Unassociated Document



EXHIBIT
10.1











 

PURCHASE
AND SALE AGREEMENT

 

between

 

E-LOAN
AUTO FUND ONE, LLC,

 

as
Seller

 

and

 

MERRILL
LYNCH BANK USA,

 

as
Purchaser

 

Dated as
of March 30, 2005

 

































TABLE OF
CONTENTS





	 	
      Page

	
      ARTICLE
      ONE

	
      DEFINITIONS

	 	 
	
      Section
      1.01. Definitions
	
      1

	
      Section
      1.02. Usage of Terms
	
      9

	
      Section
      1.03. Calculations
	
      9

	 	 
	
      ARTICLE
      TWO

	
      CONVEYANCE
      OF CONTRACTS

	 	 
	
      Section
      2.01. Conveyance of Contracts.
	
      10

	
      Section
      2.02. Closing Date
	
      11

	
      Section
      2.03. Termination of Credit Documents
	
      12

	 	 
	
      ARTICLE
      THREE

	
      THE
      CONTRACTS

	 	 
	
      Section
      3.01. Representations and Warranties of the Seller
	
      13

	
      Section
      3.02. Repurchase of Certain Contracts.
	
      19

	
      Section
      3.03. Collecting Title Documents Not Delivered at the Closing
      Date
	
      20

	
      Section
      3.04. Collecting Original PowerCheck®
	
      20

	
      Section
      3.05. Contract Information
	
      20

	
      Section
      3.06. Access to Certain Documentation and Information Regarding
      Contracts
	
      20

	 	 
	
      ARTICLE
      FOUR

	
      THE
      SELLER

	 	 
	
      Section
      4.01. Limited Liability Company Existence
	
      21

	
      Section
      4.02. Liability of Seller; Indemnities
	
      21

	
      Section
      4.03. Merger or Consolidation of, or Assumption of the Obligations of, the
      Seller; Certain Limitations
	
      23

	
      Section
      4.04. Limitation on Liability of Seller and Others
	
      23

	
      Section
      4.05. Performance of Obligations
	
      23

	
      Section
      4.06. Delivery of Contract Documents
	
      23

	
      Section
      4.07. New Credit Facility
	
      23




 

 







i












 


	 	 
	
      ARTICLE
      FIVE

	
      MISCELLANEOUS

	 	 
	
      Section
      5.01. Termination
	
      24

	
      Section
      5.02. Amendment
	
      24

	
      Section
      5.03. Protection of Title to Contracts.
	
      24

	
      Section
      5.04. Governing Law
	
      25

	
      Section
      5.05. Notices
	
      26

	
      Section
      5.06. Severability of Provisions
	
      26

	
      Section
      5.07. Assignment.
	
      27

	
      Section
      5.08. Third Party Beneficiaries
	
      27

	
      Section
      5.09. Counterparts
	
      27

	
      Section
      5.10. Headings
	
      27

	
      Section
      5.11. Confidentiality
	
      27

	
      Section
      5.12. Use of Name.
	
      28

	
      Section
      5.13. Expenses
	
      28

	
      Section
      5.14. Securitization or other Disposition of Contracts.
	
      28

	
      Section
      5.15. Separate Counterparts
	
      29

	
      Section
      5.16. No Petition Covenant
	
      29

	
      Section
      5.17. Portfolio Performance Reporting
	
      29

	
      Section
      5.18. Survival
	
      29

	 	 
	
      SCHEDULES

	
      *Schedule
      I - Schedule of Contracts
	
      SI-1

	
      *Schedule
      II - Purchase Price
	
      SII-1

	
      *Schedule
      III - Location of Contract Files
	
      SIII-1

	
      *Schedule
      IV - Form of Limited Guaranty
	
      SIV-1

	
      *Schedule
      V - Form of Sale and Assignment
	
      SV-1

	 	 
	
      EXHIBITS

	
      *Exhibit
      A - Notice of Repurchased Contract
	
      A-1

	
      *Exhibit
      B - E-Fund Agreement
	
      B-1

	 	 





*Exhibits
and schedules have been omitted in accordance with Item 601(b)(2) of Regulation
S-K. Copies of such omitted exhibits and schedules will be provided to the
Commission upon request.

















ii

















PURCHASE
AND SALE AGREEMENT

 

This
PURCHASE AND SALE AGREEMENT, dated as of March 30, 2005, is between Merrill
Lynch Bank USA, an industrial bank organized under the laws of Utah, as
purchaser (the “Purchaser”), and, E-LOAN AUTO FUND ONE, LLC, a Delaware limited
liability company, as seller (the “Seller”).

 

WHEREAS,
in the regular course of its business Seller purchases contracts evidencing
direct loans to consumers for the purchase or refinancing of certain new or
pre-owned motor vehicles from E-Loan, Inc.; and

 

WHEREAS,
the Seller is willing to sell such contracts to the Purchaser, and the Purchaser
is willing to buy such contracts from the Seller, pursuant to the terms
hereof.

 

NOW,
THEREFORE, in consideration of the premises and the mutual covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:

 

ARTICLE
ONE

 

DEFINITIONS

 

Section
1.01.   Definitions. Except
as otherwise specified herein or as the context may otherwise require, the
following terms have the respective meanings set forth below for all purposes of
this Agreement.

 

“Acknowledgement
of Custodian” means
an Acknowledgement of Custodian substantially in the form of Exhibit B to
the Servicing and Custodian Agreement.

 

“Administration
Agreement” means
the Administration Agreement, dated as of June 1, 2002, between E-Loan Auto Fund
One, LLC, as borrower, and E-Loan, Inc., as administrator, as
amended.

 

“Administrator” means
E-Loan, Inc., in its capacity as administrator under the Servicing and Custodian
Agreement.

 

“Affiliate” of any
specified Person means any other Person controlling or controlled by or under
common control with such specified Person. For the purposes of this definition,
“control” when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms “controlling” or “controlled” have meanings correlative to the
foregoing.

 

“Agreement” means
this Purchase and Sale Agreement, as amended, restated or otherwise modified
from time to time.

 

“Amount
Financed” means,
with respect to any Contract, the aggregate principal amount of credit extended
to the related Obligor in connection with the purchase (or financing or
refinancing of the purchase) of the related Financed Vehicle including, without
limitation, any taxes, insurance and related costs financed in connection
therewith, as set out in the Contract Documents.

 







1












 

“APR” of a
Contract means annual percentage rate and is the annual rate of finance charges
specified in such Contract.

 

“Auto
Fund Security Agreement” means
the Security Agreement, dated as of June 1, 2002, between E-Loan Auto Fund One,
LLC, as borrower, and Merrill Lynch Bank, as lender, as amended.

 

“Basic
Documents” means
this Agreement, the Servicing and Custodian Agreement, the Limited Guaranty and
the Sale and Assignment.

 

“Business
Day” means
any day that is not a Saturday, Sunday or other day on which banking
institutions in Oakland, California or New York, New York are authorized or
obligated by law, executive order or government decree to remain
closed.

 

“Capital
Stock” means
any and all shares, interests, participations or other equivalents (however
designated) of capital stock of a corporation, any and all equivalent ownership
interests in a Person (other than a corporation) including partnership interests
and membership interests, and any and all warrants, rights or options to
purchase or other arrangements or rights to acquire any of the
foregoing.

 

“Change
of Control” means,
at any time, (i) any “person” or “group” (within the meaning of Rules 13d-3
and 13d-5 under the Exchange Act) shall have (a) acquired beneficial
ownership of 51% or more on a fully diluted basis of the voting or economic
interest in the Capital Stock of the Seller or (b) obtained the power
(whether or not exercised) to elect a majority of the members of the board of
directors (or similar governing body) of the Seller or (ii) the majority of
the seats (other than vacant seats) on the board of directors (or similar
governing body) of the Seller cease to be occupied by individuals who either
were (a) members of the board of directors of the Seller on the Closing
Date or (b) nominated for election by the board of directors of the Seller,
a majority of whom were directors on the Closing Date or whose election or
nomination for election was previously approved by a majority of such
directors.

 

“Closing
Date” means
March 30, 2005, or such other date as the Seller and the Purchaser may
agree.

 

“Collection
Account” means
account number 62030 at Merrill Lynch Bank (ABA 124084669, FBO: MLBUSA, Credit
Globus Account 020 000 1124, Ref: ELOAN P&I PAYMENTS) or such other account
as the Purchaser shall from time to time give written notice of to the Seller
and the Servicer.

 

“Collection
Period” means,
with respect to any Servicer Report Date, the period commencing on the first day
of the month preceding the month in which such Servicer Report Date
occurs.

 

“Commission” means
the Securities and Exchange Commission.

 







2












 

“Contract” means
each direct loan evidenced by a note and security agreement or installment loan
agreement and security agreement (including each E-Fund Agreement, or
PowerCheck® and Note and Security Agreement) and each other agreement delivered
in connection therewith or pursuant thereto, acquired by the Seller and
transferred by the Seller to the Purchaser hereunder as listed on the Schedule
of Contracts, which note and security agreement or installment loan agreement
and security agreement has been executed by an Obligor and pursuant to which
such Obligor purchased, financed, refinanced or pledged the Financed Vehicle
described therein, agreed to pay the deferred purchase price (i.e., the
purchase price net of any down payment) or amount borrowed, together with
interest, as therein provided in connection with such purchase or refinance
loan, granted a security interest in such Financed Vehicle and undertook to
perform certain other obligations specified in such Contract and which has been
conveyed to the Purchaser pursuant to this Agreement.

