exv4w7



 







Exhibit 4.7



 




COMMON SECURITIES GUARANTEE AGREEMENT




SOVEREIGN BANCORP, INC.




Dated as of May 22, 2006



 




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	 
	ARTICLE I DEFINITIONS AND INTERPRETATION
	 	 	2	 
	 
	 	 	 	 
	SECTION 1.1. Interpretation
	 	 	2	 
	SECTION 1.2. Definitions
	 	 	3	 
	 
	 	 	 	 
	ARTICLE II GUARANTEE
	 	 	3	 
	 
	 	 	 	 
	SECTION 2.1. Guarantee
	 	 	3	 
	SECTION 2.2. Waiver of Notice and Demand
	 	 	4	 
	SECTION 2.3. Obligations Not Affected
	 	 	4	 
	SECTION 2.4. Rights of Holders
	 	 	5	 
	SECTION 2.5. Guarantee of Payment
	 	 	5	 
	SECTION 2.6. Subrogation
	 	 	5	 
	SECTION 2.7. Independent Obligations
	 	 	5	 
	 
	 	 	 	 
	ARTICLE III LIMITATION OF TRANSACTIONS; SUBORDINATION
	 	 	5	 
	 
	 	 	 	 
	SECTION 3.1. Limitation of Transactions
	 	 	5	 
	SECTION 3.2. Ranking
	 	 	7	 
	 
	 	 	 	 
	ARTICLE IV TERMINATION
	 	 	8	 
	 
	 	 	 	 
	SECTION 4.1. Termination
	 	 	8	 
	 
	 	 	 	 
	ARTICLE V MISCELLANEOUS
	 	 	8	 
	 
	 	 	 	 
	SECTION 5.1. Successors and Assigns
	 	 	8	 
	SECTION 5.2. Amendments
	 	 	8	 
	SECTION 5.3. Notices
	 	 	8	 
	SECTION 5.4. Benefit
	 	 	9	 
	SECTION 5.5. Governing Law
	 	 	9	 






 (i)




 









 





COMMON SECURITIES GUARANTEE AGREEMENT




          This GUARANTEE AGREEMENT (the “Common Securities Guarantee”), dated as of May 22, 2006, is
executed and delivered by Sovereign Bancorp, Inc., a Pennsylvania corporation (the “Guarantor”),
for the benefit of the Holders (as defined herein) from time to time of the Common Securities (as
defined herein) of Sovereign Capital Trust V, a Delaware statutory trust (the “Issuer”).




          WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the “Trust Agreement”),
dated as of May 22, 2006, among the Trustees of the Issuer named therein, 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 up to 240,000 common securities designated the 7.75%
Common Securities (the “Common Securities”), having an aggregate stated liquidation amount of
$25.00;




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




          WHEREAS, the Guarantor is also executing and delivering a guarantee agreement (the “Capital
Securities Guarantee”) for the benefit of the holders of the Capital Securities (as defined in the
Trust Agreement), with terms similar to this Common Securities Guarantee, except that if an Event
of Default (as defined in the Trust Agreement) has occurred and is continuing, the rights of
Holders to receive Guarantee Payments under this Common Securities Guarantee are subordinated to
the rights of holders of Capital Securities to receive guarantee payments under the Capital
Securities Guarantee.




          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 Common
Securities Guarantee for the benefit of the Holders.




ARTICLE I

DEFINITIONS AND INTERPRETATION




     SECTION 1.1. Interpretation



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




          (a) Capitalized terms used in this Common Securities Guarantee but not defined in the preamble
above have the respective meanings assigned to them in Section 1.2;




          (b) Terms defined in the Trust Agreement as at the date of execution of this Common Securities
Guarantee have the same meaning when used in this Common Securities Guarantee unless otherwise
defined in this Common Securities Guarantee;




          (c) a term defined anywhere in this Common Securities Guarantee has the same meaning
throughout;




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          (d) all references to “the Common Securities Guarantee” or “this Common Securities Guarantee”
are to this Common Securities Guarantee as modified, supplemented or amended from time to time;




          (e) all references in this Common Securities Guarantee to Articles and Sections are to
Articles and Sections of this Common Securities Guarantee unless otherwise specified; and




          (f) a reference to the singular includes the plural and vice versa.




     SECTION 1.2. Definitions



          (a) “Guarantee Payments” means the following payments or distributions, without duplication,
with respect to the Common Securities, to the extent not paid or made by the Issuer: (i) any
accrued and unpaid Distributions that are required to be paid on such Common Securities to the
extent the Issuer has funds available therefor at such time, (ii) the redemption price, including
all accrued and unpaid Distributions to the date of redemption (the “Redemption Price”) to the
extent the Issuer has funds on hand legally available therefor at such time, with respect to any
Common Securities called for redemption by the Issuer, and (iii) upon a voluntary or involuntary
dissolution, winding up or termination of the Issuer (other than in connection with the
distribution of Notes to the Issuer in exchange for Common Securities as provided in the Trust
Agreement), the lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid
Distributions on the Common Securities to the date of payment, to the extent the Issuer has funds
available therefor, and (b) the amount of assets of the Issuer remaining available for distribution
to Holders in liquidation of the Issuer (in either case, the “Liquidation Distribution”). If an
Event of Default has occurred and is continuing, no Guarantee Payments with respect to the Common
Securities shall be made until holders of Capital Securities shall be paid in full the guarantee
payments to which they are entitled under the Capital Securities Guarantee.




