not a Business Day, the next
succeeding Business Day and (ii) the Business Day immediately preceding the
applicable Interest Payment Date or Maturity Date or date of earlier redemption
or repayment, as the case may be. All calculations on this Subordinated Note
shall be made by the Calculation Agent specified on the face hereof or such
successor thereto as is duly appointed by the Bank.
All percentages resulting from any calculation on this Subordinated Note
will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point, with five one-millionths of a percentage point rounded upward
(e.g., 9.876545% (or 0.09876545) would be rounded to 9.87655% (or 0.0987655) and
9.876544% (or 0.09876544) would be rounded to 9.87654% (or 0.0987654)), and all
dollar amounts used in or resulting from such calculation will be rounded to the
nearest cent (with one-half cent being rounded upward).
As used herein, "Business Day" means, unless otherwise specified on the
face hereof, any day that is not a Saturday or Sunday and that in The City of
New York or in the city in which the Bank is headquartered is not a day on which
banking institutions are authorized or required by law, regulation or executive
order to close and, if an Interest Rate Basis shown on the face hereof is LIBOR,
is also a London Business Day.
As used herein, unless otherwise specified on the face hereof, "London
Business Day" means any day on which dealings in deposits in U.S. dollars are
transacted in the London interbank market.
Determination of Commercial Paper Rate. If an Interest Rate Basis for this
--------------------------------------
Subordinated Note is the Commercial Paper Rate, as indicated on the face hereof,
the Commercial Paper Rate shall be determined as of the applicable Interest
Determination Date (a "Commercial Paper Rate Interest Determination Date"), as
the Money Market Yield (as defined below) on such date of the rate for
commercial paper having the Index Maturity specified on the face hereof as
published by the Board of Governors of the Federal Reserve System in the weekly
statistical release entitled "Statistical Release H.15(519), Selected Interest
Rates," or any successor publication of the Board of Governors of the Federal
Reserve System ("H.15(519)") under the heading "Commercial Paper-Nonfinancial"
or, if such heading is no longer available and applicable, such other heading
representing commercial paper issued by non-financial entities whose bond rating
is "Aa," or the equivalent, from a nationally recognized statistical rating
organization. In the event that such rate is not published by 3:00 P.M., New
York City time, on the related Calculation Date, then the Commercial Paper Rate
shall be the Money Market Yield on such Commercial Paper Rate Interest
Determination Date of the rate for commercial paper having the Index Maturity
specified on the face hereof as published by the Federal Reserve Bank of New
York in the
86
daily statistical release entitled "Composite 3:30 P.M. Quotations for U.S.
Government Securities" or any successor publication ("Composite Quotations")
under the heading "Commercial Paper" (with an Index Maturity of one month or
three months being deemed to be equivalent to an Index Maturity of 30 days or 90
days, respectively). If by 3:00 P.M., New York City time, on the related
Calculation Date such rate is not yet published in either H.15(519) or Composite
Quotations, then the Commercial Paper Rate on such Commercial Paper Rate
Interest Determination Date shall be calculated by the Calculation Agent and
shall be the Money Market Yield of the arithmetic mean of the offered rates at
approximately 11:00 A.M., New York City time, on such Commercial Paper Rate
Interest Determination Date of three leading dealers of commercial paper in The
City of New York selected by the Calculation Agent for commercial paper having
the Index Maturity specified on the face hereof placed for a non-financial
entity whose bond rating is "Aa," or the equivalent, from a nationally
recognized statistical rating organization; provided, however, that
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if any of the dealers selected as aforesaid by the Calculation Agent are not
quoting offered rates as mentioned in this sentence, the Commercial Paper Rate
determined as of such Commercial Paper Rate Interest Determination Date shall be
the Commercial Paper Rate in effect on such Commercial Paper Rate Interest
Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage)
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. If an Interest Rate
-----------------------------------------------------
Basis for this Subordinated Note is the Eleventh District Cost of Funds Rate, as
indicated on the face hereof, the Eleventh District Cost of Funds Rate shall be
determined as of the applicable Interest Determination Date (an "Eleventh
District Cost of Funds Rate Interest Determination Date"), as 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 Rate Interest
Determination Date falls, as set forth under the caption "11th District" on
Telerate Page 7058 as of 11:00 A.M., San Francisco time, on such Eleventh
District Cost of Funds Rate Interest Determination Date. If such rate does not
appear on Telerate Page 7058 on any related Eleventh District Cost of Funds Rate
Interest Determination Date, the Eleventh District Cost of Funds Rate for such
Eleventh District Cost of Funds Rate Interest Determination Date shall be the
monthly weighted average cost of funds paid by member institutions of the
Eleventh Federal Home Loan
87
Bank District that was most recently announced (the "Index") by the FHLB of San
Francisco as such cost of funds for the calendar month immediately preceding the
date of such announcement. If the FHLB of San Francisco fails to announce such
rate for the calendar month immediately preceding such Eleventh District Cost of
Funds Rate Interest Determination Date, then the Eleventh District Cost of Funds
Rate determined as of such Eleventh District Cost of Funds Rate Interest
Determination Date shall be the Eleventh District Cost of Funds Rate in effect
on such Eleventh District Cost of Funds Rate Interest Determination Date.
