EXHIBIT 10.2
SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), made and
entered into as of July 27, 2001, 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 and U.S. Bank National Association, in its capacities as a
Lender and as Agent, entered into a Credit Agreement dated as of December 27,
2000, as amended by that certain First Amendment to Credit Agreement dated as of
March 5, 2001 (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.
2.1 The definition of "Eurodollar Rate" contained in Section 1.1 of
the Credit Agreement is hereby amended in its entirety to read as follows:
"Eurodollar Rate": With respect to any date of determination, the
average offered rate for one month deposits in United States dollars,
which rate appears on Telerate page 3750 as of 11:00 a.m., London time
(or such other time as of which such rate appears) on such date of
determination, or the rate for such deposits determined by the Agent
at such time based on such other published service of general
application as shall be selected by the Agent for such purpose,
provided that in lieu of determining the rate in the foregoing manner,
at the option of the Agent, the Agent may determine the rate based on
rates at which one month deposits in United States dollars are offered
to the Agent in the interbank Eurodollar market at such time in an
amount approximately equal to the aggregate principal amount of the
Advances to which such rate is to apply. "Telerate page
3750" means the display designated as such on the Telerate reporting
system operated by Telerate System Incorporated (or such other page as
may replace such page 3750 for the purpose of displaying London
interbank offered rates of major banks for U.S. Dollar deposits).
2.2 Section 1.1 of the Credit Agreement is hereby amended by adding
the definitions of "MBCT II", "MBCT III", "Prime Rate" and "Prime Rate
Advance" in the correct alphabetical order to read as follows:
"MBCT II": Matrix Bancorp Capital Trust II, a Delaware statutory
business trust.
"MBCT III": Matrix Bancorp Capital Trust III, a Delaware
statutory business trust.
"Prime Rate": The greater of (a) the rate of interest from time
to time publicly announced by the Agent as its "prime rate" and (b)
Federal Funds Rate plus 0.50%. The Agent may lend to its customers at
rates that are at, above or below the Prime Rate. For purposes of
determining any interest rate hereunder or under any other Loan
Document which is based on the Prime Rate, such interest rate shall
change as and when the Prime Rate shall change.
"Prime Rate Advance": An Advance with respect to which the
interest rate is determined by reference to the Prime Rate.
2.3 The last sentence of Section 2.4 of the Credit Agreement is
deleted in its entirety and the following is substituted in lieu thereof:
If the Borrower shall fail to notify the Agent of the
continuation of any Eurodollar Rate Advances within the time required
by this Section, at the option of the Agent, such Advances shall, on
the last day of the Interest Period applicable thereto (A)
automatically be continued as Eurodollar Rate Advances of the same
type and the same Interest Period or (B) automatically be converted to
Prime Rate Advances.
2.4 Section 6.10 of the Credit Agreement is hereby amended to add the
following Sections 6.10(l), (m) and (n):
(l) Indebtedness of the Borrower to MBCT II in the form of junior
subordinated debentures, in an aggregate principal amount not to
exceed $12,000,000 at any time outstanding.
(m) Indebtedness of the Borrower to MBCT III in the form of
junior subordinated debentures, in an aggregate principal amount not
to exceed $15,000,000 at any time outstanding.
(n) Guaranty by the Borrower of Indebtedness of Matrix Settlement
and Clearance Services, LLC to U.S. Bank National Association or its
affiliates in an amount no greater than $3,000,000.
2.5 Except for references to such terms specifically so amended by
this Amendment, all remaining references to the term "Reference Rate" or
"Reference Rate Advance" contained in the Credit Agreement are hereby
amended to be references to the term "Prime Rate" or "Prime Rate Advance",
as applicable.
Section 3. Effectiveness of Amendments. The amendments contained in this
Amendment shall become effective provided the Agent shall have received at least
five (5) 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:
3.1 This Amendment duly executed by the Borrower.
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 delivered to the Lender with a certificate
of the Secretary of the Borrower dated December 27, 2000, 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.
3.3 Certified copies of all documents evidencing any necessary
corporate action, consent or governmental or regulatory approval (if any)
with respect to this Amendment.
3.4 The Consent and Reaffirmation of Guarantors, in the form attached
hereto as Exhibit A, duly executed by each Guarantor.
3.5 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.
Section 4. Representations, Warranties, Authority, No Adverse Claim.
4.1 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.
4.2 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,
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.
4.3 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.
Section 5. 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 6. 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 7. 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 8. 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.
Section 9. 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 10. 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 11. 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 12. 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.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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 /s/ Xxx X. Xxxxxx
-----------------------------------
Its President and Chief Executive
Officer
U.S. BANK NATIONAL ASSOCIATION
By /s/ Xxxxxxx Xxxxx
-----------------------------------
Its Vice President
RESIDENTIAL FUNDING CORPORATION
By
-----------------------------------
Its
--------------------------------
