Exhibit 4.6
FIRST BANK STATUTORY TRUST IV
FIRST BANKS, INC.
SUBSCRIPTION AGREEMENT
March 1, 2006
THIS SUBSCRIPTION AGREEMENT (this "Agreement") made among First Bank
Statutory Trust IV (the "Trust"), a statutory trust created under the Delaware
Statutory Trust Act (Chapter 38 of Title 12 of the Delaware Code, 12 Del. C.
ss.ss. 3801, et seq.), First Banks, Inc., a Missouri corporation, with its
principal offices located at 600 James S. McDonnell Boulevard, Hazelwood,
Missouri 63042 (the "Company" and, collectively with the Trust, the "Offerors"),
and First Tennessee Bank National Association (the "Purchaser").
RECITALS:
A. The Trust desires to issue 40,000 of its Floating Rate Capital
Securities (the "Capital Securities"), liquidation amount $1,000.00 per Capital
Security, representing an undivided beneficial interest in the assets of the
Trust (the "Offering"), to be issued pursuant to an Amended and Restated
Declaration of Trust (the "Declaration") by and among the Company, Wilmington
Trust Company ("WTC"), the administrators named therein, and the holders (as
defined therein), which Capital Securities are to be guaranteed by the Company
with respect to distributions and payments upon liquidation, redemption and
otherwise pursuant to the terms of a Guarantee Agreement between the Company and
WTC, as trustee (the "Guarantee"); and
B. The proceeds from the sale of the Capital Securities will be
combined with the proceeds from the sale by the Trust to the Company of its
common securities, and will be used by the Trust to purchase an equivalent
amount of Floating Rate Junior Subordinated Deferrable Interest Debentures of
the Company (the "Debentures") to be issued by the Company pursuant to an
indenture to be executed by the Company and WTC, as trustee (the "Indenture");
and
C. In consideration of the premises and the mutual representations
and covenants hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF CAPITAL SECURITIES
1.1. Upon the execution of this Agreement, the Purchaser hereby
agrees to purchase from the Trust 25,000 Capital Securities at a price equal to
$1,000.00 per Capital Security (the "Purchase Price") and the Trust agrees to
sell such Capital Securities to the Purchaser for said Purchase Price. The
rights and preferences of the Capital Securities are set forth in the
Declaration. The Purchase Price is payable in immediately available funds on
March 1, 2006, or such other business day as may be designated by the Purchaser,
but in no event later than March 31, 2006 (the "Closing Date"). The Offerors
shall provide the Purchaser wire transfer instructions no later than 1 day
following the date hereof.
1.2. As a condition to its purchase of the Capital Securities,
Purchaser shall enter into the Joinder Agreement to the Master Custodian
Agreement, the form of which is attached hereto as Exhibit A (the "Custodian
Agreement") and, in accordance therewith, the certificate for the Capital
Securities shall be delivered by the Trust on the Closing Date to the custodian
in accordance with the Custodian Agreement. Purchaser shall not transfer the
Capital Securities to any person or entity except in accordance with the terms
of the Custodian Agreement.
1.3. The Placement Agreement, dated February 16, 2006 (the
"Placement Agreement"), among the Offerors and the placement agents identified
therein (the "Placement Agents") includes certain representations and
warranties, covenants and conditions to closing and certain other matters
governing the Offering. The Placement Agreement is hereby incorporated by
reference into this Agreement and the Purchaser shall be entitled to each of the
benefits of the Placement Agents and the Purchaser under the Placement Agreement
and shall be entitled to enforce the obligations of the Offerors under such
Placement Agreement as fully as if the Purchaser were a party to such Placement
Agreement.
