LIMITED LIABILITY COMPANY AGREEMENT
OF
TSFG CAPITAL A, LLC
This Limited Liability Company Agreement (this "Agreement") of TSFG
Capital A, LLC, dated and effective as of November 1, 2004, is entered into by
The South Financial Group, Inc. as the sole member (the "Member").
The Member, by execution of this Agreement, hereby forms a limited
liability company pursuant to and in accordance with the Delaware Limited
Liability Company Act (6 Del.C. ss.18-101, et seq.), as amended from time to
time (the "Act"), and hereby agrees as follows:
1. NAME. The name of the limited liability company formed hereby is
TSFG Capital A, LLC (the "Company").
2. CERTIFICATES. Xxxxxxx X. Xxxxxxxx, Xx. is hereby designated an
"authorized person" within the meaning of the Act, and has executed, delivered
and filed the Certificate of Formation of the Company with the Secretary of
State of the State of Delaware. Upon the filing of the Certificate of Formation
with the Secretary of State of the State of Delaware, his powers as an
"authorized person" ceased, and the Member thereupon became the designated
"authorized person" and shall continue as the designated "authorized person"
within the meaning of the Act. The Member is hereby authorized to execute,
deliver and file any certificates (and any amendments and/or restatements
thereof) (i) permitted or required to be filed in the office of the Secretary of
State of the State of Delaware, or (ii) necessary for the Company to qualify to
do business in any jurisdiction in which the Company may wish to conduct
business.
3. PURPOSES.
(a) The Company is formed for the purposes of (i) issuing its common
securities to the Member, (ii) issuing an unlimited amount of debt securities,
(iii) investing the proceeds of any issued debt securities in preferred stock or
common stock of the Member, (iv) acting as depositor or sponsor of one or more
Delaware statutory trusts if determined by the Member, and (v) engaging in only
those activities necessary or incidental to the purposes listed in clauses (i),
(ii), (iii) and (iv), as determined by the Member, including, without
limitation, entering into, delivering and performing one or more indentures,
trust agreements, purchase contracts, unit agreements or other agreements or
documents (including any supplements or amendments thereto), delivering closing
certificates or any other certificates or documents contemplated by such
indentures, agreements or other documents (including any supplements or
amendments thereto), and paying any guarantee fees.
(b) The Member shall fully and unconditionally guarantee all debt
securities issued by the Company on a junior subordinated basis, as more fully
described in any indenture related to such debt securities.
(c) The Company's debt securities shall be convertible or
exchangeable only into preferred stock, common stock or junior subordinated debt
securities of the Member. The Member shall issue such preferred stock, common
stock and/or junior subordinated debt securities as and when necessary to effect
such a conversion or exchange under any indenture or other arrangement into
which the Company may enter.
(d) The Company shall invest in securities of or loan to the Member
or one or more companies controlled by the Member at least 85% of any cash or
cash equivalents received by the Company through the offering of its debt
securities within six months of receipt of such cash or cash equivalents.
4. PRINCIPAL BUSINESS OFFICE. The principal business office of the
Company shall be located at such location as may hereafter be determined by the
Member.
5. REGISTERED OFFICE. The address of the registered office of the
Company in the State of Delaware is c/o The Corporation Trust Company,
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxxxx 00000.
6. REGISTERED AGENT. The name and address of the registered agent of
the Company for service of process on the Company in the State of Delaware are
The Corporation Trust Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
7. MEMBERS. The name and the mailing address of the Member are as
follows:
Name Address
The South Financial Group, Inc. 000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
8. LIMITED LIABILITY. Except as otherwise required by the Act, the
debts, obligations and liabilities of the Company, whether arising in contract,
tort or otherwise, shall be solely the debts, obligations and liabilities of the
Company, and the Member shall not be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being a member of the
Company.
9. CAPITAL CONTRIBUTIONS. The Member is admitted as a member of the
Company upon its execution and delivery of this Agreement. The Member has
contributed $10.00, in cash, and no other property, to the Company. In exchange
for such capital contribution, the Member is hereby issued 100% of the limited
liability company interests in the Company.
10. ADDITIONAL CONTRIBUTIONS. The Member is not required to make any
additional capital contribution to the Company. However, the Member may at any
time make additional capital contributions to the Company.
11. ALLOCATION OF PROFITS AND LOSSES. The Company's profits and
losses shall be allocated solely to the Member.
12. DISTRIBUTIONS. Distributions shall be made to the Member at the
times and in the aggregate amounts determined by the Member. Notwithstanding any
provision to the contrary contained in this Agreement, the Company shall not be
required to make a distribution to the Member on account of its interest in the
Company if such distribution would violate Section 18-607 or Section 18-804 of
the Act or other applicable law.
13. MANAGEMENT.
(a) In accordance with Section 18-402 of the Act, management
of the Company shall be vested in the Member. The Member shall have the power to
do any and all acts necessary, convenient or incidental to or for the
furtherance of the purposes described herein, including all powers, statutory or
otherwise, possessed by members of a limited liability company under the laws of
the State of Delaware. Notwithstanding any other provisions of this Agreement,
the Member has the authority to bind the Company and is authorized to execute,
deliver and perform any document on behalf of the Company without any vote or
consent of any other person or entity.
(b) Notwithstanding any other provision of this Agreement,
the Act or other applicable law, rule or regulation, the Company, and the Member
or any Officer on behalf of the Company, is hereby authorized to:
(i) prepare, execute and file with the Securities and
Exchange Commission one or more registration statements on
Form S-3 or such other appropriate form (including any
registration statements filed under Rule 462(b) promulgated
under the Securities Act of 1933, as amended), including any
pre-effective or post-effective amendments thereto
(including a preliminary and/or final prospectus, prospectus
supplements and exhibits contained therein), relating to the
registration and/or issuance of any or all of the Company's
debt securities;
(ii) prepare, execute and file with the Securities
and Exchange Commission one or more registration statements
on such appropriate form as such Member or Officer
determines, including any pre-effective or post-effective
amendments thereto, relating to the registration of any or
all of the Company's debt securities under the Securities
Exchange Act of 1934, as amended;
(iii) prepare, execute and file with any securities
exchange or automated quotation system one or more listing
applications and all other applications, statements,
certificates, agreements and other instruments as shall be
necessary or desirable to cause any or all of the Company's
debt securities to be listed on any such securities exchange
or quoted on such automated quotation system;
(iv) prepare, execute and file applications,
statements, certificates, agreements and other instruments
that shall be necessary or desirable to register any or all
of the Company's debt securities with the Private Offerings,
Resales and Trading through Automated Linkages ("PORTAL")
Market;
(v) prepare, execute and file on behalf of the
Company 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 any or all of the
Company's debt securities under the securities or blue sky
laws of such jurisdictions as such Member or Officer, on
behalf of the Company, may deem necessary or desirable;
(vi) prepare, execute and deliver letters or
documents to, or instruments for filing with, a depository
relating to any or all of the Company's debt securities;
(vii) execute, deliver and perform one or more
underwriting, placement, agency, contribution or sale and
purchase or similar agreements relating to any or all of the
Company's debt securities;
(viii) execute any certificates representing debt
securities issued by the Company; and
(ix) execute, deliver and perform other agreements,
documents or certificates in furtherance of the purposes of
the Company described in Section 3.