          (b) “Holder” means any holder, as registered on the books and records of the Issuer, of any
Common Securities.




          (c) “Other Guarantees” means all guarantees to be issued by the Guarantor with respect to
common securities (if any) similar to the Common Securities issued by any other trust, partnership
or other entity affiliated with the Guarantor that is a financing vehicle of the Guarantor (if
any), in each case similar to the Issuer.




          (d) “Fourth Supplemental Indenture” means the Fourth Supplemental Indenture dated as of May
22, 2006 between Sovereign Bancorp, Inc. and BNY Midwest Trust Company.




ARTICLE II

GUARANTEE




     SECTION 2.1. 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





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when due, regardless of any defense, right of set-off or counterclaim which 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 2.2. Waiver of Notice and Demand



          The Guarantor hereby waives notice of acceptance of this Common 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 2.3. Obligations Not Affected



          The obligations, covenants, agreements and duties of the Guarantor under this Common
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
Common 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 or any other sums payable under the terms
of the Common Securities or the extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Common 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 Notes 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 Common 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;




          (e) any invalidity of, or defect or deficiency in, the Common 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 2.3 that the




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obligations of the Guarantor with respect to the Guarantee Payments shall be absolute and
unconditional under any and all circumstances.



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




     SECTION 2.4. Rights of Holders



          The Guarantor expressly acknowledges that any Holder may institute a legal proceeding directly
against the Guarantor to enforce its rights under this Common Securities Guarantee, without first
instituting a legal proceeding against the Issuer or any other Person.




     SECTION 2.5. Guarantee of Payment



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




     SECTION 2.6. 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 Common 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 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 Common Securities Guarantee, if, at the time of any such payment, any
amounts are due and unpaid under this Common 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.




     SECTION 2.7. Independent Obligations



          The Guarantor acknowledges that its obligations hereunder are independent of the obligations
of the Issuer with respect to the Common Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the terms of this Common
Securities Guarantee notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 2.3 hereof.




ARTICLE III

LIMITATION OF TRANSACTIONS; SUBORDINATION




     SECTION 3.1. Limitation of Transactions



          (a) If (1) the Guarantor has exercised its right to defer payments of interest on the Notes or
(2) the Notes are held by the Trust and remain outstanding and either (a) there shall have occurred
and be continuing an Event of Default under the Indenture, or any payment default on the Notes, or
(b) the Guarantor shall be in default relating to its payment of any obligations under this Common
Securities Guarantee or the Capital Securities Guarantee, then the Guarantor shall not:




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          (i) declare or pay any dividend on, make any distributions with respect to, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any shares of the
Guarantor’s capital stock or make any guarantee payment with respect to the foregoing; or




          (ii) make any payment of interest, principal, or premium, if any, on or repay,
repurchase, or redeem any debt securities (including guarantees) issued by the Guarantor
that rank equally with or junior to the Notes;



          other than:





          (A) purchases by the Guarantor of its capital stock required in connection with
employee, director or agent benefit plans or under any dividend reinvestment or
stock purchase plan;




          (B) in connection with the Guarantor’s reclassification of any class or series
of the Guarantor’s capital stock, or the Guarantor’s exchange or conversion of one
class or series of the Guarantor’s capital stock for or into another class or series
of the Guarantor’s capital stock;




          (C) the Guarantor’s payment of any dividend within 60 days after the date of
declaration of the dividend if, at the date of declaration, (a) payment of the
dividend would not have been prohibited by an election to defer interest payments
and (b) the declaration was in accordance with the Guarantor’s dividend policy in
effect immediately prior to the declaration of the dividend;




          (D) the Guarantor’s purchase of fractional interests in shares of its capital
stock in connection with the conversion or exchange provisions of that capital stock
or the security being converted or exchanged;




          (E) dividends or distributions payable in the capital stock of the Guarantor,
or options, warrants or rights to acquire capital stock of the Guarantor, or
repurchases or redemptions of capital stock of the Guarantor solely from the
issuance or exchange of capital stock of the Guarantor;




          (F) payments under this Common Securities Guarantee and the Capital Securities
Guarantee;




          (G) any declaration of a dividend by the Guarantor in connection with the
implementation of a shareholders’ rights plan, or issuances of stock under any such
plan in the future, or redemptions or repurchases of any such rights pursuant to any
such shareholders’ rights plan; or




          (H) repurchases by the Guarantor of its common stock in connection with the
Guarantor’s acquisitions of businesses or any of the Guarantor’s subsidiaries (which
repurchases are made in connection with the satisfaction of indemnification
obligations of the sellers of such businesses).



