EXHIBIT 99.3
AMENDMENT NUMBER TWO
to the
Master Loan and Security Agreement
dated as of May 10, 1999,
Between
E-LOAN, INC.
and
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
This AMENDMENT NUMBER TWO (this "AMENDMENT") is made this 22nd day of
February, 2001, between E-LOAN, INC. ("BORROWER") and GREENWICH CAPITAL
FINANCIAL PRODUCTS, INC. ("LENDER") to the MASTER LOAN AND SECURITY AGREEMENT,
dated as of May 10, 1999, between Lender and Borrower, as otherwise amended (the
"LOAN AGREEMENT").
RECITALS
WHEREAS, Borrower has requested that Lender agree to amend the Loan
Agreement to extend the Termination Date thereunder and to make such additional
modifications as more expressly set forth below and Lender has agreed to make
such amendments to the Loan Agreement.
WHEREAS, that as of the date of this Amendment, Borrower represents to
the Lender that it is in compliance with all of the representations and
warranties and all of the affirmative and negative covenants set forth in the
Loan Agreement and will not be in default under the Loan Agreement upon the
execution of this Amendment.
WHEREAS, Borrower has agreed to deliver all closing documents requested
by the Lender including, but not limited to, a Uniform Commercial Code Financing
Statement, an officer's certificate in the form attached hereto as Exhibit A,
warrants and all other documents required thereunder, and agrees to satisfy all
conditions precedent to any Advance thereunder.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and of the mutual covenants herein
contained, the parties hereto hereby agree as follows:
SECTION 1. Effective as of February 22, 2001, Section 1 of the Loan
Agreement is hereby amended by adding the following definition:
"ADDITIONAL COLLATERAL" shall mean a cash deposit or deposit of other
collateral acceptable to the Lender in its sole discretion by the Borrower in a
separate account held for the benefit of the Borrower and established by the
Lender with Greenwich Capital Markets, Inc., a broker-dealer and affiliate of
the Lender totaling an amount equal to $4 million plus any additional amounts
deposited by the Lender in such account in accordance with Section 3.06.
SECTION 2. Effective as of February 22, 2001, the definition of
"Applicable Margin" in Section 1 of the Loan Agreement is hereby amended to read
in its entirety as follows:
"APPLICABLE MARGIN" shall mean with respect to Advances that
are Tranche A Advances and Tranche B Advances respectively,
and which are secured by the Mortgage Loans, the
EXHIBIT 99.3
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applicable rate per annum set forth below for each day
that such Advances shall be so secured:
Tranche A Advances........prior to April 1, 2001 1.00% and
thereafter 0.75%
Tranche B Advances........1.25%
SECTION 3. Effective as of February 22, 2001, clause (10) of
subparagraph (ii) of the definition of Collateral Value in Section 1 of the Loan
Agreement is hereby deleted in its entirety and replaced with the following:
"(10) the aggregate Collateral Value of all Mortgage Loans
that are not covered by a Takeout Commitment may not at any
one time exceed $25,000,000; or"
SECTION 4. Effective as of February 22, 2001, clause (2) of the
definition of Maximum Credit in Section 1 of the Loan Agreement is hereby
deleted in its entirety and replaced with the following:
"(2) the Maximum Credit for Mortgage Loans which are Wet
Loans may not exceed $10 million at any time; provided,
however that during the period commencing on the fourth to
the last Business Day of a given calendar month and ending
on the fifth Business Day of the immediately succeeding
calendar month (the "End-of-Month Period") the limitation in
this clause shall be increased to $15 million; provided,
further, that from and after April 1, 2001, if no Default or
Event of Default exists and if the aggregate amount of
outstanding Advances is equal to or greater than $75
million, the limitation in this clause shall be increased to
$20 million during the End-of-Month Period."
SECTION 5. Effective as of February 22, 2001, the defined term
Non-Usage Fee Trigger Percentage in Section 1 of the Loan Agreement is hereby
amended to read in its entirety as follows:
"NON-USAGE FEE TRIGGER PERCENTAGE" shall mean 50%.
SECTION 6. Effective as of February 22, 2001, Section 1 of the Loan
Agreement is hereby amended by adding the following defined term immediately
following the defined term "Revised Effective Date":
"SECOND REVISED EFFECTIVE DATE" shall mean February 22, 2001.
