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EXHIBIT 10.3
LOAN AGREEMENT
This Loan Agreement ("Agreement") is made as of this 7th day of October
1998, by and among FRONT RANGE CAPITAL CORPORATION, a Colorado corporation,
("Borrower"), and Bankers' Bank of the West, a Colorado banking corporation
("BBW").
RECITALS
A. Borrower now owns 10,000 shares of common stock, which represent not
less than 100% of the issued and outstanding shares of Heritage Bank, a state
banking corporation ("Bank").
B. Borrower desires to borrow from BBW the sum of Three Million and
00/100 Dollars ($3,000,000.00).
C. Borrower is willing to secure the loan from BBW by giving BBW a
security interest in the nature of a pledge of the shares owned by Borrower.
D. BBW is willing to lend Borrower the sum of Three Million and 00/100
($3,000,000.00) upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Definitions
(a) "Prime Rate" means the base rate to corporate customers or
seventy-five percent (75%) of the nation's thirty (30) largest banks as
published in The Wall Street Journal.
(b) "Collateral" means any and all properly in which a
security interest under the Uniform Commercial Code is or has been granted under
the Pledge Agreement, as hereafter defined, as of the date hereof or any time
hereafter.
(c) "Obligations" mean (i) the Loan, as hereinafter defined,
to be made hereunder, and the Note, as hereinafter defined, and any and all
renewals or extensions thereof, and (ii) any and all undertakings or liabilities
of Borrower.
2. Loan
(a) Subject to the terms and conditions of this Agreement, BBW
shall loan Borrower the sum of Three Million and 00/100 Dollars ($3,000,000.00)
("Loan"). This note is a revolving draw note and can have multiple advances up
to the maximum amount of Three Million dollars and no/100 (3,000,000) which may
be advanced to more than one time. At each annual maturity of the note, the
maximum advance under the line of credit shall be reduced by Three Hundred
Thousand dollars and 00/100 ($300,000.00), thereby limiting the term of this
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agreement to not longer than ten years. The Loan shall be evidenced by a
promissory note ("Note") substantially in the form of Exhibit A attached hereto
and incorporated by reference. The Note shall represent the obligation of
Borrower to pay the aggregate unpaid balance of the Loan, together with interest
paid quarterly. Interest payments will commence on the 5th day of January, 1999
and continuing on the 5th day of April, July and August of each year to
maturity, with the entire principal amount outstanding and accrued interest
thereon being due and payable on or before October 5th, 1999.
(b) On the conditions (i) that Borrower has complied with the
terms of this Agreement, (ii) that the progress and performance of Bank and
Borrower are reasonably satisfactory to BBW and (iii) that Borrower has made the
payments provided for in paragraph 2 of this Agreement, BBW will, at its option,
renew the unpaid principal balance of the loan.
(c) Per annum interest payable at the average National Prime
Rate, as published in The Wall Street Journal based on a 360 day year. The
interest rate shall change when and as the average National Prime Rate changes,
whether or not Borrower has notice of such change. Interest shall accrue daily
on the outstanding principal balance. One pro rata payment of interest which
accrues from the closing date shall be payable on the first day of the month
following such closing date.
(d) The right of prepayment without penalty is hereby granted
to Borrower. Any prepayment shall be applied to the last principal payment or
payments.
3. Collateral. As security for the Loan (including, if any, each and
every renewal, extension or refinancing thereof), Borrower shall deliver or
cause to be delivered to BBW original stock certificates for 10,000 shares of
Bank owned by Borrower ("Pledged Stock"), each stock certificate accompanied by
a stock power endorsed in blank by Borrower, together with a Stock Pledge
Agreement granting BBW a security interest in the Pledged Stock pledged as
collateral in the form of Exhibit B attached hereto and incorporated by
reference.
4. Representations of Borrower. Borrower represents and warrants as
follows:
(a) Borrower is a State of Colorado corporation duly
organized, validly existing and in good standing under and by the laws of the
state.
(b) Heritage Bank is validly existing and in good standing
under and by virtue of the laws of the State of Colorado and is qualified to
engage in the business of commercial banking.
(c) Bank has complied in all material respects with all
applicable laws and regulations in the conduct of its banking business.
(d) The authorized capital stock of Bank consists of 10,000
shares of common stock of which 10,000 are issued and outstanding. The
authorized capital stock of Borrower consists of 200,000,000 shares of common
stock of which 1,296,647 are issued and outstanding.
