CHASE LOGO]
Exhibit
10.1
[CHASE
LOGO]
This
agreement dated as of June 29, 2007, is between JPMorgan Chase Bank, N.A.
(together with its successors and assigns, the “Bank”),
whose address is ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇,
and United Western Bancorp, Inc., a Colorado corporation, whose address is
700
17d’ Street, Suite 2100, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (whether one or more, and if
more than one, individually and collectively, the “Borrower”).
1. Credit
Facilities.
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1.1
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Scope.
This agreement governs Facility A and Facility B, and, unless otherwise
agreed to in writing by the Bank and the Borrower or prohibited by
any
Legal Requirement (as hereafter defined), governs all the Credit
Facilities as defined below.
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1.2
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Facility
A ($20,000,000.00 Advancing Converting to a Term
Loan).
The Bank has approved a credit facility to the Borrower in the principal
sum not to exceed $20,000,000.00 in the aggregate at any one time
outstanding (“Facility
A”).
Credit under Facility A shall be repayable as set forth in an Advancing
Converting to a Term Note in the original principal amount of
$20,000,000.00 executed concurrently with this agreement, and any
renewals, modifications, extensions, rearrangements, restatements
thereof
and replacements or substitutions therefor. The proceeds of Facility
A
shall be used for general corporate
purposes.
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1.3
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Facility
B ($5,000,000.00 Line of Credit).
The Bank has approved a credit facility to the Borrower in the principal
sum not to exceed $5,000,000.00 in the aggregate at any one time
outstanding (“Facility
B”).
Credit under Facility B shall be repayable as set forth in a Line
of
Credit Note in the original principal amount of $5,000,000.00 executed
concurrently with this agreement, and any renewals, modifications,
extensions, rearrangements, restatements thereof and replacements
or
substitutions therefor. The proceeds of Facility B shall be used
for
general corporate purposes.
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1.4
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Non-Usage
Fee.
The Borrower shall pay to the Bank a non-usage fee calculated on
the
average daily unused portion of Facility B at a rate of 0.18% per
annum,
payable in arrears within fifteen (15) days of the end of each calendar
quarter for which the fee is owing. The Bank may begin to accrue
the
foregoing fee on the date the Borrower signs or otherwise authenticates
this agreement.
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2. Definitions
and Interpretations.
A. Definitions.
As used in this agreement, the following terms have the following respective
meanings:
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(1)
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“10-K
Report”
means any annual report on Form 10-K submitted by any Obligor or
any
Obligor’s Subsidiary to a Governmental Authority, including but not
limited to the Securities and Exchange Commission, along with copies
of
the financial statements contained in such annual report and any
annual
report to shareholders of any Obligor or any Obligor’s Subsidiary for the
fiscal quarter then ended. Any 10K Report shall be furnished to the
Bank
via the ▇▇▇▇▇ System and/or the Obligor’s or the Obligor’s Subsidiary’s
Home Page. If for any reason, the ▇▇▇▇▇ System and/or the Obligor’s or the
Obligor’s Subsidiary’s Home Page are not available to the Bank as is
required for making available the 10-K Report, the Borrower shall
then
furnish a copy of the 10-K Report to the
Bank.
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(2)
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“10-Q
Report”
means any quarterly report on Form 10-Q submitted by any Obligor
or any
Obligor’s Subsidiary to a Governmental Authority, including but not
limited to the Securities and Exchange Commission, along with copies
of
the financial statements contained in such quarterly report and any
quarterly report to shareholders of any Obligor or any Obligor’s
Subsidiary for the fiscal quarter then ended. Any 10-Q Report shall
be
furnished to the Bank via the ▇▇▇▇▇ System and/or the Obligor’s or the
Obligor’s Subsidiary’s Home Page. If for any reason, the ▇▇▇▇▇ System
and/or the Obligor’s or the Obligor’s Subsidiary’s Home Page are not
available to the Bank as is required for making available the 10Q
Report,
the Borrower shall then furnish a copy of the 10-Q Report to the
Bank.
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Page
1 of 15
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(3)
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“Affiliate”
means, as to any Person, any other Person: (1) that directly or
indirectly, through one or more intermediaries, controls or is controlled
by, or is under common control with, such Person; (2) that directly
or
indirectly beneficially owns or holds five percent (5%) or more of
any
class of voting stock of such Person; or (3) five percent (5%) or
more of
the voting stock of which is directly or indirectly beneficially
owned or
held by the Person in question. The term “control” means to possess,
directly or indirectly, the power to direct the management and policies
of
a Person, whether through Equity Interests, by contract, or otherwise,
The
Bank is not under any circumstances to be deemed an Affiliate of
Borrower
or any of its Subsidiaries.
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(4)
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“Authorizing
Documents”
means certificates of authority to transact business, certificates
of good
standing, borrowing resolutions, appointments, officer’s certificates,
certificates of incumbency, and other documents which empower and
authorize or evidence the power and authority of the Parties executing
any
Related Document or their representatives to execute and deliver
the
Related Documents and perform the Party’s obligations
thereunder.
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(5)
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“Business
Day”
means a day when the main office of the Bank is open for the conduct
of
commercial lending business.
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(6)
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“Call
Report”
means any Report of Condition and Income, Thrift Financial Report
or any
substantially similar report (or replacement of any such report)
submitted
by any Obligor or any Obligor’s Subsidiary to a Governmental
Authority.
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(7)
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“Corporation”
means corporations, partnerships, limited liability companies, joint
ventures, joint stock associations, associations, banks, business
trusts
and other entities.
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(8)
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“Credit
Facilities”
means all extensions of credit from the Bank to the Borrower, whether
now
existing or hereafter arising, including but not limited to those
described in Section 1, if any, and those extended contemporaneously
with
this agreement, including any and all renewals, modifications, extensions,
rearrangements, restatements thereof and replacements or substitutions
therefor.
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(9)
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“▇▇▇▇▇
System”
means the Electronic Data Gathering Analysis and Retrieval System
owned
and operated by the United States Securities and Exchange Commission
or
any replacement system.
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(10)
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“Equity
Interests”
means shares of capital stock, partnership interests, membership
interests
in a limited liability company, beneficial interests in a trust or
other
equity ownership interests in an entity, and any warrants, options
or
other rights entitling the holder thereof to purchase or acquire
any such
equity interest.
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(11)
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“GAAP”
means generally accepted accounting principles in effect in the United
States of America, consistently
applied.
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(12)
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“Governmental
Authority”
means any foreign governmental authority, the United States of America,
any state thereof, any political subdivision of any of the foregoing
or
any agency, department, commission, board, bureau, court or other
tribunal
having jurisdiction over the Bank, the Borrower or any other Obligor,
or
any Subsidiary of the Borrower or their respective properties or
any
agreement by which any of them is bound. Governmental Authority includes
but is not limited to the Board of Governors of the Federal Reserve
System
(“FRB”),
the Federal Deposit Insurance Corporation (the “FDIC”),
the Colorado Division of Banking (“CDOB”),
the Office of Thrift Supervision (the “OTS”),
the Office of the Comptroller of the Currency (the “OCC”)
and the Securities and Exchange Commission (the “SEC”).
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(13)
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“Home
Page”
means any corporate home page on the World Wide Web accessible through
the
Internet via a universal resource locator (“URL”).
