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8-K - FORM 8-K FOR THE STUDENT LOAN CORPORATION - STUDENT LOAN CORP | form8k012910.htm |
AMENDED
& RESTATED OMNIBUS CREDIT AGREEMENT
Dated
as of January 29, 2010
by
and among
THE
STUDENT LOAN CORPORATION,
as
Borrower,
CITIBANK,
N.A.,
as
Lender,
CITIBANK,
N.A.,
not
in its individual capacity but solely in its separate capacity as the Trustee
under the Trust Agreement referred to herein,
and
THE
NON-SECURITIZATION SUBSIDIARIES
that
become parties hereto from time to time pursuant to Joinder
Agreements
TABLE
OF CONTENTS
Page
ARTICLE I DEFINITIONS, UCC DEFINITIONS, ACCOUNTING TERMS AND INTERPRETATION | 2 | ||
Section 1.1 | Defined Terms | 2 | |
Section 1.2 | UCC Definitions |
21
|
|
Section 1.3 | Computation of Time Periods | 21 | |
Section 1.4 | Accounting Terms and Principles | 21 | |
Section 1.5 | Rounding Off | 22 | |
Section 1.6 |
Certain Terms
|
22 |
ARTICLE II THE FACILITY | 23 | ||
Section 2.1 | The Commitment | 23 | |
Section 2.2 | Borrowing Procedures |
23
|
|
Section 2.3 | Grandfathered Loans | 24 | |
Section 2.4 | Changes to Commitment | 25 | |
Section 2.5 | Supplemental Illiquid Asset Funding | 25 | |
Section 2.6 | 26 | ||
26 | |||
Voluntary Prepayments | 26 | ||
26 | |||
27 | |||
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33 | |||
33 |
ARTICLE III CONDITIONS PRECEDENT | 35 | ||
35 | |||
37 |
ARTICLE IV REPRESENTATIONS AND WARRANTIES | 38 | ||
38 | |||
38 | |||
Government Approvals; No Conflicts | 39 | ||
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ARTICLE V COLLATERAL | 42 | ||
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46 |
ARTICLE VI COVENANTS | 47 | ||
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50 | |||
Minimum Adjusted EBITDA to Interest
Expense
|
51 | ||
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53 |
ii
ARTICLE VII EVENTS OF DEFAULT; REMEDIES FOLLOWING EVENT OF DEFAULT OR CHANGE OF CONTROL TRIGGER | 53 | ||
53 | |||
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ARTICLE VIII MISCELLANEOUS | 61 | ||
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iii
SCHEDULES
Schedule I | - | Grandfathered Loans |
Schedule II | - |
Permitted
Liens
|
Schedule III | - | Borrower's Accounts |
Schedule IV | - | Servicing Agreements |
Schedule V | - | Retained Securitization Interests |
Schedule VI | - | Cash Management System |
Schedule VII | - | Addresses for Notices and Wiring Instructions |
EXHIBITS
Exhibit A | - | Form of Borrowing Request |
Exhibit B | - |
Form
of Monthly Report
|
Exhibit C | - | Parameters for February and March 2010 Securitizations |
Exhibit D | - | Form of Joinder Agreement |
This
AMENDED & RESTATED OMNIBUS CREDIT AGREEMENT, dated as of January 29, 2010
(as the same may be further amended, amended & restated, supplemented or
otherwise modified from time to time in accordance with the terms hereof, this
"Agreement"),
is entered into by and among (i) The Student Loan Corporation, a Delaware
corporation ("SLC"), as borrower
(together with its permitted successors and assigns in such capacity, "Borrower"), (ii)
Citibank, N.A., a national banking association ("Citibank"), as lender
(together with its permitted successors and assigns in such capacity, "Lender"), (iii)
Citibank, N.A., a national banking association, not in its individual capacity
but solely in its separate capacity as the Trustee under the Trust Agreement
referred to herein, solely for purposes of Sections 5.1(b),
(c) and (f), Sections 7.4 through
7.8 and Sections 8.1 through
8.4 of this
Agreement, and (iv) the Non-Securitization Subsidiaries that become parties
hereto from time to time pursuant to Joinder Agreements. Capitalized
terms used herein shall have the meanings assigned thereto pursuant to Section
1.1 hereof.
W I T N E
S S E T H:
WHEREAS,
Borrower and Lender are the parties to the Omnibus Credit Agreement, dated as of
November 30, 2000 (as amended by the amendments thereto dated October 15, 2002,
March 5, 2004, January 20, 2005, February 27, 2009 and December 22, 2009, the
"Original Omnibus
Credit Agreement"), between Lender, as lender, and Borrower, as borrower,
pursuant to which Lender has made available to Borrower a 364-day revolving
credit facility that has been renewed from time to time;
WHEREAS,
Borrower and Lender desire to amend and restate the Original Omnibus Credit
Agreement in the manner provided herein to, among other things, provide for
Lender to make available to Borrower for the purposes set forth herein a 364-day
revolving credit facility subject to the terms and provisions
hereof;
WHEREAS,
Borrower and Lender desire for the advances under the Original Omnibus Credit
Agreement and the accrued and unpaid interest thereon to continue to remain
outstanding under this Agreement subject to the same interest rates, payment
dates, maturity dates and other terms set forth in the Original Omnibus Credit
Agreement except to the extent set forth herein;
WHEREAS,
pursuant to the Trust Agreement, the Trustee has agreed to hold legal title to
the Portfolio (as such term is defined in the Trust Agreement) solely as nominee
and agent for Borrower; and
WHEREAS,
Borrower and Lender desire for the Trustee to be a party to this Agreement
solely for purposes of (i) the grant of a security interest in the FFELP Loans
and the Proceeds thereof to Borrower by the Trustee pursuant to certain
provisions under Article V hereof,
(ii) the exercise of Borrower's rights in the FFELP Loans and the Proceeds
thereof pursuant to certain provisions under Article VII hereof
and (iii) the miscellaneous provisions applicable to the Trustee pursuant to
certain provisions under Article VIII hereof,
and the Trustee desires to be a party to this Agreement solely for such
purposes, subject to the terms and provisions hereof.
NOW,
THEREFORE, in consideration of the foregoing, and of the representations,
warranties, covenants and agreements set forth herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the parties hereto, intending to be legally
bound, hereby agree to amend and restate the Original Omnibus Credit Agreement
as follows:
ARTICLE
I
DEFINITIONS,
UCC DEFINITIONS, ACCOUNTING TERMS AND INTERPRETATION
Section
1.1 Defined
Terms
As used
in this Agreement, the following terms have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the
terms defined):
"Accounts" means the
Primary Account and each of the other accounts of Borrower identified by the
name of the financial institution where the account is established and
maintained, account number and account description in Schedule III (Borrower's
Accounts) attached hereto.
"Adjusted EBITDA"
means, with respect to Borrower for any period, an amount determined for
Borrower and its Consolidated Subsidiaries on a consolidated basis for such
period in conformity with GAAP equal to the sum (without duplication)
of:
(a) the
net income (or loss) before tax of Borrower and its Consolidated Subsidiaries on
a consolidated basis;
(b) total
interest expense of Borrower and its Consolidated Subsidiaries on a consolidated
basis with respect to all outstanding Indebtedness of Borrower and its
Consolidated Subsidiaries;
(c) total
depreciation expense;
(d) total
amortization expense (including computer software amortization);
(e) total
accretion of off balance sheet retained interest values prior to the
implementation of the Financial Accounting Standards Board's Statements of
Financial Accounting Standards Nos. 166 and 167;
(f) total
deferred loan origination and purchase costs;
(g) total
amortization of deferred financing fees; and
2
(h) total
student loan provision for loan losses.
"Affiliate" or "Affiliated" means,
with respect to a Person, (a) any other Person who, directly or indirectly, is
in control of, or controlled by, or is under common control with, such Person or
(b) any other Person who is a director, officer or employee (i) of such Person,
(ii) of any Subsidiary or parent company of such Person or (iii) of any Person
described in clause
(a) above. For the purposes of this definition, control of a
Person shall mean the power, direct or indirect, (x) to vote more than 50% of
the securities having ordinary voting power for the election of directors of any
such Person or (y) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agreement" has the
meaning specified in the preamble hereto.
"Allocated Parties"
means (i) the Securitization Vehicles, (ii) the U.S. Department of Education,
(iii) the U.S. Department of Education's Conduit Program, Put Program and
Participation Program, (iv) third parties that own student loans serviced by
Borrower and any of Borrower's sub-servicers and (v) money received in error for
others including guarantors and insurance companies.
"Anti-Terrorism Order"
means U.S. Executive Order 13224 of September 24, 2001 Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support
Terrorism (66 Fed. Reg. 49,079 (2001)).
"Applicable Margin"
means, with respect to (i) FFELP Loan Funding, 0.75% per annum, (ii) Private
Loan Funding, 4.5% per annum, (iii) the portion of Illiquid Asset Funding other
than any Supplemental Illiquid Asset Funding, 4.0% per annum, and (iv) the
portion of Illiquid Asset Funding attributable to Supplemental Illiquid Asset
Funding, 6.55% per annum.
"Bankruptcy Code"
means the United States bankruptcy code, as set forth in Title 11 of the United
States Code, as amended.
"Base Rate" means,
with respect to any Interest Period for any Revolving Loan in the circumstances
described in Section
2.13(b) or (d)
(Other Provisions Governing Revolving Loans), the rate determined by
Lender to be the higher of:
(i) the
Federal Funds Target for such Interest Period (calculated daily) plus 0.50% per
annum plus the Applicable Margin for the applicable Type of Revolving Loan;
and
(ii) the
Prime Rate for such Interest Period (calculated daily) plus the Applicable
Margin for the applicable Type of Revolving Loan.
Any
change in the Base Rate due to a change in the Federal Funds Target or the Prime
Rate shall be effective on the effective date of such change in the Federal
Funds Target or the Prime Rate, as applicable.
3
"Base Rate Loan" means
a Revolving Loan accruing interest at the Base Rate pursuant to Section 2.13(b) or
(d) (Other Provisions
Governing Revolving Loans).
"Borrower" has the
meaning specified in the preamble to this Agreement.
"Borrower Collateral"
has the meaning specified in Section 5.1(a) (Grant of
Security Interest).
"Borrowing" means a
borrowing of Revolving Loans pursuant to Section 2.2(a) (Borrowing
Procedures).
"Borrowing Base"
means, as of any date of determination, an amount equal to the sum of (i) the
FFELP Loan Borrowing Base, (ii) the Private Loan Borrowing Base and (iii) the
Illiquid Asset Commitment, in each case as of such date.
"Borrowing Base
Deficiency" means, as of any date of determination, the excess, if any,
of (i) the aggregate outstanding principal amount of the Revolving Loans as of
such date, over (ii) the Borrowing Base as of such date.
"Borrowing Request"
has the meaning specified in Section 2.2(a)
(Borrowing Procedures).
"Business Day" means
any day on which commercial banks settle payments in New York, New
York.
"Capital Lease" means,
with respect to any Person, any lease of, or other arrangement conveying the
right to use, property by such Person as lessee that would be accounted for as a
capital lease on a balance sheet of such Person prepared in accordance with
GAAP.
"Capital Lease
Obligations" means, with respect to any Person, the capitalized amount of
all Consolidated obligations of such Person and such Person's Subsidiaries under
Capital Leases.
"Change of Control
Trigger" means the first date on which more than 50% of the voting equity
interest of Borrower is directly or indirectly owned or controlled by any Person
other than Lender or an Affiliate of Lender.
"Citibank" has the
meaning specified in the preamble hereto.
"Clearing Corporation"
means the Depository Trust Company or any other Person included within the
meaning of "clearing corporation" under the UCC.
"Clearing Corporation
Security" means a stock, bond, right, warrant or other negotiable or
non-negotiable instrument that is (i) in bearer form or (ii) registered in the
name of a Clearing Corporation or the nominee of such Clearing Corporation and,
if a Certificated Security as defined for purposes of Section 8-102(a)(4) of the
UCC, is held in the custody of such Clearing Corporation.
4
"Closing Date" means
January 29, 2010.
"Code" means the U.S.
Internal Revenue Code of 1986, as currently amended, and the rules and
regulations promulgated thereunder.
"Collateral" has the
meaning specified in Section 5.1(a) (Grant of
Security Interest).
"Commitment" means,
with respect to:
(i)
Overnight Funding, $500 million;
(ii)
FFELP Loan Funding, $1 billion;
(iii)
Private Loan Funding, $4 billion; and
(iv)
Illiquid Asset Funding, (A) $600 million (if Borrower does not exercise its
option to cause Lender to commit to fund the Supplemental Illiquid Asset Funding
pursuant to Section
2.5 (Supplemental Illiquid Asset Funding), (B) $850 million (if Borrower
exercises its option to cause Lender to commit to fund the first $250 million
increment of the Supplemental Illiquid Asset Funding pursuant to Section 2.5 (Supplemental
Illiquid Asset Funding) and (C) $1.10 billion (if Borrower exercises its
option to cause Lender to commit to fund the second $250 million increment of
the Supplemental Illiquid Asset Funding pursuant to Section 2.5 (Supplemental
Illiquid Asset Funding);
provided, that the
"Commitment" with respect to each Type of Revolving Loan may be increased,
reduced, terminated or reallocated amongst the Types of Revolving Loans pursuant
to Section 2.4
(Changes to Commitment).
"Commitment Period"
means the period from January 1, 2010 to the Commitment Period Termination
Date.
"Commitment Period
Termination Date" means the earliest to occur of (i) the Scheduled
Commitment Period Termination Date, (ii) such earlier date on which Borrower
exercises its rights to terminate the Commitment in full pursuant to Section 2.4 (Changes to
Commitment), (iii) such earlier date on which the Change of Control
Trigger is triggered and (iv) such earlier date on which the maturity of the
Revolving Loans is accelerated by Lender (or automatically accelerated)
following the occurrence of an Event of Default pursuant to Section 7.2 (Acceleration of
Maturity).
"Conduit Program" has
the meaning specified in Section 5.2(a) (Release of
Collateral).
"Consolidated" means,
with respect to any Person, the consolidation of accounts of such Person and any
other Person in accordance with GAAP.
5
"Consolidated
Subsidiary" means any Subsidiary of Borrower the accounts of which would
be Consolidated with those of Borrower in its consolidated financial statements
if such statements were prepared as of such date.
"Consolidated Tangible Net
Worth" means, with respect to Borrower as of any date of determination,
the consolidated stockholders' equity of Borrower and its Consolidated
Subsidiaries, determined in conformity with GAAP, less their consolidated
Intangible Assets, all determined as of such date.
"Contractual
Obligation" of any Person means any obligation, agreement, undertaking or
similar provision of any security issued by such Person or of any agreement,
undertaking, contract, lease, indenture, mortgage, deed of trust or other
instrument to which such Person is a party or by which it or any of its property
is bound or to which any of its property is subject.
"Default" means any
event that, with the passing of time or the giving of notice or both, would
become an Event of Default.
"Default Rate" means
the rate determined by Lender equal to the Prime Rate for the applicable
Interest Period plus (i) with respect to FFELP Loan Funding, 2.0% per annum,
(ii) Private Loan Funding, 10% per annum and (iii) Illiquid Asset Funding, 11%
per annum.
"Depositary" means any
present or future special purpose Subsidiary of Borrower that acquires Student
Loans from Borrower for transfer to one or more Securitization
Vehicles.
"Dollars" and the sign
"$" each mean
the lawful money of the United States of America.
"Eligible Assignee"
means any Affiliate of Lender.
"Environmental Laws"
means all laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the management,
release or threatened release of any Hazardous Material or to health and safety
matters.
"Environmental
Liability" means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or
indemnities), of Borrower or any Subsidiary directly or indirectly resulting
from or based upon (a) violation of any Environmental Law, (b) the generation,
use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
6
"ERISA" means the U.S.
Employee Retirement Income Security Act of 1974, as amended, and the rules and
regulations promulgated thereunder from time to time.
“Eurocurrency
Liabilities” has the meaning assigned to that term in Regulation D of the
Federal Reserve Board.
"Event of Default" has
the meaning specified in Section 7.1 (Events of
Default).
"Facility" means the
364-day revolving credit facility made available to Borrower by Lender pursuant
to this Agreement.
"Federal Funds Target"
means, as of any date of determination, the rate identified by Lender that is
set forth under the column labeled "high end" for the range of the U.S. dollar
federal funds rate targeted by the Federal Reserve Bank of New York as of such
date as published on Bloomberg.com under the page for the symbol FDTR (or any
replacement symbol); provided, that if
such rate does not appear on Bloomberg.com on such date then the "Federal Funds
Target" shall be determined by reference to such other comparable publicly
available service for displaying overnight U.S. dollar federal funds
transactions as may be selected by Lender or, in the absence of such
availability, the average of the quotations for such day on such transactions
received by Lender from three Federal funds brokers of recognized standing
selected by it.
"FFELP Loan" means a
U.S. federally-insured student loan that has been authorized to be made or held
by Borrower as the beneficiary of a student loan trust as part of the U.S.
Federal Family Education Loan Program ("FFELP") and
authorized by the Higher Education Act of 1965, as amended, or the Health
Education Assistance Loan Program, as amended, including Stafford, PLUS,
Consolidation and HEAL student loans, that (i) satisfies the eligibility
requirements determined by Lender pursuant to Section 4.13 (Student
Loans) and (ii) is identified in the Schedule of FFELP Loans to be
delivered to Lender by Borrower electronically on the Closing Date and
maintained on record by Lender, as such schedule may be updated electronically
by written notice to Lender by Borrower from time to time.
"FFELP Loan Borrowing
Base" means, as of any date of determination, the amount determined by
Lender equal to the lesser of:
(a) the
portion of the Commitment allocable to FFELP Loan Funding as of such date (which
as of the Closing Date is $1 billion), as the same may be changed from time to
time pursuant to Section 2.4 (Changes to
Commitment); and
(b) the
amount equal to (i) the maximum aggregate outstanding principal amount of
securities that can be issued with a "Aaa" rating by Moody's according to the
repayment stress scenario applied by Lender to the information on the portfolio
of FFELP Loans included in the Collateral that is set forth in the most recently
provided month-end computer tape using Lender's dynamic cash flow computer model
that incorporates Moody's published rating methodology and reflects current
market conditions, minus (ii) the initial cash deposit that would be required to
be made to a capitalized interest account and cash reserve account to support
the "Aaa" rating by Moody's, minus (iii) the aggregate amount of the
underwriting fees, dealer concessions, rating agency fees and other closing fees
and expenses that Lender would expect to be incurred in connection with the
issuance of such securities.
7
"FFELP Loan Funding"
means the portion of the Revolving Loans made available to Borrower by Lender
pursuant to Section
2.1 (The Commitment) that are allocated to fund or maintain the funding
for that portion of the Collateral constituting FFELP Loans.
"GAAP" means generally
accepted accounting principles in the United States of America as in effect from
time to time set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and
the statements and pronouncements of the Financial Accounting Standards Board,
or in such other statements by such other entity as may be in general use by
significant segments of the accounting profession, that are applicable to the
circumstances as of the date of determination.
"Governmental
Authority" means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Grandfathered Loans"
means the advances to Borrower by Lender under the Original Omnibus Credit
Agreement that are outstanding as of the date of this Agreement and set forth in
Schedule I
(Grandfathered Loans) attached hereto.
"Grant" means to
grant, bargain, sell, warrant, alienate, remise, demise, release, convey,
assign, transfer, mortgage, pledge, create and grant a security interest in and
right of setoff against, deposit, set over and confirm. A "Grant" of
any instrument, shall include all rights, powers and options (but none of the
obligations) of the granting party thereunder, including the immediate
continuing right to claim for, collect, receive and receipt for principal,
interest and fee payments in respect of the Collateral or such other
instruments, and all other Moneys payable thereunder, to give and receive
notices and other communications, to make waivers or other agreements, to
exercise all rights and options, to bring suits in equity, actions at law or
other judicial or administration proceedings in the name of the granting party
or otherwise, and generally to do and receive anything that the granting party
is or may be entitled to do or receive thereunder or with respect
thereto.
"Guaranty Obligation"
means, as applied to any Person, any direct or indirect liability (other than
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection), contingent or otherwise, of such Person with respect to
any Indebtedness of another Person, if the purpose or intent of such Person in
incurring the Guaranty Obligation is to provide assurance to the obligee of such
Indebtedness that such Indebtedness shall be paid or discharged, that any
agreement relating thereto shall be complied with, or that any holder of such
Indebtedness shall be protected (in whole or in part) against loss in respect
thereof, including (a) the direct or indirect guaranty, endorsement (other
than for collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of Indebtedness
of another Person and (b) any liability of such Person for such
Indebtedness of another Person through any agreement (contingent or otherwise)
(i) to purchase, repurchase or otherwise acquire such Indebtedness or any
security therefor or to provide funds for the payment or discharge of such
Indebtedness (whether in the form of a loan, advance, stock purchase, capital
contribution or otherwise), (ii) to maintain the solvency or any balance
sheet item, level of income or financial condition of another Person,
(iii) to make take-or-pay or similar payments, if required, regardless of
non-performance by any other party or parties to an agreement, (iv) to
purchase, sell or lease (as lessor or lessee) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make payment of
such Indebtedness or to assure the holder of such Indebtedness against loss or
(v) to supply funds to, or in any other manner invest in, such other Person
(including to pay for property or services irrespective of whether such property
is received or such services are rendered), if in the case of any agreement
described under clause (b)(i),
(ii), (iii), (iv) or (v) above the primary
purpose or intent thereof is to provide assurance that Indebtedness of another
Person shall be paid or discharged, that any agreement relating thereto shall be
complied with or that any holder of such Indebtedness shall be protected (in
whole or in part) against loss in respect thereof. The amount of any
Guaranty Obligation shall be equal to the amount of the Indebtedness so
guaranteed or otherwise supported.
8
"Hazardous Materials"
means all explosive or radioactive substances or wastes and all hazardous or
toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes and all other substances or
wastes of any nature regulated pursuant to any Environmental Law.
"Illiquid Asset
Commitment" means, as of any date of determination, the portion of the
Commitment allocable to Illiquid Asset Funding as of such date (which as of the
Closing Date is $600 million), as the same may be changed from time to time
pursuant to Sections
2.4 (Changes to Commitment) and 2.5 (Supplemental Illiquid
Asset Funding).
"Illiquid Asset
Funding" means the portion of the Revolving Loans made available to
Borrower by Lender pursuant to Section 2.1 (The
Commitment) that are allocated to fund or maintain the funding for that
portion of the Collateral consisting of Illiquid Assets (which shall include the
Supplemental Illiquid Asset Funding for all purposes under this Agreement except
to the extent otherwise expressly set forth herein).
"Illiquid Assets" mean
(i) the student loans made or held by Borrower that do not qualify as FFELP
Loans or Private Loans pursuant to Section 4.13 (Student
Loans), (ii) the portion of the aggregate outstanding principal amount
(including accrued interest to be capitalized) of the FFELP Loans and Private
Loans that cannot be funded pursuant to FFELP Loan Funding or Private Loan
Funding, and (iii) any Retained Securitization Interests.
"Indebtedness" of any
Person means without duplication (a) all indebtedness of such Person for
borrowed money, (b) all obligations of such Person evidenced by notes,
bonds, debentures or similar instruments or that bear interest, (c) all
reimbursement and all obligations with respect to letters of credit, bankers'
acceptances, surety bonds and performance bonds, whether or not matured,
(d) all indebtedness for the deferred purchase price of property or
services, other than trade payables, (including obligations due within sixty
(60) days of incurrence thereof to pay or reimburse third parties who have
agreed to pay such trade payables on behalf of such Person), customer deposits
or advances, and accrued liabilities incurred in the ordinary course of business
that are not overdue for more than sixty (60) days or are being contested in
good faith by appropriate proceedings, (e) all indebtedness of such Person
created or arising under any conditional sale or other title retention agreement
with respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), (f) all Capital
Lease Obligations of such Person and the present value of future rental payments
under all synthetic leases, (g) all Guaranty Obligations of such Person,
(h) all obligations of such Person to purchase, redeem, retire, defease or
otherwise acquire for value any Stock or Stock Equivalents of such Person,
valued, in the case of redeemable preferred stock, at the greater of its
voluntary liquidation preference and its involuntary liquidation preference plus
accrued and unpaid dividends, (i) all payments that such Person would have
to make in the event of an early termination on the date Indebtedness of such
Person is being determined in respect of swaps, forwards, futures or derivative
transactions or similar agreements of such Person and (j) all indebtedness
of the type referred to above secured by (or for which the holder of such
indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien upon or in property (including Accounts and General Intangibles) owned
by such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness.
9
"Indemnified Amounts"
has the meaning specified in Section 8.4(a)
(Indemnities).
"Indemnified Person"
has the meaning specified in Section 8.4(a)
(Indemnities).
"Intangible Assets"
means, with respect to Borrower as of any date of determination, an amount
determined for Borrower and its Consolidated Subsidiaries on a consolidated
basis in conformity with GAAP equal to the sum (without duplication) of (i)
total deferred financing costs and (ii) total accumulated depreciation and
amortization of equipment and computer software.
"Interest Payment
Date" means, in the case of any Revolving Loan (other than any Revolving
Loan under Overnight Funding), the 25th day of each calendar month or, if such
date is not a Business Day, the immediately following Business Day, commencing
with February 25, 2010.
"Interest Period"
means, in the case of any Revolving Loan (other than any Revolving Loan under
Overnight Funding), with respect to each Interest Payment Date, the period from
and including the preceding Interest Payment Date (or the Closing Date in the
case of the first Interest Payment Date) to but excluding such Interest Payment
Date (or, in the case of the interest payment to be made on the Maturity Date of
any Revolving Loan, to but excluding the Maturity Date of such Revolving
Loan).
10
"Joinder Agreement"
means the Joinder Agreement pursuant to which a Non-Securitization Subsidiary
becomes a party to this Agreement in substantially the form attached hereto as
Exhibit D (Form of
Joinder Agreement).
"Lender" has the
meaning specified in the preamble hereto.
"LIBOR Base Rate"
means, with respect to any Interest Period for any Revolving Loan (other than
any Revolving Loan under Overnight Funding), the British Bankers Association's
Daily U.S. Dollar One-Month London interbank offered rate as of the second
London Banking Day preceding the first day of such Interest Period published on
Bloomberg.com under the page for symbol US0001M (or any replacement symbol);
provided, that
if such rate does not appear on Bloomberg.com on such date then the "LIBOR Base
Rate" shall be determined by reference to such other comparable publicly
available service for displaying U.S. Dollar One-Month London interbank offered
rates as may be selected by Lender or, in the absence of such availability, the
"LIBOR Base Rate" shall be the rate per annum determined by Lender to be the
rate per annum at which U.S. Dollar one-month deposits are offered by the
principal office of Citibank in London to major banks in the London interbank
market.
"LIBOR Rate" means,
with respect to any Interest Period for any Revolving Loan (other than any
Revolving Loan under Overnight Funding), an interest rate per annum equal to the
rate per annum obtained by dividing (a) the LIBOR Base Rate by
(b)(i) a percentage equal to 100% minus (ii) the
reserve percentage applicable two (2) London Banking Days before the first day
of such Interest Period under regulations issued from time to time by the
Federal Reserve Board for determining the maximum reserve requirement (including
any emergency, supplemental or other marginal reserve requirement) for a member
bank of the Federal Reserve System in New York City with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities (or with respect
to any other category of liabilities that includes deposits by reference to
which the LIBOR Rate is determined) having a term equal to such Interest
Period.
"Lien" means any
mortgage, deed of trust, pledge, hypothecation, collateral assignment, charge,
deposit arrangement, encumbrance, lien (statutory or other), security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever intended to assure payment of any Indebtedness
or the performance of any other obligation, including any conditional sale or
other title retention agreement, the interest of a lessor under a Capital Lease
and any financing lease having substantially the same economic effect as any of
the foregoing.
"Loans" means the
Revolving Loans and the Grandfathered Loans, collectively.
"London Banking Day"
means a day on which commercial banks are open for business (including dealings
in foreign exchange and foreign currency deposits) in London,
England.
11
"Major Event of
Default" means an Event of Default of the type described in clause (a), (b), (d), (e), (f) (other than the
financial covenant set forth in Section 6.16 (Minimum
Adjusted EBITDA to Interest Expense)), (g), (h), (i), (k) or (l) of the definition
of "Event of Default" set forth in Section 7.1 (Events of
Default).
"Material Adverse
Effect" means the occurrence of any event or the existence of any
condition with respect to Borrower and its Subsidiaries, taken as a whole,
including a decision, rule, interpretation, or order by any governmental
authority, that reasonably could be expected to have a material adverse effect
on (a) the business, assets, liabilities (actual or contingent), operations, or
condition (financial or otherwise) of Borrower and its Subsidiaries, taken as a
whole, (b) the ability of Borrower to pay and perform the Loans when due or to
duly perform its other obligations under the Transaction Documents to which it
is a party, or (c) the validity or enforceability of any of the Transaction
Documents to which it is a party or the rights and remedies of Lender
thereunder, subject to the following exceptions:
(i) Non-Federally Guaranteed
Student Loans (Private Student Loans).
1. Enactment
of the Private Student Loan Act as part of the HEOA of 2008 which imposes
significantly higher regulatory restrictions, disclosures and process changes on
the marketing origination of private post-secondary education student
loans.
2. The
elimination of the exemption from discharge in bankruptcy of private student
loans.
3. Implications
of changes proposed by the SAFRA bill (HR 3221) pending in the U.S. Congress
which could, inter alia, eliminate the preemption of state laws with respect to
loans made by national banks such as Citibank, N.A., creation of a Consumer
Financial Protection Agency with broad regulatory and enforcement powers, and
empowering states to impose more stringent consumer protection laws than
provided under federal law.
4. The
Office of the Comptroller of the Currency or other U.S. federal regulators
requiring changes to student loan servicing policies.
5. Borrower’s
commutation of any insurance policies currently in effect on any private student
loans.
6. A
bill pending in the U.S. Congress (S-1541) which allows, under certain
circumstances, the payoff ("debt swap") of
private student loans via a loan under the Federal Direct Loan program that
could have the effect of reducing Borrower's portfolio of private student loans
and/or accelerating the payoff of private student loans which have been
securitized and reducing the value of Borrower's residual interests in
portfolios of private student loans.
12
(ii) Federally Guaranteed Student
Loans.
1. The
elimination of private lender participation in the Federal Family Education Loan
("FFEL")
program.
2. The
failure to extend the effective date of the Ensuring Continued Access to Student
Loans Act of 2008 (the "ECASLA") thus making
the origination of FFEL student loans unattractive in the absence of any other
secondary market for this category of student loans.
3. The
U.S. Department of Education issued regulations effective July 2010 implementing
the provisions the Higher Education Opportunity Act of 2008 (the "HEOA") which (i)
impose regulatory prohibitions on the marketing of FFEL student loans and
relationships between lenders and schools and (ii) create additional disclosure
and servicing obligations.
4. Continued
higher than historical norms denied FFEL claims arising from greater scrutiny of
each FFEL defaulted claim filed with applicable guaranty agencies.
5. Industry
counterproposals to clause 1. above under "Federally Guaranteed Student
Loans."
(iii) Accounting
Rules.
1. The
implementation of the Statement of Financial Accounting Standards No. 166 (FAS
166) and FAS 167 by the Financial Accounting Standards Board.
(iv) Lender.
1. Compliance
with Lender policy changes or directives.
2. The
failure of Lender to consent to an alternative financing for Borrower's
portfolio of Student Loans pursuant to Section 5.2 (Release of
Collateral).
(v) Securitization.
1. Changes
to the manner in which entities may securitize financial assets including
currently proposed "skin in the game" requirements.
In
determining whether any individual event could reasonably be expected to result
in a Material Adverse Effect, notwithstanding that such event does not itself
have such effect, a Material Adverse Effect shall be deemed to have occurred if
the cumulative effect of such event and all other then existing events could
reasonably be expected to result in a Material Adverse Effect.
13
"Material
Indebtedness" means Indebtedness (other than the Loans), or obligations
in respect of one or more swap, forward, future or derivative transaction or
similar agreements, of Borrower and its Subsidiaries, in an aggregate principal
amount exceeding $10,000,000 (for which purpose the "principal" of the
obligations of Borrower or any Subsidiary in respect of any swap, forward,
future or derivative transaction or similar agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that Borrower
or such Subsidiary would be required to pay if such swap, forward, future or
derivative transaction or other similar agreement were terminated at such
time).
"Maturity Date" means,
with respect to (i) Overnight Funding, the Business Day following the date on
which the overnight borrowing is made and (ii) each other Type of Revolving
Loan, the earliest to occur of (A) the Scheduled Maturity Date, (B) the date on
which the maturity of the Revolving Loans is accelerated by Lender following the
occurrence of an Event of Default pursuant to Section 7.2 (Acceleration of
Maturity) and (C) the date on which the Change of Control Trigger is
triggered.
"Moody's" means
Moody's Investors Services, Inc., and any successor or successors
thereto.
"Non-Securitization
Subsidiary" means any Subsidiary of Borrower that is not a Securitization
Subsidiary.
"Obligations" means
the Loans and all other amounts, obligations, covenants and duties owing by
Borrower to Lender or any Indemnified Person, of every type and description,
present or future, arising under this Agreement or any other Transaction
Document, absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired and whether or not evidenced by any note,
guaranty or other instrument or for the payment of money, and, whether or not
allowed to accrue in any insolvency proceeding, all other fees, interest,
charges, expenses, attorneys' fees and disbursements and other sums chargeable
to Borrower under this Agreement or any other Transaction Document.
"Other Taxes" has the
meaning specified in Section 2.15(b)
(Taxes).
"Overnight Funding"
means Revolving Loans made available to Borrower by Lender pursuant to Section 2.1 (The
Commitment) for overnight funding.
"Overnight LIBID"
means, as of any date of determination, the rate (not less than zero) determined
by Lender equal to Overnight LIBOR as of such date minus 0.125% per
annum.
"Overnight LIBOR"
means, as of any date of determination, the rate identified by Lender as the
British Bankers Association's Daily U.S. Dollar London interbank offered rate
for overnight deposits as of such date as published on Bloomberg.com under the
page for symbol US00 O/N (or any replacement symbol); provided, that if
such rate does not appear on Bloomberg.com on such date then "Overnight LIBOR"
shall be determined by reference to such other comparable publicly available
service for displaying U.S. Dollar London interbank offered rates for overnight
deposits as may be selected by Lender or, in the absence of such availability,
"Overnight LIBOR" shall be the rate per annum determined by Lender to be the
rate per annum at which U.S. Dollar overnight deposits are offered by the
principal office of Citibank in London to major banks in the London interbank
market.
14
"Participant" has the
meaning specified in Section 8.2(b)
(Assignments and Participations).
"Participation
Program" has the meaning specified in Section 5.2(a) (Release of
Collateral).
"Patriot Act" has the
meaning specified in Section 8.17 (Patriot Act
Notice).
"Permit" means any
permit, approval, authorization, license, variance or permission required from a
Governmental Authority under an applicable Requirement of Law.
"Permitted Liens"
means, with respect to any Person, any of the following Liens:
(a) Liens
with respect to the payment of taxes, assessments or governmental charges in
each case that are not yet due or that are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves or other
appropriate provisions are being maintained to the extent required by
GAAP;
(b) Liens of
landlords arising by statute and Liens of suppliers, mechanics, carriers,
materialmen, warehousemen or workmen and other similar Liens, in each case (i)
imposed by law (other than Liens imposed pursuant to Section 401(a)(29) or
412(n) of the Code or by ERISA) or arising in the ordinary course of business,
(ii) for amounts not yet due or that are being contested in good faith by
appropriate proceedings and (iii) with respect to which adequate reserves or
other appropriate provisions are being maintained to the extent required by
GAAP;
(c) deposits
made in the ordinary course of business in connection with workers'
compensation, unemployment insurance or other types of social security benefits
or to secure the performance of bids, tenders, sales, contracts (other than for
the repayment of borrowed money), leases and surety, appeal, customs or
performance bonds;
(d) encumbrances
arising by reason of zoning restrictions, easements, licenses, reservations,
covenants, rights-of-way, utility easements, building restrictions and other
similar encumbrances on the use of real property and any other matters of record
not materially detracting from the value of such real property or not materially
interfering with the ordinary conduct of the business conducted and proposed to
be conducted at such real property;
(e) encumbrances
arising under leases or subleases of real property that do not, in the
aggregate, materially detract from the value of such real property or interfere
with the ordinary conduct of the business conducted and proposed to be conducted
at such real property;
15
(f) financing
statements with respect to a lessor's rights in and to personal property leased
to such Person in the ordinary course of such Person's business other than
through a Capital Lease;
(g) local,
county, state and federal laws, ordinances or governmental regulations now or
hereafter in effect relating to the real property owned or leased by such
Person;
(h) deposits
made by and escrow or similar arrangements to secure obligations or liabilities
arising from agreements providing for indemnification, adjustment of purchase
price, earn-out or other similar obligations, in each case incurred or assumed
in connection with the disposition of any assets (to the extent such disposition
of assets is permitted hereby);
(i) judgment
Liens that do not give rise to an Event of Default under Section 7.1 (Events
of Default);
(j) licenses,
leases or subleases granted to others not interfering in any material respect
with the business of Borrower and its Subsidiaries taken as a
whole;
(k) Liens of
a collection bank arising under, or described by, Section 4-201 of the
UCC;
(l) normal
and customary rights of setoff upon deposits of cash in favor of banks or other
depositary institutions;
(m) the Liens
granted prior to the Closing Date that are identified in the UCC-1 search
reports set forth in Schedule II (Permitted
Liens) attached hereto;
(n) Liens
granted in connection with the U.S. Department of Education's Put Program and
Participation Program; and
(o) the Liens
granted on or after the Closing Date in connection with direct and indirect
sales of Student Loans to Securitization Vehicles that are permitted pursuant to
Section 5.2 (Release
of Collateral).
"Person" means an
individual, partnership, corporation (including a business trust), joint stock
company, estate, trust, limited liability company, unincorporated association,
joint venture or other entity or a Governmental Authority.
"PPI Program" has the
meaning specified in Section 5.2(a) (Release of
Collateral).
"Primary Account"
means Borrower's primary deposit account established and maintained by Borrower
at Citibank (and bearing account number 4069-5855).
16
"Prime Rate" means the
rate of interest per annum publicly announced from time to time by Lender as its
prime rate in effect from time to time in its principal office in New York, New
York.
"Private Loan" means a
Citi Assist student loan or other non-guaranteed student loans originated by
Citibank and held by Borrower that (i) satisfies the eligibility requirements
determined by Lender pursuant to Section 4.13 (Student
Loans) and (ii) is identified in the Schedule of Private Loans to be
delivered to Lender by Borrower electronically on the Closing Date and
maintained on record by Lender, as such schedule may be updated electronically
by written notice to Lender by Borrower from time to time.
"Private Loan Borrowing
Base" means, as of any date of determination, the amount determined by
Lender equal to the lesser of:
(a) the
portion of the Commitment allocable to Private Loan Funding as of such date
(which as of the Closing Date is $4 billion), as the same may be changed from
time to time pursuant to Section 2.4 (Changes to
Commitment); and
(b) the
amount equal to (i) the maximum aggregate outstanding principal amount of
securities that can be issued with a "Aaa" rating by Moody's according to the
repayment stress scenario applied by Lender to the information on the portfolio
of Private Loans included in the Collateral that is set forth in the most
recently provided month-end computer tape using Lender's dynamic cash flow
computer model that incorporates Moody's published rating methodology and
reflects current market conditions, minus (ii) the initial cash deposit that
would be required to be made to a capitalized interest account and cash reserve
account to support the "Aaa" rating by Moody's, minus (iii) the aggregate amount
of the underwriting fees, dealer concessions, rating agency fees and other
closing fees and expenses that Lender would expect to be incurred in connection
with the issuance of such securities.
"Private Loan Funding"
means the portion of the Revolving Loans made available to Borrower by Lender
pursuant to Section
2.1 (The Commitment) that are allocated to fund or maintain the funding
for that portion of the Collateral consisting of Private Loans.
"Put Program" has the
meaning specified in Section 5.2(a) (Release of
Collateral).
"Requirement of Law"
means, with respect to any Person, the common law and all federal, state, local
and foreign laws, treaties, rules and regulations, orders, judgments, decrees
and other determinations of, concessions, grants, franchises and licenses with,
any Governmental Authority or binding arbitrator, applicable to or binding upon
such Person or any of its property or to which such Person or any of its
property is subject.
"Retained Securitization
Interests" means (i) the residual interests in Securitization Vehicles
other than (A) the membership interests in SLC Conduit I LLC and (B) the
interest in any other special purpose vehicle established pursuant to the U.S.
Department of Education's Conduit Program (which for the avoidance of doubt
shall exclude the equity interests in Depositaries); (ii) any rated securities
or other securities issued by the Securitization Vehicles that are held by
Borrower and the Non-Securitization Subsidiaries; and (iii) the "Class B
Participation Interest" issued to Borrower under the U.S. Department of
Education's Participation Program that is identified in Schedule V (Schedule of
Retained Securitization Interests) attached hereto.
17
"Revolving Loan" has
the meaning specified in Section 2.1 (The
Commitments).
"Scheduled Commitment Period
Termination Date" means December 30, 2010 or, if the Commitment Period is
extended for an additional 364-day period pursuant to Section 2.1(b) (The
Commitment), December 29, 2011.
"Scheduled Maturity
Date" means, with respect to (i) Overnight Funding, the Business Day
following the date on which the overnight borrowing is made and (ii) each other
Type of Revolving Loan, December 30, 2010 or, if the Commitment Period is
extended for an additional 364-day period pursuant to Section 2.1(b) (The
Commitment), December 29, 2011.
"SEC" means the U.S.
Securities and Exchange Commission.
"Securitization
Subsidiary" means any present or future Depositary or Securitization
Vehicle, as the context may require.
"Securitization
Vehicle" means any present or future special purpose, bankruptcy remote
securitization vehicle established pursuant to a securitization warehouse
facility or term facility from time to time (which, for the avoidance of doubt,
shall exclude Depositaries, but shall include any special purpose vehicle
established pursuant to the U.S. Department of Education's Conduit
Program).
"Senior Officer"
means, with respect to any Person, any of the principal executive officers,
natural persons that are managing members or natural persons that are general
partners of such Person and, in any event shall include (i) the Chief Senior
Officer, (ii) the Secretary and any Assistant Secretary, (iii) any Vice
President, (iv) the Controller, (v) Treasurer and (vi) principal accounting
officer of such Person.
"Servicing Agreements"
means each of the servicing agreements, sub-servicing agreements, disbursement
agreements and other similar agreements to which Borrower or any
Non-Securitization Subsidiary is a party identified in Schedule IV (Servicing
Agreements) attached hereto, together will all other servicing
agreements, sub-servicing agreements, disbursement agreements and other similar
agreements that Borrower or any Non-Securitization Subsidiary may enter into
from time to time following the Closing Date.
"Servicing Side Letter
Agreement" means any letter agreement that, among other things, instructs
a payor or transferor of funds to remit amounts payable or distributable to
Borrower or one or more of its Affiliates to an account set forth in Schedule III (Borrower's
Accounts), which instructions shall not be changed or revoked without the
prior written consent of Lender pursuant to such letter agreement, and
instructing such payor or transferor to notify Lender if any contrary payment
instructions are provided to it without the written consent of Lender, in each
case, as the same may be amended or otherwise modified from time to time in
accordance with the terms hereof.
18
"Side Letter
Agreement" means the letter agreement, dated the Closing Date, entered
into between Lender and Borrower, relating to this Agreement, as the same may be
amended or otherwise modified from time to time in accordance with the terms
thereof.
"SLC" has the meaning
specified in the preamble hereto.
"Solvent" means, with
respect to any Person as of any date of determination, that, as of such date,
(a) the value of the assets of such Person is greater than the total amount
of liabilities (including contingent and unliquidated liabilities) of such
Person as determined in accordance with GAAP, (b) such Person is able to
pay all liabilities of such Person as such liabilities mature and (c) such
Person does not have unreasonably small capital. In computing the
amount of contingent or unliquidated liabilities at any time, such liabilities
shall be computed at the amount that, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
"Stock" means shares
of capital stock (whether denominated as common stock or preferred stock),
beneficial, partnership or membership interests, participations or other
equivalents (regardless of how designated) of or in a corporation, partnership,
limited liability company or equivalent entity, whether voting or
non-voting.
"Stock Equivalents"
means all securities convertible into or exchangeable for Stock and all
warrants, options or other rights to purchase or subscribe for any Stock,
whether or not presently convertible, exchangeable or exercisable.
"Student Loan" means
any FFELP Loan or Private Loan, as the context may require.
"Subsidiary" means,
with respect to any Person, any corporation, partnership, limited liability
company or other business entity of which an aggregate of more than 50% of the
outstanding Voting Stock is, at the time, directly or indirectly, owned or
controlled by such Person or one or more Subsidiaries of such
Person.
"Supplemental Illiquid Asset
Funding" means the additional funding of Revolving Loans under Illiquid
Asset Funding that Lender shall commit to fund at Borrower's election in an
amount up to $500 million (in two increments of $250 million each) pursuant to
Section 2.5
(Supplemental Illiquid Asset Funding).
"Supplemental Up-Front
Fee" means if Borrower exercises its option to cause Lender to commit to
fund (i) the first $250 million increment of Supplemental Illiquid Asset Funding
pursuant to Section
2.5 (Supplemental Illiquid Asset Funding), an amount equal to $6,250,000,
and (ii) the second $250 million increment of Supplemental Illiquid Asset
Funding pursuant to Section 2.5 (Supplemental
Illiquid Asset Funding), an amount equal to $11,250,000.
19
"Taxes" has the
meaning specified in Section 2.15(a)
(Taxes).
"Transaction
Documents" means this Agreement, the Side Letter Agreement, the Servicing
Side Letter Agreements, the Joinder Agreements, if any, and such other documents
as may be identified as "Transaction Documents" for purposes of this Agreement
by Lender and Borrower from time to time and all other agreements and other
documents entered into or delivered in connection therewith.
"Trust Agreement"
means the Trust Agreement, dated as of August 30, 2003, between SLC, as the
grantor thereunder, and Citibank, not in its individual capacity but solely in
its capacity as the trustee thereunder, relating to FFELP Loans, as the same may
be amended, supplemented or otherwise modified from time to time in accordance
with the terms thereof.
"Trustee" means
Citibank, not in its individual capacity, but solely in its capacity as the
trustee under the Trust Agreement and its successors and assigns in such
capacity.
"Type of Revolving
Loan" means each of the following four types of Revolving
Loans: Overnight Funding, FFELP Loan Funding, Private Loan Funding
and Illiquid Asset Funding.
"UCC" means the
Uniform Commercial Code as in effect from time to time in the State of New York
(the "New York
UCC"); provided, however, in the event
that, by reason of mandatory provisions of law, any or all of the perfection or
priority of Lender's security interest in any Collateral is governed by the
Uniform Commercial Code as in effect in a jurisdiction other than the State of
New York, then the term "UCC" shall mean the
Uniform Commercial Code as in effect in such other jurisdiction or jurisdictions
for purposes of the provisions hereof relating to perfection or priority and for
purposes of definitions related to such provisions.
"Undrawn Fee" has the
meaning specified in Section 2.11(c)
(Fees).
"Undrawn Fee Rate"
means, with respect to (i) FFELP Loan Funding, 30 basis points per annum, (ii)
Private Loan Funding, 200 basis points per annum, and (iii) Illiquid Asset
Funding (including the undrawn portion of the Supplemental Illiquid Asset
Funding, if any, that Lender has committed to fund pursuant to Section 2.5 (Supplemental
Illiquid Asset Funding), 100 basis points per annum.
"Up-Front Fee" means
an amount equal to $57,000,000.
"Voting Stock" means
Stock of any Person having ordinary power to vote in the election of members of
the board of directors, managers, trustees or other controlling Persons, of such
Person (irrespective of whether, at the time, Stock of any other class or
classes of such entity shall have or might have voting power by reason of the
happening of any contingency).
20
Section
1.2 UCC
Definitions
In this
Agreement, the terms "Certificated Security," "Chattel Paper," "Commercial Tort
Claim," "Control," "Deposit Account," "Document," "Electronic Chattel Paper,"
"Entitlement Holder," "Entitlement Order," "Financial Asset," "General
Intangible," "Goods," "Instrument," "Investment Property," "Letter-of-Credit
Rights," "Money," "Negotiable Instrument," "Payment Intangible," "Proceeds,"
"Security," "Securities Account," "Security Entitlement," "Securities
Intermediary," "Supporting Obligations," "Tangible Chattel Paper" and
"Uncertificated Security" shall have the meanings assigned to the terms
"certificated security," "chattel paper," "commercial tort claim," "control,"
"deposit account," "document," "electronic chattel paper," "entitlement holder,"
"entitlement order," "financial asset," "general intangible," "goods,"
"instruments," "investment property," "letter-of-credit rights," "money,"
"negotiable instrument," "payment intangible," "proceeds," "security,"
"securities account," "security entitlement," "securities intermediary,"
"supporting obligation," "tangible chattel paper" and "uncertificated
security," respectively, under the New York UCC as in effect on the date
hereof.
Section
1.3 Computation of Time
Periods
In this
Agreement, in the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including" and the words
"to" and "until" each mean "to but excluding" and the word "through" means "to
and including."
Section
1.4 Accounting Terms and
Principles
(a) (i) All
accounting terms not specifically defined herein shall be construed in
accordance with GAAP and all accounting determinations required to be made
pursuant hereto shall, unless expressly otherwise provided herein, be made in
accordance with GAAP and (ii) for the purpose of measuring compliance with Sections 6.16 (Minimum
Adjusted EBITDA to Interest Expense) and 6.17 (Minimum Consolidated
Tangible Net Worth), all accounting terms and determinations shall,
unless expressly otherwise provided herein, be made in accordance with GAAP as
in effect on the Closing Date.
(b) Notwithstanding
clause (a)(ii)
of this Section 1.4
(Accounting Terms and Principles), if Borrower or any of its Subsidiaries
shall make any change to its accounting treatment and reporting practices or tax
reporting treatment and such change would result (but for clause (a)(ii) of
this Section 1.4
(Accounting Terms and Principles)) in a change in any of the calculations
required by Sections
6.16 (Minimum Adjusted EBITDA to Interest Expense) and 6.17 (Minimum Consolidated
Tangible Net Worth), in each case, that would not have resulted had such
change not occurred, Borrower may request that such provisions, including clause (a)(ii) of
this Section 1.4
(Accounting Terms and Principles), be amended so as to equitably reflect
such change such that the criteria for evaluating compliance with such covenants
by Borrower shall be the same (but for clause (a)(ii) of
this Section 1.4
(Accounting Terms and Principles)) after such change as if such change
had not been made.
21
(c) For
purposes of making all financial calculations to determine compliance with Sections 6.16 (Minimum
Adjusted EBITDA to Interest Expense) and 6.17 (Minimum Consolidated
Tangible Net Worth), all components of such calculations shall be
adjusted to include or exclude, as the case may be, without duplication, such
components of such calculations attributable to any business or assets that have
been acquired or divested by Borrower or any of its Subsidiaries after the first
day of the applicable period of determination and prior to the end of such
period, as determined in good faith by Borrower on a pro forma
basis.
Section
1.5 Rounding
Off
Lender
may set up appropriate rounding off mechanisms or otherwise round-off amounts
hereunder to the nearest higher or lower amount in whole Dollars or whole cents
to ensure amounts owing by any party hereunder or that otherwise need to be
calculated or converted hereunder are expressed in whole Dollars or in whole
cents, as may be necessary or appropriate.
Section
1.6 Certain
Terms
(a) The terms
"herein," "hereof," "hereto" and "hereunder" and similar terms refer to this
Agreement as a whole and not to any particular Article, Section, subsection or
clause in, this Agreement.