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(e) The Pledged Stock are owned of record and beneficially by
Borrower, are validly issued, fully paid and non-assessable, and are (or will be
at the closing) free of all liens, charges and encumbrances other than the
security interest granted pursuant to this Agreement.
(f) The Pledged Stock owned by Borrower and which are to be
delivered to BBW as provided in paragraph 3 of this Agreement represent no less
than 100% of the issued and outstanding shares of capital stock of Bank and
will, as long as BBW holds the Pledged Stock, or any part thereof as collateral,
represent not less than 100% of the issued and outstanding shares of the Bank.
(g) There is not now pending or threatened against the
Borrower or Bank any litigation or proceeding, judicial, tax or administrative
proceeding, the outcome of which might adversely affect the continuing
operations of Borrower or Bank.
(h) The execution and delivery of this Agreement and the
performance of the obligations hereunder are not in contravention of any
provision of any outstanding agreement executed by Borrower, the Articles of
Incorporation or Bylaws of the Borrower or the Bank, or any law or governmental
regulation. No consent, approval, authorization or other order of any
governmental or public regulatory body is required for consummation of the
transactions contemplated by this Agreement.
(i) Borrower's financial statements, subject to any
limitations stated therein, which have been or which hereafter shall be
furnished to BBW to induce it to enter into this Agreement or to extend or renew
the Loan, do or will fairly represent the financial condition of Borrower, and
all other information, reports, and other papers furnished to BBW will be, at
the time the same are furnished, accurate and complete in all material respects
and complete insofar as completeness may be necessary to give BBW a true and
accurate knowledge of the subject matter.
(j) The financial statements of Bank, subject to any
limitations stated therein, which have been or which hereafter shall be
furnished BBW, fairly present the financial condition and operating results of
Bank as of the dates indicated and, to the best of the knowledge of Borrower, no
material or adverse change has occurred since such dates.
(k) This Agreement and each of the transactions contemplated
hereby have been duly authorized by proper corporate action of Borrower and,
when executed, will constitute a valid and binding obligation of Borrower in
accordance with its terms.
5. Affirmative Covenants. Borrower covenants and agrees with BBW as
follows:
(a) It will promptly pay to the holder of the Note the
principal and interest to become due on the Note at the time and place and in
the manner specified therein.
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(b) It will cause the books and records of Borrower and Bank
to be kept in accordance with generally accepted accounting and regulatory
principles.
(c) It will permit BBW, by its duly authorized
representatives, to inspect the books and records of Bank and Borrower at any
reasonable time and furnish any financial data of the Borrower and the Bank
which BBW may reasonably request, including, to the extent permitted by law,
copies of all filings or applications by Bank or Borrower with the
administrative agency or agencies which assert authority over their operations.
(d) It will deliver to BBW:
(i) As soon as possible and in any event, within
sixty (60) days after the end of each twelve month period, commencing for the
period ending December 31, 1998, a financial statement of Borrower's assets and
liabilities, all in reasonable detail and including such supporting or
underlying financial statements as may be necessary to give BBW a true and
accurate knowledge of Borrower's financial condition.
(ii) As soon as possible and in any event within
thirty-five (35) days after the end of each calendar year, commencing February
5, 1999 for the year ending December 31, 1998, a copy of Bank's Report of
Condition as filed with its regulatory agency or agencies.
(iii) As soon as possible and in any event within
thirty-five (35) days after the end of each calendar quarter, commencing
February 5, 1999 for the quarter ending December 31, 1998, a copy of Bank's
Report of Condition as filed with its regulatory agency or agencies.
(iv) With reasonable promptness, such other data,
financial or otherwise, as may be reasonably requested by BBW.
(e) It will cause Bank at all times to keep all of its
insurable properties insured to the full insurable value thereof against loss or
damage by fire or other risks usually insured against by banks and to obtain and
keep in force such banker's blanket bond coverage as is customary among banks of
similar size, and fully insure against their employees' and public liability
risks with good and responsible insurance companies. Upon request, Borrower
shall deliver to BBW copies of any policies of insurance maintained by the
Borrower and Bank.
(f) It will cause Bank to pay all taxes, assessments or other
governmental charges levied, assessed or imposed against Bank, its properties,
or arising out of its banking business, promptly as they become due and payable.
Borrower and Bank may defer payment of such taxes, assessments or other
government charges levied against them so long as the Borrower or Bank is
contesting in good faith the liability for such taxes, assessments or charges
through appropriate administrative or judicial proceedings.
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(g) Borrower and Bank shall comply with all laws and
regulations of the federal government and of the State of Colorado or any of
their subdivisions, departments or agencies applicable to the business of the
Borrower or Bank.
