GUARANTEE AGREEMENT CNB Financial Corp. Dated as of December 16, 2005
Dated
as
of December 16, 2005
TABLE
OF CONTENTS
Page
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ARTICLE
I
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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
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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
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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
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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)
Page
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ARTICLE
V
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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
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TERMINATION
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SECTION
6.1.
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Termination
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13
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ARTICLE
VII
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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
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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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This
GUARANTEE AGREEMENT (the "Guarantee"), dated as of December 16, 2005, is
executed and delivered by CNB Financial Corp., incorporated in Massachusetts
(the "Guarantor"), and U.S. 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 Commonwealth
National Bank Statutory Trust I, a Connecticut statutory trust (the
"Issuer").
WHEREAS,
pursuant to an Amended and Restated Declaration of Trust (the "Declaration"),
dated as of December 16, 2005, among the trustees named therein of the Issuer,
CNB Financial Corp., 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
$7,500,000, 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 CNB Financial Corp., designated
the
Junior Subordinated Debt Securities due 2036, 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 U.S. 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,
members, partners, employees, representatives, nominees, custodians or agents
of
the Guarantee Trustee.
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"Indenture"
means the Indenture, dated as of December 16, 2005, between the Guarantor
and
U.S. 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 assistant vice president, any secretary, any assistant secretary,
the treasurer, any
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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:
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(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
(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, reasonably satisfactory to the Guarantee Trustee, against
the
costs, expenses (including attorneys' fees and expenses and the expenses
of the
Guarantee Trustee's agents, nominees or custodians) and liabilities that
might
be incurred by it in complying with such request or direction, including
such
reasonable advances as may be requested by the Guarantee Trustee; provided,
however,
that
nothing contained in this Section 2.2(a)(vi) shall be taken to relieve the
Guarantee Trustee, upon the occurrence of an Event of Default, of its obligation
to exercise the rights and powers vested in it by this Guarantee.
(vii) The
Guarantee Trustee shall not be bound to make any investigation into the facts
or
matters stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other
evidence of indebtedness or other paper or document, but the Guarantee Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit.
(viii) The
Guarantee Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents, nominees,
custodians or attorneys, and the Guarantee Trustee shall not be responsible
for
any misconduct or negligence on the part of any agent or attorney appointed
with
due care by it hereunder.
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(ix) Any
action taken by the Guarantee Trustee or its agents hereunder shall bind
the
Holders of the Capital Securities, and the signature of the Guarantee Trustee
or
its agents alone shall be sufficient and effective to perform any such action.
No third party shall be required to inquire as to the authority of the Guarantee
Trustee to so act or as to its compliance with any of the terms and provisions
of this Guarantee, both of which shall be conclusively evidenced by the
Guarantee Trustee's or its agent's taking such action.
(x) Whenever
in the administration of this Guarantee the Guarantee Trustee shall deem
it
desirable to receive instructions with respect to enforcing any remedy or
right
or taking any other action hereunder, the Guarantee Trustee (A) may request
instructions from the Holders of a Majority in liquidation amount of the
Capital
Securities, (B) may refrain from enforcing such remedy or right or taking
such
other action until such instructions are received and (C) shall be protected
in
conclusively relying on or acting in accordance with such
instructions.
(xi) The
Guarantee Trustee shall not be liable for any action taken, suffered, or
omitted
to be taken by it in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Guarantee.
(b) No
provision of this Guarantee shall be deemed to impose any duty or obligation
on
the Guarantee Trustee to perform any act or acts or exercise any right, power,
duty or obligation conferred or imposed on it, in any jurisdiction in which
it
shall be illegal or in which the Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law to perform any such act or
acts or
to exercise any such right, power, duty or obligation. No permissive power
or
authority available to the Guarantee Trustee shall be construed to be a
duty.
SECTION
2.3. Not
Responsible for Recitals or Issuance of Guarantee.
The
recitals contained in this Guarantee shall be taken as the statements of
the
Guarantor, and the Guarantee Trustee does not assume any responsibility for
their correctness. The Guarantee Trustee makes no representation as to the
validity or sufficiency of this Guarantee.
SECTION
2.4. Events
of Default; Waiver.
(a) An
Event
of Default under this Guarantee will occur upon the failure of the Guarantor
to
perform any of its payment or other obligations hereunder.
