EXHIBIT 10.2
THIRD AMENDMENT TO CREDIT AGREEMENT
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(and Temporary Waiver)
THIS DOCUMENT is entered into as of March 12, 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 and to temporarily waive certain provisions of the
Credit Agreement as described in Paragraphs 2 and 3 below.
1. TERMS AND REFERENCES. Unless otherwise stated in this document (A) terms
defined in the Credit Agreement have the same meanings when used in this
document and (B) references to "Sections," "Schedules," and "Exhibits" are to
the Credit Agreement's sections, schedules, and exhibits.
2. AMENDMENT. Subject to Paragraph 4 below but otherwise effective as of the
date of this document, the Credit Agreement is amended as follows:
(A) Stated-Termination Date. The definition of Stated-Termination Date in
Section 1.1 is entirely amended as follows:
"Stated-Termination Date" means the earlier of either (a) May 12,
1998, or (b) 30 days after the date on which at least 90% of the total
Commitments for the Revolving Facility has been funded under Section 2.2.
(B) Debt. A new Section 8.1(g) is added at the end of the existing Section
8.1:
(g) Warehousing. Debt incurred by Equi-Mor Holdings, Inc. to
Investment Services, Inc., for which Borrower has no direct or contingent
liability.
(C) Distributions. Section 8.4 is entirely amended as follows:
8.4 Distributions. Borrower may not pay or declare any Distribution
during any fiscal year except (a) dividends payable solely in the form of
capital stock, and (b) cash distributions to Borrower's shareholders (i) in
an amount not to exceed the sum of (A) 50% of Borrower's Net Income, minus
(B) non-cash income, and (ii) if a Default or Potential Default exists or
would be created by the Distribution.
3. TEMPORARY WAIVER. Subject to Paragraph 4 below but otherwise effective as of
the date of this document, the Lenders temporarily waive any Potential Default
or Default that may exist or arise solely as a result of the following:
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(A) Guaranty. The failure of Borrower to comply with the provisions of
Section 4.1 in respect of Matrix Advisory Services, Inc., and Equi-Mor Holdings,
Inc.
(B) Cash Dividends/Expenses and CMLTD. The failure of Borrower to comply
with the provisions of Section 9.1 for the four-fiscal-quarter periods ending
December 31, 1997, and March 31, 1998.
Neither Agent nor any Lender makes any commitment to extend the time period for
any waiver. Except as expressly stated, this paragraph is not a waiver of
existing or future Potential Defaults or Defaults or a waiver of Agent's or any
Lender's rights to insist upon compliance by all other relevant parties with
each Loan Document.
4. 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, (B) Agent
receives counterparts of this document executed by Agent, Lenders, Borrower, and
each other Company named on the signature pages of this document, and (C) Agent
receives evidence satisfactory to it and its special counsel that all stock
certificates evidencing all of the issued and outstanding shares of the capital
stock of Matrix Bank have been delivered to Agent.
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) each Company has all requisite authority and power to execute,
deliver, 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 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 each Company's legal and binding obligation, enforceable against it
in accordance with this document'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 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 counsel in connection with the
negotiation, preparation, delivery, and execution of this document and any
related documents.
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8. MISCELLANEOUS. All references in the Loan Documents to the "Credit Agreement"
refer to the Credit Agreement as amended by this document. This document 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
document by reference. Except as specifically amended and modified in this
document, the Credit 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 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.
Remainder of page intentionally blank.
Signature page follows.
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EXECUTED as of the date first stated above.
MATRIX CAPITAL CORPORATION, as BANK ONE, TEXAS, N.A., as Agent and
Borrower a Lender
By /s/ Xxxxx X. Xxxxx By /s/ Xxxx X. Xxxxxxx
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Xxxxx X. Xxxxx, Chief Financial Xxxx X. Xxxxxxx, Vice
Officer President
COLORADO NATIONAL BANK
as a Lender
By /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Vice President
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CONSENT AND AGREEMENT
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To induce Agent and Lenders to enter into this document, the undersigned
jointly and severally (a) consent and agree to this document'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
document 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, 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) 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 UNITED CAPITAL MARKETS, INC.
CORPORATION
MATRIX FUNDING CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx By /s/ Xxxxxx Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, Chief Executive Xxxxxx Xxxxxxxx, President
Officer and President of each above
Company
UNITED FINANCIAL, INC. UNITED SPECIAL SERVICES, INC.
By /s/ Xxxxxx X. Xxxxxx By /s/ Xxxxx Xxxxxxx
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Xxxxxx X. Xxxxxx, Chief Executive Xxxxx Xxxxxxx, President
Officer
VINTAGE DELAWARE HOLDINGS, INC. FIRST MATRIX INVESTMENT SERVICES
CORP.
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
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