Exhibit 4.12




 


 





 


 


 


GUARANTEE AGREEMENT


 


Dated as of [•], 2009


 


By and Between


 


CITY NATIONAL CORPORATION,


 


as Guarantor


 


and


 


THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,


 


as Trustee


 


 




 





 

















 


CROSS REFERENCE TABLE1


 


	
  Section of Trust

  Indenture Act of

  1939, as Amended

  	
   

  	
  Section of

  Guarantee

  Agreement

  
	
  310(a)

  	
   

  	
  4.1(a)

  
	
  310(b)

  	
   

  	
  2.8;
  4.1(c)

  
	
  310(c)

  	
   

  	
  Inapplicable

  
	
  311(a)

  	
   

  	
  2.2(b)

  
	
  311(b)

  	
   

  	
  2.2(b)

  
	
  311(c)

  	
   

  	
  Inapplicable

  
	
  312(a)

  	
   

  	
  2.2(a);
  2.9

  
	
  312(b)

  	
   

  	
  2.2(b);
  2.9

  
	
  312(c)

  	
   

  	
  2.9

  
	
  313(a)

  	
   

  	
  2.3

  
	
  313(b)

  	
   

  	
  2.3

  
	
  313(c)

  	
   

  	
  2.3

  
	
  313(d)

  	
   

  	
  2.3

  
	
  314(a)

  	
   

  	
  2.4

  
	
  314(b)

  	
   

  	
  Inapplicable

  
	
  314(c)

  	
   

  	
  2.5

  
	
  314(d)

  	
   

  	
  Inapplicable

  
	
  314(e)

  	
   

  	
  2.5

  
	
  314(f)

  	
   

  	
  Inapplicable

  
	
  315(a)

  	
   

  	
  3.1(d);
  3.2(a)

  
	
  315(b)

  	
   

  	
  2.7(a)

  
	
  315(c)

  	
   

  	
  3.1(c)

  
	
  315(d)

  	
   

  	
  3.1(d)

  
	
  316(a)

  	
   

  	
  2.6;
  5.4(a)

  
	
  316(b)

  	
   

  	
  5.3

  
	
  316(c)

  	
   

  	
  Inapplicable

  
	
  317(a)

  	
   

  	
  2.10

  
	
  317(b)

  	
   

  	
  Inapplicable

  
	
  318(a)

  	
   

  	
  2.1(b)

  





 





1          This Cross-Reference
Table does not constitute part of the Agreement and shall not have any bearing
upon the interpretation of any of its terms or provisions.


 

















 


INDEX OF TERMS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  Affiliate

  	
  2

  
	
  Business
  Day

  	
  2

  
	
  Common
  Securities

  	
  2

  
	
  Common
  Stock

  	
  2

  
	
  Company
  Indemnified Person

  	
  2

  
	
  Corporate
  Trust Office

  	
  2

  
	
  Declaration
  Default

  	
  2

  
	
  Declaration
  of Trust

  	
  2

  
	
  Existing
  Parity Obligations

  	
  2

  
	
  Extended
  Interest Payment Period

  	
  2

  
	
  First
  Supplemental Indenture

  	
  2

  
	
  Global
  Security

  	
  2

  
	
  Guarantee
  Event of Default

  	
  2

  
	
  Guarantee
  Payments

  	
  2

  
	
  Guarantee
  Trustee

  	
  3

  
	
  Holder

  	
  3

  
	
  Indenture

  	
  3

  
	
  Junior
  Subordinated Debt Securities

  	
  3

  
	
  List
  of Holders

  	
  3

  
	
  Majority
  in Liquidation Amount

  	
  3

  
	
  Officers’
  Certificate

  	
  3

  
	
  Parity
  Securities

  	
  3

  
	
  Person

  	
  3

  
	
  Redemption
  Price

  	
  3

  
	
  Responsible
  Officer

  	
  4

  
	
  Securities

  	
  4

  
	
  Successor
  Guarantee Trustee

  	
  4

  
	
  Trust
  Indenture Act

  	
  4

  
	
  Trust Preferred Securities

  	
  4

  



 


-i-

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I INTERPRETATION AND DEFINITIONS

  	
  1

  
	
   

  	
   

  
	
  SECTION 1.1      INTERPRETATION
  AND DEFINITIONS

  	
  1

  
	
   

  	
   

  
	
  ARTICLE II TRUST INDENTURE ACT

  	
  4

  
	
   

  	
   

  
	
  SECTION 2.1      TRUST
  INDENTURE ACT; APPLICATION

  	
  4

  
	
  SECTION 2.2      LISTS
  OF HOLDERS OF SECURITIES

  	
  4

  
	
  SECTION 2.3      REPORTS
  BY GUARANTEE TRUSTEE

  	
  4

  
	
  SECTION 2.4      PERIODIC
  REPORTS TO GUARANTEE TRUSTEE

  	
  4

  
	