14. OFFICERS. The Member may, from time to time as it deems
advisable, select natural persons who are employees or agents of the Member and
designate them as officers of the Company (the "Officers") and assign titles
(including, without limitation, President, Vice President, Secretary, and
Treasurer) to any such person. Unless the Member decides otherwise, if the title
is one commonly used for officers of a business corporation formed under the
Delaware General Corporation Law, the assignment of such title shall constitute
the delegation to such person of the authorities and duties that are normally
associated with that office. Any delegation pursuant to this Section 14 may be
revoked at any time by the Member. An Officer may be removed with or without
cause by the Member.
15. OTHER BUSINESS. The Member may engage in or possess an interest
in other business ventures of every kind and description, independently or with
others. The Company shall not have any rights in or to such independent ventures
or the income or profits therefrom by virtue of this Agreement.
16. EXCULPATION AND INDEMNIFICATION. No Member or Officer shall be
liable to the Company or any person or entity bound by this Agreement for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Member or Officer in good faith on behalf of the Company and in
a manner reasonably believed to be within the scope of the authority conferred
on such Member or Officer by this Agreement, except that a Member or Officer
shall be liable for any such loss, damage or claim incurred by reason of such
Member's or Officer's willful misconduct. To the full extent permitted by
applicable law, a Member or Officer shall be entitled to indemnification from
the Company for any loss, damage or claim incurred by such Member or Officer by
reason of any act or omission performed or omitted by such Member or Officer in
good faith on behalf of the Company and in a manner reasonably believed to be
within the scope of the authority conferred on such Member or Officer by this
Agreement, except that no Member or Officer shall be entitled to be indemnified
in respect of any loss, damage or claim incurred by such Member or Officer by
reason of willful misconduct with respect to such acts or omissions; provided,
however, that any indemnity under this Section 16 shall be provided out of and
to the extent of Company assets only, and the Member shall not have personal
liability on account thereof.
17. ASSIGNMENTS. The Member may at any time assign in whole or in
part its limited liability company interest in the Company provided, however,
that the Member or one or more of its majority-owned subsidiaries shall at all
times own all of the Company's limited liability company interests. The
transferee shall be admitted to the Company as a member upon its execution of an
instrument signifying its agreement to be bound by the terms and conditions of
this Agreement. If the Member transfers all of its interest in the Company
pursuant to this Section 17, such admission shall be deemed effective
immediately prior to the transfer, and, immediately following such admission,
the transferor Member shall cease to be a member of the Company.
18. RESIGNATION. The Member may at any time resign from the Company,
subject to the admission to the Company of an additional member to take the
place of the Member. Such additional member shall only be admitted to the
Company (i) upon its execution of an instrument signifying its agreement to be
bound by the terms and conditions of this Agreement and (ii) if its admission
would comply with the proviso in Section 19 hereof. Such admission shall be
deemed effective simultaneously with the resignation, and, simultaneously with
such admission, the resigning Member shall cease to be a member of the Company.
19. ADMISSION OF ADDITIONAL MEMBERS. One or more additional members
of the Company may be admitted to the Company with the written consent of the
Member; provided, however, that the Member or one or more of its majority-owned
subsidiaries shall at all times own all of the Company's limited liability
company interests.
20. DISSOLUTION.
(a) The Company shall dissolve and its affairs shall be
wound up upon the first to occur of the following: (i) the written consent of
the Member, (ii) at any time there are no members of the Company unless the
Company is continued in accordance
with the Act, or (iii) the entry of a decree of judicial dissolution under
Section 18-802 of the Act.
(b) The bankruptcy (as defined at Sections 18-101 and 18-304
of the Act) of the Member shall not cause the Member to cease to be a member of
the Company and upon the occurrence of such an event, the business of the
Company shall continue without dissolution.
(c) In the event of dissolution, the Company shall conduct
only such activities as are necessary to wind up its affairs (including the sale
of the assets of the Company in an orderly manner), and the assets of the
Company shall be applied in the manner, and in the order of priority, set forth
in Section 18-804 of the Act.
21. SEPARABILITY OF PROVISIONS. Each provision of this Agreement
shall be considered separable, and if for any reason any provision or provisions
herein are determined to be invalid, unenforceable or illegal under any existing
or future law, such invalidity, unenforceability or illegality shall not impair
the operation of or affect those portions of this Agreement that are valid,
enforceable and legal.
22. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the Member with respect to the subject matter hereof.
23. GOVERNING LAW. This Agreement shall be governed by, and
construed under, the laws of the State of Delaware (without regard to conflict
of laws principles), all rights and remedies being governed by said laws.
24. AMENDMENTS. This Agreement may not be modified, altered,
supplemented or amended except pursuant to a written agreement executed and
delivered by the Member.
25. SOLE BENEFIT OF MEMBER. Except as expressly provided in Section
16, the provisions of this Agreement (including Section 10) are intended solely
to benefit the Member and, to the fullest extent permitted by applicable law,
shall not be construed as conferring any benefit upon any creditor of the
Company (and no such creditor shall be a third-party beneficiary of this
Agreement), and the Member shall not have any duty or obligation to any creditor
of the Company to make any contributions or payments to the Company.
26. EXPENSES. The Member shall pay all fees, costs and expenses of
the Company.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Agreement as of the date first written above.
