- Defined Terms. The following capitalized terms generally used in this Agreement and in the other Transaction Documents have the meanings defined or referenced below. Certain other capitalized terms used only in specific sections of this Agreement may be defined in such sections.
"Affiliate(s)" means, with respect to any Person, such Person's immediate family members, partners, members or parent and subsidiary corporations, and any other Person directly or indirectly controlling, controlled by, or under common control with, said Person, and their respective Affiliates, members, shareholders, directors, officers, employees, agents and representatives.
"Assignee Lender" has the meaning ascribed to such term inSection 9.2.
"Bancorp" has the meaning ascribed to such term in the recitals hereto.
"Base Rate" shall mean that rate of interest (expressed as a percent per annum) equal to Lender's "base" or "prime" rate (which is not necessarily the lowest or most favorable rate of interest charged by Lender on commercial loans at any time) in effect from time to time, which means a base rate of interest established by US Bank National Association from time to time that serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto. Any change in the rate of interest hereunder due to a change in the base or prime rate shall become effective on the date each change in the base or prime rate is announced by US Bank National Association.
"Base Rate Tranche" shall mean a Borrowing Tranche as to which the Base Rate is applicable.
"Borrower" has the meaning ascribed to such term in the preamble hereto and shall include any successor to East West Bank or such other Person that shall assume the obligations of the borrower under the Transaction Documents.
"Borrower 2004 Financial Statements" has the meaning ascribed to such term inSection 4.4.
"Borrower 2004 Financial Statements Date" has the meaning ascribed to such term inSection 4.4.
"Borrower Financial Statements" has the meaning ascribed to such term inSection 4.4.
"Borrower's Accountant" means Deloitte & Touche LLP, or such other nationally recognized firm of certified public accountants selected by Borrower as shall from time to time audit Borrower.
"Borrower's Liabilities" means Borrower's obligations under this Agreement and any other Transaction Documents.
"Borrowing Date" means the date any Borrowing Tranche is disbursed, renewed or converted (from a LIBO Tranche to a Base Rate Tranche or from a Base Rate Tranche to a LIBO Tranche pursuant toSection 2.7.2 or 2.7.3).
"Borrowing Tranche" means a disbursement of proceeds under the Facility pursuant to this Agreement.
"Business Day" means (a) for all purposes other than as covered by clause (b) hereof, a day of the week (but not a Saturday, Sunday or a legal holiday under the laws of the State of Wisconsin or any other day on which banking institutions located in Wisconsin are authorized or required by law or other governmental action to close) on which the Milwaukee, Wisconsin offices of U.S. Bank National Association are open to the public for carrying on substantially all of its business functions and (b) with respect to determinations in connection with, and payments of principal and interest on any LIBO Rate Tranche, any day which is a Business Day described in clause (a) and which is also a day for trading by and between banks in U.S. dollar-denominated deposits in the London Interbank Eurodollar Market. Unless specifically referenced in this Agreement as a Business Day, all references to "days" shall be to calendar days.
"CCFI" means the California Commissioner of Financial Institutions.
"Closing" means the meaning ascribed to such term inSection 2.5.
"Closing Date" means April 28, 2005.
"Code" means the Internal Revenue Code of 1986, as amended or recodified.
"Condition or Release" means any presence, use, storage, transportation, discharge, disposal, release or threatened release of any Hazardous Materials.
"Default Rate" has the meaning ascribed to such term inSection 2.6.3.
"Disclosure Schedule" means, in aggregate, the disclosures contemplated herein as included in the Disclosure Schedule, which has been delivered in connection with the execution of this Agreement.
"Employee Benefit Plan" means an "employee benefit plan" within the meaning of Section 3(3) of ERISA.
"Equity Interest" means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person which is not a corporation and any and all warrants, options or other rights to purchase any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended or recodified.
"ERISA Affiliate" means any person (as defined in Section 3(9) of ERISA) which together with Borrower would be a member of the same "controlled group" within the meaning of Sections 414(b), (m), (c) and (o) of the Code.
"Event of Default" has the meaning ascribed to such term inSection 8.1.1.
"Facility" has the meaning ascribed to such term in the recital hereto.
"FDIC" means the Federal Deposit Insurance Corporation.
"Federal Reserve Notice" shall have the meaning ascribed to such term inSection 8.6.
"FDI Act" means the Federal Deposit Insurance Act, as amended or recodified.
"FRB" shall have the meaning ascribed to such term in the recitals hereto and shall include any other Governmental Agency that serves as the primary federal regulator of Borrower from time to time while the Facility is outstanding.
"GAAP" means generally accepted accounting principles in effect from time to time in the United States of America.
"Governmental Agency(ies)" means, individually or collectively, any federal, state, county or local governmental department, commission, board, regulatory authority or agency including, without limitation, the FRB, the CCFI and the FDIC.
"Hazardous Materials" means oil, flammable explosives, asbestos, urea formaldehyde insulation, polychlorinated biphenyls, radioactive materials, hazardous wastes, toxic or contaminated substances or similar materials, including, without limitation, any substances which are "hazardous substances," "hazardous wastes," "hazardous materials" or "toxic substances" under the Hazardous Materials Laws and/or other applicable environmental laws, ordinances or regulations.
"Hazardous Materials Claims" has the meaning ascribed to such term inSection 4.7.7.
