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Exhibit 10.1
TENTH AMENDMENT TO CREDIT AGREEMENT
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THIS DOCUMENT is entered into as of September 27, 2000, between MATRIX
BANCORP, INC., a Colorado corporation formerly named Matrix Capital Corporation
("Borrower"), the Lenders described below, and U.S. Bank National Association,
as Agent for Lenders.
Borrower, Lenders, and Agent are party to the Credit Agreement (as renewed,
extended, and amended, the "Credit Agreement") dated as of March 12, 1997,
providing for a $10,000,000 Term Loan and a Revolving Facility of up to
$10,000,000. Borrower, Lenders, and Agent have agreed, upon the following terms
and conditions, to amend the Credit Agreement as further described herein.
1. TERMS AND REFERENCES. Unless otherwise stated in this document terms
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defined in the Credit Agreement have the same meanings when used in this
document.
2. AMENDMENT. The definition of "Stated-Termination Date" in Section 1.1 of
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the Credit Agreement is amended to read as follows:
"'Stated-Termination Date' means the earlier of either (a)
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November 30, 2000, or (b) 30 days after the date on which at least 90%
of the total Commitments for the Revolving Facility have been funded
under Section 2.2."
3. ASSIGNMENT.
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3.1 Exiting Lenders. Bank One, Texas, N.A. and Residential Funding
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Corporation (the "Exiting Lenders") hereby sell, transfer, assign and delegate
to U.S. Bank National Association (the "Remaining Lender"), and the Remaining
Lender hereby purchases, assumes and undertakes from the Exiting Lenders,
without recourse and without representation or warranty (except as expressly
provided herein) all of the Exiting Lenders' commitments, loans, participations,
rights, benefits, obligations, liabilities and indemnities under and in
connection with the Credit Agreement and all of the Borrowings thereunder,
including without limitation the right to receive payment of principal, and
interest on such percentage of the Exiting Lenders' Advances, and the obligation
to fund all future Borrowings, and to indemnify the Agent or any other party
under the Credit Agreement and to pay all other amounts payable by a Lender
under or in connection with the Credit Agreement.
3.2 Payment. The foregoing paragraph 2.1 shall become effective as to
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each Exiting Lender upon payment by the Remaining Lender to such Exiting Lender
of an amount equal to the sum of (a) the principal amount of the Borrowings
outstanding under the Credit Agreement, (b) all unpaid accrued interest on the
Borrowings from such Exiting Lender calculated as provided in the Credit
Agreement, and (c) all unpaid accrued non-use fee of such Exiting Lender,
calculated as provided in Section 3.15 of the Credit Agreement. Such payment
shall be made by the Remaining Bank to the Exiting Banks on the date of this
Tenth Amendment, or a promptly as practicable following such date by means of
transfer of funds as provided in instructions for payments under the Credit
Agreement. If for any reason such payment may not be made to an Exiting Lender
by September 29, 2000, the provisions of this Amendment shall not apply to such
Exiting Lender.
3.3 Future Payments. After effectiveness of this Amendment as to any
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Exiting Lender, the Agent shall make all payments with respect to the interests
assigned by such Exiting Lender
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directly to the Remaining Lender (including without limitation interest and fees
accrued prior to the date of this Amendment).
3.4 No Warranty or Recourse. The sale, transfer, assignment and
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delegation hereunder is made without warranty or recourse against the Exiting
Lenders, except that each Exiting Lender warrants that it has not sold or
otherwise transferred any other interest in the assigned interests to any other
party.
3.5 Notes. The Exiting Lender shall promptly deliver their Notes to the
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Agent and the Borrower shall promptly, upon request of the Remaining Lender,
execute and deliver to the Remaining Lender new Notes reflecting the ownership
of the Remaining Lender giving effect to this Amendment.
3.6 Schedules of Lenders and Commitments. The Agent is authorized by all
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parties to amend its records and each schedule of Lenders and their Commitments
to reflect the assignments hereunder.
4. CONDITIONS PRECEDENT. Notwithstanding any contrary provision, the
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foregoing paragraphs in this document are not effective unless and until (A) the
representations and warranties in this document are true and correct, and (B)
Agent receives counterparts of this document executed by Agent, Lenders
(including Exiting Lenders), Borrower and the Acknowledgment attached hereto
executed by each of the Companies.
5. RATIFICATIONS. To induce Agent and Lenders to enter into this document,
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Borrower (A) ratifies and confirms all provisions of the Loan Documents as
amended by this document, (B) ratifies and confirms that all guaranties,
assurances, and Liens granted, conveyed, or assigned to Agent and Lenders under
the Loan Documents (as they may have been renewed, extended, and amended) are
not released, reduced, or otherwise adversely affected by this document and
continue to guarantee, assure, and secure full payment and performance of the
present and future Obligation, and (C) agrees to perform those acts and duly
authorize, execute, acknowledge, deliver, file, and record those additional
agreements, and certificates as Agent or any Lender may request in order to
create, perfect, preserve, and protect those guaranties, assurances, and Liens.
