Exhibit 4.2
TRUST AGREEMENT
THIS TRUST AGREEMENT, dated as of December 28, 1999 (this "Trust
Agreement"), between (i) SOUTHERN FINANCIAL BANCORP, INC., a Virginia
corporation (the "Depositor"), and (ii) WILMINGTON TRUST COMPANY, a Delaware
banking corporation (the "Trustee"). The Depositor and the Trustee hereby agree
as follows:
1. The trust created hereby (the "Trust") shall be known as
"SOUTHERN FINANCIAL CAPITAL TRUST I" in which name the Trustee, 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 Trustee the sum of $10. The Trustee hereby acknowledges receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustee hereby declares that it 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. ss. 3801, et seq. (the "Business Trust Act"), and
that this document constitute the governing instrument of the Trust. The Trustee
is 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 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 Capital Securities (the "Securities") referred to
therein. 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 may be necessary to obtain prior to such execution and delivery of any
licenses, consents or approvals required by applicable law or otherwise.
4. The Depositor and the Trustee hereby authorize and direct the
Depositor, as the Sponsor 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-1 (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 Securities and possible certain other
securities, (ii) 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 Securities under the securities or blue sky laws of
such jurisdictions as the Depositor, on behalf of the Trust, may deem necessary
or desirable and (iii) to execute on behalf of the Trust that certain
Underwriting Agreement relating to the Securities, among the Trust, the
Depositor and the Underwriter named therein, substantially in the form included
as an exhibit to the 1933 Act Registration Statement. In connection with the
filings referred to above, the Depositor hereby constitutes and appoints Xxxxxxx
X. Xxxxxxx and R. Xxxxxxxx Xxxxxx, and each of them, as its true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the Depositor or in the Depositor's 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 to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Commission and administrators of 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
might or could do 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 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 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 of principles).
8. To the fullest extent permitted by applicable law, the Sponsor
shall indemnify and hold harmless the Trustee from and against any loss, damage
or claim incurred by the Trustee by reason of any act or omission performed or
omitted by the Trustee in good faith on behalf of the Trust and in a matter the
Trustee reasonably believed to be within the scope of authority conferred on the
Trustee by this Declaration, except that the Trustee shall not be entitled to be
indemnified in respect of any loss, damage or claim incurred by the Trustee by
reason of gross negligence or willful misconduct with respect to such acts or
omissions.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
SOUTHERN FINANCIAL BANCORP, INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Financial Services Officer
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