EXHIBIT 10.36
AMENDED AND RESTATED LOAN AGREEMENT
This AMENDED AND RESTATED LOAN AGREEMENT (the "Agreement"), dated as of
December 1, 1998, is entered into between GOLD BANC CORPORATION, INC., a Kansas
corporation (the "Borrower"), and LASALLE NATIONAL BANK, a national banking
association (the "Bank").
RECITALS:
WHEREAS, the Bank and the Borrower entered into a Loan Agreement dated
April 1, 1998 between the Pledgor and the Bank (including all renewals,
modifications, amendments and extensions thereof, the "Loan Agreement") under
which the Bank was willing to lend to the Borrower FIFTEEN MILLION and 00/100
DOLLARS ($15,000,000) in accordance with the terms, subject to the conditions
and in reliance on the representations, warranties and covenants set forth in
the Loan Agreement and in all of the other documents and instruments entered
into or delivered in connection with or relating to the loan contemplated in the
Loan Agreement including a Pledge and Security Agreement dated April 1, 1998
between the Borrower and the Bank under which the Bank was to receive, among
other things, a first priority security interest in 100% of the issued and
outstanding capital stock of The Farmers National Bank ("Farmers");
WHEREAS, the Gold Banc Acquisitions Corporation II, Inc. (the "Subsidiary
Pledgor"), and not the Borrower as the Bank believed, is the owner of 100% of
the capital stock of Farmers;
WHEREAS, 100% of the capital stock of the Subsidiary Pledgor is owned the
Borrower;
WHEREAS, the Borrower desires to continue to borrow from Bank under the
Loan Agreement and the Bank wishes to continue to lend conditioned upon receipt
of a Pledge Agreement from the Subsidiary Pledgor and the Borrower pledging 100%
of the capital stock of Farmers and receipt from the Borrower of this Agreement
and an amended Pledge Agreement all subject to the conditions and in reliance
upon the representations, warranties and covenants set forth herein and in the
other documents and instruments entered into or delivered in connection with or
relating to the loan contemplated in this Agreement.
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
AGREEMENT:
1. Commitment of the Bank.
The Bank agrees to extend a loan (the "Loan") to the Borrower in the
principal amount of FIFTEEN MILLION and 00/100 DOLLARS ($15,000,000), evidenced
by a promissory note (the "Note") and secured by the Pledge and Security
Agreement between the Borrower and the Bank dated as of April 1, 1998, as
amended from time to time, and the Pledge and Security Agreement dated as of
December 1, 1998 among the Borrower, Gold Banc Acquisition Corporation II, Inc.
(the "Subsidiary Pledgor") and the Bank (each a "Pledge Agreement" and,
collectively, the "Pledge Agreements"), in accordance with the terms and subject
to the conditions set forth in this Agreement, the Note, the Pledge Agreements
and the Subsidiary's Pledge .
2. Conditions of Borrowing.
Notwithstanding any other provision of this Agreement, the Bank shall not
be required to extend the Loan:
(a) if, since the date of this Agreement and up to the agreed upon
date of the Loan, there has occurred, in the Bank's sole and complete
discretion, a material adverse change in the financial condition or affairs of
the Borrower or any Subsidiary;
(b) if any Default (as such term is defined below) has occurred or
any event which, with the giving of notice or lapse of time, or both, would
constitute such a Default;
(c) if any litigation or governmental proceeding has been instituted
or threatened against the Borrower, any Subsidiary or any of their respective
officers or shareholders which, in the sole discretion of the Bank, could
adversely affect the financial condition or operations of the Borrower or any
Subsidiary;
(d) if all necessary or appropriate actions and proceedings shall not
have been taken in connection with, or relating to the transactions contemplated
hereby and all documents incident thereto shall not have been completed and
tendered for delivery, in form and substance satisfactory to the Bank;
(e) if the Borrower shall not have tendered for delivery the Note and
the Borrower and the Subsidiary Pledgor shall not have tendered for delivery the
Pledge Agreements, together with all of the Pledged Security (as such term is
defined in the Pledge Agreements) all in form and substance satisfactory to the
Bank;
(f) if the Borrower shall not have tendered for delivery a legal
opinion from the Borrower's counsel in form and substance satisfactory to the
Bank and Bank's legal counsel; or
(g) if the Bank shall not have received, in form and substance
satisfactory to the Bank, all certificates, affidavits, schedules, resolutions,
opinions, notes and other documents which are provided for hereunder, or which
it may reasonably request.
3. Note Evidencing Borrowing.
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The Loan shall be evidenced by the Note executed by the Borrower in the
principal amount of FIFTEEN MILLION and 00/100 DOLLARS ($15,000,000), which Note
shall be in the form set forth as Exhibit A hereto.
(a) Interest on amounts outstanding under the Note shall be payable
quarterly, in arrears, commencing on January 1, 1999 and continuing on the first
day of each October, January, April and July thereafter. A final payment of all
outstanding amounts due under the Note; including, but not limited to principal,
interest and any amounts owing under Subsection 11(m) of this Agreement, if not
payable earlier, shall be due and payable on April 1, 2000. The amounts
outstanding under the Note from time to time shall bear interest calculated on
the actual number of days elapsed on the basis of a 360 day year, at a rate
equal, at the Borrower's option, to either (a) LIBOR plus 175 basis points, or
(b) the Prime Rate (whichever rate is so selected, the "Interest Rate").
