Guarantee Agreement





 Exhibit 4.11 

  

 

GUARANTEE AGREEMENT 


GOLD BANC CORPORATION, INC.

 Dated as of November 10, 2004

 

  











TABLE OF CONTENTS

	 	 	Page
	 	 	 
	ARTICLE I
	DEFINITIONS AND INTERPRETATION
	 	 	 
	SECTION 1.1.	Definitions and Interpretation	1
	 	 	 
	ARTICLE II
	POWERS, DUTIES AND RIGHTS OF THE GUARANTEE
      TRUSTEE
	 	 	 
	SECTION 2.1.	Powers and Duties of the Guarantee Trustee	4
	SECTION 2.2.	Certain Rights of the Guarantee Trustee	5
	SECTION 2.3.	Not Responsible for Recitals or Issuance of Guarantee	7
	SECTION 2.4.	Events of Default; Waiver	7
	SECTION 2.5.	Events of Default; Notice	8
	 	 	 
	ARTICLE III
	THE GUARANTEE TRUSTEE
	 	 	 
	SECTION 3.1.	The Guarantee Trustee; Eligibility	8
	SECTION 3.2.	Appointment, Removal and Resignation of the Guarantee
      Trustee	9
	 	 	 
	ARTICLE IV
	GUARANTEE
	 	 	 
	SECTION 4.1.	Guarantee	9
	SECTION 4.2.	Waiver of Notice and Demand	10
	SECTION 4.3.	Obligations Not Affected	10
	SECTION 4.4.	Rights of Holders	11
	SECTION 4.5.	Guarantee of Payment	11
	SECTION 4.6.	Subrogation	11
	SECTION 4.7.	Independent Obligations	12
	SECTION 4.8.	Enforcement	12



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 TABLE OF CONTENTS
(continued) 

		 	Page
		 	 
	 
	ARTICLE V
	LIMITATION OF TRANSACTIONS; SUBORDINATION
	 	 	 
	SECTION 5.1.	Limitation of Transactions	12
	SECTION 5.2.	Ranking	13
	 
	ARTICLE VI
	TERMINATION
	 	 	 
	SECTION 6.1.	Termination	13
	 
	ARTICLE VII
	INDEMNIFICATION
	 	 	 
	SECTION 7.1.	Exculpation	14
	SECTION 7.2.	Indemnification	14
	SECTION 7.3. 	Compensation; Reimbursement of Expenses	15
	 
	ARTICLE VIII
	MISCELLANEOUS
	 	 	 
	SECTION 8.1.	Successors and Assigns	16
	SECTION 8.2.	Amendments	16
	SECTION 8.3.	Notices	16
	SECTION 8.4.	Benefit	17
	SECTION 8.5.	Governing Law	17
	SECTION 8.6.	Counterparts	17



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 GUARANTEE AGREEMENT 

          This GUARANTEE AGREEMENT (the "Guarantee"), dated as of November 10, 2004, is executed and delivered by Gold Banc Corporation, Inc., incorporated in Kansas (the "Guarantor"), and JPMorgan Chase Bank, as trustee (the "Guarantee Trustee"), for the benefit of the Holders (as defined herein) from time to time of the Capital Securities (as defined herein) of Gold Banc Capital Trust V, a Delaware statutory trust (the "Issuer").

          WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the "Declaration"), dated as of November 10, 2004, among the trustees named therein of the Issuer, Gold Banc Corporation, Inc., as sponsor, and the Holders from time to time of undivided beneficial interests in the assets of the Issuer, the Issuer is issuing on the date hereof securities, having an aggregate liquidation amount of up to $38,000,000, designated the TP Securities (the "Capital Securities"); and

          WHEREAS, as incentive for the Holders to purchase the Capital Securities, the Guarantor desires irrevocably and unconditionally to agree, to the extent set forth in this Guarantee, to pay to the Holders of Capital Securities the Guarantee Payments (as defined herein) and to make certain other payments on the terms and conditions set forth herein.

          NOW, THEREFORE, in consideration of the purchase by each Holder of the Capital Securities, which purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee for the benefit of the Holders.

 ARTICLE I
DEFINITIONS AND INTERPRETATION

SECTION 1.1. Definitions
  and Interpretation.

          In
  this Guarantee, unless the context otherwise requires: 

          (a)
  capitalized terms used in this Guarantee but not defined in the preamble above
  have the respective meanings assigned to them in this Section 1.1;

          (b)
  a term defined anywhere
  in this Guarantee has the same meaning throughout;

          (c)
  all references to "the Guarantee" or "this Guarantee" are to this Guarantee
  as modified, supplemented or amended from time to time;

          (d)
  all references in this Guarantee to Articles and Sections are to Articles and
  Sections of this Guarantee, unless otherwise specified;

          (e)
  terms defined in the
  Declaration as of the date of execution of this Guarantee have the same meanings
  when used in this Guarantee, unless otherwise defined in this Guarantee or unless
  the context otherwise requires; and

           (f)
  a reference to the singular includes the plural and vice versa. 










          "Beneficiaries" means any Person to whom the Issuer is or hereafter becomes indebted or liable.

          "Corporate Trust Office" means the office of the Guarantee Trustee at which the corporate trust business of the Guarantee Trustee shall, at any particular time, be principally administered.

           "Covered
  Person" means any Holder of Capital Securities. 

          "Debentures" means the junior subordinated debentures of Gold Banc Corporation, Inc., designated the Junior Subordinated Debt Securities due 2034, held by the Institutional Trustee (as defined in the Declaration) of the Issuer.

