PREFERRED SECURITIES GUARANTEE AGREEMENT
BY AND BETWEEN
FIRST BANKS, INC.
AND
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION
, 2000
----------------- ---
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INTERPRETATION. . . . . . . . . . . . .1
Section 1.1 Definitions and Interpretation.. . . . .1
ARTICLE II
TRUST INDENTURE ACT . . . . . . . . . . . . . . . . . .5
Section 2.1 Trust Indenture Act; Application.. . . .5
Section 2.2 Lists of Holders of Securities.. . . . .5
Section 2.3 Reports by the Guarantee Trustee.. . . .5
Section 2.4 Periodic Reports to Guarantee Trustee. .5
Section 2.5 Evidence of Compliance with Conditions
Precedent. . . . . . . . . . . . . . . .5
Section 2.6 Events of Default; Waiver. . . . . . . .6
Section 2.7 Event of Default; Notice.. . . . . . . .6
Section 2.8 Conflicting Interests. . . . . . . . . .6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE. . . . .6
Section 3.1 Powers and Duties of the Guarantee
Trustee. . . . . . . . . . . . . . . . .6
Section 3.2 Certain Rights of Guarantee Trustee. . .8
Section 3.3 Not Responsible for Recitals or
Issuance of Guarantee. . . . . . . . . 10
ARTICLE IV
GUARANTEE TRUSTEE . . . . . . . . . . . . . . . . . . 10
Section 4.1 Guarantee Trustee; Eligibility.. . . . 10
Section 4.2 Appointment, Removal and
Resignation of Guarantee Trustee . . . 10
ARTICLE V
GUARANTEE . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.1 Guarantee. . . . . . . . . . . . . . . 11
Section 5.2 Waiver of Notice and Demand. . . . . . 11
Section 5.3 Obligations not Affected.. . . . . . . 11
Section 5.4 Rights of Holders. . . . . . . . . . . 12
Section 5.5 Guarantee of Payment.. . . . . . . . . 13
Section 5.6 Subrogation. . . . . . . . . . . . . . 13
Section 5.7 Independent Obligations. . . . . . . . 13
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION . . . . . . 13
Section 6.1 Limitation of Transactions.. . . . . . 13
Section 6.2 Ranking. . . . . . . . . . . . . . . . 13
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ARTICLE VII
TERMINATION . . . . . . . . . . . . . . . . . . . . . 14
Section 7.1 Termination. . . . . . . . . . . . . . 14
ARTICLE VIII
INDEMNIFICATION . . . . . . . . . . . . . . . . . . . 14
Section 8.1 Exculpation. . . . . . . . . . . . . . 14
Section 8.2 Indemnification. . . . . . . . . . . . 14
ARTICLE IX
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . 15
Section 9.1 Successors and Assigns.. . . . . . . . 15
Section 9.2 Amendments.. . . . . . . . . . . . . . 15
Section 9.3 Notices. . . . . . . . . . . . . . . . 15
Section 9.4 Benefit. . . . . . . . . . . . . . . . 16
Section 9.5 Governing Law. . . . . . . . . . . . . 16
Signatures. . . . . . . . . . . . . . . . . . . . . . 17
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CROSS REFERENCE TABLE
Section of Trust Section of
Indenture Act of Guarantee
1939, as amended Agreement
- ---------------- ---------
310(a) 4.1(a)
310(b) 4.1(c), 2.8
310(c) Not Applicable
311(a) 2.2(b)
311(b) 2.2(b)
311(c) Not Applicable
312(a) 2.2(a)
312(b) 2.2(b)
313 2.3
314(a) 2.4
314(b) Not Applicable
314(c) 2.5
314(d) Not Applicable
314(e) 1.1, 2.5, 3.2
314(f) 2.1, 3.2
315(a) 3.1(d)
315(b) 2.7
315(c) 3.1
315(d) 3.1(d)
316(a) 1.1, 2.6, 5.4
316(b) 5.3
317(a) 3.1
317(b) Not Applicable
318(a) 2.1(a)
318(b) 2.1
318(c) 2.1(b)
Note: This Cross-Reference Table does not constitute part of this
Agreement and shall not affect the interpretation of any of its
terms or provisions.
