TRUST AGREEMENT
(TSFG CAPITAL TRUST A)
This TRUST AGREEMENT, dated as of October 29, 2004 (this "Trust
Agreement"), between (i) The South Financial Group, Inc., a South Carolina
corporation (the "Sponsor"), and (ii) The Bank of New York (Delaware), a
Delaware banking corporation, as trustee (the "Trustee"). The Sponsor and the
Trustee hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "TSFG
Capital Trust A" in which name the Trustee, or the Sponsor to the extent
provided herein, may engage in the transactions contemplated hereby, make and
execute contracts, and xxx and be sued. The Trust is hereby established by the
Sponsor and the Trustee for the purpose of (i) issuing preferred securities
("Preferred Securities") representing undivided beneficial interests in the
assets of the Trust in exchange for cash and investing the proceeds thereof in
debentures of the Sponsor or one of its majority-owned subsidiaries, (ii)
issuing and selling common securities ("Common Securities" and, together with
the Preferred Securities, "Trust Securities") representing undivided beneficial
interests in the assets of the Trust to the Sponsor in exchange for cash and
investing the proceeds thereof in additional debentures of the Sponsor or one of
its majority-owned subsidiaries, and (iii) engaging in such other activities as
are necessary, convenient or incidental thereto.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trustee the sum of $10.00. The Trustee hereby acknowledges receipt of such
amount in trust from the 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 is the 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. ss. 3801, et seq. (the "Trust Act"), and that this
document constitutes the governing instrument of the Trust. The Trustee is
hereby authorized and empowered to execute and file a certificate of trust in
the form of Exhibit A attached hereto with the Delaware Secretary of State in
accordance with the provisions of the Trust Act.
3. The Sponsor and the Trustee will enter into an amended and restated
Trust Agreement, satisfactory to each such party and substantially in the form
included as an exhibit to the 1933 Act Registration Statement (as defined
below), to provide for the contemplated operation of the Trust created hereby
and the issuance of the Trust Securities. Prior to the execution and delivery of
such amended and restated Trust Agreement, the Trustee shall not have any duty
or obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as the Sponsor directs in order to obtain prior to
such execution and delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Trustee hereby authorizes and empowers the Sponsor, as agent of
the Trust, (i) to file with the Securities and Exchange Commission (the
"Commission") and execute, in each case on behalf of the Trust, the Registration
Statement on Form S-3 (the "1933 Act Registration Statement"), including any
pre-effective or post-effective amendments to the 1933 Act Registration
Statement, relating to the registration under the Securities Act of 1933, as
amended, of the Preferred Securities or other securities of the Trust; (ii) to
file with The Nasdaq National Market and execute on behalf of the Trust one or
more listing applications and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause the
Preferred Securities or any units comprised of Preferred Securities or undivided
interests therein to be listed on The Nasdaq National Market; (iii) to file and
execute on behalf of the Trust such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other
papers and documents as shall be necessary or desirable to register the
Preferred Securities or any units comprised of Preferred Securities or undivided
interests therein under the securities or blue sky laws of such jurisdictions as
the Sponsor, on behalf of the Trust, may deem necessary or desirable, (iv) to
execute and deliver letters or documents to, or instruments for filing with, a
depository relating to the Preferred Securities or any units comprised of
Preferred Securities or undivided interests therein, and (v) to execute on
behalf of the Trust an underwriting agreement relating to the Preferred
Securities or any units comprised of Preferred Securities or undivided interests
therein, among the Trust, the Sponsor and the several underwriters named
therein.
5. The number of Trustees initially shall be one (1) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the Trust
Act, one Trustee shall either be a natural person who is a resident of the State
of Delaware or, if not a natural person, an entity which has its principal place
of business in the State of Delaware and otherwise meets the requirements of
applicable Delaware law. Subject to the foregoing, the Sponsor is entitled to
appoint or remove without cause any Trustee at any time. The Trustee may resign
upon thirty (30) days' prior notice to the Sponsor.
6. (a) Neither any Trustee nor any of its officers, directors, agents
and servants (collectively, a "Fiduciary Indemnified Person") shall be liable,
responsible or accountable in damages or otherwise to the Trust, the Sponsor,
the other Trustees or any holder of the Trust Securities (the Trust, the
Sponsor, the other Trustees and any holder of the Trust Securities being a
"Covered Person") for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by any such Fiduciary Indemnified Person in good
faith on behalf of the Trust and in a manner such Fiduciary Indemnified Person
reasonably believes to be within the scope of authority conferred on such
Fiduciary Indemnified Person by this Trust Agreement or by law, except that such
Fiduciary Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of the Fiduciary Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) Each Fiduciary Indemnified Person shall be fully protected in
relying in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any person as to
matters the Fiduciary Indemnified Person reasonably believes are within such
other person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount of
assets from which distributions to holders of Trust Securities might properly be
paid.
