Exhibit 4.6
FIRST BANK STATUTORY TRUST V
FIRST BANKS, INC.
SUBSCRIPTION AGREEMENT
April 28, 2006
THIS SUBSCRIPTION AGREEMENT (this "Agreement") made among First Bank
Statutory Trust V (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, Mail Stop -
M1-199-014, 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 20,000 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 20,000 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 April 28, 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 April 27, 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
Mail Stop - M1-199-014
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 V
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 entity (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 enters
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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 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 notice in
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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 hereunder
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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 dispute
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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 modified
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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 construed
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in accordance with the internal laws of the State of Delaware.
(d) Reproduction of Documents. This Agreement and all documents relating
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thereto, i ncluding, 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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April 28, 2006
This Joinder Agreement (this "Agreement") is entered into as of April
28, 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 an
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Issuer under the Custodian Agreement shall be sent to the following address:
First Banks, Inc.
600 James S. McDonnell Boulevard
Mail Stop - M1-199-014
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 V, such transfer to be
effective on [DATE OF TRANSFER]. In accordance with Section 7.9 of the Placement
Agreement dated April 27, 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
April 28, 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