Exhibit 10.2
SECOND AMENDED AND RESTATED GUARANTY
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THIS SECOND AMENDED AND RESTATED GUARANTY is executed as of July 30, 1999,
by MATRIX BANCORP, INC. ("Guarantor") for the benefit of BANK ONE, TEXAS, N.A.,
a national banking association (in its capacity as Administrative Agent for the
Lenders now or in the future party to the Loan Agreement described below,
"Administrative Agent").
MATRIX FINANCIAL SERVICES CORPORATION, an Arizona corporation ("Borrower"),
Administrative Agent, and Lenders have executed the Second Amended and Restated
Loan Agreement (as renewed, extended, amended, or restated, the "Loan
Agreement") dated as of July 30, 1999. The execution and delivery of this
guaranty are requirements to Administrative Agent's and Lenders' execution of
the Loan Agreement, are integral to the transactions contemplated by the Loan
Documents, and are conditions precedent to Lenders' obligations to extend credit
under the Loan Agreement.
ACCORDINGLY, for adequate and sufficient consideration, Guarantor agrees
with Administrative Agent and Lenders as follows:
1. Definitions. Terms defined in the Loan Agreement have the same
meanings when used, unless otherwise defined, in this guaranty. As used in this
guaranty:
"Administrative Agent" is defined in the preamble to this guaranty and
includes its successor appointed under the Loan Documents and acting as
Administrative Agent for Lenders under the Loan Documents.
"Borrower" is defined in the recitals to this guaranty and includes,
without limitation, Borrower, Borrower as a debtor-in-possession, and any
receiver, trustee, liquidator, conservator, custodian, or similar party
appointed for Borrower or for all or substantially all of Borrower's assets
under any Debtor Law.
"Loan Agreement" is defined in the recitals to this guaranty.
"Guaranteed Debt" means the Obligation, as defined in the Loan Agreement,
and all present and future costs, attorneys' fees, and expenses incurred by
Administrative Agent or any Lender to enforce Borrower's, Guarantor's, or any
other obligor's payment of any of the Obligation, including, without limitation,
all present and future amounts that would become due but for the operation of
Sections 502 or 506 or any other provision of Title 11 of the United States Code
and all present and future accrued and unpaid interest (including, without
limitation, all post-petition interest if Borrower voluntarily or involuntarily
becomes subject to any Debtor Law).
"Guarantor" is defined in the preamble to this guaranty.
"Subordinated Debt" means all present and future obligations of Borrower to
Guarantor, whether those obligations are (a) direct, indirect, fixed,
contingent, liquidated, unliquidated, joint, several, or joint and several, (b)
due or to become due to Guarantor, (c) held by or are to be held by Guarantor,
(d) created directly or acquired by assignment or otherwise, or (e) evidenced in
writing.
2. Guaranty. Guarantor guarantees to Administrative Agent and Lenders the
prompt payment of the Guaranteed Debt at, and at all times after, maturity (by
acceleration or otherwise). This is an absolute,
irrevocable, and continuing guaranty, and the circumstance that at any time or
from time to time the Guaranteed Debt may be paid in full does not affect the
obligation of Guarantor with respect to the Guaranteed Debt incurred after that
time. This guaranty remains in effect until the Guaranteed Debt is fully paid
and performed and all commitments to extend any credit under the Loan Agreement
have terminated. Guarantor may not rescind or revoke its obligations with
respect to the Guaranteed Debt.
3. Representations and Warranties. Guarantor represents and warrants to
Administrative Agent that (a) Guarantor has the power and authority to execute,
deliver, and perform this guaranty, which execution, delivery, and performance
does not violate any Law or agreement by which Guarantor or any of Guarantor's
assets is bound, (b) the value of the consideration received and to be received
by Guarantor is reasonably worth at least as much as Guarantor's liability under
this guaranty, and that liability may reasonably be expected to directly or
indirectly benefit Guarantor, (c) this guaranty constitutes a legal and binding
obligation of Guarantor, enforceable against Guarantor in accordance with its
terms, except as enforceability may be limited by applicable Debtor Laws and
general principles of equity, (d) all financial statements and other information
about Guarantor's financial condition and cash flow are true and correct in all
material respects and fairly present Guarantor's financial condition, cash
flows, material liabilities, and (e) Guarantor is Solvent.
4. Cumulative Rights. If Guarantor becomes liable for any indebtedness
owing by Borrower to Administrative Agent or any Lender, other than under this
guaranty, that liability may not be in any manner impaired or affected by this
guaranty. The Rights of Administrative Agent or Lenders under this guaranty are
cumulative of any and all other Rights that Administrative Agent or Lenders may
ever have against Guarantor. The exercise by Administrative Agent or Lenders of
any Right under this guaranty or otherwise does not preclude the concurrent or
subsequent exercise of any other Right.