(h) It will promptly give written notice to BBW of any
material adverse change in the business, properties, assets, operations or
condition, financial or otherwise of Borrower or Bank, and the pendency or
threat of litigation involving the sum of $50,000 or more and of all tax
deficiencies and other proceedings before governmental bodies or officials
affecting Borrower or Bank.
(i) It will maintain the existence of Bank in good standing as
a banking institution chartered under the laws of the State of Colorado.
(j) It will immediately advise BBW of any sale or sales of
shares by Bank.
(k) It will transfer, or cause to be transferred, to BBW any
shares of stock or other property other than cash dividends except as provided
herein, paid or distributed on the Pledged Stock by Bank or Borrower.
(l) It will cause Bank to maintain such level of capital as
will enable it to be deemed "well capitalized" or "adequately capitalized" as
those terms are defined by the Bank's primary federal regulator and to furnish
BBW with a copy of any notice of an adjustment in Bank's capital category
submitted to its regulatory agency.
(m) It will cause Borrower, on a consolidated basis with its
subsidiary bank or banks, to maintain such level of capital as will enable it to
be deemed "well capitalized" or "adequately capitalized" as those terms are
defined by time Federal Reserve or the Bank's primary federal regulator and to
furnish BBW with a copy of any notice of an adjustment in Borrower's capital
category submitted to its regulatory agency.
6. Negative Covenants. Borrower covenants and agrees that it will not,
without the prior written consent of BBW, which consent shall not be
unreasonably withheld, in each case:
(a) Cause, suffer or permit Borrower or Bunk to make any
distribution of assets in partial or complete liquidation.
(b) Enter into or cause, suffer or permit Bank to enter into
any merger or consolidation in which it is not the survivor or into any sale or
lease of any substantial portion of its assets.
(c) Form or acquire any subsidiary corporation or cause,
suffer or permit Bank to form or otherwise acquire any subsidiary corporation,
whether or not allowable under applicable banking laws.
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(d) Cause, suffer or permit the Pledged Stock to be encumbered
or subject to any lien or pledge agreement other than the first and prior
security interest of BBW as contemplated by this Agreement.
(e) Cause, suffer or permit Bank to declare or pay any
dividends or distribution on shares that would result in Bank being deemed
"undercapitalized," "significantly undercapitalized" or "critically
undercapitalized" as those terms are defined by the Bank's primary federal
regulator.
(f) Declare or pay any dividends or distributions on Borrower
shares that would result in Borrower, on a consolidated basis with its
subsidiary bank or banks, being deemed "undercapitalized," "significantly
undercapitalized" or "critically undercapitalized" as those terms are defined by
the Federal Reserve or the Bank's primary federal regulator.
7. Conditions Precedent. The obligation of BBW to make the Loan to
Borrower is subject to the following conditions:
(a) BBW shall have received, in form and substance
satisfactory to it, each of the following:
(i) Copies of the Articles of Incorporation and
Bylaws of Borrower;
(ii) A certified copy of the resolution of the Board
of Directors of Borrower authorizing the execution and delivery of this
Agreement, the Note, the Pledge Agreement and any other documents required by
this BBW;
(iii) Borrower's executed Note; and
(iv) Borrower's executed Pledge Agreement.
8. Default. If any one or more of the following events of default
occur, the Note, together with accrued interest thereon, may at the option of
the BBW, become due and payable without presentment, demand, protest or notice
of any kind, except as hereinafter provided, all of which in this Agreement are
expressly waived, and Borrower shall thereupon forthwith pay in full the Note
and the holder shall be entitled to exercise all rights and avail itself of all
remedies in order to affect such payment in full:
(a) Borrower defaults in the payment of the principal on the
Note hereunder when the same shall be in default for a period of ten (10) days
after written notice thereof by BBW to Borrower;
(b) Borrower defaults in the payment of interest on the Note
when the same shall be in default for a period of ten (10) days after written
notice thereof by BBW to Borrower;
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(c) Borrower defaults in the performance of any of the
covenants or terms contained in this Agreement, the Note or the Pledge Agreement
and such default shall not be remedied within thirty (30) days after written
notice thereof by BBW to Borrower;
(d) Any untrue or incorrect representation which may be of a
material or substantial nature is made in this Agreement, the Note, the Pledge
Agreement or any report or financial statement given to BBW regarding any
transaction hereunder;
(e) The issuance of any levy, seizure, or attachment of or
against the Pledged Stock;
(f) Borrower makes an assignment for the benefit of its
creditors or is adjudicated a bankrupt;
(g) A trustee or receiver for Borrower and Bank, or either of
them, or any substantial portion of their respective assets, is appointed in
proceedings brought against either Borrower or Bank, and such party by any
action indicates the approval of, consents to or acquiescence in such
appointment, or any such trustee or receiver is not discharged within sixty (60)
days of appointment;
(h) All or part of the property of Bank is condemned, seized,
attached or otherwise appropriated, or custody or control of such property is
assumed by any governmental agency or by court at the instance of any
governmental agency; and
(i) Final judgment for the payment of money shall be rendered
against Borrower or Bank, in excess of $50,000, and such judgment debtor shall
not discharge the same or procure a stay of execution within sixty (60) days
from the date of entry thereof, or cause execution to be stayed during an
appeal.
