Exhibit 10.25
SECURITY AGREEMENT
THIS SECURITY AGREEMENT is made as of the 14th day of June, 2002 (as
amended, supplemented or otherwise modified from time to time in accordance with
its terms, this "Agreement"), between E-LOAN, INC., a corporation organized
pursuant to the laws of the State of Delaware (together with its successors and
assigns, the "Debtor"), and XXXXXXX XXXXX MORTGAGE CAPITAL INC., a corporation
organized pursuant to the laws of the State of Delaware (together with its
successors and assigns, the "Secured Party").
WHEREAS the Debtor has agreed to grant a security interest in and
collateral assignment of its rights in and to the Collateral to the Secured
Party in order to secure the payment and performance of its Obligations to the
Secured Party pursuant to the Loan Agreement, dated as of June 14, 2002 (as
amended, supplemented or otherwise modified from time to time in accordance with
its terms, the "Loan Agreement"), between the Debtor and the Secured Party, and
the other Loan Documents;
AND WHEREAS this is the Security Agreement contemplated in the Loan
Agreement;
NOW, THEREFORE, THIS AGREEMENT WITNESSES that in consideration of the
premises and the covenants and agreements herein contained, and for other good
and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto hereby agree as follows:
I. REFERENCE TO LOAN AGREEMENT. This Agreement is being executed and
delivered in connection with that certain Loan Agreement. The terms, conditions,
and provisions of the Loan Agreement are incorporated herein by reference, the
same as if set forth herein verbatim, which terms, conditions, and provisions
shall continue to be in full force and effect hereunder so long as Secured Party
is obligated to lend under the Loan Agreement and thereafter until the
Obligations are paid and performed in full.
II. INTERPRETATION.
(a) DEFINITIONS. In this Agreement, (i) the terms "general
intangibles", "chattel paper", "accounts" and "proceeds" whenever used
herein have the meanings given to those terms in the UCC, and (ii)
capitalized terms which are used but not otherwise defined herein and
which are defined in the Loan Agreement shall have the respective
meanings attributed to such terms in the Loan Agreement.
(b) SECTIONS AND HEADINGS. The division of this Agreement into
Articles and Sections and the insertion of headings are for convenience
of reference only and will not affect the construction or
interpretation of this Agreement. The terms "this Agreement", "hereof",
"hereunder" and similar expressions refer to this Agreement and not to
any particular Article, Section or other portion hereof and include any
supplement, amendment or other modification hereto. Unless something in
the subject matter or context is inconsistent therewith, reference
herein to Articles and Sections are to Articles and Sections of this
Agreement.
(c) EXTENDED MEANINGS. In this Agreement, words importing the
singular number only include the plural and VICE VERSA, words importing
any gender include all genders and words
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importing persons include individuals, partnerships, associations,
trusts, unincorporated organizations and corporations.
III. SECURITY INTEREST. As security for the payment and performance of
the Revolving Credit Note and all other Obligations of Debtor to Secured Party
and any subsidiary or affiliate of Secured Party, whether now existing or
hereafter arising, Debtor hereby grants, conveys, assigns, transfers and pledges
to Secured Party a first priority, perfected security interest, and collaterally
pledges and assigns to Secured Party, all right, title and interest which the
Debtor now has or may hereafter have, be possessed of, be entitled to, or
acquire, in, to and under the Collateral (such interest, the "Security
Interest"). Such Security Interest is granted, and the pledge and assignment are
made, as security only and shall not subject Secured Party to, or transfer or in
any way modify, any obligation of Debtor with respect to any of the Collateral
or any transaction involving or giving rise thereto.
IV. COLLATERAL. As used herein, the term "Collateral" means all of the
following property, whether now owned or hereafter acquired or arising, of the
Debtor:
(a) All of Debtor's right, title and interest in chattel paper or
other instruments or documents (which shall include any and all
Certificates of Title and other such security instruments) arising from
Contracts for financing the purchase of Vehicles by Obligors evidencing
both a debt and security interest in such Financed Vehicles ("Vehicle
Chattel Paper"), the Receivables due thereunder, and all rights of the
Debtor in and to all Financed Vehicles;
(b) All substitutes and replacements for the Vehicle Chattel Paper;
(c) The Collection Account, the Concentration Account, the
Collection Sweep Investment Account, the Checking Account, the ACH
Account, all accounts relating thereto, and all amounts and other
property therein from time to time;
(d) All cash and non-cash proceeds of the Vehicle Chattel Paper,
including but not limited to all present and future accounts, contract
rights, general intangibles, chattel paper, documents, instruments,
payment intangibles, supporting obligations, and other Rights arising
from or by virtue of, or from the voluntary or involuntary sale, lease,
or other disposition of, or collections with respect to, or insurance
proceeds payable with respect to, or proceeds payable by virtue of
warranty or other claims against manufacturers of, or claims against
any other Person with respect to, all or any part of the Vehicle
Chattel Paper;
(e) All Contract Purchase Agreements with all Contract Purchasers
and the proceeds thereof;
(f) All books and records (including, without limitation, customers
lists, credit files, tapes, ledger cards, computer printouts and other
computer materials and records) evidencing or containing information
regarding or otherwise pertaining to any of the foregoing; and
(g) All income, payments and proceeds of any of the foregoing
property in any form derived, directly or indirectly, from any dealing
with any such property or that indemnifies or compensates for the loss
of or damage to such property.
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V. ATTACHMENT OF SECURITY INTEREST. Debtor acknowledges that value has
been given and agrees that the Security Interest granted hereby will attach when
the Debtor signs this Agreement. Debtor represents and warrants that it has
rights in, to and under the Collateral and shall at all times have rights in, to
and under the Collateral.
VI. FORM OF DOCUMENTS. Debtor acknowledges and agrees that all
documents relating to the Secured Party's Security Interest in the Collateral
shall be in form and substance satisfactory to the Secured Party.
