AMENDMENT NO. 1 TO CONTRIBUTION AGREEMENT

 

                                 AMENDMENT NO. 1

 

                                       TO

 

                             CONTRIBUTION AGREEMENT

 

     This Amendment No. 1 (this "Amendment") to the Contribution   Agreement (the

"Contribution Agreement") dated as of December 1, 2004, by and among BLUFF POINT

ASSOCIATES CORP., a Delaware corporation,   THE MCINERNEY/GABRIELE FAMILY LIMITED

PARTNERSHIP,   a Delaware limited partnership,   LET LEE, R. CLIFTON D'AMATO, JOHN

H. MOODY, OPTECH SYSTEMS, INC., a Delaware corporation,   MSCS VENTURES,   INC., a

Colorado   corporation,   MATRIX   BANCORP,   INC., a Colorado   corporation,   MATRIX

CAPITAL BANK, a federally chartered savings bank ("Matrix Capital Bank"), and MG

COLORADO HOLDINGS,   INC., a Delaware   corporation ("MG Colorado   Holdings"),   is

entered   into as of the 23rd day of   March,   2005 by the   parties   hereto.   (All

capitalized   terms used and not otherwise defined herein shall have the meanings

ascribed thereto in the Contribution Agreement.)

 

                                    WITNESSETH

 

     WHEREAS,    the   Parties   have   heretofore   entered   into   the   Contribution

Agreement;

 

     WHEREAS,   the   Contribution   Agreement   provides   for the   contribution   of

Acquired   Assets by Matrix Capital Bank to MG Colorado   Holdings in exchange for

seventy-five thousand (75,000) shares of MG Colorado Holdings Stock at the Trust

Operations Closing;

 

     WHEREAS,   the   Parties   desire to amend   the   Contribution   Agreement   with

respect to the structure of the   contribution   of the Acquired   Assets by Matrix

Capital Bank to MG Colorado   Holdings at the Trust Operations   Closing such that

Matrix   Capital Bank:   (i) will   organize a   newly-formed   wholly-owned   limited

liability   company in the State of   Colorado   ("MCB Sub") which will elect to be

treated as a   disregarded   entity for   federal   income tax   purposes,   (ii) will

transfer, prior to the Trust Operations Closing, the Acquired Assets to MCB Sub,

and (iii)   sell,   transfer   and convey,   at the Trust   Operations   Closing,   all

rights,   title and interests of Matrix   Capital Bank in and to all of the issued

and outstanding   membership   interests in MCB Sub to MG Colorado Holdings,   free

and clear of any and all liens and   encumbrances   except as otherwise   set forth

herein,   in exchange for   seventy-five   thousand   (75,000) shares of MG Colorado

Holdings Stock, all as provided in the Contribution Agreement as amended by this

Amendment;

 

     WHEREAS, upon the effectuation of the Trust Operations Closing, MG Colorado

Holdings, through its ownership of MCB Sub, will own the Acquired Assets.

 

     NOW, WHEREFORE, in consideration of the recitals above, the mutual premises

set forth   herein,   and other good and valuable   consideration,   the receipt and

legal sufficiency of which is hereby acknowledged, the Parties agree as follows:

 

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Section 1.   Formation of MCB Sub;   Regulatory   Approvals.   Section 1.3(e) of the

Contribution Agreement is hereby amended in its entirety to read as follows:

 

     "(e)   Matrix   Capital   Bank   shall   organize   MCB   Sub   as   a   newly-formed

wholly-owned   limited liability company under the laws of the State of Colorado.

Matrix Capital Bank will   contribute   the Trust   Operations to MCB Sub and shall

contemporaneously   therewith   transfer,   sell and assign to MG Colorado Holdings

all of its right, title and interest in and to one hundred percent (100%) of all

issued   and   outstanding    membership    interests   of   MCB   Sub   (the   "MCB   Sub

Interests"),   free and clear of any Lien (as more fully described in Section 1.6

hereto).   If (i)   Matrix   Capital   Bank   has not   yet   received   the   applicable

regulatory   approvals   (which shall   include,   where   applicable,   statements of

non-objection by a regulatory   authority),   if any, necessary for Matrix Capital

