EXHIBIT 10.1
FOURTH AMENDMENT TO CREDIT AGREEMENT
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THIS AMENDMENT is entered into as of June 29, 1998, between MATRIX CAPITAL
CORPORATION, a Colorado corporation ("BORROWER"), the Lenders described below,
and BANK ONE, TEXAS, N.A., as Agent for Lenders.
Borrower, Lenders, and Agent are party to the Credit Agreement (as renewed,
extended, and amended, the "CREDIT AGREEMENT") dated as of March 12, 1997,
providing for a $2,000,000 Term Loan and a Revolving Facility of up to
$6,000,000. Borrower, Lenders, and Agent have agreed, upon the following terms
and conditions, to amend certain provisions of the Credit Agreement as described
in PARAGRAPH 2 below.
1. TERMS AND REFERENCES. Unless otherwise stated in this amendment (A) terms
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defined in the Credit Agreement have the same meanings when used in this
amendment and (B) references to "SECTIONS," "SCHEDULES," and "EXHIBITS" are to
the Credit Agreement's sections, schedules, and exhibits.
2. AMENDMENT. The Credit Agreement is amended as follows:
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(A) The recital paragraph in the Credit Agreement is entirely amended as
follows:
Borrower has requested that Lenders extend credit to Borrower not to
exceed a total outstanding principal amount of $20,000,000 (as that amount
may be reduced or canceled pursuant to this agreement) to be used by
Borrower as provided in SECTION 6.1 and allocated as (A) a term loan of
$8,500,000 (the "TERM LOAN"), and (B) a revolving-credit facility of
$11,500,000 (the "REVOLVING FACILITY") to be funded by Lenders from time to
time on and after the Closing Date but before the Actual-Termination Date.
Lenders are willing to extend the requested credit on the terms and
conditions of this agreement.
(B) SECTION 1.1 is amended by entirely amending or adding the following
definitions in alphabetical order with the other definitions in that section:
"BORROWING BASE" means, at any time, 40% of the book value of
Matrix Bank's issued and outstanding common stock subject to Lender
Liens.
"COMMERCIAL LOAN" means a loan that is not a one- to four-family
residential loan, nor an installment loan to an individual, nor the
portion of a loan guaranteed by the Small Business Administration, but
is a loan for commercial purposes, or a loan secured by chattel or a
mortgage note on non one- to four-family residential real property.
"MATURITY DATE" means June 30, 2001.
"STATED-TERMINATION DATE" means the earlier of EITHER (a) June
30, 1999, OR (b) 30 days after the date on which at least 90% of the
total Commitments for the Revolving Facility have been funded under
SECTION 2.2.
(C) The third bullet point in SECTION 2.2 is entirely amended as follows:
. The total of the Principal Debt of the Revolving Facility and
of the Term Loan may never exceed the lesser of EITHER (i) the
total of (a) the Principal Debt of the Term Loan plus (b) the
total Commitments for the Revolving Facility OR (ii) the
Borrowing Base.
FOURTH AGREEMENT TO CREDIT AGREEMENT
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(D) The first bullet point in SECTION 3.2(A) is entirely amended as
follows:
. The Principal Debt of the Term Loan is payable in 12
consecutive quarterly installments of $303,571 each on the
last day of each March, June, September, and December
(commencing September 30, 1998), with a final installment in
the amount of the unpaid Principal Debt of the Term Loan due
on the Maturity Date.
(E) New SECTION 3.15 is added as follows:
3.15 NON-USE FEE. From and after October 1, 1998, Borrower
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shall pay to Agent a non-use fee for Lenders according to each
Lender's Commitment Percentage. The fee is payable as it accrues on
the last day of each March, June, September, and December (commencing
on December 31, 1998) and on the Actual-Termination Date. Each
payment of the fee is equal to the following, determined for the
calendar quarter (or portion of a calendar quarter commencing on the
date of this agreement or ending on the Actual-Termination Date)
preceding and including the date it is due: From October 1, 1998,
until the Actual-Termination Date, the product of (i) 0.25% times (ii)
the amount by which the average-daily total Commitments for only the
Revolving Facility exceed the sum of the average-daily Principal Debt
under only the Revolving Notes, times (iii) a fraction with the number
of days in the applicable quarter or portion of it as the numerator
and 365 or 366, as the case may be, as the denominator.
(F) The second sentence of SECTION 5 is entirely amended as follows:
"In addition, no Lender is obligated to fund its part of any
Borrowing unless on the applicable Borrowing Date (and after giving
effect to the requested Borrowing): (a) Agent has timely received a
Borrowing Request; (b) all of the representations and warranties of
Borrower in the Loan Documents are true and correct in all material
respects (unless they speak to a specific date or are based on facts
which have changed by transactions contemplated or permitted by this
agreement); (c) no Default or Potential Default exists; (d) the
funding of the Borrowing is permitted by Law and does not cause a
Borrowing Excess; (e) if reasonably requested by Agent, it has
received evidence substantiating any of the matters in the Loan
Documents that are necessary to enable Borrower to qualify for the
Borrowing; and (f) a due diligence examination of Borrower for the
preceding year has been completed and reviewed to the satisfaction of
Agent."