(c) The Sponsor agrees, to the fullest extent permitted by applicable
law, (i) to indemnify and hold harmless each Fiduciary Indemnified Person from
and against any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by or asserted against such Fiduciary
Indemnified Persons by reason of the creation, operation or termination of the
Trust or the transactions contemplated by this Trust Agreement, except that no
Fiduciary Indemnified Person shall be entitled to be indemnified in respect of
any loss, damage or claim incurred by such Fiduciary Indemnified Person by
reason of negligence or willful misconduct with respect to such acts or
omissions, and (ii) to advance expenses (including legal fees) incurred by a
Fiduciary Indemnified Person in defending any claim, demand, action, suit or
proceeding, from time to time, prior to the final disposition of such claim,
demand, action, suit or proceeding, upon receipt by the Trust of an undertaking
by or on behalf of such Fiduciary Indemnified Person to repay such amount if it
shall be determined that such Fiduciary Indemnified Person is not entitled to be
indemnified as authorized in the preceding subsection.
(d) The provisions of this Section shall survive the termination of
this Trust Agreement or the earlier resignation or removal of the Fiduciary
Indemnified Persons.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
8. This Trust Agreement may be executed in one or more counterparts.
9. The Trust may dissolve without issuing any Trust Securities at the
election of the Sponsor. Upon dissolution, the Trustee shall file a certificate
of cancellation in accordance with the Trust Act and apply the funds deposited
with it pursuant to Section 2 above to reimburse the Trustee for any filing fees
or other expenses in connection therewith. Any remaining funds shall, after
payment of any other expenses of the Trust, be returned to the Sponsor.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
THE SOUTH FINANCIAL GROUP, INC.,
a South Carolina corporation,
as Sponsor
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title EVP
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title Asst. VP
EXHIBIT A
CERTIFICATE OF TRUST
OF
TSFG CAPITAL TRUST A
TRUST AGREEMENT
(TSFG CAPITAL TRUST B)
This TRUST AGREEMENT, dated as of October 29, 2004 (this "Trust
Agreement"), between (i) The South Financial Group, Inc., a South Carolina
corporation (the "Sponsor"), and (ii) The Bank of New York (Delaware), a
Delaware banking corporation, as trustee (the "Trustee"). The Sponsor and the
Trustee hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "TSFG
Capital Trust B" in which name the Trustee, or the Sponsor to the extent
provided herein, may engage in the transactions contemplated hereby, make and
execute contracts, and xxx and be sued. The Trust is hereby established by the
Sponsor and the Trustee for the purpose of (i) issuing preferred securities
("Preferred Securities") representing undivided beneficial interests in the
assets of the Trust in exchange for cash and investing the proceeds thereof in
debentures of the Sponsor or one of its majority-owned subsidiaries, (ii)
issuing and selling common securities ("Common Securities" and, together with
the Preferred Securities, "Trust Securities") representing undivided beneficial
interests in the assets of the Trust to the Sponsor in exchange for cash and
investing the proceeds thereof in additional debentures of the Sponsor or one of
its majority-owned subsidiaries, and (iii) engaging in such other activities as
are necessary, convenient or incidental thereto.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trustee the sum of $10.00. The Trustee hereby acknowledges receipt of such
amount in trust from the 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 is the 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. ss. 3801, et seq. (the "Trust Act"), and that this
document constitutes the governing instrument of the Trust. The Trustee is
hereby authorized and empowered to execute and file a certificate of trust in
the form of Exhibit A attached hereto with the Delaware Secretary of State in
accordance with the provisions of the Trust Act.
