__________________________________________________
TRUST PREFERRED SECURITIES
GUARANTEE AGREEMENT
Between
WSFS FINANCIAL CORPORATION
(as Guarantor)
and
WILMINGTON TRUST COMPANY
(as Trustee)
dated as of
November 20, 1998
__________________________________________________
CROSS-REFERENCE TABLE*
Section of Trust Section of
Indenture Act of 1939, as amended Guarantee Agreement
----------------------------------- --------------------
310(a). 4.1(a)
310(b). 4.1(c), 2.8
310(c). Inapplicable
311(a). 2.2(b)
311(b). 2.2(b)
311(c). Inapplicable
312(a). 2.2(a)
312(b). 2.2(b)
313. 2.3
314(a). 2.4
314(b). Inapplicable
314(c). 2.5
314(d). Inapplicable
314(e). 1.1, 2.5, 3.2
314(f). 2.1, 3.2
315(a). 3.1(d)
315(b). 2.7
315(c). 3.1
315(d). 3.1(d)
316(a). 1.1, 2.6, 5.4
316(b). 5.3
316(c). 9.2
317(a). Inapplicable
317(b). Inapplicable
318(a). 2.1(b)
318(b). 2.1
318(c). 2.1(a)
----------------
* This Cross-Reference Table does not constitute part of the
Guarantee Agreement and shall not affect the
interpretation of any of its terms or provisions.
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS. . . . . . . . . . . . . . . . . . 1
Section 1.1. Definitions. . . . . . . . . . . . . . 1
ARTICLE II. TRUST INDENTURE ACT . . . . . . . . . . . . . 3
Section 2.1. Trust Indenture Act; Application . . . 3
Section 2.2. List of Holders. . . . . . . . . . . . 3
Section 2.3. Reports by the Guarantee Trustee . . . 4
Section 2.4. Periodic Reports to Guarantee Trustee. 4
Section 2.5. Evidence of Compliance with Conditions
Precedent. . . . . . . . . . . . . . . 4
Section 2.6. Events of Default; Waiver. . . . . . . 4
Section 2.7. Event of Default; Notice . . . . . . . 4
Section 2.8. Conflicting Interests . . . . . . . . .4
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE
TRUSTEE. . . . . . . . . . . . . . . . . . . 5
Section 3.1. Powers and Duties of the Guarantee
Trustee . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.2. Certain Rights of Guarantee Trustee. . 6
Section 3.3. Indemnity. . . . . . . . . . . . . . . 7
ARTICLE IV. GUARANTEE TRUSTEE . . . . . . . . . . . . . . 7
Section 4.1. Guarantee Trustee; Eligibility . . . . 7
Section 4.2. Appointment, Removal and Resignation of
the Guarantee Trustee .. . . . . . . . 7
ARTICLE V. GUARANTEE . . . . . . . . . . . . . . . . . . . 8
Section 5.1. Guarantee. . . . . . . . . . . . . . . 8
Section 5.2. Waiver of Notice and Demand. . . . . . 8
Section 5.3. Obligations Not Affected . . . . . . . 8
Section 5.4. Rights of Holders. . . . . . . . . . . 9
Section 5.5. Guarantee of Payment . . . . . . . . . 9
Section 5.6. Subrogation. . . . . . . . . . . . . . 9
Section 5.7. Independent Obligations. . . . . . . . 9
ARTICLE VI. SUBORDINATION AND COVENANTS. . . . . . . . . 10
Section 6.1. Subordination . . . . . . . . . . . . 10
Section 6.2. Pari Passu Guarantees . . . . . . . . 10
Section 6.3 Covenants of the Guarantor . . . . . . 10
ARTICLE VII. CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER
TRANSACTIONS . . . . . . . . . . . . . . . .11
Section 7.1. Guarantor May Consolidate, Etc., Only
on Certain Terms . . . . . . . . . . . . . . . . . 11
Section 7.2. Successor Guarantor Substituted . . . 11
ARTICLE VIII. TERMINATION. . . . . . . . . . . . . . . . . 12
Section 8.1. Termination . . . . . . . . . . . . . 12
ARTICLE IX. MISCELLANEOUS. . . . . . . . . . . . . . . . 12
Section 9.1. Successors and Assigns. . . . . . . . 12
Section 9.2. Amendments. . . . . . . . . . . . . . 12
Section 9.3. Notices . . . . . . . . . . . . . . . 12
Section 9.4. Benefit . . . . . . . . . . . . . . . 13
Section 9.5. Interpretation. . . . . . . . . . . . 13
Section 9.6. Governing Law . . . . . . . . . . . . 14
TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT
This TRUST PREFERRED SECURITIES GUARANTEE AGREEMENT (the
"Guarantee Agreement"), dated as of November 20, 1998, is
executed and delivered by WSFS FINANCIAL CORPORATION, a Delaware
corporation (the "Guarantor") having its principal office at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and WILMINGTON TRUST
COMPANY, a Delaware banking corporation, as trustee (the
"Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Trust Preferred Securities (as
defined herein) of WSFS Capital Trust I, a Delaware statutory
business trust (the "Trust").
