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Exhibit
10.48
GUARANTEE
AGREEMENT
The PB Financial Services
Corporation
Dated as of March 29,
2005
TABLE OF
CONTENTS
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Page |
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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
POWERS, DUTIES AND RIGHTS OF
THE GUARANTEE TRUSTEE
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| SECTION
2.1. |
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Powers
and Duties of the Guarantee Trustee |
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4 |
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| SECTION
2.2. |
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Certain
Rights of the Guarantee Trustee |
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5 |
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| SECTION
2.3. |
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Not
Responsible for Recitals or Issuance of Guarantee |
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7 |
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| SECTION
2.4. |
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Events of
Default; Waiver |
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7 |
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| SECTION
2.5. |
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Events of
Default; Notice |
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8 |
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ARTICLE III
THE GUARANTEE
TRUSTEE
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| SECTION
3.1. |
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The
Guarantee Trustee; Eligibility |
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8 |
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| SECTION
3.2. |
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Appointment, Removal and Resignation of the Guarantee
Trustee |
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9 |
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ARTICLE IV
GUARANTEE
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| SECTION
4.1. |
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Guarantee |
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9 |
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| SECTION
4.2. |
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Waiver of
Notice and Demand |
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10 |
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| SECTION
4.3. |
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Obligations Not Affected |
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10 |
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| SECTION
4.4. |
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Rights of
Holders |
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11 |
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| SECTION
4.5. |
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Guarantee
of Payment |
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11 |
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| SECTION
4.6. |
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Subrogation |
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11 |
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| SECTION
4.7. |
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Independent Obligations |
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12 |
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| SECTION
4.8. |
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Enforcement |
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12 |
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TABLE OF
CONTENTS
(continued)
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Page |
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ARTICLE V
LIMITATION OF TRANSACTIONS;
SUBORDINATION
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| SECTION
5.1. |
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Limitation of Transactions |
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12 |
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| SECTION
5.2. |
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Ranking |
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13 |
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ARTICLE VI
TERMINATION
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| SECTION
6.1. |
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Termination |
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13 |
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ARTICLE VII
INDEMNIFICATION
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| SECTION
7.1. |
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Exculpation |
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14 |
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| SECTION
7.2. |
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Indemnification |
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14 |
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| SECTION
7.3. |
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Compensation; Reimbursement of Expenses |
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15 |
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ARTICLE VIII
MISCELLANEOUS
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| SECTION
8.1. |
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Successors and Assigns |
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16 |
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| SECTION
8.2. |
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Amendments |
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16 |
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| SECTION
8.3. |
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Notices |
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16 |
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| SECTION
8.4. |
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Benefit |
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17 |
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| SECTION
8.5. |
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Governing
Law |
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17 |
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| SECTION
8.6. |
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Counterparts |
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17 |
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GUARANTEE
AGREEMENT
This GUARANTEE AGREEMENT (the
“Guarantee”), dated as of March 29, 2005, is
executed and delivered by The PB Financial Services Corporation,
incorporated in Georgia (the “Guarantor”), and JPMorgan
Chase Bank, National Association, as trustee (the “Guarantee
Trustee”), for the benefit of the Holders (as defined herein)
from time to time of the Capital Securities (as defined herein) of
PB Capital Trust II, a Delaware statutory trust (the
“Issuer”).
WHEREAS, pursuant to an
Amended and Restated Declaration of Trust (the
“Declaration”), dated as of March 29, 2005, among
the trustees named therein of the Issuer, The PB Financial Services
Corporation, 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 securities, having an
aggregate liquidation amount of up to $5,000,000, designated the TP
Securities (the “Capital Securities”); and
WHEREAS, as incentive for the
Holders to purchase the Capital Securities, the Guarantor desires
irrevocably and unconditionally to agree, to the extent set forth
in this Guarantee, to pay to the Holders of Capital Securities 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 the Capital
Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the Guarantor executes and delivers this
Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND
INTERPRETATION
SECTION 1.1. Definitions and
Interpretation .
In this Guarantee, unless the
context otherwise requires:
(a) capitalized terms used in
this 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 Guarantee has the same meaning throughout;
(c) all references to
“the Guarantee” or “this Guarantee” are to
this Guarantee as modified, supplemented or amended from time to
time;
(d) all references in this
Guarantee to Articles and Sections are to Articles and Sections of
this Guarantee, unless otherwise specified;
(e) terms defined in the
Declaration as of the date of execution of this Guarantee have the
same meanings when used in this Guarantee, unless otherwise defined
in this Guarantee or unless the context otherwise requires;
and
(f) a reference to the
singular includes the plural and vice versa.
