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Exhibit 4.5
EXECUTION VERSION
TRUST PREFERRED SECURITIES
GUARANTEE AGREEMENT
The PNC Financial Services
Group, Inc.
(as
Guarantor)
and
The Bank of New
York
(as Trust Preferred
Guarantee Trustee)
Dated as of February 13,
2008
TABLE OF
CONTENTS
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Page |
| ARTICLE I DEFINITIONS AND
INTERPRETATION |
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SECTION 1.1
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Definitions and Interpretation |
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1 |
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| ARTICLE II TRUST INDENTURE
ACT |
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SECTION 2.1
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Trust
Indenture Act; Application |
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4 |
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SECTION 2.2
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Lists of
Holders of Securities |
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4 |
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SECTION 2.3
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Reports
by the Trust Preferred Guarantee Trustee |
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5 |
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SECTION 2.4
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Periodic
Reports to Trust Preferred Guarantee Trustee |
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5 |
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SECTION 2.5
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Evidence
of Compliance with Conditions Precedent |
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5 |
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SECTION 2.6
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Compliance Certificate and Opinions |
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6 |
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SECTION 2.7
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Events of
Default; Waiver |
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6 |
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SECTION 2.8
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Event of
Default; Notice |
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6 |
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SECTION 2.9
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Conflicting Interests |
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7 |
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| ARTICLE III POWERS, DUTIES AND RIGHTS
OF TRUST PREFERRED GUARANTEE TRUSTEE |
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SECTION 3.1
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Powers
and Duties of the Trust Preferred Guarantee Trustee |
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7 |
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SECTION 3.2
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Certain
Rights of Trust Preferred Guarantee Trustee |
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9 |
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SECTION 3.3
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Not
Responsible for Recitals or Issuance of Guarantee |
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11 |
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| ARTICLE IV TRUST PREFERRED GUARANTEE
TRUSTEE |
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SECTION 4.1
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Trust
Preferred Guarantee Trustee; Eligibility |
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11 |
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SECTION 4.2
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Resignation and Removal; Appointment of Successor |
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11 |
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SECTION 4.3
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Acceptance of Appointment by Successor |
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13 |
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SECTION 4.4
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Merger,
Conversion, Consolidation or Succession to Business |
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13 |
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| ARTICLE V GUARANTEE |
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SECTION 5.1
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Guarantee |
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SECTION 5.2
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Waiver of
Notice and Demand |
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SECTION 5.3
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Obligations Not Affected |
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14 |
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SECTION 5.4
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Rights of
Holders |
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SECTION 5.5
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Guarantee
of Payment |
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15 |
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SECTION 5.6
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Subrogation |
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15 |
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SECTION 5.7
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Independent Obligations |
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16 |
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| ARTICLE VI LIMITATION OF
TRANSACTIONS; SUBORDINATION |
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SECTION 6.1
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Subordination |
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SECTION 6.2
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Pari
Passu Guarantees |
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16 |
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| ARTICLE VII
TERMINATION |
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SECTION 7.1
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Termination |
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| ARTICLE VIII COMPENSATION AND
INDEMNIFICATION |
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SECTION 8.1
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Exculpation |
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17 |
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SECTION 8.2
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Compensation, Reimbursement and Indemnification |
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17 |
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| ARTICLE IX
MISCELLANEOUS |
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SECTION 9.1
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Successors and Assigns |
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18 |
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SECTION 9.2
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Amendments |
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18 |
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SECTION 9.3
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Notices |
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18 |
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SECTION 9.4
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Benefit |
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19 |
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SECTION 9.5
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Separability Clause |
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19 |
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SECTION 9.6
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Governing
Law |
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iii
TRUST PREFERRED SECURITIES
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the
“Trust Preferred Securities Guarantee”), dated as of
February 13, 2008, is executed and delivered by The PNC
Financial Services Group, Inc., a Pennsylvania corporation, and The
Bank of New York, a New York corporation as trustee, for the
benefit of the Holders (as defined herein) from time to time of the
Trust Preferred Securities (as defined herein) of PNC Capital Trust
E, a Delaware statutory trust (the “Trust”).
