Exhibit 10.22
SECURITY AGREEMENT
THIS SECURITY AGREEMENT is made as of the 1st day of June, 2002 (as
amended, supplemented or otherwise modified from time to time in accordance with
its terms, this "Agreement"), between E-LOAN AUTO FUND ONE, LLC, a limited
liability company organized pursuant to the laws of the State of Delaware
(together with its successors and assigns, the "Debtor"), and XXXXXXX XXXXX BANK
USA, an industrial loan company organized pursuant to the laws of the State of
Utah, acting for the benefit of itself as Lender and each Hedge Counterparty
(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 and each Hedge Counterparty pursuant to the Credit Agreement,
dated as of June 1, 2002 (as amended, supplemented or otherwise modified from
time to time in accordance with its terms, the "Credit Agreement"), among the
Debtor, the Secured Party and E-LOAN, Inc., and the other Credit Documents;
AND WHEREAS this is the Auto Fund Security Agreement contemplated
pursuant to Section 4.1.1(a) of the Credit 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:
ARTICLE 1 - INTERPRETATION
1.01 INTERPRETATION
In this Agreement, the terms "general intangibles", "chattel paper",
"accounts" and "proceeds" whenever used herein have the meanings given to those
terms in the UCC.
Capitalized terms which are used but not otherwise defined herein and
which are defined in the Credit Agreement shall have the respective meanings
attributed to such terms in Schedule A to the Credit Agreement.
1.02 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.
1.03 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
importing persons include individuals, partnerships, associations, trusts,
unincorporated organizations and corporations.
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ARTICLE 2 - GRANT OF SECURITY INTEREST
2.01 SECURITY INTEREST
As security for the payment and performance of the Note and all other
Obligations of Debtor to Lender and any subsidiary or affiliate of Lender and
each Hedge Counterparty, whether now existing or hereafter arising, the Debtor
hereby grants, conveys, assigns, transfers and pledges to the Secured Party (for
the benefit of the Lender and each Hedge Counterparty) a first priority,
perfected security interest, and collaterally pledges and assigns to the 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 the Secured Party to, or transfer or in any way modify, any obligation
of the Debtor with respect to any of the Collateral or any transaction involving
or giving rise thereto. As used herein, the term "Collateral" means all
property, now owned or hereafter acquired or arising, of the Debtor, including,
without limitation:
(a) the Collection Account, the Collection Sweep Investment Account,
all accounts relating thereto, and all amounts and other property therein from
time to time pursuant to the Credit Agreement;
(b) all Sold Assets, including, without limitation, all Contracts
identified in any Schedule of Contracts delivered from time to time to the
Secured Party pursuant to the Credit Agreement, all chattel paper and other
instruments or documents arising therefrom, cash and non-cash proceeds thereof,
and Receivable Files relating thereto;
(c) all rights of the Debtor in, to and under this Agreement, any and
all Hedge Agreements, the Contribution and Sale Agreement, the Servicing and
Custodian Agreement, the Securities Account Control Agreement, the
Administration Agreement and each other Credit Document;
(d) all other assets of the Debtor, whether now existing, or hereafter
acquired; and
(e) all income, payments and proceeds of any of the foregoing property
in any form derived, directly or indirectly, from any dealing with such property
or that indemnifies or compensates for the loss of or damage to such property;
PROVIDED, HOWEVER, that the Collateral shall not in any event extend or apply to
any Schedule of Removed Contracts and related release executed from time to time
by the Secured Party pursuant to Section 2.5.2 of the Credit Agreement. It is
understood that, prior to a Termination Date, the Debtor may distribute any
funds appropriately on deposit in the Borrower's Account from time to time to
its Member without the consent of the Secured Party after application of any
amounts then due and payable pursuant to Section 8.1 of the Credit Agreement.
2.02 ATTACHMENT OF SECURITY INTEREST
The Debtor acknowledges that value has been given and agrees that the
Security Interest granted hereby will attach when the Debtor signs this
Agreement. The 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.
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2.03 FORM OF DOCUMENTS
The 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.
2.04 RELEASE
Any item of Collateral released pursuant to the terms of this Agreement
and the Credit 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
repurchase of Contracts pursuant to Section 3.2 of the Contribution and Sale
Agreement shall be deemed to be automatically made upon repayment to the Lender
of the entire outstanding amount of the Advance made in respect thereof,
together with all accrued interest thereon and any other amounts payable under
the Credit Agreement in respect thereof, and without any action being taken by
the Secured Party.
