Exhibit 10.24
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CONTRIBUTION AND SALE AGREEMENT
between
E-LOAN AUTO FUNDING ONE, LLC,
as Buyer,
and
E-LOAN, INC.,
as Seller,
Dated as of June 1, 2002
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ALL RIGHTS IN AND TO THIS AGREEMENT ON THE PART OF E-LOAN AUTO FUNDING ONE, LLC
HAVE BEEN ASSIGNED TO, AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF,
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA, AS SECURED PARTY, UNDER THE SECURITY AGREEMENT, DATED AS
OF JUNE 1, 2002, FOR THE BENEFIT OF THE PERSONS REFERRED TO THEREIN.
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS ...................................................... 1
SECTION 1.1. Definitions........................................ 1
SECTION 1.2. Other Definitional Provisions...................... 1
ARTICLE II CONVEYANCE OF SOLD ASSETS ....................................... 2
SECTION 2.1. Conveyance of Initial Sold Assets.................. 2
SECTION 2.2. Conveyance of Sold Assets After
the Initial Transfer Date........................ 2
SECTION 2.3. Security Grant..................................... 2
ARTICLE III THE SOLD ASSETS ................................................ 3
SECTION 3.1. Sold Asset Representations and Warranties.......... 3
SECTION 3.2. Repurchase upon Breach............................. 5
ARTICLE IV THE SELLER ...................................................... 6
SECTION 4.1. Representations and Warranties of Seller........... 6
SECTION 4.2. Covenants of Seller................................ 8
SECTION 4.3. Corporate Existence................................ 10
SECTION 4.4. Liability of Seller; Indemnities................... 10
SECTION 4.5. Merger or Consolidation of, or Assumption of
the Obligations of, Seller....................... 11
SECTION 4.6. Limitation on Liability of Seller and Others....... 11
ARTICLE V [RESERVED] ....................................................... 11
ARTICLE VI MISCELLANEOUS PROVISIONS ........................................ 12
SECTION 6.1. Amendment.......................................... 12
SECTION 6.2. Protection of Collateral........................... 12
SECTION 6.3. Notices............................................ 13
SECTION 6.4. Assignment......................................... 14
SECTION 6.5. Limitations on Rights of Others.................... 14
SECTION 6.6. Severability....................................... 14
SECTION 6.7. Separate Counterparts.............................. 14
SECTION 6.8. Headings........................................... 14
SECTION 6.9. Governing Law...................................... 14
SECTION 6.10. Assignment to Lender............................... 14
SECTION 6.11. No Petition........................................ 14
SECTION 6.12. Submission to Jurisdiction; Waivers................ 15
SCHEDULES AND EXHIBITS
EXHIBIT A* Form of Seller Assignment
EXHIBIT B* Non-Franchise Dealer Procedures
*Schedules and exhibits has been omitted as non-material and will be provided in
accordance with Item 601 of Regulation S-K.
-i-
CONTRIBUTION AND SALE AGREEMENT (as amended, supplemented or otherwise
modified from time to time, this "AGREEMENT") dated as of June 1, 2002, between
E-LOAN AUTO FUNDING ONE, LLC, a Delaware limited liability company (the
"BUYER"), and E-LOAN, INC., a Delaware corporation (the "SELLER").
RECITALS
WHEREAS, in contemplation of this Agreement, the Seller has agreed to
sell, transfer, contribute and assign to the Buyer on the Closing Date, and the
Buyer has agreed to accept on the Closing Date, all right, title and interest of
the Seller in, to and under the Initial Sold Assets, originated by the Seller in
the ordinary course of business, upon the terms and conditions hereinafter set
forth; and
WHEREAS, from time to time thereafter, the Seller may transfer,
contribute and assign additional Sold Assets to the Buyer upon the terms and
conditions hereinafter set forth; and
WHEREAS, in connection with the transaction contemplated hereby, the
Buyer will collaterally assign to the Lender, all of its right, title and
interest in and to the Sold Assets and this Agreement, as collateral for the
Note to be issued pursuant to the terms of the Credit Agreement; and
WHEREAS, each of the Seller and the Buyer agree that all
representations, warranties, covenants and agreements made by the Seller and the
Buyer herein shall be for the benefit of the Lender;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS. Capitalized terms used herein and not
otherwise defined herein are defined in Schedule A to the Credit Agreement,
dated as of June 1, 2002 (the "Credit Agreement"), among the Buyer, the Seller
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA, as Lender thereunder, as the same may be
supplemented, amended or otherwise modified from time to time in accordance with
its terms.
SECTION 1.2. OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document to
the extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles. To the extent that the definitions of
accounting terms in this Agreement or in any such certificate or other document
are inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Agreement or in any
such certificate or other document shall control.
(c) The words "hereof', "herein", "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement; Section, Schedule and Exhibit
references contained in this Agreement are references to Sections, Schedules and
Exhibits in or to this Agreement unless otherwise specified; and the term
"including" shall mean "including, without limitation,".
(d) The definitions contained in this Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms.
ARTICLE II
CONVEYANCE OF SOLD ASSETS
SECTION 2.1. CONVEYANCE OF INITIAL SOLD ASSETS. On the Closing Date,
the Seller does hereby sell, contribute, transfer, assign, set over and
otherwise convey to the Buyer, without recourse (subject to the obligations
herein), all of its right, title and interest in, to and under the Initial Sold
Assets. Such assignment shall be evidenced by a duly executed written assignment
in substantially the form of Exhibit A (the "Seller Assignment"). On or prior to
the initial Advance Date, the Seller shall execute and deliver to the Buyer and
the Lender each of the documents set forth in Section 2.2(b) hereof.