Bank to organize MCB Sub,   contribute the Trust Operations to MCB Sub, and sell,

transfer   and   assign   the   MCB   Sub   Interests   to   MG   Colorado    Holdings   as

contemplated   herein (any and all such approvals being referred to herein as the

'MCB Regulatory Approvals'),   (ii) MG Colorado Holdings has not yet received the

applicable   regulatory   approvals   necessary   for the   Trust   Entity   to own and

operate the Trust Operations or for MG Colorado Holdings to acquire, directly or

indirectly,   the MCB Sub Interests (the 'MGHC Regulatory Approvals'),   and (iii)

Matrix   Capital   Bank has not yet   received   the other third   party   consents or

approvals   identified in Schedule 7.5,   Schedule 7.6 and/or Schedule 7.12 hereto

necessary or appropriate in order to contribute the Trust Operations to MCB Sub,

sell,   transfer and assign the MCB Sub   Interests to MG Colorado   Holdings,   and

assign the Acquired Contracts by MCB Sub to Trust Entity (the 'Miscellaneous MCB

Approvals'), then upon the receipt of such approvals identified in (i), (ii) and

(iii) above (which are   collectively   referred to herein sometimes as the 'Trust

Operations Approvals), Matrix Capital Bank and MG Colorado Holdings will hold a

subsequent   closing (the 'Trust Operations   Closing') and at such time,   execute

all   documents   reasonably   necessary to effect such   contribution   of the Trust

Operations   to MCB Sub   (including,   but   not   limited   to,   an   assignment   and

assumption   agreement and a bill of sale), the sale,   transfer and assignment of

the MCB Sub Interests to MG Colorado Holdings, free of clear of any Lien and the

contribution   of the MCB Sub   Interests   by MG   Colorado   Holdings   to the Trust

Entity.   In exchange,   MG Colorado   Holdings   will issue to Matrix   Capital Bank

seventy-five   thousand   (75,000)   shares of MG   Colorado   Holdings   Stock.   Such

seventy-five   thousand   (75,000)   shares of MG Colorado   Holdings Stock shall be

held in escrow by Ellenoff   Grossman & Schole LLP ('EGS') in accordance   with an

escrow agreement by and among MG Colorado Holdings, Matrix Capital Bank and EGS,

as escrow agent (the 'Escrow   Agreement'),   in substantially the form of Exhibit

BB attached hereto,   until the earlier of: (A) the Trust Operations   Closing, or

(B) December 1, 2005 (the 'Expiration   Date'). Upon the receipt of all the Trust

Operations   Approvals and the effectuation of the Trust Operations Closing,   the

escrowed shares   described herein will be released to Matrix Capital Bank, which

will,   immediately   after such issuance of the   seventy-five   thousand   (75,000)

shares and release   from   escrow,   transfer   and sell such shares of MG Colorado

Holdings   Stock to MSCS Ventures and such transfer and sale shall be exempt from

the restrictive provisions of the Stockholders Agreement.   However, if the Trust

Operations   Approvals have not been obtained   prior to the Expiration   Date, the

escrowed shares shall be released to MG Colorado   Holdings for   cancellation and

all parties shall be relieved from any further   obligations   in connection   with

the formation of the MCB Sub, the   contribution   of the Trust   Operations to MCB

Sub,   the sale,   transfer   and   assignment   of the MCB Sub   Interests   by Matrix

Capital Bank to MG Colorado Holdings,   the contribution of the MCB Sub Interests

 

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to the Trust Entity,   and the assignment of the Acquired Contracts by MCB Sub to

Trust Entity."

 

Section 2. Trust Operations Closing.   Section 1.6 of the Contribution   Agreement

is hereby amended in its entirety to read as follows:

 

     "1.6   Trust   Operations   Closing.   Subject   to the   terms   hereof   and   the

conditions   set forth in Section   9.2 and   Section   9.4   herein,   including   the

Expiration Date, upon receipt of all Trust Operations Approvals,   Matrix Capital

Bank and MG Colorado   Holdings shall hold the Trust   Operations   Closing,   which

shall be held on a date agreed to by the Parties (the 'Trust Operations   Closing

Date')   which   shall be on or   before   the later of (i) ten (10)   business   days

following   the end of the   calendar   month   during   which   the last of the Trust

Operations   Approvals   is   received   or   (ii)   thirty-five   (35)   business   days

following the date that all Trust Operations Approvals shall have been obtained.

