PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (this "Agreement"), dated as of May 20,
2003, is entered into among XXXXXXX X. XXXXXXX (the "Pledgor"), and GOLD BANK, a
Kansas banking corporation, or its assignee(s) (the "Secured Party").
RECITALS
WHEREAS, Pledgor and Secured Party are parties to that certain Restitution
Agreement of even date herewith (the "Restitution Agreement"), pursuant to which
Xxxxxxx X. Xxxxxxx ("Xxxxxxx") agreed to make certain payments to Secured Party;
WHEREAS, Pledgor beneficially owns the Equity Interests (as hereinafter
defined) in the Issuers (as hereinafter defined);
WHEREAS, to induce Secured Party to enter into the Restitution Agreement,
Pledgor desires to pledge, grant, transfer, and assign to Secured Party a
security interest in the Collateral (as hereinafter defined) to secure the
Secured Obligations (as hereinafter defined), as provided herein.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual promises, covenants,
representations, and warranties set forth herein and for other good and valuable
consideration, the parties hereto agree as follows:
1. Definitions and Construction.
(a) Definitions. All initially capitalized terms used herein and not
otherwise defined herein shall have the meaning ascribed thereto in the
Restitution Agreement. As used in this Agreement:
"Bankruptcy Code" means United States Bankruptcy Code (11 U.S.C.
Section 101 et seq.), as in effect from time to time, and any
successor statute thereto.
"Business Day" means any day that is not a Saturday, Sunday, or other
day on which national banks are authorized or required to close.
"Code" means the Uniform Commercial Code as in effect in the State of
Kansas from time to time.
"Collateral" means the LaSalle Collateral and Xxxxxxx'x membership
interest in I-435/Xxxx, L.L.C. which represents fifty percent (50%)
of all of the membership interest in such L.L.C. (the "L.L.C.
Interest"), the Future Rights, and the Proceeds, collectively.
"Equity Interests" means all securities, shares, units, options,
warrants, interests, participations, or other equivalents (regardless
of how designated) of or in a
corporation, partnership, limited liability company, or similar
entity, whether voting or nonvoting, certificated or uncertificated,
including general partner partnership interests, limited partner
partnership interests, membership interests, common stock, preferred
stock, or any other "equity security" (as such term is defined in Rule
3a11-1 of the General Rules and Regulations promulgated by the
Securities and Exchange Commission under the Securities Exchange Act
of 1934).
"Event of Default" shall mean (a) Xxxxxxx'x failure to perform his
obligations under the Restitution Agreement in a timely manner, and
(b) Pledgor's failure to perform his obligations under this Agreement.
"Future Rights" shall mean: (a) all Equity Interests (other than
Pledged Interests) of the Issuers, and all securities convertible or
exchangeable into, and all warrants, options, or other rights to
purchase, Equity Interests of the Issuers; and (b) the certificates or
instruments representing such Equity Interests, convertible or
exchangeable securities, warrants, and other rights and all dividends,
cash, options, warrants, rights, instruments, and other property or
proceeds from time to time received, receivable, or otherwise
distributed in respect of or in exchange for any or all of the Pledged
Interests.
"Xxxxxxx" shall have the meaning ascribed thereto in the Recitals to
this Agreement.
"Holder" and "Holders" shall have the meanings ascribed thereto in
Section 3 of this Agreement.
"Issuers" shall mean each of the entities identified as an Issuer on
Schedule 1 attached hereto (or any addendum thereto), and any
successors thereto, whether by merger or otherwise.
"LaSalle" means LaSalle Bank, National Association.
"LaSalle Collateral" means the 640,792 shares of common stock of Gold
Banc Corporation, Inc., a Kansas corporation, that constitute a part
of the Collateral, but are subject to a prior lien in favor of LaSalle
to secure repayment of the LaSalle Obligations.
"LaSalle Obligations" means the indebtedness owed by Xxxxxxx to
LaSalle under the Promissory Note dated November 27, 2002 in the
original principal amount of $4,000,000.00 from Xxxxxxx, as maker,
payable to the order of LaSalle.