"Hazardous Materials Laws" mean any laws, regulations, permits, licenses or requirements pertaining to the protection, preservation, conservation or regulation of the environment which relates to real property, including, without limitation: the Clean Air Act, as amended, 42 U.S.C. Section 7401 et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section 1251 et seq.; the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. Section 6901 et seq.; the Comprehensive Environment Response, Compensation and Liability Act of 1980, as amended (including the Superfund Amendments and Reauthorization Act of 1986), 42 U.S.C. Section 9601 et seq.; the Toxic Substances Control Act, as amended, 15 U.S.C. Section 2601 et seq.; the Occupational Safety and Health Act, as amended, 29 U.S.C. Section 651, the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.; the Mine Safety and Health Act of 1977, as amended, 30 U. S.C. Section 801 et seq.; the Safe Drinking Water Act, 42 U.S.C. Section 300f et seq.; and all comparable state and local laws, laws of other jurisdictions or orders and regulations.
"Indebtedness" means and includes: (a) all items arising from the borrowing of money that, according to GAAP now in effect, would be included in determining total liabilities as shown on the consolidated balance sheet of Borrower or any Subsidiary; (b) all obligations secured by any lien in property owned by Borrower whether or not such obligations shall have been assumed; (c) all guaranties and similar contingent liabilities with respect to obligations of others; and (d) all other obligations (including, without limitation, letters of credit) evidencing obligations to others; provided, however, Indebtedness shall not include (i) deposits or other indebtedness created, incurred or maintained in the ordinary course of Borrower's business (including, without limitation, federal funds purchased, advances from any Federal Home Loan Bank, secured deposits of municipalities, letters of credit issued by Borrower's depository institution and repurchase arrangements) and consistent with customary banking practices and applicable laws and regulations or (ii) indebtedness created, incurred or maintained that is expressly subordinate and junior in all respects (including, without limitation, with respect to the right of payment) to orpari passu with the Facility.
"InitialDisbursement" has the meaning ascribed to such term inSection 3.1.
"Instructions" means disbursement instructions given by Borrower to Lender specifying the manner in which proceeds of the Subordinated Debt should be disbursed at Closing.
"Interest Rate Protection Agreement" means an interest rate swap, cap, collar or other hedging or derivative agreement, to which Lender or any Affiliate of Lender is the counterparty, intended to mitigate interest rate risk, along with any other related agreement or instrument executed in connection therewith.
"Interim Financial Statements" has the meaning ascribed to such term inSection 4.4.
"Leases" means all leases, licenses or other documents providing for the use or occupancy of any portion of any Property, including all amendments, extensions, renewals, supplements, modifications, sublets and assignments thereof and all separate letters or separate agreements relating thereto.
"Lender" has the meaning ascribed to such term in the preamble hereto.
"LIBO Rate" means that rate of interest equal to (a) the quotient of (i) the average of the rates of interest, rounded upward, if necessary, to the nearest whole multiple of .0625% (1/16 of 1%), quoted to Lender in accordance with U.S. Bank National Association's normal and customary practices in the London Inter-Bank Eurodollar Market for U.S. Dollar deposits with prime banks, as such average appears on Telerate Page 3750 at approximately 11:00 a.m., London time, on the date that is two Business Days prior to any applicable Borrowing Date for an amount approximately equal to the applicable LIBO Rate Tranche and for a period of time approximately equal to a LIBOR Period, divided by (ii) 100% minus the Reserve Percentage.
"LIBO Rate Tranche" means a Borrowing Tranche as to which the LIBO Rate is applicable.
"LIBOR Period" means a period of three months with respect to a LIBO Rate Tranche; provided that no LIBOR Period shall extend beyond the Maturity Date.
"Maturity Date" means April 28, 2015.
"Permitted Encumbrances" has the meaning ascribed to such term inSection 4.5.1.
"Person" means an individual, a corporation (whether or not for profit), a partnership, a limited liability company, a joint venture, an association, a trust, an unincorporated organization, a government or any department or agency thereof (including a Governmental Agency) or any other entity or organization.
"Property" means any real property owned or leased by Borrower or any Subsidiary.
"Rate Election Notice" shall mean a properly completed notice in the form attached asExhibit B hereto or a verbal notice conveyed to Lender in accordance with its disbursement procedures from time to time.
"Reserve Percentage" means the percentage announced within Lender as the reserve percentage under Regulation D of the FRBfor loans and obligations making reference to a LIBO Rate for a LIBOR Period. The Reserve Percentage shall be based on Regulation D or other regulations from time to time in effect concerning reserves for Eurocurrency Liabilities as defined in Regulation D from related institutions as though Lender were in a net borrowing position, as promulgated by the FRB, or its successor.
"RICO Related Law" means the Racketeer Influenced and Corrupt Organizations Act of 1970 or any other federal, state or local law for which forfeiture of assets is a potential penalty.
"Subordinated Debt" has the meaning ascribed to such term in the recitals hereto.
"Subordinated Debt Amount" means $50,000,000.
"Subordinated Note" means a subordinated note in the form attached asExhibit A hereto in the principal amount of the Subordinated Debt Amount, as amended, restated, supplemented or modified from time to time and each debenture delivered in substitution or exchange for such subordinated note.
"Subsidiary" means East West Mortgage Securities, LLC and any corporation or other entity in which a majority of the outstanding Equity Interest is directly or indirectly owned by Borrower.
"Surviving Entity" has the meaning ascribed to such term inSection 5.2.1.
"Tier 2 Capital" has the definition provided in, and shall be determined in accordance with, the rules and regulations of the FRB.
"Transaction Documents" means this Agreement and those other documents and instruments (including, without limitation, all agreements, instruments and documents, including, without limitation, guaranties, mortgages, deeds of trust, pledges, powers of attorney, consents, assignments, contracts, notices and all other written matter heretofore, now and/or from time to time hereafter executed by and/or on behalf of Borrower in connection with this Agreement and the Facility) entered into or delivered in connection with or relating to the Facility, including any other documents listed on the schedule of closing documents prepared in connection with the Closing. Transaction Documents shall also include any Interest Rate Protection Agreement between Borrower and Lender.
"UCC" shall mean the Uniform Commercial Code as enacted in the State of Wisconsin, as amended or recodified.
"Unmatured Event of Default" means an event or circumstance that with the passage of time, the giving of notice or both could become an Event of Default.
- Certain UCC and Accounting Terms; Interpretations. Except as otherwise defined in this Agreement or the other Transaction Documents, all words, terms and/or phrases used herein and therein shall be defined by the applicable definition therefore (if any) in the UCC. Notwithstanding the foregoing, any accounting terms used in this Agreement which are not specifically defined herein shall have the meaning customarily given to them in accordance with GAAP. Where the character or amount of any asset or liability or item of income or expense is required to be determined or any consolidation or other accounting computation is required to be made for the purposes of this Agreement, it shall be done in accordance with GAAP except where such principles are inconsistent with the specific provisions of this Agreement. The foregoing definitions are equally applicable to both the singular and plural forms of the terms defined. The words "hereof", "herein" and "hereunder" and words of like import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The word "including" when used in this Agreement without the phrase "without limitation," shall mean "including, without limitation." All references to time of day herein are references to Milwaukee, Wisconsin time unless otherwise specifically provided. Any reference contained herein to attorneys' fees and expenses shall be deemed to be reasonable fees and expenses of Lender's outside counsel and of any other third-party experts or consultants engaged by Lender's outside counsel on Lender's behalf. All references to the Transaction Document shall be deemed to be to such document as amended, modified or restated from time to time. With respect to any reference in this Agreement to any defined term, (a) if such defined term refers to a Person, then it shall also mean all heirs, legal representatives and permitted successors and assigns of such Person, and (b) if such defined term refers to a document, instrument or agreement, then it shall also include any replacement, extension or other modification thereof.
- Exhibits and Schedules Incorporated. All Exhibits and Schedules attached hereto or referenced herein, are hereby incorporated into this Agreement.
Lender's refusal to disburse any proceeds of the Facility on account of the provisions of thisSection 3.3 shall not alter or diminish any of Borrower's other obligations hereunder or otherwise prevent any breach or default of Borrower hereunder from becoming an Event of Default. Each Rate Election Notice submitted by Borrower hereunder shall constitute an affirmation that Borrower has performed, observed and complied with its covenants, conditions and agreements contained herein in all material respects.
- Release; Indemnification. Borrower hereby releases Lender from any and all causes of action, claims or rights which Borrower may now or hereafter have for, or which may arise from, any loss or damage caused by or resulting from (a) any failure of Lender to protect, enforce or collect in whole or in part any of the Facility and (b) any other act or omission to act on the part of Lender, its officers, agents or employees, except in each instance for willful misconduct and gross negligence. Borrower shall indemnify, defend and hold Lender and its Affiliates harmless from and against any and all losses, liabilities, obligations, penalties, claims, fines, demands, litigation, defenses, costs, judgments, suits, proceedings, actual damages, disbursements or expenses of any kind or nature whatsoever (including, without limitation, attorneys' fees and expenses) which may at any time be either directly or indirectly imposed upon, incurred by or asserted or awarded against Lender or any of Lender's Affiliates in connection with, arising from or relating to Lender's entering into or carrying out the terms of this Agreement or being the holder of the Subordinated Note, unless Borrower establishes that the loss, liability, obligations, penalty, claim, fine, demand, litigation, defense, cost, judgment, suit, proceeding, damage, disbursement or expense arose solely by reason of Lender's or any of Lender's Affiliates' willful misconduct or gross negligence.
- Assignment and Participation. Lender may pledge or otherwise hypothecate all or any portion of this Agreement or grant participations herein (provided Lender acts as agent for any participants, except as provided below) or in any of its rights and security hereunder. With the prior written consent of Borrower, not to be unreasonably withheld or delayed, Lender may also assign all or any part of the Facility and Lender's obligations in connection therewith to one or more commercial banks or other financial institutions or investors (each an "Assignee Lender"). Upon delivery to Borrower of an executed copy of the Assignee Lender's assignment and acceptance (a) each such Assignee Lender shall be deemed to be a party hereto and, to the extent that rights and obligations hereunder have been assigned and delegated to such Assignee Lender, such Assignee Lender shall have the rights and obligations of Lender hereunder and under the othe r Transaction Documents and other related documents, and (b) Lender, to the extent that rights and obligations hereunder have been assigned and delegated by it, shall be released from its obligations hereunder and under the other Transaction Documents (including, without limitation, the obligation to fund the Assignee Lender's share of the Facility) and other related documents. Within five Business Days after receipt of a copy of the executed assignment and acceptance document, Borrower shall execute and deliver to Lender a new subordinated note, as applicable (for delivery to the relevant Assignee Lender), in the form ofExhibitA hereto but substituting Assignee Lender's name and evidencing such Assignee Lender's assigned portion of the Facility and a replacement subordinated note, as applicable, in the principal amount of the Facility retained by Lender (such subordinated note to be in exchange for, but not in payment of, the subordinated note then held by Lender). Such subordinated note shall be dated the date of the predecessor Subordinated Note. Lender shall mark the predecessor Subordinated Note "exchanged" and deliver it to Borrower. Accrued interest on that part of the predecessor Subordinated Note evidenced by the new subordinated note, and accrued fees, shall be paid as provided in the assignment agreement between Lender and to the Assignee Lender. Accrued interest on that part of the predecessor Subordinated Note evidenced by the replacement subordinated note shall be paid to Lender. Accrued interest and accrued fees shall be so apportioned between the subordinated note and paid at the same time or times provided in the predecessor Subordinated Note and in this Agreement. Borrower authorizes Lender to disclose to any prospective Assignee Lender any financial or other information pertaining to Borrower or the Facility. In addition, Borrower agrees that, if so requested by Lender, Borrower will cause all insurance policies, binders and commitments (including, without limitatio n, casualty insurance and title insurance) required by the Transaction Documents or other related documents to be delivered to Lender to name the Assignee Lender as an additional insured or obligee, as Lender may request. Anything in this Agreement to the contrary notwithstanding, and without the need to comply with any of the formal or procedural requirements of this Agreement, including thisSection 9.2, Lender may at any time and from time to time pledge and assign all or any portion of its rights under all or any of the Transaction Documents and other related documents to a Federal Reserve Bank; provided that no such pledge or assignment shall release Lender from its obligations thereunder.