"Telerate Page 7058" means the display designated as page "7058" on the Dow
Xxxxx Telerate Service (or such other page as may replace the 7058 page on that
service for the purpose of displaying the monthly weighted average cost of funds
paid by member institutions of the Eleventh Federal Home Loan Bank District).
Determination of Federal Funds Rate. If an Interest Rate Basis for this
-----------------------------------
Subordinated Note is the Federal Funds Rate, as indicated on the face hereof,
the Federal Funds Rate shall be determined as of the applicable Interest
Determination Date (a "Federal Funds Rate Interest Determination Date"), as the
rate on such date for federal funds as published in H.15(519) under the heading
"Federal Funds (Effective)" or, if not so published by 3:00 P.M., New York City
time, on the related Calculation Date, the rate on such Federal Funds Rate
Interest Determination Date, as published in Composite Quotations under the
heading "Federal Funds/Effective Rate." If by 3:00 P.M., New York City time, on
the related Calculation Date such rate is not published in either H.15(519) or
Composite Quotations, then the Federal Funds Rate on such Federal Funds Rate
Interest Determination Date shall be calculated by the Calculation Agent and
shall be the arithmetic mean of the rates for the last transaction in overnight
U.S. dollar federal funds arranged prior to 9:00 A.M., New York City time on
such Federal Funds Rate Interest Determination Date by three leading brokers of
federal funds transactions in The City of New York selected by the Calculation
Agent; provided, however, that if any of the brokers selected as aforesaid by
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the Calculation Agent are not quoting as mentioned in this sentence, the Federal
Funds Rate determined as of such Federal Funds Rate Interest Determination Date
shall be the Federal Funds Rate in effect on such Federal Funds Rate Interest
Determination Date.
Determination of LIBOR. If an Interest Rate Basis for this Subordinated
----------------------
Note is LIBOR, as indicated on the face hereof, LIBOR shall be determined by the
Calculation Agent as of the applicable Interest Determination Date (a "LIBOR
Interest Determination Date") in accordance with the following provisions:
(a) With respect to any LIBOR Interest Determination Date, LIBOR will
be, as specified on the face hereof, either: (i) the rate for deposits in
U.S. dollars having the Index
88
Maturity designated on the face hereof, commencing on the second London
Business Day immediately following that LIBOR Interest Determination Date,
that appears on Telerate Page 3750 as of 11:00 A.M., London time, on that
LIBOR Interest Determination Date ("LIBOR Telerate") or (ii) the arithmetic
mean of the offered rates for deposits in U.S. dollars having the Index
Maturity designated on the face hereof, commencing on the second London
Business Day immediately following that LIBOR Interest Determination Date,
that appear on the Reuters Screen LIBO Page as of 11:00 A.M., London time,
on that LIBOR Interest Determination Date, if at least two such offered
rates appear on the Reuters Screen LIBO Page ("LIBOR Reuters"). "Telerate
Page 3750" means the display designated as page "3750" on the Dow Xxxxx
Telerate Service (or such other page as may replace the 3750 page on that
service or such other service or services as may be nominated by the
British Bankers' Association for the purpose of displaying London interbank
offered rates for U.S. dollar deposits). "Reuters Screen LIBO Page" means
the display designated as page "LIBO" on the Reuters Monitor Money Rates
Service (or such other page as may replace the LIBO page on that service
for the purpose of displaying London interbank offered rates of major
banks). If neither LIBOR Telerate nor LIBOR Reuters is specified on the
face hereof, LIBOR will be determined as if LIBOR Telerate had been
specified. If no rate appears on Telerate Page 3750, or if fewer than two
offered rates appear on the Reuters Screen LIBO Page, as applicable, LIBOR
in respect of that LIBOR Interest Determination Date will be determined as
if the parties had specified the rate described in (b) below.