"Lien" shall mean any lien, mortgage, pledge, assignment (including
any assignment of rights to receive payments of money), security
interest, charge, or encumbrance of any kind (including any
conditional sale or other title retention agreement, any lease in the
nature thereof, or any agreement to give any security interest).
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"Pledged Interests" means (a) the LaSalle Collateral and the L.L.C.
Interest as identified more specifically on Schedule 1 hereto; and
(b) all certificates or instruments representing the LaSalle
Collateral or the L.L.C. Interest.
"Pledgor" shall have the meaning ascribed thereto in the preamble to
this Agreement.
"Proceeds" shall mean all proceeds (including proceeds of proceeds)
of the Pledged Interests and Future Rights including all: (a) rights,
benefits, distributions, premiums, profits, dividends, interest,
cash, instruments, documents of title, accounts, contract rights,
inventory, equipment, general intangibles, payment intangibles,
deposit accounts, chattel paper, and other property from time to time
received, receivable, or otherwise distributed in respect of or in
exchange for, or as a replacement of or a substitution for, any of
the Pledged Interests, Future Rights, or proceeds thereof (including
any cash, Equity Interests, or other securities or instruments issued
after any recapitalization, readjustment, reclassification, merger or
consolidation with respect to the Issuers and any security
entitlements, as defined in Section 8-102(a)(17) of the Code, with
respect thereto); (b) "proceeds," as such term is defined in Section
9-102(a)(64) of the Code; (c) proceeds of any insurance, indemnity,
warranty, or guaranty (including guaranties of delivery) payable from
time to time with respect to any of the Pledged Interests, Future
Rights, or proceeds thereof; (d) payments (in any form whatsoever)
made or due and payable to Pledgor from time to time in connection
with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Pledged Interests, Future
Rights, or proceeds thereof; and (e) other amounts from time to time
paid or payable under or in connection with any of the Pledged
Interests, Future Rights, or proceeds thereof.
"Restitution Agreement" shall have the meaning ascribed thereto in
the Recitals to this Agreement.
"Secured Obligations" means (a) the Total Agreed Restitution Amount,
(b) any amounts paid by Secured Party to LaSalle to repay the LaSalle
Obligations in full, and (c) any other obligations or amount owed by
Pledgor to Secured Party pursuant to the Restitution Agreement.
"Secured Party" shall have the meaning ascribed thereto in the
preamble to this Agreement, together with their successors or
assigns.
"Securities Act" shall have the meaning ascribed thereto in Section
9(c) of this Agreement.
"Total Agreed Restitution Amount" shall have the meaning ascribed
thereto in the Restitution Agreement.
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(b) Construction.
(i) Unless the context of this Agreement clearly requires
otherwise, references to the plural include the singular and to the
singular include the plural, the part includes the whole, the term
"including" is not limiting, and the term "or" has, except where
otherwise indicated, the inclusive meaning represented by the phrase
"and/or." The words "hereof," "herein," "hereby," "hereunder," and
other similar terms in this Agreement refer to this Agreement as a
whole and not exclusively to any particular provision of this
Agreement. Article, section, subsection, exhibit, and schedule
references are to this Agreement unless otherwise specified. All of
the exhibits or schedules attached to this Agreement shall be deemed
incorporated herein by reference. Any reference to any of the
following documents includes any and all alterations, amendments,
restatements, extensions, modifications, renewals, or supplements
thereto or thereof, as applicable: this Agreement or the Restitution
Agreement.
(ii) Neither this Agreement nor any uncertainty or ambiguity
herein shall be construed or resolved against Secured Party or
Pledgor, whether under any rule of construction or otherwise. On the
contrary, this Agreement has been reviewed by both of the parties and
their respective counsel and shall be construed and interpreted
according to the ordinary meaning of the words used so as to fairly
accomplish the purposes and intentions of the parties hereto.
(iii) In the event of any direct conflict between the express
terms and provisions of this Agreement and of the Restitution
Agreement, the terms and provisions of the Restitution Agreement shall
control.
