LICENSE AGREEMENT
Exhibit
10.1
THIS
LICENSE AGREEMENT (“License”), entered into this 29th day of September, 2006, by
and between LEGENT CLEARING LLC, a Delaware limited liability company
(hereinafter “Licensor”), and UNITED WESTERN BANCORP, INC., a Colorado
corporation (hereinafter referred to collectively as “Licensee”).
1. License.
Licensor grants to Licensee, and Licensee accepts a limited term,
non-transferable, non-exclusive license to use the property located on Exhibit
“A” attached hereto on the terms and conditions set forth in this
License
(hereinafter “the Property”). Licensor warrants that it has the right to grant
the license pursuant to this License and that it has obtained any and all
necessary permissions from third parties to grant the license. Licensor shall
indemnify and hold Licensee harmless for any losses, claims, damages, awards,
penalties, or injuries incurred, including reasonable attorney's fees, which
arise from any claim by any third party of an alleged infringement of a property
right arising out of the use of the license by the Licensee in accordance with
the terms of this License. This indemnity shall survive the termination of
this
agreement.
2. Term.
This
License shall be for an initial term of seven (7) months (“Initial Term”),
commencing on the date hereof. Provided that Licensee shall not be in default
under this License, Licensee shall have the right, subject to payment of the
Monthly Payment (as defined below), to renew the License on a month to month
basis (“Subsequent Term”), and the License shall be terminable on thirty (30)
days notice given at any time by either party. All
other
provisions of this License except those pertaining to the term shall apply
to
the Subsequent Term.
3. Compensation.
Licensee agrees to pay Licensor for the non-exclusive right to use the Property
during Initial Term of this License the sum of Twenty One Thousand and No/100
Dollars ($21,000.00), which shall be payable in monthly installments
on
the
first day of each month
in the
amount of Three
Thousand and No/100 Dollars ($3,000.00)
(the
“Monthly Payment”). During the Subsequent Term, Licensee shall pay the Three
Thousand and No/100 Dollar ($3,000.00) Monthly Payment on the first day of
each
month.
4. Use.
The
Licensee shall have the non-exclusive right to use of the Property solely for
a
business continuity site and for disaster planning site purposes for no more
than fifty (50) employees and for no other purpose, without Licensor’s written
consent. To the extent the Property is already in use by Licensor or Licensor
requires the use of the Property subsequent to commencement of Licensee’s use,
Licensor’s use of the Property shall take priority over Licensee’s use of the
Property. Further, in the event Licensee is using the Property, Licensor shall
be entitled to exclusive use of the Property 24 hours after notice is given,
whether by telephone, facsimile or by mail or overnight carrier, from Licensor
to Licensee, and Licensee shall remove Licensee’s staff and restore the Property
to its previous condition prior to Licensee’s use within 24 hours after notice.
5. Payments.
All
payments under this License shall be made in current U.S. funds to Licensor
at
0000 Xxxxxxxxx Xxx. Xxxxx 000, Xxxxx, XX 00000, or at such other place and
to
such other person as Licensor may from time to time designate in
writing.
6. Assignment;
Subletting.
Licensee shall not assign this License, nor sublicense any rights to the
Property or any part thereof, nor shall it use the same for any other purpose
than set forth in Paragraph 4 above without the express written consent of
Licensor.
7. Risk
of Loss of Personalty.
All
personal property of Licensee placed or located upon the Property shall be
at
the risk of Licensee or the owners thereof, and Licensor shall not be liable
for
any damage to such personal property of Licensee or to Licensee arising from
any
act, omission to act, or negligence of any other person, firm or corporation.
Licensor agrees to keep any and all Licensee information, including but not
limited to Licensee customer information, that Licensor may have access to
confidential.
8. Indemnity;
Insurance.
Licensee covenants and agrees to indemnify and save Licensor harmless from
and
against all liabilities, claims, actions or causes of action for damages or
injuries to property and/or for any personal injury or loss of life in or about
the Property or common areas, arising for any reason whatsoever during the
term
of this License, caused in whole or in part by Licensee, its employees, agents
and invitees. Licensee covenants to provide on or before commencement of this
License, and to keep in force during its term, a comprehensive liability policy
of insurance against any liability of Licensee, its employees, agents and
invitees, occasioned by accident or neglect, naming Licensor as an additional
insured. Such policy shall be written by a good and solvent insurance company
acceptable to Licensor, with coverage of not less than One Million and No/100
Dollars ($1,000,000.00) combined or aggregate single limit for personal injury,
death or property damage per occurrence. Licensee shall be liable to Licensor
for any and all costs and attorneys’ fees incurred or expended by Licensor in
defending any claims for which Licensee may be liable under this indemnity,
including those incurred in enforcing this paragraph.
Licensor
covenants and agrees to indemnify and save Licensee harmless from and against
all liabilities, claims, actions or causes of action for damages or injuries
to
property and/or for any personal injury or loss of life in or about the Property
or common areas, arising for any reason whatsoever during the term of this
License, caused in whole or in part by Licensor, its employees, agents and
invitees. Licensor covenants to provide on or before commencement of this
License, and to keep in force during its term, a comprehensive liability policy
of insurance against any liability of Licensor, its employees, agents and
invitees, occasioned by accident or neglect, naming Licensee as an additional
insured. Such policy shall be written by a good and solvent insurance company
acceptable to Licensee, with coverage of not less than One Million and No/100
Dollars ($1,000,000.00) combined or aggregate single limit for personal injury,
death or property damage per occurrence. Licensor shall be liable to Licensee
for any and all costs and attorneys’ fees incurred or expended by Licensee in
defending any claims for which Licensor may be liable under this indemnity,
including those incurred in enforcing this paragraph.
