TRUST AGREEMENT
This TRUST AGREEMENT, dated as of September 8, 2000 (this "Trust
Agreement"), among (i) First Banks, Inc., a Missouri corporation (the
"Depositor"), (ii) Wilmington Trust Company, a Delaware banking
corporation, as trustee, and (iii) Allen H. Blake, Frank H. Sanfilippo
and Lisa Vansickle, each an individual, as trustees (each of such
trustees in (ii) and (iii) a "Trustee" and collectively, the
"Trustees"). The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"First Preferred Capital Trust II," in which name the Trustees, or the
Depositor to the extent provided herein, may engage in the transactions
contemplated hereby, make and execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over
to the Trustees the sum of ten dollars ($10.00). The Trustees hereby
acknowledge receipt of such amount in trust from the Depositor, which
amount shall constitute the initial trust estate. The Trustees hereby
declare that they will hold the trust estate in trust for the Depositor.
It is the intention of the parties hereto that the Trust created hereby
constitute a business trust under Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801, et seq. (the "Business Trust Act"), and
that this document constitutes the governing instrument of the Trust.
The Trustees are hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in accordance
with the provisions of the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement, satisfactory to each such party and
substantially in the form included as an exhibit to the 1933 Act
Registration Statement (as defined below), to provide for the
contemplated operation of the Trust created hereby and the issuance of
the Preferred Securities and Common Securities referred to therein.
Prior to the execution and delivery of such amended and restated Trust
Agreement, the Trustees shall not have any duty or obligation hereunder
or with respect to the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution
and delivery of any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities
and Exchange Commission (the "Commission") and execute, in each case on
behalf of the Trust, (a) the Registration Statement on Form S-2 (the
"1933 Act Registration Statement"), including any pre-effective or
post-effective amendments to the 1933 Act Registration Statement,
relating to the registration under the Securities Act of 1933, as
amended, of the Preferred Securities of the Trust and possibly certain
other securities and (b) a Registration Statement on Form 8-A (the "1934
Act Registration Statement") (including all pre-effective and
post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under the Securities Exchange Act of
1934, as amended; (ii) to file with the Nasdaq National Market or a
national stock exchange (each, an "Exchange") and execute on behalf of
the Trust one or more listing applications and all other applications,
statements, certificates, agreements and other instruments as shall be
necessary or desirable to cause the Preferred Securities to be listed on
any of the Exchanges; (iii) to file and execute on behalf of the Trust
such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of
process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities or
blue sky laws of such jurisdictions as the Depositor, on behalf of the
Trust, may deem necessary or desirable; and (iv) to execute on behalf of
the Trust that certain Underwriting Agreement relating to the Preferred
Securities, among the Trust, the Depositor and the several Underwriters
named therein, substantially in the form included as an exhibit to the
1933 Act Registration Statement. In the event that any filing referred
to in clauses (i), (ii) and (iii) above is required by the rules and
regulations of the Commission, an Exchange or state securities or blue
sky laws to be executed on behalf of the Trust by one or more of the
Trustees, each of the Trustees, in its or his capacity as a Trustee of
the Trust, is hereby authorized and, to the extent so required, directed
to join in any such filing and to execute on behalf of the Trust any and
all of the foregoing, it being understood that Wilmington Trust Company
in its capacity as a Trustee of the Trust shall not be required to join
in any such filing or execute on behalf of the Trust any such document
unless required by the rules and regulations of the Commission, an
Exchange or state securities or blue sky laws. In connection with the
filings referred to above, the Depositor and Allen H. Blake, Frank H.