SECTION 2.2. CONVEYANCE OF SOLD ASSETS AFTER THE INITIAL TRANSFER DATE.
(a) After the initial Transfer Date, the Seller hereafter may, from
time to time, transfer to the Buyer, additional Sold Assets. In consideration of
the sale of the Sold Assets sold to the Buyer on any Transfer Date, the Buyer
shall pay to the Seller on such Transfer Date an amount equal to the remaining
principal balance of all Receivables plus interest accrued from the prior
installment date, if any, transferred to the Buyer on such Transfer Date. Buyer
shall pay such purchase price by (i) making a cash payment to the Seller to the
extent that the Buyer has received an Advance on such Transfer Date pursuant to
the Credit Agreement and (ii) if the purchase price to be paid for the Sold
Assets exceeds the amount of any cash payment for the account of the Seller on
such day pursuant to clause (i) above, such excess shall automatically
constitute a capital contribution to the Buyer by the Seller. In connection with
any such transfer, the Seller will execute and deliver on or prior to the
respective Transfer Date each of the documents set forth in Section 2.2(b)
hereof.
(b) In connection with any transfer of Sold Assets by the Seller to
the Buyer in accordance with the provisions of Sections 2.1 or 2.2(a) of this
Agreement, the Seller shall execute and deliver to the Buyer and the Lender on
or before the related Transfer Date, each of the following:
(i) A completed Seller Assignment which assignment shall
operate as an assignment, without recourse, representation, or
warranty, except for the other representations and warranties
specifically set forth in this Agreement, of all the Seller's
right, title, and interest in and to the Sold Assets identified in
such certificate;
(ii) Completed UCC financing statements (if necessary or
advisable) or documents of similar import described in Section 6.2
hereof, together with evidence of filing of such financing
statements in the appropriate filing offices and jurisdictions as
may be required with respect to the Sold Assets so transferred; and
(iii) Copies of all applicable UCC and federal, state and
local tax and judgment lien searches indicating the absence of any
Encumbrance other than a Permitted Encumbrance with respect to the
Sold Assets identified in the related Seller Assignment.
SECTION 2.3. SECURITY GRANT. The Seller and Buyer intend that all
transfers of Sold Assets be a "true sale" or "true contribution" by the Seller
to the Buyer that are absolute and irrevocable and that provide the Buyer with
the full benefits of ownership of the Sold Assets, and neither the Seller nor
the Buyer intends the transactions contemplated hereunder to be, or for any
purpose to be characterized as,
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loans from the Buyer to the Seller. It is, further, not the intention of the
Buyer or the Seller that the conveyance of the Sold Assets by the Seller be
deemed a grant of a security interest in the Sold Assets by the Seller to the
Buyer to secure a debt or other obligation of the Seller. However, in the event
that, notwithstanding the intent of the parties, any transfer of any property
described in SECTIONS 2.1 or 2.2 is characterized by a court or other
governmental authority as a loan rather than a sale, Seller shall be deemed
hereunder to have granted to Buyer and its assignee, the Lender, a first
priority security interest in all of Seller's right, title and interest in, to
and under such Sold Assets.
Such first priority security interest shall secure all of Seller's
obligations (monetary or otherwise) under this Agreement and the other Credit
Documents to which it is a party, whether now or hereafter existing or arising,
due or to become due, direct or indirect, absolute or contingent. Buyer and its
assignee, the Lender, shall have, with respect to such property, and in addition
to all the other rights and remedies available to Buyer under this Agreement and
applicable law, all the rights and remedies of a Lender under any applicable
UCC, and this Agreement shall constitute a security agreement under applicable
law.
ARTICLE III
THE SOLD ASSETS
SECTION 3.1. SOLD ASSET REPRESENTATIONS AND WARRANTIES. The Seller
makes the following representations and warranties as to the Sold Assets for the
benefit of the Buyer, each Hedge Counterparty and the Lender, on which the Buyer
relies in acquiring the Initial Sold Assets (and on which the Buyer is deemed to
have relied in acquiring any additional Sold Assets, the Lender is deemed to
have relied in making the loans and each Hedge Counterparty is deemed to have
relied in entering into its respective Hedge Agreement(s)). Such representations
and warranties are made as of each Transfer Date with respect to the Sold Assets
transferred by the Seller to the Buyer on such date, unless otherwise indicated,
but shall survive the sale, transfer and assignment of the Sold Assets to the
Buyer and the pledge thereof to the Lender for the benefit of itself and each
Hedge Counterparty pursuant to the Credit Agreement and the Auto Fund Security
Agreement.
(a) FAIR CONSIDERATION. The consideration received and to be
received by the Seller in exchange for the assignment, transfer and contribution
of the Sold Assets is (x) fair consideration having value equivalent to or in
excess of the value of the assets being transferred by the Seller and (y) not
less than "reasonably equivalent value" as such term is used in Section 548 of
the U.S. Bankruptcy Code. Any such transfer shall not have been made for or on
account of antecedent debt (as such term is used in Section 547 of the U.S.
