Exhibit 10.9
NINTH MODIFICATION AGREEMENT
THIS MODIFICATION AGREEMENT (the "Agreement") is made as of the 14th day of
February, 2001, by and among E-LOAN, INC. (the "Borrower"), XXXXXX RIVER FUNDING
INC. (the "Lender") and GE CAPITAL MORTGAGE SERVICES, INC. (the "Agent").
BACKGROUND
The Borrower, the Lender and the Agent entered into a Warehouse Credit
Agreement dated as of June 24, 1998, as amended (as so amended, the "Warehouse
Credit Agreement") pursuant to which the Lender agreed to make advances (the
"Advances") to the Borrower in accordance with the provisions of the Warehouse
Credit Agreement. All capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the Warehouse Credit Agreement.
The Advances are evidenced by the Borrower's Second Amended and Restated
Note dated as of July 28, 1999 (the "Note") in the stated principal amount of
$50,000,000 and secured by, among other things, a Warehouse Security Agreement
dated as of June 24, 1998, as amended (as so amended, the "Warehouse Security
Agreement") between the Borrower and the Agent granting the Agent a security
interest in certain of the Borrower's assets.
The Borrower has requested that the Lender make certain modifications to
the terms of the Warehouse Credit Agreement, and the Lender and the Agent have
agreed to such modifications subject to the terms and conditions of this
Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. Warehouse Credit Agreement. The Warehouse Credit Agreement
is hereby amended as follows:
(a) Clauses (10) and (11) of Section 2.01 of the Warehouse Credit Agreement
is amended to read in full as follows:
"(10) the aggregate principal amount of Advances outstanding
at any time secured by Eligible HELOCs shall not exceed
$10,000,000 (the "HELOC Commitment") (provided, however, that
from February 9, 2001 through February 28, 2001, the HELOC
Commitment shall be increased to $12,500,000)," and (11) the
aggregate principal amount of Advances outstanding at any time
secured by Eligible Nonconforming Mortgage Loans and Eligible
HELOCs shall not exceed $10,000,000 (provided, however, that
from February 9, 2001 through February 28, 2001, the aggregate
principal amount of Advances outstanding at any
Exhibit 10.9
time secured by Eligible Nonconforming Mortgage Loans and
Eligible HELOCs shall not exceed $12,500,000)."
(b) Section 4.02(s) of the Warehouse Credit Agreement is amended to read in
full as follows:
"(s) if on any date the aggregate principal amount of
Advances secured by Eligible Nonconforming Mortgage Loans and
Eligible HELOCs exceeds $10,000,000, the Borrower shall
immediately prepay the principal of Advances secured by
Eligible Nonconforming Mortgage Loans and Eligible HELOCs in
an aggregate amount equal to such excess (provided, however,
that if on any date from February 9, 2001 through February 28,
2001 the aggregate principal amount of Advances secured by
Eligible Nonconforming Mortgage Loans and Eligible HELOCs
exceeds $12,500,000, the Borrower shall immediately prepay the
principal of Advances secured by Eligible Nonconforming
Mortgage Loans and Eligible HELOCs in an aggregate amount
equal to such excess)."
2. REFERENCES TO WAREHOUSE CREDIT AGREEMENT. Upon the effectiveness of this
Agreement, each reference in the Warehouse Credit Agreement to "this Agreement,"
"hereunder," "hereof," "herein" or words of like import, and each reference in
the Note and the Warehouse Security Agreement to the Warehouse Credit Agreement
shall mean and be a reference to the Warehouse Credit Agreement as amended
hereby.
3. RATIFICATION OF DOCUMENTS.
(a) Except as specifically amended herein, the Warehouse Credit Agreement, the
Note and the Warehouse Security Agreement shall remain unaltered and in full
force and effect and are hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this Agreement shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of the Lender or the Agent under the Warehouse Credit Agreement, the Note
or the Warehouse Security Agreement nor constitute a waiver of any default or
Event of Default under the Warehouse Credit Agreement, the Note or the Warehouse
Security Agreement.
4. Representations and Warranties. The Borrower hereby certifies that (i)
the representations and warranties which it made in the Warehouse Credit
Agreement and the Warehouse Security Agreement are true and correct as of the
date hereof and (ii) no Event of Default and no event which could become an
Event of Default with the passage of time or the giving of notice, or both,
under the Note, the Warehouse Credit Agreement or the Warehouse Security
Agreement exists on the date hereof.
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Exhibit 10.9
5. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed according to the laws
of the State of New York without regard to principles of conflicts of laws and
shall be binding upon and shall inure to the benefit of the parties hereto,
their successors and assigns.
(b) This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(c) This Agreement is intended to take effect as a document under seal.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
E-LOAN, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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President
XXXXXX RIVER FUNDING INC.
By: /s/ illegible
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Assistant Treasurer
GE CAPITAL MORTGAGE SERVICES, INC.
By: /s/ illegible
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Vice President
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