Exhibit
10.5


 


PLACEMENT AGENT AGREEMENT


 


September
7, 2004


 


Howe Barnes Investments, Inc.

222 South Riverside Plaza


7th Floor

Chicago, Illinois 60606-5808


 


Re: Access Anytime
Bancorp, Inc.


 


Ladies
and Gentlemen:


 


Section 1.                  Introductory.  Access Anytime Bancorp, Inc. (the “Company”), has authorized the issuance and sale of common stock
(the “Securities”).  The Securities will be issued in the
aggregate purchase price of up to $3,120,000 on such terms as are disclosed in
the Placement Memorandum (as defined below).


 


The Company intends to sell the Securities to a
limited number of accredited investors (each a “Purchaser”)
in reliance upon available exemptions from the registration requirements of the
Securities Act of 1933, as amended (the “1933 Act”),
and state securities laws.  The Company
has requested you to assist it as placement agent in the private placement of
Securities, and you have indicated your willingness to do so, subject to the
satisfactory completion of such investigation and inquiry as you deem
appropriate under the circumstances and subject to the conditions set forth
below.


 


Section 2.                  Appointment
of Placement Agent; Placement of Securities.  (a) The Company hereby appoints you as
the placement agent (the “Placement Agent”)
in connection with the placement of the Securities.  Subject to the performance by the Company of
its obligations contained herein and to the completeness and accuracy of its
representations and warranties contained herein, you hereby accept such agency
and agree, on the terms and conditions set forth herein, to use your “best
efforts” to locate and place the Securities with qualified Purchasers for the
Securities.  Your agency hereunder shall
continue until the date upon which the last of the Securities is sold to a
Purchaser, unless this Agreement is terminated prior to such date pursuant to
Section 8 hereof.


 


(b)         The
Placement Agent will offer the Securities only to persons who are “accredited
investors” within the meaning of Regulation D under the 1933 Act and only
in accordance with Rule 502(c) of said Regulation D.  Company counsel will determine the categories
of investors to whom the Securities may be offered without registration or
qualification under the state securities or “Blue Sky” laws of the various
states, and Placement Agent agrees that it will offer the Securities only to
such investors in such states.  All sales
of the Securities are subject to 


 





















 


acceptance by the Company.  The Placement Agent agrees that it will not
offer or sell any of the Securities:


 


(i)             to
any offeree who does not constitute an “accredited investor” within the meaning
of Regulation D under the 1933 Act, without the prior approval of the
Company; or


 


(ii)          by
means of any form of general solicitation or general advertisement, including but
not limited to (x) any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or
broadcast over television or radio, (y) any seminar or meeting if any
person other than an “accredited investor” attends or is invited to attend or
whose attendees have been invited by any general solicitation or general
advertising and (z) any letter, circular, notice or other written
communication unless such communication is directed solely to investors
identified as “accredited investors.”


 


(c)          It is
expressly agreed that the Placement Agent’s agency hereunder shall constitute a
“best efforts” agency undertaking and that this Agreement shall not be
understood as a commitment, expressed or implied, by the Placement Agent to
underwrite, purchase or pay for any of the Securities.


 


(d)         It is
understood and expressly agreed that nothing contained in this Agreement shall
prevent the Placement Agent from entering into any agency agreements,
underwriting agreements or other similar agreements governing the offer and
sale of securities with any other issuer or issuers of securities, and nothing
contained herein shall be construed in any way as precluding or restricting the
right of the Placement Agent to sell or offer for sale securities issued by any
person; provided, however that the Placement Agent shall have no authority to
bind the Company.


 


(e)          The Company
agrees that in connection with the placement of the Securities, the Placement
Agent may use such data and information that the Company furnishes to the
Placement Agent, subject to the limitations of Section 12.  The Placement Agent shall not deliver any of
such data and information to prospective Purchasers of the Securities unless
the Company has given its prior express consent to such delivery.  The Placement Agent shall not distribute any
offering material in connection with the offer and sale of the Securities other
than the Private Placement Memorandum relating to the Securities dated on or
about the date hereof, as supplemented (the “Placement Memorandum”)
or other materials consented to in advance by the Company.  Neither the Placement Agent nor any person
employed by the Placement Agent shall provide any information or make any
representations to Purchasers other than such information and representations
as are contained in or incorporated by reference into the Placement Memorandum
or as are not inconsistent with information set forth in the Placement
Memorandum and have been pre-approved by the Company in writing.