3. ARTICLE - REPRESENTATIONS AND WARRANTIES OF THE DEBTOR
3.01 REPRESENTATIONS AND WARRANTIES
In addition to the representations and warranties of the Debtor as Borrower
under the Credit Agreement, the Debtor hereby represents and warrants to the
Secured Party that:
(a) Debtor has the power and authority to execute and deliver this
Agreement and the other Credit 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 Credit 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 Encumbrances (other than Permitted
Encumbrances) have been or will be granted or permitted by the Debtor with
respect to any or all of the Collateral (other than as may be granted with
respect to a Securitization) that has not been, as of the related Drawdown Date,
released and such release is the legal, valid and binding release of the party
releasing such security interest or Encumbrances, as the case may be.
(c) Debtor is a "registered organization" within the meaning of Article
9 of the UCC, duly organized and validly existing under the laws of the State of
Delaware, with its chief executive office located at the address as shown in
Schedule A. The present and foreseeable location of Debtor's books and records
concerning the Collateral is its chief executive office, and all such books and
records are in Debtor's possession. All of Debtor's assets are currently located
at the locations described on Schedule A.
(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 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.
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(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.
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 Article 3 are true and correct with
respect to each item of such Collateral.
4. ARTICLE 4 - COVENANTS OF THE DEBTOR
4.01 COVENANTS
Until all Obligations are paid and performed in full, the Debtor
covenants and agrees with the Secured Party that the 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 Credit 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 Custodian.
(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 Credit Agreement or any other Credit
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
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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 Termination Date of the Credit Facility by the
Lender under and pursuant to the terms the Credit 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 Credit 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.
(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
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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.
5. ARTICLE 5 - DEFAULT; REMEDIES; ADDITIONAL RIGHTS OF SECURED PARTY
5.01 DEFAULT; REMEDIES
(a) On or after the occurrence of any Event of Default, (1) 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; (2) the
obligation, if any, of the Secured Party to extend further credit to the Debtor
will cease; (3) any or all security granted hereby will, at the option of the
Secured Party, become immediately enforceable; and (4) without prejudice and in
addition to any right, power or remedy provided by the Credit 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:
(i) the 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 5.01 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 5.01 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;
(ii) the Secured Party may take possession of the Collateral and
require the Debtor to assemble the Collateral and deliver or make the
Collateral available to the Secured Party at such place or places as
may be specified by the Secured Party;
(iii) the Secured Party may surrender, or cause the 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 Credit Documents;
(iv) the Secured Party may apply to the Obligations any cash held
by the 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;
(v) the 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;
(vi) the Secured Party may enforce any rights of the Debtor in
respect of the Collateral by any manner permitted by law;
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(vii) 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 the Secured Party may
determine and without notice to the Debtor unless required by law in
satisfaction of any or all of the Obligations. The 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);
(viii) the 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;
(ix) the Secured Party and/or its agents may enter upon all or any
of the premises occupied by the Debtor or the Custodian in order to
seize and remove any Collateral located in or on such premises; and
(x) if any of the Debtor, the Seller, the Servicer or the
Custodian has failed to perform any of its respective covenants or
agreements in any Credit 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 Credit 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;
(b) the Secured Party and each Hedge Counterparty may charge on its own
behalf and pay to others all reasonable amounts for expenses incurred and for
services rendered in connection with the exercise of the rights and remedies of
the Secured Party and each Hedge Counterparty 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;
(c) the 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
(d) the 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 Credit 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.
5.02 ADDITIONAL RIGHTS OF THE SECURED PARTY
(a) The 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 and each Hedge Counterparty or the Secured Party's
or each Hedge Counterparty's rights hereunder.
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(b) None of the Secured Party, any Hedge Counterparty or their
respective 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, any Hedge Counterparty, 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.
(c) The 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 and each Hedge
Counterparty forthwith on demand.
(d) All authorizations and agencies herein contained with respect to
the Collateral are irrevocable and are powers coupled with an interest.
(e) No failure on the part of the Secured Party or a Hedge Counterparty
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 a Hedge
Counterparty or allowed the Secured Party or a Hedge Counterparty 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.
5.03 REMEDIES CUMULATIVE
The rights and remedies of the Secured Party under this Agreement and
the other Credit 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 Credit 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 Credit Documents, and any indulgence granted by the Secured Party,
shall be deemed not to be a waiver of any subsequent default.
ARTICLE 6 - NOTICE AND APPLICATION OF PROCEEDS
6.01 NOTIFICATION OF DEBTOR
Secured Party promptly shall notify Debtor of any sale or other
disposition of the Collateral in accordance with applicable law; PROVIDED,
HOWEVER, that any disposition of all or any portion of the Collateral shall be
in accordance with this Agreement.
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6.02 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.