- Prohibition on Assignment. Borrower shall not assign or attempt to assign its rights under this Agreement, either voluntarily or by operation of law.
- Time of the Essence. Time is of the essence of this Agreement.
- No Waiver. No waiver of any term, provision, condition, covenant or agreement herein contained shall be effective unless set forth in a writing signed by Lender, and any such waiver shall be effective only to the extent set forth in such writing. No failure to exercise or delay in exercising, by Lender or any holder of the Subordinated Note, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law. The rights and remedies provided in this Agreement are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on Borrower in any case shall, in itself, entitle Borrower to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of Lender to any other or f urther action in any circumstances without notice or demand. No consent or waiver, expressed or implied, by Lender to or of any breach or default by Borrower in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of Borrower hereunder. Failure on the part of Lender to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by Lender of its rights hereunder or impair any rights, powers or remedies on account of any breach or default by Borrower.
- Severability. Any provision of this Agreement which is unenforceable or invalid or contrary to law, or the inclusion of which would adversely affect the validity, legality or enforcement of this Agreement, shall be of no effect and, in such case, all the remaining terms and provisions of this Agreement shall subsist and be fully effective according to the tenor of this Agreement the same as though any such invalid portion had never been included herein. Notwithstanding any of the foregoing to the contrary, if any provisions of this Agreement or the application thereof are held invalid or unenforceable only as to particular persons or situations, the remainder of this Agreement, and the application of such provision to persons or situations other than those to which it shall have been held invalid or unenforceable, shall not be affected thereby, but shall continue valid and enforceable to the fullest extent permitted by law.
- Usury; Revival of Liabilities. All agreements between Borrower and Lender (including, without limitation, this Agreement and any other Transaction Documents) are expressly limited so that in no event whatsoever shall the amount paid or agreed to be paid to Lender exceed the highest lawful rate of interest permissible under the laws of the State of Wisconsin. If, from any circumstances whatsoever, fulfillment of any provision hereof or of any other Transaction Documents, at the time performance of such provision shall be due, shall involve exceeding the limit of validity prescribed by law which a court of competent jurisdiction may deem applicable hereto, then,ipso facto, the obligation to be fulfilled shall be reduced to the highest lawful rate of interest permissible under the laws of the State of Wisconsin, and if for any reason whatsoever, Lender shall ever receive as interest an amount which would be deemed unlawful, such interest sha ll be applied to the payment of the last maturing installment or installments of the indebtedness to Lender (whether or not then due and payable) and not to the payment of interest. To the extent that Lender received any payment on account of Borrower's Liabilities and any such payment(s) and/or proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, subordinated and/or required to be repaid to a trustee, receiver or any other Person under any bankruptcy act, state or federal law, common law or equitable cause, then to the extent of such payment(s) or proceeds received, Borrower's Liabilities or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment(s) and/or proceeds had not been received by Lender and applied on account of Borrower's Liabilities; provided, however, if Lender successfully contests any such invalidation, declaration, set aside, subordination or other order to pay any such payme nt and/or proceeds to any third party, the revived Borrower's Liabilities shall be deemed satisfied.
- Notices. Any notice which either party hereto may be required or may desire to give hereunder shall be deemed to have been given if in writing and if delivered personally, or if mailed, postage prepaid, by United States registered or certified mail, return receipt requested, or if delivered by a responsible overnight courier, addressed:
if to Borrower: East West Bank
415 Huntington Drive
San Marino, California 91108
Attn: Julia S. Gouw, Executive Vice President and Chief Financial Officer
Telephone No.: (626) 583-3512
Fax No.: (626) 602-8008
E-Mail Address: jgouw@eastwestbank.com
if to Lender: Wisconsin Capital Corporation
c/o U.S. Bank National Association
One US Bank Plaza
TRAM SL MO TI2M
St. Louis, Missouri 63101
Attn: Louis T. Dubuque, Vice President
Telephone No.: (314) 418-8371
Fax No.: (314) 418-3571
E-Mail Address: louis.t.dubuque@usbank.com
and: Wisconsin Capital Corporation
c/o U.S. Bank National Association
777 East Wisconsin Avenue
3rd Floor - Wisconsin Level
Milwaukee, Wisconsin 53202
Attn: Jon B. Beggs, Vice President
Telephone No.: (414) 765-4411
Fax No.: (414) 765-6236
E-Mail Address: jon.beggs@usbank.com
or to such other address or addresses as the party to be given notice may have furnished in writing to the party seeking or desiring to give notice, as a place for the giving of notice, provided that no change in address shall be effective until seven days after being given to the other party in the manner provided for above. Any notice given in accordance with the foregoing shall be deemed given when delivered personally or, if mailed, five Business Days after it shall have been deposited in the United States mails as aforesaid or, if sent by overnight courier, the Business Day following the date of delivery to such courier.