(b) The
Holders of a Majority in liquidation amount of the Capital Securities may,
voting or consenting as a class, on behalf of the Holders of all of the Capital
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and shall be deemed
to
have been cured, for every purpose of this Guarantee, but no such waiver
shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
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SECTION
2.5. Events
of Default; Notice.
(a) The
Guarantee Trustee shall, within 90 days after the occurrence of an Event
of
Default, transmit by mail, first class postage prepaid, to the Holders of
the
Capital Securities, notices of all Events of Default actually known to a
Responsible Officer of the Guarantee Trustee, unless such defaults have been
cured before the giving of such notice; provided,
however,
that
the Guarantee Trustee shall be protected in withholding such notice if and
so
long as a Responsible Officer of the Guarantee Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders of
the
Capital Securities.
(b) The
Guarantee Trustee shall not be charged with knowledge of any Event of Default
unless the Guarantee Trustee shall have received written notice thereof from
the
Guarantor or a Holder of the Capital Securities, or a Responsible Officer
of the
Guarantee Trustee charged with the administration of this Guarantee shall
have
actual knowledge thereof.
ARTICLE
III
THE
GUARANTEE TRUSTEE
SECTION
3.1. The
Guarantee Trustee; Eligibility.
(a) There
shall at all times be a Guarantee Trustee which shall:
(i) not
be an
Affiliate of the Guarantor; and
(ii) be
a
corporation or national association organized and doing business under the
laws
of the United States of America or any state or territory thereof or of the
District of Columbia, or Person authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least Fifty Million
U.S. Dollars ($50,000,000), and subject to supervision or examination by
federal, state, territorial or District of Columbia authority. If such
corporation or national association publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or examining
authority referred to above, then, for the purposes of this Section 3.1(a)(ii),
the combined capital and surplus of such corporation or national association
shall be deemed to be its combined capital and surplus as set forth in its
most
recent report of condition so published.
(b) If
at any
time the Guarantee Trustee shall cease to be eligible to so act under Section
3.1(a), the Guarantee Trustee shall immediately resign in the manner and
with
the effect set forth in Section 3.2(c).
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(c) If
the
Guarantee Trustee has or shall acquire any "conflicting interest' within
the
meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee
shall either eliminate such interest or resign to the extent and in the manner
provided by, and subject to, this Guarantee.
SECTION
3.2. Appointment,
Removal and Resignation of the Guarantee Trustee.
(a) Subject
to Section 3.2(b), the Guarantee Trustee may be appointed or removed without
cause at any time by the Guarantor except during an Event of
Default.
(b) The
Guarantee Trustee shall not be removed in accordance with Section 3.2(a)
until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
by written instrument executed by such Successor Guarantee Trustee and delivered
to the Guarantor.
(c) The
Guarantee Trustee appointed to office shall hold office until a Successor
Guarantee Trustee shall have been appointed or until its removal or resignation.
The Guarantee Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by the Guarantee
Trustee and delivered to the Guarantor, which resignation shall not take
effect
until a Successor Guarantee Trustee has been appointed and has accepted such
appointment by an instrument in writing executed by such Successor Guarantee
Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If
no
Successor Guarantee Trustee shall have been appointed and accepted appointment
as provided in this Section 3.2 within 60 days after delivery of an instrument
of removal or resignation, the Guarantee Trustee resigning or being removed
may
petition any court of competent jurisdiction for appointment of a Successor
Guarantee Trustee. Such court may thereupon, after prescribing such notice,
if
any, as it may deem proper, appoint a Successor Guarantee Trustee.
(e) No
Guarantee Trustee shall be liable for the acts or omissions to act of any
Successor Guarantee Trustee.
(f) Upon
termination of this Guarantee or removal or resignation of the Guarantee
Trustee
pursuant to this Section 3.2, the Guarantor shall pay to the Guarantee Trustee
all amounts owing to the Guarantee Trustee under Sections 7.2 and 7.3 accrued
to
the date of such termination, removal or resignation.
ARTICLE
IV
GUARANTEE
SECTION
4.1. Guarantee.
(a) The
Guarantor irrevocably and unconditionally agrees to pay in full to the Holders
the Guarantee Payments (without duplication of amounts theretofore paid by
the
Issuer), as and when due, regardless of any defense (except as defense of
payment by the Issuer), right of set-off or counterclaim that the Issuer
may
have or assert. The Guarantor's obligation to make a Guarantee Payment may
be
satisfied by direct payment of the required amounts by the Guarantor to the
Holders or by causing the Issuer to pay such amounts to the
Holders.