Bankruptcy Code) owed by the Seller or any of its Affiliates to the Buyer and no
such transfer is or may be voidable under any section of the Bankruptcy Code;
(b) ORDINARY COURSE. The transactions contemplated by this
Agreement and the other Credit Documents are being consummated by the Seller in
furtherance of the Seller's ordinary business purposes and constitute a
practical and reasonable course of action by the Seller designed to improve the
financial position of the Seller, with no contemplation of insolvency and with
no intent to hinder, delay or defraud any of its present or future creditors;
(c) TITLE. It is the intention of the Seller that any transfer and
assignment herein contemplated constitute a sale of the Sold Assets from the
Seller to the Buyer and that the beneficial interest in and title to the Sold
Assets not be part of the Seller's estate in the event of the filing of a
bankruptcy petition by or against the Seller under any bankruptcy or similar
law. None of the Sold Assets has been sold, transferred, assigned or pledged by
the Seller to any Person other than the Buyer. Immediately prior to the
transfers and assignments herein contemplated, the Seller had good and
marketable title to each Receivable and a first priority perfected security
interest in each Financed Vehicle and with respect to the other Sold Assets, the
right, title and/or interest, free and clear of all
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Encumbrances, except Permitted Encumbrances, and, immediately upon the transfer
thereof, the Buyer shall have good and marketable title to each Receivable and a
first priority perfected security interest in each Financed Vehicle and, with
respect to the other Sold Assets, the right, title and/or interest, free and
clear of all Encumbrances, except Permitted Encumbrances; and the transfer and
assignment to the Buyer of the Sold Assets has been perfected under the UCC;
(d) ALL FILINGS MADE. All filings (including UCC filings) necessary
in any jurisdiction to give the Buyer a first priority perfected ownership
interest in the Sold Assets, and to give the Lender a first priority perfected
security interest therein have been made;
(e) FINANCED VEHICLES AND RECEIVABLES. With respect to the Sold
Assets, the Seller hereby represents and warrants to the Buyer as of the
applicable Cutoff Date that: (i) the sale to the Buyer of the Seller's interest
in such Sold Assets transferred on such date and the assignment of the Seller's
security interest in the Financed Vehicles pursuant to this Agreement
constitutes a valid transfer of all of Seller's right, title and interest in
such Sold Assets, free and clear of any and all claims, charges, liens or
security interests created by the Seller or any of its Affiliates, except any
Permitted Encumbrances and (ii) the Seller did not, in the exercise of its
interest in any such property, waive, discharge, release or otherwise permit any
modification thereto not in effect or agreed to at the time the Seller acquired
its interest therein, except pursuant to a document, instrument or writing
included in the Receivable Files and no such amendment, waiver, alteration or
modification causes such Receivable or related item of Sold Assets not to
conform to the other warranties contained in this Section;
(f) NO ADVERSE SELECTION PROCEDURES. The selection procedures used
by the Seller in selecting any Contract or Financed Vehicle to be included in
the Sold Assets shall not intentionally discriminate against the Buyer as to
type or age of Financed Vehicle, Obligor or terms of the Contract in comparison
to the Seller's entire pool of Contracts and Financed Vehicles as a whole;
(g) ELIGIBILITY. Each Contract transferred by the Seller to the
Buyer as a Sold Asset is, as of the applicable Transfer Date, an Eligible
Contract;
(h) FINANCIAL REPORTING AND ACCOUNTING TREATMENT. The Seller will
treat the transfer of the Sold Assets to the Buyer pursuant to this Agreement as
either a sale or contribution, as applicable, of such Sold Assets for financial
reporting and accounting purposes, and the Seller has been advised by its
independent accountants that such independent accountants agree with such
treatment;
(i) BULK TRANSFER ACT. No transfer, assignment or conveyance of the
Sold Assets by the Seller to the Buyer contemplated by this Agreement will be
subject to the bulk transfer or any similar statutory provisions in effect in
any applicable jurisdiction;
(j) RIGHTS TO CONTRACTS; NO VIOLATION OF CONTRACTS. The rights with
respect to each Contract transferred as a Sold Asset pursuant to this Agreement
are assignable by the Seller without the consent of any Person other than
consents which will have been obtained on or before the related Transfer Date;
and the transfer and conveyance to the Buyer of the Sold Assets will not violate
the terms or provisions of any Contract or any other agreement to which the
Seller then is a party or by which it is bound;
(k) REGISTRATION. A Certificate of Title for each Financed Vehicle
has been or will be registered in the name of the Obligor as owner and the
Seller as Lender with each applicable department of motor vehicles;
(l) CASUALTY LOSS. As of the applicable Transfer Date, to the
knowledge of the Seller, no Financed Vehicle shall have suffered a Casualty
Loss;
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(m) DOLLARS. All payments under each Contract are payable in
Dollars;
(n) RECEIVABLE FILES. Each Receivable File is stored in the
Custodian's offices located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇;
(o) ORDINARY COURSE OF BUSINESS. The collection practices used by
the Seller or the Servicer, as the case may be, with respect to each such
Contract have been in all respects legal, proper, prudent and customary in the
motor vehicle financing and servicing business;
(p) CONTRACT PAYMENTS. Each transferred Contract provides for
payment thereunder on a basis no less frequently than monthly;
(q) RESERVED.
(r) ENFORCEABILITY. The operation of any of the terms of any
transferred Contract or the exercise by the Buyer, the Servicer or the Lender of
any right under any such Contract will not render such Contract unenforceable in
whole or in part, and, to the best of the Seller's knowledge, no right of
rescission, set-off, off-set, counterclaim or defense has been asserted in
writing with respect thereto;
(s) FORM OF CONTRACT. Each transferred Contract is substantially
similar, in both form and substance, to the forms of contracts set forth as
Schedules N, O and P to the Credit Agreement; and
(t) ALL REPRESENTATIONS AND WARRANTIES TRUE. All representations
and warranties made by the Seller in any certificate or other document delivered
at the closing of the transactions contemplated by the Credit Documents
(including all representations and warranties made to Mayer, Brown, ▇▇▇▇ and Maw
in support of its opinion letter issued and delivered in connection with the
issuance of the Note and each of the factual assumptions contained in such
opinions to the extent compliance with such assumptions is in the control of the
Seller) are true and correct in all material respects.
