Exhibit 4.59
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GUARANTEE AGREEMENT
by and between
FIRST BANKS, INC.
and
WILMINGTON TRUST COMPANY
Dated as of December 14, 2006
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<PAGE>
GUARANTEE AGREEMENT
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This GUARANTEE AGREEMENT (this "Guarantee"), dated as of December 14,
2006, is executed and
delivered by First
Banks, Inc., a
Missouri
corporation
(the "Guarantor"), and Wilmington Trust Company, a Delaware banking
corporation,
as trustee (the "Guarantee Trustee"), for the benefit of the
Holders (as defined
herein) from time to time of the Capital Securities (as defined
herein) of First
Bank Statutory Trust VII, a Delaware statutory trust (the
"Issuer").
WHEREAS, pursuant to
an Amended and Restated Declaration of Trust (the
"Declaration"), dated
as of the date hereof among Wilmington Trust Company, not
in its individual capacity but solely as institutional trustee, the
administrators of the Issuer named therein, the Guarantor, as sponsor, and the
holders from time to time of undivided beneficial interests in the
assets of the
Issuer, the Issuer is
issuing on the date
hereof those
undivided beneficial
interests, having
an aggregate liquidation amount of $50,000,000.00 (the
"Capital Securities"); and
WHEREAS, as
incentive for the Holders to purchase the Capital
Securities, the
Guarantor desires
irrevocably and unconditionally to agree, to
the extent
set forth in this Guarantee, to pay to the Holders of Capital
Securities the Guarantee Payments (as defined herein) and
to make certain other
payments on the terms and conditions set forth herein;
NOW, THEREFORE, in
consideration of the purchase by each Holder of the
Capital Securities, which purchase the Guarantor hereby agrees
shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee for
the benefit of
the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1.
Definitions and Interpretation. In this Guarantee,
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unless the context otherwise requires:
(a)
capitalized terms used in this Guarantee but not defined in the
preamble above have
the respective
meanings assigned to them in this
Section
1.1;
(b) a term
defined anywhere in this Guarantee has the same meaning
throughout;
(c) all
references
to "the Guarantee" or "this Guarantee" are to
this Guarantee as modified, supplemented or amended from time to
time;
(d)
all
references in this Guarantee to "Articles" or "Sections" are
to Articles or Sections of this Guarantee, unless otherwise
specified;
(e) terms
defined in the
Declaration
as at the date of
execution
of this Guarantee
have the same meanings
when used in this
Guarantee, unless
otherwise defined in
this Guarantee or unless the context otherwise requires;
and
(f) a
reference to the singular includes the plural and vice versa.
"Affiliate" has the
same meaning as given
to that term in Rule 405 of
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the Securities Act of 1933, as amended, or any successor rule
thereunder.
"Beneficiaries" means
any Person to whom the
Issuer is or
hereafter
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becomes indebted or liable.
<PAGE>
"Capital Securities"
has the meaning set forth in the recitals to this
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Guarantee.
"Common Securities" means the common securities issued by the
Issuer to
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the Guarantor pursuant to the Declaration.
"Corporate Trust
Office" means the office of the Guarantee Trustee at
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which the corporate
trust business of the Guarantee Trustee shall, at any
particular time,
be principally administered, which office at the date of
execution of this Guarantee is located at Rodney Square North, 1100
North Market
Street,
Wilmington,
Delaware
19890-1600, Attention:
Corporate
Trust
Administration.
"Covered Person" means any Holder of Capital Securities.
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"Debentures" means the debt securities of the Guarantor
designated the
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Floating Rate Junior
Subordinated
Deferrable Interest Debentures due 2036 held
by the Institutional Trustee (as defined in the Declaration) of the
Issuer.
"Declaration Event of
Default" means an
"Event of Default" as defined
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in the Declaration.
"Event of Default" has the meaning set forth in Section 2.4(a).