At the Trust Operations Closing, pursuant to the terms hereof and subject to the

conditions   set forth in Section 9.2 and Section 9.4 herein,   (A) Matrix Capital

Bank shall transfer, assign, convey and deliver to MCB Sub, all right, title and

interest in and to all of the assets, whether real, personal and mixed, tangible

or   intangible,   used   directly   or   indirectly   by   Matrix   Capital   Bank in or

otherwise   relating   to the   Trust   Operations,   and as owned or held by   Matrix

Capital Bank, all as more specifically   identified in the Schedules listed below

in this   Section 1.6 (the   'Acquired   Assets')   and (B) MCB Sub shall assume all

liabilities   associated with such Acquired Assets,   as listed on Schedule 1.6(z)

hereto, and shall assume the obligation to discharge all assumed   liabilities as

they   become due and   payable   (the   'Assumed   Obligations').   Also at the Trust

Operations   Closing,   Matrix   Capital Bank shall   transfer,   assign,   convey and

deliver to MG Colorado Holdings, all right, title and interest in and to the MCB

Sub Interests to MG Colorado Holdings, free and clear of all Liens.

 

     The Acquired Assets shall include all of Matrix Capital Bank's right, title

and   interest in and to the   following,   wherever   located,   effective as of the

Trust Operations Closing Date:

 

          (a) all contracts   for   performance   of services as more   specifically

identified   on Schedule   1.6(a)   hereto   (the   'Acquired   Contracts'),   payments

previously   made or due under such   contracts   will be   distributed   pursuant to

Section 1.7 hereof;

 

          (b) all customer trust and custodial   accounts,   including the cash on

hand, cash   equivalents,   certificates   of deposit and deposits,   bank and money

market accounts,   and securities associated therewith of the Trust Operations as

of the Trust   Operations   Closing Date, all as more   specifically   identified in

Schedule 1.6(b) hereto;

 

          (c) all goodwill related to the Acquired Assets;

 

          (d) the licenses   used in   connection   with the operation of the Trust

Operations that are identified on Schedule 1.6(d) hereto;

 

          (e) the customer   lists,   customer   mailing   lists and customer   sales

files which are used in connection   with the operation of the Trust   Operations,

all as more specifically identified in Schedule 1.6(e) hereto;

 

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          (f) all of Matrix   Capital   Bank's   interest   and rights in and to the

agreements, contracts and commitments, relating to the Trust Operations to which

Matrix   Capital   Bank is a party or by which its   assets   are bound and that are

more specifically identified in Schedule 1.6(f) hereto;

 

          (g) [reserved];

 

          (h)   the   computer   software   and   programs   and   any   rights   thereto

associated with or employed in the conduct of the Trust   Operations and that are

identified in Schedule 1.6(h) hereto;

 

          (i) all payments,   deposits and prepaid   expenses   associated with the

leases   and   subleases   associated   with   the   Trust   Operations,   all   as   more

specifically identified in Schedule 1.6(i) hereto;

 

          (j) the rights of Matrix   Capital   Bank to the   permits (to the extent

the same are   transferable)   directly or   indirectly   relating   primarily to the

Trust Operations and that are identified in Schedule 1.6(j) hereto;

 

          (k) all of the   Trust   Operations'   business   and   marketing   records,

including copies of accounting and operating records,   asset ledgers,   inventory

records,    budgets,    customer   lists,   supplier   lists,   information   and   data

respecting leased or owned equipment, correspondence, and other business records

directly related to the Trust Operations, all as more specifically identified in

Schedule   1.6(k)   hereto,   but   excluding   specifically   any and all   regulatory

correspondence, exam reports and other filings and documents that Matrix Capital

Bank   is    specifically    prohibited   by   applicable   law   from    disclosing   or

transferring   to MCB Sub or MG Colorado   Holdings (if such entity was considered

the   purchaser   hereunder),   including   pursuant   to   applicable   OTS   rules and

regulations (the 'Excluded Books and Records');

