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EXHIBIT 4(H)
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES, dated as of _________, 1997
(as modified, amended or supplemented, this "Agreement" ) between The Colonial
BancGroup, Inc., a Delaware corporation (the "Corporation"), and Colonial
Capital II, a Delaware business trust (the "Issuer Trust").
WHEREAS, the Issuer Trust intends to issue its Common Securities (the
"Common Securities") to and acquire the Debentures from the Corporation, and to
issue and sell 8.92% Capital Securities, Series A (the "Capital Securities")
with such powers, preferences and special rights and restrictions as are set
forth in the Amended and Restated Trust Agreement of the Issuer Trust, dated as
of ____________, 1997, among the Corporation, as Depositor, Wilmington Trust
Company, as Delaware trustee and as Property Trustee, and the Administrative
Trustees named therein, as the same may be amended from time to time (the
"Trust Agreement"); and
WHEREAS, the Corporation will own all of the Common Securities of the
Issuer Trust and will issue the Debentures; and
WHEREAS, capitalized terms used but not defined herein have the
meanings set forth in the Trust Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Corporation and the Issuer
Trust hereby agree as follows:
ARTICLE I
SECTION 1.1. Guarantee by Corporation. Subject to the terms and
conditions hereof, the Corporation hereby irrevocably and unconditionally
guarantees to each person or entity to whom the Issuer Trust is now or
hereafter becomes indebted or liable (the "Beneficiaries") the full payment,
when and as xxx, of any and all Obligations (as hereinafter defined) to such
Beneficiaries. As used herein, "Obligations" means any costs, expenses or
liabilities of the Issuer Trust, other than obligations of the Issuer Trust to
pay to holders of any Trust Securities the amounts due such holders pursuant to
the terms of the Trust Securities. This Agreement is intended to be for the
benefit of, and to be enforceable by, all such Beneficiaries, whether or not
such Beneficiaries have received notice hereof.
SECTION 1.2. Subordination of Guarantee. The guarantee and other
liabilities and obligations of the Corporation under this Agreement shall
constitute unsecured obligations of the Corporation and shall rank subordinate
and junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) of the Corporation to the extent and in the manner set forth in the
Indenture with respect to Debentures, and the provisions of Article
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XIII of the Indenture will apply, mutatis mutandis, to the obligations of the
Corporation hereunder. The obligations of the Corporation hereunder do not
constitute Senior Indebtedness (as defined in the Indenture) of the
Corporation.
SECTION 1.3. Terms of Agreement. This Agreement shall terminate and
be of no further force and effect upon the dissolution of the Issuer Trust;
provided, however, that this Agreement shall continue to be effective or shall
be reinstated, as the case may be, if at any time any holder of Capital
Securities or any Beneficiary must restore payment of any sums paid under the
Capital Securities, under any Obligation, under the Guarantee Agreement dated
the date hereof by The Colonial BancGroup, Inc., as guarantor, and Wilmington
Trust Company, as guarantee trustee, or under this Agreement for any reason
whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
SECTION 1.4. Waiver of Notice. The Corporation hereby waives notice of
acceptance of this Agreement and of any Obligation to which it applies or may
apply, and the Corporation hereby waives presentment, demand for payment,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 1.5. No Impairment. The obligations, covenants, agreements
and duties of the Corporation under this 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 extension of time for the payment by the Issuer Trust
of all or any portion of the Obligations or for the
performance of any other obligation under, arising out of, or
in connection with, the Obligations;
(b) any failure, omission, delay or lack of diligence on the
part of the Beneficiaries to enforce, assert or exercise any
right, privilege, power or remedy conferred on the
Beneficiaries with respect to the Obligations or any action on
the part of the Issuer Trust granting indulgence or extension
of any kind; or
(c) 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 Trust or any of the
assets of the Issuer Trust (other than the dissolution of the
Issuer Trust in accordance with the terms thereof).
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, the Corporation with respect to the happenings of any of the
foregoing.
SECTION 1.6. Enforcement. A Beneficiary may enforce this Agreement
directly against the Corporation and the Corporation waives any right or remedy
to require that any action be brought against the Issuer Trust or any other
person or entity before proceeding against the Corporation.
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SECTION 1.7. Subrogation. The Corporation shall be subrogated to all
rights (if any) of any Beneficiary against the Issuer Trust in respect of any
amounts paid to the Beneficiaries by the Corporation under this Agreement;
provided, however, that the Corporation shall not (except to the extent
required by mandatory provisions of law) be entitled to enforce or exercise any
rights 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 Agreement, if, at the time of any such payment, any amounts are due and
unpaid under this Agreement.
ARTICLE II
SECTION 2.1. Assignment. This Agreement may not be assigned by either
party hereto without the consent of the other, and any purported assignment
without such consent shall be void.
SECTION 2.2. Binding Effect. All guarantees and agreements contained
in this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Corporation and shall inure to the benefit of the
Beneficiaries.
SECTION 2.3. Amendment. So long as there remains any Beneficiary or
any Capital Securities are outstanding, this Agreement shall not be modified or
amended in any manner adverse to such Beneficiary or to the Holders of the
Capital Securities without the consent of such Beneficiary or the Holders of
the Capital Securities, as the case may be.
SECTION 2.4. Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be given in writing by
delivering the same against receipt therefor by facsimile transmission
(confirmed by mail) telex or by registered or certified mail, addressed as
follows (and if so given, shall be deemed given when mailed or upon receipt of
an answer-back, if sent by telex):
Colonial Capital II
c/o The Colonial BancGroup, Inc.
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile No: (000) 000-0000
Attention: X. Xxxxx Oakley
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With a copy to:
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile No: (000) 000-0000
Attention: Corporate Trust Administration
The Colonial BancGroup, Inc.
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile No: (000) 000-0000
Attention: X. Xxxxx Oakley
SECTION 2.4. Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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In Witness Whereof, this Agreement as to Expenses and Liabilities is
executed as of the day and year first above written,
The Colonial BancGroup, Inc.
By:
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Name: X. Xxxxx Oakley
Title: Executive Vice President and
Chief Financial Officer
Colonial Capital II
By:
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Name: Young X. Xxxxxx, III
Administrative Trustee