WHEREAS, pursuant to an Amended and Restated Trust
Agreement, dated as of November 20, 1998 (the "Trust
Agreement"), among the Guarantor, as Depositor, Wilmington Trust
Company, as Property Trustee, Wilmington Trust Company, as
Delaware Trustee, the Administrative Trustees named therein and
the Holders from time to time of undivided beneficial interests
in the assets of the Trust, the Trust issued $50,000,000
aggregate Liquidation Amount (as defined in the Trust Agreement)
of its Floating Rate Cumulative Trust Preferred Securities,
Liquidation Amount $1,000 per Preferred Security (the "Trust
Preferred Securities"), representing preferred undivided
beneficial interests in the assets of the Trust and having the
terms set forth in the Trust
Agreement;
WHEREAS, the Trust Preferred Securities will be issued by
the Trust and the proceeds thereof, together with the proceeds
from the issuance of the Trust's Common Securities (as defined
below), will be used to purchase the Debentures (as defined in
the Trust Agreement) of the Guarantor which will be deposited
with Wilmington Trust Company, as Property Trustee under the
Trust Agreement, as trust assets;
WHEREAS, as an incentive for the Holders to purchase the
Trust Preferred Securities, the Guarantor desires irrevocably
and unconditionally to agree, to the extent set forth herein, to
pay to the Holders of the Trust Preferred Securities the
Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each
Holder of Trust Preferred Securities, which purchase the
Guarantor hereby agrees shall benefit the Guarantor, the
Guarantor executes and delivers this Guarantee Agreement and,
pursuant to Section 5.1 hereof, extends the Guarantee for the
benefit of the Holders from time to time of the Trust Preferred
Securities.
ARTICLE I. DEFINITIONS
SECTION 1.1. DEFINITIONS.
As used in this Guarantee Agreement, the terms set forth
below shall, unless the context otherwise requires, have the
following meanings. Capitalized or otherwise defined terms used
but not otherwise defined herein shall have the meanings
assigned to such terms in the Trust Agreement and the Indenture
(as defined herein), each as in effect on the date hereof.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person;
provided, however, that an Affiliate of the Guarantor shall not
be deemed to include the Trust. For the purposes of this
definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Board of Directors" means either the board of directors
of the Guarantor or any committee of that board duly authorized
to act hereunder.
1
"Common Securities" means the securities representing
common undivided beneficial interests in the assets of the
Trust.
"Common Stock" shall mean the common stock of the
Guarantor, par value of .01 per share, of the Company.
"Event of Default" means a default by the Guarantor on any
of its payment or other obligations under this Guarantee
Agreement; provided, however, that, except with respect to a
default in payment of any Guarantee Payments, the Guarantor
shall have received written notice of default and shall not have
cured such default within 60 days after receipt of such notice.