6.03 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 Article 7 hereof; and third, in accordance with Section 8.1 of the
Credit Agreement. If the proceeds are insufficient to pay the Obligations in
full, Debtor shall remain liable for any deficiency.
ARTICLE 7 - OTHER RIGHTS OF SECURED PARTY
7.01 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 Credit 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 Credit Documents. Any sum which may be reasonably expended or paid by
Secured Party under this Section 7.01 (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.
7.02 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
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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 Section 7.02 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.
7.03 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.
7.04 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 Section 7.04 shall be applicable whether or not a Default or an Event of
Default has occurred and is continuing.
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7.05 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.
7.06 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.
7.07 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, 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.
7.08 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.
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ARTICLE 8 - GENERAL
8.01 REFERENCE TO CREDIT DOCUMENTS
This Agreement is one of the "Credit Documents" referred to in the
Credit Agreement.
8.02 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.
8.03 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.
8.04 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 Credit 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.
8.05 ENTIRE AGREEMENT
This Agreement has been entered into pursuant to the provisions of the
Credit 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 Credit 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
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Debtor with respect to the subject matter hereof except as expressly set forth
herein or in the Credit Agreement.
8.06 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.
8.07 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.
8.08 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.
8.09 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.
8.10 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.
-14-
8.11 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.
8.12 ENTIRETY
This Agreement and the other Credit 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 Credit 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.
8.13 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.
8.14 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 Secured Party and Debtor. 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 COPY TO:
E-LOAN Auto Fund One, LLC E-LOAN, Inc.
0000 Xxxxxx Xxxx 0000 Xxxxxx Xxxx
Xxxxxx, XX 00000 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.
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AS TO SECURED PARTY: WITH COPY TO:
Xxxxxxx Xxxxx Bank USA Xxxxxxx Xxxxx Bank USA
000 Xxxxxxxx Xxxx Xxxx 00 X. Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 Xxxx Xxxx Xxxx, XX 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telefax: (000) 000-0000 Telefax: (000) 000-0000
Attn: Xxxxx Xxxxxxx Attn: Xxxx Xxxxxxxx
8.15 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 for the benefit of the Lender and
each Hedge Counterparty. 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.
8.16 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 Credit Documents or for the
purpose of establishing compliance with the representations, warranties and
covenants herein contained and contained in the other Credit Documents and the
rights, powers and remedies herein and therein granted.
8.17 POWER OF ATTORNEY
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.
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8.18 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.
8.19 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.
8.20 GOVERNING LAW
THIS AGREEMENT AND ALL OTHER CREDIT 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.
8.21 MULTIPLE COUNTERPARTS
This Agreement may be executed in a number of identical counterparts,
each of which when executed 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.
8.22 SUBMISSION TO JURISDICTION; WAIVERS
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS ITSELF AND ITS PROPERTY TO THE NON-EXCLUSIVE GENERAL
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE
UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK OR ANY OTHER
FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK AND
APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY ACTION OR PROCEEDING RELATING TO THE TRANSACTIONS
CONTEMPLATED BY OR ARISING FROM, OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT IN RESPECT OF, THE CREDIT DOCUMENTS MAY BE BROUGHT IN SUCH COURTS;
(c) WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE
OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM
THE SAME;
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(d) AGREES THAT ANY SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET
FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH EACH OF THE OTHER PARTIES HERETO
SHALL HAVE BEEN NOTIFIED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS
AGREEMENT; PROVIDED THAT FOR THE AVOIDANCE OF DOUBT, EACH PARTY AGREES THAT ANY
SERVICE OF PROCESS ON THE DEBTOR SHALL BE SENT TO THE ADDRESS SET FORTH IN
SECTION 4 OF ITS LIMITED LIABILITY COMPANY AGREEMENT; AND
(e) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE
OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO XXX
IN ANY OTHER JURISDICTION.
8.23 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
CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR ARISING
HEREUNDER OF THEREUNDER.
[Signature page follows.]
IN WITNESS WHEREOF the parties have duly executed this Agreement as of
the date first written above.
E-LOAN AUTO FUND ONE, LLC, as Debtor
By:
--------------------------------------
Name:
Title:
XXXXXXX XXXXX BANK USA, as Secured Party
By:
--------------------------------------
Name:
Title:
SCHEDULE A
E-LOAN AUTO FUND ONE, LLC 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]
[5875 Xxxxxx Road]
[Dublin, CA 94568]
C. Location of OTHER COLLATERAL:
----------------
WHILE HELD IN TRUST BY DEBTOR
3563 - 000 Xxxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
UPON DELIVERY TO THE CUSTODIAN
------------------------------
[4315 Xxxxxxx Road]
[St. Xxxxxx, XX 00000]