9. Foreclosure of Collateral. In the event a default occurs under this
Agreement, Note or Pledge Agreement, BBW may, from time to time, upon ten days'
notice as to the time, place and date of sale, and without any liability for
diminution in price which may have occurred, sell in a commercially reasonable
manner all or any part of time Pledged Stock for such price and upon such terms
as the BBW may determine. BBW may purchase the Pledged Stock at any public sale.
Out of the proceeds of any sale, BBW may retain an amount equal to the principal
and interest then due on the Loan, plus the amount of the expenses of the sale,
including reasonable attorneys' fees, and BBW shall pay any balance of such
proceeds to Borrower. Borrower shall remain liable to BBW for any deficiency.
10. Expenses. Borrower agrees to pay or reimburse BBW for all
reasonable out-of-pocket expenses of every nature which BBW may incur in
connection with this Agreement and with the making of the Loan and the
collection of Borrower's obligations to BBW, including, but not limited to,
reasonable attorneys' fees.
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11. Notices. Except as otherwise permitted herein, any notices or
consents required or permitted by this Agreement shall be in writing and
delivered in person or by registered or certified mail, postage prepaid, return
receipt requested, or by a reputable courier delivery service, or by telecopier
during regular business hours (provided that a confirmation copy follow by
first- class U.S. Mail or any other method of delivery permitted under this
Section), as follows, unless such address is changed by written notice
hereunder, and such notice shall be deemed given for purposes of this Agreement
on the day that such writing is sent to the intended recipient thereof in
accordance with the provisions of this Section:
Borrower: FRONT RANGE CAPITAL CORPORATION
0000 Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
BBW: Bankers' Bank of the West
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
With a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxx Xxxxxxxx Xxxxxx & X'Xxxxxxx, P.C.
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
Fax: (000) 000-0000
12. Modification and Waiver. No modification or waiver of any provision
of this Agreement, the Note or the Pledge Agreement and no consent by BBW to any
departure therefrom by the Borrower shall be effective unless such modification
or waiver shall be in writing and signed by a duly authorized officer of BBW,
and the same shall be effective only for the period, on the conditions and for
the specific instances and purposes specified in such writing. No notice to or
demand on Borrower in any case shall entitle Borrower to any other or further
notice or demand in similar or other circumstances.
13. Waiver of Jury Trial and Setoff. The Borrower hereby waives trial
by jury in any litigation in any court with respect to, in connection with, or
arising out of this Agreement, the Note or the Pledge Agreement or any
instrument or document delivered pursuant to this Agreement or the validity,
protection, interpretation, collection, or enforcement thereof, or any other
claim or dispute howsoever arising.
14. Construction. This Loan Agreement is made and entered into and
shall be construed in accordance with the laws of the State of Colorado. The
captions of the various sections of this Agreement have been inserted only for
the purpose of convenience. Such captions are not part of this Agreement and
shall not be deemed in any manner to modify, explain, enlarge or restrict any
provisions of this Agreement.
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15. Severability. Any provision herein found to be prohibited by law
shall be ineffective to the extent of such prohibitions without invalidating the
rest of this Agreement.
16. Benefit. This Loan Agreement and all of the covenants and
conditions herein contained shall apply to and bind the parties hereto and their
respective successors and assigns
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as and of the day and year first above written.
BORROWER:
FRONT RANGE CAPITAL CORPORATION
ATTEST:
/s/ Xxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, President & CEO
By:
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BBW:
BANKERS' BANK OF THE WEST
ATTEST:
By:
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Xxxxx Xxxxxxx, Senior Vice President
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EXHIBIT A
Promissory Note
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EXHIBIT B
Pledge Agreement
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