 


(f)            The
Placement Agent represents and warrants, as of the date hereof and at the Closing
Date with respect to the issuance and sale of the Securities, that it is
licensed as a broker-dealer authorized to offer and sell the Securities by the
Securities and Exchange Commission and 


 


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the securities authorities of each state in which the
Placement Agent will offer or has offered the Securities.


 


(g)         The
parties agree that (i) Securities may not be sold to any Purchaser, with the
exception of HBI Private Equity Fund I, L.P., or affiliated entities, if such
purchase would result in the Purchaser owning more than 9.0% of the outstanding
shares of the Company’s common stock following this offering, (ii) in no event
will the Securities offering price be less than the price of $13.00 set forth
in the fairness opinion obtained by the Company on August 25, 2004, and (iii)
the amount of Securities sold shall not exceed 19.0% of the Company’s common
stock outstanding before this offering.


 


Section 3.                  Representations
and Warranties of the Company.  The
Company hereby represents and warrants to, and agrees with, the Placement
Agent, that:


 


(a)          At
the date hereof and at each closing date with respect to the issuance and sale
of the Securities (each, a “Closing Date”),
the Company has been and will have been duly organized and is and will be
validly existing as a corporation in active status under the laws of the state
of its incorporation, with corporate power and authority to own or lease its
property and conduct its business as presently conducted.  At such date, the Company is duly qualified
to transact business in all jurisdictions in which the conduct of its business
requires such qualification and the failure to so qualify could reasonably be
expected to have a material adverse effect on the business or condition,
financial or otherwise of the Company and its subsidiaries, taken as a whole (“Material Adverse Effect”).


 


(b)         At
the date hereof and at the Closing Date, the Company has and will have the
corporate power and authority to authorize the issuance and sale of the
Securities as contemplated hereby.  At
each such date, this Agreement has been and will have been duly and validly authorized,
executed and delivered by the Company and constitutes and will constitute the
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as such obligations may be limited
by bankruptcy, insolvency, reorganization and other similar laws affecting the
rights of creditors generally and the application of general equitable
principles (regardless of whether the issue of enforceability is considered in
a proceeding in equity or at law).  At
the Closing Date, all documents relating to the Securities issuance (the “Transaction Documents”) will have been duly and validly
authorized, executed and delivered by the Company and will constitute the
legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, except as such obligations
may be limited by bankruptcy, insolvency, reorganization, and other similar
laws affecting the rights of creditors generally and the application of general
equitable principles (regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law).


 


(c)          Except
as disclosed in writing to the Placement Agent, at the date hereof and at the
Closing Date, the business and operations of the Company have been and will be
conducted in compliance in all material respects with all applicable laws,
rules and 


 


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regulations of all governmental and regulatory
authorities having jurisdiction over the Company.  At each such date, the Company holds and is
operating in compliance with in all material respects, and will hold and will
be operating in compliance with in all material respects, all material
licenses, approvals, certificates and permits from governmental and regulatory
authorities which are necessary to the conduct of its businesses.  At each such date, no proceedings on the part
of such governmental or regulatory authorities are or will be pending or, to
the Company’s knowledge, threatened which might result in the suspension,
revocation or material limitation of any such licenses, approvals, certificates
and permits.  At each such date, each
approval, consent, authorization, declaration or filing of the Company by or
with any regulatory, administrative or other governmental body which is then
necessary in connection with the execution and delivery by the Company of this
Agreement and the consummation of the transactions contemplated hereby and
thereby has been and will have been obtained or made and is and will be in full
force and effect.