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"Guarantee Payments"
means the following
payments or
distributions,
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without duplication,
with respect to the Capital Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid
Distributions (as defined
in the Declaration)
which are required to be paid on such Capital Securities to
the extent the Issuer shall have funds available therefor, (ii) the Redemption
Price to the extent the Issuer has funds available therefor, with
respect to any
Capital Securities
called for
redemption
by the Issuer, (iii) the Special
Redemption Price to
the extent the Issuer has funds available therefor, with
respect to Capital
Securities redeemed
upon the occurrence of a Special Event,
and (iv) upon a voluntary or involuntary liquidation, dissolution,
winding-up or
termination of the
Issuer (other than in connection with the distribution of
Debentures to the
Holders of the Capital
Securities
in exchange
therefor as
provided in the Declaration), the lesser of (a) the aggregate of
the liquidation
amount and all accrued and unpaid Distributions on the Capital
Securities to the
date of payment, to
the extent the Issuer shall have funds available therefor,
and (b) the amount of assets of the Issuer remaining available for distribution
to Holders in
liquidation of the
Issuer (in
either case, the "Liquidation
Distribution").
"Guarantee Trustee"
means Wilmington Trust Company, until a Successor
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Guarantee Trustee has been appointed and has accepted such
appointment
pursuant
to the terms
of this Guarantee and thereafter means each such Successor
Guarantee Trustee.
"Guarantor" means
First Banks, Inc. and
each of its successors and
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assigns.
"Holder" means any
holder, as
registered on the
books and records of
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the Issuer, of any Capital Securities; provided, however, that, in determining
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whether the Holders of the requisite percentage of Capital
Securities have given
any request, notice, consent or waiver hereunder, "Holder" shall
not include the
Guarantor or any Affiliate of the Guarantor.
"Indemnified Person"
means the Guarantee Trustee, any Affiliate of the
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Guarantee Trustee, or any officers, directors, shareholders,
members, partners,
employees,
representatives,
nominees, custodians
or agents of the
Guarantee
Trustee.
"Indenture" means the Indenture dated as of the date hereof between
the
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Guarantor and
Wilmington Trust
Company, not in its individual capacity but
solely as trustee, and any indenture supplemental thereto pursuant to
which the
Debentures are to be issued to the institutional trustee of the
Issuer.
<PAGE>
"Issuer" has the
meaning set forth in the opening paragraph to this
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Guarantee.
"Liquidation
Distribution" has the meaning set forth in the definition
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of "Guarantee Payments" herein.
"Majority in
liquidation
amount of the Capital Securities" means
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Holder(s) of outstanding Capital Securities, voting together as a class,
but
separately from the
holders of Common Securities, of more than 50% of the
aggregate liquidation
amount (including the stated amount that would be paid on
redemption,
liquidation or otherwise, plus accrued and unpaid
Distributions to
the date upon which
the voting
percentages
are determined) of all Capital
Securities then outstanding.
"Obligations" means
any costs, expenses or liabilities (but not
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including liabilities
related to taxes) of the Issuer other than obligations of
the Issuer to pay to
holders of any Trust Securities the amounts due such
holders pursuant to the terms of the Trust Securities.
"Officer's
Certificate"
means, with
respect to any Person, a
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certificate signed by
one Authorized
Officer of such
Person. Any Officer's
Certificate delivered
with respect to
compliance with a
condition or covenant
provided for in this Guarantee shall include:
(a) a statement that the officer signing the Officer's
Certificate has read
the covenant or condition and the definitions
relating thereto;
(b) a brief statement
of the nature and scope of the examination
or investigation
undertaken by the
officer in rendering the Officer's
Certificate;
(c) a statement that
the officer has made
such examination
or
investigation as, in
such officer's
opinion, is necessary to enable
such officer to
express an informed
opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement
as to whether,
in the opinion of the
officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation,
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estate, partnership,
joint venture,
association, joint
stock company, limited
liability company,
trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of
whatever nature.
"Redemption Price" has the meaning set forth in the Indenture.
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"Responsible Officer" means, with respect to the Guarantee Trustee,
any
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officer within the Corporate Trust Office of the Guarantee Trustee
including any
Vice President, Assistant Vice President, Secretary, Assistant Secretary or
any
other officer of the Guarantee Trustee customarily performing functions similar
to those performed
by any of the above
designated
officers and also, with
respect to a particular corporate trust matter,
any other officer to
whom such
matter is referred
because of that officer's knowledge of and familiarity
with
the particular subject.
"Special Event" has the meaning set forth in the Indenture.
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"Special Redemption Price" has the meaning set forth in the
Indenture.
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<PAGE>
"Successor Guarantee
Trustee" means a successor Guarantee Trustee
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possessing the qualifications to act as Guarantee Trustee under
Section 3.1.