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9. Compliance
With Governmental Ordinances.
Licensor and Licensee shall comply with all statutes, ordinances, rules, orders
and regulations of all federal, state and local governmental agencies having
jurisdiction over the Property.
10. Damage
or Destruction of Property.
If any
buildings, structures or other improvements containing the Property (the
“Improvements”) shall be destroyed by fire or the elements during the term of
this License or damaged thereby to such an extent as to render the Property
unfit for use by Licensee, either party may give notice to the other party
within fifteen (15) days from the date of such destruction or damage and this
License shall thereupon terminate as of the date of such destruction or damage,
and the Monthly Payments shall be adjusted and paid to such date. Provided,
however, nothing herein contained shall obligate Licensor to expend for repairs
or rebuilding after such damage or destruction, and if Licensor elects not
to
repair or rebuild as necessary, either party may terminate this License as
provided above.
11. Default;
Notice.
The
prompt payment of all sums due hereunder, and the faithful observance of the
provisions of this License, are conditions of this License and any failure
on
the part of Licensee to comply with the terms of this License shall, at the
option of Licensor, constitute a default under this License. In the event of
such a default (exclusive of the payment of any monies due hereunder which
shall
constitute a default if not paid within ten (10) days after due, without
notice), Licensor shall give Licensee written notice of such default and
Licensee shall have ten (10) days within which to cure such default. Upon the
failure of Licensee to do so, Licensor, its agents or attorneys, may exercise
all rights permitted under Colorado law, including without limitation, the
right
to enter the Property and remove all persons therefrom, and the exercise of
any
right shall be without waiver of its right to pursue any other legal remedy.
In
addition to such rights and remedies, Licensor shall have the right to
accelerate the payment of all amounts due hereunder and upon the exercise of
such right by the Licensor, all such payments shall become immediately due
and
payable.
All
notices shall be given, if to Licensee, at such address as may be designated
by
the Licensee, and if to Licensor, at the address for payment of rent, and shall
be sufficient if hand-delivered or sent by U.S. Postal Service, certified,
return receipt requested.
12. Surrender
of Site.
Upon
the
expiration, revocation, termination, or default under this License, Licensee
shall, at no expense to the Licensor, release and surrender the Property to
the
Licensor. In the event Licensee fails to remove any or all improvements and/or
personal property placed on or about the Property after reasonable notice by
the
Licensor, License’s improvements and/or personal property will be considered
abandoned.
13. Maintenance.
Licensee accepts the Property in the condition at the beginning of this License
and agrees to maintain the interior of the Improvements (except for reasonable
wear and tear arising from normal use thereof) during Licensee’s use of the
Property, and to repair or pay for any damages upon demand of Licensor, whether
caused by any act or neglect of Licensee or any person other than Licensor
during Licensee’s use of the Property.
14. Alterations.
Licensee shall make no alterations to the Property or the Improvements without
Licensor’s written approval.
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15. Liens.
Licensee shall indemnify and hold Licensor harmless from any and all liens,
claim or lien or other encumbrances against Licensee sought to be enforced
against the Property, of any kind or nature whatsoever including statutory
mechanic’s liens (other than as may be created by Licensor), including costs and
attorneys’ fees incurred by or arising out of such claims, and in the event that
any such claim is made against the Property, it shall constitute a default
hereunder if such claim is not discharged or transferred to other security
within ten (10) days.
16. Time
of the Essence.
Time is
of the essence in this License and the performance of its terms and
conditions.
17. Licensee’s
Personalty.
All
moveable fixtures and equipment placed upon the Property by Licensee shall
remain the property of Licensee, and may be removed by Licensee upon termination
of this License, provided Licensee has fulfilled its covenants under this
License, and provided Licensee restores any portion of the Property to which
such property was attached to its original condition.
18. Subordination.
Licensee acknowledges that this License shall be subordinate to all existing
and
future mortgages, and Licensee shall execute all documents requested by Licensor
or any Mortgagee to confirm such subordination.
19. Attorneys’
Fees.
Should
it be necessary for either party to employ an attorney to enforce any of the
terms of this License, the prevailing party shall be entitled to recover its
reasonable attorneys’ fees and costs in addition to its other
damages.
20. Governing
Law.
This
License shall be interpreted and construed in accordance with the laws of the
State of Colorado. The parties agree to submit to jurisdiction and venue in
the
state and federal courts located in Denver, Colorado for any dispute which
may
arise under this Agreement.
IN
WITNESS WHEREOF, the parties hereto executed this License effective as of the
day and year first set forth above.
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LICENSOR:
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| LEGENT CLEARING LLC | ||
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| By: | /s/ Xxxxxxx X. Xxxx | |
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Xxxxxxx
X. Xxxx, President
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| LICENSEE: | ||
| UNITED WESTERN BANCORP, INC., | ||
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By:
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/s/
Xxxxxxxx X. Xxxxxxxxx
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Print
Name:
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Xxxxxxxx X. Xxxxxxxxx |
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Print
Title:
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Senior Vice President |
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