**Exhibit 10.20**

**REVOLVINGCREDIT AGREEMENT**

Dated as of August2, 2007

This Revolving CreditAgreement (this “Agreement”) is by and between **COBIZ FINANCIAL INC.,** a corporation formedunder the laws of the State of Colorado (“Borrower”), and **U.S. BANK NATIONAL****ASSOCIATION,**a national banking association(“Lender”), with a banking office at 2555 South Colorado Boulevard,Denver, Colorado 80222.

**ARTICLE1 LOANS**

Section 1.1 [**Reserved.**]

Section 1.2 **Revolving Credit Loans.** Subject to theterms and conditions of this Agreement, Lender agrees to make loans toBorrower, from time to time from the date of this Agreement through July 31,2008 (the “Maturity Date”), at such times and in such amounts, not toexceed THIRTY MILLION AND NO/100 UNITED STATES DOLLARS ($30,000,000.00) (the “Commitment”)at any one time outstanding, as Borrower may request (the “Loan(s)”).During such period Borrower may borrow, repay and reborrow hereunder. Eachborrowing shall (i) in the case of Loans that bear interest at the FederalFunds Rate, be in the amount of at least $100,000 or the remaining unusedamount of the Commitment and (ii) in the case of Loans that bear interest atLIBOR, shall be in the amount of at least $1,000,000 or the remaining unusedamount of the Commitment.

Section 1.3 **Revolving Credit Note.** The Loans shallbe evidenced by a promissory note (the “Note”), substantially in the form ofExhibit A, with appropriate insertions, dated the date hereof, payable to theorder of Lender and in the original principal amount of the Commitment. Lendermay at any time and from time to time at Lender’s sole option attach a schedule(grid) to the Note and endorse thereon notations with respect to each Loanspecifying the date and principal amount thereof, the Interest Period (asdefined below) (if applicable), the applicable interest rate and rate option,and the date and amount of each payment of principal and interest made byBorrower with respect to each such Loan. Lender’s endorsements as well as itsrecords relating to the Loans shall be rebuttably presumptive evidence of theoutstanding principal and interest on the Loans, and, in the event ofinconsistency, shall prevail over any records of Borrower and any writtenconfirmations of the Loans given by Borrower, absent manifest error. Theprincipal of the Note shall be payable on or before the Maturity Date.

Section 1.4 **Extension of Maturity Date.** Borrowermay request an extension of the Maturity Date by submitting a request for anextension to Lender (an “Extension Request”) no more than sixty (60)days prior to the current Maturity Date. The Extension Request must specify thenew Maturity Date requested by Borrower and the date (which must be at leastthirty (30) days after the Extension Request is delivered to Lender) as ofwhich Lender must respond to the Extension Request (the “Extension Date”).The new Maturity Date shall be no more than 364 days after the Maturity Date ineffect at the time the Extension Request is received, including such MaturityDate as one of the days in the calculation of the days elapsed. If Lender failsto respond to an Extension Request by the Extension Date, Lender shall bedeemed to have denied the Extension Request. If Lender, in its sole discretion,decides to approve the Extension

 

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Request, Lender shall deliver its written consent toBorrower and the Maturity Date specified in the Extension Request shall becomeeffective at the expiration of the existing Maturity Date.

**ARTICLE2 INTEREST AND FEES**

Section 2.1 **Interest Rate**. Borrower agrees to payinterest on the unpaid principal amount of the Loans from time to timeoutstanding hereunder at the following rates per year:

(a)                    Beforematurity of any Loan, whether by acceleration or otherwise, at the option ofBorrower, subject to the terms hereof at a rate equal to:

(i)                        “LIBOR,”which shall mean the sum of (A) the 1, 2 or 3 month LIBOR rate (which InterestPeriod Borrower shall select subject to the terms stated herein) quoted byLender from Telerate Page 3750 or any successor thereto (which shall be theLIBOR rate in effect two New York Banking Days prior to the commencement of theadvance), adjusted for any reserve requirement and any subsequent costs arisingfrom a change in government regulation, plus (B) one and fifteenhundredths percent (+1.15%) per annum; or

(ii)                   “FederalFunds Rate,” which shall mean the sum of (A) the weighted average of therates on overnight Federal funds transactions, with members of the FederalReserve System only, arranged by Federal funds brokers, plus (B) one andfifteen hundredths percent (1.15%) per annum. The Federal Funds Rate shall bedetermined by Lender on the basis of reports by Federal funds brokers to, andpublished daily by, the Federal Reserve Bank of New York in the CompositeClosing Quotations for U.S. Government Securities. If such publication isunavailable or the Federal Funds Rate is not set forth therein, the FederalFunds Rate shall be determined on the basis of any other source reasonablyselected by Lender. The Federal Funds Rate applicable each day shall be theFederal Funds Rate reported as applicable to Federal funds transactions on thatdate. In the case of Saturday, Sunday or a legal holiday, the Federal FundsRate shall be the rate applicable to Federal funds transactions on theimmediately preceding day for which the Federal Funds Rate is reported.

(b)                   After thematurity of any Loan, whether by acceleration or otherwise, such Loan shallbear interest until paid at a rate equal to two percent (2%) in addition to therate in effect immediately prior to maturity (but not less than the Prime-BasedRate in effect at maturity).

Section 2.2 **Rate Selection.** Borrower shall selectand change its selection of the interest rate between LIBOR and the FederalFunds Rate, as applicable, to apply to (a) at least $1,000,000 and in integralmultiples of $1,000,000 thereafter of any Loan or portion thereof which bearsinterest at LIBOR, and (b) at least $100,000 and in integral multiples of$100,000

 

 

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thereafter of any Loan or portion thereof which bearsinterest at the Federal Funds Rate, in all cases subject to the requirementsherein stated:

(a)                  At the time anyLoan is made;

(b)                 At the expirationof a particular LIBOR Interest Period selected for the outstanding principalbalance of any Loan or portion of any Loan currently bearing interest at LIBOR;and

(c)                  At any time forthe outstanding principal balance of any Loan or portion thereof currentlybearing interest at the Federal Funds Rate.

Section 2.3 **Rate Changes and Notifications.**

(a)                  LIBOR. IfBorrower wishes to (i) obtain a new Loan bearing interest at LIBOR, (ii) havean existing Loan bearing interest at LIBOR continue to bear interest at LIBORfor a new Interest Period upon the expiration of the Interest Period then ineffect or (iii) convert the rate of interest on any Loan or portion thereof,within the limits described above, from the Federal Funds Rate to LIBOR, itshall, at or before 12:00 noon, New York time, not less than two New YorkBanking Days prior to the New York Banking Day on which such Loan bearinginterest at LIBOR is to be made, continued or converted, give Lender writtennotice thereof, which shall be irrevocable. Such notice shall specify theprincipal amount of the Loan which is to bear interest at LIBOR and the desiredLIBOR Interest Period of 1, 2 or 3 months. Notwithstanding that any LIBORInterest Period selected by Borrower may extend beyond the Maturity Date,Borrower acknowledges and agrees that all amounts owing by Borrower to Lenderunder this Agreement in respect of principal, accrued interest, fees andexpenses, including any amounts owing under Section 2.5(c), shall be due andpayable on the Maturity Date.

(b)                 Federal FundsRate. If Borrower wishes to obtain a new Loan bearing interest at theFederal Funds Rate, it shall, at or before 12:00 noon, New York time, on thedate such new Loan will be made, which shall be a New York Banking Day, giveLender written notice thereof specifying the principal amount of such new Loan.Such notice shall be irrevocable.

(c)                  Failure toNotify. If Borrower does not timely notify Lender at the expiration of theInterest Period then in effect with respect to a Loan bearing interest at LIBORthat Borrower elects to have a new Interest Period established for such Loanpursuant to Section 2.3(a)(ii) above, then Borrower shall be deemed to haveelected to have such Loan accrue interest after the expiration of such InterestPeriod at the Federal Funds Rate. If Borrower does not timely notify Lender asto its selection of the interest rate option with respect to any new Loan, thenBorrower shall be deemed to have elected to have such new Loan accrue interestat the Federal Funds Rate.

Section 2.4 **Interest Payment Dates.** Accruedinterest shall be paid in respect of each Loan to which the Federal Funds Rateapplies on the last day of each month in each year,

 

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beginning with the first of such dates to occur after the date of thefirst Loan bearing interest at the Federal Funds Rate, at maturity, and uponpayment in full. Accrued interest shall be paid in respect of each Loan bearinginterest at LIBOR on the Interim Maturity Date in respect of the InterestPeriod for such Loan, at maturity, and upon payment in full, whichever isearlier or more frequent. After maturity, accrued interest on all outstandingLoans shall be payable upon demand.

Section 2.5 **AdditionalProvisions With Respect to Federal Funds Rate and LIBOR Loans.**The selection by Borrower of the Federal Funds Rate or LIBOR and themaintenance of the Loans or portions thereof at such rate shall be subject tothe following additional terms and conditions:

(a)                    Availabilityof Deposits at a Determinable Rate. If, after Borrower has elected toborrow or maintain any Loan at the Federal Funds Rate or LIBOR, Lender notifiesBorrower that:

(i)                        UnitedStates dollar deposits in the amount and for the maturity requested are notavailable to Lender (in the case of LIBOR, in the London interbank market); or

(ii)                     Reasonablemeans do not exist for Lender to determine the Federal Funds Rate or LIBOR forthe amount and maturity requested;

all as determined byLender in its sole discretion, then the principal subject to the Federal FundsRate or LIBOR shall accrue or shall continue to accrue interest at an annualrate equal to the Prime Rate in effect from time to time.

