Exhibit 4.5
JUNIOR SUBORDINATED NOTE DUE 2037
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND SUCH SECURITIES, AND ANY INTEREST THEREIN,
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF ANY
SECURITIES IS HEREBY NOTIFIED THAT THE SELLER OF THE SECURITIES MAY BE RELYING
ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED
BY RULE 144A UNDER THE SECURITIES ACT.
THE HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR
THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITIES MAY BE OFFERED, RESOLD OR
OTHERWISE TRANSFERRED ONLY (I) TO THE COMPANY, (II) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, OR (III) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT
IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF AN
"ACCREDITED INVESTOR," WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT, FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND,
IN THE CASE OF (III), SUBJECT TO THE RIGHT OF THE COMPANY TO REQUIRE AN OPINION
OF COUNSEL ADDRESSING COMPLIANCE WITH THE U.S. SECURITIES LAWS, AND OTHER
INFORMATION SATISFACTORY TO IT AND (B) THE HOLDER WILL NOTIFY ANY PURCHASER OF
ANY SECURITIES FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
THE SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS
HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000. TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY ATTEMPTED TRANSFER OF SECURITIES, OR ANY INTEREST
THEREIN, IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000
AND MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE DEEMED TO BE VOID AND OF NO
LEGAL EFFECT WHATSOEVER. TO THE FULLEST EXTENT PERMITTED BY LAW, ANY SUCH
PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH SECURITIES FOR
ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF PRINCIPAL OF OR
INTEREST ON SUCH SECURITIES, OR ANY INTEREST THEREIN, AND SUCH PURPORTED
TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH SECURITIES.
THE HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE
HEREOF OR THEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN
EMPLOYEE BENEFIT PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR
ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE") (EACH A "PLAN"), OR AN ENTITY WHOSE UNDERLYING
ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY,
AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN MAY ACQUIRE OR HOLD THIS
SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE
FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER SECTION 408(b)(17) OF ERISA, U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38,
90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF
THIS SECURITY, OR ANY INTEREST THEREIN, ARE NOT PROHIBITED BY SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE AND HOLDING. ANY
PURCHASER OR HOLDER OF THE SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO
HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT
AN EMPLOYEE BENEFIT PLAN OR OTHER PLAN TO WHICH TITLE I OF ERISA OR SECTION 4975
OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF ANY
SUCH EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE
"PLAN ASSETS" OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH
PURCHASE, OR (ii) SUCH PURCHASE OR HOLDING WILL NOT RESULT IN A PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH
FULL EXEMPTIVE RELIEF IS NOT AVAILABLE UNDER AN APPLICABLE STATUTORY OR
ADMINISTRATIVE EXEMPTION.
THIS OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED
STATES OR ANY AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT
INSURANCE CORPORATION.
First Banks, Inc.
Floating Rate Junior Subordinated Note due 2037
No. 1 $25,774,000
First Banks, Inc., a corporation organized and existing under the laws
of Missouri (hereinafter called the "Company," which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to Wilmington Trust Company, not in its individual capacity but
solely as Property Trustee for First Bank Statutory Trust VIII (the "Holder"),
or registered assigns, the principal sum of $ TWENTY FIVE MILLION SEVEN HUNDRED
SEVENTY-FOUR THOUSAND AND 00/100 ($25,774,000) DOLLARS on March 30, 2037. The
Company further promises to pay interest on said principal sum from February 23,
2007, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, quarterly (subject to deferral as set forth herein)
in arrears on March 30th , June 30th, September 30th and December 30th of each
year, commencing on March 30, 2007 , or if any such day is not a Business Day,
on the next succeeding Business Day (and no interest shall accrue in respect of
the amounts whose payment is so delayed for the period from and after such
Interest Payment Date until such next succeeding Business Day), except that, if
such Business Day falls in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case, with the same
force and effect as if made on the Interest Payment Date, at a variable rate per
annum, reset quarterly, equal to LIBOR plus 1.61%, together with Additional Tax
Sums, if any, as provided in Section 10.5 of the Indenture, until the principal
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hereof is paid or duly provided for or made available for payment; provided,
that any overdue principal, premium, if any, or Additional Tax Sums and any
overdue installment of interest shall bear Additional Interest (to the extent
that the payment of such interest shall be legally enforceable) at a variable
rate per annum, reset quarterly, equal to LIBOR plus 1.61%, compounded
quarterly, from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on demand.
The amount of interest payable for any interest period shall be
computed and paid on the basis of a 360-day year and the actual number of days
elapsed in the relevant interest period. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date shall, as provided in
the Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest installment. Any such interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
not less than ten (10) days prior to such Special Record Date, or be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange or automated quotation system on which the Securities may be
listed, traded or quoted and upon such notice as may be required by such
exchange or automated quotation system, all as more fully provided in the
Indenture.