  SECTION 2.5      EVIDENCE
  OF COMPLIANCE WITH CONDITIONS PRECEDENT

  	
  5

  
	
  SECTION 2.6      GUARANTEE
  EVENT OF DEFAULT; WAIVER

  	
  5

  
	
  SECTION 2.7      GUARANTEE
  EVENT OF DEFAULT; NOTICE

  	
  5

  
	
  SECTION 2.8      CONFLICTING
  INTERESTS

  	
  5

  
	
  SECTION 2.9      DISCLOSURE
  OF INFORMATION

  	
  5

  
	
  SECTION 2.10    GUARANTEE
  TRUSTEE MAY FILE PROOFS OF CLAIM

  	
  5

  
	
   

  	
   

  
	
  ARTICLE III POWERS, DUTIES AND RIGHTS OF GUARANTEE
  TRUSTEE

  	
  6

  
	
   

  	
   

  
	
  SECTION 3.1      POWERS
  AND DUTIES OF GUARANTEE TRUSTEE

  	
  6

  
	
  SECTION 3.2      CERTAIN
  RIGHTS OF GUARANTEE TRUSTEE

  	
  7

  
	
   

  	
   

  
	
  ARTICLE IV GUARANTEE TRUSTEE

  	
  8

  
	
   

  	
   

  
	
  SECTION 4.1      GUARANTEE
  TRUSTEE; ELIGIBILITY

  	
  8

  
	
  SECTION 4.2      APPOINTMENT,
  REMOVAL AND RESIGNATION OF GUARANTEE TRUSTEE

  	
  9

  
	
   

  	
   

  
	
  ARTICLE V GUARANTEE

  	
  9

  
	
   

  	
   

  
	
  SECTION 5.1      GUARANTEE

  	
  9

  
	
  SECTION 5.2      WAIVER
  OF NOTICE AND DEMAND

  	
  10

  
	
  SECTION 5.3      OBLIGATIONS
  NOT AFFECTED

  	
  10

  
	
  SECTION 5.4      RIGHTS
  OF HOLDERS

  	
  11

  
	
  SECTION 5.5      GUARANTEE
  OF PAYMENT

  	
  11

  
	
  SECTION 5.6      SUBROGATION

  	
  11

  
	
  SECTION 5.7      INDEPENDENT
  OBLIGATIONS

  	
  11

  
	
   

  	
   

  
	
  ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION

  	
  11

  
	
   

  	
   

  
	
  SECTION 6.1      LIMITATION
  OF TRANSACTIONS

  	
  11

  
	
  SECTION 6.2      RANKING

  	
  12

  
	
  SECTION 6.3      SUBORDINATION
  OF COMMON SECURITIES

  	
  12

  
	
   

  	
   

  
	
  ARTICLE VII
  TERMINATION

  	
  12

  
	
   

  	
   

  
	
  SECTION 7.1      TERMINATION

  	
  12

  



 


-ii-

















 


	
  ARTICLE VIII
  INDEMNIFICATION

  	
  12

  
	
   

  	
   

  
	
  SECTION 8.1      INDEMNIFICATION

  	
  12

  
	
   

  	
   

  
	
  ARTICLE IX MISCELLANEOUS

  	
  12

  
	
   

  	
   

  
	
  SECTION 9.1      SUCCESSORS
  AND ASSIGNS

  	
  12

  
	
  SECTION 9.2      AMENDMENTS

  	
  13

  
	
  SECTION 9.3      NOTICES

  	
  13

  
	
  SECTION 9.4      BENEFIT

  	
  13

  
	
  SECTION 9.5      GOVERNING
  LAW; WAIVER OF JURY TRIAL

  	
  13

  



 


-iii-

















 


GUARANTEE AGREEMENT


 


This GUARANTEE AGREEMENT
(the “Guarantee”), dated as of [•], 2009, is executed and delivered by
CITY NATIONAL CORPORATION, a Delaware corporation (the “Guarantor”), and THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association
duly organized and existing under the laws of the United States of America, as
trustee (the “Guarantee Trustee”), for the benefit of the Holders (as defined
herein) from time to time of the Securities (as defined herein) of CITY
NATIONAL CAPITAL TRUST I, a Delaware statutory trust (the “Trust”).