 


(d)         At
the date hereof and at the Closing Date, the Company is not or will not be in
violation of or default under its charter or bylaws or under any permit,
judgment, decree, order, statute, rule or regulation applicable to the Company,
or under any agreement, lease, contract, loan agreement, indenture or other
instrument or obligation to which the Company is a party or by which it is
bound, except where such violations or defaults could not reasonably be
expected to have a Material Adverse Effect. 
At each such time, the consummation of the transactions contemplated
hereby and the fulfillment of the terms hereof and of the Securities do not and
will not conflict with or result in a violation of or default under the charter
or bylaws of the Company, or under any permit, judgment, decree, order,
statute, rule or regulation applicable to the Company, or under any agreement,
lease, contract, loan agreement, indenture or other instrument or obligation to
which the Company is a party or by which it or any of its properties is bound,
except where such conflict, violation or default could not reasonably be
expected to have a Material Adverse Effect.


 


(e)          The
financial statements and schedules previously delivered to the Placement Agent
fairly present, in all material respects, the financial condition and results
of operations of the Company at the dates and for the periods presented
therein.  Such financial statements have
been prepared in accordance with generally accepted accounting principles consistently
applied throughout the periods presented, and all adjustments necessary for a
fair presentation of the financial condition and results of operations of the
Company at such dates and for such periods have been made (except in the case
of interim financial statements, year end adjustments or nonrecurring items).


 


(f)            At
the date hereof, none of the Company, any affiliate of the Company, any person
acting on behalf of the Company or any person acting on behalf of any such
affiliate, has, directly or indirectly, offered or sold or attempted to offer
or sell any of the Securities to, or solicited offers to purchase any
Securities from, any prospective purchaser thereof in such a manner as to
require the registration of the Securities under the 1933 Act, except as
previously disclosed to the Placement Agent with respect to the Company’s “Rabbi
Trust.”


 


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(g)         At
the date hereof and at the Closing Date, neither the Company nor any affiliate
is or will be a party to or bound by any placement agency agreement, finder’s
fee agreement, or other agreement pursuant to which either of them is or may be
required to pay any person other than the Placement Agent any commission,
finder’s fee or other similar amount with respect to the placement and sale of
the Securities or is restricted from offering or selling the Securities as
contemplated hereby.


 


(h)         The
information contained in the Placement Memorandum will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.


 


(i)             If
between the date of this Agreement and the Closing Date, the Company has
knowledge of a fact or event which would cause the Placement Memorandum to
contain an untrue statement of a material fact or to omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
the Company shall notify the Placement Agent and will amend or supplement the
Placement Memorandum in a form and in a manner reasonably approved by the
Company and the Placement Agent.


 


Section 4.                  Certain
Agreements of the Company.  The
Company hereby agrees with the Placement Agent that:


 


(a)          None
of the Company, any affiliate of the Company or any person acting on behalf of
the Company or any such affiliate (other than the Placement Agent or any other
investment banking firm retained by the Placement Agent and approved by the
Company (an “Approved Agent”)), will, directly or
indirectly, offer or sell or attempt to offer or sell any of the Securities to,
or solicit offers to purchase any Securities from, any prospective Purchaser
thereof, except pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the 1933 Act.  Until March 1, 2005, none of the Company, any
affiliate of the Company or any person acting on behalf of the Company or any
such affiliate (other than the Placement Agent) will, directly or indirectly,
offer or sell or attempt to offer or sell any securities of the Company, or any
affiliate of the Company, to, or solicit offers to purchase any such securities
from, any non-insider to whom the Placement Agent offered to sell any of the
Securities.  Such persons will be
identified by the Placement Agent on the earlier of the Closing Date or on the
termination date set forth in Section 8 hereof.


 


(b)         The
Company will make available to the Placement Agent and its counsel such
additional documents and information regarding the Company as the Placement
Agent and such counsel may from time to time reasonably request.


 


(c)          The
Company will make available to each potential Purchaser identified by the
Placement Agent, but subject to applicable law and in any case involving
nonpublic information to receipt by the Company from the potential Purchaser of
a confidentiality agreement satisfying (in the Company’s reasonable judgment)
the 


 


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requirements of Rule 100(b)(2)(ii) of
Regulation FD under the 1933 Act, prior to the Closing Date, (i) such
information as may be requested by such potential Purchaser in order to
evaluate an investment in the Securities, as applicable, and (ii) an
opportunity to ask questions of, and receive answers from, the Company with
respect to such matters.


