Exhibit 10.46

AMENDED AND RESTATED

TRUST AGREEMENT

Among

THE PB FINANCIAL SERVICES CORPORATION

as Depositor,

WILMINGTON TRUST COMPANY

as Property Trustee,

WILMINGTON TRUST COMPANY,

as Delaware Trustee, and

Monty G. Watson,

John Howard,

and

Kelly J. Johnson,

as Administrators

Dated as of December 20, 2002

 

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PB CAPITAL TRUST I

 

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PB FINANCIAL SERVICES TRUST I

Certain Sections of this Trust Agreement relating to Sections 310 through 318

of the Trust Indenture Act of 1939:

 

Trust Indenture Act Section				Trust Agreement Section
Section 310		(a)(1)		8.7
		(a)(2)		8.7
		(a)(3)		8.9
		(a)(4)		2.7(a)(ii)
		(b)		8.8, 10.10(b)
Section 311		(a)		8.13, 10.10(b)
		(b)		8.13, 10.10(b)
Section 312		(a)		10.10(b)
		(b)		10.10(b), (f)
		(c)		5.7
Section 313		(a)		8.15(a)
		(a)(4)		10.10(c)
		(b)		8.15(c), 10.10(c)
		(c)		10.8, 10.10(c)
		(d)		10.10(c)
Section 314		(a)		8.16, 10.10(d)
		(b)		Not Applicable
		(c)(1)		8.17, 10.10(d), (e)
		(c)(2)		8.17, 10.10(d), (e)
		(c)(3)		8.17, 10.10(d), (e)
		(e)		8.17, 10.10(e)
Section 315		(a)		8.1(d)
		(b)		8.2
		(c)		8.1(c)
		(d)		8.1(d)
		(e)		Not Applicable
Section 316		(a)		Not Applicable
		(a)(1)(A)		Not Applicable
		(a)(1)(B)		Not Applicable
		(a)(2)		Not Applicable
		(b)		5.13
		(c)		6.7
Section 317		(a)(1)		Not Applicable
		(a)(2)		8.14
		(b)		5.10
Section 318		(a)		10.10(a)

Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Trust Agreement.

 

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TABLE OF CONTENTS

 

				Page
ARTICLE I		DEFINED TERMS		1
SECTION 1.1.		Definitions		1
ARTICLE II		CONTINUATION OF THE ISSUER TRUST		12
SECTION 2.1.		Name		12
SECTION 2.2.		Office of the Delaware Trustee; Principal Place of Business		12
SECTION 2.3.		Initial Contribution of Trust Property; Organizational Expenses		13
SECTION 2.4.		Issuance of the Restricted Capital Securities		13
SECTION 2.5.		Issuance of the Common Securities; Subscription and Purchase of Junior Subordinated Debentures		13
SECTION 2.6.		Authorization to Issue Additional Trust Securities; Authorization to Subscribe and Purchase Additional Junior Subordinated Debentures		14
SECTION 2.7.		Declaration of Trust		14
SECTION 2.8.		Authorization to Enter into Certain Transactions		14
SECTION 2.9.		Assets of Trust		18
SECTION 2.10.		Title to Trust Property		18
ARTICLE III		PAYMENT ACCOUNT		18
SECTION 3.1.		Payment Account		18
ARTICLE IV		DISTRIBUTIONS; REDEMPTION		18
SECTION 4.1.		Distributions		18
SECTION 4.2.		Redemption		20
SECTION 4.3.		Subordination of Common Securities		22
SECTION 4.4.		Payment Procedures		23
SECTION 4.5.		Tax Returns and Reports		23
SECTION 4.6.		Payment of Taxes, Duties, Etc. of the Issuer Trust		23
SECTION 4.7.		Payments under Indenture or Pursuant to Direct Actions		23
SECTION 4.8.		Liability of the Holder of Common Securities		24
ARTICLE V		TRUST SECURITIES CERTIFICATES		24
SECTION 5.1.		Initial Ownership		24
SECTION 5.2.		The Trust Securities Certificates		24
SECTION 5.3.		Execution and Delivery of Trust Securities Certificates		24
SECTION 5.4.		Global Capital Securities		25
SECTION 5.5.		Registration of Transfer and Exchange Generally; Certain Transfers and Exchanges; Capital Securities Certificates; Securities Act Legends		26
SECTION 5.6.		Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates		30
SECTION 5.7.		Persons Deemed Holders		30
SECTION 5.8.		Access to List of Holders’ Names and Addresses		30
SECTION 5.9.		Maintenance of Office or Agency		30
SECTION 5.10.		Appointment of Paying Agent		31
SECTION 5.11.		Ownership of Common Securities by Depositor		31
SECTION 5.12.		Notices to Clearing Agency		32
SECTION 5.13.		Rights of Holders		32

