Contract
Exhibit 4.14
OF
GREAT
SOUTHERN CAPITAL TRUST V
THIS
TRUST AGREEMENT is made as of June 4, 2009 (this “Agreement”), by and between
Great Southern Bancorp, Inc., as depositor (the “Depositor”), and Wilmington
Trust Company, a Delaware banking corporation, as Delaware trustee (the
“Delaware Trustee”). The Depositor and the Delaware Trustee hereby
agree as follows:
1. The trust
created hereby shall be known as “Great Southern Capital Trust V” (the “Trust”),
in which name the Delaware Trustee or the Depositor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
xxx and be sued.
2. The
Depositor hereby assigns, transfers, conveys and sets over to the Trust the sum
of $10. The Delaware Trustee hereby acknowledges receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Delaware 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 statutory trust
under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C § 3801, et seq. (the “Statutory
Trust Act”), and that this Agreement constitute the governing instrument of the
Trust. The Delaware Trustee is hereby authorized and directed to
execute and file a certificate of trust with the Secretary of State of the State
of Delaware in the form attached to this Agreement as Exhibit A.
3. The
Depositor and the Delaware Trustee will enter into an Amended and Restated Trust
Agreement satisfactory to each such party to provide for the contemplated
operation of the Trust created hereby and the issuance by the Trust of the
Capital Securities and Common Securities referred to therein. Prior
to the execution and delivery of such amended and restated Trust Agreement (i)
the Delaware Trustee 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, the Delaware Trustee may take all actions which the Depositor
deems necessary, convenient or incidental to effect the transactions
contemplated herein. The Delaware Trustee shall not have any duty or
obligation under or in connection with this Agreement or any document
contemplated hereby, except as expressly provided by the terms of this
Agreement, and no implied duties or obligations shall be read into this
Agreement against the Delaware Trustee. The right of the Delaware
Trustee to perform any discretionary act enumerated herein shall not be
construed as a duty.
4. The
Depositor hereby agrees to (i) reimburse the Delaware Trustee for all reasonable
expenses (including reasonable fees and expenses of counsel and other experts),
(ii) indemnify, defend and hold harmless the Delaware Trustee and the officers,
directors, employees and agents of the Delaware Trustee (collectively, including
the
5. Delaware
Trustee in its individual capacity, the “Indemnified Persons”) from and against
any and all losses, damages, liabilities, claims, actions, suits, costs,
expenses, disbursements (including the reasonable fees and expenses of counsel),
taxes and penalties of any kind and nature whatsoever (collectively,
“Expenses”), to the extent that such Expenses arise out of or are imposed upon
or asserted at any time against such Indemnified Persons with respect to the
performance of this Agreement, the creation, operation, administration or
termination of the Trust, or the transactions contemplated hereby; provided, however, that the
Depositor shall not be required to indemnify an Indemnified Person for Expenses
to the extent such Expenses result from the willful misconduct, bad faith or
gross negligence of such Indemnified Person, and (iii) advance to each such
Indemnified Person Expenses incurred by such Indemnified Person, in defending
any claim, demand, action, suit or proceeding prior to the final disposition of
such claim, demand, action, suit or proceeding upon receipt by the Depositor of
an undertaking, by or on behalf of such Indemnified Person, to repay such amount
if it shall be determined that such Indemnified Person is not entitled to be
indemnified therefor under this Section 4. The obligations of the
Depositor under this Section 4 shall survive the resignation or removal of the
Delaware Trustee, shall survive the termination, amendment, supplement, and/or
restatement of this Agreement, and shall survive the transfer by the Depositor
of any or all of its interest in the Trust pursuant to Section 5 below or
otherwise.