 

          (l)   the   furniture,    equipment,    fixtures   and   computer    hardware

associated with the Trust   Operations,   all as more   specifically   identified in

Schedule 1.6(l) hereto;

 

          (m) all   original   books,   financial   records and ledgers of the Trust

Operations (other than tax returns, minute books, stock records and the Excluded

Books and   Records),   provided,   however   that such   materials   (other   than the

Excluded    Books   and   Records)   will   be   made   available   for   inspection   and

photocopying   by MG Colorado   Holdings   upon request   including any such records

which are maintained in electronic form;

 

          (n) the Intellectual   Property (as defined in Section 7.15) related to

the Trust Operations that is identified on Schedule 1.6(n) hereto;

 

          (o) all   claims,   choses-in-action,   warranties,   refunds,   rights   of

recovery, rights of set-off and rights of recoupment of any kind relating to the

payment of taxes of the Trust   Operations for periods after the Trust Operations

Closing Date;

 

          (p) all mail or other communications   addressed to Matrix Capital Bank

and directly relating to the Trust Operations;

 

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          (q) the surety bond regarding signature authentication,   to the extent

assignable; and

 

          (r) any and all   interests   and rights to the use of federal   Employer

Identification Number 010609808 currently being utilized by the Trust Operations

('Federal ID Number');   provided,   that   notwithstanding any other provisions of

this   Agreement to the contrary,   Matrix   Capital Bank makes no   representation,

warranty,   promise or agreement,   whether specific or implied, as to its ability

to   transfer or assign its rights to the Federal ID Number or the ability of MCB

Sub, MG Colorado Holdings, the Trust Entity or MSCS to use the Federal ID Number

on or after the Trust Operations   Closing;   and MG Colorado Holdings,   MSCS, MCB

Sub and Trust   Entity   hereby   specifically   acknowledge   and agree that   Matrix

Capital   Bank shall have no liability to any of them for any use or inability to

use the Federal ID Number on and after the Trust Operations Closing.

 

     Notwithstanding   the foregoing,   the assets   identified on Schedule   1.6(s)

hereto shall not be contributed or transferred to MCB Sub in connection herewith

and shall be excluded   from the   definition   of 'Acquired   Assets'   (such assets

being referred to herein as the 'Excluded Assets').

 

     Notwithstanding anything herein to the contrary,   Matrix Capital Bank shall

deliver to MG Colorado   Holdings updated Schedules called for by Section 1.6 and

Article VII hereto (A) initially on the date of execution of this   Agreement and

(B) as updated on or before April 8, 2005. MG Colorado   Holdings shall have five

(5)   business   days   following   receipt of such   updated   Schedules   from Matrix

Capital Bank to either approve or reject such Schedules."

 

Section 3. Representations and Warranties of Matrix Capital Bank. Article VII of

the Contribution Agreement is hereby amended in its entirety to read as follows:

 

     "Matrix Capital Bank hereby represents and warrants to MG Colorado Holdings

and to each of the Contributing   Parties as follows (all references to the Trust

Operations   refer to the Trust   Operations from such time as Matrix Capital Bank

commenced Trust Operations and through the Trust Operations Closing Date):

 

     7.1   Organization.   Matrix   Capital   Bank is a   federal   savings   bank duly

organized   and validly   existing   under the laws of the United States of America

and has full power to own its assets and to conduct its   business   as   presently

conducted.   Matrix Capital Bank is exempt from   qualification   to do business in

any state.

 

     7.2 Authority. Matrix Capital Bank has all requisite power and authority to

execute,   deliver and perform its obligations under this Agreement and the other

agreements,   certificates   and instruments to be executed by Matrix Capital Bank

in   connection   with or pursuant to this   Agreement   (collectively,   the 'Matrix

Capital Bank   Documents').   The   execution,   delivery and   performance by Matrix

Capital Bank of this   Agreement and the other Matrix Capital Bank Documents have

been duly authorized by all necessary action on the part of Matrix Capital Bank.

