EXHIBIT 10.7
FIFTH AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
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THIS DOCUMENT is entered into effective as of June 26, 1998, between MATRIX
FINANCIAL SERVICES CORPORATION, an Arizona corporation ("BORROWER"), the Lenders
listed on the signature page below, and BANK ONE, TEXAS, N.A., as Agent (in that
capacity "AGENT").
Borrower, Lenders, and Agent have entered into the Amended and Restated
Loan Agreement (as renewed, extended, amended, or restated, the "LOAN
AGREEMENT") dated as of January 31, 1997, providing for loans to Borrower both
on a revolving and a term basis. Borrower, Lenders, and Agent have agreed, upon
the following terms and conditions, to amend the Loan Agreement as provided in
PARAGRAPH 2 below.
Accordingly, for adequate and sufficient consideration, Borrower, Lenders, and
Agent agree as follows:
1. TERMS AND REFERENCES. Unless otherwise stated in this document (A)
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terms defined in the Loan Agreement have the same meanings when used in this
document and (B) all references to "SECTIONS," "SCHEDULES," and "EXHIBITS" are
to the Loan Agreement's sections, schedules, and exhibits.
2. AMENDMENT. SECTION 8.1(XI) is entirely amended as follows:
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(xi) Guaranty by the Companies of up to $20,000,000 principal and all
other indebtedness of Matrix Capital Corporation under a combination
revolving and term credit facility provided by Bank One, Texas, N.A., and
other lenders, as that facility may be renewed, extended, amended, or
restated from time to time.
3. 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 each party on the
signature pages of this document.
4. RATIFICATIONS. To induce Agent and Lenders to enter into this
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document, 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 documents, and certificates as Agent or any Lender may request
in order to create, perfect, preserve, and protect those guaranties, assurances,
and Liens.
5. REPRESENTATIONS. To induce Agent and Lenders to enter into this
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document, Borrower represents and warrants to Agent and Lenders that as of the
date of this document (A) Borrower 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 its 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 Borrower's legal and binding obligation, enforceable
against it in accordance with their respective 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 Loan
Agreement, and (D) no Material-Adverse Event, Default, or Potential Default
exists.
6. EXPENSES. Borrower shall pay all costs, fees, and expenses paid or
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incurred by Agent incident to this document, including, without limitation, the
reasonable fees and expenses of Agent's special
counsel in connection with the negotiation, preparation, delivery, and execution
of this document and any related documents.
7. MISCELLANEOUS. All references in the Loan Documents to the "Loan
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Agreement" refer to the Loan Agreement as amended by this document. This
document is a "Loan Document" referred to in the Loan 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 Loan 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 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.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGE FOLLOWS.]
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EXECUTED as of the date first stated in this Fifth Amendment to Restated
and Amended Loan Agreement.
MATRIX FINANCIAL SERVICES BANK ONE, TEXAS, N.A., as Agent, as a
CORPORATION, as Borrower Lender, and as Bank One
By /s/ Xxxxxx X. Osseslaer By /s/ Xxxx X. Xxxxxxx
____________________________________ __________________________________________
Xxxxxx X. Xxxxxxxx, Xxxx X. Xxxxxxx, Vice President
Executive Vice President
U.S. BANK NATIONAL ASSOCIATION, RESIDENTIAL FUNDING CORPORATION, as
formerly Colorado National Bank as a Lender a Lender
By /s/ Xxxxxxxx Xxxxxxxx By /s/ L.L. Xxxxxxxxxxxx
_____________________________________ ___________________________________________
Xxxxxxxx Xxxxxxxx, Vice President L.L. Xxxxxxxxxxxx, Director
CONSENT AND AGREEMENT
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To induce Agent and Lenders to enter into this document, the undersigned
(a) consents and agrees to this document's execution and delivery, (b) ratifies
and confirms that all guaranties, assurances, Liens, and subordinations granted,
conveyed, or assigned to Agent and Lenders 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) agrees 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, documents, 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) represents and warrants 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) the 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), the undersigned will be -- Solvent, and (e) waives notice of
acceptance of this consent and agreement, which consent and agreement binds the
undersigned and its successors and permitted assigns and inures to Agent, each
Lender, and their successors and permitted assigns.
MATRIX CAPITAL CORPORATION, as Guarantor
By /s/ Xxx X. Xxxxxx
_____________________________________
Xxx X. Xxxxxx, Chief Executive
Officer and President