WHEREAS, pursuant to the
Second Amended and Restated Declaration of Trust (the
“Declaration”), dated as of February 13, 2008,
among the trustees of the Trust named therein, the Guarantor, as
sponsor, and the holders from time to time of preferred undivided
beneficial interests in the assets of the Trust, the Trust is
issuing on the date hereof 18,000,000 trust preferred securities,
having an aggregate liquidation amount of $450,000,000, designated
the 7 3 / 4 % Trust Preferred Securities (the “Trust Preferred
Securities”);
WHEREAS, as incentive for the
Holders to purchase the Trust Preferred Securities, the Guarantor
desires irrevocably and unconditionally to agree, to the extent set
forth in this Trust Preferred Securities Guarantee, to pay to the
Holders the Guarantee Payments (as defined herein) and to make
certain other payments on the terms and conditions set forth
herein.
NOW, THEREFORE, in
consideration of the purchase by each Holder of Trust Preferred
Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this
Trust Preferred Securities Guarantee for the benefit of the
Holders.
ARTICLE I
DEFINITIONS AND
INTERPRETATION
SECTION 1.1 Definitions and
Interpretation
In this Trust Preferred
Securities Guarantee, unless the context otherwise
requires:
(a) Capitalized terms used in
this Trust Preferred Securities Guarantee but not defined in the
preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) a term defined anywhere
in this Trust Preferred Securities Guarantee has the same meaning
throughout;
(c) all references to
“the Trust Preferred Securities Guarantee” or
“this Trust Preferred Securities Guarantee” are to this
Trust Preferred Securities Guarantee as modified, supplemented or
amended from time to time;
(d) all references in this
Trust Preferred Securities Guarantee to Articles and Sections are
to Articles and Sections of this Trust Preferred Securities
Guarantee, unless otherwise specified;
(e) a term defined in the
Trust Indenture Act has the same meaning when used in this Trust
Preferred Securities Guarantee, unless otherwise defined in this
Trust Preferred Securities Guarantee or unless the context
otherwise requires; and
(f) a reference to the
singular includes the plural and vice versa.
1
“Act” by any
Holder means any instrument or instruments (and the action embodied
therein and evidenced thereby) embodying or evidencing any request,
demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by the Indenture to be given or taken
by Holders signed by such Holders in person or by an agent duly
appointed in writing. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any
purpose of this Guarantee and (subject to Section 3.1)
conclusive in favor of the Trust Preferred Guarantee Trustee and
the Guarantor, if made in the manner provided in Section 1.04
of the Indenture.
“Affiliate” of
any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this
definition, “control” when used with respect to any
specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and
the terms “controlling” and “controlled”
have meanings correlative to the foregoing.
“Board of
Directors” means either the board of directors of the
Guarantor or any committee of that board duly authorized to act
hereunder.
“Board
Resolution” means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Guarantor to have been
duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the
Trust Preferred Guarantee Trustee.
“Business Day”
means any day other than a Saturday, Sunday or any other day on
which banking institutions in the City of New York, New York, the
City of Pittsburgh, Pennsylvania, the Commonwealth of Pennsylvania
or the City of Wilmington, Delaware are authorized or obligated by
any applicable law, regulation or executive order to
close.
“Commission”
means the Securities and Exchange Commission as from time to time
constituted, created under the Securities and Exchange Act of 1934,
as amended, or, if at any time after the execution of this Trust
Preferred Securities Guarantee such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“Corporate Trust
Office” means the principal office of the Trust Preferred
Guarantee Trustee at which at any particular time its corporate
trust business shall be administered, which on the date hereof is
located at 101 Barclay Street, Floor 8 West, New York, New York
10286.
“Covered Person”
means any Holder or beneficial owner of Trust Preferred
Securities.
“JSNs” means the
7 3 /
4 %
Junior Subordinated Notes due March 15, 2068 to be issued by
the Trust under the Indenture held by the Property Trustee (as
defined in the Declaration).
“Distribution”
has the meaning set forth in the Declaration.
“Event of
Default” means (i) a default by the Guarantor of any of
its payment obligations under this Trust Preferred Securities
Guarantee or (ii) a default by the Guarantor in any other
obligation under this Trust Preferred Securities Guarantee that
remains unremedied for 30 days.
