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Exhibit 4.8
SERIES B CAPITAL SECURITIES
GUARANTEE AGREEMENT
THE PNC FINANCIAL SERVICES
GROUP, INC.
Dated as of
,
2008
Table of
Contents
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ARTICLE I
DEFINITIONS AND
INTERPRETATION
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SECTION 1.1 Definitions and
Interpretation
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ARTICLE II
TRUST INDENTURE
ACT
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SECTION 2.1 Trust Indenture Act:
Application
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SECTION 2.2 Lists of Holders of
Securities
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SECTION 2.3 Reports by the Capital
Securities Guarantee Trustee
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8 |
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SECTION 2.4 Evidence of Compliance with
Conditions Precedent
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8 |
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SECTION 2.5 Events of Default;
Waiver
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SECTION 2.6 Events of Default;
Notice
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SECTION 2.7 Conflicting
Interests
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ARTICLE III
POWERS, DUTIES AND RIGHTS
OF
CAPITAL SECURITIES GUARANTEE
TRUSTEE
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SECTION 3.1 Powers and Duties of the
Capital Securities Guarantee Trustee
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SECTION 3.2 Certain Rights of the
Capital Securities Guarantee Trustee
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10 |
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SECTION 3.3 Evidence of Compliance with
Conditions Precedent
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12 |
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SECTION 3.4 Not Responsible for Recitals
or Issuance of Series B Capital Securities Guarantee
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12 |
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ARTICLE IV
CAPITAL SECURITIES GUARANTEE
TRUSTEE
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SECTION 4.1 Capital Securities Guarantee
Trustee: Eligibility
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12 |
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SECTION 4.2 Appointment, Removal and
Resignation of Capital Securities Guarantee Trustee
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ARTICLE V
GUARANTEE
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SECTION 5.1 Guarantee
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SECTION 5.2 Waiver of Notice and
Demand
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SECTION 5.3 Obligations Not
Affected
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SECTION 5.4 Rights of Holders
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15 |
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SECTION 5.5 Guarantee of
Payment
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SECTION 5.6 Subrogation
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SECTION 5.7 Independent
Obligations
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ARTICLE VI
LIMITATION OF TRANSACTIONS;
SUBORDINATION
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SECTION 6.1 Limitation of
Transactions
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SECTION 6.2 Ranking
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ARTICLE VII
TERMINATION
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SECTION 7.1 Termination
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ARTICLE VIII
COMPENSATION AND EXPENSES OF
CAPITAL
SECURITIES GUARANTEE
TRUSTEE
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SECTION 8.1 Compensation and Expenses of
Capital Securities Guarantee Trustee
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ARTICLE IX
EXCULPATION;
INDEMNIFICATION
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SECTION 9.1 Exculpation
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SECTION 9.2 Indemnification
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18 |
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ARTICLE X
MISCELLANEOUS
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SECTION 10.1 Successors and
Assigns
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SECTION 10.2 Amendments
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SECTION 10.3 Notices
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SECTION 10.4 Benefit
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20 |
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SECTION 10.5 Governing Law
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SECTION 10.6 Counterparts
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SERIES B CAPITAL SECURITIES
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the
“Series B Capital Securities Guarantee”), dated as of
,
2008, is executed and delivered by The PNC Financial Services
Group, Inc., a Pennsylvania corporation (the
“Guarantor”), and The Bank of New York, a New York
corporation, as trustee (the “Capital Securities Guarantee
Trustee”), for the benefit of the Holders (as defined herein)
from time to time of the Series B Capital Securities (as defined
herein) of Yardville Capital Trust II, a Delaware statutory
business trust (the “Issuer”).
WHEREAS, pursuant to an
Amended and Restated Declaration of Trust (the
“Declaration”), dated as of June 23, 2000, among
the trustees of the Issuer, the Guarantor, successor to Yardville
National Bancorp, as sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing on the date hereof 15,000 capital securities,
having an aggregate liquidation amount of $15 million, such capital
securities being designated the 9.50% Series B Capital Securities
(collectively the “Series B Capital Securities”) in
exchange for 15,000 capital securities, having an aggregate
liquidation amount of $15 million, designated as the 9.50% Series A
Capital Securities collectively the “Series B Capital
Securities”.
WHEREAS, as incentive for the
Holders to exchange the Series A Capital Securities, the Guarantor
desires irrevocably and unconditionally to agree, to the extent set
forth in this Series B Capital Securities Guarantee, to pay to the
Holders the Guarantee Payments (as defined below). The Guarantor
also agrees to make certain other payments on the terms and
conditions set forth herein.