6. The
Depositor, as depositor of the Trust, is hereby authorized, in its discretion,
(i) to prepare, execute and file on behalf of the Trust, such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents that shall be necessary or
desirable to register or establish the exemption from registration of the
Capital Securities of the Trust under the securities or “Blue Sky” laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem necessary or
desirable; (ii) to negotiate, execute, deliver and perform on behalf of the
Trust one or more placement agent agreements, dealer/manager agreements, escrow
agreements, subscription agreements and other similar or related agreements
providing for or relating to the sale and issuance of the Capital Securities of
the Trust and/or any other interests in the Trust; (iii) to prepare, execute and
deliver on behalf of the Trust any and all documents, certificates, papers,
instruments and other writings as it deems desirable in connection with any of
the foregoing; and (iv) to prepare, execute and deliver letters or documents to,
or instruments for filing with, a depository relating to the Capital Securities
of the Trust as it deems necessary or desirable.
In the
event that any filing referred to in this Section 5 is required by the rules and
regulations of the Securities and Exchange Commission (the “Commission”) or
state securities or Blue Sky laws to be executed on behalf of the Trust by a
trustee, the Delaware Trustee, in its capacity as a trustee of the Trust, so
required to execute such filings 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 the Delaware
Trustee, 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 to do so by the rules and regulations of the Commission or
applicable state securities or Blue Sky laws.
The
Delaware Trustee is authorized to take such action or refrain from taking such
action under this Agreement as it may be directed in writing by the Depositor
from time to time; provided, however, that the
Delaware Trustee shall not be required to take or refrain from taking any such
action if the Delaware Trustee shall have determined, or shall have been advised
by counsel, that such performance is likely to involve the Delaware Trustee in
personal liability or is contrary to the terms of this Agreement or of any
document contemplated hereby to which the Trust or the Delaware Trustee is a
party or is otherwise contrary to law. If at any time the Delaware
Trustee determines that it requires or desires guidance regarding the
application of any provision of this Agreement or any other document, or
regarding compliance with any direction it received hereunder, then the Delaware
Trustee may deliver a notice to the Depositor requesting written instructions as
to the course of action desired by the Depositor, and such instructions shall
constitute full and complete authorization and protection for actions taken and
other performance by the Delaware Trustee in reliance thereon. Until
the Delaware Trustee has received such instructions after delivering such
notice, it may refrain from taking any action with respect to the matters
described in such notice.
7. This
Agreement may be executed in two or more counterparts.
8. The
number of trustees of the Trust initially shall be one (1), and thereafter the
number of trustees of the Trust 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 of the Trust; provided, however, to the
extent required by the Statutory Trust Act, there shall at all times be one
trustee of the Trust that 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 of the
Trust at any time. Any trustee of the Trust may resign upon thirty
(30) days’ prior notice to the Depositor.
9. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of Delaware (without regard to conflict of laws
principles).
[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.
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GREAT
SOUTHERN BANCORP, INC.,
as
Depositor
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By:
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/s/ Xxx. X. Xxxxxxxx
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Name:
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Xxx
X. Xxxxxxxx
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Title:
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Treasurer
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WILMINGTON
TRUST COMPANY,
as
Delaware Trustee
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By:
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/s/ Xxxxxxx X. Xxxx | ||
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Name:
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Xxxxxxx X. Xxxx | ||
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Title:
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Financial Services Officer | ||
EXHIBIT
A
CERTIFICATE
OF TRUST
OF
GREAT
SOUTHERN CAPITAL TRUST V
THIS
CERTIFICATE OF TRUST OF GREAT SOUTHERN CAPITAL TRUST V (the “Trust”) is being
duly executed and filed by the undersigned on behalf of the Trust to form a
statutory trust under the Delaware Statutory Trust Act (12 Del. C. §§3801 et seq.) (the
“Act”).
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1.
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Name. The
name of the statutory trust being formed is Great Southern Capital Trust
V.
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2.
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Trustee. The
name and business address of the trustee of the Trust with its principal
place of business in the State of Delaware are as
follows:
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Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
ATTN: Corporate Trust
Services
IN
WITNESS WHEREOF, the undersigned has executed this Certificate of Trust in
accordance with Section 3811(a) of the Act.
WILMINGTON TRUST COMPANY,
not in
its individual capacity but solely as Delaware Trustee of the Trust
By:
Name:
Title:
