Exhibit 4.10
COMMON SECURITIES GUARANTEE AGREEMENT
Colonial Capital Trust III
Dated as of _____ __, 2002
Table of Contents
Page
----
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation ......................... 1
ARTICLE II
GUARANTEE
SECTION 2.1 Guarantee .............................................. 4
SECTION 2.2 Subordination .......................................... 4
SECTION 2.3 Waiver of Notice and Demand ............................ 4
SECTION 2.4 Obligations Not Affected ............................... 4
SECTION 2.5 Rights of Holders ...................................... 5
SECTION 2.6 Guarantee of Payment ................................... 5
SECTION 2.7 Subrogation ............................................ 5
SECTION 2.8 Independent Obligations ................................ 6
ARTICLE III
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 3.1 Limitation of Transactions ............................. 6
SECTION 3.2 Ranking ................................................ 6
ARTICLE IV
TERMINATION
SECTION 4.1 Termination ............................................ 7
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Successors and Assigns ................................. 7
SECTION 5.2 Amendments ............................................. 7
SECTION 5.3 Notices ................................................ 7
SECTION 5.4 Benefit ................................................ 8
SECTION 5.5 Governing Law .......................................... 8
SECTION 5.6 Genders ................................................ 8
i
COMMON SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Common Securities Guarantee"), dated as
of ______ __, 2002, is executed and delivered by The Colonial BancGroup, Inc., a
Delaware corporation (the "Guarantor"), for the benefit of the Holders (as
defined herein) of Colonial Capital Trust III, a Delaware statutory business
trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of ______ __, 2002, 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 on the Closing Date _____ common securities, having an aggregate
liquidation amount of $____ designated as the __% Common Securities (the "Common
Securities") (and may issue up to $______________ in aggregate liquidation
amount of additional Common Securities pursuant to an over-allotment option
granted to the underwriters of the Preferred Securities (as defined herein) of
the Trust);
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 "Preferred Securities Guarantee") in substantially identical
terms to this Common Securities Guarantee for the benefit of the holders of the
Preferred Securities, except that if an Event of Default (as defined in the
Indenture), has occurred and is continuing, the rights of holders of the
Preferred Securities to receive Guarantee Payments under the Preferred
Securities Guarantee rank senior and prior in right to the rights of Holders to
receive Guarantee Payments under this Common Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder, which
purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor
executes and delivers this Preferred Securities Guarantee for the benefit of the
Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and 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
this Section 1.1;
(b) any capitalized term not defined in either the preamble above or
this Section 1.1 shall have the respective meaning assigned to it in the
Declaration in effect as of the date hereof;
(c) a term defined anywhere in this Common Securities Guarantee has
the same meaning throughout;
(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;
(f) a term defined in the Trust Indenture Act of 1939, as amended,
has the same meaning when used in this Common Securities Guarantee, unless
otherwise defined in this Common Securities Guarantee or unless the context
otherwise requires; and
(g) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act of 1933, as amended, or any successor rule thereunder.
"Authorized Officer" of a Person means any executive officer,
president, vice-president, assistant vice-president, treasurer, assistant
treasurer, secretary, assistant secretary or other officer of such Person
generally authorized to bind such Person.
"Business Day" means any day other than Saturday, Sunday or any other
day on which commercial banking institutions in The City of New York are
permitted or required by applicable law, regulation or executive order to close.
"Closing Date" means the "Closing Time" and each "Date of Delivery" as
defined in the Purchase Agreement.
"Covered Person" means any Holder or beneficial owner of Common
Securities.
"Debentures" means the __% Junior Subordinated Debentures due 2032
issued by the Guarantor to the Issuer.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Common Securities Guarantee.
"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 (as defined
in the Declaration) that are required to be paid on such Common Securities, to
the extent the Issuer shall have funds available therefor, (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 available therefor,
with respect to any Common Securities called for redemption by the Issuer, and
(iii) upon dissolution of the Issuer (other than in connection with the
distribution of Debentures to the Holders or the redemption of all of the Common
Securities as provided in the Declaration), the lesser of (a) the aggregate of
the liquidation amount and all accrued and unpaid Distributions on the Common
2
Securities to the date of payment, to the extent the Issuer shall have 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 under the
Indenture has occurred and is continuing, the rights of holders of the Preferred
Securities to receive payments under the Preferred Securities Guarantee
Agreement rank senior and prior in right to the rights of Holders to receive
Guarantee Payments (as defined in the Preferred Securities Guarantee).
"Holder" means any holder, as registered on the books and records of
the Issuer, of any Common Securities.
"Indenture" means the Indenture dated as of _____ __, 2002, as
supplemented by the First Supplemental Indenture, dated _____ __, 2002 (the
"First Supplemental Indenture"), each between the Guarantor (the "Debenture
Issuer") and The Bank of New York, as trustee, and any indenture supplemental
thereto pursuant to which certain subordinated debt securities of the Debenture
Issuer are to be issued to the Institutional Trustee of the Issuer.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Common Securities Guarantee shall include:
(a) a statement that each Authorized Officer signing the Officers'
Certificate has read the covenant or condition and the definition relating
thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by each Authorized Officer in rendering the
Officers' Certificate;
(c) a statement that each such Authorized Officer has made such
examination or investigation as, in such Authorized Officer's opinion, is
necessary to enable such Authorized 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 such officer,
such condition or covenant has been complied with.