3. The Sponsor and the Trustee will enter into an amended and restated
Trust Agreement, satisfactory to each such party and substantially in the form
included as an exhibit to the 1933 Act Registration Statement (as defined
below), to provide for the contemplated operation of the Trust created hereby
and the issuance of the Trust Securities. Prior to the execution and delivery of
such amended and restated Trust Agreement, the Trustee shall not have any duty
or obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as the Sponsor directs in order to obtain prior to
such execution and delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Trustee hereby authorizes and empowers the Sponsor, as agent of
the Trust, (i) to file with the Securities and Exchange Commission (the
"Commission") and execute, in each case on behalf of the Trust, the Registration
Statement on Form S-3 (the "1933 Act Registration Statement"), including any
pre-effective or post-effective amendments to the 1933 Act Registration
Statement, relating to the registration under the Securities Act of 1933, as
amended, of the Preferred Securities or other securities of the Trust; (ii) to
file with The Nasdaq National Market and execute on behalf of the Trust one or
more listing applications and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause the
Preferred Securities or any units comprised of Preferred Securities or undivided
interests therein to be listed on The Nasdaq National Market; (iii) to file and
execute on behalf of the Trust such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other
papers and documents as shall be necessary or desirable to register the
Preferred Securities or any units comprised of Preferred Securities or undivided
interests therein under the securities or blue sky laws of such jurisdictions as
the Sponsor, on behalf of the Trust, may deem necessary or desirable, (iv) to
execute and deliver letters or documents to, or instruments for filing with, a
depository relating to the Preferred Securities or any units comprised of
Preferred Securities or undivided interests therein, and (v) to execute on
behalf of the Trust an underwriting agreement relating to the Preferred
Securities or any units comprised of Preferred Securities or undivided interests
therein, among the Trust, the Sponsor and the several underwriters named
therein.
5. The number of Trustees initially shall be one (1) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the Trust
Act, one Trustee shall either be a natural person who is a resident of the State
of Delaware or, if not a natural person, an entity which has its principal place
of business in the State of Delaware and otherwise meets the requirements of
applicable Delaware law. Subject to the foregoing, the Sponsor is entitled to
appoint or remove without cause any Trustee at any time. The Trustee may resign
upon thirty (30) days' prior notice to the Sponsor.
6. (a) Neither any Trustee nor any of its officers, directors, agents
and servants (collectively, a "Fiduciary Indemnified Person") shall be liable,
responsible or accountable in damages or otherwise to the Trust, the Sponsor,
the other Trustees or any holder of the Trust Securities (the Trust, the
Sponsor, the other Trustees and any holder of the Trust Securities being a
"Covered Person") for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by any such Fiduciary Indemnified Person in good
faith on behalf of the Trust and in a manner such Fiduciary Indemnified Person
reasonably believes to be within the scope of authority conferred on such
Fiduciary Indemnified Person by this Trust Agreement or by law, except that such
Fiduciary Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of the Fiduciary Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) Each Fiduciary Indemnified Person shall be fully protected in
relying in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any person as to
matters the Fiduciary Indemnified Person reasonably believes are within such
other person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount of
assets from which distributions to holders of Trust Securities might properly be
paid.
(c) The Sponsor agrees, to the fullest extent permitted by applicable
law, (i) to indemnify and hold harmless each Fiduciary Indemnified Person from
and against any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by or asserted against such Fiduciary
Indemnified Persons by reason of the creation, operation or termination of the
Trust or the transactions contemplated by this Trust Agreement, except that no
Fiduciary Indemnified Person shall be entitled to be indemnified in respect of
any loss, damage or claim incurred by such Fiduciary Indemnified Person by
reason of negligence or willful misconduct with respect to such acts or
omissions, and (ii) to advance expenses (including legal fees) incurred by a
Fiduciary Indemnified Person in defending any claim, demand, action, suit or
proceeding, from time to time, prior to the final disposition of such claim,
demand, action, suit or proceeding, upon receipt by the Trust of an undertaking
by or on behalf of such Fiduciary Indemnified Person to repay such amount if it
shall be determined that such Fiduciary Indemnified Person is not entitled to be
indemnified as authorized in the preceding subsection.