The Borrower shall designate in writing to the Bank the URL identification
of the Home Page, if any, of each Obligor and each Obligor’s Subsidiary
required to submit any 10-K or 10-Q Report. As of the date of this
agreement, the Borrower’s Home Page may be accessed via the URL identified
as “▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇/”.
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(14)
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“Indebtedness”
means and includes (without duplication) (i) all items arising from
the
borrowing of money, which according to GAAP, would be included in
determining total liabilities as shown on the balance sheet; (ii)
all
indebtedness secured by any Lien on property owned by the Borrower
or the
Subsidiaries of the Borrower whether or not such indebtedness shall
have
been assumed; (iii) all guarantees and similar contingent liabilities
in
respect to indebtedness of others; and (iv) all other interest-bearing
obligations evidencing indebtedness to others for borrowed
money.
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(15)
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“Legal
Requirement”
means any law, ordinance, decree, requirement, order, judgment, rule,
regulation (or interpretation of any of the foregoing) of, and the
terms
of any list, license or permit issued by, any Governmental
Authority.
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(16)
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“Liabilities”
means all obligations, indebtedness and liabilities of every kind
and
character of the Borrower to the Bank, its successors and assigns,
now
existing or later arising, whether the obligations, indebtedness
and
liabilities are individual, joint and several, contingent or otherwise,
including, without limitation, all liabilities, interest, costs and
fees,
arising under or from any note, open account, overdraft, credit card,
lease, Rate Management Transaction, letter of credit application;
endorsement, surety agreement, guaranty, acceptance, foreign exchange
contract or depository service contract, whether payable to the Bank
or to
a third party and subsequently acquired by the Bank, any monetary
obligations (including interest) incurred or accrued during the pendency
of any bankruptcy, insolvency, receivership or other similar proceedings,
regardless of whether allowed or allowable in such proceeding, and
all
renewals, extensions, modifications, consolidations, rearrangements,
restatements, replacements, restatements or substitutions of any
of the
foregoing.
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(17)
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“Lien”
means any mortgage, deed of trust, pledge, charge, encumbrance, security
interest, collateral assignment or other lien or restriction of any
kind,
whether based on common law, constitutional provision, statute or
contract.
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(18)
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“Material
Subsidiary”
means United Western Bank, and any other Subsidiary of any Obligor
the
stockholders’ equity of which exceeds an amount equal to fifteen percent
(15%) of the consolidated stockholders’ equity of the Obligor, determined
in accordance with GAAP.
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(19)
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“Notes”
means each and all promissory notes, instruments and/or other contracts
now or hereafter evidencing the terms and conditions of any of the
Credit
Facilities.
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(20)
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“Obligor”
means each Borrower and any guarantor, surety, co-signer, general
partner
or other Person who may now or hereafter be obligated to pay all
or any
part of the Liabilities.
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(21)
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“Organizational
Documents”
means, with respect to any entity, certificates of existence or formation,
documents establishing or governing the entity or evidencing or certifying
that the entity is duly organized and validly existing in accordance
with
all applicable Legal Requirements; including all modifications and
supplements of such certificates and documents as of the date of
the
Related Document referring to the Organizational Document and any
and all
future modifications thereto approved by the
Bank.
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(22)
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“Parties”
means all Persons other than the Bank executing any Related
Document.
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(23)
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“Person”
means any individual, Corporation, trust, unincorporated organization,
Governmental Authority or any other form of
entity.
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| (24) | “Proper Form” means in form and substance satisfactory to the Bank. |
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(25)
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“Rate
Management Transaction”
means any transaction (including an agreement with respect thereto)
that
is a rate swap, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap, equity or equity index
option, bond option, interest rate option, foreign exchange transaction,
cap transaction, floor transaction, collar transaction, forward
transaction, currency swap transaction, cross-currency rate swap
transaction, currency option, derivative transaction or any other
similar
transaction (including any option with respect to any of these
transactions) or any combination thereof, whether linked to one or
more
interest rates, foreign currencies, commodity prices, equity prices
or
other financial measures.
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(26)
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“Related
Documents”
means this agreement, the Notes, applications for letters of credit,
all
loan agreements, credit agreements, reimbursement agreements, security
agreements, mortgages, deeds of trust, pledge agreements, assignments,
guaranties, and any other instrument or document executed in connection
with this agreement or in connection with any of the
Liabilities.
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(27)
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“Subordinated
Debt”
means any Indebtedness subordinated to Indebtedness due to the Bank
pursuant to a written subordination agreement in Proper Form by and
among
the Bank, subordinated creditor and the Borrower which at a minimum
must
prohibit: (a) any action by any subordinated creditor which will
result in
an occurrence of an Event of Default or default under this agreement,
the
subordination agreement or the subordinated Indebtedness; and (b)
upon the
happening of any Event of Default or default under any Related Documents,
the subordination agreement, or any instrument evidencing the subordinated
Indebtedness: (i) any payment of principal and interest on the
subordinated Indebtedness; (ii) any act to compel payment of principal
or
interest on subordinated Indebtedness; and (iii) any action to realize
upon any collateral securing the subordinated
Indebtedness.
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(28)
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“Subsidiary”
means, as to a particular parent Corporation, any Corporation of
which 50%
or more of the indicia of equity rights is at the time of determination
directly or indirectly owned by such parent Corporation or by one
or more
Persons controlled by, controlling or under common control with such
parent Corporation.
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B.
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Interpretations.
Whenever the Bank’s determination, consent, approval or satisfaction is
required under this agreement or the other Related Documents or whenever
the Bank may at its option take or refrain from taking any action
under
this agreement or the other Related Documents, the decision as to
whether
or not the Bank makes the determination, consents, approves, is satisfied
or takes or refrains from taking any action, shall be in the sole
and
exclusive discretion of the Bank and the Bank’s decision shall be final
and conclusive.
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3. Conditions
Precedent.
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3.1
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Conditions
Precedent to Initial Extension of Credit.
Before the first extension of credit governed by this agreement and
any
initial advance under any of the Credit Facilities, whether by
disbursement of a loan, issuance of a letter of credit, or otherwise,
the
Borrower shall deliver to the Bank in Proper
Form:
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A. Related
Documents.
The Notes, and as applicable, the letter of credit applications, the security
agreements, the pledge agreements, financing statements, mortgages or deeds
of
trust, the guaranties, the subordination agreements, and any other documents
which the Bank may reasonably require to give effect to the transactions
described in this agreement or the other Related Documents;
B. Organizational
and Authorizing Documents.
The Organizational Documents and Authorizing Documents of the Borrower and
any
other Party executing the Related Documents that at a minimum (i) document
the
due organization, valid existence and good standing of the Borrower and every
other entity that is a Party to this agreement or any other Related Document;
(ii) evidence that each entity which is a Party to this agreement or any other
Related Document has the power and authority to enter into the transactions
described therein, and (iii) evidence that the Person signing on behalf of
each
entity which is a Party to the Related Documents (other than the Bank) is duly
authorized to do so;
C. Continuing
Pledge of Stock.
(i) A duly executed continuing pledge of all of the outstanding stock of United
Western Bank; (ii) delivery of all stock certificates evidencing all of the
outstanding stock of United Western Bank and (iii) stock powers duly executed
in
blank.
Page 4
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D. Payoff
Existing Debt/Release of Liens.
