Exhibit 10.3
GUARANTY
THIS GUARANTY, dated as of September 29, 2000, is made and given by
MATRIX BANCORP, INC., a corporation organized under the laws of the State of
Colorado (the "Guarantor"), in favor of U.S. BANK NATIONAL ASSOCIATION, a
national banking association (the "Agent"), and the Lenders from time to time
party to the Credit Agreement defined below.
RECITALS
A. Matrix Financial Services Corporation, an Arizona corporation (the
"Borrower"), the Agent and the Lenders have entered into a Credit Agreement
dated as of September 29, 2000 (as the same may hereafter be amended, restated,
or otherwise modified from time to time, the "Credit Agreement") pursuant to
which the Agent and the Lenders have agreed to extend to the Borrower certain
credit accommodations.
B. It is a condition precedent to the obligation of the Agent and the
Lenders to extend credit accommodations pursuant to the terms of the Credit
Agreement that this Guaranty be executed and delivered by the Guarantor.
C. The Guarantor is the indirect owner of all of the issued and
outstanding capital stock of the Borrower
D. The Guarantor expects to derive benefits from the extension of
credit accommodations to the Borrower by the Agent and the Lenders and finds it
advantageous, desirable and in its their best interests to execute and deliver
this Guaranty to the Agent.
NOW, THEREFORE, In consideration of the credit accommodations to be
extended to the Borrower and for other good and valuable consideration, the
Guarantor hereby covenants and agrees with the Agent as follows:
Section 1. Defined Terms. As used in this Guaranty, the following
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terms shall have the meaning indicated:
"Agent" shall have the meaning indicated in the opening paragraph
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hereof.
"Borrower" shall have the meaning indicated in Recital A.
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"Credit Agreement" shall have the meaning indicated in Recital A.
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"Guarantor" shall have the meaning indicated in the opening paragraph
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hereof.
"Lenders" shall have the meaning indicated in the Credit Agreement.
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"Loan Documents" shall have the meaning indicated in the Credit
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Agreement.
"Obligations" shall mean all indebtedness, liabilities and obligations
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of the Borrower to the Agent or the Lenders of every kind, nature or description
under the Credit Agreement and the Loan Documents, including the Borrower=s
obligation on any promissory note or notes under the Credit Agreement and any
note or notes hereafter issued in substitution or replacement thereof, in all of
the foregoing cases whether due or to become due, and whether now existing or
hereafter arising or incurred
"Person" shall mean any individual, corporation, partnership, limited
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partnership, limited liability company, joint venture, firm, association, trust,
unincorporated organization, government or governmental agency or political
subdivision or any other entity, whether acting in an individual, fiduciary or
other capacity.
Section 2. The Guaranty. The Guarantor hereby absolutely and
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unconditionally guarantees to the Agent and the Lenders the payment when due
(whether at a stated maturity or earlier by reason of acceleration or otherwise)
and performance of the Obligations.
Section 3. Continuing Guaranty. This Guaranty is an absolute,
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unconditional and continuing guaranty of payment and performance of the
Obligations, and the obligations of the Guarantor hereunder shall not be
released, in whole or in part, by any action or thing which might, but for this
provision of this Guaranty, be deemed a legal or equitable discharge of a surety
or guarantor, other than irrevocable payment and performance in full of the
Obligations. No notice of the Obligations to which this Guaranty may apply, or
of any renewal or extension thereof need be given to the Guarantor and none of
the foregoing acts shall release the Guarantor from liability hereunder. The
Guarantor hereby expressly waives (a) demand of payment, presentment, protest,
notice of dishonor, nonpayment or nonperformance on any and all forms of the
Obligations; (b) notice of acceptance of this Guaranty and notice of any
liability to which it may apply; (c) all other notices and demands of any kind
and description relating to the Obligations now or hereafter provided for by any
agreement, statute, law, rule or regulation; and (d) any and all defenses of the
Borrower pertaining to the Obligations except for the defense of discharge by
payment. The Guarantor shall not be exonerated with respect to the Guarantor=s
liabilities under this Guaranty by any act or thing except irrevocable payment
and performance of the Obligations, it being the purpose and intent of this
Guaranty that the Obligations constitute the direct and primary obligations of
the Guarantor and that the covenants, agreements and all obligations of the
Guarantor hereunder be absolute, unconditional and irrevocable. The Guarantor
shall be and remain liable for any deficiency remaining after foreclosure of any
mortgage, deed of trust or security agreement securing all or any part of the
Obligations, whether or not the liability of the Borrower or any other Person
for such deficiency is discharged pursuant to statute, judicial decision or
otherwise. The acceptance of this Guaranty by the Agent is not intended and
does not release any liability previously existing of any guarantor or surety of
any
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indebtedness of the Borrower to the Agent and the Lenders.