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(b) The
Guarantor hereby also agrees to assume any and all Obligations of the Issuer
and
in the event any such Obligation is not so assumed, subject to the terms
and
conditions hereof, the Guarantor hereby irrevocably and unconditionally
guarantees to each Beneficiary the full payment, when and as due, of any
and all
Obligations to such Beneficiaries. This Guarantee is intended to be for the
Beneficiaries who have received notice hereof.
SECTION
4.2. Waiver
of Notice and Demand.
The
Guarantor hereby waives notice of acceptance of this Guarantee and of any
liability to which it applies or may apply, presentment, demand for payment,
any
right to require a proceeding first against the Issuer or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and
demands.
SECTION
4.3. Obligations
Not Affected.
The
obligations, covenants, agreements and duties of the Guarantor under this
Guarantee shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:
(a) the
release or waiver, by operation of law or otherwise, of the performance or
observance by the Issuer of any express or implied agreement, covenant, term
or
condition relating to the Capital Securities to be performed or observed
by the
Issuer;
(b) the
extension of time for the payment by the Issuer of all or any portion of
the
Distributions, Redemption Price, Special Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Capital Securities
or the extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Capital Securities (other than
an
extension of time for the payment of the Distributions, Redemption Price,
Special Redemption Price, Liquidation Distribution or other sums payable
that
results from the extension of any interest payment period on the Debentures
or
any extension of the maturity date of the Debentures permitted by the
Indenture);
(c) any
failure, omission, delay or lack of diligence on the part of the Holders
to
enforce, assert or exercise any right, privilege, power or remedy conferred
on
the Holders pursuant to the terms of the Capital Securities, or any action
on
the part of the Issuer granting indulgence or extension of any
kind;
(d) the
voluntary or involuntary liquidation, dissolution, sale of any collateral,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
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(e) any
invalidity of, or defect or deficiency in, the Capital Securities;
(f) the
settlement or compromise of any obligation guaranteed hereby or hereby incurred;
or
(g) any
other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a guarantor, it being the intent of this Section
4.3
that the obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.
There
shall be no obligation of the Holders to give notice to, or obtain consent
of,
the Guarantor with respect to the happening of any of the
foregoing.
SECTION
4.4. Rights
of Holders.
(a) The
Holders of a Majority in liquidation amount of the Capital Securities have
the
right to direct the time, method and place of conducting any proceeding for
any
remedy available to the Guarantee Trustee in respect of this Guarantee or
to
direct the exercise of any trust or power conferred upon the Guarantee Trustee
under this Guarantee; provided,
however,
that
(subject to Sections 2.1 and 2.2) the Guarantee Trustee shall have the right
to
decline to follow any such direction if the Guarantee Trustee shall determine
that the actions so directed would be unjustly prejudicial to the Holders
not
taking part in such direction or if the Guarantee Trustee being advised by
legal
counsel determines that the action or proceeding so directed may not lawfully
be
taken or if the Guarantee Trustee in good faith by its board of directors
or
trustees, executive committee or a trust committee of directors or trustees
and/or Responsible Officers shall determine that the action or proceeding
so
directed would involve the Guarantee Trustee in personal liability.
(b) Any
Holder of Capital Securities may institute a legal proceeding directly against
the Guarantor to enforce the Guarantee Trustee's rights under this Guarantee,
without first instituting a legal proceeding against the Issuer, the Guarantee
Trustee or any other Person. The Guarantor waives any right or remedy to
require
that any such action be brought first against the Issuer, the Guarantee Trustee
or any other Person before so proceeding directly against the
Guarantor.
SECTION
4.5. Guarantee
of Payment.
This
Guarantee creates a guarantee of payment and not of collection.
SECTION
4.6. Subrogation.
The
Guarantor shall be subrogated to all (if any) rights of the Holders of Capital
Securities against the Issuer in respect of any amounts paid to such Holders
by
the Guarantor under this Guarantee; provided,
however,
that
the Guarantor shall not (except to the extent required by applicable provisions
of law) be entitled to enforce or exercise any right that it may acquire
by way
of subrogation or any indemnity, reimbursement or other agreement, in all
cases
as a result of payment under this Guarantee, if, after giving effect to any
such
payment, any amounts are due and unpaid under this Guarantee. If any amount
shall be paid to the Guarantor in violation of the preceding sentence, the
Guarantor agrees to hold such amount in trust for the Holders and to pay
over
such amount to the Holders.