2. PLEDGE. As security for the prompt payment and performance of the
Secured Obligations in full when due (including amounts that would become due
but for the operation of the provisions of the Bankruptcy Code), Pledgor hereby
pledge, grant, transfer, and assign to Secured Party a security interest in all
of Pledgor's right, title, and interest in and to the Collateral.
3. DELIVERY AND REGISTRATION OF COLLATERAL.
(a) All certificates or instruments representing or evidencing the
Collateral shall be promptly delivered by Pledgor to Secured Party or
Secured Party's designee pursuant hereto at a location designated by
Secured Party and shall be held by or on behalf of Secured Party pursuant
hereto, and shall be in suitable form for transfer by delivery, or shall be
accompanied by duly executed indorsement certificate in the form attached
hereto as Exhibit A or other instrument of --------- transfer or assignment
in blank, in form and substance satisfactory to Secured Party.
(b) Upon the occurrence and during the continuance of an Event of
Default, Secured Party shall have the right, at any time in its discretion
and without notice to Pledgor, to transfer to or to register on the books
of the Issuers (or of any other person maintaining records with respect to
the Collateral) in the name of Secured Party or any of its nominees
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any or all of the Collateral. In addition, Secured Party shall have the
right at any time to exchange certificates or instruments representing or
evidencing Collateral for certificates or instruments of smaller or larger
denominations.
(c) If, at any time and from time to time, any Collateral (including
any certificate or instrument representing or evidencing any Collateral) is
in the possession of a person other than Secured Party or Pledgor (a
"Holder"), then Pledgor shall immediately, at Secured Party's option,
either cause such Collateral to be delivered into Secured Party's
possession, or cause such Holder to enter into a control agreement, in form
and substance satisfactory to Secured Party, and take all other steps
deemed necessary by Secured Party to perfect the security interest of
Secured Party in such Collateral, all pursuant to Sections 9-106 and 9-313
of the Code or other applicable law governing the perfection of Secured
Party's security interest in the Collateral in the possession of such
Holder.
(d) Any and all Collateral (including dividends, interest, and other
cash distributions) at any time received or held by Pledgor shall be so
received or held in trust for Secured Party, shall be segregated from other
funds and property of Pledgor and shall be forthwith delivered to Secured
Party in the same form as so received or held, with any necessary
indorsements.
4. VOTING RIGHTS AND DIVIDENDS.
(a) So long as no Event of Default shall have occurred and be
continuing, Pledgor shall be entitled to exercise any and all voting and
other consensual rights pertaining to the Collateral or any part thereof.
(b) Upon the occurrence and during the continuance of an Event of
Default, all rights of Pledgor to exercise the voting and other consensual
rights shall cease, and all such rights shall thereupon become vested in
Secured Party, who shall thereupon have the sole right to exercise such
voting or other consensual. Pledgor shall execute and deliver (or cause to
be executed and delivered) to Secured Party all such proxies and other
instruments as Secured Party may reasonably request for the purpose of
enabling Secured Party to exercise the voting and other rights which it is
entitled to exercise pursuant to the preceding sentence.
5. REPRESENTATIONS AND WARRANTIES. Pledgor represents, warrants, and
covenants as follows:
(a) Pledgor has taken all steps they deem necessary or appropriate to
be informed on a continuing basis of changes or potential changes affecting
the Collateral (including rights of conversion and exchange, rights to
subscribe, payment of dividends, reorganizations or recapitalization,
tender offers and voting and registration rights), and Pledgor agrees that
Secured Party shall have no responsibility or liability for informing
Pledgor of any such changes or potential changes or for taking any action
or omitting to take any action with respect thereto.
(b) Pledgor is an individual. The address of Pledgor's principal
residence is set forth on Schedule 2.
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(c) All information herein or hereafter supplied to Secured Party by
or on behalf of Pledgor in writing with respect to the Collateral is, or in
the case of information hereafter supplied will be, accurate and complete
in all material respects.