(b) Unless
otherwise expressly indicated herein, (i) references in this Agreement to
an Exhibit, Schedule, Article, Section, clause or sub-clause refer to the
appropriate Exhibit or Schedule to, or Article, Section, clause or sub-clause in
this Agreement and (ii) the words "above" and "below," when following a
reference to a clause or a sub-clause of any Transaction Document, refer to a
clause or sub-clause within, respectively, the same Section or
clause.
(c) References
in this Agreement to any statute shall be to such statute as amended or modified
from time to time and to any successor legislation thereto, in each case as in
effect at the time any such reference is operative.
(d) The term
"including" when used in any Transaction Document means "including without
limitation" except when used in the computation of time periods.
(e) The terms
"Lender" and "Borrower" include, without limitation, their respective permitted
successors and assigns hereunder.
22
ARTICLE
II
THE
FACILITY
Section
2.1 The
Commitment
(a) Commitment. On
the terms and subject to the conditions contained in this Agreement, Lender
agrees to make loans (each, a "Revolving Loan") to
Borrower from time to time on any Business Day during the Commitment Period in
an aggregate outstanding principal amount at any time outstanding for each Type
of Revolving Loan not to exceed the portion of Commitment allocable to such Type
of Revolving Loan, as the same may be increased, reduced or reallocated in the
manner provided in Sections 2.4 (Changes to
Commitment) and 2.5 (Supplemental Illiquid
Asset Funding). Within the foregoing limits and subject to the
terms and conditions set forth herein, Borrower may borrow, repay and reborrow
Revolving Loans on any Business Day during the Commitment Period.
(b) Extension of
Commitment. The Commitment shall be extended for one
additional 364-day term commencing immediately following the expiration of the
original 364-day term if (i) Borrower delivers written notice to Lender of
Borrower's desire to extend for the additional term on or prior to August 31,
2010, (ii) Lender responds by delivering written notice to Borrower that Lender
desires to extend for the additional term on or prior to September 30, 2010 and
(iii) Borrower and Lender mutually agree in writing to the changes to pricing,
any changes to the manner in which the Borrowing Base shall be calculated and
other changes that shall apply to the additional term prior to the expiration of
the original 364-day term (for which purpose Borrower and Lender hereby agree to
negotiate such changes in good faith); provided, that Lender
shall be under no obligation to extend for the additional term if Borrower and
Lender are unable agree to the changes that shall apply to the additional term
prior to the expiration of the original 364-day term; provided, further, that the
Commitment shall not be extended for the additional 364-day term if the Change
of Control Trigger has been triggered or an Event of Default has occurred and is
continuing.
Section
2.2 Borrowing
Procedures
(a) Each
Borrowing shall be made (i) on the same Business Day as the proposed
Borrowing in accordance with Lender's same day funding practices, in the case of
a Revolving Loan that is Overnight Funding, and (ii) by written notice
given to Lender by Borrower by 10:00 a.m. (New York time) at least five (5)
Business Days but no more than eight (8) Business Days prior to the date of the
proposed Borrowing, in the case of a Borrowing under the three remaining Types
of Revolving Loans. The written notice to be given to Lender by
Borrower for any Type of Revolving Loan other than Overnight Funding shall be in
substantially the form of Exhibit A (Form of
Borrowing Request) (a "Borrowing Request"),
specifying (A) the date of the proposed Borrowing and (B) the
aggregate amount of the proposed Borrowing under each Type of Revolving
Loan. Each Borrowing (other than any Borrowing that is Overnight
Funding) shall be in an aggregate amount of not less than $10,000,000 and
integral multiples of $100,000 in excess thereof unless the Borrowing is for the
remaining amount of the undrawn Commitment allocable to such Type of Revolving
Loan. Lender shall not fund a proposed Borrowing pursuant to this
Section 2.2(a)
23
(b) If a
Borrowing is properly requested in a Borrowing Request pursuant to Section 2.2(a) and
the applicable conditions set forth in Section 3.2 (Conditions
Precedent to Each Borrowing) have been satisfied, Lender shall (i) at
least one (1) Business Day prior to date of the Borrowing, determine the
applicable interest rate pursuant to Section 2.13(a)
(Determination of Interest Rate) and (ii) by 1:00 p.m. (New York time) on
the date of the Borrowing, make available to Borrower by wire transfer of
immediately available funds in accordance with Borrower's wiring instructions
set forth in Schedule
VII (Addresses for Notices and Wiring Instructions), the amount of such
Borrowing.
(c) To the
extent that Borrower does not apply the proceeds of a Revolving Loan in the
manner provided in Section 4.14 (Use of
Proceeds), including amounts held in reserve by Borrower for working
capital purposes, Borrower shall lend such amounts to Lender overnight for
Lender to maintain in Lender's account or accounts at an overnight rate equal to
Overnight LIBID. Lender (in its capacity as such) shall have a
security interest in such proceeds pursuant to Section 5.1(a) (Grant of
Security Interest).
Section
2.3 Grandfathered
Loans
The
aggregate outstanding principal amount of the advances under the Original
Omnibus Credit Agreement and the accrued and unpaid interest thereon and all
other amounts due and payable thereon shall continue
to remain outstanding as the Grandfathered Loans under this Agreement subject to
the same interest rates, payment dates, maturity dates and other terms that
apply pursuant to the Original Omnibus Credit Agreement as set forth in Schedule
I (Grandfathered Loans) hereto; provided,
that the Grandfathered Loans shall be subject to prepayment to the extent and in
the manner set forth in Sections
2.6 (Repayment of Revolving Loans) and 2.9
(Mandatory Prepayments) and Article
VII (Events of Default; Remedies Following Event of Default or Change of Control
Trigger) and shall otherwise be subject to the terms and provisions of
this Agreement. Except to the extent otherwise expressly set forth
herein, the commitment of Lender to make advances to Borrower under the Original
Omnibus Credit Agreement and all other terms and provisions under the Original
Omnibus Credit Agreement shall be of no further force and effect on and after
the Closing Date.
24
Section
2.4 Changes to
Commitment
(a) Reduction and
Termination. Borrower may voluntarily reduce or terminate the
undrawn portion of the Commitment (in total or for any of the four Types of
Revolving Loans) on any Business Day on at least one (1) Business Day prior
written notice to Lender without payment of a penalty or premium thereon; provided, that any
reduction shall be in an aggregate amount of not less than $25,000,000 or an
integral multiple of $5,000,000 in excess thereof unless the reduction is to
terminate the entire portion of the Commitment allocable to such Type of
Revolving Loan. Lender shall not be required to reimburse Borrower
for all or part of the Up-Front Fee paid by Borrower on the Closing Date (or the
Supplemental Up-Front Fee paid by Borrower in connection with Supplemental
Illiquid Asset Funding following the Closing Date) upon any voluntary reduction
or termination of the Commitment.
(b) Increase to and
Reallocations of Commitment. In addition to the Supplemental
Illiquid Asset Funding pursuant to Section 2.5 (Supplemental
Illiquid Asset Funding), the Commitment may be increased in respect of
one or more Types of Revolving Loans (subject to payment of an additional
up-front fee to be mutually agreed upon by Lender and Borrower) or may be
reallocated among the Types of Revolving Loans by mutual agreement of Lender and
Borrower in writing.
Section
2.5 Supplemental Illiquid Asset
Funding
At the
election of Borrower, the portion of the Commitment allocable to Illiquid Asset
Funding may be increased up to an additional $500 million (in two increments of
$250 million each) (such additional amount that Lender is committed to fund
under Illiquid Asset Funding being referred to herein as the "Supplemental Illiquid Asset
Funding") for all or part of the Commitment Period on any Business Day on
at least three (3) Business Days' prior written notice to Lender; provided, that
Borrower shall not be entitled to request Supplemental Illiquid Asset Funding if
the Change of Control Trigger has been triggered or an Event of Default has
occurred and is continuing. Lender's commitment to fund the first or
second increment of Supplemental Illiquid Asset Funding shall be conditioned
upon the payment to Lender by Borrower of the applicable Supplemental Up-Front
Fee pursuant to Section 2.11(b)
(Fees).
25
Section
2.6 Repayment of Revolving
Loans
Borrower
promises to repay the entire unpaid principal amount of the Revolving Loans and
the accrued and unpaid interest thereon on the related Maturity
Date.
Section
2.7 Evidence of
Debt
(a) Lender
shall maintain on its internal records an account or accounts evidencing the
aggregate outstanding principal amount of the Revolving Loans made by it and
each repayment and prepayment in respect thereof. Any such
recordation shall be conclusive and binding on Borrower, absent manifest error;
provided, that
the failure to make any such recordation, or any error in such recordation,
shall not affect the Commitment or Borrower's obligations in respect of the
Revolving Loans.
(b) Notwithstanding
any other provision of the Agreement, in the event that Lender requests that
Borrower execute and deliver a promissory note or notes payable to Lender in
order to evidence the Revolving Loans under each Type of Revolving Loan,
Borrower shall promptly execute and deliver a promissory note or notes
evidencing the Revolving Loans under each Type of Revolving Loan in such form as
may be requested.
Section
2.8 Voluntary
Prepayments
Borrower
may voluntarily prepay all or part of any Loan on any Business Day without
payment of any penalty upon at least one (1) Business Day prior written notice
to Lender. Any voluntary prepayment of a Grandfathered Loan shall be
for an amount equal to the fair value of the Grandfathered Loan as determined by
Lender based on a mark-to-market valuation by Lender; provided, that
Borrower shall not be required to voluntarily prepay all or part of any
Grandfathered Loan if Borrower does not accept the fair value determined by
Lender. Any voluntary prepayment of a Revolving Loan pursuant to this
Section 2.8 (Voluntary
Prepayment) shall be for an amount equal to the outstanding principal
amount thereof and the accrued and unpaid interest thereon without the payment
of any penalty or premium thereon.
Section
2.9 Mandatory
Prepayments
(a) Change of Control
Trigger. If the Change of Control Trigger is triggered, (i)
the Commitment shall be automatically terminated in whole, (ii) the maturity
date of the Loans shall be automatically accelerated and the outstanding
principal amount of the Loans, all accrued and unpaid interest thereon and all
other amounts and Obligations payable to Lender by Borrower under this Agreement
shall be immediately due and payable in full, and (iii) Lender may exercise its
security interests in the Collateral to liquidate the Collateral for application
to repay the aggregate outstanding principal amount of the Loans, all accrued
and unpaid interest thereon and such other amounts and Obligations in the manner
provided in Sections
7.4 (Remedies Following Event of Default or Change of Control Trigger)
through 7.9 (Other
Remedies).
(b) Release of
Collateral. If all or part of the Student Loans or other
Collateral is released from the security interests granted to Lender in the
Collateral in connection with whole loan sales, direct or indirect sales to
Securitization Vehicles, alternative funding or any other disposition of the
Student Loans or other Collateral pursuant to Section 5.2 (Release of
Collateral) or otherwise, Borrower shall apply the net proceeds from such
sale, alternative funding or other disposition to prepay the Revolving Loans to
the extent necessary to cure any Borrowing Base Deficiency. Any
remaining amount of such net proceeds shall be applied by Borrower in the manner
provided under Section
5.2 (Release of Collateral).
26
(c) Change in
Law. If Lender determines (acting reasonably) that, due to a
change in law, regulation or policy the aggregate principal amount of the Loans
exceeds the legal lending limit of Lender or is otherwise prohibited or subject
to reduction, Borrower shall repay the Loans upon at least five (5) Business
Days prior written notice to Borrower (or such longer grace period as may be
permitted by the applicable Governmental Authority) to the extent necessary for
such legal lending limit or other legal requirement to be satisfied; provided, that to the
extent permitted by law or regulation, Lender shall, at its sole discretion and
consistent with its own internal policies, seek to avoid the acceleration of the
repayment of the Loans in such manner; provided, that for
the avoidance of doubt, nothing contained herein will obligate Lender to take
any action that imposes on Lender any additional costs or legal or regulatory
burdens, nor which, in Lender's opinion, would have a material adverse effect on
its business, operations or financial condition or cause Lender to suffer any
legal disadvantage. Under no circumstances shall Lender have any
obligation to challenge any regulation or contest any decision by any
Governmental Authority. Borrower shall be entitled to elect which
Loans shall be prepaid in whole or in part in order to satisfy the legal
limit.
(d) Event of
Default. If Lender accelerates the maturity of the Loans
following the occurrence of an Event of Default pursuant to Section 7.2 (Acceleration of
Maturity; Other Remedies), the outstanding principal amount of and
accrued and unpaid interest on the Loans shall be payable in full and the net
proceeds of the liquidation of the Collateral shall be applied to pay such
amount pursuant to Section 7.4 (Remedies
Following Event of Default or Change of Control Trigger).
(e) Mandatory Prepayment
Amount. Any prepayment of the Grandfathered Loans pursuant to
clause (a),
(c) or (d) of this Section 2.9 (Mandatory
Prepayments) shall be for an amount equal to the fair value of the
Grandfathered Loan as determined by Lender based on a mark-to-market valuation
by Lender. Any prepayment of the Revolving Loans pursuant to clause (a), (b), (c) or (d) of this Section 2.9 (Mandatory
Prepayments) shall be for an amount equal to the outstanding principal
amount thereof and the accrued and unpaid interest thereon without the payment
of any penalty or premium thereon.
Section
2.10 Interest
(a) Rate of
Interest. The Revolving Loans shall bear interest on the
aggregate outstanding principal amount thereof from the date of funding until
paid in full at a rate per annum equal to the sum of (i) the LIBOR Rate
determined for the applicable Interest Period and (ii) the Applicable
Margin in effect from time to time during such Interest Period (calculated daily
on a weighted average basis to reflect the allocation and reallocation of the
Revolving Loans into each Type of Revolving Loan on a daily basis); provided, that the
rate per annum applicable to Overnight Funding shall equal the higher of (x) the
Federal Funds Target and (ii) Overnight LIBOR; provided, further, that in the
circumstance described in Section 2.13(b) or
(d) (Other Provisions
Governing Revolving Loans), the rate applicable to the Revolving Loans
shall be the Base Rate calculated daily on a weighted average basis to reflect
the allocation and reallocation of the Revolving Loans into each Type of
Revolving Loan on a daily basis for the applicable Interest Period; provided, further, that if an
Event of Default has occurred and is continuing, the rate of interest specified
in Section
2.10(c) shall apply.
27
(b) Interest
Payments. Interest accrued on each Revolving Loan shall be
payable in arrears (i) on each Interest Payment Date, (ii) upon the
payment or prepayment of such Revolving Loan in full or in part and
(iii) if not previously paid in full, at maturity (whether by acceleration
or otherwise) of such Revolving Loan. To the extent that the accrued
and unpaid interest on any Revolving Loan is not paid when due, such accrued and
unpaid interest will accrue interest thereon (to the extent legally permissible)
at the rate of interest applicable to such Revolving Loan until paid in
full.
(c) Default
Interest. Notwithstanding the rate of interest specified in
Section 2.10(a)
or elsewhere herein, effective immediately upon the occurrence of an Event of
Default and for as long thereafter as such Event of Default shall be continuing,
the aggregate outstanding principal amount of the Revolving Loans then due and
payable shall bear interest at a weighted average rate per annum (calculated
daily) equal to the Default Rate in effect from time to time during such
Interest Period for the Revolving Loans.
Section
2.11 Fees
(a) Up-Front
Fee. On the Closing Date, Borrower agrees to pay to or at the
direction of Lender in immediately available funds an amount equal to the
Up-Front Fee in consideration of the Commitment. If the Commitment is
terminated prior to the expiration of the original 364-day Commitment Period
because the Change of Control Trigger is triggered, Lender shall reimburse
Borrower for the portion of the Up-Front Fee that is attributable to the pro
rata portion of the 364-day period that is terminated.
(b) Supplemental Up-Front
Fee. If Borrower exercises its right to cause Lender to commit
to fund the first or second increment of the Supplemental Illiquid Asset Funding
pursuant to Section
2.5 (Supplemental Illiquid Asset Funding), Borrower agrees to pay to or
at the direction of Lender in immediately available funds an amount equal to the
Supplemental Up-front Fee in respect of such increment of the Supplemental
Illiquid Asset Funding on the effective date of such Supplemental Illiquid Asset
Funding in consideration of such Supplemental Illiquid Asset
Funding. If the Commitment is terminated prior to the expiration of
the original 364-day Commitment Period because the Change of Control Trigger is
triggered, Lender shall reimburse Borrower for the portion of the Supplemental
Up-Front Fee, if any, previously paid by Borrower that is attributable to the
pro rata portion of the 364-day period that is terminated.
28
(c) Undrawn
Fee. Borrower agrees to pay to or at the direction of Lender
in immediately available funds an undrawn fee (the "Undrawn Fee") on the
undrawn portion of the Commitment allocable to each Type of Revolving Loan
(calculated daily on a weighted average basis) from the Closing Date to the
Commitment Period Termination Date at the Undrawn Fee Rate applicable to such
Type of Revolving Loan. The Undrawn Fee shall be paid to Lender by
Borrower in arrears (i) on each Interest Payment Date with respect to the
Undrawn Fee accrued over the related Interest Period and (y) on the
Commitment Period Termination Date. To the extent that the
accrued and unpaid Undrawn Fee is not paid when due, such accrued and unpaid
Undrawn Fee will accrue interest thereon (to the extent legally permissible) at
the Undrawn Fee Rate.
Section
2.12 Payments and
Computations
(a) Borrower
shall make each payment hereunder (including fees and expenses) not later than
1:00 p.m. (New York time) on the day when due and payable, in Dollars to Lender
in accordance with the wiring instructions set forth in Schedule VII (Addresses for
Notices and Wiring Instructions) in immediately available funds without
set-off or counterclaim. Payments received by Lender after 1:00 p.m.
(New York time) shall be deemed to be received on the next Business
Day.
(b) All
computations of the Undrawn Fee and interest on the Revolving Loans shall be
made by Lender on the basis of a year of 360 days (except that all computations
of interest applying the Federal Funds Target shall be determined based on a
year of 365/366 days), in each case for the actual number of days (including the
first day but excluding the last day) occurring in the related Interest
Period. The computation of all other amounts hereunder shall be made
by Lender based on a year of 365/366 days for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such other amounts are payable. Each determination by Lender of
a rate of interest and all other amounts payable to Lender hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(c) Each
payment by Borrower of any Loan (including interest or fees in respect thereof)
and each reimbursement of various costs, expenses or other obligation of
Borrower to Lender hereunder shall be made in Dollars.
(d) Borrower
hereby irrevocably waives the right to direct the application of any and all
payments in respect of the Revolving Loans and any proceeds of Collateral after
(i) the occurrence and during the continuance of a Major Event of Default or
(ii) the acceleration of the maturity of the Revolving Loans following any other
Event of Default.
Section
2.13 Other Provisions Governing
Revolving Loans
(a) Determination of Interest
Rate
29
The LIBOR
Rate for each Interest Period for Revolving Loans shall be determined by Lender
pursuant to the procedures set forth in the definition of "LIBOR
Rate." Lender's determination shall be presumed to be correct
absent manifest error and shall be binding on Borrower. Lender shall
provide Borrower with prompt notice of each LIBOR Rate
determination.
(b) Interest Rate
Unascertainable, Inadequate or Unfair
In the
event that Lender determines that (i) adequate and fair means do not exist for
ascertaining the applicable interest rates by reference to which the LIBOR Rate
then being determined is to be fixed or (ii) the LIBOR Rate for any
Interest Period shall not adequately reflect the cost to Lender of making or
maintaining the Revolving Loans for such Interest Period, Lender shall forthwith
so notify Borrower, whereupon each Revolving Loan shall automatically, on the
last day of the current Interest Period be converted into a Base Rate
Loan.
(c) Increased
Costs
If at any
time Lender determines that the introduction of, or any change in or in the
interpretation of, any law, treaty or governmental rule, regulation or order
(other than any change in or in the interpretation of any law, treaty or
governmental rule, regulation or order relating to (i) Taxes or Other Taxes,
which are governed solely by Section 2.15 (Taxes),
or (ii) taxes imposed on, or measured by, the net income or net profits of
Lender or franchise taxes imposed on Lender by the Governmental Authority of the
jurisdiction in which Lender has its principal office, or by any other
Governmental Authority other than a Governmental Authority of a jurisdiction in
which Lender would not be subject to tax but for the execution and performance
of this Agreement) or the compliance by Lender with any changes to accounting
standards or guidelines, or the compliance by Lender with any requests or
directives from any central bank or other Governmental Authority (whether or not
having the force of law), in each case, occurring or given after the Closing
Date, and in each case having general applicability to all banks or finance
companies within the jurisdiction in which Lender operates (excluding, for the
avoidance of doubt, the effect of and phasing in of capital requirements or
other regulations or guidelines passed prior to the Closing Date) shall have the
effect of increasing the cost to Lender of agreeing to make or making, funding
or maintaining any Loan, including, without limitation, as a result of any
reserve, special deposit or similar requirement against assets of, deposits with
or for the account of, or credit extended by, Lender, then Borrower shall from
time to time, upon demand by Lender, pay to Lender additional amounts sufficient
to compensate Lender for such increased cost. A certificate as to the
amount of such increased cost, submitted to Borrower by Lender and showing in
reasonable detail the basis for the calculation thereof, shall be conclusive and
binding for all purposes, absent manifest error. Notwithstanding the
foregoing, Borrower shall not be required to compensate Lender pursuant to this
clause (c) for
any amounts incurred more than six months prior to the date that Lender notifies
Borrower of Lender's intention to claim compensation therefor.
(d) Illegality
If Lender
determines (which determination shall be final and conclusive and binding upon
both Lender and Borrower but shall be made only after consultation with
Borrower) that the introduction of, or any change in or in the interpretation
of, any law, treaty or governmental rule, regulation or order after the Closing
Date shall make it unlawful, or any central bank or other Governmental Authority
shall assert that it is unlawful, for Lender to make the LIBOR-based Revolving
Loans or to continue to fund or maintain the LIBOR-based Revolving Loans, then,
on notice thereof and demand therefor by Lender to Borrower, (i) the obligation
of Lender to make or to continue LIBOR-based Revolving Loans shall be suspended,
and Lender shall make a Base Rate Loan as part of any requested borrowing of
Revolving Loans and (ii) if the affected LIBOR-based Revolving Loans
are then outstanding, Borrower shall immediately convert each such Revolving
Loans into Base Rate Loans. If, at any time after Lender gives
notice under this clause (d), Lender
determines that it may lawfully make LIBOR-based Revolving Loans, Lender shall
promptly give notice of that determination to Borrower and Borrower's right to
request, and Lender's obligation to make LIBOR-based Revolving Loans subject to
the terms and conditions thereof shall thereupon be restored.
30
Section
2.14 Capital
Adequacy
If at any
time Lender determines that (a) the adoption of, or any change in or in the
interpretation of, any law, treaty or governmental rule, regulation or order
after the Closing Date regarding capital adequacy, (b) compliance with any such
law, treaty, rule, regulation or order adopted or modified, or as to which
interpretation has changed, after the Closing Date or (c) compliance with any
guideline or request or directive from any central bank or other Governmental
Authority (whether or not having the force of law) given after the Closing Date
shall have the effect of reducing the rate of return on Lender's capital as a
consequence of its obligations hereunder to a level below that which Lender or
such corporation could have achieved but for such adoption, change, compliance
or interpretation, then, upon demand from time to time by Lender, Borrower shall
pay to Lender, from time to time as specified by Lender, additional amounts
sufficient to compensate Lender for such reduction. A certificate as
to such amounts and showing in reasonable detail the basis for the calculation
thereof submitted to Borrower by Lender shall be conclusive and binding for all
purposes absent manifest error. Notwithstanding the foregoing,
Borrower shall not be required to compensate Lender pursuant to this Section 2.14 (Capital
Adequacy) for any amounts incurred more than six (6) months prior to the
date that Lender notifies Borrower of Lender's intention to claim compensation
therefor.
Section
2.15 Taxes
(a) Except as
otherwise provided in this Section 2.15 (Taxes),
any and all payments by Borrower to, or for the account of, Lender, shall be
made free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding (i) taxes measured by its net income or net
profits, and franchise taxes imposed on it, and similar taxes imposed by the
jurisdiction (or any political subdivision thereof) under the laws of which
Lender is organized, (ii) any U.S. withholding taxes payable with respect to
payments under this Agreement under laws (including any statute, treaty or
regulation) in effect on the Closing Date applicable to Lender, but not
excluding any U.S. withholding taxes payable as a result of any change in such
laws occurring after the Closing Date and (iii) taxes measured by its net income
or net profits and franchise taxes imposed on it as a result of a present or
former connection between Lender and the jurisdiction of the Governmental
Authority imposing such tax or any taxing authority thereof or therein (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If
any Taxes shall be required by law to be deducted from or in respect of any sum
payable under this Agreement to Lender (w) the sum payable shall be increased as
may be necessary so that, after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.15
(Taxes)), Lender receives an amount equal to the sum it would have
received had no such deductions been made, (x) Borrower shall make such
deductions, (y) Borrower shall pay the full amount deducted to the relevant
taxing authority or other authority in accordance with applicable requirements
of law and (z) Borrower shall deliver to Lender evidence of such payment in
accordance with clause
(d) below.
31
(b) In
addition, Borrower agrees to pay any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies of the
United States or any political subdivision thereof or any applicable foreign
jurisdiction, and all liabilities with respect thereto, in each case arising
from any payment made under this Agreement or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement, excluding, in
each case, amounts imposed upon a voluntary assignment or other transfer by
Lender (collectively, "Other
Taxes").
(c) Borrower
shall indemnify Lender for the full amount of Taxes and Other Taxes (including
any Taxes and Other Taxes imposed by any jurisdiction on amounts payable under
this Section 2.15
(Taxes)) paid by Lender and any liability (including for penalties,
interest and reasonable and documented expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted; provided, that
Borrower shall not be obligated to make payment to Lender pursuant to this clause (c) in respect
of penalties, interest and other similar liabilities attributable to such
indemnified Taxes or Other Taxes if such penalties, interest or other similar
liabilities are attributable to the gross negligence or willful misconduct of
the person seeking indemnification under this clause
(c). This indemnification shall be made within ten (10)
calendar days after the date Lender makes written demand
therefor. Such written demand shall set forth in reasonable detail
the amount of such indemnification and the calculation of such amount, and shall
be presumed to be correct in the absence of manifest error.
