EXHIBIT 10.1
SIXTH AMENDMENT TO CREDIT AGREEMENT
This SIXTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), made and
entered into as of March 31, 2004, is by and between MATRIX BANCORP, INC., a
Colorado corporation (the "Borrower"), the lenders from time to time party
hereto (each a "Lender" and collectively, the "Lenders"), and U.S. BANK NATIONAL
ASSOCIATION ("U.S. Bank"), as agent for the Lenders (in such capacity, together
with any successor agents appointed hereunder, the "Agent").
RECITALS
A. The Borrower, the Agent and the Lenders, entered into a Credit
Agreement dated as of December 27, 2000, as amended by a First Amendment to
Credit Agreement dated as of March 5, 2001, a Second Amendment to Credit
Agreement dated as of July 27, 2001, a Third Amendment to Credit Agreement dated
as of December 26, 2001, a Fourth Amendment to Credit Agreement dated as of
March 31, 2002 and a Fifth Amendment dated as of March 31, 2003 (as amended, the
"Credit Agreement"); and
B. The Borrower desires to amend certain provisions of the Credit
Agreement, and the Lenders and Agent have agreed to make such amendments,
subject to the terms and conditions set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby covenant
and agree to be bound as follows:
Section 1. Capitalized Terms. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to them in the Credit
Agreement, unless the context shall otherwise require.
Section 2. Amendments.
Section 2.1 Definitions. Section 1.1 of the Credit Agreement
is amended by deleting the definition of "Termination Date" as it
appears therein and by inserting the following definitions in such
Section 1.1 in the appropriate alphabetical order:
"Balance Calculation Period": Each calendar month
after the Sixth Amendment Effective Date to and including the
later of the date on which the Notes shall be paid in full or
the Termination Date, except that the last Balance Calculation
Period shall end on the later of the date on which the Notes
shall have been paid in full or the Termination Date.
"Balance Funded Rate Advance": An outstanding Advance
that bears interest as provided in Section 2.5(a).
"Balances Deficiency": As defined in Section 2.5(a).
"Balances Deficiency Fee": As defined in Section
2.5(a).
"Balance Funded Amount": With respect to any Lender
for any Balance Calculation Period, the average of the
Qualifying Balances of such Lender for such Balance
Calculation Period.
"Balance Funded Rate": 2.65% per annum.
"Balances Surplus": As defined in Section 2.5(b).
"Qualifying Balances": With respect to any Lender,
for any day the lesser of (a) the amount of such Lender's
Advances on such day, and (b) the sum of the collected
balances in all identified non-interest bearing accounts of
Borrower maintained with such Lender less (i) amounts
necessary to satisfy reserve and deposit insurance
requirements and (ii) amounts required to compensate such
Lender for services rendered in accordance with such Lender's
system of charges for services to similar accounts.
"Sixth Amendment Effective Date": The date on which
the Sixth Amendment to this Agreement becomes effective by its
terms.
"Termination Date": The earliest of (a) Xxxxx 00,
0000, (x) the date on which the Revolving Commitments are
terminated pursuant to Section 7.2 hereof or (c) the date on
which the Revolving Commitment Amounts are reduced to zero
pursuant to Section 2.8 hereof.
Section 2.2 Procedure for Balance Funded Advances. Section 2.4
of the Credit Agreement is amended by adding the following new sentence
at the end thereof:
Notwithstanding anything to the contrary in this Agreement,
(a) Advances may be made as or converted to Balance Funded
Rate Advances in the same manner as Advances may be made as or
converted to Eurodollar Rate Advances, provided that Advances
may not be made as, converted to, or continued as Balance
Funded Rate Advances if (i) a Default or Event of Default has
occurred and is continuing on the date of the proposed making
of or conversion to Balance Funded Rate Advances and (ii)
after the making of or continuation of such Advance, if the
Balance Funded Amount maintained by the Borrower with the
Lender that has made such Advance is less than the aggregate
amount of Balance Funded Rate Advances made by such Lender and
(b) Balance Funded Rate Advances may be converted to Prime
Rate Advances or Eurodollar Rate Advances in the same manner
as Eurodollar Rate Advances may be converted Prime Rate
Advances.