(d) Pledgor is and will be the sole legal and beneficial owner of the
Collateral (including the Pledged Interests and all other Collateral
acquired by Pledgor after the date hereof) free and clear of any adverse
claim, Lien, or other right, title, or interest of any party, other than:
(i) the Liens in favor of Secured Party, (ii) with respect to the LaSalle
Collateral, Liens in favor of LaSalle, and (iii) shares of stock of Gold
Banc Corporation, Inc. owned by Xxxxxxx are subject to a right of first
refusal in favor of Xxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxx.
(e) This Agreement, the filing of a financing statement covering the
Collateral and the delivery to Secured Party of the certificates
representing the Pledged Interests that are certificated create a valid,
perfected, and first priority security interest in one hundred percent
(100%) of the Pledged Interests in favor of Secured Party securing payment
of the Secured Obligations, and all actions necessary to achieve such
perfection have been duly taken, except that the LaSalle Collateral is
subject to a prior Lien in favor of LaSalle to secure repayment of the
LaSalle Obligations.
(f) Schedule 1 to this Agreement is true and correct and complete in
all material respects. Without limiting the generality of the foregoing:
(i) except as set forth on Schedule 1, all the Pledged Interests are in
certificated form, and, except to the extent registered in the name of
Secured Party or its nominee pursuant to the provisions of this Agreement,
are registered in the name of Pledgor; and (ii) the Pledged Interests as to
each of the Issuers constitute at least the percentage of all the fully
diluted issued and outstanding Equity Interests of such Issuer as set forth
in Schedule 1 to this Agreement.
(g) There are no presently existing Future Rights or Proceeds owned by
Pledgor.
(h) The Pledged Interests have been duly authorized and validly issued
and are fully paid and non-assessable.
(i) The pledge of the Collateral pursuant to this Agreement does not
violate Regulation T, U or X of the Board of Governors of the Federal
Reserve System.
6. Further Assurances.
(a) Pledgor agrees that from time to time, at the expense of Pledgor,
Pledgor will promptly execute and deliver all further instruments and
documents, and take all further action that may be necessary or reasonably
desirable, or that Secured Party may request, in order to perfect and
protect any security interest granted or purported to be granted hereby or
to enable Secured Party to exercise and enforce its rights and remedies
hereunder with respect to any Collateral.
(b) Pledgor hereby authorizes Secured Party to file one or more
financing or continuation statements, and amendments thereto, relative to
all or any part of the Collateral. A carbon, photographic, or other
reproduction of this Agreement or any financing statement
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covering the Collateral or any part thereof shall be sufficient as a
financing statement where permitted by law.
7. Covenants of Pledgor. Pledgor shall:
(a) perform each and every covenant in the Restitution Agreement and
the other Security Documents applicable to Pledgor; and
(b) not change his principal residence without giving Secured Party at
least thirty (30) days' prior written notice thereof.
8. SECURED PARTY AS PLEDGOR'S ATTORNEY-IN-FACT.
(a) Pledgor hereby irrevocably appoints Secured Party as Pledgor's
attorney-in-fact, with full authority in the place and stead of Pledgor and
in the name of Pledgor, Secured Party or otherwise, from time to time at
Secured Party's discretion, to take any action and to execute any
instrument that Secured Party may reasonably deem necessary or advisable to
accomplish the purposes of this Agreement, including: (i) upon the
occurrence and during the continuance of an Event of Default, to receive,
indorse, and collect all instruments made payable to Pledgor representing
any dividend, interest payment or other distribution in respect of the
Collateral or any part thereof to the extent permitted hereunder and to
give full discharge for the same and to execute and file governmental
notifications and reporting forms; (ii) to enter into any control
agreements Secured Party deems necessary pursuant to Section 3 of this
Agreement; or (iii) to arrange for the transfer of the Collateral on the
books of any of the Issuers or any other person to the name of Secured
Party or to the name of Secured Party's nominee.