 

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ARTICLE VI		ACTS OF HOLDERS; MEETINGS; VOTING		34
SECTION 6.1.		Limitations on Holders’ Voting Rights		34
SECTION 6.2.		Notice of Meetings		35
SECTION 6.3.		Meetings of Holders		35
SECTION 6.4.		Voting Rights		36
SECTION 6.5.		Proxies, etc.		36
SECTION 6.6.		Holder Action by Written Consent		36
SECTION 6.7.		Record Date for Voting and Other Purposes		36
SECTION 6.8.		Acts of Holders		37
SECTION 6.9.		Inspection of Records		38
ARTICLE VII		REPRESENTATIONS AND WARRANTIES		38
SECTION 7.1.		Representations and Warranties of the Property Trustee and the Delaware Trustee		38
SECTION 7.2.		Representations and Warranties of Depositor		39
ARTICLE VIII		THE ISSUER TRUSTEES; THE ADMINISTRATORS		40
SECTION 8.1.		Certain Duties and Responsibilities		40
SECTION 8.2.		Certain Notices		42
SECTION 8.3.		Certain Rights of Property Trustee		42
SECTION 8.4.		Not Responsible for Recitals or Issuance of Securities		44
SECTION 8.5.		May Hold Securities		44
SECTION 8.6.		Compensation; Indemnity; Fees		44
SECTION 8.7.		Corporate Property Trustee Required; Eligibility of Trustees and Administrators		45
SECTION 8.8.		Conflicting Interests		46
SECTION 8.9.		Co-Trustees and Separate Trustee		46
SECTION 8.10.		Resignation and Removal; Appointment of Successor		47
SECTION 8.11.		Acceptance of Appointment by Successor		49
SECTION 8.12.		Merger, Conversion, Consolidation or Succession to Business		49
SECTION 8.13.		Preferential Collection of Claims Against Depositor or Issuer Trust		49
SECTION 8.14.		Trustee May File Proofs of Claim		50
SECTION 8.15.		Reports by Property Trustee		50
SECTION 8.16.		Reports to the Property Trustee		51
SECTION 8.17.		Evidence of Compliance with Conditions Precedent		51
SECTION 8.18.		Number of Issuer Trustees		51
SECTION 8.19.		Delegation of Power		51
SECTION 8.20.		Appointment of Administrators		52
ARTICLE IX		DISSOLUTION, LIQUIDATION AND MERGER		52
SECTION 9.1.		Dissolution Upon Expiration Date		52
SECTION 9.2.		Early Dissolution		53
SECTION 9.3.		Termination		53
SECTION 9.4.		Liquidation		53
SECTION 9.5.		Mergers, Consolidations, Amalgamations or Replacements of the Issuer Trust		55

 

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ARTICLE X		MISCELLANEOUS PROVISIONS		56
SECTION 10.1.		Limitation of Rights of Holders		56
SECTION 10.2.		Amendment		56
SECTION 10.3.		Separability		57
SECTION 10.4.		Governing Law		57
SECTION 10.5.		Payments Due on Non-Business Day		58
SECTION 10.6.		Successors		58
SECTION 10.7.		Headings		59
SECTION 10.8.		Reports, Notices and Demands		59
SECTION 10.9.		Agreement Not to Petition		59
SECTION 10.10.		Trust Indenture Act; Conflict with Trust Indenture Act		60
SECTION 10.11.		Acceptance of Terms of Trust Agreement, Guarantee and Indenture		61
Exhibit A.		Certificate of Trust		A-1
Exhibit B.		Form of Restricted Securities Certificate		B-1
Exhibit C.		Form of Common Securities Certificate		C-1
Exhibit D.		Form of Capital Securities Certificate		D-1
Exhibit E.		Form of Placement Agreement		E-1

 

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AMENDED AND RESTATED TRUST AGREEMENT

