Attached files
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| 8-K - FORM 8-K - UNITED WESTERN BANCORP INC | form_8k.htm |
Exhibit 10.1
Amendment
to Credit Agreement,
Note
Modification and Forbearance Agreement
This
agreement is dated as of January 15, 2010 (the "Effective Date"), by and
between United Western Bancorp, Inc. (the "Borrower") and JPMorgan Chase
Bank, N.A. (together with its successors and assigns the "Bank"). The
provisions of this agreement are effective as of the Effective Date on the date
that the Borrower has satisfied all the conditions precedent in Section 7 of
this agreement.
WHEREAS, the Borrower executed
and delivered to the Bank that certain Line of Credit Note (with principal
reduction) dated as of September 30, 2009, in the original principal amount of
Twenty-Five Million and 00/100 Dollars ($25,000,000.00) (the "Note"), as evidence of an
extension of credit from the Bank to the Borrower, which Note has at all
times been, and is now, continuously and without interruption outstanding in
favor of the Bank;
WHEREAS, the Note matured
December 31, 2009, and, as of the Effective Date, the principal amount
outstanding under the Note is Twenty Million and 00/100 Dollars
($20,000,000.00);
WHEREAS, the Note is subject
to that certain Credit Agreement dated as of June 29, 2007, as amended by that
certain Amendment to Credit Agreement dated as of June 30, 2008, that certain
Amendment to Credit Agreement dated as of June 29, 2009, that certain Amendment
to Credit Agreement dated as of September 30, 2009, and that certain Amendment
and Forbearance Agreement dated as of December 14, 2009 (the "Credit Agreement");
and,
WHEREAS, pursuant to that
certain Amendment and Forbearance Agreement dated as of December 14, 2009 (the
"Original Forbearance
Agreement") and subject to the terms and conditions therein, the Bank
agreed that during the period commencing on November 30, 2009 until December 31,
2009 (the "Original
Forbearance Period"), it
will forbear from declaring the Note to be immediately due and payable as a
result of the execution of the Memoranda of Understanding (as defined in the
Original Forbearance Agreement) and the Events of Default resulting from the
execution of the Memoranda of Understanding (the "Existing Defaults"), as
further described in the Original Forbearance Agreement;
WHEREAS, the Borrower has
requested and the Bank has agreed to: (a) extend the Original Forbearance
Period, (b) modify the Note as set forth in this agreement and (c) amend the
Credit Agreement as set forth in this agreement (collectively, the "Request");
NOW THEREFORE, in mutual
consideration of the agreements contained herein and for other good and valuable
consideration, the parties agree as follows:
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1.
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DEFINED TERMS. Unless
otherwise defined in this agreement, capitalized terms used in this
agreement shall have the same meanings as in the Note or the Credit
Agreement, as applicable.
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2.
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FORBEARANCE
AGREEMENT. The Borrower
agrees and acknowledges that: (a) the Original Forbearance Period expired
December 31, 2009, (b) the Note matured on December 31, 2009, and the
Liabilities outstanding under the Note are now due and payable, (c) the
Existing Defaults have occurred, are continuing under the Related
Documents and have not been waived by the Bank and (d) the Bank has no
obligation to make any Advances under the Note. The Borrower
has requested that the Bank: (x) extend the time to repay the outstanding
amount of the Note until June 30, 2010 and (y) continue to forbear from
exercising its remedies under the Credit Agreement resulting from the
Existing Defaults until June 30, 2010, at which time the Borrower will pay
the entire amount of principal and accrued interest outstanding under the
Note.
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The Bank
agrees to (a) extend the time for repayment of the Note until June 30, 2010, (b)
continue to forbear from declaring the outstanding amount of the Note to be
immediately due and payable as a result of the Existing Defaults but only during
the period commencing on December 31, 2009 until June 30, 2010 (the "Forbearance Period") and (c)
amend the Credit Agreement as set forth below, provided that the Borrower agrees
to (x) the modifications of the Note as set forth below, (y) pledge to the Bank
readily marketable investment securities acceptable to the Bank (the "Marketable Securities") as
additional collateral for the Liabilities and (z) pay the Bank a fee in the
amount of $12,000.00 (the "Fee") as consideration for the
Bank's review and evaluation of the Request and for agreeing to the
Request.