 


(d)         At
each Closing Date, the Company will deliver to the Placement Agent the following:


 


(i)             the
opinion of Keleher & McLeod, P.A., counsel to the Company, dated the
Closing Date, in substantially the form as Exhibit A hereof;


 


(ii)          the
opinion of regulatory counsel to the Company, dated the Closing Date, in form
and substance acceptable to the Placement Agent;


 


(iii)       certificates
signed by the president or vice president of the Company dated the Closing
Date, to the effect that the respective representations and warranties of the
Company contained in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as if made on the
Closing Date, and that the Company has performed all the agreements and
satisfied all the conditions to be performed or satisfied by the Company, in
all material respects, under this Agreement at or prior to the Closing Date;


 


(iv)      the
executed Transaction Documents; and


 


(v)         such
additional closing certificates, opinions and other closing documents as the
Placement Agent or its counsel may reasonably have requested.


 


The Placement Agent and its counsel shall be an
addressee of, or expressly authorized to rely upon, the certificates, opinions
of counsel and other closing documentation so delivered.  All such certificates, opinions of counsel
and other closing documentation, and the Securities shall be in form and
substance reasonably satisfactory to the Placement Agent and its counsel.


 


(e)          At
any time that the Company is not subject to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the “1934 Act”),
the Company will furnish to any holder of the Securities and any prospective
purchaser of the Securities, upon request of such holder or prospective
purchaser, the information required to be delivered pursuant to
Rule 144A(d)(4) under the 1933 Act.  This covenant is intended to be for the
benefit of the prospective purchasers designated by such holders from time to
time.


 


Section 5.                  Compensation;
Payment of Expenses.  (a) In
consideration of the Placement Agent’s services hereunder, the Company agrees
to pay to the Placement Agent a fee in an amount equal to four percent (4.00%)
of the aggregate offering price of the Securities to investors other than the
HBI Private Equity Fund I, L.P., or affiliated entities, and three percent
(3.00%) for 


 


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such a placement. 
Such fee shall be paid by the Company to the Placement Agent in
immediately available funds on the Closing Date.  The Company shall have no obligation to pay
any fees with respect to any placement of Securities which is not
completed.  The Placement Agent shall be
responsible for all fees payable to any Approved Agent.


 


(b)         Whether
or not the transaction contemplated hereby is consummated, the Company shall
pay all costs, fees and expenses incurred by it in connection with such
transactions, including, without limitation, (i) the fees and expenses of
counsel to the Company and of the Company’s accountants and consultants,
(ii) the expenses of preparing and reproducing the Securities, the
Placement Memorandum and the Transaction Documents, (iii) the expenses, fees
(including any “Blue Sky” fees) and taxes, if any, incident to the issuance of
the Securities, and (iv) the expenses of the Company’s performance of and
compliance with all agreements and conditions contained and incorporated
herein.


 


(c)          Other
than the reasonable fees of counsel to the Placement Agent (not to exceed $5,000)
and certain reasonable offering expenses (not to exceed $2,000), the Company
shall not be obligated to pay the costs, fees and expenses incurred by the
Placement Agent in connection with the transaction.  The Company is obligated to pay the
reasonable fees of counsel to the Placement Agent and the reasonable offering
expenses whether or not the transaction contemplated hereby is consummated.


 


Section 6.                  Conditions
to the Placement Agents’ Obligations. 
The obligation of the Placement Agent to provide the services provided
for hereunder is subject to the accuracy of the representations and warranties
of the Company contained herein and to the performance by the Company of its
agreements and obligations contained herein.