Full payment and satisfaction of all debt of the Borrower and each of its
Subsidiaries other than the Indebtedness permitted by Section 5.1 hereof, and
the release and satisfaction of all Liens other than the Liens permitted by
Section 5.2 hereof.
E. Satisfactory
Review.
Such documents and information as the Bank may reasonably request in performing
its own due diligence review of the Borrower’s financial condition and
operations, the results of which review must be in Proper Form.
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3.2
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Conditions
Precedent to Each Extension of Credit.
Before any extension of credit governed by this agreement, whether
by
disbursement of a loan, issuance of a letter of credit or otherwise,
the
following conditions must be
satisfied:
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A. Representations.
The representations of the Borrower and any other Parties to the Related
Documents are true on and as of the date of the extension of
credit;
B. No
Event of Default.
No default or Event of Default has occurred under this agreement, the Notes
or
any other Related Documents and is continuing or would result from the extension
of credit, and no event has occurred which would constitute the occurrence
of
any Event of Default but for the lapse of time until the end of any grace or
cure period, if any;
C. Additional
Approvals, Opinions, and Documents.
The Bank has received any other approvals, opinions and documents as it may
reasonably request; and
D. No
Prohibition or Onerous Conditions.
The making of the extension of credit is not prohibited by and does not subject
the Bank, the Borrower, any Subsidiary of the Borrower or any other Obligor
of
any of the Liabilities to any penalty or onerous condition under any Legal
Requirement.
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3.3
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Satisfaction
of Conditions Precedent.
The acceptance of the proceeds and benefits of the proceeds of any
Credit
Facility shall constitute a representation and warranty by the Parties
that all of the conditions specified in this Article 3 for that Credit
Facility have been satisfied as of that
time.
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4.
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Affirmative
Covenants. The
Borrower agrees to do, and will cause each of its Material Subsidiaries
to
do, each of the following:
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4.1
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Financial
Information.
Furnish to the Bank in Proper Form (1) the financial statements prepared
in conformity with GAAP on a consolidated basis and the other information
described in, and within the times required by, Exhibit A, Reporting
Requirements, Financial Covenants and Compliance Certificate attached
hereto and incorporated in this agreement by reference; (2) within
the
time required by Exhibit A, Exhibit A, signed or otherwise authenticated
and certified by the chief financial officer or president of the
Party
required to submit the information; (3) to the extent permitted by
applicable Legal Requirements, promptly after the same are available,
copies of each annual report or financial statement or other report
or
communication sent by the Borrower to the shareholders of the Borrower;
and each registration statement which the Borrower or any Material
Subsidiary may file with any Governmental Authority or with any securities
exchange; (4) promptly after a request is submitted to the appropriate
Governmental Authority, any request for waiver of funding standards
or
extension of amortization periods with respect to any employee benefit
plan; (5) promptly after the Bank’s request, copies of special audits,
studies, reports and analyses prepared by outside parties for the
management of the Borrower, any of its Material Subsidiaries or any
other
Obligor; and (6) such other information relating to the financial
condition, prospects and affairs of the Borrower, each other Obligor
and
their respective Material Subsidiaries, as the Bank may reasonably
request
from time to time. Nothing in this agreement shall require the Borrower
to
provide any information to the Bank which the Borrower, any other
Obligor
or any of their respective Subsidiaries is prohibited by Legal
Requirements to disclose. All proceeds of any collateral shall be
deposited in an account maintained with the
Bank.
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4.2
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Existence.
Maintain its existence and business operations, as presently in effect,
in
accordance with all applicable Legal Requirements, pay its debts
and
obligations when due under normal terms, and pay on or before their
due
date, all taxes, assessments, fees and other governmental monetary
obligations, except as they may be contested in good faith (if they
have
been properly reflected on its books) and, at the Bank’s request, have
adequate funds or security pledged or reserved to insure payment.
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4.3
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Financial
Records.
Maintain proper books and records of accounts, in accordance with
GAAP,
and consistent with financial statements previously submitted to
the
Bank.
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4.4
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Inspection.
Permit the Bank or its representatives, at those times and at the
intervals as the Bank may reasonably require: (1) to inspect, examine,
audit and copy its business records, and to discuss its business,
operations, prospects, assets, affairs and financial condition with
its
officers, employees and accountants; and (2) to inspect its business
operations and sites. Nothing in this agreement shall give the Bank
the
right to inspect or copy any records of any examination report of
the
Borrower’s supervisory Governmental Authority or other information that
the Borrower or any of its Subsidiaries are prohibited by any Legal
Requirement from disclosing without the consent of the supervising
Governmental Authority; provided, however, the Borrower will and
will
cause each of its Material Subsidiaries to, cooperate in obtaining
any
consent should the Bank request the
disclosure.
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4.5
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Notices
of Claims, Litigation, Defaults, etc.
Promptly inform the Bank in writing of (1) all existing and threatened
litigation, claims, investigations, administrative proceedings and
similar
actions or changes in Legal Requirements affecting it which could
materially affect any Obligor’s or any Material Subsidiary’s business,
property, affairs, prospects or financial condition; (2) the occurrence
of
any default or Event of Default and the circumstances which give
rise to
the Bank’s option to terminate the Credit Facilities to the extent the
disclosure does not violate any Legal Requirement; (3) any additions
to or
changes in its chief executive office or principal place of business;
and
(4) any alleged breach by the Bank of any provision of this agreement
or
of any other Related Documents.
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4.6
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Title
to Assets and Property.
Maintain good and marketable title to all of its assets and properties
and
defend its assets and properties against all claims and demands of
all
Persons at any time claiming any interest in
them.
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4.7
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Additional
Assurances.
Promptly make, execute and deliver any and all agreements, documents,
instruments and other records that the Bank may reasonably request
to
evidence any of the Credit Facilities, cure any defect in the execution
and delivery of any of the Related Documents, perfect any Lien, comply
with any Legal Requirement applicable to the Bank or the Credit Facilities
or more fully to describe particular aspects of the agreements set
forth
or intended to be set forth in any of the Related
Documents.
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4.8
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Compliance
Certificate.
Comply with each of the other additional covenants, if any, set forth
in
Exhibit A.
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4.9
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Ownership
of United Western Bank.
The Borrower shall at all times maintain ownership of one hundred
percent
(100%) of the capital stock of United Western
Bank.
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4.10
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Capitalization
Status.
The Borrower shall cause United Western Bank to maintain at all times
its
categorization as “Well Capitalized” as defined by the regulations of
United Western Bank’s primary Governmental
Authority.
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4.11
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Non-Performing
Assets Plus OREO Ratio.