(d) If Lender
no longer prepares Borrower's tax returns on behalf of Borrower, as soon as
practical after the date of any payment of Taxes or Other Taxes by Borrower
pursuant to this Section 2.15 (Taxes),
Borrower shall furnish to Lender a copy of the return reporting such payment or
other evidence of such payment reasonably satisfactory to Lender.
(e) Without
prejudice to the survival of any other agreement of Borrower hereunder, the
agreements and obligations of Borrower contained in this Section 2.15 (Taxes)
shall survive the payment in full of the Loans.
(f) Before
Lender claims any additional amounts payable pursuant to this Section 2.15 (Taxes),
Lender shall use its reasonable efforts (consistent with its internal policies
and requirements of law) to change the jurisdiction of its lending office if the
making of such a change would avoid the need for, or reduce the amount of, any
such additional amounts that would be payable or may thereafter accrue under
this Section 2.15
(Taxes) and would not, in the reasonable determination of Lender, be
otherwise materially disadvantageous to Lender.
32
(g) If Lender
becomes aware that it is entitled to receive a refund in respect of Taxes or
Other Taxes paid by Borrower or as to which it has received any additional
amount or been indemnified by Borrower pursuant to this Section 2.15 (Taxes),
Lender shall promptly notify Borrower of the availability of such refund and
shall, within thirty (30) days after receipt of a request by Borrower, apply for
such refund at Borrower's expense. If Lender actually receives a
refund in respect of any Taxes or Other Taxes paid by Borrower or as to which it
has received any additional amount or been indemnified by Borrower pursuant to
this Section 2.15
(Taxes), Lender shall promptly notify Borrower of such refund and shall,
within thirty (30) days after receipt of a request by Borrower (or promptly upon
receipt, if Borrower has requested application for such refund pursuant hereto),
repay such refund to Borrower (to the extent of amounts that have been paid by
Borrower under this Section 2.15 (Taxes)
with respect to such refund, plus interest that is received by Lender, net of
all reasonable and documented out-of-pocket expenses of Lender and without
additional interest thereon; provided, that
Borrower, upon the request of Lender, is required to repay such refund if Lender
subsequently determines that it is not entitled to such
refund. Nothing contained in this clause (g) shall
require Lender to make available any of its tax returns (or any other
information relating to its taxes that it deems to be
confidential).
Section
2.16 Mitigation
Lender
agrees that, upon the occurrence of any event giving rise to the application of
Section 2.13 (Other
Provisions Governing Revolving Loans), 2.14 (Capital
Adequacy) or 2.15 (Taxes), it
shall, if requested by Borrower at Lender's sole discretion and consistent with
Lender's own internal policies, seek to designate another lending office for any
Loans affected by such event with the object of reducing or avoiding the
consequences of such event; provided, that, for
the avoidance of doubt, nothing contained herein shall obligate Lender to take
any action that imposes on Lender any additional costs or legal or regulatory
burdens, nor any action which, in Lender's opinion, would have a material
adverse effect on Lender's business, operations or financial condition or cause
Lender to suffer any legal disadvantage. Under no circumstances shall
Lender have any obligation to challenge any regulation or contest any decision
by any Governmental Authority pursuant to this Section 2.16
(Mitigation).
Section
2.17 Borrowing Base
Determination
(a) Lender
shall calculate the Borrowing Base (including each of the three components of
the Borrowing Base separately) (i) as of the close of business on the last day
of each calendar month (or, if such date is not a Business Day, the immediately
preceding Business Day), commencing with the first such date following the
Closing Date, (ii) immediately after giving effect to a proposed Borrowing
(other than Overnight Funding) and the immediate application of the proceeds
thereof pursuant to Section 3.2(c) (Conditions
Precedent to Each Borrowing) and (iii) as of any other Business Day
designated by Lender.
33
(b) Borrower
may elect to cause the existing Revolving Loans to be allocated and reallocated
among the different Types of Revolving Loan (other than Overnight Funding) upon
two (2) Business Days' prior written notice to Lender; provided, that in no
event shall (i) the aggregate outstanding principal amount of the Revolving
Loans treated as FFELP Loan Funding exceed the FFELP Loan Borrowing Base, (ii)
the aggregate outstanding principal amount of the Revolving Loans treated as
Private Loan Funding exceed the Private Loan Borrowing Base, or (iii) the
aggregate outstanding principal amount of the Revolving Loans treated as
Illiquid Asset Funding exceed the Illiquid Asset Commitment, in each case
immediately after giving effect to any proposed allocation or reallocation of
the Revolving Loans into each Type of Revolving Loan by Borrower pursuant to
this Section 2.17(b)
(Borrowing Base Determination). Without limitation of
Borrower's obligation to deliver month-end computer tapes from time to time
pursuant to Section
6.21 (Borrowing Base Determination), Borrower may also elect to deliver
month-end computer tapes to Lender from time to time showing information on
additional Student Loans added to the Collateral for purposes of satisfying the
conditions set forth in clauses (i) through (iii) of the preceding
sentence.
(c) To the
extent Lender exercises its discretion in applying variables to the calculation
of the Borrowing Base, Lender shall exercise such discretion in a commercially
reasonable manner; provided, that
Lender's calculations of the Borrowing Base shall be
determinative. Borrower shall provide the month-end computer tape
containing the information on Borrower's portfolio of Student Loans that is
required by Lender to calculate the Borrowing Base as of any date of
determination pursuant to Section 6.21(Borrowing Base
Determination).
(d) If
Borrower makes a written request for an indicative Borrowing Base in connection
with a proposed Borrowing, Lender shall provide Borrower with the indicative
Borrowing Base within four (4) Business Days thereafter.
(e) On or
prior to the Closing Date, Lender shall provide Borrower with a simplified
version of Lender's dynamic cash flow model for calculating the Borrowing Base
that can be used to estimate the Borrowing Base, and upon Borrower's written
request shall deliver within a reasonably prompt period of time written notice
to Borrower of any material changes to the Moody's methodology published by
Moody's from time to time that are applied in calculating the Borrowing Base;
provided, that
Lender's calculation of the Borrowing Base shall be determinative. To
the extent Lender exercises its discretion in applying variables to the Moody's
methodology applied in calculating the Borrowing Base, Lender shall exercise
such discretion in a commercially reasonable manner.
34
ARTICLE
III
CONDITIONS
PRECEDENT
Section
3.1 Conditions Precedent to
Closing Date
The
effectiveness of this Agreement shall be subject to the satisfaction or due
waiver in accordance with Section 8.1
(Amendments, Waivers and Consents) of each of the following conditions
precedent on or prior to the Closing Date:
(a) Certain
Documents. Lender shall have received on or prior to the
Closing Date each of the following, each dated the Closing Date unless otherwise
indicated below or agreed to by Lender, in form and substance satisfactory to
Lender:
(i) this
Agreement, the Side Letter Agreement and the Servicing Side Letter Agreement to
be entered into with Citibank (South Dakota), N.A., duly executed and delivered
by each of the parties hereto;
(ii) (A) the
most recent audited annual financial statements and all subsequent unaudited
quarterly financial statements of Borrower and its Consolidated Subsidiaries or
a certificate of a Senior Officer certifying that such financial statements
fairly present the financial condition of Borrower and its Consolidated
Subsidiaries in accordance with GAAP, and (B) such other historical student loan
portfolio data and other information on Borrower's assets as may be reasonably
requested by Lender on or prior to the Closing Date;
(iii) an
officer's certificate of a Senior Officer certifying that to the best knowledge
of the Senior Officer after due inquiry, (A) the conditions described in clauses (c) and (d) below are
satisfied (without regard to whether Lender is satisfied that such conditions
are satisfied in Lender's reasonable judgment) and (B) the copies of (i) the
certificate of incorporation and by-laws of Borrower, (ii) the resolutions of
the Audit Committee of Borrower approving and authorizing the execution,
delivery and performance of this Agreement and the other Transaction Documents
to which it is a party, (iii) the incumbency certificate of all authorized
officers signing the Transaction Documents and any ancillary documents attached
thereto and (iv) a good standing certificate of Borrower issued by the Secretary
of State of the State of Delaware and dated the Closing Date are true, accurate
and complete in all respects;
(iv) a
favorable opinion of Bingham McCutchen LLP, as counsel to Borrower, relating to
corporate matters, in form and substance satisfactory to Lender;
(v) a
favorable opinion of Bingham McCutchen LLP, as counsel to Borrower, relating to
UCC-related matters, in form and substance satisfactory to Lender;
(vi) a
favorable opinion of in-house counsel to Borrower, relating to corporate
matters, in form and substance satisfactory to Lender;
35
(vii) copies of
(A) UCC search reports as of a recent date in form and substance satisfactory to
Lender and (B) UCC-1 financing statements to be filed in all applicable
jurisdictions to perfect the security interests in the Collateral in which a
security interest can be perfected by filing a UCC-1 financing statement (which
UCC-1 financing statements shall be filed within two (2) Business Days following
the Closing Date); and
(viii) an
officer's certificate of a Senior Officer attaching true, correct and complete
original executed copies of all physical certificates evidencing the Retained
Securitization Interests (which certificates shall be endorsed in blank, with
such endorsements guaranteed by an "eligible guarantor institution" meeting the
requirements of the owner trustee (or the equivalent) of the Securitization
Vehicle, which requirements shall include membership or participation in the
Security Transfer Agent Medallion Program (“STAMP”) or such other "signature
guarantee program" as may be satisfactory to the owner trustee (or the
equivalent)).
(b) Up-Front
Fee. An amount equal to the Up-Front Fee has been paid to
Lender by Borrower by wire transfer of immediately available funds to or at the
direction of Lender.
(c) Representations and
Warranties of Borrower. Lender shall be satisfied in its
reasonable judgment that the representations and warranties of Borrower set
forth in Article IV
(Representations and Warranties) shall be true and correct as of the
Closing Date or such other date specified therein.
(d) No Default or Event of
Default. Lender shall be satisfied in its reasonable judgment
that no Default or Event of Default shall have occurred and be
continuing.
(e) Consents,
Etc. Each of Borrower and its Subsidiaries shall have received
all consents and authorizations required pursuant to any material Contractual
Obligation with any other Person and shall have obtained all Permits of, and
effected all notices to and filings with, any Governmental Authority, in each
case, as may be necessary to allow Borrower and its Subsidiaries lawfully
(i) to execute, deliver and perform, in all material respects, their
respective obligations hereunder and under the Transaction Documents to which
each of them, respectively, is, or shall on the Closing Date be, a party and
each other agreement or instrument to be executed and delivered by each of them,
respectively, pursuant thereto or in connection therewith, and (ii) to
create and perfect the Liens on the Collateral to be pledged by them to Lender
pursuant to Section
5.1 (Grant of Security Interest).
(f) Schedules of Student
Loans. Lender shall have received from Borrower on or prior to
the Closing Date the electronic copies of the Schedule of FFELP Loans and
Schedule of Private Loans setting forth the FFELP Loans and the Private Loans to
be included in the Collateral as of the Closing Date.
36
Section
3.2 Conditions Precedent to Each
Borrowing
The
obligation of Lender to make any Revolving Loan is subject to the satisfaction
of each of the following conditions precedent as of the date of the Borrowing of
such Revolving Loan or such other date specified below:
(a) Request for
Borrowing. Unless the Borrowing is for Overnight Funding,
Lender shall have received a Borrowing Request specifying the applicable Type of
Revolving Loan and the proposed amount of the Revolving Loan and such other
information required to be set forth in a Borrowing Request in substantially the
form attached hereto as Exhibit A (Form of Borrowing
Request) within the time frame required under Section 2.2(a) (Borrowing
Procedures).
(b) Representations and
Warranties; No Defaults or Events of Default; Financial
Covenants. The following statements shall be true on the date
of the Borrowing, both before and after giving effect thereto and immediately
following the application of the proceeds thereof:
(i) the
representations and warranties of Borrower set forth in Article IV
(Representations and Warranties) are true and correct on and as of the
Closing Date and on and as of the date of the Borrowing, except to the extent
such representations and warranties expressly relate to an earlier date, in
which case such representations and warranties shall have been true and correct
as of such earlier date; and
(ii) no
Default or Event of Default shall have occurred and be continuing or would
result from the Borrowing.
(c) Borrowing
Base. Unless the Borrowing is for Overnight Funding,
(i) if Borrower is required to do so pursuant to Section 2.2(a) (Borrowing
Procedures), Borrower has delivered to Lender a month-end computer tape
containing information on the additional Student Loans, if any, proposed to be
financed or refinanced with the proceeds of the Borrowing and (ii) Lender has
determined on or prior to the Business Day prior to the Borrowing that (A) a
Borrowing Base Deficiency shall not exist and (B) the aggregate outstanding
principal amount of the Revolving Loans included in the same Type of Revolving
Loan as the proposed Borrowing (and the aggregate outstanding principal amount
of the Revolving Loans included in each other Type of Revolving Loan) shall not
exceed the portion of the Borrowing Base attributable to such Type of Revolving
Loan, in each case on a pro forma basis immediately after giving effect to the
proposed Borrowing and the immediate application of the proceeds thereof; provided, that Lender
shall deliver written notice to Borrower on or prior to the date of the proposed
Borrowing if Lender determines that the condition set forth in subclause (A) or
(B) of clause (ii) of this
sentence shall not be satisfied.
(d) Commitment. The
aggregate amount of the Borrowing does not exceed the unfunded portion of the
Commitment allocable to the applicable Type of Revolving Loan of Revolving Loans
immediately prior to giving effect to the Borrowing.
37
(e) Financial
Covenants. Lender shall not have made a determination in its
reasonable judgment that Borrower shall not satisfy the financial covenants set
forth in Section 6.16
(Minimum Adjusted EBITDA to Interest Expense) and Section 6.17 (Minimum
Consolidated Tangible Net Worth) after giving effect to the Borrowing and
the immediate application of the proceeds thereof.
(f) Material Adverse
Effect. Lender shall not have made a determination in its
reasonable judgment that a Material Adverse Effect has occurred and is
continuing.
(g) No Legal
Impediments. The making of the Revolving Loan on such date
does not violate any Requirement of Law on the date of or immediately following
such Revolving Loan or Issuance and is not enjoined, temporarily, preliminarily
or permanently.
(h) Use of
Proceeds. Borrower shall apply the proceeds of the Revolving
Loan to the applicable purpose set forth in Section 4.14 (Use of
Proceeds).
Each
submission by Borrower to Lender of a Borrowing Request and the acceptance by
Borrower of the proceeds of the Revolving Loan requested therein shall be deemed
to constitute a representation and warranty by Borrower as to the matters
specified in clause
(b) above on the date of the making of such Revolving Loan.
ARTICLE
IV
REPRESENTATIONS AND
WARRANTIES
To induce
Lender to enter into this Agreement, Borrower represents and warrants each of
the following to Lender, on and as of the Closing Date and on and as of the date
of each Revolving Loan after giving effect to the making of each Revolving Loan
as required by Section 3.2(b)(i)
(Conditions Precedent to Each Borrowing):
Section
4.1 Organization;
Power
Borrower
and each of its Subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and to
perform its obligations under the Transaction Documents to which it is a party
and, except where the failure to do so individually or in the aggregate would
not have a Material Adverse Effect, is duly qualified to do business and in good
standing in each jurisdiction where such qualification is required.
Section
4.2 Authorization;
Enforceability;
Due Execution and Delivery
The
Transaction Documents to which Borrower or any of its Subsidiaries is a party
are within the legal power of Borrower or such Subsidiary and have been duly
authorized, executed and delivered and are enforceable against Borrower or such
Subsidiary as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
38
Section
4.3 Government Approvals; No
Conflicts
The
execution and delivery of the Transaction Documents to which it is a party by
Borrower or any of its Subsidiaries and the exercise of its rights and
performance of its obligations thereunder (i) do not require any consent,
approval, registration or filing with any Governmental Authority except for
those that have been obtained and are in full force and effect, (ii) shall not
violate any law, rule or regulation, the certificate of incorporation or by-laws
or other organizational documents of Borrower or such Subsidiary or any order of
any Governmental Authority, (iii) shall not violate or result in a default or
the equivalent under any indenture, agreement or other instrument binding upon
Borrower or such Subsidiary or its assets or give rise to a right thereunder to
require any payment by Borrower or such Subsidiary and (iv) shall not result in
any Lien on any assets of Borrower or such Subsidiary, that in the aggregate may
reasonably be expected to have a Material Adverse Effect.
Section
4.4 Financial Condition
The
audited and unaudited financial statements of Borrower and its Consolidated
Subsidiaries filed with the SEC fairly present the financial condition of
Borrower and its Consolidated Subsidiaries in accordance with GAAP.
Section
4.5 Properties; Intellectual
Property
Borrower
and each of its Subsidiaries has good title to or valid leasehold interests in
all of its real and personal property material to its business except for minor
defects in title that do not interfere with its ability to conduct its business
as currently conducted or to utilize such properties for their intended
purposes. Borrower and each of its Subsidiaries owns or is licensed
to use all intellectual property material to its business.
Section
4.6 Litigation; Environmental
Matters
There are
no investigations, actions or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of Borrower or any
of its Subsidiaries, threatened against or affecting Borrower or such Subsidiary
(i) as to which there is a reasonable possibility of an adverse determination
that may reasonably be expected to have a Material Adverse Effect or (ii) that
involves the Transaction Documents or the transactions contemplated
thereby. Except for matters that in the aggregate would not
reasonably be expected to have a Material Adverse Effect, Borrower and each of
its Subsidiaries has complied with all Environmental Laws and has not received
notice of any Environmental Liability.
Section
4.7 Compliance with Law;
Defaults
Borrower
and each of its Subsidiaries is in compliance with all applicable laws,
regulations and orders of any Governmental Authority applicable to it and its
properties and all indentures, agreements and other instruments binding upon it
or applicable to its property, except where the failure to do so may not be
reasonably expected to result in a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
39
Section
4.8 Investment Company Act
Status
Neither
Borrower nor the portfolio of student loans held by Borrower is an investment
company as defined in, or subject to regulation under, the U.S. Investment
Company Act of 1940, as amended.
Section
4.9 ERISA
Neither
Borrower nor any of its Subsidiaries maintains any (i) employee benefit plan (as
defined in Section 3(3) of ERISA), subject to Title I of ERISA, or (ii) plan (as
defined in Section 4975(e)(1) of the Code) that is subject to Section 4975 of
the Code.
Section
4.10 Disclosure
(a) Borrower
has complied with all public filing requirements applicable to Borrower under
applicable U.S. securities laws.
(b) Borrower
has disclosed to Lender all agreements and other documents to which Borrower or
any of its Subsidiaries is a party that Borrower has publicly filed with the SEC
or that are otherwise material to the conduct of the business of Borrower or
such Subsidiary. Such agreements and other documents may be disclosed
to Lender by delivery of such agreements and other documents in an electronic
format reasonably acceptable to Lender.
(c) No
document or other information provided to Lender by Borrower or any of its
Subsidiaries in connection with the negotiation of the Transaction Documents or
delivered pursuant to the Transaction Documents contains a material
misstatement.
Section
4.11 Solvency
Borrower
is Solvent as of the Closing Date and at the time of each Borrowing under Section 2.2 (Borrowing
Procedures) of this Agreement.
Section
4.12 Title and
Security
Borrower
and any Subsidiary of Borrower that holds items of Collateral has good and
marketable title to the Collateral free and clear of all Liens other than
Permitted Liens except that the Trustee holds legal title to the FFELP Loans for
the benefit of Borrower pursuant to the Trust Agreement. This
Agreement creates (subject to Permitted Liens) valid, first priority security
interests in the Collateral and all proceeds thereof that shall be perfected
upon (i) with respect to the Collateral, the filing of UCC-1 financing
statements identifying Lender as secured party and Borrower and any Subsidiary
of Borrower that holds items of Collateral as debtor with the Secretary of State
in the State of Delaware pursuant to Section 3.1(a)(vii)
(Conditions Precedent to Closing Date), (ii) with respect to the FFELP
Loans and the Proceeds thereof included in the Collateral, the filing of a UCC-1
financing statement identifying Lender as secured party and the Trustee as
debtor with the Recorder of Deeds in the District of Columbia pursuant to Section 3.1(a)(vii)
(Conditions Precedent to Closing Date), (iii) with respect to Goods,
Instruments, Money, Tangible Chattel Paper or Certificated Securities, upon
possession by or delivery thereof to Lender (other than Student Loans, which
shall be perfected by filing pursuant to clauses (i) and (ii) above) and (iv)
with respect to Investment Property, Deposit Accounts, Letter-of-Credit Rights
or Electronic Chattel Paper, by Control (within the meaning of such term
assigned under the UCC) of such Collateral by Lender.
40
Section
4.13 Student
Loans
Each
Student Loan to be financed with the proceeds of the Revolving Loans constitutes
a FFELP Loan or Private Loan that satisfies the eligibility requirements
determined by Lender in its discretion to be applicable in a "Aaa"
securitization transaction for FFELP Loans or Private Loans in accordance with
then-applicable Moody's rating criteria, and each such Student Loan was made and
is held in compliance with all Requirements of Law. Lender's
determination of what Moody's rating criteria apply for such purpose shall be
conclusive for all purposes under this Agreement.
Section
4.14 Use of
Proceeds
The
proceeds of the Revolving Loans shall be used by Borrower solely to (i) in the
case of Overnight Funding, to provide working capital and for other general
corporate purposes of Borrower and the Non-Securitization Subsidiaries that are
parties to Joinder Agreements; provided, that the
aggregate amount of the proceeds of the Borrowings under Overnight Funding
applied by Borrower and its Subsidiaries to working capital purposes shall not
exceed $100,000,000 per calendar year (after giving effect to the aggregate
amount of the net proceeds from the disposition of Collateral that are applied
by Borrower to working capital purposes pursuant to Section 5.2(b) (Release of
Collateral)), (ii) in the case of FFELP Loan Funding, to fund or maintain
the funding for FFELP Loans that are expected by Borrower to be sold,
securitized or newly funded through U.S. federal government programs, including
the refinancing of existing Revolving Loans under FFELP Loan Funding, (iii) in
the case of Private Loan Funding, to fund or maintain the funding for Private
Loans, including the refinancing of existing Revolving Loans under Private Loan
Funding, and (iv) in the case of Illiquid Asset Funding, to fund or maintain the
funding for Illiquid Assets, including, the refinancing of Grandfathered Loans
and existing Revolving Loans under Illiquid Asset Funding.
Section
4.15 Accounts
The list
of accounts set forth in Schedule III (Borrower's
Accounts) attached hereto is a true, accurate and complete list of all
accounts established and maintained by Borrower in connection with Borrower's
cash management system and all of such accounts are established and maintained
at Citibank, N.A.. All proceeds of the Student Loans included in the
Collateral that are serviced by Citibank (South Dakota), N.A. are deposited
directly to the Primary Account by Citibank (South Dakota), N.A. (except to the
extent such proceeds are wired directly to the Primary Account). All
proceeds of the Student Loans included in the Collateral that are serviced by
servicers, subservicers and guarantors other than Citibank (South Dakota), N.A.
are transferred to the Primary Account by such servicers, subservicers and
guarantors in accordance with their customary procedures (except to the extent
such proceeds are wired directly to the Primary Account).
41
Section
4.16 Retained Securitization
Interests
The list
of Retained Securitization Interests set forth in Schedule V (Retained
Securitization Interests) attached hereto is a true, accurate and
complete list of all Retained Securitization Interests held by Borrower and its
Subsidiaries. Each Retained Securitization Interest that is evidenced
by a physical certificate will be endorsed in blank and delivered to Lender on
the Closing Date pursuant to Section 3.2(a)(vii)
(Conditions Precedent to Closing Date). Each Retained
Securitization Interests identified as Clearing Corporation Securities in Schedule V (Retained
Securitization Interests) will be credited by the relevant Clearing
Corporation to the securities account of Lender at such Clearing Corporation on
or prior to the Closing Date.
Section
4.17 Cash Management
System
The list
of servicers, sub-servicers, guarantors and other Persons acting in similar
capacities set forth in Schedule VI (Cash Management
System) attached hereto is a true, accurate and complete list of the
names and addresses of all Persons that are responsible for remitting funds to
or at the direction of Borrower and its Affiliates, including funds remitted to
or at the direction of Borrower and its Affiliates in connection with the U.S.
Department of Education's Conduit Program, Put Program and Participation
Program, and the agreements pursuant to which such Persons remit such
funds.
ARTICLE
V
COLLATERAL
Section
5.1 Grant of Security
Interest.