 

“Contract
Documents” means,
collectively, the following documents or instruments:

 

(a)  with
respect to a Contract for the purchase (including, for greater certainty, a
person-to-person purchase) of a Financed Vehicle by the related Obligor,
collectively, the following documents or instruments:

 

1.  the
original fully executed Contract (including, without limitation, either an
E-Fund Agreement or PowerCheck® together with a Note and Security Agreement),
together with all amendments and other modifications thereto;

 

2.  a true
and complete copy of (i) the credit application of the related Obligor (which
may be a hard copy or in an electronic medium that may be accessed by the
Servicer) and (ii) the bill of sale with respect to Obligors that have a FICO
score under 700;

 

3.  if there
is a co-signer/co-obligor on the Contract, a true and complete copy of the duly
executed notice to co-signer/co-obligor delivered to the co-signer/co-obligor as
required by law, which notice is set forth in the related Note and Security
Agreement;

 

4.  original
fully executed promissory notes and true and complete copies of all letters of
credit, agreements, documents and instruments relating to, evidencing, securing
or guarantying the loan to the related Obligor;

 

5.  within
240 days after the related Funding Date of such Contract, the original
certificate of title (which may be a hard copy or, if authorized by applicable
law, in an electronic medium that may be accessed by the Servicer) for the
related Financed Vehicle, indicating E-Loan, Inc. or the Purchaser as the sole
lienholder or legal owner thereof; and

 

6.  any and
all other documents (including, without limitation, all documents required to be
provided by Obligors under the PowerCheck® used in connection with
person-to-person purchase transactions) that E-Loan shall keep on file, in
accordance with its customary procedures, relating to the Contracts and the
related Financed Vehicle or the related Obligor.

 







3












 

(b)  with
respect to a Contract for the refinance or lease-buy-out of a Financed Vehicle
by the related Obligor:

 

1.  the
original fully executed Contract (including, without limitation, either an
E-Fund Agreement or PowerCheck® together with a Note and Security Agreement),
together with all amendments and other modifications thereto;

 

2.  a true
and complete copy of (i) the credit application of the related Obligor (which
may be a hard copy or in an electronic medium that may be accessed by the
Servicer) and (ii) the bill of sale with respect to Obligors that have a FICO
score under 700;

 

3.  if there
is a co-signer/co-obligor on the Contract, a true and complete copy of the duly
executed notice to co-signer/co-obligor delivered to the co-signer/co-obligor as
required by law, which notice is set forth in the related Note and Security
Agreement;

 

4.  original
fully executed promissory notes and true and complete copies of all letters of
credit, agreements, documents and instruments relating to, evidencing, securing
or guarantying the loan to the related Obligor;

 

5.  within
240 days after the related Funding Date of such Contract, the original
certificate of title (which may be a hard copy or, if authorized by applicable
law, in an electronic medium that may be accessed by the Servicer) for the
related Financed Vehicle, indicating E-Loan, Inc. or the Purchaser as the sole
lienholder or legal owner thereof; and

 

6.  any and
all other documents that the E-Loan shall keep on file, in accordance with its
customary procedures, relating to the contract, the related Obligor or the
related Financed Vehicle, including, without limitation, any record, in a format
acceptable to the Purchaser (e.g., compact disc), of each draft executed by a
prior lender/lienholder setting forth the acknowledgment by such
lender/lienholder of the release of its lien.

 

 “Contract
Files” means
the Contract Documents and all other papers, documents and computerized records
customarily kept by E-Loan, Inc. or the Custodian on behalf of E-Loan, Inc. in
relation to contracts and loans comparable to the Contracts.

 

 “Contract
Number” means,
with respect to any Contract, the number assigned to such Contract by E-Loan,
which number is set forth in the related Schedule of Contracts.

 

 “Contribution
and Sale Agreement” means
the Contribution and Sale Agreement, dated as of June 1, 2002, between E-Loan
Auto Fund One, LLC, as purchaser, and E-Loan, Inc., as seller, as
amended.

 

 “Conveyed
Assets” has the
meaning set forth in Section 2.01.

 







4












 

“Credit
Agreement” means
the Credit Agreement, dated as of June 1, 2002, among E-Loan Auto Fund One, LLC,
as borrower, E-Loan, Inc., as seller and Merrill Lynch Bank, as lender, as
amended.

 

“Credit
Documents” means
the Credit Agreement, the Contribution and Sale Agreement, the Servicing
Agreement, the Auto Fund Security Agreement, the Note, each Hedge Agreement, the
Securities Account Control Agreement, the Administration Agreement, any
supplements to or confirmations under any such agreement and other documents and
certificates delivered in connection therewith.

 

“Custodian” means
SST, in its capacity as Custodian under the Servicing and Custodian Agreement,
and its successors in such capacity.

 

“Cut-Off
Date” means
March 8, 2005.

 

“Due
Date” means,
with respect to any Contract, the date upon which a Monthly Payment is
due.

 

“E-Fund
Agreement” means
an E-Fund Agreement in substantially the form attached hereto as Exhibit B.


 

“Exchange
Act” means
the Securities Exchange Act of 1934.

 

“FICO” means
statistical credit scores based on methodology developed by Fair,
Isaac & Company, and which are obtained by lenders in connection with
loan applications to help assess a borrower’s creditworthiness.

 

“Financed
Vehicle” means,
as to any Contract, a new or pre-owned motorcycle, passenger automobile, sport
utility vehicle, light-duty truck, van or minivan, together with all accessions
thereto, securing the related Obligor’s indebtedness under such
Contract.

 

“Funding
Date” means,
with respect to each Contract, the date of origination of the
Contract.

 

“Guarantor” means
E-Loan, Inc., in its capacity as guarantor under the Limited
Guaranty.

 

“Hedge
Agreement” means
an interest rate swap agreement or cap agreement between a Hedge Counterparty
and E-Loan Auto Fund One, LLC.

 

“Hedge
Counterparty” means
an interest rate swap or cap provider.

 

“Insolvency
Event” means,
with respect to a specified Person, (i) the entry of a decree or order for
relief by a court or regulatory authority having jurisdiction in respect of such
Person in an involuntary case under the federal bankruptcy laws, as now or
hereafter in effect, or any other present or future, federal or State,
bankruptcy, insolvency or similar law, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator or other similar official for such
Person or for any substantial part of its property, or ordering the winding-up
or liquidation of such Person’s affairs, and the continuance of any such decree
or order unstayed and in effect for a period of 60 consecutive days,
(ii) the commencement of an involuntary case under the federal bankruptcy
laws, as now or hereinafter in effect, or any other present or future federal or
State bankruptcy, insolvency or similar law and such case is not dismissed
within 60 days or (iii) the commencement by such Person of a voluntary case
under the federal bankruptcy laws, as now or hereinafter in effect, or any other
present or future federal or State, bankruptcy, insolvency or similar law, or
the consent by such Person to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or other
similar official for such Person or for any substantial part of its property, or
the making by such Person of an assignment for the benefit of creditors or the
failure by such Person generally to pay its debts as such debts become due or
the taking of corporate action by such Person in furtherance of any the
foregoing.

 







5












 

“Insurance
Proceeds” means
proceeds paid pursuant to any comprehensive and collision insurance policy and
amounts (exclusive of any rebated insurance premiums) paid by any insurer under
any other insurance policy related to a Financed Vehicle, a Contract or an
Obligor.

 

“Lender” means
Merrill Lynch Bank USA.

 

“Lien” means,
with respect to any Contract, Financed Vehicle or other property, a security
interest, lien, charge, pledge, equity or encumbrance of any kind.

 

“Limited
Guaranty” means
the form of guaranty set forth on Schedule IV.

 

“Maturity
Date” means,
with respect to any Contract, the Due Date on which the last scheduled payment
of such Contract shall be due and payable.

 

“Merrill
Lynch Bank” means
Merrill Lynch Bank USA.

 

“Monthly
Payment” means,
with respect to any Contract, the amount of each monthly payment of principal
and interest payable to the related Obligee in accordance with the terms thereof
on the Due Date specified therein.

 

“Monthly
Servicer Report” has the
meaning set forth in the Servicing and Custodian Agreement.

 

“Note” means
the revolving credit note issued by E-Loan Auto Fund One, LLC to the Lender
pursuant to the Credit Agreement.

 

“Note
and Security Agreement” means a
Note and Security Agreement originated by the Seller to an Obligor for the
refinancing or purchase of a vehicle.

 

“Notice
of Repurchased Contract” means a
Notice of Repurchased Contract substantially in the form of Exhibit A
hereto.

 

“Obligee” means
the Person to whom an Obligor is indebted under a Contract.

 

“Obligor” means
the consumer and any other Person who owes payments under the Contract in
respect of the purchase or refinancing of a Financed Vehicle.

 







6












 

“Officers’
Certificate” means a
certificate signed by the chairman, the president or a vice president, and by
the treasurer, an assistant treasurer, the controller, an assistant controller,
the secretary or an assistant secretary of any Person delivering such
certificate and delivered to the Person to whom such certificate is required to
be delivered.

 

“Person” means a
legal person, including any individual, corporation, estate, partnership, joint
venture, association, limited liability company, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.

 

“PowerCheck®” means
the Seller’s proprietary form of draft originated by the Seller to an Obligor
for the purchase (including purchases from a vehicle dealer or in
person-to-person transactions, and lease buy-out transactions) or refinancing of
a vehicle or a “substitute check” equivalent thereof within the meaning of the
Check Clearing for the 21st Century
Act, 12 U.S.C. 5001, Pub. L. No. 108-100, 117 Stat. 1177 Oct. 28,
2003), either of which shall be deemed to be an “original Power
Check®” as that
term is used in this Agreement.

 

“Principal
Balance” means
the actual outstanding principal balance of a Contract under the terms
thereof.

 

“Purchase
Price” means
$666,802,685.83.

 

“Purchaser” means
Merrill Lynch Bank.