“First Supplemental
Indenture” means the First Supplemental Indenture, dated as
of February 13, 2008, between the Guarantor and The Bank of
New York, as trustee.
2
“Guarantee
Payments” means the following payments or distributions,
without duplication, with respect to the Trust Preferred
Securities, to the extent not paid or made by the Trust:
(i) any accumulated and unpaid Distributions that are required
to be paid on the Trust Preferred Securities, to the extent the
Trust has funds available therefor, (ii) the Redemption Price,
when required to be paid, with respect to any Trust Preferred
Securities called for redemption by the Trust, to the extent that
the Trust has funds available therefor and (iii) upon a
voluntary or involuntary dissolution, winding-up or liquidation of
the Trust (other than in connection with the distribution of JSNs
to the Holders in exchange for Trust Preferred Securities as
provided in the Declaration) the lesser of (a) the aggregate
of the liquidation amount of $25 per Trust Preferred Security and
all accumulated and unpaid Distributions on the Trust Preferred
Securities to the date of payment, to the extent the Trust has
funds available therefor or (b) the amount of assets of the
Trust remaining available for distribution to Holders in
liquidation of the Trust (in either case, the “Liquidation
Distribution”).
“Guarantor” means
The PNC Financial Services Group, Inc. until a successor Person
shall have become such pursuant to the applicable provisions of
this Trust Preferred Securities Guarantee, and thereafter
“Guarantor” shall mean such successor
Person.
“Holder” means a
Person in whose name a Certificate representing a Trust Preferred
Security is registered in the Security Register; provided
that in determining whether the holders of the requisite percentage
of Trust Preferred Securities have given any request, notice,
consent or waiver hereunder, “Holder” shall not include
the Guarantor, the Trust Preferred Guarantee Trustee, or any
Affiliate of the Guarantor or the Trust Preferred Guarantee
Trustee.
“Indemnified
Person” means the Trust Preferred Guarantee Trustee, any
Affiliate of the Trust Preferred Guarantee Trustee, or any
officers, directors, shareholders, members, partners, employees,
representatives, nominees, custodians or agents of the Trust
Preferred Guarantee Trustee.
“Indenture” means
the Amended and Restated Junior Subordinated Indenture, dated as of
February 13, 2008 (as supplemented and amended by the First
Supplemental Indenture), between the Guarantor and The Bank of New
York, as trustee, pursuant to which the JSNs are to be
issued.
“Liquidation
Amount” means the stated amount of $25 per Trust Preferred
Security.
“Liquidation
Distribution” has the meaning set forth in the Definition of
Guarantee Payments.
“List of Holders”
has the meaning set forth in Section 2.2(a).
“Majority in
Liquidation Amount of the Trust Preferred Securities” means,
except as provided in the terms of the Trust Preferred Securities
or by the Trust Indenture Act, Holder(s) of outstanding Trust
Preferred Securities voting together as a single class who are the
record holders of an aggregate Liquidation Amount representing more
than 50% of the aggregate Liquidation Amount of all then
outstanding Trust Preferred Securities.
“Officers’
Certificate” means a certificate signed by the Chairman or
any Vice Chairman of the Board of Directors, President or a Vice
President, and by its Treasurer, an Assistant Treasurer,
Controller, an Assistant Controller, Secretary or an Assistant
Secretary, of the Guarantor, and delivered to the Trust Preferred
Guarantee Trustee.
“Person” means
any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof or any other entity.
3
“Property
Trustee” has the meaning set forth in the
Declaration.
“Responsible
Officer” means, with respect to the Trust Preferred Guarantee
Trustee, any officer within the Corporate Trust Office of the Trust
Preferred Guarantee Trustee with direct responsibility for the
administration of this Trust Preferred Securities Guarantee 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.
“Redemption
Price” has the meaning set forth in the Indenture.
“Security
Register” has the meaning set forth in the
Declaration.
“Trust Indenture
Act” means the Trust Indenture Act of 1939 (15 U.S.C.
§§ 77aaa-77bbb), as amended and as in effect on the date
as of this Indenture, except that any amendments hereto shall
conform to the requirements of the Trust Indenture Act as then in
effect.