NOW, THEREFORE, in
consideration of the purchase by each Holder, which purchase the
Guarantor hereby acknowledges shall benefit the Guarantor, the
Guarantor executes and delivers this Series B Capital Securities
Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND
INTERPRETATION
SECTION 1.1 Definitions and
Interpretation
In this Series B Capital
Securities Guarantee, unless the context otherwise
requires:
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(a) |
capitalized terms used but not defined in the preamble above
have the respective meanings assigned to them in this
Section 1.1; |
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(b) |
terms defined in the Declaration as at the date of execution of
this Series B Capital Securities Guarantee have the same meaning
when used in this Series B Capital Securities Guarantee unless
otherwise defined in this Series B Capital Securities
Guarantee; |
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(c) |
a term defined anywhere in this Series B Capital Securities
Guarantee has the same meaning throughout; |
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(d) |
all references to “the Series B Capital Securities
Guarantee” or “this Series B Capital Securities
Guarantee” are to this Series B Capital Securities Guarantee
as modified, supplemented or amended from time to time; |
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(e) |
all references in this Series B Capital Securities Guarantee to
Articles and Sections are to Articles and Sections of this Series B
Capital Securities Guarantee, unless otherwise
specified; |
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(f) |
a term defined in the Trust Indenture Act has the same meaning
when used in this Series B Capital Securities Guarantee, unless
otherwise defined in this Series B Capital Securities Guarantee or
unless the context otherwise requires; and |
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(g) |
a reference to the singular includes the plural and vice
versa. |
“ Affiliate
” has the same meaning as given to that term in Rule 405
under the Securities Act of 1933, as amended, or any successor rule
thereunder.
“ Business Day
” means any day other than a Saturday or a Sunday, or a day
on which banking institutions in The City of New York or Hamilton,
New Jersey are authorized or required by law or executive order or
regulation to close.
“ Capital Securities
Guarantee Trustee ” means The Bank of New York, a New
York corporation, unless and until a Successor Capital Securities
Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Series B Capital
Securities Guarantee and thereafter means each such Successor
Capital Securities Guarantee Trustee.
“ Common
Securities ” means the securities representing common
undivided beneficial interests in the assets of the
Issuer.
“ Corporate Trust
Office ” means the office of the Capital Securities
Guarantee Trustee at which the corporate trust business of the
Capital Securities Guarantee Trustee shall, at any particular time,
be principally administered, which office at the date of execution
of this Series B Capital Securities Guarantee is located at 101
Barclay Street, New York, New York 10286.
“ Covered Person
” means any Holder or beneficial owner of Series B Capital
Securities.
“ Debentures
” means the series of subordinated debt securities of the
Guarantor designated the 9.50% Series B Junior Subordinated
Deferrable Interest Debentures due May 31, 2030 held by the
Property Trustee (as defined in the Declaration) of the
Issuer.
“ Event of
Default ” means a default by the Guarantor on any of its
payment or other obligations under this Series B Capital Securities
Guarantee.
“ Guarantee
Payments ” means the following payments or distributions,
without duplication, with respect to the Series B Capital
Securities, to the extent not paid or made by the Issuer:
(i) any accumulated and unpaid Distributions (as defined in
the Declaration) that are required to be paid on such Series B
Capital Securities to the extent the Issuer has funds on hand
legally available therefor at such time, (ii) the redemption
price, including all accumulated and unpaid Distributions to the
date of redemption (the “Redemption Price”) to the
extent the Issuer has funds on hand legally available therefor at
such time, with respect to any Series B Capital Securities called
for redemption by the Issuer, and (iii) upon a voluntary or
involuntary termination and liquidation of the Issuer (other than
in connection with the distribution of Debentures to the Holders in
exchange for Series B Capital Securities as provided in the
Declaration), the lesser of (a) the aggregate of the
liquidation amount and all accumulated and
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unpaid Distributions on the Series B
Capital Securities to the date of payment, to the extent the Issuer
has funds on hand legally available therefor at such time (a
“Liquidation Distribution”), and (b) the amount of
assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer.
“ Holder ”
shall mean any holder, as registered on the books and records of
the Issuer, of any Series B Capital Securities; provided, however,
that, in determining whether the holders of the requisite
percentage of Series B Capital Securities have given any request,
notice, consent or waiver hereunder, “Holder” shall not
include the Guarantor or any Affiliate of the Guarantor.
“ Indemnified
Person ” means the Capital Securities Guarantee Trustee,
any Affiliate of the Capital Securities Guarantee Trustee, or any
officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Capital
Securities Guarantee Trustee.
“ Indenture
” means the Indenture dated as of June 23, 2000, among
the Guarantor (the “Debenture Issuer”) and The Bank of
New York, as trustee, pursuant to which the Debentures are to be
issued to the Property Trustee of the Issuer.
“ Majority in
liquidation amount of the Series B Capital Securities ”
means, except as provided by the Trust Indenture Act, a vote by
Holder(s) of more than 50% of the aggregate liquidation amount
(including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accumulated and unpaid Distributions
to the date upon which the voting percentages are determined) of
all Series B Capital Securities.
