CONTRIBUTION AND SALE AGREEMENT

Exhibit 10.1

CONTRIBUTION AND SALE AGREEMENT


between


E-LOAN AUTO FUND TWO, LLC,
as Buyer,


and


E-LOAN, INC.,
as Seller,




Dated as of May 1, 2005

ALL RIGHTS IN AND TO THIS AGREEMENT ON THE PART OF E-LOAN AUTO FUND TWO, LLC HAVE BEEN ASSIGNED TO, AND ARE SUBJECT TO A SECURITY INTEREST IN FAVOR OF, MERRILL LYNCH COMMERCIAL FINANCE CORP. , AS SECURED PARTY, UNDER THE SECURITY AGREEMENT, DATED AS OF MAY 1, 2005, FOR THE BENEFIT OF THE PERSONS REFERRED TO THEREIN.

TABLE OF CONTENTS

SCHEDULES AND EXHIBITS

            EXHIBIT A      Form of Seller Assignment

            EXHIBIT B       Non-Franchise Dealer Procedures

CONTRIBUTION AND SALE AGREEMENT (as amended, supplemented or otherwise modified from time to time, this " Agreement ") dated as of May 1, 2005, between E-LOAN AUTO FUND TWO, LLC, a Delaware limited liability company (the " Buyer "), and E-LOAN, INC., a Delaware corporation (the " Seller ").

RECITALS

WHEREAS , in contemplation of this Agreement, the Seller has agreed to sell, transfer, contribute and assign to the Buyer on the initial Transfer Date, and the Buyer has agreed to accept on the initial Transfer Date, all right, title and interest of the Seller in, to and under the Initial Sold Assets, originated by the Seller in the ordinary course of business, upon the terms and conditions hereinafter set forth; and

WHEREAS , from time to time thereafter, the Seller may transfer, contribute and assign additional Sold Assets to the Buyer upon the terms and conditions hereinafter set forth; and

WHEREAS , in connection with the transaction contemplated hereby, the Buyer will collaterally assign to the Secured Party, all of its right, title and interest in and to the Sold Assets and this Agreement, as collateral for the Note to be issued pursuant to the terms of the Credit Agreement; and

WHEREAS , each of the Seller and the Buyer agree that all representations, warranties, covenants and agreements made by the Seller and the Buyer herein shall be for the benefit of the Secured Party;

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

ARTICLE I
Definitions

SECTION 1.1   Definitions . Capitalized terms used herein and not otherwise defined herein are defined in Schedule A to the Credit Agreement, dated as of May 1, 2005 (the "Credit Agreement"), among the Buyer, the Seller and Merrill Lynch Commercial Finance Corp. , as Secured Party thereunder, as the same may be supplemented, amended or otherwise modified from time to time in accordance with its terms.

SECTION 1.2   Other Definitional Provisions .

1. All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein.
2. As used in this Agreement and in any certificate or other document made or delivered pursuant hereto, accounting terms not defined in this Agreement or in any such certificate or other document, and accounting terms partly defined in this Agreement or in any such certificate or other document to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles. To the extent that the definitions of accounting terms in this Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under generally accepted accounting principles, the definitions contained in this Agreement or in any such certificate or other document shall control.
3. The words "hereof', "herein", "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; Section, Schedule and Exhibit references contained in this Agreement are references to Sections, Schedules and Exhibits in or to this Agreement unless otherwise specified; and the term "including" shall mean "including, without limitation,".
4. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.

ARTICLE II
Conveyance of Sold Assets

SECTION 2.1   Conveyance of Initial Sold Assets . On the initial Transfer Date, the Seller does hereby sell, contribute, transfer, assign, set over and otherwise convey to the Buyer, without recourse (subject to the obligations herein), all of its right, title and interest in, to and under the Initial Sold Assets. Such assignment shall be evidenced by a duly executed written assignment in substantially the form of Exhibit A (the "Seller Assignment"). On or prior to the initial Advance Date, the Seller shall execute and deliver to the Custodian, as designee of the Buyer and the Secured Party each of the documents set forth in Section 2.2(b) hereof.

SECTION 2.2   Conveyance of Sold Assets After the Initial Transfer Date .

