CAPITAL SECURITIES GUARANTEE AGREEMENT PENNSYLVANIA COMMERCE BANCORP, INC. DATED AS OF SEPTEMBER 29, 2006
EXHIBIT
4.3
PENNSYLVANIA
COMMERCE BANCORP, INC.
DATED
AS OF SEPTEMBER 29, 2006
TABLE
OF CONTENTS
|
ARTICLE
I DEFINITIONS AND INTERPRETATION
|
1
|
|
|
Section
1.1
|
Definitions
and Interpretation.
|
1
|
|
ARTICLE
II Events of Default
|
4
|
|
|
Section
2.1
|
Events
of Default; Waiver
|
4
|
|
Section
2.2
|
Event
of Default; Notice
|
5
|
|
ARTICLE
III POWERS, DUTIES AND RIGHTS OF CAPITAL SECURITIES GUARANTEE
TRUSTEE
|
5
|
|
|
Section
3.1
|
Powers
and Duties of the Capital Securities Guarantee Trustee.
|
5
|
|
Section
3.2
|
Certain
Rights of Capital Securities Guarantee Trustee
|
7
|
|
Section
3.3
|
Not
Responsible for Recitals or Issuance of Capital Securities
Guarantee.
|
8
|
|
ARTICLE
IV CAPITAL SECURITIES GUARANTEE TRUSTEE
|
9
|
|
|
Section
4.1
|
Capital
Securities Guarantee Trustee; Eligibility
|
9
|
|
Section
4.2
|
Appointment,
Removal and Resignation of Capital Securities Guarantee
Trustee.
|
|
|
Section
4.3
|
Compensation
and Reimbursement
|
10
|
|
ARTICLE
V GUARANTEE
|
11
|
|
|
Section
5.1
|
Guarantee
|
11
|
|
Section
5.2
|
Waiver
of Notice and Demand
|
11
|
|
Section
5.3
|
Obligations
Not Affected.
|
11
|
|
Section
5.4
|
Rights
of Holders
|
12
|
|
Section
5.5
|
Guarantee
of Payment
|
12
|
|
Section
5.6
|
Subrogation
|
12
|
|
Section
5.7
|
Independent
Obligations
|
13
|
|
ARTICLE
VI LIMITATION OF TRANSACTIONS; SUBORDINATION
|
13
|
|
|
Section
6.1
|
Limitation
of Transactions
|
13
|
|
Section
6.2
|
Ranking
|
13
|
|
ARTICLE
VII TERMINATION
|
14
|
|
|
Section
7.1
|
Termination
|
14
|
|
ARTICLE
VIII INDEMNIFICATION
|
14
|
|
|
Section
8.1
|
Exculpation
|
14
|
|
Section
8.2
|
Indemnification
|
14
|
|
ARTICLE
IX MISCELLANEOUS
|
15
|
|
|
Section
9.1
|
Successors
and Assigns
|
15
|
|
Section
9.2
|
Amendments
|
15
|
|
Section
9.3
|
Notices
|
15
|
i
|
Section
9.4
|
Benefit
|
16
|
|
Section
9.5
|
Governing
Law; Submission to Jurisdiction; Appointment of Agent for Service
of
Process
|
16
|
ii
This
GUARANTEE AGREEMENT (the “Capital Securities Guarantee”), dated as of September
29, 2006, is executed and delivered by Pennsylvania Commerce Bancorp, Inc.,
a
Pennsylvania corporation (the “Guarantor”), and Wilmington Trust Company, a
Delaware banking corporation, as trustee (the “Capital Securities Guarantee
Trustee”), for the benefit of the Holders (as defined herein) from time to time
of the Capital Securities (as defined herein) of Commerce Harrisburg Capital
Trust III, a Delaware statutory trust (the “Issuer”).