SECTION 7. Effective as of February 22, 2001, the definition of
"Termination Date" in Section 1 of the Loan Agreement is hereby amended to read
in its entirety as follows:
"TERMINATION DATE" shall mean the date which is 364 days
following the Second Revised Effective Date of this Loan
Agreement, or such earlier date on which this Loan Agreement
shall terminate in accordance with the provisions hereof,
including without limitation pursuant to Section 2.10
hereof, or by operation of law, as same may be extended
pursuant to Section 2.09.
SECTION 8. Effective as of February 22, 2001, Section 2 of the Loan
Agreement is hereby amended by adding a new Section 2.10 thereto to read in its
entirety as follows:
EXHIBIT 99.3
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2.10 ACCELERATED TERMINATION EVENTS.
(a) The Borrower and the Lender hereby acknowledge and agree
that, in the event that the Borrower does not satisfy the
liquidity requirements of Section 7.16 on April 1, 2001, but
on such date (i) the Borrower maintains cash and Cash
Equivalents in an amount not less than $20,000,000 taking into
account 80% of the unpaid principal balance of the
unencumbered auto loans owned by the Borrower, and (ii) the
Borrower is otherwise in compliance with all of the terms and
conditions of this Loan Agreement, then the Lender shall not
immediately declare an Event of Default solely based on the
failure to satisfy the requirements of Section 7.16 hereof.
Instead, the Borrower and the Lender agree that the
Termination Date shall be April 30, 2001 and that prior to
such termination the outstanding principal amount of Advances
secured by Wet Loans may not exceed $10,000,000.
Notwithstanding anything to the contrary contained in this
paragraph (a), the amount of Cash Equivalents attributable to
unencumbered auto loans owned by the Borrower shall not exceed
$13 million.
(b) The Borrower and the Lender hereby acknowledge and agree
that, in the event that the Borrower does not satisfy the
liquidity requirements of Section 7.16 on May 1, 2001, but on
such date (i) the Borrower maintains cash and Cash Equivalents
in an amount not less than $20,000,000 taking into account 80%
of the unpaid principal balance of the unencumbered auto loans
owned by the Borrower, and (ii) the Borrower is otherwise in
compliance with all of the terms and conditions of this Loan
Agreement, then the Lender shall not immediately declare an
Event of Default solely based on the failure to satisfy the
requirements of Section 7.16 hereof. Instead, the Borrower and
the Lender agree that the Termination Date shall be May 31,
2001 and that prior to such termination the outstanding
principal amount of Advances secured by Wet Loans may not
exceed $5,000,000. Notwithstanding anything to the contrary
contained in this paragraph (b), the amount of Cash
Equivalents attributable to unencumbered auto loans owned by
the Borrower shall not exceed $13 million.
(c) Notwithstanding anything to the contrary contained in
paragraph (a) or (b) above, in the event that during the month
of April 2001 or May 2001, as applicable, the Borrower is
otherwise in default under the Loan Agreement and the Lender
has extended the Termination Date as provided in paragraph (a)
or (b) above, the Lender shall not be obligated to fund any
additional Advances hereunder during the remainder of the such
month.
SECTION 9. Effective as of February 22, 2001, Section 3.05 of the Loan
Agreement is hereby amended to read in its entirety as follows:
3.05 NON-UTILIZATION FEE. On a monthly basis, Lender shall
determine the average daily utilization during such month by
Borrower of the Maximum Committed Amount made available
hereunder by dividing (a) the sum of the Advances
outstanding on each day during such month by (b) the number
days in such calendar month. If such average amount
determined for any month as a percentage of the then
applicable Maximum Committed Amount (the "UTILIZATION
PERCENTAGE") is less than the Non-Usage Fee Trigger
Percentage, Borrower shall pay to Lender, on the Payment
Date in the next following calendar month or on the
Termination Date if such date is sooner, a non-utilization
fee equal to the product of (i) .0025, times (ii) the
Maximum Committed Amount, times (iii) 1 minus the
Utilization Percentage. If the Utilization Percentage in any
month is greater than or equal to the applicable Non-Usage
Fee Trigger Percentage
EXHIBIT 99.3
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Lender shall not be entitled to a non-utilization fee for
that month. Lender may, in its sole discretion, net such
non-utilization fee from the proceeds of any Advance made to
Borrower hereunder.
