EXHIBIT 10.43
SEVENTH AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
THIS SEVENTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT (this
"Amendment"), dated as of July 1, 2002, is between GOLD BANC CORPORATION, INC. a
Kansas corporation (the "Borrower"), and LASALLE BANK NATIONAL ASSOCIATION
(formerly known as LaSalle National Bank), a national banking association (the
"Bank").
R E C I T A L S:
A. The Borrower and the Bank entered into an Amended and Restated Loan
Agreement dated December 1, 1998, as amended by a First Amendment dated April
26, 1999, a Second Amendment dated May 1, 2000, a Third Amendment dated July 1,
2000, a Fourth Amendment dated January 23, 2001, a Fifth Amendment dated July 1,
2001 and a Sixth Amendment dated September 28, 2001 (the "Agreement").
B. The Borrower and the Bank have agreed to amend the Agreement
pursuant to the terms and conditions hereof.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS. All capitalized terms used herein without definition shall
have the meaning set forth in the Agreement.
2. AMENDMENTS TO THE AGREEMENT.
2.1 Amendment to Section 1. Section 1 of the Agreement is hereby
amended and restated in its entirety as follows:
"Subject to the terms and conditions set forth in this
Agreement, the Bank agrees to extend a loan (the "Loan") to the
Borrower in the maximum principal amount of $25,000,000, evidenced
by a revolving note (the "Note") and secured by 100% of the shares
of the capital stock of Gold Bank, a Kansas state bank, pursuant to
that Amended and Restated Third Party Pledge Agreement dated as of
July 1, 2002 executed by GBC Kansas, Inc., as amended from time to
time, for the benefit of the Bank."
2.2 Amendment to Section 3(a). Section 3(a) of the Agreement is hereby
amended and restated in its entirety as follows:
"Interest on all amounts outstanding under the Note,
whether Prime Rate Loans or LIBOR Loans, shall be payable quarterly
in arrears. 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 July 1, 2003. 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 125 basis points, or (b) the Prime Rate
(whichever rate is so selected, the `Interest Rate'), provided
that the Interest Rate shall, at all time, equal or exceed
3.5% per annum."
2.3. Replacement of Exhibit A-1. Exhibit A-1 attached to and made a
part of the Agreement is hereby deleted in its entirety and Exhibit A attached
hereto is hereby substituted therefor.
3. WARRANTIES. To induce the Bank to enter into this Amendment, the
Borrower warrants that:
3.1 Authorization. The Borrower is duly authorized to execute and
deliver this Amendment and is and will continue to be duly authorized to borrow
monies under the Agreement, as amended hereby, and to perform its obligations
under the Agreement, as amended hereby.
3.2 No Default. As of the date hereof, no Default under Section 10
of the Agreement, as amended by this Amendment, or event or condition which,
with the giving of notice or the passage of time, shall constitute an Event of
Default, has occurred or is continuing.
3.3 Warranties. As of the date hereof, the representations and
warranties in Section 6 of the Agreement are true and correct as though made on
such date, except for such changes as are specifically permitted under the Loan
Agreement.
4. CONDITIONS PRECEDENT. This Amendment shall become effective as of the
date above first written after receipt by Bank of the following:
(a) this Amendment duly executed by the Borrower;
(b) Replacement Revolving Note in the form of Exhibit A
attached hereto, duly executed by the Borrower;
(c) Amended and Restated Third Party Pledge Agreement in the
form of Exhibit B attached hereto, duly executed by GBC Kansas, Inc.;
and
(d) such other documents as the Bank reasonably may request.
5. GENERAL.
5.1 Law. This Amendment shall be construed in accordance with and
governed by the laws of the State of Illinois.
5.2 Successors. This Amendment shall be binding upon the Borrower
and the Bank and their respective successors and assigns, and shall inure to the
benefit of the Borrower and the Bank and the successors and assigns of the Bank.
5.3 Confirmation of Loan Agreement. Except as amended hereby, the
Loan Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed at Chicago, Illinois by their respective officers duly authorized as of
the date first above written.
LASALLE BANK NATIONAL ASSOCIATION GOLD BANC CORPORATION, INC.