           "Event
  of Default" has the meaning set forth in Section 2.4. 

          "Guarantee Payments" means the following payments or distributions, without duplication, with respect to the Capital Securities, to the extent not paid or made by the Issuer: (i) any accrued and unpaid Distributions (as defined in the Declaration) which are required to be paid on such Capital Securities to the extent the Issuer has funds available in the Property Account (as defined in the Declaration) therefor at such time, (ii) the Redemption Price (as defined in the Indenture) to the extent the Issuer has funds available in the Property Account therefor at such time, with respect to any Capital Securities called for redemption by the Issuer, (iii) the Special Redemption Price (as defined in the Indenture) to the extent the Issuer has funds available in the Property Account therefor at such time, with respect to Capital Securities called for redemption upon the occurrence of a Special Event (as defined
in the Indenture), and (iv) upon a voluntary or involuntary liquidation, dissolution, winding-up or termination of the Issuer (other than in connection with the distribution of Debentures to the Holders of the Capital Securities in exchange therefor as provided in the Declaration), the lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid Distributions on the Capital Securities to the date of payment, to the extent the Issuer has funds available in the Property Account therefor at such time, and (b) the amount of assets of the Issuer remaining available for distribution to Holders in liquidation of the Issuer after satisfaction of liabilities to creditors of the Issuer as required by applicable law (in either case, the "Liquidation Distribution").

          "Guarantee Trustee" means JPMorgan Chase Bank, until a Successor Guarantee Trustee has been appointed and has accepted such appointment pursuant to the terms of this Guarantee and thereafter means each such Successor Guarantee Trustee.

          "Holder" means any holder, as registered on the books and records of the Issuer, of any Capital Securities; provided, however, that, in determining whether the holders of the requisite percentage of Capital Securities have given any request, notice, consent or waiver hereunder, "Holder" shall not include the Guarantor or any Affiliate of the Guarantor.

          "Indemnified Person" means the Guarantee Trustee (including in its individual capacity), any Affiliate of the Guarantee Trustee, or any officers, directors, shareholders, members, partners, employees, representatives, nominees, custodians or agents of the Guarantee Trustee.

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          "Indenture" means the Indenture, dated as of November 10, 2004, between the Guarantor and JPMorgan Chase Bank, not in its individual capacity but solely as trustee, and any indenture supplemental thereto pursuant to which the Debentures are to be issued to the Institutional Trustee of the Issuer.

          "Liquidation Distribution" has the meaning set forth in the definition of "Guarantee Payments" herein.

          "Majority in liquidation amount of the Capital Securities" means Holder(s) of outstanding Capital Securities, voting together as a class, but separately from the holders of Common Securities, of more than 50% of the aggregate liquidation amount (including the stated amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid Distributions to, but excluding, the date upon which the voting percentages are determined) of all Capital Securities then outstanding.

          "Obligations" means any costs, expenses or liabilities (but not including liabilities related to taxes) of the Issuer, other than obligations of the Issuer to pay to holders of any Trust Securities the amounts due such holders pursuant to the terms of the Trust Securities.

          "Officer's Certificate" means, with respect to any Person, a certificate signed by one Authorized Officer of such Person. Any Officer's Certificate delivered with respect to compliance with a condition or covenant provided for in this Guarantee shall include:


            (a)
    a statement that
    each officer signing the Officer's Certificate has read the covenant or condition
    and the definitions relating thereto;

            (b)
    a brief statement of the nature and scope of the examination or investigation
    undertaken by each officer in rendering the Officer's Certificate;

            (c)
    a statement that each such officer has made such examination or investigation
    as, in such officer's opinion, is necessary to enable such officer to express
    an informed opinion as to whether or not such covenant or condition has been
    complied with; and

            (d)
    a statement as to
    whether, in the opinion of each such officer, such condition or covenant has
    been complied with.



          "Person" means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature.

          "Responsible Officer" means, with respect to the Guarantee Trustee, any officer within the Corporate Trust Office of the Guarantee Trustee with direct responsibility for the administration of any matters relating to this Guarantee, including any vice president, any assistant vice president, any secretary, any assistant secretary, the treasurer, any assistant treasurer, any trust officer or other officer of the Corporate Trust Office of the Guarantee Trustee customarily performing functions similar to those performed by any of the above designated

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officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of that officer's knowledge of and familiarity with the particular subject.

          "Successor Guarantee Trustee" means a successor Guarantee Trustee possessing the qualifications to act as Guarantee Trustee under Section 3.1.

           "Trust
  Securities" means the Common Securities and the Capital Securities. 

 ARTICLE II
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE 

 SECTION 2.1. Powers
  and Duties of the Guarantee Trustee.


            (a)
    This Guarantee shall
    be held by the Guarantee Trustee for the benefit of the Holders of the Capital
    Securities, and the Guarantee Trustee shall not transfer this Guarantee to
    any Person except a Holder of Capital Securities exercising his or her rights
    pursuant to Section 4.4(b) or to a Successor Guarantee Trustee on acceptance
    by such Successor Guarantee Trustee of its appointment to act as Successor
    Guarantee Trustee. The right, title and interest of the Guarantee Trustee
    shall automatically vest in any Successor Guarantee Trustee, and such vesting
    and cessation of title shall be effective whether or not conveyancing documents
    have been executed and delivered pursuant to the appointment of such Successor
    Guarantee Trustee.

            (b)
    If an Event of Default actually known to a Responsible Officer of the Guarantee
    Trustee has occurred and is continuing, the Guarantee Trustee shall enforce
    this Guarantee for the benefit of the Holders of the Capital Securities.