For purposes of this Agreement, the term "Prime Rate" shall mean the
floating prime rate in effect from time to time as set by the Bank, and referred
to by the Bank as its Prime Rate. The Borrower acknowledges that the Prime Rate
is not necessarily the Bank's lowest or most favorable rate of interest at any
one time. The effective date of any change in the Prime Rate shall for purposes
hereof be the date the rate change is publicly announced by the Bank.
For purposes of this Agreement, "LIBOR" shall mean the per annum rate of
interest at which U.S. dollar deposits in an amount comparable to the amount of
the relevant LIBOR Loan and for a period equal to the relevant "Interest Period"
(hereinafter defined) are offered generally to the Bank (rounded upward if
necessary, to the nearest 1/16 of 1.00%) in the London Interbank Eurodollar
market at 11:00 a.m. (London time) two banking days prior to the commencement of
each Interest Period, such rate to remain fixed for such Interest Period.
"Interest Period" shall mean successive one, two, three or six month periods as
selected from time to time by the Borrower by notice given to the Bank not less
than three banking days prior to the first day of each respective Interest
Period; provided that: (i) each such one, two, three or six month period
occurring after such initial period shall commence on the day on which the next
preceding period expires; (ii) the final Interest Period shall be such that its
expiration occurs on or before the stated maturity date hereof; and (iii) if for
any reason the Borrower shall fail to select timely a period, then it shall be
deemed to have selected a one month period. Interest shall be payable on the
last banking day of each Interest Period, commencing on the first such date to
occur after the date hereof, at maturity, after maturity on demand, and on the
date of any payment hereon on the amount paid. The Borrower hereby further
promises to pay to the order of the Bank, on demand, interest on the unpaid
principal amount hereof after maturity (whether by acceleration or otherwise) at
a rate of two per cent per annum in excess of the rate in effect at the time of
maturity.
The Bank's determination of LIBOR as provided above shall be conclusive,
absent manifest error. Furthermore, if the Bank determines, in good faith (which
determination shall be conclusive, absent manifest error), prior to the
commencement of any Interest Period that (a) U.S. dollar deposits of sufficient
amount and maturity for funding any LIBOR Loan are not available to the Bank in
the London Interbank Eurodollar market in the ordinary course of business, or
(b) by reason of circumstances affecting the London Interbank Eurodollar market,
adequate and fair means do not exist for ascertaining the rate of interest to be
applicable to the relevant LIBOR Loan, the
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Bank shall promptly notify the Borrower and such LIBOR Loan shall automatically
convert on the last day of its then-current Interest Period to a loan bearing
interest at the Prime Rate.
If, after the date hereof, the introduction of, or any change in any
applicable law, treaty, rule, regulation or guideline or in the interpretation
or administration thereof by any governmental authority or any central bank or
other fiscal, monetary or other authority having jurisdiction over the Bank or
its lending office (a "Regulatory Change"), shall, in the opinion of counsel to
the Bank, makes it unlawful for the Bank to make or maintain any LIBOR Loan
evidenced hereby, then the Bank shall promptly notify the Borrower and such
LIBOR Loan shall automatically convert on the last day of its then-current
Interest Period to a loan bearing interest at the Prime Rate.
If, for any reason, any LIBOR Loan is paid prior to the last banking day of
its then-current Interest Period, the Borrower agrees to indemnify the Bank
against any loss (including any loss on redeployment of the funds repaid), cost
or expense incurred by the Bank as a result of such prepayment.
If any Regulatory Change (whether or not having the force of law) shall (a)
impose, modify or deem applicable any assessment, reserve, special deposit or
similar requirement against assets held by, or deposits in or for the account of
or loans by, or any other acquisition of funds or disbursements by, the Bank;
(b) subject the Bank or any LIBOR Loan to any tax, duty, charge, stamp tax or
fee or change the basis of taxation of payments to the Bank of principal or
interest due from the Borrower to the Bank hereunder (other than a change in the
taxation of the overall net income of the Bank); or (c) impose on the Bank any
other condition regarding such LIBOR Loan or the Bank's funding thereof, and the
Bank shall determine (which determination shall be conclusive, absent manifest
error) that the result of the foregoing is to increase the cost to the Bank of
making or maintaining such LIBOR Loan or to reduce the amount of principal or
interest received by the bank hereunder, then the Borrower shall pay to the
Bank, on demand, such additional amounts as the Bank shall, from time to time,
determine are sufficient to compensate and indemnify the Bank for such increased
cost or reduced amount.
(b) Any amount of principal or interest on the Note which is not paid
when due, whether at stated maturity, by acceleration or otherwise shall bear
interest payable on demand at an interest rate equal at all times to two percent
(2%) above the Interest Rate.
(c) If any payment to be made by the Borrower hereunder shall become
due on a Saturday, Sunday or banking holiday under the laws of the State of
Illinois, such payment shall be made on the next succeeding business day and
such extension of time shall be included in computing any interest in respect of
such payment.
4. Principal Prepayments.
Prepayments of Prime Rate Loans are permitted at any time. Any prepayments
of LIBOR Loans shall be subject to the terms of Section 3(a), above.
