Exhibit 10.2
EXECUTION COPY
SECOND AMENDMENT TO CREDIT AGREEMENT
AND FIRST AMENDMENT TO PLEDGE AND SECURITY AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT AND FIRST AMENDMENT TO PLEDGE
AND SECURITY AGREEMENT (this "Amendment"), made and entered into as of April 11,
2001, is by and between MATRIX FINANCIAL SERVICES CORPORATION, an Arizona
corporation (the "Borrower"), the lenders from time to time party to the Credit
Agreement referred to below (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 Lenders and U.S. Bank National Association, in its
capacities as a Lender and as Agent, entered into a Credit Agreement dated as of
September 29, 2000, as amended by that certain First Amendment to Credit
Agreement dated as of March 5, 2001 (as amended, the "Credit Agreement");
B. The Borrower and the Agent entered into a Pledge and Security Agreement
dated as of September 29, 2000 (the "Pledge Agreement"); and
C. The Borrower desires to amend certain provisions of the Credit Agreement
and the Pledge Agreement, and the Lenders and the 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 and the Pledge Agreement, unless the context shall otherwise require.
Section 2. Amendments to Credit Agreement.
2.1 The Credit Agreement is hereby amended by amending the definition
of "Swingline Facility Amount" contained in Section 1.01 of the Credit
Agreement to read in its entirety as follows:
"Swingline Facility Amount": (i) $48,000,000 on or before Xxxxx
00, 0000, (xx) $93,000,000 from and after April 11, 2001 to June 30,
2001; and (iii) $48,000,000 fron and after July 1, 2001.
2.2 Section 4.01(e) of the Credit Agreement is hereby amended by
deleting the words "as soon as available" in line 13 thereof, and
substituting the words "immediately upon request by the Agent."
2.3 Section 4.15 of the Credit Agreement is hereby amended in its
entirety to read as follows:
4.15 Leverage Ratio. The Company will not permit the Leverage
Ratio at any time to be greater than (a) before March 31, 2001, 10 to
1, and (b) from and after March 31, 2001, 12 to 1.
Section 3. Schedule 1.01(a). Schedule 1.01(a) to the Credit Agreement is
hereby amended in its entirety to read as set forth in Schedule 1.01(a) attached
to this Amendment, which is made a part of the Credit Agreement as Schedule
1.01(a) thereto.
Section 4. Exhibit F. Exhibit F to the Credit Agreement is hereby amended
in its entirety to read as set forth in Exhibit A to this Amendment, which is
made a part of the Credit Agreement as Exhibit F thereto.
Section 5. Exhibit H. Exhibit H to the Credit Agreement is hereby amended
in its entirety to read as set forth in Exhibit B to this Amendment, which is
made a part of the Credit Agreement as Exhibit H thereto.
Section 6. Amendment to Pledge Agreement. Section 4.01(f) of the Pledge
Agreement is hereby deleted in its entirety.
Section 7. Effectiveness of Amendments. The amendments contained in this
Amendment shall become effective provided the Agent shall have received at least
five (5) counterparts of this Amendment, duly executed by the Company and all of
the Lenders, and the Agent shall have received the following, each duly executed
or certified:
7.1 This Amendment, duly executed by the Borrower.
7.2 The Amended and Restated Note, duly executed by the Borrower.
7.3 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
Certificate of Incorporation or Bylaws of the Borrower since true and
accurate copies of the same were delivered to the Lender with a certificate
of the Secretary of the Borrower dated September 29, 2000, 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.
7.4 Certified copies of all documents evidencing any necessary
corporate action, consent or governmental or regulatory approval (if any)
with respect to this Amendment.
7.5 The Consent and Reaffirmation of Guaranty, duly executed by the
Guarantor.
7.6 The Amended and Restated Swingline Note, duly executed by the
Borrower.
7.7 The Supplemental Fee Letter, duly executed by the Borrower.
7.8 A written opinion, addressed to the Lenders, dated the date hereof
and in a form satisfactory to the Agent, concerning the authorization,
execution, delivery, performance and enforceability of the Amendment
Documents executed by the Borrower and the Guaranty by the Guarantor.
7.9 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 8. Defaults and Waivers.
8.1 Events of Default and Unmatured Events of Default. Under Section
4.15 of the Credit Agreement, the Borrower agreed not to permit its
Leverage Ratio to be greater than 10 to 1 at any time. The Borrower has
informed the Agent and the Lenders that its Leverage Ratio was greater than
10 to 1 at certain times from and after January 1, 2001 to March 31, 2001.
As a result, an Event of Default has occurred under Section 6.01(c) of the
Credit Agreement.
8.2 Waiver. Upon the date on which this Amendment becomes effective,
the Agent and the Lenders hereby waive the Borrower's Unmatured Events of
Default and Events of Default described in the preceding Section 8.1 (the
"Existing Defaults"). The Borrower agrees that the waivers set forth in
this Section 8.2 shall be limited to the precise meaning of the words as
written herein and shall not be deemed (i) to be a consent to any waiver or
modification of any other term or condition of the Credit Agreement or (ii)
to prejudice any right or remedy that the Agent or the Lenders may now have
or may in the future have under or in connection with the Credit Agreement
with respect to other Unmatured Events of Default or Events of Default. The
Borrower acknowledges and agrees that the waiver set forth in this Section
8.2 is provided by the Agent and the Lenders as a financial accommodation
to the Borrower. Except as expressly set forth
herein, the waiver described in this Section 8.2 shall not alter, affect,
release or prejudice in any way any of the Borrower's obligations under the
Credit Agreement. The waivers set forth herein shall not constitute a
waiver by the Agent or the Lenders of any other Unmatured Event of Default
or Event of Default, if any, under the Credit Agreement, and shall not be,
and shall not be deemed to be, a course of action with respect thereto upon
which the Borrower may rely in the future and the Borrower hereby expressly
waives any claim to such effect.
Section 9. Representations, Warranties, Authority, No Adverse Claim.
9.1 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 Unmatured Event of 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.
9.2 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, 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 Certificate 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.
9.3 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 10. Affirmation of Credit Agreement and Pledge 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. The Borrower confirms
to the Agent and the Lenders that the Borrower's obligations under the
Credit Agreement, as amended by this Amendment, are and continue to be
secured by the security interest granted by the Borrower in favor of the
Agent and the Lenders under the Pledge Agreement and all of the terms,
conditions, provisions, agreements, requirements, promises, obligations,
duties, covenants and representations of the Borrower under such document
and any and all other documents and agreements entered into with respect to
the obligations under the Agreement are incorporated herein by reference
and are hereby ratified and affirmed in all respect by the Borrower. 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 11. 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 12. 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.
Section 13. 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 14. Legal Expenses. As provided in Section 8.03 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 15. 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 16. 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 17. 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.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date and year first above written.
MATRIX FINANCIAL SERVICES CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxx
Its Executive Vice President
Address for Notices:
0000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, President
Telecopier Number: (000) 000-0000
U.S. BANK NATIONAL ASSOCIATION
By /s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Its Vice President
Address for Notices:
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxx
Telecopier Number: (000) 000-0000
RESIDENTIAL FUNDING CORPORATION
By /s/ Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx
Its Vice President
Address for Notices:
0000 Xxxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Phone: (000) 000-0000
ATTN: Xxxxxxxx Xxxxxx