(d) The provisions of this Section shall survive the termination of
this Trust Agreement or the earlier resignation or removal of the Fiduciary
Indemnified Persons.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
8. This Trust Agreement may be executed in one or more counterparts.
9. The Trust may dissolve without issuing any Trust Securities at the
election of the Sponsor. Upon dissolution, the Trustee shall file a certificate
of cancellation in accordance with the Trust Act and apply the funds deposited
with it pursuant to Section 2 above to reimburse the Trustee for any filing fees
or other expenses in connection therewith. Any remaining funds shall, after
payment of any other expenses of the Trust, be returned to the Sponsor.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
THE SOUTH FINANCIAL GROUP, INC.,
a South Carolina corporation,
as Sponsor
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title EVP
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Title Asst. VP
EXHIBIT A
CERTIFICATE OF TRUST
OF
TSFG CAPITAL TRUST B
TRUST AGREEMENT
(TSFG CAPITAL TRUST C)
This TRUST AGREEMENT, dated as of October 29, 2004 (this "Trust
Agreement"), between (i) The South Financial Group, Inc., a South Carolina
corporation (the "Sponsor"), and (ii) The Bank of New York (Delaware), a
Delaware banking corporation, as trustee (the "Trustee"). The Sponsor and the
Trustee hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "TSFG
Capital Trust C" in which name the Trustee, or the Sponsor to the extent
provided herein, may engage in the transactions contemplated hereby, make and
execute contracts, and xxx and be sued. The Trust is hereby established by the
Sponsor and the Trustee for the purpose of (i) issuing preferred securities
("Preferred Securities") representing undivided beneficial interests in the
assets of the Trust in exchange for cash and investing the proceeds thereof in
debentures of the Sponsor or one of its majority-owned subsidiaries, (ii)
issuing and selling common securities ("Common Securities" and, together with
the Preferred Securities, "Trust Securities") representing undivided beneficial
interests in the assets of the Trust to the Sponsor in exchange for cash and
investing the proceeds thereof in additional debentures of the Sponsor or one of
its majority-owned subsidiaries, and (iii) engaging in such other activities as
are necessary, convenient or incidental thereto.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trustee the sum of $10.00. The Trustee hereby acknowledges receipt of such
amount in trust from the 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 is the 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. ss. 3801, et seq. (the "Trust Act"), and that this
document constitutes the governing instrument of the Trust. The Trustee is
hereby authorized and empowered to execute and file a certificate of trust in
the form of Exhibit A attached hereto with the Delaware Secretary of State in
accordance with the provisions of the Trust Act.
3. The Sponsor and the Trustee will enter into an amended and restated
Trust Agreement, satisfactory to each such party and substantially in the form
included as an exhibit to the 1933 Act Registration Statement (as defined
below), to provide for the contemplated operation of the Trust created hereby
and the issuance of the Trust Securities. Prior to the execution and delivery of
such amended and restated Trust Agreement, the Trustee shall not have any duty
or obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as the Sponsor directs in order to obtain prior to
such execution and delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Trustee hereby authorizes and empowers the Sponsor, as agent of
the Trust, (i) to file with the Securities and Exchange Commission (the
"Commission") and execute, in each case on behalf of the Trust, the Registration
Statement on Form S-3 (the "1933 Act Registration Statement"), including any
pre-effective or post-effective amendments to the 1933 Act Registration
Statement, relating to the registration under the Securities Act of 1933, as
amended, of the Preferred Securities or other securities of the Trust; (ii) to
file with The Nasdaq National Market and execute on behalf of the Trust one or
more listing applications and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause the
Preferred Securities or any units comprised of Preferred Securities or undivided
interests therein to be listed on The Nasdaq National Market; (iii) to file and
execute on behalf of the Trust such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other
papers and documents as shall be necessary or desirable to register the
Preferred Securities or any units comprised of Preferred Securities or undivided
interests therein under the securities or blue sky laws of such jurisdictions as
the Sponsor, on behalf of the Trust, may deem necessary or desirable, (iv) to
execute and deliver letters or documents to, or instruments for filing with, a
depository relating to the Preferred Securities or any units comprised of
Preferred Securities or undivided interests therein, and (v) to execute on
behalf of the Trust an underwriting agreement relating to the Preferred
Securities or any units comprised of Preferred Securities or undivided interests
therein, among the Trust, the Sponsor and the several underwriters named
therein.
5. The number of Trustees initially shall be one (1) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the Trust
Act, one Trustee shall either be a natural person who is a resident of the State
of Delaware or, if not a natural person, an entity which has its principal place
of business in the State of Delaware and otherwise meets the requirements of
applicable Delaware law. Subject to the foregoing, the Sponsor is entitled to
appoint or remove without cause any Trustee at any time. The Trustee may resign
upon thirty (30) days' prior notice to the Sponsor.
6. (a) Neither any Trustee nor any of its officers, directors, agents
and servants (collectively, a "Fiduciary Indemnified Person") shall be liable,
responsible or accountable in damages or otherwise to the Trust, the Sponsor,
the other Trustees or any holder of the Trust Securities (the Trust, the
Sponsor, the other Trustees and any holder of the Trust Securities being a
"Covered Person") for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by any such Fiduciary Indemnified Person in good
faith on behalf of the Trust and in a manner such Fiduciary Indemnified Person
reasonably believes to be within the scope of authority conferred on such
Fiduciary Indemnified Person by this Trust Agreement or by law, except that such
Fiduciary Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of the Fiduciary Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) Each Fiduciary Indemnified Person shall be fully protected in
relying in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any person as to
matters the Fiduciary Indemnified Person reasonably believes are within such
other person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount of
assets from which distributions to holders of Trust Securities might properly be
paid.