VII. RELEASE. Any item of Collateral released pursuant to the terms of
this Agreement and the Loan Agreement shall be evidenced by a UCC-3 amendment
statement, if necessary or desirable, and a payoff and release letter executed
and delivered by the Secured Party, in form and substance satisfactory to the
parties hereto; PROVIDED that any such release of Collateral arising from the
Seller's sale of Contracts to (A) E-LOAN Auto Fund One, LLC pursuant to the
Contribution and Sale Agreement or (B) any Contract Purchaser pursuant to a
Contract Purchase Agreement, shall, in each case, be deemed to be automatically
made upon repayment to the Lender of the entire outstanding amount of the
Revolving Credit Loans made in respect thereof, together with all accrued
interest thereon and any other amounts payable under the Loan Agreement in
respect thereof, and without any action being taken by the Secured Party.
VIII. REPRESENTATIONS AND WARRANTIES. In addition to the
representations and warranties of the Debtor as Borrower under the Loan
Agreement, Debtor hereby represents and warrants to Secured Party that:
(a) Debtor has the power and authority to execute and deliver this
Agreement and the other Loan Documents to which it is a party and to
carry out their terms and to grant the Security Interest in the
Collateral to the Secured Party; and the execution, delivery and
performance of this Agreement and the other Loan Documents to which the
Debtor is a party have been duly authorized by the Debtor by all
necessary action.
(b) No security interest (other than the Security Interest granted
to the Secured Party hereunder) and no Liens, except Permitted Liens,
have been or will be granted or permitted by the Debtor with respect to
any or all of the Collateral that has not been, as of the related
Borrowing Date, released and such release is the legal, valid and
binding release of the party releasing such security interest or Lien,
as the case may be. In addition, none (other than those Liens in favor
of Secured Party) of the Permitted Liens, including, without
limitation, the Liens of GMAC Bank or Greenwich Capital Financial
Products, Inc., as identified in Section IV hereof, are Liens against
any Collateral.
(c) Debtor is a "registered organization" within the meaning of
Article 9 of the UCC, duly incorporated and validly existing under the
laws of the State of Delaware, with its chief executive office located
at the address as shown in Schedule I. The present and foreseeable
location of Debtor's books and records concerning the Collateral is its
chief executive office, and all such books, records and Collateral are
in Debtor's possession. All of Debtor's assets are currently located at
the locations described on Schedule I.
(d) All Collateral that is Contracts, accounts, chattel paper,
instruments, proceeds, payment intangibles, or general intangibles is
free from any claim for credit, deduction, or
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allowance of an Obligor or any third party and free from any defense,
dispute, setoff, or counterclaim, and there is no extension or
indulgence with respect thereto.
(e) At the option of Secured Party, any amounts arising from
Collateral that is Contracts, accounts, chattel paper, instruments,
proceeds, payment intangibles, or general intangibles that are not paid
in full, whether on any installment date or at maturity, may be
deducted from any payment then or thereafter due from Secured Party to
Debtor, and Secured Party may retain such Contract, account, chattel
paper, instrument, proceeds, payment intangibles, or general
intangibles as Collateral for any outstanding portion of the
Obligations.
(f) Schedule II sets forth a correct and complete listing of all
real property owned by Debtor and a legal description with respect
thereto, all leases and subleases of real or personal property by
Debtor as lessee or sublessee, and all leases and subleases or real or
personal property by Debtor as lessor, lessee, sublessor or sublessee.
All Collateral that is an assigned contract or assigned lease is in
full force and effect; there have been no renewals or extensions of, or
amendments, modifications, or supplements to, any thereof about which
Secured Party has not been advised in writing; Debtor is in possession
of the property covered by each such assigned lease; and, no default or
potential default has occurred and is continuing under any such
assigned contract or assigned lease.
The delivery at any time by Debtor to Secured Party of Collateral or of
additional specific descriptions of certain Collateral shall constitute a
representation and warranty by Debtor to Secured Party hereunder that the
representations and warranties of this Section VIII are true and correct with
respect to each item of such Collateral.
IX. CERTAIN COVENANTS. Until all Obligations are paid and performed in
full, Debtor covenants and agrees with Secured Party that Debtor shall:
(a) Maintain at Debtor's chief executive office a current record of
where all Collateral is located, permit representatives of Secured
Party to inspect and make abstracts from such records, and furnish to
Secured Party, at such intervals as Secured Party may reasonably
request, such documents, lists, descriptions, certificates, and other
information as may be necessary or proper to keep Secured Party
informed with respect to the identity, location, status, condition, and
value of the Collateral.
(b) Fully perform all of Debtor's duties under and in connection
with each of the Loan Documents and each other document to which the
Collateral, or any part thereof, relates, so that the amounts thereof
shall be paid to Secured Party without abatement, reduction,
diminution, offset, defense (other than prior payment), counterclaim or
recoupment.
(c) Promptly notify Secured Party of any dispute, claim, action, or
proceeding which might have a Material Adverse Effect on all or any of
the Collateral or the Security Interest and, at the request of Secured
Party, appear in and defend, at Debtor's expense, any such action or
proceeding.
(d) Hold in trust (and not commingle with other assets of Debtor)
for Secured Party all Collateral that is Contracts, chattel paper,
instruments, or documents at any time received by Debtor and promptly
deliver same to Secured Party unless Secured Party at its option (which
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may be evidenced only by a writing signed by Secured Party stating that
Secured Party elects to permit Debtor to so retain) permits Debtor to
retain the same.
(e) Not sell, lease, or otherwise dispose of, or permit the sale,
lease, or disposition of, any Collateral except for sales, leases, and
other dispositions permitted by the terms of the Loan Agreement or any
other Loan Document.
(f) Use, operate, maintain, and store any Collateral that is
equipment and which is in its possession from time to time, with
reasonable care, skill, and caution and keep the same in good repair,
working order, and conditions, and promptly make all necessary repairs
or replacements to that end.
(g) At Debtor's expense and Secured Party's request, before or
after an Event of Default, file or cause to be filed such applications
and take such other actions as Secured Party may reasonably request to
document or otherwise obtain the consent or approval of any
Governmental Authority to Secured Party's Rights hereunder, including,
without limitation, any documents or consents which may be necessary to
sell any or all of the Collateral upon an Event of Default (and,
because Debtor agrees that Secured Party's remedies at Law for failure
of Debtor to comply with this provision would be inadequate and that
such failure would not be adequately compensable in damages, Debtor
agrees that its covenants in this provision may be specifically
enforced).
(h) At its expense, perfect the security interest of the Secured
Party in the Collateral by filing, registration or recordation in all
offices in all jurisdictions where required by applicable law to do so.
The Debtor shall renew such filings, registrations and recordings as
and when required to keep them in full force and effect at all times
and shall provide the Secured Party with an annual opinion of counsel
on the earlier of each anniversary of the Closing Date and each
extension of the Commitment Termination Date by the Lender of its
Commitment under and pursuant to the terms of the Loan Agreement and at
such other times as shall be reasonably required by the Secured Party,
that all such filings, registrations and recordings have been duly made
on a timely basis.
(i) From time to time promptly execute and deliver to Secured Party
all such further assurances, security agreements, pledges, control
agreements, assignments, certificates, supplemental documents and other
instruments of conveyance, transfer, mortgage, pledge or charge, and
financing statements, and do all other acts or things as Secured Party
may reasonably request from time to time in order to more fully create,
evidence, perfect, continue, maintain and preserve the priority of the
Security Interest in the Collateral and to evidence and secure the
payment and performance of the obligations of the Debtor under the Loan
Documents.
(j) Not use any of the Collateral, or permit the same to be used,
for any unlawful purpose or in any manner inconsistent with the
provisions or requirements of any policy of insurance thereon, nor
affix or install any accessories, equipment, or device on the
Collateral or on any component thereof if such addition will impair the
original intended function or use of the Collateral or such component.
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(k) Not modify or substitute, or permit the modification or
substitution of, any contract to which any of the Collateral which is
chattel paper or accounts relates, nor extend or grant indulgences
regarding any chattel paper or account which is Collateral.
(l) Not change its jurisdiction of organization; or cease to be a
"registered organization" within the meaning of the applicable UCC; or
relocate its chief executive office or place where Debtor's books and
records related to accounts and chattel paper are kept, or otherwise
relocate any of the other Collateral to a state other than as indicated
above, unless prior thereto Debtor (i) gives Secured Party thirty (30)
days prior written notice of such proposed change or relocation (such
notice to include, without limitation, the name of the state into which
such relocation is to be made) and (ii) (unless the relocation is to a
jurisdiction in which existing financing statements or other required
filings have previously been made to perfect the Security Interest in
such Collateral) executes and delivers all such additional documents
and performs all additional acts as Secured Party, in its sole
discretion, may request in order to continue or maintain the existence
and priority of the Security Interest in such Collateral, and not
relocate any of the Collateral to any commonwealth, nation, territory,
possession, or country outside the United States of America.
(m) Not change Debtor's name or address to which it is entitled to
receive notices hereunder unless prior thereto Debtor gives Secured
Party thirty (30) days prior written notice of such proposed change and
executes and delivers all such additional documents and performs all
additional acts as Secured Party, in its sole discretion, may request
in order to continue or maintain the existence and priority of the
Security Interest in all of the Collateral.
X. DEFAULT; REMEDIES.
(a) On or after the occurrence of any Event of Default, (i) any or
all of the Obligations will at the option of the Secured Party become
immediately due and payable or be subject to immediate performance, as
the case may be, without presentment, demand, diligence, suit, protest
or notice of dishonor or nonpayment, all of which are hereby expressly
waived by the Debtor; (ii) the obligation, if any, of the Secured Party
to extend further credit to the Debtor will cease; (iii) any or all
security granted hereby will, at the option of the Secured Party,
become immediately enforceable; and (iv) without prejudice and in
addition to any right, power or remedy provided by the Loan Documents,
law or equity, the Secured Party will have the rights, powers and
remedies set out below, all of which rights, powers and remedies will
be enforceable successively, concurrently or both:
1. Secured Party may by appointment in writing appoint a
receiver (each herein referred to as the "Receiver") of the
Collateral (which term when used in this Section X will
include the whole or any part of the Collateral) and may
remove or replace such Receiver from time to time or may
institute proceedings in any court of competent jurisdiction
for the appointment of a Receiver of the Collateral or the
Debtor; and the term "Secured Party" when used in this Section
X will include any Receiver so appointed and the agents,
officers and employees of such Receiver; and the Secured Party
will not in any way be responsible for any misconduct or
negligence of any such Receiver;
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2. Secured Party may take possession of the Collateral and
require Debtor to assemble the Collateral and deliver or make
the Collateral available to Secured Party at such place or
places as may be specified by Secured Party;
3. Secured Party may surrender, or cause Debtor to surrender,
any policies of insurance on all or part of the Collateral and
receive and apply the unearned premiums as a credit on the
Obligations under the Loan Documents;
4. Secured Party may apply to the Obligations any cash held by
Secured Party under this Agreement or may setoff and
compensate and apply any and all deposits, general or special,
time or demand, provisional or final, matured or unmatured,
and any other indebtedness at any time owing by Secured Party
to or for the credit of or the account of the Debtor, against
and on account of the Obligations notwithstanding that any of
them are contingent or unmatured;
5. Secured Party may open Debtor's mail and collect any and
all amounts due such Debtor from account debtors or insurers
and exercise any and all of such Debtor's rights and remedies
with respect to such accounts and policies;
6. The Secured Party may hold, sell, lease or otherwise
dispose of the Collateral (in lots or as an entirety) at
public auction, by private tender, by private sale or
otherwise either for cash or upon credit upon such terms and
conditions as Secured Party may determine and without notice
to Debtor unless required by law in satisfaction of any or all
of the Obligations. Secured Party may purchase at such sale or
sales the Collateral for its own account (with whatever
consequential credit to the Obligations as may be required
herein or by law);
7. Secured Party may enforce any rights of Debtor in respect
of the Collateral by any manner permitted by law;
8. Secured Party may accept the Collateral in satisfaction of
the Obligations upon notice to the Debtor of its intention to
do so in the manner required by law;
9. Secured Party and/or its agents may enter upon all or any
of the premises occupied by the Debtor in order to seize and
remove any Collateral located in or on such premises;
10. If the Debtor has failed to perform any of its covenants
or agreements in any Loan Document, the Secured Party may
bring an action to compel performance or recover damages for
breach thereof, and in any event may, but shall be under no
obligation to, perform any such covenants or agreements in any
reasonable manner without thereby waiving any rights to
enforce such Loan Document. The reasonable expenses (including
any legal costs) paid or incurred by the Secured Party in
respect of the foregoing shall be secured by the Security
Interest granted in the Collateral;
11. Secured Party may charge on its own behalf and pay to
others all reasonable amounts for expenses incurred and for
services rendered in connection with the
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exercise of the rights and remedies of the Secured Party
hereunder, including, without limiting the generality of the
foregoing, reasonable legal, Receiver and accounting fees and
expenses, and in every such case the amounts so paid together
with all costs, charges and expenses incurred in connection
therewith, including interest thereon at such rate as the
Secured Party deems reasonable, will be added to and form part
of the Obligations hereby secured;
12. Secured Party may discharge any claim, lien, mortgage,
charge, security interest, encumbrance or any rights of others
that may exist or be threatened against the Collateral, and in
every such case the amounts so paid together with costs,
charges and expenses incurred in connection therewith will be
added to the Obligations hereby secured; and
13. Secured Party may, as it in its sole discretion may deem
expedient to enforce or realize upon the Security Interest and
in the Collateral and to cause the Debtor to pay its
Obligations in full, take any other or additional steps under
the Loan Documents, at law or in equity, all without any
additional notice, presentment, demand, protest or other
formality, all of which are hereby expressly waived by the
Debtor.