1.4. Anything herein or in the Placement Agreement notwithstanding,
the Offerors acknowledge and agree that, so long as Purchaser holds some or all
of the Capital Securities, the Purchaser may in its discretion from time to time
transfer or sell, or sell or grant participation interests in, some or all of
such Capital Securities to one or more parties, provided that any such
transaction complies, as applicable, with the registration requirements of the
Securities Act of 1933, as amended (the "Securities Act") and any other
applicable securities laws, is pursuant to an exemption therefrom, or is
otherwise not subject thereto.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PURCHASER
2.1. The Purchaser understands and acknowledges that none of the
Capital Securities, the Debentures or the Guarantee have been registered under
the Securities Act or any other applicable securities law, are being offered for
sale by the Trust in transactions not requiring registration under the
Securities Act, and may not be offered, sold, pledged or otherwise transferred
by the Purchaser except in compliance with the registration requirements of the
Securities Act or any other applicable securities laws, pursuant to an exemption
therefrom or in a transaction not subject thereto.
2.2. The Purchaser represents and warrants that, except as
contemplated under Section 1.4 hereof, it is purchasing the Capital Securities
for its own account, for investment, and not with a view to, or for offer or
sale in connection with, any distribution thereof in violation of the Securities
Act or other applicable securities laws, subject to any requirement of law that
the disposition of its property be at all times within its control and subject
to its ability to resell such Capital Securities pursuant to an effective
registration statement under the Securities Act or under Rule 144A or any other
exemption from registration available under the Securities Act or any other
applicable securities law.
2.3. The Purchaser represents and warrants that neither the Offerors
nor the Placement Agents are acting as a fiduciary or financial or investment
adviser for the Purchaser.
2.4. The Purchaser represents and warrants that it is not relying
(for purposes of making any investment decision or otherwise) upon any advice,
counsel or representations (whether written or oral) of the Offerors or of the
Placement Agents.
2.5. The Purchaser represents and warrants that (a) it has consulted
with its own legal, regulatory, tax, business, investment, financial and
accounting advisers in connection herewith to the extent it has deemed
necessary, (b) it has had a reasonable opportunity to ask questions of and
receive answers from officers and representatives of the Offerors concerning
their respective financial condition and results of operations and the purchase
of the Capital Securities, and any such questions have been answered to its
satisfaction, (c) it has had the opportunity to review all publicly available
records and filings concerning the Offerors and it has carefully reviewed such
records and filings that it considers relevant to making an investment decision,
and (d) it has made its own investment decisions based upon its own judgment,
due diligence and advice from such advisers as it has deemed necessary and not
upon any view expressed by the Offerors or the Placement Agents.
2.6. The Purchaser represents and warrants that it is a "qualified
institutional buyer" as defined under Rule 144A under the Securities Act. If the
Purchaser is a dealer of the type described in paragraph (a)(1)(ii) of Rule 144A
under the Securities Act, it owns and invests on a discretionary basis not less
than U.S. $25,000,000.00 in securities of issuers that are not affiliated with
it. The Purchaser is not a participant-directed employee plan, such as a 401(k)
plan, or any other type of plan referred to in paragraph (a)(1)(i)(D) or
(a)(1)(i)(E) of Rule 144A, or a trust fund referred to in paragraph (a)(1)(i)(F)
of Rule 144A that holds the assets of such a plan, unless investment decisions
with respect to the plan are made solely by the fiduciary, trustee or sponsor of
such plan.