“Beneficiaries”
means any Person to whom the Issuer is or hereafter becomes
indebted or liable.
“Corporate Trust
Office” means the office of the Guarantee Trustee at which
the corporate trust business of the Guarantee Trustee shall, at any
particular time, be principally administered.
“Covered Person”
means any Holder of Capital Securities.
“Debentures”
means the junior subordinated debentures of The PB Financial
Services Corporation, designated the Junior Subordinated Debt
Securities due 2035, held by the Institutional Trustee (as defined
in the Declaration) of the Issuer.
“Event of
Default” has the meaning set forth in
Section 2.4.
“Guarantee
Payments” means the following payments or distributions,
without duplication, with respect to the Capital Securities, to the
extent not paid or made by the Issuer: (i) any accrued and
unpaid Distributions (as defined in the Declaration) which are
required to be paid on such Capital Securities to the extent the
Issuer has funds available in the Property Account (as defined in
the Declaration) therefor at such time, (ii) the Redemption
Price (as defined in the Indenture) to the extent the Issuer has
funds available in the Property Account therefor at such time, with
respect to any Capital Securities called for redemption by the
Issuer, (iii) the Special Redemption Price (as defined in the
Indenture) to the extent the Issuer has funds available in the
Property Account therefor at such time, with respect to Capital
Securities called for redemption upon the occurrence of a Special
Event (as defined in the Indenture), and (iv) upon a voluntary
or involuntary liquidation, dissolution, winding-up or termination
of the Issuer (other than in connection with the distribution of
Debentures to the Holders of the Capital Securities in exchange
therefor as provided in the Declaration), the lesser of
(a) the aggregate of the liquidation amount and all accrued
and unpaid Distributions on the Capital Securities to the date of
payment, to the extent the Issuer has funds available in the
Property Account therefor at such time, and (b) the amount of
assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer after satisfaction of
liabilities to creditors of the Issuer as required by applicable
law (in either case, the “Liquidation
Distribution”).
“Guarantee
Trustee” means JPMorgan Chase Bank, National Association,
until a Successor Guarantee Trustee has been appointed and has
accepted such appointment pursuant to the terms of this Guarantee
and thereafter means each such Successor Guarantee
Trustee.
“Holder” means
any holder, as registered on the books and records of the Issuer,
of any Capital Securities; provided, however, that, in determining
whether the holders of the requisite percentage of 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 Guarantee Trustee (including in its
individual capacity), any Affiliate of the Guarantee Trustee, or
any officers, directors, shareholders,
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members, partners, employees,
representatives, nominees, custodians or agents of the Guarantee
Trustee.
“Indenture” means
the Indenture, dated as of March 29, 2005, between the
Guarantor and JPMorgan Chase Bank, National Association, not in its
individual capacity but solely as trustee, and any indenture
supplemental thereto pursuant to which the Debentures are to be
issued to the Institutional Trustee of the Issuer.
“Liquidation
Distribution” has the meaning set forth in the definition of
“Guarantee Payments” herein.
“Majority in
liquidation amount of the Capital Securities” means Holder(s)
of outstanding Capital Securities, voting together as a class, but
separately from the holders of Common Securities, of more than 50%
of the aggregate liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to, but excluding, the date upon
which the voting percentages are determined) of all Capital
Securities then outstanding.
“Obligations”
means any costs, expenses or liabilities (but not including
liabilities related to taxes) of the Issuer, other than obligations
of the Issuer to pay to holders of any Trust Securities the amounts
due such holders pursuant to the terms of the Trust
Securities.
“Officer’s
Certificate” means, with respect to any Person, a certificate
signed by one Authorized Officer of such Person. Any
Officer’s Certificate delivered with respect to compliance
with a condition or covenant provided for in this Guarantee shall
include:
(a) a statement that each
officer signing the Officer’s Certificate has read the
covenant or condition and the definitions relating
thereto;
(b) a brief statement of the
nature and scope of the examination or investigation undertaken by
each officer in rendering the Officer’s
Certificate;
(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 condition or
covenant has been complied with.
“Person” means a
legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company,
limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any
other entity of whatever nature.
“Responsible
Officer” means, with respect to the Guarantee Trustee, any
officer within the Corporate Trust Office of the Guarantee Trustee
with direct responsibility for the administration of any matters
relating to this Guarantee, including any vice president,
any
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assistant vice president, any secretary,
any assistant secretary, the treasurer, any assistant treasurer,
any trust officer or other officer of the Corporate Trust Office of
the 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 Guarantee
Trustee” means a successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under
Section 3.1.