(b)                   Prohibitionof Making, Maintaining, or Repayment of Loans at the Federal Funds Rate orLIBOR. If any treaty, statute, regulation, interpretation thereof, or anydirective, guideline, or otherwise by a central bank or fiscal authority(whether or not having the force of law) shall prohibit making, maintaining orrepaying any Loan subject to the Federal Funds Rate or LIBOR, then on and as ofthe date the prohibition becomes effective, all Loans subject to thatprohibition shall bear interest at an annual rate equal to the Prime Rate ineffect from time to time.

(c)                    Payments ofPrincipal and Interest to be Inclusive of Any Taxes or Costs. All paymentsof principal and interest shall include any taxes (other than income taxesimposed by the United States or any state or locality thereof on the income ofLender) and increased costs incurred by Lender resulting from a change in, orpromulgation of, any treaty, statute, regulation, interpretation thereof, orany directive or guideline by a central bank or fiscal authority (whether ornot having the force of law) which affects a Loan bearing interest at theFederal Funds Rate or LIBOR. Without limiting the generality of the precedingobligation, illustrations of such taxes and costs are:

(i)                        Taxes (orthe withholding of amounts for taxes) of any nature whatsoever includingincome, excise, and interest equalization taxes, as well as all levies,imposts, duties, or fees whether now in existence or resulting from

 

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a change in, orpromulgation of, any treaty, statute, regulation, interpretation thereof, orany directive, guideline, or otherwise, by a central bank or fiscal authority(whether or not having the force of law) or a change in the basis of, or timeof payment of, such taxes and other amounts resulting therefrom;

(ii)                     Any reserveor special deposit requirements against assets or liabilities of, or depositswith or for the account of, Lender with respect to principal outstanding atLIBOR including those imposed under Regulation D of the Federal Reserve Boardor resulting from a change in, or the promulgation of, such requirements bytreaty, statute, regulation, interpretation thereof, or any directive,guideline, or otherwise by a central bank or fiscal authority (whether or nothaving the force of law);

(iii)                  Any otherincreased costs resulting from compliance with treaties, statutes, regulations,interpretations, or any directives or guidelines, or otherwise by a centralbank or fiscal authority (whether or not having the force of law), includingcapital adequacy regulations;

If Lender incurs any suchtaxes or costs, Borrower, upon demand in writing specifying such taxes andcosts, shall promptly pay them; save for manifest error Lender’s specificationshall be presumptively deemed correct.

(d)               InterestDifferential. Borrower agrees to pay to Lender any Interest Differentialincurred as a result of:

(A)                Any new Loanrequested by Borrower to bear interest at LIBOR which is not made on thespecified borrowing date (or is made but bears interest at the Federal FundsRate) (with the Interest Differential being calculated as if the Loan bearinginterest at LIBOR had been made and repaid on the specified borrowing date);

(B)                  a voluntaryprepayment at a date other than the applicable Interim Maturity Date of a Loanbearing interest at LIBOR;

(C)                  a mandatoryrepayment at a date other than the applicable Interim Maturity Date of a Loanbearing interest at LIBOR as the result of the occurrence of an Event ofDefault and the acceleration of any portion of the indebtedness hereunder; or

(D)                 a prohibition onmaintainingan outstanding Loan bearing interest at LIBOR (with the InterestDifferential being calculated as if such Loan were repaid on the effective dateof such prohibition).

The term **“Interest Differential”** shall mean that sumequal to the greater of zero or the financial loss incurred by Lender resultingfrom prepayment, calculated as the difference between the amount of interestLender would have earned (from like investments in the Money

 

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Markets as of the first day of the LIBOR Loan) hadprepayment not occurred and the interest Lender will actually earn (from likeinvestments in the Money Markets as of the date of prepayment) as a result ofthe redeployment of funds from the prepayment. Because of the short-term natureof each Loan bearing interest at LIBOR, Borrower agrees that the InterestDifferential shall not be discounted to its present value.

Section 2.6 **Basis of Computation.** Interest and feespayable hereunder shall be computed for the actual number of days elapsed onthe basis of a year consisting of 360 days, including the date a Loan is madeand excluding the date a Loan or any portion thereof is paid or prepaid.

Section 2.7 **Commitment Fee, Reduction of Commitment.**Borrower agrees to pay Lender a commitment fee (the “Commitment Fee”) inarrears of twenty-five hundredths of one percent (0.25%) per year on theaverage daily unused amount of the Commitment. The Commitment Fee shallcommence to accrue on the date of this Agreement and shall be paid on the lastday of each calendar quarter in each year, beginning with the first of suchdates to occur after the date of this Agreement, at maturity and upon paymentin full. At any time or from time to time, upon at least three New York BankingBusiness Days’ prior written notice, which shall be irrevocable, Borrower may reducethe Commitment in the amount of at least $1,000,000 or in full; provided thatBorrower may not reduce the Commitment below an amount equal to the aggregateoutstanding principal amount of all Loans. Upon any such reduction of any partof the unused Commitment, any accrued and unpaid Commitment Fee on the partreduced shall be paid in full as of the date of such reduction.

**ARTICLE 3 PAYMENTS ANDPREPAYMENTS**

Section 3.1 **Prepayments.** Borrower may prepaywithout penalty or premium any Loan bearing interest at the Federal Funds Rateor at the Prime Rate pursuant to Section 2.5(a) or (b) at any time. Borrowermay prepay a Loan bearing interest at LIBOR prior to the applicable InterimMaturity Date upon payment of the Interest Differential under Section 2.5(c)(iv).Borrower shall give Lender written notice of a prepayment of a Loan (a) in thecase of prepayment of a Loan or Loans bearing interest at the Federal FundsRate, no later than 12 noon, New York time, on the prepayment date and (b) inthe case of prepayment of a Loan or Loans bearing interest at LIBOR, no laterthan 12 noon, New York time, on the date which is three New York Banking Daysprior to the prepayment date. Each notice shall specify the amount and date ofthe prepayment and identify whether Loans bearing interest at the Federal FundsRate or LIBOR are being prepaid. Any partial prepayment of a Loan which bearinterest at LIBOR (and any repayment of a Loan which bears interest at LIBOR onthe Interim Maturity Date therefor) shall be in a minimum amount of $1,000,000(or if less, the outstanding principal balance of such Loan) and any partialprepayment of Loans which bear interest at the Federal Funds Rate shall be in aminimum amount of $100,000 (or if less, the outstanding principal balance of theLoans bearing interest at the Federal Funds Rate).

Section 3.2 **Funds.** All payments of principal,interest and the Commitment Fee shall be made in immediately available funds toLender at its banking office indicated above or as otherwise directed by Lender.

 

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**ARTICLE 4 REPRESENTATIONSAND WARRANTIES**

To induce Lender to make each of the Loans, Borrowerrepresents and warrants to Lender that:

Section 4.1 **Organization.** Borrower is existing andin good standing as a duly qualified and organized bank holding company.Borrower and each Subsidiary (as hereinafter defined) are existing and in goodstanding under the laws of their jurisdiction of formation, and are dulyqualified, in good standing and authorized to do business in each jurisdictionwhere failure to do so would reasonably be expected to have a Material AdverseEffect. Borrower and each Subsidiary have the power and authority to own theirproperties and to carry on their businesses as now being conducted.

Section 4.2 **Authorization; No Conflict.**Theexecution, delivery and performance of this Agreement, the Note and all relateddocuments and instruments: (a) are within Borrower’s corporate powers; (b) havebeen authorized by all necessary corporate action; (c) have received any andall necessary governmental approvals; and (d) do not and will not contravene orconflict with any provision of law or charter or by-laws of Borrower or anymaterial agreement affecting Borrower or its property. This Agreement is, andthe Note when executed and delivered will be, legal, valid and bindingobligations of Borrower, enforceable against Borrower in accordance with theirrespective terms subject to applicable bankruptcy, insolvency, reorganizationand other laws affecting creditors’ rights generally and subject to generalequitable principles.

Section 4.3 **Financial Statements.** Borrower hassupplied to Lender copies of its audited consolidated financial statements asof and for the twelve month period ended December 31, 2006 and its internallyprepared financial statements as of and for the three month period ended March31, 2007. Such statements have been furnished to Lender, have been prepared inconformity with generally accepted accounting principles applied on a basisconsistent with that of the preceding fiscal year, except as disclosed in suchstatements (and subject, in the case of the interim statements, to year endaudit adjustments and the absence of footnotes), and fairly present thefinancial condition of Borrower and its Subsidiaries as at such dates and theresults of their operations for the respective periods then ended. Since thedate of those financial statements, no material, adverse change in thebusiness, condition, properties, assets, operations, or prospects of Borroweror its Subsidiaries has occurred except as disclosed on Schedule 4.3.There is no known contingent liability of Borrower or any Subsidiary (excludingloan commitments, letters of credit, and other contingent liabilities incurredin the ordinary course of the banking business) in an amount greater than$5,000,000 (other than a contingent liability which is covered by insurance andwith respect to which the insurer has confirmed coverage in writing) which isnot reflected in such financial statements or disclosed on Schedule 4.3.

