Exhibit 10.1
SEVENTH AMENDMENT TO CREDIT AGREEMENT
This SEVENTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), made and
entered into as of March 31, 2005, 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, a Fifth Amendment dated as of March 31, 2003 and a Sixth Amendment dated
as of March 31, 2004 (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 substituting the following in lieu thereof:
"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 Term Loan Maturity Date. Section 2.6(b) of the Credit
Agreement is hereby amended by deleting the date "December 31, 2006"
contained in the fifth line thereof and replacing such date with "December
31, 2007."
Section 2.3 Indebtedness. Section 6.10 of the Credit Agreement is
hereby amended to add the following Section 6.10(r):
(r) Indebtedness in the form of a guaranty by the Borrower of not
more than $20,000,000 of Indebtedness owing from ABS School Services,
L.L.C., a subsidiary of the Borrower, to Compass Bank and Vectra Bank.
Section 3. Effectiveness of Amendments. The amendments contained in this
Amendment shall become effective as of the date first above written provided the
Agent shall have received at least two (2) counterparts of this Amendment, duly
executed by the Borrower 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 Articles
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.
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
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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 Articles 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.
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
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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.
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.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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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 /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: SVP and CFO
U.S. BANK NATIONAL ASSOCIATION
By /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
[Signature Page to Seventh Amendment to Credit Agreement]
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