 


Section 7.                  Indemnification
and Contribution.  (a) The
Company agrees to indemnify and hold harmless the Placement Agent and each
person, if any, who controls the Placement Agent within the meaning of the 1933
Act or the 1934 Act (each, an “Agent Indemnified Party”),
against any and all losses, claims, damages or liabilities to which the
Placement Agent or such controlling person may become subject insofar as such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in any offering materials
prepared by or on behalf of the Company in connection with the offer and sale
of the Securities or in any information furnished or made available by or on
behalf of the Company to prospective Purchasers or their respective
representatives (all such offering materials and information collectively
referred to herein as the “Offering Materials”)
or any amendment thereof or supplement thereto, or (ii) the omission or
alleged omission to state in the Offering Materials a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they are made, not misleading, and will reimburse the Placement
Agent and each such controlling person for any legal or other expenses
reasonably incurred by the Placement Agent or such controlling person in connection
with investigating or defending against any such loss, claim, damage,
liability, action or proceeding.  The
Company shall not be liable hereunder to any Agent Indemnified Party to extent
that the losses, claims, damages or liabilities incurred by the Agent
Indemnified Party arise from such person’s fraudulent act or omission.  This indemnity agreement will be in addition
to any liability which the Company may otherwise have.


 


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(b)         The
Placement Agent agrees to indemnify and hold harmless the Company and each
person, if any, who controls the Company within the meaning of the 1933 Act or
the 1934 Act (each a “Company Indemnified Party”
and together with the Agent Indemnified Parties, an “Indemnified
Party”), against any and all losses, claims, damages or liabilities
to which the Company or such controlling person may become subject insofar as
such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in, or any omission or alleged
omission from, any Offering Materials or any amendment thereof or supplement
thereto to the extent the statement or alleged statement does not appear in the
Placement Memorandum and was made by the Placement Agent without prior
authorization by the Company as required by this Agreement, and will reimburse
the Company and each such controlling person for any legal or other expenses
reasonably incurred by the Company or such controlling person in connection
with investigating or defending against any such loss, claim, damage,
liability, action or proceeding; provided, however,
that the obligation of the Placement Agent to indemnify the Company Indemnified
Parties hereunder is limited to the total fees earned by the Placement Agent
hereunder and costs, fees and expenses for which the Placement Agent has been
reimbursed by the Company.  The Placement
Agent shall not be liable hereunder to any Company Indemnified Party to the
extent that the losses, claims, damages or liabilities incurred by the Company
Indemnified Party arise from such person’s fraudulent act or omissions.  This indemnity agreement will be in addition
to any liability which the Placement Agent may otherwise have.


 


(c)          In
case any proceeding (including any governmental investigation) shall be
instituted involving any Indemnified Party pursuant to this Section 7,
such Indemnified Party shall promptly notify the party required to provide
indemnification hereunder (the “Indemnifying Party”)
in writing.  No indemnification provided
for in this Section 7 shall be available to any Indemnified Party who
shall fail to give written notice as provided in this Section 7(c) if the
Indemnifying Party was unaware of the proceeding to which such notice would
have related and was prejudiced by the failure to give such notice, but the
failure to give such notice shall not relieve the Indemnifying Party from any
liability which it may have to the Indemnified Party for contribution or
otherwise than on account of the indemnification provisions of this
Section 7.  In case any such
proceeding shall be brought against any Indemnified Party and it shall notify
the Indemnifying Party of the commencement thereof, the Indemnifying Party
shall be entitled to participate therein and assume the defense thereof with
counsel reasonably satisfactory to such Indemnified Party and shall pay as
incurred the reasonable fees and disbursements of such counsel related to such
proceeding.  In any such proceeding, any
Indemnified Party shall have the right to retain its own counsel at its own
expense.  Notwithstanding the foregoing,
the Indemnifying Party shall pay as incurred the reasonable fees and expenses
of the counsel retained by the Indemnified Party in the event that (i) the
Indemnifying Party and the Indemnified Party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include the Indemnifying Party and the
Indemnified Party and representation of all parties by the same counsel would,
in the reasonable judgment of the Indemnified Party, be inappropriate due to
actual or potential differing interests between them or to differing or additional
defenses which may be available to one of them. 
It is understood that the Indemnifying Party shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the fees and expenses of more than one 


 


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separate firm for all such Indemnified Parties.  The Indemnifying Party shall not be liable
for any settlement of any proceeding effected without its prior written consent
but if settled with such prior written consent or if there be a final
nonappealable judgment for the plaintiff, the Indemnifying Party agrees to
indemnify the Indemnified Party from and against any loss or liability by
reason of such settlement or judgment.


