EXHIBIT 10.34
NINTH AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
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THIS DOCUMENT is entered into as of February 22, 1999, 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, Agent, and Lenders have agreed, upon
the following terms and conditions, to amend the Credit Agreement as described
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
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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 hereby amended as follows:
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(A) Section 1.1 is amended to entirely amend or add the following
definitions in alphabetical order with the other definitions in that section:
"Applicable-Covered Rate" means -- for each Borrowing-Purpose
Category in the table below -- the annual interest rate stated beside
that category:
Borrowing-Purpose Category Applicable-Covered Rate
Gestation Borrowings 0.850%
Repurchase Borrowings 1.375%
Nonconforming-Bulk Borrowings 2.000%
Other Warehouse Borrowings 1.250%
Indirect-Warehouse Borrowings 1.500%
Working-Capital Borrowings 1.500%
Term-Line Borrowings 2.000%
Overline Borrowings As agreed by Borrower and
Bank One from time to time
"Applicable Margin" means -- for each Borrowing-Purpose Category
and relevant Borrowing-Price Category in the table below -- the
positive or negative interest margin beside those categories:
Borrowing-Purpose Category Borrowing-Price Category Applicable Margin
Gestation Borrowings Base Rate 0.000%
Fed-Funds Rate or LIBOR 0.850%
Swing Borrowings Base Rate 0.000%
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Borrowing-Purpose Category Borrowing-Price Category Applicable Margin
Fed-Funds Rate 1.250%
Nonconforming-Bulk Borrowings Base Rate 1.000%
Fed-Funds Rate or LIBOR 2.000%
Repurchase Borrowings Base Rate 0.000%
Fed-Funds Rate or LIBOR 1.375%
Other Warehouse Borrowings Base Rate 0.000%
Fed-Funds Rate or LIBOR 1.250%
Indirect-Warehouse Borrowings Base Rate 0.000%
Fed-Funds Rate or LIBOR 1.500%
Working-Capital Borrowings Base Rate 0.500%
Fed-Funds Rate or LIBOR 1.500%
Term-Line Borrowings Base Rate 1.000%
Fed-Funds Rate or LIBOR 2.000%
Overline Borrowings Base Rate As agreed by Borrower
and Bank One from time
to time.
Fed-Funds Rate or As agreed by Borrower
LIBOR and Bank One from time
to time.
"Approved Originator" means any Originator who (a) has entered into a
Three-Party Agreement with Borrower and Agent, (b) has a minimum net worth of
$250,000, (c) has been in business for a minimum of three years, (d) has
submitted its Current Financial statements to Agent, and (e) is from time to
time named on a list agreed to by Agent and Borrower (which list Agent shall
furnish to any Lender upon request) as that list may be amended from time to
time (i) by Borrower and Agent to remove or add other names as Agent and
Borrower may agree, (ii) by either Agent or Determining Lenders to remove any
such other Person after Agent has or Determining Lenders have given to Borrower
notice of (and an opportunity to discuss) the proposed removal of that Person,
or (iii) automatically (without signing by any party) to remove any such Person
who then (A) is not Solvent, (B) fails to pay its debts generally as they become
due, (C) voluntarily seeks, consents to, or acquiesces in the benefit of any
Debtor Law, (D) becomes a party to or is made the subject of any proceeding
provided for by any Debtor Law (other than as a creditor or claimant) that could
suspend or otherwise adversely affect the Rights of any Company, Agent, or any
Lender in connection with the transactions contemplated in the Originator
Documents or Loan Documents, (E) is in default under its Indirect-Warehouse Loan
Agreement, or (F) fails to be agency qualified in any respect.
"Bailee Letter" means, as applicable under the circumstances, one of the
letters executed and delivered by Agent in substantially the form of Exhibit C-
4.
"Borrowing-Purpose Category" means any category of Borrowing determined
with respect to its purpose, e.g., a (a) Warehouse Borrowing, which may be a Dry
Borrowing, Wet Borrowing, Gestation Borrowing, Swing Borrowing, Second-Lien
Borrowing, Nonconforming
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Borrowing, Nonconforming-Bulk Borrowing, or Repurchase Borrowing, (b) Working-
Capital Borrowing, which may be a P&I Borrowing, T&I Borrowing, or Foreclosure
Borrowing, or (c) Term-Line Borrowing.