WHEREAS,
pursuant to the Declaration of Trust (the “Declaration”), dated as of September
29, 2006, among the trustees of the Issuer, the Guarantor, 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 150 Capital Securities, having
an aggregate liquidation amount of $15,000,000 such capital securities being
designated the 7.75% 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 Capital Securities Guarantee, to pay to the Holders the Guarantee Payments
(as defined below) and to make certain other payments on the terms and
conditions set forth herein.
NOW,
THEREFORE, in consideration of the purchase by each Holder, which purchase
the
Guarantor hereby acknowledges shall benefit the Guarantor, the Guarantor
executes and delivers this Trust Capital Securities Guarantee for the benefit
of
the Holders.
ARTICLE
I
DEFINITIONS
AND INTERPRETATION
Section
1.1 Definitions
and Interpretation.
In
this
Capital Securities Guarantee, unless the context otherwise
requires:
(a) Capitalized
terms used in this Capital Securities Guarantee but not defined in the preamble
above have the respective meanings assigned to them in this Section
1.1;
(b) Terms
defined in the Declaration as of the date of execution of this Capital
Securities Guarantee have the same meaning when used in this Capital Securities
Guarantee unless otherwise defined in this Capital Securities
Guarantee;
(c) A
term
defined anywhere in this Capital Securities Guarantee has the same meaning
throughout;
(d) All
references to “the Capital Securities Guarantee” or “this Capital Securities
Guarantee” are to this Capital Securities Guarantee as modified, supplemented or
amended from time to time;
1
(e) All
references in this Capital Securities Guarantee to Articles and Sections are
to
Articles and Sections of this Capital Securities Guarantee, unless otherwise
specified;
(f) A
term
defined in the Trust Indenture Act has the same meaning when used in this
Capital Securities Guarantee, unless otherwise defined in this Capital
Securities Guarantee or unless the context otherwise requires; and
(g) A
reference to the singular includes the plural and vice versa.
“Affiliate”
has the same meaning as given to that term in Rule 405 under the Securities
Act
of 1933, as amended, or any successor rule thereunder,
“Business
Day” means any day other than a Saturday or a Sunday, or a day on which banking
institutions in New York, New York, Wilmington, Delaware or Philadelphia,
Pennsylvania, are authorized or required by law to transact
business.
“Common
Securities” means the securities representing common undivided beneficial
interests in the assets of the Issuer.
“Corporate
Trust Office” means the office of the Capital Securities Guarantee Trustee at
which the corporate trust business of the Capital Securities Guarantee Trustee
shall, at any particular time, be principally administered, which office at
the
date of execution of this Capital Securities Guarantee is located at 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attn:
Corporate Trust Administration.
“Covered
Person” means any Holder of Capital Securities.
“Debentures”
means the series of subordinated debt securities of the Guarantor designated
the
7.75% Junior Subordinated Debentures due September 29, 2036 held by the Property
Trustee (as defined in the Declaration) of the Issuer.
“Event
of
Default” means a default by the Guarantor on any of its payment or other
obligations under this Capital Securities Guarantee, provided, however, that
except with respect to a default in payment of any Guarantee Payment, the
Guarantor shall have received notice of default and shall not have cured such
default within 30 days after receipt of such notice.
“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 accumulated and unpaid Distributions (as defined in the
Declaration) that are required to be paid on such Capital Securities to the
extent the Issuer has funds on hand legally available therefor at such time,
(ii) the Redemption Price (as defined in the Declaration), including all
accumulated and unpaid Distributions to the date of redemption to the extent
the
Issuer has funds on hand legally available therefor at such time, with respect
to any Capital Securities called for redemption by the Issuer and (iii) upon
a
voluntary or involuntary dissolution winding-up or liquidation of the Issuer
(other than in connection with the distribution of the Debentures to the Holders
or the redemption of all Capital Securities), the lesser of (a) the aggregate
of
the liquidation amount and all accumulated and unpaid Distributions on the
Capital Securities to the date of payment (the “Liquidation Distribution”) to
the extent the Issuer has funds on hand legally available therefor, and (b)
the
amount of assets of the Issuer remaining available for distribution to Holders
in liquidation of the Issuer.