            (c)
    The Guarantee Trustee, before the occurrence of any Event of Default and after
    the curing or waiving of all Events of Default that may have occurred, shall
    undertake to perform only such duties as are specifically set forth in this
    Guarantee, and no implied covenants shall be read into this Guarantee against
    the Guarantee Trustee. In case an Event of Default has occurred (that has
    not been cured or waived pursuant to Section 2.4(b)) and is actually known
    to a Responsible Officer of the Guarantee Trustee, the Guarantee Trustee shall
    exercise such of the rights and powers vested in it by this Guarantee, and
    use the same degree of care and skill in its exercise thereof, as a prudent
    person would exercise or use under the circumstances in the conduct of his
    or her own affairs.

            (d)
    No provision of this Guarantee shall be construed to relieve the Guarantee
    Trustee from liability for its own negligent action, its own negligent failure
    to act, or its own willful misconduct, except that:




            (i)
    prior to the occurrence of any Event of Default and after the curing or waiving
    of all Events of Default that may have occurred:




            (A)
    the duties and obligations of the Guarantee Trustee shall be determined solely
    by the express provisions of this Guarantee, and the




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Guarantee Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Guarantee, and no implied covenants or obligations shall be read into this Guarantee against the Guarantee Trustee; and

            (B)
    in the absence of
    bad faith on the part of the Guarantee Trustee, the Guarantee Trustee may
    conclusively rely, as to the truth of the statements and the correctness of
    the opinions expressed therein, upon any certificates or opinions furnished
    to the Guarantee Trustee and conforming to the requirements of this Guarantee;
    but in the case of any such certificates or opinions furnished to the Guarantee
    Trustee, the Guarantee Trustee shall be under a duty to examine the same to
    determine whether or not on their face they conform to the requirements of
    this Guarantee;




            (ii)
    the Guarantee Trustee
    shall not be liable for any error of judgment made in good faith by a Responsible
    Officer of the Guarantee Trustee, unless it shall be proved that such Responsible
    Officer of the Guarantee Trustee or the Guarantee Trustee was negligent in
    ascertaining the pertinent facts upon which such judgment was made;

            (iii)
    the Guarantee Trustee shall not be liable with respect to any action taken
    or omitted to be taken by it in good faith in accordance with the written
    direction of the Holders of not less than a Majority in liquidation amount
    of the Capital Securities relating to the time, method and place of conducting
    any proceeding for any remedy available to the Guarantee Trustee, or exercising
    any trust or power conferred upon the Guarantee Trustee under this Guarantee;
    and

            (iv)
    no provision of this
    Guarantee shall require the Guarantee Trustee to expend or risk its own funds
    or otherwise incur personal financial liability in the performance of any
    of its duties or in the exercise of any of its rights or powers, if the Guarantee
    Trustee shall have reasonable grounds for believing that the repayment of
    such funds is not reasonably assured to it under the terms of this Guarantee,
    or security and indemnity, reasonably satisfactory to the Guarantee Trustee,
    against such risk or liability is not reasonably assured to it.



 SECTION 2.2. Certain
  Rights of the Guarantee Trustee.


             (a)
    Subject to the provisions of Section 2.1: 




            (i)
    The Guarantee Trustee may conclusively rely, and shall be fully protected
    in acting or refraining from acting upon, any resolution, certificate, statement,
    instrument, opinion, report, notice, request, direction, consent, order, bond,
    debenture, note, other evidence of indebtedness or other paper or document
    believed by it to be genuine and to have been signed, sent or presented by
    the proper party or parties.

            (ii)
    Any direction or
    act of the Guarantor contemplated by this Guarantee shall be sufficiently
    evidenced by an Officer's Certificate.




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            (iii)
    Whenever, in the administration of this Guarantee, the Guarantee Trustee shall
    deem it desirable that a matter be proved or established before taking, suffering
    or omitting any action hereunder, the Guarantee Trustee (unless other evidence
    is herein specifically prescribed) may, in the absence of bad faith on its
    part, request and conclusively rely upon an Officer's Certificate of the Guarantor
    which, upon receipt of such request, shall be promptly delivered by the Guarantor.

            (iv)
    The Guarantee Trustee
    shall have no duty to see to any recording, filing or registration of any
    instrument or other writing (or any rerecording, refiling or reregistration
    thereof).

            (v)
    The Guarantee Trustee may consult with counsel of its selection, and the advice
    or opinion of such counsel with respect to legal matters shall be full and
    complete authorization and protection in respect of any action taken, suffered
    or omitted by it hereunder in good faith and in accordance with such advice
    or opinion. Such counsel may be counsel to the Guarantor or any of its Affiliates
    and may include any of its employees. The Guarantee Trustee shall have the
    right at any time to seek instructions concerning the administration of this
    Guarantee from any court of competent jurisdiction.

            (vi)
    The Guarantee Trustee shall be under no obligation to exercise any of the
    rights or powers vested in it by this Guarantee at the request or direction
    of any Holder, unless such Holder shall have provided to the Guarantee Trustee
    such security and indemnity, reasonably satisfactory to the Guarantee Trustee,
    against the costs, expenses (including attorneys' fees and expenses and the
    expenses of the Guarantee Trustee's agents, nominees or custodians) and liabilities
    that might be incurred by it in complying with such request or direction,
    including such reasonable advances as may be requested by the Guarantee Trustee;
    provided,
    however, that nothing contained in this Section
    2.2(a)(vi) shall be taken to relieve the Guarantee Trustee, upon the occurrence
    of an Event of Default, of its obligation to exercise the rights and powers
    vested in it by this Guarantee.