"Eligible-Nonconforming Loan" is defined in Schedule 4.1.
"Eligible-Nonconforming-Bulk Loan" is defined in Schedule 4.1.
"Eligible-Indirect-Warehouse Loan" is defined in Schedule 4.1.
"Guarantor" means Matrix Bancorp, Inc., a Colorado corporation.
"Indirect-Warehouse Borrowings" means a Warehouse Borrowing which is (a)
a Ratable Borrowing or Swing Borrowing, (b) subject to the Indirect-Warehouse
Sublimit, and (c) supported by the Borrowing Base for Eligible-Indirect-
Warehouse Loans.
"Indirect-Warehouse Sublimit" means $10,000,000.
"Indirect-Warehouse Collateral" means all Indirect-Warehouse Documents
offered as Collateral under the Loan Documents.
"Indirect-Warehouse Documents" means, for any Approved Originator, its
Indirect-Warehouse Loan Agreement and the documents and items described on
Schedule 4.3 and required to be delivered to Agent under Section 4.3.
"Indirect-Warehouse Loan Agreement" means a loan agreement between
Borrower and an Approved Originator under which, among other things (a) Borrower
provides financing to that Approved Originator for its Mortgage Loan origination
and acquisition until those Mortgage Loans are sold in the secondary market, and
(b) that Approved Originator grants to Borrower first-priority Liens upon, among
other things, the Mortgage Collateral delivered to or for Borrower by or for
that Approved Originator.
"Jumbo Sublimit", at any time, means, unless otherwise approved by Agent
in writing, (a) for all Jumbo Loans (except Eligible-Nonconforming Loans,
Eligible-Nonconforming-Bulk Loans, Eligible-Repurchased Loans, or Eligible-
Second-Lien Loans), 35% of the total Warehouse Commitments, and (b) for any
Jumbo Loan (except Eligible-Nonconforming Loans, Eligible-Nonconforming-Bulk
Loans, Eligible-Repurchase Loans, or Eligible-Second-Lien Loans) in excess of
$750,000, only the first $750,000.
"Nonconforming Borrowing" means a Warehouse Borrowing which is (a) a
Ratable Borrowing or Swing Borrowing, (b) subject to the Nonconforming Sublimit,
and (c) supported by the Borrowing Base for Eligible-Nonconforming Loans.
"Nonconforming Bulk-Borrowing" means a Warehouse Borrowing which is (a)
a Ratable Borrowing or Swing Borrowing, (b) subject to the Nonconforming
Sublimit, and (c) supported by the Borrowing Base for Eligible-Nonconforming-
Bulk Loans.
"Nonconforming Loans" means, collectively, Eligible-Nonconforming Loans
and Eligible-Nonconforming-Bulk Loans.
"Nonconforming Sublimit" means (a) for all Nonconforming Loans,
$45,000,000 and (b) for Eligible-Nonconforming-Bulk Loans, $35,000,000.
"Originator" means any Person who originates and acquires Mortgage Loans
and markets and sells then in the secondary market.
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"Overline Borrowing" means a Borrowing under the Overline
Facility, which may not be a Nonconforming Borrowing, a Nonconforming
Bulk Borrowing, a Repurchase Borrowing, or a Second-Lien Borrowing.
"Repurchase Sublimit" means $20,000,000.
"Revolving Subordinated Loan Agreement" means the Revolving Loan
Agreement dated August 1, 1995, between Borrower and Guarantor.
"Servicing Portfolio" means, at any time, the total unpaid
principal amount of Mortgage Loans serviced by Borrower for a fee, the
servicing rights to which are owned by Borrower, other than any Mortgage
Loans serviced by Borrower under a subservicing agreement or a master
servicing agreement.
"Three-Party Agreement" means a Three-Party Agreement entered
into between Agent, Borrower, and an Approved Originator substantially
in the form of Exhibit G.
"Tranche A" means that portion of Term-Line Borrowings that (a)
is advanced for the purpose of leveraging certain portions of Borrower's
existing Servicing Portfolio, (b) may not be reborrowed under this
agreement on or after the Tranche A-Actual-Termination Date, and (c) may
not exceed an amount equal at any time to the lesser of either (i) the
total Term-Line Commitments minus Tranche B or (ii) $15,000,000.