(b) Secured Party may (i) grant extensions of time, (ii) take and
perfect or abstain from taking and perfecting security, (iii) give up
security, (iv) accept compositions or compromises, (v) grant releases
and discharges, and (vi) release any part of the Collateral or
otherwise deal with the Debtor, debtors of the Debtor, sureties and
others and with the Collateral and other security as the Secured Party
sees fit without prejudice to the liability of the Debtor to the
Secured Party or the Secured Party's rights hereunder.
(c) Neither the Secured Party nor any of its directors, officers,
employees, advisors or agents shall be liable or responsible to the
Debtor or any other Person for any failure to seize, collect, realize,
or obtain payment with respect to the Collateral or any part thereof
and none of them will be bound to institute proceedings or to take
other steps for the purpose of seizing, collecting, realizing or
obtaining possession or payment with respect to any Collateral or for
the purpose of preserving any rights of the Secured Party, the Debtor
or any other person, in respect of the Collateral or for any loss or
damage upon the realization or enforcement of the Collateral or any
part thereof.
(d) Secured Party may apply any proceeds of realization of the
Collateral to payment of expenses in connection with the preservation
and realization of the Collateral as above described and the Secured
Party shall apply any balance of such proceeds to payment of the
Obligations in such order as the Secured Party sees fit. If there is
any surplus remaining, the Secured Party may pay it to any person
having a claim thereto in priority to the Debtor of whom the Secured
Party has knowledge and any balance remaining must be paid promptly to
the Debtor. If the disposition of the Collateral fails to satisfy the
Obligations secured by this Agreement and the aforesaid expenses, the
Debtor will be liable to pay any deficiency to the Secured Party
forthwith on demand.
(e) All authorizations and agencies herein contained with respect
to the Collateral are irrevocable and are powers coupled with an
interest.
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(f) No failure on the part of the Secured Party to exercise, and no
delay in exercising, any right, remedy or power under this Agreement
shall operate as a waiver thereof, nor shall any single or partial
exercise by the Secured Party of any right, remedy or power hereunder
preclude any other or future exercise of any right, remedy or power.
Each and every right, remedy and power hereby granted to the Secured
Party or allowed the Secured Party by law or other agreement shall be
cumulative and not exclusive of any other and may be exercised by the
Secured Party from time to time.
(g) The rights and remedies of the Secured Party under this
Agreement and the other Loan Documents are cumulative and are in
addition to and not in substitution for any rights or remedies provided
by law. Any single or partial exercise by the Secured Party of any
right or remedy for a default or breach of any term, covenant,
condition or agreement contained herein or in any of the other Loan
Documents shall not be deemed to be a waiver of or to alter, affect or
prejudice any other right or remedy or other rights or remedies to
which the Secured Party may be lawfully entitled for the same default
or breach. Any waiver by the Secured Party of the strict observance,
performance or compliance with any term, covenant, condition or
agreement contained herein or in any of the other Loan Documents, and
any indulgence granted by the Secured Party, shall be deemed not to be
a waiver of any subsequent default.
XI. NOTICE AND APPLICATION OF PROCEEDS.
(a) NOTIFICATION OF DEBTOR. As required by law, Secured Party shall
notify Debtor of any sale or other disposition of the Collateral;
PROVIDED, HOWEVER, that any disposition of all or any portion of the
Collateral shall be in accordance with this Agreement.
(b) NOTIFICATION OF OBLIGORS. After the occurrence of an Event of
Default, the Secured Party may give notice to any applicable Obligor to
make all further payments relating to the Collateral to the Secured
Party, and any payment or other proceeds of Collateral received by the
Debtor from any such Obligor after any such notice is given by the
Secured Party must be held by the Debtor in trust for the Secured Party
and forthwith paid over to the Secured Party.
(c) APPLICATION OF PROCEEDS. Secured Party shall apply the proceeds
of any sale or other disposition of the Collateral in the following
order: first, to the payment of all its expenses incurred in retaking,
holding and preparing any of the Collateral for sale or other
disposition, in arranging for such sale or other disposition, and in
actually selling or disposing of the same (all of which shall
constitute part of the Obligations); second, toward repayment of
amounts expended by Secured Party under Section XII; third, toward
payment of the balance of the Obligations in such order and manner as
Secured Party, in its discretion, may deem advisable, or as a court of
competent jurisdiction may direct, fourth, to Debtor. If the proceeds
are insufficient to pay the Obligations in full, Debtor shall remain
liable for any deficiency.
XII. OTHER RIGHTS OF SECURED PARTY.
(a) PERFORMANCE. In the event Debtor shall fail to pay when due all
Taxes on any of the Collateral, or to preserve the first priority
perfected security interest of the Secured Party in any of the
Collateral, or otherwise fail to perform any of its obligations under
the Loan Documents with respect to the Collateral, then Secured Party
may, at its option, but without being required to do so, pay such
Taxes, prosecute or defend any suits in relation to the Collateral, or
take all other
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action which Debtor is required, but has failed or refused to take
under the Loan Documents. Any sum which may be reasonably expended or
paid by Secured Party under this subsection (a) (including, without
limitation, court costs and reasonable attorneys' fees) shall bear
interest from the dates of expenditure or payment at the Default Rate
until paid and, together with such interest, shall be payable by Debtor
to Secured Party upon demand and shall be part of the Obligations.
(b) COLLECTION. Upon notice from Secured Party, each Obligor with
respect to any payments on any of the Collateral (including, without
limitation, dividends and other distributions with respect to insurance
proceeds payable by reason or loss or damage to any of the Collateral)
is hereby authorized and directed by Debtor to make payment directly to
Secured Party, regardless of whether Debtor was previously making
collections thereon. Secured Party shall have the right in its own name
or in the name of Debtor to compromise or extend time of payment with
respect to all or any portion of the Collateral for such amounts and
upon such terms as Secured Party may determine; to demand, collect,
receive, receipt for, xxx for, compound, and give acquittances for any
and all amounts due or to become due with respect to Collateral; to
take control of cash and other proceeds of any Collateral; to endorse
the name of Debtor on any notes, acceptances, checks, drafts, money
orders or other evidences of payment on Collateral that may come into
the possession of Secured Party; to sign the name of Debtor on any
invoice or xxxx of lading relating to any Collateral, on any drafts
against Obligors or other Persons making payment with respect to
Collateral, on assignments and verifications of accounts or other
Collateral and on notices to Obligors making payment with respect to
Collateral; to send requests for verification of obligations to any
Obligor; and to do all other acts and things necessary to carry out the
intent of this Agreement. If any Obligor fails or refuses to make
payment on any Collateral when due, Secured Party is authorized, in its
sole discretion, either in its own name or in the name of Debtor, to
take such action as Secured Party shall deem appropriate for the
collection of any amounts owed with respect to Collateral or upon which
a delinquency exists. Regardless of any other provision hereof, Secured
Party shall never be liable for its failure to collect, or for its
failure to exercise diligence in the collection of, any amounts owed
with respect to Collateral, nor shall it be under any duty whatever to
anyone except Debtor to account for funds that it shall actually
receive hereunder. Without limiting the generality of the foregoing,
Secured Party shall have no responsibility for ascertaining any
maturities, calls, conversions, exchanges, offers, tenders, or similar
matters relating to any Collateral, or for informing Debtor with
respect to any of such matters (irrespective of whether Secured Party
actually has, or may be deemed to have, knowledge thereof). The receipt
of Secured Party to any Obligor shall be a full and complete release,
discharge, and acquittance to such Obligor, to the extent of any amount
so paid to Secured Party. The Rights granted Secured Party under this
subsection (b) may be exercised only upon the occurrence of a Default
or an Event of Default and so long as such Default or Event of Default
is continuing.
(c) CERTAIN PROCEEDS. Upon the occurrence of a Default or an Event
of Default and so long as such Default or Event of Default is
continuing, any cash proceeds of Collateral which come into the
possession of Secured Party may, at Secured Party's option, be applied
in whole or in part to the Obligations (to the extent then due), be
released in whole or in part to or on the written instructions of
Debtor for any general or specific purpose, or be retained in whole or
in part by Secured Party as additional Collateral. Any cash Collateral
in the possession of Secured Party may only be invested by Secured
Party in certificates of deposit issued by Secured Party (if Secured
Party issues such certificates), or in securities issued or guaranteed
by the United States of America or any agency thereof. Secured Party
shall never be obligated to make any such
10
investment and shall never have any liability to Debtor for any loss
which may result therefrom. All interest and other amounts earned from
any investment of Collateral may be dealt with by Secured Party in the
same manner as other cash Collateral.
(d) USE AND OPERATION OF COLLATERAL. Should any Collateral come
into the possession of Secured Party, Secured Party may use or operate
such Collateral for the purpose of preserving it or its value pursuant
to the order of a court of appropriate jurisdiction or in accordance
with any other Rights held by Secured Party in respect of such
Collateral. Debtor covenants to promptly reimburse and pay to Secured
Party, at Secured Party's request, the amount of all reasonable
expenses (including, without limitation, the cost of any insurance and
payment of Taxes or other charges) incurred by Secured Party in
connection with its custody and preservation of Collateral, and all
such expenses, costs, Taxes, and other charges shall bear interest at
the Default Rate until repaid and, together with such interest, shall
be payable by Debtor to Secured Party upon demand and shall become part
of the Obligations. Notwithstanding any provision to the contrary, the
risk of accidental loss or damage to, or diminution in value of, any
Collateral is on Debtor, and Secured Party shall have no liability
whatever for failure to obtain or maintain insurance, nor to determine
whether any insurance ever in force is adequate as to amount or as to
the risks insured. With respect to Collateral that is in the possession
of Secured Party, Secured Party shall have no duty to fix or preserve
Rights against prior parties to such Collateral and shall never be
liable for any failure to use diligence to collect any amount payable
in respect of such Collateral, but shall be liable only to account to
Debtor for what it may actually collect or receive thereon. The
provisions of this subsection (d) shall be applicable whether or not a
Default or an Event of Default has occurred and is continuing.
(e) PURCHASE MONEY COLLATERAL. To the extent that Secured Party has
advanced or will advance funds to or for the account of Debtor to
enable Debtor to purchase or otherwise acquire Rights in Collateral,
except as otherwise provided in the Loan Agreement, Secured Party, at
its option, may pay such funds (i) directly to the Person from whom
Debtor will make such purchase or acquire such Rights, or (ii) to
Debtor, in which case Debtor covenants to promptly pay the same to such
Person, and forthwith furnish to Secured Party evidence satisfactory to
Secured Party that such payment has been made from the funds so
provided by Secured Party for such payment.