The Borrower shall cause United Western Bank to maintain at all times
a
Non-Performing Assets Plus OREO Ratio of not greater than three and
one
quarter of one percent (3.25%). As used in this Section, the term
“Non-Performing
Assets Ratio”
means the ratio, determined on a consolidated basis for United Western
Bank, of the sum of Non-Perfoming Assets plus OREO, to the sum of
Total
Loans and Repossessed Assets plus OREO. As used in this Section,
(A)
“Non-Perfoming
Assets”
means the sum of all loans classified as past due 90 days or more
and
still accruing interest, all loans classified as “non-accrual” and no
longer accruing interest, all loans classified as “restructured loans and
leases”, total investment in restructured assets, net of specific
valuation allowances, total repossessed assets, net of general valuation
allowances, and all other “nonperforming loans”, excluding loans 100%
guaranteed by the U.S. government; (B) “Total
Loans and Repossessed Assets”
means the total of all performing and non-performing loans, valuation
allowances on all loans, and allowances for loan and lease losses
on all
loans; and (C) “OREO”
means the book value, net of accumulated depreciation, of all other
real
estate owned by United Western Bank, excluding all real estate which
is
not occupied and used by United Western Bank in the ordinary course
of
business. The ratio set forth in this Section shall be measured quarterly
and shall be determined from the applicable Call Report filed with
the
applicable Governmental Authority.
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5.
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Negative
Covenants. Without
the prior written consent of the Bank, the Borrower will not and
no
Material Subsidiary of the Borrower
will:
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5.1
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Indebtedness.
Incur, contract for, assume, permit to remain outstanding, or in
any
manner become liable in respect of any Indebtedness, other than (1)
Indebtedness incurred in the ordinary course of business and in accordance
with applicable Legal Requirements and safe and sound banking practices;
(2) Indebtedness reflected in the financial statements dated December
31,
2006; (3) additional Indebtedness contracted for after the date of
this
agreement that does not exceed the amounts reflected in those financial
statements described in (2) above; (4) upon the approval of the Bank,
Subordinated Debt; (5) additional trust preferred securities in an
amount
not to exceed $10,000,000.00; and (6) Indebtedness of United Western
Bank
incurred in the normal course of business, in accordance with safe
and
sound banking practices and types consistent with borrowings reflected
in
the financial statements dated December 31, 2006, to the Bank or
any of
its Affiliates and to the Federal Home Loan Bank of Topeka, the Federal
Home Loan Bank of Dallas, Citigroup, Inc. or the Federal Reserve
Bank of
Kansas City.
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5.2
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Liens.
Create, assume, incur, suffer or permit to exist any Lien of any
kind or
character upon or with respect to any of its assets or properties,
whether
now owned at the date hereof or later acquired, or assign or otherwise
convey any right to receive income, other than (i) in the ordinary
course
of its business and in accordance with applicable laws and regulations
and
safe and sound banking practices including but not limited to Liens
in
connection with United Western Bank’s acquisition of various assets,
generally but not exclusively through foreclosure or deed in lieu
of
foreclosure, provided that such Liens do not materially affect any
Obligor’s or any Material Subsidiary’s business, property, affairs,
prospects or financial condition; (ii) Liens that would not in any
one
case or in the aggregate materially adversely affect the Borrower
and its
Subsidiaries taken as a whole; and (iii) Liens securing the Indebtedness
of United Western Bank incurred in the normal course of business,
in
accordance with safe and sound banking practices and types consistent
with
borrowings reflected in the financial statements dated December 31,
2006,
to the Bank or any of its Affiliates and to the Federal Home Loan
Bank of
Topeka, the Federal Home Loan Bank of Dallas, Citigroup, Inc. or
the
Federal Reserve Bank of Kansas
City.
|
|
5.3
|
Disposal
of Equity Interest in any Subsidiary.
Pledge, sell, convey, assign, or otherwise dispose of or permit to
exist
any Lien on any Equity Interest in any Subsidiary other than in favor
of
the Bank.
|
|
5.4
|
Merger
or Consolidations.
(1) Dissolve; (2) merge or consolidate with any Person; (3) lease,
sell or
otherwise convey a material part of its assets or business outside
the
ordinary course of its business; (4) lease, purchase, or otherwise
acquire
a material part of the assets of any other Person, except in the
ordinary
course of its business; or (5) agree to do any of the foregoing;
provided,
however, that notwithstanding the foregoing, any Subsidiary other
than
United Western Bank may merge or consolidate with any other Subsidiary,
or
with the Borrower, so long as the Borrower is the
survivor.
|
|
5.5
|
Use
of Proceeds.
Use, or permit any proceeds of the Credit Facilities to be used,
directly
or indirectly, for the purpose of “purchasing or carrying any margin
stock” within the meaning of Federal Reserve Board Regulation U
(“Regulation
U”).
At the Bank’s request, the Borrower will furnish a completed Federal
Reserve Board Form U-1.
|
|
5.6
|
Negative
Pledge of Assets.
Enter into any agreement with any Person other than the Bank which
prohibits or limits its ability to create or permit to exist any
Lien on
any of its property, assets or revenues, whether now owned or hereafter
acquired.
|
|
5.7
|
Affiliate
Transactions.
Enter into any transaction or agreement with any Affiliate in violation
of
any Legal Requirement.
|
|
5.8
|
Continuity
of Operations.
(1) Engage in any business activities substantially different from
those
in which it is presently engaged; or (2) cease operations, liquidate,
change its name, dissolve, or sell any assets out of the ordinary
course
of business,
|
Page 7
of
15
|
5.9
|
Conflicting
Agreements.
Enter into any agreement containing any provision which would be
violated
or breached by the performance of its obligations under this agreement
or
any of the other Related Documents.
|
|
5.10
|
Government
Regulation.
(1) Be or become subject at any time to any Legal Requirement (including,
without limitation, the U.S. Office of Foreign Asset Control list)
that
prohibits or limits the Bank from making any advance or extension
of
credit to the Borrower or from otherwise conducting business with
it; or
(2) fail to provide documentary and other evidence of its identity
as may
be requested by the Bank at any time to enable the Bank to verify
its
identity or to comply with any Legal Requirement, including, without
limitation, Section 326 of the USA Patriot Act of 2001, 31 U.S.C.
Section
5318.
|
|
6.
|
Representations,
Warranties and Covenants by the Borrower. To
induce the Bank to enter into this agreement and to extend credit
or other
financial accommodations under the Credit Facilities, the Borrower
represents and warrants as of the date of this agreement and as of
the
date of each request for credit under the Credit Facilities that
each of
the following statements is and shall remain true and correct throughout
the term of this agreement and until all Credit Facilities and all
amounts
owing under the Notes and other Related Documents are paid in
full:
|
|
6.1
|
Organization
and Status.
The Borrower is a Colorado corporation registered as a savings and
loan
holding company with the Director of the Office of Thrift Supervision,
and
the Borrower and each of its Material Subsidiaries is duly organized,
validly existing and in good standing under the laws of its organization
and is duly qualified to do business and is in good standing under
the
laws of each state in which the ownership of its properties and the
nature
and extent of the activities transacted by it makes such qualification
necessary.
|
|
6.2
|
Financial
Statements.
All financial statements delivered to the Bank are complete and correct
and fairly present, in accordance with GAAP, the financial condition
and
the results of operations of the Borrower and each Subsidiary of
the
Borrower, as at the dates and for the periods indicated. No material
adverse change has occurred in the assets, liabilities, financial
condition, business or affairs of the Borrower or any of its Material
Subsidiaries since the dates of such financial statements dated December
31, 2006. Neither the Borrower nor any of its Material Subsidiaries
is
subject to any instrument or agreement materially and adversely affecting
its financial condition, operations, business or
affairs.
|
|
6.3
|
Enforceability.
