Exhibit
10.1


 


SECOND AMENDMENT TO


WAREHOUSING CREDIT AGREEMENT


 


THIS
SECOND AMENDMENT TO WAREHOUSING CREDIT AGREEMENT (the “Second Amendment”) is made and entered into as
of the 12th day of December, 2008, and is to be effective as of the 30th day of
December, 2008, by and among (i) HOME
LOAN CENTER, INC. D/B/A LENDINGTREE LOANS, a
California corporation with its principal place of business located at 163
Technology Drive, Irvine, California 92618 (the “Company”), (ii) NATIONAL
CITY BANK, a national banking association, with a place of business
located at 101 South Fifth Street, Louisville, Kentucky 40202 (“National City”
or the “Bank”), and (iii) NATIONAL CITY BANK,
a national banking association, with a place of business located at 101 South
Fifth Street, Louisville, Kentucky 40202, its capacity as Agent for the
hereinafter defined Banks (in such capacity, the “Agent”).


 


P R E L I M I N A R Y   S T A T E
M E N T:


 


A.                                   Pursuant to that certain Warehousing
Credit Agreement dated as of November 26, 2007, by and among the Company,
the Bank and the Agent (the “Existing Credit Agreement”), the Bank has
heretofore established in favor of the Company a warehousing line of credit
facility in the maximum principal amount of Fifty Million Dollars
($50,000,000.00) (the “Warehouse Line”), for the purposes set forth therein.
The  Existing Credit Agreement, as
amended by this Second Amendment, is hereinafter referred to as the “Credit
Agreement”.


 


B.                                     The Company, the Agent and the Bank are
willing to and desire to amend the Existing Credit Agreement in order to (i) extend
the stated Maturity Date to December 29, 2009, (ii) delete the Alt
A Advance Sublimit and remove Alt A Loans as Eligible Collateral thereunder, (iii) delete
the HELOC/Second Trust Deed Advance Sublimit and remove HELOC Loans and Second
Trust Deed Loans as Eligible Collateral thereunder, (iv) modify the
definitions of Aged Loan, Collateral Value, Eligible Collateral and Jumbo Loan,
(v) modify the Jumbo Advance Sublimit, (vi) modify the interest rates applicable to
the Warehouse Line, and (vii) implement certain other modifications
thereto.


 


NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth in the Existing Credit Agreement and herein,
and for other good and valuable consideration, the mutuality, receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:


 


1.                                       Each capitalized term used herein, unless
otherwise expressly defined herein, shall have the meaning set forth in the
Existing Credit Agreement.


 


2.                                       The following definitions, as contained
in Article 1 of the Existing
Credit Agreement, are hereby amended and restated in their entirety to read as
follows:


 


“Aged Loan” shall mean, as of any
date:


 


(a)                                  Any Loan, which is not a Wet
Loan, which has been pledged as Collateral for more than sixty (60) calendar
days (calculated from the date upon which the Advance relating to such Loan is
made hereunder); and


 


(b)                                 Any Wet Loan which has been
pledged as Collateral for more than ten (10) calendar days (calculated
from the date upon which the Advance relating to such Loan is made hereunder).


 

















 


“Collateral Value” shall mean as of
any date:


 


(a)                                  With respect to
a Loan which constitutes Eligible Collateral on such date, and which is not
a Jumbo Loan, ninety-eight percent (98%) of the lesser of (i) the face
amount of the promissory note evidencing such Loan, or (ii) the purchase
price under the Commitment to which the applicable Loan has been assigned; and


 


(b)                                 With respect to
a Loan which constitutes Eligible Collateral on such date, and which is a Jumbo
Loan, ninety-seven percent (97%) of the lesser of (i) the purchase price
under the Commitment to which such Loan has been assigned, or (ii) the
face amount of the promissory note evidencing such Loan.


 


Notwithstanding
anything contained in (a) or (b) to the contrary:


 


A.                                   The Collateral
Value of all Wet Loans shall not exceed, in the aggregate, the Wet Advance
Sublimit;


 


B.                                     The Collateral
Value of all Jumbo Loans shall not exceed, in the aggregate, the Jumbo Advance
Sublimit;


 


C.                                     Each Wet Loan
in respect to which the Company shall not have delivered all of the Collateral
Documents to the Agent within the number of days required by the Security
Agreement, shall have a Collateral Value of zero;


 


D.                                    Each Wet Loan
which the Agent determines has not been funded by the Company on the date the
Advance in respect of such Wet Loan is made by the Banks to the Company, shall
have a Collateral Value of zero;


 