5. Manner of Borrowing.
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Each Loan shall be made available to the Borrower upon its oral or written
request, from any person whose authority to so act has not been revoked by the
Borrower in writing previously received by the Bank. Each Loan may be advanced
either as a Prime Rate Loan or a LIBOR Loan, provided, however, that at any time
and from time to time, the Borrower may identify no more than ten (10) Loans
which may be LIBOR Loans. A request for a Prime Rate Loan must be (i) received
by no later than 11:00 a.m. Chicago, Illinois time, on the day it is to be
funded. A request for a LIBOR Loan must be (i) received by no later than 11:00
a.m. Chicago, Illinois time, three days before the day it is to be funded, and
(ii) in an amount equal to $1,000,000.00 or a higher integral multiple of
$1,000,000.00. If for any reason the Borrower shall fail to select timely an
Interest Period for an existing LIBOR Loan, then such LIBOR Loan shall be
immediately converted to a Prime Rate Loan on the last business day of the then
existing Interest Period, all without demand, presentment, protest or notice of
any kind, all of which are hereby waived by the Borrower. The proceeds of each
Prime Rate Loan or LIBOR Loan shall be made available at the office of the Bank
by credit to the account of the Borrower or by other means requested by the
Borrower and acceptable to the Bank.
6. Representations and Warranties.
To induce the Bank to make the Loan provided for herein, the Borrower
represents and warrants as follows:
(a) The Borrower: (i) is a corporation duly organized and validly
existing and in good standing under the laws of the State of Kansas; (ii) is
duly qualified as a foreign corporation and is in good standing in all states in
which it is doing business except where the failure to so qualify would not have
a material adverse effect on the Borrower or its business; and (iii) has all
requisite power and authority, corporate or otherwise, to own, operate and lease
its properties and to carry on its business as now being conducted. Each
Subsidiary is a banking corporation organized in the State set forth on Schedule
1 hereto, and has all requisite power and authority, corporate or otherwise, to
own, operate and lease its property and to carry on its business as now being
conducted. The Borrower and the Subsidiaries have made payment of all franchise
and similar taxes in all of the respective jurisdictions in which they are
incorporated or qualified, insofar as such taxes are due and payable at the date
of this Agreement, except for any such taxes the validity of which is being
contested in good faith and for which proper reserves have been set aside on the
books of the Borrower or the Subsidiaries, as the case may be.
(b) The Borrower is the direct or indirect owner of 100% of the
issued and outstanding capital stock of the Subsidiaries set forth in Schedule 1
hereto (the "Subsidiaries").
(c) The Subsidiary Shares have been duly authorized, legally and
validly issued, fully paid and nonassessable, and are owned by the Borrower of
the Subsidiary Pledgor free and clear of all pledges, liens, security interests,
charges or encumbrances, except, upon consummation of the transactions
contemplated herein, for the security interests granted by the Borrower and the
Subsidiary Pledgor to the Bank. There are, as of the date hereof, no outstanding
options, rights or warrants obligating the Borrower or any Subsidiary to issue,
deliver or sell, or cause to be issued,
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delivered or sold, additional shares of the capital stock of any Subsidiary or
obligating the Borrower or any Subsidiary to grant, extend or enter into any
such agreement or commitment.
(d) The financial statements of:
(i) the Borrower, all of which have heretofore been furnished
to the Bank, have been prepared in accordance with generally accepted
accounting principles consistently applied ("GAAP") and maintained by the
Borrower throughout the periods involved, and fairly present the financial
condition of the Borrower individually and on a consolidated basis at such
dates specified therein and the results of its operations for the periods
then ended; and
(ii) the Subsidiaries, all of which have heretofore been
furnished to the Bank, to the best knowledge of the Borrower have been
prepared in accordance with GAAP and maintained by the Subsidiaries
throughout the periods involved, and fairly present the financial condition
of the Subsidiaries at such dates specified therein and the results of its
operations for the periods then entered.
(e) To the best knowledge of the Borrower, since the latest date of
the financial statements referred to in Section 6(d) above, there have been no
material changes in the assets, liabilities, or condition, financial or
otherwise, of the Borrower or the Subsidiaries other than changes arising from
transactions in the ordinary course of business, and no such changes have been
materially adverse, whether in the ordinary course of business or otherwise. To
the best knowledge of the Borrower, neither the business nor the properties of
the Borrower or the Subsidiaries have been materially and adversely affected in
any way, including, without limitation, as a result of any fire, explosion,
accident, strike, lockout, labor dispute, flood, drought, embargo, imposition of
governmental restrictions, confiscation by a governmental agency or acts of God.
(f) There are no actions, suits, proceedings or written agreements
pending, nor to the best of the knowledge of the Borrower threatened or
proposed, against the Borrower or, to the best knowledge of the Borrower, the
Subsidiaries, at law or in equity or before or by any federal, state, municipal
or other governmental department, commission, board or other administrative
agency, domestic or foreign, which are of a material nature. Neither of the
Borrower nor, to the best knowledge of the Borrower, any Subsidiary is in
default with respect to any order, writ, injunction or decree of, or any written
agreement with, any court, commission, board or agency, domestic or foreign.
