Exhibit 10.7
DECLARATION OF TRUST
This DECLARATION OF TRUST is made this 27th day of May, 2005 (this
"Declaration of Trust"), by and among (i) First BancTrust Corporation, a
Delaware corporation (the "Depositor"), (ii) Wilmington Trust Company, a
Delaware banking corporation, as trustee ("the Trustee"), and (iii) Xxxxx X.
Xxxxxx, Xxxx X. Xxxxxxx and Xxxxx X. Xxxx, each an individual, as administrators
(each an "Administrator" and collectively, the "Administrators"). The Depositor,
the Trustee and the Administrators hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "FBTC Statutory
Trust I," in which name the Trustee, the Administrators 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
Trustee the sum of $10.00. The Trustee hereby acknowledges receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustee hereby declares that it will hold the trust estate in
trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitutes a statutory trust under Chapter 38 of Title 12
of the Delaware Code, 12 Del. C. Sections 3801, et seq. (the "Statutory Trust
Act"), and that this document constitutes the governing instrument of the Trust.
The Trustee is hereby authorized and directed to execute and file a certificate
of trust (the "Certificate of Trust") with the Delaware Secretary of the State
in accordance with the provisions of the Statutory Trust Act.
3. The Depositor, the Trustee and the Administrators will enter into an
amended and restated Declaration of Trust, satisfactory to each such party, to
provide for the contemplated operation of the Trust created hereby and the
issuance of the Fixed/Floating Rate Capital Securities and Fixed/Floating Rate
Common Securities referred to therein (the "Securities"). Prior to the execution
and delivery of such amended and restated Declaration of Trust, other than (i)
the filing of the Certificate of Trust in accordance with Section 2 herein and
as further contemplated in Section 4 herein and (ii) entering into a Placement
Agreement among the placement agents, the Depositor and the Trust, neither the
Trustee nor the Administrators shall have any duty or liability with respect to
the administration of the trust estate, the investment of the Trust's property
or the payment of dividends or other distributions of income or principal to the
Trust's beneficiaries, and no implied obligations shall be inferred from this
Declaration of Trust on the part of the Trustee or the Administrators.
(i) The Trustee and the Administrators accept the trusts hereby
created and agree to perform their duties hereunder with respect to the same but
only upon the terms of this Declaration of Trust. Neither the Trustee nor the
Administrators shall be personally liable under any circumstances, except for
their own willful misconduct or gross negligence. In particular, but not by way
of limitation:
(A) No provision of this Declaration of Trust shall require the
Trustee or the Administrators to expend or risk their personal funds or
otherwise incur any financial liability in the performance of their rights or
duties hereunder, if the Trustee or any Administrator shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured or provided to it;
(B) Under no circumstance shall the Trustee or the Administrators
be personally liable for any representation, warranty, covenant or indebtedness
of the Trust;
(C) Neither the Trustee nor the Administrators shall have
liability for their action or inaction taken in good faith;
(D) All funds deposited with the Trustee hereunder may be held in
a non- interest bearing trust account and the Trustee shall not be liable for
any interest thereon; and
(E) To the extent that, at law or in equity, the Trustee or the
Administrators have duties and liabilities relating thereto to the Trust, such
duties and liabilities are replaced by the terms of this Declaration of Trust.
(ii) Notwithstanding anything contained herein to the contrary, the
Trustee shall not be required to take any action in any jurisdiction other than
the State of Delaware if the taking of such action will (i) require the consent
or approval or authorization or order of or the giving of notice to, or the
registration with or the taking of any other action in respect of, any state or
other governmental authority or agency of any jurisdiction other than, in the
case of the Trustee, the State of Delaware, (ii) result in any fee, tax or other
governmental charge under the laws of any jurisdiction or any political
subdivision thereof in existence becoming payable by Wilmington Trust Company,
or (iii) subject Wilmington Trust Company to personal jurisdiction in any
jurisdiction other than the State of Delaware for causes of action arising from
acts unrelated to the consummation of the transactions by the Trustee
contemplated hereby.
(iii) Except as expressly provided in this Section 3, in accepting and
performing the trusts hereby created, the Trustee acts solely as Trustee
hereunder and not in its individual capacity, and all persons having any claim
against the Trustee by reason of the transactions contemplated by this
Declaration of Trust shall look only to the Trust's property for payment or
satisfaction thereof.
(iv) The Trustee may resign without cause at any time so long as
Trustee provides the Depositor and the Administrators at least thirty days'
prior written notice of such resignation. If no successor has been appointed
within such thirty day period, the Trustee may, at the expense of the Trust,
petition a court of competent jurisdiction to appoint a successor trustee.
4. The Depositor, the Administrators and the Trustee hereby authorize and
direct the Depositor, as the sponsor of the Trust, 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 Securities under the
securities or blue sky laws of such jurisdictions as the Depositor, on behalf of
the Trust, may deem necessary or desirable. In the event that any filing
referred to above is required by the rules and regulations of the state
securities or blue sky laws to be executed on behalf of the Trust by one or more
of the Administrators, each of the Administrators, in its or his capacity as an
Administrator 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 documents unless required by
the rules and regulations of the state securities or blue sky laws. In
connection with the filings referred to above, the Depositor and Xxxxx X.
Xxxxxx, Xxxx X. Xxxxxxx and Xxxxx X. Xxxx, each as Administrator and not in
their individual capacities, hereby constitutes and appoints Xxxxx X. Xxxxxx,
Xxxx X. Xxxxxxx and Xxxxx X. Xxxx 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 Administrator or in the Depositor's or
such Administrator's name, place and stead, in any and all capacities, to sign
any and all documents with the 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 Administrator 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.
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5. The Administrators hereby authorize and direct the Depositor to
negotiate the placement agreement, to be entered into among the Trust, the
Depositor and the placement agents therein relating to the sale and issuance of
the Securities, on behalf of the Trust.
6. This Declaration of Trust may be executed in one or more counterparts.
7. The number of Administrators initially shall be three and thereafter the
number of Administrators 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 Administrators. Subject to the foregoing, the Depositor
is entitled to appoint or remove without cause any Administrator or the Trustee
at any time. The Trustee or any Administrator may resign upon 30 days' prior
written notice to the Depositor.
8. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
Signatures appear on the following page
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IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxx
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Print Name: Xxxxxxxxxxx X. Xxxxxxxxx
Title: Senior Financial Services Officer
FIRST BANCTRUST CORPORATION,
as Depositor
By: /s/ Xxxxx X. Xxxxxx
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Print Name: Xxxxx X. Xxxxxx
Title: President & CEO
ADMINISTRATORS OF FBTC STATUTORY TRUST I
By: /s/ XXXXX X. XXXXXX
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XXXXX X. XXXXXX, as Administrator
By: /s/ XXXX X. XXXXXXX
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XXXX X. XXXXXXX, as Administrator
By: /s/ XXXXX X. XXXX
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XXXXX X. XXXX, as Administrator
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