Section 4.4 **Taxes.** Borrower and each Subsidiaryhave filed or caused to be filed all federal, state and local tax returnswhich, to the knowledge of Borrower or such Subsidiary, are required to befiled, and have paid or have caused to be paid all taxes as shown on suchreturns or on any assessment received by them, to the extent that such taxeshave become due (except for current taxes not delinquent and taxes beingcontested in good faith and by appropriate proceedings for which adequatereserves have been provided on the books of Borrower or the

 

 

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appropriate Subsidiary, and as to which noforeclosure, sale or similar proceedings have been commenced).

Section 4.5 **Liens.** None of the assets of Borroweror any Subsidiary are subject to any mortgage, pledge, title retention lien, orother lien, encumbrance or security interest except: (a) for current taxes notdelinquent or taxes being contested in good faith and by appropriateproceedings; (b) for liens arising in the ordinary course of business for sumsnot due or sums being contested in good faith and by appropriate proceedingsand with respect to which appropriate reserves have been established inaccordance with generally accepted accounting principles; (c) to the extentspecifically shown in the financial statements referred to in Section 4.3;(d) for liens in favor of Lender; (e) liens and security interests securingdeposits of public funds, repurchase agreements, Federal funds purchased, trustassets, advances from a Federal Home Loan Bank, discount window borrowings froma Federal Reserve Bank and other similar liens granted in the ordinary courseof the banking business; (f) liens under workers’ compensation, unemploymentinsurance, social security or similar legislation; (g) liens, deposits andpledges to secure the performance of leases, public or statutory obligations orother similar obligations arising in the ordinary course of the bankingbusiness; (h) judgment and other similar liens arising in connection with courtproceedings, provided the execution or other enforcement of such liens iseffectively stayed; and (i) easements, restrictions and other similarencumbrances which do not materially interfere with the occupation, use andenjoyment of the property or assets encumbered thereby or materially interferewith the value of the property subject thereto.

Section 4.6 **Adverse Contracts.** Neither Borrower norany Subsidiary is a party to any agreement or instrument or subject to anycharter or other corporate restriction, nor is it subject to any judgment,decree or order of any court or governmental body, which would reasonably beexpected to have a Material Adverse Effect. Neither Borrower nor any Subsidiaryhas, nor with reasonable diligence should have had, knowledge of or notice thatit is in default in the performance, observance or fulfillment of any of theobligations, covenants or conditions contained in any agreement, instrument,restriction, judgment, decree or order which would reasonably be expected tohave a Material Adverse Effect.

Section 4.7 **Regulation U.** Borrower is not engagedprincipally in, nor is one of Borrower’s important activities, the business ofextending credit for the purpose of purchasing or carrying “margin stock”within the meaning of Regulation U of the Board of Governors of the FederalReserve System as now and from time to time hereinafter in effect.

Section 4.8 **Litigation and Contingent Liabilities.**No litigation (including derivative actions), arbitration proceedings orgovernmental proceedings are pending or, to Borrower’s knowledge, threatenedagainst Borrower which would (singly or in the aggregate) reasonably beexpected to have a Material Adverse Effect, except as set forth (includingestimates of the dollar amounts involved) in Schedule 4.8.

Section 4.9 **FDIC Insurance.** The deposits of eachSubsidiary Bank of Borrower are insured by the FDIC and no act has occurredwhich would adversely affect the status of such Subsidiary Bank as an FDICinsured bank.

 

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Section 4.10 **Investigations.** Neither Borrower norany Subsidiary Bank is under investigation by, or is operating under therestrictions imposed by or agreed to in connection with, any regulatoryauthority, other than routine examinations by regulatory authorities havingjurisdiction over Borrower or such Subsidiary Bank.

Section 4.11 **Subsidiaries.** Attached hereto as Schedule4.11 is a correct and complete list of all Subsidiaries of Borrower.

Section 4.12 **Bank Holding Company.** Borrower hascomplied in all material respects with all federal, state and local lawspertaining to bank holding companies, including without limitation the BankHolding Company Act of 1956, as amended, and to the best of its knowledge thereare no conditions to its engaging in the business of being a registered bankholding company.

Section 4.13 **ERISA.**

(a)                    Borrower andthe ERISA Affiliates and the plan administrator of each Plan (other than aMultiemployer Plan) have fulfilled in all material respects their respectiveobligations under ERISA and the Code with respect to such Plan and such Plan iscurrently in substantial compliance with the applicable provisions of ERISA andthe Code.

(b)                   With respect toeach Plan, there has been no (i) “reportable event” within the meaning ofSection 4043 of ERISA and the regulations thereunder which is not subject tothe provision for waiver of the 30-day notice requirement to the PBGC; (ii)failure by Borrower or any ERISA Affiliate to timely make or properly accrueany contribution which is due to any Plan; (iii) action under Section 4041 (c)of ERISA to terminate any Pension Plan; (iv) action under Section 4041 (b) ofERISA to terminate any Pension Plan which could require Borrower to incur aliability or obligations to make a material contribution to such Pension Plan;(v) withdrawal from any Pension Plan with two or more contributing sponsors orthe termination of any such Pension Plan that could subject the Borrower tomaterial liability pursuant to Section 4063 or 4064 of ERISA; (vi) institutionby PBGC of proceedings to terminate any Pension Plan, or the occurrence of anyevent or condition which might constitute grounds under ERISA for thetermination of, or the appointment of a trustee to administer, any Pension Plan(other than a Multiemployer Plan); (vii) the imposition on Borrower or anyERISA Affiliate of liability pursuant to Sections 4062(e), 4069 or 4212 ofERISA; (viii) complete or partial withdrawal (within the meaning of Sections4203 and 4205 of ERISA) by Borrower or any ERISA Affiliate from any PensionPlan which is a Multiemployer Plan that is in reorganization or insolvencypursuant to Sections 4241 or 4245 of ERISA, or that has terminated under Sections4041A or 4042 of ERISA; (ix) prohibited transaction described in Section 406 ofERISA or 4975 of the Code which could subject Borrower to the imposition of anymaterial fines, penalties, taxes or related charges imposed by either Section4975 of the Code or Section 502(i) of ERISA; (x) material pending claim (otherthan routine claims for benefits) against any Plan (other than a MultiemployerPlan) which

 

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could reasonably beexpected to result in material liability; (xi) receipt from the InternalRevenue Service of notice of the failure of any Plan (other than aMultiemployer Plan) to qualify under Section 401 (a) of the Code, or thefailure of any trust forming part of any Plan (other than a Multiemployer Plan)to fail to qualify for exemption from taxation under Section 501(a) of theCode, if applicable; or (xii) imposition of a lien pursuant to Section401(a)(29) or 412(n) of the Code or Section 302(f) of ERISA.

Section 4.14 **EnvironmentalLaws.**

(a)                    Borrower andeach of its Subsidiaries have obtained all permits, licenses and otherauthorizations which are required to be obtained by Borrower or suchSubsidiaries, as the case may be, under all Environmental Laws and are incompliance in all material respects with any applicable Environmental Laws.

(b)                   Borrower hasnot received any notice, demand, request for information, citation, summons,order or complaint, no penalty has been assessed and no investigation or reviewis pending or, to Borrower’s knowledge, threatened by any governmental agencyor other Person, in each case, with respect to any alleged or suspected failureby Borrower or any of its Subsidiaries to comply in any material respect withany Environmental Laws.

(c)                    There are nomaterial liens arising under or pursuant to any Environmental Laws on any ofthe property owned or, to Borrower’s knowledge, leased by Borrower or any ofits Subsidiaries.

(d)                   There are noconditions existing currently or, to Borrower’s knowledge, likely to existduring the term of this Agreement which would subject Borrower or any of itsSubsidiaries or any of their owned property or, to Borrower’s knowledge, any oftheir leased property, to any material lien, damages, penalties, injunctiverelief or cleanup costs under any Environmental Laws or which require or arereasonably likely to require cleanup, removal, remedial action or otherresponses pursuant to Environmental Laws by Borrower and its Subsidiaries.