"Guarantee" has the meaning set forth in Section 5.1.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Trust
Preferred Securities, to the extent not paid or made by or on
behalf of the Trust: (i) any accumulated and unpaid
Distributions (as defined in the Trust Agreement) required to be
paid on the Trust Preferred Securities, to the extent the Trust
shall have funds on hand available therefor at such time, (ii)
the applicable Redemption Price (as defined in the Trust
Agreement with respect to the Trust Preferred Securities called
for redemption by the Trust), to the extent the Trust shall have
funds on hand available therefor at such time, and (iii) upon a
voluntary or involuntary termination, winding up or liquidation
of the Trust, unless Debentures are distributed to the Holders,
the lesser of (a) the aggregate of the Liquidation Distribution
(as defined in the Trust Agreement) and (b) the amount of assets
of the Trust remaining available for distribution to Holders of
Trust Preferred Securities after satisfaction of liabilities to
creditors of the Trust as required by applicable law.
"Guarantee Trustee" means Wilmington Trust Company, until
a Successor Guarantee Trustee has been appointed and has
accepted such appointment pursuant to the terms of this
Guarantee Agreement, and thereafter means each such Successor
Guarantee Trustee.
"Holder" means any holder, as registered on the books and
records of the Trust, of any Trust Preferred Securities;
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, the Guarantee Trustee,
or any Affiliate of the Guarantor or the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture, dated
as of November 20, 1998, as supplemented and amended between the
Guarantor and Wilmington Trust Company, as trustee.
"List of Holders" has the meaning specified in Section
2.2(a).
"Majority in Liquidation Amount of the Trust Preferred
Securities" means, except as provided by the Trust Indenture
Act, a vote by the Holder(s), voting separately as a class, of
more than 50% of the Liquidation Amount of all then outstanding
Trust Preferred Securities issued by the Trust.
"Officers' Certificate" means, with respect to any Person,
a certificate signed by (i) the Chairman or a Vice Chairman of
the Board of Directors of such Person or the Chief Executive
Officer, President or a Vice President of such Person, and by
(ii) the Chief Financial Officer, Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of such
Person, and delivered to the Guarantee Trustee. Any Officers'
Certificate delivered with respect to compliance with a
condition or covenant provided for in this Guarantee Agreement
shall include:
(a) a statement that each such officer
signing the Officers' Certificate has read the
covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and
scope of the examination or investigation undertaken
by each officer in rendering the Officers'
Certificate;
2
(c) a statement that each such officer has
made such examination or investigation as, in such
officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether
or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the
opinion of each officer, such condition or covenant
has been complied with.
"Other Guarantees" means any guarantees similar to the
Guarantee issued, from time to time, by the Guarantor on behalf
of holders of one or more series of Trust Preferred Securities
issued by one or more WSFS Trusts (as defined in the Indenture)
other than the Trust.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association,
joint stock company, limited liability company, trust,
unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
"Responsible Officer" means, with respect to the Guarantee
Trustee, any officer of the Corporate Trust Department of the
Guarantee Trustee 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 Act" means the Securities Act of 1933, as
amended.
"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.
ARTICLE II. TRUST INDENTURE ACT
SECTION 2.1. TRUST INDENTURE ACT; APPLICATION.
(a) This Guarantee Agreement is subject to the
provisions of the Trust Indenture Act that are required to be
part of this Guarantee Agreement and shall, to the extent
applicable, be governed by such provisions.
(b) If and to the extent that any provision of this
Guarantee Agreement 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. LIST OF HOLDERS.
(a) The Guarantor shall furnish or cause to be furnished
to the Guarantee Trustee a list, in such form as the Guarantee
Trustee may reasonably require, of the names and addresses of
the Holders ("List of Holders") (a) as of the record date for
the payment of Distributions (as defined in the Trust Agreement)
not more than 15 days after such record date, and (b) at such
other times as the Guarantee Trustee may request in writing,
within 30 days after the receipt by the Guarantor of any such
request, a List of Holders as of a date not more than 15 days
prior to the time such list is furnished, in each case to the
extent such information is in the possession or control of the
Guarantor and is not identical to a previously supplied list of
Holders or has not otherwise been received by the Guarantee
Trustee in its capacity as such. 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 Section 311(a), Section 311(b) and Section
312(b) of the Trust Indenture Act.