2
“Holder”
shall mean 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 Person known to a Responsible Officer of the Capital Securities
Guarantee Trustee to be an Affiliate of the Guarantor.
“Indemnified
Person” means the Capital Securities Guarantee Trustee, any Affiliate of the
Capital Securities Guarantee Trustee, or any officers, directors, stockholders,
members, partners, employees, representatives, nominees, custodians or agents
of
the Capital Securities Guarantee Trustee.
“Indenture”
means the Indenture dated as of September 29, 2006, among the Guarantor (the
“Debenture Issuer”) and Wilmington Trust Company, as trustee (the “Indenture
Trustee”), pursuant to which the Debentures are to be issued to the Property
Trustee of the Issuer.
“Indenture
Event of Default” shall mean any event specified in Section 5.01 of the
Indenture.
“Majority
in liquidation amount of the Capital Securities” means, except as provided by
the Declaration or by the Trust Indenture Act, a vote by Holder(s) of more
than
50% of the aggregate liquidation amount of all Capital Securities.
“Officers’
Certificate” means, with respect to the Guarantor, a certificate signed by any
of the Chairman, a Vice Chairman, the Chief Executive Officer, the President,
a
Vice President, the Comptroller, the Treasurer or an Assistant Treasurer of
the
Guarantor. Any Officers’ Certificate delivered with respect to compliance with a
condition or covenant provided for in this Capital Securities Guarantee (other
than pursuant to Section 314(d)(4) of the Trust Indenture Act) shall
include:
(a) a
statement that each officer signing the Officers’ Certificate has read the
covenant or condition and the definitions relating thereto;
(b) a
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
(c) a
statement as to whether, in the opinion of each such officer, such condition
or
covenant has been complied with.
3
“Other
Debentures” means all junior subordinated debentures issued by the Guarantor
from time to time and sold to trusts to be established by the Guarantor (if
any), in each case similar to the Issuer.
“Other
Guarantees” means all guarantees to be issued by the Guarantor with respect to
trust capital securities (if any) similar to the Capital Securities issued
by
other trusts to be established by the Guarantor (if any), in each case similar
to the Issuer.
“Person”
means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited liability
company, trust, 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 Capital Securities Guarantee Trustee, any
officer within the Corporate Trust Office of the Capital Securities Guarantee
Trustee with direct responsibility for the administration of this Capital
Securities Guarantee and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of
that
officer’s knowledge of and familiarity with the particular subject.
“Successor
Capital Securities Guarantee Trustee” means a successor Capital Securities
Guarantee Trustee possessing the qualifications to act as Capital Securities
Guarantee Trustee under Section 4.1.
“Capital
Securities Guarantee Trustee” means Wilmington Trust Company, a Delaware banking
corporation, until a Successor Trust Capital Securities Guarantee Trustee (as
defined therein) has been appointed and has accepted such appointment pursuant
to the terms of this Trust Capital Securities Guarantee and thereafter means
each Successor Trust Capital Securities Guarantee Trustee.
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended.
“Trust
Securities” means the Common Securities and the Capital Securities,
collectively.
ARTICLE
II
Events
of Default
Section
2.1 Events
of Default; Waiver
The
Holders of a Majority in liquidation amount of Capital Securities may, by vote,
on behalf of all Holders, waive any past Event of Default and its consequences.
Upon such waiver, any such Event of Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Capital Securities Guarantee, but no such waiver shall extend
to
any subsequent or other default or Event of Default or impair any right
consequent thereon.
4
Section
2.2 Event
of Default; Notice
(a) The
Capital Securities Guarantee Trustee shall, within 90 days after the occurrence
of a default with respect to this Capital Securities Guarantee, mail by first
class postage prepaid, to all Holders, notices of all defaults actually known
to
a Responsible Officer, unless such defaults have been cured before the giving
of
such notice, provided, that, except in the case of default in the payment of
any
Guarantee Payment, the Capital Securities Guarantee Trustee shall be protected
in withholding such notice if and so long as the board of directors, the
executive committee, or a trust committee of directors and/or a Responsible
Officer of the Capital Securities Guarantee Trustee in good faith determines
that the withholding of such notice is in the interests of the
Holders.