"Trust
Securities" means
the Common Securities and the Capital
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Securities.
ARTICLE II
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
Section 2.1. Powers
and Duties of the Guarantee Trustee.
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(a) This
Guarantee shall be held by the Guarantee Trustee for the
benefit of the Holders
of the Capital
Securities, and the
Guarantee Trustee
shall not transfer
this Guarantee to any Person except a Holder of Capital
Securities exercising
his or her rights
pursuant to Section 4.4(b) or to a
Successor Guarantee Trustee on acceptance by such Successor
Guarantee Trustee of
its appointment to act
as Successor Guarantee
Trustee. The right, title and
interest of the
Guarantee Trustee
shall automatically vest in any Successor
Guarantee Trustee,
and such vesting and
cessation of title
shall be effective
whether or not conveyancing documents have been executed and
delivered pursuant
to the appointment of such Successor Guarantee Trustee.
(b) If an
Event of Default actually known to a Responsible Officer
of the Guarantee
Trustee has occurred and is continuing, the Guarantee Trustee
shall enforce
this Guarantee for the benefit of the Holders of the Capital
Securities.
(c) The
Guarantee Trustee,
before the
occurrence
of any Event of
Default and after
curing all Events of Default that may have occurred, shall
undertake to perform
only such duties as are specifically set forth in this
Guarantee, and no
implied covenants
shall be read into this Guarantee against
the Guarantee Trustee.
In case an Event of
Default has occurred
(that has not
been waived pursuant
to Section 2.4) and is
actually known to a Responsible
Officer of the Guarantee Trustee, the Guarantee Trustee shall
exercise such of
the rights and powers vested in it by this Guarantee, and use the
same degree of
care and skill in its exercise thereof, as a prudent person would exercise or
use under the circumstances in the conduct of his or her own
affairs.
(d) No
provision of this Guarantee shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its
own negligent
failure to act, or its own willful misconduct, except that:
(i) prior
to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the
duties and obligations of the Guarantee
Trustee shall be
determined solely by
the express
provisions
of this Guarantee, and the Guarantee Trustee shall not be
liable
except for the performance of such duties and obligations as
are
specifically set forth
in this Guarantee, and no implied
covenants or
obligations shall
be read into this Guarantee
against the Guarantee Trustee; and
(B) in
the absence of
bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely,
as to the truth of the
statements and the
correctness
of the
opinions
expressed therein, upon any certificates or opinions
furnished to
the Guarantee Trustee and conforming to the
requirements of
this Guarantee; but in the case of any such
certificates or
opinions that
by any provision hereof are
specifically required
to be furnished to the Guarantee Trustee,
the Guarantee Trustee shall be under a duty to examine the
same
to determine whether
or not they conform to the requirements of
this Guarantee;
<PAGE>
(ii) the
Guarantee Trustee shall not be liable for
any error
of judgment
made in good faith by a Responsible Officer of the
Guarantee Trustee,
unless it shall be proved that such
Responsible
Officer of the Guarantee Trustee or the Guarantee Trustee was
negligent
in ascertaining the pertinent facts upon which such judgment was
made;
(iii) the Guarantee Trustee shall not be liable with
respect
to any action taken
or omitted
to be taken by it in good faith in
accordance with the
written direction of
the Holders of not less than
a Majority in
liquidation amount of the Capital Securities relating to
the time, method and
place of conducting any proceeding for any remedy
available to the
Guarantee Trustee, or relating to the exercise of any
trust or power conferred upon the Guarantee Trustee under this
Guarantee; and
(iv) no
provision
of this Guarantee shall require the
Guarantee Trustee to
expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its
duties or
in the exercise of
any of its rights or powers, if the Guarantee
Trustee shall have
reasonable grounds for believing that the repayment
of such funds is not
reasonably assured
to it under the terms of
this Guarantee or security and indemnity, reasonably satisfactory to
the Guarantee Trustee, against such risk or liability is not
reasonably
assured to it.
Section 2.2. Certain
Rights of Guarantee Trustee.
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(a)
Subject to the provisions of Section 2.1:
(i) The
Guarantee Trustee may conclusively rely, and shall be
fully protected
in acting or refraining from acting upon, any
resolution,
certificate,
statement, instrument,
opinion, report,
notice, request,
direction, consent,
order, bond,
debenture,
note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties.
