SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
See Item 2.03 of this Current Report on Form 8-K, which is incorporated by reference herein.
United Western Bancorp, Inc. (the “Company”) and Equi-Mor Holdings, Inc., a direct subsidiary of the Company (the “Pledgor”), entered into that certain Sixth Forbearance and Amendment Agreement (the “Sixth Forbearance Agreement”) with JPMorgan Chase Bank, N.A. (“JPMorgan”) on January 10, 2011.
The terms of the Sixth Forbearance Agreement provide, among other things, that (i) JPMorgan agrees to forbear from exercising its rights and remedies under the Loan Documents (as defined in the Sixth Forbearance Agreement) on account of the Sixth Forbearance Disclosed Defaults (as defined in the Sixth Forbearance Agreement) provided the Company and the Pledgor satisfy all obligations set forth in the Sixth Forbearance Agreement and the Loan Documents (from the Effective Date as defined in the Sixth Forbearance Agreement) until the earlier of: (i) the end of business on February 15, 2011; or (ii) the occurrence of a default, other than the Sixth Forbearance Disclosed Defaults, under any of the Loan Documents, the Sixth Forbearance Agreement or any other agreement required to be entered into by the Sixth Forbearance Agreement. The forbearance by JPMorgan is conditioned upon, among other things, the Company entering into an investment agreement with at least two anchor investors on or before October 31, 2010 with such investment agreement providing for the investment by such anchor investors of no less than $91 million and collectively, an investment of approximately $200 million of new money capital in the Company.
As previously reported by the Company on Form 8-K filed with the Securities and Exchange Commission on October 29, 2010, the Company entered into an investment agreement on October 28, 2010 (the “Investment Agreement”) with Oak Hill Capital Partners III, L.P. and Oak Hill Capital Management Partners III, L.P. (collectively, the “Oak Hill Anchor Investor”), Lovell Minnick Equity Partners III LP and Lovell Minnick Equity Partners III-A LP (collectively, the “Lovell Minnick Anchor Investor” and, together with the Oak Hill Anchor Investor, the “Lead Anchor Investors”), Legent Group, LLC (the “Legent Group”) and Henry C. Duques (“Duques” and, together with the Legent Group, the “Duques Anchor Investor”) (each of the Oak Hill Anchor Investor, the Lovell Minnick Anchor Investor and the Duques Anchor Investor, an “Anchor Investor,” and collectively, the “Anchor Investors”). Pursuant to the Investment Agreement, the Company will seek to raise in the aggregate at least $200,000,000 but not more than $205,000,000, and the Lead Anchor Investors will each purchase 117,500,000 shares of common stock, par value $0.0001 per share, of the Company (the “Common Stock”) for $0.40 per share, for a total investment of $94,000,000 (the “Lead Anchor Investment”). The Legent Group will purchase 7,500,000 shares of Common Stock for $0.40 per share, for a total investment of $3,000,000, and Duques will purchase 15,000,000 shares of Common Stock for $0.40 per share, for a total investment of $6,000,000. In addition, each Anchor Investor will each receive warrants to purchase 10.0% of the number of shares of Common Stock that they purchased under the Investment Agreement.
The terms of the Sixth Forbearance Agreement also provide that the Company will pay JPMorgan monthly interest payments for the months of November and December of 2010 and January of 2011 (the “Sixth Forbearance Interest Payments”); provided, however, that the Sixth Forbearance Interest Payments are subject to the Company’s prior receipt of the written non-objection of the Office of Thrift Supervision.
In addition, the terms of the Sixth Forbearance Agreement provide that the Company will cause the proceeds of any Stated Capital Raise (as defined in the Sixth Forbearance Agreement and which includes the proceeds raised by the completion of the contemplated offering pursuant to the Investment Agreement described above) to be used, first and foremost, to pay off all the Liabilities (as defined in the Sixth Forbearance Agreement) the Company owes to JPMorgan under the Loan Documents, provided, however, that the Liabilities under the Loan Documents shall be deemed to be fully satisfied if: (A) on or before February 15, 2011, the Company pays to JPMorgan an amount from the proceeds of the Stated Capital Raise equal to the sum of: (i) $10,562,500, (ii) all accrued but unpaid interest due under the Loan Documents and (iii) all other fees, costs and expenses due under the Loan Documents ((i), (ii) and (iii) collectively, the “Capital Proceeds Payment”); and (B) no Forbearance Default (as defined in the Sixth Forbearance Agreement) occurs prior to receipt of the Capital Proceeds Payment. The payment by the Company of the Capital Proceeds Payment to JPMorgan is subject to the Company’s prior receipt of the written non-objection of the OTS.
The foregoing is only a summary of the material terms of the Sixth Forbearance Agreement and does not purport to be complete, and is qualified in its entirety by reference to the Sixth Forbearance Agreement, a copy of which is attached to this Current Report on Form 8-K as Exhibit 10.1 and incorporated herein by reference.
(d) The following exhibits are being furnished herewith.
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.