By: _______________________ By: ________________________
Title: ____________________ Title: _____________________
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EXHIBIT A
REPLACEMENT REVOLVING NOTE
Dated as of July 1, 2002
Amount: $25,000,000 Due: July 1, 0000
Xx July 1, 2003 (the "Maturity Date"), GOLD BANC CORPORATION, INC., a
Kansas corporation (the "Undersigned"), whose address is 00000 Xxxx Xxxxxx,
Xxxxxxx, Xxxxxx 00000, for value received, promises to pay to the order of
LASALLE BANK NATIONAL ASSOCIATION (formerly known as LaSalle National Bank), a
national banking association (the "Bank"), whose address is 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, the lesser of: the principal sum of TWENTY FIVE
MILLION and 00/100 DOLLARS ($25,000,000), or the aggregate unpaid principal
amount of the loans made available by the Bank to the Undersigned pursuant to
the Loan Agreement hereinafter defined, together with interest on any and all
principal amounts outstanding hereunder from time to time from the date hereof
until maturity. The Undersigned may borrow, repay (except as provided herein)
without penalty and reborrow under this Note, from the date hereof until but
excluding the Maturity Date.
Interest shall be computed at the rates of interest and shall be
payable at the times set forth in that certain Amended and Restated Loan
Agreement dated as of December 1, 1998 between the Undersigned and the Bank (as
amended from time to time, the "Loan Agreement").
The Undersigned hereby authorizes the Bank to charge any account of the
Undersigned for all sums due hereunder, following a default hereunder. Principal
payments submitted in funds not available until collected shall continue to bear
interest until collected. If payment hereunder becomes due and payable on a
Saturday, Sunday or legal holiday under the laws of the United States or the
State of Illinois, the due date thereof shall be extended to the next succeeding
business day, and interest shall be payable thereon at the rate specified during
such extension.
All advances and repayments hereunder shall be evidenced by entries on
the books and records of Bank which shall be presumptive evidence of the
principal amount and interest owing and unpaid on this Note, or any renewal or
extension hereof. The failure to so record any such amount or any error so
recording any such amount shall not, however, limit or otherwise affect the
obligations of the Undersigned hereunder to repay the principal amount of the
liabilities together with all interest accruing thereon.
This Note evidences indebtedness incurred under the Loan Agreement to which
reference is hereby made for a statement of the terms and conditions under which
the due date of the Note or any payment thereon may be accelerated. The holder
of this Note is entitled to all of the benefits and security provided for in the
Loan Agreement.
The loan evidenced hereby has been made and this Note has been
delivered at the Bank's main office and shall be governed and construed in
accordance with the laws of the State of Illinois, in which state it shall be
performed, and shall be binding upon the Undersigned and its successors and
assigns. Wherever possible, each provision of this Note shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Note shall be prohibited by or be invalid under such law, such
provision shall be severable, and be deemed ineffective to the extent of such
prohibition or invalidity without invalidating the remaining provisions of this
Note.
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This Note is a replacement and substitute for, but not a repayment of,
that certain Replacement Revolving Note in the principal amount of $25,000,000,
dated September 28, 2001, made by the Undersigned payable to the order of the
Bank, and is not and shall not be deemed a novation therefor.
IN WITNESS WHEREOF the Undersigned has executed this Replacement
Revolving Note as of the date above set forth.
GOLD BANC CORPORATION, INC.
By: ________________________
Its: ________________________
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EXHIBIT B
AMENDED AND RESTATED
THIRD PARTY PLEDGE AGREEMENT
This AMENDED AND RESTATED THIRD PARTY PLEDGE AGREEMENT is entered into
as of June 1, 2002 (the "Pledge Agreement") between GBC KANSAS, INC. (f/k/a Gold
Banc Acquisition Corporation II, Inc.) (the "Assignor") and LASALLE BANK
NATIONAL, a national banking association (the "Bank"), whose address is 000
Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
R E C I T A L S:
A. In 1998 - 1999, the Assignor and Bank entered into one or more
pledge agreements pursuant to which the Assignor granted to the Bank a security
interest in 100% of the shares of the capital stock of the "Issuer" (hereinafter
defined) or a predecessor thereof (collectively, as amended from time to time,
the "Original Pledge Agreement").