- Successors and Assigns. This Agreement shall inure to the benefit of the parties and their respective heirs, legal representatives, successors and assigns except that, unless Lender consents in writing, no assignment made by Borrower in violation of this Agreement shall confer any rights on any assignee of Borrower.
- No Joint Venture. Nothing contained herein or in any document executed pursuant hereto and no action or inaction whatsoever on the part of Lender, shall be deemed to make Lender a partner or joint venturer with Borrower.
- Brokerage Commissions. Borrower shall indemnify, defend and hold Lender and its Affiliates harmless from and against any and all losses, liabilities, obligations, penalties, claims, fines, lost profits, demands, litigation, defenses, costs, judgments, suits, proceedings, damages, disbursements or expenses of any kind or nature whatsoever (including, without limitation, attorneys' fees and expenses), consequential or otherwise, which may at any time be either directly or indirectly imposed upon, incurred by or asserted or awarded against Lender or any of its Affiliates in connection with, arising out of or relating to any claim of a broker's or finder's fee against Lender or any person or entity in connection with the transaction herein contemplated arising out of or relating to Borrower's or Lender's action or inaction.
- Publicity. Neither party shall publicize the Facility without the prior written consent of the other, which consent shall not be unreasonably withheld, conditioned or delayed.
- Documentation. All documents and other matters required by any of the provisions of this Agreement to be submitted or furnished to Lender shall be in form and substance satisfactory to Lender.
- Additional Assurances; Right of Sell-off. Borrower agrees that, at any time or from time to time, upon the written request of Lender, it will execute all such further documents and do all such other acts and things as Lender may reasonably request to effectuate the transaction herein contemplated. If any Event of Default that permits Lender to accelerate the obligations of Borrower pursuant toSection 8.1.2 shall have occurred and be continuing, Lender is hereby authorized at any time and from time to time to set-off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and any and all other indebtedness at any time owing by Lender to or for the credit or the account of Borrower against any and all of Borrower's Liabilities irrespective of whether or not Lender shall have made any demand hereunder or thereunder. Lender agrees promptly to notify Borrower after any such set-off and applic ation made by Lender; provided, however, that the failure to give such notice shall not affect the validity of such set-off and application. The rights of Lender under thisSection 9.14 are in addition to any other rights and remedies (including, without limitation, other rights of set-off) which Lender may have. Nothing contained in this Agreement or any other Transaction Document shall impair the right of Lender to exercise any right of set-off or counterclaim it may have against Borrower and to apply the amount subject to such exercise to the payment of indebtedness of Borrower unrelated to this Agreement or the other Transaction Documents.
- Entire Agreement. This Agreement and the Disclosure Schedule and Exhibits hereto constitute the entire agreement between the parties hereto with respect to the subject matter hereof and may not be modified or amended in any manner other than by supplemental written agreement executed by the parties hereto.
- Choice of Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California. Nothing herein shall be deemed to limit any rights, powers or privileges which Lender may have pursuant to any law of the United States of America or any rule, regulation or order of any department or agency thereof and nothing herein shall be deemed to make unlawful any transaction or conduct by Lender which is lawful pursuant to, or which is permitted by, any of the foregoing.
- Forum; Agent; Venue. To induce Lender to accept this Agreement and the other Transaction Documents, Borrower irrevocably agrees that all actions or proceedings in any way, manner, or respect, arising out of or from or related to this Agreement or the other Transaction Documents shall be litigated only in courts having situs within Los Angeles, California. Borrower hereby consents and submits to the jurisdiction of any local, state, or federal court located within said city. Borrower hereby waives any right it may have to transfer or change the venue of any litigation brought against Borrower by Lender.
- No Third Party Beneficiary. This Agreement is made for the sole benefit of Borrower and Lender, and no other person shall be deemed to have any privity of contract hereunder nor any right to rely hereon to any extent or for any purpose whatsoever, nor shall any other person have any right of action of any kind hereon or be deemed to be a third party beneficiary hereunder.
- Legal Tender of United States. All payments hereunder shall be made in coin or currency which at the time of payment is legal tender in the United States of America for public and private debts.
- Captions; Counterparts. Captions contained in this Agreement in no way define, limit or extend the scope or intent of their respective provisions. This Agreement may be executed by facsimile and in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument.
- Knowledge; Discretion. All references herein to a party's best knowledge shall be deemed to mean the best knowledge of such party based on commercially reasonable inquiry. All references herein to Borrower's knowledge shall be deemed to refer to the best knowledge of Borrower and each Subsidiary. Unless specified to the contrary herein, all references herein to an exercise of discretion or judgment by Lender, to the making of a determination or designation by Lender, to the application of Lender's discretion or opinion, to the granting or withholding of Lender's consent or approval, to the consideration of whether a matter or thing is satisfactory or acceptable to Lender, or otherwise involving the decision making of Lender, shall be deemed to mean that Lender shall decide unilaterally using its sole and absolute discretion or judgment.
WAIVER OF RIGHT TO JURY TRIAL. BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT, THE SUBORDINATED DEBENTURE OR ANY OF THE OTHER TRANSACTION DOCUMENTS, OR ANY OTHER STATEMENTS OR ACTIONS OF BORROWER OR LENDER. BORROWER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS DISCUSSED THIS WAIVER WITH SUCH LEGAL COUNSEL. BORROWER FURTHER ACKNOWLEDGES THAT (a) IT HAS READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER, (b) THIS WAIVER HAS BEEN REVIEWED BY BORROWER AND BORROWER'S COUNSEL AND IS A MATERIAL INDUCEMENT FOR LENDER TO ENTER INTO THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS AND (c) THIS WAIVER SHALL BE EFFECTIVE AS TO EACH OF SUCH TRANSACTION DOCUMENTS AS IF FULLY INCORPORATED THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this Subordinated Note Purchase Agreement to be executed by their duly authorized representatives as of the date first above written.