Section 2.3 Interest Rates, Etc. Section 2.5 of the Credit
Agreement is deleted in its entirety and the following is substituted
in lieu thereof:
Section 2.5 Interest Rates, Interest Payments and
Default Interest. Interest shall accrue and be payable on the
Loans as follows:
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(a) Subject to subsection (d) below, each Balance
Funded Rate Advance shall bear interest at the Balance Funded
Rate; provided, that if for any Balance Calculation Period the
Balance Funded Amount maintained by the Borrower with any
Lender is less than an amount equal to the average daily
aggregate unpaid principal balance of the Balance Funded Rate
Advances owed to such Lender during such Balance Calculation
Period (such deficiency being herein referred to as the
"Balances Deficiency"), the Borrower will pay such Lender a
fee (the "Balances Deficiency Fee") for said Balance
Calculation Period on the Balances Deficiency at a per annum
rate equal to the average daily Adjusted Eurodollar Rate for
30 day deposits; and provided further, that if the Balance
Funded Amount maintained by the Borrower with any Lender for
any Balance Calculation Period exceeds the weighted average
daily aggregate unpaid principal balance of the Balance Funded
Rate Advances owed to such Lender during such Balance
Calculation Period (such excess being defined herein as the
"Balances Surplus"), then such Balances Surplus, or, if
Borrower and such Lender shall so agree, the charges reduction
benefit for such Balances Surplus (as determined by such
Lender), may be carried forward and applied to succeeding
Balance Calculation Periods (but not to any Balance
Calculation Period occurring in any subsequent calendar year).
(b) Subject to paragraph (d) below, each Eurodollar
Rate Advance shall bear interest on the unpaid principal
amount thereof at a varying rate per annum equal to the sum of
(A) the Adjusted Eurodollar Rate for such Interest Period,
plus (B) the Applicable Margin.
(c) Subject to paragraph (d) below, each Prime Rate
Advance shall bear interest on the unpaid principal amount
thereof at a varying rate per annum equal to the sum of (A)
the Prime Rate, plus (B) the Applicable Margin.
(d) Upon the occurrence and during the continuance of
any Event of Default, each Advance shall, at the option of the
Majority Lenders, bear interest until paid in full at a the
rate otherwise applicable thereto plus 2.0%.
(e) Interest shall be payable on the last day of each
month; provided that interest under Section 2.5(c) shall be
payable on demand. Any Balances Deficiency Fee payable
hereunder shall be due and payable monthly after each Balance
Calculation Period within two Business Days after receipt by
the Borrower from any Lender of a statement therefor (a copy
of which shall be provided to Agent) containing the
calculations made to determine such Balances Deficiency Fee,
which statement shall be conclusive absent manifest error.
Section 2.4 Term Loan Maturity Date. Section 2.6(b) of the
Credit Agreement is hereby amended by deleting the date "December 31,
2004" contained in the fifth line thereof and replacing such date with
"December 31, 2006."
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Section 2.5 Increased Cost; Illegality. Sections 2.14 and 2.15
of the Credit Agreement are generally amended, mutatis mutandis, so
that such sections shall apply to Balance Funded Rate Advances as well
as to Eurodollar Rate Advances.
Section 2.6 Net Income. Section 6.15(c) of the Credit
Agreement is hereby amended in its entirety to read as follows:
(c) Net Income. The Borrower shall not permit Matrix
Bank's Net Income, as of the last day of any fiscal quarter,
for the four consecutive fiscal quarters ending on such date,
to be less than: (a) $6,000,000 as of March 31, 2004 and June
30, 2004 and (b) $7,500,000 as of the end of September 30,
2003 and the end of each fiscal quarter thereafter.
Section 2.7 Additional Subordinated Debt. Section 6.10 of the
Credit Agreement is hereby amended to add the following Section
6.10(p):
(p) Additional unsecured Indebtedness of the Borrower
in the form of notes or debentures that have been subordinated
to the Obligations in a manner approved by the Majority
Lenders prior to the creation of such Indebtedness, in an
aggregate principal amount not to exceed $11,000,000 at any
time outstanding.