This agreement, the Notes, and the other Related Documents have been
duly
authorized, executed and delivered by the Parties thereto and are
valid
and binding agreements of the Parties, enforceable according to their
terms, except as may be limited by bankruptcy, insolvency, reorganization
or other laws affecting the enforcement of creditors’ rights generally and
by general principles of equity. The execution, delivery and performance
of this agreement, the Notes and the other Related Documents and
the
obligations that they impose, do not violate any Legal Requirement,
conflict with any agreement by which any Party is bound, or require
the
consent or approval of any Governmental Authority or other third
party
which has not been promptly obtained in connection with the execution
and
delivery of this agreement and the other Related
Documents.
|
|
6.4
|
Litigation.
There is no litigation, claim, investigation, administrative proceeding
or
similar action (including those for unpaid taxes) against the Borrower,
any of its Material Subsidiaries or any other Obligor pending or
threatened, and no other event has occurred, which may in any one
case or
in the aggregate materially adversely affect the Borrower, any of
its
Material Subsidiaries, any other Obligor or any of their respective
financial conditions and properties, other than litigation, claims,
or
other events, if any, that have been disclosed to and acknowledged
by the
Bank in writing.
|
|
6.5
|
Title
and Rights.
The Borrower and each of its Material Subsidiaries have good and
marketable title to their respective properties, free and clear of
any
Lien except for Liens disclosed to and approved in writing by the
Bank and
those permitted by this agreement and the other Related Documents.
The
Borrower and each of its Material Subsidiaries possess all permits,
licenses, patents, trademarks and copyrights required to conduct
their
respective businesses.
|
|
6.6
|
Regulation
U; Business Purpose.
None of the proceeds of any of the Credit Facilities will be used
to
purchase or carry, directly or indirectly, any margin stock or for
any
other purpose which would make this credit a “purpose credit” within the
meaning of Regulation U or not an exempt transaction under Regulation
U.
All Credit Facilities will be used for business purposes and for
the
express purposes that the Borrower has informed the Bank that it
will use
the credit. None of the stock of the Borrower’s Subsidiaries is margin
stock as defined in Regulation U.
|
Page 8
of
15
|
6.7
|
Capital
Stock of the Borrower’s Material Subsidiaries.
(1) All of the issued and outstanding capital stock of each of the
Borrower’s Material Subsidiaries (the “Borrower’s
Subsidiaries’ Material Shares”)
has been duly authorized, legally and validly issued, fully paid
and
non-assessable, and the Borrower’s Material Subsidiaries’ Shares are owned
by the Borrower, free and clear of all Liens, except as may exist
for the
benefit of the Bank; (2) none of the Borrower’s Material Subsidiaries’
Shares have been issued in violation of any shareholder’s preemptive
rights; and (3) there are, as of the date of this agreement, no
outstanding options, rights, warrants, plans, understandings or other
agreements or instruments obligating the Borrower to issue, deliver
or
sell, or cause to be issued, delivered or sold, or contemplating
or
providing for the issuance of, additional shares of the capital stock
of
the Borrower’s Material Subsidiaries, or obligating the Borrower or the
Borrower’s Material Subsidiaries to grant, extend or enter into any such
agreement or commitment.
|
|
6.8
|
Regulatory
Enforcement Actions.
None of the Borrower, or any of its Material Subsidiaries, or any
of their
respective officers or directors, is now operating under or will
operate
under any effective written restrictions agreed to by the Borrower
or by
any of its Material Subsidiaries, or agreements, memoranda, or written
commitments by the Borrower or by any of its Material Subsidiaries
(other
than restrictions of general application) imposed or required by
any
Governmental Authority nor are any such restrictions threatened or
agreements, memoranda or commitments being sought by any Governmental
Authority.
|
|
6.9
|
No
Liens.
The Borrower is not a party to any agreement, instrument or undertaking
or
subject to any other restriction pursuant to which the Borrower has
placed, or will be required to place (or under which any other Person
may
place), a Lien upon any of its properties securing Indebtedness,
either
upon demand or upon the happening of a condition, with or without
any
demand.
|
|
6.10
|
Compliance.
The Borrower and each of its Material Subsidiaries has filed all
applicable tax returns and paid all taxes shown thereon to be due,
except
those for which extensions have been obtained and those which are
being
contested in good faith and for which adequate reserves have been
established. The Borrower and each of its Material Subsidiaries is
in
compliance with all applicable material Legal Requirements and manages
and
operates (and will continue to manage and operate) its business in
accordance with good industry practices. Neither the Borrower nor
any of
its Material Subsidiaries is in default in the payment of any other
Indebtedness or under any agreement to which it is a party. The Parties
have obtained all consents of and registered with all Governmental
Authorities and other Persons required to execute, deliver and perform
the
Related Documents.
|
|
6.11
|
No
Claims Against the Bank.
There are no defenses or counterclaims, offsets or adverse claims,
demands
or actions of any kind, personal or otherwise, that the Borrower
or any
other Obligor could assert with respect to this agreement or the
Credit
Facilities.
|
|
6.12
|
Statements
by Others.
All statements made by or on behalf of the Borrower, any of its Material
Subsidiaries or any other of the Parties in connection with any Related
Document constitute the joint and several representations and warranties
of the Borrower under this
agreement.
|
|
6.13
|
Environment.
The Borrower and each of its Material Subsidiaries have complied
with
applicable Legal Requirements in each instance in which any of them
have
generated, handled, used, stored or disposed of any hazardous or
toxic
waste or substance, on or off its premises (whether or not owned
by any of
them). Neither the Borrower nor any of its Material Subsidiaries
has any
material contingent liability for non-compliance with environmental
or
hazardous waste laws. Neither the Borrower nor any of its Material
Subsidiaries has received any notice that it or any of its property
or
operations does not comply with, or that any Governmental Authority
is
investigating its compliance with, any environmental or hazardous
waste
laws.
|
|
6.14
|
Continuing
Representations.
Each request for an advance or conversion or continuation of an advance
under any of the Credit Facilities shall constitute a representation
and
warranty by the Borrower that all of the representations and warranties
set forth in this agreement shall be true and correct on and as of
such
date with the same effect as though such representations and warranties
had been made on such date, except to the extent that such representations
and warranties are stated to expressly relate solely to an earlier
date.
|
Page 9
of
15
7. Default/Remedies.
7.1 Events
of Default.
Each of the following is an “Event
of Default”:
A. The
Borrower or any other Obligor fails to pay when due any amount payable (1)
under
the Notes or under any other Liabilities; or (2) under any agreement or
instrument evidencing Indebtedness to any creditor other than the
Bank.
B. The
Borrower, any of its Material Subsidiaries or any other Obligor (1) fails to
observe or perform or otherwise violates any other term, covenant, condition
or
agreement of any of the Notes or other Related Documents; (2) makes any
materially incorrect or misleading representation, warranty, or certificate
to
the Bank; (3) makes any materially incorrect or misleading representation in
any
financial statement or other information delivered to the Bank; or (4) defaults
under the terms of any agreement or instrument relating to any Indebtedness
(other than the Indebtedness evidenced by the Notes) and the effect of such
default will allow the creditor to declare the Indebtedness due before its
maturity.
C. In
the event (1) there is a default under the terms of any Related Document; or
(2)
the Borrower fails to comply with, or pay, or perform under any agreement,
now
or hereafter in effect, between the Borrower and JPMorgan Chase & Co. or any
of its Affiliates or their successors and assigns and the failure to comply
with, pay or perform is not cured within any cure period specified in such
agreement.
