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SERIES B CAPITAL SECURITIES GUARANTEE AGREEMENT THE PNC FINANCIAL SERVICES GROUP, INC

Financial Services Agreement

SERIES B CAPITAL SECURITIES GUARANTEE AGREEMENT THE PNC FINANCIAL SERVICES GROUP, INC | Document Parties: PNC FINANCIAL SERVICES GROUP, INC | Yardville National Bancorp You are currently viewing:
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PNC FINANCIAL SERVICES GROUP, INC | Yardville National Bancorp

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Title: SERIES B CAPITAL SECURITIES GUARANTEE AGREEMENT THE PNC FINANCIAL SERVICES GROUP, INC
Governing Law: New York     Date: 2/21/2008

SERIES B CAPITAL SECURITIES GUARANTEE AGREEMENT THE PNC FINANCIAL SERVICES GROUP, INC, Parties: pnc financial services group  inc , yardville national bancorp
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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

 

     Page

ARTICLE I

DEFINITIONS AND INTERPRETATION

SECTION 1.1 Definitions and Interpretation

   4

ARTICLE II

TRUST INDENTURE ACT

SECTION 2.1 Trust Indenture Act: Application

   7

SECTION 2.2 Lists of Holders of Securities

   7

SECTION 2.3 Reports by the Capital Securities Guarantee Trustee

   8

SECTION 2.4 Evidence of Compliance with Conditions Precedent

   8

SECTION 2.5 Events of Default; Waiver

   8

SECTION 2.6 Events of Default; Notice

   8

SECTION 2.7 Conflicting Interests

   9

ARTICLE III

POWERS, DUTIES AND RIGHTS OF

CAPITAL SECURITIES GUARANTEE TRUSTEE

SECTION 3.1 Powers and Duties of the Capital Securities Guarantee Trustee

   9

SECTION 3.2 Certain Rights of the Capital Securities Guarantee Trustee

   10

SECTION 3.3 Evidence of Compliance with Conditions Precedent

   12

SECTION 3.4 Not Responsible for Recitals or Issuance of Series B Capital Securities Guarantee

   12

ARTICLE IV

CAPITAL SECURITIES GUARANTEE TRUSTEE

SECTION 4.1 Capital Securities Guarantee Trustee: Eligibility

   12

SECTION 4.2 Appointment, Removal and Resignation of Capital Securities Guarantee Trustee

   13

ARTICLE V

GUARANTEE

SECTION 5.1 Guarantee

   14

SECTION 5.2 Waiver of Notice and Demand

   14

SECTION 5.3 Obligations Not Affected

   14

SECTION 5.4 Rights of Holders

   15

SECTION 5.5 Guarantee of Payment

   15

SECTION 5.6 Subrogation

   15

SECTION 5.7 Independent Obligations

   16

ARTICLE VI

LIMITATION OF TRANSACTIONS; SUBORDINATION

SECTION 6.1 Limitation of Transactions

   16

SECTION 6.2 Ranking

   16

ARTICLE VII

TERMINATION

 

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SECTION 7.1 Termination

   17

ARTICLE VIII

COMPENSATION AND EXPENSES OF CAPITAL

SECURITIES GUARANTEE TRUSTEE

SECTION 8.1 Compensation and Expenses of Capital Securities Guarantee Trustee

   17

ARTICLE IX

EXCULPATION; INDEMNIFICATION

SECTION 9.1 Exculpation

   18

SECTION 9.2 Indemnification

   18

ARTICLE X

MISCELLANEOUS

SECTION 10.1 Successors and Assigns

   18

SECTION 10.2 Amendments

   19

SECTION 10.3 Notices

   19

SECTION 10.4 Benefit

   20

SECTION 10.5 Governing Law

   20

SECTION 10.6 Counterparts

   20

 

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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:

 

  (a) capitalized terms used but not defined in the preamble above have the respective meanings assigned to them in this Section 1.1;

 

  (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;

 

  (c) a term defined anywhere in this Series B Capital Securities Guarantee has the same meaning throughout;

 

  (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;

 


  (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;

 

  (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

 

  (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:

 

  (a) a statement that each officer signing the Officers’ Certificate has read the covenant or condition and the definitions relating thereto;

 

  (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;

 

  (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; and

 

  (d) 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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