1. After the initial Transfer Date, the Seller hereafter may, from time to time, transfer to the Buyer, additional Sold Assets. In consideration of the sale of the Sold Assets sold to the Buyer on any Transfer Date, the Buyer shall pay to the Seller on such Transfer Date an amount equal to the remaining principal balance of all Receivables plus interest accrued from the prior installment date, if any, transferred to the Buyer on such Transfer Date. Buyer shall pay such purchase price by (i) making a cash payment to the Seller to the extent that the Buyer has received an Advance on such Transfer Date pursuant to the Credit Agreement and (ii) if the purchase price to be paid for the Sold Assets exceeds the amount of any cash payment for the account of the Seller on such day pursuant to clause (i) above, such excess shall automatically constitute a capital contribution to the Buyer by the Seller. In connection with any such transfer, the Seller will execute and deliver on or prior to the respective Transfer Date each of the documents set forth in Section 2.2(b) hereof.
2. In connection with any transfer of Sold Assets by the Seller to the Buyer in accordance with the provisions of Sections 2.1 or 2.2(a) of this Agreement, the Seller shall execute and deliver to the Buyer and the Secured Party on or before the related Transfer Date, each of the following:
3. 1. A completed and executed Seller Assignment which assignment shall operate as an assignment, without recourse, representation, or warranty, except for the other representations and warranties specifically set forth in this Agreement, of all the Seller's right, title, and interest in and to the Sold Assets identified in such certificate;
   2. Completed UCC financing statements (if necessary or advisable) or documents of similar import described in Section 6.2 hereof, together with evidence of filing of such financing statements in the appropriate filing offices and jurisdictions as may be required with respect to the Sold Assets so transferred; and
   3. Copies of all applicable UCC and federal, state and local tax and judgment lien searches indicating the absence of any Encumbrance other than a Permitted Encumbrance with respect to the Sold Assets identified in the related Seller Assignment.

SECTION 2.3   Security Grant . The Seller and Buyer intend that all transfers of Sold Assets be a "true sale" or "true contribution" by the Seller to the Buyer that are absolute and irrevocable and that provide the Buyer with the full benefits of ownership of the Sold Assets, and neither the Seller nor the Buyer intends the transactions contemplated hereunder to be, or for any purpose to be characterized as, loans from the Buyer to the Seller. It is, further, not the intention of the Buyer or the Seller that the conveyance of the Sold Assets by the Seller be deemed a grant of a security interest in the Sold Assets by the Seller to the Buyer to secure a debt or other obligation of the Seller. However, in the event that, notwithstanding the intent of the parties, any transfer of any property described in Sections 2.1 or 2.2 is characterized by a court or other governmental authority as a loan rather than a sale, Seller shall be deemed hereunder to have granted to Buyer and its assignee, the Secured Party, a first priority security interest in all of Seller's right, title and interest in, to and under such Sold Assets.

Such first priority security interest shall secure all of Seller's obligations (monetary or otherwise) under this Agreement and the other Credit Documents to which it is a party, whether now or hereafter existing or arising, due or to become due, direct or indirect, absolute or contingent. Buyer and its assignee, the Secured Party, shall have, with respect to such property, and in addition to all the other rights and remedies available to Buyer under this Agreement and applicable law, all the rights and remedies of a Secured Party under any applicable UCC, and this Agreement shall constitute a security agreement under applicable law.

ARTICLE III
The Sold Assets

SECTION 3.1   Sold Asset Representations and Warranties . The Seller makes the following representations and warranties as to the Sold Assets for the benefit of the Buyer, each Hedge Counterparty and the Secured Party, on which the Buyer relies in acquiring the Initial Sold Assets (and on which the Buyer is deemed to have relied in acquiring any additional Sold Assets, the Secured Party is deemed to have relied in making the loans and each Hedge Counterparty is deemed to have relied in entering into its respective Hedge Agreement(s)). Such representations and warranties are made as of each Transfer Date with respect to the Sold Assets transferred by the Seller to the Buyer on such date, unless otherwise indicated, but shall survive the sale, transfer and assignment of the Sold Assets to the Buyer and the pledge thereof to the Secured Party for the benefit of itself and each Hedge Counterparty pursuant to the Credit Agreement and the Auto Fund Security Agreement.