THE SOUTH FINANCIAL GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title
LIMITED LIABILITY COMPANY AGREEMENT
OF
TSFG CAPITAL B, LLC
This Limited Liability Company Agreement (this "Agreement") of TSFG
Capital B, LLC, dated and effective as of November 1, 2004, is entered into by
The South Financial Group, Inc. as the sole member (the "Member").
The Member, by execution of this Agreement, hereby forms a limited
liability company pursuant to and in accordance with the Delaware Limited
Liability Company Act (6 Del.C. ss.18-101, et seq.), as amended from time to
time (the "Act"), and hereby agrees as follows:
1. NAME. The name of the limited liability company formed hereby is
TSFG Capital B, LLC (the "Company").
2. CERTIFICATES. Xxxxxxx X. Xxxxxxxx, Xx. is hereby designated an
"authorized person" within the meaning of the Act, and has executed, delivered
and filed the Certificate of Formation of the Company with the Secretary of
State of the State of Delaware. Upon the filing of the Certificate of Formation
with the Secretary of State of the State of Delaware, his powers as an
"authorized person" ceased, and the Member thereupon became the designated
"authorized person" and shall continue as the designated "authorized person"
within the meaning of the Act. The Member is hereby authorized to execute,
deliver and file any certificates (and any amendments and/or restatements
thereof) (i) permitted or required to be filed in the office of the Secretary of
State of the State of Delaware, or (ii) necessary for the Company to qualify to
do business in any jurisdiction in which the Company may wish to conduct
business.
3. PURPOSES.
(a) The Company is formed for the purposes of (i) issuing its common
securities to the Member, (ii) issuing an unlimited amount of debt securities,
(iii) investing the proceeds of any issued debt securities in preferred stock or
common stock of the Member, (iv) acting as depositor or sponsor of one or more
Delaware statutory trusts if determined by the Member, and (v) engaging in only
those activities necessary or incidental to the purposes listed in clauses (i),
(ii), (iii) and (iv), as determined by the Member, including, without
limitation, entering into, delivering and performing one or more indentures,
trust agreements, purchase contracts, unit agreements or other agreements or
documents (including any supplements or amendments thereto), delivering closing
certificates or any other certificates or documents contemplated by such
indentures, agreements or other documents (including any supplements or
amendments thereto), and paying any guarantee fees.
(b) The Member shall fully and unconditionally guarantee all debt
securities issued by the Company on a junior subordinated basis, as more fully
described in any indenture related to such debt securities.
(c) The Company's debt securities shall be convertible or
exchangeable only into preferred stock, common stock or junior subordinated debt
securities of the Member. The Member shall issue such preferred stock, common
stock and/or junior subordinated debt securities as and when necessary to effect
such a conversion or exchange under any indenture or other arrangement into
which the Company may enter.
(d) The Company shall invest in securities of or loan to the Member
or one or more companies controlled by the Member at least 85% of any cash or
cash equivalents received by the Company through the offering of its debt
securities within six months of receipt of such cash or cash equivalents.
4. PRINCIPAL BUSINESS OFFICE. The principal business office of the
Company shall be located at such location as may hereafter be determined by the
Member.
5. REGISTERED OFFICE. The address of the registered office of the
Company in the State of Delaware is c/o The Corporation Trust Company,
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxxxx 00000.
6. REGISTERED AGENT. The name and address of the registered agent of
the Company for service of process on the Company in the State of Delaware are
The Corporation Trust Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
7. MEMBERS. The name and the mailing address of the Member are as
follows:
Name Address
The South Financial Group, Inc. 000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
8. LIMITED LIABILITY. Except as otherwise required by the Act, the
debts, obligations and liabilities of the Company, whether arising in contract,
tort or otherwise, shall be solely the debts, obligations and liabilities of the
Company, and the Member shall not be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being a member of the
Company.
9. CAPITAL CONTRIBUTIONS. The Member is admitted as a member of the
Company upon its execution and delivery of this Agreement. The Member has
contributed $10.00, in cash, and no other property, to the Company. In exchange
for such capital contribution, the Member is hereby issued 100% of the limited
liability company interests in the Company.
10. ADDITIONAL CONTRIBUTIONS. The Member is not required to make any
additional capital contribution to the Company. However, the Member may at any
time make additional capital contributions to the Company.
11. ALLOCATION OF PROFITS AND LOSSES. The Company's profits and
losses shall be allocated solely to the Member.
12. DISTRIBUTIONS. Distributions shall be made to the Member at the
times and in the aggregate amounts determined by the Member. Notwithstanding any
provision to the contrary contained in this Agreement, the Company shall not be
required to make a distribution to the Member on account of its interest in the
Company if such distribution would violate Section 18-607 or Section 18-804 of
the Act or other applicable law.
13. MANAGEMENT.
(a) In accordance with Section 18-402 of the Act, management
of the Company shall be vested in the Member. The Member shall have the power to
do any and all acts necessary, convenient or incidental to or for the
furtherance of the purposes described herein, including all powers, statutory or
otherwise, possessed by members of a limited liability company under the laws of
the State of Delaware. Notwithstanding any other provisions of this Agreement,
the Member has the authority to bind the Company and is authorized to execute,
deliver and perform any document on behalf of the Company without any vote or
consent of any other person or entity.
(b) Notwithstanding any other provision of this Agreement,
the Act or other applicable law, rule or regulation, the Company, and the Member
or any Officer on behalf of the Company, is hereby authorized to:
(i) prepare, execute and file with the Securities and
Exchange Commission one or more registration statements on
Form S-3 or such other appropriate form (including any
registration statements filed under Rule 462(b) promulgated
under the Securities Act of 1933, as amended), including any
pre-effective or post-effective amendments thereto
(including a preliminary and/or final prospectus, prospectus
supplements and exhibits contained therein), relating to the
registration and/or issuance of any or all of the Company's
debt securities;
(ii) prepare, execute and file with the Securities
and Exchange Commission one or more registration statements
on such appropriate form as such Member or Officer
determines, including any pre-effective or post-effective
amendments thereto, relating to the registration of any or
all of the Company's debt securities under the Securities
Exchange Act of 1934, as amended;
(iii) prepare, execute and file with any securities
exchange or automated quotation system one or more listing
applications and all other applications, statements,
certificates, agreements and other instruments as shall be
necessary or desirable to cause any or all of the Company's
debt securities to be listed on any such securities exchange
or quoted on such automated quotation system;
(iv) prepare, execute and file applications,
statements, certificates, agreements and other instruments
that shall be necessary or desirable to register any or all
of the Company's debt securities with the Private Offerings,
Resales and Trading through Automated Linkages ("PORTAL")
Market;
(v) prepare, execute and file on behalf of the
Company 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 any or all of the
Company's debt securities under the securities or blue sky
laws of such jurisdictions as such Member or Officer, on
behalf of the Company, may deem necessary or desirable;
(vi) prepare, execute and deliver letters or
documents to, or instruments for filing with, a depository
relating to any or all of the Company's debt securities;
(vii) execute, deliver and perform one or more
underwriting, placement, agency, contribution or sale and
purchase or similar agreements relating to any or all of the
Company's debt securities;
(viii) execute any certificates representing debt
securities issued by the Company; and
(ix) execute, deliver and perform other agreements,
documents or certificates in furtherance of the purposes of
the Company described in Section 3.