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          (b) In addition, so long as the Capital Securities remain outstanding, the Guarantor shall:





          (i) maintain 100% direct or indirect ownership of the Common Securities, unless a
permitted successor of the Guarantor succeeds to its ownership of the Common Securities;




          (ii) use its reasonable efforts to cause the Trust to:




          (A) remain a statutory trust, except in connection with the distribution of the
Notes to the Holders of the Capital Securities and the Common Securities in
liquidation of the Trust, the redemption of all of the Capital Securities and the
Common Securities of the Trust, or certain mergers, consolidations, or
amalgamations, each as permitted by the Trust Agreement;




          (B) ensure that the Trust will not be an “investment company” required to be
registered under the Investment Company Act of 1940, as amended; and




          (C) otherwise continue not to be treated as an association taxable as a
corporation or partnership for United States federal income tax purposes; and




          (iii) use its reasonable efforts to cause each Holder of the Capital Securities and the
Common Securities to be treated as owning an undivided beneficial interest in the
corresponding Notes.



     SECTION 3.2. Ranking



          This Common Securities Guarantee will constitute an unsecured obligation of the Guarantor and
will rank (i) subordinate and junior in right of payment to the Senior Indebtedness (as defined in
the Fourth Supplemental Indenture), to the same extent and in the same manner that the Notes are
subordinated to Senior Indebtedness pursuant to the Fourth Supplemental Indenture (except as
indicated below), it being understood that the terms of Article Six of the Fourth Supplemental
Indenture shall apply to the obligations of the Guarantor under this Common Securities Guarantee as
if (x) such Article Six was set forth herein in full and (y) such obligations were substituted for
the term “Notes” appearing in such Article Six, except that with respect to Section 6.1 of the
Fourth Supplemental Indenture only, the term “Senior Indebtedness” shall mean all liabilities of
the Guarantor, whether or not for money borrowed (other than obligations in respect of Other
Guarantees), (ii) pari passu with any other junior subordinated obligations now outstanding or
hereafter issued by the Guarantor and with any Other Guarantee and any guarantee now outstanding or
hereafter entered into by the Guarantor in respect of any preferred securities (including trust
preferred securities) of any Affiliate of the Guarantor, (iii) pari passu with the Capital
Securities Guarantee, except that if an Event of Default (as defined in the Trust Agreement) has
occurred and is continuing, the rights of Holders to receive Guarantee Payments under this Common
Securities Guarantee shall be subordinated to the rights of holders of the Capital Securities to
receive guarantee payments under the Capital Securities Guarantee, and (iv) senior to the
Guarantor’s capital stock.




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ARTICLE IV

TERMINATION




     SECTION 4.1. Termination



          This Common Securities Guarantee shall terminate (i) upon full payment of the Redemption Price
of all Common Securities, (ii) upon the distribution of the Notes to all the Holders or (iii) upon
full payment of the amounts payable in accordance with the Trust Agreement upon liquidation of the
Issuer. Notwithstanding the foregoing, this Common 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 Common Securities or under this Common Securities Guarantee.




ARTICLE V

MISCELLANEOUS




     SECTION 5.1. Successors and Assigns



          All guarantees and agreements contained in this Common Securities Guarantee shall bind the
successors, assigns, receivers, trustees and representatives of the Guarantor and shall inure to
the benefit of the Holders of the then outstanding Common Securities.




     SECTION 5.2. Amendments



          Except with respect to any changes which do not adversely affect the rights of Holders (in
which case no consent of Holders will be required), this Common Securities Guarantee may only be
amended with the prior approval of the Holders of at least a majority in liquidation amount of all
the outstanding Common Securities. The provisions of Section 12.2 of the Trust Agreement with
respect to meetings of Holders apply to the giving of such approval.




     SECTION 5.3. Notices



          All notices provided for in this Common Securities Guarantee shall be in writing, duly signed
by the party giving such notice, and shall be delivered, faxed or mailed by registered or certified
mail, as follows:




          (a) if given to the Issuer, in care of the Administrative Trustees at the Issuer’s mailing
address set forth below (or such other address as the Issuer may give notice of to the Holders):



Sovereign Capital Trust V

1105 North Market Street

7th Floor

Wilmington, DE 19801

Attention: Administrative Trustee

Fax: (610) 208-6316




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          (b) if given to the Guarantor, at the Guarantor’s mailing address set forth below (or such
other address as the Guarantor may give notice of to the Holders):



Sovereign Bancorp, Inc.

1130 Berkshire Boulevard

Wyomissing, PA 19610

Attention: Chief Financial Officer

Fax: (610) 320-8448




          (c) 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 5.4. Benefit



          This Common Securities Guarantee is solely for the benefit of the Holders and is not
separately transferable from the Common Securities.




     SECTION 5.5. Governing Law



          THIS COMMON SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF.




[SIGNATURE ON FOLLOWING PAGE]





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          THIS COMMON SECURITIES GUARANTEE is executed as of the day and year first above written.




	 	 	 	 	 
	 	SOVEREIGN BANCORP, INC.

 	 
	 	By:  	/s/
Thomas R. Brugger	 
	 	 	Thomas R. Brugger, 	 
	 	 	Treasurer and Senior Vice President 	 
	 




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