2.7. The Purchaser represents and warrants that on each day from the
date on which it acquires the Capital Securities through and including the date
on which it disposes of its interests in the Capital Securities, either (i) it
is not (a) an "employee benefit plan" (as defined in Section 3(3) of the United
States Employee Retirement Income Security Act of 1974, as amended ("ERISA"))
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which is subject to the provisions of Part 4 of Subtitle B of Title I of ERISA,
or any entity whose underlying assets include the assets of any such plan (an
"ERISA Plan"), (b) any other "plan" (as defined in Section 4975(e)(1) of the
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United States Internal Revenue Code of 1986, as amended (the "Code")) which is
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subject to the provisions of Section 4975 of the Code or any entity whose
underlying assets include the assets of any such plan (a "Plan"), (c) an entity
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whose underlying assets include the assets of any such ERISA Plan or other Plan
by reason of Department of Labor regulation section 2510.3-101 or otherwise, or
(d) a governmental or church plan that is subject to any federal, state or local
law which is substantially similar to the provisions of Section 406 of ERISA or
Section 4975 of the Code (a "Similar Law"); or (ii) the purchase, holding and
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disposition of the Capital Securities by it will satisfy the requirements for
exemptive relief under Prohibited Transaction Class Exemption ("PTCE") 84-14,
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PTCE 90-1, PTCE 91-38, PTCE 95-60, PTCE 96-23 or a similar exemption, or, in the
case of a plan subject to a Similar Law, will not result in a non-exempt
violation of such Similar Law.
2.8. The Purchaser represents and warrants that it is acquiring the
Capital Securities as principal for its own account for investment and, except
as contemplated under Section 1.4 hereof, not for sale in connection with any
distribution thereof. It was not formed solely for the purpose of investing in
the Capital Securities, and additional capital or similar contributions were not
specifically solicited from any person owning a beneficial interest in it for
the purpose of enabling it to purchase any Capital Securities. The Purchaser is
not a (i) partnership, (ii) common trust fund or (iii) special trust, pension,
profit sharing or other retirement trust fund or plan in which the partners,
beneficiaries or participants, as applicable, may designate the particular
investments to be made or the allocation of any investment among such partners,
beneficiaries or participants, and except as contemplated under Section 1.4
hereof, it agrees that it shall not hold the Capital Securities for the benefit
of any other person and shall be the sole beneficial owner thereof for all
purposes and that it shall not sell participation interests in the Capital
Securities or enter into any other arrangement pursuant to which any other
person shall be entitled to a beneficial interest in the distribution on the
Capital Securities. The Capital Securities purchased directly or indirectly by
the Purchaser constitute an investment of no more than 40% of its assets. The
Purchaser understands and agrees that any purported transfer of the Capital
Securities to a purchaser which would cause the representations and warranties
of Section 2.6 and this Section 2.8 to be inaccurate shall be null and void ab
initio and the Offerors retain the right to resell any Capital Securities sold
to non-permitted transferees.
2.9. The Purchaser represents and warrants that it has full power
and authority to execute and deliver this Agreement, to make the representations
and warranties specified herein, and to consummate the transactions contemplated
herein and it has full right and power to subscribe for Capital Securities and
perform its obligations pursuant to this Agreement.
2.10. The Purchaser represents and warrants that no filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any governmental body, agency or court having jurisdiction over the
Purchaser, other than those that have been made or obtained, is necessary or
required for the performance by the Purchaser of its obligations under this
Agreement or to consummate the transactions contemplated herein.
2.11. The Purchaser represents and warrants that this Agreement has
been duly authorized, executed and delivered by the Purchaser.
2.12. The Purchaser understands and acknowledges that the Company
will rely upon the truth and accuracy of the foregoing acknowledgments,
representations, warranties and agreements and agrees that, if any of the
acknowledgments, representations, warranties or agreements deemed to have been
made by it by its purchase of the Capital Securities are no longer accurate, it
shall promptly notify the Company.
2.13. The Purchaser understands that no public market exists for any
of the Capital Securities, and that it is unlikely that a public market will
ever exist for the Capital Securities.
ARTICLE III
MISCELLANEOUS
3.1. Any notice or other communication given hereunder shall be
deemed sufficient if in writing and sent by registered or certified mail, return
receipt requested, international courier or delivered by hand against written
receipt therefor, or by facsimile transmission and confirmed by telephone, to
the following addresses, or such other address as may be furnished to the other
parties as herein provided:
To the Offerors: First Banks, Inc.
