Exhibit 4.6
JUNIOR SUBORDINATED NOTE SUBSCRIPTION AGREEMENT
THIS JUNIOR SUBORDINATED NOTE SUBSCRIPTION AGREEMENT, dated as of
February 23, 2007 (this "Agreement"), between First Banks, Inc., a Missouri
corporation (the "Company"), and First Bank Statutory Trust VIII, a statutory
trust created under the laws of the State of Delaware (the "Trust"), relating to
the Junior Subordinated Notes due 2037 (the "Notes"), issuable pursuant to an
Indenture, dated the date hereof, between the Company and Wilmington Trust
Company, as Trustee (the "Indenture"). Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed thereto in the Indenture.
WHEREAS, the Company, the Trust and the Purchasers have entered into a
Purchase Agreement, dated February 23, 2007 (the "Purchase Agreement"), in
connection with the issuance and sale of preferred securities (liquidation
amount of $1,000 per security) (the "Preferred Securities") by the Trust; and
WHEREAS, the Company and the Trust have entered into a Common
Securities Subscription Agreement, dated the date hereof (the "Common Securities
Subscription Agreement"), in connection with the issuance and sale of common
securities (liquidation amount of $1,000 per security) (the "Common Securities")
by the Trust; and
WHEREAS, in connection with the Purchase Agreement and the Common
Securities Subscription Agreement and the issuance and sale of the Preferred
Securities and the Common Securities, respectively, pursuant thereto, the Trust
desires to purchase from the Company, and the Company desires to sell to the
Trust, all of the Notes.
NOW, THEREFORE, in consideration of the foregoing premises and the
conditions and agreements hereinafter set forth, the parties hereto agree as
follows:
1. The Trust hereby offers to purchase from the Company, and the
Company hereby accepts such offer and agrees to issue and sell to the Trust, on
the date hereof, TWENTY-FIVE MILLION SEVEN HUNDRED SEVENTY-FOUR THOUSAND AND
00/100 DOLLARS ($25,774,000) aggregate principal amount of Notes, in
consideration of the payment on or before the date hereof of TWENTY-FIVE MILLION
SEVEN HUNDRED SEVENTY-FOUR THOUSAND AND 00/100 DOLLARS ($25,774,000) in
immediately available funds.
2. The Company represents and warrants that the Notes have been duly
authorized and executed by the Company, and, when duly authenticated and
delivered to the Trust in accordance with the terms hereof and of the Indenture,
will constitute the valid and binding obligations of the Company entitled to the
benefits of the Indenture, enforceable against the Company in accordance with
their terms, except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally or by general principles of equity
(regardless of whether considered in a proceeding in equity or at law).
3. This Agreement and the rights and obligations of each of the
parties hereto 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).
4. ANY LEGAL ACTION OR PROCEEDING BY OR AGAINST ANY PARTY HERETO OR
WITH RESPECT TO OR ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT IN OR REMOVED TO
THE COURTS OF THE STATE OF NEW YORK, IN AND FOR THE COUNTY OF NEW YORK, OR OF
THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK (IN EACH CASE
SITTING IN THE BOROUGH OF MANHATTAN). BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH PARTY ACCEPTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS (AND
COURTS OF APPEALS THEREFROM) FOR LEGAL PROCEEDINGS ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT.
5. This Agreement may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument. Delivery
of an executed signature page of this Agreement by facsimile transmission shall
be effective as delivery of a manually executed counterpart hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
FIRST BANKS, INC.
By: /s/ Terrance M. McCarthy
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Terrance M. McCarthy
Senior Executive Vice President and
Chief Operating Officer
First Bank Statutory Trust VIII
By: /s/ Terrance M. McCarthy
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Terrance M. McCarthy
Administrative Trustee
By: /s/ Peter D. Wimmer
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Peter D. Wimmer
Administrative Trustee
By: /s/ Lisa K. Vansickle
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Lisa K. Vansickle
Administrative Trustee