EAST WEST BANK
By:
Name: Julia S. Gouw
Title: Executive Vice President and Chief Financial Officer
WISCONSIN CAPITAL CORPORATION
By:
Name: Louis T. Dubuque
Title: Vice President
EXHIBIT A
FORM OF SUBORDINATED NOTE
THIS SUBORDINATED NOTE IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY FEDERAL AGENCY.
$50,000,000.00 Milwaukee, Wisconsin
______________, 2005
FOR VALUE RECEIVED, the undersigned, EAST WEST BANK, a California state-chartered Federal Reserve member bank ("Borrower"), hereby promises to pay to the order of WISCONSIN CAPITAL CORPORATION, a Nevada corporation, or any holder hereof from time to time ("Lender"), at such place as may be designated in writing by Lender, the principal sum of FIFTY MILLION AND NO/100 DOLLARS ($50,000,000.00) (or so much thereof that has been advanced and remains outstanding) with interest thereon as hereinafter provided. This Subordinated Note (this "Subordinated Note")is issued pursuant to the terms of that certain Subordinated Note Purchase Agreement of even date herewith by and between Borrower and Lender (as may be amended, restated, supplemented or modified from time to time, the "Agreement"). All capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Agreement.
All accrued interest and unpaid principal and other amounts due and payable under this Subordinated Note shall be paid in full on or before the Maturity Date. The outstanding unpaid principal balance of this Subordinated Note shall be payable in one installment on the Maturity Date. The unpaid principal amount outstanding under this Subordinated Note from time to time shall bear interest before maturity in accordance with the Agreement. Under certain circumstances as provided in the Agreement, overdue interest payments under this Subordinated Note shall bear interest from the due date thereof until paid at a daily rate equal to the Default Rate.
Whenever any payment to be made under this Subordinated Note shall be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day. There shall be no penalties or other charges payable by Borrower to Lender hereunder other than those payments described in this Subordinated Note or in the Agreement. Borrower may prepay all or, from time to time, part of the outstanding unpaid principal balance under this Subordinated Note in accordance withSection 2.8.1 of the Agreement.
This Subordinated Note is not secured by any assets of Borrower. No payment shall be made at any time on account of the principal hereof, unless following such payment the sum of (a) the shareholders' equity of Borrower and (b) the aggregate principal amount thereafter outstanding under this Subordinated Note and all other capital notes and debentures of Borrower shall equal or exceed the sum of (i) $__________ (which represents the shareholders' equity of Borrower at the date of the original issue of this Subordinated Note) and (ii) $50,000,000 (which represents the principal amount of all capital notes and debentures, including this Subordinated Note, at the date of original issue of this Subordinated Note), except as may be otherwise authorized by the CCFI.
So long as any portion of the unpaid principal of this Subordinated Note is deemed by the FRB to be Tier 2 Capital of Borrower in accordance with the rules and regulations of the FRB applicable to the capital status of the subordinated debt, the rights of Lender to the principal sum hereunder or any part hereof and to any accrued interest thereon shall remain subject and subordinate to the claims of general creditors and depositors of Borrower (collectively, "Senior Claims"), but hereby expressly excluding claims relating to Other Subordinated Indebtedness (as defined below) with respect to which the rights of Lender are senior in all respects. Upon dissolution or liquidation of Borrower, no payment of principal, interest or premium (including post-default interest) shall be due and payable under the terms of this Subordinated Note until all Senior Claims (which expressly exclude claims relating to the Other Subordinated Indebtedness) shall have been paid in full. If thi s Subordinated Note ceases to be deemed to be Tier 2 Capital of Borrower in accordance with the rules and regulations of the FRB applicable to the capital status of the subordinated debt, other than due to the limitations imposed by the second sentence of 12 C.F.R Section 250.166(e), which limits the capital treatment of subordinated debt during the five years immediately preceding the maturity date of the subordinated debt, Borrower shall: immediately notify Lender; and immediately upon request of Lender execute and deliver all such agreements (including without limitation pledge agreements and replacement notes) as Lender may request in order to restructure the obligation evidenced hereby as a senior obligation of Borrower with the same interest rate and Maturity Date as is provided in the Agreement with respect to this Subordinated Note. If Borrower fails to execute such agreements as required by Lender within 30 days of Lender's request, such failure shall be deemed to be an Event of Default underSe ction 8.1.1 of the Agreement.
As used herein, "Other Subordinated Indebtedness" shall mean indebtedness that is subordinated to the interests of the Borrower's depositors or is otherwise intended to qualify as regulatory capital of Borrower in accordance with the rules and regulations of the FRB.
If an Event of Default shall occur, Lender shall have the rights set forth inSection 8.1.2of the Agreement.
If any attorney is engaged by Lender to enforce or defend any provision of this Subordinated Note or any of the other Transaction Documents, or as a consequence of any Event of Default, with or without the filing of any legal action or proceeding, then Borrower shall pay to Lender immediately upon demand all attorneys' fees and expenses, together with interest thereon from the date of such demand until paid at the rate of interest applicable to the principal balance owing hereunder as if such unpaid attorneys' fees and expenses had been added to the principal.
No previous waiver and no failure or delay by Lender in acting with respect to the terms of this Subordinated Note or any of the other Transaction Documents shall constitute a waiver of any breach, default or failure of condition under this Subordinated Note, the Agreement or any of the other Transaction Documents or the obligations secured thereby. A waiver of any term of this Subordinated Note or any of the other Transaction Documents or of any of the obligations secured thereby must be made in writing and shall be limited to the express written terms of such waiver. In the event of any inconsistencies between the terms of this Subordinated Note and the terms of any other document related to the Facility evidenced by this Subordinated Note, the terms of this Subordinated Note shall prevail.