Section 4. Other Transactions. The Agent and the Lenders are
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expressly authorized (a) to exchange, surrender or release with or without
consideration any or all collateral and security which may at any time be placed
with any of them by the Borrower or by any other Person, or to forward or
deliver any or all such collateral and security directly to the Borrower for
collection and remittance or for credit, or to collect the same in any other
manner without notice to the Guarantor; and (b) to amend, modify, extend or
supplement the Credit Agreement, any note or other instrument evidencing the
Obligations or any part thereof and any other agreement with respect to the
Obligations, waive compliance by the Borrower or any other Person with the
respective terms thereof and settle or compromise any of the Obligations without
notice to the Guarantor and without in any manner affecting the absolute
liabilities of the Guarantor hereunder. No invalidity, irregularity or
unenforceability of all or any part of the Obligations or of any security
therefor or other recourse with respect thereto shall affect, impair or be a
defense to this Guaranty. The liabilities of the Guarantor hereunder shall not
be affected or impaired by any failure, delay, neglect or omission on the part
of the Agent or the Lenders to realize upon any of the Obligations of the
Borrower to the Agent or the Lenders, or upon any collateral or security for any
or all of the Obligations, nor by the taking by the Agent or any Lender of (or
the failure to take) any other guaranty or guaranties to secure the Obligations,
nor by the taking by the Agent or any Lender of (or the failure to take or the
failure to perfect its security interest in or other lien on) collateral or
security of any kind. No act or omission of the Agent or any Lender, whether or
not such action or failure to act varies or increases the risk of, or affects
the rights or remedies of the Guarantor, shall affect or impair the obligations
of the Guarantor hereunder. The Guarantor acknowledges that this Guaranty is in
effect and binding without reference to whether this Guaranty is signed by any
other Person or Persons, that possession of this Guaranty by the Agent shall be
conclusive evidence of due delivery hereof by the Guarantor and that this
Guaranty shall continue in full force and effect, both as to the Obligations
then existing and/or thereafter created, notwithstanding the release of or
extension of time to any other guarantor of the Obligations or any part thereof.
Section 5. Actions Not Required. The Guarantor hereby waives any and
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all right to cause a marshalling of the assets of the Borrower or any other
action by any court or other governmental body with respect thereto or to cause
the Agent or any Lender to proceed against any security for the Obligations or
any other recourse which the Agent or any Lender may have with respect thereto
and further waives any and all requirements that the Agent or any Lender
institute any action or proceeding at law or in equity, or obtain any judgment,
against the Borrower or any other Person, or with respect to any collateral
security for the Obligations, as a condition precedent to making demand on or
bringing an action or obtaining and/or enforcing a judgment against, the
Guarantor upon this Guaranty. The Guarantor further acknowledges that time is
of the essence with respect to the Guarantor's obligations under this Guaranty.
Any remedy or right hereby granted which shall be found to be unenforceable as
to any Person or under any circumstance, for any reason, shall in no way limit
or prevent the enforcement of such remedy or right as to any other Person or
circumstance, nor shall such unenforceability limit or
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prevent enforcement of any other remedy or right hereby granted.