(ii) Any
direction or act of the Guarantor
contemplated
by
this Guarantee
shall
be sufficiently evidenced by an Officer's
Certificate.
(iii) Whenever, in the
administration of this
Guarantee,
the
Guarantee Trustee
shall deem it
desirable that a
matter be proved or
established before
taking, suffering or omitting any action hereunder,
the Guarantee
Trustee (unless other evidence is herein
specifically
prescribed) may, in
the absence of bad faith on its part, request and
conclusively rely
upon an Officer's Certificate of the Guarantor
which, upon
receipt of such
request, shall be
promptly delivered
by
the Guarantor.
(iv) The
Guarantee Trustee
shall have
no duty to see to
any
recording,
filing or registration of any instrument (or any
re-recording, refiling or re-registration thereof).
(v) The
Guarantee Trustee may
consult with
counsel of its
selection, and
the advice or opinion
of such counsel with
respect to
legal matters shall be
full and complete
authorization and protection
in respect of any
action taken, suffered or omitted by it hereunder in
good faith and in
accordance with such advice or opinion. Such counsel
may be counsel to the Guarantor or any of its Affiliates and may
include any of its
employees.
The Guarantee Trustee shall have the
right at any time to seek instructions concerning the administration
of this Guarantee from any court of competent jurisdiction.
<PAGE>
(vi) The
Guarantee Trustee shall be under no obligation to
exercise any of the
rights or powers vested in it by this Guarantee at
the request or
direction of any Holder, unless such Holder shall have
provided to
the Guarantee Trustee such security and indemnity,
reasonably
satisfactory to the Guarantee Trustee, against the costs,
expenses
(including attorneys'
fees and expenses and the expenses of
the Guarantee
Trustee's
agents,
nominees
or custodians) and
liabilities that
might be incurred by it in complying with such
request or direction,
including such
reasonable
advances as may be
requested by the Guarantee Trustee; provided, however, that nothing
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contained in
this Section 2.2(a)(vi) shall relieve the Guarantee
Trustee, upon the
occurrence of an Event of Default, of its obligation
to exercise the rights and powers vested in it by this
Guarantee.
(vii) The Guarantee
Trustee shall not be bound to make any
investigation
into the facts or matters stated in any resolution,
certificate,
statement, instrument, opinion, report, notice, request,
direction, consent,
order, bond,
debenture, note, other
evidence of
indebtedness or other paper or document, but the Guarantee Trustee,
in
its discretion, may
make such further inquiry or investigation into
such facts or matters as it may see fit.
(viii) The Guarantee
Trustee may
execute any of the
trusts or
powers hereunder or
perform any duties hereunder either directly or by
or through
agents, nominees, custodians or attorneys, and the
Guarantee Trustee
shall not be responsible for any misconduct or
negligence on
the part of any agent
or attorney
appointed with due
care by it hereunder.
(ix) Any action
taken by the Guarantee
Trustee or its
agents
hereunder shall bind
the Holders of the Capital Securities, and the
signature of
the Guarantee Trustee or its agents alone shall be
sufficient and
effective to perform any such action.
No third party
shall be required to inquire as to the authority of the Guarantee
Trustee to so
act or as to its
compliance
with any of the terms
and
provisions of
this Guarantee, both of which shall be conclusively
evidenced by
the Guarantee Trustee's or its agent's taking such
action.
(x)
Whenever in the
administration of
this Guarantee the
Guarantee Trustee
shall deem it desirable to receive instructions with
respect to
enforcing any remedy or right or taking any
other action
hereunder, the
Guarantee Trustee (i) may request instructions from the
Holders of a Majority
in liquidation amount of the Capital Securities,
(ii) may refrain
from enforcing such remedy or right or taking
such
other action until
such instructions are received, and (iii) shall be
protected in
conclusively relying on or acting in accordance with such
instructions.
(xi) The
Guarantee Trustee shall not be liable for any action
taken, suffered,
or omitted to be taken
by it in good faith,
without
negligence, and
reasonably believed by
it to be authorized or
within
the discretion
or rights or powers conferred upon it by this
Guarantee.
(b) No
provision of this
Guarantee shall be
deemed to impose any
duty or obligation
on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or oblig