B. The Assignor and the Bank have agreed to amend and restate the
Original Pledge Agreement pursuant to the terms hereof.
NOW, THEREFORE, for and in consideration of the foregoing premises,
which are hereby incorporated herein as true, and the mutual promises and
agreements contained herein, the Assignor and the Bank hereby agree as follows:
A G R E E M E N T S:
1. Grant of Security Interest. To secure the "Obligations" defined in
Section 2, the Assignor hereby assigns, pledges and grants to the Bank, as a
secured party and a secured creditor under the Uniform Commercial Code of
Illinois, in effect from time to time (the "UCC"), a security interest in and to
the following (collectively, the "Collateral"):
(a) together with all voting rights thereto, 100% of the shares of
the common stock of Gold Bank - Kansas (the "Issuer"), together with
any stock of the Issuer delivered to the Bank pursuant to Section 4(b)
hereof or otherwise in the possession of the Bank and any and all other
shares of the capital stock of the Issuer hereafter owned or acquired
by the Assignor by reason of a stock dividend or a sale or other
transfer of the capital stock of the Issuer by the Assignor, as a
result of or in connection with any increase or reduction of capital,
reclassification, merger, consolidation, sale of assets, combination of
shares, stock split, spin-off or split-off, together with all
substitutions or replacements of any of the foregoing (together with
any other stock in the Issuer required to be pledged and delivered
hereunder being collectively referred to herein as the "Stock");
(b) any and all other certificates now or hereinafter in the
possession of the Assignor or the Bank evidencing the Stock, together
with any stock powers therefor;
(c) all payments, income and dividends (whether in cash, stock or
other property), liquidating dividends, stock warrants, stock options,
stock rights, subscription rights, securities of the Issuer or any
other distributions of any other property which the Assignor is now or
may hereafter be entitled to receive on account of the Stock
(collectively, the "Distributions");
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(d) any and all products and proceeds of any kind of any and
all of the foregoing Collateral now or hereafter owned or acquired by
the Assignor.
2. Obligations. The obligations secured by this Pledge Agreement
(the "Obligations") are the following:
(a) any and all obligations and liabilities of the Borrower to
the Bank whether direct or indirect, joint or several, absolute or
contingent, now or hereafter existing or arising, including without
limitation, the obligations of the Borrower under that certain Amended
and Restated Loan Agreement dated as of December 1, 1998, as amended
from time to time, and the documents and instruments, including without
limitation the promissory notes (the "Notes" and each a "Note"), from
time to time executed and delivered in connection therewith;
(b) any and all sums advanced by Bank in order to preserve the
Collateral or to perfect its security interest in the Collateral; and
(c) in the event of any proceeding to enforce the collection
of the Obligations, the reasonable expenses of retaking, holding,
preparing for sale or lease, selling or otherwise disposing of or
realizing on the Collateral, or of any exercise by Bank of its rights
in the event of a default under any agreement between the Borrower and
the Bank, together with reasonable attorneys' fees and court costs.
3. Representations and Warranties. The Assignor represents and
warrants to the Bank as follows:
(a) The Assignor is a corporation duly organized, existing and
in good standing with full and adequate power to carry on and conduct its
business as presently conducted, and is duly licensed or qualified in all
foreign jurisdictions wherein the nature of its activities require such
qualification or licensing.
(b) The Assignor has full right, power and authority, without
obtaining the consent of any other person, body or governmental agency, to enter
into and deliver this Pledge Agreement, to pledge, assign and grant a security
interest in and deliver the Collateral to the Bank, and to perform all of its
duties and obligations under this Pledge Agreement.
(c) All necessary and appropriate action has been taken on the
part of the Assignor to authorize the execution and delivery of this Pledge
Agreement. This Pledge Agreement is a valid and binding agreement and contract
of the Assignor in accordance with its terms. No basis presently exists for any
claim against the Bank under this Pledge Agreement or with respect to the
enforcement thereof, and this Pledge Agreement is subject to no defenses of any
kind.