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SECTION
4.7. Independent
Obligations.
The
Guarantor acknowledges that its obligations hereunder are independent of
the
obligations of the Issuer with respect to the Capital Securities and that
the
Guarantor shall be liable as principal and as debtor hereunder to make Guarantee
Payments pursuant to the terms of this Guarantee notwithstanding the occurrence
of any event referred to in subsections (a) through (g), inclusive, of Section
4.3 hereof.
SECTION
4.8. Enforcement.
A
Beneficiary may enforce the Obligations of the Guarantor contained in
Section 4.1(b) directly against the Guarantor, and the Guarantor waives any
right or remedy to require that any action be brought against the Issuer
or any
other person or entity before proceeding against the Guarantor.
The
Guarantor shall be subrogated to all rights (if any) of any Beneficiary against
the Issuer in respect of any amounts paid to the Beneficiaries by the Guarantor
under this Guarantee; provided,
however,
that
the Guarantor shall not (except to the extent required by applicable provisions
of law) be entitled to enforce or exercise any rights that it may acquire
by way
of subrogation or any indemnity, reimbursement or other agreement, in all
cases
as a result of payment under this Guarantee, if, after giving effect to such
payment, any amounts are due and unpaid under this Guarantee.
ARTICLE
V
LIMITATION
OF TRANSACTIONS; SUBORDINATION
SECTION
5.1. Limitation
of Transactions.
So
long
as any Capital Securities remain outstanding, if (a) there shall have occurred
and be continuing an Event of Default or (b) the Guarantor shall have selected
an Extension Period as provided in the Declaration and such period, or any
extension thereof, shall have commenced and be continuing, then the Guarantor
may not (x) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of
the
Guarantor's capital stock or (y) make any payment of principal of or interest
or
premium, if any, on or repay, repurchase or redeem any debt securities of
the
Guarantor that rank pari
passu
in all
respects with or junior in interest to the Debentures (other than (i) payments
under this Guarantee, (ii) repurchases, redemptions or other acquisitions
of
shares of capital stock of the Guarantor (A) in connection with any employment
contract, benefit plan or other similar arrangement with or for the benefit
of
one or more employees, officers, directors, or consultants, (B) in connection
with a dividend reinvestment or stockholder stock purchase plan or (C) in
connection with the issuance of capital stock of the Guarantor (or securities
convertible into or exercisable for such capital stock), as consideration
in an
acquisition transaction entered into prior to the occurrence of the Event
of
Default or the applicable Extension Period, (iii) as a result of any exchange,
reclassification, combination or conversion of any class or series of the
Guarantor's capital stock (or any capital stock of a subsidiary of the
Guarantor) for any class or series of the Guarantor's capital stock or of
any
class or series of the Guarantor's indebtedness for any class or series of
the
Guarantor's capital stock, (iv) the purchase of fractional interests in shares
of the Guarantor's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged,
(v) any declaration of a dividend in connection with any stockholder's rights
plan, or the issuance of rights, stock or other property under any stockholder's
rights plan, or the redemption or repurchase of rights pursuant thereto,
or (vi)
any dividend in the form of stock, warrants, options or other rights where
the
dividend stock or the stock issuable upon exercise of such warrants, options
or
other rights is the same stock as that on which the dividend is being paid
or
ranks pari
passu
with or
junior to such stock).
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SECTION
5.2. Ranking.
This
Guarantee will constitute an unsecured obligation of the Guarantor and will
rank
subordinate and junior in right of payment to all present and future Senior
Indebtedness (as defined in the Indenture) of the Guarantor. By their acceptance
thereof, each Holder of Capital Securities agrees to the foregoing provisions
of
this Guarantee and the other terms set forth herein.
The
right
of the Guarantor to participate in any distribution of assets of any of its
subsidiaries upon any such subsidiary's liquidation or reorganization or
otherwise is subject to the prior claims of creditors of that subsidiary,
except
to the extent the Guarantor may itself be recognized as a creditor of that
subsidiary. Accordingly, the Guarantor's obligations under this Guarantee
will
be effectively subordinated to all existing and future liabilities of the
Guarantor's subsidiaries, and claimants should look only to the assets of
the
Guarantor for payments thereunder. This Guarantee does not limit the incurrence
or issuance of other secured or unsecured debt of the Guarantor, including
Senior Indebtedness of the Guarantor, under any indenture or agreement that
the
Guarantor may enter into in the future or otherwise.