“Trust Preferred
Guarantee Trustee” means The Bank of New York until a
successor Trust Preferred Guarantee Trustee shall have become such
pursuant to the applicable provisions of this Trust Preferred
Securities Guarantee, and thereafter “Trust Preferred
Guarantee Trustee” shall mean or include each such Person who
is then a Trust Preferred Guarantee Trustee hereunder.
“Underwriting
Agreement” has the meaning set forth in the
Declaration.
ARTICLE II
TRUST INDENTURE
ACT
SECTION 2.1 Trust Indenture Act;
Application
If any provision hereof
limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required or deemed under such Act to be a
part of and govern this Trust Preferred Securities Guarantee, the
required or deemed provision shall control. If any provision of
this Trust Preferred Securities Guarantee modifies or excludes any
provision of the Trust Indenture Act that may be so modified or
excluded under such Act, the modified or excluded provision shall
be deemed to apply to this Trust Preferred Securities Guarantee as
so modified or to be excluded, as the case may be.
SECTION 2.2 Lists of Holders of Trust
Preferred Securities
(a) The Guarantor shall
provide the Trust Preferred Guarantee Trustee (i) within 15
days after each record date for payment of Distributions, a list,
in such form as the Property Trustee may reasonably require, of the
names and addresses of the Holders of the Securities (“List
of Holders”) as of such record date, provided , that
neither the Guarantor nor the Trust Preferred Guarantee Trustee
shall be obligated to provide such List of Holders at any time if
the List of Holders does not differ from the most recent List of
Holders given to the Trust Preferred Guarantee Trustee by the
Guarantor, 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 14 days before such List of Holders is
given to the Trust Preferred Guarantee Trustee. The Trust Preferred
Guarantee Trustee shall preserve, in as current a form as is
reasonably practicable, all information contained in Lists of
Holders given to it, provided, that the Trust Preferred Guarantee
Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Trust Preferred
Guarantee Trustee shall comply with its obligations under
§§ 311(a), 311(b) and 312(b) of the Trust Indenture
Act.
4
SECTION 2.3 Reports by the Trust
Preferred Guarantee Trustee
Within 60 days after
May 15 of each year commencing with the year 2008, the Trust
Preferred Guarantee Trustee shall transmit to the Holders of the
Trust Preferred Securities for which it is Trust Preferred
Guarantee Trustee hereunder, as their names and addresses appear in
the Securities Register, a brief report dated as of such
May 15 in accordance with, and to the extent required under,
Section 313 of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Trust
Preferred Guarantee Trustee
The Guarantor shall:
(a) file with the Trust
Preferred Guarantee Trustee, within 15 days after the Guarantor is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) which the
Commission may be required to file, and such summaries thereof, as
may be required pursuant to the Trust Indenture Act at the times
and in the manner provided in the Trust Indenture Act;
provided that any such information, documents or reports
required to be filed with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if
the Guarantor is not required to file information, documents or
reports pursuant to either of said Sections, then it shall file
with the Trust Preferred Guarantee Trustee and the Commission, in
accordance with the rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant
to Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and
regulations;
(b) file with the Trust
Preferred Guarantee Trustee and the Commission, in accordance with
the rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Guarantor with the conditions and
covenants of this Trust Preferred Securities Guarantee as may be
required from time to time by such rules and regulations;
and
(c) transmit by mail to all
Holders, as their names and addresses appear in the Securities
Register, within 30 days after the filing thereof with the Trust
Preferred Guarantee Trustee, such summaries of any information,
documents and reports required to be filed by the Guarantor
pursuant to paragraphs (a) and (b) of this
Section 2.4 as may be required by rules and regulations
prescribed from time to time by the Commission.
Delivery of such reports,
information and documents to the Trust Preferred Guarantee Trustee
is for informational purposes only and the Trust Preferred
Guarantee Trustee’s receipt of such reports shall not
constitute constructive notice of any information contained therein
or determinable from information contained therein, including the
Guarantor’s compliance with any of its covenants hereunder
(as to which the Trust Preferred Guarantee Trustee is entitled to
rely exclusively on Officers’ Certificates).
SECTION 2.5 Evidence of Compliance
with Conditions Precedent
The Guarantor shall provide
to the Trust Preferred Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in
this Trust Preferred Securities Guarantee that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act
or as required by Section 314(c). Any certificate 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.