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PREFERRED SECURITIES GUARANTEE AGREEMENT
THIS PREFERRED SECURITIES GUARANTEE AGREEMENT (this "Preferred
Securities Guarantee"), dated as of _________, 2000, is executed and
delivered by FIRST BANKS, INC., a Missouri corporation (the
"Guarantor"), and STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, a national banking association organized and
existing under the laws of the United States of America, as trustee
(the "Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Preferred Securities (as defined
herein) of FIRST PREFERRED CAPITAL TRUST II, a Delaware statutory
business trust (the "Trust").
RECITALS
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of _________, 2000, among the trustees of
the Trust named therein, the Guarantor, as depositor, and the holders
from time to time of undivided beneficial interests in the assets of the
Trust, the Trust is issuing on the date hereof up to 2,300,000 preferred
securities, having an aggregate liquidation amount of $57,500,000,
designated the ___% Cumulative Trust Preferred Securities (the
"Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth in this Preferred Securities Guarantee,
to pay to the Holders of the Preferred Securities the Guarantee Payments
(as defined herein) and to make certain other payments on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, 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 Preferred
Securities Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Preferred Securities Guarantee
but not defined in the preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) terms defined in the Trust Agreement at the date of execution
of this Preferred Securities Guarantee have the same meaning when used
in this Preferred Securities Guarantee, unless otherwise defined in
this Preferred Securities Guarantee;
(c) a term defined anywhere in this Preferred Securities
Guarantee has the same meaning throughout;
(d) all references to "the Preferred Securities Guarantee" or
"this Preferred Securities Guarantee" are to this Preferred Securities
Guarantee as modified, supplemented or amended from time to time;
(e) all references in this Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this Preferred
Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same
meaning when used in this Preferred Securities Guarantee, unless
otherwise defined in this Preferred 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.
"Business Day" means any day other than a Saturday or a Sunday or
a day on which federal or state banking institutions in the Borough of
Manhattan, the City of New York are authorized or required by law,
executive order or regulation to close or a day on which the Corporate
Trust Office of the Guarantee Trustee is closed for business.
"Corporate Trust Office" means the office of the Guarantee Trustee
at which the corporate trust business of the Guarantee Trustee shall, at
any particular time, be principally administered, which office at the
date of execution of this Preferred Securities Guarantee is located
at 225 Asylum Street, Goodwin Square, Hartford, Connecticut 06103,
Attention: Corporate Trust Department.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Debentures" means the ____% Subordinated Debentures due
_________, 2030, of the Debenture Issuer held by the Property Trustee of
the Trust.
"Debenture Issuer" means the Guarantor.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred
Securities, to the extent not paid or made by the Trust: (i) any accrued
and unpaid Distributions that are required to be paid on such Preferred
Securities, to the extent the Trust 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 Trust has funds available therefor, with respect to any
Preferred Securities called for redemption by the Trust, and (iii) upon
a voluntary or involuntary dissolution, winding-up or termination of the
Trust (other than in connection with the distribution of the Debentures
to the Holders in exchange
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for the Preferred 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 Preferred Securities to the date of
payment, to the extent the Trust shall have funds available therefor
(the "Liquidation Distribution"), and (B) the amount of assets of the
Trust remaining available for distribution to Holders in liquidation of
the Trust.
"Guarantee Trustee" means State Street Bank and Trust Company of
Connecticut, National Association, until a Successor Guarantee Trustee
has been appointed and has accepted such appointment pursuant to the
terms of this Preferred Securities Guarantee and thereafter means each
such Successor Guarantee Trustee.
"Guarantor" means First Banks, Inc., a Missouri corporation.
"Holder" means a Person in whose name a Preferred Security is or
Preferred Securities are registered in the Securities Register;
provided, however, that, in determining whether the holders of the
requisite percentage of the Preferred Securities have given any request,
notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor, the Guarantee Trustee or any of their respective Affiliates.
"Indemnified Person" means the Guarantee Trustee, any Affiliate of
the Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives, nominees, custodians or
agents of the Guarantee Trustee.