 

“Purchaser
Indemnified Parties” shall
have the meaning set forth in Section 4.02(c).

 

“Refinanced
Contract” means a
Contract for the refinance of a Financed Vehicle by the related
Obligor.

 

“Representatives” means,
with respect to the Seller, the servicer, the Custodian or the Purchaser, each
of their respective directors, officers, employees, agents, counsel, auditors
and other representatives.

 

“Repurchase
Amount” means,
with respect to any Repurchased Contract, the Principal Balance of such Contract
as of the date of such repurchase multiplied by 100.50% plus accrued interest at
the related APR through the date of such repurchase.

 

“Repurchased
Contract” means a
Contract repurchased by the Seller pursuant to Section 3.02, 3.03 or
3.04.

 

“SST” means
System & Services Technologies, Inc. and its successors and
permitted assigns.

 

“Sale
and Assignment” means
an assignment of the Conveyed Assets by the Seller to the Purchaser, dated as of
the Closing Date, in substantially the form of Schedule V hereto.

 

“Schedule
of Contracts” means a
schedule identifying the Contracts attached as Exhibit A to the Sale and
Assignment (which list may be in electronic file, microfiche, disk or other
means acceptable to the Purchaser) which Contracts had an aggregate principal
balance as of the Cut-Off Date of $651,376,085.53.

 







7












 

“Securities
Account Control Agreement” means
the Securities Account Control Agreement, dated as of June 1, 2002, among
E-Loan Auto Fund One, LLC, Merrill Lynch Bank and Bank One, NA, as securities
intermediary.

 

“Securitization” means
any (i) financing transaction undertaken by the Purchaser or a Special
Purpose Affiliate that is secured, directly or indirectly, by all or a portion
of the Contracts and any financing undertaken in connection with the issuance,
pledge or assignment of all or a portion of the Contracts or the Purchaser’s or
a Special Purpose Affiliate’s interest therein, as the case may be,
(ii) sale or other transfer by the Purchaser or a Special Purpose Affiliate
in all or a portion of the Contracts or (iii) other asset securitization,
secured loan, financing or similar transaction involving all or a portion of the
Contracts, including any sale to or otherwise involving any
conduit.

 

“Seller” means
E-Loan Auto Fund One, LLC in its capacity as the Seller of Conveyed Assets under
this Agreement, and each successor thereto (in the same capacity) pursuant to
Section 4.02.

 

“Seller
Indemnified Claim” shall
have the meaning set forth in Section 4.02(b).

 

“Seller
Indemnified Party” shall
have the meaning set forth in Section 4.02(a).

 

“Servicer” means
SST, in its capacity as servicer under the Servicing and Custodian Agreement,
and its successors in such capacity.

 

“Servicer
Report Date” means
the 10th day of each month, or if that day is not a Business Day, the next
following Business Day.

 

“Servicing
Agreement” means
the Servicing and Custodian Agreement, date as of June 1, 2002, between SST
and E-Loan, Inc., as amended.

 

“Servicing
and Custodian Agreement” means
the Servicing and Custodian Agreement, dated as of July 14, 2004, as
amended by Amendment No. 1 to Servicing and Custodian Agreement, dated as of
March 30, 2005, among SST, as Servicer and as Custodian, E-Loan, Inc., as
Administrator, and Merrill Lynch Bank, as amended, restated or otherwise
modified from time to time.

 

“Servicing
Procedures” means
the Servicing Procedures set forth as Exhibit A to the Servicing and
Custodian Agreement.

 

“Special
Purpose Affiliate” means a
special purpose entity that is an Affiliate of the Purchaser and was created for
the purpose of one or more Securitizations.

 

“State” means
any one of the 50 states of the United States or the District of
Columbia.

 







8












 

“Title
Document” means,
with respect to any Financed Vehicle, the certificate of title for, or other
evidence of ownership of, such Financed Vehicle issued by the registrar of
titles in the jurisdiction in which such Financed Vehicle is
registered.

 

“Title
Schedule” means a
list of Contracts for which Title Documents for the related Financed Vehicles
have not been obtained.

 

“UCC” means
the Uniform Commercial Code as in effect in the applicable
jurisdiction.

 

“United
States” means
the United States of America.

 

Section
1.02.   Usage
of Terms. With
respect to all terms in this Agreement, unless the context otherwise requires:
(i) a term has the meaning assigned to it; (ii) an accounting term not
otherwise defined has the meaning assigned to it in accordance with generally
accepted accounting principles as in effect from time to time in the United
States; (iii) “or” is not exclusive; (iv) “including” means including
without limitation; (v) words in the singular include the plural and words
in the plural include the singular; (vi) any agreement, instrument or
statute defined or referred to herein or in any instrument or certificate
delivered in connection herewith means such agreement, instrument or statute as
from time to time amended, modified or supplemented and includes (in the case of
agreements or instruments) references to all attachments thereto and instruments
incorporated therein; (vii) references to a Person are also to its
successors and permitted assigns; (viii) the words “hereof,” “herein” and
“hereunder” and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement; (ix) Section, subsection, Schedule and Exhibit, as applicable,
references contained in this Agreement are references to Sections, subsections,
Schedules and Exhibits in or to this Agreement unless otherwise specified; and
(x) references to “writing” include printing, typing, lithography and other
means of reproducing words in a visible form.

 

Section
1.03.   Calculations. Except
as otherwise provided herein, all interest rate and basis point calculations
hereunder shall be carried out to at least five decimal places and will be made
on the basis of a 365-day year and the actual number of days elapsed from, and
including, the immediately preceding date through which interest has been
calculated.

 

 







9












 

ARTICLE
TWO



CONVEYANCE
OF CONTRACTS

 


Section
2.01.   Conveyance
of Contracts.

 

(a)  On the
Closing Date, the Purchaser shall purchase from Seller all of the Contracts in
the manner set forth in this Article. In consideration of the Purchaser’s
delivery to the Seller of the Purchase Price, and subject to the terms and
conditions hereof, the Seller hereby sells, grants, transfers, assigns and
otherwise conveys to the Purchaser, without recourse (but subject to the
representations, warranties and other obligations of the Seller herein,
including the obligations under Sections 3.02, 3.03, 3.04 and 4.02) and the
Purchaser hereby agrees to purchase, all of its right, title and interest in, to
and under (collectively, the “Conveyed Assets”):

 

(i)  the
Contracts;

 

(ii)  all
interest, principal and other amounts received thereunder after the Cut-Off
Date;

 

(iii)  all
Insurance Proceeds with respect to any Financed Vehicle to which a Contract
relates that are received after the Cut-Off Date;

 

(iv)  the
Contract Files;

 

(v)  any and
all security interests of the Seller in the Financed Vehicles, and the right to
receive proceeds from claims on certain insurance policies covering the Financed
Vehicles or the related Obligors;

 

(vi)  all
proceeds in any way delivered with respect to the foregoing, all rights to
payments with respect to the foregoing and all rights to enforce the foregoing;
and

 

(vii)  all
present and future claims, demands, causes of action and choses in action in
respect of any or all of the foregoing and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion thereof, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit
accounts, insurance proceeds, condemnation awards, rights to payment of any and
every kind and other forms of obligations and receivables, instruments and other
property that at any time constitute all or part of or are included in the
proceeds of any of the foregoing.

 

(b)  Subject
to satisfaction of the conditions in Section 2.02, on the Closing Date the
Purchaser shall deliver to the Seller the Purchase Price for the Conveyed
Assets. Such payment shall be made in immediately available funds in accordance
with the funding instructions provided by the Seller.

 

(c)  The
Contracts are being sold on a servicing released basis. Purchaser agrees to
retain Servicer to service the Contracts on the Closing Date and for a minimum
of thirty (30) days thereafter. Except for the obligations of the Seller set
forth herein, the Purchaser shall be responsible for the management, servicing,
administration and collection on the Contracts.

 







10












 

(d)  It is the
intention of the Seller and the Purchaser that the sale, transfer and assignment
of Conveyed Assets made pursuant to Section 2.01(a) shall constitute a sale from
the Seller to the Purchaser, conveying good title to the Conveyed Assets free
and clear of Liens, and such property shall not be part of the Seller’s estate
in the event of the filing of a bankruptcy petition by or against the Seller
under any bankruptcy or similar law. However, in the event that any or all of
the Conveyed Assets are held or otherwise determined to be property of the
Seller or not to have been conveyed to the Purchaser in a true and absolute
sale, then the Seller hereby grants, pledges and assigns to the Purchaser a
first priority security interest in all of the Seller’s right, title and
interest in, to and under such property, to secure payment of the obligation
incurred by the Seller in the amount paid by the Purchaser for the Conveyed
Assets and for the payment and performance of all obligations of the Seller
hereunder. The Seller shall file and deliver, prior to the Closing Date,
financing statements on UCC-1 in respect of such security interest, and the
Seller hereby authorizes, on or after the Closing Date, the filing of any
financing statements or continuation statements, and amendments to financing
statements, or any similar document in any jurisdictions and with any filing
offices as the Purchaser may determine, in its sole discretion, are necessary or
advisable to perfect the security interest granted to the Purchaser herein. Such
financing statements shall contain a statement to the following effect: “A
purchase of or security interest in any collateral described in this financing
statement other than by the Purchaser will violate the rights of the Purchaser”
and may describe the Conveyed Assets in the same manner as described herein or
may contain an indication or description of collateral that describes such
property as necessary, advisable or prudent to ensure the perfection of the
security interest in the Conveyed Assets granted to the Purchaser
herein.

 

(e)  The
Seller has determined that the Seller’s disposition of the Contracts pursuant to
this Agreement will be afforded sale treatment for accounting and tax purposes
and shall treat the disposition of the Contracts pursuant to this Agreement in
such manner. The sale of each Contract shall be reflected on the Seller’s
balance sheet and other financial statements and income tax returns as a sale of
assets by the Seller and the Purchaser shall treat the disposition of the
Contracts hereunder as a sale for accounting and tax purposes.