3
SECTION 2.3. REPORTS BY THE GUARANTEE TRUSTEE.
Not later than December 31 of each year, commencing
December 31, 1998, the Guarantee Trustee shall provide to the
Holders 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 THE GUARANTEE TRUSTEE.
The Guarantor shall provide to the Guarantee Trustee, the
Securities and Exchange Commission and the Holders such
documents, reports and information, if any, as required by
Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act,
in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act.
SECTION 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Guarantor shall provide to the Guarantee Trustee, on
an annual basis, such evidence of compliance with such
conditions precedent, if any, provided for in this Guarantee
Agreement 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. EVENTS OF DEFAULT; WAIVER.
The Holders of a Majority in Liquidation Amount of the
Trust Preferred Securities may, by vote, on behalf of the
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 Guarantee
Agreement, but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent
therefrom.
SECTION 2.7. EVENT OF DEFAULT; NOTICE.
(a) The Guarantee Trustee shall, within 90 days after
the occurrence of an Event of Default, transmit by mail, first
class postage prepaid, to the Holders, notices of all Events of
Default known to the Guarantee Trustee, unless such defaults
have been cured before the giving of such notice, provided,
that, except in the case of a default in the payment of a
Guarantee Payment, the 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 Responsible Officers of the Guarantee Trustee
in good faith determines that the withholding of such notice is
in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless the Guarantee Trustee
shall have received written notice, or a Responsible Officer
charged with the administration of this Guarantee Agreement
shall have obtained written notice, of such Event of Default.
SECTION 2.8. CONFLICTING INTERESTS.
The Trust Agreement shall be deemed to be specifically
described in this Guarantee Agreement for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the
Trust Indenture Act.
4
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. POWERS AND DUTIES OF THE GUARANTEE TRUSTEE.
(a) This Guarantee shall be held by the Guarantee
Trustee for the benefit of the Holders, and the Guarantee
Trustee shall not transfer this Guarantee to any Person except
to a Holder exercising his or her rights pursuant to Section
5.4(iv) or to a Successor Guarantee Trustee on acceptance by
such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of
the Guarantee Trustee shall automatically vest in any Successor
Guarantee Trustee, upon acceptance by such Successor Guarantee
Trustee of its appointment hereunder, and such vesting and
cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is
continuing, the Guarantee Trustee shall enforce this Guarantee
for the benefit of the Holders.
(c) The 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 Guarantee
Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Guarantee Trustee. In case an
Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6), the Guarantee Trustee shall exercise
such of the rights and powers vested in it by this Guarantee
Agreement, 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 Agreement shall be
construed to relieve the Guarantee Trustee from liability for
its own negligent action, its own negligent failure to act or
its own willful misconduct, except that:
(i) prior to the occurrence of any Event of
Default and after the curing or waiving of all such 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 Agreement, 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
Agreement; 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 Agreement; but in the
case of any such certificates or opinions that by
any provision hereof or of the Trust Indenture Act
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 Agreement;
(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 Trust Preferred Securities relating to the
time, method and place of conducting any proceeding for
any remedy available to the Guarantee Trustee, or
exercising any trust or power conferred upon the Guarantee
Trustee under this Guarantee Agreement; and
5
(iv) no provision of this Guarantee Agreement
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 liability is not reasonably
assured to it under the terms of this Guarantee Agreement
or adequate indemnity against such risk or liability is
not reasonably assured to it.
Section 3.2. CERTAIN RIGHTS OF GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be
fully protected in acting or refraining from acting upon
any resolution, certificate, statement, proxy, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document reasonably
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 Agreement shall be
sufficiently evidenced by an Officers' Certificate unless
otherwise prescribed herein.
(iii) Whenever, in the administration of this
Guarantee Agreement, the Guarantee Trustee shall deem it
desirable that a matter be proved or established before
taking, suffering or omitting to take 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 rely upon an Officers'
Certificate which, upon receipt of such request from the
Guarantee Trustee, shall be promptly delivered by the
Guarantor.