5. Payment Upon Demand. If a Default exists, Guarantor shall, on demand
and without further notice of dishonor and without any notice having been given
to Guarantor previous to that demand of either the acceptance by Administrative
Agent or Lenders of this guaranty or the creation or incurrence of any
Guaranteed Debt, pay the amount of the Guaranteed Debt then due and payable to
Administrative Agent and Lenders. It is not necessary for Administrative Agent
or Lenders, in order to enforce that payment by Guarantor, first or
contemporaneously to institute suit or exhaust remedies against Borrower or
others liable on that indebtedness or to enforce Rights against any collateral
securing that indebtedness.
6. Subordination. The Subordinated Debt is expressly subordinated to the
full and final payment of the Guaranteed Debt. Guarantor agrees not to accept
any payment of any Subordinated Debt from Borrower if a Default exists. If
Guarantor receives any payment of any Subordinated Debt in violation of the
foregoing, Guarantor shall hold that payment in trust for Administrative Agent
and Lenders and promptly turn it over to Administrative Agent, in the form
received (with any necessary endorsements), to be applied to the Guaranteed
Debt.
7. Subrogation and Contribution. Guarantor may not assert, enforce, or
otherwise exercise any Right of subrogation to any of the Rights or Liens of
Administrative Agent or Lenders or any other beneficiary against Borrower or any
other obligor on the Guaranteed Debt or any collateral or other security or any
Right of recourse, reimbursement, subrogation, contribution, indemnification, or
similar Right against Borrower or any other obligor on any Guaranteed Debt or
any guarantor of it. Guarantor irrevocably waives all of the foregoing Rights
(whether they arise in equity, under contract, by statute, under common Law, or
otherwise). Guarantor irrevocably waives the benefit of, and any Right to
participate in, any collateral or other
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security given to Administrative Agent or Lenders or any other beneficiary to
secure payment of any Guaranteed Debt.
8. No Release. Guarantor's obligations under this guaranty may not be
released, diminished, or affected by the occurrence of any one or more of the
following events: (a) any taking or accepting of any other security or
assurance for any Guaranteed Debt; (b) any release, surrender, exchange,
subordination, impairment, or loss of any collateral securing any Guaranteed
Debt; (c) any full or partial release of the liability of any other obligor on
the Obligation; (d) the modification of, or waiver of compliance with, any terms
of any other Loan Document; (e) the insolvency, bankruptcy, or lack of corporate
or partnership power of any party at any time liable for any Guaranteed Debt,
whether now existing or occurring in the future; (f) any renewal, extension, or
rearrangement of any Guaranteed Debt or any adjustment, indulgence, forbearance,
or compromise that may be granted or given by Administrative Agent or any Lender
to any other obligor on the Obligation; (g) any neglect, delay, omission,
failure, or refusal of Administrative Agent or any Lender to take or prosecute
any action in connection with the Guaranteed Debt; (h) any failure of
Administrative Agent or any Lender to notify Guarantor of any renewal,
extension, or assignment of any Guaranteed Debt, or the release of any security
or of any other action taken or refrained from being taken by Administrative
Agent or any Lender against Borrower or any new agreement between Administrative
Agent, any Lender, and Borrower, it being understood that neither Administrative
Agent nor any Lender is required to give Guarantor any notice of any kind under
any circumstances whatsoever with respect to or in connection with any
Guaranteed Debt, other than any notice required to be given to Guarantor
elsewhere in this guaranty; (i) the unenforceability of any Guaranteed Debt
against any party because it exceeds the amount permitted by Law, the act of
creating it is ultra xxxxx, the officers creating it exceeded their authority or
violated their fiduciary duties in connection with it, or otherwise; or (j) any
payment of the Obligation to Administrative Agent or Lenders is held to
constitute a preference under any Debtor Law or for any other reason
Administrative Agent or any Lender is required to refund that payment or make
payment to someone else (and in each such instance this guaranty will be
reinstated in an amount equal to that payment).
9. Waivers. Guarantor waives all Rights by which it might be entitled to
require suit on an accrued Right of action in respect of any Guaranteed Debt or
require suit against Borrower or others, whether arising under Section 34.02 of
the Texas Business and Commerce Code, as amended (regarding its Right to require
Administrative Agent or Lenders to xxx Borrower on accrued Right of action
following its written notice to Administrative Agent or Lenders), Section 17.001
of the Texas Civil Practice and Remedies Code, as amended (allowing suit against
it without suit against Borrower, but precluding entry of judgment against it
before entry of judgment against Borrower), Rule 31 of the Texas Rules of Civil
Procedure, as amended (requiring Administrative Agent or Lenders to join
Borrower in any suit against it unless judgment has been previously entered
against Borrower), or otherwise.
10. Loan Agreement Provisions. Guarantor acknowledges that certain (a)
representations and warranties in the Loan Agreement are applicable to Guarantor
and confirms that each such representation and warranty is true and correct, and
(b) covenants and other provisions in the Loan Agreement are applicable to
Guarantor or are imposed upon Guarantor and agrees to promptly and properly
comply with or be bound by each of them.
11. Reliance and Duty to Remain Informed. Guarantor confirms that it has
executed and delivered this guaranty after reviewing the terms and conditions of
the Loan Documents and such other information as it has deemed appropriate in
order to make its own credit analysis and decision to execute and deliver this
guaranty. Guarantor confirms that it has made its own independent investigation
with respect to Borrower's creditworthiness and is not executing and delivering
this guaranty in reliance on any representation
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or warranty by Administrative Agent or any Lender as to that creditworthiness.