(u) OBLIGOR INSURANCE. Each Contract and the Seller requires, in
accordance with its customary origination policies and procedures, that each
Financed Vehicle be insured by the related Obligor under insurance policies
providing physical damage and bodily injury/physical damage liability or similar
coverage with respect to the Financed Vehicle or the Obligor.
(v) ELIGIBLE NON-FRANCHISE DEALER. Each Eligible Non-Franchise
Dealer has been approved based on the Non-Franchise Dealer Procedures attached
as Exhibit B to this Agreement.
SECTION 3.2. REPURCHASE UPON BREACH.
(a) The Seller or the Buyer, as the case may be, shall (and each
Hedge Counterparty, the Servicer or the Lender, as the case may be, may) inform
the other parties promptly, in writing, upon the discovery of any breach of the
Seller's representations, warranties or covenants made pursuant to any of
SECTIONS 3.1, 4.2(D), 4.2(F), or 4.2(G) as to a particular Contract. Unless any
such breach shall have been cured by the last day of the Monthly Period after
such breach is discovered by a Hedge Counterparty, the Servicer, the Seller, the
Buyer or the Lender or in which each Hedge Counterparty, the Servicer, the
Seller, the Buyer and the Lender receives written notice of such breach, the
Seller shall be obligated to repurchase on the Payment Date following the
earlier of discovery by the Seller of such breach and notice to the Buyer of
such breach any Receivable adversely affected by any such breach as of such last
day. Subject to the provisions of SECTION 4.4, the sole remedy of the Buyer, the
Lender or a Hedge Counterparty with respect to a breach of the representations,
warranties or covenants made pursuant to any of SECTIONS 3.1, 4.2(D), 4.2(F) OR
4.2(G) as to a particular Contract and the agreement
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contained in this SECTION 3.2 shall be to require the Seller to repurchase the
related Receivable pursuant to this Section, subject to the conditions contained
herein.
(b) With respect to all Receivables repurchased by the Seller
pursuant to this Agreement, the Buyer shall sell, transfer, assign, set over and
otherwise convey to the Seller, without recourse, representation or warranty,
all of the Buyer's right, title and interest in, to and under such Receivables,
and all security and documents relating thereto.
ARTICLE IV
THE SELLER
SECTION 4.1. REPRESENTATIONS AND WARRANTIES OF SELLER. The Seller makes
the following representations and warranties as to itself on which the Buyer
relies in acquiring the Initial Sold Assets (and on which the Buyer is deemed to
have relied in acquiring any additional Sold Assets), the Lender is deemed to
have relied in making the loans and each Hedge Counterparty is deemed to have
relied in entering into its respective Hedge Agreement(s). The representations
and warranties speak as of the execution and delivery of this Agreement and each
Transfer Date and shall survive the sale of the Receivables and the other Sold
Assets to the Buyer and the pledge thereof to the Lender for the benefit of
itself and each Hedge Counterparty pursuant to the Credit Agreement and the Auto
Fund Security Agreement.
(a) ORGANIZATION AND GOOD STANDING. The Seller is duly organized
and validly existing as a corporation in good standing, and is a "registered
organization" (within the meaning of the UCC) organized under the laws of the
State of Delaware, with the corporate power and authority to own its properties
and to conduct its business as such properties are currently owned and such
business is presently conducted, and had at all relevant times, and has, the
corporate power, authority and legal right to acquire, own and sell the
Receivables and the other Sold Assets.
(b) DUE QUALIFICATION. The Seller is duly qualified to do business
as a foreign corporation in good standing, and has obtained all necessary
licenses, permits, franchises, government authorizations and approvals, in all
jurisdictions in which the ownership or lease of property, the enforcement of
the Receivables or its rights in the Financed Vehicles and the other Sold Assets
or the conduct of its business shall require such qualifications (except where
the failure to be so qualified, in good standing or to have obtained such
licenses, permits, franchises, government authorizations and approvals would not
individually or in the aggregate have a material adverse effect on the
Collateral or the business or condition (financial or otherwise) of the Seller
or (so long as the aggregate Discounted Contract Balance of all the affected
Contracts shall not exceed an aggregate amount of $250,000) impair the
enforceability of any Contracts).
(c) POWER AND AUTHORITY. The Seller has the power and authority to
execute and deliver this Agreement and to carry out its terms; the Seller has
full power and authority to sell and assign the property to be sold and assigned
to and deposited with the Buyer and has duly authorized such sale and assignment
to the Buyer by all necessary corporate action; and the execution, delivery and
performance of this Agreement have been duly authorized by the Seller by all
necessary corporate action.
(d) BINDING OBLIGATION. Each of this Agreement and the Seller
Assignment constitutes a legal, valid and binding obligation of the Seller
enforceable in accordance with their terms except as enforcement of such terms
may be limited by bankruptcy, insolvency, moratorium or other similar laws
affecting the rights of creditors generally and by equitable principles
(regardless of whether such enforceability is in a proceeding in equity or at
law).
(e) NO VIOLATION. The consummation of the transactions contemplated
by this
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Agreement and the fulfillment of the terms hereof do not:
(i) conflict with, result in any breach of any of the terms
and provisions of, or constitute (with or without notice or lapse
of time) a default under, the certificate of incorporation or
by-laws of the Seller, or any indenture, agreement or other
instrument to which the Seller is a party or by which it or any of
its properties are bound; nor
(ii) result in the creation or imposition of any Encumbrance
upon any of its properties pursuant to the terms of any such
indenture, agreement or other instrument (other than the Credit
Documents to which it is a party); PROVIDED, HOWEVER, that the
Seller shall not be in violation of this Section 4.1(e)(ii), on any
date of calculation, if Encumbrances not exceeding an aggregate
amount of $250,000 have been created or imposed with respect to its
properties and not then discharged; nor
(iii) violate any court order, law or, to the best of the
Seller's knowledge, any order, rule or regulation applicable to the
Seller of any court or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Seller or its properties.