Section 3. Effectiveness of Amendments. The amendments contained in
this Amendment shall become effective as of the date first above written (the
"Sixth Amendment Effective Date") provided the Agent shall have received at
least four (4) counterparts of this Amendment, duly executed by the Company and
all of the Lenders, and the Agent shall have received the following, each duly
executed or certified:
Section 3.1 This Amendment duly executed by the Borrower.
Section 3.2 A copy of the resolutions of the Board of
Directors of the Borrower authorizing the execution, delivery and
performance of this Amendment certified as true and accurate by its
Secretary or Assistant Secretary, along with a certification by such
Secretary or Assistant Secretary (i) certifying that there has been no
amendment to the Certificate of Incorporation or Bylaws of the Borrower
since true and accurate copies of the same were previously delivered to
the Lender with a certificate of the secretary of the Borrower and (ii)
identifying each officer of the Borrower authorized to execute this
Amendment and any other instrument or agreement executed by the
Borrower in connection with this Amendment (collectively, the
"Amendment Documents"), and certifying as to specimens of such
officer's signature and such officer's incumbency in such offices as
such officer holds.
Section 3.3 The Consent and Agreement of Guarantors, in the
form prescribed by the Agent, duly executed by each Guarantor.
Section 3.4 The Borrower shall have satisfied such other
conditions as specified by the Agent and the Lenders, including payment
of all unpaid legal fees and expenses incurred by the Agent through the
date of this Amendment in connection with the Credit Agreement and the
Amendment Documents.
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Section 4. [Reserved].
Section 5. Representations, Warranties, Authority, No Adverse Claim.
Section 5.1 Reassertion of Representations and Warranties, No
Default. The Borrower hereby represents that on and as of the date
hereof and after giving effect to this Amendment (a) all of the
representations and warranties contained in the Credit Agreement are
true, correct and complete in all respects as of the date hereof as
though made on and as of such date, except for changes permitted by the
terms of the Credit Agreement, and (b) there will exist no Default or
Event of Default under the Credit Agreement as amended by this
Amendment on such date which has not been waived by the Agent and the
Lenders.
Section 5.2 Authority, No Conflict, No Consent Required. The
Borrower represents and warrants that the Borrower has the power and
legal right and authority to enter into the Amendment Documents and has
duly authorized as appropriate the execution and delivery of the
Amendment Documents and other agreements and documents executed and
delivered by the Borrower in connection herewith or therewith by proper
corporate action, and none of the Amendment Documents nor the
agreements contained herein or therein contravenes or constitutes a
default under any agreement, instrument or indenture to which the
Borrower is a party or a signatory or a provision of the Borrower's
Certificate of Incorporation, Bylaws or any other agreement or
requirement of law in which the consequences of such default or
violation could have a material adverse effect on the business,
operations, properties, assets or condition (financial or otherwise) of
the Borrower and its Subsidiaries taken as a whole, or result in the
imposition of any Lien on any of its property under any agreement
binding on or applicable to the Borrower or any of its property except,
if any, in favor of the Agent on behalf of the Lenders. The Borrower
represents and warrants that no consent, approval or authorization of
or registration or declaration with any Person, including but not
limited to any governmental authority, is required in connection with
the execution and delivery by the Borrower of the Amendment Documents
or other agreements and documents executed and delivered by the
Borrower in connection therewith or the performance of obligations of
the Borrower therein described, except for those which the Borrower has
obtained or provided and as to which the Borrower has delivered
certified copies of documents evidencing each such action to the Agent.
Section 5.3 No Adverse Claim. The Borrower warrants,
acknowledges and agrees that no events have taken place and no
circumstances exist at the date hereof which would give the Borrower a
basis to assert a defense, offset or counterclaim to any claim of the
Agent or the Lenders with respect to the Obligations or the Borrower's
obligations under the Credit Agreement as amended by this Amendment.