(iv) The Guarantee Trustee may consult with legal
counsel, and the written advice or opinion of such legal
counsel with respect to legal matters shall be full and
complete authorization and protection in respect of any
action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice
or opinion. Such legal counsel may be legal counsel to the
Guarantor or any of its Affiliates and may be one of its
employees. The Guarantee Trustee shall have the right at
any time to seek instructions concerning the
administration of this Guarantee Agreement from any court
of competent jurisdiction.
(v) The Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested
in it by this Guarantee Agreement at the request or
direction of any Holder, unless such Holder shall have
provided to the Guarantee Trustee such adequate security
and indemnity as would satisfy a reasonable person in the
position of the Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses) 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)(v)
shall be taken to relieve the Guarantee Trustee, upon the
occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this
Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee
Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see
fit.
(vii) The Guarantee Trustee may execute any of
the trusts or powers hereunder or perform any duties
hereunder either directly or by or through its agents or
attorneys, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part
of any such agent or attorney appointed with due care by
it hereunder.
6
(viii) Whenever in the administration of this
Guarantee Agreement the Guarantee Trustee shall deem it
desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action
hereunder, the Guarantee Trustee (A) may request
instructions from the Holders of a Majority in Liquidation
Amount of the Trust Preferred Securities, (B) may refrain
from enforcing such remedy or right or taking such other
action until such instructions are received, and (C) shall
be protected in acting in accordance with such
instructions.
(b) No provision of this Guarantee Agreement shall be
deemed to impose any duty or obligation on the Guarantee Trustee
to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in
which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts or to exercise
any such right, power, duty or obligation. No permissive power
or authority available to the Guarantee Trustee shall be
construed to be a duty to act in accordance with such power and
authority.
SECTION 3.3. INDEMNITY.
The Guarantor agrees to indemnify each of the Guarantee
Trustee and any predecessor Guarantee Trustee for, and to hold
it harmless against, any and all loss, damage, claim, liability
or expense incurred without negligence or bad faith on the part
of the Guarantee Trustee, arising out of or in connection with
the acceptance or administration of this Guarantee Agreement,
including the reasonable costs and expenses of defending itself
against any claim (whether asserted by the Guarantor, a Holder
or any other Person), 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 3.3 shall survive the termination of this Guarantee
Agreement or the earlier resignation or removal of the Guarantee
Trustee.
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 that is eligible pursuant to the
Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000, and shall be
a corporation meeting the requirements of Section 310(a)
of the Trust Indenture Act. If such corporation publishes
reports of condition at least annually, pursuant to law or
to the requirements of the supervising or examining
authority, then, for the purposes of this Section
4.1(a)(ii) and to the extent permitted by the Trust
Indenture Act, 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 THE
GUARANTEE TRUSTEE.
(a) Subject to Section 4.2(b), the Guarantee Trustee may
be appointed or removed without cause at any time by the
Guarantor.
7
(b) The Guarantee Trustee shall not be removed 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 hereunder shall hold
office until a Successor Guarantee Trustee shall have been
appointed or until its removal or resignation. The Guarantee
Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing executed by
the Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by
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 resignation, the Guarantee Trustee resigning or
being removed 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.
ARTICLE V. GUARANTEE
SECTION 5.1. GUARANTEE.
The Guarantor irrevocably and unconditionally agrees to
pay in full on a subordinated basis to the Holders the Guarantee
Payments (without duplication of amounts theretofore paid by or
on behalf of the Trust), as and when due, regardless of any
defense, right of set-off or counterclaim which the Trust may
have or assert other than the defense of payment (the
"Guarantee"). 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 such Holders.
SECTION 5.2. WAIVER OF NOTICE AND DEMAND.
The Guarantor hereby waives notice of acceptance of the
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 Guarantee Trustee, 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 Agreement 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 Trust of any
express or implied agreement, covenant, term or condition
relating to the Trust Preferred 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 (other than an
extension of time for payment of Distributions that results from
the extension of any interest payment period on the Debentures
as provided in the Indenture), Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the
Trust Preferred Securities or the extension of time for the
performance of any other obligation under, arising out of, or in
connection with, the Trust Preferred Securities;
8
(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 Trust Preferred 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
Trust Preferred 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 Holders or the Guarantee
Trustee to give notice to, or obtain the consent of, the
Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4. RIGHTS OF HOLDERS.