(a) Borrower
and each Non-Securitization Subsidiary, if any, that is a party to a Joinder
Agreement (to the extent possible without violating such Non-Securitization
Subsidiary's organizational documents or transaction documents to which such
Non-Securitization Subsidiary is a party and subject to such other reasonable
exceptions to the items to be included as Collateral as Lender may agree in
writing from time to time (for which purpose Lender agrees to consider any such
exceptions in good faith)), in order to secure the Obligations, hereby Grants to
Lender, a valid and continuing first priority and perfected Lien on and security
interest in all of Borrower's or such Non-Securitization Subsidiary's right,
title and interest in, to and under, the following property, in each case,
whether now owned or existing, or hereafter acquired and arising (all of which
being hereinafter collectively called the "Borrower Collateral"
and, together with the rights granted pursuant to Section 5.1(b) (Grant of
Security Interest), the "Collateral"), subject
in each case only to Permitted Liens:
(i) all
Student Loans now held or hereafter acquired by Borrower or such
Non-Securitization Subsidiary (without regard to whether such Student Loans
satisfy the eligibility requirements set forth in the definitions for "FFELP
Loans" and "Private Loans" set forth in Section 1.1 (Defined
Terms));
42
(ii) all
Retained Securitization Interests now held or hereafter acquired by Borrower or
such Non-Securitization Subsidiary;
(iii) the
Primary Account, together with (A) all amounts from time to time on deposit in
or credited to the Primary Account that are not allocable to Allocated Parties
and (B) all interest, cash, instruments, dividends, distributions, return on
capital, redemptions, securities, investments of any kind and other property
from time to time received, receivable or otherwise distributed in respect of or
in exchange for any and all of the property described in subclause
(A);
(iv) all other
accounts established and maintained in the name of Borrower or such
Non-Securitization Subsidiary from time to time, together with (A) all
Securities, Securities Entitlements, Investment Property, Financial Assets and
any other property deposited in or credited to such other accounts from time to
time, (B) all interest, cash, instruments, dividends, distributions, return on
capital, redemptions, securities and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any and all
of the property described in subclause (A), (C) all
certificates and instruments, if any, from time to time representing or
evidencing the Financial Assets credited to such other accounts from time to
time, including all rights to renew or withdraw the same and (D) all Securities
Entitlements credited to such other accounts from time to time;
(v) the
proceeds of the Revolving Loans that Borrower lends to Lender overnight from
time to time pursuant to Section 2.2(c) (Borrowing
Procedures) and the net proceeds from the release of the Borrower
Collateral that Borrower lends to Lender overnight from time to time pursuant to
Section 5.3
(Investment of Proceeds);
(vi) the Trust
Agreement and the Servicing Agreements now existing and hereafter entered into
by Borrower, all of the rights of Borrower thereunder and all payments to
Borrower thereunder;
(vii) the
servicing fees, administration fees and other fees earned by Borrower under the
Servicing Agreements;
(viii) all
intercompany debt of Borrower and such Non-Securitization
Subsidiary;
(ix) all
Securities (with the meaning given to such term in Section 8-102(a)(15) of the
UCC, and in any event including all Stock and interests of Non-Securitization
Subsidiaries) and all intercompany notes of Borrower and such Non-Securitization
Subsidiary;
(x) all books
and records (including, without limitation, computer printouts, computer
software and other computer output materials and records) pertaining to any of
the Borrower Collateral described in clauses (i) through
(ix)
above;
43
(xi) all
Proceeds and other income in respect of the Borrower Collateral described in the
foregoing clauses
(i) through (x)
above;
provided, that the
Borrower Collateral shall not include (x) student loans released in connection
with U.S. federal government student loan programs enacted pursuant to Public
Law 110-227, (y) student loans released to the Securitization Vehicles that
exist as of the Closing Date in accordance with the related transfer
documentation and (z) the Borrower Collateral otherwise released in accordance
with Section 5.2
(Release of Collateral).
(b) In
furtherance of the Grant set forth in Section 5.1(a) (Grant of
Security Interest), the Trustee hereby Grants to Lender, a valid and
continuing first priority and perfected Lien on and security interest in all of
the Trustee's right, title and interest in, to and under, the following
property, in each case, whether now owned or existing, or hereafter acquired and
arising, subject in each case only to Permitted Liens:
(i) all FFELP
Loans now held or hereafter acquired by the Trustee for the benefit of Borrower
pursuant to the Trust Agreement (without regard to whether such FFELP Loans
satisfy the eligibility requirements set forth in the definitions for "FFELP
Loans" set forth in Section 1.1 (Defined
Terms)); and
(ii) all
Proceeds and other income in respect of the assets described in clause (i)
above;
provided, that the
assets described in clauses (i) and (ii) above shall not
include (x) student loans released in connection with U.S. federal government
student loan programs enacted pursuant to Public Law 110-227, (y) student loans
released to the Securitization Vehicles that exist as of the Closing Date in
accordance with the related transfer documentation and (z) the assets described
in clauses (i)
and (ii) above
otherwise released in accordance with Section 5.2 (Release of
Collateral).
(c) The
Grants made by Borrower and the Non-Securitization Subsidiaries, if any,
pursuant to Section
5.1(a) (Grant of Security Interest) and by the Trustee (solely for the
purpose of the Grant of a Lien in the legal title to the FFELP Loans and the
Proceeds thereof) pursuant to Section 5.1(b) (Grant of
Security Interest) are made to Lender to secure the Obligations in
accordance with the terms of this Agreement and all other applicable Transaction
Documents, including the payment of all amounts payable under this Agreement and
such other Transaction Documents in accordance with the terms hereof and
thereof. Each Non-Securitization Subsidiary that holds property to be
included in the Collateral pursuant to this Section 5.1 (Grant of
Security Interest) shall also grant to Lender through a Joinder Agreement
a first priority security interest in all of such Non-Securitization
Subsidiary's right, title and interest in, to and under such property to the
extent such property can be pledged without violating such Non-Securitization
Subsidiary's organizational documents or transaction documents to which it is a
party, subject to Permitted Liens and to such other reasonable exceptions to the
items to be included as Collateral as Lender may agree in writing from time to
time (for which purpose Lender agrees to consider any such exceptions in good
faith).
44
(d) This
Agreement shall constitute a security agreement under the laws of the State of
New York, for the benefit of Lender as secured party. Upon the
occurrence of a Event of Default, and following the occurrence of the Change of
Control Trigger, in addition to any other rights available under this Agreement
or otherwise available at law or in equity but subject to the terms hereof,
Lender shall have all rights and remedies of a secured party under the laws of
the State of New York and other applicable law to enforce the assignments and
security interests contained herein and, in addition, shall have the right,
subject to compliance with any mandatory requirements of applicable law and the
terms of this Agreement, to sell or apply any rights and other interests
assigned or pledged hereby in accordance with the terms hereof at public and
private sale in accordance with the terms of this Agreement.
(e) Lender
hereby acknowledges such Grants, accepts its duties hereunder in accordance with
the provisions hereof, and agrees to perform the duties herein in accordance
with the provisions hereof such that the interests of Lender may be adequately
and effectively protected.
(f) With
respect to the foregoing and the grant of the security interests hereunder,
Lender shall be authorized by Borrower, any Non-Securitization Subsidiary that
is a party to a Joinder Agreement and the Trustee to file one or more financing
or continuation statements, and amendments thereto, relative to all or any part
of the Collateral, in all jurisdictions and with all filing offices as are
necessary or advisable to perfect the security interests granted to Lender in
connection herewith pursuant to Section 7.7(a) (Further
Assurances as to the Collateral).
Section
5.2 Release of
Collateral
(a) Any
release of all or part of the Student Loans or other Collateral from the
security interests granted to Lender under Section 5.1 (Grant of
Security Interest) in connection with (i) whole loan sales, (ii) direct
and indirect sales to Securitization Vehicles, (iii) alternative
funding provided by U.S. federal government student loan programs or (iv) sales
or transfers to other third parties shall require the prior written consent of
Lender; provided, that the
prior written consent of Lender shall not be required and the Lender’s security
interest is automatically released (1) for Student Loans or other Collateral
financed in the U.S. Department of Education's Conduit Program (the "Conduit Program"),
Loan Purchase Commitment Program ("Put Program") or Loan
Participation Purchase Program ("Participation
Program" or "PPI Program")); (2)
for Student Loans or other Collateral (a) which a seller is obligated to
repurchase due to a breach of a covenant, representation or warranty, consistent
with Borrower's contractual arrangements with such seller, or (b) transferred to
an insurer or guarantor of Student Loans in connection with any claims submitted
to such insurer or guarantor in accordance with Borrower's contractual
arrangements with such insurers or guarantors; (3) if the Loans shall be paid in
full and the Commitment shall be terminated in connection therewith; (4) for
sales of Retained Securitization Interests; and (5) for Student Loans or other
Collateral financed in either of the two securitizations scheduled to occur in
February and March 2010 so long as the parameters for the two securitizations
fall within the minimum advance rates, the maximum cost of funds, the maximum
size, the timing constraints and the description of the collateral set forth in
Exhibit C (Parameters
for February and March 2010 Securitizations); provided, that
Borrower shall be required to deliver prior written notice of sales pursuant to
clauses (1)
through (5)
above to Lender and to apply the net proceeds from such sales in the manner
described in Section
5.2(b) (Release of Collateral). Notwithstanding the foregoing,
in accordance with its customary procedures, Borrower may cancel a Student Loan
to the extent requested by the related obligor or the related educational
institution.
(b) Borrower
shall be required to apply the net proceeds from the sale or other disposition
of the Student Loans or other Collateral (including sales to Securitization
Vehicles), other alternative funding or any other sale or disposition of the
Collateral pursuant to Section 5.2(a) (Release of
Collateral) (including the net proceeds from the sale or other
disposition of the Student Loans or other Collateral in the manner described in
clauses (1) through (5) of Section 5.2(a) (Release of
Collateral)) to prepay the Revolving Loans to the extent necessary to
cure any Borrowing Base Deficiency pursuant to Section 2.9(b) (Mandatory
Prepayments). Borrower may apply the remaining amount (if any)
of such net proceeds to any of the following purposes: (i) to repay Loans, (ii)
to fund or maintain the funding for Student Loans included or to be included in
the Collateral and (iii) for working capital purposes; provided, that the
aggregate amount of the net proceeds from the sale or other disposition of the
Collateral (including sales to Securitization Vehicles) that are applied by
Borrower and its Subsidiaries to working capital purposes may not exceed
$100,000,000 per calendar year (after giving effect to the proceeds of the
Revolving Loans that are also applied by Borrower and its Subsidiaries to
working capital purposes pursuant to Section 4.14 (Use of
Proceeds)).
45
Section
5.3 Investment of
Proceeds
To the
extent Borrower does not apply the net proceeds from the release of the
Collateral in the manner provided in Section 5.2(b) (Release of
Collateral), Borrower shall lend such amounts to Lender overnight for
Lender to maintain in Lender's account or accounts at an overnight rate equal to
Overnight LIBID pending application in such manner. Lender (in its
capacity as such) shall have a security interest in such proceeds pursuant to
Section 5.1(a) (Grant
of Security Interest).
Section
5.4 Reallocation of
Proceeds
Lender
hereby covenants and agrees, solely for the benefit of the Allocated Parties in
their capacity as third party beneficiaries to this Agreement solely for
purposes of this Section 5.4 (Reallocation of
Proceeds), that if Lender receives a written report from any Allocated
Party or any trustee, servicer, sub-servicer or other agent acting on behalf of
an Allocated Party (including Borrower if Borrower is acting as an agent on
behalf of an Allocated Party or Borrower has a contractual obligation to remit
payments to the Allocated Party) evidencing the fact that funds received by
Lender from Borrower were not property of Borrower and are allocable to such
Allocated Party, Lender shall promptly pay such amount to or at the direction of
such Allocated Party or such trustee, servicer, sub-servicer or other agent
acting on behalf of an Allocated Party (including Borrower if Borrower is acting
as an agent on behalf of an Allocated Party or Borrower has a contractual
obligation to remit payments to the Allocated Party). Any Allocated
Party shall be a third party beneficiary of this Agreement solely for purposes
of enforcing the rights of such Allocated Party under this Section 5.4 (Reallocation of
Proceeds).
46
ARTICLE
VI
COVENANTS
Borrower
agrees with Lender to each of the following covenants until the interest on and
principal of the Loans and all fees payable to Borrower hereunder have been paid
in full and the Commitment has been terminated unless Lender otherwise consents
in writing:
Section
6.1 Information
Delivery
Borrower
shall deliver to Lender (i) either (A) the financial statements of Borrower and
its Consolidated Subsidiaries or (B) the certificate of a Senior Officer of
Borrower on the financial statements described under Section 6.18 (Financial
Reporting), (ii) the monthly reports set forth under Section 6.20 (Monthly
Report), and (iii) following any request therefor, such other information
regarding the operations, business affairs and financial condition of Borrower
or any Subsidiary, as Lender may reasonably request.
Section
6.2 Material
Events
Borrower
shall deliver prompt written notice to Lender of (i) the occurrence of a Default
or an Event of Default, (ii) the filing of any action, suit or proceeding
against Borrower or any of its Subsidiaries that may reasonably be expected to
have a Material Adverse Effect, and (iii) any other event or development that
may reasonably be expected to have a Material Adverse Effect.
Section
6.3 Maintenance of
Property
Borrower
shall, and shall cause each of its Subsidiaries that have outstanding
Indebtedness or unpaid claims to, keep and, except as otherwise directed by
Lender, maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted.
Section
6.4 Maintenance of Existence and
Conduct of Business
Borrower
shall, and shall cause each of its Subsidiaries that have outstanding
Indebtedness or unpaid claims to, do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises material to the conduct of
its business; provided, that the
foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.10 (Mergers and
Sales).
47
Section
6.5 Nature of
Business
Borrower
shall engage in no business other than (i) purchases, sales and financings of
Student Loans, including direct and indirect sales of Student Loans to
Securitization Vehicles, (ii) such other business contemplated by the
transaction documents for the Securitization Vehicles including the servicing of
the student loan portfolios held by the Securitization Vehicles, (iii) such
other business specifically contemplated by its organizational documents, (iv)
the origination and servicing of student loans for other parties and (v) such
other business conducted and disclosed to Lender on or prior to the Closing
Date. Borrower shall cause each of its Subsidiaries in existence as
of the Closing Date to engage in no business other than its business as
presently conducted. Borrower shall cause each of its Subsidiaries to
engage in no other business other than such other business specifically
contemplated by its organizational documents.
Section
6.6 Payment of
Obligations
Borrower
shall, and shall cause each of its Subsidiaries to, pay its obligations that, if
not paid, may be reasonably be expected to have a Material Adverse
Effect.
Section
6.7 Non-Securitization
Subsidiary Guaranty
Borrower
shall cause all of the Non-Securitization Subsidiaries that hold property to be
included in the Collateral to fully and unconditionally guaranty the Obligations
under this Agreement pursuant to a Joinder Agreement delivered on or prior to
the date on which such property is included in the Collateral. In the
event that any Person becomes a Non-Securitization Subsidiary and holds property
to be included in the Collateral, Borrower shall (i) within five (5) calendar
days (or such longer period as Lender may agree in writing), cause such
Non-Securitization Subsidiary to become a guarantor hereunder by executing and
delivering to Lender a Joinder Agreement, and (ii) within fifteen (15) calendar
days take all such actions to execute and deliver to Lender, or cause to be
executed and delivered to Lender, all such additional documents, instruments,
agreements and certificates as may be requested by Lender, including, without
limitation, any other documents, agreements or instruments necessary for such
Non-Securitization Subsidiary to grant to Lender a perfected security interest
in such Non-Securitization Subsidiary’s assets subject to no prior Lien other
than Permitted Liens pursuant to Section 5.1 (Grant of
Security Interest).
Section
6.8 Enforcement of Obligations;
Servicing of Obligations
Borrower
shall cause to be diligently enforced and taken all steps, actions and
proceedings reasonably necessary to enforce all Student Loans held by Borrower
in accordance with Borrower's servicing policies acting as servicer for itself
and others and all agreements entered into in connection therewith and all
agreements relating to purchases, sales and financings of Student
Loans. Borrower shall cause the Student Loans to be administered and
collected in accordance in all material respects with Borrower's servicing
policies; provided, that
Borrower shall not be responsible to Lender for any action or failure to act by
Lender or its affiliates in their respective capacities as sub-servicers (or in
any other similar capacity) to Borrower.
48
Section
6.9 Books and Records;
Inspection of Property
Borrower
shall, and shall cause its Subsidiaries to, maintain proper books of record and
account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. Borrower
shall, and shall cause each of its Subsidiaries to, permit representatives of
Lender to inspect its properties, examine and make abstracts from books and
records, and discuss its affairs, finances and condition with its officers,
employees and independent accountants during regular business hours upon
reasonable prior notice without undue interference of normal business
operations.
Section
6.10 Mergers and Sales of
Assets
Borrower
shall not consolidate or merge with or into any other legal entity unless (i)
Borrower is the surviving entity, (ii) no Default or Event of Default shall
occur and be continuing after giving effect thereto and (iii) Borrower's rights
and obligations under the Transaction Documents remain
unaffected. Borrower shall not sell, lease or otherwise transfer all
or substantially all of its property to any other entity except for the direct
and indirect transfer of Student Loans to Securitization Vehicles and such other
sales, leases or transfers contemplated by this Agreement. Borrower
shall not liquidate or dissolve itself.
Section
6.11 Compliance with
Law
Borrower
shall, and shall cause each Subsidiary of Borrower to, comply with all
Requirements of Law (including the Anti-Terrorism Order and the Patriot Act)
applicable to Borrower and its Subsidiaries and their respective
property.
Section
6.12 Use of
Proceeds
Borrower
shall use the proceeds of the Revolving Loans for the purposes set forth in
Section 4.14 (Use of
Proceeds).
Section
6.13 Other
Indebtedness
Borrower
shall not incur Indebtedness outside of the ordinary course of business other
than (i) the Revolving Loans, (ii) Indebtedness to pay the Loans in full
(subject to the termination of the Commitment on or prior to the incurrence of
such Indebtedness) and (iii) as otherwise contemplated by Section 6.5 (Nature of
Business). No Subsidiary of Borrower other than any
Securitization Vehicle shall incur Indebtedness.
Section
6.14 Negative
Pledge
Borrower
shall not, and shall cause its Subsidiaries other than its Securitization
Subsidiaries not to, create, assume or suffer to exist any Lien on Borrower's
property except (i) Liens occurring in ordinary course of business that do not
secure (A) Indebtedness or derivative obligations or (B) any single obligation
(or class of obligations having a common cause) in an amount exceeding
$1,000,000 (in an aggregate amount amongst all such obligations not exceeding
$10,000,000), (ii) Liens arising in the ordinary course of business on cash,
cash equivalents and other financial assets securing derivative obligations,
(iii) Liens on real property, (iv) Liens granted in connection with U.S. federal
government student loan programs enacted pursuant to Public Law 110-227, (v)
liens granted in respect of the two securitizations scheduled to occur in
February and March 2010, (vi) liens granted as a "back-up" pledge in connection
with any transfer of Student Loans permitted under Section 5.2 (Release of
Collateral) that is intended to be structured as a sale (irrespective of
GAAP), (vii) certain Liens granted prior to the Closing Date that are identified
in the UCC-1 search reports set forth in Schedule II (Permitted
Liens) attached hereto and (viii) such other Liens not otherwise
permitted pursuant to clauses (i) through (vii) of this sentence in an aggregate
amount at any time not exceeding $10,000,000.
49
Section
6.15 Accounts
Borrower
shall not take any of the following actions on or after the Closing Date without
the prior written consent of Lender:
(a) the
establishment or maintenance of any account in the name or for the benefit of
Lender or any of the Non-Securitization Subsidiaries other than the Accounts
identified in Schedule
III (Borrower's Accounts) attached hereto;
(b) direct or
agree to any material change to the manner in which Citibank (South Dakota),
N.A. deposits the proceeds of the Student Loans and other Collateral serviced by
Citibank (South Dakota), N.A. directly to the Primary Account (except to the
extent such proceeds are wired directly to the Primary Account);
(c) direct or
agree to any material change to the manner in which any other servicer,
sub-servicer, guarantor or other Person acting in a similar capacity transfers
the proceeds of the Student Loans and other Collateral serviced by such
servicer, sub-servicer, guarantor or other Person to the Primary Account in
accordance with their customary procedures (except to the extent such proceeds
are wired directly to the Primary Account);
(d) direct or
agree to any material change to the manner in which the servicers,
sub-servicers, guarantors and other Persons acting in similar capacities
transfer the servicing fees, administration fees and other fees earned by
Borrower to the Primary Account in accordance with their customary procedures
(except to the extent such proceeds are wired directly to the Primary
Account);
(e) direct or
agree to any material change to the manner in which the proceeds of the Retained
Securitization Interests or the proceeds of Borrower's interest in any special
purpose vehicle established pursuant to the U.S. Department of Education's
Conduit Program (including SLC Conduit I LLC) are deposited by or on behalf of
Borrower to the Primary Account; or
(f) direct or
agree to any other material change to Borrower's cash management
system.
In
connection therewith, Borrower shall use commercially reasonable efforts to
cause each servicer, sub-servicer, guarantor and other Person acting in a
similar capacity to Borrower or any of its Affiliates that is responsible for
remitting funds to Borrower or any of its Affiliates, including in connection
with the U.S. Department of Education's Conduit Program, Put Program and
Participation Program, to enter into a Servicing Side Letter Agreement within
thirty (30) calendar days following the Closing Date (other than the Servicing
Side Letter Agreement to be entered into with Citibank (South Dakota), N.A.
which shall be entered into on the Closing Date).
50
Section
6.16 Minimum Adjusted EBITDA to
Interest Expense
As of the
end of each fiscal quarter of Borrower, commencing with the fiscal quarter
ending December 31, 2009, the average for such fiscal quarter and the three
immediately preceding fiscal quarters of the ratio (expressed as a percentage)
of (i) the Adjusted EBITDA of Borrower and its Consolidated Subsidiaries to (ii)
the aggregate amount which would fairly be presented in the consolidated income
statement of Borrower and its Consolidated Subsidiaries (subject to normal
year-end adjustments) prepared in accordance with GAAP as "total interest
expense" less the amortization of deferred financing fees shall not be less than
1.00: 1.00.
Section
6.17 Minimum Consolidated
Tangible Net Worth
Borrower
and its Consolidated Subsidiaries shall at all times maintain a Consolidated
Tangible Net Worth in an amount not less than $500,000,000.
Section
6.18 Financial
Reporting
Borrower
shall deliver to Lender either:
(a) the
following financial statements of Borrower within the applicable time frame set
forth below:
(i) within
45 days after the end of each of the first three fiscal quarters of each fiscal
year of Borrower, commencing with the fiscal quarter ended March 31, 2010, its
consolidated balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, setting forth in each case in comparative
form the figures for the corresponding period or periods of (or, in the case of
the balance sheet, as of the end of) the previous fiscal year, all certified by
a Senior Officer of Borrower as presenting fairly in all material respects the
financial condition and results of operations of Borrower and its Consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied, subject to year-end audit adjustments and the absence of footnotes;
and
(ii) within
90 days after the end of the last fiscal quarter of each fiscal year of
Borrower, commencing with the fiscal year ended December 31, 2009, its audited
consolidated balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such year, setting forth in each
case in comparative form the figures for the previous fiscal year, all reported
on by independent public accountants of recognized national standing to the
effect that such consolidated financial statements present fairly in all
material respects the financial condition and results of operations of Borrower
and its Consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied, subject to the absence of footnotes; or
51
(b) a
certificate of a Senior Officer of Borrower certifying that the financial
statements and balance sheets of Borrower described in clause (a) above and
filed with the SEC fairly present the financial condition of Borrower and its
Consolidated Subsidiaries in accordance with GAAP on a stand alone basis in
accordance with GAAP consistently applied (which certificate shall be delivered
within the time frame that such financial statements are required to be to be
entered into delivered pursuant to clause (a) above).
Section
6.19 Funding
Forecast
Borrower
shall deliver to Lender the following forecasts of Borrower's FFELP Loan and
Private Loan funding requirements starting with Borrower's first fiscal quarter
of 2010:
(i) On
or prior to the last Business Day of each fiscal quarter, Borrower shall provide
to Lender a twelve-month funding forecast for FFELP Loans expected to be sold,
securitized, or newly funded through the U.S. federal government.
(ii) The
twelve-month funding forecast shall exclude FFELP Loans currently securitized or
funded through U.S. federal government programs. Any FFELP Loan shall
no longer qualify for FFELP Loan Funding (but shall qualify for Illiquid Asset
Funding) if it is not sold, securitized or newly funded through a U.S. federal
program within the next six fiscal quarters of Borrower after first appearing in
the twelve-month funding forecast.
(iii) On
or prior to the last Business Day of each fiscal quarter, Borrower shall provide
to Lender a twelve-month funding forecast for Private Loans expected to be sold,
securitized, or newly funded by Borrower.
Section
6.20 Monthly
Reports
Borrower
shall deliver to Lender monthly reports certified by a Senior Officer of
Borrower setting forth information on the performance of Borrower's portfolio of
Student Loans, residual interests in Securitization Vehicles and other
Collateral, the level of compliance with the financial covenants set forth in
Section 6.16 (Minimum
Adjusted EBITDA to Interest Expense) and Section 6.17 (Minimum
Consolidated Tangible Net Worth) and other information in substantially
the form attached as Exhibit B (Monthly
Reports) hereto within ten (10) Business Days following the last day of
each calendar month commencing with the first such date following the Closing
Date.
52
Section
6.21 Borrowing Base
Determination
Borrower
shall deliver or cause to be delivered to Lender a month-end computer tape
containing all information on Borrower's portfolio of Student Loans that is
required by Lender to calculate the Borrowing Base (including each of the three
components of the Borrowing Base separately) (i) within ten (10) Business Days
following the last day of each calendar month (in the form of a month-end
computer tape), commencing with the first such date following the Closing Date,
(ii) if Borrower is required to deliver a month-end computer tape with
information on the additional Student Loans to be funded pursuant to a proposed
Borrowing pursuant to Section 2.2(a) (Borrowing
Procedures), at least five (5) Business Days but no more than eight (8)
Business Days prior to the date of the proposed Borrowing (in the form of a
month-end computer tape), and (iii) as of any other date at the written request
of Lender upon at least ten (10) Business Days' prior written notice from
Lender.
Section
6.22 Cash Management
System
Borrower
shall deliver to Lender an updated copy of Schedule VI (Cash Management
System) promptly following any change to the names or addresses of the
servicers, sub-servicers, guarantors or other Persons acting in similar
capacities that are responsible for remitting funds to or at the direction of
Borrower and its Affiliates (or any change to the agreements pursuant to which
such Persons remit such funds to or at the direction of Borrower and its
Affiliates), including the Persons that are responsible for remitting funds to
or at the direction of Borrower or its Affiliates in connection with the U.S.
Department of Education's Conduit Program, Put Program and Participation
Program.
