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Exhibit
4.3
GUARANTEE
AGREEMENT
by and between
ENTERPRISE FINANCIAL SERVICES CORP
and
WILMINGTON TRUST COMPANY
Dated as of December 12, 2008
GUARANTEE
AGREEMENT
This GUARANTEE AGREEMENT (this "Guarantee"), dated as of
December 12, 2008, is executed and delivered by Enterprise
Financial Services Corp, a Delaware 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 EFSC Capital Trust VIII, a Delaware statutory
trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration
of Trust No. 2 (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
$25,000,000.00 (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 the Securities Act of 1933, as amended, or any
successor rule thereunder.
" Beneficiaries " means any Person to whom the
Issuer is or hereafter becomes indebted or liable.
" Capital Securities " has the meaning set forth in
the recitals to this Guarantee.
" Common Securities " means the common securities
issued by the Issuer 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.
" Covered Person " means any Holder of Capital
Securities.
" Debentures " means the debt securities of the
Guarantor designated the Convertible Junior Subordinated Deferrable
Interest Debentures due 2038 held by the Institutional Trustee (as
defined in the Declaration) of the Issuer.
" Declaration Event of Default " means an "Event of
Default" as defined in the Declaration.
" Event of Default " has the meaning set forth in
Section 2.4(a).
" Guarantee Payments " means the following payments
or distributions, 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 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").
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" Guarantee Trustee " means Wilmington Trust
Company, until a Successor 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 Enterprise Financial Services
Corp and each of its successors and assigns.
" Holder " means any holder, as registered on the
books and records of the Issuer, of any Capital Securities;
provided, however, that, in determining 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 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 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 Guarantee.
" Liquidation Distribution " has the meaning set
forth in the definition of "Guarantee Payments" herein.
" Majority in liquidation amount of the Capital
Securities " means 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 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 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;
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(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.
" Responsible Officer " means, with respect to the
Guarantee Trustee, 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.
" Successor Guarantee Trustee " means a successor
Guarantee Trustee possessing the qualifications to act as Guarantee
Trustee under Section 3.1.
" Trust Securities " means the Common Securities
and the Capital Securities.
ARTICLE II
POWERS, DUTIES AND RIGHTS OF GUARANTEE
TRUSTEE
Section 2.1. Powers and Duties of the Guarantee
Trustee.
(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.
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(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 willful misconduct or bad faith on
the part of the Guarantee Trustee or any Responsible Officer, 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
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(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.
(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.
(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
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.
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(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 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 incom
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