D. The
Borrower, any of its Material Subsidiaries or any other Obligor becomes
insolvent or unable to pay its debts as they become due.
E. The
Borrower, any of its Material Subsidiaries or any other Obligor (1) makes an
assignment for the benefit of creditors; (2) consents to the appointment of
a
custodian, receiver, or trustee for itself or for a substantial part of its
assets; or (3) commences any proceeding under any bankruptcy, reorganization,
liquidation, insolvency or similar laws of any jurisdiction.
F. A
custodian, receiver, conservator or trustee is appointed for the Borrower,
any
Material Subsidiary of the Borrower or any other Obligor or for a substantial
part of its assets.
G. Proceedings
are commenced against the Borrower, any Material Subsidiary of the Borrower
or
any other Obligor under any bankruptcy, reorganization, liquidation, or similar
laws of any jurisdiction, and they remain undismissed for thirty (30) days
after
commencement; or the Borrower, any Subsidiary of the Borrower or any other
Obligor consents to the commencement of those proceedings.
H. If
any of the Borrower’s assets are attached, seized, subjected to a writ, or are
levied upon or become subject to any Lien (with the exception of statutory
Liens) or come within the possession of any receiver, trustee, custodian or
assignee for the benefit of creditors; or if a notice of Lien, levy or
assessment is filed of record or given to the Borrower or any Material
Subsidiary of the Borrower with respect to all or any of their respective assets
by any Governmental Authority.
I. The
FRB, the FDIC, the CDOB, the OCC, the OTS, the SEC or any other Governmental
Authority charged with the regulation of bank holding companies or financial
institutions issues to the Borrower or any of its Material Subsidiaries, or
initiates through formal proceedings any action, suit or proceeding to obtain
against, impose on or require from the Borrower or any of its Material
Subsidiaries a cease and desist order or similar regulatory order, injunction,
temporary restraining order, the assessment of civil monetary penalties,
articles of agreement, a memorandum of understanding, a capital directive,
a
capital restoration plan, restrictions (other than board resolutions adopted
at
the direction of a Governmental Authority) that prevent or as a practical matter
impair the payment of dividends by any of its Material Subsidiaries, the
payments of any Indebtedness by the Borrower or the conduct of any or all of
the
business affairs of the Borrower or any of its Material Subsidiaries,
restrictions (other than board resolutions adopted at the direction of a
Governmental Authority) that make the payment of the dividends by any of its
Material Subsidiaries, the payment of Indebtedness by the Borrower or the
conduct of any or all of the business affairs of the Borrower or any of its
Material Subsidiaries subject to prior regulatory approval, a notice or finding
under subsection 8(a) of the Federal Deposit Insurance Act, as amended, or
any
similar enforcement action, measure or proceeding.
Page
10 of
15
J. If
the Borrower or any of its Material Subsidiaries is in default in the
performance of any other term, condition or covenant contained in any agreement
(including, but not limited to, an agreement in connection with the acquisition
of capital equipment on a title retention or net lease basis), under which
any
such indebtedness is created the effect of which default in performance is
to
cause or permit the holder of the indebtedness to cause the indebtedness to
become due prior to its stated maturity.
K. A
change of control of the Borrower shall occur or the Borrower shall have the
option, exercisable on at least one (1) Business Day’s prior notice, upon the
consummation, in whole or in part, of any transaction effecting any change
of
control of the Borrower that, in either case, has been approved as such, or
is
required to be approved by any Governmental Agency.
L. A
material adverse change occurs in the assets, liabilities, financial condition,
business or affairs of any Obligor or any Material Subsidiary.
|
7.2
|
Remedies.
At any time after the occurrence of a default, the Bank may do one
or more
of the following: (a) cease permitting the Borrower to incur any
Liabilities; (b) terminate any commitment of the Bank evidenced by
any of
the Notes; (c) declare any of the Notes to be immediately due and
payable,
without notice of acceleration, presentment and demand or protest
or
notice of any kind, all of which are hereby expressly waived; (d)
exercise
all rights of setoff that the Bank may have contractually, by law,
in
equity or otherwise; and (e) exercise any and all other rights pursuant
to
any of the Related Documents, at law, in equity or
otherwise.
|
A. Generally.
The rights of the Bank under this agreement and the other Related Documents
are
in addition to other rights (including without limitation, other rights of
setoff) the Bank may have contractually, by law, in equity or otherwise, all
of
which are cumulative and hereby retained by the Bank. Each Obligor agrees to
stand still with regard to the Bank’s enforcement of its rights, including
taking no action to delay, impede or otherwise interfere with the Bank’s rights
to realize on any collateral.
B. Expenses.
To the extent not prohibited by applicable law and whether or not the
transactions contemplated by this agreement are consummated, the Borrower is
liable to the Bank and agrees to pay on demand all reasonable costs and expenses
of every kind incurred (or charged by internal allocation) in connection with
the negotiation, preparation, execution, filing, recording, modification,
supplementing and waiver of the Related Documents, the making, servicing and
collection of the Credit Facilities and the realization on any collateral and
any other amounts owed under the Related Documents, including without limitation
reasonable attorneys’ fees (including counsel for the Bank that are employees of
the Bank or its affiliates) and court costs. These costs and expenses include
without limitation any costs or expenses incurred by the Bank in any bankruptcy,
reorganization, insolvency or other similar proceeding involving any of the
Parties or property of any of the Parties. The obligations of the Borrower
under
this section shall survive the termination of this agreement.
C. Bank’s
Right of Setoff.
The Borrower grants to the Bank a security interest in the Deposits, and the
Bank is authorized to setoff and apply, all Deposits, Securities and Other
Property, and Bank Debt against any and all Liabilities. This right of setoff
may be exercised at any time and from time to time after the occurrence of
any
default, without prior notice to or demand on the Borrower and regardless of
whether any Liabilities are contingent, unmatured or unliquidated. In this
paragraph: (a) the term “Deposits” means any and all accounts and deposits of
the Borrower (whether general, special, time, demand, provisional or final)
at
any time held by the Bank (including all Deposits held jointly with another,
but
excluding any ▇▇▇ or ▇▇▇▇▇ Deposits, or any trust Deposits in which a security
interest would be prohibited by law); (b) the term “Securities and Other
Property” means any and all securities and other personal property of the
Borrower in the custody, possession or control of the Bank, JPMorgan Chase
&
Co. or their respective subsidiaries and affiliates (other than property held
by
the Bank in a fiduciary capacity); and (c) the term “Bank Debt” means all
indebtedness at any time owing by the Bank, to or for the credit or account
of
the Borrower and any claim of the Borrower (whether individual, joint and
several or otherwise) against the Bank now or hereafter existing.
Page
11 of
15
|
7.3
|
Cure
Periods.