So long as no Event of Default pursuant to Sections 5.1(c), (e), (f),
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(g) or (h) of the Indenture has occurred and is continuing, the Company shall
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have the right, at any time and from time to time during the term of this
Security, to defer the payment of interest on this Security for a period of up
to twenty (20) consecutive quarterly interest payment periods (each such period,
an "Extension Period"), during which Extension Period(s), no interest shall be
due and payable (except any Additional Tax Sums that may be due and payable). No
Extension Period shall end on a date other than an Interest Payment Date, and no
Extension Period shall extend beyond the Stated Maturity of the principal of
this Security. No interest shall be due and payable during an Extension Period
(except any Additional Tax Sums that may be due and payable), except at the end
thereof, but each installment of interest that would otherwise have been due and
payable during such Extension Period shall bear Additional Interest (to the
extent payment of such interest would be legally enforceable) at a variable rate
per annum, reset quarterly, equal to LIBOR plus 1.61%, compounded quarterly,
from the dates on which amounts would have otherwise been due and payable until
paid or made available for payment. At the end of any such Extension Period, the
Company shall pay all interest then accrued and unpaid on this Security,
together with such Additional Interest. Prior to the termination of any such
Extension Period, the Company may further defer the payment of interest;
provided, that (i) all such previous and further extensions comprising such
Extension Period do not exceed twenty (20) quarterly interest payment periods,
(ii) no Extension Period shall end on a date other than an Interest Payment Date
and (iii) no Extension Period shall extend beyond the Stated Maturity of the
principal of this Security. Upon the termination of any such Extension Period
and upon the payment of all accrued and unpaid interest and any Additional
Interest then due on any Interest Payment Date, the Company may elect to begin a
new Extension Period; provided, that (i) such Extension Period does not exceed
twenty (20) quarterly interest payment periods, (ii) no Extension Period shall
end on a date other than an Interest Payment Date, (iii) no Extension Period
shall extend beyond the Stated Maturity of the principal of this Security and
(iv) no Event of Default pursuant to Sections 5.1(c), (e), (f), (g) or (h) has
---------------- --- --- --- ---
occurred and is continuing. The Company shall give (i) the Holder of this
Security, (ii) the Trustee, (iii) the Property Trustee and (iv) any beneficial
owner of the Preferred Securities reasonably identified to the Company (which
identification may be made either by such beneficial owner or by any Purchaser)
written notice of its election to begin any such Extension Period no later than
the close of business on the fifteenth (15th) Business Day prior to the next
succeeding Interest Payment Date on which interest on this Security would be
payable but for such deferral.
During any such Extension Period, the Company shall not (i) declare or
pay any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's Equity Interests, (ii)
vote in favor of or permit or otherwise allow any of its Subsidiaries to declare
or pay any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to or otherwise retire, any of such
Subsidiary's Equity Interests entitling the holders thereof to a stated rate of
return, other than dividends or distributions on Equity Interests issued by any
Subsidiary solely payable to the Company or any Subsidiary thereof (for the
avoidance of doubt, whether such Equity Interests are perpetual or otherwise),
or (iii) make any payment of principal of or any interest or premium on or
repay, repurchase or redeem any debt securities of the Company that rank pari
passu in all respects with or junior in interest to this Security (other than
(a) repurchases, redemptions or other acquisitions of Equity Interests of the
Company in connection with (1) any employment contract, benefit plan or other
similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants, (2) a dividend reinvestment or stockholder
stock purchase or similar plan with respect to any Equity Interests or (3) the
issuance of Equity Interests of the Company (or securities convertible into or
exercisable for such Equity Interests) as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (b) as a
result of an exchange or conversion of any class or series of the Company's
Equity Interests (or any Equity Interests of a Subsidiary of the Company) for
any class or series of the Company's Equity Interests or of any class or series
of the Company's indebtedness for any class or series of the Company's Equity
Interests, (c) the purchase of fractional interests in Equity Interests of the
Company pursuant to the conversion or exchange provisions of such Equity
Interests or the security being converted or exchanged, (d) any declaration of a
dividend in connection with any Rights Plan, the issuance of rights, Equity
Interests or other property under any Rights Plan, or the redemption or
repurchase of rights pursuant thereto or (e) any dividend in the form of Equity
Interests, warrants, options or other rights where the dividend Equity Interests
or the Equity Interests issuable upon exercise of such warrants, options or
other rights are the same Equity Interests as those on which the dividend is
being paid or rank pari passu with or junior to such Equity Interests).
Payment of principal of, premium, if any, and interest on this Security
shall be made in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts.
