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TRUST AGREEMENT
This TRUST AGREEMENT, dated as of June 18, 1998 (this "Trust
Agreement"), among (i) First Banks America, Inc., a Delaware corporation (the
"Depositor"), (ii) Wilmington Trust Company, a Delaware banking corporation,
as trustee, and (iii) Xxxxx X. Xxxxxxxx, Xxxxx X. Xxxxx and Xxxxxxxx X.
Xxxxx, each an individual, as trustees (each of such trustees in (ii) and
(iii) a "Trustee" and collectively, the "Trustees"). The Depositor and the
Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "First
America Capital Trust," in which name the Trustees, or the Depositor to the
extent provided herein, may engage in the transactions contemplated hereby,
make and execute contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trustees the sum of $10.00. The Trustees hereby acknowledge receipt of
such amount in trust from the Depositor, which amount shall constitute the
initial trust estate. The Trustees hereby declare that they will hold the
trust estate in trust for the Depositor. It is the intention of the parties
hereto that the Trust created hereby constitute a business trust under
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section 3801, et seq.
(the "Business Trust Act"), and that this document constitutes the governing
instrument of the Trust. The Trustees are hereby authorized and directed to
execute and file a certificate of trust with the Delaware Secretary of State
in accordance with the provisions of the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement, satisfactory to each such party and substantially
in the form included as an exhibit to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust
created hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Trust Agreement, the Trustees shall not have any duty or
obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery of any licenses, consents or approvals required by
applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) the Registration Statement on Form S-2 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the
registration under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust and possibly certain other securities and (b) a
Registration Statement on Form 8-A (the "1934 Act Registration Statement")
(including all pre-effective and post-effective amendments thereto) relating
to the registration of the Preferred Securities of the Trust under the
Securities Exchange Act of 1934, as amended; (ii) to file with the Nasdaq
Stock Market National Market or a national stock exchange (each, an
"Exchange") and execute on behalf of the Trust one or more listing
applications and all other applications, statements, certificates, agreements
and other instruments as shall be necessary or desirable to cause the
Preferred Securities to be listed on any of the Exchanges; (iii) to file and
execute on behalf of the Trust such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and
other papers and documents as shall be necessary or desirable to register the
Preferred Securities under the securities or blue sky laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem necessary or
desirable; and (iv) to execute on behalf of the Trust that certain
Underwriting Agreement relating to the Preferred Securities, among the Trust,
the Depositor and the several Underwriters named therein, substantially in
the form included as an exhibit to the 1933 Act Registration Statement. In
the event that any filing referred to in clauses (i), (ii) and (iii) above is
required by the rules and regulations of the Commission, an Exchange or state
securities or blue sky laws to be executed on behalf of the Trust by one or
more of the Trustees, each of the Trustees, in its or his capacity as a
Trustee of the Trust, is hereby authorized and, to the extent so required,
directed to join in any such filing and to execute on behalf of the Trust any
and all of the foregoing, it being understood that Wilmington Trust Company
in its capacity as a Trustee of the Trust shall not be required to join in
any such filing or execute on behalf of the Trust any such document unless
required by the rules and regulations of the Commission, an Exchange or state
securities or blue sky
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laws. In connection with the filings referred to above, the Depositor and
Xxxxx X. Xxxxxxxx, Xxxxx X. Xxxxx and Xxxxxxxx X. Xxxxx, each as Trustees and
not in their individual capacities, hereby constitutes and appoints Xxxxx X.
Xxxxxxxx, Xxxxx X. Xxxxx and Xxxxxxxx X. Xxxxx, and each of them, as its true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the Depositor or such Trustee or in the Depositor's or
such Trustees' name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to the 1933 Act
Registration Statement and the 1934 Act Registration Statement and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, the Exchange and administrators of the state
securities or blue sky laws, granting unto said attorneys-in-fact and agents
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as the Depositor or such Trustee might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their respective substitute or substitutes, shall
do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be four, and thereafter the
number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Depositor which may increase or
decrease the number of Trustees; provided, however, that to the extent
required by the Business Trust Act, one Trustee shall either be a natural
person who is a resident of the State of Delaware or, if not a natural
person, an entity which has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable Delaware law.
Subject to the foregoing, the Depositor is entitled to appoint or remove
without cause any Trustee at any time. The Trustees may resign upon 30 days'
prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to
conflict of laws of principles).
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
FIRST BANKS AMERICA, INC.
as Depositor
By: /s/ Xxxxx X. Xxxxx
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Its: /s/ Vice President
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WILMINGTON TRUST COMPANY
as Trustee
By: /s/ Xxxxxxxx Xxxxx
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Its: Financial Services Officer
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/s/ Xxxxx X. Xxxxxxxx
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XXXXX X. XXXXXXXX, as Trustee
/s/ Xxxxx X. Xxxxx
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XXXXX X. XXXXX, as Trustee
/s/ Xxxxxxxx X. Xxxxx
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XXXXXXXX X. XXXXX, as Trustee
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