Section 6. Subrogation. The Guarantor shall not exercise any right
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of subrogation until such time as all Obligations shall have been indefeasably
paid in full in cash and all commitments to extend credit terminated. In the
case of the liquidation, winding-up or bankruptcy of the Borrower (whether
voluntary or involuntary) or in the event that the Borrower shall make an
arrangement or composition with its creditors, the Agent and the Lenders shall
have the right to rank first for their full claim and to receive all
distributions or other payments with respect thereto until their claims have
been paid in full, and the Guarantor shall continue to be liable to the Agent
and the Lenders for any balance of the Obligations which may be owing to the
Agent and/or the Lenders by the Borrower. The Guarantor, to the extent
permitted by law, irrevocably releases and waives any subrogation rights or
right of contribution or indemnity (whether arising by operation of law,
contract or otherwise) it may have against the Borrower if and to the extent any
such right or rights would give rise to a claim under the U.S. Bankruptcy Code
that payments or transfers to the Agent or the Lenders with respect to the
Obligations constitute a preference in favor of the Guarantor or a claim under
the Bankruptcy Code that any such preference is recoverable from the Agent or
the Lenders.
Section 7. Application of Payments. Any and all payments upon the
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Obligations made by the Guarantor or by any other Person, and/or the proceeds of
any or all collateral or security for any of the Obligations, may be applied by
the Agent on such items of the Obligations as the Agent may elect.
Section 8. Recovery of Payment. If any payment received by the Agent
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or any Lender and applied to the Obligations is subsequently set aside,
recovered, rescinded or required to be returned for any reason (including,
without limitation, the bankruptcy, insolvency or reorganization of the Borrower
or any other obligor), the Obligations to which such payment was applied shall
for the purposes of this Guaranty be deemed to have continued in existence,
notwithstanding such application, and this Guaranty shall be enforceable as to
such Obligations as fully as if such application had never been made.
References in this Guaranty to amounts "irrevocably paid" or to "irrevocable
payment" refer to payments that cannot be set aside, recovered, rescinded or
required to be returned for any reason.
Section 9. Borrower's Financial Condition. The Guarantor is familiar
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with the financial condition of the Borrower, and the Guarantor has executed and
delivered this Guaranty based on the Guarantor's own judgment and not in
reliance upon any statement or representation of the Agent or any Lender.
Neither the Agent nor any Lender shall have any obligation to provide the
Guarantor with any advice whatsoever or to inform the Guarantor at any time of
the Agent's or any Lender's actions, evaluations or conclusions on the financial
condition or any other matter concerning the Borrower.
Section 10. Remedies. All remedies afforded to the Agent by reason
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of this Guaranty are separate and cumulative remedies and it is agreed that no
one of such remedies,
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whether or not exercised by the Agent, shall be deemed to be in exclusion of any
of the other remedies available to the Agent and no one of such remedies shall
in any way limit or prejudice any other legal or equitable remedy which the
Agent may have hereunder and with respect to the Obligations. Mere delay or
failure to act shall not preclude the exercise or enforcement of any rights and
remedies available to the Agent.
Section 11. Bankruptcy of the Borrower. The Guarantor expressly
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agrees that the liabilities and obligations of the Guarantor under this Guaranty
shall not in any way be impaired or otherwise affected by the institution by or
against the Borrower or any other Person of any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or any other similar
proceedings for relief under any bankruptcy law or similar law for the relief of
debtors and that any discharge of any of the Obligations pursuant to any such
bankruptcy or similar law or other law shall not diminish, discharge or
otherwise affect in any way the obligations of the Guarantor under this
Guaranty, and that upon the institution of any of the above actions, such
obligations shall be enforceable against the Guarantor.
Section 12. Costs and Expenses. The Guarantor will pay or reimburse
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the Agent on demand for all out-of-pocket expenses (including in each case all
reasonable fees and expenses of counsel) incurred by the Agent arising out of or
in connection with the enforcement of this Guaranty against the Guarantor or
arising out of or in connection with any failure of the Guarantor to fully and
timely perform the obligations of the Guarantor hereunder.
