EXHIBIT 4.6
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of December 14, 2001 (this "Trust
Agreement"), among (i) Greater Atlantic Financial Corp., a Delaware corporation
(the "Depositor"), (ii) Wilmington Trust Company, a Delaware banking
corporation, as trustee, and (iii) Xxxxxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxx and
Xxxxx X. Xxxxxx, each an individual, as trustees (each of such trustees in (ii)
and (iii) a "Trustee" and collectively, the "Trustees"). The Depositor and the
Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"Greater Atlantic Capital Trust I" in which name the Trustees, or the Depositor
to the extent provided herein, may engage in the transactions contemplated
hereby, make and execute contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over
to the Trustees the sum of Ten Dollars ($10.00). The Trustees hereby acknowledge
receipt of such amount in trust from the Depositor, which amount shall
constitute the initial trust estate. The Trustees hereby declare that they will
hold the trust estate in trust for the Depositor. It is the intention of the
parties hereto that the Trust created hereby constitute a business trust under
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section 3801, et seq.
(the "Business Trust Act"), and that this document constitute the governing
instrument of the Trust. The Trustees are hereby authorized and directed to
execute and file a certificate of trust with the Delaware Secretary of State in
accordance with the provisions of the Business Trust Act.
3. The Depositor and the Trustees 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 Preferred Securities and Common Securities to be
referred to therein. Prior to the execution and delivery of such amended and
restated Trust Agreement, (i) the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law and (ii) the Depositor shall take or cause to be taken any action
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise. Notwithstanding
the foregoing, a Trustee may take all actions which the Depositor deems
necessary, convenient or incidental to effect the transactions contemplated
herein. The Trustees shall not have any duty or obligation under or in
connection with this Trust Agreement or any document contemplated hereby, except
as expressly provided by the terms of this Trust Agreement, and no implied
duties or obligations shall be read into this Trust Agreement against the
Trustees. The right of a Trustee to perform any discretionary act enumerated
herein shall not be construed as a duty.
4. The Depositor, as the sponsor of the Trust is hereby authorized,
(i) to file with the Securities and Exchange Commission (the "Commission") and
execute, in each case on behalf of the Trust, (a) the Registration Statement on
Form SB-2 (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 of the Trust and possibly
certain other securities and (b) a Registration Statement on Form 8-A (the "1934
Act Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under the Securities Exchange Act of 1934, as amended; (ii) to file
with the Nasdaq National Market or a national stock exchange (each, an
"Exchange") 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
to be listed on any of the Exchanges; (iii) to prepare subscription documents
and a prospectus to be delivered to stockholders of the Depositor, offering
rights to purchase Preferred Securities from the Trust; and (iv) 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 under the securities or blue sky laws of such jurisdictions
as the Depositor, on behalf of the Trust, may deem necessary or desirable. In
the event that any filing referred to in clauses (i), (ii) and (iii) above is
required by the rules and regulations of the Commission, an Exchange or state
securities or blue sky laws, to be executed on behalf of the Trust by one or
more of the Trustees, each of the Trustees, in its or his capacity as a Trustee
of the Trust, is hereby authorized and, to the extent so required, directed to
join in any such filing and to execute on behalf of the Trust any and all of the
foregoing, it being understood that Wilmington Trust Company in its capacity as
a Trustee of the Trust shall not be required to join in any such filing or
execute on behalf of the Trust any such document unless required by the rules
and regulations of the Commission, the Exchange or state securities or blue sky
laws. In connection with the filings referred to above, the Depositor and
Xxxxxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxx and Xxxxx X. Xxxxxx each as Trustees and
not in their individual capacities, hereby constitutes and appoints Xxxxxxx X.
Xxxxxxxxx, Xxxxxxx X. Xxxx and Xxxxx X. Xxxxxx, and each of them, as their true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the Depositor or such Trustee or in the Depositor's or such
Trustees' name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to the 1933 Act Registration
Statement and the 1934 Act Registration Statement and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Commission, the Exchange and administrators of the state securities or blue sky
laws, granting unto said attorneys-in-fact and agents full power and authority
to do and perform each and every act and thing requisite and necessary to be
done in connection therewith, as fully to all intents and purposes as the
Depositor or such Trustee might or could to in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
respective substitute or substitutes, shall do or cause to be done by virtue
hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be four (4) 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 Depositor which may increase
or decrease the number of Trustees; provided, however, that to the extent
required by the Business 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 Depositor is entitled to appoint or remove without cause any
Trustee at any time. The Trustees may resign upon thirty (30) days' prior notice
to the Depositor.
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. The Trustees (the "Fiduciary Indemnified Persons") shall not be
liable, responsible or accountable in damages or otherwise to the Trust, the
Depositor, the Trustees or any holder of the Trust's securities (the Trust, the
Depositor and any holder of the Trust's securities being a "Covered Person") for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by the Fiduciary Indemnified Persons in good faith on behalf of the
Trust and in a manner the Fiduciary Indemnified Persons reasonably believed to
be within the scope of authority conferred on the Fiduciary Indemnified Persons
by this Trust Agreement or by law, except that a Fiduciary Indemnified Person
shall be liable for any such loss, damage or claim incurred by reason of such
Fiduciary Indemnified Person's gross negligence or bad faith with respect to
such acts or omissions.
A 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, if selected by such Fiduciary
Indemnified Person, has been selected with reasonable care, 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's
securities might properly be paid.
9. The Depositor agrees, to the fullest extent permitted by
applicable law,
(a) to indemnify and hold harmless each Fiduciary
Indemnified Person, or any of its officers, directors, shareholders, employees,
representatives or agents, from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever incurred by such
Fiduciary Indemnified Person by reason of the creation, operation or termination
of the Trust in a manner such Fiduciary Indemnified Person reasonably believed
to be within the scope of authority conferred on such Fiduciary Indemnified
Person 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 its own gross
negligence or willful misconduct with respect to such acts or omissions; and
(b) to advance expenses (including legal fees) incurred by a
Fiduciary Indemnified Person in defending any claim, demand, action, suit or
proceeding shall, 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.
10. The provisions of Section 9 shall survive the termination of
this Trust Agreement or the earlier resignation or removal of the Fiduciary
Indemnified Persons.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
GREATER ATLANTIC FINANCIAL CORP., as
Depositor
By: /s/ XXXXXXX X. XXXX
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Name: Xxxxxxx X. Xxxx
Title: President and Chief
Executive Officer
WILMINGTON TRUST COMPANY,
as trustee
By: /s/ XXXXX XXXXXXX
----------------------------
Name: Xxxxx Xxxxxxx
Title: Financial Services Officer
/s/ XXXXXXX X. XXXXXXXXX , as Trustee
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Name: Xxxxxxx X. Xxxxxxxxx
/s/ XXXXXXX X. XXXX , as Trustee
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Name: Xxxxxxx X. Xxxx
/s/ XXXXX X. XXXXXX , as Trustee
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Name: Xxxxx X. Xxxxxx