ARTICLE
VI
TERMINATION
SECTION
6.1. Termination.
This
Guarantee shall terminate as to the Capital Securities (i) upon full payment
of
the Redemption Price or the Special Redemption Price, as the case may be,
of all
Capital Securities then outstanding, (ii) upon the distribution of all of
the
Debentures to the Holders of all of the Capital Securities or (iii) upon
full
payment of the amounts payable in accordance with the Declaration upon
dissolution of the Issuer. This Guarantee will continue to be effective or
will
be reinstated, as the case may be, if at any time any Holder of Capital
Securities must restore payment of any sums paid under the Capital Securities
or
under this Guarantee.
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ARTICLE
VII
INDEMNIFICATION
SECTION
7.1. Exculpation.
(a) No
Indemnified Person shall be liable, responsible or accountable in damages
or
otherwise to the Guarantor or any Covered Person for any loss, damage or
claim
incurred by reason of any act or omission of such Indemnified Person in good
faith in accordance with this Guarantee and in a manner that such Indemnified
Person reasonably believed to be within the scope of the authority conferred
on
such Indemnified Person by this Guarantee or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim incurred by reason
of
such Indemnified Person's negligence or willful misconduct with respect to
such
acts or omissions.
(b) An
Indemnified Person shall be fully protected in relying in good faith upon
the
records of the Issuer or the Guarantor and upon such information, opinions,
reports or statements presented to the Issuer or the Guarantor by any Person
as
to matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who, if selected by such
Indemnified Person, has been selected with reasonable care by such Indemnified
Person, including information, opinions, reports or statements as to the
value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions
to
Holders of Capital Securities might properly be paid.
SECTION
7.2. Indemnification.
(a) The
Guarantor agrees to indemnify each Indemnified Person for, and to hold each
Indemnified Person harmless against, any and all loss, liability, damage,
claim
or expense incurred without negligence or willful misconduct on the part
of the
Indemnified Person, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including but not limited
to
the costs and expenses (including reasonable legal fees and expenses) of
the
Indemnified Person defending itself against, or investigating, any claim
or
liability in connection with the exercise or performance of any of the
Indemnified Person's powers or duties hereunder. The obligation to indemnify
as
set forth in this Section 7.2 shall survive the resignation or removal of
the
Guarantee Trustee and the termination of this Guarantee.
(b) Promptly
after receipt by an Indemnified Person under this Section 7.2 of notice of
the
commencement of any action, such Indemnified Person will, if a claim in respect
thereof is to be made against the Guarantor under this Section 7.2, notify
the
Guarantor in writing of the commencement thereof; but the failure so to notify
the Guarantor (i) will not relieve the Guarantor from liability under paragraph
(a) above unless and to the extent that the Guarantor did not otherwise learn
of
such action and such failure results in the forfeiture by the Guarantor of
substantial rights and defenses and (ii) will not, in any event, relieve
the
Guarantor from any obligations to any Indemnified Person other than the
indemnification obligation provided in paragraph (a) above. The Guarantor
shall
be entitled to appoint counsel of the Guarantor's choice at the Guarantor's
expense to represent the Indemnified Person in any action for which
indemnification is sought (in which case the Guarantor shall not thereafter
be
responsible for the fees and expenses of any separate counsel retained by
the
Indemnified Person or Persons except as set forth below); provided,
however,
that
such counsel shall be satisfactory to the Indemnified Person. Notwithstanding
the Guarantor's election to appoint counsel to represent the Indemnified
Person
in any action, the Indemnified Person shall have the right to employ separate
counsel (including local counsel), and the Guarantor shall bear the reasonable
fees, costs and expenses of such separate counsel (and
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local
counsel), if (i) the use of counsel chosen by the Guarantor to represent
the
Indemnified Person would present such counsel with a conflict of interest,
(ii)
the actual or potential defendants in, or targets of, any such action include
both the Indemnified Person and the Guarantor and the Indemnified Person
shall
have reasonably concluded that there may be legal defenses available to it
and/or other Indemnified Persons which are different from or additional to
those
available to the Guarantor, (iii) the Guarantor shall not have employed counsel
satisfactory to the Indemnified Person to represent the Indemnified Person
within a reasonable time after notice of the institution of such action or
(iv)
the Guarantor shall authorize the Indemnified Person to employ separate counsel
at the expense of the Guarantor. The Guarantor will not, without the prior
written consent of the Indemnified Persons, settle or compromise or consent
to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the Indemnified Persons are actual
or
potential parties to such claim or action) unless such settlement, compromise
or
consent includes an unconditional release of each Indemnified Person from
all
liability arising out of such claim, action, suit or proceeding.
