Exhibit 10.101
SECURITY AGREEMENT AND ASSIGNMENT OF
E-LOAN, INC.
This Security Agreement And Assignment ("AGREEMENT") is executed as of
April 2, 2001, by E-LOAN, INC., a Delaware corporation ("Debtor"), for the
benefit of BANK ONE, NA, a national banking association with its principal
offices in Columbus, Ohio ("SECURED PARTY").
FOR VALUABLE CONSIDERATION, the receipt and adequacy of which are hereby
acknowledged, Debtor hereby covenants and agrees with Secured Party as follows:
1. REFERENCE TO LOAN AGREEMENT. This Agreement is being executed and
delivered in connection with that certain Loan Agreement (as the same may have
been or hereafter be renewed, extended, amended, supplemented, or modified, the
"LOAN AGREEMENT"), dated as of the date hereof, between Debtor and Secured
Party. 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.
2. CERTAIN DEFINITIONS. Unless otherwise defined herein, or the context
hereof otherwise requires, each term defined in either the Loan Agreement or in
the UCC is used in this Agreement with the same meaning; PROVIDED, THAT, (a) if
the definition given a term in the Loan Agreement conflicts with the definition
given that term in the UCC, the Loan Agreement definition shall control to the
extent legally allowable, and (b) if any definition given a term in Article 9 of
the UCC conflicts with the definition given that term in any other chapter of
the UCC, the Chapter 9 definition shall prevail. As used herein, the following
terms have the meanings indicated:
COLLATERAL has the meaning set forth in PARAGRAPH 4 hereof.
OBLIGOR means any Person obligated with respect to any of the Collateral,
whether as an obligor on chattel paper, account debtor, obligor on an
instrument, issuer of securities, or otherwise.
SECURITY INTEREST means the security interest granted and the pledge and
assignment made under Paragraph 3 hereof.
UCC means the Uniform Commercial Code as enacted in the State of Ohio or
other applicable jurisdiction, as amended at the time in question.
3. SECURITY INTEREST. In order to secure the full and complete payment of
the Obligations when due and performance under the Loan Agreement and other Loan
Documents and all other obligations of Debtor to Secured Party and any
subsidiary or
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Exhibit 10.101
affiliate of Secured Party, whether now existing or hereafter arising, Debtor
hereby grants to Secured Party a security interest in the Collateral and pledges
and assigns the Collateral to Secured Party, all upon and subject to the terms
and conditions of this Agreement. Such security interest is granted and pledge
and assignment are made as security only and shall not subject Secured Party to,
or transfer or in any way affect or modify, any obligation of Debtor with
respect to any of the Collateral or any transaction involving or giving rise
thereto.
4. COLLATERAL. As used herein, the term "Collateral" means all property,
now owned or hereafter acquired or arising, of DEBTOR, including, without
limitation, the following items and types of property:
(a) All of Debtor's interest in Contracts, chattel paper, lease
agreements, conditional or installment sales contracts, other instruments
or documents (which shall include any and all certificates of title and
other such security instruments) evidencing both a debt and security
interest in motor vehicles.
(b) All other present and future accounts, contract rights, general
intangibles, chattel paper, documents, instruments and all Rights arising
therefrom, inventory, including, without limitation, vehicles held as
inventory for sale, equipment, computer hardware and software, fixtures,
securities, customer lists, other goods, money, and deposit accounts,
wherever located, now owned or hereafter acquired by Debtor, and any and
all present and future tax refunds of any kind whatsoever to which Debtor
is now or shall hereafter become entitled.
(c) All cash and securities (whether or not marketable) of Debtor.
(d) The balance of every deposit account of Debtor and any other
claim of Debtor against Secured Party or any of its Affiliates, now or
hereafter existing, whether liquidated or unliquidated.
(e) The balance of every deposit account of Debtor and any other
claim of Debtor against any other bank or other form of financial
institution, now or hereafter existing, whether liquidated or unliquidated.
(f) All present and future increases, profits, combinations,
reclassification, improvements, and products of, accessions, attachments,
and other additions to, tools, parts, and equipment used in connection
with, and substitutes and replacements for, all or part of the Collateral
heretofore described.
(g) All present and future accounts, contract rights, general
intangibles, chattel paper, documents, instruments, cash and non-cash
proceeds, 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 Collateral heretofore described in this clause or
otherwise.
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Exhibit 10.101
(h) All present and future security for the payment to Debtor of any
of the Collateral heretofore described and goods which gave or will give
rise to any of such Collateral or are evidenced, identified, or represented
therein or thereby.