Section 13. Waivers and Amendments. This Guaranty can be waived,
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modified, amended, terminated or discharged only explicitly in a writing signed
by the Agent. A waiver so signed shall be effective only in the specific
instance and for the specific purpose given.
Section 14. Notices. Any notice or other communication to any party
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in connection with this Guaranty shall be in writing and shall be sent by manual
delivery, telegram, telex, facsimile transmission, overnight courier or United
States mail (postage prepaid) addressed to such party at the address specified
on the signature page hereof, or at such other address as such party shall have
specified to the other party hereto in writing. All periods of notice shall be
measured from the date of delivery thereof if manually delivered, from the date
of sending thereof if sent by telegram, telex or facsimile transmission, from
the first business day after the date of sending if sent by overnight courier,
or from four days after the date of mailing if mailed.
Section 15. Guarantor Acknowledgements. The Guarantor hereby
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acknowledges that (a) counsel has advised the Guarantor in the negotiation,
execution and delivery of this Guaranty, (b) the Agent and the Lenders have no
fiduciary relationship to the Guarantor, the relationship being solely that of
debtor and creditor, and (c) no joint venture exists between the Guarantor and
the Agent or the Lenders.
Section 16. Representations and Warranties. Matrix Bancorp, Inc.
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hereby represents and warrants to the Agent for the benefit of the Agent and the
Lenders that it is a
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corporation organized, validly existing and in good standing under the laws of
the State of Colorado and has the power and authority and the legal right to own
and operate its properties and to conduct the business in which it is currently
engaged. Matrix Bancorp, Inc. further represents and warrants to the Agent that:
16(a) It has the power and authority and the legal right to
execute and deliver, and to perform its obligations under, this Guaranty
and has taken all necessary action required by its form of organization to
authorize such execution, delivery and performance.
16(b) This Guaranty constitutes its legal, valid and binding
obligation enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
16(c) The execution, delivery and performance of this Guaranty
will not (i) violate any provision of any law, statute, rule or regulation
or any order, writ, judgment, injunction, decree, determination or award of
any court, governmental agency or arbitrator presently in effect having
applicability to it, (ii) violate or contravene any provision of its
organizational documents, or (iii) result in a breach of or constitute a
default under any indenture, loan or credit agreement or any other
agreement, lease or instrument to which it is a party or by which it or any
of its properties may be bound or result in the creation of any lien
thereunder. It is not in default under or in violation of any such law,
statute, rule or regulation, order, writ, judgment, injunction, decree,
determination or award or any such indenture, loan or credit agreement or
other agreement, lease or instrument in any case in which the consequences
of such default or violation could have a material adverse effect on its
business, operations, properties, assets or condition (financial or
otherwise).
16(d) No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with, or exemption by,
any governmental or public body or authority is required on its part to
authorize, or is required in connection with the execution, delivery and
performance of, or the legality, validity, binding effect or enforceability
of, this Guaranty.
16(e) There are no actions, suits or proceedings pending or, to
its knowledge, threatened against or affecting it or any of its properties
before any court or arbitrator, or any governmental department, board,
agency or other instrumentality which, if determined adversely to it, would
have a material adverse effect on its business, operations, property or
condition (financial or otherwise) or on its ability to perform its
obligations hereunder.
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16(f) It expects to derive benefits from the transactions
resulting in the creation of the Obligations. The Agent may rely
conclusively on the continuing warranty, hereby made, that it continues to
be benefitted by the Agent's and the Lenders' extension of credit
accommodations to the Borrower and neither the Agent nor any Lender shall
have any duty to inquire into or confirm the receipt of any such benefits,
and this Guaranty shall be effective and enforceable by the Agent without
regard to the receipt, nature or value of any such benefits.
Section 17. Continuing Guaranty; Assignments under Credit Agreement.