600 James S. McDonnell Boulevard
Hazelwood, Missouri 63042
Attention: Lisa K. Vansickle
Fax: 314-592-6621
To the Purchaser: First Tennessee Bank National Association
845 Crossover Lane, Suite 150
Memphis, Tennessee 38117
Attention: David Work
Fax: 901-435-7983
Unless otherwise expressly provided herein, notices shall be
deemed to have been given on the date of mailing, except notice of change of
address, which shall be deemed to have been given when received.
3.2. This Agreement shall not be changed, modified or amended except
by a writing signed by the parties to be charged, and this Agreement may not be
discharged except by performance in accordance with its terms or by a writing
signed by the party to be charged.
3.3. Upon the execution and delivery of this Agreement by the
Purchaser, this Agreement shall become a binding obligation of the Purchaser
with respect to the purchase of Capital Securities as herein provided.
3.4. NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED
BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT ALL THE TERMS AND
PROVISIONS HEREOF SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
3.5. The parties agree to execute and deliver all such further
documents, agreements and instruments and take such other and further action as
may be necessary or appropriate to carry out the purposes and intent of this
Agreement.
3.6. This Agreement may be executed in one or more counterparts each
of which shall be deemed an original, but all of which shall together constitute
one and the same instrument.
3.7. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstances, is held invalid,
illegal or unenforceable in any respect for any reason, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions hereof shall not be in any way impaired or affected, it
being intended that all of the Offerors' and the Purchaser's rights and
privileges shall be enforceable to the fullest extent permitted by law.
Signatures appear on the following page
IN WITNESS WHEREOF, this Agreement is agreed to and accepted as of the
day and year first written above.
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By:/s/ David S. Work
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Print Name: David S. Work
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Title: Executive Vice President
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FIRST BANKS, INC.
By:/s/ Lisa K. Vansickle
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Name: Lisa K. Vansickle
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Title: Senior Vice President
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FIRST BANK STATUTORY TRUST IV
By:/s/ Lisa K. Vansickle
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Name: Lisa K. Vansickle
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Title: Administrator
EXHIBIT A TO SUBSCRIPTION AGREEMENT
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MASTER CUSTODIAN AGREEMENT
This Master Custodian Agreement (this "Agreement") is made and entered
into as of May 27, 2004 by and among each purchaser (each a "Purchaser" and
collectively the "Purchasers") that enters into a Joinder Agreement attached
hereto as Exhibit A (the "Joinder Agreement"), Wilmington Trust Company, a
Delaware banking corporation (the "Custodian") and each issuing institution
(each an "Issuer" and collectively the "Issuers") that enters into a Joinder
Agreement. The Purchasers and the Issuers are sometimes referred to herein as
the "Interested Parties".
RECITALS
A. The Purchasers intend to purchase from the Issuers or their
respective statutory business trust subsidiaries Securities issued by such
Issuers (the "Securities").
B. In order to facilitate any future transfer of all or any
portion of the Securities by the Purchasers, the Interested Parties intend to
provide for the custody of the Securities and certain other securities on the
terms set forth herein.
C. The Custodian is willing to hold and administer such securities
and to distribute the securities held by it in accordance with the agreement of
the Interested Parties and/or arbitral or judicial orders and decrees as set
forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
herein contained and other good and valuable consideration (the receipt,
adequacy and sufficiency of which are hereby acknowledged by the parties by
their execution hereof), the parties agree as follows:
1. Joinder Agreement. On or before the delivery to the Custodian of any
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Securities issued by an Issuer, such Issuer and the applicable Purchaser or
Purchasers shall enter into a Joinder Agreement substantially in the form of
Exhibit A attached hereto, with such additional provisions as the Interested
Parties may wish to add from time to time. An executed copy of each such Joinder
Agreement shall be delivered to the Custodian on or before the date on which
such Issuer's Securities are issued. This Agreement and each Joinder Agreement
constitute the entire agreement among the Purchasers, Issuers and the Custodian
pertaining to the subject matter hereof.
