Exhibit 10.99
REVOLVING CREDIT NOTE
EFFECTIVE AS OF
$25,000,000 APRIL 2, 2001 ("NOTE DATE")
FOR VALUE RECEIVED, the undersigned, E-LOAN, INC., a Delaware
corporation, ("MAKER"), hereby unconditionally promises to pay on the first
anniversary of the Note Date to the order of BANK ONE, NA, a national banking
association with its principal offices in Columbus, Ohio ("LENDER"), not later
than noon, Eastern Time, at its office located at 0000 Xxxxxxx Xxxxxxx #0X,
Xxxxxxxx, Xxxx 00000 or at such other place as may be designated by Lender from
time to time, in lawful money of the United States of America and in immediately
available funds, the principal amount of the lesser of (i) TWENTY-FIVE MILLION
AND NO/100 DOLLARS ($25,000,000), or (ii) the aggregate unpaid principal balance
of all Revolving Credit Loans (as defined in that certain Loan Agreement, dated
as of even date herewith by and between Maker and Lender, as amended, modified
or supplemented from time to time, the "LOAN AGREEMENT") made by Xxxxxx to the
undersigned pursuant to the Loan Agreement, together with any interest from the
date hereof until maturity at the rates per annum provided below. Capitalized
terms not otherwise defined herein shall have the meanings ascribed to such
terms in the Loan Agreement.
1. RATES OF INTEREST AND PAYMENTS. Subject to the provisions of the
Loan Agreement, Maker agrees to pay interest in like money on the unpaid
principal amount hereof from time to time outstanding from the date hereof until
the principal balance hereof is paid in full at a fluctuating rate per annum
equal to the applicable rate of interest as set forth in the Loan Agreement.
Principal and interest payments on the unpaid principal balance and accrued
interest due hereunder shall be made and applied in accordance with the
provisions of the Loan Agreement, particularly Sections 2.5, 2.6, 2.7, 2.8, 2.9,
2.11 and 2.12 of the Loan Agreement. The provisions of Sections 2.6 and 8.16 of
the Loan Agreement shall control the computation of interest hereunder.
2. NOTICES. All notices required or permitted hereunder shall be in
writing, and given in the manner, and addressed to the Maker and Lender at the
addresses set forth in, Section 8.1 of the Loan Agreement, or at such other
address as such party may from time to time designate by written notice to the
others.
3. LOAN AGREEMENT. This is the Revolving Credit Note referred to in
the Loan Agreement, and the holder hereof is entitled to all the benefits
provided therein and in the other Loan Documents. Reference is made to the Loan
Agreement and the other Loan Documents which, among other things, contain
provisions regarding optional and mandatory prepayment and acceleration of
maturity upon certain Events of Default described therein. This Revolving Credit
Note is secured by the Security Documents.
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Exhibit 10.99
4. WAIVERS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED FOR IN THE LOAN
AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE MAKER, SIGNERS, SURETIES,
GUARANTORS, ENDORSERS AND OTHER PARTIES EVER LIABLE FOR PAYMENT OF ANY SUMS OF
MONEY PAYABLE ON THIS REVOLVING CREDIT NOTE JOINTLY AND SEVERALLY WAIVE
VALUATION AND APPRAISAL, DEMAND, PRESENTMENT, NOTICE OF DISHONOR, NOTICE OF
INTENT TO DEMAND OR ACCELERATE PAYMENT HEREOF, NOTICE OF DEMAND, NOTICE OF
ACCELERATION, DILIGENCE IN COLLECTING, GRACE, NOTICE, AND PROTEST, AND AGREE TO
ONE OR MORE RENEWALS OR EXTENSIONS FOR ANY PERIOD OR PERIODS OF TIME, PARTIAL
PAYMENTS, AND RELEASES OR SUBSTITUTIONS OF SECURITY, IN WHOLE OR IN PART, WITH
OR WITHOUT NOTICE, BEFORE OR AFTER MATURITY. NO WAIVER BY LENDER OF ANY OF ITS
RIGHTS OR REMEDIES HEREUNDER OR UNDER ANY OTHER DOCUMENT EVIDENCING OR SECURING
THIS REVOLVING CREDIT NOTE OR OTHERWISE SHALL BE CONSIDERED A WAIVER OF ANY
OTHER SUBSEQUENT RIGHT OR REMEDY OF LENDER; NO DELAY OR OMISSION IN THE EXERCISE
OR ENFORCEMENT BY LENDER OF ANY RIGHTS OR REMEDIES SHALL EVER BE CONSTRUED AS A
WAIVER OF ANY RIGHT OR REMEDY OF LENDER; AND NO EXERCISE OR ENFORCEMENT OF ANY
SUCH RIGHTS OR REMEDIES SHALL EVER BE HELD TO EXHAUST ANY RIGHT OR REMEDY OF
LENDER.
5. LEGAL FEES. If this Revolving Credit Note shall be collected by
legal proceedings or through a probate or bankruptcy court, or shall be placed
in the hands of an attorney for collection after an Event of Default or
maturity, the undersigned agrees to indemnify Lender for all costs of
collection, including, but not limited to court costs and reasonable attorneys'
fees.
6. ACCELERATION. Upon the occurrence of one or more of the Events of
Default specified in the Loan Agreement, the holder thereof may, at its option,
declare the entire unpaid balance of principal and accrued interest on this
Revolving Credit Note to be immediately due and payable, without notice of any
kind.
7. AGREEMENT WITH RESPECT TO PREVENTION AND RESOLUTION OF DISPUTES.
THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH A CERTAIN AGREEMENT WITH RESPECT TO PREVENTION AND
ENFORCEMENT OF DISPUTES ("DISPUTE RESOLUTION AGREEMENT"), THE TERMS AND
PROVISIONS OF WHICH ARE INCORPORATED HEREIN. AMONG OTHER PROVISIONS, THE DISPUTE
RESOLUTION AGREEMENT PROVIDES FOR WAIVER OF JURY BY XXXXXX AND MAKER,
JURISDICTION AND VENUE IN FRANKLIN COUNTY, OHIO, AND CONSTRUCTION AND
INTERPRETATION UNDER THE LAWS OF THE STATE OF OHIO.
9. NOTICE OF FINAL AGREEMENT. THIS AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
10. MISCELLANEOUS. Maker and the Lender intend that this Revolving
Credit Note shall be in compliance with all applicable laws and shall be
enforceable in accordance with its terms. If any provision of this Revolving
Credit Note shall be illegal
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Exhibit 10.99
or unenforceable, such provision shall be deemed cancelled to the same extent,
as though it never had appeared herein, but the remaining provisions shall not
be affected thereby. In the event that the interest rate provided for in this
Revolving Credit Note shall be deemed to be usurious under applicable law, then
such interest rate shall be deemed modified to the highest rate permitted under
such applicable usury law and all payments theretofore made shall be credited as
though such rate had been the rate originally provided for herein.
Any and all references in this Revolving Credit Note to any other
document or documents shall be references to such other document or documents as
the same may from time to time be modified, amended, renewed, consolidated or
extended.
The term "Maker" as used herein shall include the undersigned and its
successors and assigns; provided that this paragraph shall not be deemed to be a
consent or approval by the Lender of any transfer or assignment by Maker.
This Revolving Credit Note, is executed as of the date and year first
above written.
MAKER:
E-LOAN, INC.
/s/ XXXX XXXXXXX
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By: XXXX XXXXXXX
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Its: CFO
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