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This Guaranty shall (a) remain in full force and effect until irrevocable
payment in full of the Obligations and the expiration of the obligations, if
any, of the Agent and the Lenders to extend credit accommodations to the
Borrower, (b) be binding upon the Guarantor, its successors and assigns and (c)
inure to the benefit of, and be enforceable by, the Agent and the Lenders and
their successors, transferees, and assigns. Without limiting the generality of
the foregoing clause (c), the Agent or any Lender may assign or otherwise
transfer all or any portion of its rights and obligations under the Credit
Agreement to any other Persons to the extent and in the manner provided in the
Credit Agreement and may similarly transfer all or any portion of its rights
under this Guaranty to such Persons.
Section 18. Reaffirmation. The Guarantor agrees that when so
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requested by the Agent from time to time it will promptly execute and deliver to
the Agent a written reaffirmation of this Guaranty in such form as the Agent may
require.
Section 19. Revocation. Notwithstanding any other provision hereof,
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the Guarantor may revoke this Guaranty prospectively as to future transactions
by written notice to that effect actually received by the Agent. No such
revocation shall release, impair or affect in any manner any liability hereunder
with respect to Obligations created, contracted, assumed or incurred prior to
receipt by the Agent of written notice of revocation, or Obligations created,
contracted, assumed or incurred after receipt of such notice pursuant to any
contract entered into by the Agent prior to receipt of such notice, or any
renewals or extensions thereof, theretofore or thereafter made, or any interest
accrued or accruing on such Obligations, or all other costs, expenses and
attorneys' fees arising from such Obligations.
Section 20. Governing Law and Construction. THE VALIDITY,
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CONSTRUCTION AND ENFORCEABILITY OF THIS GUARANTY SHALL BE GOVERNED BY THE LAWS
OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES
THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS OF THE UNITED STATES APPLICABLE TO
NATIONAL BANKS. Whenever possible, each provision of this Guaranty and any
other statement, instrument or transaction contemplated hereby or relating
hereto shall be interpreted in such manner as to be effective and valid under
such applicable law, but, if any provision of this Guaranty or any other
statement, instrument or transaction contemplated hereby or relating hereto
shall be held to be prohibited or invalid under such applicable law, such
provision shall be
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ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Guaranty or any other statement, instrument or transaction contemplated hereby
or relating hereto.
Section 21. Consent to Jurisdiction. AT THE OPTION OF THE AGENT,
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THIS GUARANTY MAY BE ENFORCED IN ANY FEDERAL OR STATE COURT SITTING HENNEPIN
COUNTY, MINNESOTA; AND THE GUARANTOR CONSENTS TO THE JURISDICTION AND VENUE OF
ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUMS IS NOT
CONVENIENT. IN THE EVENT THE GUARANTOR COMMENCES ANY ACTION IN ANOTHER
JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY OR
INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS GUARANTY, THE AGENT AT ITS
OPTION SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE
JURISDICTIONS AND VENUES ABOVE- DESCRIBED, OR IF SUCH TRANSFER CANNOT BE
ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT
PREJUDICE.
Section 22. Waiver of Jury Trial. EACH OF THE GUARANTOR, THE AGENT
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AND THE LENDERS, BY THEIR ACCEPTANCE OF THIS GUARANTY, IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 23. Counterparts. This Guaranty may be executed in any
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number of counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and
the same instrument.
Section 24. General. All representations and warranties contained in
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this Guaranty or in any other agreement between the Guarantor and the Agent
shall survive the execution, delivery and performance of this Guaranty and the
creation and payment of the Obligations. Captions in this Guaranty are for
reference and convenience only and shall not affect the interpretation or
meaning of any provision of this Guaranty.
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IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as of the
date first above written.
GUARANTOR:
MATRIX BANCORP, INC.
By /s/ Xxxxx X. Xxxxx
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Title S.V.P.
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Address:
Matrix Bancorp, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Fax Number: (000) 000-0000
Address for the Agent:
U.S. Bank National Association
000 00/xx/ Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Fax Number: (000) 000-0000
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