2. Delivery of Securities. On or before each date on which an Issuer
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enters into a Joinder Agreement:
(a) The applicable Issuer shall deliver to the Custodian a signed,
authenticated certificate representing a beneficial interest in such
Issuer's Securities, with the Purchaser designated as owner thereof
(the "Original Securities"). The Custodian shall have no responsibility
for the genuineness, validity, market value, title or sufficiency for
any intended purpose of the Original Securities.
(b) The applicable Issuer shall deliver to the Custodian five
signed, unauthenticated and undated certificates with no holder
designated, each of which when completed representing a beneficial
interest in interest in such Issuer's Securities (the "Replacement
Securities"). The Custodian shall have no responsibility for the
genuineness, validity, market value, title or sufficiency for any
intended purpose of the Replacement Securities.
3. Timing of Release from Custody. Upon receipt of a signed transfer
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notice in the form of Exhibit B to be delivered in connection with the
Purchaser's transfer of all or any portion of an Issuer's Securities, on the
effective date set forth in such transfer notice, the Custodian shall:
(a) Deliver the Original Securities certificate corresponding to
the Issuer identified in the transfer notice to Wilmington Trust
Company, as Institutional Trustee under the Amended and Restated
Declaration of Trust, dated as of the date of the applicable Joinder
Agreement, among the Institutional Trustee, the Issuer and the
administrators named therein (the "Declaration") or as Trustee under
the Indenture, dated as of the date of the applicable Joinder
Agreement, between the Issuer and the Trustee (the "Indenture"), as
applicable, for the purpose of canceling the applicable Original
Securities certificate in accordance with the terms of the Issuer's
Amended and Restated Declaration of Trust or Indenture, as applicable;
and
(b) Deliver the Replacement Securities certificate(s) corresponding
to the Issuer identified in the transfer notice in the amount
designated in and in accordance with the transfer notice for the
purpose of completing and authenticating the applicable Replacement
Securities certificate(s) in accordance with the terms of the Issuer's
Declaration or Indenture, as applicable.
The initial term of this Agreement shall be one year (the "Initial
Term"). Unless FTN Financial Capital Markets or Keefe, Bruyette &
Woods, Inc. shall otherwise notify the Custodian in writing, upon
expiration of the Initial Term, this Agreement shall automatically
renew for an additional one-year term and shall continue to
automatically renew for succeeding one-year terms until terminated.
Upon termination of this Agreement, the Custodian and the Interested
Parties shall be released from all obligations hereunder, except for
the indemnification obligations set forth in paragraphs 5(b) and 5(c)
hereof.
4. Concerning the Custodian.
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(a) Each Interested Party acknowledges and agrees that the
Custodian (i) shall not be responsible for any of the agreements
referred to or described herein (including without limitation any
Issuer's Declaration or Indenture relating to such Issuer's
Securities), or for determining or compelling compliance therewith, and
shall not otherwise be bound thereby, (ii) shall be obligated only for
the performance of such duties as are expressly and specifically set
forth in this Agreement on its part to be performed, each of which are
ministerial (and shall not be construed to be fiduciary) in nature, and
no implied duties or obligations of any kind shall be read into this
Agreement against or on the part of the Custodian, (iii) shall not be
obligated to take any legal or other action hereunder which might in
its judgment involve or cause it to incur any expense or liability
unless it shall have been furnished with acceptable indemnification,
(iv) may rely on and shall be protected in acting or refraining from
acting upon any written notice, instruction, instrument, statement,
certificate, request or other document furnished to it hereunder and
believed by it to be genuine and to have been signed or presented by
the proper person, and shall have no responsibility for determining the
accuracy thereof, and (v) may consult counsel satisfactory to it,
including in-house counsel, and the opinion or advice of such counsel
in any instance 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 the opinion or advice of such
counsel.