(i) All books and records (including, without limitation, customers
lists, credit files, tapes, ledger cards, computer software and hardware,
electronic data processing software, computer programs, computer printouts
and other computer materials and records) evidencing or containing
information regarding or otherwise pertaining to any of the foregoing.
PROVIDED, HOWEVER, that the Collateral shall not in any event include (i) the
property described in attached Attachment I or (ii) the property described in
attached Attachment II.
The description of Collateral contained in this Paragraph 4 shall not be
deemed to permit any action prohibited by this Agreement or by terms
incorporated in this Agreement.
5. REPRESENTATIONS AND WARRANTIES. Debtor represents and warrants to
Secured Party that:
(a) Debtor's chief executive office is located at the address as
shown on 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.
(b) The Collateral that is or may be fixtures is located on or
affixed to the real property described on ANNEX A (but the failure of such
description to be accurate or complete shall not impair the Security
Interest in such Collateral).
(c) All Collateral that is Contracts, accounts, chattel paper,
instruments, or general intangibles is free from any claim for credit,
deduction, or allowance of an Obligor and free from any defense, dispute,
setoff, or counterclaim, and there is no extension or indulgence with
respect thereto.
(d) At the option of Secured Party, all Collateral that is Contracts,
accounts, contract rights, chattel paper, or instruments will be paid in
full at maturity, and, if not paid, at Secured Party's option such unpaid
amount 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, or instrument as Collateral for any outstanding portion of
the Obligations.
(e) 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
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Exhibit 10.101
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.
(f) Debtor owns all presently existing Collateral, and will acquire
all hereafter acquired Collateral, free and clear of all Liens, except
Permitted Liens that have been disclosed in writing to Secured Party.
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 PARAGRAPH 5 are true and correct with
respect to each item of such Collateral.
6. CERTAIN COVENANTS. So long as Secured Party is committed to extend
credit to Debtor under the Loan Agreement and thereafter until the Obligations
are paid and performed in full, Debtor covenants and agrees with Secured Party
that Debtor will:
(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 transaction to which the Collateral, or any part thereof, relates, so
that the amounts thereof shall actually become payable in their entirety to
Secured Party.
(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 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.
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Exhibit 10.101
(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.
(f) Use, operate, maintain, and store the Collateral that is
equipment, 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 request to obtain the consent or
approval of any Governmental Authority to Secured Party's Rights hereunder,
including, without limitation, the right to sell all the Collateral upon an
Event of Default without additional consent or approval from such
Governmental Authority (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) From time to time promptly execute and deliver to Secured Party
all such other assignments, certificates, supplemental documents, and
financing statements, and do all other acts or things as Secured Party may
reasonably request in order to more fully create, evidence, perfect,
continue, and preserve the priority of the Security Interest.
(i) 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.
(j) 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.
(k) Not 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 county, parish, or
state other than as indicated above unless prior thereto Debtor (i) gives
Secured Party thirty days prior written notice of such proposed relocation
(such notice to include, without limitation, the name of the county or
parish and 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,
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Exhibit 10.101
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.
(l) Not change Debtor's name or address to which it is entitled to
receive notices hereunder unless prior thereto Debtor gives Secured Party
thirty 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.
7. DEFAULT; REMEDIES. Should an Event of Default occur, Secured Party
may, at its election, exercise any and all Rights available to a secured party
under the UCC, in addition to any and all other Rights afforded by the Loan
Documents, at law, in equity, or otherwise, including, without limitation, (a)
requiring Debtor to assemble all or part of the Collateral and make it available
to Secured Party at a place to be designated by Secured Party which is
reasonably convenient to Debtor and Secured Party, (b) surrendering any policies
of commercial insurance on all or part of the Collateral and receiving and
applying the unearned premiums as a credit on the Obligations, (c) applying by
appropriate judicial proceedings for appointment of a receiver, without notice
to Debtor, either before or after judgment is obtained against Debtor by Secured
Party, for all or part of the Collateral irrespective of the value of such
Collateral (and Debtor hereby irrevocably consents to any such appointment and
to jurisdiction and venue of such appointment in state or federal courts in
Franklin County, Ohio, at the option of Secured Party), (d) applying to the
Obligations any cash held by Secured Party under this Agreement, and (e) open
Debtor's commercial 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. Secured Party shall provide
Debtor not less than ten (10) calendar days written notice prior to any sale or
other intended disposition of the Collateral by Secured Party. The Secured Party
may sell the Collateral at public or private sale and 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).