(d) The execution, delivery and performance by the Assignor of
this Pledge Agreement and any other documents or instruments to be executed and
delivered by the Assignor in connection therewith is valid, binding and
enforceable against the Assignor, and shall not: (i) violate or contravene the
articles of incorporation and by laws of the Assignor, any existing law or
regulation or any order, writ, injunction or decree of any court or governmental
authority, or (ii) conflict with, be inconsistent with, or result in any breach
or default of any of the terms, covenants, conditions, or provisions of any
indenture, mortgage, deed of trust, instrument, document, agreement or contract
of any kind to which the Assignor is a party, or by which the Assignor or any of
its property or assets may be
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bound, and will not result in the creation or imposition of any security
interest in any properties pursuant to the provisions of any such mortgage,
indenture, contract or other agreement.
(e) To the best of the Assignor's knowledge, no condition,
circumstance, document, restriction, litigation or proceeding (or threatened
litigation or proceeding or basis therefor) exists which could adversely affect
the validity or priority of the liens and security interests granted the Bank
hereunder, which could materially adversely affect the ability of the Assignor
to perform the obligations under this Pledge Agreement, which would constitute a
default hereunder or thereunder or which would constitute such a default with
the giving of notice or lapse of time or both.
(f) None of the actions contemplated by this Pledge Agreement
are in violation of or restricted by any restrictive agreement, stop transfer
order, any legend appearing on the certificates evidencing any of the Collateral
consisting of Stock, the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, any state blue-sky or securities law, any
Canadian federal or provincial blue-sky or securities law, or any rule or
regulation issued under the foregoing acts and laws.
(g) The nature and transaction of the business and operations
of the Assignor, and the use of its properties and assets will not materially
violate or conflict with any applicable law, statute, ordinance, rule,
regulation or order of any kind including without limitation zoning, building,
environmental, land use, noise abatement, occupational health and safety or
other laws, any building permit or any condition, grant, easement, covenant,
condition or restriction, whether recorded or not.
(h) The Assignor is the beneficial and record owner of the
Collateral. All of the Collateral is free of all pledges, hypothecation,
mortgages, security interests, charges or other encumbrances, except those in
favor of the Bank.
(i) All of the Stock pledged hereunder has been and continues
to be duly and validly authorized and issued, fully paid and nonassessable
shares of the Issuer of such stock, and was not issued in violation of any
preemptive rights or any agreement by which the Issuer is bound.
(j) The Assignor has either previously or simultaneously
herewith delivered to the Bank the certificates for all of the Stock, together
with appropriate stock powers therefor executed in blank by the Assignor.
(k) Upon delivery of the duly executed Pledge Agreement and
any certificates evidencing all of the Stock, together with stock powers
therefor, the Bank shall have a valid first lien and security interest in all of
the Collateral hereunder, free and clear of all other, and subject to no
pledges, hypothecation, mortgages, security interest, charges or other
encumbrances, except in favor of the Bank.
4. Covenants. Until the Obligations have been satisfied and
discharged in full, the Assignor covenants to and agrees with the Bank as
follows:
(a) The Assignor shall not sell, assign, deliver, convey or
otherwise dispose of or transfer, or create, grant, incur or permit to exist any
pledge, mortgage, lien, security interest, charge or other encumbrance
whatsoever (except in favor of the Bank) in or with respect to the Collateral
hereunder or any interest therein.
(b) The Assignor shall deliver to the Bank all the
certificates for all the shares of the Issuer which the Assignor may own
directly or indirectly now or hereafter.
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(c) If, at any time following an Event of Default hereunder,
the Assignor receives or is entitled to receive into its possession any
payments, checks, instruments, chattel paper, dividends on account of or in
respect of the Collateral, or any other Collateral or proceeds thereof, such
Assignor shall accept such Collateral as the Bank's agent, in trust for the Bank
without commingling such Collateral with any other property of such Assignor and
shall, upon receipt, immediately deliver such Collateral to the Bank in the
exact form so received, with any necessary endorsement of the Assignor or stock
powers executed by the Assignor in blank.
(d) The Assignor will, at all times and from time to time,
defend the Collateral against any and all claims of any person or party whose
claims are adverse to the claims, rights or interest of the Bank, and the
Assignor shall indemnify and hold the Bank harmless from any and all such
adverse claims. The Assignor shall bear all risk of loss, damage and diminution
in value with respect to the Collateral, and the Assignor agrees that the Bank
shall have no liability or obligation to the Assignor with respect to, and is
hereby released by the Assignor from any of, the foregoing.
