EXHIBIT 10.6
FOURTH AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
-----------------------------------
THIS DOCUMENT is entered into effective as of May 27, 1998, between MATRIX
FINANCIAL SERVICES CORPORATION, an Arizona corporation ("BORROWER"), the Lenders
listed on the signature page below, and BANK ONE, TEXAS, N.A., as Agent (in that
capacity "AGENT").
Borrower, Lenders, and Agent have entered into the Amended and Restated
Loan Agreement (as renewed, extended, amended, or restated, the "LOAN
AGREEMENT") dated as of January 31, 1997, providing for loans to Borrower both
on a revolving and a term basis. Borrower, Lenders, and Agent have agreed, upon
the following terms and conditions, to amend the Loan Agreement as provided in
PARAGRAPH 2 below. Accordingly, for adequate and sufficient consideration,
Borrower, Lenders, and Agent agree as follows:
1. TERMS AND REFERENCES. Unless otherwise stated in this document (A)
--------------------
terms defined in the Loan Agreement have the same meanings when used in this
document and (B) all references to "Sections," "Schedules," and "Exhibits" are
to the Loan Agreement's sections, schedules, and exhibits.
2. AMENDMENTS. The Loan Agreement is amended as follows:
----------
(A) The following definitions are entirely amended or added to SECTION 1.1
in alphabetical order with the other definitions in that section:
"TRANCHE B" means that portion of Term-Line Borrowings that (a)
is advanced for the purpose of financing certain Servicing Portfolio
acquisitions, (b) may not be reborrowed under this agreement on or
after the Tranche B-Actual-Termination Date, and (c) may not exceed an
amount (as that amount is permanently reduced by payments or
prepayments on Tranche B under SECTION 3 on and after the Tranche B-
Actual-Termination Date) equal at any time to the lesser of either (i)
the total Term-Line Commitments minus Tranche A or (ii) $35,000,000.
"TRANCHE B-STATED-TERMINATION DATE" means the earlier of either
(a) January 31, 1999, or (b) the 30th calendar day after the calendar
day that at least $31,500,000 of Tranche B has been disbursed (whether
or not prepaid) under this agreement.
(B) SCHEDULE 2 is entirely amended in the form of, and all references in
the Loan Agreement to SCHEDULE 2 are changed to, the attached THIRD AMENDED
SCHEDULE 2.
3. CONDITIONS PRECEDENT. Notwithstanding any contrary provision, the
--------------------
foregoing paragraphs in this document are not effective unless and until (A) the
representations and warranties in this document are true and correct and (B)
Agent receives (1) counterparts of this document executed by each party on the
signature pages of this document and (2) each document and other item listed on
the attached ANNEX A, each of which must be in form, substance, and number of
counterparts as may be acceptable to Agent and its special counsel.
4. SETTLEMENT AMONG LENDERS. Agent and Lenders agree among themselves
------------------------
(and Borrower consents) that, concurrently with the effectiveness of this
document, there shall be deemed to have occurred assignments and assumptions
with respect to the Obligation, Liens, Rights, and obligations under the Loan
Documents in respect of the Term-Line Commitment such that, after giving effect
to those assignments and assumptions, the Obligation, Liens, Rights, and
obligations under the Loan Documents in respect of the Term-Line Commitment are
owned by each Lender in accordance with its Commitment Percentage for Term-Line
Commitments after giving effect to this document. Lenders hereby make those
assignments and assumptions and shall make all appropriate payments and
adjustments among themselves through Agent in order to effectuate the
appropriate purchase price for and other amounts payable with respect to those
assignments and assumptions.
5. RATIFICATIONS. To induce Agent and Lenders to enter into this
-------------
document, Borrower (A) ratifies and confirms all provisions of the Loan
Documents as amended by this document, (B) ratifies and confirms that all
guaranties, assurances, and Liens granted, conveyed, or assigned to Agent and
Lenders under the Loan Documents (as they may have been renewed, extended, and
amended) are not released, reduced, or otherwise adversely affected by this
document and continue to guarantee, assure, and secure full payment and
performance of the present and future Obligation, and (C) agrees to perform
those acts and duly authorize, execute, acknowledge, deliver, file, and record
those additional documents, and certificates as Agent or any Lender may request
in order to create, perfect, preserve, and protect those guaranties, assurances,
and Liens.