The Guarantor expressly acknowledges that: (i) this
Guarantee Agreement will be deposited with the Guarantee Trustee
to be held for the benefit of the Holders; (ii) the Guarantee
Trustee has the right to enforce this Guarantee on behalf of the
Holders; (iii) the Holders of a Majority in Liquidation Amount
of the Trust Preferred 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 Agreement or to direct the exercise of any trust or
power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) any Holder may institute a legal proceeding
directly against the Guarantor to enforce its rights under this
Guarantee Agreement, without first instituting a legal
proceeding against the Guarantee Trustee, the Trust or any other
Person.
SECTION 5.5. GUARANTEE OF PAYMENT.
This Guarantee Agreement creates a guarantee of payment
and not of collection. The obligations under this Guarantee
Agreement will not be discharged except by payment of the
Guarantee Payments in full (without duplication of amounts
theretofore paid by the Trust) or upon distribution of
Debentures to Holders as provided in the Trust Agreement.
SECTION 5.6. SUBROGATION.
The Guarantor shall be subrogated to all (if any) rights
of the Holders against the Trust in respect of any amounts paid
to the Holders by the Guarantor under this Guarantee Agreement
and shall have the right to waive payment by the Trust pursuant
to Section 5.1; provided, however, that the Guarantor shall not
(except to the extent required by mandatory provisions of law)
be entitled to enforce or exercise any rights which 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 Agreement, if, at the time of any such payment, any
amounts are due and unpaid under this Guarantee Agreement. 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.
SECTION 5.7. INDEPENDENT OBLIGATIONS.
The Guarantor acknowledges that its obligations hereunder
are independent of the obligations of the Trust with respect to
the Trust Preferred Securities and that the Guarantor shall be
liable as principal and as debtor hereunder to
9
make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred
to in subsections (a) through (g), inclusive, of Section 5.3
hereof.
ARTICLE VI. SUBORDINATION AND COVENANTS
SECTION 6.1. SUBORDINATION.
The obligations of the Guarantor under this Guarantee will
constitute unsecured obligations of the Guarantor and will rank
subordinate and junior in right of payment to all Senior and
Subordinated Debt (as defined in the Indenture) in the same
manner as Debentures (as defined in the Trust Agreement).
SECTION 6.2. PARI PASSU GUARANTEES.
The obligations of the Guarantor under this Guarantee
shall rank pari passu with the obligations of the Guarantor
under all Other Guarantees.
SECTION 6.3 COVENANTS OF THE GUARANTOR
(1) Guarantor covenants and agrees that if and so long as
(i) the Trust is the holder of all the Junior Subordinated
Debentures, (ii) a Tax Event (as defined in the Trust Agreement)
in respect of the Issuer has occurred and is continuing and
(iii) the Guarantor has elected, and has not revoked such
election, to pay Additional Sums (as defined in the Trust
Agreement) in respect of the Trust Preferred Securities and
Common Securities, the Guarantor, subject to Sections 6.1 and
6.2, will pay to the Trust such Additional Sums.