(b) The Custodian shall not be liable to anyone for any action
taken or omitted to be taken by it hereunder except in the case of the
Custodian's negligence or willful misconduct in breach of the terms of
this Agreement. In no event shall the Custodian be liable for indirect,
punitive, special or consequential damage or loss (including but not
limited to lost profits) whatsoever, even if the Custodian has been
informed of the likelihood of such loss or damage and regardless of the
form of action.
(c) The Custodian shall have no more or less responsibility or
liability on account of any action or omission of any book-entry
depository, securities intermediary or other subcustodian employed by
the Custodian than any such book-entry depository, securities
intermediary or other subcustodian has to the Custodian, except to the
extent that such action or omission of any book-entry depository,
securities intermediary or other subcustodian was caused by the
Custodian's own negligence, bad faith or willful misconduct in breach
of this Agreement.
(d) The recitals contained herein shall be taken as the statements
of each of the Issuers and the Purchaser, and the Custodian assumes no
responsibility for the correctness of the same. The Custodian makes no
representations as to the validity or sufficiency of this Agreement or
the Securities. The Custodian shall not be accountable for the use or
application by any of the Issuers or the Purchaser of any Securities or
the proceeds of any Securities.
5. Compensation, Expense Reimbursement and Indemnification.
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(a) The Custodian shall be compensated pursuant to a separate fee
agreement.
(b) Each of the Interested Parties agrees, jointly and severally,
to reimburse the Custodian on demand for all costs and expenses
incurred in connection with the administration of this Agreement or the
performance or observance of its duties hereunder which are in excess
of its customary compensation for normal services hereunder, including
without limitation, payment of any legal fees and expenses incurred by
the Custodian in connection with resolution of any claim by any party
hereunder.
(c) Each of the Interested Parties covenants and agrees, jointly
and severally, to indemnify the Custodian (and its directors, officers
and employees) and hold it (and such directors, officers and employees)
harmless from and against any loss, liability, damage, cost and expense
of any nature incurred by the Custodian arising out of or in connection
with this Agreement or with the administration of its duties hereunder,
including but not limited to attorney's fees and other costs and
expenses of defending or preparing to defend against any claim of
liability unless and except to the extent such loss, liability, damage,
cost and expense shall be caused by the Custodian's negligence, bad
faith, or willful misconduct. The provisions in this paragraph 5 shall
survive the expiration of this Agreement and the resignation or removal
of the Custodian.
6. Voting Rights. The Custodian shall be under no obligation to preserve,
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protect or exercise rights in the Original Securities, and shall be responsible
only for reasonable measures to maintain the physical safekeeping thereof, and
otherwise to perform and observe such duties on its part as are expressly set
forth in this Agreement. The Custodian shall not be responsible for forwarding
to any Interested Party, notifying any Interested Party with respect to, or
taking any action with respect to, any notice, solicitation or other document
or information, written or otherwise, received from an issuer or other person
with respect to the Original Securities, including but not limited to, proxy
material, tenders, options, the pendency of calls and maturities and expiration
of rights.
7. Resignation. The Custodian may at any time resign as Custodian
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hereunder by giving thirty (30) days' prior written notice of resignation to
each of the Interested Parties. Prior to the effective date of the resignation
as specified in such notice, the Interested Parties will issue to the Custodian
a written instruction authorizing redelivery of the Original Securities and the
Replacement Securities to a bank or trust company that they select as successor
to the Custodian hereunder. If, however, the Interested Parties shall fail to
name such a successor custodian within twenty days after the notice of
resignation from the Custodian, the Purchasers shall be entitled to name such
successor custodian. If no successor custodian is named by the Interested
Parties or the Purchasers, the Custodian may apply to a court of competent
jurisdiction for appointment of a successor custodian.