(f) NO PROCEEDINGS. There are no proceedings or investigations
pending or, to the Seller's best knowledge, threatened, against the Seller
before any court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties: (i)
asserting the invalidity of this Agreement, the Credit Agreement or any of the
other Credit Documents or the Note, (ii) seeking to prevent the issuance of the
Note or the consummation of any of the transactions contemplated by this
Agreement, the Credit Agreement or any of the other Credit Documents, (iii)
seeking any determination or ruling that would reasonably be expected to
materially and adversely affect the performance by the Seller of its obligations
under, or the validity or enforceability of, this Agreement, the Credit
Agreement, any of the other Credit Documents or the Note or (iv) that would
adversely affect the income tax treatment of the Note.
(g) COMPLIANCE WITH LAW. The Seller:
(i) is not in violation of (A) any laws, ordinances,
governmental rules or regulations, or (B) court orders to which it
is subject;
(ii) has not failed to obtain any licenses, permits,
franchises or other governmental authorizations necessary to the
ownership of its property or to the conduct of its business
including, without limitation, with respect to transactions
contemplated by this Agreement and the other Credit Documents to
which it is a party; and
(iii) is not in violation in any respect of any term of any
agreement, or other instrument to which it is a party or by which
it may be bound;
which violation or failure to obtain (as referenced in clause (i), (ii)
or (iii) above) could reasonably be expected to, individually or in the
aggregate, materially and adversely affect: (A) the business or
financial condition of the Seller individually, or the Seller and its
subsidiaries (if any) taken as a whole, (B) the ability of the Seller
to perform any of its obligations hereunder or under any other Credit
Document to which it is a party, (C) any Contract or the enforceability
thereof or the interest of the Buyer or the Lender therein or in any
other Sold Asset such that the aggregate Discounted Contract Balance of
all the affected Contracts plus the aggregate face value of all the
other affected Sold Assets would exceed an aggregate amount of
$250,000, or (D) the enforceability of this Agreement or any other
Credit Document to which it is a party;
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(h) FINANCIAL STATEMENTS. The Current Financials were prepared in
accordance with GAAP and present fairly the financial condition and the result
of operations of Seller as of, and for the portion of the fiscal year ending on,
the date or dates thereof. All material liabilities (direct or indirect, fixed
or contingent) of Seller as of the date or dates of the Current Financials are
reflected therein or in the notes thereto. Between the date or dates of the
Current Financials and the date hereof, there has been no material adverse
change in the financial condition of Seller, nor has Seller incurred any
material liability (direct or indirect, fixed or contingent).
Seller does not have any material liabilities or obligations other
than those disclosed in the financial statements referred to in the preceding
paragraph or for which adequate reserves are reflected in such financial
statements;
(i) DEFAULTS. The Seller is not in default with respect to any Debt
or any other contractual obligation that could reasonably be expected to,
individually or in the aggregate, materially and adversely affect: (A) the
business or financial condition of the Seller individually, or the Seller and
its subsidiaries (if any) taken as a whole, (B) the ability of the Seller to
perform any of its obligations hereunder or under any other Credit Document to
which it is a party, (C) any Contract or the enforceability thereof or the
interest of the Buyer or the Lender therein or in any other Sold Asset such that
the aggregate Discounted Contract Balance of all the affected Contracts plus the
aggregate face value of all the other affected Sold Assets would exceed an
aggregate amount of $250,000, or (D) the enforceability of this Agreement or any
other Credit Document to which it is a party;
(j) INSOLVENCY; FRAUDULENT CONVEYANCE. The Seller is paying its
debts as they become due and is not "insolvent" within the meaning of any
applicable Insolvency Law in that:
(i) both immediately before and after giving effect to each
assignment, transfer and contribution of the Sold Assets, the
present value of the Seller's assets will be in excess of the
amount that will be required to pay the Seller's probable
liabilities as they then exist and as they become absolute and
matured; and
(ii) both immediately before and after giving effect to each
assignment, transfer and contribution of the Sold Assets, the sum
of the Seller's assets will be greater than the sum of the Seller's
debts, valuing the Seller's assets at a fair market value.
SECTION 4.2. COVENANTS OF SELLER. The Seller hereby covenants to the
Buyer, the ▇▇▇▇▇▇▇ Counterparty and the Lender that:
(a) Seller shall furnish to Lender and/or each Hedge Counterparty
such information as reasonably requested by Lender and/or such Hedge
Counterparty. Additionally, Seller shall cause the following to be furnished to
Lender:
(i) As soon as available, but no later than one hundred five
(105) days after the last day of each fiscal year of Seller,
unqualified audited Financial Statements showing the financial
condition and result of operations of Seller as of, and for the
year ended on, such last day, accompanied by (i) the opinion of a
firm of independent certified public accountants acceptable to
Lender, based on an audit using GAAP, that such Financial
Statements were prepared in accordance with GAAP and present fairly
the financial condition and result of operations of Seller, and
(ii) a Financial Report Certificate with respect to such Financial
Statements.
(ii) As soon as available, but no later than thirty (30) days
after the last day of each calendar month (i) unaudited Financial
Statements (balance sheet, income
8
statement and cash flow statement only) showing the financial
condition and results of operations of Seller as of, and for the
period from the beginning of the current fiscal year, to such last
day, for the same time period (ii) a Financial Report Certificate
with respect to such Financial Statements.
(iii) As soon as available, but no later than five (5)
Business Days after the last day of each calendar month, a summary
of Contracts originated.