(b) With respect to a LIBOR Interest Determination Date on which no
rate appears on Telerate Page 3750, as specified in (a)(i) above, or on
which fewer than two offered rates appear on the Reuters Screen LIBO Page,
as specified in (a)(ii) above, as applicable, LIBOR will be determined on
the basis of the rates at which deposits in U.S. dollars having the Index
Maturity designated on the face hereof, are offered at approximately 11:00
A.M., London time, on that LIBOR Interest Determination Date by four major
banks in the London interbank market selected by the Calculation Agent
("Reference Banks") to prime banks in the London interbank market
commencing on the second London Business Day immediately following that
LIBOR Interest Determination Date and in a principal amount equal to an
amount of not less than $1,000,000 that is representative for a single
transaction in such market at such time. The Calculation Agent will
request the principal London office of each of the Reference Banks to
provide a quotation of its rate. If at least two such quotations are
provided, LIBOR in respect of that LIBOR Interest Determination Date will
be the arithmetic mean of such quotations. If fewer than two quotations
are provided,
89
LIBOR in respect of that LIBOR Interest Determination Date will be the
arithmetic mean of the rates quoted at approximately 11:00 A.M., New York
City time, on that LIBOR Interest Determination Date by three major banks
in The City of New York selected by the Calculation Agent for loans in U.S.
dollars to leading European banks having the Index Maturity designated on
the face hereof, commencing on the second London Business Day immediately
following that LIBOR Interest Determination Date and in a principal amount
equal to an amount of not less than $1,000,000 that is representative for a
single transaction in such market at such time; provided, however, that if
-------- -------
the banks selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, LIBOR with respect to such LIBOR Interest
Determination Date will be the LIBOR rate in effect on such date.
Determination of Prime Rate. If an Interest Rate Basis for this
---------------------------
Subordinated Note is the Prime Rate, as indicated on the face hereof, the Prime
Rate shall be determined as of the applicable Interest Determination Date (a
"Prime Rate Interest Determination Date") as the rate on such date as such rate
is published in H.15(519) under the heading "Bank Prime Loan". If such rate is
not published prior to 3:00 P.M., New York City time, on the related Calculation
Date, then the Prime Rate shall be the arithmetic mean of the rates of interest
publicly announced by each bank that appears on the Reuters Screen USPRIME1 Page
(as defined below) as such bank's prime rate or base lending rate as in effect
for such Prime Rate Interest Determination Date. If fewer than four such rates
appear on the Reuters Screen USPRIME1 Page for such Prime Rate Interest
Determination Date, the Prime Rate shall be the arithmetic mean 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 four major money center banks in The City of
New York selected by the Calculation Agent. If fewer than four major money
center banks provide such quotations, the Prime Rate will be determined by the
Calculation Agent and will be the arithmetic mean of four prime 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 as
furnished in The City of New York by the major money center banks, if any, that
have provided quotations and as many substitute banks or trust companies as is
necessary in order to obtain four such prime rate quotations, provided such
substitute banks or trust companies are organized and doing business under the
laws of the United States, or any state thereof, each having total equity
capital of at least U.S. $500 million and being subject to supervision or
examination by federal or state authority, selected by the Calculation Agent to
provide such rate or rates; provided, however, that if the banks or trust
-------- -------
companies selected as aforesaid are not quoting as mentioned in this sentence,
the Prime Rate
90
determined as of such Prime Rate Interest Determination Date shall be the Prime
Rate in effect on such Prime Rate Interest Determination Date.