THIS AMENDED AND RESTATED TRUST AGREEMENT, dated as of December 20, 2002, is by and among (i) PB Financial Services Corporation, a Georgia corporation (including any successors or assigns, the “ Depositor ”), (ii) Wilmington Trust Company, a Delaware banking corporation, as property trustee (in such capacity, the “ Property Trustee ” and, in its separate corporate capacity and not in its capacity as Property Trustee or Delaware Trustee, the “ Bank ”), (iii) Wilmington Trust Company, a Delaware banking corporation, as Delaware trustee (in such capacity, the “ Delaware Trustee ”) (the Property Trustee and the Delaware Trustee are referred to collectively herein as the “ Issuer Trustees ”), (iv) the Administrators, as hereinafter defined, and (v) the several Holders, as hereinafter defined.

WITNESSETH

WHEREAS, the Depositor and the Delaware Trustee have heretofore duly declared and established a statutory trust pursuant to the Delaware Statutory Trust Act by entering into a certain Trust Agreement, dated as of December 20, 2002 (the “ Original Trust Agreement ”), and by the execution and filing by the Delaware Trustee with the Secretary of State of the State of Delaware of the Certificate of Trust, filed on December 12, 2002 (the “ Certificate of Trust ”), attached as Exhibit A ; and

WHEREAS, the Depositor and the Delaware Trustee desire to amend and restate the Original Trust Agreement in its entirety as set forth herein to provide for, among other things, (i) the issuance of the Common Securities by the Issuer Trust to the Depositor, (ii) the issuance and sale of the Capital Securities by the Issuer Trust pursuant to the Placement Agreement, (iii) the acquisition by the Issuer Trust from the Depositor of all of the right, title and interest in the Junior Subordinated Debentures, (iv) the appointment of the Administrators and (v) the addition of the Property Trustee as a party to this Trust Agreement.

NOW THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each party, intending to be legally bound, for the benefit of the other parties and for the benefit of the Holders, hereby amends and restates the Original Trust Agreement in its entirety and agrees, as follows:

ARTICLE I

DEFINED TERMS

SECTION 1.1. Definitions.

For all purposes of this Trust Agreement, except as otherwise expressly provided or unless the context otherwise requires:

(1) The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;

 

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(2) All other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;

(3) The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation”;

(4) All accounting terms used but not defined herein have the meanings assigned to them in accordance with United States generally accepted accounting principles as in effect at the time of determination;

(5) Unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section, as the case may be, of this Trust Agreement;

(6) The words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Trust Agreement as a whole and not to any particular Article, Section or other subdivision; and

(7) All references to the date the Capital Securities were originally issued shall refer to the date hereof.

“ Act ” has the meaning specified in Section 6.8.

“ Additional Amounts ” means, with respect to Trust Securities of a given Liquidation Amount and/or a given period, the amount of any Additional Interest (as defined in the Indenture) paid by the Depositor on a Like Amount of Junior Subordinated Debentures for such period.

“ Additional Sums ” has the meaning specified in Section 10.6 of the Indenture.

“ Administrators ” means each Person appointed in accordance with Section 8.20 solely in such Person’s capacity as Administrator of the Issuer Trust continued hereunder and not in such Person’s individual capacity, or any successor Administrator appointed as herein provided; with the initial Administrators being Monty G. Watson, John Howard, and Kelly J. Johnson.

“ Affiliate ” means with respect to any specified Person, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“ Applicable Procedures ” mean, with respect to any transfer or transaction involving a Global Capital Security or beneficial interest therein, the rules and procedures of the

 

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Depositary for such Capital Security, in each case to the extent applicable to such transaction and as in effect from time to time.

“ Bank ” has the meaning specified in the preamble to this Trust Agreement.

“ Bankruptcy Event ” means, with respect to any Person:

(1) the entry of a decree or order by a court having jurisdiction in the premises judging such Person a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjudication or composition of or in respect of such Person under any applicable Federal or state bankruptcy, insolvency, reorganization or other similar law, or appointing a receiver, conservator, liquidator, assignee, trustee, sequestrator (or other similar official) of such Person or of any substantial part of its property or ordering the winding-up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or

(2) the institution by such Person of proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or state bankruptcy, insolvency, reorganization or other similar law, or the consent by it to the filing of any such petition or to the appointment of a receiver, conservator, liquidator, assignee, trustee, sequestrator (or similar official) of such Person or of any substantial part of its property or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due and its willingness to be adjudicated a bankrupt, or the taking of corporate action by such Person in furtherance of any such action.