(f) SUBROGATION. If any of the Obligations are given in renewal or
extension or applied toward the payment of indebtedness secured by any
Permitted Lien, Secured Party shall be, and is hereby, subrogated to
all of the Rights, titles, interests, and Permitted Liens securing the
indebtedness so renewed, extended, or paid.
(g) INDEMNIFICATION. DEBTOR HEREBY ASSUMES ALL LIABILITY FOR ANY
LOSS, EXPENSE, CLAIM OR DAMAGE TO OR ARISING OUT OF THE COLLATERAL, THE
SECURITY INTEREST, AND ANY USE, POSSESSION, MAINTENANCE, AND MANAGEMENT
OF, ALL OR ANY OF THE COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY
TAXES ARISING AS A RESULT OF, OR IN CONNECTION WITH, THE TRANSACTIONS
CONTEMPLATED HEREIN, AND AGREES TO ASSUME LIABILITY FOR, AND TO
INDEMNIFY AND HOLD SECURED PARTY HARMLESS FROM AND AGAINST, ANY AND ALL
CLAIMS, CAUSES OF ACTION, OR LIABILITY, FOR INJURIES TO OR DEATHS OF
PERSONS AND DAMAGE TO PROPERTY, HOWSOEVER ARISING FROM OR INCIDENT TO
SUCH USE, POSSESSION, MAINTENANCE, AND MANAGEMENT, WHETHER SUCH PERSONS
BE AGENTS OR EMPLOYEES OF DEBTOR OR OF THIRD PARTIES, OR SUCH DAMAGE BE
TO PROPERTY OF DEBTOR OR OF OTHERS. DEBTOR AGREES TO INDEMNIFY, SAVE,
AND HOLD SECURED PARTY HARMLESS FROM AND AGAINST, AND COVENANTS TO
DEFEND SECURED PARTY AGAINST, ANY AND ALL LOSSES, DAMAGES,
11
CLAIMS, COSTS, PENALTIES, LIABILITIES, AND EXPENSES, INCLUDING, WITHOUT
LIMITATION, COURT COSTS AND REASONABLE ATTORNEYS' FEES, HOWSOEVER
ARISING OR INCURRED BECAUSE OF, INCIDENT TO, OR WITH RESPECT TO
COLLATERAL OR ANY USE, POSSESSION, MAINTENANCE, OR MANAGEMENT THEREOF
(A "CLAIM"). IN THE EVENT THAT ANY CLAIM IS BROUGHT AGAINST SECURED
PARTY, SECURED PARTY AGREES TO GIVE PROMPT WRITTEN NOTICE TO DEBTOR
WITH RESPECT TO SAME, TOGETHER WITH A COPY OF SUCH CLAIM, AND SO LONG
AS NO EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING, DEBTOR
SHALL HAVE THE RIGHT IN GOOD FAITH AND BY APPROPRIATE PROCEEDINGS TO
DEFEND SECURED PARTY AGAINST SUCH CLAIM AND EMPLOY COUNSEL ACCEPTABLE
TO SECURED PARTY TO CONDUCT SUCH DEFENSE (AT DEBTOR'S SOLE EXPENSE) SO
LONG AS SUCH DEFENSE SHALL NOT INVOLVE ANY DANGER OF THE FORECLOSURE,
SALE, FORFEITURE OR LOSS, OR IMPOSITION OF ANY LIEN, OTHER THAN A
PERMITTED LIEN, ON ANY PART OF THE COLLATERAL, OR SUBJECT SECURED PARTY
TO CRIMINAL LIABILITY. SHOULD DEBTOR ELECT TO ENGAGE ITS OWN COUNSEL
ACCEPTABLE TO SECURED PARTY, SECURED PARTY MAY CONTINUE TO PARTICIPATE
IN THE DEFENSE OF ANY SUCH CLAIM AND WILL RETAIN THE RIGHT TO SETTLE
ANY SUCH MATTER ON TERMS AND CONDITIONS SATISFACTORY TO SECURED PARTY
AND DEBTOR. ALL SUCH SETTLEMENTS SHALL BE PAID BY AND REMAIN THE SOLE
RESPONSIBILITY OF DEBTOR. IN THE EVENT DEBTOR DOES NOT ACCEPT THE
DEFENSE OF THE CLAIM AS PROVIDED ABOVE, SECURED PARTY SHALL HAVE THE
RIGHT TO DEFEND AGAINST SUCH CLAIM, IN ITS SOLE DISCRETION, AND PURSUE
ITS RIGHTS HEREUNDER.
(h) DIMINUTION IN VALUE OF COLLATERAL. Secured Party shall have no
liability or responsibility whatsoever for any diminution in or loss of
value of any Collateral.
(i) APPOINTMENT OF ATTORNEY-IN-FACT. Debtor hereby irrevocably
appoints Secured Party or its designee as Debtor's attorney-in-fact,
with full authority in the place and stead of Debtor, from time to time
in Secured Party's discretion prior to, upon, during, and after an
Event of Default, to take any action and to execute any instrument
which Secured Party may deem necessary or advisable to accomplish the
purposes of this Agreement, including without limitation, (i) to
perfect and continue to perfect the security interests created by this
Agreement and to maintain the first priority thereof; (ii) to ask,
demand, collect or xxx for, recover, compound, receive and give
acquittance in receipts for any monies due or becoming due under or in
respect for any Collateral; (iii) to receive, endorse and collect any
drafts or other instruments, documents and chattel paper, in connection
with the Collateral; and (iv) to file any claims or take any action or
institute any proceeding which Secured Party may deem necessary or
desirable for the collection of any Collateral or otherwise to enforce
the rights of Secured Party in the Collateral; and, in addition to the
foregoing, after an Event of Default, to sell or assign any chattel
paper or other Collateral upon such terms, for such amounts and at such
time or times Secured Party deems advisable. Secured Party shall give
Debtor three (3) business days prior written notice before exercising
authority as attorney-in-fact at any time which is prior to the
occurrence of an Event of Default. The Debtor hereby ratifies all that
said attorneys shall do or cause to be done by virtue hereof. Neither
the Secured Party nor its designee shall be under any duty to exercise
any such powers and none of the Secured Party, its designee or any
their respective officers, directors, employees or agents shall be
responsible to the Debtor for any failure to act.