 


(d)         If
the indemnification provided for in this Section 7 is unavailable or
insufficient to hold harmless an Indemnified Party in respect of any losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to therein, then the Indemnifying Party shall contribute to the amount
paid or payable by such Indemnified Party as a result of such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the Company
on the one hand and the Placement Agent on the other from the placement of the
Securities.  If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the Indemnified Party failed to give the written notice required
under Section 7(c) above, then the Company shall contribute to such amount
paid or payable by such Indemnified Party in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the
Company on the one hand and the Placement Agent on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof), as well as any
other relevant equitable considerations. 
The relative benefits received by the Company on the one hand and the
Placement Agent on the other shall be deemed to be in the same proportion as
the total net proceeds from the placement received by the Company (after
deducting the fee payable to the Placement Agent pursuant to Section 5(a)
but before deducting other expenses payable by the Company) bear to the fee
received by the Placement Agent pursuant to Section 5(a).  The relative fault shall be determined by
reference to, among other things, the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.  The amount paid or payable by
an Indemnified Party as a result of the losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) referred to in this
Section 7(d) shall be deemed to include any legal or other expense
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim. 
No person guilty of fraudulent misrepresentation (within the meaning of
Section 12(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.


 


(e)          The
obligations of the Company and the Placement Agent under this Section 7
shall survive any termination of this Agreement, in whole or in part.


 


Section 8.                  Termination
of Agreement.  Notwithstanding
anything herein to the contrary, this Agreement: (a) shall be cancelled and
terminated upon expiration or completion of the offering of Securities; and (b)
may be cancelled and terminated by either party upon written notice to the
other party in the event that (i) a party fails or refuses to perform any
of its respective agreements contained herein, (ii) any representation or
warranty of a party contained herein shall be untrue or incorrect or
(iii) without cause upon 30 days prior written notice.  Any such cancellation shall be without
liability of any party to any other party except that the provisions of Sections 5
and 7 shall survive any such cancellation.


 


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Section 9.                  Representations,
Warranties and Agreements to Survive. 
All representations, warranties and agreements contained in this
Agreement or in closing documents delivered pursuant hereto shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of the Placement Agent or the Company and shall survive delivery
of the Securities to the Purchasers.


 


Section 10.           Notices.  All notices and other communications provided
for or permitted under this Agreement shall be in writing and shall be deemed
to have been duly given if personally delivered, sent by courier or mailed by
registered mail, postage prepaid and return receipt requested, or transmitted
by telecopy, telex or telegraph and confirmed by a similar mailed writing, if
to the Placement Agent, addressed to Howe Barnes Investments, Inc. at the
address set forth on the first page of this Agreement, Attention:  Michael Iannaccone, telecopier
number (312) 655-2680; and if to the Company, addressed to the Company at 5210
Eubank N.E., P.O. Box 16810, Albuquerque, New Mexico 87191-6810,
Attention:  Norman R. Corzine, telecopier
number (505) 275-9350.


 


Section 11.           Parties.  This Agreement shall inure to the benefit of
and be binding upon the Placement Agent, the Company and their respective
controlling persons and successors. 
Nothing in this Agreement is intended or shall be construed to give any
person other than those referred to in the preceding sentence any legal or
equitable right, remedy or claim under or in respect of this Agreement.  No Purchaser shall be deemed to be successor
of the Company or the Placement Agent by reason of such purchase.  This Agreement cannot be assigned by a party
to this Agreement without the prior written consent of the other parties to
this Agreement.


 


Section 12.           Confidentiality.  All information about the business,
operations, activities and affairs of the Company shall be kept strictly
confidential by the Placement Agent, shall not be used for the private benefit
of the Placement Agent and the Placement Agent shall not disclose or permit the
disclosure of the same to any other person or entity without the Company’s
prior consent, and even after obtaining such consent, in accordance with
applicable law.


 


Section 13.           Miscellaneous.  This Agreement constitutes the entire
agreement between the parties hereto with respect to the matters and
transactions contemplated hereby and supersedes all prior agreements and
understandings whatsoever relating to such matters and transactions.  This Agreement may be amended only by written
instrument executed by all parties hereto. 
Compliance with provisions of this Agreement may be waived only by written
instrument executed by the party giving such waiver.  The headings in this Agreement are for
reference only and shall not limit or otherwise affect the meaning of this
Agreement.  This Agreement may be
executed in counterparts, each of which shall constitute an original but all of
which together shall constitute one instrument.