 


RECITALS


 


WHEREAS, pursuant to the
Declaration of Trust (as defined herein), the Trust may issue up to $[•]
aggregate liquidation amount of trust preferred securities, having a
liquidation amount of $1,000.00 per security and designated the “[•]%
Trust Preferred Securities” of the Trust (together with the further trust preferred
securities that the Trust may issue pursuant to the Declaration of Trust, the
“Trust Preferred Securities”) and $10,000 aggregate liquidation amount of
common securities, having a liquidation amount of $1,000.00 per security and
designated the “Common Securities” of the Trust (together with the further
common securities that the Trust may issue pursuant to the Declaration of
Trust, the “Common Securities” and, together with the Trust Preferred Securities,
the “Securities”);


 


WHEREAS, as incentive for
the Holders to purchase the Securities, the Guarantor desires irrevocably and
unconditionally to agree, to the extent set forth in this Guarantee, to pay to
the Holders of the Securities the Guarantee Payments (as defined herein) and to
make certain other payments on the terms and conditions set forth herein; and


 


WHEREAS, if a Trust
Declaration Default (as defined herein) has occurred and is continuing, the
rights of holders of the Common Securities to receive Guarantee Payments (as
defined herein) under this Guarantee are subordinated to the rights of Holders
of Trust Preferred Securities to receive Guarantee Payments under this
Guarantee;


 


NOW, THEREFORE, in
consideration of the purchase by each Holder of 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

INTERPRETATION AND DEFINITIONS


 


SECTION
1.1                     INTERPRETATION
AND DEFINITIONS.


 


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, Sections and Recitals are to Articles, Sections and Recitals of this
Guarantee, unless otherwise specified;


 


(e)                                  unless otherwise defined in this
Guarantee, a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee;


 

















 


(f)                                    a reference to the singular includes the
plural and vice versa and a reference to any masculine form of a term shall
include the feminine form of a term, as applicable; and


 


(g)                                 the following terms have the following
meanings:


 


“Affiliate” has the
same meaning as given to that term in Rule 405 of the Securities Act of
1933, as amended, or any successor rule thereunder.


 


“Business Day” has
the meaning specified in the Declaration of Trust.


 


“Common Securities”
has the meaning specified in the Recitals hereto.


 


“Common Stock” means
the common stock, par value $1.00 per share, of the Guarantor.


 


“Company Indemnified
Person” has the meaning specified in the Declaration of Trust.


 


“Corporate Trust Office”
means the principal office of the Guarantee Trustee at which at any particular
time its corporate trust business shall be administered, which office at the
date of execution of this Guarantee is located at The Bank of New York Mellon
Trust Company, N.A., 700 South Flower Street, 5th Floor, Los Angeles, California  90017, Attention: Corporate Unit, or such
other address as the Guarantee Trustee may designate from time to time by notice
to the Holders and the Guarantor, or the principal corporate trust office of
any successor Guarantee Trustee (or such other address as such successor
Guarantee Trustee may designate from time to time by notice to the Holders and
the Guarantor).


 


“Declaration Default”
in respect of the Securities means an Event of Default (as defined in the
Indenture) has occurred and is continuing in respect of the Junior Subordinated
Debt Securities.


 


“Declaration of Trust”
means the Amended and Restated Declaration of Trust, dated as of the date
hereof, as amended, modified or supplemented from time to time, among the
trustees of the Trust named therein, the Guarantor, as sponsor, and the
Holders, from time to time, of undivided beneficial ownership interests in the
assets of the Trust.


 


“Existing Parity
Obligations” means the junior subordinated debt securities originally
issued by Business Bank Corporation in connection with the November 2004 offering
of capital securities by Business Bancorp Capital Trust I and the guarantee
thereof by the Guarantor (as successor to Business Bank Corporation).


 


“Extended Interest
Payment Period” has the meaning specified in the Indenture.


 


“First Supplemental
Indenture” means the First Supplemental Indenture, dated as of [•],
2009, between City National Corporation and the Indenture Trustee.


 


“Global Security”
means a fully registered, global Trust Preferred Security, as defined in the Indenture,
representing the Trust Preferred Securities.


 


“Guarantee Event of
Default” means a default by the Guarantor on any of its payment or other
obligations under this Guarantee.


 


“Guarantee Payments”
means the following payments or distributions, without duplication, with
respect to the Securities, to the extent not paid by or on behalf of the
Trust:  (i) any accrued and unpaid
Distributions (as defined in the Declaration of Trust) that are required to be
paid on such Securities to the extent the Trust has sufficient funds available
therefor at the time, (ii) the redemption price, plus all accrued and
unpaid Distributions to the date of redemption, with respect to any Securities
called for redemption by the Trust, to the extent the Trust shall have sufficient
funds available therefor at the time or (iii) upon a voluntary or
involuntary dissolution, winding-up or termination of the Trust (other than in
connection with a redemption or the distribution of Junior Subordinated Debt
Securities to the Holders in exchange for Securities as provided in the
Declaration of Trust), the lesser of (a) the aggregate of the liquidation
amount and all accrued and unpaid Distributions on the Securities to the date
of payment, to the extent the Trust has sufficient funds available therefor and
(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”).


 


-2-

















 


“Guarantee Trustee”
means The Bank of New York Mellon Trust Company, N.A., 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 of Securities, as registered on the books and records of the Trust; provided, however,
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 or any Affiliate of the
Guarantor or any other obligor on the Trust Preferred Securities.