"Indenture" means the Indenture dated as of __________, 2000,
among the Debenture Issuer and State Street Bank and Trust Company
of Connecticut, National Association, as trustee, and any indenture
supplemental thereto pursuant to which the Debentures are to be
issued to the Property Trustee of the Trust.
"Liquidation Amount" means the stated value of $25 per Preferred
Security.
"Liquidation Distribution" has the meaning provided therefor in
the definition of Guarantee Payments.
"List of Holders" has the meaning set forth in Section 2.2 of this
Preferred Securities Guarantee.
"Majority in Liquidation Amount of the Preferred Securities" means
the holders of more than 50% of the Liquidation Amount of all of the
Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two authorized officers of such Person, at
least one of whom shall be the principal executive officer, principal
financial officer, principal accounting officer, treasurer or any
vice president of such person. Any Officers' Certificate delivered
with respect to compliance with a condition or covenant provided for
in this Preferred Securities Guarantee shall include:
(a) a statement that each 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 officer in rendering the Officers'
Certificate;
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(c) a statement that each such officer has made such examination
or investigation as, in such officer's opinion, is necessary to enable
such 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 % Cumulative Trust
------
Preferred Securities representing undivided beneficial interests in the
assets of the Trust which rank pari passu with Common Securities issued
by the Trust; provided, however, that upon the occurrence and during
the continuance of an Event of Default, the rights of holders of Common
Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights
of holders of Preferred Securities.
"Redemption Price" has the meaning provided therefor in the
definition of Guarantee Payments.
"Responsible Officer" means, with respect to the Guarantee
Trustee, any officer within the Corporate Trust Office of the Guarantee
Trustee, including any vice-president, any assistant vice-president, any
assistant secretary, the treasurer, any assistant treasurer or other
officer of the Corporate Trust Office of the Guarantee Trustee
customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter
is referred because of that officer's knowledge of and familiarity with
the particular subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Securities Register" and "Securities Registrar" have the meanings
provided therefor in the Trust Agreement (as defined in the Indenture).
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date of which this instrument was executed;
provided, however, that in the event the Trust Indenture Act of 1939, as
amended, is amended after such date, "Trust Indenture Act" means, to the
extent required by any such amendment, the Trust Indenture Act of 1939,
as so amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. TRUST INDENTURE ACT; APPLICATION.
(a) This Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of
this Preferred Securities Guarantee and shall, to the extent applicable,
be governed by such provisions.
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(b) If and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties
imposed by Section 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control.
SECTION 2.2 LIST OF HOLDERS OF SECURITIES.
(a) In the event the Guarantee Trustee is not also the Securities
Registrar, the Guarantor shall provide the Guarantee Trustee with a
list, in such form as the Guarantee Trustee may reasonably require, of
the names and addresses of the Holders of the Preferred Securities (the
"List of Holders") as of such date, (i) within one Business Day after
January 1 and June 30 of each year, and (ii) at any other time within 30
days of receipt by the Guarantor of a written request for a List of
Holders as of a date no more than 15 days before such List of Holders is
given to the Guarantee Trustee; provided, that the Guarantor shall not
be obligated to provide such List of Holders at any time the List of
Holders does not differ from the most recent List of Holders given to
the Guarantee Trustee by the Guarantor. The Guarantee Trustee may
destroy any List of Holders previously given to it on receipt of a new
List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under
Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3. REPORTS BY THE GUARANTEE TRUSTEE. On or before July
15 of each year, the Guarantee Trustee shall provide to the Holders of
the Preferred Securities such reports as are required by Section 313 of
the Trust Indenture Act, if any, in the form and in the manner provided
by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
SECTION 2.4. PERIODIC REPORTS TO THE GUARANTEE TRUSTEE. The
Guarantor shall provide to the Guarantee Trustee such documents, reports
and information as required by Section 314 (if any) and the compliance
certificate required by Section 314 of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the
Trust Indenture Act.
SECTION 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this
Preferred Securities Guarantee that relate to any of the matters set
forth in Section 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to Section 314(c)(1)
may be given in the form of an Officers' Certificate.