(g) All tax returns and reports of the Borrower and, to the best
knowledge of the Borrower, the Subsidiaries, required by law to be filed have
been duly filed, and all taxes, assessments, fees and other governmental charges
upon the Borrower and any Subsidiary or upon any of their properties or assets
which are due and payable have been paid, and the Borrower knows of no
additional assessment of a material nature against the Borrower or any
Subsidiary for taxes, or, except as disclosed on the financial statements
referred to in Section 6(d) above, of any basis for any such additional
assessment.
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(h) The Borrower's primary business is that of a bank holding
company. All necessary regulatory approvals have been obtained for the Borrower
to conduct its business.
(i) The deposit accounts of the Subsidiaries are insured by the
Federal Deposit Insurance Corporation ("FDIC").
(j) None of the Pledged Security constitutes margin stock, as defined
in Regulation U of the Board of Governors of the Federal Reserve System ("FRS").
(k) The Borrower and the Subsidiaries have reviewed the areas within
their business and operations which could be adversely affected by, and, if
applicable, have developed or are developing programs to address on a timely
basis, the "Year 2000 Problem" (i.e., the risk that computer applications used
by the Borrower or a Subsidiary may be unable to recognize and perform properly
date-sensitive functions involving certain dates prior to, and any date on or
after, December 31, 1999), and have made related appropriate inquiry of material
suppliers and vendors. Based on such review and programs, the Borrower believes
that the "Year 2000 Problem" will not have a material adverse effect on the
Borrower or any of the Subsidiaries or any of their operations or businesses.
The foregoing representations and warranties shall survive the making of
this Agreement, and execution and delivery of the Note and the Pledge
Agreements, and shall be deemed to be continuing representations and warranties
until such time as the Borrower has satisfied all of its obligations to the
Bank; including, but not limited to the obligation to pay in full all principal,
interest and other amounts in accordance with the terms of this Agreement, the
Note and the Pledge Agreements.
7. Negative Covenants.
The Borrower agrees that until the Borrower satisfies all of its
obligations to the Bank; including, but not limited to its obligations to pay in
full all principal, interest and other amounts owing in accordance with the
terms of this Agreement, the Note and the Pledge Agreements, the Borrower shall
not, nor shall the Borrower cause, permit or allow any Subsidiary to:
(a) create, assume, incur, have outstanding, or in any manner become
liable in respect of any indebtedness for borrowed money, except in the case of
Borrower, secured indebtedness under Section 7(b)(vi), and, in the case of the
Subsidiaries, indebtedness incurred in the ordinary course of the business of
banking and in accordance with applicable laws and regulations and safe and
sound banking practices. For purposes of this Agreement, the phrase
"indebtedness" shall mean and include:
(i) all items arising from the borrowing of money, which
according to generally accepted accounting principles now in effect, would
be included in determining total liabilities as shown on the balance sheet;
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(ii) all indebtedness secured by any lien in property owned by
the Borrower whether or not such indebtedness shall have been assumed;
(iii) all guarantees and similar contingent liabilities in
respect to indebtedness of others; and
(iv) all other interest-bearing obligations evidencing
indebtedness in others;
(b) create, assume, incur, suffer or permit to exist any mortgage,
pledge, deed of trust, encumbrance (including the lien or retained security
title of a conditional vendor), security interest, assignment, lien or charge of
any kind or character upon or with respect to property whether owned at the date
hereof or hereafter acquired by the Borrower or any Subsidiary, or assign or
otherwise convey any right to receive income, except:
(i) liens for taxes, assessments or other governmental charges
for the then current year or which are not yet due or delinquent;
(ii) liens for taxes, assessments or other governmental charges
already due, but the validity of which is being contested in good faith in
such a manner as not to make the property forfeitable;
(iii) liens and charges incidental to current operations which
are not due or delinquent;
(iv) liens for workmen's compensation awards not due or
delinquent;
(v) pledges or deposits to secure obligations under workmen's
compensation laws or similar legislation;
(vi) purchase money mortgages or other liens on real property
including those incurred for the construction of a banking facility, and
bank furniture and fixtures acquired or held in the ordinary course of
business to secure the purchase price of such property or to secure the
indebtedness incurred solely for the purpose of financing the acquisition,
construction or improvement of any such property to be subject to such
mortgages or other liens, or mortgages or other liens existing on any such
property at the time of acquisition, or extensions, renewals, or
replacements of any of the foregoing for the same or a lesser amount;
provided that no such mortgage or other liens shall extend to or cover any
property other than the property being acquired, constructed or improved,
and no such extension, renewal or replacement shall extend to or cover any
property not theretofore subject to the mortgage or lien being extended,
renewed or replaced, and provided further that no such mortgage or lien
shall exceed 75% of the price of acquisition, construction or improvement
at the time of acquisition, construction or improvement; and provided
further that the aggregate principal amount of consolidated indebtedness at
any one time outstanding and secured by mortgages, liens, conditional sale
agreements and other security
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interests permitted by this clause (vi) shall not exceed 10% of the
consolidated capital of the Borrower or any Subsidiary, as the case may be;
(vii) liens existing on the date hereof as shown on the
financial statements; and
(viii) in the case of the Subsidiaries, liens incurred in the
ordinary course of the business of banking and in accordance with
applicable laws and regulations and safe and sound banking practices;
(c) dispose by sale, assignment, lease or otherwise, property or
assets now owned or hereafter acquired, outside the ordinary course of business