ARTICLE
III
POWERS,
DUTIES AND RIGHTS OF CAPITAL
SECURITIES
GUARANTEE TRUSTEE
Section
3.1 Powers
and Duties of the Capital Securities Guarantee
Trustee.
(a) This
Capital Securities Guarantee shall be held by the Capital Securities Guarantee
Trustee for the benefit of the Holders, and the Capital Securities Guarantee
Trustee shall not transfer this Capital Securities Guarantee to any Person
except a Holder exercising his or her rights pursuant to Section 5.4(b) or
to a
Successor Capital Securities Guarantee Trustee on acceptance by such Successor
Capital Securities Guarantee Trustee of its appointment to act as Successor
Capital Securities Guarantee Trustee. The right, title and interest of the
Capital Securities Guarantee Trustee shall automatically vest in any Successor
Capital Securities Guarantee Trustee, and such vesting and succession of title
shall be effective whether or not conveyancing documents have been executed
and
delivered pursuant to the appointment of such Successor Capital Securities
Guarantee Trustee.
(b) If
an
Event of Default actually known to a Responsible Officer has occurred and is
continuing, the Capital Securities Guarantee Trustee shall enforce this Capital
Securities Guarantee for the benefit of the Holders.
(c) The
Capital Securities Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Capital Securities Guarantee, and no implied covenants shall be read into
this Capital Securities Guarantee against the Capital Securities Guarantee
Trustee. In case an Event of Default has occurred (that has not been cured
or
waived pursuant to Section 2.1) and is actually known to a Responsible Officer,
the Capital Securities Guarantee Trustee shall exercise such of the rights
and
powers vested in it by this Capital Securities Guarantee, and use the same
degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
5
(d) No
provision of this Capital Securities Guarantee shall be construed to relieve
the
Capital Securities Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) prior
to
the occurrence of any Event of Default and after the curing or waiving of all
such Events of Default that may have occurred:
(A) the
duties and obligations of the Capital Securities Guarantee Trustee shall be
determined solely by the express provisions of this Capital Securities
Guarantee, and the Capital Securities Guarantee Trustee shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Capital Securities Guarantee, and no implied covenants or
obligations shall be read into this Capital Securities Guarantee against the
Capital Securities Guarantee Trustee; and
(B) in
the
absence of bad faith on the part of the Capital Securities Guarantee Trustee,
the Capital Securities Guarantee Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Capital Securities Guarantee
Trustee and conforming to the requirements of this Capital Securities Guarantee;
but in the case of any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the Capital Securities
Guarantee Trustee, the Capital Securities Guarantee Trustee shall be under
a
duty to examine the same to determine whether or not they conform to the
requirements of this Capital Securities Guarantee;
(ii) the
Capital Securities Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall be proved
that the Capital Securities Guarantee Trustee was negligent in ascertaining
the
pertinent facts upon which such judgment was made;
(iii) the
Capital Securities 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 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 Capital Securities Guarantee Trustee, or
exercising any trust or power conferred upon the Capital Securities Guarantee
Trustee under this Capital Securities Guarantee; and
(iv) no
provision of this Capital Securities Guarantee shall require the Capital
Securities 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 Capital Securities Guarantee
Trustee shall have reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the terms of this
Capital Securities Guarantee or indemnity, reasonably satisfactory to the
Capital Securities Guarantee Trustee, against such risk or liability is not
reasonably assured to it.
6
Section
3.2 Certain
Rights of Capital Securities Guarantee Trustee
(a) Subject
to the provisions of Section 3.1:
(i) The
Capital Securities 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 Capital Securities
Guarantee may be sufficiently evidenced by an Officers’
Certificate.