SECTION 2.6. EVENTS OF DEFAULT; WAIVER. The Holders of a
Majority in Liquidation Amount of the Preferred Securities may, by vote,
on behalf of the Holders of all of the Preferred Securities, waive any
past Event of Default and its consequences. Upon such waiver, any such
Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right
consequent thereon.
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SECTION 2.7. EVENT OF DEFAULT; NOTICE.
(a) The Guarantee Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class postage prepaid, to
the Holders of the Preferred Securities, notices of all Events of Default
actually known to a Responsible Officer of the Guarantee Trustee, unless
such defaults have been cured before the giving of such notice; provided,
that, except in the case of a default by Guarantor on any of its payment
obligations, the Guarantee Trustee shall be protected in withholding such
notice if and so long as a Responsible Officer of the Guarantee Trustee
in good faith determines that the withholding of such notice is in the
interests of the Holders of the Preferred Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge
of any Event of Default unless the Guarantee Trustee shall have received
written notice, or of which a Responsible Officer of the Guarantee
Trustee charged with the administration of the Trust Agreement shall
have obtained actual knowledge of such Event of Default.
SECTION 2.8. CONFLICTING INTERESTS. The Trust Agreement shall be
deemed to be specifically described in this Preferred Securities
Guarantee for the purposes of clause (i) of the first proviso contained
in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS
OF THE GUARANTEE TRUSTEE
SECTION 3.1. POWERS AND DUTIES OF THE GUARANTEE TRUSTEE.
(a) This Preferred Securities Guarantee shall be held by the
Guarantee Trustee for the benefit of the Holders of the Preferred
Securities, and the Guarantee Trustee shall not transfer this Preferred
Securities Guarantee to any Person except a Holder of Preferred
Securities exercising his or her rights pursuant to Section 5.4(b) or to
a Successor Guarantee Trustee on acceptance by such Successor Guarantee
Trustee of its appointment to act as Successor Guarantee Trustee. The
right, title and interest of the Guarantee Trustee shall automatically
vest in any Successor Guarantee Trustee, and such vesting and cessation
of title shall be effective whether or not conveyancing documents have
been executed and delivered pursuant to the appointment of such
Successor Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible
Officer of the Guarantee Trustee has occurred and is continuing, the
Guarantee Trustee shall enforce this Preferred Securities Guarantee for
the benefit of the Holders of the Preferred Securities.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are
specifically set forth in this Preferred Securities Guarantee, and no
implied covenants
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shall be read into this Preferred Securities Guarantee against the
Guarantee Trustee. In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 2.6) and is actually known
to a Responsible Officer of the Guarantee Trustee, the Guarantee Trustee
shall exercise such of the rights and powers vested in it by this
Preferred Securities Guarantee, and use the same degree of care and
skill in its exercise thereof, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default that may
have occurred:
(A) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of this
Preferred Securities Guarantee, and the Guarantee Trustee
shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Preferred Securities Guarantee, and no implied covenants or
obligations shall be read into this Preferred Securities
Guarantee against the Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and conforming
to the requirements of this Preferred Securities Guarantee;
but in the case of any such certificates or opinions that by
any provision hereof are specifically required to be
furnished to the Guarantee Trustee, the Guarantee Trustee
shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Preferred Securities Guarantee;
(ii) the Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of
the Guarantee Trustee, unless it shall be proved that the
Guarantee Trustee was negligent in ascertaining the pertinent
facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in Liquidation Amount of the Preferred Securities
relating to the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee, or
exercising any trust or power conferred upon the Guarantee Trustee
under this Preferred Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee
shall require the Guarantee Trustee to expend or risk its own
funds or otherwise incur personal financial liability in the
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performance of any of its duties or in the exercise of any of its
rights or powers, if the Guarantee Trustee shall have reasonable
grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Preferred Securities Guarantee or indemnity, reasonably
satisfactory to the Guarantee Trustee, against such risk or
liability is not reasonably assured to it.