"Reuters Screen USPRIME1 Page" means the display designated as page
"USPRIME1" on the Reuters Monitor Money Rates Service (or such other page as may
replace the USPRIME1 page on that service for the purpose of displaying prime
rates or base lending rates of major United States banks).
Determination of Treasury Rate. If an Interest Rate Basis for this
------------------------------
Subordinated Note is the Treasury Rate, as specified on the face hereof, the
Treasury Rate shall be determined as of the applicable Interest Determination
Date (a "Treasury Rate Interest Determination Date") as the rate applicable to
the most recent auction of direct obligations of the United States ("Treasury
Bills") having the Index Maturity specified on the face hereof, as such rate is
published in H.15(519) under the heading "Treasury Bills -- auction average
(investment)" or, if not published by 3:00 P.M., New York City time, on the
related Calculation Date, the auction average rate (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) as otherwise announced by the United States Department of the
Treasury. In the event that the results of the auction of Treasury Bills having
the Index Maturity specified on the face hereof are not reported as provided by
3:00 P.M., New York City time, on such Calculation Date, or if no such auction
is held in a particular week, then the Treasury Rate shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent 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 Rate 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;
provided, however, that if any of the dealers selected as aforesaid by the
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Calculation Agent are not quoting as mentioned in this sentence, the Treasury
Rate determined as of such Treasury Rate Interest Determination Date shall be
the Treasury Rate in effect on such Treasury Rate Interest Determination Date.
Any provision contained herein, including the determination of an Interest
Rate Basis, the specification of an Interest Rate Basis, calculation of the
interest rate applicable to this Subordinated Note, its Interest Payment Dates
or any other matter relating hereto may be modified as specified in an Addendum
relating hereto if so specified on the face hereof.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less
91
than the Minimum Interest Rate, if any, specified on the face hereof. In
addition to any Maximum Interest Rate applicable hereto pursuant to the above
provisions, the interest rate on this Subordinated 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 application. The Calculation Agent
shall calculate the interest rate hereon in accordance with the foregoing on or
before each Calculation Date. Unless otherwise specified on the face hereof, The
First National Bank of Chicago will be the Calculation Agent.
At the request of the Holder hereof, the Calculation Agent shall provide to
the Holder hereof the interest rate hereon then in effect and, if determined,
the interest rate which shall become effective as of the next Interest Reset
Date.
If this Subordinated Note is an Original Issue Discount Note and if an
Event of Default with respect to this Subordinated Note shall have occurred and
be continuing, the Default Amount (as defined hereafter) of this Subordinated
Note may be declared due and payable in the manner and with the effect provided
herein. The "Default Amount" shall be equal to the adjusted issue price as of
the first day of the accrual period as determined under Final Treasury
Regulation Section 1.1275-1(b) (or successor regulation) under the United States
Internal Revenue Code of 1986, as amended, in which the date of acceleration
occurs increased by the daily portion of the original issue discount for each
day in such accrual period ending on the date of acceleration, as determined
under Final Treasury Regulation Section 1.1272-1(b) (or successor regulation)
under the United States Internal Revenue Code of 1986, as amended. Upon payment
of (i) the principal, or premium, if any, so declared due and payable and (ii)
interest on any overdue principal and overdue interest or premium, if any (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Bank's obligations in respect of the payment of
principal of, premium, if any, and interest on, this Subordinated Note shall
terminate.
In case any Subordinated Note shall at any time become mutilated,
destroyed, lost or stolen, and such Subordinated Note or evidence of the loss,
theft or destruction thereof satisfactory to the Bank and the Issuing and Paying
Agent and such other documents or proof as may be required by the Bank and the
Issuing and Paying Agent shall be delivered to the Issuing and Paying Agent, the
Bank shall issue a new Subordinated Note, of like tenor and principal amount,
having a serial number not contemporaneously outstanding, in exchange and
substitution for the mutilated Subordinated Note or in lieu of the Subordinated
Note destroyed, lost or stolen but, in the case of any destroyed, lost or stolen
Subordinated Note, only upon receipt of evidence satisfactory to the Bank and
the Issuing and Paying Agent that such Subordinated Note was destroyed, stolen
or lost, and, if required, upon receipt of indemnity satisfactory
92
to the Bank and the Issuing and Paying Agent. Upon the issuance of any
substituted Subordinated Note, the Bank and the Issuing and Paying Agent may
require the payment of a sum sufficient to cover all expenses and reasonable
charges connected with the preparation and delivery of a new Subordinated Note.