(iii) Whenever,
in the administration of this Capital Securities Guarantee, the Capital
Securities Guarantee Trustee shall deem it desirable that a matter be proved
or
established before taking, suffering or omitting any action hereunder, the
Capital Securities 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
Capital Securities Guarantee Trustee shall have no duty to see to any recording,
filing or registration of any instrument (or any rerecording, refiling or
reregistration thereof).
(v) The
Capital Securities 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 Capital Securities
Guarantee Trustee shall have the right at any time to seek instructions
concerning the administration of this Capital Securities Guarantee from any
court of competent jurisdiction.
(vi) The
Capital Securities Guarantee Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Capital Securities Guarantee
at
the request or direction of any Holder, unless such Holder shall have provided
to the Capital Securities Guarantee Trustee such security and indemnity,
reasonably satisfactory to the Capital Securities Guarantee Trustee, against
the
costs, expenses (including attorneys’ fees and expenses and the expenses of the
Capital Securities 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 Capital
Securities Guarantee Trustee; provided that, nothing contained in this Section
3.2(a)(vi) shall be taken to relieve the Capital Securities Guarantee Trustee,
upon the occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Capital Securities
Guarantee.
7
(vii) The
Capital Securities 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 Capital Securities Guarantee Trustee, in its discretion,
may
make such further inquiry or investigation into such facts or matters as it
may
see fit.
(viii) The
Capital Securities 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 Capital Securities 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.
(ix) Any
action taken by the Capital Securities Guarantee Trustee or its agents hereunder
shall bind the Holders, and the signature of the Capital Securities 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 Capital Securities Guarantee Trustee to so act or as to its compliance
with
any of the terms and provisions of this Capital Securities Guarantee, both
of
which shall be conclusively evidenced by the Capital Securities Guarantee
Trustee’s or its agent’s taking such action.
(x) Whenever
in the administration of this Capital Securities Guarantee the Capital
Securities Guarantee Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other action
hereunder, the Capital Securities Guarantee Trustee (i) may request instructions
from the Holders of a Majority in liquidation amount of the Capital Securities,
(ii) may refrain from enforcing such remedy or right or taking such other action
until such instructions are received and (iii) shall be protected in
conclusively relying on or acting in accordance with such
instructions.
(xi) The
Capital Securities Guarantee Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith, without negligence, and
reasonably believed by it to be authorized or within the discretion or rights
or
powers conferred upon it by this Capital Securities Guarantee.
(b) No
provision of this Capital Securities Guarantee shall be deemed to impose any
duty or obligation on the Capital Securities 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
Capital Securities 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 Capital Securities Guarantee Trustee shall be construed to
be a
duty.
Section
3.3 Not
Responsible for Recitals or Issuance of Capital Securities
Guarantee.
The
recitals contained in this Capital Securities Guarantee shall be taken as the
statements of the Guarantor, and the Capital Securities Guarantee Trustee does
not assume any responsibility for their correctness. The Capital Securities
Guarantee Trustee makes no representation as to the validity or sufficiency
of
this Capital Securities Guarantee.
8
ARTICLE
IV
CAPITAL
SECURITIES GUARANTEE TRUSTEE
Section
4.1 Capital
Securities Guarantee Trustee; Eligibility
(a) There
shall at all times be a Capital Securities Guarantee Trustee which
shall:
(i) not
be an
Affiliate of the Guarantor; and
(ii) be
a
corporation 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 Person permitted by the 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 Capital Securities Guarantee Trustee shall cease to be eligible to
so
act under Section 4.1(a), the Capital Securities Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section
4.2(c).
(c) If
the
Capital Securities Guarantee Trustee has or shall acquire any “conflicting
interest” within the meaning of Section 310(b) of the Trust Indenture Act, the
Capital Securities Guarantee Trustee and Guarantor shall in all respects comply
with the provisions of Section 310 (b) of the Trust Indenture Act, subject
to
the penultimate paragraph thereof.