"Tranche A-Actual-Termination Date" means the earlier of either
(a) the Tranche A-Stated-Termination Date or (b) the date on which all
of the Term-Line Commitments have otherwise terminated or been canceled.
"Tranche A-Stated-Termination Date" means February 22, 1999.
"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
equal at any time to the lesser of either (i) the total Term-Line
Commitments minus Tranche A or (ii) $30,000,000.
"Tranche B-Actual-Termination Date" means the earlier of either
(a) the Tranche B-Stated-Termination Date or (b) the date on which all
of the Term-Line Commitments have otherwise terminated or been canceled.
"Tranche B-Stated-Termination Date" means June 30, 1999.
"Warehouse-Stated-Termination Date" means June 30, 1999.
"Warehouse Borrowing" means a Ratable Borrowing or Swing
Borrowing that is (a) advanced to Borrower under the Warehouse
Commitment, (b) either a Dry Borrowing, Wet Borrowing, Gestation
Borrowing (which may not be a Swing Borrowing), Nonconforming Borrowing,
Nonconforming-Bulk Borrowing, Second-Lien Borrowing, Indirect-Warehouse
Borrowing, or Repurchase Borrowing, and (c) supported by the Borrowing
Base for Mortgage Collateral.
"Wet Sublimit" means, at any time, a percentage of the total
Warehouse Commitments, which percentage is (a) 35% for the first five
and last five Business Days of each Calendar Month, and (b) 25% at all
other times
(B) Clause (h) of the definition of "Adjusted-Tangible-Net Worth" in
Section 1.1 is entirely amended as follows:
Ninth Amendment
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"(h) Borrower's direct and indirect guaranties of Debt of any
other Person (other than Matrix Bancorp, Inc.), minus"
(C) The parenthetical in the definition of "Approved Investor" in
Section 1.1 is entirely amended as follows:
"(separate lists will be maintained for Nonconforming
Borrowings, Second-Lien Borrowings, and for all other Warehouse
Borrowings)"
(D) Clause (b) of the definition of "Total-Adjusted Debt" in Section 1.1
is entirely amended as follows:
"(b) obligations under repurchase agreements used to finance
Mortgage Securities, minus"
(E) The definition of "B/C-Paper Sublimit," "Committed B/C-Paper
Borrowing," "Eligible-Committed-B/C-Paper Loan," "Eligible-Uncommitted-B/C-Paper
Loan," "Equi-Mor," and "Uncommitted-B/C-Paper Sublimit" is entirely deleted from
Section 1.1.
(F) Section 2.1(a) is entirely amended as follows:
(a) Warehouse Commitments. Subject to the limitations below and
other provisions of the Loan Documents, on a revolving basis, and on
Business Days before the Warehouse-Actual-Termination Date, each
Lender severally agrees to provide its Commitment Percentage (except
for Agent in respect of Swing Borrowings) of Warehouse Borrowings so
long as, in each case, no Warehouse Borrowing may be disbursed that
would cause any of the following applicable limitations to be
exceeded, which limitations must be read together and are not
mutually exclusive:
. The sum (without duplication) of the total Principal Debt plus
the total LC Exposure may never exceed the lesser of either
(a) the total Combined Commitments and the Overline Facility,
or (b) the total Borrowing Base.
. The total Principal Debt of all Warehouse Borrowings may never
exceed the lesser of either (i) the total Warehouse
Commitments or (ii) the sum of the Borrowing Base for Mortgage
Collateral plus the Borrowing Base for Gestation Collateral
minus the Principal Debt of all Overline Borrowings.
. The total Principal Debt of all Swing Borrowings may never
exceed the Swing Sublimit.
. The total Principal Debt of all Wet Borrowings may never
exceed the Wet Sublimit.
. The total Principal Debt of all Gestation Borrowings may never
exceed the lesser of either (i) the Gestation Sublimit or (ii)
the Borrowing Base for Gestation Collateral.
. The total Principal Debt of all Nonconforming Borrowings may
never exceed the lesser of either (i) the Nonconforming
Sublimit or (ii) the Borrowing Base for Eligible-Nonconforming
Loans.