Payments of principal, premium, if any, and interest due at the Maturity of this
Security shall be made at the office or agency of the Company maintained for
that purpose in the Place of Payment upon surrender of such Securities to the
Paying Agent, and payments of interest shall be made, subject to such surrender
where applicable, by wire transfer at such place and to such account at a
banking institution in the United States as may be designated in writing to the
Paying Agent at least ten (10) Business Days prior to the date for payment by
the Person entitled thereto unless proper written wire transfer instructions
have not been received by the relevant record date, in which case such payments
shall be made by check mailed to the address of such Person as such address
shall appear in the Security Register. Notwithstanding the foregoing, so long as
the Holder of this Security is the Property Trustee, the payment of the
principal of (and premium, if any) and interest (including any overdue
installment of interest and Additional Tax Sums, if any) on this Security will
be made at such place and to such account as may be designated by the Property
Trustee.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Debt, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such actions as
may be necessary or appropriate to effectuate the subordination so provided and
(c) appoints the Trustee his or her attorney-in-fact for any and all such
purposes. Each Holder hereof, by his or her acceptance hereof, waives all notice
of the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Debt, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has duly executed this certificate this
23 day of February, 2007.
FIRST BANKS, INC.
By:/s/ Terrance M. McCarthy
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Name: Terrance M. McCarthy
Title: Senior Executive Vice President
and Chief Operating Officer
This represents Securities referred to in the within-mentioned
Indenture.
Dated: February 23, 2007
WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Trustee
By:/s/ W. Thomas Morris, II
-----------------------------------
Name: W. Thomas Morris, II
Title: Assistant Vice President
REVERSE OF SECURITY
This Security is one of a duly authorized issue of securities of the
Company (the "Securities") issued under the Junior Subordinated Indenture, dated
as of February 23, 2007 (the "Indenture"), between the Company and Wilmington
Trust Company, as Trustee (in such capacity, the "Trustee," which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee, the holders of Senior Debt and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
All terms used in this Security that are defined in the Indenture or in
the Amended and Restated Trust Agreement, dated as of February 23, 2007 (as
modified, amended or supplemented from time to time, the "Trust Agreement"),
relating to First Bank Statutory Trust VIII (the "Trust"), among the Company, as
Depositor, the trustees named therein and the holders from time to time of the
Trust Securities issued pursuant thereto, shall have the meanings assigned to
them in the Indenture or the Trust Agreement, as the case may be.
The Company may, on any Interest Payment Date, at its option, upon not
less than thirty (30) days' nor more than sixty (60) days' written notice to the
Holders of the Securities (unless a shorter notice period shall be satisfactory
to the Trustee) on or after March 30, 2012 and subject to the terms and
conditions of Article XI of the Indenture, redeem this Security in whole at any
time or in part from time to time at a Redemption Price equal to one hundred
percent (100%) of the principal amount hereof, together, in the case of any such
redemption, with accrued interest, including any Additional Interest, to but
excluding the date fixed for redemption; provided, that the Company shall have
received the prior approval of the Federal Reserve if then required.
In addition, upon the occurrence and during the continuation of a
Special Event, the Company may, at its option, upon not less than thirty (30)
days' nor more than sixty (60) days' written notice to the Holders of the
Securities (unless a shorter notice period shall be satisfactory to the
Trustee), redeem this Security, in whole but not in part, subject to the terms
and conditions of Article XI of the Indenture at the Special Event Redemption
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Price; provided, that the Company shall have received the prior approval of the
Federal Reserve if then required.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof. If less than all the
Securities are to be redeemed, the particular Securities to be redeemed shall be
selected not more than sixty (60) days prior to the Redemption Date by the
Trustee from the Outstanding Securities not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of a portion of the principal amount of any
Security.
The Indenture permits, with certain exceptions as therein provided, the
Company and the Trustee at any time to enter into a supplemental indenture or
indentures for the purpose of modifying in any manner the rights and obligations
of the Company and of the Holders of the Securities, with the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities. The Indenture also contains provisions permitting Holders of
specified percentages in principal amount of the Securities, on behalf of the
Holders of all Securities, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest, including any Additional Interest, on this Security at the times,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Securities
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company maintained for such purpose, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar and duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Securities, of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities are issuable only in registered form without coupons in
minimum denominations of $100,000 and any integral multiple of $1,000 in excess
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Securities are exchangeable for a like aggregate principal amount of
Securities and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Company and, by its acceptance of this Security or a beneficial
interest herein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree that, for United States federal, state and
local tax purposes, it is intended that this Security constitute indebtedness.
This Security shall be construed and enforced in accordance with and
governed by the laws of the State of New York, without reference to its conflict
of laws provisions (other than Section 5-1401 of the General Obligations Law).