(c) The Sponsor agrees, to the fullest extent permitted by applicable
law, (i) to indemnify and hold harmless each Fiduciary Indemnified Person from
and against any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by or asserted against such Fiduciary
Indemnified Persons by reason of the creation, operation or termination of the
Trust or the transactions contemplated by this Trust Agreement, except that no
Fiduciary Indemnified Person shall be entitled to be indemnified in respect of
any loss, damage or claim incurred by such Fiduciary Indemnified Person by
reason of negligence or willful misconduct with respect to such acts or
omissions, and (ii) to advance expenses (including legal fees) incurred by a
Fiduciary Indemnified Person in defending any claim, demand, action, suit or
proceeding, from time to time, prior to the final disposition of such claim,
demand, action, suit or proceeding, upon receipt by the Trust of an undertaking
by or on behalf of such Fiduciary Indemnified Person to repay such amount if it
shall be determined that such Fiduciary Indemnified Person is not entitled to be
indemnified as authorized in the preceding subsection.
(d) The provisions of this Section shall survive the termination of
this Trust Agreement or the earlier resignation or removal of the Fiduciary
Indemnified Persons.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
8. This Trust Agreement may be executed in one or more counterparts.
9. The Trust may dissolve without issuing any Trust Securities at the
election of the Sponsor. Upon dissolution, the Trustee shall file a certificate
of cancellation in accordance with the Trust Act and apply the funds deposited
with it pursuant to Section 2 above to reimburse the Trustee for any filing fees
or other expenses in connection therewith. Any remaining funds shall, after
payment of any other expenses of the Trust, be returned to the Sponsor.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
THE SOUTH FINANCIAL GROUP, INC.,
a South Carolina corporation,
as Sponsor
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Name: Xxxxxxx X. Xxxxxxxx
Title EVP
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Title Asst. VP
EXHIBIT A
CERTIFICATE OF TRUST
OF
TSFG CAPITAL TRUST C
TRUST AGREEMENT
(TSFG CAPITAL TRUST D)
This TRUST AGREEMENT, dated as of October 29, 2004 (this "Trust
Agreement"), between (i) The South Financial Group, Inc., a South Carolina
corporation (the "Sponsor"), and (ii) The Bank of New York (Delaware), a
Delaware banking corporation, as trustee (the "Trustee"). The Sponsor and the
Trustee hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as "TSFG
Capital Trust D" in which name the Trustee, or the Sponsor to the extent
provided herein, may engage in the transactions contemplated hereby, make and
execute contracts, and xxx and be sued. The Trust is hereby established by the
Sponsor and the Trustee for the purpose of (i) issuing preferred securities
("Preferred Securities") representing undivided beneficial interests in the
assets of the Trust in exchange for cash and investing the proceeds thereof in
debentures of the Sponsor or one of its majority-owned subsidiaries, (ii)
issuing and selling common securities ("Common Securities" and, together with
the Preferred Securities, "Trust Securities") representing undivided beneficial
interests in the assets of the Trust to the Sponsor in exchange for cash and
investing the proceeds thereof in additional debentures of the Sponsor or one of
its majority-owned subsidiaries, and (iii) engaging in such other activities as
are necessary, convenient or incidental thereto.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trustee the sum of $10.00. The Trustee hereby acknowledges receipt of such
amount in trust from the 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 is the 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. ss. 3801, et seq. (the "Trust Act"), and that this
document constitutes the governing instrument of the Trust. The Trustee is
hereby authorized and empowered to execute and file a certificate of trust in
the form of Exhibit A attached hereto with the Delaware Secretary of State in
accordance with the provisions of the Trust Act.
3. The Sponsor and the Trustee will enter into an amended and restated
Trust Agreement, satisfactory to each such party and substantially in the form
included as an exhibit to the 1933 Act Registration Statement (as defined
below), to provide for the contemplated operation of the Trust created hereby
and the issuance of the Trust Securities. Prior to the execution and delivery of
such amended and restated Trust Agreement, the Trustee shall not have any duty
or obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as the Sponsor directs in order to obtain prior to
such execution and delivery any licenses, consents or approvals required by
applicable law or otherwise.
