Exhibit 10.3
FIRST AMENDMENT TO SERVICING AND CUSTODIAN AGREEMENT
This FIRST AMENDMENT TO SERVICING AND CUSTODIAN AGREEMENT is made and
entered into as of July 14, 2003 (as it may be modified, supplemented or amended
from time to time in accordance with its terms, this "AMENDMENT") by and among
E-LOAN AUTO FUND ONE, LLC, a Delaware limited liability company (the "COMPANY"),
E-LOAN, INC., a Delaware corporation, as administrator for the Company (in such
capacity, the "ADMINISTRATOR") and in its individual capacity (in such capacity,
the "ORIGINATOR") for purposes of Article X of the Existing Servicing Agreement
(as defined below), SYSTEMS & SERVICES TECHNOLOGIES, INC., a corporation
organized under the laws of the State of Delaware, its permitted successors and
assigns (hereinafter referred to as "SST"), as servicer and custodian (in such
capacities, the "SERVICER" and the "CUSTODIAN", respectively) to the Existing
Servicing Agreement (as defined below).
BACKGROUND
WHEREAS, the Company, the Originator, the Administrator and the Servicer
entered into a Servicing and Custodian Agreement dated as of June 1, 2002 (as
amended, supplemented and otherwise modified, the "EXISTING SERVICING
AGREEMENT"), pursuant to which the Servicer and the Custodian agreed to provide,
INTER ALIA, certain portfolio management services and custodial services on the
terms and conditions set forth therein;
WHEREAS, the parties to the Existing Servicing Agreement desire to amend
the Existing Servicing Agreement to (i) amend a cross reference in clause I. 6.
of Article XV of the Existing Servicing Agreement and (ii) extend the term of
the Existing Servicing Agreement for an additional year;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS. Capitalized terms used in this Amendment and
not otherwise defined herein shall have the meanings assigned to them in the
Existing Servicing Agreement.
SECTION 2. AMENDMENT. Effective upon the execution and delivery of this
Amendment:
(a) Clause A. of Article XI of the Exiting Servicing Agreement is
hereby amended and restated in its entirety as follows
The term of this Agreement shall be for three (3) years from the date first
written above and will automatically renew for additional successive one (1)
year terms unless the Company or the Servicer shall upon ninety (90) days
written notice elect not to renew the Agreement.
(b) Clause I. 6. of Article XV of the Exiting Servicing Agreement is
hereby amended and restated in its entirety as follows:
Without limiting paragraph H. of Article XV, upon written request of the Secured
Party, the Custodian shall take such steps as reasonably requested by the
Secured Party to protect or maintain any security interest the Secured Party has
in any Receivable and the other Serviced Assets, provided that, as long as the
Servicer and the Custodian are the same person, any extraordinary fees and
expenses incurred by the Custodian and, upon the request of the Company or the
Secured Party to retitle or otherwise act to protect or maintain any security
interest in all or substantially all of the Receivables and the other Serviced
Assets, a reasonable fee to compensate the Custodian for such services will be
paid from Collections pursuant to Section 8.1.1(f) or 8.1.2(e), as the case may
be, of the Credit Agreement; provided that if a Servicer Event of Default shall
have occurred and been continuing, such retitling or other actions shall be at
the expense of the Custodian;
SECTION 3. REPRESENTATIONS, WARRANTIES & COVENANTS. (a) Each party hereto
hereby confirms that each of its representations, warranties and covenants set
forth in the Existing Servicing Agreement, as amended by this Amendment, are
true and correct as of the date first written above with the same effect as
though each had been made as of such date, except to the extent that any of such
representations, warranties or covenants expressly relate to earlier dates. Each
party hereto confirms that as of the date hereof its obligations under the
Existing Servicing Agreement, as amended by this Amendment, and the other Credit
Documents are in full force and effect and are hereby ratified.
(b) Each of the Servicer and the Custodian represents and warrants
that (i) no Servicer Event of Default has occurred or, event which, but for the
requirement for the giving of notice, lapse of time, or both, or but for the
satisfaction of any other condition subsequent to such event, would constitute a
Servicer Event of Default has occurred, (ii) it has the power and is duly
authorized to execute and deliver this Amendment, (iii) this Amendment has been
duly authorized, executed and delivered and constitutes the legal, valid and
binding obligation of it enforceable against it in accordance with its terms,
(iv) it is and will continue to be duly authorized to perform its obligations
under this Amendment and the other Credit Documents, (v) the execution, delivery
and performance by it of this Amendment does not and will not require any
consent or approval, which has not already been obtained, from any Governmental
Authority, equity owner or any other Person, and (vi) the execution, delivery
and performance by it of this Amendment shall not result in the breach of, or
constitute a default under, any material agreement or instrument to which it is
a party.
(c) Each of the Servicer and the Custodian hereby acknowledge and
agree to the terms and conditions of the Third Amendment to the Credit
Agreement, dated as of July 14, 2003 (the "Third Amendment"), by and among the
Company, E-Loan, Inc. and the Lender to the Credit Agreement.
SECTION 4. CONDITIONS PRECEDENT. As conditions precedent to the
effectiveness of this Amendment (1) each of the parties hereto shall have
executed this Amendment and (2) the Third Amendment shall have been executed and
delivered.
SECTION 5. SEVERABILITY. Any provision of this Amendment which 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 of
this Amendment or affecting the validity or enforceability of such provision in
any other jurisdiction.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAW PRINCIPLES; 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 THE
LAWS OF THE STATE OF NEW YORK.
SECTION 7. MISCELLANEOUS.
(a) The parties hereto hereby agree that the amendments set forth in
this Amendment shall be incorporated into the Existing Servicing Agreement. This
Amendment constitutes the entire agreement concerning the subject matter hereof
and supercedes any and all written and/or oral prior agreements, negotiations,
correspondence, understandings and communications.
(b) Any reference to the Existing Servicing Agreement from and after
the date hereof shall be deemed to refer to the Existing Servicing Agreement as
amended hereby, unless otherwise expressly stated.
(c) This Amendment shall be binding upon and shall be enforceable by
parties hereto and their respective successors and permitted assigns.
(d) This Amendment may be executed by the parties hereto in several
counterparts, each of which shall be deemed to be an original but all of which
shall constitute together but one and the same agreement.
(e) The headings appearing in this Amendment are included solely for
convenience of reference and are not intended to affect the interpretation of
any other provision of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
SERVICER AND CUSTODIAN:
SYSTEMS & SERVICES TECHNOLOGIES, INC.
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
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Its: EVP/Secretary
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COMPANY:
E-LOAN AUTO FUND ONE, LLC
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Its: Treasurer
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ORIGINATOR AND ADMINISTRATOR:
E-LOAN, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Its: President
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ACKNOWLEDGED AND AGREED:
XXXXXXX XXXXX BANK USA
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Director