(b) In addition to the designation of Secured Party as Pledgor's
attorney-in-fact in subsection (a), Pledgor hereby irrevocably appoints
Secured Party as Pledgor's agent and attorney-in-fact to make, execute and
deliver any and all documents and writings which may be necessary or
appropriate for approval of, or be required by, any regulatory authority
located in any city, county, state or country where Pledgor or any of the
Issuers engage in business, in order to transfer or to more effectively
transfer any of the Pledged Interests or otherwise enforce Secured Party's
rights hereunder.
9. REMEDIES UPON DEFAULT. Upon the occurrence and during the continuance
of an Event of Default:
(a) Secured Party may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party on default
under the Code (irrespective of whether the Code applies to the affected
items of Collateral), and Secured Party may also without notice (except as
specified below) sell the Collateral or any part thereof in one or more
parcels at public or private sale, at any exchange, broker's board or at
any of Secured Party's offices or elsewhere, for cash, on credit or for
future delivery, at such time or times and at such price or prices and upon
such other terms as Secured Party may deem commercially reasonable,
irrespective of the impact of any such sales on the market price of the
Collateral. To the maximum extent permitted by applicable law, Secured
Party may be the purchaser of any or
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all of the Collateral at any such sale and shall be entitled, for the
purpose of bidding and making settlement or payment of the purchase price
for all or any portion of the Collateral sold at any such public sale, to
use and apply all or any part of the Secured Obligations as a credit on
account of the purchase price of any Collateral payable at such sale. Each
purchaser at any such sale shall hold the property sold absolutely free
from any claim or right on the part of Pledgor, and Pledgor hereby waives
(to the extent permitted by law) all rights of redemption, stay, or
appraisal that they now have or may at any time in the future have under
any rule of law or statute now existing or hereafter enacted. Pledgor
agrees that, to the extent notice of sale shall be required by law, at
least ten (10) calendar days' notice to Pledgor of the time and place of
any public sale or the time after which a private sale is to be made shall
constitute reasonable notification. Secured Party shall not be obligated to
make any sale of Collateral regardless of notice of sale having been given.
Secured Party may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned. To the maximum extent permitted by law, Pledgor hereby waives
any claims against Secured Party arising because the price at which any
Collateral may have been sold at such a private sale was less than the
price that might have been obtained at a public sale, even if Secured Party
accepts the first offer received and does not offer such Collateral to more
than one offeree.
(b) Pledgor hereby agrees that any sale or other disposition of the
Collateral conducted in conformity with reasonable commercial practices of
banks, insurance companies, or other financial institutions in the city and
state where Secured Party is located in disposing of property similar to
the Collateral shall be deemed to be commercially reasonable.
(c) Pledgor hereby acknowledges that the sale by Secured Party of any
Collateral pursuant to the terms hereof in compliance with the Securities
Act of 1933 as now in effect or as hereafter amended, or any similar
statute hereafter adopted with similar purpose or effect (the "Securities
Act"), as well as applicable "Blue Sky" or other state securities laws, may
require strict limitations as to the manner in which Secured Party or any
subsequent transferee of the Collateral may dispose thereof. Pledgor
acknowledges and agrees that in order to protect Secured Party's interest
it may be necessary to sell the Collateral at a price less than the maximum
price attainable if a sale were delayed or were made in another manner,
such as a public offering under the Securities Act. Pledgor has no
objection to sale in such a manner and agree that Secured Party shall have
no obligation to obtain the maximum possible price for the Collateral.
Without limiting the generality of the foregoing, Pledgor agrees that, upon
the occurrence and during the continuation of an Event of Default, Secured
Party may, subject to applicable law, from time to time attempt to sell all
or any part of the Collateral by a private placement, restricting the
bidders and prospective purchasers to those who will represent and agree
that they are purchasing for investment only and not for distribution. In
so doing, Secured Party may solicit offers to buy the Collateral or any
part thereof for cash, from a limited number of investors reasonably
believed by Secured Party to be institutional investors or other accredited
investors who might be interested in purchasing the Collateral. If Secured
Party shall solicit such offers, then the acceptance by Secured Party of
one of the offers shall be deemed to be a commercially reasonable method of
disposition of the Collateral.
