EXHIBIT 10.21
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ADMINISTRATION AGREEMENT
between
E-LOAN AUTO FUND ONE, LLC
and
E-LOAN, INC.,
as Administrator
Dated as of June 1, 2002
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THIS ADMINISTRATION AGREEMENT (this "AGREEMENT") dated as of June 1,
2002, is between E-LOAN AUTO FUND ONE, LLC, a Delaware limited liability company
("SPE"), and E-LOAN, INC., a Delaware corporation (the "ADMINISTRATOR").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned such terms in SCHEDULE A to the Credit Agreement dated as of
June 1, 2002 (the "CREDIT AGREEMENT") by and among the Administrator, SPE, as
the borrower, and Xxxxxxx Xxxxx Bank USA, as the lender (the "Lender").
W I T N E S S E T H :
WHEREAS, SPE has entered into the Credit Agreement with the Lender
pursuant to which the Lender will make Advances to SPE;
WHEREAS, pursuant to the Credit Agreement, the Contribution and Sale
Agreement and the other Credit Documents to which SPE is a party (collectively,
the "SPE DOCUMENTS"), SPE is required to perform certain duties;
WHEREAS, SPE desires to have the Administrator perform certain of the
duties of SPE, and to provide such additional services consistent with this
Agreement and the SPE Documents as SPE may from time to time request;
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for SPE on the terms set
forth herein;
NOW, THEREFORE, in consideration of the mutual terms and covenants
contained herein, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. DUTIES OF THE ADMINISTRATOR.
(a) DUTIES WITH RESPECT TO THE SPE DOCUMENTS. The Administrator
shall perform all of its duties as Administrator under this Agreement
and the duties and obligations of SPE under the SPE Documents;
PROVIDED, HOWEVER, except as otherwise provided in the SPE Documents,
that the Administrator shall have no obligation to make any payment
from its own funds that is required to be made by SPE under any SPE
Document. In addition, the Administrator shall consult with SPE
regarding its duties and obligations under the SPE Documents. The
Administrator shall monitor the performance of SPE and shall advise SPE
when action is necessary to comply with SPE's duties and obligations
under the SPE Documents. The Administrator shall prepare for execution
by SPE or shall cause the preparation by other appropriate persons of
all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of SPE to prepare, file or deliver
pursuant to the SPE Documents. In furtherance of the foregoing, the
Administrator shall take all appropriate action that is the duty of SPE
to take pursuant to the SPE Documents.
(b) DUTIES WITH RESPECT TO SPE.
(i) In addition to the duties of the Administrator set forth
above, the Administrator shall perform such calculations, and shall
prepare for execution by SPE or shall cause the preparation by other
appropriate persons of all such documents, reports, filings,
instruments, certificates and opinions, as it shall be the duty of SPE
to perform, prepare, file or deliver pursuant to the SPE Documents, and
at the request of SPE shall take all appropriate action that it is the
duty of SPE to take pursuant to the SPE Documents.
(ii) The Administrator hereby agrees to prepare and execute on
behalf of SPE all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of SPE to prepare,
file or deliver pursuant to the SPE Documents or otherwise by law.
Without limiting the foregoing, the Administrator agrees to prepare the
Monthly Servicer Report with respect to each Payment Date.
(c) DUTIES WITH RESPECT TO CREDIT DOCUMENTS. The Administrator shall
perform all of the duties of the Administrator under the Credit Documents.
Notwithstanding anything to the contrary in the Agreement, the Administrator
shall not be obligated to, and shall not, take any action that SPE directs the
Administrator not to take nor which would result in a violation or breach of
SPE's covenants, agreements or obligations under any of the SPE Documents.
2. RECORDS. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by SPE and the Lender at
any time during normal business hours.
3. COMPENSATION; PAYMENT OF FEES AND EXPENSES. As compensation for the
performance of the Administrator's obligations under this Agreement and as
reimbursement for its expenses related thereto, the Administrator shall be
entitled to receive the Administration Fee on each Payment Date in accordance
with the Credit Agreement. The Administrator shall pay all expenses incurred by
it in connection with its activities hereunder.
4. INDEPENDENCE OF THE ADMINISTRATOR. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of SPE with respect to the manner in which it
accomplishes the performance of its obligations hereunder. Unless expressly
authorized by SPE, the Administrator shall have no authority to act for or to
represent SPE in any way (other than as permitted hereunder) and shall not
otherwise be deemed an agent of SPE.
5. NO JOINT VENTURE. Nothing contained in this Agreement (i) shall
constitute the Administrator and SPE as members of any partnership, joint
venture, association, syndicate, unincorporated business or other separate
entity, (ii) shall be construed to impose any liability as such on any of them
or (iii) shall be deemed to confer on any of them any express, implied or
apparent authority to incur any obligation or liability on behalf of the others.
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6. OTHER ACTIVITIES OF THE ADMINISTRATOR. Nothing herein shall prevent
the Administrator or its Affiliates from engaging in other businesses or, in its
sole discretion, from acting in a similar capacity as an administrator for any
other Person even though such Person may engage in business activities similar
to those of SPE or the Lender.