            (vii)
    The Guarantee Trustee shall not be bound to make any investigation into the
    facts or matters stated in any resolution, certificate, statement, instrument,
    opinion, report, notice, request, direction, consent, order, bond, debenture,
    note, other evidence of indebtedness or other paper or document, but the Guarantee
    Trustee, in its discretion, may make such further inquiry or investigation
    into such facts or matters as it may see fit.

            (viii)
    The Guarantee Trustee may execute any of the trusts or powers hereunder or
    perform any duties hereunder either directly or by or through agents, nominees,
    custodians or attorneys, and the Guarantee Trustee shall not be responsible
    for any misconduct or negligence on the part of any agent or attorney appointed
    with due care by it hereunder.




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            (ix)
    Any action taken by the Guarantee Trustee or its agents hereunder shall bind
    the Holders of the Capital Securities, and the signature of the Guarantee
    Trustee or its agents alone shall be sufficient and effective to perform any
    such action. No third party shall be required to inquire as to the authority
    of the Guarantee Trustee to so act or as to its compliance with any of the
    terms and provisions of this Guarantee, both of which shall be conclusively
    evidenced by the Guarantee Trustee's or its agent's taking such action.

            (x)
    Whenever in the administration of this Guarantee the Guarantee Trustee shall
    deem it desirable to receive instructions with respect to enforcing any remedy
    or right or taking any other action hereunder, the Guarantee Trustee (A) may
    request instructions from the Holders of a Majority in liquidation amount
    of the Capital Securities, (B) may refrain from enforcing such remedy or right
    or taking such other action until such instructions are received and (C) shall
    be protected in conclusively relying on or acting in accordance with such
    instructions.

            (xi)
    The Guarantee Trustee shall not be liable for any action taken, suffered,
    or omitted to be taken by it in good faith and reasonably believed by it to
    be authorized or within the discretion or rights or powers conferred upon
    it by this Guarantee.




            (b)
    No provision of this Guarantee shall be deemed to impose any duty or obligation
    on the Guarantee Trustee to perform any act or acts or exercise any right,
    power, duty or obligation conferred or imposed on it, in any jurisdiction
    in which it shall be illegal or in which the Guarantee Trustee shall be unqualified
    or incompetent in accordance with applicable law to perform any such act or
    acts or to exercise any such right, power, duty or obligation. No permissive
    power or authority available to the Guarantee Trustee shall be construed to
    be a duty.



 SECTION 2.3. Not Responsible
  for Recitals or Issuance of Guarantee.

          The recitals contained in this Guarantee shall be taken as the statements of the Guarantor, and the Guarantee Trustee does not assume any responsibility for their correctness. The Guarantee Trustee makes no representation as to the validity or sufficiency of this Guarantee.

 SECTION 2.4. Events
  of Default; Waiver.


            (a)
    An Event of Default under this Guarantee will occur upon the failure of the
    Guarantor to perform any of its payment or other obligations hereunder.

            (b)
    The Holders of a
    Majority in liquidation amount of the Capital Securities may, voting or consenting
    as a class, on behalf of the Holders of all of the Capital Securities, waive
    any past Event of Default and its consequences. Upon such waiver, any such
    Event of Default shall cease to exist, and shall be deemed to have been cured,
    for every purpose of this Guarantee, but no such waiver shall extend to any
    subsequent or other default or Event of Default or impair any right consequent
    thereon.




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 SECTION 2.5. Events of Default;
  Notice.


            (a)
    The Guarantee Trustee shall, within 90 days after the occurrence of an Event
    of Default, transmit by mail, first class postage prepaid, to the Holders
    of the Capital Securities, notices of all Events of Default actually known
    to a Responsible Officer of the Guarantee Trustee, unless such defaults have
    been cured before the giving of such notice;
    provided, however,
    that the Guarantee Trustee shall be protected in withholding such notice if
    and so long as a Responsible Officer of the Guarantee Trustee in good faith
    determines that the withholding of such notice is in the interests of the
    Holders of the Capital Securities.

            (b)
    The Guarantee Trustee shall not be charged with knowledge of any Event of
    Default unless the Guarantee Trustee shall have received written notice thereof
    from the Guarantor or a Holder of the Capital Securities, or a Responsible
    Officer of the Guarantee Trustee charged with the administration of this Guarantee
    shall have actual knowledge thereof.



 ARTICLE III
THE GUARANTEE TRUSTEE 

 SECTION 3.1. The Guarantee
  Trustee; Eligibility.


             (a)
    There shall at all times be a Guarantee Trustee which shall:




          (i)
  not be an Affiliate of the Guarantor; and

             (ii)
    be a corporation or national association organized and doing business under
    the laws of the United States of America or any state or territory thereof
    or of the District of Columbia, or Person authorized under such laws to exercise
    corporate trust powers, having a combined capital and surplus of at least
    Fifty Million U.S. Dollars ($50,000,000), and subject to supervision or examination
    by federal, state, territorial or District of Columbia authority. If such
    corporation or national association publishes reports of condition at least
    annually, pursuant to law or to the requirements of the supervising or examining
    authority referred to above, then, for the purposes of this Section 3.1(a)(ii),
    the combined capital and surplus of such corporation or national association
    shall be deemed to be its combined capital and surplus as set forth in its
    most recent report of condition so published. 




            (b)
    If at any time the Guarantee Trustee shall cease to be eligible to so act
    under Section 3.1(a), the Guarantee Trustee shall immediately resign in the
    manner and with the effect set forth in Section 3.2(c).