Except as expressly provided to the contrary in this agreement or
any of
the other Related Documents, the Bank shall not exercise its option
to
accelerate the maturity of the Notes upon the occurrence of a default
unless the default has not been fully cured (i) within five (5) days
after
its occurrence, if the condition, event or occurrence giving rise
to the
default can be cured solely by the payment of money or (ii) within
ten
(10) days after its occurrence, if the condition, event or occurrence
giving rise to the default is of a nature that it cannot be cured
solely
by the payment of money.
|
Provided,
however,
that the Borrower shall have no cure rights if the condition, event or
occurrence giving rise to the default: (a) is described in any of clauses (D),
(E), (F), (G), (H), (I), (J) or (L) of the section above captioned Events of
Default; or (b) constitutes a breach of any covenant in any of the Related
Documents prohibiting the sale or transfer of (i) any property of any loan
party
or (ii) any collateral; or (c) during the twelve (12) month period immediately
preceding the occurrence of the default either (A) the same default has occurred
or (B) three (3) or more other defaults of any nature have occurred.
Notwithstanding the existence of any cure period, the Bank shall have no
obligation to extend credit governed by this agreement, whether by advance,
disbursement of a loan or otherwise after the occurrence of any default or
event
which with the giving of notice or the passage of time or both could become
a
default or during any cure period. The inclusion of any cure period in this
agreement shall have no bearing on the due dates for payments under any of
the
Related Documents, whether for purposes of calculating late payment charges
or
otherwise.
8. Miscellaneous.
|
8.1
|
Notice.
Any notices and demands under or related to this document shall be
in
writing and delivered to the intended party at its address stated
in this
agreement, and if to the Bank, at its main office if no other address
of
the Bank is specified in this agreement, by one of the following
means:
(I) by hand, (2) by a nationally recognized overnight courier service,
or
(3) by certified mail, postage prepaid, with return receipt requested.
Notice shall be deemed given: (1) upon receipt if delivered by hand,
(2)
on the Delivery Day after the day of deposit with a nationally recognized
courier service, or (3) on the third Delivery Day after the notice
is
deposited in the mail. “Delivery
Day”
means a day other than a Saturday, a Sunday or any other day on which
national banking associations are authorized to be closed. Any party
may
change its address for purposes of the receipt of notices and demands
by
giving notice of such change in the manner provided in this
provision.
|
|
8.2
|
No
Waiver.
No delay on the part of the Bank in the exercise of any right or
remedy
waives that right or remedy. No single or partial exercise by the
Bank of
any right or remedy precludes any other future exercise of it or
the
exercise of any other right or remedy. The making of an advance during
the
existence of any default or Event of Default or subsequent to the
occurrence of a default or Event of Default or when all conditions
precedent have not been met shall not constitute a waiver of the
default,
Event of Default or condition precedent. No waiver or indulgence
by the
Bank of any default is effective unless it is in writing and signed
by the
Bank, nor shall a waiver on one occasion bar or waive that right
on any
future occasion.
|
|
8.3
|
Integration.
This agreement, the Notes, and any agreement related to the Credit
Facilities embody the entire agreement and understanding of the Borrower
and the Bank and supersede all prior agreements and understandings
relating to their subject matter. If any one or more of the obligations
of
the Borrower under this agreement or the Notes is invalid, illegal
or
unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining obligations of the Borrower shall
not in
any way be affected or impaired, and the invalidity, illegality or
unenforceability in one jurisdiction shall not affect the validity,
legality or enforceability of the obligations of the Borrower under
this
agreement or the Notes in any other
jurisdiction.
|
|
8.4
|
Joint
and Several Liability.
Each party executing this agreement as the Borrower is individually,
jointly and severally liable under this
agreement.
|
|
8.5
|
Choice
of Law.
THIS AGREEMENT SHALL BE DEEMED TO BE EXECUTED AND HAS BEEN DELIVERED
AND
ACCEPTED IN DENVER, COLORADO BY SIGNING AND DELIVERING IT THERE.
ANY
DISPUTE BETWEEN THE PARTIES HERETO ARISING OUT OF, CONNECTED WITH,
RELATED
TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH THIS AGREEMENT, AND WHETHER ARISING IN CONTRACT,
TORT,
EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL
LAWS AND NOT THE CONFLICTS OF LAW PROVISIONS OF THE STATE OF
COLORADO.
|
Page 12
of
15
|
8.6
|
CONSENT
TO JURISDICTION. THE BANK AND THE BORROWER AGREE THAT ALL DISPUTES
BETWEEN
THEM ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO
THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT
OR
ANY OF THE OTHER RELATED DOCUMENTS, AND WHETHER ARISING IN CONTRACT,
TORT,
EQUITY OR OTHERWISE, SHALL BE RESOLVED ONLY BY STATE OR FEDERAL COURTS
LOCATED IN DENVER COUNTY, COLORADO, BUT THE BANK AND THE BORROWER
ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD
BY A
COURT LOCATED OUTSIDE OF DENVER COUNTY, COLORADO. THE BORROWER WAIVES
IN
ALL DISPUTES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE
COURT
CONSIDERING THE DISPUTE.
|
|
8.7
|
Captions.
Section headings and titles are for convenience of reference only
and do
not affect the interpretation of this
agreement.
|
|
8.8
|
Creditors
Proceedings.
In any action or proceeding involving any state corporate law, or
any
state, federal or foreign bankruptcy, insolvency, reorganization
or other
Legal Requirement affecting the rights of creditors generally, if
the
obligations of the Borrower under this agreement would otherwise
be held
or determined to be avoidable, invalid or unenforceable on account
of the
amount of the Borrower’s liability under this agreement, then,
notwithstanding any other provision of this agreement to the contrary,
the
amount of such liability shall, without any further action by the
Borrower
or the Bank, be automatically limited and reduced to the highest
amount
that is valid and enforceable as determined in such action or
proceeding.
|
|
8.9
|
Survival
of Representations and Warranties.
The Borrower understands and agrees that in extending the Credit
Facilities, the Bank is relying on all representations, warranties,
and
covenants made by the Borrower and the other Parties in this agreement,
any other Related Documents or in any certificate or other instrument
delivered by the Parties. The Borrower further agrees that regardless
of
any investigation made by the Bank, all such representations, warranties
and covenants will survive the making of the Credit Facilities and
delivery to the Bank of this agreement, shall be continuing in nature,
and
shall remain in full force and effect until such time as the Liabilities
to the Bank shall be paid in fall.
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8.10
|
Non-Liability
of the Bank.
The relationship of the Borrower and the Bank created by this agreement
is
strictly a debtor and creditor relationship and not fiduciary in
nature,
nor is the relationship to be construed as creating any partnership
or
joint venture between the Bank and the Borrower. The Borrower is
exercising the Borrower’s own judgment with respect to its business. All
information supplied to the Bank is for the Bank’s protection only and no
other party is entitled to rely on such information. There is no
duty for
the Bank to review, inspect, supervise or inform the Borrower of
any
matter with respect to its business. The Bank and the Borrower intend
that
the Bank may reasonably rely on all information supplied by the Borrower
or any other Parties to the Bank, together with all representations
and
warranties given by the Borrower and the other Parties to the Bank,
without investigation or confirmation by the Bank and that any
investigation or failure to investigate will not diminish the Bank’s right
to so rely.
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8.11
|
Indemnification
of the Bank.