SECTION 3.2. CERTAIN RIGHTS OF THE GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1:
(i) the Guarantee Trustee may conclusively rely, and shall
be fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed
by it to be genuine and to have been signed, sent or presented by
the proper party or parties;
(ii) any direction or act of the Guarantor contemplated by
this Preferred Securities Guarantee shall be sufficiently
evidenced by an Officers' Certificate;
(iii) whenever, in the administration of this Preferred
Securities Guarantee, the Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Guarantee Trustee
(unless other evidence is herein specifically prescribed) may, in
the absence of bad faith on its part, request and conclusively
rely upon an Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Guarantor;
(iv) the Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any
rerecording, refiling or reregistration thereof);
(v) the Guarantee Trustee may consult with counsel, and the
written advice or opinion of such counsel with respect to legal
matters shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with such advice or opinion. Such
counsel may be counsel to the Guarantor or any of its Affiliates
and may include any of its employees. The Guarantee Trustee shall
have the right at any time to seek instructions concerning the
administration of this Preferred Securities Guarantee from any
court of competent jurisdiction;
(vi) the Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Preferred Securities Guarantee at the request or direction of any
Holder, unless such Holder shall have provided to the Guarantee
Trustee such security and indemnity, reasonably satisfactory to
the Guarantee Trustee, against the costs, expenses (including
attorneys' fees and expenses and the expenses of the Guarantee
Trustee's agents, nominees or custodians) and liabilities that
might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested
by the
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Guarantee Trustee; provided that, nothing contained in this Section
3.2(a)(vi) shall be taken to relieve the Guarantee Trustee, upon the
occurrence and during the continuance of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this
Preferred Securities Guarantee;
(vii) the Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see
fit;
(viii) the Guarantee Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or
attorneys, and the Guarantee Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(ix) no third party shall be required to inquire as to the
authority of the Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this Preferred
Securities Guarantee, both of which shall be conclusively
evidenced by the Guarantee Trustee's or its agent's taking such
action;
(x) whenever in the administration of this Preferred
Securities Guarantee the Guarantee Trustee shall deem it desirable
to receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Guarantee Trustee
(A) may request instructions from the Holders of a Majority in
Liquidation Amount of the Preferred Securities, (B) may refrain
from enforcing such remedy or right or taking such other action
until such instructions are received, and (C) shall be protected
in conclusively relying on or acting in accordance with such
instructions.
(b) No provision of this Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act
or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Guarantee Trustee shall
be construed to be a duty.
SECTION 3.3. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
GUARANTEE. The Recitals contained in this Guarantee shall be taken as
the statements of the Guarantor, and the Guarantee Trustee does not
assume any responsibility for their correctness. The Guarantee Trustee
makes no representation as to the validity or sufficiency of this
Preferred Securities Guarantee.
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ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1. GUARANTEE TRUSTEE; ELIGIBILITY.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under
the laws of the United States or any state or territory thereof or
of the District of Columbia, or a corporation or Person permitted
by the Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture Act, authorized
under such laws to exercise corporate trust powers, having (or the
obligations of which are guaranteed by an entity having) a combined
capital and surplus of at least $50,000,000, and subject to
supervision or examination by federal, state, territorial or
District of Columbia authority. If such corporation, trust company
or national banking association publishes reports of condition at
least annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then, for
the purposes of this Section 4.1(a)(ii), the combined capital and
surplus of such corporation, trust company or national banking
association shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section
4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act,
the Guarantee Trustee and the Guarantor shall in all respects comply with
the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF GUARANTEE
TRUSTEE.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Guarantee Trustee has been appointed
and has accepted such appointment by written instrument executed by such
Successor Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold office
until a Successor Guarantee Trustee shall have been appointed or until
its removal or resignation. The Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in
writing executed by the Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor
Guarantee Trustee has been appointed and has accepted such appointment
by instrument in writing executed by such Successor Guarantee Trustee
and delivered to the
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Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed
and accepted appointment as provided in this Section 4.2 within 60 days
after delivery to the Guarantor of an instrument of resignation, the
resigning Guarantee Trustee may petition any court of competent
jurisdiction for appointment of a Successor Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may
deem proper, appoint a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Guarantee Trustee.