**ARTICLE 5 COVENANTS**

Until all obligations ofBorrower hereunder, under the Note and all other related documents andinstruments are paid and fulfilled in full, Borrower agrees that it shall, andshall cause each Subsidiary to, comply with the following covenants, unlessLender consents otherwise in writing:

Section 5.1 **Existence, Mergers, Etc.** EachSubsidiary Bank shall take such action as may be necessary from time to time tomaintain its status as a national banking association or state bankingcorporation, as applicable, and to maintain FDIC insurance coverage for depositsas such Subsidiary Bank. Borrower and each Subsidiary shall preserve andmaintain their respective corporate, partnership or joint venture (asapplicable) existence, and will not liquidate, dissolve, or merge, orconsolidate with or into any other entity, or sell, lease, transfer or

 

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otherwise dispose of all or a substantial part of their assets otherthan in the ordinary course of business as now conducted, except that:

(a)                    Any Subsidiarymay merge or consolidate with or into Borrower or any one or more wholly-ownedSubsidiaries;

(b)                   Any Subsidiarymay sell, lease, transfer or otherwise dispose of any of its assets to Borroweror one or more wholly-owned Subsidiaries;

(c)                    AnyInsignificant Subsidiary may (i) merge or consolidate with any other Person,(ii) sell, lease, transfer or otherwise dispose of its assets to another Personor (iii) liquidate or dissolve (“Insignificant Subsidiary” means aSubsidiary with (1) net income that is less than 2.5% of the consolidated netincome of Borrower and its Subsidiaries for the most recent fiscal quarterended for which a consolidated income statement of Borrower is available and(2) tangible assets that are less than 2.5% of consolidated tangible assets ofBorrower and its Subsidiaries as of the end of the most recent fiscal quarterended for which a consolidated balance sheet of Borrower is available); and

(d)                   Any Subsidiarymay merge or consolidate with any other Person provided that (i) the survivingentity is a Subsidiary of Borrower (ii) before and after giving effect to suchmerger or consolidation, no Event of Default or Unmatured Event of Defaultexists or is continuing, (iii) following such merger or consolidation, Borrowershall continue to own the same or greater percentage of the stock or otherownership interests of such Subsidiary as it owned immediately prior to suchmerger or consolidation and (iv) after giving effect to such merger orconsolidation, Borrower is in pro forma compliance with Section 5.4 ofthis Agreement.

Borrower and eachSubsidiary shall take all steps to become and remain duly qualified, in goodstanding and authorized to do business in each jurisdiction where failure to doso might have a Material Adverse Effect.

Section 5.2 **Reports, Certificates and Other Information.**Borrower shall furnish (or cause to be furnished) to Lender:

(a)                    InterimReports. Within forty-five (45) days after the end of each quarter of eachfiscal year of Borrower, a copy of an unaudited financial statement of Borrowerand its Subsidiaries prepared on a consolidated basis consistent in allmaterial respects with the consolidated financial statements of Borrower andits Subsidiaries referred to in Section 4.3 above and prepared inaccordance with generally accepted accounting principles (subject to year-endaudit adjustments and the absence of footnotes), signed by an authorizedofficer of Borrower and consisting of at least: (i) a balance sheet as at theclose of such quarter; and (ii) a statement of earnings and source andapplication of funds for such quarter and for the period from the beginning ofsuch fiscal year to the close of such quarter.

 

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(b)                   AnnualReport. Within ninety (90) days after the end of each fiscal year ofBorrower, a copy of an annual report of Borrower and its Subsidiaries preparedon a consolidated basis and in conformity with generally accepted accountingprinciples applied on a basis consistent in all material respects with theconsolidated financial statements of Borrower and its Subsidiaries referred toin Section 4.3 above, duly certified by independent certified publicaccountants of recognized standing and accompanied by an opinion without a“going concern” or comparable qualification. Such independent certified publicaccountants shall be selected by the Audit Committee of the Board of Directorsof Borrower (which Audit Committee members shall, subject to the exceptions andphase-in requirements set forth in NASDAQ rules and regulations, consist solelyof independent members of Borrower’s Board of Directors) using their good faithbusiness judgment.

(c)                    Certificates.Contemporaneously with the furnishing of a copy of each annual report and ofeach quarterly statement provided for in this Section, a certificate dated thedate of such annual report or such quarterly statement and signed by either theChief Executive Officer, the President, the Chief Financial Officer or theTreasurer of Borrower, to the effect that no Event of Default or UnmaturedEvent of Default has occurred and is continuing, or, if there is any suchevent, describing it and the steps, if any, being taken to cure it, andcontaining (except in the case of the certificate dated the date of the annualreport) a computation of, and showing compliance with, any financial ratio orrestriction contained in this Agreement.

(d)                   Reports toSEC. Notification of each filing and report made by Borrower or anySubsidiary with or to any securities exchange or the Securities and ExchangeCommission which are made publicly available. Such notification shall beforwarded electronically to Lender via e-mail at such addresses as Lender shallprovide to Borrower and shall indicate where copies of such filings and reportscan be obtained electronically (for avoidance of doubt, Borrower will notifyLender of any such filings and reports if electronic means of notification isinoperable). If copies of such documents are not available electronically,notification of the filing of such documents shall still be made, and Borrowershall provide a paper copy of such documents to Lender promptly upon Lender’srequest.

(e)                    Notice ofDefault, Litigation and ERISA Matters. Within five business days afterlearning of the occurrence of any of the following, written notice describingthe same and the steps being taken by Borrower or any Subsidiary affected inrespect thereof: (i) the occurrence of an Event of Default or an UnmaturedEvent of Default; (ii) the institution of, or any adverse determination in, anylitigation, arbitration or governmental proceeding which, if adverselydetermined, would reasonably be expected to have a Material Adverse Effect;(iii) the occurrence of any event referred to in Section 4.13(b); or(iv) the issuance of any cease and desist order, memorandum of understanding,cancellation of insurance, or proposed disciplinary action from the FDIC orother regulatory entity.

 

 

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(f)                      [Reserved].

(g)                   OtherInformation. From time to time such other information, financial orotherwise, concerning Borrower or any Subsidiary as Lender may reasonablyrequest.

Section 5.3 **Inspection.** At Borrower’s expense if anEvent of Default or Unmatured Event of Default has occurred or is continuing,Borrower and each Subsidiary shall permit Lender and its agents at any timeduring normal business hours, and upon at least one business day’s priornotice, to inspect their properties and to inspect and make copies of theirbooks and records. If no Event of Default or Unmatured Event of Default shallhave occurred and be continuing, Lender may conduct such inspections at anytime during normal business hours and upon reasonable notice to Borrower, andsuch inspection and copies shall be at Lender’s expense.

Section 5.4 **Financial Requirements.**

(a)                    WellCapitalized Status.

(i)                        Borrowerand its consolidated Subsidiaries, on a consolidated basis, shall at all timesmeet any definition of an “adequately capitalized” institution, as such term isdefined by the Federal Reserve Board with respect to Borrower’s consolidated“Tier I leverage ratio,” “Tier I risk-based capital” and “total risk-basedcapital” (as such terms are defined by the Federal Reserve Board and shown onfilings by Borrower with the Federal Reserve Board).

(ii)                     Borrowershall cause each Subsidiary Bank at all times to meet any definition of a “wellcapitalized” institution, as such term is defined by the various federalRegulatory Authorities with respect to such Subsidiary Bank’s “Tier I leverageratio,” “Tier I risk-based capital” and “total risk-based capital” (as suchterms are defined by the FDIC and shown on call reports filed with the FDIC).

(b)                   NonperformingAssets. All assets of all Subsidiary Banks and other Subsidiariesclassified as “non-performing” (which shall include all loans in non-accrualstatus, more than ninety (90) days past due in principal or interest,restructured or renegotiated, or listed as “other restructured” or “other realestate owned”) on the FDIC or other regulatory agency call report shall notexceed at any time two percent (2.0%) of the total loans of Borrower and itsSubsidiaries on a consolidated basis.

(c)                    Return onAverage Assets. Borrower’s consolidated net income shall be at leasteighty-five hundredths of one percent (0.85%) of its average assets, calculatedon an annualized basis as at the last day of each fiscal quarter of Borrower;provided, however, that for purposes of determining return on average assets,customary and reasonable, non-recurring expenses and charges incurred byBorrower in

 

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connection with a permitted acquisition or publicoffering under Sections 5.1 and 5.6 hereof shall be excluded.

Section 5.5 **Taxes and Guaranties.** Borrower and eachSubsidiary shall:

(a)                    Taxes.Pay and discharge all taxes, assessments and governmental charges or leviesimposed upon them, upon their income or profits or upon any propertiesbelonging to them, prior to the date on which penalties attach thereto, and alllawful claims for labor, materials and supplies when due, except that no suchtax, assessment, charge, levy or claim need be paid which is being contested ingood faith by appropriate proceedings as to which adequate reserves shall havebeen established, and no foreclosure, sale or similar proceedings havecommenced.

(b)                   Guaranties.Not assume, guarantee, endorse or otherwise become or be responsible in anymanner (whether by agreement to purchase any obligations, stock, assets, goodsor services, or to supply or loan any funds, assets, goods or services, orotherwise) with respect to the obligation of any other Person, except: (i) bythe endorsement of negotiable instruments for deposit or collection in theordinary course of business, issuance of letters of credit or similarinstruments or documents in the ordinary course of business; (ii) in the caseof Borrower, Trust Guarantees; and (iii) guaranties by the Borrower of theobligations of a wholly-owned Subsidiary or by a Subsidiary of the obligationsof the Borrower or a wholly-owned Subsidiary of the Borrower.