(G) SECTION 6.1(A) is entirely amended as follows:
(A) PURPOSE. Borrower will use the proceeds of the (i) Term Loan
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to refinance the Refinanced Debt and to make contributions to capital
of Matrix Bank and (ii) Revolving Facility to either make or refinance
contributions to capital of Matrix Bank for Matrix Bank's use as
working capital for its general corporate purposes.
(H) SECTION 7.1(B) is entirely amended as follows:
(B) QUARTERLY. Promptly after preparation but no later than 45
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days after the last day of the first three fiscal quarters of Borrower
each year (i) Financials showing Borrower's consolidating financial
condition and results of operations for that fiscal quarter and for
the period from the beginning of the current fiscal year to the last
day of that fiscal quarter, (ii) a Compliance Certificate, (iii)
Matrix Bank's most recent call reports or other quarterly and annual
reports of condition or income furnished to the FDIC or the OTS, and
(iv) reports sent to and all consents and resolutions adopted by
Matrix Bank's Board of Directors during the preceding fiscal quarter.
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FOURTH AMENDMENT TO CREDIT AGREEMENT
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(I) SECTION 8.1(D) is entirely amended as follows:
(D) OTHER DEBT. Other Debt incurred by either Borrower or Matrix
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Bank with the approval of all Lenders that never exceeds $1,000,000 in
total-principal amount outstanding for both Borrower and Matrix Bank,
together with renewals, extensions, amendments, modifications, and
refinancings of that Debt and those obligations subject to the
foregoing limitations of this CLAUSE (D).
(J) SECTION 8.4 is entirely amended as follows:
8.4 DISTRIBUTIONS. Borrower may not pay or declare any
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Distribution.
(K) SECTION 9.1 is entirely amended as follows:
9.1 NET WORTH . The Companies' Net Worth to be less than the
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greater of EITHER (a) the SUM of (i) 90% of actual Net Worth at the
most recent fiscal year end, PLUS (ii) 50% of cumulative Net Income
(without deduction for losses) after the most recent fiscal year end,
PLUS (iii) 90% of all contributions to Borrower's stockholders' equity
made after the Closing Date, OR (b) $40,000,000.
(L) SECTION 9.3 is entirely amended as follows:
9.3 CASH COVERAGE. The ratio (calculated only in respect of
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Borrower) of cash dividends and tax sharing payments available to be
received by the Borrower from its Subsidiaries divided by cash
expenses and CMLTD paid by the Borrower, may not be less than 1.5 to
1.0 for any four-fiscal-quarter period.
(M) SECTION 9.4 is entirely amended as follows:
9.4 NET INCOME. Matrix Bank's Net Income to be less than
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$7,500,000 for any four-fiscal-quarter period.
(N) SECTION 9.7 is amended to change the percentage value set forth
therein to 50%.
(O) New SECTION 9.11 is added as follows:
9.11 COMMERCIAL LOANS/TOTAL CAPITAL. The ratio of the
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outstanding principal balance of Commercial Loans owned by Matrix Bank
to Total Capital of Matrix Bank to exceed 200%.
(P) SECTION 10.1(J) is entirely amended as follows:
(J) CHANGE OF CONTROL. Any (i) material change in the ownership
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or management of Borrower or any Guarantor from that ownership and
senior management as it exists on the date of this agreement without
the written approval of all Lenders, (ii) failure to provide advance
notice of any change in ownership or management, or (iii) common
stock, preferred stock, or ownership interest in Matrix Bank ceases to
be owned by Borrower.
(Q) SCHEDULE 2 AND EXHIBITS X-0, X-0, X-0 and D-2 are entirely amended in
the forms of, and all references in the Credit Agreement to SCHEDULE 2
AND EXHIBITS X-0, X-0, X-0 and D-2 are changed to, the attached SECOND
AMENDED SCHEDULE 2, AMENDED EXHIBIT A-1, AMENDED EXHIBIT A-2, AMENDED
EXHIBIT D-1, and SECOND AMENDED EXHIBIT D-2, respectively.
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FOURTH AMENDMENT TO CREDIT AGREEMENT
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3. TERM LOAN. Subject to the terms and conditions of this amendment and the
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terms and conditions of the Credit Agreement that are not inconsistent with the
terms and conditions of this amendment, each Lender severally but not jointly
agrees to lend to Borrower that Lender's Commitment Percentage of $6,857,150 as
a single Borrowing on the date of this amendment that, when loaned, will cause
the Principal Debt of the Term Loan to be $8,500,000.