(e) At any time and from time to time after the occurrence of
an Event of Default (as hereinafter defined) or a default under any of the
Obligations which is continuing uncured and unwaived, the Assignor shall, upon
request of the Bank, execute and deliver to the Bank any proxies, stock powers
or assignments with respect to any of the Stock, or endorse any instruments or
chattel paper with respect to the Collateral as so requested.
(f) The Assignor will, from time to time on request of the
Bank, execute such financing statements and other documents and pay the cost of
filing or recording the same in all public offices as deemed necessary by the
Bank, and will take such other actions as the Bank may reasonably request to
establish and maintain a valid, perfected first priority security interest in
the Collateral in favor of the Bank (free of all other liens and claims
whatsoever) to secure payment of the Obligations, including, without limitation,
registering any Stock pledged hereunder with the Issuer of the Stock in the
event such Stock is at any time uncertificated.
5. Events of Default. The Assignor shall be in default under this
Pledge Agreement upon the occurrence of any one or more of the following events
or conditions (an "Event of Default"):
(a) nonpayment of any of the Obligations following any
curative period;
(b) the Assignor shall default in the performance or fail to
perform any promise, covenant or agreement to be performed by the
Assignor hereunder or under any other agreement now existing or
hereafter entered into between the Assignor and the Bank and, if
capable of being cured, such failure to perform or default in
performance shall continue for ten (10) days after the Assignor
receives notice or actual knowledge from any source of such failure to
perform or default in performance, or the Borrower shall default in the
performance or fail to perform any promise, covenant or agreement to be
performed by the Borrower under any other agreement now existing or
hereafter entered into between the Borrower and the Bank and, if
capable of being cured, such failure to perform or default in
performance continues for ten (10) days after the Borrower receives
notice or actual knowledge from any source of such failure to perform
or default in performance;
(c) the Bank shall have possession of less than 100% of the
capital stock of the Issuer;
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(d) the Assignor shall own directly less than 100% of the
capital stock of the Issuer;
(e) any misrepresentation or breach of any warranty by the
Assignor in this Pledge Agreement, in connection with the Collateral or
in any other agreement entered into between the Assignor and the Bank,
or by the Borrower in the Note or in any other document or agreement
entered into between the Borrower and the Bank;
(f) the dissolution of the Assignor or the termination or
incapacity of the Borrower;
(g) the Assignor or the Borrower shall make any assignment for
the benefit of creditors, or there shall be commenced any bankruptcy,
receivership, insolvency, reorganization, dissolution or liquidation
proceedings by or against the Assignor or the Borrower;
(h) the entry of any judgment, levy, attachment, garnishment
or other process against the Assignor or the Borrower, or the creation
or filing of any lien or encumbrance upon the Collateral or the making
of any levy, judicial seizure, or attachment thereof or thereon;
(i) the failure of the Assignor to do any act necessary to
preserve and maintain the value and collectability of any of the
Collateral;
(j) there be any deterioration or impairment of any
Collateral, or any decline or depreciation in the value or market price
thereof (whether actual or reasonably anticipated), which causes the
Collateral, in the sole opinion of the Bank acting in good faith, to
become unsatisfactory as to value or character, or which causes the
Bank to reasonably believe that it is insecure and that the likelihood
for repayment of any of the Obligations is or will soon be impaired,
time being of the essence; or
(k) The Bank in good xxxxx xxxxx itself insecure.
6. Rights and Remedies of Bank. Upon the happening or occurrence
of an Event of Default hereunder which is continuing uncured and unwaived, and
at any time thereafter and from time to time, the Bank shall have all of the
rights and remedies of a secured party under the Uniform Commercial Code as
enacted in and then in effect in Illinois. In addition, the Bank shall also have
the following rights and remedies:
(a) Without further notice to the Assignor, the Bank shall
have the right and be entitled to notify the Issuer of any of the Stock to make
payment to the Bank and to receive all Distributions to be applied toward the
satisfaction of the Obligations and to exercise all voting, conversion,
exchange, subscription or other corporate rights, privileges or options
pertaining to such Stock.