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Section 6. Affirmation of Credit Agreement, Further References. The
Agent, the Lenders, and the Borrower each acknowledge and affirm that the Credit
Agreement, as hereby amended, is hereby ratified and confirmed in all respects
and all terms, conditions and provisions of the Credit Agreement, except as
amended by this Amendment, shall remain unmodified and in full force and effect.
All references in any document or instrument to the Credit Agreement are hereby
amended and shall refer to the Credit Agreement as amended by this Amendment.
All of the terms, conditions, provisions, agreements, requirements, promises,
obligations, duties, covenants and representations of the Borrower under such
documents and any and all other documents and agreements entered into with
respect to the obligations under the Credit Agreement are incorporated herein by
reference and are hereby ratified and affirmed in all respects by the Borrower.
Section 7. Merger and Integration, Superseding Effect. This Amendment,
from and after the date hereof, embodies the entire agreement and understanding
between the parties hereto and supersedes and has merged into this Amendment all
prior oral and written agreements on the same subjects by and between the
parties hereto with the effect that this Amendment, shall control with respect
to the specific subjects hereof and thereof.
Section 8. Severability. Whenever possible, each provision of this
Amendment and the other Amendment Documents and any other statement, instrument
or transaction contemplated hereby or thereby or relating hereto or thereto
shall be interpreted in such manner as to be effective, valid and enforceable
under the applicable law of any jurisdiction, but, if any provision of this
Amendment, the other Amendment Documents or any other statement, instrument or
transaction contemplated hereby or thereby or relating hereto or thereto shall
be held to be prohibited, invalid or unenforceable under the applicable law,
such provision shall be ineffective in such jurisdiction only to the extent of
such prohibition, invalidity or unenforceability, without invalidating or
rendering unenforceable the remainder of such provision or the remaining
provisions of this Amendment, the other Amendment Documents or any other
statement, instrument or transaction contemplated hereby or thereby or relating
hereto or thereto in such jurisdiction, or affecting the effectiveness, validity
or enforceability of such provision in any other jurisdiction.
Section 9. Successors. The Amendment Documents shall be binding upon
the Borrower, the Lenders, and the Agent and their respective successors and
assigns, and shall inure to the benefit of the Borrower, the Lenders, and the
Agent and the successors and assigns of the Lenders and the Agent.
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Section 10. Legal Expenses. As provided in Section 9.2 of the Credit
Agreement, the Borrower agrees to reimburse the Agent, upon execution of this
Amendment, for all reasonable out-of-pocket expenses (including attorney' fees
and legal expenses of Xxxxxx & Xxxxxxx LLP, counsel for the Agent) incurred in
connection with the Credit Agreement, including in connection with the
negotiation, preparation and execution of the Amendment Documents and all other
documents negotiated, prepared and executed in connection with the Amendment
Documents, and in enforcing the obligations of the Borrower under the Amendment
Documents, and to pay and save the Agent and the Lenders harmless from all
liability for, any stamp or other taxes which may be payable with respect to the
execution or delivery of the Amendment Documents, which obligations of the
Borrower shall survive any termination of the Credit Agreement.
Section 11. Headings. The headings of various sections of this
Amendment have been inserted for reference only and shall not be deemed to be a
part of this Amendment.
Section 12. Counterparts. The Amendment Documents may be executed in
several counterparts as deemed necessary or convenient, each of which, when so
executed, shall be deemed an original, provided that all such counterparts shall
be regarded as one and the same document, and either party to the Amendment
Documents may execute any such agreement by executing a counterpart of such
agreement.
Section 13. Governing Law. THE AMENDMENT DOCUMENTS SHALL BE GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT
OF LAW PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO
NATIONAL BANKS, THEIR HOLDING COMPANIES AND THEIR AFFILIATES.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date and year first above written.
MATRIX BANCORP, INC.