 

Section
2.02.   Closing
Date. The
obligation of the Purchaser to purchase the Receivables is subject to the
satisfaction of the following conditions:

 

(a)  The
Purchaser shall have received the following, in each case, unless otherwise
noted, dated as of the Closing Date:

 

(i)  certificate
of formation of the Seller, certified by the Secretary of State of the State of
Delaware, together with a good standing certificate from the Secretary of State
of the State of Delaware, each dated a recent date prior to the Closing
Date;

 

(ii)  copies of
the articles of incorporation of the Guarantor, certified by the Secretary of
State of the State of Delaware, together with a good standing certificate from
the Secretary of State of the State of Delaware, each dated a recent date prior
to the Closing Date;

 







11












 

(iii)  resolutions
of the board of directors (or any duly authorized committee thereof) of the
Seller approving and authorizing the execution, delivery and performance by it
of the Basic Documents, certified as of the Closing Date by the secretary of the
Seller as being in full force and effect without modification or
amendment;

 

(iv)  resolutions
of the board of directors (or any duly authorized committee thereof) of the
Guarantor approving and authorizing the execution, delivery and performance by
it of the Basic Documents to which it is a party, certified as of the Closing
Date by the secretary of the Guarantor as being in full force and effect without
modification or amendment;

 

(v)  signature
and incumbency certificates of the officers of the Seller executing this
Agreement;

 

(vi)  signature
and incumbency certificates of the officers of the Guarantor executing this
Agreement;

 

(vii)  executed
original of this Agreement, the Servicing and Custodian Agreement and the
Limited Guaranty; 

 

(viii)  delivery
of favorable opinions of counsel to the Seller and the Guarantor covering (i)
due authorization, execution, delivery and enforceability of the Basic Documents
to which it is a party and (ii) no conflicts and no adverse proceedings for the
Seller or the Guarantor;

 

(ix)  the
Purchaser shall have received copies of file stamped UCC-1 financing statements
naming the Seller as debtor and seller and the Purchaser as secured party and
purchaser describing the Conveyed Assets sold to the Purchaser pursuant to this
Agreement and all proceeds of the foregoing with the office of the Secretary of
State of the State of Delaware; 

 

(x)  the
Purchaser shall have received copies of file stamped UCC-3 financing statements
terminating the interest of the Lender in the Conveyed Asset with the office of
the Secretary of State of the State of Delaware; and

 

(xi)  such
other documents as the Purchaser may reasonably request.

 

(b)  The
Seller shall have delivered to the Purchaser a duly executed Sale and Assignment
together with the Schedule of Contracts on the Closing Date and such Sale and
Assignment shall be irrevocable.

 

(c)  The
Purchaser shall have received prior to the Closing Date an executed
Acknowledgment of Custodian for the related Contracts.

 

(d)  The
results of the Purchaser’s due diligence review, if any, to ensure conformity to
the terms hereof shall have been satisfactory. 

 

Section
2.03.   Termination
of Credit Documents. On the
Closing Date, after all conditions of closing set forth above in this Article
Two are satisfied, the parties agree that the Credit Documents shall terminate,
and the parties shall execute or cause their Affiliates to execute any documents
necessary to effectuate such termination.

 







12












 

ARTICLE
THREE



THE
CONTRACTS

 


Section
3.01.   Representations
and Warranties of the Seller. As of
the Closing Date, the Seller makes the following representations and warranties
on which the Purchaser is deemed to have relied in acquiring the Contracts. Such
representations and warranties speak as of the effective date of this Agreement
and as of the Closing Date, as the case may be, but shall survive the sale,
transfer and assignment of the Contracts to the Purchaser.

 

(a)  As to the
Seller:

 

(i)  Organization
and Good Standing. The
Seller (A) has been duly organized and is validly existing as a limited
liability company in good standing under the laws of the State of Delaware,
(B) has qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where the character of its properties or the
nature of its activities makes such qualification necessary and (C) has
obtained all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property, the purchase or sale of the Contracts, the
conduct of its business, the consummation of the transactions contemplated by
the Basic Documents shall require such qualifications or where the failure to
obtain such licenses and approvals would render any of the Conveyed Assets
unenforceable.

 

(ii)  Power
and Authority. The
Seller has full power, authority and legal right to own its property, to carry
on its business as presently conducted and to enter into and perform its
obligations under the Basic Documents, including the power and authority to
sell, transfer and assign the Conveyed Assets to be sold, transferred and
assigned to the Purchaser pursuant to this Agreement and to perform its
obligations under the Basic Documents, and the execution, delivery and
performance of the Basic Documents have been duly authorized by all necessary
limited liability company action on the part of the Seller. Neither the
execution and delivery of this Agreement or any other Basic Document, nor the
consummation of the transactions herein or therein contemplated, nor compliance
with the provisions hereof or thereof, will conflict with or result in a breach
of, or constitute a default under, any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the Seller
or its properties or the certificate of formation or limited liability company
agreement of the Seller, or any of the provisions of any indenture, mortgage,
contract, agreement or other instrument to which the Seller is a party or by
which it is bound or result in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract, agreement or other instrument.

 

(iii)  Binding
Obligation. This
Agreement constitutes a valid sale, transfer and assignment of the Conveyed
Assets, enforceable against creditors of and purchasers from the Seller and this
Agreement and each other Basic Document has been duly executed and delivered by
the Seller and, assuming the due authorization, execution and delivery thereof
by the other parties hereto or thereto, constitutes a legal, valid and binding
obligation of the Seller enforceable in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors’ rights in general and
by general principles of equity, regardless of whether such enforceability shall
be considered in a proceeding in equity or at law.

 







13












 

(iv)  Governmental
Consents. The
Seller is not required to obtain the consent of any other party or consent,
license, approval or authorization, or registration or declaration with, any
governmental authority, bureau or agency in connection with the sale of the
Conveyed Assets being sold, transferred and assigned to the Purchaser under this
Agreement or the execution, delivery, performance, validity or enforceability of
this Agreement or any other Basic Agreement, except (in each case) such as have
been obtained and are in full force and effect.

 

(v)  No Tax
Liens. The
Seller is not aware of any judgment or tax lien filings against it.

 

(vi)  No
Proceedings. There
are no actions, suits or proceedings pending or, to the knowledge of the Seller,
threatened against or affecting the Seller, before or by any court,
administrative agency, arbitrator or governmental body having jurisdiction over
the Seller or its properties (A) asserting the invalidity of any Basic
Document, (B) seeking to prevent the consummation of any of the
transactions contemplated by the Basic Documents or (C) seeking any
determination or ruling that might materially and adversely affect (1) the
Seller, (2) its business, assets, operations or condition, financial or
otherwise, or (3) the performance by the Seller of its obligations under,
or the validity or enforceability of, the Conveyed Assets or any Basic Document.
The Seller is not in default with respect to any order of any court,
administrative agency, arbitrator or governmental body so as to materially and
adversely affect the transactions contemplated by or the performance by the
Seller of its obligations under the Basic Documents.

 

(vii)  Other
Consents. The
Seller has obtained or made all necessary consents, approvals, waivers and
notifications of creditors, lessors and other nongovernmental persons, in each
case in connection with the execution and delivery of, and the consummation of
the transactions contemplated by, or the performance by the Seller of its
obligations under, the Basic Documents.

 

(viii)  No
Untrue Information. Neither
this Agreement nor any statement, report or other document furnished or to be
furnished by the Seller in writing pursuant to this Agreement or in connection
with the Basic Documents contains or will contain any untrue statement of a
material fact or omits or will omit to state any material fact necessary to make
such statement, document or report not misleading.

 

(b)  As to
each Contract, the following representations and warranties shall speak as of
the Closing Date, unless an earlier date is otherwise specified in which case
such representations and warranties shall speak as of such earlier
date:

 

(i)  Schedule
of Contracts. As of
the Cut-Off Date, the characteristics and all other information set forth on the
Schedule of Contracts pertaining to each Contract set forth in the Sale and
Assignment and Schedule of Contracts was true and correct in all material
respects (except that with respect to the information relating to the amount
financed under each Contract and the calculation of the Principal Balance for
each Contract, which shall be true and correct in all respects) and such
information has been prepared in accordance with this Agreement and is
accurate.

 







14












 

(ii)  Security
Interests. The
Contract was secured by a valid and enforceable first priority security interest
in favor of the Seller in the related Financed Vehicle, and such security
interest has been duly perfected and is prior to all other Liens upon and
security interests in such Financed Vehicle which exist or may thereafter arise
or be created, as provided in Sections 3.01(b)(iii) and 3.03 hereof; such
security interest is assignable and has been assigned by the Seller to the
Purchaser pursuant to Section 2.01. The Seller has caused the filing of all
appropriate financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the ownership interest in
the Contract and in the related Financed Vehicle granted to the Purchaser
hereunder. All financing statements filed against the Seller in favor of the
Purchaser in connection herewith describing the Contract contain a statement to
the following effect: “A purchase of or security interest in any collateral
described in this financing statement other than by the Purchaser will violate
the rights of the Purchaser.”

 

(iii)  Title
Documents. If the
related Financed Vehicle was originated in a State in which (A) notation of
a security interest on the Title Document is required or permitted to perfect
such security interest, the Title Document for such Financed Vehicle shows, or
if a new or replacement Title Document is being applied for with respect to such
Financed Vehicle the Title Document will be received within 240 days following
the related Funding Date for each Contract and will show E-Loan, Inc. named as
the original secured party under the related Contract as the holder of a first
priority security interest in such Financed Vehicle, and (B) the filing of
a financing statement under the UCC is required to perfect a security interest
in motor vehicles, such filings or recordings have been duly made and show
E-Loan, Inc. named as the original secured party under the related Contract, and
in either case, the Purchaser has the same rights as such secured party has or
would have (if such secured party were still the owner of the Contract) against
all parties claiming an interest in such Financed Vehicle.