This   Agreement has been, and at the Closing and the Trust   Operations   Closing,

the other Matrix   Capital Bank Documents will be, duly executed and delivered by

Matrix   Capital Bank.   This   Agreement   is, and, upon   execution and delivery by

Matrix Capital Bank at the Closing and the Trust Operations Closing, each of the

other   Matrix   Capital   Bank   Documents   will   be, a legal,   valid   and   binding

agreement of Matrix   Capital Bank,   enforceable   against   Matrix Capital Bank in

 

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accordance   with its   terms,   except as such   enforceability   may be   limited by

applicable   bankruptcy,    insolvency,   fraudulent   conveyance   or   similar   laws

affecting the enforcement of creditor's   rights generally and subject to general

principles   of   equity   (regardless   of   whether   enforcement   is   sought   in   a

proceeding at law or in equity).

 

     7.3 Title to the Trust Operations.   Except for the Assumed   Obligations and

as set forth in Schedule 7.3,   Matrix   Capital Bank owns (through MCB Sub at the

Trust Operations   Closing) the Trust Operations and the Trust Operations are not

subject   to   any   mortgage,   encumbrance   or   Lien   of   any   kind   except   minor

encumbrances,   which do not   materially   interfere with the conduct of the Trust

Operations.   Upon the transfer of the MCB Sub Interests to MG Colorado Holdings,

MG Colorado   Holdings will own the Trust   Operations   free and clear of any Lien

and subject to no legal or equitable   restrictions   of any kind,   except for the

Assumed Obligations.

 

     7.4 No Options or Rights.   There are not   outstanding   options or rights to

acquire any interests in or any of the assets of the Trust Operations.

 

     7.5   No   Violation.   Except   as   described   in   Schedule 7.5,   neither   the

execution or delivery of the Matrix Capital Bank Documents nor the   consummation

of the   transactions   contemplated   thereby,   including   without   limitation the

transfer of the MCB Sub Interests to MG Colorado   Holdings will conflict with or

result in the breach of any term or provision of, require   consent or violate or

constitute a default under (or an event that with notice or the lapse of time or

both would   constitute   a breach or   default),   or result in the creation of any

Lien on any of the assets of the Trust Operations, or relieve any third party of

any   obligation   to the Trust   Operations   or give any third   party the right to

terminate or accelerate   any obligation   under,   any charter   provision,   bylaw,

contract,   agreement, Permit or Law to which any of Matrix Capital Bank, MCB Sub

or the Trust Operations is a party or by which any asset of the Trust Operations

is in any way bound or obligated.

 

     7.6   Governmental   Consents.   Except   for the   Trust   Operations   Approvals

contemplated    by   Section   1.3(e)   of   this   Agreement   and   as   set   forth   on

Schedule 7.6,   no consent, approval, order or authorization of, or registration,

qualification,   designation,   declaration   or filing with, any   governmental   or

regulatory   body is required on the part of any of Matrix   Capital Bank, MCB Sub

or the   Trust   Operations   in   connection   with the   contribution   of the   Trust

Operations   by Matrix   Capital   Bank to MCB Sub and the   transfer of the MCB Sub

Interests to MG Colorado Holdings or any of the other transactions   contemplated

by this Agreement.

 

     7.7 Litigation. Except as described in Schedule 7.7, there are currently no

pending   or, to the   Knowledge   of Matrix   Capital   Bank,   threatened   lawsuits,

administrative   proceedings,    arbitrations,    reviews   or   formal   or   informal

complaints or   investigations   ('Litigation')   by any   individual,   corporation,

partnership,   customer,   affiliate,   governmental   or   regulatory   body or other

entity   (each,   a   'Person')   relating   to the Trust   Operations,   or any of its

employees or agent (in their   capacities   as such) or to which any assets of the

Trust   Operations are subject or relating to the   transactions   contemplated   by

this Agreement or the consummation   thereof, nor, to the Knowledge of the Matrix

Capital Bank, is there any basis therefor.   The Trust Operations are not subject

 

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to or bound by any   currently   existing   judgment,   order,   writ,   injunction or

decree.

 

     7.8 Compliance with Laws. In connection with the Trust   Operations,   Matrix

Capital Bank is currently complying with and has at all times complied with each

applicable   statute,   law, ordinance,   decree,   order, rule or regulation of any

governmental or regulatory body,   including,   without   limitation,