SECTION 10. Effective as of February 22, 2001, Section 3 of the Loan
Agreement is hereby amended by adding a new Section 3.06 thereto to read in its
entirety as follows:
3.06 SECOND REVISED EFFECTIVE DATE COMMITMENT FEE. The
Borrower agrees to pay to the Lender, a Second Revised
Effective Date Commitment Fee in an amount equal to
$1,250,000, which amount shall be deemed to have been earned
on the Second Revised Effective Date. Such amount shall be
paid as follows: $1,000,000 shall be paid on the Second
Revised Effective Date and $250,000 shall be paid on or
prior to March 23, 2001. Such payments shall be made in
Dollars, in immediately available funds, without deduction,
set-off or counterclaim. Lender may, in its sole discretion,
net such commitment fee from the proceeds of any Advance
made to Borrower. The Lender hereby agrees to rebate to the
Borrower an amount equal to $500,000 of such Second Revised
Effective Date Commitment Fee on April 1, 2001 if, and only
if, (a) the Borrower shall have paid the full amount of the
Second Revised Effective Date Commitment Fee to the Lender,
(b) the Borrower has transferred $4,000,000 of Additional
Collateral to the Lender pursuant to the terms of this Loan
Agreement on or before April 1, 2001, (c) the Borrower is in
compliance with the liquidity covenant in Section 7.16 of
this Loan Agreement (not taking into account any
unencumbered auto loans owned by the Borrower that could be
drawn against under committed warehouse and repurchase
facilities entered into by the Borrower) as of April 1, 2001
and (d) no Default or Event of Default has occurred
hereunder. In the event that such $500,000 rebate is payable
to the Borrower hereunder, the Borrower and the Lender agree
that such amount shall be deposited with the Lender and
retained as Additional Collateral hereunder. The Lender
hereby further agrees to rebate to the Borrower an amount
equal to $250,000 of such Second Revised Effective Date
Commitment Fee on May 1, 2001 if, and only if, (a) the
Borrower shall have paid the full amount of the Second
Revised Effective Date Commitment Fee to the Lender, (b) the
Borrower has transferred $4,000,000 of Additional Collateral
to the Lender pursuant to the terms of this Loan Agreement
on or before May 1, 2001, (c) the Borrower is in compliance
with the liquidity covenant in Section 7.16 of this Loan
Agreement (not taking into account any unencumbered auto
loans owned by the Borrower that could be drawn against
under committed warehouse and repurchase facilities entered
into by the Borrower) as of May 1, 2001 and (d) no Default
or Event of Default has occurred hereunder.. In the event
that such $250,000 rebate is payable to the Borrower
hereunder, the Borrower and the Lender agree that such
amount shall be paid to the Borrower and not retained as
Additional Collateral hereunder.
SECTION 11. Effective as of February 22, 2001, subparagraph (b) of
Section 4.01 of the Loan Agreement is hereby amended by deleting the word "and"
in clause (viii), deleting clause (ix) in its entirety and adding the following
to the end thereof:
"(ix) all Additional Collateral; and
(x) any and all replacements, substitutions, distributions
on or proceeds of any or all of the foregoing."
EXHIBIT 99.3
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SECTION 12. Effective as of February 22, 2001, Section 4.01 of the Loan
Agreement is hereby amended by adding the following subparagraphs to the end
thereof:
"(d) On or before April 1, 2001, the Borrower shall deposit
the Additional Collateral with the Lender in a separate
account (the "Account") held for the benefit of the Borrower
and established by the Lender with Greenwich Capital
Markets, Inc., a broker-dealer and an affiliate of the
Lender. The Lender and the Borrower hereby agree that, prior
to the occurrence of an Event of Default, the Borrower shall
have a 100% ownership interest in the Additional Collateral
subject to the Lender's first priority perfected security
interest therein. The Additional Collateral shall be held by
the Lender for the benefit of the Borrower during the term
of this Loan Agreement to secure repayment of the Secured
Obligations. The Lender agrees that the Account shall
evidence the Borrower's ownership of the Additional
Collateral subject to the security interest granted to the
Lender hereunder.
(e) At such time as the Secured Obligations have been paid
in full, the Lender shall return any unused portion of the
Additional Collateral held for the benefit of the Borrower
to the Borrower. With respect to any portion of the
Additional Collateral which is represented by cash, the
Lender hereby agrees to pay interest to the Borrower on the
amount on deposit in the Account during the term of this
Loan Agreement (which amount may be reduced by the Lender
after the initial deposit in satisfaction of the Secured
Obligations) calculated on the basis of one-month LIBOR from
the day the initial deposit was made until such time as the
Secured Obligations have been paid in full. With respect to
any portion of the Additional Collateral which is
represented by another form of collateral acceptable to the
Lender in its sole discretion, the Borrower shall direct the
form of investment subject to the Lender's approval. The
Borrower shall be entitled to all investment earnings
attributable to such collateral from the day such collateral
is deposited until such time as the Secured Obligations have
been paid in full. The Lender shall remit to the Borrower
all interest accrued with respect to the Additional
Collateral and any investments earnings thereon at such time
as the Secured Obligations have been paid in full."