ARTICLE
VII
EVENTS
OF DEFAULT; REMEDIES FOLLOWING EVENT OF DEFAULT OR CHANGE OF CONTROL
TRIGGER
Section
7.1 Events of
Default
Each of
the following events shall be an event of default (an "Event of Default")
under this Agreement:
(a) Borrower
shall fail to pay interest on any Loan when due which default continues for a
period of five (5) or more Business Days; or
(b) Borrower
shall fail to pay principal of any Loan when due, whether at the Maturity Date
or such earlier date on which a mandatory prepayment is due pursuant to Section 2.9 (Mandatory
Prepayments); or
(c) Borrower
or all or part of the pool of Collateral becomes an investment company required
to be registered under the U.S. Investment Company Act of 1940, as amended,
except to the extent resulting from Lender's ownership interest in Borrower;
or
53
(d) Borrower
fails to make payment of any other Material Indebtedness of Borrower and its
Subsidiaries (other than any Securitization Vehicle) when the same becomes due
and payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise) after giving effect to any notice and cure period;
or
(e) Lender
fails to have first priority, perfected security interests in the Collateral
pursuant to Section
5.1 (Grant of Security Interest) in an aggregate amount that exceeds
$50,000,000 and that is not cured within five (5) Business Days of Borrower
having knowledge or written notice from Lender thereof; or
(f) the
failure to satisfy any of Borrower's financial covenants set forth in Sections 6.15 (Minimum
Adjusted EBITDA to Interest Expense) and 6.16 (Minimum Consolidated
Tangible Net Worth) as of the applicable date of determination set forth
in the related Monthly Report; or
(g) a
Borrowing Base Deficiency exists as of any date of determination and Borrower
has not prepaid the Revolving Loans or pledged to Lender additional Student
Loans or other Collateral within three (3) Business Days after written notice of
the Borrowing Base Deficiency has been given to Borrower by Lender in an amount
sufficient such that there shall not be a Borrowing Base Deficiency after giving
effect to such action; or
(h) Borrower
breaches in any material respect any of the following covenants: (i)
Section 6.4
(Maintenance of Existence and Conduct of Business), (ii) Section 6.10 (Mergers and
Sales) or Section 6.15
(Accounts); or
(i) a
material breach of any of Borrower's other covenants, representations or
warranties in the Transaction Documents to which it is a party or a material
misstatement or omission in any certificate or writing or report that is not
cured by Borrower within thirty (30) days following written notice thereof to
Borrower by Lender;
(j) one or
more final judgments are rendered against Borrower or any of its Subsidiaries
that exceeds, in the aggregate, $10,000,000 that remains unsatisfied for sixty
(60) or more days after such final judgment becomes nonappealable unless
reserved against by Borrower; or
(k) an
involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of
Borrower, any of its Subsidiary or its debts, or of a substantial part of its
assets, under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect or (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for Borrower
or any of its Subsidiary or for a substantial part of its assets, and, in any
such case, such proceeding or petition shall continue undismissed for sixty (60)
days or an order or decree approving or ordering any of the foregoing shall be
entered; or
(l) (i) Borrower
or any of its Subsidiaries shall (i) voluntarily commence any proceeding or file
any petition seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law
now or hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition described
in clause (l)
above, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Borrower or any of
its Subsidiaries or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors or (vi)
take any action indicating its consent to, approval of, or acquiescence in any
of the foregoing; or
54
(m) Borrower
shall become unable, admit in writing its inability or fail generally to pay its
debts as they become due.
Section
7.2 Acceleration of Maturity;
Other Remedies
(a) If an
Event of Default has occurred and is continuing, Lender may, by written notice
to Borrower, (i) declare the Commitment to be terminated, whereupon the
obligation of Lender to make any Revolving Loan shall immediately terminate, and
(ii) declare the outstanding principal amount of the Loans, all accrued and
unpaid interest thereon and all accrued and unpaid fees and other amounts and
Obligations payable to Lender by Borrower under this Agreement to be immediately
due and payable in full, whereupon the maturity date of the Loans shall be
accelerated and the Loans, all such interest and all such fees and other amounts
and Obligations shall become and be immediately due and payable in full (which
in the case of the Loans will be in the amount determined pursuant to Section 2.9(e) (Mandatory
Prepayments), without presentment, demand, protest or further notice of
any kind, all of which are hereby expressly waived by Borrower; provided, that upon
the occurrence of the Events of Default specified in Section 7.1(k), (l) or
(m) (Events of Default), (x) the Commitment shall be automatically
terminated in whole and not in part and (y) the maturity date of the Loans
shall be automatically accelerated and the outstanding principal amount of the
Loans, all such interest and all such fees and other amounts and Obligations
shall automatically become and be due and payable in full, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by Borrower.
(b) If a
Major Event of Default has occurred and is continuing after the expiration of
the applicable grace period, if any, Lender may elect to cause all or part of
the servicing of the Collateral to be conducted by one or more substitute
servicers designated by Lender (which may include one or more Affiliates of
Lender) in Lender's sole discretion (for which purpose Borrower shall terminate
any sub-servicing agreement at Lender's direction except to the extent the
termination is outside of Borrower's control). If any other Event of
Default has occurred and is continuing after the expiration of the applicable
grace period, if any, Lender must accelerate the maturity of the Loans pursuant
to Section 7.2(a)
(Acceleration of Maturity; Other Remedies) before electing to cause all
or part of the servicing of the Collateral to be conducted by one or more
substitute servicers designated by Lender in the manner described in the
preceding sentence.
(c) If a
Major Event of Default has occurred and is continuing after the expiration of
the applicable grace period, if any, Borrower shall not take or commit to take
any of the following actions without the prior written consent of Lender except
to the extent Borrower was already committed to take such actions prior to the
occurrence of the Major Event of Default (which for the avoidance of doubt shall
include (x) commitments to fund the second disbursements on Student Loans that
already existed at the time the Major Event of Default had occurred and (y)
Borrower's duties and obligations under employment agreements, retention
agreements and other similar agreements that were in effect at the time the
Major Event of Default had occurred): (i) the origination or purchase
of additional Student Loans, (ii) the incurrence of capital expenditures or
other extraordinary expenditures in an aggregate amount in excess of $100,000
per annum, (iii) the entry into additional Contractual Obligations that are
material to the overall business of Borrower that could have a negative impact
on Lender's rights or interests under this Agreement (which for the avoidance of
doubt shall exclude Contractual Obligations relating to the incurrence of
Indebtedness that will be applied to pay in full the Loans on or after the
termination of the Commitment and Contractual Obligations of the type described
in clause (y)
above that were in effect at the time the Major Event of Default had occurred),
(iv) the declaration or payment of any dividends or other distributions to
holders of its capital stock or other equity interests in Borrower or (v) the
payment of any non-customary compensation to the directors, officers or
employees of Borrower except that Lender agrees to negotiate in good faith with
Borrower the terms of any non-customary compensation to be provided by Borrower
to any director, officer or employee of Borrower in connection with the
additional services to be provided by such director, officer or employee
following a Major Event of Default. If any other Event of Default has
occurred and is continuing after the expiration of the applicable grace period,
if any, Lender must accelerate the maturity of the Loans pursuant to Section 7.2(a) (Acceleration
of Maturity; Other Remedies) before Borrower is required to obtain the
prior written consent of Lender to take the actions described in clauses (i) through
(v) of the
preceding sentence.
55
Section
7.3 Rescission
If at any
time after termination of the Commitment or acceleration of the maturity of the
Loans pursuant to Section 7.2 (Acceleration of
Maturity; Other Remedies), Borrower shall pay all arrears of interest and
all payments on account of principal of the Loans and fees and Obligations that
shall have become due otherwise than by acceleration (with interest on principal
and, to the extent permitted by law, on overdue interest, at the rates specified
herein) and all Events of Default and Defaults (other than non-payment of
principal of and accrued interest on the Loans due and payable solely by virtue
of acceleration) shall be remedied or waived pursuant to Section 8.1(Amendments, Waivers and
Consents), then Lender may, but shall be under no obligation to, upon
written notice to Borrower, rescind and annul the termination of the Commitment
and the acceleration of the payment of principal and interest and all other
amounts; provided, however, that such
action shall not affect any subsequent Event of Default or Default or impair any
right or remedy consequent thereon. This Section 7.3
(Rescission) does not give Borrower the right to require Lender to
rescind or annul any acceleration hereunder, even if the conditions set forth
herein are met.
56
Section
7.4 Remedies following Event of
Default or Change of Control Trigger
If the
maturity of the Loans is accelerated following the occurrence of an Event of
Default pursuant to Section 7.2 (Acceleration of
Maturity; Other Remedies) or the Change of Control Trigger is triggered
pursuant to Section
2.9(a) (Mandatory Prepayments), Lender may exercise the following
remedies:
(a) Lender
may exercise in respect of the Collateral, in addition to other rights and
remedies provided for herein or otherwise available to it, all the rights and
remedies of a secured party upon default under the UCC (whether or not the UCC
applies to the affected Collateral) and also may, without notice except as
specified below, sell the Collateral or any part thereof in one or more parcels
at public or private sale, at any of Lender's offices or elsewhere, for cash, on
credit or for future delivery and upon such other terms as are commercially
reasonable. Lender may be the purchaser at any such sale so long as
the purchase is for cash. Borrower, any Non-Securitization Subsidiary
that is a party to a Joinder Agreement and the Trustee each agrees that, to the
extent notice of sale to it shall be required by law, at least ten (10) calendar
days' prior notice to it of the time and place of any public sale or the time
after which any private sale is to be made shall constitute reasonable
notification. Lender shall not be obligated to make any sale of the
Collateral regardless of notice of sale having been given. Lender may
adjourn any public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned.
(b) Lender
may also exercise any and all rights and remedies of Borrower, the
Non-Securitization Subsidiaries that are parties to Joinder Agreements or the
Trustee under or in connection with the Collateral including, without
limitation:
(i) transferring
all or any part of the Collateral into the name of Lender or the nominee of
Lender,
(ii) notifying
the parties obligated on any of the Collateral to make payment to Lender of any
amount due or to become due thereunder,
(iii) enforcing
collection of any of the Collateral by suit or otherwise, and surrendering,
releasing or exchanging all or any part thereof, or compromising or extending or
renewing for any period (whether or not longer than the original period) any
obligations of any nature of any party with respect thereto and exercising all
other rights of Borrower, such Non-Securitization Subsidiary or the Trustee in
any of the Collateral,
(iv) endorsing
any checks, drafts, or other writings in the name of Borrower, such
Non-Securitization Subsidiary or the Trustee to allow collection of the
Collateral,
(v) taking
possession or control of any proceeds of the Collateral,
57
(vi) executing
(in the name, place and stead of Borrower, such Non-Securitization Subsidiary or
the Trustee) endorsements, assignments, stock powers and other instruments of
conveyance or transfer with respect to all or any of the Collateral,
and
(vii) performing
such other acts as may be reasonably required to protect Lender's rights and
interest hereunder.
(c) The
rights of Lender hereunder shall not be conditioned or contingent upon the
pursuit by Lender of any right or remedy against Borrower, any of the
Non-Securitization Subsidiaries that is a party to a Joinder Agreement or the
Trustee or against any other Person that may be or become liable in respect of
all or any part of the Obligations or against any other collateral security
therefor, guarantee thereof or right of offset with respect
thereto. Lender shall be under no obligation to collect, attempt to
collect, protect or enforce the Collateral or any security therefor, or
otherwise dispose of any Collateral upon the request of Borrower, any of the
Non-Securitization Subsidiaries, the Trustee or any other Person or to take any
other action whatsoever with regard to the Collateral or any part thereof, which
Borrower, any of the Non-Securitization Subsidiaries or the Trustee agrees and
undertakes to do at its expense, but Lender may do so in its discretion at any
time when a Default or an Event of Default has occurred and is continuing or the
Change of Control Trigger has been triggered.
Section
7.5 Compliance with
Restrictions
Borrower,
the Non-Securitization Subsidiaries that are parties to Joinder Agreements and
the Trustee each agrees that in any sale of any of the Collateral whenever an
Event of Default shall have occurred and be continuing or the Change of Control
Trigger has been triggered, Lender is hereby authorized to comply with any
limitation or restriction in connection with such sale as it may be advised by
counsel is necessary in order to avoid any violation of Requirements of Law
(including compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective bidders and
purchasers have certain qualifications, and restrict such prospective bidders
and purchasers to persons who shall represent and agree that they are purchasing
for their own account for investment and not with a view to the distribution or
resale of such Collateral), or in order to obtain any required approval of the
sale or of the purchaser by any governmental regulatory authority or
official. Borrower, the Non-Securitization Subsidiaries that are
parties to Joinder Agreements and the Trustee each further agrees that such
compliance shall not result in such sale being considered or deemed not to have
been made in a commercially reasonable manner, nor shall Lender be liable nor
accountable to Borrower, such Non-Securitization Subsidiary or the Trustee for
any discount allowed by the reason of the fact that such Collateral is sold in
compliance with any such limitation or restriction.
Section
7.6 Private
Sale
Lender
shall incur no liability as a result of a sale of the Collateral, or any part
thereof, at any private sale pursuant to Section 7.4 (Remedies
Following Event of Default or Change of Control Trigger) conducted in a
commercially reasonable manner. Borrower, the Non-Securitization
Subsidiaries that are parties to Joinder Agreements and the Trustee each hereby
waives any claims against Lender arising by reason of the fact that the price at
which the Collateral may have been sold at such a private sale was less than the
price which might have been obtained at a public sale.
58
Section
7.7 Further Assurances as to the
Collateral
(a) At
any time and from time to time, upon the written request of Lender, and at the
sole expense of Borrower, Borrower and the Non-Securitization Subsidiaries that
are parties to Joinder Agreements shall each promptly and duly execute and
deliver or otherwise authenticate any and all such further instruments and
documents and take such further action as is necessary or desirable or that
Lender may reasonably require, in order fully to effect the purposes of this
Agreement and to protect and preserve the priority and validity of the security
interests granted hereunder or to enable Lender to exercise and enforce its
rights and remedies hereunder with respect to any Collateral. Without
limiting the generality of the foregoing, such action shall include the filing
of any financing or continuation statements or amendments thereto and such other
instruments or notices as may be necessary or desirable or as Lender may
reasonably request under the provisions of any applicable UCC in effect with
respect to the Liens and security interests granted hereby. With
respect to the foregoing and the grant of the security interests hereunder,
Borrower, the Non-Securitization Subsidiaries that are parties to Joinder
Agreements and the Trustee each hereby authorizes Lender to file one or more
financing or continuation statements, and amendments thereto, relative to all or
any part of the Collateral, in all jurisdictions and with all filing offices as
are necessary or advisable to perfect the security interests granted to Lender
in connection herewith. Such financing statements may describe the
Collateral in the same manner as described in this Agreement or may contain an
indication or description of collateral that describes such property in any
other manner as has been approved by Borrower or any Non-Securitization
Subsidiary that is a party to a Joinder Agreement. Nothing herein
shall be construed as imposing a duty upon Lender to determine the jurisdictions
or filing offices in which such filings should be made or to make such
filings. In no event shall Lender be deemed to assume the obligations
of Borrower or the Non-Securitization Subsidiaries that are parties to Joinder
Agreements under this Section 7.7 (Further
Assurances as to the Collateral).
(b) To
the extent that any of the Collateral consists of Negotiable Instruments,
Securities or like properties which require the endorsement of Borrower, any of
the Non-Securitization Subsidiaries or the Trustee thereon or the specific
assignment by Borrower, such Non-Securitization Subsidiary or the Trustee
thereof, Borrower, such Non-Securitization Subsidiary or the Trustee, as
applicable, agrees to immediately endorse and assign the same to as Lender may
direct duly endorsed in blank for transfer or accompanied by an appropriate
assignment or assignments or an appropriate undated stock power or powers, in
every case sufficient to transfer title thereto. Furthermore, if any
part of the Collateral is at any time evidenced by Goods, Instruments, Money,
Tangible Chattel Paper, Certificated Securities or other documents of a
character where a security interest therein may be perfected by possession, then
Borrower, such Non-Securitization Subsidiary or the Trustee, as applicable,
agrees that it shall promptly turn over such Goods, Instruments, Money, Tangible
Chattel Paper, Certificated Securities or other documents as Lender may
direct. Without limitation of the foregoing, if Borrower or any
Non-Securitization Subsidiary acquires any Retained Securitization Interest
following the Closing Date that is (i) a Clearing Corporation Security, Borrower
shall cause the relevant Clearing Corporation to continuously credit such
Clearing Corporation Security to the securities account of Lender at such
Clearing Corporation or (ii) an Uncertificated Security (other than a Clearing
Corporation Security), Borrower shall (A) cause Lender to become the registered
owner of such Uncertificated Security on the books and records of the issuer
thereof and (B) cause such registration to remain effective.
59
Section
7.8 Lender's Appointment as
Attorney-in-Fact
(a) Borrower,
the Non-Securitization Subsidiaries that are parties to Joinder Agreements and
the Trustee each hereby irrevocably grants to Lender a power of attorney and
appoints Lender as its agent and attorney-in-fact with full authority in the
place and stead of Borrower, such Non-Securitization Subsidiary or the Trustee,
as applicable, and in the name of Borrower, such Non-Securitization Subsidiary
or the Trustee, as applicable, or otherwise (i) to enforce its rights under the
related Collateral and to collect all sums from time to time owing to Borrower,
such Non-Securitization Subsidiary or the Trustee, as applicable, under any of
the related Collateral, (ii) to effect for the account of Borrower, such
Non-Securitization Subsidiary or the Trustee, as applicable, from moneys
collected by it pursuant to this power of attorney or otherwise, payment of any
amounts from time to time owing by it under the Obligations, (iii) to ask for,
demand, collect, sue for, recover, receive and give acquittance and receipts for
moneys due and to become due under or in respect of any of the related
Collateral, (iv) to receive, indorse and collect any draft or other instruments,
documents and chattel paper, in connection with clause (iii) above,
(v) to file any financing or continuation statements or amendments thereto and
such other instruments or notices as may be necessary or as Lender may
reasonably deem appropriate under the provisions of any applicable UCC in effect
with respect to the Liens and security interests granted hereby as provided in
Section 7.7 (Further
Assurances as to the Collateral) and (vi) to file any claims or take any
action or institute any proceedings that Lender may deem necessary or desirable
for the collection of any of the related Collateral or otherwise to enforce the
rights of Lender with respect to any of the related Collateral; provided, that in no
event shall Lender have the right or the power to execute any documents on
behalf of Borrower, such Non-Securitization Subsidiary or the Trustee, as
applicable (other than the indorsements described in clause (iv) above) or
otherwise incur any obligations or liabilities on behalf of Borrower, such
Non-Securitization Subsidiary or the Trustee, as applicable. This
power of attorney is irrevocable and is coupled with an
interest. Lender agrees that it shall not take any action pursuant to
such power of attorney, as Borrower's, such Non-Securitization Subsidiary's or
the Trustee's agent and attorney in fact, except where an Event of Default has
occurred and is continuing or the Change of Control Trigger has been
triggered.
(b) Borrower,
the Non-Securitization Subsidiaries that are parties to Joinder Agreements and
the Trustee each hereby authorizes Lender, at any time and from time to time,
following the occurrence of a Event of Default or the Change of Control Trigger,
to execute, in connection with a sale or other disposition provided for in this
Article VII (Events of
Default; Remedies Following Event of Default or Change of Control
Trigger), any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral.
60
Section
7.9 Other
Remedies
In
addition to the other remedies set forth in this Article VII (Events of
Default; Remedies Following Event of Default or Change of Control
Trigger), Lender may exercise any such other remedies provided for by the
Transaction Documents in accordance with the terms thereof or any other remedies
provided by applicable Requirements of Law.
ARTICLE
VIII
MISCELLANEOUS
Section
8.1 Amendments,
Waivers and
Consents
No
amendment to or waiver of any provision of this Agreement nor consent to any
departure by the parties hereto from the provisions of this Agreement, shall in
any event be effective unless the same shall be in writing and signed by each of
the parties hereto, and then such amendment, waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, that the consent of the Trustee to any amendment to or waiver
of any provision of this Agreement or consent to any departure by the parties
from the provisions of this Agreement shall require the signature of the Trustee
only if such amendment, waiver or consent is to Sections 5.1(b),
(c) or (f), Sections 7.4 through
7.8 or Sections 8.1 through
8.4 of this
Agreement, and affects the Trustee's rights and obligations
hereunder. No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section
8.2 Assignments and
Participations
(a) The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted
hereby. The obligations and liabilities assumed in this Agreement by
the parties hereto shall be binding upon their respective successors and
assigns, which shall include successors by operation of law, such as by
merger. Neither Borrower nor the Trustee may assign or otherwise
transfer any of its rights or obligations under this Agreement or the other
Transaction Documents to which it is a party without the prior written consent
of Lender in its sole discretion. Lender may assign or otherwise
transfer any of its rights or obligations under this Agreement and the other
Transaction Documents to which it is a party (including all or a portion of its
Commitment and the Loans at the time owing to it) to one or more Eligible
Assignees without the consent of Borrower or the Trustee; provided, that Lender
shall continue to be responsible for the performance of its obligations under
the Transaction Documents. Any purported assignment by Borrower or
the Trustee in violation of this Agreement shall be null and
void. Nothing in this Agreement, express or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent
provided in clause
(b) below, and the Indemnified Persons to the extent provided herein) any
legal or equitable right, remedy or claim under or by reason of this
Agreement.
61
(b) Lender
may at any time, without the consent of, or notice to, Borrower or the Trustee,
sell participations to any Person (other than a natural person or Borrower)
(each, a "Participant") in all
or a portion of Lender's rights and/or obligations under this Agreement and the
other Transaction Documents to which it is a party (including all or a portion
of its Commitment and/or the Loans owing to it); provided, that (i)
Lender's obligations under this Agreement shall remain unchanged, (ii) Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations and (iii) Borrower and the Trustee shall continue to deal
solely and directly with Lender in connection with Lender's rights and
obligations under this Agreement. A Participant shall not be entitled
to receive any greater payment under Section 2.13(c)
(Increased
Costs), 2.14
(Capital Adequacy) or 2.15 (Taxes) than
Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with Borrower's prior written consent.
Section
8.3 Costs and
Expenses
(a) Lender
and Borrower shall each bear its own costs and expenses (including, without
limitation, all legal, accounting, audit, due diligence and other out-of-pocket
expenses) incurred in connection with the consummation of the transactions
contemplated by this Agreement and the other Transaction Documents to which they
are a party. Subject to clause (b) below,
Lender and Borrower shall also each pay their own fees and expenses incurred in
connection with the exercise of their respective rights and the performance of
their respective duties under this Agreement and the other Transaction Documents
to which they are a party following the Closing Date. Borrower shall
reimburse the Trustee for the Trustee's reasonable costs and expenses
(including, without limitation, all reasonable legal, accounting, audit, due
diligence and out-of-pocket expenses) incurred in connection with the execution
and delivery of this Agreement and the consummation of the transactions
contemplated by this Agreement.
(b) Borrower
agrees to pay or reimburse each of Lender and the Trustee upon demand for all
out-of-pocket costs and expenses incurred by Lender or the Trustee following the
Closing Date, including reasonable and documented fees and expenses of its
attorneys, accountants and auditors, incurred by Lender or the Trustee, as
applicable, in connection with any of the following: (i) the creation,
perfection or protection of the Liens under any Transaction Document (including
any reasonable and documented fees, disbursements and expenses for local counsel
in various jurisdictions), (ii) in enforcing any Transaction Document or any
security therefor or exercising or enforcing any other right or remedy available
by reason of the occurrence of the Change of Control Trigger or an Event of
Default, (iii) during the continuance of any Event of Default, in
connection with any refinancing or restructuring of the credit arrangements
provided hereunder in the nature of a "work-out" or in any insolvency or
bankruptcy proceeding, (iv) in commencing, defending or intervening in any
litigation or in filing a petition, complaint, answer, motion or other pleadings
in any legal proceeding related to or arising out of the transactions
contemplated hereby or by any other Transaction Document or (v) in taking
any other action in or with respect to any suit or proceeding (bankruptcy or
otherwise) described in clause (ii),
(iii) or (iv)
above.
62
Section
8.4 Indemnities
(a) Borrower
hereby agrees to indemnify and hold harmless Lender, the Trustee, their
respective Affiliates, and the officers, directors, managers, members,
employees, representatives and agents of Lender, the Trustee and their
respective Affiliates (each such Person, an "Indemnified Person"
and collectively, the "Indemnified Persons")
on demand from and against any and all claims, damages, liabilities,
obligations, losses, penalties, actions, judgments, suits or reasonable costs,
expenses and disbursements of any kind (including reasonable fees and
disbursements of legal counsel) in any way related to the transactions
contemplated by the Transaction Documents (collectively, "Indemnified
Amounts"); provided, that
Borrower shall not have any obligations pursuant to this clause (a) relating
to any Indemnified Amounts resulting solely from the gross negligence, willful
misconduct or bad faith of an Indemnified Person.
(b) Borrower,
at the request of any Indemnified Person, shall have the obligation to defend
against any indemnifiable matter contemplated in clause (a)
above, and Borrower, in any event, may participate in the defense thereof
with legal counsel of Borrower's choice. In the event that such
Indemnified Person requests Borrower to defend against any indemnifiable matter
contemplated in clause (a)
above, Borrower shall promptly do so and such Indemnified Person shall
have the right to have legal counsel of its choice participate in such
defense. No action taken by legal counsel chosen by such Indemnified
Person in defending against any such indemnifiable matter, shall vitiate or in
any way impair Borrower's obligation and duty hereunder to indemnify and hold
harmless such Indemnified Person.
Borrower
agrees that any indemnification or other protection provided to any Indemnified
Person pursuant to this Section 8.4
(Indemnities) shall (i) survive payment in full of the Loans and
(ii) inure to the benefit of any Person that was at any time an Indemnified
Person under this Agreement or any other Transaction Document.