(f) Upon termination of this Preferred Securities Guarantee or
removal or resignation of the Guarantee Trustee pursuant to this Section
4.2, the Guarantor shall pay to the Guarantee Trustee all fees and
expenses accrued to the date of such termination, removal or
resignation.
ARTICLE V
GUARANTEE
SECTION 5.1. 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 Trust),
as and when due, regardless of any defense, right of set-off or
counterclaim that the Trust 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 Trust to pay such amounts to the Holders.
SECTION 5.2. WAIVER OF NOTICE AND DEMAND. The Guarantor hereby
waives notice of acceptance of this Preferred 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 Trust
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 5.3. OBLIGATIONS NOT AFFECTED. The obligations,
covenants, agreements and duties of the Guarantor under this Preferred
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 Trust of any express or implied
agreement, covenant, term or condition relating to the Preferred
Securities to be performed or observed by the Trust;
(b) the extension of time for the payment by the Trust of all or
any portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Preferred
Securities or the extension of time for the performance of any other
obligation
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under, arising out of, or in connection with, the Preferred 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);
(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
Preferred Securities, or any action on the part of the Trust 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
Trust or any of the assets of the Trust;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) any failure or omission to receive any regulatory approval or
consent required in connection with the Preferred Securities (or the
common equity securities issued by the Trust), including the failure to
receive any approval of the Board of Governors of the Federal Reserve
System required for the redemption of the Preferred Securities;
(g) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(h) 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 5.3 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 5.4. RIGHTS OF HOLDERS.
(a) The Holders of a Majority in liquidation amount of the
Preferred Securities have the right to direct the time, method and place
of conducting of any proceeding for any remedy available to the
Guarantee Trustee in respect of this Preferred Securities Guarantee or
exercising any trust or power conferred upon the Guarantee Trustee under
this Preferred Securities Guarantee.
(b) Any Holder of Preferred Securities may institute and prosecute
a legal proceeding directly against the Guarantor to enforce its rights
under this Preferred Securities Guarantee, without first instituting and
prosecuting a legal proceeding against the Trust, the Guarantee Trustee
or any other Person.
SECTION 5.5. GUARANTEE OF PAYMENT. This Preferred Securities
Guarantee creates a guarantee of payment and not of collection.
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SECTION 5.6. SUBROGATION. The Guarantor shall be subrogated to
all (if any) rights of the Holders of the Preferred Securities against
the Trust in respect of any amounts paid to such Holders by the
Guarantor under this Preferred 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
Preferred Securities Guarantee, if, at the time of any such payment, any
amounts are due and unpaid under this Preferred 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 5.7. INDEPENDENT OBLIGATIONS. The Guarantor acknowledges
that its obligations hereunder are independent of the obligations of the
Trust with respect to the Preferred Securities, and that the Guarantor
shall be liable as principal and as debtor hereunder to make Guarantee
Payments pursuant to the terms of this Preferred Securities Guarantee
notwithstanding the occurrence of any event referred to in subsections
(a) through (h), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. LIMITATION OF TRANSACTIONS. So long as any Preferred
Securities remain outstanding, if there shall have occurred and be
continuing an Event of Default under this Preferred Securities Guarantee,
an event of default under the Trust Agreement or during an Extension
Period (as defined in the Indenture), then (a) neither the Guarantor nor
any of its Subsidiaries (as defined in the Indenture) shall 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 of
its capital stock (as such term is defined in the Indenture), except as
permitted in such circumstances by the Indenture; (b) the Guarantor shall
not make any payment of interest, principal or premium, if any, or repay,
repurchase or redeem any debt securities issued by the Guarantor which
rank pari passu with (including without limitation the Guarantor's 9.25%
Subordinated Debentures due 2027 issued to First Preferred Capital Trust)
or junior to the Debentures or make any guarantee payments with respect to
any guarantee of the Guarantor of the debt securities of any Subsidiary of
the Guarantor if such guarantee ranks pari passu with or junior to the
Debentures, other than payments under this Preferred Securities Guarantee;
and (c) the Guarantor shall not redeem, purchase or acquire less than all
of the Outstanding Debentures or any of the Preferred Securities.