SECTION
7.3. Compensation;
Reimbursement of Expenses.
Other
than as provided in the Fee Agreement of even date herewith between ▇▇▇▇▇
Bros.
& Company and the Guarantee Trustee, the Guarantor agrees:
(a) to
pay to
the Guarantee Trustee from time to time such compensation for all services
rendered by it hereunder as the parties shall agree to from time to time
(which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust); and
(b) except
as
otherwise expressly provided herein, to reimburse the Guarantee Trustee upon
request for all reasonable expenses, disbursements and advances incurred
or made
by it in accordance with any provision of this Guarantee (including the
reasonable compensation and the expenses and disbursements of its agents
and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or willful misconduct.
The
provisions of this Section 7.3 shall survive the resignation or removal of
the
Guarantee Trustee and the termination of this Guarantee.
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ARTICLE
VIII
MISCELLANEOUS
SECTION
8.1. Successors
and Assigns.
All
guarantees and agreements contained in this Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Capital Securities then outstanding.
Except in connection with any merger or consolidation of the Guarantor with
or
into another entity or any sale, transfer or lease of the Guarantor's assets
or
capital stock to another entity, in each case to the extent permitted under
the
Indenture, the Guarantor may not assign its rights or delegate its obligations
under this Guarantee without the prior approval of the Holders of not less
than
a Majority in liquidation amount of the Capital Securities.
SECTION
8.2. Amendments.
Except
with respect to any changes that do not adversely affect the rights of Holders
of the Capital Securities in any material respect (in which case no consent
of
Holders will be required), this Guarantee may be amended only with the prior
approval of the Holders of not less than a Majority in liquidation amount
of the
Capital Securities. The provisions of the Declaration with respect to amendments
thereof shall apply equally with respect to amendments of the
Guarantee.
SECTION
8.3. Notices.
All
notices provided for in this Guarantee shall be in writing, duly signed by
the
party giving such notice, and shall be delivered, telecopied or mailed by
first
class mail, as follows:
(a) If
given
to the Guarantee Trustee, at the Guarantee Trustee's mailing address set
forth
below (or such other address as the Guarantee Trustee may give notice of
to the
Holders of the Capital Securities):
U.S.
Bank
National Association
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Services
Commonwealth
National Bank Statutory Trust I
With
a
copy to:
U.S.
Bank
National Association
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Services
Commonwealth
National Bank Statutory Trust I
Telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
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(b) If
given
to the Guarantor, at the Guarantor's mailing address set forth below (or
such
other address as the Guarantor may give notice of to the Holders of the Capital
Securities and to the Guarantee Trustee):
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
(c) If
given
to any Holder of the Capital Securities, at the address set forth on the
books
and records of the Issuer.
All
such
notices shall be deemed to have been given when received in person, telecopied
with receipt confirmed, or mailed by first class mail, postage prepaid, except
that if a notice or other document is refused delivery or cannot be delivered
because of a changed address of which no notice was given, such notice or
other
document shall be deemed to have been delivered on the date of such refusal
or
inability to deliver.
SECTION
8.4. Benefit.
This
Guarantee is solely for the benefit of the Holders of the Capital Securities
and, subject to Section 2.1(a), is not separately transferable from the Capital
Securities.
SECTION
8.5. Governing
Law.
THIS
GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW
OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF
(OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).
SECTION
8.6. Counterparts.
This
Guarantee may contain more than one counterpart of the signature page and
this
Guarantee may be executed by the affixing of the signature of the Guarantor
and
the Guarantee Trustee to any of such counterpart signature pages. All of
such
counterpart signature pages shall be read as though one, and they shall have
the
same force and effect as though all of the signers had signed a single signature
page.
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THIS
GUARANTEE is executed as of the day and year first above written.
as
Guarantor
By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
President
U.S.
BANK NATIONAL ASSOCIATION, as Guarantee Trustee
By:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Vice President
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