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(d) PLEDGOR EXPRESSLY WAIVES TO THE MAXIMUM EXTENT PERMITTED BY LAW:
(i) ANY CONSTITUTIONAL OR OTHER RIGHT TO A JUDICIAL HEARING PRIOR TO THE
TIME SECURED PARTY DISPOSES OF ALL OR ANY PART OF THE COLLATERAL AS
PROVIDED IN THIS SECTION; (ii) ALL RIGHTS OF REDEMPTION, STAY, OR APPRAISAL
THAT THEY NOW HAVE OR MAY AT ANY TIME IN THE FUTURE HAVE UNDER ANY RULE OF
LAW OR STATUTE NOW EXISTING OR HEREAFTER ENACTED; AND (iii) EXCEPT AS SET
FORTH IN SUBSECTION (a) OF THIS SECTION 9, ANY REQUIREMENT OF NOTICE,
DEMAND, OR ADVERTISEMENT FOR SALE.
10. APPLICATION OF PROCEEDS. Upon the occurrence and during the continuance
of an Event of Default, any cash held by Secured Party as Collateral and all
cash Proceeds received by Secured Party in respect of any sale of, collection
from, or other realization upon all or any part of the Collateral pursuant to
the exercise by Secured Party of its remedies as a secured creditor as provided
in Section 9 shall be applied from time to time by Secured Party as Secured
Party may determine in its sole discretion.
11. INDEMNITY AND EXPENSES. Pledgor agrees:
(a) to indemnify and hold harmless Secured Party and each of its
directors, officers, employees, agents and affiliates from and against any
and all claims, damages, demands, losses, obligations, judgments and
liabilities (including, without limitation, reasonable attorneys' fees and
expenses) in any way arising out of or in connection with this Agreement,
except to the extent the same shall arise as a result of the gross
negligence or willful misconduct of the party seeking to be indemnified;
and
(b) to pay and reimburse Secured Party upon demand for all reasonable
costs and expenses (including, without limitation, reasonable attorneys'
fees and expenses) that Secured Party may incur in connection with (i) the
custody, use or preservation of, or the sale of, collection from or other
realization upon, any of the Collateral, including the reasonable expenses
of re-taking, holding, preparing for sale or lease, selling or otherwise
disposing of or realizing on the Collateral, (ii) the exercise or
enforcement of any rights or remedies granted hereunder, under the
Restitution Agreement or under any control agreement entered into pursuant
to this Agreement, or otherwise available to it (whether at law, in equity
or otherwise), or (iii) the failure by Pledgor to perform or observe any of
the provisions hereof. The provisions of this Section shall survive the
execution and delivery of this Agreement, the repayment of any of the
Secured Obligations and the termination of this Agreement.
12. DUTIES OF SECURED PARTY. The powers conferred on Secured Party
hereunder are solely to protect its interests in the Collateral and shall not
impose on it any duty to exercise such powers. Except as provided in Section
9-207 of the Code, Secured Party shall have no duty with respect to the
Collateral or any responsibility for taking any necessary steps to preserve
rights against any persons with respect to any Collateral.
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13. CHOICE OF LAW AND VENUE; SUBMISSION TO JURISDICTION; SERVICE OF
PROCESS.
(a) THE VALIDITY OF THIS AGREEMENT, ITS CONSTRUCTION, INTERPRETATION,
AND ENFORCEMENT, AND THE RIGHTS OF THE PARTIES HERETO SHALL BE DETERMINED
UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF KANSAS (WITHOUT REFERENCE TO THE CHOICE OF LAW PRINCIPLES THEREOF). THE
PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH
THIS AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN THE DISTRICT COURT OF
XXXXXXX COUNTY, KANSAS OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF KANSAS, OR, AT THE SOLE OPTION OF SECURED PARTY, IN ANY OTHER COURT IN
WHICH SECURED PARTY SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND WHICH
HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY.