E.                                      If the Agent
shall reasonably determine that the Collateral Value otherwise assigned to an
item of Eligible Collateral does not accurately reflect the value thereof,
then, upon notice to the Company, the Agent may mark an item of collateral to
market at any time to determine the fair market value thereof; provided,
however, in no event shall any mark to market with respect to any item of
Eligible Collateral under this subsection result in such item of Eligible
Collateral having  a Collateral Value
higher than such item would otherwise have;


 


F.                                      In the event
that a Loan shall have been delivered by the Agent to a purchaser under a
Commitment as provided in the Security Agreement, or in the event that such
Loan was delivered by the Agent to an Approved Investor and more than the
maximum number of days allowed by the Security Agreement shall have elapsed
since the date of such delivery and no purchase has taken place or the proceeds
thereof have not been received by the Agent, such Loan shall have a Collateral
Value of zero;


 


G.                                     All Aged Loans
which do not constitute Eligible Collateral shall have a Collateral Value of
zero;


 


H.                                    All Loans which are under Trust Receipt
in accordance with the terms of the Security Agreement which are not returned
to the Agent within the required number of days specified in the Security
Agreement, shall have a Collateral Value of zero; and


 


I.                                         The Collateral
Value of all Loans which are under Trust Receipt in accordance with the terms
of the Security Agreement shall not exceed, in the aggregate, Two Million Five
Hundred Thousand Dollars ($2,500,000.00).


 


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“Conforming Loan” shall mean a Loan
secured by a Conforming Mortgage or Government Mortgage, and which may be a “Stated
Income/Stated Asset Loan” or “Option ARM Loan”.


 


“Eligible Collateral” shall mean,
collectively and as of any date, [A] each Loan (i) which is a Conforming
Loan, Government Loan, a Wet Loan or a Jumbo Loan, (ii) which is not an
Aged Loan, (iii) which constitutes Collateral, (iv) which no default
has occurred and is continuing on such Loan, (v) which is pledged as
Collateral within thirty (30) calendar days of origination, purchase or
conversation, (vi) which has no more than one (1) principal/interest
payment past due, (vii) which has not been under Trust Receipt in
accordance with the terms of the Security Agreement for more than the maximum
number of days allowed under the Security Agreement, (viii) which has not
been shipped to an Approved Investor for more than the maximum number of days
allowed by the Security Agreement and no purchase proceeds have been received
by the Agent, (ix) in respect of which the loan-level representations,
warranties and agreements contained in the Credit Agreement and the Security
Agreement are true and correct, and (x) which is subject to a Firm
Commitment or Standby Commitment; and [B] each Loan (i) that is a
Discretionary Loan (as defined in Section 9.20
hereof) without duplication, (ii) that constitutes Collateral, and (iii) that
is not subject to any lien or security interest other than that granted under
the Credit Agreement and the Security Agreement.  Unless specifically provided for herein, “Stated
Income/Stated Asset Loans” and “Option ARM Loans” are not permitted to be
funded under the Warehouse Line and shall not constitute Eligible Collateral
under this Credit Agreement.


 


“Jumbo Advance Sublimit” shall mean an amount equal to ten
percent (10%) of the Total Warehouse Line Commitment.


 


“Government Loan” shall mean a Loan secured by a Government
Mortgage (including any FHA Loan or VA Loan which exceeds the Fannie Mae or
FHLMC guidelines for maximum loan amount).


 


“Jumbo Loan” shall mean a Loan, the amount of which exceeds
Fannie Mae or FHLMC guidelines for maximum eligible amount, but which Loan
shall not have a face amount in excess of One Million Dollars ($1,000,000.00),
except as may be otherwise pre-approved by the Agent in writing in its sole
discretion after the Company has provided the Agent with written notice thereof
together with a copy of the related “clear to close” letter from an Approved
Investor and the applicable appraisal at least two (2) Business Days prior
to the funding thereof, and the entire interest of which is owned by the
Company and which is secured by a First Trust Deed covering a completed one-to-four
family residential property which is either subject to a Firm Commitment or
meets the underwriting guidelines of at least two (2) Approved Investors,
provided, that: (i) such Loan shall have a FICO Score equal to or
in excess of six hundred eighty (680), and (ii) such Loan shall have a
combined loan-to-value ratio at origination of not more than ninety percent
(90%).


 


“Maturity Date” shall mean December 29,
2009; provided that the Agent and the Bank shall have the option, in their
absolute discretion, either one time or from time to time, to extend the
Maturity Date for an additional period not to exceed three hundred and sixty
four (364) days.  If the Maturity Date is
extended, the term Maturity Date shall mean the date of expiration of such
extension.


