**EXHIBIT 4.1**

 

SOUTHERN CAPITAL TRUST II CERTIFICATE OF TRUST 

 

DECLARATION OF TRUST OF 

 

Southern Capital Trust II 

 

THIS DECLARATION OF TRUST is made as of April 26, 2005 (this “Declaration”), by and among Southern BancShares (N.C.), Inc., a Delawarecorporation, as sponsor (the “Sponsor”), and Chase Bank USA, National Association, with its principal place of business in the State of Delaware, as Delaware trustee (the “Trustee”). The Sponsor and the Trustee hereby agree asfollows: 

 

1. The trust created hereby shall be known asSouthern Capital Trust II (the “Trust”), in which name the Trustee or the Sponsor, to the extent provided herein, may conduct the business of the Trust, make and execute contracts, and sue and be sued. 

 

2. The Sponsor hereby assigns, transfers, conveys and sets over to the Trustthe sum of $10. The Trustee hereby acknowledges receipt of such amount in trust from the Sponsor, which amount shall constitute the initial trust estate. The Trustee hereby declares that it will hold the trust estate in trust for the Sponsor. It isthe intention of the parties hereto that the Trust created hereby constitute a statutory trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. § 3801, et seq. (the “Statutory Trust Act”), and that this Declarationconstitute the governing instrument of the Trust. The Trustee is hereby authorized and directed to execute and file a certificate of trust with the Secretary of State of the State of Delaware in the form attached to this Declaration. 

 

3. The Sponsor and the Trustee will enter into an Amended and RestatedDeclaration of Trust satisfactory to each such party to provide for the contemplated operation of the Trust created hereby and the issuance by the Trust of the Capital Securities and Common Securities referred to therein. Prior to the execution anddelivery of such Amended and Restated Declaration of Trust (i) the Trustee shall not have any duty *or*obligation hereunder or with respect to the trust estate, except as otherwise required by applicable law, and (ii) the Sponsor shall take orcause to be taken *any*action as may be necessary to obtain prior to such execution and delivery any licenses, consents or approvals required by applicable law or otherwise. Notwithstanding the foregoing, the Trustee may take all actions whichthe Sponsor deems necessary, convenient or incidental to effect the transactions contemplated herein. The Trustee shall not have any duty or obligation under *or*in connection with this Declaration or any document contemplated hereby, exceptas expressly provided by the terms of this Declaration, and no implied duties or obligations shall be read into this Declaration against the Trustee. The right of the Trustee to perform any discretionary act enumerated herein shall not be construedas a duty. 

 

4. The Sponsor hereby agrees to (i) reimburse theTrustee for all reasonable expenses (including reasonable fees and expenses of counsel and other experts), (ii) indemnify, defend and hold harmless the Trustee and the officers, directors, employees and agents of the Trustee (collectively, includingthe Trustee in its individual capacity, the “Indemnified Persons”) from and against any and all losses, damages, liabilities, claims, actions, suits, costs, expenses, disbursements (including the reasonable fees and expenses of counsel),taxes and penalties of any kind and nature whatsoever (collectively, “Expenses”), to the extent that such Expenses arise out of or are imposed upon or asserted at any time against such Indemnified Persons with respect to the performance ofthis Declaration, the creation, operation, administration or termination of the Trust, or the transactions contemplated hereby; provided,however, that the Sponsor shall not be required to indemnify an Indemnified Person for Expensesto the extent such Expenses result from the willful misconduct, bad faith or negligence of such Indemnified Person, and (iii) advance to each such Indemnified Person Expenses incurred by such Indemnified Person, in defending any claim, demand,action, suit or proceeding prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Sponsor of an undertaking, by or on behalf of such Indemnified Person, to repay such amount if it shall be determinedthat such Indemnified Person is not entitled to be indemnified therefor under this Section 4. The obligations of the Sponsor under this Section 4 shall survive the resignation or removal of the Trustee, shall survive the termination, amendment,supplement, and/or restatement of this Declaration, and shall survive the transfer by the Sponsor of any or all of its interest in the Trust pursuant to Section 5 below or otherwise. 