            (c)
    If the Guarantee Trustee has or shall acquire any "conflicting interest' within
    the meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee
    shall either eliminate such interest or resign to the extent and in the manner
    provided by, and subject to, this Guarantee.




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 SECTION 3.2. Appointment,
  Removal and Resignation of the Guarantee Trustee.


            (a)
    Subject to Section 3.2(b), the Guarantee Trustee may be appointed or removed
    without cause at any time by the Guarantor except during an Event of Default.

            (b)
    The Guarantee Trustee shall not be removed in accordance with Section 3.2(a)
    until a Successor Guarantee Trustee has been appointed and has accepted such
    appointment by written instrument executed by such Successor Guarantee Trustee
    and delivered to the Guarantor.

            (c)
    The Guarantee Trustee appointed to office shall hold office until a Successor
    Guarantee Trustee shall have been appointed or until its removal or resignation.
    The Guarantee Trustee may resign from office (without need for prior or subsequent
    accounting) by an instrument in writing executed by the Guarantee Trustee
    and delivered to the Guarantor, which resignation shall not take effect until
    a Successor Guarantee Trustee has been appointed and has accepted such appointment
    by an instrument in writing executed by such Successor Guarantee Trustee and
    delivered to the Guarantor and the resigning Guarantee Trustee.

            (d)
    If no Successor Guarantee
    Trustee shall have been appointed and accepted appointment as provided in
    this Section 3.2 within 60 days after delivery of an instrument of removal
    or resignation, the Guarantee Trustee resigning or being removed may petition
    any court of competent jurisdiction for appointment of a Successor Guarantee
    Trustee. Such court may thereupon, after prescribing such notice, if any,
    as it may deem proper, appoint a Successor Guarantee Trustee.

            (e)
    No Guarantee Trustee shall be liable for the acts or omissions to act of any
    Successor Guarantee Trustee.

            (f)
    Upon termination
    of this Guarantee or removal or resignation of the Guarantee Trustee pursuant
    to this Section 3.2, the Guarantor shall pay to the Guarantee Trustee all
    amounts owing to the Guarantee Trustee under Sections 7.2 and 7.3 accrued
    to the date of such termination, removal or resignation.



 ARTICLE IV 

  GUARANTEE 

 SECTION 4.1. Guarantee.


            (a)
    The Guarantor irrevocably and unconditionally agrees
    to pay in full to the Holders the Guarantee Payments (without duplication
    of amounts theretofore paid by the Issuer), as and when due, regardless of
    any defense (except as defense of payment by the Issuer), right of set-off
    or counterclaim that the Issuer may have or assert. The Guarantor's obligation
    to make a Guarantee Payment may be satisfied by direct payment of the required
    amounts by the Guarantor to the Holders or by causing the Issuer to pay such
    amounts to the Holders.




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            (b)
    The Guarantor hereby also agrees to assume any and all Obligations of the
    Issuer and in the event any such Obligation is not so assumed, subject to
    the terms and conditions hereof, the Guarantor hereby irrevocably and unconditionally
    guarantees to each Beneficiary the full payment, when and as due, of any and
    all Obligations to such Beneficiaries. This Guarantee is intended to be for
    the Beneficiaries who have received notice hereof.



 SECTION 4.2. Waiver
  of Notice and Demand.

          The Guarantor hereby waives notice of acceptance of this Guarantee and of any liability to which it applies or may apply, presentment, demand for payment, any right to require a proceeding first against the Issuer or any other Person before proceeding against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands.

 SECTION 4.3. Obligations
  Not Affected.

          The obligations, covenants, agreements and duties of the Guarantor under this Guarantee shall in no way be affected or impaired by reason of the happening from time to time of any of the following:


            (a)
    the release or waiver,
    by operation of law or otherwise, of the performance or observance by the
    Issuer of any express or implied agreement, covenant, term or condition relating
    to the Capital Securities to be performed or observed by the Issuer;

            (b)
    the extension of
    time for the payment by the Issuer of all or any portion of the Distributions,
    Redemption Price, Special Redemption Price, Liquidation Distribution or any
    other sums payable under the terms of the Capital Securities or the extension
    of time for the performance of any other obligation under, arising out of,
    or in connection with, the Capital Securities (other than an extension of
    time for the payment of the Distributions, Redemption Price, Special Redemption
    Price, Liquidation Distribution or other sums payable that results from the
    extension of any interest payment period on the Debentures or any extension
    of the maturity date of the Debentures permitted by the Indenture);

            (c)
    any failure, omission,
    delay or lack of diligence on the part of the Holders to enforce, assert or
    exercise any right, privilege, power or remedy conferred on the Holders pursuant
    to the terms of the Capital Securities, or any action on the part of the Issuer
    granting indulgence or extension of any kind;

            (d)
    the voluntary or
    involuntary liquidation, dissolution, sale of any collateral, receivership,
    insolvency, bankruptcy, assignment for the benefit of creditors, reorganization,
    arrangement, composition or readjustment of debt of, or other similar proceedings
    affecting, the Issuer or any of the assets of the Issuer;

             (e)
    any invalidity of,
    or defect or deficiency in, the Capital Securities;




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            (f)
    the settlement or
    compromise of any obligation guaranteed hereby or hereby incurred; or

            (g)
    any other circumstance whatsoever that might otherwise constitute a legal
    or equitable discharge or defense of a guarantor, it being the intent of this
    Section 4.3 that the obligations of the Guarantor hereunder shall be absolute
    and unconditional under any and all circumstances.