. The total Principal Debt of all Nonconforming-Bulk Borrowings
may never exceed the lesser of either (i) the Nonconforming
Sublimit or (ii) the Borrowing Base for Eligible-Nonconforming
Bulk Loans.
Ninth Amendment
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. The total Principal Debt of all Second-Lien Borrowings may
never exceed the lesser of either (i) the Second-Lien Sublimit
or (ii) the Borrowing Base for Eligible-Second-Lien Loans.
. The total Principal Debt of all Indirect-Warehouse Borrowings
may never exceed the lesser of either (i) the Indirect-
Warehouse Sublimit or (ii) the Borrowing Base for Eligible-
Indirect-Warehouse Loans.
. The total Principal Debt of all Repurchase Borrowings may
never exceed the lesser of either (i) the Repurchase Sublimit
or (ii) the Borrowing Base for Eligible-Repurchased Loans.
. Except for Agent in respect of Swing Borrowings, no Lender's
direct or indirect portion of the Principal Debt under this
clause (a) may ever exceed either its Warehouse Commitment or
its Commitment Percentage for Warehouse Borrowings.
. No Warehouse Borrowing may be made on a day that is not a
Business Day, or on or after the Warehouse-Actual-Termination
Date.
. Each disbursement of a Warehouse Borrowing must be at least
$25,000.
(G) The fourth bullet point in Section 2.1(c) is entirely deleted.
(H) Section 3.3 is entirely amended as follows:
3.3 Scheduled Payments. Unless otherwise provided in this
agreement, Borrower shall pay the Obligation in accordance
with the following table:
Obligation Payable
Interest on each LIBOR Borrowing except at As it accrues on (a) the last day of that
the Default Rate Borrowing's Interest Period and -- if that
Interest Period is longer than three months
-- 90 days after its first day and each 90
days after that and (b) on the
Warehouse-Actual-Termination Date (for
Warehouse and Working-Capital Borrowings) or
the final maturity date of the applicable
tranche for Term-Line Borrowings, as the case
may be
Interest on each other Borrowing except at On (a) the 15th day of each Calendar Month as
the Default Rate it accrued on the last day of the preceding
Calendar Month and (b) on the
Warehouse-Actual-Termination Date or the
final maturity date of the applicable tranche
for Term-Line Borrowings, as the case may be
Interest at the Default Rate regardless of On demand as it accrues
Borrowing-Price Category
Principal Debt of Swing Borrowings and On demand
Overline Borrowings
Other Principal Debt of, and other Obligation On the Warehouse-Actual-Termination Date
related to, Warehouse Borrowings and
Working-Capital Borrowings
Principal Debt of Tranche A outstanding on In consecutive, equal, monthly installments
the Tranche A-Actual-Termination Date commencing on the Tranche
A-Actual-Termination Date and continuing on
the same day of each ensuing Calendar Month,
with the last installment being made on
February 22, 2004, accompanied by the balance
of all related Obligation then remaining
unpaid
Principal Debt of Tranche B outstanding on In consecutive, equal, monthly installments
commencing on
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Obligation Payable
the Tranche B-Actual-Termination Date June 30, 1999, and continuing
on the same day of each ensuing Calendar
Month, with the last installment being made
on June 30, 2004, accompanied by the balance
of all Obligation then remaining unpaid
(I) Section 3.5(a)(ii) is entirely amended as follows:
(ii) Principal Debt of all non-Swing Borrowings in the order
below -- payable ratably to each Lender in accordance with its
Commitment Percentage -- except as the order may be rearranged by
Agent to the extent possible to avoid the application of any Funding
Loss for LIBOR Borrowings. Principal Debt shall be applied (A) to the
Borrowing-Purpose Category to the extent the collections or proceeds
are from or arose in respect of the Collateral in its Borrowing Base
and (B) then in the following order:
. Term-Line Borrowings
. Foreclosure Borrowings
. P&I Borrowings
. T&I Borrowings
. Nonconforming-Bulk Borrowings (Wet Borrowings first)
. Nonconforming Borrowings (Wet Borrowings first)
. Repurchase Borrowings (Wet Borrowings first)
. Second-Lien Borrowings (Wet Borrowings first)
. Indirect-Warehouse Borrowings (Wet Borrowings first)
. Other Wet Borrowings
. Other Dry Borrowings (other than Gestation Borrowings)
. Gestation Borrowings