SECTION 13. Effective as of February 22, 2001, Section 5.01 of the Loan
Agreement is hereby amended by adding a new subsection (q) to read in its
entirety as follows:
(q) SECOND UPDATED SECURITIZATION LETTER. On or prior to the
Second Revised Effective Date, the Lender shall have
received a new securitization letter, in form and substance
satisfactory to the Lender and executed by a duly authorized
officer of the Borrower.
SECTION 14. Effective as of February 22, 2001, Section 5.01 of the Loan
Agreement is hereby amended by adding a new subsection (r) to read in its
entirety as follows:
(r) WARRANT. On or before the Second Revised Effective Date,
the Lender shall have received an executed Stock Purchase
Warrant, in form and substance satisfactory to the Lender
and executed by a duly authorized officer of the Borrower.
SECTION 15. Effective as of February 22, 2001, Section 5.01 of the Loan
Agreement is hereby amended by adding a new subsection (s) to read in its
entirety as follows:
EXHIBIT 99.3
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(s) ADDITIONAL COLLATERAL. On or before April 1, 2001, the
Borrower shall deposit the Additional Collateral with the
Lender pursuant to the Lender's instructions.
SECTION 16. Effective as of February 22, 2001, Section 7.01(c) of the
Loan Agreement is hereby amended to read in its entirety as follows:
"(c) The Borrower shall deliver to the Lender on the first
Business Day of each month a report containing the
Borrower's cash flow projections for the 90 day period
commencing on such date and such report shall include a
monthly cash flow projection for such month and an aggregate
cash flow projection for each of the following two months
thereafter. In addition, the Borrower shall deliver to the
Lender from time to time such other information regarding
the financial condition, operations, or business of the
Borrower as the Lender may reasonably request; and"
SECTION 17. Effective as of February 22, 2001, Section 7.16 of the Loan
Agreement is hereby amended to read in its entirety as follows:
7.16 MAINTENANCE OF LIQUIDITY. The Borrower shall insure
that, as of the end of each calendar month, it has cash and
Cash Equivalents in an amount of not less than the greater
of (i) $20,000,000 and (ii) the highest amount of liquidity
required to be maintained by the Borrower pursuant to any
other agreement, note, indenture or instrument to which the
Borrower is a party. The Borrower and the Lender agree that
prior to March 31, 2001 the term Cash Equivalents as used
hereunder shall include 80% of the unpaid principal balance
of the unencumbered auto loans owned by the Borrower;
provided that, the amount of such Cash Equivalents
attributable to such auto loans shall not exceed $13
million.
SECTION 18. Effective as of February 22, 2001, Section 7.17 of the Loan
Agreement is hereby amended to read in its entirety as follows:
7.17 MAINTENANCE OF TANGIBLE NET WORTH. The Borrower shall
not permit Tangible Net Worth at any time to be less than
the greater of (a) $20,000,000 or (b) the highest amount of
Tangible Net Worth required to be maintained by the Borrower
pursuant to any other agreement, note, indenture or
instrument to which the Borrower is a party.
SECTION 19. Effective as of February 22, 2001, Section 7.18 of the Loan
Agreement is hereby amended to read in its entirety as follows:
7.18 MAINTENANCE OF RATIO OF TOTAL INDEBTEDNESS TO TANGIBLE
NET WORTH. The Borrower shall not permit the ratio of Total
Indebtedness to Tangible Net Worth at any time to be greater
than the lesser of (a) 10:1 or (b) the lowest such ratio
required to be maintained by the Borrower pursuant to any
other agreement, note, indenture or instrument to which the
Borrower is a party.
SECTION 20. Effective as of February 22, 2001, Section 7.28 of the Loan
Agreement is hereby amended to read in its entirety as follows:
7.28 COMMITTED WAREHOUSE FACILITIES. Borrower shall at all
times have available under committed revolving facilities
(other than with Lender) at least $50,000,000. Such other
committed revolving facilities shall include wet loans in an
amount at least equal to
EXHIBIT 99.3
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$20,000,000. Borrower shall utilize the wet funding limits
of such other committed revolving facilities at least once
each month.