 


“Indenture” means the
Junior Subordinated Indenture, dated as of [•], 2009, between City
National Corporation and The Bank of New York Mellon Trust Company, N.A. (the
“Indenture Trustee”), as supplemented by the First Supplemental Indenture and
as may be further amended or supplemented.


 


“Junior Subordinated Debt
Securities” means the series of [•]% Junior Subordinated Debt Securities
due 2040 designated the “[•]% Junior Subordinated Debt Securities due
2040”, held by the Institutional Trustee as defined in the Declaration of
Trust.


 


“List of Holders” has
the meaning assigned to it in Section 2.2 hereof.


 


“Majority in Liquidation
Amount” means, except as provided in the terms of the Trust Preferred
Securities or by the Trust Indenture Act, Holder(s) of outstanding
Securities, voting together as a single class, or, as the context may require,
Holders of outstanding Trust Preferred Securities or Holders of outstanding
Common Securities, voting separately as a class, who are the record owners 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 the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.  In determining whether the Holders of the
requisite amount of Securities have voted, Securities which are owned by the Guarantor
or any Affiliate of the Guarantor or any other obligor on the Securities shall
be disregarded for the purpose of any such determination.


 


“Officers’ Certificate”
means, with respect to any Person, a certificate signed on behalf of such
Person by two Authorized Officers (as defined in the Declaration of Trust) of
such Person.  Any Officers’ Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee shall include:


 


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


 


(ii)                                  a brief
statement of the nature and scope of the examination or investigation
undertaken by each officer on behalf of such Person in rendering the Officers’
Certificate;


 


(iii)                               a statement
that each such officer has made such examination or investigation as, in such
officer’s opinion, is necessary to enable such officer on behalf of such Person
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and


 


(iv)                              a statement as
to whether, in the opinion of each such officer acting on behalf of such
Person, such condition or covenant has been complied with.


 


“Parity Securities”
means the Existing Parity Obligations and debt securities issued by the
Guarantor after the date hereof that have the same rank upon liquidation of the
Guarantor as the Junior Subordinated Debt Securities.


 


“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.


 


“Redemption Price”
has the meaning specified in the Declaration of Trust.


 


-3-

















 


“Responsible Officer”
means, with respect to the Guarantee Trustee, any officer with direct
responsibility for the administration of this 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.


 


“Securities” has the
meaning specified in the Recitals hereto.


 


“Successor Guarantee
Trustee” means a successor Guarantee Trustee possessing the qualifications
to act as Guarantee Trustee under Section 4.1.


 


“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended from time to time, or any successor
legislation.


 


“Trust Preferred
Securities” has the meaning specified in the Recitals hereto.


 


ARTICLE
II

TRUST INDENTURE ACT


 


SECTION
2.1                     TRUST
INDENTURE ACT; APPLICATION.


 


(a)                                  This Guarantee is subject to the
provisions of the Trust Indenture Act that are required or deemed to be part of
this Guarantee and shall, to the extent applicable, be governed by such provisions.


 


(b)                                 If and to the extent that any provision
of this Guarantee limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.


 


SECTION
2.2                     LISTS
OF HOLDERS OF SECURITIES.


 


(a)                                  The Guarantor shall provide the Guarantee
Trustee (i) except while the Trust Preferred Securities are represented by
one or more Global Securities, at least two Business Days prior to the date for
payment of Distributions, a list, in such form as the Guarantee Trustee may
reasonably require, of the names and addresses of the Holders of the Securities
(“List of Holders”) as of the record date relating to the payment of such
Distributions, and (ii) at any other time, within 30 days of receipt by
the Guarantor of a written request from the Guarantee Trustee for a List of
Holders as of a date no more than 15 days before such List of Holders is given
to the Guarantee Trustee; provided that the Guarantor shall not be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Guarantee Trustee by the
Guarantor.  The 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 Guarantee Trustee may destroy any
List of Holders previously given to it on receipt of a new List of Holders.


 


(b)                                 The Guarantee Trustee shall comply with
its obligations under Sections 311(a), 311(b) and 312(b) of the Trust
Indenture Act.


 


SECTION
2.3                     REPORTS
BY GUARANTEE TRUSTEE.


 


Within 60 days after May 15
of each year (commencing with the year of the first anniversary of the issuance
of the Securities), the Guarantee Trustee shall provide to the Holders of the
Securities such reports as are required by Section 313 of the Trust
Indenture Act (if any) in the form and in the manner provided by Section 313
of the Trust Indenture Act.  The
Guarantee Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.


 


SECTION
2.4                     PERIODIC
REPORTS TO GUARANTEE TRUSTEE.


 


The Guarantor shall provide
to the Guarantee Trustee such documents, reports and information as required by
Section 314(a) (if any) of the Trust Indenture Act and the compliance
certificate required by Section 314(a) of the 


 


-4-

















 


Trust Indenture Act in the form, in the manner and
at the times required by Section 314(a) of the Trust Indenture Act,
but in no event later than 120 days after the end of each calendar year.