(J) Section 3.5(b)(vi) is entirely amended as follows:
(vi) Principal Debt in the order below -- payable ratably to
each Lender in accordance with its Termination Percentage -- except as
the order may be rearranged by Agent to the extent possible to avoid
the application of any Funding Loss for LIBOR Borrowings. For
purposes of this section, no distinction shall be made whether the
Borrowings arose under the Warehouse Commitments or the Overline
Facility. Principal Debt shall be applied (A) to the Borrowing-
Purpose Category to the extent the collections or proceeds are from or
arose in respect of the Collateral in its Borrowing Base and (B) then
in the following order:
. Term-Line Borrowings
. Foreclosure Borrowings
. P&I Borrowings
. T&I Borrowings
. Nonconforming-Bulk Borrowings (Wet Borrowings first)
. Nonconforming Borrowings (Wet Borrowings first)
. Repurchase Borrowings (Wet Borrowings first)
. Second-Lien Borrowings (Wet Borrowings first)
. Indirect-Warehouse Borrowings (Wet Borrowings first)
. Other Wet Borrowings
. Other Dry Borrowings (other than Gestation Borrowings)
. Gestation Borrowings
(K) Section 3.14 is entirely amended as follows:
3.14 Fees. The following are not compensation for the use,
detention, or forbearance of money, are in addition to and not in lieu
of interest and expenses otherwise described in the Loan Documents,
are non-refundable, bear interest if not paid when due at
Ninth Amendment
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the Default Rate, and are calculated on the basis of actual days (including
the first but excluding the last) elapsed over a year of 360 days (or
actual days during that year, if the calculation would otherwise result in
exceeding the Maximum Amount and the payment were deemed to be interest
notwithstanding the above provisions to the contrary):
(a) Agent's Fees. Borrower shall pay to Agent -- for its
sole account -- administrative, syndication, and custodial fees
in amounts and upon such payment terms as may be separately
agreed upon by Borrower and Agent in writing.
(b) Warehouse Unused Facility Fee. Borrower shall pay to
Agent an unused facility fee for Lenders payable in arrears on
the 15th day of each Calendar Month for the preceding Calendar
Month and on the Warehouse-Actual-Termination Date. Each payment
of the unused facility fee is a percentage per annum calculated
for the period in which it accrued as the product of 0.125%
multiplied by the amount by which (i) the average-daily total
Warehouse Commitment exceeds (ii) the average daily Principal
Debt relating to Warehouse Borrowings.
(c) Working-Capital Commitment Fee. Borrower shall pay
to Agent a commitment fee for Lenders payable in arrears on the
15th day of the Calendar Quarter for the preceding Calendar
Quarter and on the Warehouse-Actual-Termination Date. Each
payment of the commitment fee is a percentage per annum
calculated for the period in which it accrued as the product of
0.150% multiplied by the total Working-Capital Commitment.
(d) Term-Line Commitment Fee. Borrower shall pay to
Agent a commitment fee for Lenders payable in arrears on the 15th
day of the Calendar Quarter for the preceding Calendar Quarter
and on the Tranche B-Stated-Termination Date. Each payment of the
commitment fee is a percentage per annum calculated for the
period in which it accrued as the product of 0.250% multiplied by
the amount by the total Term-Line Commitment.
(e) LC Issuance Fees. On the date that any LC is issued
under this agreement, Borrower shall pay to Agent -- for its sole
account --an LC issuance fee of 1.25% multiplied by the face
amount of the LC being issued.
(L) The phrase "or pooling" is entirely deleted from Section 4.5(a).
(M) Section 8.1 is entirely amended as follows:
8.1 Debt. No Company may directly or indirectly create, incur,
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permit to exist, or commit to create or incur (a) any Wet Borrowings except
in connection with this agreement or in connection with any Permitted Debt
whose description specifically allows for Wet Borrowings, (b) any mortgage
loan repurchase agreements (except in connection with any Permitted Debt
whose description specifically allows for mortgage loan repurchase
agreements or as otherwise permitted by Agent in writing), or (c) any other
Debt except the following (collectively, the "Permitted Debt"):
(i) Obligations to pay Taxes.