in excess of 10% of its consolidated assets in any fiscal year;
(d) merge into or consolidate with or into any other person, firm or
corporation;
(e) make any loans or advances whether secured or unsecured to any
person, firm or corporation, other than loans or advances made by the
Subsidiaries in the ordinary course of their banking business and in accordance
with applicable laws and regulations and safe and sound banking practices;
(f) engage in any business or activity not permitted by all
applicable laws and regulations, including without limitation, the Bank Holding
Company Act of 1954, the Illinois Banking Act, the Federal Deposit Insurance Act
and any regulations promulgated thereunder;
(g) make any loan or advance secured by the capital stock of another
bank or depository institution (except for loans made in the ordinary course of
business), or acquire the capital stock, assets or obligations of or any
interest in another bank or depository institution, without prior written
approval of the Bank;
(h) directly or indirectly create, assume, incur, suffer or permit to
exist any pledge, encumbrance, security interest, assignment, lien or charge of
any kind or character on the capital stock of any of the Subsidiaries or any
other capital stock directly or indirectly owned by the Borrower;
(i) directly or indirectly cause or allow the percent of Pledged
Stock to diminish as a percentage of the outstanding capital stock of the
Subsidiaries;
(j) directly or indirectly sell, transfer, issue, reissue, exchange
or grant any option with respect to any of the capital stock of any of the
Subsidiaries;
(k) redeem any of the capital stock of the Borrower, declare a stock
dividend or split or otherwise change the capital structure of Borrower or the
Subsidiaries without prior written approval of the Bank;
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(l) breach or fail to perform or observe any of the terms and
conditions of the Note, the Pledge Agreements or any other document or agreement
entered into or delivered in connection with, or relating to, the Loan;
(m) engage in any unsafe or unsound banking practices; or
(n) violate any law or regulation, or any condition imposed by or
undertaking provided to the FRS, the FDIC or the Office of the Commissioner of
Banks and Real Estate in connection with the Borrower's direct or indirect
acquisition of the capital stock of the Subsidiaries.
8. Affirmative Covenants.
The Borrower agrees that until the Borrower satisfies all of its
obligations to the Bank; including, but not limited to its obligations to pay in
full all principal, interest and other amounts in accordance with the terms of
the Agreement, the Note and the Pledge Agreements, it shall:
(a) furnish and deliver to the Bank:
(i) as soon as practicable, and in no event later than
forty-five (45) days after the end of each of the first three calendar
quarter of the Borrower and the Subsidiaries, a copy of: (1) the balance
sheet, profit and loss statement, surplus statement and any supporting
schedules prepared in accordance with GAAP and signed by the presidents and
chief financial officers of the Borrower and the Subsidiaries; and (2) all
financial statements, including, but not limited to, all call reports filed
with any state or federal bank regulatory authority;
(ii) as soon as practicable, and in no event later than one
hundred twenty (120) days after the end of each calendar year, a copy of:
(1) the consolidated balance sheets as of the end of such year and the
consolidated profit and loss and surplus statements for the Borrower and
the Subsidiaries for such year, audited by independent certified public
accountants satisfactory to the Bank and accompanied by an unqualified
opinion; and (2) all financial statements and reports, including, but not
limited to call reports and annual reports filed annually with any state or
federal regulatory authority;
(iii) as soon as practicable, and in no event later than
forty-five (45) days after the end of each calendar quarter, copies of the
then current loan/asset watch list, the substandard loan/asset list, the
nonperforming loan/asset list and other real estate owned list of the
Subsidiaries;
(iv) immediately after receiving knowledge thereof, notice in
writing of all charges, assessment, actions, suits and proceedings that are
proposed or initiated by, or brought before, any court or governmental
department, commission, board or other administrative agency, in connection
with the Borrower or the Subsidiaries (other than litigation in the
ordinary course of business not involving the FRS, the FDIC or the Office
of the Commissioner of Banks and Real Estate, which, if adversely decided,
would not have
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a material effect on the financial condition or operations of the Borrower
or the Subsidiaries); and
(v) promptly after the occurrence thereof, notice of any other
matter which has resulted in a materially adverse change in the financial
condition or operations of the Borrower or the Subsidiaries;
(b) promptly pay and discharge all taxes, assessments and other
governmental charges imposed upon the Borrower or the Subsidiaries or upon the
income, profits or property of the Borrower or the Subsidiaries and all claims
for labor, material or supplies which, if unpaid, may by law become a lien or
charge upon the property of the Borrower or the Subsidiaries. Neither the
Borrower nor the Subsidiaries shall be required to pay any such tax, assessment,
charge or claim, so long as the validity thereof shall be contested in good
faith by appropriate proceedings, and reserves therefor shall be maintained on
the books of the Borrower or the Subsidiaries as are deemed reasonably adequate
by the Bank;
(c) maintain bonds and insurance and cause the Subsidiaries to
maintain bonds and insurance with responsible and reputable insurance companies
or associations in such amounts and covering such risk as is usually carried by
owners of similar businesses and properties in the same general area in which
the Borrower or each Subsidiary respectively operate and such additional bonds
and insurance as may be reasonably required by the Bank;
(d) permit and cause the Subsidiaries to permit the Bank through its
employees, attorneys, accountants or other agents, to inspect any of the
properties, corporate books and financial books and records of the Borrower and
the Subsidiaries at such times and as often as the Bank reasonably may request;
and
(e) promptly provide and cause the Subsidiaries promptly to provide
the Bank with such other information concerning the business, operations,
financial condition and regulatory status of the Borrower and the Subsidiaries
as the Bank may from time to time reasonably request.