          There shall be no obligation of the Holders to give notice to, or obtain consent of, the Guarantor with respect to the happening of any of the foregoing.

 SECTION 4.4. Rights
  of Holders.


            (a)
    The Holders of a Majority in liquidation amount of the Capital Securities
    have the right to direct the time, method and place of conducting any proceeding
    for any remedy available to the Guarantee Trustee in respect of this Guarantee
    or to direct the exercise of any trust or power conferred upon the Guarantee
    Trustee under this Guarantee; provided,
    however, that (subject
    to Sections 2.1 and 2.2) the Guarantee Trustee shall have the right to decline
    to follow any such direction if the Guarantee Trustee shall determine that
    the actions so directed would be unjustly prejudicial to the Holders not taking
    part in such direction or if the Guarantee Trustee being advised by legal
    counsel determines that the action or proceeding so directed may not lawfully
    be taken or if the Guarantee Trustee in good faith by its board of directors
    or trustees, executive committee or a trust committee of directors or trustees
    and/or Responsible Officers shall determine that the action or proceeding
    so directed would involve the Guarantee Trustee in personal liability.

            (b)
    Any Holder of Capital Securities may institute a legal proceeding directly
    against the Guarantor to enforce the Guarantee Trustee's rights under this
    Guarantee, without first instituting a legal proceeding against the Issuer,
    the Guarantee Trustee or any other Person. The Guarantor waives any right
    or remedy to require that any such action be brought first against the Issuer,
    the Guarantee Trustee or any other Person before so proceeding directly against
    the Guarantor.



 SECTION 4.5. Guarantee
  of Payment.


This Guarantee creates a guarantee of payment and not of collection.

 SECTION 4.6. Subrogation.

          The
  Guarantor shall be subrogated to all (if any) rights of the Holders of Capital
  Securities against the Issuer in respect of any amounts paid to such Holders
  by the Guarantor under this Guarantee; provided,
  however, that the
  Guarantor shall not (except to the extent required by applicable provisions
  of law) be entitled to enforce or exercise any right that it may acquire by
  way of subrogation or any indemnity, reimbursement or other agreement, in all
  cases as a result of payment under this Guarantee, if, after giving effect to
  any such payment, any amounts are due and unpaid under this Guarantee. If any
  amount shall be paid to the Guarantor

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 in violation of the preceding sentence,
  the Guarantor agrees to hold such amount in trust for the Holders and to pay
  over such amount to the Holders. 

 SECTION 4.7. Independent Obligations.

          The Guarantor acknowledges that its obligations hereunder are independent of the obligations of the Issuer with respect to the Capital Securities and that the Guarantor shall be liable as principal and as debtor hereunder to make Guarantee Payments pursuant to the terms of this Guarantee notwithstanding the occurrence of any event referred to in subsections (a) through (g), inclusive, of Section 4.3 hereof.

 SECTION 4.8. Enforcement.

          A Beneficiary may enforce the Obligations of the Guarantor contained in Section 4.1(b) directly against the Guarantor, and the Guarantor waives any right or remedy to require that any action be brought against the Issuer or any other person or entity before proceeding against the Guarantor.

          The
  Guarantor shall be subrogated to all rights (if any) of any Beneficiary against
  the Issuer in respect of any amounts paid to the Beneficiaries by the Guarantor
  under this Guarantee; provided,
  however, that the Guarantor shall not (except
  to the extent required by applicable provisions of law) be entitled to enforce
  or exercise any rights that it may acquire by way of subrogation or any indemnity,
  reimbursement or other agreement, in all cases as a result of payment under
  this Guarantee, if, after giving effect to such payment, any amounts are due
  and unpaid under this Guarantee.

 ARTICLE V
LIMITATION OF TRANSACTIONS; SUBORDINATION 

 SECTION 5.1. Limitation
  of Transactions.

          So long as any Capital Securities remain outstanding, if (a) there shall have occurred and be continuing an Event of Default or (b) the Guarantor shall have selected an Extension Period as provided in the Declaration and such period, or any extension thereof, shall have commenced and be continuing, then the Guarantor may not (x) declare or pay any dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any of the Guarantor's capital stock or (y) make any payment of principal of or interest or premium, if any, on or repay, repurchase or redeem any debt securities of the Guarantor that rankpari passu in all respects with or junior in interest to the Debentures (other than (i) payments under this Guarantee, (ii) repurchases, redemptions or other acquisitions of shares of capital stock of the
Guarantor (A) in connection with any employment contract, benefit plan or other similar arrangement with or for the benefit of one or more employees, officers, directors, or consultants, (B) in connection with a dividend reinvestment or stockholder stock purchase plan or (C) in connection with the issuance of capital stock of the Guarantor (or securities convertible into or exercisable for such capital stock), as consideration in an acquisition transaction entered into prior to the occurrence of the Event of Default or the applicable Extension Period, (iii) as a result of any exchange, reclassification, combination or conversion of any class or series of the Guarantor's capital stock (or any capital stock of a

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 subsidiary of the Guarantor) for any class
  or series of the Guarantor's capital stock or of any class or series of the
  Guarantor's indebtedness for any class or series of the Guarantor's capital
  stock, (iv) the purchase of fractional interests in shares of the Guarantor's
  capital stock pursuant to the conversion or exchange provisions of such capital
  stock or the security being converted or exchanged, (v) any declaration of a
  dividend in connection with any stockholder's rights plan, or the issuance of
  rights, stock or other property under any stockholder's rights plan, or the
  redemption or repurchase of rights pursuant thereto, or (vi) any dividend in
  the form of stock, warrants, options or other rights where the dividend stock
  or the stock issuable upon exercise of such warrants, options or other rights
  is the same stock as that on which the dividend is being paid or ranks
  pari passu with or junior to such stock).