 

(iv)  Title
to the Contracts.
Immediately prior to the Closing Date, the Seller had good and indefeasible
title to and was the sole owner of each Contract to be transferred to the
Purchaser pursuant to Section 2.01 free of Liens and, other than Liens
created hereunder and the Liens in favor of the Lender, upon transfer of such
Contract to the Purchaser pursuant to Section 2.01, the Purchaser will have
good and indefeasible title to and will be the sole owner of such Contract free
of Liens, other than Liens created hereunder, or Liens in favor of Purchaser;
and the sale of the Contracts has been perfected under the UCC.

 

(v)  Dollar
Denominated; Current in Payment. The
Contract was originated in the United States, is denominated in United States
dollars and is payable in the United States. As of the Cut-Off Date, the most
recent scheduled payment due on such Contract has been made or was not
delinquent by more than 59 days; provided, however, that if the Obligor on a
Contract is a debtor or co-debtor in a bankruptcy proceeding as of the Cut-Off
Date, the most recent scheduled payment due on such Contract has been made or
was not delinquent by more than 14 days as of the Cut-Off Date.

 







15












 

(vi)  Tax
Liens. There
is no Lien against the related Financed Vehicle for delinquent
taxes.

 

(vii)  Rescission,
Offset, Etc. There
is no right of rescission, offset, defense or counterclaim to the obligation of
the Obligor to pay the unpaid principal or interest due under the Contract; the
operation of the terms of the Contract or the exercise of any right thereunder
will not render the Contract unenforceable in whole or in part or subject the
Contract to any right of rescission, offset, defense or counterclaim, and no
such right of rescission, offset, defense or counterclaim has been asserted; and
the Seller has no knowledge that any such right of rescission, offset, defense
or counterclaim has been asserted or threatened.

 

(viii)  Mechanics’
Liens. There
are no Liens or claims for work, labor, material or storage affecting the
related Financed Vehicle that are or may become a Lien prior to or equal with
the security interest granted by the Contract.

 

(ix)  Compliance
with Laws. The
Contract, and the sale of the Financed Vehicle sold thereunder, complied, at the
time it was made, in all material respects with all applicable federal, State
and local laws (and regulations thereunder), including usury, equal credit
opportunity, fair credit reporting, truth-in-lending, licensing or other similar
laws, the Federal Trade Commission Act, the Magnuson-Moss Warranty Act, the
Federal Reserve Board’s Regulations B and Z, State adaptations of the
National Consumer Act and the Uniform Consumer Credit Code and other applicable
State laws regulating installment loans in general and motor installment loans
in particular and, assuming that the Purchaser has obtained all necessary
licenses and approvals, the consummation of the transactions herein
contemplated, including the sale, transfer and assignment of the Contract and
the related Financed Vehicle to the Purchaser, will not violate any applicable
federal or State law or cause any Contract to be unenforceable. Further, the
Seller is in compliance with all federal and state laws governing or relating to
the privacy rights of the Obligors in connection with its ownership of the
Contracts sold hereunder, including the Gramm-Leach-Bliley Act. The
Seller maintains such physical and other security measures necessary to
(i) ensure the security and confidentiality of the “nonpublic personal
information” of each Obligor, (ii) protect against any threats or hazards
to the security and integrity of such nonpublic personal information and
(iii) protect against any unauthorized access to or use of such nonpublic
personal information;

 

(x)  Valid
and Binding. The
Contract is the legal, valid and binding obligation of the Obligor thereunder
and is enforceable in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors’ rights generally; all parties to the Contract had full legal capacity
to execute and deliver the Contract and all other documents related thereto and
to grant the security interest purported to be granted thereby; the terms of the
Contract have not been waived, amended or modified in any respect, except by
instruments that are part of the Contract Documents; and no such waiver,
amendment or modification has caused the Contract to fail to meet all of the
representations, warranties and conditions set forth with respect
thereto.

 







16












 

(xi)  Enforceability. The
Contract contains customary and enforceable provisions such as to render the
rights and remedies of the holder or assignee thereof adequate for the
realization against the collateral of the benefits of the security, subject, as
to enforceability, to bankruptcy, insolvency, reorganization or similar laws
affecting the enforcement of creditors’ rights generally.

 

(xii)  No
Default. With
respect to each Contract, (A) there was no default, breach, violation or
event permitting acceleration existing thereunder (except payment delinquencies
permitted by clause (v) of this subsection), (B) there exists no event
which, with notice, the expiration of any grace or cure period, would constitute
a default, breach, violation or event permitting acceleration thereunder and
(C) the Seller has not waived any such default, breach, violation or event
permitting acceleration except payment delinquencies permitted by
clause (v) of this subsection.

 

(xiii)  Insurance. The
Contract requires that the related Obligor obtain and maintain in effect for the
related Financed Vehicle until the Maturity Date of such Contract and, at the
Funding Date, the related Financed Vehicle will be covered by a comprehensive
and collision insurance policy (1) in an amount at least equal to the
lesser of (a) its maximum insurable value or (b) the Principal Balance
due from the Obligor under the related Contract, (2) naming the Seller as a
loss payee and (3) insuring against loss and damage due to fire, theft,
transportation, collision and other risks generally covered by comprehensive and
collision coverage.

 

(xiv)  Acquisition
of Contract. The
Contract was originated directly by E-Loan, Inc. in the ordinary course of its
business. 

 

(xv)  Level
Payments; Finance Charge. The
Contract provides (A) for the payment of a finance charge calculated at its
APR based on the simple interest method, (B) payments thereunder shall be
applied, and payments under the Contract have been applied, in accordance with
the simple interest method and (C) that payments under the Contract are due
monthly in level payments through the Maturity Date of such Contract in an
amount sufficient to fully amortize the Principal Balance of such Contract by
its Maturity Date, assuming timely payment by the Obligor, except that the
payment in the first or last month in the life of the Contract may be up to 10%
greater or less than the level Monthly Payment amount.

 

(xvi)  One
Original. There
is only one original of such Contract. Such original, together with all other
Contract Documents and all other papers, documents and computerized records
comprising the related Contract File, is being held by the Custodian; provided
that, in relation to a Contract which is a PowerCheck® or E-Fund Agreement, as
applicable, within 90 days of the Funding Date of such Contract, the Seller will
deliver to the Custodian either the original PowerCheck® or E-Fund Agreement or
an affidavit attesting as to the destruction of such original Contract. Except
as otherwise provided in the Servicing and Custodian Agreement, the Custodian is
holding the related Contract File solely on behalf and for the benefit of the
Purchaser. None of the Contract Documents that constitute or evidence each
Contract has any marks or notations indicating that it has been pledged,
assigned or otherwise conveyed to any Person other than the Purchaser.


 







17












 

(xvii)  Identification. The
Seller has clearly marked its electronic records to indicate that the Contract
is owned by the Purchaser.

 

(xviii)  Amount
Financed. At the
date of origination of the Contract, the Amount Financed under the Contract was
not greater than the purchase price to the related Obligor (including taxes,
warranties, licenses and related charges) of the related Financed
Vehicle.

 

(xix)  Location
of Contract Documents. The
Contract Documents are kept at one of the locations of the Custodian listed in
Schedule III.

 

(xx)  No
Government Entity Obligor. The
related Obligor shall not be a local, State or federal governmental
entity.

 

(xxi)  Chattel
Paper. Each
Contract constitutes “tangible chattel paper”, as defined in the applicable
UCC.

 

(xxii)  Priority
of Interest. All
filings necessary in any jurisdiction to give the Purchaser a first priority,
validly perfected ownership interest in the Contracts will be made within 10
days of the Closing Date. Other than the security interest granted to the
Purchaser pursuant to this Agreement, or any Liens in favor of Purchaser or its
Affiliates, the Seller has not pledged, assigned, sold, granted a security
interest in, or otherwise conveyed the Contract. There are no financing
statements against the Seller that include the Contracts other than any
financing statement relating to the security interest granted to the Purchaser
hereunder or a financing statement that has been terminated or subordinated to
the rights of the Purchaser.

 

(xxiii)  No
Adverse Selection. No
adverse selection procedures have been utilized in selecting the Contract from
all other similar Contracts purchased or owned by the Seller.

 

(xxiv)  No
Extensions. The
number of, or timing of, scheduled payments has not been changed on any Contract
on or before the Cut-Off Date, except as reflected on the related Schedule of
Contracts.

 

(xxv)  Repossession. On or
prior to the Cut-Off Date, the related Financed Vehicle has not been
repossessed.

 

(xxvi)  Prepayment
of Contracts. Each of
the Contracts provides that prepayment in whole or in part by the related
Obligor will consist of the applicable principal balance plus accrued and unpaid
interest thereon at the related APR.

 

(xxvii)  No
Consent; No Bulk Transfer Law Violation. The
Contract does not require the related Obligor to consent to or receive notice of
its transfer, sale or assignment and the sale, transfer and assignment of such
Contract, together with all Contracts being sold, transferred and assigned on
the Closing Date, will not violate any applicable bulk transfer
laws.

 







18












 

(xxviii)  Refinanced
Contracts. With
respect to a Refinanced Contract, the Seller has paid the refinanced amount
under the related Contract directly to the prior lender or to the Obligor for
delivery to the prior lender.

 

Section
3.02.   Repurchase
of Certain Contracts.