14. OFFICERS. The Member may, from time to time as it deems
advisable, select natural persons who are employees or agents of the Member and
designate them as officers of the Company (the "Officers") and assign titles
(including, without limitation, President, Vice President, Secretary, and
Treasurer) to any such person. Unless the Member decides otherwise, if the title
is one commonly used for officers of a business corporation formed under the
Delaware General Corporation Law, the assignment of such title shall constitute
the delegation to such person of the authorities and duties that are normally
associated with that office. Any delegation pursuant to this Section 14 may be
revoked at any time by the Member. An Officer may be removed with or without
cause by the Member.
15. OTHER BUSINESS. The Member may engage in or possess an interest
in other business ventures of every kind and description, independently or with
others. The Company shall not have any rights in or to such independent ventures
or the income or profits therefrom by virtue of this Agreement.
16. EXCULPATION AND INDEMNIFICATION. No Member or Officer shall be
liable to the Company or any person or entity bound by this Agreement for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Member or Officer in good faith on behalf of the Company and in
a manner reasonably believed to be within the scope of the authority conferred
on such Member or Officer by this Agreement, except that a Member or Officer
shall be liable for any such loss, damage or claim incurred by reason of such
Member's or Officer's willful misconduct. To the full extent permitted by
applicable law, a Member or Officer shall be entitled to indemnification from
the Company for any loss, damage or claim incurred by such Member or Officer by
reason of any act or omission performed or omitted by such Member or Officer in
good faith on behalf of the Company and in a manner reasonably believed to be
within the scope of the authority conferred on such Member or Officer by this
Agreement, except that no Member or Officer shall be entitled to be indemnified
in respect of any loss, damage or claim incurred by such Member or Officer by
reason of willful misconduct with respect to such acts or omissions; provided,
however, that any indemnity under this Section 16 shall be provided out of and
to the extent of Company assets only, and the Member shall not have personal
liability on account thereof.
17. ASSIGNMENTS. The Member may at any time assign in whole or in
part its limited liability company interest in the Company provided, however,
that the Member or one or more of its majority-owned subsidiaries shall at all
times own all of the Company's limited liability company interests. The
transferee shall be admitted to the Company as a member upon its execution of an
instrument signifying its agreement to be bound by the terms and conditions of
this Agreement. If the Member transfers all of its interest in the Company
pursuant to this Section 17, such admission shall be deemed effective
immediately prior to the transfer, and, immediately following such admission,
the transferor Member shall cease to be a member of the Company.
18. RESIGNATION. The Member may at any time resign from the Company,
subject to the admission to the Company of an additional member to take the
place of the Member. Such additional member shall only be admitted to the
Company (i) upon its execution of an instrument signifying its agreement to be
bound by the terms and conditions of this Agreement and (ii) if its admission
would comply with the proviso in Section 19 hereof. Such admission shall be
deemed effective simultaneously with the resignation, and, simultaneously with
such admission, the resigning Member shall cease to be a member of the Company.
19. ADMISSION OF ADDITIONAL MEMBERS. One or more additional members
of the Company may be admitted to the Company with the written consent of the
Member; provided, however, that the Member or one or more of its majority-owned
subsidiaries shall at all times own all of the Company's limited liability
company interests.
20. DISSOLUTION.
(a) The Company shall dissolve and its affairs shall be
wound up upon the first to occur of the following: (i) the written consent of
the Member, (ii) at any time there are no members of the Company unless the
Company is continued in accordance
with the Act, or (iii) the entry of a decree of judicial dissolution under
Section 18-802 of the Act.
(b) The bankruptcy (as defined at Sections 18-101 and 18-304
of the Act) of the Member shall not cause the Member to cease to be a member of
the Company and upon the occurrence of such an event, the business of the
Company shall continue without dissolution.
(c) In the event of dissolution, the Company shall conduct
only such activities as are necessary to wind up its affairs (including the sale
of the assets of the Company in an orderly manner), and the assets of the
Company shall be applied in the manner, and in the order of priority, set forth
in Section 18-804 of the Act.
21. SEPARABILITY OF PROVISIONS. Each provision of this Agreement
shall be considered separable, and if for any reason any provision or provisions
herein are determined to be invalid, unenforceable or illegal under any existing
or future law, such invalidity, unenforceability or illegality shall not impair
the operation of or affect those portions of this Agreement that are valid,
enforceable and legal.
22. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the Member with respect to the subject matter hereof.
23. GOVERNING LAW. This Agreement shall be governed by, and
construed under, the laws of the State of Delaware (without regard to conflict
of laws principles), all rights and remedies being governed by said laws.
24. AMENDMENTS. This Agreement may not be modified, altered,
supplemented or amended except pursuant to a written agreement executed and
delivered by the Member.
25. SOLE BENEFIT OF MEMBER. Except as expressly provided in Section
16, the provisions of this Agreement (including Section 10) are intended solely
to benefit the Member and, to the fullest extent permitted by applicable law,
shall not be construed as conferring any benefit upon any creditor of the
Company (and no such creditor shall be a third-party beneficiary of this
Agreement), and the Member shall not have any duty or obligation to any creditor
of the Company to make any contributions or payments to the Company.
26. EXPENSES. The Member shall pay all fees, costs and expenses of
the Company.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Agreement as of the date first written above.