 


SECTION
2.5                     EVIDENCE
OF COMPLIANCE WITH CONDITIONS PRECEDENT.


 


The Guarantor shall provide
to the Guarantee Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Guarantee that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act.  Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the
form of an Officers’ Certificate.


 


SECTION
2.6                     GUARANTEE
EVENT OF DEFAULT; WAIVER.


 


The Holders of a Majority in
Liquidation Amount of the Trust Preferred Securities may, by vote or written
consent, on behalf of the Holders of all of the Securities, waive any past
Guarantee Event of Default and its consequences.  Upon such waiver, any such Guarantee Event of
Default shall cease to exist, and any Guarantee Event of Default arising
therefrom 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 Guarantee Event of Default or impair any right consequent thereon.


 


SECTION
2.7                     GUARANTEE
EVENT OF DEFAULT; NOTICE.


 


(a)                                  The Guarantee Trustee shall, within 90
days after the occurrence of a Guarantee Event of Default actually known to a
Responsible Officer of the Guarantee Trustee, transmit by mail, first class
postage prepaid, to the Holders of the Securities, notices of all such
Guarantee Events of Default, unless such defaults have been cured before the
giving of such notice; provided
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 Securities.


 


(b)                                 The Guarantee Trustee shall not be deemed
to have knowledge of any Guarantee Event of Default unless the Guarantee
Trustee shall have received written notice thereof or a Responsible Officer of
the Guarantee Trustee charged with the administration of this Guarantee
Agreement shall have obtained actual knowledge thereof.


 


SECTION
2.8                     CONFLICTING
INTERESTS.


 


The Declaration of Trust
shall be deemed to be specifically described in this Guarantee for the purposes
of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.


 


SECTION
2.9                     DISCLOSURE
OF INFORMATION.


 


The disclosure of information
as to the names and addresses of the Holders of the Securities in accordance
with Section 312 of the Trust Indenture Act, regardless of the source from
which such information was derived, shall not be deemed to be a violation of
any existing law, or any law hereafter enacted which does not specifically
refer to Section 312 of the Trust Indenture Act, nor shall the Guarantee
Trustee be held accountable by reason of mailing any material pursuant to a
request made under Section 312(b) of the Trust Indenture Act.


 


SECTION
2.10              GUARANTEE
TRUSTEE MAY FILE PROOFS OF CLAIM.


 


Upon the occurrence of a
Guarantee Event of Default, the Guarantee Trustee is hereby authorized to (a) recover
judgment, in its own name and as trustee of an express trust, against the Guarantor
for the whole amount of any Guarantee Payments remaining unpaid and (b) file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have its claims and those of the Holders of the
Securities allowed in any judicial proceedings relative to the Guarantor, its
creditors or its property.


 


-5-














 


ARTICLE
III

POWERS, DUTIES AND 

RIGHTS OF GUARANTEE TRUSTEE


 


SECTION
3.1       POWERS AND DUTIES OF
GUARANTEE TRUSTEE.


 


(a)                                  This Guarantee shall be held by the Guarantee Trustee on behalf of the
Trust for the benefit of the Holders of the Securities, and the Guarantee
Trustee shall not transfer its right, title and interest in this Guarantee to
any Person except a Holder of Securities exercising his or her rights pursuant
to Section 5.4(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 in and to this Guarantee shall automatically vest in
any Successor Guarantee Trustee, and such vesting and succession 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 a Guarantee 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 Securities.


 


(c)                                  The Guarantee Trustee, before the occurrence of any Guarantee Event of
Default and after the curing of all Guarantee 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 a Guarantee Event of Default has occurred (that has not been
cured or waived pursuant to Section 2.6) and is actually known to a
Responsible Officer of the 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 Guarantee
Event of Default and after the curing or waiving of all such Guarantee 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


 


(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 that by
any provision hereof are specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Guarantee
(but need not confirm or investigate the accuracy of mathematical calculation
or other facts stated therein, absent manifest error);


 


(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 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 direction of the Holders of not less than a Majority in
Liquidation Amount of the Securities relating to the time, method and place of
conducting any proceeding for any remedy 


 


-6-

















 


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 or protection
from liability is not reasonably assured to it under the terms of this
Guarantee or if the Guarantee Trustee shall have reasonable grounds for
believing that an indemnity, reasonably satisfactory to the Guarantee Trustee,
against such risk or liability is not reasonably assured to it under the terms
of this Guarantee.


 


SECTION
3.2       CERTAIN RIGHTS OF GUARANTEE
TRUSTEE.


