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EXHIBIT 4.19
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GUARANTEE AGREEMENT
by and between
FIRST BANKS, INC.
and
WILMINGTON TRUST COMPANY
Dated as of September 28, 2007
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<PAGE>
GUARANTEE AGREEMENT
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This GUARANTEE AGREEMENT (this "Guarantee"), dated as of
September 28,
2007, 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 XI, 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
$10,000,000.00 (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,
--------------------------------
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.
"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
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to the Guarantor pursuant to the Declaration.
"Corporate Trust Office" means the office of the Guarantee
Trustee at
----------------------
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.
<PAGE>
"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 2037 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
---------
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
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the 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.
"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.
<PAGE>
"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,
------
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,
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any 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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"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.
<PAGE>
(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;
(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.
<PAGE>
(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.
(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.
<PAGE>
(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 obligation conferred or
imposed on it, in any
jurisdiction in which it shall be illegal or in which the
Guarantee Trustee
shall be unqualified or incompetent
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