THE SOUTH FINANCIAL GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title
LIMITED LIABILITY COMPANY AGREEMENT
OF
TSFG CAPITAL C, LLC
This Limited Liability Company Agreement (this "Agreement") of TSFG
Capital C, LLC, dated and effective as of November 1, 2004, is entered into by
The South Financial Group, Inc. as the sole member (the "Member").
The Member, by execution of this Agreement, hereby forms a limited
liability company pursuant to and in accordance with the Delaware Limited
Liability Company Act (6 Del.C. ss.18-101, et seq.), as amended from time to
time (the "Act"), and hereby agrees as follows:
1. NAME. The name of the limited liability company formed hereby is
TSFG Capital C, LLC (the "Company").
2. CERTIFICATES. Xxxxxxx X. Xxxxxxxx, Xx. is hereby designated an
"authorized person" within the meaning of the Act, and has executed, delivered
and filed the Certificate of Formation of the Company with the Secretary of
State of the State of Delaware. Upon the filing of the Certificate of Formation
with the Secretary of State of the State of Delaware, his powers as an
"authorized person" ceased, and the Member thereupon became the designated
"authorized person" and shall continue as the designated "authorized person"
within the meaning of the Act. The Member is hereby authorized to execute,
deliver and file any certificates (and any amendments and/or restatements
thereof) (i) permitted or required to be filed in the office of the Secretary of
State of the State of Delaware, or (ii) necessary for the Company to qualify to
do business in any jurisdiction in which the Company may wish to conduct
business.
3. PURPOSES.
(a) The Company is formed for the purposes of (i) issuing its common
securities to the Member, (ii) issuing an unlimited amount of debt securities,
(iii) investing the proceeds of any issued debt securities in preferred stock or
common stock of the Member, (iv) acting as depositor or sponsor of one or more
Delaware statutory trusts if determined by the Member, and (v) engaging in only
those activities necessary or incidental to the purposes listed in clauses (i),
(ii), (iii) and (iv), as determined by the Member, including, without
limitation, entering into, delivering and performing one or more indentures,
trust agreements, purchase contracts, unit agreements or other agreements or
documents (including any supplements or amendments thereto), delivering closing
certificates or any other certificates or documents contemplated by such
indentures, agreements or other documents (including any supplements or
amendments thereto), and paying any guarantee fees.
(b) The Member shall fully and unconditionally guarantee all debt
securities issued by the Company on a junior subordinated basis, as more fully
described in any indenture related to such debt securities.
(c) The Company's debt securities shall be convertible or
exchangeable only into preferred stock, common stock or junior subordinated debt
securities of the Member. The Member shall issue such preferred stock, common
stock and/or junior subordinated debt securities as and when necessary to effect
such a conversion or exchange under any indenture or other arrangement into
which the Company may enter.
(d) The Company shall invest in securities of or loan to the Member
or one or more companies controlled by the Member at least 85% of any cash or
cash equivalents received by the Company through the offering of its debt
securities within six months of receipt of such cash or cash equivalents.
4. PRINCIPAL BUSINESS OFFICE. The principal business office of the
Company shall be located at such location as may hereafter be determined by the
Member.
5. REGISTERED OFFICE. The address of the registered office of the
Company in the State of Delaware is c/o The Corporation Trust Company,
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxxxx 00000.
6. REGISTERED AGENT. The name and address of the registered agent of
the Company for service of process on the Company in the State of Delaware are
The Corporation Trust Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
7. MEMBERS. The name and the mailing address of the Member are as
follows:
Name Address
The South Financial Group, Inc. 000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
8. LIMITED LIABILITY. Except as otherwise required by the Act, the
debts, obligations and liabilities of the Company, whether arising in contract,
tort or otherwise, shall be solely the debts, obligations and liabilities of the
Company, and the Member shall not be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being a member of the
Company.
9. CAPITAL CONTRIBUTIONS. The Member is admitted as a member of the
Company upon its execution and delivery of this Agreement. The Member has
contributed $10.00, in cash, and no other property, to the Company. In exchange
for such capital contribution, the Member is hereby issued 100% of the limited
liability company interests in the Company.
10. ADDITIONAL CONTRIBUTIONS. The Member is not required to make any
additional capital contribution to the Company. However, the Member may at any
time make additional capital contributions to the Company.
11. ALLOCATION OF PROFITS AND LOSSES. The Company's profits and
losses shall be allocated solely to the Member.
12. DISTRIBUTIONS. Distributions shall be made to the Member at the
times and in the aggregate amounts determined by the Member. Notwithstanding any
provision to the contrary contained in this Agreement, the Company shall not be
required to make a distribution to the Member on account of its interest in the
Company if such distribution would violate Section 18-607 or Section 18-804 of
the Act or other applicable law.
13. MANAGEMENT.
(a) In accordance with Section 18-402 of the Act, management
of the Company shall be vested in the Member. The Member shall have the power to
do any and all acts necessary, convenient or incidental to or for the
furtherance of the purposes described herein, including all powers, statutory or
otherwise, possessed by members of a limited liability company under the laws of
the State of Delaware. Notwithstanding any other provisions of this Agreement,
the Member has the authority to bind the Company and is authorized to execute,
deliver and perform any document on behalf of the Company without any vote or
consent of any other person or entity.
(b) Notwithstanding any other provision of this Agreement,
the Act or other applicable law, rule or regulation, the Company, and the Member
or any Officer on behalf of the Company, is hereby authorized to:
(i) prepare, execute and file with the Securities and
Exchange Commission one or more registration statements on
Form S-3 or such other appropriate form (including any
registration statements filed under Rule 462(b) promulgated
under the Securities Act of 1933, as amended), including any
pre-effective or post-effective amendments thereto
(including a preliminary and/or final prospectus, prospectus
supplements and exhibits contained therein), relating to the
registration and/or issuance of any or all of the Company's
debt securities;
(ii) prepare, execute and file with the Securities
and Exchange Commission one or more registration statements
on such appropriate form as such Member or Officer
determines, including any pre-effective or post-effective
amendments thereto, relating to the registration of any or
all of the Company's debt securities under the Securities
Exchange Act of 1934, as amended;
(iii) prepare, execute and file with any securities
exchange or automated quotation system one or more listing
applications and all other applications, statements,
certificates, agreements and other instruments as shall be
necessary or desirable to cause any or all of the Company's
debt securities to be listed on any such securities exchange
or quoted on such automated quotation system;
(iv) prepare, execute and file applications,
statements, certificates, agreements and other instruments
that shall be necessary or desirable to register any or all
of the Company's debt securities with the Private Offerings,
Resales and Trading through Automated Linkages ("PORTAL")
Market;
(v) prepare, execute and file on behalf of the
Company 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 any or all of the
Company's debt securities under the securities or blue sky
laws of such jurisdictions as such Member or Officer, on
behalf of the Company, may deem necessary or desirable;
(vi) prepare, execute and deliver letters or
documents to, or instruments for filing with, a depository
relating to any or all of the Company's debt securities;
(vii) execute, deliver and perform one or more
underwriting, placement, agency, contribution or sale and
purchase or similar agreements relating to any or all of the
Company's debt securities;
(viii) execute any certificates representing debt
securities issued by the Company; and
(ix) execute, deliver and perform other agreements,
documents or certificates in furtherance of the purposes of
the Company described in Section 3.