The Bank
reserves its right at any time after the expiration or earlier termination of
the Forbearance Period, or at any time during the Forbearance Period upon the
Borrower’s failure to comply with this agreement or the occurrence of any
additional Events of Default or default under any of the terms and conditions of
the Credit Agreement or other Related Documents, to demand payment of the Note,
and to pursue legal action against the Borrower and exercise its remedies under
the Related Documents. The Borrower represents and warrants that the Borrower
continues to actively and diligently work on a repayment plan and proposal with
respect to the Liabilities evidenced by the Note and will keep the Bank informed
on its progress regarding refinancing the Liabilities with other
lenders.
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3. MODIFICATION OF
NOTE. From and after the Effective Date, the Note is hereby
modified as follows:
3.1 The term
"Stated Maturity Date"
is amended and restated to read as follows: "June 30, 2010".
3.2 The term
"Applicable Margin" is
amended and restated to read as follows:
"Applicable Margin" means with
respect to any CB Floating Rate Advance, 5.00% per annum and with respect to any
LIBOR Rate Advance, 7.00% per annum.
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3.3
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The
Borrower shall make principal payments on the Note as
follows:
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A.
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On
the date that this agreement is executed by the Borrower, the Borrower
shall make a principal payment in the amount of Two Million Five Hundred
Thousand and 00/100 Dollars
($2,500,000.00);
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B.
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On
March 31, 2010, the Borrower shall make a principal payment in the amount
of One Million Two Hundred Fifty Thousand and 00/100 Dollars
($1,250,000.00); and
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C.
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The
Borrower shall pay all outstanding principal and accrued and unpaid
interest on June 30, 2010.
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4. MODIFICATION OF CREDIT
AGREEMENT. From and after the Effective Date, the Credit Agreement is
hereby amended as follows:
4.1 The first
sentence of Section 4.11 captioned "Non-Performing Assets Plus OREO
Ratio" is amended and restated to read as follows:
The
Borrower shall cause United Western Bank to maintain at all times a
Non-Performing Assets Plus OREO Ratio of not greater than six and one-half
percent (6.50%) commencing December 31, 2009, and at all times
thereafter.
4.2 Exhibit A
to the Credit Agreement is amended and replaced with the Exhibit A attached
hereto and incorporated in this agreement by reference for all
purposes.
5. RELATED DOCUMENTS AND
COLLATERAL. Each of the Related Documents is modified to provide that it
shall be a default or an event of default thereunder if the Borrower shall fail
to comply with any of the covenants of the Borrower herein or if any
representation or warranty by the Borrower herein is materially incomplete,
incorrect, or misleading as of the date hereof, except as otherwise provided
herein. The Related Documents are ratified and reaffirmed by the
Borrower and shall remain in full force and effect as they may be modified by
this agreement. Each reference in the Related Documents to any of the Related
Documents shall be a reference to such document as modified by this
agreement. All property described as security in the Related
Documents shall remain as security for the Note, as modified by this agreement,
and the Liabilities under the other Related Documents.
6. BORROWER REPRESENTATIONS AND
WARRANTIES. The Borrower represents and warrants that (a) upon the
effectiveness of this agreement, except as provided herein, the representations
and warranties contained in the Related Documents are true and correct in all
material respects as of the date of this agreement, (b) no condition, event, act
or omission which could constitute a default or an event of default under the
Related Documents, as modified by this agreement, exists except as related to
the execution of the Memoranda of Understanding, (c) no other condition, event,
act or omission has occurred and is continuing that with the giving of notice,
or the passage of time or both, would constitute a default or an event of
default under the Related Documents, as modified by this agreement, and (d) it
has informed the Office of Thrift Supervision ("OTS") of its intention to make
the above described payments on the Note and that the Borrower has not received
any objection by the OTS to such payments.