(b) The Bank shall have the right, at its discretion, to
transfer to or register in the name of the Bank or any nominee of the Bank any
of the Collateral.
(c) Without demand, notice or advertisement, all of which are
hereby expressly waived to the extent permitted by applicable law, the Bank may
sell, pledge, transfer or otherwise dispose of, or enter into an agreement with
respect to the foregoing, or otherwise realize on the Collateral and any other
Collateral, or any part thereof, at any broker's board or on any exchange or at
public or private sale or sales, held at such place or places in the City of
Chicago, Illinois or otherwise, and at such
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time or times within ordinary business hours, for a purchase price or prices in
cash or, without assuming any credit risk or thereby discharging the Obligations
to the extent of said purchase price until paid in cash and reserving the right
to resell the Collateral upon the failure of said purchaser to so pay the
purchase price therefor, upon credit or future delivery, and upon such other
terms and conditions as the Bank deems satisfactory, and, if required by law, as
set forth in any applicable notice. The Bank shall not be obligated to make any
such sale pursuant to any such applicable notice required by law. The Bank may,
without notice or publication, adjourn any such sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for the
sale, and such sale maybe made at any time or place to which the same may be so
adjourned. The Bank, for its own account, may purchase any or all of the
Collateral at any public sale and, in lieu of payment of the purchase price
therefor, may set off or apply the purchase price against the Obligations. The
Bank is authorized, at any sale, if it deems it advisable so to do, to restrict
the prospective bidders or purchasers to financially reputable persons who will
represent and agree that they are purchasing for their own account, for
investment, and not with a view to the distribution or sale of any of the
Collateral. Upon any such sale, the Bank shall have the right to deliver,
assign, and transfer to the purchaser thereof, including the Bank, that portion
of the Collateral so sold. Each purchaser, including the Bank, at any sale shall
hold the property sold absolutely free from any claim or right of whatsoever
kind, including any equity or right of redemption of the Assignor, and the
Assignor hereby specifically waives and releases all rights of redemption, stay
or appraisal which it has or may have under any rule or law or statute now
existing or hereafter adopted. The Bank, however, instead of exercising the
power of disposition herein conferred upon it, may proceed by a suit or suits at
law or in equity to foreclose the pledge and sell the Collateral, or any portion
thereof, under a judgment or decree of a court or courts of competent
jurisdiction. After deducting from the proceeds of the foregoing sale or other
disposition of said Collateral, all expenses incurred by the Bank in connection
therewith (including reasonable attorneys' fees), the Bank shall apply such
proceeds towards the satisfaction of the Obligations and shall account to the
Assignor for any surplus of such proceeds.
(d) If at any time after the occurrence and during the
continuance of an Event of Default without cure or waiver, in the opinion of
counsel for the Bank, any proposed disposition of Collateral hereunder requires
registration, qualification, notification, or other action under or compliance
with any state blue sky or securities law or the Federal Securities Act of 1933,
as amended, or any rules or regulations thereunder (collectively, the
"Securities Laws"), the Assignor, at the request of the Bank, will as
expeditiously as possible use its best efforts to take such action or cause such
action to be taken, comply or cause compliance with such Securities Laws and
maintain such compliance or cause such compliance to be maintained for such
period as may be necessary to permit such disposition. The Assignor acknowledges
that a breach of the above covenant contained in this Section 6 may cause
irreparable injury to the Bank and that the Bank will have no adequate remedy at
law with respect to such breach, and consequently, the Assignor agrees that the
above covenant shall be specifically enforceable and the Assignor hereby waives,
to the extent such waiver is enforceable under law, and agrees not to assert any
defenses against an action for specific performance of such covenant. In
connection with the foregoing, the Assignor will (i) pay all expenses imposed on
or demanded of the Bank under the Securities Laws in connection with such
compliance, including the expense of furnishing to the Bank an adequate number
of copies of the prospectus contained in any such registration statement, (ii)
indemnify and hold the Bank harmless from and against any and all claims and
liabilities caused by any untrue statement of a material fact or omission to
state a material fact required to be stated in any registration statement,
offering circular or prospectus used in connection with such compliance, or
necessary to make the statements therein not misleading, and (iii) pay all
expenses (including reasonable attorneys' fees) incurred by the Bank in
specifically enforcing the above covenant.
