EIGHTH AMENDMENT TO CREDIT AGREEMENT
EIGHTH
AMENDMENT TO CREDIT AGREEMENT
This
EIGHTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), made and entered into
as of March 31, 2006, 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, a Sixth Amendment dated as of March 31,
2004 and a Seventh Amendment dated as of March 31, 2005 (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) June 30, 2006, (b) 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
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 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.
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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 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.
3
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. | ||
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| By: | ||
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Name: Xxxxx X. Xxxxx |
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| Title: SVP and CFO | ||
| U.S. BANK NATIONAL ASSOCIATION | ||
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| By: | ||
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Name:
Xxxxx
X. Xxxxx
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| Title: Vice President | ||
[Signature Page to Eighth Amendment to Credit Agreement]
S
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1
CONSENT
AND AGREEMENT BY GUARANTORS
This
Consent and Agreement by Guarantors (“Consent”) is made by the undersigned (each
a “Guarantor,” and collectively, the “Guarantors”), in favor of U.S. BANK
NATIONAL ASSOCIATION, a national banking association, as Agent for the Lenders
party to the Credit Agreement described below (the “Agent”), and such Lenders
and is dated as of March 31, 2006.
WHEREAS,
each Guarantor executed a Guaranty (“Guaranty”) in favor of the Agent and the
Lenders dated as of December 27, 2000, by which Guarantor guaranteed the
obligations of Matrix Bancorp, Inc., a Colorado corporation, (the “Borrower”) to
the Agent and the Lenders, including, without limitation, the Borrower’s
obligations to the Agent and the Lenders under that certain Credit Agreement
dated as of December 27, 2000 by and between the Borrower, the Lenders party
thereto and the Agent (the “Credit Agreement”);
WHEREAS,
the Borrower desires to amend the Credit Agreement to modify certain provisions
of the Credit Agreement pursuant to a Eighth Amendment to Credit Agreement
of
even date herewith by and between the Borrower, the Lenders party to the Credit
Agreement, and the Agent (the “Amendment”);
WHEREAS,
the Agent has refused to execute the Amendment unless the Guarantors execute
this Consent;
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, and to induce the Agent and the Lenders to amend
certain provisions of the Credit Agreement, and in consideration of their doing
so, the Guarantors hereby acknowledge and consent to the amendments to the
Credit Agreement as provided under the Amendment, substantially in the form
previously provided to the Guarantors, and agree that all obligations of the
Borrower under the Credit Agreement as amended by the Amendment are subject
to
their respective Guaranty.
Each
Guarantor acknowledges and agrees that this Consent shall not in any way
extinguish any of the obligations of the Guarantor under the Guaranty, which
obligations shall continue and shall not in any circumstances be terminated,
extinguished or discharged hereby, but the terms of such Guaranty continue
in
full force and effect.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
IN
WITNESS WHEREOF, this Consent has been duly executed by the undersigned the
day
and year first above written.
| EQUI-MOR HOLDINGS, INC. | ||
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| By: | ||
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| Its | ||
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| MATRIX FUNDING CORPORATION | ||
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| By: | /s/ | |
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Its |
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MATRIX
BANCORP TRADING, INC. (f/k/a Matrix Capital Markets,
Inc.)
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| By: | ||
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Its |
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| MATRIX REALTY CORP. (f/k/a Matrix Asset Management Corp.) | ||
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| By: | ||
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Its |
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SECRETARY’S
CERTIFICATE
I,
_____________________, hereby certify to U.S. Bank National Association, as
“Agent” on behalf of the “Lenders” (as such terms are defined in the Credit
Agreement), on behalf of Matrix Bancorp, Inc., a Colorado corporation (the
“Company”), as follows:
1. I
am the
duly elected and acting Secretary of the Company.
2. The
resolutions adopted by the Board of Directors of the Company on December 27,
2000, a true, complete, and correct copy of which were attached to a certificate
of the Secretary of the Company dated December 27, 2000, remain in full force
and effect as of the date hereof. Such resolutions authorize the execution
and
delivery by the officers of the Company listed in paragraph 4 below of the
Eighth Amendment to the Credit Agreement dated as of March 31, 2006 and the
other Amendments Documents (as defined in such Eighth Amendment) to which the
Company is a party.
3. There
has
been no amendment to the Articles of Incorporation or Bylaws of the Company
since true and accurate copies of the same were delivered to the Bank with
a
certificate of the Secretary of the Company dated December 27,
2000.
4. The
following persons are duly elected and acting incumbents in the corporate
offices indicated, and the signature set forth opposite the name of each such
person is the true and genuine specimen signature of such person:
| Name and Title |
Signature
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| T. Xxxxx XxXxxxxxx | Senior Vice President | |
| Xxxxx X. Xxxxx |
Chief
Financial Officer
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| IN WITNESS WHEREOF, I have executed this Secretary’s Certificate this ___ day of ____________, 2006. | ||
|
____________________________________
Name:
______________________________
Title:
Secretary
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