If any Subordinated Note which has matured or has been redeemed or repaid or is
about to mature or to be redeemed or repaid shall become mutilated, destroyed,
lost or stolen, the Bank may, instead of issuing a substitute Subordinated Note,
pay or authorize the payment of the same (without surrender thereof except in
the case of a mutilated Subordinated Note) upon compliance by the holder with
the provisions of this paragraph.
No recourse shall be had for the payment of principal of, premium, if any,
or interest on, this Subordinated Note for any claim based hereon, or otherwise
in respect hereof, against any shareholder, employee, agent, officer or
director, as such, past, present or future, of the Bank or of any successor
corporation, banking association or other legal entity (collectively,
"corporation"), either directly or through the Bank or any corporation, whether
by virtue of any constitution, statute or rule of law or by the enforcement of
any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
An "Event of Default" with respect to this Subordinated Note will occur if
the Bank shall consent to, or a court or other governmental agency shall enter a
decree or order for, the appointment of a conservator or receiver or other
similar official in any liquidation, insolvency or similar proceeding with
respect to the Bank or all or substantially all of its property and, in the case
of a decree or order, such decree or order shall have remained in force for a
period of 60 consecutive days. If an Event of Default shall occur and be
continuing, the holder of this Subordinated Note may declare the principal
amount of, and accrued interest and premium, if any, on, this Subordinated Note
due and payable immediately by written notice to the Bank. Upon such
declaration and notice, such principal amount, accrued interest and premium, if
any, shall become immediately due and payable; PROVIDED, HOWEVER, THAT NO
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ACCELERATED PAYMENT MAY BE MADE WITHOUT THE PRIOR WRITTEN APPROVAL OF THE
COMPTROLLER OF THE CURRENCY OF THE UNITED STATES. Any Event of Default with
respect to this Subordinated Note may be waived by the holder hereof. THERE IS
NO RIGHT OF ACCELERATION IN THE CASE OF A DEFAULT IN THE PAYMENT OF PRINCIPAL
OF, PREMIUM, IF ANY, OR INTEREST ON, THIS SUBORDINATED NOTE OR IN THE
PERFORMANCE OF ANY OTHER OBLIGATION OF THE BANK UNDER THIS SUBORDINATED NOTE OR
UNDER ANY OTHER SECURITY ISSUED BY THE BANK.
The Issuing and Paying Agency Agreement provides that the Bank will
promptly notify, and provide copies of any such notice to, the
93
Issuing and Paying Agent, and the Issuing and Paying Agent will promptly mail by
first-class mail, postage prepaid, copies of such notice to the holders of the
Subordinated Notes, upon the occurrence of an Event of Default or of the curing
or waiver of an Event of Default.
ANYTHING TO THE CONTRARY HEREIN NOTWITHSTANDING, THIS SUBORDINATED NOTE IS
NOT SUBJECT TO REDEMPTION PRIOR TO MATURITY AND MAY NOT BE REPAID PRIOR TO
MATURITY, EITHER PURSUANT TO ACCELERATION IN THE EVENT OF DEFAULT OR OTHERWISE,
WITHOUT THE PRIOR WRITTEN APPROVAL OF THE COMPTROLLER OF THE CURRENCY OF THE
UNITED STATES.