“ Bankruptcy Laws ” has the meaning specified in Section 10.9.

“ Board of Directors ” means the board of directors of the Depositor or the Executive Committee of the board of directors of the Depositor (or any other committee of the board of directors of the Depositor performing similar functions) or a committee designated by the board of directors of the Depositor (or any such committee), comprised of two or more members of the board of directors of the Depositor or officers of the Depositor, or both.

“ Board Resolution ” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Depositor to have been duly adopted by the Depositor’s Board of Directors, or such committee of the Board of Directors or officers of the Depositor to which authority to act on behalf of the Board of Directors has been delegated, and to be in full force and effect on the date of such certification, and delivered to the Issuer Trustees.

“ Business Day ” means a day other than (a) a Saturday or Sunday, (b) a day on which banking institutions in the City of New York, New York or the City of Wilmington, Delaware are authorized or required by law or executive order to remain closed or (c) a day on which either the Property Trustee’s corporate trust office or the Indenture Trustee’s corporate trust office is closed for business.

 

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“ Capital Securities Certificate ” means a certificate evidencing ownership of Capital Securities, substantially in the form attached as Exhibit D , and shall, unless specified otherwise herein, include a Restricted Securities Certificate, substantially in the form attached hereto as Exhibit B . The Capital Securities Certificate shall be issued initially with a Restricted Capital Securities Legend, which shall remain on such certificate until the Depositor and the Issuer Trust receive an Opinion of Counsel that such legend can be removed consistent with the Securities Act.

“ Capital Security ” means a preferred undivided beneficial interest in the assets of the Issuer Trust, having a Liquidation Amount of $50,000 or an integral multiple in excess of such amount and having the rights provided therefor in this Trust Agreement, including the right to receive Distributions and a Liquidation Distribution as provided herein.

“ Capital Treatment Event ” means, in respect of the Issuer Trust, the receipt by the Property Trustee of an Opinion of Counsel, experienced in such matters and who may be counsel to the Depositor, and determination by the Depositor that, as a result of the occurrence of any amendment to, or change (including any announced prospective change) in, the laws (or any rules or regulations thereunder) of the United States or any political subdivision thereof or therein, or as a result of any official or administrative pronouncement or action (including any action taken in connection with a regulatory examination or in connection with or as a result of any change in regulatory policy) or judicial decision interpreting or applying such laws or regulations, which amendment or change is effective or such pronouncement, action or decision is announced on or after the date of the issuance of the Capital Securities of the Issuer Trust, there is more than an insubstantial risk that the Depositor will not be entitled to treat an amount equal to the Liquidation Amount of such Capital Securities as “Tier 1 Capital” (or the then equivalent thereof) for purposes of the risk-based capital adequacy guidelines of the Board of Governors of the Federal Reserve System, as then in effect and applicable to the Depositor.

“ Cede ” means Cede & Co., as the nominee of the Depositary.

“ Certificate of Trust ” has the meaning specified in the preamble to this Trust Agreement.

“ Clearing Agency ” means an organization registered as a “clearing agency” pursuant to Section 17A of the Exchange Act. The Depositary shall be the initial Clearing Agency.

“ Clearing Agency Participant ” means a broker, dealer, bank, other financial institution or other Person for whom from time to time a Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency.

“ Closing ” and “ Closing Date ” have the respective meanings specified in the Placement Agreement.

“ Code ” means the Internal Revenue Code of 1986, as amended.

 

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“ Commission ” means the United States Securities and Exchange Commission, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

“ Common Securities Certificate ” means a certificate evidencing ownership of Common Securities, substantially in the form attached as Exhibit C .

“Common Securities Purchase Agreement” means the Common Securities Purchase Agreement, dated of even date herewith, between the Issuer Trust and the Depositor, as the same may be amended from time to time.

“ Common Security ” means an undivided beneficial interest in the assets of the Issuer Trust, having a Liquidation Amount of $1,000 and integral multiples in excess thereof and having the rights provided therefor in this Trust Agreement, including the right to receive Distributions and a Liquidation Distribution as provided herein.

“ Corporate Trust Office ” means the principal office of the Property Trustee located in the City of Wilmington, Delaware, which at the time of the execution of this Trust Agreement is located at 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration.

“ Debenture Event of Default ” means an “Event of Default” as defined in the Indenture.

“Debenture Purchase Agreement” means the Junior Subordinated Debenture Purchase Agreement, dated of even date herewith, between the Depositor and the Issuer Trust, as the same may be amended from time to time.

“ Debenture Redemption Date ” means, with respect to any Junior Subordinated Debentures to be redeemed under the Indenture, the date fixed for redemption of such Debentures under the Indenture.

“ Delaware Statutory Trust Act ” means Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. § 3801, et seq. , as it may be amended from time to time.

“ Delaware Trustee ” means the corporation identified as the “Delaware Trustee” in the preamble to this Trust Agreement solely in its capacity as Delaware Trustee of the Issuer Trust and not in its individual capacity, or its successor in interest in such capacity, or any successor trustee appointed as herein provided.

“ Depositary ” means The Depository Trust Company or any successor thereto.

“ Depositor ” has the meaning specified in the preamble to this Trust Agreement.

 

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“ Direct Action ” has the meaning specified in Section 5.13(c).

“ Distribution Date ” has the meaning specified in Section 4.1(a).

“ Distributions ” means amounts payable in respect of the Trust Securities as provided in Section 4.1.

“ Early Termination Event ” has the meaning specified in Section 9.2.

“ Event of Default ” means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

(1) the occurrence of a Debenture Event of Default; or

(2) default by the Issuer Trust in the payment of any Distribution when it becomes due and payable, and continuation of such default for a period of 30 days; or

(3) default by the Issuer Trust in the payment of any Redemption Price of any Trust Security when it becomes due and payable; or

(4) default in the performance, or breach, in any material respect, of any covenant or warranty of the Issuer Trustees in this Trust Agreement (other than a covenant or warranty a default in the performance of which or the breach of which is dealt with in clause (2) or (3) above) and continuation of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Issuer Trustees and the Depositor by the Holders of at least 25% in aggregate Liquidation Amount of the Outstanding Capital Securities, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or

(5) the occurrence of any Bankruptcy Event with respect to the Property Trustee or all or substantially all of its property if a successor Property Trustee has not been appointed within a period of 90 days thereof.

“ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended, and any successor statute thereto, as amended from time to time.

“ Expiration Date ” has the meaning specified in Section 9.1.

“ Global Capital Securities Certificate ” means a Capital Securities Certificate or Restricted Securities Certificate, as the case may be, evidencing ownership of Capital Securities, the ownership and transfers of which shall be made through book entries by a Clearing Agency as described in Section 5.4.

 

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“ Global Capital Security ” means those Capital Securities evidenced by the Global Capital Securities Certificate.

“ Guarantee ” means the Guarantee Agreement executed and delivered by the Depositor and the Guarantee Trustee, contemporaneously with the execution and delivery of this Trust Agreement, for the benefit of the Holders of the Capital Securities, as amended from time to time.

“ Guarantee Trustee ” means Wilmington Trust Company, solely in its capacity as the trustee that holds the Guarantee for the benefit of the Holders and not in its individual capacity, or its successor in interest in such capacity, or any successor trustee appointed as herein provided.

“ Holder ” means a Person in whose name a Trust Security or Trust Securities is registered in the Securities Register; any such Person shall be deemed to be a beneficial owner within the meaning of the Delaware Statutory Trust Act.

“ Indemnified Person ” has the meaning provided in Section 8.6.

“ Indenture ” means the Junior Subordinated Indenture, dated of even date herewith, between the Depositor and the Indenture Trustee (as amended or supplemented from time to time) relating to the issuance of the Junior Subordinated Debentures.

“ Indenture Trustee ” means Wilmington Trust Company, a Delaware banking corporation and any successor.

“ Investment Company Act ” means the Investment Company Act of 1940, as amended.

“ Investment Company Event ” means the receipt by the Issuer Trust of an Opinion of Counsel experienced in such matters to the effect that, as a result of the occurrence of a change in law or regulation or a written change (including any announced prospective change) in interpretation or application of law or regulation by any legislative body, court, governmental agency or regulatory authority, there is more than an insubstantial risk that the Issuer Trust is or will be considered an “investment company” that is required to be registered under the Investment Company Act, which change or prospective change becomes effective or would become effective, as the case may be, on or after the date of the issuance of the Capital Securities.

“ Issuer Trust ” means PB Capital Trust I, a Delaware statutory trust created under the Delaware Statutory Trust Act.