 SECTION 5.2. Ranking.

          This Guarantee will constitute an unsecured obligation of the Guarantor and will rank subordinate and junior in right of payment to all present and future Senior Indebtedness (as defined in the Indenture) of the Guarantor. By their acceptance thereof, each Holder of Capital Securities agrees to the foregoing provisions of this Guarantee and the other terms set forth herein.

          The right of the Guarantor to participate in any distribution of assets of any of its subsidiaries upon any such subsidiary's liquidation or reorganization or otherwise is subject to the prior claims of creditors of that subsidiary, except to the extent the Guarantor may itself be recognized as a creditor of that subsidiary. Accordingly, the Guarantor's obligations under this Guarantee will be effectively subordinated to all existing and future liabilities of the Guarantor's subsidiaries, and claimants should look only to the assets of the Guarantor for payments thereunder. This Guarantee does not limit the incurrence or issuance of other secured or unsecured debt of the Guarantor, including Senior Indebtedness of the Guarantor, under any indenture or agreement that the Guarantor may enter into in the future or otherwise.

ARTICLE VI 

  TERMINATION 

 SECTION 6.1. Termination.

          This Guarantee shall terminate as to the Capital Securities (i) upon full payment of the Redemption Price or the Special Redemption Price, as the case may be, of all Capital Securities then outstanding, (ii) upon the distribution of all of the Debentures to the Holders of all of the Capital Securities or (iii) upon full payment of the amounts payable in accordance with the Declaration upon dissolution of the Issuer. This Guarantee will continue to be effective or will be reinstated, as the case may be, if at any time any Holder of Capital Securities must restore payment of any sums paid under the Capital Securities or under this Guarantee.

  

 

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ARTICLE VII 

  INDEMNIFICATION 

 SECTION 7.1. Exculpation.


            (a)
    No Indemnified Person shall be liable, responsible or accountable in damages
    or otherwise to the Guarantor or any Covered Person for any loss, damage or
    claim incurred by reason of any act or omission of such Indemnified Person
    in good faith in accordance with this Guarantee and in a manner that such
    Indemnified Person reasonably believed to be within the scope of the authority
    conferred on such Indemnified Person by this Guarantee or by law, except that
    an Indemnified Person shall be liable for any such loss, damage or claim incurred
    by reason of such Indemnified Person's negligence or willful misconduct with
    respect to such acts or omissions.

            (b)
    An Indemnified Person shall be fully protected in relying in good faith upon
    the records of the Issuer or the Guarantor and upon such information, opinions,
    reports or statements presented to the Issuer or the Guarantor by any Person
    as to matters the Indemnified Person reasonably believes are within such other
    Person's professional or expert competence and who, if selected by such Indemnified
    Person, has been selected with reasonable care by such Indemnified Person,
    including information, opinions, reports or statements as to the value and
    amount of the assets, liabilities, profits, losses, or any other facts pertinent
    to the existence and amount of assets from which Distributions to Holders
    of Capital Securities might properly be paid.



 SECTION 7.2. Indemnification.


            (a)
    The Guarantor agrees to indemnify each Indemnified Person for, and to hold
    each Indemnified Person harmless against, any and all loss, liability, damage,
    claim or expense incurred without negligence or willful misconduct on the
    part of the Indemnified Person, arising out of or in connection with the acceptance
    or administration of the trust or trusts hereunder, including but not limited
    to the costs and expenses (including reasonable legal fees and expenses) of
    the Indemnified Person defending itself against, or investigating, any claim
    or liability in connection with the exercise or performance of any of the
    Indemnified Person's powers or duties hereunder. The obligation to indemnify
    as set forth in this Section 7.2 shall survive the resignation or removal
    of the Guarantee Trustee and the termination of this Guarantee.

            (b)
    Promptly after receipt by an Indemnified Person under this Section 7.2 of
    notice of the commencement of any action, such Indemnified Person will, if
    a claim in respect thereof is to be made against the Guarantor under this
    Section 7.2, notify the Guarantor in writing of the commencement thereof;
    but the failure so to notify the Guarantor (i) will not relieve the Guarantor
    from liability under paragraph (a) above unless and to the extent that the
    Guarantor did not otherwise learn of such action and such failure results
    in the forfeiture by the Guarantor of substantial rights and defenses and
    (ii) will not, in any event, relieve the Guarantor from any obligations to
    any Indemnified Person other than the indemnification obligation provided
    in paragraph (a) above. The Guarantor shall be entitled to appoint counsel
    of the Guarantor's choice at the Guarantor's