Section
4.2 Appointment,
Removal and Resignation of Capital Securities Guarantee
Trustee.
(a) Subject
to Section 4.2(b), the Capital Securities Guarantee Trustee may be appointed
or
removed without cause at any time by the Guarantor except during an Event of
Default.
(b) The
Capital Securities Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Capital Securities Guarantee Trustee has been
appointed and has accepted such appointment by written instrument executed
by
such Successor Capital Securities Guarantee Trustee and delivered to the
Guarantor.
9
(c) The
Capital Securities Guarantee Trustee shall hold office until a Successor Capital
Securities Guarantee Trustee shall have been appointed or until its removal
or
resignation. The Capital Securities Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing
executed by the Capital Securities Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Capital
Securities Guarantee Trustee has been appointed and has accepted such
appointment by instrument in writing executed by such Successor Capital
Securities Guarantee Trustee and delivered to the Guarantor and the resigning
Capital Securities Guarantee Trustee.
(d) If
no
Successor Capital Securities Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery of an instrument of removal or resignation, the Capital Securities
Guarantee Trustee resigning or being removed may petition any court of competent
jurisdiction for appointment of a Successor Capital Securities Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as
it
may deem proper, appoint a Successor Capital Securities Guarantee
Trustee.
(e) No
Capital Securities Guarantee Trustee shall be liable for the acts or omissions
to act of any Successor Capital Securities Guarantee Trustee.
(f) Upon
termination of this Capital Securities Guarantee or removal or resignation
of
the Capital Securities Guarantee Trustee pursuant to this Section 4.2, the
Guarantor shall pay to the Capital Securities Guarantee Trustee all amounts
due
to the Capital Securities Guarantee Trustee accrued to the date of such
termination, removal or resignation.
Section
4.3 Compensation
and Reimbursement
(a) The
Guarantor agrees:
(i) to
pay
the Capital Securities Guarantee Trustee from time to time such reasonable
compensation as the Guarantor and the Capital Guarantee Trustee shall from
time
to time agree in writing for all services rendered by it hereunder (which
compensation will not be limited by any provision of law in regard to the
compensation of a trustee of an express trust); and
(ii) except
as
otherwise expressly provided herein, to reimburse the Capital Securities
Guarantee Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Capital Securities Guarantee Trustee 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, bad faith or willful misconduct.
(b) The
provisions of this Section shall survive the termination of this Capital
Securities Guarantee.
10
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
Issuer), as and when due, regardless of any defense, 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.
Section
5.2 Waiver
of Notice and Demand
The
Guarantor hereby waives notice of acceptance of this Capital Securities
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
5.3 Obligations
Not Affected.
The
obligations, covenants, agreements and duties of the Guarantor under this
Capital Securities 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, Liquidation Distribution (as defined in the
Declaration) or any other sums payable under the terms of the Trust Capital
Securities or the extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Trust Capital 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 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;
11
(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;
(g) any
other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense or defense of a guarantor, it being the intent of this
Section 5.3 that the obligations of the Guarantor with respect to the Guarantee
Payments shall be absolute and unconditional under any 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
5.4 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 Capital Securities Guarantee Trustee in respect of
this
Capital Securities Guarantee or exercising any trust or power conferred upon
the
Capital Securities Guarantee Trustee under this Capital Securities
Guarantee.
(b) If
the
Capital Securities Guarantee Trustee fails to enforce such Capital Securities
Guarantee, any Holder may institute a legal proceeding directly against the
Guarantor to enforce the Capital Securities Guarantee Trustee’s rights under
this Capital Securities Guarantee, without first instituting a legal proceeding
against the Issuer, the Capital Securities Guarantee Trustee or any other person
or entity. The Guarantor waives any right or remedy to require that any action
be brought first against the Issuer or any other person or entity before
proceeding directly against the Guarantor.