4. CONDITIONS PRECEDENT. Notwithstanding any contrary provision, the foregoing
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paragraphs in this amendment are not effective unless and until (a) the
representations and warranties in this amendment are true and correct, and (b)
Agent receives (i) counterparts of this amendment executed by Agent, Lenders,
Borrower, and each other Company named on the signature pages of this amendment,
and (ii) each amendment and other item listed on the attached ANNEX A.
5. RATIFICATIONS. To induce Agent and Lenders to enter into this amendment,
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Borrower (A) ratifies and confirms all provisions of the Loan Documents as
amended by this amendment, (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 amendment 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
agreements, 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 amendment,
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Borrower represents and warrants to Agent and Lenders that as of the date of
this amendment (A) each Company has all requisite authority and power to
execute, deliver, and perform its obligations under this amendment, 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 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
amendment will constitute each Company's legal and binding obligation,
enforceable against it in accordance with this amendment's 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 Credit
Agreement, and (D) no Material-Adverse Event, Default, or Potential Default
exists.
7. EXPENSES. Borrower shall, subject to a contrary written agreement between
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Agent and Borrower, pay all costs, fees, and expenses paid or incurred by Agent
incident to this amendment, including, without limitation, the reasonable fees
and expenses of Agent's counsel in connection with the negotiation, preparation,
delivery, and execution of this amendment and any related agreements.
8. MISCELLANEOUS. All references in the Loan Documents to the "Credit
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Agreement" refer to the Credit Agreement as amended by this amendment. This
amendment is a "Loan Document" referred to in the Credit Agreement; therefore,
the provisions relating to Loan Documents in SECTIONS 1 and 12 are incorporated
in this amendment by reference. Except as specifically amended and modified in
this amendment, the Credit Agreement is unchanged and continues in full force
and effect. This amendment may be executed in any number of counterparts with
the same effect as if all signatories had signed the same amendment. All
counterparts must be construed together to constitute one and the same
instrument. This amendment binds and inures to each of the undersigned and their
respective successors and permitted assigns, subject to SECTION 12.12. THIS
AMENDMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES IN RESPECT OF THE MATTERS COVERED BY THE LOAN DOCUMENTS 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.
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FOURTH AMENDMENT TO CREDIT AGREEMENT
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EXECUTED as of the date first stated in this Fourth Amendment to Credit
Agreement.
MATRIX CAPITAL CORPORATION, BANK ONE, TEXAS, N.A.,
as Borrower as Agent and a Lender
By /s/ Xxxxx X. Xxxxx By /s/ Xxxx X. Xxxxxxx
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Xxxxx X. Xxxxx, Chief Financial Officer Xxxx X. Xxxxxxx, Vice President
U.S. BANK NATIONAL ASSOCIATION,
formerly Colorado National Bank,
as a Lender
By /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx,
Vice President
1 OF 2 SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
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CONSENT AND AGREEMENT
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To induce Agent and Lenders to enter into this amendment, the undersigned
jointly and severally (a) consent and agree to this amendment's execution and
delivery, (b) ratify and confirm that all guaranties, assurances, Liens, and
subordinations granted, conveyed, or assigned to Agent or any Lender 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
amendment and continue to guarantee, assure, secure, and subordinate other debt
to the full payment and performance of all present and future Obligation, (c)
agree 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, agreements, 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) represent and warrant 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) each 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), each undersigned will be -- Solvent, and (e) waive notice of
acceptance of this consent and agreement, which consent and agreement binds the
undersigned and their successors and permitted assigns and inures to Agent and
Lenders and their respective successors and permitted assigns.
MATRIX FINANCIAL SERVICES CORPORATION and MATRIX
FUNDING CORPORATION UNITED CAPITAL MARKETS, INC.
By /s/ Xxxxxx X. Xxxxxxxx By /s/ Xxxxxx Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, Chief Executive Officer and Xxxxxx Xxxxxxxx, President
President of each above Company
UNITED FINANCIAL, INC. UNITED SPECIAL SERVICES, INC.
By /s/ Xxxxxxx Xxxxxxx By /s/ Xxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx, Chairman Xxxxx Xxxxxxx, President
FIRST MATRIX INVESTMENT SERVICES
VINTAGE DELAWARE HOLDINGS, INC. CORP. and THE VINTAGE GROUP, INC.
By /s/ Xxxxx X. Xxxxx By /s/ Xxxx X. Xxxxxxx
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Xxxxx X. Xxxxx, Chairman Xxxx X. Xxxxxxx, Chairman of the Board and Chief
Executive Officer of each above Company
2 OF 2 SIGNATURE PAGES TO
FOURTH AMENDMENT TO CREDIT AGREEMENT
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