 


(a)                                  Subject to the provisions of Section 3.1:


 


(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;


 


(ii)                                  Any direction or act of the Guarantor
contemplated by this Guarantee shall be sufficiently evidenced by an Officers’
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 Officers’ Certificate 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 any
re-recording, re-filing or re-registration thereof);


 


(v)                                 The Guarantee Trustee may consult with
counsel, 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
that nothing contained in this Section 3.2(a)(vi) shall be taken to
relieve the Guarantee Trustee, upon the occurrence of a Guarantee 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
reasonable further inquiry or investigation into such facts or matters as it
may see fit at the expense of the Guarantor and shall incur no liability of any
kind by reason of such inquiry or investigation;


 


(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 


 


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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;


 


(ix)                                Any action taken by the Guarantee Trustee or
its agents hereunder shall bind the Holders, 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 (i) may request written
instructions from the Holders of a Majority in Liquidation Amount of the
Securities, (ii) may refrain from enforcing such remedy or right or taking
such other action until such written instructions are received and
(iii) shall be protected in conclusively relying on or acting in
accordance with such written instructions;


 


(xi)                                In no event shall the Guarantee Trustee be
responsible or liable for special, indirect, or consequential loss or damage of
any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Guarantee Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action;


 


(xii)                             The rights, privileges, protections,
immunities and benefits given to the Guarantee Trustee, including, without
limitation, its right to be indemnified, are extended to, and shall be enforceable
by, the Guarantee Trustee in each of its capacities hereunder, and each agent,
custodian and other Person employed to act hereunder;


 


(xiii)                          The Guarantee Trustee may request that the
Guarantor deliver a certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions pursuant
to this Guarantee; and


 


(xiv)                         In no event shall the Guarantee Trustee be
responsible or liable for any failure or delay in the performance of its
obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software and hardware)
services; it being understood that the Guarantee Trustee shall use reasonable
efforts which are consistent with accepted practices in the banking industry to
resume performance as soon as practicable under the circumstances.


 


(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 to act 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.


 


ARTICLE
IV

GUARANTEE TRUSTEE


 


SECTION
4.1       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 Person 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 a corporation or other Person
permitted by the 


 


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Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture Act, 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 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 4.1(a)(ii), the combined capital and surplus of such corporation
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 4.1(a), the Guarantee Trustee shall immediately resign in
the manner and with the effect set out in Section 4.2(c).


 


(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 and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.


 


SECTION
4.2       APPOINTMENT, REMOVAL AND
RESIGNATION OF GUARANTEE TRUSTEE.


 


(a)                                  Subject to Section 4.2(b), unless a Guarantee Event of Default shall
have occurred and be continuing, the Guarantee Trustee may be appointed or
removed with or without cause at any time by the Guarantor.


 


(b)                                 The Guarantee Trustee shall not be removed in accordance with
Section 4.2(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 such 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 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 4.2 within 60 days after delivery
to the Guarantor of an instrument of removal or resignation, the removed or
resigning Guarantee Trustee may petition at the expense of the Guarantor 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 4.2, the Guarantor shall pay to
the Guarantee Trustee all amounts owing for fees and reimbursement of expenses
that have accrued to the date of such termination, removal or resignation.


 


ARTICLE
V

GUARANTEE


 


SECTION
5.1       GUARANTEE.


 


The Guarantor irrevocably
and unconditionally agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by the Trust or the
Guarantor), as and when due, regardless of any defense, right of setoff or
counterclaim that the Trust 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 Trust to pay such amounts to the Holders.  Notwithstanding anything to the contrary
herein, the 


 


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Guarantor retains all of its rights under the
Indenture to defer the interest payments on the Junior Subordinated Debt Securities
pursuant to the terms thereof and the Guarantor shall not be obligated hereunder
to make any Guarantee Payments during any Extended Interest Payment Period (as
defined in the Indenture) with respect to the Distributions (as defined in the
Declaration of Trust) on the Securities.


 


SECTION
5.2       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 Trust 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
5.3       OBLIGATIONS NOT AFFECTED.


 


The obligations, covenants,
agreements and duties of the Guarantor under this Guarantee shall be absolute
and unconditional and shall remain in full force and effect until the entire
liquidation amount of all outstanding Securities shall have been paid and such
obligation shall in no way be affected or impaired by reason of the happening
from time to time of any event, including, without limitation, the following,
whether or not with notice to, or the consent of, the Guarantor:


 


(a)                                  The release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Securities to be performed or observed
by the Trust;


 


(b)                                 The extension of time for the payment by the Trust of all or any portion
of the Distributions, Redemption Price, Liquidation Distribution or any other
sums payable under the terms of the Securities or the extension of time for the
performance of any other obligation under, arising out of, or in connection
with the Securities (other than an extension of time for payment of Distributions,
Redemption Price, Liquidation Distribution or other sum payable that results
from the extension of any interest payment period on the Junior Subordinated
Debt Securities);


 


(c)                                  Any failure, omission, delay or lack of diligence on the part of the
Institutional Trustee or the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Institutional Trustee or the
Holders pursuant to the terms of the Securities, or any action on the part of
the Trust 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 Trust or any of the assets of the
Trust;


 


(e)                                  Any invalidity of, or defect or deficiency in, the 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 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.