6. REPRESENTATIONS. To induce Agent and Lenders to enter into this document,
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Borrower represents and warrants to Agent and Lenders that as of the date of
this document (A) each Company has all requisite authority and power to execute,
deliver, and perform its obligations under this document, which execution,
delivery, and performance have been duly authorized by all necessary corporate
action, require no action by or filing with any Tribunal, do not violate
corporate charter or bylaws or (except where not a Material-Adverse Event)
violate any Law applicable to it or any material agreement to which it or its
assets are bound, (B) upon execution and delivery by all parties to it, this
document will constitute each Company's legal and binding obligation,
enforceable against it in accordance with this document's terms except as that
enforceability may be limited by Debtor Laws and general principles of equity,
(C) all other representations and warranties in the Loan Documents are true and
correct in all material respects except to the extent that (1) any of them speak
to a different specific date or (2) the facts on which any of them were based
have been changed by transactions contemplated or permitted by the Credit
Agreement, and (D) no Material-Adverse Event, Default, or Potential Default
exists.
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7. EXPENSES. Borrower shall, subject to a contrary written agreement between
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Agent and Borrower, pay all costs, fees, and expenses paid or incurred by Agent
incident to this document, including, without limitation, the reasonable fees
and expenses of Agent's counsel in connection with the negotiation, preparation,
delivery, and execution of this document and any related agreements.
8. MISCELLANEOUS. All references in the Loan Documents to the "Credit
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Agreement" refer to the Credit Agreement as amended by this document. This
document is a "Loan Document" referred to in the Credit Agreement; therefore,
the provisions relating to Loan Documents in Sections 1 and 12 are incorporated
in this document by reference. Except as specifically amended and modified in
this document, the Credit Agreement is unchanged and continues in full force and
effect. This document may be executed in any number of counterparts with the
same effect as if all signatories had signed the same document. All
counterparts must be construed together to constitute one and the same
instrument. This document binds and inures to each of the undersigned and their
respective successors and permitted assigns, subject to Section 12.12. This
document and the other Loan Documents represent the final agreement between the
parties in respect of the matters covered by the Loan Documents and may not be
contradicted by evidence of prior, contemporaneous, or subsequent oral
agreements by the parties. There are no unwritten oral agreements between the
parties.
EXECUTED as of the date first stated in this Amendment to Credit Agreement.
MATRIX BANCORP, INC. (formerly Matrix BANK ONE, TEXAS, N.A., as an Exiting
Capital Corporation) as Borrower Lender
By: /s/ David W. Kloos By:__________________________________
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Title: Senior Vice President Title:_______________________________
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U.S. BANK NATIONAL ASSOCIATION, RESIDENTIAL FUNDING CORPORATION,
as Agent and as the Remaining Lender as an Exiting Lender
By: /s/ Mark A. Bagley By:__________________________________
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Title: Vice President Title:_______________________________
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CONSENT AND AGREEMENT
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To induce Agent and Lenders to enter into this document, the undersigned
jointly and severally (a) consent and agree to this document's execution and
delivery, (b) ratify and confirm that all guaranties, assurances, Liens, and
subordinations granted, conveyed, or assigned to Agent or any Lender under the
Loan Documents (as they may have been renewed, extended, and amended) are not
released, diminished, impaired, reduced, or otherwise adversely affected by this
document and continue to guarantee, assure, secure, and subordinate other debt
to the full payment and performance of all present and future Obligation, (c)
agree to perform those acts and duly authorize, execute, acknowledge, deliver,
file, and record those additional guaranties, assignments, security agreements,
deeds of trust, mortgages, and other agreements, agreements, instruments, and
certificates as Agent or any Lender may reasonably deem necessary or appropriate
in order to create, perfect, preserve, and protect those guaranties, assurances,
Liens, and subordinations, (d) represent and warrant to Agent and Lenders that
(i) the value of the consideration received and to be received by the
undersigned in respect of those guaranties, assurances, Liens, and
subordinations are reasonably worth at least as much as the related liability
and obligation, (ii) that liability and obligation may reasonably be expected to
directly or indirectly benefit the undersigned, and (iii) each undersigned is --
and after giving effect to those guaranties, assurances, Liens, subordinations,
and the Loan Documents, in light of all existing facts and circumstances
(including, without limitation, collateral for and other obligors in respect of
the Obligation and various components of it and various rights of subrogation
and contribution), each undersigned will be -- Solvent, and (e) waive notice of
acceptance of this consent and agreement, which consent and agreement binds the
undersigned and their successors and permitted assigns and inures to Agent and
Lenders and their respective successors and permitted assigns.
MATRIX FINANCIAL SERVICES UNITED CAPITAL MARKETS, INC.
CORPORATION
By: /s/ Guy A. Gibson By:_______________________________
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Title: Director Title:____________________________
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MATRIX FUNDING CORPORATION UNITED FINANCIAL, INC.
By: /s/ Guy A. Gibson By: /s/ Carl G. de Rozario
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Title: President Title: President
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UNITED SPECIAL SERVICES, INC. VINTAGE DELAWARE HOLDINGS, INC.
By: /s/ Carl G. de Rozario By: /s/ David W. Kloos
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Title: President Title: President
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FIRST MATRIX INVESTMENT SERVICES CORP. THE VINTAGE GROUP, INC.
By: /s/ Paul E. Skretny By: /s/ Paul E. Skretny
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Title: Chairman Title: President
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