 


Section 14.           Governing
Law.  This Agreement shall be
governed by and construed in accordance with the laws of the State of New
Mexico without regard to the conflict of laws provisions thereof.


 


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If the foregoing is in accordance with your
understanding, please sign and return to us the enclosed duplicate hereof,
whereupon it will become a binding agreement between the undersigned in
accordance with its terms.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ACCESS ANYTIME BANCORP,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Norman R. Corzine

  	
   

  
	
   

  	
   

  	
  Name: Norman R. Corzine

  
	
   

  	
   

  	
  Title: Chairman and
  Chief Executive Officer

  



 


ACCEPTED
AND AGREED to as of the date 

first written above:


 


HOWE BARNES INVESTMENTS,
INC.


 


 


	
  By

  	
  /s/ Daniel E. Coughlin

  	
   

  
	
   

  	
  Name: Daniel E.
  Coughlin

  
	
   

  	
  Title: President and
  Chief Executive Officer

  



 


11





















 


EXHIBIT A


 


[FORM OF COMPANY
COUNSEL OPINION]


 


September
   , 2004


 


Howe Barnes Investments,
Inc.

222 South Riverside Plaza


7th Floor

Chicago, Illinois 60606-5808


 


	
  Re:

  	
   

  	
  Access Anytime Bancorp,
  Inc.

  	
   

  



 


Ladies and Gentlemen:


 


We have acted as counsel for Access Anytime Bancorp,
Inc., a Delaware corporation (the “Company”), in
connection with the sale by the Company of its common stock in an aggregate
amount of $3,120,000 (the “Securities”),
pursuant to a Placement Agent Agreement, dated September 3, 2004 (the “Placement Agreement”), between you and the Company.  This Opinion Letter is being rendered
pursuant to Section 4(d) of the Placement Agreement.  Except as otherwise indicated herein,
capitalized terms used in this Opinion Letter are defined as set forth in the
Placement Agreement.  This Opinion Letter
is limited to matters governed by the laws of the United States and the laws of
the State of New Mexico.  We have not
acted as counsel to the Company in connection with any federal or state banking
or financial institution matters, employee benefits or Employee Retirement Income
Security Act matters or with the issuance of certain trust preferred securities
issued by the Company on June 27, 2002 or July 17, 2001 (the “trust preferred
securities”)(collectively, the “excluded matters”).


 


For purposes of this Opinion Letter, we have examined
the original or a copy, certified or otherwise identified to our satisfaction
as a true copy, of the following documents:


 


(i)             the
Private Placement Memorandum, dated September    , 2004 (the “Placement Memorandum”) relating to the issuance and sale of
the Securities;


 


(ii)          an
executed copy of the Placement Agreement;


 


(iii)       a
specimen copy of the Securities;


 


(iv)      the
Certificate of Incorporation or similar charter documents of the Company and
each of its subsidiaries;


 


(v)         Bylaws
of the Company and each of its subsidiaries;


 





















 


(vi)   Resolutions
approved by the Board of Directors of the Company on                     
and September    , 2004, approving, among other things,
execution and delivery of the Placement Agreement;


 


(vii)  A certificate of the Secretary of State of
Delaware, dated September    , 2004, attesting to the continued
corporate existence and good standing of the Company in the State of Delaware
and a certificate of the New Mexico Office of the Public Regulation Commission,
dated September    , 2004, attesting to the authorization of the
Company to transact business in the State of New Mexico (collectively, the “good
standing certificates”); and


 


(viii) Such other
documents as we have deemed necessary or appropriate as a basis for the
opinions set forth below.


 


Based upon and subject to the foregoing, we are of the
opinion that:


 


A.           The
Company has been duly incorporated, is validly existing as a corporation under
the laws of the State of Delaware, has the corporate power and authority to own
its property and to conduct its business as described in the Placement
Memorandum and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole.  In giving the opinion in this paragraph A, we
have relied solely upon the good standing certificates and no other inquiry or
investigation has been made.