Nothing contained herein shall prevent any consolidation or merger of the
Bank with any other corporation or successive consolidations or mergers in which
the Bank or its successor or successors shall be a party or parties, or shall
prevent any sale, conveyance, transfer or lease of the property of the Bank as
an entirety or substantially as an entirety to any other corporation authorized
to acquire and operate the same; provided, however (and the Bank hereby
-------- -------
covenants and agrees) that any such consolidation, merger, sale or conveyance
shall be upon the condition that: (i) immediately after such consolidation,
merger, sale or conveyance the corporation (whether the Bank or such other
corporation) formed by or surviving any such consolidation or merger, or the
corporation to which such sale or conveyance shall have been made, shall not be
in default in the performance or observance of any of the terms, covenants and
conditions of this Subordinated Note to be observed or performed by the Bank;
and (ii) the corporation (if other than the Bank) formed by or surviving any
such consolidation or merger, or the corporation to which such sale or
conveyance shall have been made, shall be organized under the laws of the United
States of America or any state thereof or the District of Columbia and shall
expressly assume the due and punctual payment of the principal of, premium, if
any, and interest on, this Subordinated Note. In case of any such
consolidation, merger, sale, conveyance, transfer or lease, and upon the
assumption by the successor corporation of the due and punctual performance of
all of the covenants in this Subordinated Note to be performed or observed by
the Bank, such successor corporation shall succeed to and be substituted for the
Bank with the same effect as if it had been named in this Subordinated Note as
the Bank and thereafter the predecessor corporation shall be relieved of all
obligations and covenants in this Subordinated Note and may be liquidated and
dissolved.
Notwithstanding any other provision of this Subordinated Note, including
specifically the provisions set forth herein relating to subordination, events
of default and covenants of the Bank, it is expressly understood and agreed that
the Comptroller of the Currency of the United
94
States or any receiver or conservator of the Bank appointed by the Comptroller
of the Currency of the United States shall have the right in the performance of
his legal duties, and as part of any transaction or plan of reorganization or
liquidation designed to protect or further the continued existence of the Bank
or the rights of any parties or agencies with an interest in, or claim against,
the Bank or its assets, to transfer or direct the transfer of the obligations of
this Subordinated Note to any national banking association, state bank or bank
holding company selected by such official which shall expressly assume the
obligation of the due and punctual payment of the unpaid principal of, premium,
if any, and interest on, this Subordinated Note and the due and punctual
performance of all covenants and conditions hereof; and that the completion of
such transfer and assumption shall serve to supersede and void any default,
acceleration or subordination which may have occurred, or which may occur due or
related to such transaction, plan, transfer or assumption pursuant to the
provisions of this Subordinated Note, and shall serve to return the holder
hereof to the same position, other than for substitution of the obligor, it
would have occupied had no default, acceleration or subordination occurred;
except that any interest, premium and principal previously due, other than by
reason of acceleration, and not paid shall, in the absence of a contrary
agreement by the holder of this Subordinated Note, be deemed to be immediately
due and payable as of the date of such transfer and assumption, together with
interest from its original due date at the rate provided for herein.
Any action by the holder of this Subordinated Note shall bind all future
holders of this Subordinated Note, and of any Subordinated Note issued in
exchange or substitution hereof or in place hereof, in respect of anything done
or permitted by the Bank or by the Issuing and Paying Agent in pursuance of such
action.
The Issuing and Paying Agent shall maintain at its offices a register (the
register maintained in such office or any other office or agency of the Issuing
and Paying Agent herein referred to as the "Subordinated Note Register") in
which, subject to such reasonable regulations as it may prescribe, the Issuing
and Paying Agent shall provide for the registration of the Subordinated Notes
and of transfers of the Subordinated Notes.
The transfer of this Subordinated Note is registrable in the Subordinated
Note Register, upon surrender of this Subordinated Note for registration of
transfer at the office or agency of the Issuing and Paying Agent in the Place of
Payment, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Bank and the Issuing and Paying Agent duly executed by,
the holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Subordinated Notes of like tenor, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
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No provision of this Subordinated Note shall alter or impair the obligation
of the Bank, which is absolute and unconditional, to pay principal of, premium,
if any, and interest on, this Subordinated Note in U.S. dollars at the times,
places and rate herein prescribed in accordance with its terms.
In the event of the failure by the Bank to make payment of principal of,
premium, if any, or interest on this Subordinated Note (and, in the case of
payment of interest, such failure to pay shall have continued for two Business
Days), the Bank will, upon demand of the holder of this Subordinated Note, pay
to the holder of this Subordinated Note the whole amount then due and payable on
this Subordinated Note for principal of, premium, if any, and interest, with
interest on the overdue principal of, premium, if any, and interest on, this
Subordinated Note to the extent provided for herein. If the Bank fails to pay
such amount upon such demand, the holder of this Subordinated Note may among
other things, institute a judicial proceeding for the collection of such amount.