(b) PLEDGOR HEREBY SUBMITS FOR THEMSELVES AND IN RESPECT OF THEIR
PROPERTY, GENERALLY AND UNCONDITIONALLY, TO THE JURISDICTION OF THE
AFORESAID COURTS AND WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW,
ANY RIGHTS HE MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO
OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH
THIS SECTION.
(c) PLEDGOR HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT,
OR OTHER PROCESS ISSUED IN ANY ACTION OR PROCEEDING AND AGREE THAT SERVICE
OF SUCH SUMMONS, COMPLAINT, OR OTHER PROCESS MAY BE MADE BY REGISTERED OR
CERTIFIED MAIL ADDRESSED TO PLEDGOR AT HIS ADDRESS FOR NOTICES IN
ACCORDANCE WITH THIS AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED
COMPLETED UPON THE EARLIER OF PLEDGOR'S ACTUAL RECEIPT THEREOF OR THREE (3)
DAYS AFTER DEPOSIT IN THE UNITED STATES MAILS, PROPER POSTAGE PREPAID.
(d) NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO AFFECT THE
RIGHT OF SECURED PARTY TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED
BY LAW, OR TO PRECLUDE THE ENFORCEMENT BY SECURED PARTY OF ANY JUDGMENT OR
ORDER OBTAINED IN SUCH FORUM OR THE TAKING OF ANY ACTION UNDER THIS
AGREEMENT TO ENFORCE SAME IN ANY OTHER APPROPRIATE FORUM OR JURISDICTION.
14. AMENDMENTS; ETC. No amendment or waiver of any provision of this
Agreement nor consent to any departure by Pledgor herefrom shall in any event be
effective unless the same shall be in writing and signed by Secured Party, and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given. No failure on the part of Secured
Party to exercise, and no delay in exercising any right under this Agreement, or
otherwise with respect to any of the Secured Obligations, shall operate as a
waiver thereof;
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nor shall any single or partial exercise of any right under this Agreement, or
otherwise with respect to any of the Secured Obligations preclude any other or
further exercise thereof or the exercise of any other right. The remedies
provided for in this Agreement or otherwise with respect to any of the Secured
Obligations are cumulative and not exclusive of any remedies provided by law.
15. NOTICES. Unless otherwise specifically provided herein, all notices
shall be in writing addressed to the respective parties as set forth below, and
may be personally served, faxed, telecopied or sent by overnight courier service
or United States mail:
If to Pledgor:
0000 Xxxx 000xx Xxxxxx
Xxxxxxx, Xxxxxx 00000
Fax No.:
Attn:Xxxxxxx X. Xxxxxxx
If to Secured Party:
Gold Bank
00000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000
Fax No.: (000) 000-0000
Attn:Xxxx Xxxxxxxx
with a copy to:
Xxxxxxx Xxxxxxxx Xxxxxx LLP
0000 Xxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Fax No.: (000) 000-0000
Attn:Xxxx X. Xxxxxx
Any notice given pursuant to this Section shall be deemed to have been
given: (a) if delivered in person, when delivered; (b) if delivered by fax, on
the date of transmission if transmitted on a Business Day before 4:00 p.m. at
the place of receipt or, if not, on the next succeeding Business Day; (c) if
delivered by overnight courier, two (2) days after delivery to such courier
properly addressed; or (d) if by United States mail, four (4) Business Days
after depositing in the United States mail, with postage prepaid and properly
addressed. Any party hereto may change the address or fax number at which it is
to receive notices hereunder by notice to the other party in writing in the
foregoing manner.
16. CONTINUING SECURITY INTEREST. This Agreement shall create a continuing
security interest in the Collateral and shall: (a) remain in full force and
effect until payment in full of the Secured Obligations; (b) be binding upon
Pledgor and their heirs, legal representatives, successors and assigns; and (c)
inure to the benefit of Secured Party and its successors, transferees, and
assigns. Upon payment in full of the Secured Obligations, the security interests
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granted herein shall automatically terminate and all rights to the Collateral
shall revert to Pledgor. Upon any such termination, Secured Party will, at
Pledgor's expense, execute and deliver to Pledgor such documents as Pledgor
shall reasonably request to evidence such termination. Such documents shall be
prepared by Pledgor and shall be in form and substance reasonably satisfactory
to Secured Party.