Guarantor expressly assumes all responsibilities to remain informed of the
financial condition of Borrower and any circumstances affecting Borrower's
ability to perform under the Loan Documents to which it is a party or any
collateral securing any Guaranteed Debt.
12. No Reduction. The Guaranteed Debt may not be reduced, discharged, or
released because or by reason of any existing or future offset, claim, or
defense (except for the defense of complete and final payment of the Guaranteed
Debt) of Borrower or any other party against Administrative Agent or Lenders or
against payment of the Guaranteed Debt, whether that offset, claim, or defense
arises in connection with the Guaranteed Debt or otherwise. Those claims and
defenses include, without limitation, failure of consideration, breach of
warranty, fraud, bankruptcy, incapacity/infancy, statute of limitations, lender
liability, accord and satisfaction, usury, forged signatures, mistake,
impossibility, frustration of purpose, and unconscionability.
13. Bankruptcy or Death. If Guarantor becomes insolvent, fails to pay
Guarantor's debts generally as they become due, voluntarily seeks (or consents
to or acquiesces in) any benefits of any Debtor Law, or becomes a party to (or
is made the subject of) any proceeding under any Debtor Law (other than as a
creditor or claimant) that could suspend or otherwise adversely affect the
Rights of Administrative Agent or any Lender under this guaranty, then, in any
such event, the Guaranteed Debt is automatically (as between that Guarantor,
Administrative Agent, and Lenders), a fully matured, due, and payable obligation
of Guarantor to Administrative Agent and Lenders (without regard to whether
Borrower is then in default under the Loan Agreement or whether any of the
Obligation is then due and owing by Borrower), payable in full, i.e., the
estimated amount owing in respect of the contingent claim created under this
guaranty, by Guarantor to Administrative Agent and Lenders upon demand.
14. Loan Document. This guaranty is a Loan Document and is subject to the
applicable provisions of Sections 1 and 12 of the Loan Agreement, all of which
are incorporated into this guaranty by reference the same as if set forth in
this guaranty verbatim.
15. Communications. For purposes of Section 12.2 of the Loan Agreement,
Guarantor's address and telecopy number are set forth on the signature page to
this guaranty.
16. Amendments, Etc. No amendment, waiver, or discharge to or under this
guaranty is valid unless it is in writing and is signed by the party against
whom it is sought to be enforced and is otherwise in conformity with the
requirements of Section 12.10 of the Loan Agreement.
17. Entirety. This guaranty represents the Final Agreement between the
parties and may not be contradicted by evidence of prior, contemporaneous, or
Subsequent Oral Agreements of the parties. There are no Unwritten Oral
Agreements between the parties.
18. Administrative Agent and Lenders. Administrative Agent is the agent
for each Lender under the Loan Agreement. All Rights granted to Administrative
Agent under or in connection with this guaranty are for each Lender's ratable
benefit. Administrative Agent may, without the joinder of any Lender, exercise
any Rights in Administrative Agent's or Lenders' favor under or in connection
with this guaranty. Administrative Agent's and each Lender's Rights and
obligations vis-a-vis each other may be subject to one or more separate
agreements between those parties. However, Guarantor is not required to inquire
about any such agreement and is not subject to any terms of it unless Guarantor
specifically joins it. Therefore, neither Guarantor nor its successors or
assigns is entitled to any benefits or provisions of any such separate agreement
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or is entitled to rely upon or raise as a defense any party's failure or refusal
to comply with the provisions of it.
19. Parties. This guaranty benefits Administrative Agent, Lenders, and
their respective successors and assigns and binds Guarantor and Guarantor's
successors and assigns. Upon appointment of any successor Administrative Agent
under the Loan Agreement, all of the Rights of Administrative Agent under this
guaranty automatically vest in that new Administrative Agent as successor
Administrative Agent on behalf of Lenders without any further act, deed,
conveyance, or other formality other than that appointment. The Rights of
Administrative Agent and Lenders under this guaranty may be transferred with any
assignment of the Guaranteed Debt. The Loan Agreement contains provisions
governing assignments of the Guaranteed Debt and of Rights and obligations under
this guaranty.
20. Amendment and Restatement. This Second Amended and Restated Guaranty
amends, restates, and supersedes in its entirety, the Amended and Restated
Guaranty executed by the undersigned and delivered in accordance with the
Existing Loan Agreement.
Remainder of Page Intentionally Blank
Signature Page Follows
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EXECUTED as of the date first stated in this Second Amended and Restated
Guaranty.
Matrix Bancorp, Inc. MATRIX BANCORP, INC. as Guarantor
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxx X. Xxxxxx, President By /s/ Xxx X. Xxxxxx
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Tel: 000-000-0000 Xxx X. Xxxxxx, President
Fax: 000-000-0000
Administrative Agent executes this guaranty in acknowledgment of Paragraph
17 above.
BANK ONE, TEXAS, N.A., as Administrative Agent
By /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, Vice President
Signature Page