 

(a)  The
representations and warranties of the Seller set forth in Section 3.01 with
respect to each Contract shall survive the sale of the Contracts to the
Purchaser and shall inure to the benefit of the Purchaser. Upon discovery by the
Seller or the Purchaser that any of the representations and warranties in
Section 3.01 was incorrect as of the time made or that any of the Contract
Documents relating to any Contract has not been properly executed by the Obligor
or contains a material defect or has not been received by the Custodian, the
Seller or the Purchaser, as the case may be, making such discovery shall give
prompt notice to the other. If any such defect, incorrectness or omission
materially and adversely affects the interest of the Purchaser, the Seller shall
cure the defect or eliminate or otherwise cure the circumstances or condition in
respect of which such representation or warranty was incorrect as of the time
made. If the Seller is unable to do so by the last day of the Collection Period
following the Collection Period during which the Seller becomes aware of or
receives notice from the Purchaser of such defect, incorrectness or omission, it
shall repurchase such Contract from the Purchaser for an amount equal to the
related Repurchase Amount in the manner set forth in Section 3.02(b). Upon
any such repurchase, the Purchaser shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be necessary to
vest in the Seller title to the Contract so repurchased; such instruments of
transfer or assignment to be prepared by the Seller at the Seller’s expense. It
is understood and agreed that the obligations of the Seller set forth in this
Section 3.02 to cure and repurchase a defective Contract and to indemnify the
Seller Indemnified Parties as provided in Section 4.02 constitutes the sole
remedies with respect to a breach of the Seller’s representations and
warranties; provided, however, that the Seller shall indemnify the Purchaser
against all costs, expenses, losses, damages, claims and liabilities, including
reasonable fees and expenses of counsel, which may be asserted against or
incurred as a result of third-party claims arising out of the events or facts
giving rise to such breach. Any costs or expenses incurred by the Purchaser,
including reasonable fees and expenses of counsel, in connection with the
transfer or assignment of Contracts back to the Seller, shall be reimbursed by
the Seller within two Business Days of receipt of an invoice from the Purchaser.
This Section shall survive the termination of this Agreement.

 

(b)  The
Seller shall remit to the Collection Account the Repurchase Amount for each
Repurchased Contract to be repurchased by it on the 10th day of the calendar
month, or if that day is not a Business Day, the next following Business Day,
following the month in which the related Contract is required to be repurchased.
Upon repurchase of a Repurchased Contract, the Seller shall execute and deliver
to the Custodian, as acknowledged by the Purchaser, a Notice of Repurchased
Contract. Upon repurchase by the Seller, a repurchased Contract is not, and
shall not be considered, a contract for the purposes of this
Agreement.

 







19












 

Section
3.03.   Collecting
Title Documents Not Delivered on the Closing Date. The
Seller shall use its best efforts to collect such Title Documents from the
registrar of titles as promptly as possible and shall deliver such Title
Documents promptly to the Custodian. After the Closing Date, the Seller shall
deliver to the Purchaser on each Servicer Report Date, a Title Schedule until
all of the Title Documents relating to the Contracts are obtained. If any such
Title Documents showing E-Loan, Inc. as first lienholder is not received by the
Purchaser or its agent within 240 days following the Funding Date for each
Contract, then the representation and warranty in
Section 3.01(b)(iii) in
respect of such Contract shall be deemed to have been incorrect in a manner that
materially and adversely affects the Purchaser and on such 240th day, the Seller
shall remit to the Collection Account the Repurchase Amount in respect of the
related Contract in accordance with Section 3.02(b); provided, however that as
long as the most recent scheduled payment due on such Contract is not at any
time delinquent by more than 30 days, then the representation and warranty in
Section 3.01(b)(iii) with respect to such Contract shall not be deemed to
be incorrect in a manner that materially and adversely affects the Purchaser;
provided, further, that, notwithstanding the foregoing, the representation and
warranty in Section 3.01(b)(iii) in respect of such Contract shall be
deemed to have been incorrect in a manner that materially and adversely affects
the Purchaser, and the Seller shall remit to the Collection Account the
Repurchase Amount in respect of the related Contract in accordance with Section
3.02(b), if the Title Document showing E-Loan, Inc. as first lienholder is not
received by the Purchaser or its agent within 420 days following the Funding
Date.

 

Section
3.04.   Collecting
Original PowerCheck®. The
Seller shall use its best efforts to collect all PowerChecks® associated with
the Contracts as promptly as possible and shall deliver such PowerCheck®
Contracts promptly to the Custodian. If an original PowerCheck® or an affidavit
of destruction of the PowerCheck® is not delivered within 90 days following the
related Funding Date, then the representation and warranty in
Section 3.01(b)(xvi) in respect of such Contract shall be deemed to have
been incorrect in a manner that materially and adversely affects the Purchaser
and on such 90th day, the Seller shall remit to the Collection Account the
Repurchase Amount in respect of the related Contract.

 

Section
3.05.   Contract
Information. The
Seller shall retain all data (including computerized title records) relating
directly to, or maintained in connection with, the origination of the Contracts
at the address of the Seller set forth in Section 5.05 or, upon 15 days’
notice to the Purchaser, at such other place where the principal offices of the
Seller are located. On the Closing Date, the Seller shall deliver to or at the
direction of the Purchaser all data (including computerized title records). The
Seller and the Purchaser shall implement such physical and other security
measures as shall be necessary to (i) ensure the security and
confidentiality of the “nonpublic personal information” of each Obligor,
(ii) protect against any threats or hazards to the security and integrity
of such nonpublic personal information and (iii) protect against any
unauthorized access to or use of such nonpublic personal
information.

 

Section
3.06.   Access
to Certain Documentation and Information Regarding Contracts.
Notwithstanding any other provision of this Agreement, the Seller shall provide
to the Purchaser reasonable access to its premises to inspect, audit and make
copies of and abstracts from the Seller’s records regarding the Contracts.
Access shall be afforded without charge, but only upon reasonable request and
notice during normal business hours at designated offices of the Seller. In
addition to the foregoing, each party shall comply with the other party’s
regulatory examination requests; provided, that, the costs and expenses relating
to each such review shall be paid by the party requesting such
examination.

 







20












 

ARTICLE
FOUR



THE
SELLER

 


Section
4.01.   Limited
Liability Company Existence. During
the term of this Agreement, the Seller will keep in full force and effect its
existence, rights and franchises as a limited liability company under the laws
of the State of Delaware and will obtain and preserve its qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, and each
other instrument or agreement necessary or appropriate to the proper
administration of this Agreement and the transactions contemplated
hereby. 

 

Section
4.02.   Liability
of Seller; Indemnities. The
Seller shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by such Seller under this
Agreement.

 

(a)  The
Seller shall indemnify the Purchaser, its Affiliates, any subsequent purchaser
of the Contracts, any trustee and any underwriter, placement agent or initial
purchaser or the equivalent in the offering and sale of the securities issued in
connection with any Securitization and any of their respective officers,
directors, agents, partners, members, shareholders and employees (collectively,
the “Seller Indemnified Parties” and each, a “Seller Indemnified Party”) and
hold each Seller Indemnified Party harmless against (i) any and all claims,
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and any other costs, fees and expenses that
any Seller Indemnified Party may sustain in any way related to claims of third
parties related to (A) the failure of the Seller to perform its obligations as
Seller under the terms of this Agreement, (B) any untrue statement or alleged
untrue statement of material fact contained in any information provided by the
Seller pursuant to Section 5.14 hereof or the omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, provided, however, that Seller shall have the right to approve
in writing the final form of any such disclosure (which approval shall not be
unreasonably withheld) or (C) the breach of any representation or warranty,
covenant or other agreement set forth in this Agreement; and (ii) any taxes that
may at any time be asserted against any Seller Indemnified Party with respect
to, and as of the date of, the conveyance of the Conveyed Assets to the
Purchaser, including any sales, gross receipts, tangible personal property,
privilege or license taxes (but, in the case of the Seller Indemnified Parties,
not including any taxes asserted with respect to the ownership of the Conveyed
Assets or federal or state income taxes arising out of the transactions
contemplated by this Agreement).

 







21












 

(b)  The
Seller or the Seller Indemnified Party, as applicable, shall promptly notify the
other upon becoming aware that a claim subject to indemnification under Section
4.02(a) (a “Seller Indemnified Claim”) has been made by a third party with
respect to this Agreement or the Contracts; provided, however, that the failure
of the Seller Indemnified Party to notify the Seller of a Seller Indemnified
Claim shall not relieve the Seller from any liability which it may have to any
Seller Indemnified Party, but only to the extent such failure to notify does not
prejudice the Seller’s ability to defend. The Seller shall assume the defense of
any such Seller Indemnified Claim and be responsible for all fees and expenses
of counsel incurred therewith as well as any other litigation expenses;
provided, that counsel chosen by the Seller shall be reasonably acceptable to
the Purchaser; and provided, however, that at any time the Seller Indemnified
Party shall be entitled to participate therein and, to the extent that it shall
wish, hire counsel (who shall not, except with the consent of the Seller, be
counsel to the Seller) and, jointly with the Seller, assume the defense thereof.
The Seller shall not be liable to the Seller Indemnified Party for the cost of
the Seller Indemnified Party’s counsel. If, in connection with any Seller
Indemnified Claim, the actual or potential defendants in, or targets of, any
such action include both the Seller and the Seller Indemnified Party and the
Seller Indemnified Party shall have reasonably concluded that there may be legal
defenses available to it which are different from, adverse to or additional to
those available to the Seller, the Seller Indemnified Party shall have the right
to hire counsel to assume the defense of any such Seller Indemnified Claim and
the Seller shall be responsible for all fees and expenses of counsel incurred
therewith as well as any other litigation expense. The Seller shall not, without
the written consent of the Seller Indemnified Party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the Seller Indemnified
Party is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an unconditional release of the
Seller Indemnified Party from all liability arising out of such action or claim
and (ii) does not include a statement as to, or an admission of, fault,
culpability or failure to act, by or on behalf of the Seller Indemnified Party.
If the Seller shall have made any indemnity payment pursuant to this Section and
the Seller Indemnified Party to whom such payment is made thereafter collects
any other amounts for such Seller Indemnified Claim from others, such Seller
Indemnified Party shall, or Purchaser shall cause such Person to, promptly repay
such amount to Seller, without interest.