6. REPRESENTATIONS. To induce Agent and Lenders to enter into this
---------------
document, Borrower represents and warrants to Agent and Lenders that as of the
date of this document (A) Borrower has all requisite authority and power to
execute, deliver, and perform its obligations under this document, which
execution, delivery, and performance have been duly authorized by all necessary
corporate action, require no action by or filing with any Tribunal, do not
violate its corporate charter or bylaws, or (except where not a Material-Adverse
Event) violate any Law applicable to it or any material agreement to which it or
its assets are bound, (B) upon execution and delivery by all parties to it, this
document will constitute Borrower's legal and binding obligation, enforceable
against it in accordance with their respective terms except as that
enforceability may be limited by Debtor Laws and general principles of equity,
(C) all other representations and warranties in the Loan Documents are true and
correct in all material respects except to the extent that (1) any of them speak
to a different specific date or (2) the facts on which any of them were based
have been changed by transactions contemplated or permitted by the Loan
Agreement, and (D) no Material-Adverse Event, Default, or Potential Default
exists.
7. EXPENSES. Borrower shall pay all costs, fees, and expenses paid or
--------
incurred by Agent incident to this document, including, without limitation, the
reasonable fees and expenses of Agent's special counsel in connection with the
negotiation, preparation, delivery, and execution of this document and any
related documents.
8. MISCELLANEOUS. All references in the Loan Documents to the "Loan
-------------
Agreement" refer to the Loan Agreement as amended by this document. This
document is a "Loan Document" referred to in the Loan Agreement; therefore, the
provisions relating to Loan Documents in SECTIONS 1 and 12 are incorporated in
this document by reference. Except as specifically amended and modified in this
document, the Loan Agreement is unchanged and continues in full force and
effect. This document may be executed in any number of counterparts with the
same effect as if all signatories had signed the same document. All counterparts
must be construed together to constitute one and the same instrument. This
document binds and inures to each of the undersigned and their respective
successors and permitted assigns, subject to SECTION 12.12. THIS DOCUMENT AND
THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS BY THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
{REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.]
2
EXECUTED as of the date first stated in this Fourth Amendment to Restated
and Amended Loan Agreement.
MATRIX FINANCIAL SERVICES BANK ONE, TEXAS, N.A., as Agent, as a
CORPORATION, as Borrower Lender, and as Bank One
By /s/ Xxxxxx X. Xxxxxxxx By /s/ Xxxx X. Xxxxxxx
____________________________________ ________________________________________
Xxxxxx X. Xxxxxxxx, Xxxx X. Xxxxxxx, Vice President
Executive Vice President
U.S. BANK NATIONAL ASSOCIATION, RESIDENTIAL FUNDING CORPORATION, as
formerly Colorado National Bank as a Lender a Lender
By /s/ Xxxxxxxx Xxxxxxxx By /s/ L.L. Xxxxxxxxxxxx
____________________________________ ________________________________________
Xxxxxxxx Xxxxxxxx, Vice President L.L. Xxxxxxxxxxxx, Director
CONSENT AND AGREEMENT
---------------------
To induce Agent and Lenders to enter into this document, the undersigned
(a) consents and agrees to this document's execution and delivery, (b) ratifies
and confirms that all guaranties, assurances, Liens, and subordinations granted,
conveyed, or assigned to Agent and Lenders under the Loan Documents (as they may
have been renewed, extended, and amended) are not released, diminished,
impaired, reduced, or otherwise adversely affected by this document and continue
to guarantee, assure, secure, and subordinate other debt to the full payment and
performance of all present and future Obligation, (c) agrees to perform those
acts and duly authorize, execute, acknowledge, deliver, file, and record those
additional guaranties, assignments, security agreements, deeds of trust,
mortgages, and other agreements, documents, instruments, and certificates as
Agent or any Lender may reasonably deem necessary or appropriate in order to
create, perfect, preserve, and protect those guaranties, assurances, Liens, and
subordinations, (d) represents and warrants to Agent and Lenders that (i) the
value of the consideration received and to be received by the undersigned in
respect of those guaranties, assurances, Liens, and subordinations are
reasonably worth at least as much as the related liability and obligation, (ii)
that liability and obligation may reasonably be expected to directly or
indirectly benefit the undersigned, and (iii) the undersigned is -- and after
giving effect to those guaranties, assurances, Liens, subordinations, and the
Loan Documents, in light of all existing facts and circumstances (including,
without limitation, collateral for and other obligors in respect of the
Obligation and various components of it and various rights of subrogation and
contribution), the undersigned will be -- Solvent, and (e) waives notice of
acceptance of this consent and agreement, which consent and agreement binds the
undersigned and its successors and permitted assigns and inures to Agent, each
Lender, and their successors and permitted assigns.
MATRIX CAPITAL CORPORATION, as Guarantor
By /s/ Xxx X. Xxxxxx
_____________________________________
Xxx X. Xxxxxx, Chief Executive
Officer and President