5. The Sponsor, as sponsor of the Trust, is hereby authorized, in its discretion, (i) to prepare, executeand file on behalf of the Trust, such applications, reports, surety bonds, irrevocable consents, appointments of attorney for service of process and other papers and documents that shall be necessary or desirable to register or establish theexemption from registration of the Capital Securities of the Trust under the securities or “Blue Sky” laws of such jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or desirable; (ii) to negotiate, execute, deliverand perform on behalf of the Trust one or more placement agent agreements, dealer/manager agreements, escrow agreements, subscription agreements and other similar or related agreements providing for or relating to the sale and issuance of theCapital Securities of the Trust and/or any other interests in the Trust; (iii) to prepare, execute and deliver on behalf of the Trust any and all documents, certificates, papers, instruments and other writings as it deems desirable in connectionwith any of the foregoing; (iv) to prepare, execute and deliver letters or documents to, or instruments for filing with, a depository relating to the Capital Securities of the Trust as it deems necessary or desirable; and (v) to appoint one or moreadministrators of the Trust and cause such person or persons to execute and deliver on behalf of the Trust any and all of the foregoing, including, without limitation, any placement agreements. 

 

In the event that any filing referred to in this Section 5 is required by therules and regulations of Securities and Exchange Commission (the “Commission”) or state securities or BlueSky laws to be executed on behalf of the Trust by a trustee, the Trustee, in its capacity as a trustee of the Trust, so required to execute such filings is hereby authorized and, to the extent so required, directed to join in any such filing and toexecute on behalf of the Trust any and all of the foregoing, it being understood that the Trustee, 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 unlessrequired to do so by the rules and regulations of the Commission or applicable state securities or Blue Sky laws. 

 

6. The Trustee is authorized to take such action or refrain from taking such action under this Declaration as it may be directed in writing by the Sponsorfrom time to time; provided,however, that the Trustee shall not be required to take or refrain from taking any such action if the Trustee shall have determined, or shall have been advised by counsel, that such performance is likely toinvolve the Trustee in personal liability or is contrary to the terms of this Declaration or of any document contemplated hereby to which the Trust or the Trustee is a party or is otherwise contrary to law. If at any time the Trustee determines thatit requires or desires guidance regarding the application of any provision of this Declaration or any other document, or regarding compliance with any direction it received hereunder, then the Trustee may deliver a notice to the Sponsor requestingwritten instructions as to the course of action desired by the Sponsor, and such instructions shall constitute full and complete authorization and protection for actions taken and other performance by the Trustee in reliance thereon. Until theTrustee has received such instructions after delivering such notice, it may refrain from taking any action with respect to the matters described in such notice. 

 

7. This Declaration may be executed in two or more counterparts. 

 

8. The number of trustees of the Trust initially shall be one (1), and thereafter the number of trustees of the Trust shallbe such number as shall be fixed from time to time by a written instrument signed by the Sponsor which may increase or decrease the number of trustees of the Trust; provided,however, to the extent required by the Statutory Trust Act,there shall at all times be one trustee of the Trust that 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 andotherwise meets the requirements of applicable Delaware law. Subject to the foregoing, the Sponsor is entitled to appoint or remove without cause any trustee of the Trust at any time. Any trustee of the Trust may resign upon thirty (30) days priornotice to the Sponsor. 

 

9. This Declaration shall be governedby, and construed in accordance with, the laws of the State of Delaware (without regard to conflict of laws principles). 

 

[SIGNATURE PAGE FOLLOWS] 

IN WITNESS WHEREOF, the parties hereto have caused this Declaration of Trust to be duly executed as ofthe day and year first above written. 

 
SOUTHERN BANCSHARES (N.C.), INC., as Sponsor
By:
 
/s/ David A. Bean

Name:
 
David A. Bean

Title:
 
Chief Financial Officer
CHASE BANK USA, NATIONAL ASSOCIATION, As Trustee
By:
 
/s/ Sarika M. Sheth

Name:
 
Sarika M. Sheth

Title:
 
Trust Officer