Except as otherwise provided in the Agreement, Borrower expressly waives presentment, demand, notice of dishonor, notice of default or delinquency, notice of acceleration, notice of protest and nonpayment, notice of costs, expenses or losses and interest thereon, notice of late charges, and diligence in taking any action to collect any sums owing under this Subordinated Note. In addition, Borrower expressly agrees that this Subordinated Note and any payment coming due hereunder may be extended from time to time without in any way affecting the liability of any such party hereunder.
Time is of the essence with respect to every provision hereof. This Subordinated Note shall be construed and enforced in accordance with the laws of the State of California, except to the extent that federal laws preempt the laws of the State of California, and all persons and entities in any manner obligated under this Subordinated Note consent to the jurisdiction of any federal or State court within Los Angeles, California having proper venue and also consent to service of process by any means authorized by California or Federal law. Any reference contained herein to attorneys' fees and expenses shall be deemed to be to reasonable fees and expenses and to include all reasonable fees and expenses of in-house or staff attorneys and the reasonable fees and expenses of any other experts or consultants.
All agreements between Borrower and Lender (including, without limitation, this Subordinated Note and the Agreement, and any other documents securing all or any part of the indebtedness evidenced hereby) are expressly limited so that in no event whatsoever shall the amount paid or agreed to be paid to Lender exceed the highest lawful rate of interest permissible under applicable law. If, from any circumstances whatsoever, fulfillment of any provision hereof, the Agreement or any other documents securing all or any part of the indebtedness evidenced hereby at the time performance of such provisions shall be due, shall involve exceeding the limit of validity prescribed by law which a court of competent jurisdiction may deem applicable hereto, then,ipso facto, the obligation to be fulfilled shall be reduced to the highest lawful rate of interest permissible under such applicable laws, and if, for any reason whatsoever, Lender shall ever receive as interest an amount which would be de emed unlawful under such applicable law, such interest shall be automatically applied to the payment of the principal of this Subordinated Note (whether or not then due and payable) and not to the payment of interest or refunded to Borrower if such principal has been paid in full.
Lender may sell, assign, pledge or otherwise transfer or encumber any or all of its interest under this Subordinated Note at any time and from time to time; provided, however, that the prior written consent of Borrower, not to be unreasonably withheld or delayed, is required for any sale or assignment of this Subordinated Note. In the event of a transfer, all terms and conditions of this Subordinated Note shall be binding upon and inure to the benefit of the transferee after such transfer.
Upon receipt of notice from Lender advising Borrower of the loss, theft, destruction or mutilation of this Subordinated Note, Borrower shall, execute and deliver in lieu thereof a new debenture in principal amount equal to the unpaid principal amount of such lost, stolen, destroyed or mutilated debenture, dated the date to which interest has been paid on such lost, stolen, destroyed or mutilated Subordinated Note.
Unless otherwise provided in the Agreement, all payments on account of the indebtedness evidenced by this Subordinated Note shall be first applied to the payment of costs and expenses of Lender which are due and payable, then to past-due interest on the unpaid principal balance and the remainder to principal.
Any notice which either party hereto may be required or may desire to give hereunder shall be governed by the notice provisions of the Agreement.
BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING IN ANY WAY IN CONNECTION WITH THIS Subordinated Note OR ANY OF THE OTHER TRANSACTION DOCUMENTS, OR ANY OTHER STATEMENTS OR ACTIONS OF BORROWER OR LENDER. BORROWER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS SUBORDINATED NOTE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS DISCUSSED THIS WAIVER WITH SUCH LEGAL COUNSEL. BORROWER FURTHER ACKNOWLEDGES THAT (i) IT HAS READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER, (ii) THIS WAIVER HAS BEEN REVIEWED BY BORROWER AND BORROWER'S COUNSEL AND IS A MATERIAL INDUCEMENT FOR LENDER TO ENTER INTO THE TRANSACTION DOCUMENTS, AND (iii) THIS WAIVER SHALL BE EFFECTIVE AS TO EACH OF THE TRANSACTION DOCUMENTS AS IF FULLY INCORPORATED THEREIN.
IN WITNESS WHEREOF, the undersigned has executed this Subordinated Note or caused this Subordinated Note to be executed by its duly authorized representative as of the date first above written.
EAST WEST BANK
By:
Name: Julia S. Gouw
Title: Executive Vice President and Chief Financial Officer
EXHIBIT B
FORM OF RATE ELECTION NOTICE
_________________, 200__
Wisconsin Capital Corporation
c/o U.S. Bank National Association
777 East Wisconsin Avenue
3rd Floor - Wisconsin Level
Milwaukee, Wisconsin 53202
Attn: Correspondent Banking Division
Ladies and Gentlemen:
This will confirm the telephone conversation Ms./Mr. _____________________ had with your office on _____________, 200__, regarding Borrowing Tranches under and as defined in the Subordinated Note Purchase Agreement dated as of April __, 2005 (the "Agreement"), as follows:
FROM FACILITY #:______________
Amount of Currently Outstanding LIBO Rate Tranche: $____________
Amount of Currently Outstanding Base Rate Tranche: $____________
For Currently Outstanding LIBO Rate Tranche(complete as applicable):
- Amount to be converted to Base Rate Tranche
(multiple of $5,000,000): $____________
- Amount to be continued for additional LIBOR Period: $____________
For Currently Outstanding Base Rate Tranche(complete as applicable):
- Amount to be converted to LIBO Rate Tranche
(multiple of $5,000,000): $____________
Date:______________________
We acknowledge that the election reflected herein is subject toSection 2.6.1 and the other provisions of the Agreement.