The rights and remedies provided herein, in the Note and in any other agreements
between the Assignor and the Bank are cumulative and are in addition to and not
exclusive of the rights and remedies of a
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secured party under the Uniform Commercial Code in effect from time to time in
Illinois and any other rights or remedies provided by applicable law. The
Assignor hereby (i) names, constitutes and appoints the Bank as the Assignor's
proxy and attorney-in-fact in the Assignor's name, place and stead, (ii)
authorizes the Bank to take, at any time without the appropriate signature of
the Assignor, any action for and on behalf of the Assignor which is required of
the Assignor or permitted to be taken by the Bank hereunder, including, without
limitation, voting any and all of the Stock or other securities, as such proxy
may elect, for and in the name, place and stead of the Assignor, as to all
matters coming before shareholders, and (iii) acknowledges that the constitution
and appointment of such proxy and attorney-in-fact are coupled with an interest
and are irrevocable. The rights, powers and authority of said proxy and
attorney-in-fact shall remain in full force and effect, and shall not be
rescinded, revoked, terminated, amended or otherwise modified, until all
Obligations have been fully satisfied.
7. No Duty Concerning Collection on Collateral. The Bank shall not be
liable for its failure to give notice to the Assignor of a default under the
Note or under any other agreement between the Assignor and the Bank. The Bank
shall not be liable for its failure to use diligence to collect any amount
payable in respect to the Collateral, but shall be liable only to account to the
Assignor for what the Bank may actually collect or receive thereon.
8. Ascertaining Maturities, Calls, etc. Without limiting the
foregoing, it is specifically understood and agreed that the Bank shall have no
responsibility for ascertaining any maturities, calls, conversations, exchanges,
offers, tenders, or similar matters relating to any of the Collateral or for
informing the Assignor with respect to any of such matters (irrespective of
whether the Bank actually has, or may be deemed to have, knowledge thereof). The
foregoing provisions of this Section shall be fully applicable to all securities
or similar property held in pledge hereunder, irrespective of whether the Bank
may have exercised any right to have such securities or similar property
registered in its name or in the name of a nominee.
9. Care in Custody. The Bank shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral and in
protecting any rights with respect to the Collateral against prior parties, if
the Bank takes such action for that purpose as the Assignor shall request in
writing, but failure of the Bank to comply with any such request shall not of
itself by deemed a failure to exercise reasonable care, provided, however, that
in any event the Bank's responsibility for the safekeeping of the Collateral
shall not extend to matters beyond the control of the Bank, including, without
limitation, acts of God, war, insurrection, riot, governmental actions or acts
of any corporate or other depository.
10. Waiver of Defenses. No renewal or extension of the time of payment
of the Obligations; no release or surrender of, or failure to perfect or enforce
any security interest for the Obligations; no release of any person primarily or
secondarily liable on the Obligations (including any maker, endorser, or
guarantor); no delay in enforcement of payment of the Obligations; and no delay
or omission in exercising any right or power with respect of the Obligations or
any security agreement securing the Obligations shall affect the rights of the
Bank in the Collateral. Except as relates to notice specifically provided under
Section 5 hereof, the Assignor hereby waives presentment, protest, demand,
notice of dishonor or default, notice of any loans made, extensions granted, or
other action taken in reliance hereon and all demands and notices of any kind in
connection with the Obligations.