Section 5.6 **Investments and Loans.** Neither Borrowernor any Subsidiary shall make any loan, advance, extension of credit or capitalcontribution to, or purchase or otherwise acquire for consideration, evidencesof indebtedness, capital stock or other securities of any Person, except thatBorrower and any Subsidiary may:

(a)                    purchase orotherwise acquire and own short-term money market items;

(b)                   invest, by wayof purchase of securities or capital contributions, in the Subsidiary Banks orany other bank or banks, and upon Borrower’s purchase or other acquisition oftwenty-five percent (25%) or more of the stock of any bank, such bank shallthereupon become a “Subsidiary Bank” for all purposes under this Agreement;

(c)                    invest, by wayof loan, advance, extension of credit (whether in the form of lease,conditional sales agreement, or otherwise), purchase of securities, capitalcontributions, or otherwise, in Subsidiaries other than banks or SubsidiaryBanks;

(d)                   invest, by wayof purchase of securities or capital contributions, in other Persons so long asbefore and after giving effect thereto no Event of Default or Unmatured Eventof Default shall have occurred and be continuing and the investment is incompliance with Regulation Y of the Federal Reserve Board; and

 

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(e)                    in the case ofany Trust Issuer, purchase any Trust Indebtedness and, in the case of Borrower,purchase any common securities of any Trust Issuer and issue any TrustGuarantees.

Nothing in this Section5.6 shall prohibit a Subsidiary Bank from making investments, loans,advances, or other extensions of credit in the ordinary course of the bankingbusiness upon such terms as may at the time be customary in the bankingbusiness.

Section 5.7 **Capital Structure and Dividends.** Exceptas provided in Section 5.1, Borrower shall continue to own, directly orindirectly, the same (or greater) percentage of the stock and partnership,joint venture, or other equity interest in each Subsidiary that it held on thedate of this Agreement, and no Subsidiary shall issue any additional stock orpartnership, joint venture or other equity interests, options or warrants inrespect thereof, or securities convertible into such securities or interests,other than to Borrower or to a Subsidiary wholly owned by Borrower.

Section 5.8 **Maintenance of Properties.** Borrower andeach Subsidiary shall maintain, or cause to be maintained, in good repair,working order and condition, all material properties (whether owned or heldunder lease) necessary for Borrower or such Subsidiary to conduct its business,and from time to time make or cause to be made all needed and appropriaterepairs, renewals, replacements, additions, and improvements thereto, so thatthe business carried on in connection therewith may be properly andadvantageously conducted at all times (for avoidance of doubt, this Section5.8 does not limit or restrict Borrower or any Subsidiary from opening,closing or moving any of their branch offices or other office properties).

Section 5.9 **Insurance.** Borrower and each Subsidiaryshall maintain insurance in responsible companies in such amounts and againstsuch risks as is required by law and such other insurance, in such amount and againstsuch hazards and liabilities, as is customarily maintained by bank holdingcompanies and banks similarly situated. Each Subsidiary Bank shall havedeposits insured by the FDIC.

Section 5.10 **Use of Proceeds.**

(a)                    General.The proceeds of the Loans shall be used for general corporate purposes(including acquisitions permitted under Section 5.6). Neither Borrowernor any Subsidiary shall use or permit any proceeds of the Loans to be used,either directly or indirectly, for the purpose, whether immediate, incidentalor ultimate, of “purchasing or carrying any margin stock” within the meaning ofRegulations U or X of the Board of Governors of the Federal Reserve System, asamended from time to time. If requested by Lender, Borrower and each Subsidiarywill furnish to Lender a statement in conformity with the requirements ofFederal Reserve Form U-l. No part of the proceeds of the Loans will be used forany purpose which violates or is inconsistent with the provisions of RegulationU or X of the Board of Governors.

(b)                   TenderOffers and Going Private. Neither Borrower nor any Subsidiary shall use (orpermit to be used) any proceeds of the Loans to acquire any security of

 

 

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Borrower or a Subsidiaryin any transaction which is subject to Section 13 or 14 of the SecuritiesExchange Act of 1934, as amended, or any regulations or rulings thereunder.

 

Section 5.11 **Compliance with Law.** Borrower and eachSubsidiary shall comply in all material respects with all applicable laws andregulations (whether federal, state or local and whether statutory,administrative, judicial or otherwise) and with every lawful governmental orderor similar actions (whether administrative or judicial), specifically includingbut not limited to all requirements of the Bank Holding Company Act of 1956, asamended, and with the regulations of the Board of Governors of the FederalReserve System relating to bank holding companies.

 

Section 5.12 **Restriction on Liens; Negative Pledges.**Borrower will not, without Lender’s prior written consent, create, incur,assume or permit to exist any mortgage, pledge, encumbrance or other lien orlevy upon or security interest in any of the capital stock of any Subsidiary Banknow owned or hereafter acquired by Borrower. Borrower further agrees thatBorrower shall not, without Lender’s prior written consent, enter into, orbecome a party or subject to any negative pledge agreement relating to any ofBorrower’s assets with any third party except for Lender.

 

Section 5.13 **Restriction on Indebtedness.** Borrowerwill not and will not permit any of the Subsidiaries to create, incur, assumeor have outstanding any indebtedness for borrowed money (including capitalizedleases) except (a) indebtedness under the Note issued under thisAgreement; (b) other indebtedness to Lender or any of its affiliates; (c) indebtednessowed by Borrower to a Subsidiary or by a Subsidiary to another Subsidiary; (d) obligationsunder capitalized leases not exceeding $100,000; and (e) any otherindebtedness outstanding on the date hereof, and shown on Borrower’s financialstatements delivered to Lender prior to the date hereof, provided such otherindebtedness shall not be renewed, extended or increased.

 

**ARTICLE 6 CONDITIONS OF LENDING**

** **

Section 6.1 **Documentation; No Default.**Theobligation of Lender to make any Loan is subject to the following conditionsprecedent:

 

(a)                    InitialDocumentation. Lender shall have received all of the following concurrentlywith the execution and delivery hereof, each duly executed and dated the datehereof or other date satisfactory to Lender, in form and substance satisfactoryto Lender and its counsel, at the expense of Borrower, and in such number ofsigned counterparts as Lender may request (except for the Note, of which onlythe original shall be signed):

 

(i)                        Note.The Note duly executed.

 

(ii)                     Resolution;Certificate of Incumbency. A copy of a resolution of the Board of Directorsof Borrower authorizing the execution, delivery and performance of thisAgreement, the Note and other documents provided for in this Agreement,certified by the secretary or assistant secretary of

 

 

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Borrower, together with acertificate of such officer of Borrower, certifying the names of the officer(s) ofBorrower authorized to sign this Agreement, the Note and any other documentsprovided for in this Agreement, together with a sample of the true signature ofeach such Person (Lender may conclusively rely on such certificate untilformally advised by a like certificate of any changes therein).

 

(iii)                  GoverningDocuments. A copy of the articles of incorporation and bylaws of Borrower,certified by the secretary or assistant secretary of Borrower.

 

(iv)                 Certificate ofNo Default. A certificate signed by an appropriate officer of Borrower tothe effect that: (A) no Event of Default or Unmatured Event of Default hasoccurred and is continuing or will result from the making of the first Loan;and (B) the representations and warranties of Borrower contained hereinare true and correct as at the date of the first Loan as though made on thatdate.

 

(v)                    Opinion ofCounsel to Borrower. An opinion of counsel to Borrower substantially in theform of Exhibit B attached hereto.

 

(vi)                 Good StandingCertificates. Good standing certificates from the Secretary of State ofColorado.

 

(vii)              Miscellaneous.Such other documents and certificates as Lender may reasonably request.

 

(b)                   Representationsand Warranties True. At the date of each new Loan, Borrower’srepresentations and warranties set forth herein shall be true and correct as ofsuch date as though made on such date except (i) that the representationsmade in Section 4.3 shall apply to the most recent financial statementsfurnished to Lender under Section 5.2 and (b) for changes permittedby this Agreement.

 

(c)                    No Default.At the time of each new Loan, and immediately after giving effect to such Loan,no Event of Default or Unmatured Event of Default shall have occurred and becontinuing at the time of such Loan, or would result from the making of suchLoan.

 

Section 6.2 **Automatic Update of Representations and Warranties andNo-Default Certificate; Certificate at Lender’s Option.** Therequest by Borrower for any new Loan shall be deemed a representation andwarranty by Borrower that the statements in subsections (b) and (c) ofSection 6.1 are true and correct on and as at the date of suchrequested Loan. Upon receipt of each Loan request Lender in its sole discretionshall have the right to request that Borrower provide to Lender, prior toLender’s funding of the requested Loan, a certificate executed by Borrower’sChief Executive Officer, President, Treasurer, or Chief Financial Officer tosuch effect.