“ Officers’
Certificate ” means, with respect to any Person, a
certificate signed by an authorized officer of such Person. Any
Officers’ Certificate delivered with respect to compliance
with a condition or covenant provided for in this Series B
Capital Securities Guarantee (other than pursuant to
Section 314(a)(4) of the Trust Indenture Act) shall
include:
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(a) |
a statement that each officer signing the Officers’
Certificate has read the covenant or condition and the definitions
relating thereto; |
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(b) |
a brief statement as to the nature and scope of the explanation
or investigation upon which the statements of opinions continued in
the officers certificate are based; |
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(c) |
a statement that each such officer has made such examination or
investigation as, in such officer’s opinion, is necessary to
enable such officer to express an informed opinion as to whether or
not such covenant or condition has been complied with;
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a statement as to whether, in the opinion of each such officer,
such covenant or condition has been complied with. |
“ Other
Debentures ” means all junior subordinated debentures
issued by the Guarantor from time to time and sold to trusts to be
established by the Guarantor (if any), in each case similar to the
Issuer, including, without limitation, those junior subordinated
debentures issued by the Guarantor and sold to Yardville Capital
Trust II on or about October 16, 1997.
“ Other
Guarantees ” means all guarantees to be issued by the
Guarantor with respect to capital securities (if any) similar to
the Series B Capital Securities issued by other trusts to be
established by the Guarantor (if any), in each case similar to the
Issuer.
“ Person ”
means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock
company, limited liability company, trust,
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unincorporated association, or
government or any agency or political subdivision thereof, or any
other entity of whatever nature.
“ Registration
Rights Agreement ” means the Registration Rights
Agreement, dated as of June 23, 2000, by and among the
Guarantor, the Issuer and the Purchaser named therein as such
agreement may be amended, modified or supplemented from time to
time.
“ Responsible
Officer ” means, with respect to the Capital Securities
Guarantee Trustee, any officer within the Corporate Trust Office of
the Capital Securities Guarantee Trustee, including any vice
president, any assistant vice president, any assistant secretary,
any assistant treasurer, any trust officer, any senior trust
officer or other officer in the Corporate Trust Office of the
Capital Securities Guarantee Trustee customarily performing
functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred
because of that officer’s knowledge of and familiarity with
the particular subject.
“ Successor Capital
Securities Guarantee Trustee ” means a successor Capital
Securities Guarantee Trustee possessing the qualifications to act
as Capital Securities Guarantee Trustee under
Section 4.1.
“ Trust Indenture
Act ” means the Trust Indenture Act of 1939, as
amended.
“ Trust
Securities ” means the Common Securities and the Series B
Capital Securities, collectively.
ARTICLE II
TRUST INDENTURE
ACT
SECTION 2.1 Trust Indenture Act:
Application
(a) This Series B Capital
Securities Guarantee is subject to the provisions of the Trust
Indenture Act that are required to be part of this Series B Capital
Securities Guarantee and shall, to the extent applicable, be
governed by such provisions; and
(b) If and to the extent that
any provision of this Series B Capital Securities Guarantee limits,
qualifies or conflicts with the duties imposed by Section 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.2 Lists of Holders of
Securities
(a) The Guarantor shall
provide the Capital Securities Guarantee Trustee (unless the
Capital Securities Guarantee Trustee is otherwise the registrar of
the Capital Securities) with a list, in such form as the Capital
Securities Guarantee Trustee may reasonably require, of the names
and addresses of the Holders (“List of Holders”) as of
such date, (i) within one (1) Business Day after
June 1 and December 1 of each year, and (ii) at any
other time within 30 days of receipt by the Guarantor of a written
request for a List of Holders as of a date no more than 15 days
before such List of Holders is given to the Capital Securities
Guarantee Trustee; provided, that the Guarantor shall not be
obligated to provide such List of Holders at any time the List of
Holders does not differ from the most recent List of Holders given
to the Capital Securities Guarantee Trustee by the Guarantor. Upon
receipt of a new list of Holders, the Capital Securities Guarantee
Trustee may destroy any List of Holders previously given to
it,
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(b) The Capital Securities
Guarantee Trustee shall comply with its obligations under Sections
311(a), 311(b) and Section 312(b) of the Trust Indenture
Act.
SECTION 2.3 Reports by the Capital
Securities Guarantee Trustee
Within 60 days after
May 15 of each year, commencing May 15, 2008, the Capital
Securities Guarantee Trustee shall provide to the Holders such
reports as are required by Section 313(a) of the Trust
Indenture Act, if any, in the form and in the manner provided by
Section 313 of the Trust Indenture Act. The Capital Securities
Guarantee Trustee shall also comply with the other requirements of
Section 313(d) of the Trust Indenture Act.
