AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT AS TO EXPENSES AND LIABILITIES (this "Agreement") dated as of
August 13, 2002, between RBC Centura Banks, Inc., a North Carolina corporation
(the "Company"), and EBI Capital Trust I, a Delaware business trust (the
"Trust").
RECITALS
WHEREAS, the Trust issued its common securities (the "Common
Securities") to, and received 8.50% Subordinated Debentures due December 31,
2028 (the "Debentures") from, Eagle Bancshares, Inc., a Georgia corporation
("Eagle"), and issued and sold EBI Capital Trust I 8.50% Cumulative Trust
Preferred Securities (the "Preferred Securities") with such powers, preferences
and special rights and restrictions as are set forth in the Amended and Restated
Trust Agreement of the Trust dated as of July 29, 1998, as the same may be
amended from time to time (the "Trust Agreement");
WHEREAS, Eagle has merged with and into RBC Centura Bank, a banking
corporation organized under the laws of the state of North Carolina and wholly
owned subsidiary of the Company (the "Bank");
WHEREAS, the Bank, as successor to Eagle, directly or indirectly owns
all of the Common Securities of the Trust and has assumed Eagle's obligations to
the Trust under the Debentures;
NOW, THEREFORE, for the benefit of its subsidiaries, the Bank and the
Trust, the Company hereby agrees with the Trust as follows:
ARTICLE I
Section 1.1 Guarantee by the Company. Subject to the terms and
conditions hereof, the Company hereby irrevocably and unconditionally guarantees
to each person or entity to whom the Trust is now or hereafter becomes indebted
or liable (the "Beneficiaries") the full payment when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any costs, expenses or liabilities of the Trust other than
obligations of the Trust to pay to holders of any Preferred Securities or other
similar interests in the Trust the amounts due such holders pursuant to the
terms of the Preferred Securities or such other similar interests, as the case
may be. 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 Term of Agreement. This Agreement shall terminate and be of
no further force and effect upon the later of (a) the date on which full payment
has been made of all amounts payable to all holders of all the Preferred
Securities (whether upon redemption, liquidation, exchange or otherwise); and
(b) the date on which there are no
Beneficiaries remaining; 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 Preferred Securities or any Beneficiary must restore payment of any
sums paid under the Preferred Securities, under any obligation, under the
Preferred Securities Guarantee Agreement dated the date hereof by Company and
SunTrust Bank as guarantee trustee (the "Trustee"), the Preferred Securities
Guarantee Agreement dated July 29, 1998 by the Bank and the Trustee, or under
this Agreement for any reason whatsoever. This Agreement is continuing,
irrevocable, unconditional and absolute.
Section 1.3 Waiver of Notice. The Company hereby waives notice of
acceptance of this Agreement and of any obligation to which it applies or may
apply, and Company hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
Section 1.4 No Impairment. The obligations, covenants, agreements and
duties of the Company 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 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 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 Trust or any of the assets of the Trust. There shall be no obligation of the
Beneficiaries to give notice to, or obtain the consent of, the Company with
respect to the happening of any of the foregoing.
Section 1.5 Enforcement. A Beneficiary may enforce this Agreement
directly against the Company, and the Company waives any right or remedy to
require that any action be brought against the Trust or any other person or
entity before proceeding against the Company.
ARTICLE II
Section 2.1 Binding Effect. All guarantees and agreements contained in
this Agreement shall bind the successors, assigns, receivers, trustees and
representatives of the Company and shall inure to the benefit of the
Beneficiaries.
Section 2.2 Amendment. So long as there remains any Beneficiary or any
Preferred Securities of any series are outstanding, this Agreement shall not be
modified or amended in any manner adverse to such Beneficiary or to the holders
of the Preferred Securities.
Section 2.3 Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be given in writing by
delivering the same 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):
RBC CENTURA BANKS, INC.
0000 Xxxxxxx Xxxxxxx
Xxxxx Xxxxx, Xxxxx Xxxxxxxx 00000
EBI CAPITAL TRUST I
0000 Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Section 2.4 Governing Law. This agreement shall be governed by and
construed and interpreted in accordance with the laws of the State of Georgia
(without regard to conflict of laws principles).
THIS AGREEMENT is executed as of the day and year first above written.
RBC CENTURA BANKS, INC.
By /s/ H. Xxx Xxxxxx, III
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Name: H. Xxx Xxxxxx, III
Title: Chief Executive Officer
EBI CAPITAL TRUST I
By /s/ Xxxxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Administrative Trustee