 

 

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**ARTICLE 7 DEFAULT**

 

Section 7.1 **Events of Default.**The occurrence ofany of the following shall constitute an “Event of Default”:

 

(a)                    failure topay, when and as due, any principal, interest or other amounts payablehereunder or under the Note; provided that, in the case of interest only, suchfailure shall continue for three (3) days after its due date;

 

(b)                   any default,event of default, or similar event shall occur or continue under any otherinstrument, document, note or agreement delivered to Lender in connection withthis Agreement and any applicable cure period provided therein shall haveexpired; or any such instrument, document, note or agreement shall not be, orshall cease to be, enforceable in accordance with its terms;

 

(c)                    there shalloccur any default or event of default, or any event or condition that mightbecome such with notice or the passage of time or both, or any similar event,or any event that requires the prepayment of borrowed money or the accelerationof the maturity thereof, under the terms of any evidence of indebtedness orother agreement issued or assumed or entered into by Borrower or any Subsidiaryfor obligations in an aggregate amount in excess of Two Million and No/100United States Dollars ($2,000,000.00), or under the terms of any indenture,agreement, or instrument under which any such evidence of indebtedness or otheragreement is issued, assumed, secured, or guaranteed, and such event shallcontinue beyond any applicable period of grace provided therein;

 

(d)                   anyrepresentation, warranty, schedule, certificate, financial statement, report,notice, or other writing furnished by or on behalf of Borrower or anySubsidiary to Lender is false or misleading in any material respect on the dateas of which the facts therein set forth are stated or certified;

 

(e)                    Any guarantyof or pledge of collateral security for the Loans shall be repudiated or becomeunenforceable or incapable of performance;

 

(f)                      Borrower orany Subsidiary shall fail to comply with Sections 5.1, 5.2(e), 5.4,5.5, 5.6, 5.7 and 5.11 hereof; or fail to complywith or perform any agreement or covenant of Borrower or any Subsidiarycontained herein, which failure does not otherwise constitute an Event ofDefault, and such failure shall continue unremedied for thirty (30) days afternotice thereof to Borrower by Lender;

 

(g)                   an event orcondition specified in Section 4.13(b) shall occur or existand if as a result of such event or condition, together with all other suchevents or conditions if any, Borrower or any ERISA Affiliate shall incur, or,in the reasonable opinion of Lender, shall be reasonably likely to incur, aliability to a Plan, a Multiemployer Plan or the PBGC (or any combination ofthe foregoing) which, in the reasonable determination of Lender, has a MaterialAdverse Effect;

 

(h)                   any Person, ortwo or more Persons acting in concert, shall acquire beneficial ownership(within the meaning of Rule 13d-3 of the Securities and Exchange

 

 

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Commission under theSecurities Exchange Act of 1934) of 50% or more of the outstanding shares ofvoting stock of Borrower;

 

(i)                        anyproceeding (judicial or administrative) shall be commenced against Borrower orany Subsidiary, or with respect to any assets of Borrower or any Subsidiarywhich would reasonably be expected to have a Material Adverse Effect and whichis not dismissed within ninety (90) days after it is commenced against Borroweror any Subsidiary; or final judgment(s) and/or settlement(s) in anaggregate amount that is more than One Million and No/100 United States Dollars($1,000,000) in excess of insurance for which the insurer has confirmedcoverage in writing, a copy of which writing has been furnished to Lender, shallbe entered or agreed to in any suit or action commenced against Borrower or anySubsidiary, and which are not satisfied within thirty (30) days after they havebeen entered or agreed to in any suit or action commenced against Borrower orany Subsidiary;

 

(j)                        Borrowershall grant or any Person (other than Lender) shall obtain a security interestin any property or assets of Borrower which secures the repayment of the Loans;Borrower or any other Person (other than Lender) shall perfect (or attempt toperfect) such a security interest; a court shall determine that Lender does nothave a first priority security interest in any of the collateral for the Loansenforceable in accordance with the terms of the related documents; or anynotice of a federal tax lien against Borrower shall be filed with any publicrecorder and is not satisfied within thirty (30) days from the time of suchfiling, unless Borrower is contesting the validity thereof in good faith byappropriate proceedings and has set aside on its books adequate reserves withrespect thereto in accordance with generally accepted accounting principles;

 

(k)                     There shallbe any material loss or depreciation in the value of any collateral for theLoans for any reason, or, unless expressly permitted by the related documents,all or any part of any collateral for the Loans or any direct, indirect, legal,equitable or beneficial interest therein is assigned, transferred or soldwithout Lender’s prior written consent;

 

(1)                     any FederalReserve Bank, the FDIC or other regulatory entity shall issue or agree to enterinto any formal enforcement action with or against Borrower or any Subsidiary(including, but not limited to, a formal written agreement, cease and desistorder, suspension, removal or prohibition order or capital directive, butexcluding a civil money penalty), or any Federal Reserve Bank, the FDIC orother regulatory entity shall issue or enter into any informal enforcementaction with or against Borrower or any Subsidiary (including, but not limitedto, a commitment letter, memorandum of understanding or any similar action) orassess a civil money penalty, which in each case is materially adverse to theconsolidated assets, financial condition, business or operations of Borrower orany Subsidiary;

 

(m)                  Borrower or anySubsidiary (other than an Insignificant Subsidiary) shall fail to comply with Section 5.1hereof or shall suspend the transaction of all or a substantial portion of itsusual business or Borrower or any Subsidiary (other than

 

 

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an InsignificantSubsidiary) shall take any corporate action to approve or authorize to approveany action or omission that would result in any of the foregoing;

 

(n)                    anybankruptcy, insolvency, reorganization, arrangement, readjustment or similarproceeding, domestic or foreign, is instituted by or against Borrower or anySubsidiary, and in the case of an involuntary bankruptcy proceeding, suchproceeding is not dismissed within sixty (60) days (it is acknowledged and agreedthat Lender has no obligation to make Loans during such cure period); orBorrower or any Subsidiary shall take any steps toward, or to authorize, such aproceeding; or

 

(o)                    Borrower orany Subsidiary shall become insolvent, generally shall fail or be unable to payits debts as they mature, shall admit in writing its inability to pay its debtsas they mature, shall make a general assignment for the benefit of itscreditors or shall enter into any composition or similar agreement.

 

Section 7.2 **Default Remedies.**

 

(a)                     Upon theoccurrence and during the continuance of any Event of Default specified in Section 7.1(a)-(m),Lender at its option may declare the Note (principal, interest and otheramounts) and any other amounts owed to Lender under this Agreement, includingwithout limitation any accrued but unpaid Commitment Fee, immediately due andpayable without notice or demand of any kind. Upon the occurrence of any Eventof Default specified in Section 7.1(n)-(o), the Note (principal,interest and other amounts) and any other amounts owed to Lender under thisAgreement, including without limitation any accrued but unpaid Commitment Fee,shall be immediately and automatically due and payable without action of anykind on the part of Lender. Upon the occurrence and during the continuance ofany Event of Default, any obligation of Lender to make any Loan shallimmediately and automatically terminate without action of any kind on the partof Lender, and Lender may exercise any rights and remedies under this Agreement,the Note, any related document or instrument, and at law or in equity.

 

(b)                    Lender may, bywritten notice to Borrower, at any time and from time to time, waive any Eventof Default or Unmatured Event of Default, which shall be for such period and subjectto such conditions as shall be specified in any such notice. In the case of anysuch waiver, Lender and Borrower shall be restored to their former position andrights hereunder, and any Event of Default or Unmatured Event of Default sowaived shall be deemed to be cured and not continuing; but no such waiver shallextend to or impair any subsequent or other Event of Default or Unmatured Eventof Default. No failure to exercise, and no delay in exercising, on the part ofLender of any right, power or privilege hereunder shall preclude any other orfurther exercise thereof or the exercise of any other right, power orprivilege. The rights and remedies of Lender herein provided are cumulative andnot exclusive of any rights or remedies provided by law.

 

 

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**ARTICLE 8 DEFINITIONS**

 

Section 8.1 **General.** As used herein:

 

(a)                    The term “Code”shall mean the Internal Revenue Code of 1986, as amended form time to time.

 

(b)                   The term “EnvironmentalLaws” shall mean all federal, state and local laws, including statutes,regulations, ordinances, codes, rules and other governmental restrictionsand requirements, relating to the discharge of air pollutants, water pollutantsor process waste water or otherwise relating to the environment or hazardoussubstances or the treatment, processing, storage, disposal, release, transportor other handling thereof, including, but not limited to, the federal SolidWaste Disposal Act, the federal Clean Air Act, the federal Clean Water Act, thefederal Resource Conservation and Recovery Act, the federal Hazardous MaterialsTransportation Act, the federal Comprehensive Environmental Response,Compensation and Liability Act of 1980, the federal Toxic Substances ControlAct, regulations of the Nuclear Regulatory Agency, and regulations of any statedepartment of natural resources or state environmental protection agency, ineach case as now or at any time hereafter in effect.

 

(c)                    The term “ERISA”shall mean the Employee Retirement Income Security Act of 1974, as amended fromtime to time.

 

(d)                   The term “ERISAAffiliate” shall mean any corporation or trade or business which is amember of the same controlled group of corporations (within the meaning of Section 414(b) ofthe Code) as Borrower or is under common control (within the meaning of Section 414(c) ofthe Code) with Borrower.

 

(e)                    The term “FDIC”means the Federal Deposit Insurance Corporation and any successor thereof.