Section
5.5 Guarantee
of Payment
This
Capital Securities 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 against
the
Issuer in respect of any amounts paid to such Holders by the Guarantor under
this Capital Securities 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 Capital Securities Guarantee, if, at the time of any such
payment, any amounts are due and unpaid under this Capital Securities 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
5.7 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 Capital Securities Guarantee
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
ARTICLE
VI
LIMITATION
OF TRANSACTIONS; SUBORDINATION
Section
6.1 Limitation
of Transactions
So
long
as any Capital Securities remain outstanding, the Guarantor shall not (i)
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 (which includes common and preferred stock), (ii) make any payment of
principal of or interest on or repay, repurchase or redeem any debt securities
of the Guarantor (including any Other Debentures) that rank pari
passu with
or
junior in right of payment to the Debentures or (iii) make any guarantee
payments with respect to any guarantee by the Guarantor of the debt securities
of any subsidiary of the Guarantor (including Other Guarantees) if such
guarantee ranks pari
passu with
or
junior in right of payment to the Debentures (other than (a) dividends or
distributions in shares of, or options, warrants, rights to subscribe for or
purchase shares of, common stock of the Guarantor, (b) any declaration of a
dividend in connection with the implementation of a stockholders’ rights plan,
or the issuance of stock under any such plan in the future, or the redemption
or
repurchase of any such rights pursuant thereto, (c) payments under the Capital
Securities Guarantee, (d) the purchase of fractional shares resulting from
a
reclassification of the Guarantor’s capital stock, (e) 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 and (f) purchases of common stock related to the issuance
of common stock or rights under any of the Guarantor’s benefit plans for its
directors, officers or employees or any of the Guarantor’s dividend reinvestment
plans) if at
such
time (i) there shall have occurred any event of which the Guarantor has actual
knowledge that (a) is, or with the giving of notice or the lapse of time, or
both, would be an Indenture Event of Default and (b) in respect of which the
Guarantor shall not have taken reasonable steps to cure, (ii) if such Debentures
are held by the Property Trustee, the Guarantor shall be in default with respect
to its payment of any obligations under this Capital Securities Guarantee or
(iii) the Guarantor shall have given notice of its election of the exercise
of
its right to extend the interest payment period pursuant to Section 16.01 of
the
Indenture and any such extension shall be continuing.
Section
6.2 Ranking
This
Capital Securities Guarantee will constitute an unsecured obligation of the
Guarantor and will rank (i) subordinate and junior in right of payment to Senior
and Subordinated Indebtedness (as defined in the Indenture), to the same extent
and in the same manner that the Debentures are subordinated to Senior and
Subordinated Indebtedness pursuant to the Indenture, (ii) pari
passu with
the
Debentures, the Other Debentures and any Other Guarantee, and (iii) senior
to
the Guarantor’s capital stock.
13
ARTICLE
VII
TERMINATION
Section
7.1 Termination
This
Capital Securities Guarantee shall terminate (i) upon full payment of the
Redemption Price (as defined in the Declaration) of all Capital Securities
or
(ii) upon liquidation of the Issuer, the full payment of the amounts payable
in
accordance with the Declaration or (iii) the distribution of the Debentures
to
the Holders and the holders of Common Securities. Notwithstanding the foregoing,
this Trust Capital Securities Guarantee will continue to be effective or will
be
reinstated, as the case may be, if at any time any Holder must restore payment
of any sums paid under the Trust Capital Securities or under this Trust Capital
Securities Guarantee.
ARTICLE
VIII
INDEMNIFICATION
Section
8.1 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 performed or omitted by such
Indemnified Person in good faith in accordance with this Capital Securities
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
Capital Securities 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 Guarantor and upon such information, opinions, reports or
statements presented to 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 has been selected with reasonable
care
by or on behalf of the Guarantor, 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 might properly be paid.
Section
8.2 Indemnification
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 bad faith on its part, arising out
of
or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees
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 obligation to indemnify as set forth in this Section 8.2 shall
survive the termination of this Capital Securities Guarantee.