The Guarantor shall provide
to the Capital Securities Guarantee Trustee such documents, reports
and information as required by Section 314 of the Trust
Indenture Act (if any) and the compliance certificate required by
Section 314 of the Trust Indenture Act in the form and manner
and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 2.4 Evidence of Compliance
with Conditions Precedent
The Guarantor shall provide
to the Capital Securities Guarantee Trustee such evidence of
compliance with any conditions precedent provided for in this
Series B Capital Securities Guarantee that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) of the Trust Indenture Act may
be given in the form of an Officers’ Certificate.
SECTION 2.5 Events of Default;
Waiver
The Holders of a Majority in
liquidation amount of Series Capital Securities may, by vote, on
behalf of all the Holders, waive any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Series B
Capital Securities Guarantee, but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION 2.6 Events of Default;
Notice
(a) The Capital Securities
Guarantee Trustee shall, within 90 days after the occurrence of a
default with respect to this Series B Capital Securities Guarantee,
actually known to a Responsible Officer of the Capital Securities
Guarantee Trustee, mail by first class postage prepaid, to all
Holders, notices of all Events or Default unless such defaults have
been cured before the giving of such notice, provided, that, except
in the case of default in the payment of any Guarantee Payment, the
Capital Securities Guarantee Trustee shall be protected in
withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors and/or
Responsible Officers of the Capital Securities Guarantee Trustee in
good faith determines that the withholding of such notice is in the
interests of the holders of the Series B Capital
Securities.
(b) The Capital Securities
Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Capital Securities Guarantee Trustee
shall have received written notice from the Guarantor, or a
Responsible Officer of the Capital Securities
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Guarantee Trustee charged with the
administration of the Declaration shall have obtained actual
knowledge, of such Event of Default.
SECTION 2.7 Conflicting
Interests
The Declaration shall be
deemed to be specifically described in this Series B Capital
Securities Guarantee for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust
Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS
OF
CAPITAL SECURITIES GUARANTEE
TRUSTEE
SECTION 3.1 Powers and Duties of the
Capital Securities Guarantee Trustee
(a) This Series B Capital
Securities Guarantee shall be held by the Capital Securities
Guarantee Trustee for the benefit of the Holders, and the Capital
Securities Guarantee Trustee shall not transfer this Series B
Capital Securities Guarantee to any Person except a Holder
exercising his or her rights pursuant to Section 5.4(b) hereof
or to a Successor Capital Securities Guarantee Trustee on
acceptance by such Successor Capital Securities Guarantee Trustee
of its appointment to act as Successor Capital Securities Guarantee
Trustee. The right, title and interest of the Capital Securities
Guarantee Trustee shall automatically vest in any Successor Capital
Securities Guarantee Trustee, and such vesting and succession of
right, title and interest shall be effective whether or not
conveyancing documents have been executed and delivered pursuant to
the appointment of such Successor Capital Securities Guarantee
Trustee.
(b) If an Event of Default
actually known to a Responsible Officer of the Capital Securities
Guarantee Trustee has occurred and is continuing, the Capital
Securities Guarantee Trustee shall enforce this Series B Capital
Securities Guarantee for the benefit of the Holders.
(c) The Capital Securities
Guarantee Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are
specifically set forth in this Series B Capital Securities
Guarantee, and no implied covenants shall be read into this Series
B Capital Securities Guarantee against the Capital Securities
Guarantee Trustee. In case an Event of Default has occurred that
has not been cured or waived pursuant to Section 2.6 and is
actually known to a Responsible Officer of the Capital Securities
Guarantee Trustee, the Capital Securities Guarantee Trustee shall
exercise such of the rights and powers vested in it by this Series
B Capital Securities Guarantee, and use the same degree of care and
skill in its exercise thereof as a prudent person would use under
the circumstances in the conduct of his or her own
affairs.
(d) No provision of this
Series B Capital Securities Guarantee shall be construed to relieve
the Capital Securities Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i) prior to the occurrence
of any Event of Default and after the curing or waiving of all such
Events of Default that may have occurred:
(A) the duties and
obligations of the Capital Securities Guarantee Trustee shall be
determined solely by the express provisions of this Series B
Capital Securities Guarantee, and the Capital Securities Guarantee
Trustee shall
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not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Series B Capital Securities Guarantee, and no implied
covenants or obligations shall be read into this Series B Capital
Securities Guarantee against the Capital Securities Guarantee
Trustee; and
(B) in the absence of bad
faith on the part of the Capital Securities Guarantee Trustee, the
Capital Securities Guarantee Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Capital Securities Guarantee Trustee and conforming to the
requirements of this Series B Capital Securities Guarantee; but in
the case of any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the Capital
Securities Guarantee Trustee, the Capital Securities
Guarant
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