14. OFFICERS. The Member may, from time to time as it deems
advisable, select natural persons who are employees or agents of the Member and
designate them as officers of the Company (the "Officers") and assign titles
(including, without limitation, President, Vice President, Secretary, and
Treasurer) to any such person. Unless the Member decides otherwise, if the title
is one commonly used for officers of a business corporation formed under the
Delaware General Corporation Law, the assignment of such title shall constitute
the delegation to such person of the authorities and duties that are normally
associated with that office. Any delegation pursuant to this Section 14 may be
revoked at any time by the Member. An Officer may be removed with or without
cause by the Member.
15. OTHER BUSINESS. The Member may engage in or possess an interest
in other business ventures of every kind and description, independently or with
others. The Company shall not have any rights in or to such independent ventures
or the income or profits therefrom by virtue of this Agreement.
16. EXCULPATION AND INDEMNIFICATION. No Member or Officer shall be
liable to the Company or any person or entity bound by this Agreement for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Member or Officer in good faith on behalf of the Company and in
a manner reasonably believed to be within the scope of the authority conferred
on such Member or Officer by this Agreement, except that a Member or Officer
shall be liable for any such loss, damage or claim incurred by reason of such
Member's or Officer's willful misconduct. To the full extent permitted by
applicable law, a Member or Officer shall be entitled to indemnification from
the Company for any loss, damage or claim incurred by such Member or Officer by
reason of any act or omission performed or omitted by such Member or Officer in
good faith on behalf of the Company and in a manner reasonably believed to be
within the scope of the authority conferred on such Member or Officer by this
Agreement, except that no Member or Officer shall be entitled to be indemnified
in respect of any loss, damage or claim incurred by such Member or Officer by
reason of willful misconduct with respect to such acts or omissions; provided,
however, that any indemnity under this Section 16 shall be provided out of and
to the extent of Company assets only, and the Member shall not have personal
liability on account thereof.
17. ASSIGNMENTS. The Member may at any time assign in whole or in
part its limited liability company interest in the Company provided, however,
that the Member or one or more of its majority-owned subsidiaries shall at all
times own all of the Company's limited liability company interests. The
transferee shall be admitted to the Company as a member upon its execution of an
instrument signifying its agreement to be bound by the terms and conditions of
this Agreement. If the Member transfers all of its interest in the Company
pursuant to this Section 17, such admission shall be deemed effective
immediately prior to the transfer, and, immediately following such admission,
the transferor Member shall cease to be a member of the Company.
18. RESIGNATION. The Member may at any time resign from the Company,
subject to the admission to the Company of an additional member to take the
place of the Member. Such additional member shall only be admitted to the
Company (i) upon its execution of an instrument signifying its agreement to be
bound by the terms and conditions of this Agreement and (ii) if its admission
would comply with the proviso in Section 19 hereof. Such admission shall be
deemed effective simultaneously with the resignation, and, simultaneously with
such admission, the resigning Member shall cease to be a member of the Company.
19. ADMISSION OF ADDITIONAL MEMBERS. One or more additional members
of the Company may be admitted to the Company with the written consent of the
Member; provided, however, that the Member or one or more of its majority-owned
subsidiaries shall at all times own all of the Company's limited liability
company interests.
20. DISSOLUTION.
(a) The Company shall dissolve and its affairs shall be
wound up upon the first to occur of the following: (i) the written consent of
the Member, (ii) at any time there are no members of the Company unless the
Company is continued in accordance
with the Act, or (iii) the entry of a decree of judicial dissolution under
Section 18-802 of the Act.
(b) The bankruptcy (as defined at Sections 18-101 and 18-304
of the Act) of the Member shall not cause the Member to cease to be a member of
the Company and upon the occurrence of such an event, the business of the
Company shall continue without dissolution.
(c) In the event of dissolution, the Company shall conduct
only such activities as are necessary to wind up its affairs (including the sale
of the assets of the Company in an orderly manner), and the assets of the
Company shall be applied in the manner, and in the order of priority, set forth
in Section 18-804 of the Act.
21. SEPARABILITY OF PROVISIONS. Each provision of this Agreement
shall be considered separable, and if for any reason any provision or provisions
herein are determined to be invalid, unenforceable or illegal under any existing
or future law, such invalidity, unenforceability or illegality shall not impair
the operation of or affect those portions of this Agreement that are valid,
enforceable and legal.
22. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the Member with respect to the subject matter hereof.
23. GOVERNING LAW. This Agreement shall be governed by, and
construed under, the laws of the State of Delaware (without regard to conflict
of laws principles), all rights and remedies being governed by said laws.
24. AMENDMENTS. This Agreement may not be modified, altered,
supplemented or amended except pursuant to a written agreement executed and
delivered by the Member.
25. SOLE BENEFIT OF MEMBER. Except as expressly provided in Section
16, the provisions of this Agreement (including Section 10) are intended solely
to benefit the Member and, to the fullest extent permitted by applicable law,
shall not be construed as conferring any benefit upon any creditor of the
Company (and no such creditor shall be a third-party beneficiary of this
Agreement), and the Member shall not have any duty or obligation to any creditor
of the Company to make any contributions or payments to the Company.
26. EXPENSES. The Member shall pay all fees, costs and expenses of
the Company.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Agreement as of the date first written above.