XIII. MISCELLANEOUS.
(a) REFERENCE TO LOAN DOCUMENTS. This Agreement is one of the "Loan
Documents" referred to in the Loan Agreement.
12
(b) BENEFIT OF THE AGREEMENT. This Agreement will inure to the
benefit of and be binding upon the successors and permitted assigns of
the parties hereto.
(c) TERM. Upon full and final payment and performance of the
Obligations by Debtor and extinguishment of the Commitment, this
Agreement shall automatically thereafter terminate; PROVIDED that no
Obligor on any of the Collateral shall ever be obligated to make
inquiry as to the termination of this Agreement, but shall be fully
protected in making payment directly to Secured Party.
(d) ACTIONS NOT RELEASED. The Security Interest and the Debtor's
obligations and Secured Party's Rights hereunder shall not be released,
diminished, impaired, or adversely affected by the occurrence of any
one or more of the following events: (i) the taking or accepting of any
other security or assurance for any or all of the Obligations; (ii) any
release, surrender, exchange, subordination, or loss of any security or
assurance at any time existing in connection with any or all of the
Obligations; (iii) the modification of, amendment to, or waiver of
compliance with any terms of, any of the other Loan Documents without
the notification or consent of Debtor, except as required therein (the
Right to such notification or consent being herein specifically waived
by Debtor); (iv) any renewal, extension, or rearrangement of the
payment of any or all of the Obligations, or any adjustment,
indulgence, forbearance, or compromise that may be granted or given by
Secured Party to Debtor; (v) any neglect, delay, omission, failure, or
refusal of Secured Party to take or prosecute any action in connection
with any other agreement, document, guaranty, or instrument evidencing,
securing, or assuring the payment of all or any of the Obligations;
(vi) any failure of Secured Party to notify Debtor of the release of
any other security; (vii) the illegality, invalidity, or
unenforceability of all or any part of the Obligations against any
party obligated with respect thereto by reason of the fact that the
Obligations, or the interest paid or payable with respect thereto,
exceeds the amount permitted by Law, the act of creating the
Obligations, or any part thereof, is ULTRA XXXXX, or the officers,
partners, members or trustees creating same acted in excess of their
authority, or for any other reason; or (viii) if any payment by any
party obligated with respect thereto is held to constitute a preference
under applicable Laws or for any other reason Secured Party is required
to refund such payment or pay the amount thereof to someone else.
(e) DEBTOR WAIVERS. To the fullest extent permitted by Law, Debtor
WAIVES (i) any Right to require Secured Party to proceed against any
other Person, to exhaust its Rights in the Collateral, or to pursue any
other Right which Secured Party may have; and (ii) with respect to the
Obligations, presentment and demand for payment, protest, notice of
protest and nonpayment, and notice of the intention to accelerate.
(f) WAIVER OF MARSHALLING. To the fullest extent permitted by Law,
Debtor agrees that it will not at any time insist upon, plead, claim or
take the benefit or advantage of any law now or hereafter in force
providing for any appraisement, valuation, stay, extension or
redemption, and Debtor, for itself, its heirs, devisees,
representatives, receivers, trustees, successors and assigns, and for
any and all persons ever claiming any interest in the Collateral, to
the extent permitted by law, Debtor hereby WAIVES and RELEASES all
rights of redemption, valuation, appraisement, stay of execution,
notice of intention to mature or declare due the whole of the secured
indebtedness, notice of election to mature or declare due the whole of
the secured indebtedness and all rights to a marshalling of its assets,
including the Collateral, or to a sale in inverse order of alienation
in the event of foreclosure of the security interest hereby created.
13
(g) FINANCING STATEMENT. Secured Party shall be entitled at any
time to file this Agreement or a carbon, photographic, or other
reproduction of this Agreement, as a financing statement, but the
failure of Secured Party to do so shall not impair the validity or
enforceability of this Agreement.
(h) AMENDMENTS AND WAIVERS. This instrument may be amended only by
an instrument in writing executed jointly by Debtor and Secured Party,
and supplemented only by documents delivered or to be delivered in
accordance with the express terms hereof. No waiver of any breach of or
obligation under any provision of this Agreement will be effective or
binding unless made in writing and signed by the party purporting to
give the same and, unless otherwise provided in the written waiver,
will be limited to the specific breach or obligation waived for the
particular instance noted.
(i) MULTIPLE COUNTERPARTS AND FACSIMILE. This Agreement may be
executed in any number of counterparts, each of which when executed and
delivered shall be deemed to be an original, and such counterparts
together shall constitute one and the same agreement. For the purposes
of this Section, the delivery of a facsimile copy of an executed
counterpart of this Agreement shall be deemed to be valid execution and
delivery of this Agreement, but the party delivering a facsimile copy
shall deliver an original copy of this Agreement as soon as possible
after delivering the facsimile copy.
(j) PARTIES BOUND; ASSIGNMENT. This Agreement shall be binding on
Debtor and its successors and assigns and shall inure to the benefit of
Secured Party and Secured Party's successors and assigns. Debtor may
not, without the prior written consent of Secured Party, assign any
Rights, duties, or obligations hereunder. In the event of an assignment
of all or part of the Obligations, the Security Interest and other
Rights and benefits hereunder to the extent applicable to the part of
the Obligation so assigned, shall be imposed on such transferee, but
(unless Secured Party shall have so expressly agreed in writing) the
Debtor shall remain primarily liable in respect of all such assigned
Obligations.