(f) from time to time, at the request of the Bank, the Borrower shall
provide to the Bank such updated information or documentation as is requested
regarding the status of its efforts, and the efforts of the Subsidiaries to
address the "Year 2000 Problem".
9. Collateral.
Pursuant to the Pledge Agreements, the Borrower and the Subsidiary Pledgor
have concurrently herewith assigned, transferred, pledged and delivered to the
Bank as collateral for all of the Borrower's obligations from time to time to
the Bank the Pledged Security (as defined in the Pledge Agreements) whether now
or hereafter pledged.
10. Events of Default; Default; Rights Upon Default.
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The happening or occurrence of any of the following events or acts shall
each constitute a default hereunder (each, a "Default"), and any such default
shall also constitute a Default under the Note, the Pledge Agreements and any
other loan document, without right to notice or time to cure in favor of the
Borrower except as indicated below:
(a) if the Borrower fails to make any payment, as provided for herein
or in the Pledge Agreements;
(b) if there continues to exist any breach under any obligation of
any other documents executed pursuant to this Agreement including, without
limitation, the Note and the Pledge Agreements and such breach remains uncured
beyond the applicable time period, if any, specifically provided therefor;
(c) if any representation or warranty made in this Agreement shall be
false when made or be false at any time during the term of this Agreement or any
extension hereof, or if the Borrower fails to perform or observe any covenant or
agreement contained in this Agreement within fifteen (15) days after notice
thereof by Bank;
(d) if the Borrower or any Subsidiary fails to perform or observe any
covenant or agreement contained in any other agreement between the Borrower or
any Subsidiary and the Bank, or if any condition contained in any agreement
between the Borrower or such Subsidiary and the Bank is not fulfilled and such
failure remains uncured beyond the cure period, if any, specifically provided
therefor;
(e) if the Borrower shall continue to fail to perform and observe, or
cause or permit any Subsidiary to fail to perform and observe any covenants
under this Agreement, including, without limitation, all affirmative and
negative covenants set forth in Sections 7 and 8 of this Agreement for fifteen
(15) days after notice thereof by the Bank;
(f) if the FRS, the FDIC, the Office of the Commissioner of Banks and
Real Estate or other governmental agency charged with the regulation of bank
holding companies or depository institutions: (i) issues to the Borrower or any
Subsidiary, or initiates any action, suit or proceeding to obtain against,
impose on or require from the Borrower or any Subsidiary, a cease and desist
order or similar regulatory order, the assessment of civil monetary penalties,
articles of agreement, a memorandum of understanding, a capital directive, a
capital restoration plan, restrictions that prevent or as a practical matter
impair the payment of dividends by any Subsidiary or the payments of any debt by
the Borrower, restrictions that make the payment of dividends by any Subsidiary
or the payment of debt by the Borrower subject to prior regulatory approval, a
notice or finding under Section 51 or Section 52 of the Illinois Banking Act or
Section 8(a) of the Federal Deposit Insurance Act, or any similar enforcement
action, measure or proceeding; or (ii) issues to any officer or director of the
Borrower or any Subsidiary, or initiates any action, suit or proceeding to
obtain against, impose on or require from any such officer or director, a cease
and desist order or similar regulatory order, a removal order, a suspension
order, or the assessment of civil monetary penalties;
12
(g) if any Subsidiary is notified that it is considered an institution
in "troubled condition" within the meaning of 12 U.S.C. Section 1831i and the
regulations promulgated thereunder, or if a conservator or receiver is appointed
for such Subsidiary;
(h) if the Borrower or any Subsidiary (i) becomes insolvent or is
unable to pay its debts as they mature; (ii) makes an assignment for the benefit
of creditors or admits in writing its inability to pay its debts as they mature;
(iii) suspends transaction of its usual business; or (iv) if a trustee of any
substantial part of the assets of the Borrower or any Subsidiary is applied for
or appointed, and if appointed in a proceeding brought against the Borrower, the
Borrower by any action or failure to act indicates its approval of, consent to,
or acquiescence in such appointment, or within thirty (30) days such appointment
is not vacated or stayed on appeal or otherwise, or shall not otherwise have
ceased to continue in effect;
(i) if any proceedings involving the Borrower or any Subsidiary are
commenced by or against the Borrower or any Subsidiary under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or
liquidation law or statute of the federal government or any state government and
if such proceedings are instituted against the Borrower, the Borrower by any
action or failure to act indicates its approval of, consent to or acquiescence
therein, or an order shall be entered approving the petition in such proceedings
and within thirty (30) days after the entry thereof such order is not vacated or
stayed on appeal or otherwise, or shall not otherwise have ceased to continue in
effect; or
(j) if the Borrower or any Subsidiary continue to be in default in any
payment of principal or interest for any other obligation or in the performance
of any other term, condition or covenant contained in any agreement (including,
but not limited to, an agreement in connection with the acquisition of capital
equipment on a title retention or net lease basis), under which any such
obligation is created, the effect of which default is to cause or permit the
holder of such obligation to cause such obligation to become due prior to its
stated maturity.