17. SECURITY INTEREST ABSOLUTE. To the maximum extent permitted by law, all
rights of Secured Party, all security interests hereunder, and all obligations
of Pledgor hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any of the Secured
Obligations or any other agreement or instrument relating thereto;
(b) any change in the time, manner, or place of payment of, or in any
other term of, all or any of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from any of the
terms of the Restitution Agreement, or any other agreement or instrument
relating thereto;
(c) any exchange, release, or non-perfection of any other collateral,
or any release or amendment or waiver of or consent to departure from any
guaranty for all or any of the Secured Obligations; or
(d) any other circumstances that might otherwise constitute a defense
available to, or a discharge of, Pledgor.
18. HEADINGS. Section and subsection headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement or be given any substantive effect.
19. SEVERABILITY. In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
20. COUNTERPARTS; TELEFACSIMILE EXECUTION. This Agreement may be executed
in one or more counterparts, each of which shall be deemed an original and all
of which together shall constitute one and the same Agreement. Delivery of an
executed counterpart of this Agreement by fax shall be equally as effective as
delivery of an original executed counterpart of this Agreement. Any party
delivering an executed counterpart of this Agreement by fax also shall deliver
an original executed counterpart of this Agreement but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability, or
binding effect hereof.
21. WAIVER OF MARSHALING. Each of Pledgor and Secured Party acknowledges
and agrees that in exercising any rights under or with respect to the
Collateral: (a) Secured Party is under no obligation to marshal any Collateral;
(b) may, in its absolute discretion, realize upon the Collateral in any order
and in any manner it so elects; and (c) may, in its absolute discretion, apply
the proceeds of any or all of the Collateral to the Secured Obligations in any
order and in
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any manner it so elects. Pledgor and Secured Party waive any right to require
the marshaling of any of the Collateral.
IN WITNESS WHEREOF, Pledgor and Secured Party have caused this Agreement
to be duly executed and delivered as of the date first written above.
PLEDGOR:
-------
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx
SECURED PARTY:
-------------
GOLD BANK,
a Kansas banking corporation
By: Xxxx Xxxxx
-------------------------------
Name (print): Xxxx Xxxxx
-----------------------
Title: President
------------------------------
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SCHEDULE 1
PLEDGED INTERESTS
Number of Certificate
Jurisdiction of Shares/Units Numbers Registered LaSalle
Name of Issuer Organization Type of Interest (if applicable) (if any) Owner Collateral
-------------- ------------ ---------------- --------------- -------- ----- ----------
Gold Banc Corporation, Inc. Kansas Common stock 640,792 GB13167 Xxxxxxx Yes
(aggregate) GB10012
GB10006
GB10013
GB10014
GB10015
GB13164
GB13165
GB13166
GB10011
GB10010
GB10002
GB10003
GB10004
GB10005
GB10009
GB10007
GB10008
GB10001
I-435/Xxxx, L.L.C. Kansas Membership interest NA XX Xxxxxxx No
14
SCHEDULE 2
PLEDGOR INFORMATION
Address of Principal Residence:
0000 Xxxx 000xx Xxxxxx
Xxxxxxx, Xxxxxx 00000
15
EXHIBIT A
INDORSEMENT CERTIFICATE
FOR VALUE RECEIVED, the undersigned does hereby sell, assign and transfer
unto _____, [_____ (___) shares of the _____ Stock [or other securities of]] [a
___ percent (%) interest in ] ____ (the "Issuer") standing in the undersigned's
name on the books of the Issuer represented by Certificate No(s). , and does
hereby irrevocably constitute and appoint as the undersigned's attorney-in-fact
to transfer the said stock [or other securities] on the books of the Issuer with
full power of substitution in the premises.
Date: PLEDGOR(S):
----------
-----------------------------------------
Name (print):
---------------------------
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