8. Dispute Resolution. It is understood and agreed that should any
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dispute arise with respect to the delivery, ownership, right of possession,
and/or disposition of the Original Securities or the Replacement Securities, or
should any claim be made upon the Custodian, the Original Securities or the
Replacement Securities by a third party, the Custodian upon receipt of notice of
such dispute or claim is authorized and shall be entitled (at its sole option
and election) to retain in its possession without liability to anyone, all or
any of said Original Securities and Replacement Securities until such dispute
shall have been settled either by the mutual written agreement of the parties
involved or by a final order, decree or judgment of a court in the United States
of America, the time for perfection of an appeal of such order, decree or
judgment having expired. The Custodian may, but shall be under no duty
whatsoever to, institute or defend any legal proceedings which relate to the
Original Securities and Replacement Securities.
9. Consent to Jurisdiction and Service. Each of the Interested Parties
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hereby absolutely and irrevocably consents and submits to the jurisdiction of
the courts in the State of Delaware and of any Federal court located in said
State in connection with any actions or proceedings brought against any of the
Interested Parties (or each of them) by the Custodian arising out of or relating
to this Agreement. In any such action or proceeding, the Interested Parties each
hereby absolutely and irrevocably (i) waives any objection to jurisdiction or
venue, (ii) waives personal service of any summons, complaint, declaration or
other process, and (iii) agrees that the service thereof may be made by
certified or registered first-class mail directed to such party, as the case may
be, at their respective addresses in accordance with paragraph 10 hereof.
10. Force Majeure. The Custodian shall not be responsible for delays or
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failures in performance resulting from acts beyond its control. Such acts shall
include but not be limited to acts of God, strikes, lockouts, riots, acts of
war, epidemics, governmental regulations superimposed after the fact, fire,
communication line failures, computer viruses, power failures, earthquakes or
other disasters.
11. Notices.
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(a) Any notice permitted or required hereunder shall be in
writing, and shall be sent by personal delivery, overnight delivery by
a recognized courier or delivery service, mailed by registered or
certified mail, return receipt requested, postage prepaid, or by
confirmed facsimile accompanied by mailing of the original on the same
day by first class mail, postage prepaid, in each case the parties at
their address set forth below (or to such other address as any such
party may hereafter designate by written notice to the other parties).
If to an Issuer, to the address appearing on such Issuer's Joinder
Agreement
If to the Purchaser, to the address appearing on such Purchaser's
Joinder Agreement
If to the Custodian:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-1600
Attention: Chris Slaybaugh - Corporate Trust Administration
Fax: 302-636-4140
12. Miscellaneous.
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(a) Binding Effect. This Agreement shall be binding upon the
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respective parties hereto and their heirs, executors, successors and
assigns.
(b) Modifications. This Agreement may not be altered or
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modified without the express written consent of the parties hereto. No
course of conduct shall constitute a waiver of any of the terms and
conditions of this Agreement, unless such waiver is specified in
writing, and then only to the extent so specified. A waiver of any of
the terms and conditions of this Agreement on one occasion shall not
constitute a waiver of the other terms of this Agreement, or of such
terms and conditions on any other occasion.
(c) Governing Law. This Agreement shall be governed by and
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construed in accordance with the internal laws of the State of
Delaware.
(d) Reproduction of Documents. This Agreement and all documents
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relating thereto, including, without limitation, (a) consents, waivers
and modifications which may hereafter be executed, and (b) certificates
and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, optical disk,
micro-card, miniature photographic or other similar process. The
parties agree that any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence and whether or
not such reproduction was made by a party in the regular course of
business, and that any enlargement, facsimile or further reproduction
of such reproduction shall likewise be admissible in evidence.
(e) Counterparts. This Agreement may be executed in several
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counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
signatures appear on the following page
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day first above written.
WILMINGTON TRUST COMPANY
By:
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Print Name:
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Title:
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EXHIBIT A TO MASTER CUSTODIAN AGREEMENT
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FORM OF JOINDER AGREEMENT
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March 1, 2006
This Joinder Agreement (this "Agreement") is entered into as of March
1, 2006 by First Tennessee Bank National Association (the "Purchaser") and First
Banks, Inc. (the "Issuer").