No service charge shall be made to a holder of this Subordinated Note for
any transfer or exchange of this Subordinated Note, but the Bank may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith.
Beneficial interests represented by this Subordinated Note are
exchangeable for definitive Subordinated Notes in registered form, of like tenor
and of an equal aggregate principal amount, only if (x) The Depository Trust
Company, as Depositary (the "Depositary") notifies the Bank that it is unwilling
or unable to continue as Depositary for this Subordinated Note or if at any time
the Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and a successor depositary is not appointed by
the Bank within 60 days, or (y) the Bank in its sole discretion determines not
to have such beneficial interests represented by this Subordinated Note. Any
Subordinated Note representing such beneficial interests that is exchangeable
pursuant to the preceding sentence shall be exchangeable in whole for definitive
Subordinated Notes in registered form, of like tenor and of an equal aggregate
principal amount, in minimum denominations of $250,000 and integral multiples of
$1,000 in excess thereof. Such definitive Subordinated Notes shall be
registered in the name or names of such person or persons as the Depositary
shall instruct the Issuing and Paying Agent.
Prior to due presentment of this Subordinated Note for registration of
transfer, the Bank, the Issuing and Paying Agent or any agent of the Bank or the
Issuing and Paying Agent may treat the holder in whose name this Subordinated
Note is registered as the owner hereof for all purposes, whether or not this
Subordinated Note be overdue, and neither the Bank, the Issuing and Paying Agent
96
nor any such agent shall be affected by notice to the contrary except as
required by applicable law.
All notices to the Bank under this Subordinated Note shall be in writing
and addressed to Providian National Bank, c/o Providian Financial Corporation,
000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 Attention: Treasurer, or to
such other address of the Bank as the Bank may notify the holders of the
Subordinated Notes.
This Subordinated Note shall be governed by, and construed in accordance
with, the laws of the State of New York, without regard to conflicts of laws
principles, and all applicable federal laws and regulations.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
the within Subordinated Note, 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.
98
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto ________________________________________________
_______________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY NUMBER OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
____________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address,
including postal zip code, of assignee)
the within Subordinated Note and all rights thereunder, and hereby irrevocably
constitutes and appoints _____________________
_______________________________________________________________________________
_______________________________________________________________________________
to transfer said Subordinated Note on the books of the Issuing and Paying Agent,
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 Subordinated
Note in every particular, without alteration
or enlargement or any change whatsoever.
________________________________
Signature Guarantee
99
OPTION TO ELECT REPAYMENT
-------------------------
The undersigned hereby irrevocably request(s) and instruct(s) the Bank to
repay this Subordinated Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount hereof to be repaid,
together with accrued and unpaid interest hereon, payable to the date of
repayment, to the undersigned, at _____________________________________________
_______________________________________________________________________________.
(Please print or typewrite name and address of the undersigned)
For this Subordinated Note to be repaid, the undersigned must give to the
Issuing and Paying Agent at its offices located at Xxx Xxxxx Xxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust Administration, or at such
other place or places of which the Bank shall from time to time notify the
holders of the Subordinated Notes, not more than 60 days nor less than 30 days
prior notice to the date of repayment, with this "Option to Elect Repayment"
form duly completed.
If less than the entire principal amount of this Subordinated Note is to be
repaid, specify the portion hereof (which shall be increments of $1,000) which
the holder elects to have repaid and specify the denomination or denominations
(which shall be $250,000 or an integral multiple of $1,000 in excess thereof) of
the Subordinated Notes to be issued to the holder for the portion of this
Subordinated Note not being repaid (in the absence of any such specification,
one such Subordinated Note will be issued for the portion not being repaid):
$______________________________ ______________________________
NOTICE: The signature on this
Dated: ________________________ "Option to Elect Repayment" form must
correspond with the name as written upon the
face of the within Subordinated Note in
every particular, without alteration or
enlargement or any change whatsoever.
________________________________
Signature Guarantee
100