"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.
"Preferred Securities" means the preferred securities of the Issuer
having an aggregate liquidation amount of up to $_______, designated as the __%
Preferred Securities.
"Purchase Agreement" means the Purchase Agreement for the offer and
sale of Preferred Securities in the form of Exhibit B to the Declaration.
"Trust Securities" means the Common Securities and the Preferred
Securities.
3
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 when due, regardless of any defense, right of
set-off or counterclaim that 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 Subordination
If (a) an Event of Default or (b) an event of default under the
Indenture 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 Preferred Securities to receive Guarantee Payments (as
defined in the Preferred Securities Guarantee) under the Preferred Securities
Guarantee.
SECTION 2.3 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 2.4 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 Debentures or any extension of the maturity date of the Debentures permitted
by the Indenture);
4
(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 2.4 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 to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 2.5 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 2.6 Guarantee of Payment
This Common Securities Guarantee creates a guarantee of payment and not
of collection. This Common Securities Guarantee will not be discharged except by
payment of the Guarantee Payments in full (without duplication of amounts
therefor paid by the Issuer).
SECTION 2.7 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 right 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 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.
5
SECTION 2.8 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 2.4 hereof.
ARTICLE III
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 3.1 Limitation of Transactions
So long as any Common Securities remain outstanding, if (a) there shall
have occurred an Event of Default, (b) there shall have occurred an Event of
Default (as defined under the Indenture) or (c) the Guarantor has exercised its
option to defer interest payments on the Debentures by extending the interest
payment period as provided in Article IV of the First Supplemental Indenture and
such period or extension thereof shall be continuing, then (i) the Guarantor
shall not declare or pay any dividend on, make any distribution or other payment
with respect to, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of its capital stock (other than (A) repurchases,
redemptions or other acquisitions of shares of the Guarantor's capital stock in
connection with the satisfaction by the Guarantor of its obligations under any
employee benefit plans, (B) as a result of an exchange or conversion of one
class or series of the Guarantor's capital stock for another class or series of
the Guarantor's capital stock or (C) the purchase of fractional interests in
shares of the Guarantor's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged),
(ii) the Guarantor shall not make any payment of interest, principal or premium,
if any, on or repurchase or redeem any debt securities issued by the Guarantor
that rank pari passu with or junior to the Debentures and (iii) the Guarantor
shall not make any guarantee payments with respect to the foregoing (other than
pursuant to this Common Securities Guarantee).
In addition, so long as any Common Securities remain outstanding, the
Guarantor (i) will remain the sole direct or indirect owner of all of the
outstanding Common Securities; provided that any permitted successor of the
Guarantor under the Indenture may succeed to the Guarantor's ownership of the
Common Securities, (ii) will not take any action which would cause the Issuer to
cease to be treated as a grantor trust for United States federal income tax
purposes and (iii) remain a statutory business trust, except in connection with
a distribution of Debentures, the redemption of all of the Trust Securities, or
mergers, consolidations or amalgamations, each as provided in the Declaration.
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 all other liabilities of the Guarantor, except those made pari passu
or subordinate by their terms, (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Guarantor and with
6
any guarantee now or hereafter entered into by the Guarantor in respect of any
preferred or preference stock of any Affiliate of the Guarantor, and (iii)
senior to the Guarantor's Common Stock; provided that, in accordance with
Section 2.2, this Common Securities Guarantee will rank subordinate and junior
in right of payment to the Preferred Securities Guarantee.
ARTICLE IV
TERMINATION
SECTION 4.1 Termination
This Common Securities Guarantee shall terminate and be of no further
force and effect upon (i) full payment of the amount payable upon redemption of
the Common Securities, (ii) upon the distribution of the Debentures to all of
the holders of the Preferred Securities or (iii) upon full payment of the
amounts payable in accordance with the Declaration upon dissolution 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 Common Securities then outstanding. Except in connection with any merger
or consolidation of the Guarantor with or into another entity or any sale,
transfer or lease of the Guarantor's assets to another entity, each as permitted
by the Indenture, the Guarantor may not assign its rights or delegate its
obligations under this Common Securities Guarantee without the prior approval of
the Holders of at least a Majority in liquidation amount of the Common
Securities then outstanding.
SECTION 5.2 Amendments
Except with respect to any changes that 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 Declaration 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,
telecopied or mailed by registered or certified mail, as follows:
7
(a) 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):
The Colonial BancGroup, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Counsel
(b) 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, 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 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 in
accordance with, the laws of the State of New York, without regard to conflicts
of laws principles thereof.
SECTION 5.6 Genders
The masculine, feminine and neuter genders used herein shall include
the masculine, feminine and neuter genders.
8
THIS COMMON SECURITIES GUARANTEE is executed as of the day and year
first above written.
THE COLONIAL BANCGROUP, INC., as
Guarantor
By:_________________________________________
Name: ▇. ▇▇▇▇▇ Oakley
Title: Chief Financial Officer
9