By
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Its
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U.S. BANK NATIONAL ASSOCIATION
By
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Its
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[Signature Page to Sixth Amendment to Credit Agreement]
S - 1
CONSENT AND AGREEMENT BY GUARANTORS
This Consent and Agreement by Guarantors ("Consent") is made by the
undersigned (each a "Guarantor," and collectively, the "Guarantors"), in favor
of U.S. BANK NATIONAL ASSOCIATION, a national banking association, as Agent for
the Lenders party to the Credit Agreement described below (the "Agent"), and
such Lenders and is dated as of March 31, 2004.
WHEREAS, each Guarantor executed a Guaranty ("Guaranty") in favor of
the Agent and the Lenders dated as of December 27, 2000, by which Guarantor
guaranteed the obligations of Matrix Bancorp, Inc., a Colorado corporation, (the
"Borrower") to the Agent and the Lenders, including, without limitation, the
Borrower's obligations to the Agent and the Lenders under that certain Credit
Agreement dated as of December 27, 2000 by and between the Borrower, the Lenders
party thereto and the Agent (the "Credit Agreement");
WHEREAS, the Borrower desires to amend the Credit Agreement to modify
certain provisions of the Credit Agreement pursuant to a Sixth Amendment to
Credit Agreement of even date herewith by and between the Borrower, the Lenders
party to the Credit Agreement, and the Agent (the "Amendment");
WHEREAS, the Agent has refused to execute the Amendment unless the
Guarantors execute this Consent;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and to induce the Agent and the
Lenders to amend certain provisions of the Credit Agreement, and in
consideration of their doing so, the Guarantors hereby acknowledge and consent
to the amendments to the Credit Agreement as provided under the Amendment,
substantially in the form previously provided to the Guarantors, and agree that
all obligations of the Borrower under the Credit Agreement as amended by the
Amendment are subject to their respective Guaranty.
Each Guarantor acknowledges and agrees that this Consent shall not in
any way extinguish any of the obligations of the Guarantor under the Guaranty,
which obligations shall continue and shall not in any circumstances be
terminated, extinguished or discharged hereby, but the terms of such Guaranty
continue in full force and effect.
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IN WITNESS WHEREOF, this Consent has been duly executed by the
undersigned the day and year first above written.
ABS SCHOOL SERVICES, LLC
By
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Its
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EQUI-MOR HOLDINGS, INC.
By
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Its
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MATRIX FUNDING CORPORATION
By
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Its
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MATRIX BANCORP TRADING, INC. (f/k/a Matrix Capital
Markets, Inc.)
By
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Its
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MATRIX ASSET MANAGEMENT CORP. (f/k/a United Special
Services, Inc.)
By
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Its
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SECRETARY'S CERTIFICATE
I, _____________________, hereby certify to U.S. Bank National
Association, as "Agent" on behalf of the "Lenders" (as such terms are defined in
the Credit Agreement), on behalf of Matrix Bancorp, Inc., a Colorado corporation
(the "Company"), as follows:
1. I am the duly elected and acting Secretary of the Company.
2. The resolutions adopted by the Board of Directors of the Company on
December 27, 2000, a true, complete, and correct copy of which were attached to
a certificate of the Secretary of the Company dated December 27, 2000, remain in
full force and effect as of the date hereof. Such resolutions authorize the
execution and delivery by the officers of the Company listed in paragraph 4
below of the Sixth Amendment to the Credit Agreement dated as of March 31, 2004
and the other Amendments Documents (as defined in such Sixth Amendment) to which
the Company is a party.
3. There has been no amendment to the Articles of Incorporation or
Bylaws of the Company since true and accurate copies of the same were delivered
to the Bank with a certificate of the Secretary of the Company dated December
27, 2000.
4. The following persons are duly elected and acting incumbents in the
corporate offices indicated, and the signature set forth opposite the name of
each such person is the true and genuine specimen signature of such person:
Name and Title Signature
T. Xxxxx XxXxxxxxx Senior Vice President
Xxxxx X. Xxxxx Chief Financial Officer
IN WITNESS WHEREOF, I have executed this Secretary's Certificate this
___ day of ____________, 2004.
____________________________________
Name: ______________________________
Title: Secretary