Very truly yours,
EAST WEST BANK
By:
Authorized Signature
EXHIBIT C
FORM OF OPINION OF BORROWER'S COUNSEL
April __, 2005
Wisconsin Capital Corporation
c/o U.S. Bank National Association
777 East Wisconsin Avenue
3rd Floor - Wisconsin Level
Milwaukee, Wisconsin 53202
Attn: Correspondent Banking Division
Re:Subordinated Note Issued by East West Bank
Ladies and Gentlemen:
We have served as counsel to East West Bank ("Borrower"), a California state-chartered Federal Reserve member bank, in connection with the Facility described in that certain Subordinated Note Purchase Agreement dated as of April __, 2005 (the "Purchase Agreement") by and between Borrower and Wisconsin Capital Corporation, a Nevada corporation ("Lender"). This opinion is being delivered to you pursuant toSection 3.2.1 of the Purchase Agreement. Capitalized terms used herein and otherwise undefined shall have the meanings given them in the Purchase Agreement.
In order to render the opinions expressed herein, we have examined the following (collectively, the "Financing Documents"):
1. the executed Purchase Agreement and the other Transaction Documents; and
2. such other documents, instruments, writings and agreements as we deemed appropriate.
In our examination of the Financing Documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity of all copies submitted to us with the originals to be delivered and the due authorization, execution and delivery by each party to such documents (other than Borrower).
Based on the foregoing and subject to the qualifications set forth in this letter, it is our opinion that:
1. Borrower is a state-chartered Federal Reserve member bank, duly organized, validly existing and in good standing under the laws of the State of California. The deposit accounts of Borrower are insured by the FDIC. Borrower has the requisite power and authority, corporate or otherwise, to conduct its business as it has been and is now being conducted. The authorized capital stock of Borrower is as stated in the Purchase Agreement and such stock is validly issued and outstanding, fully paid and non-assessable, and is owned in its entirety, beneficially and of record by Bancorp.
2. Provided that Lender is an accredited investor within the meaning of Regulation D as promulgated under the Securities Act of 1933, as amended (the "Act"), it is not necessary in conjunction with the issuance of the Subordinated Note, to register the Subordinated Note under the Act or the laws of the State of California.
3. No order, permission, consent or approval of any federal or state commission, board or regulatory authority is required for the execution and delivery or performance by Borrower of the Transaction Documents.
4. Except as disclosed in the Transaction Documents, there are no actions, suits, investigations, or proceedings pending, or to our knowledge, threatened against or affecting Borrower or any Subsidiary, or the business or properties of Borrower or any Subsidiary, or before or by any Governmental Agency or any court, arbitrator or grand jury, which can reasonably be expected to result in any material adverse change in business, operations or properties or assets or in the condition, financial or otherwise, of Borrower or any Subsidiary, or in the ability of Borrower or any Subsidiary to perform under the Transaction Documents. None of Borrower or any Subsidiary is, to our knowledge, in default with respect to any judgment, order, writ, injunction, decree, demand, rule or regulation of any court, arbitrator, grand jury, or of any Governmental Agency, default under which might have consequences which would materially and adversely affect the business, properties or assets of the condition , financial or otherwise, of Borrower or any Subsidiary.
5. There is no default by Borrower or any Subsidiary under any order, writ, injunction or decree of any court, any applicable law, instrumentality, any contract, lease, agreement, instrument or commitment to which any of them is a party or bound, which has or would have a material adverse effect upon the condition, financial or otherwise, of Borrower, or any Subsidiary or their ability to perform under the Transaction Documents.
6. To our knowledge, no proceeds of the Facility will be used to purchase or carry any margin stock or to extend credit to others for purposes of purchasing or carrying margin stock.
7. The execution, delivery and performance by Borrower of the Transaction Documents (a) are within Borrower's corporate powers, (b) have been duly authorized by all necessary corporate action of Borrower, (c) do not contravene (i) Borrower's articles of association or by-laws or (ii) any law or contractual restriction (including, without limitation, any restriction set forth in any indenture) affecting Borrower or any Subsidiary and (d) do not result in the creation of any lien or other encumbrance upon or with respect to any of the assets or property of Borrower or any Subsidiary.
8. The Transaction Documents are legally valid and binding obligations of Borrower and are enforceable against it in accordance with their respective terms, except as such enforceability may be limiting by bankruptcy, insolvency, reorganization, moratorium, or other laws relating to or limiting creditors' rights or equitable principles generally.
Very truly yours,
EXHIBIT D
FORM OF AUTHORIZATION TO DEBIT ACCOUNT
To: U.S. Bank Agency Services, as Servicing Agent
Attention: (Insert Agency Specialist Name)
Fax Number: (Insert Fax Number)
EAST WEST BANK (the "Borrower") hereby authorizes and directs U.S. Bank National Association (the "Bank") to debit the Borrower's account no. _____________________ at the Bank for the amount of any interest, fees or principal due on any of the Borrower's indebtedness to Wisconsin Capital Corporation, and to pay such amount to Wisconsin Capital Corporation.
DATED:_____________________ | EAST WEST BANK By: Name: Title: |
EXHIBIT E
FORM OF NOTICE OF AUTHORIZED BORROWERS
To: U.S. Bank Agency Services, as Servicing Agent
Attention: (Insert Agency Specialist Name)
Fax Number: (Insert Fax Number)
Please be advised that the following people are authorized to request advances, principal reductions or fixed rate contracts (e.g. LIBOR loans) under the credit facilities referenced in the Subordinated Note Purchase Agreement, dated as of April __, 2005, between East West Bank and Wisconsin Capital Corporation:
