Exhibit 10.94
THIRD MODIFICATION AGREEMENT
THIS THIRD MODIFICATION AGREEMENT (the "Agreement") is made as of the
28th day of July, 1999, 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 Amended and Restated Note
dated as of April 26, 1999 (the "Note") in the stated principal amount of
$25,000,000 and secured by, among other things, a Warehouse Security Agreement
dated as of June 24, 1998 (the "Warehouse Security Agreement") between the
Borrower and the Agent granting the Agent a security interest in certain of the
Borrower's assets.
Under the terms of a Guaranty and Surety Agreement, dated as of June 24,
1998 and reaffirmed as of March 15, 1999 (as so reaffirmed, the "Guaranty
Agreement"), Xxxxxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxxx (each a "Guarantor" and
together the "Guarantors") guaranteed to the Lender and became surety for the
prompt and unconditional payment of all amounts owing from time to time by the
Borrower under the terms of the Warehouse Credit Agreement, the Note and related
documents. The Guarantors also entered into a Support Agreement, dated as of
June 24, 1998 and reaffirmed as of March 15, 1999, with the Lender and the
Borrower (as so reaffirmed, the "Support Agreement") pursuant to which the
Guarantors agreed to maintain the net worth and liquidity of the Borrower.
The Borrower has requested that the Lender increase the amount of the
Lender's commitment under the Warehouse Credit Agreement, release the Guarantors
from the Guaranty Agreement and the Support Agreement and make certain other
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) The definition of "Borrowing Base" contained in Section
1.01 of the Warehouse Credit Agreement is amended to read in full as follows:
""BORROWING BASE" shall mean, as of any date, an amount
that is the sum of the following, with respect to all Eligible
Mortgage Loans, Eligible Nonconforming Mortgage Loans, Eligible
HELOCs and Liquid Assets pledged to the Security Agent as of such
date: (1) the sum for all Conforming Loans that are Committed
Mortgage Loans of the product of (x) the Mortgage Loan Aging
Percentage with respect to such Mortgage Loan and (y) 99% of the
Market Value of such Mortgage Loan, (2) the sum for all Jumbo
Loans (each of which shall be a Committed Mortgage
Exhibit 10.94
Loan) of the product of (x) the Mortgage Loan Aging Percentage
with respect to such Mortgage Loan and (y) 99% of the Market Value
of such Mortgage Loan, (3) the sum for all Mortgage Loans that are
FHA Loans, VA Loans or State Loans of the product of (x) the
Mortgage Loan Aging Percentage with respect to such Mortgage Loan
and (y) 99% of the Market Value of such Mortgage Loan, (4) 0% of
the Market Value of each Mortgage-backed Security, (5) an amount
equal to the aggregate principal amount of the Liquid Assets, (6)
the sum for all Credit A- Loans of the product of (x) the
Nonconforming Mortgage Loan Aging Percentage with respect to such
Mortgage Loan and (y) 97% of the Market Value of such Mortgage
Loan, (7) the sum for all Credit B Loans of the product of (x) the
Nonconforming Mortgage Loan Aging Percentage with respect to such
Mortgage Loan and (y) 97% of the Market Value of such Mortgage
Loan, (8) the sum for all Credit C Loans of the product of (x) the
Nonconforming Mortgage Loan Aging Percentage with respect to such
Mortgage Loan and (y) 96% of the Market Value of such Mortgage
Loan, (9) the sum for all Credit D Loans of the product of (x) the
Nonconforming Mortgage Loan Aging Percentage with respect to such
Mortgage Loan and (y) 0% of the Market Value of such Mortgage Loan
and (10) the sum for all Eligible HELOCs of the product of (x) the
HELOC Aging Percentage with respect to such Eligible HELOC and (y)
97% of the Market Value of such Eligible HELOC."
(b) Clause (vi) of the definition of "Collateral Documents"
contained in Section 1.01 of the Warehouse Credit Agreement is renumbered as
clause (vii) and a new clause (vi) is inserted, which shall read in full as
follows:
"(vi) If such Mortgage Loan is an Eligible HELOC, an
executed HUD-I settlement statement with respect thereto; and"
(c) The definition of "Commitment" contained in Section 1.01 of
the Warehouse Credit Agreement is amended to read in full as follows:
""COMMITMENT" shall mean the obligation of the Lender to
make Advances in an aggregate principal amount outstanding at any
time not to exceed $50,000,000."
(d) The definition of "Conforming Loan" contained in Section
1.01 of the Warehouse Credit Agreement is amended to read in fall as follows:
""CONFORMING LOAN" shall mean a Mortgage Loan (other than a
VA Loan, an FHA Loan, a State Loan or an Eligible HELOC) that is
underwritten in conformity with FHLMC or FNMA underwriting
standards and is otherwise eligible for purchase by FNMA or
FHLMC."
(e) The definition of "Credit A- Loan" contained in Section
1.01 of the Warehouse Credit Agreement is amended to read in full as follows:
""CREDIT A- LOAN" shall mean a Mortgage Loan (other than a
Mortgage Loan that satisfies all the requirements of an Eligible
Mortgage
-2-
Exhibit 10.94
Loan or an Eligible HELOC) the obligor of which has a Credit Score
as described on Exhibit G hereto."
(f) The definition of "Credit B Loan" contained in Section 1.01
of the Warehouse Credit Agreement is amended to read in full as follows:
""CREDIT B LOAN" shall mean a Mortgage Loan (other than a
Mortgage Loan that satisfies all the requirements of an Eligible
Mortgage Loan or an Eligible HELOC) the obligor of which has a
Credit Score as described on Exhibit G hereto."
(g) The definition of "Credit C Loan" contained in Section 1.01
of the Warehouse Credit Agreement is amended to read in full as follows:
""CREDIT C LOAN" shall mean a Mortgage Loan (other than a
Mortgage Loan that satisfies all the requirements of an Eligible
Mortgage Loan or an Eligible HELOC) the obligor of which has a
Credit Score as described on Exhibit G hereto."
(h) The definition of "Credit D Loan" contained in Section 1.01
of the Warehouse Credit Agreement is amended to read in full as follows:
""CREDIT D LOAN" shall mean a Mortgage Loan (other than a
Mortgage Loan that satisfies all the requirements of an Eligible
Mortgage Loan or an Eligible HELOC) the obligor of which has a
Credit Score as described on Exhibit G hereto."
(i) There shall be added to Section 1.0 1 of the Warehouse
Credit Agreement a definition of "Eligible HELOC" which shall read in full as
follows:
""ELIGIBLE HELOC" shall mean at the time of the
determination thereof, a revolving credit home equity Mortgage
Loan which at such time (i) is pledged as Collateral pursuant to
the terms of this Agreement and the Warehouse Security Agreement
and is not pledged as security for any Indebtedness owing to, or
otherwise subject to a Lien for the benefit of, any person other
than the Lender, (ii) is a second Mortgage Loan, (iii) has not
previously been pledged as Collateral pursuant to the terms of
this Agreement and the Warehouse Security Agreement, (iv) is
subject to a Purchase Commitment, (v) has and has had no
delinquency with respect to any payment due thereunder, (vi) has
no deficiencies in respect of the documentation therefor, (vii)
has a Credit Score as described on Exhibit G hereto, (viii) if not
subject to a Wet Advance, has an Origination Date that is less
than 20 calendar days prior to such time, (ix) if subject to a Wet
Advance, has an Origination Date that is not more than five
Business Days prior to such time, (x) has a Combined Loan-to-Value
Ratio of 100% or less, excluding in all such cases, however any
Eligible HELOC about which any of the representations, warranties
and agreements contained in Section 6.18 is not true and correct."
(j) The definition of "Guaranty Agreement" contained in Section
1.01 of the Warehouse Credit Agreement is deleted therefrom.
-3-
Exhibit 10.94
(k) There shall be added to Section 1.01 of the Warehouse
Credit Agreement a definition of "HELOC Aging Percentage" which shall read in
full as follows:
""HELOC AGING PERCENTAGE" shall mean, as of any date, with
respect to any Eligible HELOC, (i) 100% if such Eligible HELOC has
an Origination Date that is less than 60 days prior to such date,
(ii) 50% if such Eligible HELOC has an Origination Date that is
less than 90 days and more than 59 days prior to such date, and
(iii) 0% if such Eligible HELOC has an Origination Date that is 90
days or more prior to such date."
(l) The definition of "Jumbo Loan" contained in Section 1.01 of
the Warehouse Credit Agreement is amended to read in full as follows:
""JUMBO LOAN" shall mean a Mortgage Loan (other than an FHA
Loan, a VA Loan, a State Loan or an Eligible HELOC) that is
underwritten in accordance with standards approved by the Agent
that are generally comparable to the standards established by FNMA
or FHLMC in all respects other than the original principal amount
of the Mortgage Loan and that were established by an Investor
(other than FHLMC, FNMA or GNMA)."
(m) The definition of "Market Value" contained in Section 1.01
of the Warehouse Credit Agreement is amended to read in full as follows:
""MARKET VALUE" shall mean as of any date at which the
amount thereof is to be determined, (i) as to any Mortgage-backed
Security, the purchase price therefor (exclusive of any accrued
interest included in such purchase price) under the Purchase
Commitment with respect thereto; (ii) as to any Mortgage Loan
(other than an Eligible HELOC) an amount equal to the lower of (A)
an amount equal to (1) with respect to a Mortgage Loan that was
funded directly by the Borrower to the obligor thereunder, the
outstanding principal amount of such Mortgage Loan or (2) with
respect to a Mortgage Loan that was purchased by the Borrower, the
lesser of (x) the purchase price paid by the Borrower therefor
(exclusive of any accrued interest or servicing release premium
included in such purchase price) and (y) the outstanding principal
amount of such Mortgage Loan, as applicable, (B) the amount
determined by the Agent, in its reasonable discretion, as the
price (exclusive of any accrued interest that would be included in
such price) at which such Mortgage Loan could on the date of such
determination be sold in the secondary market to a bona fide
investor in an arm's-length transaction and (C) the price at which
an Investor has committed to purchase such Mortgage Loan; and
(iii) as to any Eligible HELOC, an amount equal to the lower of
(A) the outstanding principal amount of such Mortgage Loan, (B) an
amount equal to the principal amount of the original advance to
the obligor on such Eligible HELOC, (C) the amount determined by
the Agent, in its reasonable discretion, as the price (exclusive
of any accrued interest that would be included in such price) at
which such Eligible HELOC could on the date of such determination
be sold in the secondary market to a bona fide investor in an
arm's length transaction and (D) the price at which an Investor
has committed to purchase such Eligible HELOC."
-4-
Exhibit 10.94
(n) The definition of "Origination Date" contained in Section
1.01 of the Warehouse Credit Agreement is amended to read in full as follows:
""ORIGINATION DATE" shall mean, with respect to any
Mortgage Loan that is not an Eligible HELOC, the date such
Mortgage Loan was funded to the obligor thereon, and with respect
to any Eligible HELOC, the date such Eligible HELOC was initially
funded to the obligor thereon."
(o) The definition of "Support Agreement" contained in Section
1.01 of the Warehouse Credit Agreement is deleted therefrom.
(p) The definition of "Wet Advance" contained in Section 1.01
of the Warehouse Credit Agreement is amended to read in full as follows:
""WET ADVANCE" shall mean an Advance made by the Lender
against the pledge of Eligible Mortgage Loans, Eligible
Nonconforming Mortgage Loans or Eligible HELOCs with respect to
which the Borrower has delivered to the Agent a Request for
Advance in accordance with Section 2.04 in lieu of the delivery of
the Mortgage Note related thereto; provided, however, that from
and after the date on which the Mortgage Note with respect to any
such Mortgage Loan is received by the Security Agent, such Advance
shall cease to be a Wet Advance."
(q) Section 2.01 of the Warehouse Credit Agreement is amended
to read in fall as follows:
"2.01 COMMITMENT. Subject to and upon the terms and
conditions set forth herein, the Lender agrees, at any time and
from time to time prior to the Expiry Date (or such earlier date
as the Commitment shall have been terminated pursuant to the terms
hereof), to make an advance or advances (each an "Advance" and,
collectively, the "Advances") to the Borrower, which Advance! (i)
shall be made at any time and from time to time in accordance with
the terms hereof on and after the Effective Date and prior to the
Expiry Date; (ii) shall bear interest as provided in Section 2.07;
(iii) may be prepaid and reborrowed in accordance with the
provisions hereof, and (iv) shall be made against the pledge by
the Borrower of Eligible Mortgage Loans, Eligible Nonconforming
Mortgage Loans, Eligible HELOCs or Liquid Assets as Collateral for
such Advance as provided herein and in the Warehouse Security
Agreement; provide , however, that (1) the aggregate principal
amount of Advances outstanding at any time shall not exceed the
lesser of (x) the Commitment and (y) the Borrowing Base, at such
time, (2) the aggregate principal amount of Advances outstanding
at any time secured by Mortgage-backed Securities shall not exceed
0% of the Commitment, (3) the aggregate principal amount of Wet
Advances outstanding at any time shall not exceed 40% of the
Commitment, (4) the aggregate principal amount of Advances
outstanding at any time secured by Jumbo Loans shall not exceed
75% of the Commitment, (5) the aggregate principal amount of
Advances outstanding at any time secured by Eligible Nonconforming
Mortgage Loans shall not exceed $7,500,000 (the "Nonconforming
Commitment"), (6) the aggregate principal amount
-5-
Exhibit 10.94
of Advances outstanding at any time secured by Credit A- Loans
shall not exceed 100% of the Nonconforming Commitment, (7) the
aggregate principal amount of Advances outstanding at any time
secured by Credit B Loans shall not exceed 100% of the
Nonconforming Commitment, (8)the aggregate principal amount of
Advances outstanding at any time secured by Credit C Loans shall
not exceed 50% of the Nonconforming Commitment, (9) the aggregate
principal amount of Advances outstanding at any time secured by
Credit D Loans shall not exceed 0% of the Nonconforming
Commitment, (10) the aggregate principal amount of Advances
outstanding at any time secured by Eligible HELOCs shall not
exceed $7,500,000 (the "HELOC Commitment") and (11) the aggregate
principal amount of Advances outstanding at any time secured by
Eligible Nonconforming Mortgage Loans and Eligible HELOCs shall
not exceed $7,500,000."
(r) Section 2.07(a) of the Warehouse Credit Agreement is
amended to read in full as follows:
"2.07 INTEREST. The Borrower agrees to pay interest in
respect of the outstanding principal amount of the Advances from
the date the proceeds thereof are made available to the Borrower
until the maturity thereof (whether by acceleration or otherwise)
(i) with respect to Advances secured by Eligible Mortgage Loans,
at a rate per annum equal to 1.50% in excess of the Commercial
Paper Rate in effect from time to time and (ii) with respect to
Advances secured by Eligible Nonconforming Mortgage Loans or
Eligible HELOCs, at a rate per annum equal to 2.00% in excess of
the Commercial Paper Rate in effect from time to time; provided,
however, that with respect to any Advance which is disbursed by
cashier's check, the applicable rate of interest, calculated in
accordance with the provisions of this Section 2.07(a), shall be
reduced by 0.25% during the first fifteen (15) days that such
Advance is outstanding."
(s) There shall be added to Section 3.01 of the Warehouse
Credit Agreement a new subsection (c) which shall read in full as follows:
"(c) The Borrower shall pay the Lender a non-use fee (the
"Non-Use Fee") with respect to each calendar month during the term
of this Agreement during which the average outstanding principal
amount of Advances is less than an amount equal to fifty percent
(50%) of the Commitment, computed at the rate of 0.125% per annum
on the daily average unutilized Commitment. Accrued Non-Use Fees
shall be due and payable monthly in arrears on the fifth Business
Day following the end of each calendar month with respect to
Non-Use Fees accrued during the preceding calendar month. The
Agent shall provide the Borrower with a notice setting forth the
Non-Use Fee accrued with respect to each calendar month not later
than the third Business Day of such calendar month."
(t) Section 4.02(c) of the Warehouse Credit Agreement is
amended to read in full as follows:
-6-
Exhibit 10.94
"(c) if on any date the aggregate principal amount,
outstanding of Wet Advances exceeds 40% of the Commitment, the
Borrower shall immediately prepay the principal of Wet Advances in
an aggregate amount equal to such excess;"
(u) Section 4.02(f) of the Warehouse Credit Agreement is
amended to read in full as follows:
"(f) if the Agent shall have notified the Borrower or the
Borrower otherwise becomes aware that any Mortgage Loan or
Mortgage-backed Security originally included as an Eligible
Mortgage Loan, an Eligible Nonconforming Mortgage Loan or an
Eligible HELOC no longer constitutes an Eligible Mortgage Loan, an
Eligible Nonconforming Mortgage Loan or an Eligible HELOC pursuant
to the terms and standards set forth herein in the Warehouse
Security Agreement, the Borrower shall immediately repay the
principal of Advances in an aggregate amount equal to the
Collateral Value of such Mortgage Loan or Mortgage-backed
Security;"
(v) Section 4.020) of the Warehouse Credit Agreement is amended
to read in full as follows:
"(j) if (1) there shall be a default in the payment of
principal or interest by the obligor under (x) an Eligible
Mortgage Loan in respect of which an Advance has been made
hereunder and such default shall be continuing for 60 days or more
or (y) a Mortgage-backed Security in respect of which an Advance
has been made hereunder and such default shall be continuing for 3
Business Days or more or (z) an Eligible Nonconforming Mortgage
Loan or an Eligible HELOC in respect of which an Advance has been
made hereunder and such default shall be continuing for 60 days or
more, (2) an Insolvency Event shall occur in respect of an obligor
on any Mortgage Loan in respect of which an Advance has been made
hereunder or (3) foreclosure or similar proceedings shall be
commenced in respect of the premises which secure any Mortgage
Loan in respect of which an Advance has been made hereunder, the
Borrower shall immediately prepay the principal of Advances in an
aggregate amount equal to the Collateral Value of such Mortgage
Lon or Mortgage-backed Security;"
(w) Sections 4.02(n), (o) and (p) of the Warehouse Credit
Agreement are amended to read in full as follows:
"(n) if on any date the aggregate principal amount of
Advances secured by Credit A- Loans exceeds 100% of the
Nonconforming Commitment, the Borrower shall immediately prepay
the principal of Advances secured by Credit A- Loans in an
aggregate amount equal to such excess;
(0) if on any date the aggregate principal amount of
Advances secured by Credit B Loans exceeds 10 ' 0% of the
Nonconforming Commitment, the Borrower shall immediately prepay
-7-
Exhibit 10.94
the principal of Advances secured by Credit B Loans in an
aggregate amount equal to such excess;
if on any date the aggregate principal amount of Advances
secured by Credit C Loans exceeds 50% of the Nonconforming
Commitment, the Borrower shall immediately prepay the principal of
Advances secured by Credit C Loans in an aggregate amount equal to
such excess;"
(x) There shall be added to the Warehouse Credit Agreement new
subsections (r) and (s) which shall read in full as follows:
"(r) if on any date the aggregate principal amount of
Advances secured by Eligible HE 0 s exceeds the HELOC Commitment,
the Borrower shall immediately prepay the principal of Advances
secured by Eligible HELOCs in an aggregate amount equal to such
excess; and
if on any date the aggregate principal amount of Advances
secured by Eligible Nonconforming mortgage Loans and Eligible
HELOCs exceeds $7,500,000, 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."
(y) Section 4.03(b) of the Warehouse Credit Agreement is
amended to read in full as follows:
"(b) So long as no Default or Event of Default has
occurred and, is continuing in lieu of any required pre-payment of
principal pursuant to Section 4.02, the Borrower may, subject to
the terms and conditions hereof and the prior consent of the
Agent, substitute and pledge additional Eligible Mortgage Loans,
Eligible Nonconforming Mortgage Loans and/or Eligible HELOCs
(together with all required Collateral Documents with respect
thereto) having an aggregate Collateral Value in an amount such
that immediately after giving effect to such substitution or
addition, such prepayment is no longer required."
(z) Sections 5.19 and 5.20 of the Warehouse Credit Agreement
are deleted therefrom, and the section numbers shall remain as place holders.
(aa) Section 6.18 of the Warehouse Credit Agreement is amended
to read in full as follows:
"6.18 REPRESENTATIONS RELATING TO THE MORTGAGE LOANS. (a)
At all times during which a Mortgage Loan is pledged Mortgage Loan
is pledged as Collateral for Advances hereunder, such Mortgage
Loan will (i) be an FHA Loan, a VA Loan, a Conforming Loan, a
Jumbo Loan, a State Loan , a Credit A- Loan, a Credit B Loan, a
Credit C Loan, a Credit D Loan or an Eligible HELOC; (ii) be an
Eligible Mortgage Loan, an Eligible Nonconforming Mortgage Loan or
an Eligible HELOC and be free of any default and the Borrower will
have had no notice of any
-8-
Exhibit 10.94
event which has occurred which may, with the passage of time or
the giving of notice, or both, become a default; (iii) comply with
the terms of this Agreement and with the relevant Purchase
Commitment and/or Master Commitment, if any; (iv) be a legal,
valid and binding obligation of the mortgagor and the mortgagee
thereunder enforceable in accordance with its terms and subject to
no offset, defense or counterclaim, obligating such mortgagor to
make the payments specified therein, and each FHA Loan and each VA
Loan will be fully eligible for, and the Borrower will have
complied with all applicable requirements of law, rule or
regulation in respect of, FHA insurance or VA guaranty,
respectively; (v) if such Mortgage Loan is an Eligible
Nonconforming Mortgage Loan or an Eligible HELOC, be subject to a
Purchase Commitment, or if such Mortgage Loan is an Eligible
Mortgage Loan, be subject to a Purchase Commitment or Hedging
Contract or, if it is a Mortgage Loan that bears interest at an
adjustable rate, a Master Commitment which Purchase Commitment or
Master Commitment is a legal, valid and binding obligation of the
Investor party thereto, is enforceable against such Investor in
accordance with its terms (subject to the effect of applicable
bankruptcy and other similar laws affecting the rights of
creditors generally and the effect of equitable principles whether
applied in an action at law or a suit in equity), and, except as
is otherwise notified in writing by the Borrower to the Lender and
Agent, permits the assignment thereof to the Security Agent; (vi)
be owned by the Borrower and be subject to no Lien or claim
whatsoever, either legal or equitable, other than that granted to
the Security Agent for the benefit of the Lender; (vii) be fully
disbursed, the final disbursement to the mortgagor in connection
therewith having been made no more than 30 days prior to the date
of pledge if such disbursement was made by the Borrower (unless
such Mortgage Loan is delivered as Collateral securing the initial
Advance made to the Borrower hereunder or is an Eligible HELOC);
(viii) not be modified (except as to correction of clerical or
scrivener errors), amended, superseded or otherwise subject to any
other agreement or contract of any kind with the relevant
mortgagor under such Mortgage Loan except to the extent such
amendment, modification or other agreement or contract has been
disclosed in writing to the Security Agent by the Borrower at the
time of the pledge and does not affect the salability of such
Mortgage Loan pursuant to any applicable Master Commitment or
Purchase Commitment; (ix) be a valid first or second lien on the
mortgaged premises subject thereto; (x) if required by the
Investor, have a title insurance policy or binder, in ALTA form
satisfactory to the Agent insuring the priority of the Borrower's
first or second lien therein subject only to (1) the lien of the
related first mortgage, if any, (2) the lien of current real
property taxes and assessments, (3) covenants, conditions and
restrictions, rights of way, easements and other matters of public
record as of the date of recording of the related mortgage or deed
of trust, such exceptions appearing of record being acceptable to
mortgage lending institutions generally in the area wherein the
property subject thereto is located and (4) other matters to which
like properties are commonly subject which do not materially
interfere with the benefits of the security intended to be
provided by the related mortgage or deed of trust, (xi) not have
been selected for pledge hereunder utilizing procedures, other
than those necessary to comply
-9-
Exhibit 10.94
with the representations and warranties set forth herein, which
are adverse to the interests of the Lender and (xii) if such
Mortgage Loan is an Eligible HELOC, have had only one credit
advance disbursed to the obligor thereof"
(bb) Section 7.01(k) of the Warehouse Credit Agreement is
amended to read in full as follows:
"(k) CAPITAL EXPENDITURES. Written notice not less than
10 days prior to any agreement by the Borrower pursuant to which
the Borrower intends to make expenditures for fixed or capital
assets (including, without limitation, expenditures for
maintenance and repairs which should be capitalized in accordance
with generally accepted accounting principles and including
capitalized lease obligations) which will exceed $500,000."
(cc) Section 7.01(q) of the Warehouse Credit Agreement is
deleted therefrom.
(dd) The fifth sentence of Section 7.08(b) of the Warehouse
Credit Agreement is amended to read in full as follows:
"All Eligible Nonconforming Mortgage Loans and Eligible HELOCs
will comply in all respects with all applicable requirements for
purchase under the Purchase Commitment relating thereto."
(ee) The first sentence of Section 7.13 of the Warehouse Credit
Agreement is amended to read in full as follows:
"The Agent will prepare and deliver to the Borrower weekly, or
more frequently as the Agent may from time to time determine, a
report with respect to all Eligible Mortgage Loans, Eligible
Nonconforming Mortgage Loans, Eligible HELOCs and Liquid Assets
pledged to the Security Agent as of such date (a "Borrowing Base
Valuation Report")."
(ff) Section 8.07 of the Warehouse Credit Agreement is amended
to read in full as follows:
"8.07 CAPITAL EXPENDITURES. Re Borrower will not, and will
not permit any of its Subsidiaries to, make expenditures for fixed
or capital assets (including, without limitation, expenditures for
maintenance and repairs which should be capitalized in accordance
with generally accepted accounting principles and including
capitalized lease obligations) in an amount not in excess of
$1,000,000 per month."
(gg) Section 8.08 of the Warehouse Credit Agreement is amended
to read in full as follows:
"8.08 MAXIMUM ADJUSTED LEVERAGE RATIO. The Borrower will
not permit its Adjusted Leverage Ratio at any time during any
fiscal year to be greater than 10 to 1."
-10-
Exhibit 10.94
(hh) Section 8.09 of the Warehouse Credit Agreement is amended
to read in full as follows:
"8.09 MINIMUM ADJUSTED TANGIBLE NET WORTH. The Borrower
will not permit its le Net Worth at any time during any fiscal
year to be 1 $ 000.11
(ii) Section 8.16 of the Warehouse Credit Agreement is amended
to read in full as follows:
"8.16 MINIMUM CURRENT RATIO. The Borrower will not permit
its Current Ratio to be less than 1.1 to 1.0 at any time during
any fiscal year."
(jj) Section 9.06 of the Warehouse Credit Agreement is amended
to read in full as follows:
"9.06 BANKRUPTCY, ETC. An Insolvency Event shall occur
with respect to the Borrower or any of its Subsidiaries; or"
(kk) Section 9.12 of the Warehouse Credit Agreement is amended
to read in full as follows:
"9.12 MATERIAL ADVERSE CHANGE. A material adverse change
shall occur in the financial condition, operations or prospects o
e Borrower or any of its Subsidiaries; or any material adverse
action shall be taken by any state or federal regulatory body or
any court against the Borrower or any of its Subsidiaries which
may result in the loss of any agreement, permit or license of the
Borrower or any of its Subsidiaries, or otherwise limit the
business or operations of the Borrower or any of its Subsidiaries
which loss or limitation would have a material adverse effect on
the financial condition, operations or prospects of the Borrower;"
(ll) Section 11.01(c)(i) of the Warehouse Credit Agreement is
amended to read in full as follows:
"(i) the making of an Advance secured by a pledge of a
Mort e Loan or Mortgage-backed Security which is not at the date
of the creation of such security interest an Eligible Mortgage
Loan, an Eligible Nonconforming Mortgage Loan or an Eligible HELOC
or which thereafter ceases to be an Eligible Mortgage Loan, an
Eligible Nonconforming Mortgage Loan or an Eligible HELOC;"
(mm) Exhibit G to the Warehouse Credit Agreement is deleted in
its entirely, and new Exhibit G, in the form attached to this Agreement as
Exhibit G, shall be added to the Warehouse Credit Agreement.
(nn) Exhibits J and K to the Warehouse Credit Agreement are
deleted therefrom.
2. NOTE. The Note shall be amended and restated to provide that the
principal amount thereof is Fifty Million United States dollars ($50,000,000).
-11-
Exhibit 10.94
3. WAREHOUSE SECURITY AGREEMENT. Section 4(b) of the Warehouse
Security Agreement is hereby amended to read in full as follows:
"(b) So long as no Default or Event of Default has
occurred and is continuing, in lieu of any required prepayment of
principal pursuant to Section 4.02 of the Warehouse Credit
Agreement, the Assignor may, subject to the terms and conditions
of the Warehouse Credit Agreement and the consent of the Agent,
substitute and pledge additional Eligible Mortgage Loans, Eligible
Nonconforming Mortgage Loans and/or Eligible HELOCs (together with
all required Collateral Documents with respect thereto) having a
Collateral Value in an amount such that immediately after giving
effect to such substitution or addition, such prepayment is no
longer required."
4. GUARANTY AGREEMENT. The Guaranty Agreement is hereby released,
canceled and terminated.
5. SUPPORT AGREEMENT. The Support Agreement is hereby released,
canceled and terminated.
6. CONDITIONS OF EFFECTIVENESS. This Agreement shall become effective
as of the date first above written when (a) this Agreement shall have been
executed by the Borrower; (b) the Lender and the Agent and the Agent shall have
received a Second Amended and Restated Note in the principal amount of
$50,000,000 (the "Restated Note") made payable to the Lender executed on behalf
of the Borrower and the Lender; and (c) the Agent shall have received from the
Borrower executed proper amendments to financing statements for filing under the
Uniform Commercial Code of each jurisdiction as may be necessary or, in the
opinion of the Agent, desirable to amend the financing statements previously
filed pursuant to the provisions of the Warehouse Credit Agreement..
7. REFERENCES TO CREDIT DOCUMENTS. Upon the effectiveness of this
Agreement:
(a) Each reference in the Warehouse Credit Agreement to "this
Agreement," "hereunder," "hereof," "herein' 'or words of like import, and each
reference in the Restated 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;
(b) Each reference in the Warehouse Credit Agreement and the
Warehouse Security Agreement to the Note shall mean and be a reference to the
Restated Note; and
(c) Each reference in the Warehouse Credit Agreement and the
Note to the Warehouse Security Agreement shall mean and be a reference to the
Warehouse Security Agreement as amended hereby.
8. RATIFICATION OF DOCUMENTS.
(a) Except as specifically amended herein or amended and
restated in the Restated Note, 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
and the Restated Note 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
-12-
Exhibit 10.94
Agreement nor constitute a waiver of any default or Event of Default under the
Warehouse Credit Agreement, the Note or the Warehouse Security Agreement.
9. 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.
10. 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/ XXXXX XXXXXX
-----------------------------------
President
XXXXXX RIVER FUNDING INC.
By: /s/ ILLEGIBLE
-----------------------------------
Assistant Treasurer
GE CAPITAL MORTGAGE SERVICES, INC.
By: /s/ ILLEGIBLE
-----------------------------------
Vice President
-13-
Exhibit 10.94
EXHIBIT G
CREDIT SCORES
TYPE OF MORTGAGE LOAN FICO SCORE
--------------------- ----------
Credit A- Loan [*] and above
Credit B Loan [*]
Credit C Loan [*]
Credit D Loan [*]
Eligible HELOC [*] and above
EXHIBIT G
-1-