 

(f)                      The term “InterestPeriod” means, with regard to LIBOR Loans, the period commencing on theadvance date of the applicable LIBOR Loan and ending on the numericallycorresponding day 1, 2 or 3 months thereafter matching the interest rate termselected by Borrower; provided, however, (i) if any Interest Period wouldotherwise end on a day which is not a New York Banking Day, then the InterestPeriod shall end on the next succeeding New York Banking Day unless the nextsucceeding New York Banking Day falls in another calendar month, in which casethe Interest Period shall end on the immediately preceding New York BankingDay; or (ii) if any Interest Period begins on the last New York BankingDay of a calendar month (or on a day for which there is no numericallycorresponding day in the calendar month at the end of the Interest Period),then the Interest Period shall end on the last New York Banking Day of thecalendar month.

 

(g)                   The term “InterimMaturity Date” means the last day of any Interest Period.

 

 

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(h)                   The term “MaterialAdverse Effect” means (a) a material adverse change in, or a materialadverse effect upon, the operations, business, properties, condition (financialor otherwise) or prospects of Borrower and its Subsidiaries taken as a whole; (b) amaterial impairment of the ability of Borrower to perform its obligations underthis Agreement the Note, any related document to which it is a party and toavoid any Event of Default; or (c) a material adverse effect upon thelegality, validity, binding effect or enforceability against Borrower of thisAgreement or the Note.

 

(i)                       The term “MoneyMarkets” refers to one or more wholesale funding markets available to andselected by Lender, including negotiable certificates of deposit, commercialpaper, eurodollar deposits, bank notes, federal funds, interest rate swaps orothers.

 

(j)                       The term “MultiemployerPlan” shall mean a multiemployer plan defined as such in Section 3(37)of ERISA to which contributions have been made by Borrower or any ERISAAffiliate as a “contributing sponsor” (within the meaning of Section 4001(a)(13)of ERISA).

 

(k)                    The term “NewYork Banking Day” means any day (other than a Saturday or Sunday) on whichcommercial banks are open for business in New York, New York.

 

(l)                       The term “PBGC”shall mean the Pension Benefit Guaranty Corporation or any entity succeeding toany or all of its functions under ERISA.

 

(m)                 The term “PensionPlan” shall mean any Plan which is a “defined benefit plan” within themeaning of Section 3(35) of ERISA.

 

(n)                   The term “Person”shall mean any individual, corporation, company, limited liability company,voluntary association, partnership, trust, estate, unincorporated organizationor government (or any agency, instrumentality or political subdivisionthereof).

 

(o)                   The term “Plan”shall mean any plan, program or arrangement covering current or formeremployees of Borrower or any of its ERISA Affiliates which constitutes an “employeebenefit plan” within the meaning of Section 3(3) of ERISA.

 

(p)                   The term “PrimeRate” means the prime rate announced by Lender from time to time, as andwhen such rate changes.

 

(q)                   The term “Subsidiary”means any corporation, partnership, joint venture, trust, or other legal entityof which Borrower owns directly or indirectly twenty-five percent (25%) or moreof the outstanding voting stock or interest, or of which Borrower has effectivecontrol, by contract or otherwise. The term Subsidiary includes each SubsidiaryBank unless stated otherwise explicitly.

 

(r)                      The term “SubsidiaryBank” means each Subsidiary which is a bank.

 

 

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(s)                    The term “TrustGuarantee” means any guarantee of Borrower of the Trust PreferredSecurities, which guarantee is subordinate and junior in right of payment tothe prior payment of the obligations of Borrower hereunder and under the Noteon terms satisfactory to Lender.

 

(t)                      The term “TrustIndebtedness” means indebtedness of Borrower payable to the Trust Issuer orits transferees (a) which is due not earlier than the date thirty (30)years after its issuance, (b) which may not be redeemed earlier than five (5) yearsafter issuance and (c) the payment of which is subordinate and junior inright of payment to the prior payment of the obligations of Borrower hereunderand under the Note on terms satisfactory to Lender.

 

(u)                   The term “TrustIssuer” means a wholly-owned Subsidiary of Borrower which qualifies as aDelaware or Connecticut statutory business trust.

 

(v)                   The term “TrustPreferred Securities” means preferred securities issued by the Trust Issuer(a) which are subject to mandatory redemption not earlier than the datethirty (30) years after issuance and (b) which may not be optionallyredeemed earlier than five (5) years after issuance.

 

(w)                 The term “UnmaturedEvent of Default” means an event or condition which would become an Eventof Default with notice or the passage of time or both.

 

Except as andunless otherwise specifically provided herein, all accounting terms shall havethe meanings given to them by generally accepted accounting principles andshall be applied and all reports required by this Agreement shall be prepared,in a manner consistent in all material respects with the financial statementsreferred to in Section 4.3 above.

 

Section 8.2 **Applicability of Subsidiary References.**Terms hereof pertaining to any Subsidiary shall apply only during such times asBorrower has any Subsidiary.

 

**ARTICLE 9 NO INTEREST OVER LEGAL RATE.**

** **

Borrower does notintend or expect to pay, nor does Lender intend or expect to charge, accept orcollect any interest which, when added to any fee or other charge upon theprincipal which may legally be treated as interest, shall be in excess of thehighest lawful rate. If acceleration, prepayment or any other charges upon theprincipal or any portion thereof, or any other circumstance, result in thecomputation or earning of interest in excess of the highest lawful rate, thenany and all such excess is hereby waived and shall be applied against theremaining principal balance. Without limiting the generality of the foregoing,and notwithstanding anything to the contrary contained herein or otherwise, nodeposit of funds shall be required in connection herewith which will, whendeducted from the principal amount outstanding hereunder, cause the rate ofinterest hereunder to exceed the highest lawful rate.

 

**ARTICLE 10 PAYMENTS, ETC.**

** **

All paymentshereunder shall be made in immediately available funds, and shall be appliedfirst to accrued interest and then to principal; however, if an Event ofDefault occurs,

 

 

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Lender may, in its solediscretion, and in such order as it may choose, apply any payment to interest,principal and/or lawful charges and expenses then accrued. Borrower shallreceive immediate credit on payments received during Lender’s normal bankinghours if made in cash, immediately available funds, or by debit to availablebalances in an account at Lender; otherwise payments shall be credited afterclearance through normal banking channels. Unless Borrower instructs otherwise,all Loans shall be made in immediately available funds and shall be credited toan account(s) of Borrower with Lender. All payments shall be made withoutdeduction for or on account of any present or future taxes, duties or othercharges levied or imposed on this Agreement, the Note, the Loans or theproceeds, Lender or Borrower by any government or political subdivisionthereof.

 

**ARTICLE 11 SETOFF.**

** **

At any time whenan Event of Default has occurred and is continuing, and upon notice toBorrower, any account, deposit or other indebtedness owing by Lender toBorrower, and any securities or other property of Borrower delivered to or leftin the possession of Lender or its nominee or bailee, may be set off againstand applied in payment of any obligation hereunder, whether due or not. Thesetoff provision in this Section 11 shall not be applicable to anyaccounts (and deposits or property therein) maintained at Lender in the name ofBorrower or any of its Subsidiaries for which Borrower or such Subsidiarieshave established and maintained in trust for the benefit of any third party(not including, however, any affiliate of Borrower or any such Subsidiary).Borrower shall be obligated to notify Lender promptly upon the receipt of anysuch notice of setoff, and provide supporting documentation, in form andsubstance reasonably satisfactory to Lender, to establish, in the reasonableopinion of Lender, that any account subject to such setoff is in fact held byBorrower or any of its Subsidiaries, as the case may be, in trust for thebenefit of any third party (not including, however, any affiliate or Borroweror any such Subsidiary). If Borrower fails to comply with the foregoingsentence, Lender may assume that its setoff of any account or other property isvalid and permissible.

 

**ARTICLE 12 NOTICES.**

** **

All notices,requests and demands to or upon the respective parties hereto shall be made, ifto Lender, to its office indicated above (Attention: Timothy P. Franzen,Assistant Vice President), and if to Borrower, to its address set forth below,or to such other address as may be hereafter designated in writing by therespective parties hereto or, as to Borrower, may appear in Lender’s records.Notices sent by facsimile transmission shall be deemed to have been given uponelectronic confirmation; notices sent by mail shall be deemed to have beengiven three (3) business days after the date when sent by registered orcertified mail, postage prepaid; notices sent by personal delivery or by anationally recognized overnight delivery service *(e.g.,*Federal Express) shall be deemed to have been givenwhen received.