 


There shall be no obligation
of the Guarantee Trustee or the Holders to give notice to, or obtain consent
of, the Guarantor or any other Person with respect to the happening of any of
the foregoing.


 


No setoff, counterclaim,
reduction or diminution of any obligation, or any defense of any kind or nature
that the Guarantor has or may have against any Holder shall be available
hereunder to the Guarantor against such Holder to reduce the payments to it
under this Guarantee.


 


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SECTION
5.4       RIGHTS OF HOLDERS.


 


(a)                                  The Holders of at least a Majority in Liquidation Amount of the
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.


 


(b)                                 If the Guarantee Trustee fails to enforce this Guarantee, then any Holder
of Securities may, subject to the subordination provisions of Section 6.2,
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 Trust, the Guarantee Trustee or any other person
or entity.  In addition, if the Guarantor
fails to make a Guarantee Payment, a Holder of Securities may, subject to the
subordination provisions of Section 6.2, directly institute a proceeding
against the Guarantor for enforcement of the Guarantee for such payment to the
Holder of the Securities of the principal of or interest on the Junior
Subordinated Debt Securities on or after the respective due dates specified in
the Junior Subordinated Debt Securities, and the amount of the payment will be
based on the Holder’s pro rata
share of the amount due and owing on all of the Securities.  The Guarantor hereby waives any right or
remedy to require that any action on this Guarantee be brought first against
the Trust or any other person or entity before proceeding directly against the
Guarantor.


 


SECTION
5.5       GUARANTEE OF PAYMENT.


 


This Guarantee creates a
guarantee of payment and not of collection.


 


SECTION
5.6       SUBROGATION.


 


The Guarantor shall be
subrogated to all (if any) rights of the Holders of Securities against the
Trust 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 mandatory 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 at the time of 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 Guarantee Trustee for the benefit of
the Holders.


 


SECTION
5.7       INDEPENDENT OBLIGATIONS.


 


The Guarantor acknowledges
that its obligations hereunder are independent of the obligations of the Trust
with respect to the 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 5.3(a) through 5.3(g), inclusive, hereof.


 


ARTICLE
VI

LIMITATION OF TRANSACTIONS; SUBORDINATION


 


SECTION
6.1       LIMITATION OF TRANSACTIONS.


 


So long as any Securities
remain outstanding, (i) if there shall have occurred an Event of Default
(as defined in the Indenture) with respect to the Junior Subordinated Debt
Securities, (ii) if there shall have occurred a Guarantee Event of Default
or (iii) during any Extended Interest Payment Period as provided in the
Indenture, the Guarantor shall not, and shall not permit any subsidiary of the
Guarantor to, (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 the capital stock of any of the Guarantor’s
subsidiaries, (y) make any payment of principal, interest or premium, if
any, on or repay, repurchase or redeem any Parity Securities or debt securities
of the Guarantor that rank junior to the Junior Subordinated Debt Securities or
(z) make any guarantee payments on any guarantee by the Guarantor of the
debt securities of any subsidiary of the Guarantor if such guarantee ranks
equally with or junior in 


 


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interest to the Junior Subordinated Debt Securities
(other than (a) dividends or distributions in the Guarantor’s capital
stock, (b) payments under this Guarantee, (c) any declaration of a
dividend in connection with the implementation of a shareholders’ rights plan,
or the issuance of stock under any such plan or the redemption or repurchase of
any such rights pursuant thereto, (d) repurchases, redemptions or other
acquisitions of shares of capital stock of the Guarantor in connection with any
employment contract, benefit plan or other similar arrangement with or for the
benefit of its directors, officers, employees or consultants,  and (e) solely in the case of any of the
Guarantor’s Subsidiaries, any declaration or payment of dividends or distributions
on the capital stock of such Subsidiary to the Guarantor or one of the
Guarantor’s affiliates).


 


SECTION
6.2       RANKING.


 


This Guarantee will
constitute an unsecured obligation of the Guarantor and will rank subordinate
and junior in right of payment to all Senior Indebtedness (as defined in Section 2.1(o) of
the First Supplemental Indenture) of the Guarantor in the same manner and to
the same extent as set forth in Article XIV of the Indenture.


 


SECTION
6.3       SUBORDINATION OF COMMON
SECURITIES.


 


If a Declaration Default has
occurred and is continuing under the Declaration of Trust, the rights of the
Holders of the Common Securities to receive Guarantee Payments hereunder shall
be subordinated to the rights of the Holders of the Trust Preferred Securities
to receive Guarantee Payments under this Guarantee.


 


ARTICLE
VII

TERMINATION


 


SECTION
7.1       TERMINATION.


 


This Guarantee shall
terminate upon (i) full payment of the Redemption Price of all Securities,
(ii) distribution of the Junior Subordinated Debt Securities to the
Holders of all the Securities or (iii) full payment of the amounts payable
in accordance with the Declaration of Trust upon liquidation of the Trust.  Notwithstanding the foregoing, this Guarantee
will continue to be effective or will be reinstated, as the case may be, if at
any time any Holder of Securities must restore payment of any sums paid under
the Securities or under this Guarantee.