Sanfilippo and Lisa Vansickle, each as Trustees and not in their
individual capacities, hereby constitutes and appoints Allen H. Blake,
Frank H. Sanfilippo and Lisa Vansickle, and each of them, as its true
and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for the Depositor or such Trustee or in the
Depositor's or such Trustees' name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to the 1933 Act Registration Statement and the 1934 Act
Registration Statement and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Commission, the
Exchange and administrators of the state securities or blue sky laws,
granting unto said attorneys-in-fact and agents full power and authority
to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes
as the Depositor or such Trustee might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or their respective substitute or substitutes, shall do or
cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be four (4), and
thereafter the number of Trustees shall be such number as shall be fixed
from time to time by a written instrument signed by the Depositor which
may increase or decrease the number of Trustees; provided, however, that
to the extent required by the Business Trust Act, one Trustee shall
either be a natural person who is a resident of the State of Delaware
or, if not a natural person, an entity which has its principal place of
business in the State of Delaware and otherwise meets the requirements
of applicable Delaware law. Subject to the foregoing, the Depositor is
entitled to appoint or remove without cause any Trustee at any time.
The Trustees may resign upon thirty (30) days' prior notice to the
Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to
conflict of laws of principles).
2
8. The Trustees (the "Fiduciary Indemnified Persons") shall not
be liable, responsible or accountable in damages or otherwise to the
Trust, the Depositor, the Trustees or any holder of the Trust's
securities (the Trust, the Depositor and any holder of the Trust's
securities being a "Covered Person") for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by the
Fiduciary Indemnified Persons in good faith on behalf of the Trust and
in a manner the Fiduciary Indemnified Persons reasonably believed to be
within the scope of authority conferred on the Fiduciary Indemnified
Persons by this Trust Agreement or by law, except that the Fiduciary
Indemnified Persons shall be liable for any such loss, damage or claim
incurred by reason of the Fiduciary Indemnified Person's gross
negligence or bad faith with respect to such acts or omissions.
The Fiduciary Indemnified Persons shall be fully protected in
relying in good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to the Trust by
any person as to matters the Fiduciary Indemnified Persons reasonably
believe are within such other person's professional or expert competence
and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the
value and amount of the assets, liabilities, profits, losses, or any
other facts pertinent to the existence and amount of assets from which
distributions to holders of Trust's securities might properly be paid.
9. The Depositor agrees, to the fullest extent permitted by
applicable law,
(a) to indemnify and hold harmless each Fiduciary Indemnified
Person, or any of its officers, directors, shareholders, employees,
representatives or agents, from and against any loss, damage, liability,
tax, penalty, expense or claim of any kind or nature whatsoever incurred
by the Fiduciary Indemnified Persons by reason of the creation,
operation or termination of the Trust in a manner the Fiduciary
Indemnified Persons reasonably believed to be within the scope of
authority conferred on the Fiduciary Indemnified Persons by this Trust
Agreement, except that no Fiduciary Indemnified Persons shall be
entitled to be indemnified in respect of any loss, damage or claim
incurred by the Fiduciary Indemnified Persons by reason of gross
negligence or willful misconduct with respect to such acts or omissions;
and
(b) to advance expenses (including legal fees) incurred by a
Fiduciary Indemnified Person in defending any claim, demand, action,
suit or proceeding prior to the final disposition thereof, upon receipt
by the Trust and the Depositor of an undertaking by such Fiduciary
Indemnified Person (in form and substance satisfactory to the Depositor)
to repay such advances if it shall be determined that such Fiduciary
Indemnified Person is not entitled to be indemnified as authorized in
the preceding subsection.
10. The provisions of Section 9 shall survive the termination of
this Trust Agreement or the earlier resignation or removal of the
Fiduciary Indemnified Persons.
3
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above
written.
FIRST BANKS, INC.
as Depositor
By: /s/ Frank H. Sanfilippo
----------------------------------
Its: Executive Vice President
----------------------------------
WILMINGTON TRUST COMPANY
as Trustee
By: /s/ Patricia A. Evans
----------------------------------
Its: Senior Financial Services Officer
----------------------------------
/s/ Allen H. Blake
---------------------------------------
ALLEN H. BLAKE, as Trustee
/s/ Frank H. Sanfilippo
---------------------------------------
FRANK H. SANFILIPPO, as Trustee
/s/ Lisa K. Vansickle
---------------------------------------
LISA VANSICKLE, as Trustee
4