CAPITAL SECURITIES GUARANTEE AGREEMENT

 

EXHIBIT 4.3

 

 

 

CAPITAL SECURITIES GUARANTEE AGREEMENT

 

 

PENNSYLVANIA COMMERCE BANCORP, INC.

 

 

DATED AS OF SEPTEMBER 29, 2006

 

 

 

 

 

 

 

 

 

 

 

 

TABLE OF CONTENTS

 

 

 

CAPITAL SECURITIES GUARANTEE AGREEMENT

 

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

 

In this Capital Securities Guarantee, unless the context otherwise requires:

 

“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 1100 North Market Street, Rodney Square North, Wilmington, Delaware 19890-0001, 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.

 

 

 

“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:

 

“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 

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.

 

 

 

(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