11. Waiver of Assignor's Subrogation Rights. In case of the dissolution
or insolvency (howsoever evidenced) of the Borrower or the Assignor, or in case
of any bankruptcy, reorganization, debt arrangement or other proceeding under
any bankruptcy or insolvency law, or any dissolution, liquidation or
receivership proceeding is instituted by or against the Borrower or the
Assignor, all
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Obligations then existing shall, without notice to anyone, immediately become
due or accrued and be payable, jointly and severally, from the Assignor. If
bankruptcy or reorganization proceedings at any time are instituted by or
against the Borrower under the United States Bankruptcy Code, the Assignor
hereby: (a) expressly and irrevocably waives, to the fullest extent possible, on
behalf of himself and his heirs and administrators (including any surety) and
any other person, any and all rights at law or in equity to subrogation, to
reimbursement, to exoneration, to contribution, to indemnification, to set off
or to any other rights that could accrue to a surety against a principal, to a
guarantor against a maker or obligor, to an accommodation party against the
party accommodated, to a holder or transferee against a maker, or to the holder
of a claim against any person, and which the Assignor may have or hereafter
acquire against any person in connection with or as a result of the Assignor's
execution, delivery and/or performance of this Pledge Agreement, or any other
documents to which the Assignor is a party or otherwise; (b) expressly and
irrevocably waives any "claim" (as such term is defined in the United States
Bankruptcy Code) of any kind against the Borrower, and further agrees that he
shall not have or assert any such rights against any person (including any
surety), either directly or as an attempted set off to any action commenced
against the Assignor by the Bank or any other person; and (c) acknowledges and
agrees that (i) this waiver is intended to benefit the Bank and shall not limit
or otherwise effect the Assignor's liability hereunder or the enforceability of
this Pledge Agreement, (ii) the Borrower and its successors and assigns are
intended third party beneficiaries of this waiver, and (iii) the agreements set
forth in this Section and the Bank's rights under this Section shall survive
payment in full of the Obligations.
12. Waiver by Bank. No course of dealing between the Assignor and the
Bank, nor any failure to exercise, nor any delay in exercising any right,
remedy, power or privilege of the Bank hereunder, under the Note or under any
other agreement entered into between the Assignor and the Bank, shall operate as
a waiver thereof. No waiver by the Bank of any Event of Default or any right or
remedy hereunder, under the Note or under any document or agreement shall
constitute a waiver of any other event of default, right or remedy of the Bank,
nor of the same event of default, right or remedy on a future occasion.
13. Governing Law; Severability. This Pledge Agreement has been made
and entered into in Illinois and shall be governed by and construed in
accordance with the laws of the State of Illinois. Wherever possible each
provision of this Pledge Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Pledge
Agreement shall be prohibited by or invalid under such law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Pledge Agreement.
14. Successors and Assigns. This Pledge Agreement and all rights and
liabilities hereunder and in and to any and all Collateral shall inure to the
benefit of the Bank and its successors and assigns, and shall be binding on the
Assignor, its successors and assigns.
15. Notice. Any notice of any sale, lease, other disposition, or other
intended action by the Bank shall be deemed reasonable if in writing, addressed
to the Assignor at the address set forth above, or any other address designated
in a written notice by the Assignor previously received by the Bank and
deposited, first class postage prepaid, in the United States mails ten (10) days
in advance of the intended disposition or other intended action, provided,
however, that the foregoing shall not preclude the fact that failure to give
such notice or notice by other means may be reasonable under the particular
circumstances involved.
16. Duration and Effect. This Pledge Agreement shall remain and
continue in full force and effect (notwithstanding, without limitation, the
death, incompetency or dissolution of the Assignor or the
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Borrower) from the date hereof until all of the Obligations have been fully and
completely paid, satisfied and discharged. Thereupon, this Pledge Agreement
shall terminate and the Bank shall release any Collateral still held by it which
has not been sold or otherwise disposed of in accordance with Section 6 hereof
and applied toward the satisfaction of the Obligations hereunder, and the Bank
shall deliver any such Collateral to the Assignor, together with any necessary
stock powers or assignment executed by the Bank in blank, at the Assignor's
expense. The Assignor acknowledges that this Pledge Agreement is and shall be
effective upon execution by the Assignor and delivery to and acceptance hereof
by the Bank and it shall not be necessary for the Bank to execute any acceptance
hereof or otherwise to signify or express its acceptance hereof to the Assignor.
IN WITNESS WHEREOF, the Assignor and the Bank have duly executed and
delivered this Amended and Restated Third Party Pledge Agreement as of the date
first above written.
ASSIGNOR:
GBC KANSAS, INC.
By:
Name:
Title:
BANK:
LASALLE BANK NATIONAL ASSOCIATION
By:
Name:
Title:
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