(k) COLLATERAL AGENT. Secured Party may, within its sole
discretion, appoint one or more custodians or collateral agents as
bailee-in-possession ("Collateral Agent"), or may, by an instrument
delivered to the Debtor, declare that it is acting as collateral agent
for itself, to perfect its interests in and to administer the
Collateral or any part thereof, including, without limitation, any
notes, accounts, chattel paper or other documents or instruments
evidencing of the foregoing. Debtor shall pay all costs, fees and other
charges of such Collateral Agent.
(l) ENTIRETY. This Agreement has been entered into pursuant to the
provisions of the Loan Agreement and is subject to all of the terms and
conditions thereof and, if there is any conflict or inconsistency
between the provisions of this Agreement and the provisions of the Loan
Agreement, any such conflict or inconsistency shall be resolved to
better assure the security interest and collateral assignment granted
hereunder. This Agreement cancels and supersedes any prior
understandings and agreements between the parties hereto with respect
thereto. There are no representations, warranties, terms, conditions,
undertakings or collateral agreements, express, implied or statutory,
between the Secured Party and the Debtor with respect to the subject
matter hereof except as expressly set forth herein or in the Loan
Agreement.
14
(m) GOVERNING LAW. This Agreement and all other Loan Documents and
Security Documents 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.
(n) 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 each other
party. 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 DEBTOR: WITH A COPY TO:
E-LOAN, Inc. E-LOAN, Inc.
0000 Xxxxxx Xxxx 5875 Xxxxxx Road
Dublin, CA 94568 Xxxxxx, XX 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telefax: (000) 000-0000 Telefax: (000) 000-0000
Attn: Xxx Xxxxxx, Treasurer Attn: Xxxxxx X. Xxxxxxxx, Esq.
AS TO SECURED PARTY: WITH A COPY TO:
Xxxxxxx Xxxxx Mortgage Capital Inc. Xxxxxxx Xxxxx Mortgage Capital Inc.
4 World Financial Center, 22nd Floor 4 World Financial Center, 22nd Floor
New York, NY 10080 Xxx Xxxx, XX 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telefax: (000) 000-0000 Telefax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx, Director Attn: Xxxxxxx Xxxx, Managing Director
(o) SEVERABILITY. If any provision of this Agreement is determined
to be invalid or unenforceable in whole or in part, such invalidity or
unenforceability will attach only to such provision or part thereof and
the remaining part of such provision and all other provisions hereof
will continue in full force and effect.
(p) ADDITIONAL CONTINUING SECURITY. This Agreement and the security
interest and collateral assignment granted hereby are in addition to
and not in substitution for any other security now or hereafter held by
the Secured Party. This Agreement is a security agreement (as defined
in the UCC) and the security interest granted hereunder is a continuing
security that will remain in full force and effect until discharged by
the Secured Party.
15
(q) FURTHER ASSURANCES. The Debtor from time to time, at its
expense, shall promptly do, execute and deliver, or cause to be done,
executed and delivered, all such financing statements, further
assignments, instruments, documents, acts, matters and things as may be
reasonably requested by the Secured Party for the purpose of giving
effect to this Agreement and the other Loan Documents or for the
purpose of establishing compliance with the representations, warranties
and covenants herein contained and contained in the other Loan
Documents and the rights, powers and remedies herein and therein
granted.
(r) DISCHARGE. The Debtor will not be discharged from any of the
Obligations or from this Agreement except by a release or discharge
signed in writing by the Secured Party.
(s) SUBMISSION TO JURISDICTION; WAIVERS. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY:
1. 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;
2. 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
LOAN DOCUMENTS MAY BE BROUGHT IN SUCH COURTS;
3. 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;
4. 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; AND
5. 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 XXX IN ANY OTHER JURISDICTION.
(t) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT AND THE OTHER LOAN
16
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR ARISING
HEREUNDER OF THEREUNDER.
(u) THIRD PARTIES. No Person dealing with the Secured Party or any
agent of the Secured Party shall be required to inquire whether the
security interest has become enforceable, or whether the powers which
the Secured Party or any such agent is purporting to exercise are or
have become exercisable, or whether any Obligations remain outstanding
upon the security interest granted to the Secured Party, or as to the
necessity or expediency of the stipulations and conditions subject to
which any sale shall be made, or otherwise as to the propriety or
regularity of any sale or other disposition or any other dealing with
the security interest granted to the Secured Party in, to and under the
Collateral or any part thereof.
[Signature page follows.]
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
Debtor:
E-LOAN, INC.
By:____________________________
Its: ___________________________
0000 Xxxxxx Xxxx
Xxxxxx, XX 00000
3563 - 000 Xxxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Secured Party:
XXXXXXX XXXXX MORTGAGE CAPITAL INC.
By:____________________________
Its: ___________________________
4 World Financial Center, 22nd Fl.
Xxx Xxxx, XX 00000
SCHEDULE I
E-LOAN, INC. LOCATIONS
A. Location of Chief Executive Office:
0000 Xxxxxx Xxxx
Xxxxxx, XX 00000
B. Location of Books and Records as to Chattel Paper and Accounts:
3563 - 000 Xxxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
0000 Xxxxxx Xxxx
Xxxxxx, XX 00000
C. Location of Other Collateral:
WHILE HELD IN TRUST BY DEBTOR
3563 - 000 Xxxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
D. Location of Any Other Place(s) of Business:
Main Corporate Office:
0000 Xxxxxx Xxxx
Xxxxxx, XX 00000
Branch Office (Main Location of Auto Operations):
3563 - 000 Xxxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
S-I-I
SCHEDULE II
REAL PROPERTY; LEASES
0000 XXXXXX XXXX, XXXXXX, XX 00000
Multi-Tenant Office Triple Net Lease dated August 19, 1998, between Creekside
South Trust, a Maryland Business Trust as Lessor and E-Loan, Inc. as Lessee;
0000 XXXXXXX XXXXXXX, XXXXXXXXXXXX, XX 00000
Metro Square Office Lease Agreement dated February 4, 2000, between Southpart
Corporate Center, LLC as Lessor and E-LOAN, Inc. as Lessee.
EQUIPMENT LEASE
Master Lease Agreement dated March 4, 1998, between Comdisco, Inc., as Lessor
and E-LOAN, Inc. as Lessee.
S-II-I