 

**ARTICLE 13 MISCELLANEOUS.**

** **

This Agreement andany document or instrument executed in connection herewith shall be governed byand construed in accordance with the internal law of the State of Colorado,except to the extent superseded by Federal law. This Agreement may only beamended, supplemented or modified at any time by written instrument dulyexecuted by Lender and

 

 

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Borrower. Unless thecontext requires otherwise, wherever used herein the singular shall include theplural and vice versa, and the use of one gender shall also denote the other.Captions herein are for convenience of reference only and shall not define orlimit any of the terms or provisions hereof; references herein to Sections orprovisions without reference to the document in which they are contained arereferences to this Agreement. This Agreement shall bind Borrower, itssuccessors and assigns, and shall inure to the benefit of Lender, itssuccessors and assigns, except that Borrower may not transfer or assign any ofits rights or interest hereunder without the prior written consent of Lender.Borrower agrees to pay upon demand all expenses (including without limitationreasonable attorneys’ fees, legal costs and expenses, whether in or out ofcourt, in original or appellate proceedings or in bankruptcy) incurred or paidby Lender or any holder of the Note in connection with (a) thenegotiation, preparation, execution and delivery of this Agreement, the Noteand the other documents to be delivered hereunder, (b) any amendment,modification or waiver of any of the terms of this Agreement or the Note, (c) anyEvent of Default or Unmatured Event of Default and any enforcement orcollection proceedings resulting therefrom, and (d) any transfer, stamp,documentary or other similar taxes, assessments or charges levied by anygovernmental or revenue authority in respect of this Agreement, the Note or anyother document referred to herein. Except as otherwise specifically providedherein, Borrower expressly and irrevocably waives presentment, protest, demandand notice of any kind in connection herewith. Lender may, at its option, sellall or any interests in the Note and other related documents to other financialinstitutions. Any purchaser of an interest in the Note is referred to as a “Participant.”In connection with such sales (and thereafter), Lender may, subject to theprovisions of Section 15 hereof, disclose any financial information Lendermay have concerning Borrower to any such Participant or potential Participant.

 

**ARTICLE 14 ARBITRATION AND WAIVER OF JURY TRIAL**

** **

(a)                    This Section concernsthe resolution of any controversies or claims between Lender and Borrower,whether arising in contract, tort or by statute, including but not limited tocontroversies or claims that arise out of or relate to: (i) this Agreement(including any renewals, extensions or modifications); or (ii) anydocument executed in connection with this Agreement (collectively, a “Claim”).

 

(b)                   At the requestof Lender or Borrower, any Claim shall be resolved by binding arbitration inaccordance with the Federal Arbitration Act (Title 9, U.S. Code) (the “Act”).The Act will apply even though this Agreement provides that it is governed bythe law of a specified state.

 

(c)                    Arbitrationproceedings will be determined in accordance with the Act, the applicable rules andprocedures for the arbitration of disputes of JAMS or any successor thereof (“JAMS”),and the terms of this Section. In the event of any inconsistency, the terms ofthis Section shall control.

 

(d)                   The arbitrationshall be administered by JAMS and conducted, unless otherwise required by law,in the State of Colorado. All Claims shall be determined by one arbitrator;however, if Claims exceed Five Million Dollars ($5,000,000), upon the requestof Lender or Borrower, the Claims shall be decided by three arbitrators. Allarbitration hearings shall commence within thirty (30) days of the demand for

 

 

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arbitration and closewithin thirty (30) days of commencement and the award of the arbitrator(s) shallbe issued within thirty (30) days of the close of the hearing. However, thearbitrator(s), upon a showing of good cause, may extend the commencement of thehearing for up to an additional sixty (60) days. The arbitrator(s) shallprovide a concise written statement of reasons for the award. The arbitrationaward may be submitted to any court having jurisdiction to be confirmed andenforced.

 

(e)                    The arbitrator(s) willhave the authority to decide whether any Claim is barred by the statute oflimitations and, if so, to dismiss the arbitration on that basis. For purposesof the application of the statute of limitations, the service on JAMS underapplicable JAMS rules of a notice of Claim is the equivalent of the filingof a lawsuit. Any dispute concerning this arbitration provision or whether aClaim is arbitrable shall be determined by the arbitrator(s). The arbitrator(s) shallhave the power to award legal fees pursuant to the terms of this Agreement.

 

(f)                      This Section doesnot limit the right of Lender or Borrower to: (i) exercise self-helpremedies, such as, but not limited to, setoff; (ii) initiate judicial ornon-judicial foreclosure against any real or personal property collateral; (iii) exerciseany judicial or power of sale rights, or (iv) act in a court of law toobtain an interim remedy, such as, but not limited to, injunctive relief, writof possession or appointment of a receiver, or additional or supplementaryremedies.

 

(g)                   The filing of acourt action is not intended to constitute a waiver of the right of any party,including the suing party, thereafter to require submittal of the Claim toarbitration.

 

(h)                   By agreeing tobinding arbitration, the parties irrevocably and voluntarily waive any rightthey may have to a trial by jury in respect of any Claim. Furthermore, withoutintending in any way to limit this Agreement to arbitrate, to the extent anyclaim is not arbitrated, the parties irrevocably and voluntarily waive anyright they may have to a trial by jury in respect of such Claim. This provisionis a material inducement for the parties entering into this Agreement.

 

**ARTICLE 15 CONFIDENTIALITY**

** **

Lender herebyagrees to keep, and cause Representatives and Potential Participants (asdefined below) to keep, any and all information relating to Borrower which is (i) furnishedby Borrower to Lender (or to any affiliate of Lender); and (ii) non-public,confidential or proprietary in nature, confidential; provided, however, thatsuch information and other credit information relating to Borrower may bedistributed by Lender or such affiliate to (a) Lender’s or such affiliate’sdirectors, managers, officers, employees, attorneys, affiliates, assignees,participants, auditors and agents (“Representatives”) on an as-needed basis, (b) bankingregulators and other governmental agencies upon request or in the ordinarycourse of such agencies’ examinations of Lender or such affiliate and (c) uponthe order of a court or other governmental agency having jurisdiction overLender or such affiliate, and after giving prior written notice to Borrower (unlessproviding such notice is not practicable or is prohibited by the

 

 

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terms of such order), toany other party. In addition such information and other credit information maybe distributed by Lender to potential participants or assignees of any portionof the Loans (“Potential Participants”), provided, that such PotentialParticipant agrees to follow the confidentiality requirements set forth herein.Borrower and Lender further agree that this provision shall survive thetermination of this Agreement.

 

**[Signature Page Follows]**

** **

 

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IN WITNESSWHEREOF, the parties hereto have caused this Agreement to be duly executed asof the date first above written.

 
|   |   |   | COBIZ FINANCIAL INC. |
|--------|--------|--------|----------------------|
|   |   |   | By                   |   |
|   |   |   |                 | Name: | Lyne B. Andrich |
|   |   |   |                 | Title: | Executive Vice  President and Chief Financial Officer |
|   |   |   |                 |   | Address for notices: 

821 17th Street  

Denver, CO 80202 

Attention: Chief  Financial Officer |

 
|   |   |   | U.S. BANK NATIONAL  ASSOCIATION |   |
|--------|--------|--------|---------------------------------|--------|
|   |   |   | By                              |   |
|   |   |   |                            | Name:  | Timothy P. Franzen |
|   |   |   |                            | Title: | Assistant Vice  President |
|        |        |        |                                 |        |  |  |

 

** **

**28**

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**EXHIBIT A**

** **

**REVOLVING CREDIT NOTE**

 
| $30,000,000 |   | Denver, Colorado                            |
|-------------|--------|---------------------------------------------|
|        |   | August     ,  2007 |

 

FOR VALUERECEIVED, on or before the Maturity Date (as defined in the Revolving CreditAgreement referred to below), **COBIZ FINANCIALINC.**, a corporation formed under the laws of the State of Colorado (“Borrower”),promises to pay to the order of **U.S. BANKNATIONAL ASSOCIATION,** a national banking association (hereafter,together with any subsequent holder hereof, called “Lender”), at itsbanking office at 2555 South Colorado Boulevard, Denver, Colorado 80222, or atsuch other place as Lender may direct, the aggregate unpaid principal balanceof each advance (a “Loan” and collectively the “Loans”) made byLender to Borrower hereunder. The total principal amount of Loans outstandingat any one time hereunder shall not exceed THIRTY MILLION UNITED STATES DOLLARS($30,000,000).

 

Lender is herebyauthorized by Borrower at any time and from time to time at Lender’s soleoption to attach a schedule (grid) to this Note and to endorse thereonnotations with respect to each Loan specifying the date and principal amountthereof, and the date and amount of each payment of principal and interest madeby Borrower with respect to each such Loan. Lender’s endorsements as well asits records relating to Loans shall be rebuttably presumptive evidence of theoutstanding principal and interest on the Loans, and, in the event ofinconsistency, shall prevail over any records of Borrower and any writtenconfirmations of Loans given by Borrower absent manifest error.

 

Borrower agrees topay interest on the unpaid principal amount from time to time outstandinghereunder on the dates and at the rate or rates as set forth in the RevolvingCredit Agreement (as hereinafter defined).

 

Payments of bothprincipal and interest are to be made in immediately available funds in lawfulmoney of the United States of America.

 

This Note evidencesindebtedness incurred under that certain Revolving Credit Agreement dated as ofthe date hereof by and between Borrower and Lender (and, if amended, restatedor replaced, all amendments, restatements and replacements thereto or therefor,if any) (the “Revolving Credit Agreement;” capitalized terms nototherwise defined herein have the same meaning herein as in the RevolvingCredit Agreement). Reference is hereby made to the Revolving Credit Agreementfor a statement of its terms and provisions, including without limitation thoseunder which this Note may be paid prior to its due date or have its due dateaccelerated.

 

This Note shall begoverned by and construed in accordance with the internal law of the State ofColorado.

 
|   |   | COBIZ FINANCIAL INC. |
|--------|--------|----------------------|
|   |   |                 |
|   |   | By                   |   |
|   |   |                 | Lyne B. Andrich 

Executive Vice  President and Chief Financial Officer |

 

 

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