(iv) Notice, promptly after Seller knows or has good faith
reason to believe, of (i) the existence and status of any
litigation with respect to Seller which could have a Material
Adverse Effect, (ii) any change in any material fact or
circumstance represented or warranted in any Credit Document or
Loan Document, and/or (iii) a Pending Event of Default or Event of
Default, specifying the nature thereof and what action Seller has
taken, is taking, or proposes to take with respect thereto.
(v) Promptly, but within ten (10) Business Days upon request
therefor by Lender and/or a Hedge Counterparty, such information
(not otherwise required to be furnished under the Credit Documents)
respecting the business affairs, assets and liabilities of Seller,
Buyer or any Person guaranteeing or providing Collateral to secure
all or any part of the Obligations and such opinions,
certifications and documents, in addition to those mentioned in
this Agreement, as Lender and/or such Hedge Counterparty may
reasonably request.
(vi) As soon as available after the last day of each calendar
month, (A) a loan aging summary with respect to the Contracts, in
form and substance acceptable to the Lender and (B) a Monthly
Servicer Report substantially in the form attached to the Credit
Agreement as Schedule F.
(b) If any Obligor under a Contract ever substitutes, adds to or
exchanges any Financed Vehicle or other collateral subject to such Contract,
Seller shall promptly deliver, or cause to be delivered, any new certificate of
title, chattel paper and/or any other documents or instruments related to such
substitution, addition or exchange to the Custodian and shall take all
additional steps as shall be required to preserve the Lender's first priority
security interest in such Collateral.
(c) Seller shall pay or reimburse, on a timely basis, the Lender
for all out-of-pocket fees, costs and expenses incurred by Lender, any Hedge
Counterparty or their respective third parties selected by them in connection
with the execution of the transactions contemplated by the Credit Documents,
including, without limitation, a third party to perform agreed upon procedures
reviews, whether or not the transactions contemplated by the Credit Documents
are consummated; PROVIDED that the Seller's reimbursement obligation with
respect to the Lender's attorney's fees shall be limited as set forth to Section
12.7.1 of the Credit Agreement.
(d) Lender shall deliver, or cause to be delivered, to the
Custodian (to be stored in the related Receivable File) the original Certificate
of Title for each Financed Vehicle comprising the Sold Assets not later than 240
days after the related Transfer Date thereof.
(e) Seller shall cause all Sold Assets sold to the Buyer on any one
Transfer Date to be earmarked by the Servicer and tracked separately as a
tranche (each, a "Tranche"); and Seller shall cause each Monthly Servicer Report
to set forth the agreed upon information relating to each Tranche independent of
any other Tranche.
(f) As of the related Transfer Date, no Contract shall be the
subject of an uncured
9
reversal of funds transfer from its related Dealer or Eligible Non-Franchise
Dealer to the Seller pursuant to a Dealer Agreement.
(g) The Seller shall deliver the related Receivable File for each
Contract included in the Sold Assets to the Custodian, and shall cause the
Custodian to deliver to the Lender an Acknowledgement of Custodian evidencing
receipt by the Custodian of all such Receivable Files, in each case, on or
before the related Transfer Date.
(h) The Seller shall sell at least $25,000,000 of Eligible
Contracts to the Borrower in every Monthly Period.
SECTION 4.3. CORPORATE EXISTENCE.
(a) During the term of this Agreement, the Seller will keep in full
force and effect its existence, rights and franchises as a corporation under the
laws of the jurisdiction of its incorporation and will obtain and preserve its
qualification to do business in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and enforceability of this
Agreement, the Credit Documents and each other instrument or agreement necessary
or appropriate to the proper administration of this Agreement and the
transactions contemplated hereby.
(b) During the term of this Agreement, the Seller, individually and
in its capacity as Originator, shall observe the applicable legal requirements
for the recognition of the Seller as a legal entity separate and apart from the
Buyer, including as follows:
(1) the Seller shall maintain corporate records and books of
account separate from those of the Buyer;
(2) except as otherwise provided in this Agreement and similar
arrangements relating to securitizations, the Seller shall not
commingle its assets and funds with those of the Buyer;
(3) the Seller shall hold such appropriate meetings or obtain
such appropriate consents of its Board of Directors as are
necessary to authorize all the Seller's corporate actions required
by law to be authorized by the Board of Directors, shall keep
minutes of such meetings and of meetings of its stockholder(s) and
observe all other customary corporate formalities;
(4) the Seller shall at all times hold itself out to the
public under the Seller's own name as a legal entity separate and
distinct from the Buyer; and
(5) all transactions and dealings between the Seller and the
Buyer will be conducted on an arm's-length basis.
SECTION 4.4. LIABILITY OF SELLER; INDEMNITIES. The Seller shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Seller under this Agreement.
The Seller shall indemnify, defend and hold harmless, on an after tax
basis, the Buyer, the Lender and their respective successors and assigns (and
any officers, directors, employees and agents of the foregoing) from and against
(a) any taxes that may at anytime be asserted against any of them with respect
to the sale of the Receivables and the other property transferred hereunder to
the Buyer or the issuance and original sale of the Note, including any sales,
gross receipts, general corporation, tangible personal property, privilege or
license taxes (but, in the case of the Buyer, not including any taxes
10
asserted with respect to ownership of the Receivables or Federal or other income
taxes arising out of the transactions contemplated by this Agreement) and costs
and expenses in defending against the same and (b) any loss, costs, expenses,
damages, claims and liabilities and for all other amounts payable, including
reasonable attorney's fees and disbursements awarded against or incurred by any
of them by reason of: (i) the Seller's willful misfeasance, bad faith or
negligence in the performance of its duties under this Agreement or any other
Credit Document or any Contract, or by reason of reckless disregard of its
obligations and duties under this Agreement or any other Credit Document or any
Contract, and (ii) any Insolvency Event that occurs with respect to the Seller.