Upon the occurrence of a Default, the Bank shall have all rights and
remedies provided by applicable law and, without limiting the generality of the
foregoing, may, at its option, declare its commitments to be terminated and the
Note shall thereupon be and become forthwith, due and payable, without any
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrower, anything contained herein, in the Note
or the Pledge Agreements to the contrary notwithstanding, and may, also without
limitation, appropriate and apply toward the payment of the Note any
indebtedness of the Bank to the Borrower however created or arising, and may,
also without limitation exercise any and all rights in and to the Pledged
Security referred to in Section 9 above and in the Pledge Agreements. There
shall be no obligation to liquidate the Pledged Security nor any other
collateral pledged hereunder in any order or with any priority or to exercise
any remedy available to the Bank in any order.
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11. Miscellaneous.
(a) No failure or delay on the part of the Bank in exercising any
right, power or remedy hereunder shall operate as a waiver thereof. No single or
partial exercise of any such right, power or remedy shall preclude any other or
further exercise thereof or the exercise of any other right, power or remedy
hereunder. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law. Time is of the essence in the performance of the
covenants, agreements and obligations of the Borrower and the Subsidiaries.
(b) This Agreement constitutes the entire agreement between the
parties and supersedes all prior agreements between the Bank and the Borrower
with respect to the subject matter hereof. No amendment, modification,
termination or waiver of any provision of this Agreement, the Pledge Agreements
or the Note, or consent to any departure by the Borrower therefrom, shall be
effective unless in writing and signed by the Bank, and then such waiver or
consent shall be effective only for the specific purpose for which given. No
notice to or demand on the Borrower in any case shall entitle the Borrower to
any other or further notice or demand in similar or other circumstances.
(c) All notices, requests, demands and other communications provided
for hereunder shall be: (i) in writing, (ii) made in one of the following
manners, and (iii) shall be deemed given (A) if and when personally delivered;
(B) on the next business day if sent by
14
nationally recognized overnight courier addressed to the appropriate party as
set forth below; or (C) on the second business day after being deposited in
United States certified or registered mail, and addressed as follows:
If to Borrower: Gold Banc Corporation, Inc.
00000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx,
President
If to the Bank: LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx, Xx.,
Vice President
or, as to each party, at such other address as shall be designated by such party
in a written notice to each other party complying as to delivery with the terms
of this subsection.
(d) This Agreement may be executed in any number of counterparts and
by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute but one and the same instrument.
(e) This Agreement shall become effective when it shall have been
executed by the Borrower and the Bank and thereafter shall be binding upon and
inure to the benefit of the Borrower, the Bank and their respective successors
and assigns; provided, that the Borrower shall not assign its rights hereunder
or any interest herein without the prior written consent of the Bank.
(f) This Agreement and the Note shall be governed by the internal laws
of the State of Illinois, and for all purposes shall be construed in accordance
with the laws of said State without giving effect to the choice of law
provisions of such State.
(g) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or lack of enforceability without invalidating
the remaining provisions hereof or affecting the validity or enforceability of
such provision in any other jurisdiction. Wherever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law.
(h) All covenants, agreements, representations and warranties made by
the Borrower herein shall, notwithstanding any investigation by or knowledge on
the part of the Bank, be deemed material and relied on by the Bank and shall
survive the execution and delivery to the Bank of this Agreement and the Note.
15
(i) This Agreement shall govern the terms of any extensions or
renewals of the Note, subject to any additional terms and conditions imposed by
the Bank in connection with any such extension or renewal.
(j) The Borrower hereby represents that the indebtedness evidenced
hereby constitutes a loan made by the Bank to enable the Borrower to carry on a
commercial enterprise for the purpose of investment or profit; and that such
loan is a loan for business purposes under the intent and purview of 815 ILCS
205/4(1)(c).
(k) THE BANK AND THE BORROWER, AFTER CONSULTING OR HAVING HAD THE
OPPORTUNITY TO CONSULT WITH COUNSEL, EACH KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE IRREVOCABLY THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY
LEGAL PROCEEDING BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT, THE NOTE, THE COLLATERAL OR ANY OTHER AGREEMENT EXECUTED OR
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION WITH THIS AGREEMENT, OR ANY COURSE OF
CONDUCT OR COURSE OF DEALING IN WHICH THE BANK AND THE BORROWER ARE ADVERSE
PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE BANK GRANTING ANY
FINANCIAL ACCOMMODATION TO THE BORROWER.
(l) TO INDUCE THE BANK TO MAKE THE LOAN, THE BORROWER IRREVOCABLY
AGREES THAT ALL ACTIONS ARISING DIRECTLY OR INDIRECTLY AS A RESULT OR
CONSEQUENCE OF THIS AGREEMENT, THE NOTE, THE PLEDGE AGREEMENTS OR ANY OTHER
AGREEMENT WITH THE BANK SHALL BE INSTITUTED AND LITIGATED ONLY IN COURTS HAVING
THEIR SITUS IN CHICAGO, ILLINOIS. THE BORROWER HEREBY CONSENTS TO THE EXCLUSIVE
JURISDICTION AND VENUE OF ANY STATE OR FEDERAL COURT HAVING ITS SITUS IN
CHICAGO, ILLINOIS AND WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS. THE
BORROWER HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND CONSENTS THAT
ALL SUCH SERVICE OF PROCESS MAY BE MADE BY CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, DIRECTED TO THE BORROWER AS SET FORTH HEREIN IN THE MANNER PROVIDED
BY APPLICABLE STATUTE, LAW, RULE OF COURT OR OTHERWISE.
