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EXHIBIT 4.3
GUARANTEE AGREEMENT
FIRST BANKS, INC.
Dated as of August 31, 2007
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INTERPRETATION
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SECTION 1.1. Definitions and
Interpretation........................................................1
ARTICLE II
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 2.1. Powers and Duties of the Guarantee
Trustee............................................4
SECTION 2.2. Certain Rights of the Guarantee
Trustee...............................................5
SECTION 2.3. Not Responsible for Recitals or Issuance of
Guarantee.................................7
SECTION 2.4. Events of Default;
Waiver.............................................................7
SECTION 2.5. Events of Default;
Notice.............................................................8
ARTICLE III
THE GUARANTEE TRUSTEE
SECTION 3.1. The Guarantee Trustee;
Eligibility....................................................8
SECTION 3.2. Appointment, Removal and Resignation of the
Guarantee Trustee.........................9
ARTICLE IV
GUARANTEE
SECTION 4.1.
Guarantee.............................................................................9
SECTION 4.2. Waiver of Notice and
Demand..........................................................10
SECTION 4.3. Obligations Not
Affected.............................................................10
SECTION 4.4. Rights of
Holders....................................................................11
SECTION 4.5. Guarantee of
Payment.................................................................11
SECTION 4.6.
Subrogation..........................................................................11
SECTION 4.7. Independent
Obligations..............................................................12
SECTION 4.8.
Enforcement..........................................................................12
ARTICLE V
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 5.1. Limitation of
Transactions...........................................................12
SECTION 5.2.
Ranking..............................................................................13
ARTICLE VI
TERMINATION
SECTION 6.1.
Termination..........................................................................13
ARTICLE VII
INDEMNIFICATION
SECTION 7.1.
Exculpation..........................................................................14
SECTION 7.2.
Indemnification......................................................................14
SECTION 7.3. Compensation; Reimbursement of
Expenses..............................................15
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Successors and
Assigns...............................................................16
SECTION 8.2.
Amendments...........................................................................16
SECTION 8.3.
Notices..............................................................................16
SECTION 8.4.
Benefit..............................................................................17
SECTION 8.5. Governing
Law........................................................................17
SECTION 8.6.
Counterparts.........................................................................17
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GUARANTEE AGREEMENT
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This GUARANTEE AGREEMENT (the "Guarantee"), dated as of August
31,
2007, is executed and delivered by First Banks, Inc.,
incorporated in Missouri
(the "Guarantor"), and LaSalle Bank National Association, 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 X, a Delaware statutory trust (the
"Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust
(the "Declaration"), dated as of August 31, 2007, among the
trustees named
therein of the Issuer, the administrators of the Issuer named
therein, First
Banks, Inc., 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 securities, having an aggregate liquidation amount
of up to
$15,000,000, designated the TP Securities (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.
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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 and Sections
are
to Articles and Sections of this Guarantee, unless otherwise
specified;
(e) terms defined in the Declaration as of 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.
"Beneficiaries" means any Person to whom the Issuer is or
hereafter becomes indebted or liable.
"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.
"Covered Person" means any Holder of Capital Securities.
"Debentures" means the junior subordinated debentures of
First
Banks, Inc., designated the Junior Subordinated Debt Securities
due 2037, held
by the Institutional Trustee (as defined in the Declaration) of
the Issuer.
"Event of Default" has the meaning set forth in Section 2.4.
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"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 has funds
available in the
Property Account (as defined in the Declaration) therefor at
such time, (ii) the
Redemption Price (as defined in the Indenture) to the extent the
Issuer has
funds available in the Property Account therefor at such time,
with respect to
any Capital Securities called for redemption by the Issuer,
(iii) the Special
Redemption Price (as defined in the Indenture) to the extent the
Issuer has
funds available in the Property Account therefor at such time,
with respect to
Capital Securities called for redemption upon the occurrence of
a Special Event
(as defined in the Indenture), 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 has funds available in the Property Account therefor
at such time,
and (b) the amount of assets of the Issuer remaining available
for distribution
to Holders in liquidation of the Issuer after satisfaction of
liabilities to
creditors of the Issuer as required by applicable law (in either
case, the
"Liquidation Distribution").
"Guarantee Trustee" means LaSalle Bank National Association,
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.
"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 (including in
its
individual capacity), 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 August 31,
2007,
between the Guarantor and LaSalle Bank National Association, 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.
"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,
but excluding, 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 each 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 each officer in rendering the
Officer's
Certificate;
(c) a statement that each such 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
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(d) a statement as to whether, in the opinion of each such
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.
"Responsible Officer" means, with respect to the Guarantee
Trustee, any officer within the CDO Trust Services Group of the
Corporate Trust
Office of the Guarantee Trustee with direct responsibility for
the
administration of any matters relating to this Guarantee,
including any vice
president, any assistant vice president, any secretary, any
assistant secretary,
the treasurer, any assistant treasurer, any trust officer or
other officer of
the Corporate Trust Office of the Guarantee Trustee customarily
performing
functions similar to those performed by any of the above
designated officers and
also means, 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.
"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 THE 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 the curing or waiving of 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 cured or waived
pursuant
to Section 2.4(b)) 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 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
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(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 furnished to the
Guarantee Trustee, the Guarantee Trustee shall be under a
duty to examine the same to determine whether or not on
their face 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 exercising 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 the 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
other
writing (or any rerecording, refiling or reregistration
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.
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(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)
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(vi) shall be taken to 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 suc
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