 

(c)  Notwithstanding
the foregoing provisions of this Section 4.02, the Purchaser will indemnify
and hold harmless the Seller, its Affiliates, and any of their respective
officers, directors, agents, partners, members, shareholders, and employees
(collectively, the “Purchaser Indemnified Parties” and each, a “Purchaser
Indemnified Party”) against any losses, claims, damages, liabilities, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments, and any other costs, fees and expenses to which such Purchaser
Indemnified Parties may become subject, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the information
provided by the Purchaser (which excludes the information provided by (i) the
Seller pursuant to Section 5.14, (ii) E-Loan pursuant to Section 3.06 of
the Servicing and Custodian Agreement and (iii) the Servicer pursuant to Section
10.15 of the Servicing and Custodian Agreement), or the omission or alleged
omission therefrom of a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.

 







22












 

(d)  The
indemnification obligations of the Seller and Purchaser under this Section 4.02
shall survive the assignment and transfer of the Contracts in connection with
any Securitization or the termination of this Agreement and shall be in addition
to any liability which it may otherwise have.

 

Section
4.03.   Merger
or Consolidation of, or Assumption of the Obligations of, the Seller; Certain
Limitations. The
Seller shall not consolidate with nor merge into any other entity or convey,
transfer or lease substantially all of its assets as an entirety to any Person
unless the entity formed by such consolidation or into which such Seller has
merged or the Person which acquires by conveyance, transfer or lease
substantially all the assets of the Seller as an entirety, can lawfully perform
the obligations of the Seller hereunder and executes and delivers to the
Purchaser an agreement in form and substance reasonably satisfactory to the
Purchaser, which contains an assumption by such successor entity of the due and
punctual performance and observance of each covenant and condition to be
performed or observed by the Seller under this Agreement.

 

Section
4.04.   Limitation
on Liability of Seller and Others. The
Seller and its Representatives may rely in good faith on any document of any
kind, prima facie properly executed and submitted by any Person respecting any
matters arising hereunder. The Seller shall not be under any obligation to
appear in, prosecute or defend any legal action that shall not be incidental to
its obligations under this Agreement, and that in its opinion may involve it in
any expense or liability. The Purchaser shall indemnify and hold harmless the
Seller from and against any cost, fee, damage or expense resulting from, the
negligence or willful misconduct of the Purchaser as a result of, the Seller
complying with any direction or instruction from the Purchaser (except to the
extent that such cost, fee, damage or expense shall be due to the willful
misfeasance, bad faith or negligence of the Seller or shall arise from the
breach by the Seller of any of its obligations hereunder). The indemnities
contained in this Section shall survive the termination of this
Agreement.

 

Section
4.05.   Performance
of Obligations. The
Seller shall punctually perform and observe all of their respective obligations
and agreements contained in the Basic Documents.

 

Section
4.06.   Delivery
of Contract Documents. Prior
to the Closing Date, the Seller has, at its own expense, delivered the Contract
Documents to the Custodian.

 

Section
4.07.   New
Credit Facility. Seller
is a party to the Credit Documents, which agreements the parties intend to
terminate on the Closing Date. The Purchaser shall establish within 15 days
following the Closing Date a new credit facility upon substantially the same
terms and conditions as are reflected in the Credit Documents. E-Loan, Inc. and
the Purchaser agree to act in good faith to establish such new credit facility.
E-Loan, Inc. shall pay all costs and expenses associated with the new credit
facility, including the legal expenses and costs of Merrill Lynch
Bank.

 







23












 

ARTICLE
FIVE

 


MISCELLANEOUS


 

Section
5.01.   Termination. This
Agreement shall terminate upon the earlier of (i) the later to occur of (A) the
final payment or other liquidation (or any advance with respect thereto) of the
last maturing Contract and (B) the disposition of any Financed Vehicle with
respect to the last Contract and the remittance of all funds due hereunder or
(ii) the mutual consent of the Seller and the Purchaser in writing. The
representations and warranties made by the Seller in Sections 3.01, 3.02, 3.03
and 3.04, the indemnification obligations of the Seller and the Purchaser under
Section 4.02 shall survive the termination of this Agreement.

 

Section
5.02.   Amendment. This
Agreement may be amended by the parties hereto at any time, but only by an
agreement in writing executed by the parties to this Agreement.

 

Section
5.03.   Protection
of Title to Contracts.

 

(a)  The
Seller shall execute and file such financing statements, cause to be executed
and filed such amendments and continuation statements and make such notations on
records or documents of title, all in such manner and in such places as may be
required by lawfully to preserve, maintain and protect the first priority
perfected security interest of the Purchaser in the Conveyed Assets sold to the
Purchaser pursuant to this Agreement and in all proceeds of the foregoing. The
Seller shall deliver (or cause to be delivered) to the Purchaser file-stamped
copies of, or filing receipts for, any document filed as provided above, as soon
as available following such filing. Notwithstanding the foregoing, to the extent
that the laws of any State require that the Purchaser be named as lien holder in
order for the Purchaser to have an enforceable first priority perfected security
interest in the related Financed Vehicle, the Purchaser shall pay all costs and
fees incurred by the Seller in obtaining such documents. Further, the Seller
shall notify the Purchaser upon becoming aware that a State requires notation on
a Title Document to perfect the security interest of the Purchaser in the
related Financed Vehicles. The Seller shall deliver (or cause to be delivered)
to the Purchaser file-stamped copies of, or filing receipts for, any document
filed as provided in this clause (a), as soon as available following such
filing.

 

(b)  The
Seller shall not change its name, identity or corporate structure in any manner
that would, could or might make any financing statement or continuation
statement filed in accordance with Section 2.01(d) or 5.03(a) seriously
misleading within the meaning of Section 9-506(b) of the UCC, unless it
shall have given the Purchaser at least 60 days’ prior written notice thereof
and shall have promptly filed appropriate amendments to all previously filed
financing statements or continuation statements. The Seller hereby gives the
Purchaser the authority to file any continuation statements or amendments to
financing statements, or any similar document in any jurisdictions and with any
filing offices as the Purchaser may determine, in its sole discretion, are
necessary or advisable to continue or amend the security interest granted to the
Purchaser herein.

 

(c)  The
Seller shall give the Purchaser at least 60 days’ prior written notice of any
relocation of its registered location or change in jurisdiction of organization
and shall promptly file any such amendment or new financing statement as may be
required to preserve and protect the interests of the Purchaser in the Conveyed
Assets sold to the Purchaser pursuant to this Agreement and all proceeds of the
foregoing and shall deliver to the Purchaser evidence of filing of such
financing statements and amendments.

 







24












 

(d)  During
the term of this Agreement, the Seller shall maintain its chief executive office
in one of the States of the United States, other than Louisiana.

 

(e)  The
Seller shall maintain or cause to be maintained its computer systems so that,
from and after the time of sale of the Contracts under this Agreement, the
computer systems and records (including any backup archives) that shall refer to
any such Contract indicate clearly the interest of the Purchaser in such
Contract and that such Contract is owned by the Purchaser. Indication of the
Purchaser’s ownership of a Contract shall be deleted from or modified on the
computer systems and records of the Seller, if any, when, and only when, the
related Contract shall have been paid in full or repurchased.

 

(f)  If at any
time the Seller shall propose to sell, grant a security interest in, or
otherwise transfer any interest in retail motor vehicle installment sales
contracts or installment loans to any prospective purchaser, lender or other
transferee, the Seller shall give or cause to be given to such prospective
purchaser, lender or other transferee computer tapes, records or print-outs
(including any restored from back-up archives) that, if they shall refer in any
manner whatsoever to any Contract, shall indicate clearly that such Contract has
been sold and is owned by the Purchaser.

 

(g)  The
Seller shall permit the Purchaser and its agents, at any time upon reasonable
request and notice during normal business hours, to inspect, audit and make
copies of and abstracts from the Seller’s records regarding any
Contract.

 

(h)  Except as
provided herein, the Seller will not sell, pledge, assign or transfer any
Conveyed Asset to any Person, or grant, create, incur, assume or suffer to exist
any Lien on any interest therein, and the Seller shall defend the right, title,
and interest of the Purchaser in, to and under such Conveyed Assets against all
claims of third parties claiming through or under the Seller.

 

(i)  Other
than the costs and disbursements incurred by the Seller in connection with
filing the financing statements referenced in Section 2.02(a)(ix) and the
filing of financing statements, amendments and continuation statements pursuant
to this Section, and in having the lien of the Seller noted on the Title
Documents, the Purchaser shall pay all reasonable costs and disbursements in
connection with the perfection and the maintenance of perfection, as against all
third parties, of the Purchaser’s right, title and interest in and to the
Contracts and in connection with maintaining the first priority security
interest in the Financed Vehicles and the proceeds thereof, including all costs
incurred in connection with any application to name the Purchaser or its assigns
as the lienholder as to any Financed Vehicle.

 

Section
5.04.   Governing
Law. THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.