(2) The Guarantor covenants and agrees with each Holder of
any series that it shall not, and it shall not permit any
Subsidiary (as defined in the Indenture) of the Guarantor to,
(a) declare or pay any dividends or distributions on, or redeem
purchase, acquire or make a liquidation payment with respect to,
any shares of the Guarantor capital stock (which includes common
and preferred stock), or (b) make any payment or principal of or
interest or premium, if any, on or repay, repurchase or redeem
any debt securities of the Guarantor (including securities other
than the securities of such series) that rank pari passu in all
respects with or junior in interest to the securities of such
series or make any guarantee payments with respect to any
guarantee by the Guarantor of debt securities of any subsidiary
of the Company if such guarantee ranks pari passu in all
respects with or junior in interest to the securities (other
than (a) dividends or distributions in capital stock of the
Guarantor (which includes common and preferred stock), (b) any
declaration of a dividend in connection with the implementation
of a Rights Plan (as identified in the Indenture), the issuance
of any rights, or any Common Stock of any class or series of
preferred stock of the Guarantor under Rights Plan or the
redemption or repurchase of any such rights as defined in the
Indenture pursuant thereto, (c) payments under the WSFS
Guarantee (as defined in the Indenture) related to the Trust
Preferred Securities issued by the WSFS Trust (as defined in the
Indenture) holding securities of such series, and (d) purchases
of common stock related to the issuance of Common Stock or
rights under any of the Guarantor benefit plans for its
directors, officers or employees or related to the issuance of
Common Stock (or securities convertible into or exchangeable for
common stock) if at such time (i) there shall have occurred any
event of which the Guarantor has actual knowledge that (A) with
the giving of notice or the lapse of time or both, would
constitute an Event of Default with respect to the securities of
such series and (B) in respect of which the Guarantor shall not
have taken reasonable steps to cure (ii) if the securities of
such series are held by a WSFS Trust, the Guarantor shall be in
default with respect to its payment of any obligation under the
WSFS Guarantee relating to the Trust Preferred Securities issued
by such WSFS Trust or (iii) the Guarantor shall have given
notice of its election to begin an Extension Period (as defined
in the Indenture) with respect to the securities of such series
as provided herein and shall not have rescinded such notice, or
such Extension Period, or any extension thereof, shall be
continuing.
(3) The Company also covenants with each Holder of a
series issued to a WSFS Trust (i) to maintain directly or
indirectly 100% ownership of the Common Securities of such WSFS
Trust; provided, however, that any
10
permitted successor of the Guarantor hereunder may succeed to
the Guarantor's ownership of such Common Securities, (ii) not
to voluntarily terminate, wind-up or liquidate such WSFS Trust,
except (a) in connection with a distribution of the securities
of such series to the holders of Trust Preferred Securities in
liquidation of such WSFS Trust or (b) in connection with certain
mergers, consolidations or amalgamations permitted by the
related Trust Agreement and (iii) to use its reasonable efforts,
consistent with the terms and provisions of such Trust
Agreement, to cause such WSFS Trust to remain classified as a
grantor trust and not an association taxable as a corporation
for United States federal income tax purposes.
ARTICLE VII. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR
LEASE
SECTION 7.1. GUARANTOR MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS.
The Guarantor shall not consolidate with or merge into any
other Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, and no Person
shall consolidate with or merge into the Guarantor or convey,
transfer or lease its properties and assets substantially as an
entirety to the Guarantor, unless:
(1) in case the Guarantor shall consolidate with or
merge into another Person or convey, transfer or lease its
properties and assets substantially as an entirety to any
Person, the Person formed by such consolidation or into which
the Guarantor is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and
assets of the Guarantor substantially as an entirety shall be a
corporation, partnership or trust organized and existing under
the laws of the United States of America or any State or the
District of Columbia, and shall expressly assume the Guarantor's
obligations under this Guarantee;
(2) immediately after giving effect thereto, no Event of
Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and
be continuing;
(3) such consolidation, merger, conveyance, transfer or
lease is permitted under the Trust Agreement and the Indenture
and does not give rise to any breach or violation of the Trust
Agreement or the Indenture; and
(4) the Guarantor has delivered to the Guarantee Trustee
an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease
and assumption of the Guarantor's obligations under this
Guarantee Agreement comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with; and the Guarantee Trustee,
subject to Section 3.1 hereof, may rely upon such Officers'
Certificate and Opinion of Counsel as conclusive evidence that
such transaction complies with this Section 7.1.
SECTION 7.2. SUCCESSOR GUARANTOR SUBSTITUTED.