(m) The Borrower will pay all reasonable costs and expenses
(including, without limitation, reasonable attorneys' fees) in connection with
the preparation, negotiation, documentation, execution, delivery,
administration, amendment, modification, collection and enforcement of this
Agreement, the Note, the Pledge Agreements and the other instruments and
documents to be delivered hereunder. In addition, the Borrower shall pay, and
save Bank harmless from any liability for, any and all stamp and other taxes
determined to be payable in connection with the execution and delivery of this
Agreement, the borrowings hereunder, or the Note and the other instruments and
documents to be delivered hereunder, and agrees to save the Bank harmless from
and against any and all liabilities with respect to or resulting from any delay
in paying or omitting to pay such taxes. The foregoing obligations shall survive
any termination of this Agreement, the Note or either Pledge Agreement. Any of
the foregoing amounts incurred by Bank
16
and not paid by the Borrower upon demand shall bear interest from the date
incurred at the Interest Rate plus two percent (2%) per annum and shall be
deemed part of the indebtedness hereunder.
(n) Any accounting term not specifically defined herein shall be
construed in accordance with generally accepted accounting principles and all
financial data submitted pursuant to this Agreement shall be prepared in
accordance with such principles.
(o) The Bank reserves the right to sell participations in this Loan or
otherwise assign, transfer or hypothecate all or any part of this Loan.
(p) All covenants, agreements, warranties and representations of the
Borrower herein shall be deemed to have been made jointly and severally by the
Borrower and the Subsidiaries.
(q) The Borrower agrees to do such further acts and things and to
execute and deliver to Bank such additional assignments, agreements, powers and
instruments as Bank may reasonably require or deem advisable to carry into
effect the purpose of this Agreement, the Note, the Pledge Agreements or any
agreement or instrument in connection herewith, or to better assure and confirm
unto the Bank its rights, powers and remedies hereunder or under such other loan
documents.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
GOLD BANC CORPORATION, INC.
By ___________________________
Its: ___________________________
LASALLE NATIONAL BANK
By: __________________________
Its: __________________________
17
EXHIBIT A
PROMISSORY NOTE
$15,000,000 Dated as of December 1, 1998
Due: April 1, 2000
FOR VALUE RECEIVED, GOLD BANC CORPORATION, INC., a Kansas corporation (the
"Borrower"), hereby promises to pay to the order of LASALLE NATIONAL BANK, a
national banking association (the "Bank"), the principal sum of FIFTEEN MILLION
and 00/100 DOLLARS ($15,000,000), together with interest computed on the actual
number of days elapsed and calculated on the basis of a 360 day year, on any and
all principal amounts remaining unpaid hereunder from the date of borrowing
until payment. Interest shall be calculated at the rate or rates of interest set
forth in the Loan Agreement dated April 1, 1998 between the Borrower and the
Bank and amended and restated as of December 1, 1998 (as the same is further
amended from time to time, the "Loan Agreement"). Interest shall be payable
quarterly, commencing on January 1, 1999 and continuing on the first day of each
quarter thereafter until all amounts outstanding hereunder are paid in full. A
final payment all of outstanding principal and interest shall be due and payable
on April 1, 2000.
Prepayments of Prime Rate Loans are permitted without penalty at any time.
Any prepayments of LIBOR Loans shall be subject to Section 3(a) of the Loan
Agreement.
Any amount of interest or principal hereof which is not paid when due,
whether at stated maturity, by acceleration or otherwise, shall bear interest
payable on demand at an interest rate per annum which is two percent (2%) above
the applicable interest rate on this Note.
All payments made hereunder shall be applied first to interest then due on
the unpaid principal balance of this Note and then to principal. All payments of
principal and interest shall be payable in lawful money of the United States of
America.
Principal and interest shall be paid to the Bank at its office at 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such other place as the holder of
this Note may designate in writing to the Borrower.
This Note evidences indebtedness incurred under the Loan Agreement, the
terms and conditions of which are incorporated herein by this reference. The
holder of this Note is entitled to all of the benefits provided in the Loan
Agreement and the Pledge Agreements. Reference is hereby made to the Loan
Agreement for a statement of the terms and conditions under which this Note or
any payment hereon may be accelerated. Any capitalized terms used herein and not
otherwise defined herein shall have the meanings attributed to them in the Loan
Agreement.
If the Borrower fails to pay all or any part of the principal hereunder
when the same shall become due and payable, fails to pay an installment of
interest hereunder when the same shall become due and payable, or fails to cure
any event of default within the time, if any, permitted
18
under the Loan Agreement, then this Note shall become immediately due and
payable in full, without notice, demand, presentment, protest or notice of
dishonor, all of which are hereby expressly waived by the Borrower. Any
indebtedness due to the Borrower from the holder hereof may be set off and
applied against this Note, whether due or not. The Borrower also agrees to pay
all costs of collection, including court costs and reasonable attorneys' fees
incurred by the Bank.
This Note shall be governed by the laws of the State of Illinois.
GOLD BANC CORPORATION, INC.
By: _________________________
Its: _________________________
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