RECITALS
A. Wilmington Trust Company (the "Custodian") is party to that
certain Master Custodian Agreement dated as of May 27, 2004, as amended (the
"Custodian Agreement").
B. The Custodian Agreement provides that certain financial
institutions that have issued securities (or whose statutory trust subsidiaries
have issued securities) and the Purchaser of such securities will join into the
Custodian Agreement pursuant to the terms of a joinder agreement.
C. On the date hereof, Issuer is issuing securities to the
Purchaser and the Issuer and the Purchaser desire to enter into this
Agreement to facilitate the subsequent transfer of the Issuer's securities by
the Custodian.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
herein contained and other good and valuable consideration (the receipt,
adequacy and sufficiency of which are hereby acknowledged by the Issuer by its
execution hereof), the Issuer agrees as follows:
1. Joinder. The Issuer and Purchaser hereby join in the Custodian
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Agreement and agree to be subject to, and bound by, the terms and provisions of
the Custodian Agreement that are ascribed to "Issuers" and "Purchasers"
respectively therein to the same extent as if the Issuer and Purchaser had
signed the Custodian Agreement as an original party thereto.
2. Notice. Any notice permitted or required to be sent to
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an Issuer under the Custodian Agreement shall be sent to the following address:
First Banks, Inc.
600 James S. McDonnell Boulevard
Hazelwood, Missouri 63042
Attention: Lisa K. Vansickle
Any notice permitted or required to be sent to a Purchaser under the
Custodian Agreement shall be sent to the following address:
First Tennessee Bank National Association
845 Crossover Lane, Suite 150
Memphis, Tennessee 38117
Attention: David Work
3. Termination. This Agreement and the Purchaser's and Issuer's
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respective rights and obligations under the Custodian Agreement shall terminate
upon the transfer of all of Issuer's securities pursuant to the Custodian
Agreement.
4. Entire Agreement. This Agreement and the Custodian Agreement
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constitute the entire agreement among the Purchaser, Issuer and the Custodian
pertaining to the subject matter hereof.
IN WITNESS WHEREOF, the Issuer and Purchaser have executed this
Agreement as of the day first above written.
FIRST BANKS, INC.
By:
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Name:
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Title:
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FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By:
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Name:
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Title:
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EXHIBIT B TO MASTER CUSTODIAN AGREEMENT
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FORM OF TRANSFER NOTICE
[DATE]
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-1600
Attention: Corporate Trust Administration
Dear Sir or Madam:
The undersigned hereby notifies you of the transfer of [________] of
the Capital Securities of First Bank Statutory Trust IV, such transfer to be
effective on [DATE OF TRANSFER]. In accordance with Section 7.9 of the Placement
Agreement dated February 16, 2006 between the Offerors and the placement agents
named therein (the "Placement Agreement"), periodic reports shall be delivered
to [_______________] in accordance with such Section 7.9 during the term of the
Capital Securities, in the form attached thereto. Capitalized terms used in this
notice and not otherwise defined shall have the meanings ascribed to such terms
in the Placement Agreement.
The undersigned hereby instructs you as Custodian to deliver the
Original Securities certificate to Wilmington Trust Company, as Institutional
Trustee (the "Trustee") under the Amended and Restated Trust Agreement dated
March 1, 2006 among the Trustee, First Banks, Inc. and the administrative
trustees named therein (the "Trust Agreement") for cancellation in accordance
with the terms of the Trust Agreement and to deliver the Replacement Securities
certificate to the Trustee for authentication in accordance with the terms of
the Trust Agreement.
By copy of this notice, the Institutional Trustee is hereby instructed
to make the Replacement Securities certificate registered to [NAME, ADDRESS AND
IDENTITY OF TRANSFEREE] in the liquidation amount of [_________] and bearing the
identification number "CUSIP NO. [__________]" and to authenticate and deliver
the Replacement Securities certificate to [_____________].
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By:
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Name:
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Title:
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cc: First Banks, Inc.
Wilmington Trust Company, as Trustee