7. REPRESENTATIONS AND WARRANTIES OF THE ADMINISTRATOR. The
Administrator represents and warrants to SPE and the Lender as follows:
(a) ORGANIZATION AND POWER. The Administrator is a corporation
duly organized, validly existing and in good standing under the laws of
the State of Delaware and has full power, authority and legal right to
carry on its business as now conducted and to enter into and perform
its obligations hereunder and under each of the other Credit Documents
to which it is a party. The Administrator is qualified to do business
and in good standing in every other jurisdiction where the failure to
do so would have a material adverse effect.
(b) AUTHORIZATION, EXECUTION AND VALIDITY. The Administrator has
duly authorized, executed and delivered this Agreement and (assuming
the due authorization, execution and delivery by each other party
hereto) this Agreement constitutes the legal, valid and binding
obligations of the Administrator, enforceable against the Administrator
in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors', mortgagees' or lessors' rights
in general and by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(c) LITIGATION. There are no actions, suits or proceedings pending
or, to the knowledge of the Administrator, threatened against the
Administrator, before any Governmental Authority which individually or
in the aggregate would impair the ability of the Administrator to
perform its obligations under this Agreement or which question the
validity of this Agreement or any action taken or to be taken pursuant
hereto. The Administrator is not in default with respect to any order
of any Governmental Authority, the default under which would adversely
affect the ability of the Administrator to perform its obligations
under this Agreement.
(d) CONSENTS. No consent, approval or authorization of, or filing,
registration or qualification with, or giving of notice or taking of
any other action with respect to, any Governmental Authority is
required in connection with the execution, delivery and performance by
the Administrator of this Agreement or the performance by the
Administrator of the transactions contemplated hereby, other than any
such consent, approval, authorization, filing, registration,
qualification, notice or action as has been duly obtained, given or
taken and is in full force and effect.
8. CORPORATE EXISTENCE; STATUS; MERGER. The Administrator will obtain
and preserve its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of, or to permit the Administrator to perform its
obligations under, this Agreement.
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9. ADMINISTRATOR TERMINATION EVENTS; TERMINATION OF THE ADMINISTRATOR.
(a) Subject to SECTION 9(B), this Agreement shall continue in
force until the dissolution of SPE, upon which event this Agreement
shall automatically terminate.
(b) The occurrence of any one of the following events (each, an
"ADMINISTRATOR TERMINATION EVENt") shall also entitle SPE, subject to
SECTION 20 hereof, to terminate and replace the Administrator:
(i) the Administrator shall have created, either directly or
indirectly, or allowed to suffer to exist, any Encumbrance
attributable to it on the Collateral, other than Permitted
Encumbrances; or
(ii) a material default in the observance or performance of
any covenant or agreement or obligation of the Administrator, or
any representation or warranty proves to have been incorrect in
any material respect as of the time made or deemed to have been
repeated, and within 30 days the circumstance or condition in
respect of which such covenant, agreement, representation or
warranty was incorrect shall not have been eliminated or otherwise
cured.
(c) If an Administrator Termination Event shall have occurred, SPE
may, subject to SECTION 20 hereof, by notice given to the
Administrator, terminate all or a portion of the rights and powers of
the Administrator under this Agreement, including the rights of the
Administrator to receive the Administration Fee for all periods
following such termination; PROVIDED, HOWEVER, that such termination
shall not become effective until such time as SPE, subject to SECTION
20 hereof, shall have appointed a successor Administrator in the manner
set forth below. Upon any such termination, all rights, powers, duties
and responsibilities of the Administrator under this Agreement shall
vest in and be assumed by any successor Administrator appointed by SPE,
subject to SECTION 20 hereof, pursuant to a management agreement
between SPE and such successor Administrator, containing substantially
the same provisions as this Agreement (including with respect to the
compensation of such successor Administrator), and the successor
Administrator is hereby irrevocably authorized and empowered to execute
and deliver, on behalf of the Administrator, as attorney-in-fact or
otherwise, all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect such
vesting and assumption. Further, in such event, the Administrator shall
use its commercially reasonable efforts to effect the orderly and
efficient transfer of the administration of SPE to the new SPE
Administrator.
(d) SPE, subject to SECTION 20 hereof, may waive in writing any
Administrator Termination Event by the Administrator in the performance
of its obligations hereunder and its consequences. Upon any such waiver
of a past Administrator Termination Event, such Administrator
Termination Event shall cease to exist, and any Administrator
Termination Event arising therefrom shall be deemed to have been
remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other Administrator Termination Event or
impair any right consequent thereon.
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10. ACTION UPON TERMINATION OR REMOVAL. Promptly upon the effective
date of termination of this Agreement pursuant to SECTION 9, or the removal of
the Administrator pursuant to SECTION 9, the Administrator shall be entitled to
be paid, in accordance with the Credit Agreement, all fees and reimbursable
expenses accruing to it to the date of such termination or removal; provided,
however, that any such amounts payable to the Administrator shall be net of any
damages, losses, liabilities (including liabilities for penalties), actions,
suits, judgments, demands, costs and expenses (including, without limitation,
interest or reasonable attorneys' fees and expenses) incurred by SPE, the Lender
or any Hedge Counterparty resulting from the gross negligence or willful
misconduct of the Administrator in performing (or failing to perform) its
obligations under this Agreement.