1. Fair Consideration . The consideration received and to be received by the Seller in exchange for the assignment, transfer and contribution of the Sold Assets is (x) fair consideration having value equivalent to or in excess of the value of the assets being transferred by the Seller to the Buyer and (y) not less than "reasonably equivalent value" as such term is used in Section 548 of the U.S. Bankruptcy Code. Any such transfer shall not have been made for or on account of antecedent debt (as such term is used in Section 547 of the U.S. Bankruptcy Code) owed by the Seller or any of its Affiliates to the Buyer and no such transfer is or may be voidable under any section of the Bankruptcy Code;
2. Ordinary Course . The transactions contemplated by this Agreement and the other Credit Documents are being consummated by the Seller in furtherance of the Seller's ordinary business purposes and constitute a practical and reasonable course of action by the Seller designed to improve the financial position of the Seller, with no contemplation of insolvency and with no intent to hinder, delay or defraud any of its present or future creditors;
3. Title . It is the intention of the Seller that any transfer and assignment herein contemplated constitute a sale of the Sold Assets from the Seller to the Buyer and that the beneficial interest in and title to the Sold Assets 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. None of the Sold Assets has been sold, transferred, assigned or pledged by the Seller to any Person other than the Buyer. Immediately prior to the transfers and assignments herein contemplated, the Seller had good and marketable title to each Receivable and a first priority perfected security interest in each Financed Vehicle and with respect to the other Sold Assets, the right, title and/or interest, free and clear of all Encumbrances, except Permitted Encumbrances, and, immediately upon the transfer thereof, the Buyer shall have good and marketable title to each Receivable and a first priority perfected security interest in each Financed Vehicle and, with respect to the other Sold Assets, the right, title and/or interest, free and clear of all Encumbrances, except Permitted Encumbrances; and the transfer and assignment to the Buyer of the Sold Assets has been perfected under the UCC;
4. All Filings Made . All notations and filings (including UCC filings) necessary in any jurisdiction to give the Buyer a first priority perfected ownership interest in the Sold Assets, and to give the Secured Party a first priority perfected security interest therein have been made;
5. Financed Vehicles and Receivables . With respect to the Sold Assets, the Seller hereby represents and warrants to the Buyer as of the applicable Cutoff Date that: (i) the sale to the Buyer of the Seller's interest in such Sold Assets transferred on such date and the assignment of the Seller's security interest in the Financed Vehicles pursuant to this Agreement constitutes a valid transfer of all of Seller's right, title and interest in such Sold Assets, free and clear of any and all claims, charges, liens or security interests created by the Seller or any of its Affiliates, except any Permitted Encumbrances and (ii) the Seller did not, in the exercise of its interest in any such property, waive, discharge, release or otherwise permit any modification thereto not in effect or agreed to at the time the Seller acquired its interest therein, except pursuant to a document, instrument or writing included in the Receivable Files and no such amendment, waiver, alteration or modification causes such Receivable or related item of Sold Assets not to conform to the other warranties contained in this Section;
6. No Adverse Selection Procedures . The selection procedures used by the Seller in selecting any Contract or Financed Vehicle to be included in the Sold Assets shall not intentionally discriminate against the Buyer as to type or age of Financed Vehicle, Obligor or terms of the Contract in comparison to the Seller's entire pool of Contracts and Financed Vehicles as a whole;
7. Eligibility . Each Contract transferred by the Seller to the Buyer as a Sold Asset is, as of the applicable Transfer Date, an Eligible Contract;
8. Financial Reporting and Accounting Treatment . The Seller will treat the transfer of the Sold Assets to the Buyer pursuant to this Agreement as either a sale or contribution, as applicable, of such Sold Assets for financial reporting and accounting purposes, and the Seller has been advised by its independent accountants that such independent accountants agree with such treatment;
9. Bulk Transfer Act . No transfer, assignment or conveyance of the Sold Assets by the Seller to the Buyer contemplated by this Agreement will be subject to the bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction;
10. Rights to Contracts; No Violation of Contracts . The rights with respect to each Contract transferred as a Sold Asset pursuant to this Agreement are assignable by the Seller without the consent of any Person other than consents which will have been obtained on or before the related Transfer Date; and the transfer and conveyance to the Buyer of the Sold Assets will not violate the terms or provisions of any Contract or any other agreement to which the Seller then is a party or by which it is bound;
11. Registration . A Certificate of Title for each Financed Vehicle has been or will be registered in the name of the Obligor as owner and the Seller as Secured Party with each applicable department of motor vehicles;
12. Casualty Loss . As of the applicable Transfer Date, to the knowledge of the Seller, no Financed Vehicle shall have suffered a Casualty Loss;
13. Dollars . All payments under each Contract are payable in Dollars;
14. Receivable Files . Each Receivable File is stored in the Custodian's offices located at 4315 Pickett Road, St. Joseph, MO 64503 ;
15. Ordinary Course of Business . The collection practices used by the Seller or the Servicer, as the case may be, with respect to each such Contract have been in all respects legal, proper, prudent and customary in the motor vehicle financing and servicing business;
16. Contract Payments . Each transferred Contract provides for payment thereunder on a basis no less frequently than monthly;
17. Reserved .
18. Enforceability . The operation of any of the terms of any transferred Contract or the exercise by the Buyer, the Servicer or the Secured Party of any right under any such Contract will not render such Contract unenforceable in whole or in part, and, to the best of the Seller's knowledge, no right of rescission, set-off, off-set, counterclaim or defense has been asserted in writing with respect thereto;
19. Form of Contract . Each transferred Contract is substantially similar, in both form and substance, to the forms of contracts set forth as Schedules N, O and P to the Credit Agreement; and
20. All Representations and Warranties True . All representations and warranties made by the Seller in any certificate or other document delivered at the closing of the transactions contemplated by the Credit Documents (including all representations and warranties made to Mayer, Brown, Rowe and Maw in support of its opinion letter issued and delivered in connection with the issuance of the Note and each of the factual assumptions contained in such opinions to the extent compliance with such assumptions is in the control of the Seller) are true and correct in all material respects.
21. Obligor Insurance . Each Contract and the Seller requires, in accordance with its customary origination policies and procedures, that each Financed Vehicle be insured by the related Obligor under insurance policies providing physical damage and bodily injury/physical damage liability or similar coverage with respect to the Financed Vehicle or the Obligor.
22. Eligible Non-Franchise Dealer . Each Eligible Non-Franchise Dealer has been approved based on the Non-Franchise Dealer Procedures attached as Exhibit B to this Agreement.