Indemnification under this Section shall survive the termination of
this Agreement and the Credit Agreement and shall include reasonable fees and
expenses of counsel (including allocated costs of internal counsel) and expenses
of litigation. If the Seller shall have made any indemnity payments pursuant to
this Section and the Person to or on behalf of whom such payments are made
thereafter shall collect any of such amounts from others, such Person shall
promptly repay such amounts to the Seller, without interest.
SECTION 4.5. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, SELLER. Any Person: (a) into which the Seller may be merged or
consolidated, (b) that may result from any merger or consolidation to which the
Seller shall be a party or (c) that may succeed to the properties and assets of
the Seller substantially as a whole, shall execute an agreement of assumption to
perform every obligation of the Seller under this Agreement and, whether or not
such assumption agreement is executed, shall be the successor to the Seller
hereunder without the execution or filing of any document or any further act by
any of the parties to this Agreement; PROVIDED, HOWEVER, that: (i) immediately
after giving effect to such transaction, no representation or warranty made
pursuant to SECTION 3.1 shall have been breached, (ii) the Seller shall have
delivered to the Buyer, each Hedge Counterparty and the Lender an Officers'
Certificate and an Opinion of Counsel each stating that such consolidation,
merger or succession and such agreement of assumption comply with this SECTION
4.5 and that all conditions precedent, if any, provided for in this Agreement
relating to such transaction have been complied with, that all financing
statements and continuation statements and amendments thereto shall have been
executed and filed that are necessary, and that no new Certificates of Title are
required to be issued under applicable law to fully preserve and protect the
interest of the Buyer, each Hedge Counterparty and the Lender in the Sold
Assets, and reciting the details of such filings, or stating that no such action
shall be necessary to preserve and protect such interest, and (iii) the Seller
shall have delivered to the Buyer, each Hedge Counterparty and the Lender an
Opinion of Counsel or Opinions of Counsel regarding substantive consolidation of
such Person with the Buyer in the event of a bankruptcy filing by such Person
which is substantially similar to the opinion of counsel provided by Seller on
the Closing Date, and which may be subject to similar assumptions and
qualifications as that opinion.
SECTION 4.6. LIMITATION ON LIABILITY OF SELLER AND OTHERS. The Seller
and any director, officer, employee or agent of the Seller may rely in good
faith on the advice of counsel or on any document of any kind PRIMA FACIE
properly executed and submitted by any Person respecting any matters arising
hereunder. The Seller shall not be under any obligation to appear in, prosecute
or defend any legal action that shall not be incidental to its obligations under
this Agreement, and that in its opinion may involve it in any expense or
liability.
ARTICLE V
[RESERVED]
11
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1. AMENDMENT. This Agreement may be amended from time to time
by a written amendment duly executed and delivered by the Seller and the Buyer,
with the prior written consent of the Lender.
SECTION 6.2. PROTECTION OF COLLATERAL.
(a) The Seller shall execute and file such financing statements,
and cause to be executed and filed such continuation statements, all in such
manner and in such places as may be required by applicable law fully to
preserve, maintain and protect the right, title and interest of the Buyer and
the interests of the Lender in the Receivables, the other Sold Assets and in the
proceeds thereof. The Seller shall deliver (or cause to be delivered) to the
Lender file-stamped copies of, or filing receipts for, any document filed as
provided above as soon as available following such filing. The Buyer and the
Lender shall cooperate fully with the Seller in connection with the obligations
set forth above and will execute any and all documents reasonably required to
fulfill the intent of this paragraph.
(b) The Seller shall not change its name, identity, location of
organization, status as a "registered organization" or corporate structure in
any manner that makes any financing statement or continuation statement filed in
accordance with PARAGRAPH (A) seriously misleading within the applicable
provisions of the UCC, unless (i) it shall have given the Lender at least thirty
(30) days' prior written notice thereof and (ii) shall have promptly filed
appropriate amendments to all previously filed financing statements or
continuation statements as may be required to preserve and protect the Buyer's
and the Lender's security interest in the Sold Assets. The Seller shall pay all
filing fees or taxes payable in respect of any UCC financing or continuation
statements required to be filed pursuant to this Section 6.2(b).
(c) If at any time the Seller shall propose to sell, grant a
security interest in, or otherwise transfer any interest in motor vehicles or
the related receivables or contracts to any prospective purchaser, lender or
other transferee, the Seller shall give to such prospective purchaser, lender or
other transferee computer tapes, records or printouts (including any restored
from backup archives) that, if they shall refer in any manner whatsoever to any
Receivable or other Sold Assets, shall indicate clearly that such Receivable and
the other Sold Assets has been sold and is owned by the Buyer and has been
pledged to the Lender.
(d) The Seller shall permit the Lender, each Hedge Counterparty and
their respective agents at any time upon two (2) Business Days prior written
notice (PROVIDED that if an Excess Spread Deficiency, a Swap Spread Deficiency,
a Pending Event of Default or an Event of Default shall have occurred and then
be continuing, no such notice shall be required) during normal business hours to
inspect, audit and make copies of and abstracts from the Seller's records
regarding any Receivable and the other Sold Assets. The Seller shall only bear
the expenses incident to the exercise by the Lender, any Hedge Counterparty or
their respective agents of their rights under this Section once per calendar
year for each such entity (unless the Lender and Hedge Counterparty are
Affiliates) unless an Excess Spread Deficiency, a Swap Spread Deficiency, a
Pending Event of Default or an Event of Default shall have occurred and then be
continuing in which case all such expenses for any number of inspections, audits
or copies shall be borne by the Seller.