“Trust
Securities” means the Common Securities and the Capital
Securities.
ARTICLE II
POWERS, DUTIES AND RIGHTS OF
THE GUARANTEE TRUSTEE
SECTION 2.1. Powers and Duties of the
Guarantee Trustee .
(a) This Guarantee shall be
held by the Guarantee Trustee for the benefit of the Holders of the
Capital Securities, and the Guarantee Trustee shall not transfer
this Guarantee to any Person except a Holder of Capital Securities
exercising his or her rights pursuant to Section 4.4(b) or to
a Successor Guarantee Trustee on acceptance by such Successor
Guarantee Trustee of its appointment to act as Successor Guarantee
Trustee. The right, title and interest of the Guarantee Trustee
shall automatically vest in any Successor 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 Guarantee
Trustee.
(b) If an Event of Default
actually known to a Responsible Officer of the Guarantee Trustee
has occurred and is continuing, the Guarantee Trustee shall enforce
this Guarantee for the benefit of the Holders of the Capital
Securities.
(c) The Guarantee Trustee,
before the occurrence of any Event of Default and after the curing
or waiving of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth
in this Guarantee, and no implied covenants shall be read into this
Guarantee against the Guarantee Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to
Section 2.4(b)) and is actually known to a Responsible Officer
of the Guarantee Trustee, the Guarantee Trustee shall exercise such
of the rights and powers vested in it by this 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) No provision of this
Guarantee shall be construed to relieve the 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
Events of Default that may have occurred:
(A) the duties and
obligations of the Guarantee Trustee shall be determined solely by
the express provisions of this Guarantee, and the Guarantee Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Guarantee, and no
implied covenants or obligations shall be read into this Guarantee
against the Guarantee Trustee; and
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(B) in the absence of bad
faith on the part of the Guarantee Trustee, the 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 Guarantee Trustee and
conforming to the requirements of this Guarantee; but in the case
of any such certificates or opinions furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to examine the
same to determine whether or not on their face they conform to the
requirements of this Guarantee;
(ii) the Guarantee Trustee
shall not be liable for any error of judgment made in good faith by
a Responsible Officer of the Guarantee Trustee, unless it shall be
proved that such Responsible Officer of the Guarantee Trustee or
the Guarantee Trustee was negligent in ascertaining the pertinent
facts upon which such judgment was made;
(iii) the Guarantee Trustee
shall not be liable with respect to any action taken or omitted to
be taken by it in good faith in accordance with the written
direction of the Holders of not less than a Majority in liquidation
amount of the Capital Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power conferred upon
the Guarantee Trustee under this Guarantee; and
(iv) no provision of this
Guarantee shall require the Guarantee Trustee to expend or risk its
own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers, if the Guarantee Trustee shall have reasonable
grounds for believing that the repayment of such funds is not
reasonably assured to it under the terms of this Guarantee, or
security and indemnity, reasonably satisfactory to the Guarantee
Trustee, against such risk or liability is not reasonably assured
to it.
SECTION 2.2. Certain Rights of the
Guarantee Trustee .
(a) Subject to the provisions
of Section 2.1:
(i) The Guarantee Trustee may
conclusively rely, and shall be fully protected in acting or
refraining from acting upon, any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be
genuine and to have been signed, sent or presented by the proper
party or parties.
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(ii) Any direction or act of
the Guarantor contemplated by this Guarantee shall be sufficiently
evidenced by an Officer’s Certificate.
(iii) Whenever, in the
administration of this Guarantee, the Guarantee Trustee shall deem
it desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Guarantee Trustee
(unless other evidence is herein specifically prescribed) may, in
the absence of bad faith on its part, request and conclusively rely
upon an Officer’s Certificate of the Guarantor which, upon
receipt of such request, shall be promptly delivered by the
Guarantor.
(iv) The Guarantee Trustee
shall have no duty to see to any recording, filing or registration
of any instrument or other writing (or any rerecording, refiling or
reregistration thereof).
(v) The Guarantee Trustee may
consult with counsel of its selection, and the advice or opinion of
such counsel with respect to legal matters shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion. Such counsel may be counsel
to the Guarantor or any of its Affiliates and may include any of
its employees. The Guarantee Trustee shall have the right at any
time to seek instructions concerning the administration of this
Guarantee from any court of competent jurisdiction.
(vi) The Guarantee Trustee
shall be under no obligation to exercise any of the rights or
powers vested in it by this Guarantee at the request or direction
of any Holder, unless such Holder shall have provided to the
Guarantee Trustee such security and indemnity, rea
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