“ Issuer Trustees ” has the meaning specified in the preamble to this Trust Agreement.

 

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“ Junior Subordinated Debentures ” means the Depositor’s Floating Rate Junior Subordinated Debentures, due December 31, 2032, issued pursuant to the Indenture.

“ Lien ” means any lien, pledge, charge, encumbrance, mortgage, deed of trust, adverse ownership interest, hypothecation, assignment, security interest or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever.

“ Like Amount ” means (a) with respect to a redemption of Trust Securities, Trust Securities having a Liquidation Amount equal to that portion of the principal amount of Junior Subordinated Debentures to be contemporaneously redeemed in accordance with the Indenture, allocated to the Common Securities and to the Capital Securities pro rata based upon the relative Liquidation Amounts of such classes and (b) with respect to a distribution of Junior Subordinated Debentures to Holders of Trust Securities in connection with a dissolution or liquidation of the Issuer Trust, Junior Subordinated Debentures having a principal amount equal to the Liquidation Amount of the Trust Securities of the Holder to whom such Junior Subordinated Debentures are distributed.

“ Liquidation Amount ” means the stated amount of $50,000 per Capital Security and $1,000 per Common Security.

“ Liquidation Date ” means the date on which Junior Subordinated Debentures are to be distributed to Holders of Trust Securities in connection with a dissolution and liquidation of the Issuer Trust pursuant to Section 9.4.

“ Liquidation Distribution ” has the meaning specified in Section 9.4(d).

“ Majority in Liquidation Amount of the Capital Securities ” or “Majority in Liquidation Amount of the Common Securities ” means, except as provided by the Trust Indenture Act, Capital Securities or Common Securities, as the case may be, representing more than 50% of the aggregate Liquidation Amount of all then Outstanding Capital Securities or Common Securities, as the case may be.

“ Officers’ Certificate ” means a certificate signed by the Chairman of the Board, Vice Chairman of the Board, Chief Executive Officer, President or an Executive Vice President, a Senior Vice President or Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Depositor, and delivered to the party provided herein. Any Officers’ Certificate delivered with respect to compliance with a condition or covenant provided for in this Trust Agreement shall include:

(1) a statement by each officer signing the Officers’ Certificate that such officer has read the covenant or condition and the definitions relating thereto;

(2) a brief statement of the nature and scope of the examination or investigation undertaken by such officer in rendering the Officers’ Certificate;

 

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(3) a statement that 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

(4) a statement as to whether, in the opinion of each such officer, such condition or covenant has been complied with.

“ Opinion of Counsel ” means a written opinion of counsel, who may be counsel for or an employee of the Depositor or any Affiliate of the Depositor.

“ Original Trust Agreement ” has the meaning specified in the preamble to this Trust Agreement.

“ Outstanding ,” with respect to Trust Securities, means, as of the date of determination, all Trust Securities theretofore executed and delivered under this Trust Agreement, except:

(1) Trust Securities theretofore canceled by the Property Trustee or delivered to the Property Trustee for cancellation;

(2) Trust Securities for whose payment or redemption cash in the necessary amount has been theretofore deposited with the Property Trustee or any Paying Agent for the Holders of such Capital Securities, provided that if such Trust Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Trust Agreement; and

(3) Trust Securities that have been paid or for which other Trust Securities have been executed and delivered in exchange therefor or in lieu thereof pursuant to Sections 5.4, 5.5 and 5.6; provided, however, that in determining whether the Holders of the requisite Liquidation Amount of the Outstanding Capital Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Capital Securities owned by the Depositor, any Issuer Trustee, any Administrator or any Affiliate of the Depositor, shall be disregarded and deemed not to be Outstanding, except that (a) in determining whether any Issuer Trustee or any Administrator shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Capital Securities that such Issuer Trustee or such Administrator, as the case may be, knows to be so owned shall be so disregarded and (b) the foregoing shall not apply at any time when all of the Outstanding Capital Securities are owned by the Depositor, one or more of the Issuer Trustees, one or more of the Administrators and/or any such Affiliate. Capital Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Administrators the pledgee’s right so to act with respect to such Capital Securities and that the pledgee is not the Depositor or any Affiliate of the Depositor.