THE SOUTH FINANCIAL GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title
LIMITED LIABILITY COMPANY AGREEMENT
OF
TSFG CAPITAL D, LLC
This Limited Liability Company Agreement (this "Agreement") of TSFG
Capital D, LLC, dated and effective as of November 1, 2004, is entered into by
The South Financial Group, Inc. as the sole member (the "Member").
The Member, by execution of this Agreement, hereby forms a limited
liability company pursuant to and in accordance with the Delaware Limited
Liability Company Act (6 Del.C. ss.18-101, et seq.), as amended from time to
time (the "Act"), and hereby agrees as follows:
1. NAME. The name of the limited liability company formed hereby is
TSFG Capital D, LLC (the "Company").
2. CERTIFICATES. Xxxxxxx X. Xxxxxxxx, Xx. is hereby designated an
"authorized person" within the meaning of the Act, and has executed, delivered
and filed the Certificate of Formation of the Company with the Secretary of
State of the State of Delaware. Upon the filing of the Certificate of Formation
with the Secretary of State of the State of Delaware, his powers as an
"authorized person" ceased, and the Member thereupon became the designated
"authorized person" and shall continue as the designated "authorized person"
within the meaning of the Act. The Member is hereby authorized to execute,
deliver and file any certificates (and any amendments and/or restatements
thereof) (i) permitted or required to be filed in the office of the Secretary of
State of the State of Delaware, or (ii) necessary for the Company to qualify to
do business in any jurisdiction in which the Company may wish to conduct
business.
3. PURPOSES.
(a) The Company is formed for the purposes of (i) issuing its common
securities to the Member, (ii) issuing an unlimited amount of debt securities,
(iii) investing the proceeds of any issued debt securities in preferred stock or
common stock of the Member, (iv) acting as depositor or sponsor of one or more
Delaware statutory trusts if determined by the Member, and (v) engaging in only
those activities necessary or incidental to the purposes listed in clauses (i),
(ii), (iii) and (iv), as determined by the Member, including, without
limitation, entering into, delivering and performing one or more indentures,
trust agreements, purchase contracts, unit agreements or other agreements or
documents (including any supplements or amendments thereto), delivering closing
certificates or any other certificates or documents contemplated by such
indentures, agreements or other documents (including any supplements or
amendments thereto), and paying any guarantee fees.
(b) The Member shall fully and unconditionally guarantee all debt
securities issued by the Company on a junior subordinated basis, as more fully
described in any indenture related to such debt securities.
(c) The Company's debt securities shall be convertible or
exchangeable only into preferred stock, common stock or junior subordinated debt
securities of the Member. The Member shall issue such preferred stock, common
stock and/or junior subordinated debt securities as and when necessary to effect
such a conversion or exchange under any indenture or other arrangement into
which the Company may enter.
(d) The Company shall invest in securities of or loan to the Member
or one or more companies controlled by the Member at least 85% of any cash or
cash equivalents received by the Company through the offering of its debt
securities within six months of receipt of such cash or cash equivalents.
4. PRINCIPAL BUSINESS OFFICE. The principal business office of the
Company shall be located at such location as may hereafter be determined by the
Member.
5. REGISTERED OFFICE. The address of the registered office of the
Company in the State of Delaware is c/o The Corporation Trust Company,
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxxxx 00000.
6. REGISTERED AGENT. The name and address of the registered agent of
the Company for service of process on the Company in the State of Delaware are
The Corporation Trust Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000.
7. MEMBERS. The name and the mailing address of the Member are as
follows:
Name Address
The South Financial Group, Inc. 000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
8. LIMITED LIABILITY. Except as otherwise required by the Act, the
debts, obligations and liabilities of the Company, whether arising in contract,
tort or otherwise, shall be solely the debts, obligations and liabilities of the
Company, and the Member shall not be obligated personally for any such debt,
obligation or liability of the Company solely by reason of being a member of the
Company.
9. CAPITAL CONTRIBUTIONS. The Member is admitted as a member of the
Company upon its execution and delivery of this Agreement. The Member has
contributed $10.00, in cash, and no other property, to the Company. In exchange
for such capital contribution, the Member is hereby issued 100% of the limited
liability company interests in the Company.
10. ADDITIONAL CONTRIBUTIONS. The Member is not required to make any
additional capital contribution to the Company. However, the Member may at any
time make additional capital contributions to the Company.
11. ALLOCATION OF PROFITS AND LOSSES. The Company's profits and
losses shall be allocated solely to the Member.
12. DISTRIBUTIONS. Distributions shall be made to the Member at the
times and in the aggregate amounts determined by the Member. Notwithstanding any
provision to the contrary contained in this Agreement, the Company shall not be
required to make a distribution to the Member on account of its interest in the
Company if such distribution would violate Section 18-607 or Section 18-804 of
the Act or other applicable law.
13. MANAGEMENT.
(a) In accordance with Section 18-402 of the Act, management
of the Company shall be vested in the Member. The Member shall have the power to
do any and all acts necessary, convenient or incidental to or for the
furtherance of the purposes described herein, including all powers, statutory or
otherwise, possessed by members of a limited liability company under the laws of
the State of Delaware. Notwithstanding any other provisions of this Agreement,
the Member has the authority to bind the Company and is authorized to execute,
deliver and perform any document on behalf of the Company without any vote or
consent of any other person or entity.
(b) Notwithstanding any other provision of this Agreement,
the Act or other applicable law, rule or regulation, the Company, and the Member
or any Officer on behalf of the Company, is hereby authorized to:
(i) prepare, execute and file with the Securities and
Exchange Commission one or more registration statements on
Form S-3 or such other appropriate form (including any
registration statements filed under Rule 462(b) promulgated
under the Securities Act of 1933, as amended), including any
pre-effective or post-effective amendments thereto
(including a preliminary and/or final prospectus, prospectus
supplements and exhibits contained therein), relating to the
registration and/or issuance of any or all of the Company's
debt securities;
(ii) prepare, execute and file with the Securities
and Exchange Commission one or more registration statements
on such appropriate form as such Member or Officer
determines, including any pre-effective or post-effective
amendments thereto, relating to the registration of any or
all of the Company's debt securities under the Securities
Exchange Act of 1934, as amended;
(iii) prepare, execute and file with any securities
exchange or automated quotation system one or more listing
applications and all other applications, statements,
certificates, agreements and other instruments as shall be
necessary or desirable to cause any or all of the Company's
debt securities to be listed on any such securities exchange
or quoted on such automated quotation system;
(iv) prepare, execute and file applications,
statements, certificates, agreements and other instruments
that shall be necessary or desirable to register any or all
of the Company's debt securities with the Private Offerings,
Resales and Trading through Automated Linkages ("PORTAL")
Market;
(v) prepare, execute and file on behalf of the
Company 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 any or all of the
Company's debt securities under the securities or blue sky
laws of such jurisdictions as such Member or Officer, on
behalf of the Company, may deem necessary or desirable;
(vi) prepare, execute and deliver letters or
documents to, or instruments for filing with, a depository
relating to any or all of the Company's debt securities;
(vii) execute, deliver and perform one or more
underwriting, placement, agency, contribution or sale and
purchase or similar agreements relating to any or all of the
Company's debt securities;
(viii) execute any certificates representing debt
securities issued by the Company; and
(ix) execute, deliver and perform other agreements,
documents or certificates in furtherance of the purposes of
the Company described in Section 3.