The Borrower agrees to indemnify, defend and hold the Bank, its parent
companies, subsidiaries, affiliates, their respective successors
and
assigns and each of their respective shareholders, directors, officers,
employees and agents (collectively, the “Indemnified
Persons”)
harmless from any and against any and all loss, liability, obligation,
damage, penalty, judgment, claim, deficiency, expense, interest,
penalties, attorneys’ fees (including the fees and expenses of attorneys
engaged by the Indemnified Person at the Indemnified Person’s reasonable
discretion) and amounts paid in settlement (“Claims”)
to which any Indemnified Person may become subject arising out of
or
relating to this agreement or the collateral, except to the limited
extent
that the Claims are proximately caused by the Indemnified Person’s gross
negligence or willful misconduct. The indemnification provided for
in this
paragraph shall survive the termination of this agreement and shall
not be
affected by the presence, absence or amount of or the payment or
nonpayment of any claim under, any
insurance.
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8.12
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Counterparts.
This agreement may be executed in multiple counterparts, each of
which,
when so executed, shall be deemed an original, but all such counterparts,
taken together, shall constitute one and the same
agreement.
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8.13
|
Recovery
of Additional Costs.
If the imposition of or any change in any Legal Requirement, or the
interpretation or application of any thereof by any Governmental
Authority
(including any request or policy not having the force of law) shall
impose, modify, or make applicable any taxes (except federal, state,
or
local income or franchise taxes imposed on the Bank), reserve
requirements, capital adequacy requirements, or other obligations
which
would (1) increase the cost to the Bank for extending or maintaining
the
Credit Facilities; (2) reduce the amounts payable to the Bank under
the
Credit Facilities; or (3) reduce the rate of return on the Bank’s capital
as a consequence of the Bank’s obligations with respect to the Credit
Facilities, then the Borrower agrees to pay the Bank such additional
amounts as will compensate the Bank therefor, within five (5) days
after
the Bank’s written demand for such payment. The Bank’s demand shall be
accompanied by an explanation of such imposition or charge and a
calculation in reasonable detail of the additional amounts payable
by the
Borrower which explanation and calculations shall be conclusive in
the
absence of manifest error.
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8.14
|
Conflicting
Terms.
If this agreement is inconsistent with any provision in any Related
Documents, the Bank shall determine which of the provisions shall
control
any such inconsistency.
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8.15
|
Expenses.
The Borrower agrees to pay or reimburse the Bank for all its out-of-pocket
costs and expenses and reasonable attorneys’ fees incurred in connection
with the preparation and execution of this agreement, any amendment,
supplement, or modification thereto, and any other documents prepared
in
connection herewith or therewith.
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8.16
|
Reinstatement.
The Borrower agrees that to the extent any payment or transfer is
received
by the Bank in connection with the Liabilities, and all or any part
of the
payment or transfer is subsequently invalidated, declared to be fraudulent
or preferential, set aside or required to be repaid or transferred
by the
Bank or paid or transferred over to a trustee, receiver or any other
entity, whether under any proceeding or otherwise (any of those payments
or transfers is hereinafter referred to as a “Preferential
Payment”),
then this agreement and the Credit Facilities shall continue to be
effective or shall be reinstated, as the case may be, even if all
those
Liabilities have been paid in full and whether or not the Bank is
in
possession of the Notes and whether any of the Notes has been marked,
paid, released or cancelled, or returned to the Borrower and, to
the
extent of the payment, repayment or other transfer by the Bank, the
Liabilities or part intended to be satisfied by the Preferential
Payment
shall be revived and continued in full force and effect as if the
Preferential Payment had not been made. The obligations of the Borrower
under this section shall survive the termination of this
agreement.
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8.17
|
Severability.
If any provision of this agreement cannot be enforced, the remaining
portions of this agreement shall continue in
effect.
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8.18
|
Assignments.
The Borrower agrees that the Bank may provide any information or
knowledge
the Bank may have about the Borrower or about any matter relating
to the
Notes or the Related Documents to JPMorgan Chase & Co., or any of its
subsidiaries or affiliates or their successors, or to any one or
more
purchasers or potential purchasers of the Notes or the Related Documents.
The Borrower agrees that the Bank may at any time sell, assign or
transfer
one or more interests or participations in all or any part of its
rights
and obligations in the Notes to one or more purchasers whether or
not
related to the Bank.
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8.19
|
Waivers.
All Obligors jointly and severally waive notice, demand, presentment
for
payment, notice of nonpayment, notice of acceleration, protest, notice
of
protest, and the filing of suit and diligence in collecting the Notes
and
all other demands and notices, and consents and agrees that the Obligor’s
liabilities and obligations shall not be released or discharged by
any or
all of the following, whether with or without notice to the Obligor
or any
other Obligor, and whether before or after the maturity of the Notes:
(1)
extensions of the time of payment; (2) renewals; (3) acceptances
of
partial payments; and (4) releases or substitutions of any collateral
or
any Obligor. The Bank may waive or delay enforcing any of its rights
without losing them. Each Obligor agrees that acceptance of any partial
payment shall not constitute a waiver and that waiver of any default
shall
not constitute waiver of any prior or subsequent default. Any waiver
affects only the specific terms and time period stated in the waiver.
No
modification or waiver of this Agreement is effective unless it is
in
writing and signed by the party against whom it is being enforced.
Nothing
in this agreement is intended to waive or vary the duties of the
Bank or
the rights of the Borrower in violation of any provision of the Uniform
Commercial Code as adopted in the State of Colorado, as amended from
time
to time, that would prohibit the waiver or variation of those duties
and
rights by agreement of the parties.
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9.
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USA
PATRIOT ACT NOTIFICATION. The
following notification is provided to the Borrower pursuant to Section
326
of the USA Patriot Act of 2001, 31 U.S.C. Section
5318:
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IMPORTANT
INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the government
fight the funding of terrorism and money laundering activities, Federal law
requires all financial institutions to obtain, verify, and record information
that identifies each person or entity that opens an account, including any
deposit account, treasury management account, loan, other extension of credit,
or other financial services product. What this means for the Borrower: When
it
opens an account, if it is an individual, the Bank will ask for its name,
taxpayer identification number, residential address, date of birth, and other
information that will allow the Bank to identify it, and, if it is not an
individual, the Bank will ask for its name, taxpayer identification number,
business address, and other information that will allow the Bank to identify
it.
The Bank may also ask, if it is an individual, to see its driver’s license or
other identifying documents, and, if it is not an individual, to see its
Organizational Documents or other identifying documents.
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10.
|
WAIVER
OF SPECIAL DAMAGES. THE
BORROWER WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY
RIGHT
THE UNDERSIGNED MAY HAVE TO CLAIM OR RECOVER FROM THE BANK IN ANY
LEGAL
ACTION OR PROCEEDING ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES.
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11.
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JURY
WAIVER.
THE BORROWER AND THE BANK VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND
UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING
ANY DISPUTE (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) BETWEEN
THE
BORROWER AND THE BANK ARISING OUT OF OR IN ANY WAY RELATED TO THIS
AGREEMENT AND THE RELATED DOCUMENTS. THIS PROVISION IS A MATERIAL
INDUCEMENT TO THE BANK TO PROVIDE THE CREDIT
FACILITIES.
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Address
for Notices:
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BORROWER:
UNITED WESTERN BANCORP, INC.
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▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
CFO
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Address
for Notices:
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BANK:
JPMORGAN CHASE BANK, N.A.
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|
▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇
▇▇▇▇▇, ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
Division Manager of Financial Institutions Group
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By:
/s/
▇▇▇▇▇▇▇ ▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇
Title:
Vice President
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