 


ARTICLE
VIII


 


INDEMNIFICATION


 


SECTION
8.1       INDEMNIFICATION.


 


The Guarantor agrees to
indemnify each Company Indemnified Person, the Institutional Trustee, the Delaware
Trustee (as each such term is defined in the Declaration of Trust) and the
Guarantee Trustee for, and to hold each such Person harmless against any loss,
claim, damage, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the reasonable costs and expenses
of defending itself against, or investigating, any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.  The provisions of this Section 8.1 shall
survive the termination of this Guarantee or the resignation or removal of the
Guarantee Trustee.


 


ARTICLE
IX


 


MISCELLANEOUS


 


SECTION
9.1       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 Securities then 


 


-12-

















 


outstanding. 
Except in connection with a consolidation, merger or sale involving the
Guarantor that is permitted under Article VIII of the Indenture and
pursuant to which the successor or assignee agrees in writing to perform the
Guarantor’s obligations hereunder, the Guarantor shall not assign its
obligations hereunder.


 


SECTION
9.2       AMENDMENTS.


 


Except with respect to any changes
that do not materially adversely affect the rights of the Holders (in which
case no consent of the Holders will be required), this Guarantee may not be
amended without the prior approval of the Holders of not less than a Majority
in Liquidation Amount of the Securities. 
The provisions of Section 12.2 of the Declaration of Trust with
respect to meetings of, and action by written consent of, the Holders of the
Securities apply to the giving of such approval.


 


SECTION
9.3       NOTICES.


 


All
notices provided for in this Guarantee shall be in writing, duly signed by the
party giving such notice, and shall be delivered by hand, telecopied or mailed
by registered or certified 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 Guarantor and the Holders of the Securities):


 


The
Bank of New York Mellon Trust Company, N.A.

700 South Flower Street, 5th Floor


Los
Angeles, California  90017


 


(b)                                 If given to the Guarantor, at the Guarantor’s mailing addresses set forth
below (or such other address as the Guarantor may give notice of to the
Guarantee Trustee and the Holders of the Securities):


 


City
National Corporation

555 South Flower Street

Los Angeles, California 90071

Facsimile No.:  (213) 673-0423

Attention:  Michael B. Cahill


 


(c)                                  If given to any Holder of Securities, at the address set forth on the
books and records of the Trust.


 


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.


 


The Guarantee Trustee agrees
to accept and act upon instructions or directions pursuant to this indenture
sent by unsecured e-mail, pdf, facsimile transmission or other similar
unsecured electronic methods; provided, however, that (a) the party
providing such written instructions, subsequent to such transmission of written
instructions, shall provide the originally executed instructions or directions
to the Guarantee Trustee in a timely manner, and (b) such originally
executed instructions or directions shall be signed by an authorized
representative of the party providing such instructions or directions.  If the party elects to give the Guarantee
Trustee e-mail or facsimile instructions (or instructions by a similar
electronic method) and the Guarantee Trustee in its discretion elects to act
upon such instructions, the Guarantee Trustee’s understanding of such
instructions shall be deemed controlling. 
The Guarantee Trustee shall not be liable for any losses, costs or
expenses arising directly or indirectly from the Guarantee Trustee’s reliance
upon and compliance with such instructions notwithstanding such instructions conflict
or are inconsistent with a subsequent written instruction.  The party providing electronic instructions
agrees to assume all risks arising out of the use of such electronic methods to
submit instructions and directions to the Guarantee Trustee, including without
limitation the risk of the Guarantee Trustee acting on unauthorized
instructions, and the risk or interception and misuse by third parties.


 


SECTION
9.4       BENEFIT.


 


This Guarantee is solely for
the benefit of the Holders of the Securities and, subject to Section 3.1(a),
is not separately transferable from the Securities.


 


SECTION
9.5       GOVERNING LAW; WAIVER OF JURY
TRIAL.


 


THIS
GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAW OF THE STATE OF NEW YORK.  EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTEE, THE SECURITIES OR THE
TRANSACTION CONTEMPLATED HEREBY.


 


[The
remainder of this page left blank intentionally; the signature page follows]


 


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IN WITNESS WHEREOF, this
Guarantee is executed as of the day and year first above written.


 


 


	
  CITY
  NATIONAL CORPORATION,

  	
   

  
	
  as
  Guarantor

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
  Michael
  B. Cahill

  	
   

  
	
  Title:

  	
  Executive
  Vice President, General Counsel and Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
  THE
  BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

  
	
  as
  Guarantee Trustee

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
  Teresa
  Petta

  	
   

  
	
  Title:

  	
  Vice
  President

  	
   

  



 


[Signature
Page to Guarantee Agreement]


 


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