TRUST AGREEMENT
This TRUST AGREEMENT, dated as of March 23, 2001 (this "Trust
Agreement"), among (i) GREAT SOUTHERN BANCORP, INC., a Delaware corporation (the
"Depositor"), (ii) WILMINGTON TRUST COMPANY, a Delaware banking corporation, as
trustee, and (iii) XXXXXX X. XXXXXX, XXX X. XXXXXXXX and XXXXX X. XXXXXXXX, 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 "Great
Southern 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
the Trustees the sum of $10. 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 constitutes 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 constitutes 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 the Preferred Securities and Common Securities
referred to therein. Prior to the execution and delivery of such amended and
restated Trust Agreement, the Trustees 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 Trustees 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, (a) 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 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 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; and (iv) to execute on behalf of the Trust that certain
Underwriting Agreement relating to the Preferred Securities, among the Trust,
the Depositor and the several Underwriters named therein, substantially in the
form included as an exhibit to the 1933 Act Registration Statement. 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, 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 Xxxxxx
X. Xxxxxx, Xxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxx, each as Trustees and not in
their individual capacities, hereby constitutes and appoints Xxxxxx X. Xxxxxx,
Xxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxx, 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 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 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 four 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. (a) The Trustee and its officers, directors, agents and servants
(collectively, the "Fiduciary Indemnified Persons") shall not be liable,
responsible or accountable in damages or otherwise to the Trust, the
Depositor, the Trustees or any
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holder of the Trust Securities (the Trust, the Depositor 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
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 the Fiduciary
Indemnified Persons 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) The Fiduciary Indemnified Persons 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 Persons 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 Depositor agrees, to the fullest extent permitted by
applicable law, (i) 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 the Fiduciary Indemnified Persons by reason of the creation,
operation or termination of the Trust 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 of Trust, except that no Fiduciary Indemnified Persons shall be
entitled to be indemnified in respect of any loss, damage or claim
incurred by the Fiduciary Indemnified Persons 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 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 Persons 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 Section 7 shall survive the termination
of this Trust Agreement or the earlier resignation or removal of the
Fiduciary Indemnified Persons.
8. 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).
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IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
GREAT SOUTHERN BANCORP, INC.,
as Depositor
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Financial Services Officer
/s/ Xxxxxx X. Xxxxxx
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XXXXXX X. XXXXXX, as Trustee
/s/ Xxx X. Xxxxxxxx
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XXX X. XXXXXXXX, as Trustee
/s/ Xxxxx X. Xxxxxxxx
---------------------------------------
XXXXX X. XXXXXXXX, as Trustee
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