14
ARTICLE
IX
MISCELLANEOUS
Section
9.1 Successors
and Assigns
All
guarantees and agreements contained in this Capital Securities Guarantee shall
bind the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders then
outstanding.
Section
9.2 Amendments
Except
with respect to any changes that do not materially adversely affect the rights
of Holders (in which case no consent of Holders will be required), this Capital
Securities Guarantee may only be amended with the prior approval of the Holders
of a Majority in liquidation amount of the Capital Securities (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). The provisions of the Declaration with respect to consents
to
amendments thereof (whether at a meeting or otherwise) shall apply to the giving
of such approval.
Section
9.3 Notices
All
notices provided for in this Capital Securities Guarantee shall be in writing,
duly signed by the party giving such notice, and shall be delivered, faxed
or
mailed by first class mail, as follows:
(a) If
given
to the Issuer, in care of the Administrative Trustee, at the Issuer’s mailing
address set forth below (or such other address as the Issuer may give notice
of
to the Holders and the Capital Securities Guarantee Trustee):
Commerce
Harrisburg Capital Trust III c/o Commerce Bank/Harrisburg, N.A., 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, XX 00000, Attention:
Xxxx Xxxx, Administrative Trustee.
(b) If
given
to the Capital Securities Guarantee Trustee, at the Capital Securities Guarantee
Trustee’s mailing address set forth below (or such other address as the Capital
Securities Guarantee Trustee may give notice of to the Holders and the
Issuer):
Wilmington
Trust Company, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000-0000, Attention: Corporate Trust Administration.
15
(c) 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 and the Trust
Capital Securities Guarantee Trustee):
Pennsylvania
Commerce Bancorp, Inc., c/o Commerce Bank/Harrisburg, N.A., 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000, Attention:
Xxxx Xxxx, Executive Vice President.
(d) If
given
to any Holder, 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, faxed 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
9.4 Benefit
This
Capital Securities Guarantee is solely for the benefit of the Holders and,
subject to Section 3.1(a), is not separately transferable from the Capital
Securities.
Section
9.5 Governing
Law; Submission to Jurisdiction; Appointment of Agent for Service of
Process
This
Capital Securities Guarantee shall be governed by and construed in accordance
with the laws of the State of Delaware, without regard to principles of conflict
of laws. The parties hereto hereby declare that it is their intention that
this
Capital Securities Guarantee shall be regarded as made under the laws of the
State of Delaware and that the laws of said State shall be applied in
interpreting its provisions in all cases where legal interpretation shall be
required. Each of the parties hereto agrees (a) that this Capital Securities
Guarantee involves at least $100,000.00, and (b) that this Capital Securities
Guarantee has been entered into by the parties hereto in express reliance upon
6
Del.
C.§
2708.
Each of the parties hereto hereby irrevocably and unconditionally agrees (a)
to
be subject to the jurisdiction of the courts of the State of Delaware and of
the
federal courts sitting in the State of Delaware, and (b) (1) to the extent
such
party is not otherwise subject to service of process in the State of Delaware,
to appoint and maintain an agent in the State of Delaware as such party's agent
for acceptance of legal process, and (2) that, to the fullest extent permitted
by applicable law, service of process may also be made on such party by prepaid
certified mail with a proof of mailing receipt validated by the United States
Postal Service constituting evidence of valid service, and that service made
pursuant to (b) (1) or (2) above shall, to the fullest extent permitted by
applicable law, have the same legal force and effect as if served upon such
party personally within the State of Delaware.
16
THIS
CAPITAL SECURITIES GUARANTEE is executed as of the day and year first above
written.
PENNSYLVANIA
COMMERCE BANCORP, INC., as Guarantor
By:
____________________________
Name:
Xxxx
X.
Xxxxxxxxxx
Title: President
Wilmington
Trust Company, as Capital Securities Guarantee Trustee
By:
_____________________________
Name:
Title:
17