Section
8.5 Confidentiality
Lender
hereby agrees to use all reasonable efforts to keep information obtained by it
pursuant hereto and the other Transaction Documents confidential in accordance
with Lender's customary practices and agrees that it shall only use such
information in connection with the transactions contemplated by this Agreement
and such other Transaction Documents and not disclose any such information other
than (a) to Lender's officers, employees, attorneys, accountants and agents as
required in order to conduct its business and exercise its rights and perform
its obligations under this Agreement and such other Transaction Documents; provided, that such
officers, employees, attorneys, accountants and agents are advised of the
confidential nature of such information, (b) to the extent such information
presently is or hereafter becomes available to Lender on a non-confidential
basis from a source other than Borrower or its Subsidiaries, (c) to the extent
disclosure is required by law, regulation or judicial order or requested or
required by bank regulators or auditors, (d) to current or prospective assignees
and Participants pursuant to Section 8.2 (Assignments and
Participations) and to their respective legal or financial advisors, in
each case and to the extent such assignees, participants, grantees or
counterparties agree to be bound by, and to cause their advisors to comply with,
the provisions of this Section 8.5
(Confidentiality) or (e) with the prior written consent of
Borrower. Notwithstanding any other provision in this Agreement,
Borrower hereby agrees that Lender (and each of its officers, directors,
employees, accountants, attorneys and other advisors) may disclose to any and
all Persons, without limitation of any kind, the U.S. tax treatment and U.S. tax
structure of the transactions contemplated by this Agreement and all materials
of any kind (including opinions and other tax analyses) that are provided to it
relating to such U.S. tax treatment and U.S. tax structure.
63
Section
8.6 Relationship of
Parties
Nothing
contained in this Agreement or the other Transaction Documents shall establish
any fiduciary, partnership, joint venture or similar relationship between or
among the parties hereto except to the extent otherwise expressly stated herein
or therein.
Section
8.7 Limitation of
Liability
Borrower
hereby agrees that neither Lender nor any other Indemnified Person shall have
any liability (whether in contract, tort or otherwise) to Borrower, Borrower's
affiliates or any of their respective equity holders or creditors for or in
connection with the transactions contemplated hereby and in the other
Transaction Documents except, in the case of Lender, to the extent such
liability results primarily from Lender's gross negligence, bad faith or willful
misconduct or a breach by Lender of Lender's obligations under this
Agreement. Without
limitation of the foregoing, in no event, shall Lender or any other Indemnified
Person be liable to Borrower or such other Persons on any theory of liability
for any special, indirect, consequential or punitive damages (including, without
limitation, any loss of profits, business or anticipated
savings). Borrower hereby waives, releases and agrees (on behalf of
itself and its Affiliates) not to sue Lender or any other Indemnified Person,
including, without limitation, not to sue Lender or any other Indemnified Person
upon any such claim for any special, indirect, consequential or punitive
damages, whether or not accrued and whether or not known or suspected to exist
in its favor.
Section
8.8 Right of
Set-off
Upon the
occurrence and during the continuance of any Event of Default, Lender and each
Affiliate of a Lender is hereby authorized at any time and from time to time, to
the fullest extent permitted by Requirements of Law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other Indebtedness at any time owing by Lender to or for the
credit or the account of Borrower against any and all of the Obligations now or
hereafter existing whether or not Lender shall have made any demand under this
Agreement or any other Transaction Document and even though such Obligations may
be unmatured. Lender agrees promptly to notify Borrower after any
such set-off and application made by Lender or its Affiliates; provided, that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of Lender under this Section 8.8 (Right of
Set-off) are in addition to the other rights and remedies (including
other rights of set-off) that Lender may have under all Requirements of
Law.
64
Section
8.9 Notices,
Etc.
(a) Addresses for
Notices. All notices, demands, requests, consents and other
communications provided for in this Agreement shall be given in writing, or by
any telecommunication device capable of creating a written record (including
electronic mail) and addressed to the party to be notified at their respective
addresses set forth in Schedule VII (Addresses for
Notices and Wiring Instructions). The parties hereto may
change their respective addresses for notices from time to time by written
notice to the other party hereto subject to written acknowledgment of receipt by
the other party hereto
(b) Effectiveness of
Notices. All notices, demands, requests, consents and other
communications described in clause (a) above
shall be effective (i) if delivered by hand, including any overnight
courier service, upon personal delivery, (ii) if delivered by mail, when
received in the mails and (iii) if delivered by electronic mail or any
other telecommunications device, when transmitted to an electronic mail address
(or by another means of electronic delivery) as provided in clause (a)
above.
Section
8.10 No Waiver;
Remedies
No
failure on the part of Lender to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
Section
8.11 Governing
Law
THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
Section
8.12 Submission to Jurisdiction;
Service of Process
(a) Any legal
action or proceeding with respect to this Agreement or any other Transaction
Document may be brought in the courts of the State of New York located in the
City of New York or of the United States of America for the Southern District of
New York, and, by execution and delivery of this Agreement, Borrower hereby
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The
parties hereto hereby irrevocably waive any objection, including any objection
to the laying of venue or based on the grounds of forum non conveniens, that any
of them may now or hereafter have to the bringing of any such action or
proceeding in such respective jurisdictions.
65
(b) Nothing
contained in this Section 8.12
(Submission to Jurisdiction; Service of Process) shall affect
the right of Lender to serve process in any other manner permitted by law or
commence legal proceedings or otherwise proceed against Borrower in any other
jurisdiction.
Section
8.13 Waiver of Jury
Trial
EACH OF
THE PARTIES HERETO HEREBY EXPRESSLY AND IRREVOCABLY RELEASES, WAIVES AND
RELINQUISHES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY CLAIM, DEMAND, ACTION,
SUIT, PROCEEDING OR CAUSE OF ACTION IN WHICH ANY OF THEM ARE PARTIES, WHICH IN
ANY WAY (DIRECTLY OR INDIRECTLY) ARISES OUT OF, RESULTS FROM OR RELATES TO ANY
OF THE FOLLOWING, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND
WHETHER BASED ON CONTRACT OR TORT OR ANY OTHER LEGAL BASIS: (I) THIS
AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY; (II) ANY
PAST, PRESENT OR FUTURE ACT, OMISSION, CONDUCT OR ACTIVITY WITH RESPECT TO THIS
AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY; (III) ANY
TRANSACTION, EVENT OR OCCURRENCE CONTEMPLATED BY THIS AGREEMENT; (IV) THE
PERFORMANCE OF ANY OBLIGATION OR THE EXERCISE OF ANY RIGHT UNDER THIS AGREEMENT
OR THE OTHER TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY; AND (V) THE
ENFORCEMENT OF THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS TO WHICH IT IS
A PARTY. EACH OF THE PARTIES HERETO HEREBY FURTHER AGREES THAT THIS
AGREEMENT CONSTITUTES ITS WRITTEN CONSENT THAT TRIAL BY JURY SHALL BE WAIVED IN
ANY SUCH CLAIM, DEMAND, ACTION, SUIT, PROCEEDING OR OTHER CAUSE OF ACTION AND
AGREES THAT EACH OF THEM SHALL HAVE THE RIGHT AT ANY TIME TO FILE THIS AGREEMENT
WITH THE CLERK OR JUDGE OF ANY COURT IN WHICH ANY SUCH CLAIM, DEMAND, ACTION,
SUIT, PROCEEDING OR OTHER CAUSE OF ACTION MAY BE PENDING AS WRITTEN CONSENT TO
WAIVER OF TRIAL BY JURY.
Section
8.14 Marshaling; Payments Set
Aside
Lender
shall be under no obligation to marshal any assets in favor of Borrower or any
other party or against or in payment of any or all of the
Obligations. To the extent that Borrower makes a payment or payments
to Lender, Lenders or the Issuers or any such Person receives payment from the
proceeds of the Collateral or exercise their rights of setoff, and such payment
or payments or the proceeds of such enforcement or setoff or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required to be repaid to a trustee, receiver or any other party, then
to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied, and all Liens, right and remedies therefor, shall be
revived and continued in full force and effect as if such payment had not been
made or such enforcement or setoff had not occurred.
66
Section
8.15 Entire
Agreement
This
Agreement, together with the other Transaction Documents and all certificates
and documents delivered hereunder or thereunder, embodies the entire agreement
of the parties and supersedes all prior agreements and understandings relating
to the subject matter hereof. In the event of any conflict between
the terms of this Agreement and any other Transaction Document, the terms of
this Agreement shall govern.
Section
8.16 Severability
The
provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. If any provision of
this Agreement, or the application thereof to any Person or any circumstance, is
invalid or unenforceable, (a) a suitable and equitable provision shall be
substituted therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable provision
and (b) the remainder of this Agreement and the application of such provision to
other Persons or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof, in any
other jurisdiction.
Section
8.17 Patriot Act
Notice
Lender
hereby notifies Borrower that, pursuant to Section 326 of the USA Patriot Act of
2001 (31 U.S.C. 5318 et seq.), as currently amended (the "Patriot Act"), it is
required to obtain, verify and record information that identifies Borrower,
including the name and address of Borrower and other information that shall
allow Lender to identify Borrower in accordance with the Patriot
Act.
Section
8.18 Section
Titles
The
section titles contained in this Agreement are and shall be without substantive
meaning or content of any kind whatsoever and are not a part of the agreement
between the parties hereto, except when used to reference a
section. Any reference to the number of a clause, sub-clause or
subsection hereof immediately followed by a reference in parenthesis to the
title of the Section containing such clause, sub-clause or subsection is a
reference to such clause, sub-clause or subsection and not to the entire
Section; provided, however, that, in
case of direct conflict between the reference to the title and the reference to
the number of such Section, the reference to the title shall govern absent
manifest error.
Section
8.19 Execution in
Counterparts
This
Agreement may be executed in any number of counterparts and by different parties
in separate counterparts (including by facsimile, electronic mail or other means
of electronic communication), each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute one and the same
agreement.
67
Section
8.20 Concerning the
Trustee
(a) Notwithstanding
anything contained herein to the contrary, it is expressly understood and agreed
by the parties hereto that in signing this Agreement as the Trustee, Citibank is
signing this Agreement not in its individual capacity or personally but solely
in its capacity as the Trustee for Borrower, in the exercise of the powers and
authority conferred and vested in it as the Trustee under the Trust Agreement,
and in no event shall Citibank in signing this Agreement as the Trustee have any
liability in its individual capacity for the representations, warranties,
covenants, agreements or other Obligations of Borrower, any Non-Securitization
Subsidiary that is a party to a Joinder Agreement or any other Person under this
Agreement or in any of the certificates, reports, documents, data, notices or
agreements delivered pursuant hereto, as to all of which recourse shall be had
solely to Borrower and the Non-Securitization Subsidiaries that are parties to
Joinder Agreements in accordance with the terms hereof. All Persons
having any claim against Borrower or any Non-Securitization Subsidiary that is a
party to a Joinder Agreement by reason of the transactions contemplated by this
Agreement shall look only to Borrower and the Non-Securitization Subsidiaries
for payment or satisfaction thereof.
(b) The
Trustee makes no representations or warranties as to nor assumes any
responsibility for the correctness of the recitals contained herein, and the
Trustee shall not be responsible or accountable in any way whatsoever for or
with respect to the validity, execution or sufficiency of this Agreement and
makes no representation with respect thereto. In entering into this
Agreement, the Trustee shall be entitled to the benefit of every provision of
the Trust Agreement relating to the rights, exculpations or conduct of,
affecting the liability of or otherwise affording protection to the
Trustee.
68
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their respective officers thereunto duly authorized, as of the date first above
written.
THE STUDENT LOAN CORPORATION, as Borrower
|
|
By:
|
/s/ Michael J. Reardon |
Name: Michael J. Reardon | |
Title: Chief Executive Officer | |
CITIBANK, N.A., as Lender
|
|
By:
|
/s/ Jeff Cady |
Name: Jeff Cady | |
Title: Managing Director | |
SOLELY
FOR PURPOSES OF SECTIONS 5.1(b), (c) AND (f), SECTIONS 7.4 THROUGH 7.8 AND
SECTIONS 8.1 THROUGH 8.4:
CITIBANK, N.A., not in its individual capacity, but solely in its
capacity as the Trustee
|
|
By:
|
/s/ Valerie Delgado |
Name: Valerie Delgado | |
Title: Vice President | |
SCHEDULE
I
Schedule of Grandfathered
Loans
Trade
ID
|
Desk
|
Input
Date
|
Value
Date
|
Mat
Date
|
PrevResetDate
|
NextResetDate
|
Notional
|
Index
|
Term
|
Index
Rate
|
Spread
|
Note
Rate
|
1181124ZE
|
TRADING
|
11/12/2009
|
11/12/2009
|
1/29/2010
|
11/12/2009
|
1/29/2010
|
600,000,000
|
FIXED
|
0.26300
|
0.25000
|
0.51300
|
|
826000NA
|
TRADING
|
5/31/2005
|
7/1/2005
|
7/1/2010
|
1/4/2010
|
4/1/2010
|
1,000,000,000
|
FORM
|
2.90000
|
0
|
2.90000
|
|
825578NA
|
TRADING
|
5/27/2005
|
7/1/2005
|
7/1/2010
|
1/4/2010
|
4/1/2010
|
1,000,000,000
|
FORM
|
2.90250
|
0
|
2.90250
|
|
1102020ZE
|
SSB
|
8/1/2008
|
8/8/2008
|
8/9/2010
|
11/9/2009
|
2/8/2010
|
737,000,000
|
LIBOR
|
3M
|
0.27531
|
1.74000
|
2.01531
|
1102021ZE
|
SSB
|
8/1/2008
|
8/15/2008
|
8/16/2010
|
11/16/2009
|
2/16/2010
|
737,000,000
|
LIBOR
|
3M
|
0.27250
|
1.74000
|
2.01250
|
1104550ZE
|
SSB
|
8/20/2008
|
8/22/2008
|
8/23/2010
|
11/23/2009
|
2/22/2010
|
737,000,000
|
LIBOR
|
3M
|
0.26656
|
1.79000
|
2.05656
|
1082210ZE
|
TRADING
|
4/1/2008
|
4/1/2008
|
4/1/2011
|
1/4/2010
|
4/1/2010
|
850,000,000
|
LIBOR
|
3M
|
0.25063
|
2.46000
|
2.71063
|
1105543ZE
|
SSB
|
8/27/2008
|
8/29/2008
|
8/29/2011
|
11/30/2009
|
2/26/2010
|
741,000,000
|
LIBOR
|
3M
|
0.25438
|
2.13000
|
2.38438
|
1082211ZE
|
TRADING
|
4/1/2008
|
4/1/2008
|
4/2/2012
|
1/4/2010
|
4/1/2010
|
850,000,000
|
LIBOR
|
3M
|
0.25063
|
2.51000
|
2.76063
|
1082212ZE
|
TRADING
|
4/1/2008
|
4/1/2008
|
4/1/2013
|
1/4/2010
|
4/1/2010
|
850,000,000
|
LIBOR
|
3M
|
0.25063
|
2.57000
|
2.82063
|
826883NA
|
TRADING
|
6/2/2005
|
7/1/2005
|
7/1/2015
|
1/4/2010
|
4/1/2010
|
1,000,000,000
|
FORM
|
2.81500
|
0
|
2.81500
|
|
1030124NA
|
TRADING
|
8/16/2007
|
9/19/2007
|
9/19/2016
|
9/19/2007
|
9/19/2016
|
100,000,000
|
FIXED
|
5.39300
|
0
|
5.39300
|
S-I-
SCHEDULE
II
Permitted
Liens
Number
|
Initial Filing Number
|
Filing Date
|
Jurisdiction
|
Secured Party
|
||||
1 | 43361567 |
11/30/04
|
Delaware
|
Wachovia
Bank, National Association
|
||||
2 | 51958678 |
6/24/05
|
Delaware
|
Wachovia
Bank, National Association
|
||||
3 | 53025898 |
9/29/05
|
Delaware
|
Wachovia
Bank, National Association
|
||||
4 | 60148742 |
1/13/06
|
Delaware
|
Wachovia
Bank, National Association
|
||||
5 | 62259406 |
6/29/06
|
Delaware
|
U.S.
Bank National Association
|
||||
6 | 63477221 |
10/06/06
|
Delaware
|
U.S.
Bank National Association
|
||||
7 | 64465092 |
12/20/06
|
Delaware
|
U.S.
Bank National Association
|
||||
8 | 72505120 |
7/02/07
|
Delaware
|
U.S.
Bank National Association
|
||||
9 | 74483110 |
11/27/07
|
Delaware
|
U.S.
Bank National Association
|
||||
10 | 81093788 |
3/28/08
|
Delaware
|
U.S.
Bank National Association
|
||||
11 | 82198255 |
6/26/08
|
Delaware
|
U.S.
Bank National Association
|
||||
12 | 90588084 |
2/23/09
|
Delaware
|
U.S.
Bank National Association
|
||||
13 | 91544656 |
5/14/09
|
Delaware
|
Straight
A Funding LLC/The Bank of New York Mellon
|
||||
14 | 92462395 |
7/31/09
|
Delaware
|
U.S.
Bank National Association
|
||||
15 | 92608203 |
8/13/09
|
Delaware
|
U.S.
Bank National Association
|
||||
16 | 94106404 |
12/22/09
|
Delaware
|
U.S.
Bank National Association
|
S-II-
SCHEDULE
III
Schedule of Borrower's
Accounts
Account Number
|
Financial Institution
|
Description
|
4069-5855
|
Citibank,
N.A.
|
SLC
Main Checking Account
|
3854-0459
|
Citibank,
N.A.
|
SLC
CBNA as ELT Controlled Distribution Account
|
3073-0186
|
Citibank,
N.A.
|
SLC
OCMO Funding Account
|
3876-2887
|
Citibank,
N.A.
|
SLC
OCMO Controlled Disbursement
Account
|
S-III-
SCHEDULE
IV
Schedule of Servicing
Agreements
Party
|
Agreement
|
Date
|
|
1
|
Citibank
(South Dakota), N.A.
|
Amended
and Restated Agreement for Education Loan Servicing, as
amended
|
1/1/2008
|
2
|
Citibank
(South Dakota), N.A.
|
Intra-Citi
Service Agreement
|
1/1/2009
|
3
|
Citibank,
N.A.
|
Loan
Servicing Agreement, as amended
|
4/15/1997
|
4
|
Citibank,
N.A.
|
Service
Agreement
|
1/14/2005
|
5
|
Citibank,
N.A.
|
Automated
Collection Services Agreement
|
5/1/2001
|
6
|
Affiliated
Computer Services
|
Origination
and Servicing Agreement
|
11/1/1999
|
7
|
American
Education Services/Pennsylvania Higher Education Assistance
Authority
|
Servicing
Agreement
|
3/24/2006
|
8
|
American
Education Services/Pennsylvania Higher Education Assistance
Authority
|
Origination
and Disbursement Services Agreement
|
3/24/2006
|
9
|
American
Student Assistance a/k/a Massachusetts Higher Education Assistance
Corporation
|
Lender
Agreement for Full Service Package
|
5/6/2005
|
10
|
Educational
Credit Management Corporation
|
Disbursement
Services Agreement, as amended
|
11/6/2001
|
11
|
Educational
Credit Management Corporation
|
PLUS
Credit Check Services Agreement
|
5/11/2007
|
12
|
ELM
Resources
|
National
Disbursement Network Lender Agreement
|
8/13/2002
|
13
|
Great
Lakes Higher Education Corporation
|
Student
Loan Origination and Servicing Agreement, as amended
|
5/29/2008
|
14
|
Kentucky
Higher Education Assistance Authority
|
Loan
Origination and Disbursement Services Agreement
|
5/14/2003
|
15
|
New
York Higher Education Service Corporation
|
Plus
Credit Check Services Agreement
|
6/7/2005
|
16
|
New
York Higher Education Service Corporation
|
EFT
Services Agreement
|
9/20/2005
|
17
|
Sallie
Mae, Inc.
|
Disbursement
Services Agreement
|
4/1/2006
|
18
|
Sallie
Mae/USA Group
|
Master
Group Loan Servicing
|
3/1/2000
|
19
|
Texas
Guaranteed Student Loan Corporation
|
Disbursement
Agent Agreement
|
7/13/2005
|
Program
|
Agreement
|
Date
|
Straight-A
Funding LLC (Conduit Program)
|
May
14, 2009
|
|
Servicing
Agreement (Master Servicing)
|
||
Supplemental
Servicing Agreement (Master Servicing)
|
||
Servicing
Agreement (Sub-Servicing)
|
||
Supplemental
Servicing Agreement (Sub-Servicing)
|
||
US
DOE 2009-2010 Loan Participation Purchase Program
|
October
14, 2009
|
|
Custodian
Agreement
|
||
Servicing
Agreement
|
Servicing
Agreement and
Sub-servicing
Agreement
for
each of the following Securitization Vehicles:
|
|
SLC
Student Loan Trust 2004-1
|
|
SLC
Student Loan Trust 2005-1
|
|
SLC
Student Loan Trust 2005-2
|
|
SLC
Student Loan Trust 2005-3
|
|
SLC
Student Loan Trust 2006-1
|
|
SLC
Student Loan Trust 2006-2
|
|
SLC
Student Loan Trust 2006-A
|
|
SLC
Student Loan Trust 2007-1
|
|
SLC
Student Loan Trust 2007-2
|
|
SLC
Student Loan Trust 2008-1
|
|
SLC
Student Loan Trust 2008-2
|
|
SLC
Student Loan Trust 2009-1
|
|
SLC
Student Loan Trust 2009-2
|
|
SLC
Student Loan Trust 2009-3
|
|
SLC
Student Loan Trust 2009-A
|
S-IV-
SCHEDULE
V
Schedule of Retained
Securitization Interests
Residual Interests in
Securitization Vehicles:
SLC
Student Loan Trust 2004-1, Trust Certificate No. 2, 100% Beneficial
Interest
SLC
Student Loan Trust 2005-1, Trust Certificate No. 2, 100% Beneficial
Interest
SLC
Student Loan Trust 2005-2, Trust Certificate No. 2, 100% Beneficial
Interest
SLC
Student Loan Trust 2005-3, Trust Certificate No. 2, 100% Beneficial
Interest
SLC
Student Loan Trust 2006-1, Trust Certificate No. 2, 100% Beneficial
Interest
SLC
Student Loan Trust 2006-2, Trust Certificate No. 2, 100% Beneficial
Interest
SLC
Student Loan Trust 2006-A, Trust Certificate No. 2, 100% Beneficial
Interest
SLC
Student Loan Trust 2007-1, Trust Certificate No. 2, 100% Beneficial
Interest
SLC
Student Loan Trust 2007-2, Trust Certificate No. 2, 100% Beneficial
Interest
SLC
Student Loan Trust 2008-1, Trust Certificate No. 2, 100% Beneficial
Interest
SLC
Student Loan Trust 2008-2, Trust Certificate No. 2, 100% Beneficial
Interest
SLC
Student Loan Trust 2009-1, Trust Certificate No. 2, 100% Beneficial
Interest
SLC
Student Loan Trust 2009-2, Trust Certificate No. 2, 100% Beneficial
Interest
SLC
Student Loan Trust 2009-3, Trust Certificate No. 1, 100% Beneficial
Interest
SLC
Student Loan Trust 2009-A, Trust Certificate No. 2, 100% Beneficial
Interest
Rated Securities Issued by
Securitization Vehicles:
SLC
Student Loan Trust 2007-2, Asset-Backed Student Loan Note, Class B
$25,000,000, CUSIP:
784422AD9
SLC
Student Loan Trust 2008-1, Asset-Backed Student Loan Note, Class B
$57,345,000, CUSIP:
78444LAE3
U.S. Department of
Education’s Participation Program, Class B Participation
Interests:
Class B
Participation Certificate, dated November 10, 2009
S-V-
SCHEDULE
VI
Cash Management
System
No.
|
Party
|
Address
|
Agreement
|
Date
|
1
|
Citibank
(South Dakota), N.A.
|
701
East 60th Street, North, Sioux Falls, SD 57104
|
Amended
and Restated Agreement for Education Loan Servicing, as
amended
|
1/1/2008
|
2
|
Citibank
(South Dakota), N.A.
|
701
East 60th Street, North, Sioux Falls, SD 57104
|
Intra-Citi
Service Agreement
|
1/1/2009
|
3
|
Citibank,
N.A.
|
99
Garnsey Road
Pittsford,
NY 14534
|
Loan
Servicing Agreement, as amended
|
4/15/1997
|
4
|
Citibank,
N.A.
|
99
Garnsey Road
Pittsford,
NY 14534
|
Continuing
Loan Purchase Agreement, as amended
|
4/15/1997
|
5
|
Citibank,
N.A.
|
909
Third Avenue
New
York, NY 10022
|
Service
Agreement
|
1/14/2005
|
6
|
Citibank,
N.A.
|
70
Corporate Drive
Hauppauge,
NY 11788
|
Automated
Collection Services Agreement
|
5/1/2001
|
7
|
Citibank,
N.A.
|
399
Park Avenue
New
York, NY 10043
|
Tax
Agreement
|
12/22/1992
|
8
|
Citibank,
N.A.
|
111
Wall Street
New
York, NY 10005
|
Direct
Deposit Services
|
6/13/1995
& 1/8/1990
|
9
|
Citibank,
N.A., Citicorp, N.A., Citigroup Management Corp.
|
399
Park Avenue
New
York, NY 10043
|
Intra-Group
Service Contract
|
12/1/2005
|
10
|
Citibank,
N.A.
|
909
Park Avenue
New
York, NY 10022
|
Intra-Group
Service Contract
|
3/12/2008
|
11
|
Affiliated
Computer Services
|
ACS
Education Services
2277
East 220th
Street
Long
Beach, CA 90810-1696
|
Origination
and Servicing Agreement
|
11/1/1999
|
12
|
American
Education Services/Pennsylvania Higher Education Assistance Authority
(AES/PHEAA/PA)
|
1200
N 7th Street
Harrisburg,
PA 17102-1444
|
Servicing
Agreement
|
3/24/2006
|
13
|
American
Education Services/Pennsylvania Higher Education Assistance Authority
(AES/PHEAA/PA)
|
1200
N 7th Street
Harrisburg,
PA 17102-1444
|
Origination
and Disbursement Services Agreement
|
3/24/2006
|
14
|
American
Student Assistance a/k/a Massachusetts Higher Education Assistance
Corporation (ASA/MA)
|
100
Cambridge Street
Boston,
MA 02114
|
Lender
Agreement for Full Service Package
|
5/6/2005
|
S-V1-1
Cash Management System
(cont’d)
No.
|
Party
|
Address
|
Agreement
|
Date
|
15
|
Educational
Credit Management Corporation (ECMC/VA, OR))
|
1
Imation Place
Building
2
Oakdale,
MN 55128
|
Disbursement
Services Agreement, as amended
|
11/6/2001
|
16
|
ELM
Resources
|
ELM
NDN Manager
NDN
Administrator
3015
South Parker Road,
Suite
400
Aurora,
CO 80014
|
National
Disbursement Network Lender Agreement
|
8/13/2002
|
17
|
Great
Lakes Higher Education Corporation (GLHEC/GL)
|
2401
International Lane Madison, WI 53704
|
Student
Loan Origination and Servicing Agreement, as amended
|
5/29/2008
|
18
|
Kentucky
Higher Education Assistance Authority (KHEAA/KY)
|
100
Airport Road
Frankfort,
KY 40601
|
Loan
Origination and Disbursement Services Agreement
|
5/14/2003
|
19
|
New
York Higher Education Service Corporation (NYSHESC/NY)
|
99
Washington Avenue
Albany,
NY 12255
|
EFT
Services Agreement
|
9/20/2005
|
20
|
Sallie
Mae, Inc.
|
11100
USA Parkway
Fishers,
IN 46037
|
Disbursement
Services Agreement
|
4/1/2006
|
21
|
Sallie
Mae/USA Group
|
11100
USA Parkway
Fishers,
IN 46037
|
Master
Group Loan Servicing
|
3/1/2000
|
22
|
Texas
Guaranteed Student Loan Corporation (TGSLC/TX)
|
P.O.