8. NOTICE AND APPLICATION OF PROCEEDS.
(a) NOTICE. Reasonable notification of the time and place of any
public sale of the Collateral, or reasonable notification of the time after
which any private sale or other intended disposition of the Collateral is
to be made, shall be sent to Debtor and to any other Person entitled to
notice under the UCC; PROVIDED, THAT, if any of the Collateral threatens to
decline speedily in value or is of the type customarily sold on a
recognized market, Secured Party may sell or otherwise dispose of the
Collateral without notification, advertisement, or other notice of any
kind. It is agreed that notice sent or given not less than ten (10)
calendar days prior to the taking of the action to which the notice relates
is reasonable notification and notice for the purposes of this CLAUSE (a).
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Exhibit 10.101
(b) APPLICATION OF PROCEEDS. Secured Party shall apply the proceeds
of any sale or other disposition of the Collateral under this PARAGRAPH 8
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 are part of the
Obligations); second, toward repayment of amounts expended by Secured Party
under PARAGRAPH 9; 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.
9. 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 priority of the Security
Interest in any of the Collateral as required by this Agreement, 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 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 CLAUSE (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
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Exhibit 10.101
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 clause (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 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. However, the risk of accidental
loss or
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Exhibit 10.101
damage to, or diminution in value of, 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
CLAUSE (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
Lien, Secured Party shall be, and is hereby, subrogated to all of the
Rights, titles, interests, and Liens securing the indebtedness so renewed,
extended, or paid.
(g) INDEMNIFICATION. DEBTOR HEREBY ASSUMES ALL LIABILITY FOR THE
COLLATERAL, FOR THE SECURITY INTEREST, AND FOR 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, 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
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Exhibit 10.101
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 instead 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; (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 to 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 held as 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 prior to the
occurrence of an Event of Default.
10. MISCELLANEOUS
(a) REFERENCE TO MISCELLANEOUS PROVISIONS. This Agreement is one of
the "Loan Documents" referred to in the Loan Agreement.
(b) 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, if
any, on any of the Collateral shall ever be obligated to make inquiry as to
the termination of this
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Exhibit 10.101
Agreement, but shall be fully protected in making payment directly to
Secured Party.
(c) 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.
(d) 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.
(e) 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
11
Exhibit 10.101
assets, including the Collateral, or to a sale in inverse order of
alienation in the event of foreclosure of the security interest hereby
created.
(f) 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.
(g) AMENDMENTS. 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.
(h) MULTIPLE COUNTERPARTS. This Agreement may be executed in a number
of identical counterparts, each of which shall be deemed an original for
all purposes and all of which constitute, collectively, one agreement; but,
in making proof of this Agreement, it shall not be necessary to produce or
account for more than one such counterpart.
(i) 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, may be transferred therewith.
(j) COLLATERAL AGENT. Secured Party may, within its sole discretion,
appoint one or more collateral agents as bailee-in-possession ("Collateral
Agent") 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.
(k) AGREEMENT WITH RESPECT TO PREVENTION AND RESOLUTION OF DISPUTES.
This Agreement shall be governed by, and shall be construed and enforced in
accordance with a certain Agreement With Respect to Prevention and
Resolution of Disputes, the terms and provisions of which are incorporated
herein.
(l) ENTIRETY. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS BY THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN OR AMONG THE
PARTIES. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS EMBODY THE ENTIRE
AGREEMENT BETWEEN THE DEBTOR AND SECURED PARTY AND SUPERSEDE ALL PRIOR
PROPOSALS, AGREEMENTS AND UNDERSTANDINGS RELATING TO THE SUBJECT MATTER
HEREOF.
12
Exhibit 10.101
SECURED PARTY: DEBTOR:
Bank One, NA E-Loan, Inc.
By: /s/ XXXXX XXXXXX By: /s/ XXXX XXXXXXX
--------------------------- --------------------------
Xxxxx Xxxxxx
Its: Commercial Loan Officer Its: CFO
0000 Xxxxxxx Xxxxxxx #0X 0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxx 00000 Xxxxxx, XX 00000
3563 - 000 Xxxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
13
Exhibit 10.101
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:
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
[TO BE COMPLETED BY DEBTOR]
14
Exhibit 10.101
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;
Standard Sublease dated October 20, 2000, between E-LOAN, Inc. as Sub-Lessor and
Pagoo, Inc. as Sub-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.
[TO BE COMPLETED BY DEBTOR]
15
Exhibit 10.101
ANNEX A
DESCRIPTION OF REAL PROPERTY
DEBTOR DOES NOT OWN ANY REAL PROPERTY.
DEBTOR HAS LEASEHOLD INTERESTS IN REAL PROPERTY, AS DESCRIBED ON SCHEDULE II.
[TO BE COMPLETED BY DEBTOR]
16