SECTION 6.2 RANKING. This Preferred Securities Guarantee will
constitute an unsecured obligation of the Guarantor and will rank
subordinate and junior in right of payment to all Senior Debt,
Subordinated Debt and Additional Senior Obligations, as defined in the
Indenture, of the Guarantor, to the extent and in the manner set forth
in the Indenture, and the applicable provisions of the Indenture will
apply in all relevant respects to the obligations of the Guarantor
hereunder.
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ARTICLE VII
TERMINATION
SECTION 7.1. TERMINATION. This Preferred Securities Guarantee
shall terminate upon (a) full payment of the Redemption Price of all the
Preferred Securities, (b) full payment of the amounts payable in
accordance with the Trust Agreement upon liquidation of the Trust, or
(c) distribution of the Debentures to the Holders of the Preferred
Securities. Notwithstanding the foregoing, this Preferred Securities
Guarantee shall continue to be effective or shall be reinstated, as the
case may be, if at any time any Holder of Preferred Securities must
restore payment of any sums paid under the Preferred Securities or under
this Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. EXCULPATION.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered
Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith
in accordance with this Preferred Securities Guarantee and in a manner
that such Indemnified Person reasonably believed to be within the scope
of the authority conferred on such Indemnified Person by this Preferred
Securities Guarantee or by law, except that an Indemnified Person shall
be liable for any such loss, damage or claim incurred by reason of such
Indemnified Person's negligence or willful misconduct with respect to
such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person
as to matters the Indemnified Person reasonably believes are within such
other Person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Guarantor,
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 the Holders of the Preferred Securities might properly
be paid.
SECTION 8.2. INDEMNIFICATION. The Guarantor agrees to indemnify
each Indemnified Person for, and to hold each Indemnified Person
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against, or investigating, any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder. The obligation to indemnify as set forth in
this Section 8.2 shall survive the termination of this Preferred
Securities Guarantee.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.1. SUCCESSORS AND ASSIGNS. All guarantees and
agreements contained in this Preferred 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 Preferred
Securities then outstanding.
SECTION 9.2. AMENDMENTS. Except with respect to any changes that
do not materially and adversely affect the rights of the Holders (in
which case no consent of the Holders will be required), this Preferred
Securities Guarantee may only be amended with the prior approval of
the Holders of at least a Majority in Liquidation Amount of the
Preferred Securities. The provisions of Article VI of the Trust
Agreement with respect to meetings of the Holders of the Preferred
Securities apply to the giving of such approval.
SECTION 9.3. NOTICES. All notices provided for in this Preferred
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:
(a) If given to the Guarantee Trustee, at the Guarantee Trustee's
mailing address set forth below (or such other address as the Guarantee
Trustee may give notice of to the Holders of the Preferred Securities):
State Street Bank and Trust Company of Connecticut, National Association
225 Asylum Street, Goodwin Square
Hartford, Connecticut 06103
Attention: Corporate Trust Department
with a copy to:
State Street Bank and Trust Company
2 Avenue de Lafayette
Boston, Massachusetts 02110
Attention: Corporate Trust Department
(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 of the Preferred Securities):
First Banks, Inc.
11901 Olive Boulevard
Creve Coeur, Missouri 63141
Attention: Chief Financial Officer
(c) If given to any Holder of Preferred Securities, at the
address set forth on the books and records of the Trust.
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
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of such refusal or inability to deliver.
SECTION 9.4. BENEFIT. This Preferred Securities Guarantee is
solely for the benefit of the Holders of the Preferred Securities and,
subject to Section 3.1(a), is not separately transferable from the
Preferred Securities.
SECTION 9.5. GOVERNING LAW. THIS PREFERRED SECURITIES GUARANTEE
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF MISSOURI.
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This Preferred Securities Guarantee is executed as of the day and
year first above written.
FIRST BANKS, INC.
By:
--------------------------------------
Its:
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STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT, NATIONAL
ASSOCIATION, as Guarantee Trustee
By:
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Its:
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