 


3.                                       Article 1 of the
Existing Credit Agreement is hereby further amended by deleting thereform, each
of the following defined terms:  “Alt A
Advance”, “Alt A Advance Sublimit”, “Alt A Loan”, “HELOC Loan”, “HELOC/Second
Trust Deed Advance”, “HELOC/Second Trust Deed Advance Sublimit”, “Home Equity
Mortgage”, “Second Trust Deed” “Second Trust Deed Loan”,  and the Existing Credit Agreement and each of
the other Loan Documents are hereby further amended by deleting each reference
to such terms in their entirety.


 


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4.                                       Section 2.1
of the Existing Credit Agreement is hereby amended and restated in its
entirety to read as follows:


 


“2.1                           Warehouse
Advances. Each Bank severally agrees to lend to the Company,
and the Company agrees to borrow from each Bank, on the terms and conditions of
this Credit Agreement, an aggregate amount not exceeding such Bank’s respective
Warehouse Line Commitment, and the aggregate amount of all such Warehouse Line
Commitments shall equal the Total Warehouse Line Commitment; provided, however
the Total Warehouse Line Commitment includes a Wet Advance Sublimit and a Jumbo
Advance Sublimit.  Subject to the terms
and conditions contained herein, Warehouse Advances may be repaid and reborrowed
until the Termination Date.  Each Bank’s
commitment to make Warehouse Advances under this Section 2.1 is herein called its “Warehouse Line
Commitment” and is set forth opposite its name in Schedule 2.1 attached to this Credit Agreement and the
aggregate maximum amount of the Warehouse Line Commitments is herein called the
“Total Warehouse Line Commitment”. The Total Warehouse Line Commitment is equal
to Fifty Million Dollars ($50,000,000.00), as may be increased by the Company
and the Agent in their sole, joint discretion by adding one or more Applicant
Financial Institutions as a “Bank” or “Banks” hereunder and as may be decreased
in accordance with the requirements of  Section 11.1 hereof.  The principal amount set forth above (as the
same may be increased pursuant to the terms hereof) shall be available to the
Company as Warehouse Advances, Excess Advances and Swing Advances, subject to
the terms and conditions hereof, at such times prior to the Termination Date
and in such sums, as the Company may request.


 


Notwithstanding
the foregoing, the Banks shall not be obligated to make a Warehouse Advance
which, (a) when added to the sum of the Aggregate Outstanding Warehouse
Balance plus the Aggregate Outstanding Excess Balance, would cause the
Aggregate Outstanding Warehouse Balance plus the Aggregate Outstanding
Excess Balance to exceed the Warehouse Borrowing Base at such time; (b) when
added to the sum of the Aggregate Outstanding Warehouse Balance plus the
Aggregate Outstanding Excess Balance, would cause or result in a violation of
the financial covenants set forth in Article 5 hereof;
(c) if such Warehouse Advance is a Wet Advance, when added to the
aggregate outstanding balance of all Wet Advances would cause or result in a
violation of the Wet Advance Sublimit; (d) if such Warehouse Advance is a
Jumbo Advance, when added to the aggregate outstanding of all Jumbo Advances
would cause or result in a violation of the Jumbo Advance Sublimit; or (e) if
such Warehouse Advance would cause or result in the Aggregate Outstanding
Warehouse Balance plus the Aggregate Outstanding Excess Balance to
exceed the Total Warehouse Line Commitment. 
The Agent and the Banks shall not be obligated to honor any Request for
Advance if the disbursement of funds thereunder would occur on or after the
Termination Date, or if an Event of Default has occurred and is continuing or
if such disbursement would cause or result in an Event of Default or an
Unmatured Event of Default.”


 


5.                                       Section 2.8
of the Existing Credit Agreement is hereby amended and restated in its
entirety to read as follows:


 


“2.8                           Rates of
Interest.


 


(a)                                  Applicable Rates of Interest.  With respect to all Advances, the Swing Note
and the Warehouse Notes shall bear interest at the following rates of interest,
as applicable:  (a) the per annum
rate equal to LIBOR plus one and one-quarter of one percent (1.25%) for
that portion of the aggregate outstanding principal balance of  each Warehouse Note of each Bank which is not
a Balance Funded Bank and for that portion of the aggregate outstanding
principal balance of the Balance Funded Bank’s Warehouse Note and the Swing
Note which exceeds the Average Monthly Available Deposits maintained by the
Company with the Balance Funded Bank, and (b) the per annum rate equal to
one and one-half of one percent (1.50%) for that portion of the aggregate
outstanding principal balance of the Warehouse Note payable to the Balance
Funded 


 


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Bank and the Swing Note which does not exceed the Average Monthly
Available Deposits maintained by the Company with the Balance Funded Bank; and