SECTION 3.2   Repurchase upon Breach .

1. The Seller or the Buyer, as the case may be, shall (and each Hedge Counterparty, the Servicer or the Secured Party, as the case may be, may) inform the other parties promptly, in writing, upon the discovery of any breach of the Seller's representations, warranties or covenants made pursuant to any of Sections 3.1, 4.2(d) , 4.2(f) , or 4.2(g) as to a particular Contract. Unless any such breach shall have been cured by the last day of the Monthly Period after such breach is discovered by a Hedge Counterparty, the Servicer, the Seller, the Buyer, a Lender or the Secured Party or in which each Hedge Counterparty, the Servicer, the Seller, the Buyer and the Secured Party receives written notice of such breach, the Seller shall be obligated to repurchase on the Payment Date following the earlier of discovery by the Seller of such breach and notice to the Buyer of such breach any Receivable adversely affected by any such breach as of such last day. Subject to the provisions of Section 4.4 , the sole remedy of the Buyer, the Secured Party or a Hedge Counterparty with respect to a breach of the representations, warranties or covenants made pursuant to any of Sections 3.1, 4.2(d) , 4.2(f) or 4.2(g) as to a particular Contract and the agreement contained in this Section 3.2 shall be to require the Seller to repurchase the related Receivable pursuant to this Section, subject to the conditions contained herein.
2. With respect to all Receivables repurchased by the Seller pursuant to this Agreement, the Buyer shall sell, transfer, assign, set over and otherwise convey to the Seller, without recourse, representation or warranty, all of the Buyer's right, title and interest in, to and under such Receivables, the related Sold Assets, and all security and documents relating thereto.

ARTICLE IV
The Seller

SECTION 4.1   Representations and Warranties of Seller . The Seller makes the following representations and warranties as to itself on which the Buyer relies in acquiring the Initial Sold Assets (and on which the Buyer is deemed to have relied in acquiring any additional Sold Assets), the Secured Party is deemed to have relied in making the loans and each Hedge Counterparty is deemed to have relied in entering into its respective Hedge Agreement(s). The representations and warranties speak as of the execution and delivery of this Agreement and each Transfer Date and shall survive the sale of the Receivables and the other Sold Assets to the Buyer and the pledge thereof to the Secured Party for the benefit of itself and each Hedge Counterparty pursuant to the Credit Agreement and the Auto Fund Security Agreement.

1. Organization and Good Standing . The Seller is duly organized and validly existing as a corporation in good standing, and is a "registered organization" (within the meaning of the UCC) organized under the laws of the State of Delaware, with the corporate power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted, and had at all relevant times, and has, the corporate power, authority and legal right to acquire, own and sell the Receivables and the other Sold Assets.
2. Due Qualification . The Seller is duly qualified to do business as a foreign corporation in good standing, and has obtained all necessary licenses, permits, franchises, government authorizations and approvals, in all jurisdictions in which the ownership or lease of property, the enforcement of the Receivables or its rights in the Financed Vehicles and the other Sold Assets or the conduct of its business shall require such qualifications (except where the failure to be so qualified, in good standing or to have obtained such licenses, permits, franchises, government authorizations and approvals would not individually or in the aggregate have a Material Adverse Effect.
3. Power and Authority . The Seller has the power and authority to execute and deliver this Agreement and to carry out its terms; the Seller has full power and authority to sell and assign the property to be sold and assigned to and deposited with the Buyer and has duly authorized such sale and assignment to the Buyer by all necessary corporate action; and the execution, delivery and performance of this Agreement have been duly authorized by the Seller by all necessary corporate action.
4. Binding Obligation . Each of this Agreement and the Seller Assignment constitutes a legal, valid and binding obligation of the Seller enforceable in accordance with their terms except as enforcement of such terms may be limited by b