4. The Trustee hereby authorizes and empowers the Sponsor, as agent of
the Trust, (i) to file with the Securities and Exchange Commission (the
"Commission") and execute, in each case on behalf of the Trust, the Registration
Statement on Form S-3 (the "1933 Act Registration Statement"), including any
pre-effective or post-effective amendments to the 1933 Act Registration
Statement, relating to the registration under the Securities Act of 1933, as
amended, of the Preferred Securities or other securities of the Trust; (ii) to
file with The Nasdaq National Market and execute on behalf of the Trust one or
more listing applications and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause the
Preferred Securities or any units comprised of Preferred Securities or undivided
interests therein to be listed on The Nasdaq National Market; (iii) to file and
execute on behalf of the Trust such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other
papers and documents as shall be necessary or desirable to register the
Preferred Securities or any units comprised of Preferred Securities or undivided
interests therein under the securities or blue sky laws of such jurisdictions as
the Sponsor, on behalf of the Trust, may deem necessary or desirable, (iv) to
execute and deliver letters or documents to, or instruments for filing with, a
depository relating to the Preferred Securities or any units comprised of
Preferred Securities or undivided interests therein, and (v) to execute on
behalf of the Trust an underwriting agreement relating to the Preferred
Securities or any units comprised of Preferred Securities or undivided interests
therein, among the Trust, the Sponsor and the several underwriters named
therein.
5. The number of Trustees initially shall be one (1) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the Trust
Act, one Trustee shall either be a natural person who is a resident of the State
of Delaware or, if not a natural person, an entity which has its principal place
of business in the State of Delaware and otherwise meets the requirements of
applicable Delaware law. Subject to the foregoing, the Sponsor is entitled to
appoint or remove without cause any Trustee at any time. The Trustee may resign
upon thirty (30) days' prior notice to the Sponsor.
6. (a) Neither any Trustee nor any of its officers, directors, agents
and servants (collectively, a "Fiduciary Indemnified Person") shall be liable,
responsible or accountable in damages or otherwise to the Trust, the Sponsor,
the other Trustees or any holder of the Trust Securities (the Trust, the
Sponsor, the other Trustees and any holder of the Trust Securities being a
"Covered Person") for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by any such Fiduciary Indemnified Person in good
faith on behalf of the Trust and in a manner such Fiduciary Indemnified Person
reasonably believes to be within the scope of authority conferred on such
Fiduciary Indemnified Person by this Trust Agreement or by law, except that such
Fiduciary Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of the Fiduciary Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) Each Fiduciary Indemnified Person shall be fully protected in
relying in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any person as to
matters the Fiduciary Indemnified Person reasonably believes are within such
other person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount of
assets from which distributions to holders of Trust Securities might properly be
paid.
(c) The Sponsor agrees, to the fullest extent permitted by applicable
law, (i) to indemnify and hold harmless each Fiduciary Indemnified Person from
and against any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by or asserted against such Fiduciary
Indemnified Persons by reason of the creation, operation or termination of the
Trust or the transactions contemplated by this Trust Agreement, except that no
Fiduciary Indemnified Person shall be entitled to be indemnified in respect of
any loss, damage or claim incurred by such Fiduciary Indemnified Person by
reason of negligence or willful misconduct with respect to such acts or
omissions, and (ii) to advance expenses (including legal fees) incurred by a
Fiduciary Indemnified Person in defending any claim, demand, action, suit or
proceeding, from time to time, prior to the final disposition of such claim,
demand, action, suit or proceeding, upon receipt by the Trust of an undertaking
by or on behalf of such Fiduciary Indemnified Person to repay such amount if it
shall be determined that such Fiduciary Indemnified Person is not entitled to be
indemnified as authorized in the preceding subsection.
(d) The provisions of this Section shall survive the termination of
this Trust Agreement or the earlier resignation or removal of the Fiduciary
Indemnified Persons.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
8. This Trust Agreement may be executed in one or more counterparts.
9. The Trust may dissolve without issuing any Trust Securities at the
election of the Sponsor. Upon dissolution, the Trustee shall file a certificate
of cancellation in accordance with the Trust Act and apply the funds deposited
with it pursuant to Section 2 above to reimburse the Trustee for any filing fees
or other expenses in connection therewith. Any remaining funds shall, after
payment of any other expenses of the Trust, be returned to the Sponsor.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
THE SOUTH FINANCIAL GROUP, INC.,
a South Carolina corporation,
as Sponsor
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title EVP
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Title Asst. VP
EXHIBIT A
CERTIFICATE OF TRUST
OF
TSFG CAPITAL TRUST D