5
SECTION 2.6 Compliance Certificate
and Opinions
Upon any application or
request by the Guarantor to the Trust Preferred Guarantee Trustee
to take any action under any provision of this Trust Preferred
Securities Guarantee, the Guarantor shall furnish to the Trust
Preferred Guarantee Trustee an Officers’ Certificate stating
that all conditions precedent, if any, provided for in this Trust
Preferred Securities Guarantee relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have
been complied with.
Any Officers’
Certificate or Opinion of Counsel delivered with respect to
compliance with a condition or covenant provided for in this Trust
Preferred Securities Guarantee shall include:
(a) a statement that each
individual signing the Officers’ Certificate or Opinion of
Counsel has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to
the nature and scope of the examination or investigation upon which
the statements or opinions contained in the Officers’
Certificate or Opinion of Counsel are based;
(c) a statement that, in the
opinion of each such individual, he or she has made such
examination or investigation as is necessary to enable him or her
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 individual, such condition or
covenant has been complied with.
SECTION 2.7 Events of Default;
Waiver
The Holders of a Majority in
Liquidation Amount of Trust Preferred Securities may, by vote, on
behalf of the Holders of all of the Trust Preferred Securities,
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 Trust Preferred 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 2.8 Event of Default;
Notice
(a) The Trust Preferred
Guarantee Trustee shall, within 60 days after the occurrence of an
Event of Default, transmit by mail, first class postage prepaid, to
the Holders, notices of all Events of Default actually known to a
Responsible Officer of the Trust Preferred Guarantee Trustee as
being an Event of Default hereunder, unless such Events of Default
have been cured before the giving of such notice; provided ,
that the Trust Preferred Guarantee Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of
the Trust Preferred Guarantee Trustee in good faith determines that
the withholding of such notice is in the interests of the
Holders.
(b) The Trust Preferred
Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless either the Trust Preferred Guarantee
Trustee shall have received written notice thereof, or a
Responsible Officer charged with the administration of this Trust
Preferred Securities Guarantee shall have actual
knowledge.
6
SECTION 2.9 Conflicting
Interests
The Declaration shall be
deemed to be specifically described in this Trust Preferred
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
TRUST PREFERRED GUARANTEE
TRUSTEE
SECTION 3.1 Powers and Duties of the
Trust Preferred Guarantee Trustee
(a) This Trust Preferred
Securities Guarantee shall be held by the Trust Preferred Guarantee
Trustee for the benefit of the Holders, and the Trust Preferred
Guarantee Trustee shall not transfer its right, title and interest
in this Trust Preferred Securities Guarantee to any Person except a
Holder exercising his or her rights pursuant to Sections 5.4(b) and
5.4(c) or to a successor Trust Preferred Guarantee Trustee on
acceptance by such successor Trust Preferred Guarantee Trustee of
its appointment to act as successor Trust Preferred Guarantee
Trustee. The right, title and interest of the Trust Preferred
Guarantee Trustee shall automatically vest in any successor Trust
Preferred Guarantee Trustee, and such vesting and cessation of
title shall be effective whether or not conveyancing documents have
been executed and delivered pursuant to the appointment of such
successor Trust Preferred Guarantee Trustee.
(b) If an Event of Default
actually known to a Responsible Officer as an Event of Default has
occurred and is continuing, the Trust Preferred Guarantee Trustee
shall enforce this Trust Preferred Securities Guarantee for the
benefit of the Holders of the Trust Preferred
Securities.
(c) The Trust Preferred
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 Trust Preferred Securities
Guarantee, and no implied covenants shall be read into this Trust
Preferred Securities Guarantee against the Trust Preferred
Guarantee Trustee. In case an Event of Default has occurred (that
has not been cured or waived pursuant to Section 2.7) and is
actually known to a Responsible Officer, the Trust Preferred
Guarantee Trustee shall exercise such of the rights and powers
vested in it by this Trust Preferred Securities Guarantee, and use
the same degree of care and skill in its exercise thereof, as a
prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs.
(d) Except during the
continuance of Event of Default:
(i) the Trust Preferred
Guarantee Trustee shall undertake to perform only such duties as
are specifically set forth in this Trust Preferred Securities
Guarantee and no implied covenants shall be read into this Trust
Preferred Securities G
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