14. OFFICERS. The Member may, from time to time as it deems
advisable, select natural persons who are employees or agents of the Member and
designate them as officers of the Company (the "Officers") and assign titles
(including, without limitation, President, Vice President, Secretary, and
Treasurer) to any such person. Unless the Member decides otherwise, if the title
is one commonly used for officers of a business corporation formed under the
Delaware General Corporation Law, the assignment of such title shall constitute
the delegation to such person of the authorities and duties that are normally
associated with that office. Any delegation pursuant to this Section 14 may be
revoked at any time by the Member. An Officer may be removed with or without
cause by the Member.
15. OTHER BUSINESS. The Member may engage in or possess an interest
in other business ventures of every kind and description, independently or with
others. The Company shall not have any rights in or to such independent ventures
or the income or profits therefrom by virtue of this Agreement.
16. EXCULPATION AND INDEMNIFICATION. No Member or Officer shall be
liable to the Company or any person or entity bound by this Agreement for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Member or Officer in good faith on behalf of the Company and in
a manner reasonably believed to be within the scope of the authority conferred
on such Member or Officer by this Agreement, except that a Member or Officer
shall be liable for any such loss, damage or claim incurred by reason of such
Member's or Officer's willful misconduct. To the full extent permitted by
applicable law, a Member or Officer shall be entitled to indemnification from
the Company for any loss, damage or claim incurred by such Member or Officer by
reason of any act or omission performed or omitted by such Member or Officer in
good faith on behalf of the Company and in a manner reasonably believed to be
within the scope of the authority conferred on such Member or Officer by this
Agreement, except that no Member or Officer shall be entitled to be indemnified
in respect of any loss, damage or claim incurred by such Member or Officer by
reason of willful misconduct with respect to such acts or omissions; provided,
however, that any indemnity under this Section 16 shall be provided out of and
to the extent of Company assets only, and the Member shall not have personal
liability on account thereof.
17. ASSIGNMENTS. The Member may at any time assign in whole or in
part its limited liability company interest in the Company provided, however,
that the Member or one or more of its majority-owned subsidiaries shall at all
times own all of the Company's limited liability company interests. The
transferee shall be admitted to the Company as a member upon its execution of an
instrument signifying its agreement to be bound by the terms and conditions of
this Agreement. If the Member transfers all of its interest in the Company
pursuant to this Section 17, such admission shall be deemed effective
immediately prior to the transfer, and, immediately following such admission,
the transferor Member shall cease to be a member of the Company.
18. RESIGNATION. The Member may at any time resign from the Company,
subject to the admission to the Company of an additional member to take the
place of the Member. Such additional member shall only be admitted to the
Company (i) upon its execution of an instrument signifying its agreement to be
bound by the terms and conditions of this Agreement and (ii) if its admission
would comply with the proviso in Section 19 hereof. Such admission shall be
deemed effective simultaneously with the resignation, and, simultaneously with
such admission, the resigning Member shall cease to be a member of the Company.
19. ADMISSION OF ADDITIONAL MEMBERS. One or more additional members
of the Company may be admitted to the Company with the written consent of the
Member; provided, however, that the Member or one or more of its majority-owned
subsidiaries shall at all times own all of the Company's limited liability
company interests.
20. DISSOLUTION.
(a) The Company shall dissolve and its affairs shall be
wound up upon the first to occur of the following: (i) the written consent of
the Member, (ii) at any time there are no members of the Company unless the
Company is continued in accordance
with the Act, or (iii) the entry of a decree of judicial dissolution under
Section 18-802 of the Act.
(b) The bankruptcy (as defined at Sections 18-101 and 18-304
of the Act) of the Member shall not cause the Member to cease to be a member of
the Company and upon the occurrence of such an event, the business of the
Company shall continue without dissolution.
(c) In the event of dissolution, the Company shall conduct
only such activities as are necessary to wind up its affairs (including the sale
of the assets of the Company in an orderly manner), and the assets of the
Company shall be applied in the manner, and in the order of priority, set forth
in Section 18-804 of the Act.
21. SEPARABILITY OF PROVISIONS. Each provision of this Agreement
shall be considered separable, and if for any reason any provision or provisions
herein are determined to be invalid, unenforceable or illegal under any existing
or future law, such invalidity, unenforceability or illegality shall not impair
the operation of or affect those portions of this Agreement that are valid,
enforceable and legal.
22. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the Member with respect to the subject matter hereof.
23. GOVERNING LAW. This Agreement shall be governed by, and
construed under, the laws of the State of Delaware (without regard to conflict
of laws principles), all rights and remedies being governed by said laws.
24. AMENDMENTS. This Agreement may not be modified, altered,
supplemented or amended except pursuant to a written agreement executed and
delivered by the Member.
25. SOLE BENEFIT OF MEMBER. Except as expressly provided in Section
16, the provisions of this Agreement (including Section 10) are intended solely
to benefit the Member and, to the fullest extent permitted by applicable law,
shall not be construed as conferring any benefit upon any creditor of the
Company (and no such creditor shall be a third-party beneficiary of this
Agreement), and the Member shall not have any duty or obligation to any creditor
of the Company to make any contributions or payments to the Company.
26. EXPENSES. The Member shall pay all fees, costs and expenses of
the Company.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Agreement as of the date first written above.
THE SOUTH FINANCIAL GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title