11. ENCUMBRANCES. The Administrator will not directly or indirectly
create, allow or suffer to exist any Encumbrance on the Collateral other than
Permitted Encumbrances.
12. NOTICES. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Administrator, to:
E-LOAN, Inc.
0000 Xxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxx Xxxxxx, Treasurer
Facsimile: (000) 000-0000
Confirmation No.: (000) 000-0000
(b) if to SPE, to:
E-LOAN Auto Fund One, LLC
0000 Xxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, President
Facsimile: (000) 000-0000
Confirmation No.: (000) 000-0000
or to such other address as any party shall have provided to the other parties
in writing; PROVIDED that any notice provided by any party hereunder shall also
be provided to the Lender at the address provided in SECTION 12.10 of the Credit
Agreement. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid or hand-delivered to
the address of such party as provided above.
13. AMENDMENTS. This Agreement may be amended in any respect from time
to time by the parties hereto with the consent of the Lender.
14. GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
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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.
(b) EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION
OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF
MANHATTAN AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ANY OTHER CREDIT DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY
JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR,
TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE
PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED
BY LAW. NOTHING IN THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT SHALL
AFFECT ANY RIGHT THAT THE ADMINISTRATOR OR THE LENDER MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER CREDIT DOCUMENT AGAINST SPE OR THE ADMINISTRATOR OR ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION. EACH PARTY HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY
LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT IN ANY COURT REFERRED TO IN THIS SECTION 14(B). EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT. EACH PARTY
TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE
MANNER PROVIDED FOR NOTICES IN SECTION 12. NOTHING IN THIS AGREEMENT
SHALL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW. TO THE EXTENT THAT ANY PARTY TO
THIS AGREEMENT HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH
SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, EACH
PARTY TO THIS AGREEMENT HEREBY
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IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER
THIS AGREEMENT AND UNDER ANY OTHER CREDIT DOCUMENT.
15. HEADINGS. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
16. COUNTERPARTS. This Agreement may be executed in counterparts, all
of which when so executed shall together constitute but one and the same
agreement.
17. SEVERABILITY. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
18. NOT APPLICABLE TO E-LOAN, INC. IN OTHER CAPACITIES. Nothing in this
Agreement shall affect any obligation E-LOAN, Inc. may have in any other
capacity.
19. THIRD PARTY BENEFICIARY. Any assignee or pledgee of SPE's interest
in this Agreement (including without limitation the Lender) is an express third
party beneficiary of the obligations of the Administrator hereunder and may
directly enforce the performance by the Administrator of such obligations.
20. ASSIGNMENT. Each party hereto hereby acknowledges and consents to
the mortgage, pledge, assignment and grant of a security interest by SPE to the
Lender pursuant to the Auto Fund Security Agreement for the benefit of the
Lender of all of SPE's rights under this Agreement. In addition, the
Administrator hereby acknowledges and agrees that for so long as any Obligations
are outstanding, the Lender will have the right to exercise all rights,
remedies, powers, privileges and claims of SPE under this Agreement.
21. NO PETITION. The Administrator hereby covenants and agrees that it
will not at any time institute against SPE, or solicit or join in or cooperate
with or encourage any institution against SPE, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States Federal or State bankruptcy or similar law.
22. PERFECTION. In the event that the assignment of a Receivable to SPE
is insufficient, without a notation on the related Financed Vehicle's
Certificate of Title, or without fulfilling any additional administrative
requirements under the laws of the State in which the related Financed Vehicle
is located, to perfect a security interest in such Financed Vehicle in favor of
SPE, the Administrator hereby agrees that it holds its designation as the
secured party on such Certificate of Title as agent of SPE.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
E-LOAN AUTO FUND ONE, LLC
By: ______________________________________
Name:
Title:
E-LOAN, INC.
By: ______________________________________
Name:
Title:
PAGE
1. Duties of the Administrator................................................1
2. Records....................................................................2
3. Compensation; Payment of Fees and Expenses.................................2
4. Independence of the Administrator..........................................2
5. No Joint Venture...........................................................2
6. Other Activities of the Administrator......................................3
7. Representations and Warranties of the Administrator........................3
8. Corporate Existence; Status; Merger........................................3
9. Administrator Termination Events; Termination of the Administrator.........4
10. Action upon Termination or Removal.........................................5
11. Encumbrances...............................................................5
12. Notices....................................................................5
13. Amendments.................................................................5
14. Governing Law; Submission to Jurisdiction..................................5
15. Headings...................................................................7
16. Counterparts...............................................................7
17. Severability...............................................................7
18. Not Applicable to E-Loan, Inc. in Other Capacities.........................7
19. Third Party Beneficiary....................................................7
20. Assignment.................................................................7
21. No Petition................................................................7
22. Perfection.................................................................7
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