(ii) Liabilities for accounts payable, non-capitalized equipment
or operating leases, and similar liabilities if in each
case incurred in the ordinary course of business.
(iii) Accrued expenses, deferred credits, and loss contingencies
that are properly classified as liabilities under GAAP.
(iv) The Obligation.
Ninth Amendment
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(v) Up to $825,000 in Debt (including related letters of
credit and reimbursement agreements) under a municipal
bond financing facility with U.S. Bank National
Association (formerly known as Colorado National Bank).
(vi) Up to $1,235,000 in Debt under a land acquisition loan
from First Security Bank, which can be replaced by up to
$5,000,000 in Debt under a land acquisition/development
loan from Bank One, Colorado.
(vii) Up to $15,000,000 in warehouse Debt with Argo Federal
Savings Bank that involves financings of a Company's
origination or acquisition of mortgage loans until they
are sold in the secondary market.
(viii) Up to $400,000 in Debt (but not warehouse-type Debt) under
a facility with ▇▇▇▇▇-▇▇▇▇▇▇▇ (American Strategic Income
Portfolio, Inc.) as that amount may be reduced but not
increased at any time on or after the Closing Date.
(ix) Debt under a Revolving Subordinated Loan Agreement between
Borrower and Guarantor, providing (in terms acceptable to
Agent) that any liabilities arising under the Revolving
Subordinated Loan Agreement are expressly subordinated to
the Obligation.
(x) Guaranty by the Companies of up to $20,000,000 principal
and all other indebtedness of Matrix Bancorp, Inc. under a
combination revolving and term credit facility provided by
Bank One, Texas, N.A., and other lenders, as that facility
may be renewed, extended, amended, or restated from time
to time.
(xi) Debt (other than the above) incurred after the date of
this agreement, never to exceed $250,000 unless approved
by Agent in writing.
(N) Section 8.2(ix) is entirely deleted.
(O) Sections 8.3(xi) through (xiv), and the last paragraph of Section 8.3,
are entirely amended as follows:
(xi) An investment in real property in Ft. ▇▇▇▇▇▇, Colorado,
valued up to $5,000,000.
(xii) Investments in Pulte Corporation model homes, valued at no
more than $500,000.
(xiii) Loans to Approved Originators under Indirect-Warehouse
Loans Agreements with a maximum commitment of $5,000,000 to each
individual Approved Originator.
(xiv) Other loans, advances, or investments, so long as the
aggregate amount outstanding (defined as the amount of any such loans
or advances plus the cost of any such investments) is never more than
$100,000 at any one time.
At no time may the aggregate market value of all Permitted
Loans/Investments (other than Mortgage Loans and Mortgage Securities
described in Section 8.3(iii) and loans described in Section 8.3(xiii)
above) exceed an aggregate value of more than $6,000,000.
(P) A new Section 8.16 is added as follows:
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8.16 Underwriting Guidelines. No Company may make any material
change to its underwriting guidelines.
(Q) Section 9 is entirely amended as follows:
SECTION 9. FINANCIAL COVENANTS. Until all commitments by
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Lenders to extend credit under this agreement have been canceled or
terminated and the Obligation is fully paid and performed, Borrower
covenants and agrees with Agent and Lenders as follows:
9.1 Net Worth.
(a) The Companies' Net Worth may never be less than
the greater of: (i) $13,000,000, or (ii) 90% of actual Net
Worth as of the preceding fiscal year end, plus 90% of
positive Net Income for each Calender Month following such
date, plus 90% of all contributions to any Company's
stockholders' equity made on or after such date.
(b) The Companies' Adjusted-Net Worth may never be
less than the greater of: (i) $25,000,000, or (ii) 90% of
actual Adjusted-Net Worth as of the preceding fiscal year
end, plus 90% of positive Net Income for each Calender Month
following such date, plus 90% of all contributions to any
Company's stockholders' equity made on or after such date.