Upon any consolidation or merger by the Guarantor with or
into any other Person, or any conveyance, transfer or lease by
the Guarantor of its properties and assets substantially as an
entirety to any Person in accordance with Section 7.1, the
successor Person formed by such consolidation or into which the
Guarantor is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Guarantor under this
Guarantee Agreement with the same effect as if such successor
Person had been named as the Guarantor herein; and in the event
of any such conveyance, transfer or lease the Guarantor shall be
discharged from all obligations and covenants under this
Guarantee Agreement.
11
ARTICLE VIII. TERMINATION
Section 8.1. Termination.
This Guarantee Agreement shall terminate and be of no
further force and effect upon the earliest of (i) full payment
of the applicable Redemption Price of all Trust Preferred
Securities, (ii) the distribution of Debentures to the Holders
in exchange for all of the Trust Preferred Securities or (iii)
full payment of the amounts payable in accordance with the Trust
Agreement upon liquidation of the Trust. Notwithstanding the
foregoing clauses (i) through (iii), this Guarantee Agreement
will continue to be effective or will be reinstated if it has
been terminated pursuant to one of such clauses (i) through
(iii), as the case may be, if at any time any Holder must
restore payment of any sums paid with respect to Trust Preferred
Securities or this Guarantee Agreement.
ARTICLE IX. MISCELLANEOUS
SECTION 9.1. SUCCESSORS AND ASSIGNS.
All guarantees and agreements contained in this Guarantee
Agreement shall bind the successors, assigns, receivers,
trustees and representatives of the Guarantor and shall inure to
the benefit of the Holders of the Trust Preferred Securities
then outstanding. Except in connection with a consolidation,
merger or sale involving the Guarantor that is permitted under
Article VII hereof and Article VIII of the Indenture, the
Guarantor shall not assign its obligations hereunder.
SECTION 9.2. AMENDMENTS.
Except with respect to any changes which do not adversely
affect the rights of the Holders in any material respect (in
which case no consent will be required), this Guarantee
Agreement may not be amended without the prior approval of the
Holders of not less than a Majority in Liquidation Amount of the
Trust Preferred Securities. The provisions of Article VI of the
Trust Agreement concerning meetings of the Holders shall apply
to the giving of such approval.
SECTION 9.3. NOTICES.
Any notice, request or other communication required or
permitted to be given hereunder shall be in writing, duly signed
by the party giving such notice, and delivered, telecopied or
mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth
below or such other address, facsimile number or to the
attention of such other Person as the Guarantor may give notice
to the Holders:
WSFS Financial Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
(b) if given to the Trust, in care of the Guarantee
Trustee, at the Trust's (and the Guarantee Trustee's) address
set forth below or such other address as the Guarantee Trustee
on behalf of the Trust may give notice to the Holders:
12
WSFS Capital Trust I
c/o WSFS Financial Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President
with a copy to:
Wilmington Trust Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
(c) if given to any Holder, at the address set forth on
the books and records of the Trust.
All notices hereunder shall be deemed to have been given
when received in person, telecopied with receipt confirmed, or
mailed by first class mail, postage prepaid, except that if a
notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have
been delivered on the date of such refusal or inability to
deliver.
SECTION 9.4. BENEFIT.
This Guarantee is solely for the benefit of the Holders
and is not separately transferable from the Trust Preferred
Securities.
SECTION 9.5. INTERPRETATION.
In this Guarantee Agreement, unless the context otherwise
requires:
(a) capitalized terms used in this Guarantee Agreement
but not defined in the preamble hereto have the respective
meanings assigned to them in Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement
has the same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as
modified, supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to
Articles and Sections are to Articles and Sections of this
Guarantee Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the
same meaning when used in this Guarantee Agreement unless
otherwise defined in this Guarantee Agreement or unless the
context otherwise requires;
(f) a reference to the singular includes the plural and
vice versa; and
(g) the masculine, feminine or neuter genders used
herein shall include the masculine, feminine and neuter genders.
13
SECTION 9.6. GOVERNING LAW.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW
PRINCIPLES THEREOF.
14
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute
but one and the same instrument.
THIS GUARANTEE AGREEMENT is executed as of the day and
year first above written.
WSFS FINANCIAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
___________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chairman and President
WILMINGTON TRUST COMPANY,
as Guarantee Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
___________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President