 







25












 

Section
5.05.   Notices. All
demands, notices and communications under this Agreement shall, except as
otherwise provided for herein, be in writing personally delivered or mailed by
certified mail, return receipt requested, and shall be deemed to have been duly
given upon receipt in the case of:

 


	if to the Seller, to:	E-Loan
      Auto Fund One, LLC
	 	6230
      Stoneridge Mall Road
	 	Pleasanton,
      California 94588
	 	Attention:
      Darren Nelson
	 	Telephone: (925)
      847-6152
	 	Facsimile: (925)
      520-6122
	 	 
	With a copy to:	Scott
      McKinlay
	 	Vice
      President and Chief Legal Officer
	 	E-Loan, Inc.
	 	6230 Stoneridge Mall Road
	 	Pleasanton, California 94588
	 	Telephone: (925)
      847-6154
	 	Facsimile: (925)
      520-6122
	 	 
	if to the Purchaser to: 	Merrill
      Lynch Bank USA
	 	c/o
      Merrill Lynch, Pierce, Fenner & Smith Incorporated
	 	4
      World Financial Center
	 	New
      York, New York 10080
	 	Attention:
      John F. Blackburn
	 	Telephone: (212)
      449-9023
	 	Facsimile: (212)
      449-9015



 

or, in
each case, to such other address as any party shall have provided to the other
parties in writing. 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. Any notice so
mailed within the time prescribed herein shall be conclusively presumed to have
been duly given, whether or not such addressee shall receive such
notice.

 

Section
5.06.   Severability
of Provisions. If one
or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no way
affect the validity or enforceability of the other provisions of this
Agreement.

 







26












 

Section
5.07.   Assignment.

 

(a)  Notwithstanding
anything to the contrary contained herein, except as provided in
Section 4.03, the Seller may not transfer or assign all or a portion of its
rights, obligations and duties under this Agreement unless the Purchaser has
consented to such transfer or assignment.

 

(b)  The
Seller hereby acknowledges and consents to any mortgage, pledge, assignment and
grant of a security interest by the Purchaser of all or a portion of its right,
title and interest in, to and under the Contracts or the assignment of any or
all of the Purchaser’s rights and obligations hereunder to any other
Person.

 

Section
5.08.   Third
Party Beneficiaries. Except
as otherwise specifically provided herein, the parties hereto hereby manifest
their intent that no third party shall be deemed a third party beneficiary of
this Agreement, and specifically that the Obligors are not third party
beneficiaries of this Agreement.

 

Section
5.09.   Counterparts. This
Agreement may be executed in several counterparts, each of which shall be an
original and all of which shall together constitute but one and the same
instrument.

 

Section
5.10.   Headings. The
headings of the various Articles and Sections herein are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.

 

Section
5.11.   Confidentiality. Subject
to the provisions of Section 5.14, each of the Seller and the Purchaser agrees
for itself and its Affiliates to maintain the Basic Documents and the
information therein and any proprietary information a party obtains from or
about another party as confidential information and not to disclose such
documents or information except (i) to their respective Representatives who
need to know such information for purposes of evaluating the transactions
contemplated thereby, who are informed of the confidential nature of such
documents and information and who agree to be bound by the terms of this
Section, (ii) as necessary to perform this Agreement, and in order to
obtain any consents, approvals, waivers or other arrangements required to permit
the execution, delivery and performance of the Basic Documents, but only to the
extent required by any governmental authority pursuant to legal process or as
required by applicable law and (iii) as necessary to comply with the
securities laws and regulations of any country or political subdivision thereof.
In the event any such party is required or requested to make any disclosure
pursuant to clause (ii) above, the disclosing party shall use reasonable
efforts to give prompt notice of such requirement or request so that the
non-disclosing party can seek an appropriate protective order. Notwithstanding
anything to the contrary contained in this Agreement, all persons may disclose
to any and all persons, without limitations of any kind, the purported or
claimed U.S. federal income tax treatment of this Agreement, any fact that may
be relevant to understanding the purported or claimed U.S. federal income tax
treatment of this Agreement, and all materials of any kind (including opinions
or other tax analyses) relating to such U.S. federal income tax treatment or
fact, other than the name of the parties or any other Person named herein, or
information that would permit identification of the parties or such other
Persons, and any pricing terms or other nonpublic business or financial
information that is unrelated to the purported or claimed federal income tax
treatment of the transaction to the taxpayer and is not relevant to
understanding the purported or claimed federal income tax treatment of the
transaction to the taxpayer. This Section shall survive for a period of one year
following the termination of this Agreement.

 







27












 

Section
5.12.   Use of
Name.

 

(a)  The
Seller agrees for itself and its Affiliates that it will not use the name
“Merrill Lynch,” or any servicemark or trademark of the Purchaser or any
Affiliate thereof, in any public disclosures and will take reasonable measures
not to use the same in any context in marketing the business of the Seller and
its Affiliates without the express prior written consent of the Purchaser,
unless required to do so by law.

 

(b)  The
Purchaser agrees for itself and its Affiliates that none of them will use the
name “E-LOAN,” “E-LOAN, Inc” or any servicemark or trademark of E-Loan or
any Affiliate thereof, in any public disclosures and will take reasonable
measures not to use the same in any context in marketing the business of the
Purchaser and its Affiliates without the express prior written consent of
E-Loan, Inc., except in connection with a Securitization and as otherwise
required to do so by law.

 

Section
5.13.   Expenses. Except
as otherwise provided herein, each party to this Agreement shall be responsible
for paying their respective costs and expenses, including legal and out of
pocket expenses, in connection with the negotiation, preparation and execution
and delivery of the Agreement and the other Transaction Documents.

 

Section
5.14.   Securitization
or other Disposition of Contracts.

 

(a)  The
Seller acknowledges that the Purchaser may, in the future, sell the Contracts to
third Persons in the form of one or more Securitizations or whole loan
transactions, and agrees to reasonably assist the Purchaser in such regard,
including (i) making representations and warranties on any Securitization
closing date that the Seller has complied with all covenants and obligations
hereunder, (ii) negotiating in good faith and executing any documents required
to effectuate (i), (iii) providing the Purchaser with statements containing
certain information relating to the Seller and the Contracts, including
historical loss and delinquency data and static pool data, (iv) cooperating with
the Purchaser and any the other parties to the Securitization to satisfy the
parties’ reporting obligations under the Exchange Act and applicable law
including the Sarbanes-Oxley Act and the rules and regulations promulgated
thereunder and (v) providing, as applicable, (A) information and verification of
information as is available to the Seller, whether through auditors and counsel
or otherwise, as reasonably requested by the Purchaser (B) at the cost and
expense of the Seller, an opinion of New York counsel as to the enforceability
of the Purchase and Sale Agreement and (C) access for rating agencies, credit
enhancers or investors to each Seller representative with responsibility,
knowledge or experience with respect to the Contracts for the purpose of
answering questions in relation thereto. The Purchaser will give at least 30
days’ prior written notice to the Seller of any such transaction. In connection
with any such Securitization, the Seller will deliver to the Purchaser an
Officer’s Certificate to the effect that any such information delivered to the
Purchaser, and the disclosure relating thereto, is true and correct in all
material respects and does not contain an untrue statement of material fact or
the omit a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. 

 







28












 

(b)  As
requested by the Purchaser, the Seller shall also furnish to the Purchaser
information regarding the Seller necessary for the Purchaser to effect a
Securitization. In addition, the Seller shall represent and warrant to the
Purchaser that, when delivered, such information does not contain any untrue
statement of a material fact and does not omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.

 

(c)  Except as
otherwise set forth above, the Purchaser shall promptly reimburse the Seller for
all reasonable out-of-pocket costs and expenses incurred in complying with any
such request pursuant to (a) and (b) above.

 

(d)  The
Seller shall continue to be responsible for its obligations under the Basic
Documents.

 

(e)  The
Seller shall not be required to incur any additional costs as a result of any
Securitization that are not otherwise reimbursed to the Seller.

 

(f)  This
Section shall survive the termination of this Agreement.

 

Section
5.15.   Separate
Counterparts. For the
purpose of facilitating the execution of this Agreement and for other purposes,
this Agreement may be executed simultaneously in any number of counterparts,
each of which counterparts shall be deemed to be an original, and all of which
counterparts shall constitute but one and the same instrument.

 

Section
5.16.   No
Petition Covenant. Each of
the Seller and the Purchaser, by entering into this Agreement, covenants that it
shall not, prior to the date that is one year and one day after the payment in
full of all securities issued in connection with any Securitization, acquiesce,
petition or otherwise invoke or cause the issuer of such securities or trustee
or other similar entity for such securities to invoke the process of any court
or government authority for the purpose of commencing or sustaining a case
against such issuer or trustee or other entity under any bankruptcy, insolvency
or similar law, or for the purpose of appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of such
issuer or trustee or other entity or any substantial part of its properties, or
ordering the winding up or liquidation of the affairs of such issuer, trustee or
other entity. This Section 5.16 shall survive the termination of this
Agreement.

 

Section
5.17.   Portfolio
Performance Reporting. On a
monthly basis, the Purchaser shall provide the Seller with a copy of the Monthly
Servicer Report and any
other information provided to the Purchaser by the Servicer for such
month.

 

Section
5.18.   Survival.
Termination of this Agreement shall not release either party of their respective
obligations of payment, warranty, reporting and from the confidentiality and
indemnity provisions hereof and any other provisions that, by its nature, should
survive such termination.

 








29













IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective officers as of the day and year first above
written.

 


	 	 	 
	 	E-LOAN AUTO FUND ONE,
      LLC
as Seller
	 
 	 
 	 
 
		By:  	/s/ Matthew J.
    Roberts
	 	
      

    
	 	Name: Matthew J. Roberts
Title:
      Treasurer







		 	 
	 	MERRILL LYNCH BANK
      USA,
as Purchaser
	 
 	 
 	 
 
		By:  	/s/ Joseph
Magnus
	 	
      

    
	 	Name: Joseph Magnus
Title:
      Director



 


 





 

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