“ Owner ” means each Person who is the beneficial owner of Global Capital Securities as reflected in the records of the Clearing Agency or, if a Clearing Agency Participant is not the Owner, then as reflected in the records of a Person maintaining an account with such Clearing Agency (directly or indirectly), in accordance with the rules of such Clearing Agency.

 

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“ Paying Agent ” means any paying agent or co-paying agent appointed pursuant to Section 5.10 and shall initially be the Property Trustee.

“ Payment Account ” means a segregated non-interest-bearing corporate trust account maintained with the Property Trustee in its trust department for the benefit of the Holders in which all amounts paid in respect of the Junior Subordinated Debentures will be held and from which the Property Trustee, through the Paying Agent, shall make payments to the Holders in accordance with Sections 4.1, 4.2 and 9.4.

“ Person ” means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, company, limited liability company, trust, unincorporated organization or government or any agency or political subdivision thereof, or any other entity of whatever nature.

“ Placement Agents ” means The Bankers Bank, a Georgia banking corporation, and BankersBanc Capital Corporation, a Georgia corporation.

“ Placement Agreement ” means the Placement Agreement among the Depositor, the Issuer Trust and the Placement Agents.

“ Property Trustee ” means the Person identified as the “Property Trustee” in the preamble to this Trust Agreement solely in its capacity as Property Trustee of the Issuer Trust and not in its individual capacity, or its successor in interest in such capacity, or any successor property trustee appointed as herein provided.

“ Purchase Agreement ” means, collectively, all purchase agreements executed by or on behalf of the Depositor, the Issuer Trust, and the Owners.

“ Redemption Date ” means, with respect to any Trust Security to be redeemed, the date fixed for such redemption by or pursuant to this Trust Agreement; provided that each Debenture Redemption Date and the stated maturity of the Junior Subordinated Debentures shall be a Redemption Date for a Like Amount of Trust Securities, including but not limited to any date of redemption pursuant to the occurrence of any Special Event.

“ Redemption Price ” means a price equal to the Liquidation Amount, together with accumulated Distributions to, but excluding, the date fixed for redemption.

“ Relevant Trustee ” has the meaning specified in Section 8.10.

“ Responsible Officer ” when used with respect to the Property Trustee means any officer assigned to the Corporate Trust Office, including any managing director, vice president, principal, assistant vice president, assistant treasurer, assistant secretary or any other officer of the Property Trustee customarily performing functions similar to those performed by any of the above designated officers and having direct responsibility for the administration of the Indenture,

 

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and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject.

“ Restricted Capital Securities ” means all Capital Securities, including those represented by a Capital Securities Certificate, that are required pursuant to Section 5.5(c) to bear a Restricted Capital Securities Legend. Such term includes the Global Capital Securities Certificate.

“ Restricted Capital Securities Legend ” means a legend substantially in the form of the legend required in the form of a Capital Securities Certificate set forth in Exhibit D to be placed upon a Restricted Capital Security.

“ Restricted Securities Certificate ” means a certificate substantially in the form set forth in Exhibit B .

“ Securities Act ” means the Securities Act of 1933, as amended, and any successor statute thereto, in each case as amended from time to time.

“ Senior Indebtedness ” has the meaning specified in the Indenture.

“ Securities Register ” and “ Securities Registrar ” have the respective meanings specified in Section 5.5.

“ Special Event ” means any Tax Event, Capital Treatment Event or Investment Company Event.

“ Successor Capital Securities Certificate ” of any particular Capital Securities Certificate means every Capital Securities Certificate issued after, and evidencing all or a portion of the same beneficial interest in the Issuer Trust as that evidenced by, such particular Capital Securities Certificate; and, for the purposes of this definition, any Capital Securities Certificate executed and delivered under Section 5.6 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Capital Securities Certificate shall be deemed to evidence the same beneficial interest in the Issuer Trust as the mutilated, destroyed, lost or stolen Capital Securities Certificate.

“ Successor Capital Securities ” has the meaning specified in Section 9.5.

“ Tax Event ” means the receipt by the Issuer Trust of an Opinion of Counsel experienced in such matters to the effect that, as a result of any amendment to, or change (including any announced prospective change) in, the laws (or any regulations thereunder) of the United States or any political subdivision or taxing authority thereof or therein, or as a result of any official or administrative pronouncement or action or judicial decision interpreting or applying such laws or regulations, which amendment or change is effective or which pronouncement, action or decision is announced on or after the date of issuance of the Capital Securities (including, wit