(c) The Companies' Adjusted-Tangible-Net Worth may
never be less than the greater of: (i) $25,000,000, or (ii)
90% of actual Adjusted-Tangible-Net Worth as of the
preceding fiscal year end, plus 90% of positive Net Income
for each Calender Month following such date, plus 90% of all
contributions to any Company's stockholders' equity made on
or after such date.
9.2 Leverage. The ratio of the Companies' Total-Adjusted
Debt to Adjusted-Tangible-Net Worth may never exceed 8.0 to 1.0.
9.3 Servicing Leverage. The ratio of outstanding Term-Line
Borrowings outstanding to the Companies' Adjusted-Net Worth may
never exceed 2.5 to 1.0.
9.4 Subordinated Debt Leverage. The ratio of any Permitted
Debt outstanding under the Revolving Subordinated Loan Agreement
to the Companies' Net Worth may never exceed 2.0 to 1.0.
9.5 Cash Flow. The ratio of the Companies' historical Cash
Flow to historical CMLTD may never be less than 1.3 to 1.0 at the
end of any 12-month period, calculated as of the last day of each
Calendar Month.
9.6 Servicing Portfolio. The Servicing Portfolio may never
be less than $4,000,000,000. Agency servicing must represent a
minimum of 65% of the total Servicing Portfolio.
9.7 Servicing Delinquencies. The ratio of mortgage loans
in the Servicing Portfolio that are 30 days or more delinquent,
or in foreclosure or bankruptcy, to the Servicing Portfolio, may
not exceed 8.0%. The ratio of mortgage loans in the Servicing
Portfolio that are 90 days or more delinquent, or in foreclosure
or bankruptcy, to the Servicing Portfolio, may not exceed 3.0%.
9.8 Debt to Servicing Portfolio.
Ninth Amendment
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(a) The Principal Debt of Term-Line Borrowings may
never exceed the lesser of either (i) 1.25% of the unpaid
principal balance of the Servicing Portfolio, or (ii) 70% of
the Appraised Value of the Servicing Portfolio.
(b) The Principal Debt of Working-Capital Borrowings
and Term-Line Borrowings may never exceed the lesser of
either (i) 1.25% of the unpaid principal balance of the
Servicing Portfolio, or (ii) 95% of the Appraised Value of
the Servicing Portfolio.
(R) Exhibit C-5 is entirely deleted.
(S) A new Exhibit G is added in the form of the attached Exhibit G.
(T) Schedules 2, 4.1, 4.2, 4.3, 6.9, and 6.10 and Exhibits ▇-▇, ▇-▇, ▇-▇,
▇-▇, ▇-▇, ▇-▇, and D-6 are entirely amended in the forms of, and all references
in the Credit Agreement to those schedules and exhibits are changed to, the
attached Fifth Amended Schedule 2, Amended Schedule 4.1, Amended Schedule 4.2,
Amended Schedule 4.3, Second Amended Schedule 6.9, Amended Schedule 6.10,
Amended Exhibit C-3, Amended Exhibit C-4, Amended Exhibit C-5, Second Amended
Exhibit D-1, Amended Exhibit D-2, Second Amended Exhibit D-3, and Amended
Exhibit D-6 respectively.
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 and substance acceptable to
Agent and its special counsel.
4. 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 .
5. 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.
6. EXPENSES. Borrower shall pay all costs, fees, and expenses paid or
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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.
Ninth Amendment
11 ---------------
7. MISCELLANEOUS. All references in the Loan Documents to the "Loan
-------------
Agreement" 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 PAGE FOLLOWS.
Ninth Amendment
12 ---------------
EXECUTED as of the date first stated in this Ninth Amendment to Amended and
Restated Loan Agreement.
MATRIX FINANCIAL SERVICES CORPORATION, as Borrower BANK ONE, TEXAS, N.A., as Agent, as a Lender, and as
Bank One
By /s/ By /s/
---------------------------------------------- ------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
U.S. BANK NATIONAL ASSOCIATION, formerly RESIDENTIAL FUNDING CORPORATION, as a Lender
Colorado National Bank, as a Lender
By /s/ By /s/
---------------------------------------------- ------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Vice President ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, 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 BANCORP, INC., as Guarantor
By /s/
-------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇, Chief Executive
Officer and President
Signature Page to Ninth Amendment