(e) Upon request, the Seller shall furnish to the Lender and/or any
requesting Hedge Counterparty, within five (5) Business Days, a list of all
Receivables (by contract number and name of Obligor) and the other Sold Assets
then held as assets of the Buyer, together with a reconciliation of such
12
list to the Schedules of Receivables attached to the Seller Assignments
furnished before such request.
SECTION 6.3. NOTICES. All notices, requests and other communications to
be given hereunder shall be in writing and shall be given to such party at its
address or fax number set forth below or such other address or fax number as
such party may hereafter specify by notice to Lender and Buyer. Each such
notice, request or other communication shall be effective (i) if given by fax
during the business hours of the party receiving notice, when transmitted to the
fax number specified in this Section and, on the day of transmittal thereof, a
confirmation of receipt (which may be telephonic) is given by the recipient and
in any event no later than the next business day, (ii) if given by mail, on the
third day after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iii) if given by any other means
(including, without limitation, by air courier), when delivered at the address
specified in this Section; PROVIDED that notices given under this subsection
(iii) shall not be effective until received by the respective addressee. All
notices shall also be given, simultaneously and in like manner, to such party's
legal counsel at its address or fax number set forth below or such other address
or fax number as such party may hereafter specify by notice to the other
parties.
AS TO BUYER: WITH A COPY TO:
E-LOAN Auto Fund One, LLC E-LOAN, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telefax: ▇▇▇-▇▇▇-▇▇▇▇ Telefax: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇, Treasurer Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
AS TO SELLER: WITH A COPY TO:
E-LOAN, Inc. E-LOAN, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telefax: ▇▇▇-▇▇▇-▇▇▇▇ Telefax: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇, Treasurer Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
AS TO LENDER: WITH A COPY TO:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇ Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
AS TO ▇▇▇▇▇▇▇ COUNTERPARTY: WITH A COPY TO:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇ Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
13
AS TO SERVICER: WITH A COPY TO:
Systems & Services Technologies, Inc. Systems & Services Technologies, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇ Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇, General Counsel
SECTION 6.4. ASSIGNMENT. Notwithstanding anything to the contrary
contained herein, except as provided in the Credit Agreement or SECTION 4.5
hereof, this Agreement may not be assigned by the Seller or the Buyer.
SECTION 6.5. LIMITATIONS ON RIGHTS OF OTHERS. The provisions of this
Agreement are solely for the benefit of the Seller, the Buyer, each Hedge
Counterparty and the Lender and nothing in this Agreement, whether express or
implied, shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Collateral or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
SECTION 6.6. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 6.7. SEPARATE COUNTERPARTS. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 6.8. HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 6.9. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS; PROVIDED, THAT SECTIONS 5-1401 AND 5-1402 OF THE NEW
YORK GENERAL OBLIGATIONS LAW SHALL APPLY, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 6.10. ASSIGNMENT TO LENDER. The Seller hereby acknowledges and
consents to any mortgage, pledge, assignment and grant of a security interest by
the Buyer to the Lender pursuant to the Credit Agreement of all right, title and
interest of the Buyer in, to and under the Receivables, the other Sold Assets
and the assignment of any or all of the Buyer's rights and obligations hereunder
to the Lender.
SECTION 6.11. NO PETITION.
(a) By entering into this Agreement, the Seller hereby covenants
and agrees that it will not at any time institute against the Buyer, or solicit
or join in or cooperate with or encourage any institution against the Buyer of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or State
bankruptcy or similar law in connection with any obligations relating to the
Note, this Agreement or any of the Credit Documents.
14
The foregoing shall not (i) limit the rights of the Seller to file any claim in
or otherwise take any action with respect to any insolvency proceeding that was
instituted against the Buyer by any Person other than the Seller, or (ii)
require the Seller to resist any legal process.
(b) By entering into this Agreement, the Buyer hereby covenants and
agrees that it will not at any time institute against the Seller, or solicit or
join in or cooperate with or encourage any institution against the Seller of,
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States Federal or State
bankruptcy or similar law in connection with any obligations relating to the
Note, this Agreement or any of the Credit Documents. The foregoing shall not (i)
limit the rights of the Buyer to file any claim in or otherwise take any action
with respect to any insolvency proceeding that was instituted against the Seller
by any Person other than the Buyer, or (ii) require the Buyer to resist any
legal process.
SECTION 6.12. SUBMISSION TO JURISDICTION; WAIVERS.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS ITSELF AND ITS PROPERTY TO THE NON-EXCLUSIVE GENERAL
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE
UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK OR ANY OTHER
FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK AND
APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY ACTION OR PROCEEDING RELATING TO THE
TRANSACTIONS CONTEMPLATED BY OR ARISING FROM, OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT IN RESPECT OF, THE CREDIT DOCUMENTS MAY BE BROUGHT IN SUCH
COURTS;
(c) WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM
THE SAME;
(d) AGREES THAT ANY SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED
MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS
ADDRESS SET FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH EACH OF THE OTHER
PARTIES HERETO SHALL HAVE BEEN NOTIFIED IN ACCORDANCE WITH THE TERMS AND
CONDITIONS OF THIS AGREEMENT; PROVIDED THAT FOR THE AVOIDANCE OF DOUBT, EACH
PARTY AGREES THAT ANY SERVICE OF PROCESS ON THE BUYER SHALL BE SENT TO THE
ADDRESS SET FORTH IN SECTION 4 OF ITS LIMITED LIABILITY COMPANY AGREEMENT; AND
(e) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO ▇▇▇ IN ANY OTHER JURISDICTION.
[Signature page follows.]
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
E-LOAN AUTO FUNDING ONE, LLC
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
E-LOAN, INC.
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------