 


(b)                                 Highest Lawful Rate.  Notwithstanding anything to the contrary
contained in this Credit Agreement or the Notes, at no time shall the interest
rates payable on the Advances, together with all fees and other amounts payable
hereunder to the extent the same constitute or are deemed to constitute
interest, exceed the maximum rate of interest allowed by applicable law (the “Highest
Lawful Rate”).  In respect of any period
during the term of this Credit Agreement, any amount paid to the Agent or any
Bank, to the extent the same shall (but for the provisions of this Section 2.8(b)) constitute or be deemed to constitute
interest, would exceed the maximum amount of interest permitted by the Highest
Lawful Rate during such period (such amount being hereinafter referred to as an
“Unqualified Amount”), then, notwithstanding anything to the contrary contained
in this Section 2.8, such Unqualified
Amount shall be applied or shall be deemed to have been applied as a prepayment
on the Advances.”


 


6.                                       Section 7.2(i) of the Existing
Credit Agreement is hereby amended and restated in its entirety to read as
follows:


 


“(i)                               Use of Funds.  The Company shall not use any funds provided
by the Banks under this Credit Agreement, or by any Warehouse Advance, Swing
Advance or Excess Advance for any purpose other than funding or purchasing
Loans.  The Company shall not use the
proceeds of any Wet Advance or Jumbo Advance for any purpose other than the
purposes encompassed by the definition of those terms in Article 1
of this Credit Agreement.  In addition to
the foregoing, the Company shall not use any funds provided by the Banks under
this Credit Agreement or by any Warehouse Advance for the purpose of making any
Loan that would be subject to the provisions of the Home Ownership and Equity
Protection Act of 1994 or other federal or state legislation relating to “high
cost” mortgage lending.”


 


7.                                       The Existing Credit Agreement is hereby
amended by amending and restating Exhibit A and
Schedule 6.1 thereof to read in their entirety as set forth on Exhibit A and Schedule 6.1 attached to this Second Amendment and made a part hereof by this
reference.


 


8.                                       The Company
represents and warrants that no Event of Default has occurred to date or will
result herefrom under the Existing Credit Agreement or any other Loan Document
and that no Unmatured Event of Default currently exists or will result herefrom
under any of the Loan Documents.


 


9.                                       This Second Amendment may be executed in
one or more counterparts, each of which shall constitute an original and all of
the same shall constitute one and the same instrument.


 


10.                                 The Company further represents and
warrants that there have been no changes made to the Certificate of
Incorporation or Bylaws of the Company since November 26, 2007.


 


11.                                 This Second Amendment shall be effective
as of the date of delivery to the Agent of each of the following:  (i) this Second Amendment duly executed
by all parties hereto, (ii) an amended and restated fee letter, a letter
from the Company indicating that the current authorized signer letter has not
been amended, updated disclosures, updated UCC search results and an
authorizing resolution, and (iii) all such other security documents, opinions,
instruments and certificates as may be required by the Bank or its counsel in
order to consummate the transactions contemplated herein.


 


12.                                 This Second Amendment and the related
writings and the respective rights and obligations of the parties shall be
governed by, and construed and enforced in accordance with, the laws of the
Commonwealth of Kentucky.


 


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13.                                 This Second Amendment shall be binding
upon, and shall inure to the benefit of, the Company, the Bank and the Agent
and their respective successors and assigns.


 


14.                                 This Second Amendment and the agreements,
instruments and other documents referred to herein, constitute the entire
agreement of the parties with respect to, and supersede all prior
understandings of the parties with respect to the subject matter hereof.  No change, modification, addition or
termination of this Second Amendment shall be enforceable unless in writing
signed by the party against whom enforcement is sought.


 


15.                                 Except to the extent expressly amended or
modified hereby, the Company hereby ratifies and reaffirms all of its
representations, warranties, covenants, agreements and obligations set forth in
the Existing Credit Agreement and each of the other Loan Documents.


 


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IN WITNESS WHEREOF, the
parties hereto have caused this Second Amendment to Warehousing Credit
Agreement to be duly executed as of the day and year first above written.


 


 


	
   

  	
   

  	
   

  	
  HOME
  LOAN CENTER, INC. D/B/A

  LENDINGTREE LOANS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Rian Furey

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Senior Vice
  President

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (the “Company”)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  NATIONAL
  CITY BANK

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Scott Goodwin

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (the “Bank”)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  NATIONAL
  CITY BANK

  	
   

  
	
   

  	
   

  	
   

  	
  in its
  capacity as Agent for the Banks

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Scott
  Goodwin

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (the “Agent”)

  	
   

  
							



 


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