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   expense to represent the Indemnified Person in any action
    for which indemnification is sought (in which case the Guarantor shall not
    thereafter be responsible for the fees and expenses of any separate counsel
    retained by the Indemnified Person or Persons except as set forth below);
    provided, however,
    that such counsel shall be satisfactory to the Indemnified Person. Notwithstanding
    the Guarantor's election to appoint counsel to represent the Indemnified Person
    in any action, the Indemnified Person shall have the right to employ separate
    counsel (including local counsel), and the Guarantor shall bear the reasonable
    fees, costs and expenses of such separate counsel (and local counsel), if
    (i) the use of counsel chosen by the Guarantor to represent the Indemnified
    Person would present such counsel with a conflict of interest, (ii) the actual
    or potential defendants in, or targets of, any such action include both the
    Indemnified Person and the Guarantor and the Indemnified Person shall have
    reasonably concluded that there may be legal defenses available to it and/or
    other Indemnified Persons which are different from or additional to those
    available to the Guarantor, (iii) the Guarantor shall not have employed counsel
    satisfactory to the Indemnified Person to represent the Indemnified Person
    within a reasonable time after notice of the institution of such action or
    (iv) the Guarantor shall authorize the Indemnified Person to employ separate
    counsel at the expense of the Guarantor. The Guarantor will not, without the
    prior written consent of the Indemnified Persons, settle or compromise or
    consent to the entry of any judgment with respect to any pending or threatened
    claim, action, suit or proceeding in respect of which indemnification or contribution
    may be sought hereunder (whether or not the Indemnified Persons are actual
    or potential parties to such claim or action) unless such settlement, compromise
    or consent includes an unconditional release of each Indemnified Person from
    all liability arising out of such claim, action, suit or proceeding.



 SECTION 7.3. Compensation;
  Reimbursement of Expenses.

          Other than as provided in the Fee Agreement of even date herewith between Cohen Bros. & Company, the Guarantee Trustee and Delaware Trustee (as defined in the Declaration), the Guarantor agrees:


            (a)
    to pay to the Guarantee
    Trustee from time to time such compensation for all services rendered by it
    hereunder as the parties shall agree to from time to time (which compensation
    shall not be limited by any provision of law in regard to the compensation
    of a trustee of an express trust); and

            (b)
    except as otherwise
    expressly provided herein, to reimburse the Guarantee Trustee upon request
    for all reasonable expenses, disbursements and advances incurred or made by
    it in accordance with any provision of this Guarantee (including the reasonable
    compensation and the expenses and disbursements of its agents and counsel),
    except any such expense, disbursement or advance as may be attributable to
    its negligence or willful misconduct.



          The provisions of this Section 7.3 shall survive the resignation or removal of the Guarantee Trustee and the termination of this Guarantee.


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ARTICLE VIII 

  MISCELLANEOUS 

 SECTION 8.1. Successors
  and Assigns.

          All guarantees and agreements contained in this Guarantee shall bind the successors, assigns, receivers, trustees and representatives of the Guarantor and shall inure to the benefit of the Holders of the Capital Securities then outstanding. Except in connection with any merger or consolidation of the Guarantor with or into another entity or any sale, transfer or lease of the Guarantor's assets or capital stock to another entity, in each case to the extent permitted under the Indenture, the Guarantor may not assign its rights or delegate its obligations under this Guarantee without the prior approval of the Holders of not less than a Majority in liquidation amount of the Capital Securities.

 SECTION 8.2. Amendments.

          Except with respect to any changes that do not adversely affect the rights of Holders of the Capital Securities in any material respect (in which case no consent of Holders will be required), this Guarantee may be amended only with the prior approval of the Holders of not less than a Majority in liquidation amount of the Capital Securities. The provisions of the Declaration with respect to amendments thereof shall apply equally with respect to amendments of the Guarantee.

 SECTION 8.3. Notices.

          All notices provided for in this Guarantee shall be in writing, duly signed by the party giving such notice, and shall be delivered, telecopied or mailed by first class mail, as follows:

          (a)
  If given to the Guarantee Trustee, at the Guarantee Trustee's mailing address
  set forth below (or such other address as the Guarantee Trustee may give notice
  of to the Holders of the Capital Securities):



 JPMorgan Chase Bank 

  600 Travis Street, 50th
  Floor 

  Houston, Texas 77002 

  Attention: Institutional Trust Services 

  Gold Banc Capital Trust V

  Telecopy: (713) 216-2101 

  Telephone: (713) 216-4181 



          (b)
  If given to the Guarantor, at the Guarantor's mailing address set forth below
  (or such other address as the Guarantor may give notice of to the Holders of
  the Capital Securities and to the Guarantee Trustee):


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 Gold Banc Corporation, Inc. 

  11301 Nall Avenue 

  Leawood, Kansas 66211 

  Attention: Rick J. Tremblay 

  Telecopy: (913) 451-8004 

  Telephone: (913) 451-8050 




            (c)
    If given to any Holder
    of the Capital Securities, at the address set forth on the books and records
    of the Issuer.



          All such notices shall be deemed to have been given when received in person, telecopied with receipt confirmed, or mailed by first class mail, postage prepaid, except that if a notice or other document is refused delivery or cannot be delivered because of a changed address of which no notice was given, such notice or other document shall be deemed to have been delivered on the date of such refusal or inability to deliver.

 SECTION 8.4. Benefit.

          This Guarantee is solely for the benefit of the Holders of the Capital Securities and, subject to Section 2.1(a), is not separately transferable from the Capital Securities.

 SECTION 8.5. Governing
  Law.

          THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.

 SECTION 8.6. Counterparts.

          This Guarantee may contain more than one counterpart of the signature page and this Guarantee may be executed by the affixing of the signature of the Guarantor and the Guarantee Trustee to any of such counterpart signature pages. All of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page.

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           THIS
  GUARANTEE is executed as of the day and year first above written. 

	 	GOLD BANC CORPORATION, INC.,
	 	as Guarantor
	 	 	 
	 	By:	 
	 	 	

	 	Name:	 
	 	 	

	 	Title:	 
	 	 	

	 	 	 
	 	 	 
	 	JPMORGAN CHASE BANK, as Guarantee
	 	Trustee
	 	 	 
	 	By:	 
	 	 	

	 	Name:	 
	 	 	

	 	Title:	 
	 	 	



  

 

 

 

 

 

 

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