 


B.             The
Placement Agreement has been duly authorized, executed and delivered by the
Company.


 


C.             The
Securities have been duly authorized by the Company and, when executed and
delivered to and paid for by the purchasers, will be duly and validly issued,
fully paid and non-assessable.


 


D.            The
execution and delivery by the Company of, and the performance by the Company of
its obligations under, the Placement Agreement and the Securities will not
contravene any provision of applicable law or the Certificate of Incorporation
or Bylaws of the Company or, to the best of our knowledge, any agreement or
other instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or, to our
knowledge, any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its obligations under
the Placement Agreement or the Securities, except such as may be required by
the 1933 Act and the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities and further excepted that
in giving the opinions in this paragraph D, we express no opinion as to any
laws, agreements, judgments, orders, decrees, consents, approvals,
authorizations or qualifications related to such excluded matters.


 


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E.              After
due inquiry, we do not know of any legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject other than proceedings fairly summarized in all material respects in
the Placement Memorandum or in documents incorporated by reference therein and
proceedings which we believe are not likely to have a material adverse effect
on the Company and its subsidiaries, taken as a whole, or on the power or
ability of the Company to perform its obligations under the Placement Agreement
or the Securities or to consummate the transactions contemplated by the
Placement Memorandum.


 


F.              Based
upon the representations, warranties and agreements of the Company in
Sections 3(f) and 4 of the Placement Agreement and of the Placement Agent
in Section 2(b) of the Placement Agreement, it is not necessary in
connection with the offer, sale and delivery of the Securities to the
purchasers to register the Securities under the Securities Act of 1933, as
amended (the “Securities Act”), it being understood
that no opinion is expressed as to any subsequent resale of any Security.  Also, we are not opining on the effect, if
any, of certain sales of common stock by the trustee of the Company’s Rabbi
Trust described in the Company’s Quarterly Report on Form 10-QSB for the
quarter ended June 30, 2004.


 


In addition, we have participated in conferences with
officers and other representatives of the Company, representatives of the
independent accountants for the Company and you and your counsel at which the
contents of the Placement Memorandum and related matters were discussed.  Although we are not passing upon, and do not
assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in or incorporated by reference into the Placement
Memorandum, and have made no independent check or verification thereof, nothing
has come to our attention that causes us to believe that the Placement
Memorandum (except for the financial statements and financial schedules and
other financial and statistical data, as to which we do not express any belief)
when issued contained, or as of the date hereof contains, any untrue statement
of a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. 
For purposes of the foregoing, we note that the Placement Memorandum has
been prepared in the context of a Regulation D transaction involving sales
only to accredited investors and not as part of a registration statement under
the Securities Act and may not contain all of the information that would be
required in a registration statement under the Securities Act.


 


In rendering this Opinion Letter, we have relied as to
matters of fact on (1) the representations and warranties of the Company
and the Placement Agent set forth in the Placement Agreement and
(2) certificates of responsible officers of the Company and of public
officials.


 


The qualification
of any opinion or statement herein by the use of the words “to our knowledge”
or “known to us” means that, during the course of representation as described
in this Opinion Letter, no information has come to the attention of the lawyers
in this firm involved in the transactions described which would give such
lawyers current actual knowledge of the existence of the facts so
qualified.  Except as set forth herein,
we have not undertaken any investigation to determine the existence of such
facts, and no inference as to our knowledge thereof shall be drawn from the
fact of our representation of any party or otherwise.


 


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This Opinion
Letter (a) has been furnished to you at the request of the Company, and we
consider it to be a confidential communication that may not be furnished,
reproduced, distributed or disclosed to anyone without our prior written
consent; (b) is rendered solely for your information and assistance in
connection with the transaction described above and may not be relied upon by
any other person or for any other purpose without our prior written consent;
(c) is rendered as of the date hereof, and we undertake no, and hereby disclaim
any, obligation to advise you of any changes or any new developments which
might affect any matters or opinions set forth herein; and (d) is limited to
the matters stated herein and no opinions may be inferred or implied beyond the
matters expressly stated herein.


 


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