SECTION 21. Effective as of February 22, 2001, Section 11 of the Loan
Agreement is hereby amended by deleting Section 11.19 thereto.
SECTION 22. FEES AND EXPENSES. Borrower agrees to pay to Lender all
fees and out of pocket expenses incurred by Lender in connection with this
Amendment (including all reasonable fees and out of pocket costs and expenses of
the Lender's legal counsel incurred in connection with this Amendment Number
Two), in accordance with Section 11.03 of the Loan Agreement
SECTION 23. DEFINED TERMS. Any terms capitalized but not otherwise
defined herein shall have the respective meanings set forth in the Loan
Agreement.
SECTION 24. REPRESENTATIONS. In order to induce the Lender to execute
and deliver this Amendment Number Two, the Borrower hereby represents to the
Lender that as of the date hereof, after giving effect to this Amendment Number
Two, the Borrower is in full compliance with all of the terms and conditions of
the Loan Agreement.
SECTION 25. LIMITED EFFECT. Except as expressly amended and modified by
this Amendment, the Loan Agreement shall continue in full force and effect in
accordance with its terms. Reference to this Amendment Number Two need not be
made in the Loan Agreement or any other instrument or document executed in
connection therewith, or in any certificate, letter or communication issued or
made pursuant to, or with respect to, the Loan Agreement, any reference in any
of such items to the Loan Agreement being sufficient to refer to the Loan
Agreement as amended hereby.
SECTION 26. GOVERNING LAW. THIS AMENDMENT NUMBER TWO SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS,
RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS DOCTRINE APPLIED IN SUCH
STATE.
SECTION 27. COUNTERPARTS. This Amendment Number Two may be executed by
each of the parties hereto on any number of separate counterparts, each of which
shall be an original and all of which taken together shall constitute one and
the same instrument.
[SIGNATURE PAGE FOLLOWS]
EXHIBIT 99.3
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IN WITNESS WHEREOF, Borrower and Lender have caused this amendment to
be executed and delivered by their duly authorized officers as of the day and
year first above written.
E-LOAN, INC.,
Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President, C.O.O.
GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC.,
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: SVP
EXHIBIT 99.3
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EXHIBIT A
FORM OF BORROWER'S OFFICER'S CERTIFICATE
I, ________________, hereby certify that I am the duly elected
________________ of E-Loan, Inc., a Delaware corporation (the "BORROWER"), and
further certify, on behalf of the Borrower as follows:
1. Each person who, as an officer or attorney-in-fact of the
Borrower, signed (a) Amendment Number Two (the "AMENDMENT") to the
Master Loan and Security Agreement (as amended, the "LOAN AGREEMENT"),
dated as of February 22, 2001, by and between the Borrower and
Greenwich Capital Financial Products, Inc. (the "LENDER"); (b) the
Securitization Letter, dated February __, 2001 by and between the
Borrower and the Lender; and (c) any other document delivered prior
hereto or on the date hereof in connection with transactions
contemplated in the Loan Agreement was, at the respective times of
such signing and delivery, and is as of the date hereof, duly elected
or appointed, qualified and acting as such officer or
attorney-in-fact, and the signatures of such persons appearing on such
documents are their genuine signatures.
2. All of the representations and warranties of the Borrower
contained in Section 6 of the Loan Agreement were true and correct in
all material respects as of the date of the Amendment and are true and
correct in all material respects as of the date hereof.
3. The Borrower has performed all of its duties and has satisfied
all the material conditions on its part to be performed or satisfied
pursuant to Section 5 of the Loan Agreement.
4. As of the date of the Amendment and as of the date hereof, no
Default or Event of Default exists under the Loan Agreement.
5. There are no actions, suits or proceedings pending or, to my
knowledge, threatened, against or affecting the Borrower which, if
adversely determined either individually or in the aggregate, would
adversely affect the Borrower's obligations under the Loan Agreement.
No proceedings that could result in the liquidation or dissolution of
the Borrower are pending or contemplated.
All capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Loan Agreement.
EXHIBIT 99.3
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IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal
of the Borrower.
Dated: February __, 2001
[Seal]
E-LOAN, INC.
By:
-------------------------------------
Name
Title:
I, ___________________, _________ of E-Loan, Inc., hereby certify that
________________ is the duly elected, qualified and acting _______________ of
E-Loan, Inc. and that the signature appearing above is the genuine signature of
such person.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: February __, 2001
[Seal]
E-LOAN, INC.
By:
-----------------------------------
Name
Title:
EXHIBIT 99.3
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