7. BORROWER COVENANTS. The
Borrower covenants with the Bank: (a) the Borrower shall execute, deliver, and
provide to the Bank such additional agreements, documents, and instruments as
reasonably required by the Bank to effectuate the intent of this agreement, (b)
the Borrower fully, finally, and forever releases and discharges the Bank, its
successors, and assigns and their respective directors, officers, employees,
agents, and representatives (each a "Bank Party") from any and all
causes of action, claims, debts, demands, and liabilities, of whatever kind or
nature, in law or equity, of the Borrower, whether now known or unknown to the
Borrower, (i) in respect of the loan evidenced by the Note and the Related
Documents, or of the actions or omissions of any Bank Party in any manner
related to the loan evidenced by the Note or the Related Documents and (ii)
arising from events occurring prior to the date of this agreement, (c) to the
extent not prohibited by applicable law, the Borrower shall pay to the Bank all
the internal and external costs and expenses incurred (or charged by internal
allocation) by the Bank in connection with this agreement (including, without
limitation, inside and outside attorneys, appraisal, appraisal review,
processing, title, filing, and recording costs, expenses, and
fees).
8. ACKNOWLEDGEMENTS OF
BORROWER. The Borrower acknowledges that as of the date of this agreement
it has no offsets with respect to all amounts owed by the Borrower to the Bank
arising under or related to the Credit Agreement or the Note, as each is
modified by this agreement, or any other Related Document on or prior to the
date of this agreement. The Borrower
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acknowledges
and agrees that this agreement is limited to the terms outlined above, and shall
not be construed as an agreement to change any other terms or provisions of the
Credit Agreement or the Note. This agreement shall not establish a course of
dealing or be construed as evidence of any willingness on the Bank's part to
grant other or future agreements, should any be requested.
9. EXECUTION AND DELIVERY. This
agreement shall become effective only after: (a) it is fully executed by the
Borrower and the Bank, (b) the Bank shall have received in form and substance
satisfactory to the Bank: (i) a duly executed continuing pledge agreement to
evidence a first priority continuing security interest in favor of the Bank in
the Marketable Securities and proceeds thereof and (ii) a duly executed control
agreement from each securities intermediary or other custodian of the Marketable
Securities, (c) the Borrower shall have made a principal payment on the Note in
the amount of Two Million Five Hundred Thousand and 00/100 Dollars
($2,500,000.00) and (d) the Borrower shall have paid the Fee to the
Bank.
10. INTEGRATION, ENTIRE AGREEMENT,
CHANGE, DISCHARGE, TERMINATION, OR WAIVER. The Credit Agreement and the
Note, as each is modified by this agreement, and the other Related Documents
contain the complete understanding and agreement of the Borrower and the Bank in
respect of the Credit Facilities and supersede all prior understandings, and
negotiations. No provision of the Credit Agreement or the Note, as each is
modified by this agreement, or the other Related Documents may be changed,
discharged, supplemented, terminated, or waived except in a writing signed by
the party against whom it is being enforced.
11. COUNTERPART EXECUTION. 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.
12. NOT A NOVATION. This agreement
is a modification only and not a novation. In addition to all amounts hereafter
due under the Note, as modified by this agreement, and the other Related
Documents, all accrued interest evidenced by the Note being modified by this
agreement and all accrued amounts due and payable under the Related Documents
shall continue to be due and payable until paid. Except for the modification(s)
set forth in this agreement, the Credit Agreement, the Note, the other Related
Documents and all the terms and conditions thereof, shall be and remain in full
force and effect with the changes herein deemed to be incorporated therein. This
agreement is to be considered attached to each of the Credit Agreement and the
Note and made a part thereof. This agreement shall not release or affect the
liability of any guarantor, surety or endorser of the Liabilities or release any
owner of collateral securing the Liabilities. The validity, priority and
enforceability of the Credit Agreement and the Note shall not be impaired
hereby. References to the Related Documents and to other agreements shall not
affect or impair the absolute and unconditional obligation of the Borrower to
pay the principal and interest on the Note when due. The Bank reserves all
rights against all parties to the Credit Agreement, the Note and the other
Related Documents.
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Date
Signed:
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January 15, 2010 |
BORROWER:
UNITED WESTERN BANCORP, INC.
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By:
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/s/ William D. Snider | |||||||
| William D. Snider |
Vice Chairman and
Chief
Financial Officer
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Printed
Name
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Title
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BANK’S
ACCEPTANCE
The
foregoing agreement is hereby agreed to and acknowledged.
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Date
Signed:
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01/15/2010 |
BANK: JPMORGAN CHASE BANK,
N.A.
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By:
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/s/ Milena Kolev | ||||
| Milena Kolev | Vice President | ||||
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Printed
Name
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Title
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