Box 83100
Round
Rock, TX 78683
|
Disbursement
Agent Agreement
|
7/13/2005
|
Name/Address
|
Straight-A
Funding LLC
Conduit
Program Agreements
|
Date
|
The
Bank of New York
Mellon
Trust Company, N.A.
Attn:
Brett Conners
10161
Centurion Parkway
Jacksonville,
FL 32256
|
Servicing
Agreement (Master Servicing)
|
5/14/2009
|
Supplemental
Servicing Agreement (Master Servicing)
|
5/14/2009
|
|
Servicing
Agreement (Sub-Servicing)
|
5/14/2009
|
|
Supplemental
Servicing Agreement (Sub-Servicing)
|
5/14/2009
|
Name/Address
|
US
DOE 2009-2010 Loan Participation Purchase Program
Agreements
|
Date
|
The
Bank of New York
Mellon
Trust Company, N.A.
Attn:
Brett Conners
10161
Centurion Parkway
Jacksonville,
FL 32256
|
Custodian
Agreement
|
10/14/2009
|
Servicing
Agreement
|
10/14/2009
|
Name/Address
|
Servicing
Agreement and
Sub-servicing
Agreement
for
each of the following Securitization Vehicles:
|
Citibank
(South Dakota), N.A.
701
East 60th Street, North, Sioux Falls, SD 57104
|
SLC
Student Loan Trust 2004-1
|
SLC
Student Loan Trust 2005-1
|
|
SLC
Student Loan Trust 2005-2
|
|
SLC
Student Loan Trust 2005-3
|
|
SLC
Student Loan Trust 2006-1
|
|
SLC
Student Loan Trust 2006-2
|
|
SLC
Student Loan Trust 2006-A
|
|
SLC
Student Loan Trust 2007-1
|
|
SLC
Student Loan Trust 2007-2
|
|
SLC
Student Loan Trust 2008-1
|
|
SLC
Student Loan Trust 2008-2
|
|
SLC
Student Loan Trust 2009-1
|
|
SLC
Student Loan Trust 2009-2
|
|
SLC
Student Loan Trust 2009-3
|
|
SLC
Student Loan Trust 2009-A
|
Schedule of
Guarantors
NO.
|
NAME
OF GUARANTOR
(State
of Authority/ Abbreviation)
|
ADDRESS
|
AGREEMENT
|
1
|
American
Student Assistance (MA/ASA)
|
100
Cambridge Street
Boston,
MA 02114
|
Loan
Guarantee Agreement (10.04.2000)
|
2
|
Bureau
of Student Financial Assistance (FL/BSFA)
|
1940
Monroe Street
Tallahassee,
FL 32303-4759
|
Guaranty
Agreement, Federal Reinsurance Agreement, Supplemental Guaranty Agreement
(03.04.1978)
Participation
Agreement (03.03.1998)
|
3
|
California
Student Aid Commission (CA/CSAC-Edfund)
|
3300
Zinfandel Drive
Rancho
Cordova, CA 95670
|
Loan
Guaranty Agreement (05.31.2005)
|
4
|
College
Assist (CO)
|
999
18 Street
Denver,
CO 80202
|
Lender
Participation Agreement
(06.20.2008)
|
S-V1-2
Schedule of Guarantors
(cont’d)
NO.
|
NAME
OF GUARANTOR
(State
of Authority/ Abbreviation)
|
ADDRESS
|
AGREEMENT
|
5
|
Connecticut
Student Loan Foundation (CT/CSLF)
|
c/o
ECMC
1
Imation Place - Building 2
Oakdale,
MN 55128
|
Lender
Participation Agreement FFELProgram (08.03.2000)
|
6
|
Education
Assistance Corporation (SD/EAC)
|
115
1st Ave SW
Aberdeen,
SD 57401
|
Lender
Agreement (07.19.2000)
|
7
|
Educational
Credit Management Corporation (VA/ECMC)
|
ECMC
1
Imation Place - Building 2
Oakdale,
MN 55128
|
Guaranty
Agreement (01.09.2002)
|
8
|
Finance
Authority of Maine (ME/FAME)
|
c/o
Sallie Mae Servicing
11100
USA Parkway
Fishers,
IN 46037
|
Guaranty
Agreement (12.31.2002)
Guaranty
Agreement Addendum (03.05.2003)
|
9
|
Georgia
Higher Education Assistance (GA/GHEAC)
|
2082
E. Exchange Place
Tucker,
GA 30084
|
Loan
Guaranty (04.01.2003)
Amendment
No. 1 to Guaranty Agreement (12.16.2005)
Amendment
No. 2 to Guaranty Agreement (06.26.2006)
Amendment
No. 3 to Guaranty Agreement (12.31.2006)
|
10
|
Great
Lakes Higher Education Guaranty Corporation (WI/Great
Lakes)
|
2401
International Lane
Madison,
WI 53704
|
Great
Lakes Loan Guaranty Agreement (10.22.2004)
|
11
|
Illinois
Student Assistance Commission (IL/ISAC)
|
1755
Lake Cook Road
Deerfield,
IL 60015-5209
|
Blanket
Certificate of Loan Guaranty (10.25.2001)
|
12
|
Iowa
College Student Aid Commission (IA/ICAC)
|
c/o
Sallie Mae Servicing
11100
USA Parkway
Fishers,
IN 46037
|
Guarantee
Loan Agreement (04.14.2003)
Plus-SLS
Loan Guarantee Agreement (04.14.2003)
|
13
|
Kentucky
Higher Education Assistance Authority (KY/KHEAA)
|
100
Airport Road
Frankfort,
KY 40601
|
Lender
Participation Agreement
(03-05-03) and
Addendum (05-13-2003)
|
14
|
Louisiana
Student Financial Assistance Commission (LA/LOFSA)
|
c/o
Sallie Mae Servicing
11100
USA Parkway
Fishers,
IN 46037
|
Guarantor
Participation Agreement (12.31.2002)
|
15
|
Michigan
Guaranty Agency (MI/MGA)
|
c/o
Sallie Mae Servicing
11100
USA Parkway
Fishers,
IN 46037
|
Guarantee
Agreement (02.08.2000)
|
S-V1-3
Schedule of Guarantors
(cont’d)
16
|
Missouri
Department of Higher Education (MO/MDHE)
|
c/o
ASA
100
Cambridge Street
Boston,
MA 02114
|
Guarantee
Agreement (06.28.2000)
|
|
17
|
Montana
Guaranteed Student Loan Program (MT/MGSLP)
|
2500
Broadway
Helena,
MT 59601
|
Guarantee
Agreement (06.20.2008)
|
|
18
|
National
Student Loan Program (NE/NSLP)
|
1300
O Street
Lincoln,
NE 68508
|
Guaranty
and Consolidation Agreement (12.10.2001)
|
|
19
|
New
Jersey Higher Education Student Assistance Authority
(NJ/NJHESAA)
|
4
Quakerbridge Plaza
Trenton,
NJ 08625
|
Guaranty
Agreement (08.17.1995)
|
|
20
|
New
Mexico Student Loan Guarantee Corporation (NM)
|
7400
Tiburon NE
Abuquerque,
NM 87109
|
Lender
Participation Agreement (06.03.2008)
|
|
21
|
New
York State Higher Education Services Corporation
(NY/NYSHESC)
|
99
Washington Avenue
Albany,
NY 12255
|
Guarantee
Agreement (10.05.1995)
|
|
22
|
Northwest
Education Loan Association (WA/NELA)
|
c/o
Sallie Mae Servicing
11100
USA Parkway
Fishers,
IN 46037
|
Guarantee
Loan Agreement (07.17.2005)
Federal
Reinsurance Agreement (07.16.1979)
|
|
23
|
Oklahoma
Guaranteed Student Loan Program (OK/OGSLP)
|
c/o
Sallie Mae Servicing
11100
USA Parkway
Fishers,
IN 46037
|
Guarantee
Agreement (12.31.2002)
Consolidation
Loan Guarantee Agreement (12.31.2002)
|
|
24
|
Pennsylvania
Higher Education Assistance Association (PA/PHEAA)
|
1200
N 7th Street
Harrisburg,
PA
17102-1444
|
Guaranty
Agreement (07.08.2008)
|
|
25
|
Rhode
Island Higher Education Assistance Authority (RI/RIHEAA)
|
c/o
Sallie Mae Servicing
11100
USA Parkway
Fishers,
IN 46037
|
Loan
Guarantee Agreement (12.31.2002)
|
|
26
|
Student
Loan Guarantee Foundation of Arkansas (AR/SLGFA)
|
219
South Victory Street
Little
Rock, AK 72201
|
Guarantee
Loans (03.06.2003)
|
|
27
|
Tennessee
Student Assistance Corporation (TN/TSAC)
|
404
James Robinson Parkway
-
Suite 1950
Parkway
Towers
Nashville,
TN 37243
|
Guarantee
Agreement for Federal Stafford Loans (02.05.2002)
Guarantee
Agreement for PLUS (02.05.2002)
|
|
28
|
Texas
Guaranteed Student Loan Corporation (TX/TGSLC)
|
P.O.
Box 83100
Round
Rock, TX 78683
|
Lender
Participation Agreement (08.10.2004)
|
|
29
|
United
Student Aid Funds, Inc. (USAF)
|
c/o
Sallie Mae Servicing
11100
USA Parkway
Fishers,
IN 46037
|
Master
Loan
Agreement (03.01.2000)
|
S-V1-4
SCHEDULE
VII
Addresses for Notices and
Wiring Instructions
Lender's address for notices
is as follows:
Citibank,
N.A.
750
Washington Boulevard (8th Floor)
Stamford,
CT 06901-3702
Attention:
Gina Losito
Telephone
No.: (203) 975-6420
Facsimile
No.: (914) 220-3827
Electronic
mail: gina.losito@citi.com
with
copies to:
Citibank,
N.A.
750
Washington Boulevard (8th Floor)
Stamford,
CT 06901-3702
Attention: Bob
Kohl
Telephone
No.: (203) 975-6383
Facsimile
No.: (914) 274-9038
Electronic
mail: robert.kohl@citi.com;
and
Citibank,
N.A.
750
Washington Boulevard (8th Floor)
Stamford,
CT 06901-3702
Attention:
Madelyn Arroyo
Telephone
No.: (203) 975-6384
Facsimile
No.: (914) 274-9039
Electronic
mail: madelyn.arroyo@citi.com
Borrower's address for
notices is as follows:
The
Student Loan Corporation
750
Washington Boulevard
Stamford,
CT 06901-3702
Attention:
Bradley D. Svalberg
Telephone
No.: (203) 975-6292
Facsimile
No.: (203) 975-6299
Electronic
mail: bradley.d.svalberg@citi.com
with
copies to:
The
Student Loan Corporation
750
Washington Boulevard
Stamford,
CT 06901-3702
Attention:
Christine Y. Homer, General Counsel
Telephone
No.: (203) 975-6292
Facsimile
No.: (203) 975-6148
Electronic
mail: homerc@citi.com;
and
The
Student Loan Corporation
750
Washington Boulevard
Stamford,
CT 06901-3702
Attention:
Scot Parnell, Chief Financial Officer
Telephone
No.: (203) 975-6104
Facsimile
No.: (203) 975-6148
Electronic
mail: scot.parnell@citi.com
The Trustee's address for
notices is as follows:
Citibank
N.A.
388
Greenwich Street, 14th Floor
New York,
NY 10013
Attn: SLC
Trust - Credit Agreement
Lender's wiring instructions
are as follows:
Bank
Name: Citibank, N.A.
ABA
No.: 021000089
Account
No.: 3885-8117
BNF
Name: Citibank Concentration
Account
BNF
Address: 750 Washington Blvd Stamford, Ct
Ref: Student
Loan Corporation
Borrower's wiring
instructions are as follows:
Bank
Name: Citibank,
N.A.
ABA
No.: 021000089
Account
No: 4069-5855
BNF
Name: The
Student Loan Corporation
BNF
Address: 750
Washington Boulevard
Stamford, CT 06901-3702
Ref: Omnibus
Borrowing
S-VII-
EXHIBIT
A
Form of Borrowing
Request
[DATE]
Citibank,
N.A.
388
Greenwich Street, 20th Floor
New York,
New York 10013
Attention:
Telephone
No.:
Facsimile
No.:
Electronic
mail:
with a
copy to:
Citibank,
N.A.
388
Greenwich Street, 20th Floor
New York,
New York 10013
Attention:
Telephone
No.:
Facsimile
No.:
Electronic
mail:
Re: Borrowing
Request
Reference
is hereby made to the Credit Agreement, dated as of January 29, 2010 (as the
same may be amended or otherwise modified from time to time, the "Agreement"), by and
among The Student Loan Corporation, as borrower ("Borrower"), Citibank,
N.A., as lender ("Lender"), and the
other parties identified therein, relating to the revolving credit facility
provided to Borrower by Lender. Capitalized terms used and not
otherwise defined herein shall have the meanings set forth or incorporated by
reference in the Agreement.
Pursuant
to Section 2.2(a)
(Borrowing Procedures) of the Agreement, Borrower hereby requests a
Borrowing in the amount of $___________ to be funded on __________,
2010.
The
Borrowing will be allocated among the three Types of Revolving Loans set forth
below as follows:
1. $___________
for funding under FFELP Loan Funding.
2. $___________
for funding under Private Loan Funding.
3. $___________
for funding under Illiquid Asset Funding.
Borrower
hereby represents and warrants that the Borrowing under each Type of Revolving
Loan set forth above does not exceed the remaining undrawn portion of the
Commitment allocable to such Type of Revolving Loan.
Borrower
hereby further represents and warrants that the conditions to the Borrowing set
forth in Section 3.2
(Conditions Precedent to Each Borrowing) of the Agreement shall be
satisfied as of the date of the Borrowing.
Borrower
has delivered to Lender the month-end computer tape containing information on
additional Student Loans, if any, proposed to be funded by the Borrowing if so
required pursuant to Section 2.2(a) (Borrowing
Procedures) of the Agreement.
Truly
yours,
THE
STUDENT LOAN CORPORATION, as Borrower
|
|
By:
|
/s/ |
Name | |
Title | |
EXHIBIT
B
Form of Monthly
Report
See
Following Pages
Omnibus
Monthly Reporting
THE
STUDENT LOAN CORPORATION
|
||
CONSOLIDATED
BALANCE SHEET
|
||
(Dollars
in thousands, except per share amounts)
|
||
MONTH
|
||
2010
|
||
ASSETS
|
||
Federally
insured student loans
|
$ XX,XXX,XXX
|
|
Private
education loans
|
X,XXX,XXX
|
|
Deferred
origination and premium costs
|
XXX,XXX
|
|
Allowance
for loan losses
|
(XXX,XXX)
|
|
Student
loans, net
|
XX,XXX,XXX
|
|
Other
loans and lines of credit
|
X,XXX
|
|
Loans
held for sale
|
X,XXX,XXX
|
|
Cash
|
XX,XXX
|
|
Residual
interests in securitized loans
|
XXX,XXX
|
|
Other
assets
|
X,XXX,XXX
|
|
Total
Assets
|
$ XX,XXX,XXX
|
|
LIABILITIES
AND STOCKHOLDERS' EQUITY
|
||
Short-term
borrowings payable to principal stockholder
|
$ X,XXX,XXX
|
|
Short-term
secured borrowings from DOE participation
|
X,XXX,XXX
|
|
Long-term
borrowings payable to principal stockholder
|
X,XXX,XXX
|
|
Long-term
secured borrowings from securitizations
|
XX,XXX,XXX
|
|
Deferred
income taxes
|
XXX,XXX
|
|
Other
liabilities
|
XXX,XXX
|
|
Total
Liabilities
|
XX,XXX,XXX
|
|
Common
stock, $.01 par value; authorized 50,000,000
|
||
shares;
20,000,000 shares issued and outstanding
|
XXX
|
|
Additional
paid-in capital
|
XXX,XXX
|
|
Retained
earnings
|
X,XXX,XXX
|
|
Accumulated
other changes in equity from nonowner sources
|
-
|
|
Total
Stockholders' Equity
|
X,XXX,XXX
|
|
Total
Liabilities and Stockholders' Equity
|
$ XX,XXX,XXX
|
THE
STUDENT LOAN CORPORATION
|
|
CONSOLIDATED
STATEMENT OF INCOME
|
|
(Dollars
in thousands, except per share amounts)
|
|
MONTH
ENDED
|
|
2010
|
|
As
Reported
|
|
REVENUE
|
|
Interest
income
|
$ XX,XXX,XXX
|
Interest
expense
|
(XXX,XXX)
|
Net
interest income
|
XXX,XXX
|
Provision
for loan losses
|
(XXX,XXX)
|
Net
interest income after provision for loan losses
|
XXX,XXX
|
Other
income
|
|
Gains
on loans securitized
|
XX,XXX
|
Gains
on loan sales
|
XX,XXX
|
Fee
and other income (loss)
|
XXX,XXX
|
Total
other income
|
XXX,XXX
|
OPERATING
EXPENSES
|
|
Salaries
and employee benefits
|
XX,XXX
|
Restructuring
and related charges
|
(XXX)
|
Other
expenses
|
XXX,XXX
|
Total
operating expenses
|
XXX,XXX
|
Income
before income taxes
|
XXX,XXX
|
Income
taxes
|
XX,XXX
|
NET
INCOME
|
$ XXX,XXX
|
DIVIDENDS
DECLARED
|
$ XX,XXX
|
BASIC
AND DILUTED EARNINGS PER COMMON SHARE
|
$ X.XX
|
(based
on 20 million average shares outstanding)
|
|
DIVIDENDS
DECLARED PER COMMON SHARE
|
$ X.XX
|
EBITDA
to Interest Expense Ratio
$MM
|
(MONTH)
2010
|
Net
Income (before taxes)
|
$ XX.X
|
Interest
Expense*
|
XXX.X
|
Depreciation
|
X.X
|
Amortization
of deferred costs
|
XX.X
|
Accreted
interest on retained interests
|
(XX.X)
|
Deferred
financing fees**
|
X.X
|
Loan
loss reserves
|
X.X
|
EBITDA
|
XXX.X
|
Interest
Expense
|
XXX.X
|
EBITDA
: Interest Expense ratio
|
X.X
|
•
|
As
of the end of each fiscal quarter, Trailing EBITDA to interest expense
ratio is the average for such fiscal quarter and the three immediately
preceding fiscal quarters.
|
•
|
Interest
expense does not include the deferred financing cost that have already been
paid out.
|
•
|
Interest
expense includes amortization of upfront fees and undrawn facility
fees.
|
*
Includes amortization of upfront fees and undrawn facility fees.
**
Deferred Financing cost on existing securitization trusts
Consolidated
Tangible Net Worth
$MM
|
(Month)
2010
|
Equity
|
$ X,XXX
|
Deferred
financing fees
|
(X)
|
Accumulated
Depreciation and
|
|
Software
Amortization
|
XX
|
Consolidated
Tangible Net Worth
|
X,XXX
|
•
|
Consolidated
Tangible Net Worth is calculated as stockholders’ equity less Intangible
Assets.
|
•
|
SLC’s
intangible assets include deferred financing charges and accumulated
depreciation and software
amortization.
|
•
|
Deferred
taxes or premiums paid in connection with the purchase/origination of
student loans are not included in the above calculation as per the new
Omnibus credit agreement.
|
Portfolio
Summary
Unencumbered
|
Loan
Count
|
PRINCIPAL
BALANCE
|
POOL
BALANCE
|
FAS
91 Balance
|
WAM
|
WAC
|
FFELP
|
X,XXX,XXX
|
XX,XXX,XXX,XXX
|
XX,XXX,XXX,XXX
|
XXX,XXX,XXX
|
XXX
|
X.X
|
Private
|
X,XXX,XXX
|
XX,XXX,XXX,XXX
|
XX,XXX,XXX,XXX
|
XXX,XXX,XXX
|
XXX
|
X.X
|
Total
|
X,XXX,XXX
|
XX,XXX,XXX,XXX
|
XX,XXX,XXX,XXX
|
XXX,XXX,XXX
|
XXX
|
X.X
|
Pledged
|
Loan
Count
|
PRINCIPAL
BALANCE
|
POOL
BALANCE
|
FAS
91 Balance
|
WAM
|
WAC
|
FFELP
|
X,XXX,XXX
|
XX,XXX,XXX,XXX
|
XX,XXX,XXX,XXX
|
XXX,XXX,XXX
|
XXX
|
X.X
|
Private
|
X,XXX,XXX
|
XX,XXX,XXX,XXX
|
XX,XXX,XXX,XXX
|
XXX,XXX,XXX
|
XXX
|
X.X
|
Total
|
X,XXX,XXX
|
XX,XXX,XXX,XXX
|
XX,XXX,XXX,XXX
|
XXX,XXX,XXX
|
XXX
|
X.X
|
Total
SLC
|
Loan
Count
|
PRINCIPAL
BALANCE
|
POOL
BALANCE
|
FAS
91 Balance
|
WAM
|
WAC
|
FFELP
|
X,XXX,XXX
|
XX,XXX,XXX,XXX
|
XX,XXX,XXX,XXX
|
XXX,XXX,XXX
|
XXX
|
X.X
|
Private
|
X,XXX,XXX
|
XX,XXX,XXX,XXX
|
XX,XXX,XXX,XXX
|
XXX,XXX,XXX
|
XXX
|
X.X
|
Total
|
X,XXX,XXX
|
XX,XXX,XXX,XXX
|
XX,XXX,XXX,XXX
|
XXX,XXX,XXX
|
XXX
|
X.X
|
CitiAssist
Borrower Characteristics
FFELP
Delinquencies
CitiAssist
Delinquencies
CitiAssist
Workout Programs
EXHIBIT
C
Parameters for February and
March 2010 Securitizations
(1) February
2010 Securitization:
·
|
Minimum
Advance
Rate: 50%
|
·
|
Maximum
Cost of
Funds: Prime
+ 175 bps
|
·
|
Maximum
Collateral
Size: $1.25
Billion
|
·
|
Description
of Collateral:
|
CitiAssist loans originated in 2007. The expected weighted average life (WAL) of Collateral is greater than 7 years. |
(2) March
2010 Securitization:
·
|
Minimum
Advance
Rate: 50%
|
·
|
Maximum
Cost of
Funds: Libor
+ 475 bps
|
·
|
Maximum
Collateral
Size: $700
million
|
·
|
Description
of Collateral
|
CitiAssist loans originated in 2009/2010. The expected weighted average life (WAL) of Collateral is greater than 7 years. |
-
EXHIBIT
D
Form of Joinder
Agreement
This
JOINDER, dated as of __________, 20__ (this "Joinder"), to the
Credit Agreement, dated as of January 29, 2010, (as the same may be amended or
otherwise modified from time to time in accordance with the terms thereof, the
"Agreement"),
by and among The Student Loan Corporation, a Delaware corporation, as borrower
(together with its permitted successors and assigns in such capacity, "Borrower"), Citibank,
N.A., a national banking association ("Citibank"), as lender
(together with its permitted successors and assigns in such capacity, "Lender"), and the
other parties identified therein.
W I T N E
S S E T H:
WHEREAS,
pursuant to Section
6.7 (Non-Securitization Subsidiary Guaranty) of the Agreement, Borrower
shall cause each of the Non-Securitization Subsidiaries that holds property to
be included in the Collateral to fully and unconditionally guaranty the
Obligations under the Agreement, and shall take all such actions to execute and
deliver to Lender, or cause to be executed and delivered to Lender, all such
additional documents, instruments, agreements and certificates as may be
requested by Lender, including, without limitation, any other documents,
agreements or instruments necessary for such Non-Securitization Subsidiary to
grant to Lender a perfected security interest in such Non-Securitization
Subsidiary’s assets subject to no prior Lien other than Permitted Liens pursuant
to Section 5.1(a)
(Grant of Security Interest) of the Agreement;
NOW,
THEREFORE, in consideration of the agreements and covenants herein contained,
the parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.1.
|
Defined
Terms.
|
Capitalized terms
used herein, but not otherwise defined, shall have the meanings ascribed to such
terms in the Agreement. As used in this Joinder, the following terms
have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Aggregate Payments"
has the meaning set forth in Section
2.3.
"Fair Share" has the
meaning set forth in Section
2.3.
"Fair Share Contribution
Amount" has the meaning set forth in Section
2.3.
"Funding Guarantor"
has the meaning set forth in Section
2.3.
"Guarantor" has the
meaning set forth in Section
2.3.
"Guarantor Collateral"
has the meaning set forth in Section
4.1.
"Guaranty" has the
meaning set forth in Section
2.2.
ARTICLE
II
ACKNOWLEDGMENT
AND GUARANTY
Section
2.1.
|
Section
2.2.
|
Acknowledgment.
|
The
undersigned (together with each other Person that executes a joinder to the
Agreement, each a "Guarantor") hereby
acknowledges, agrees and confirms that, by its execution of this Joinder, it
fully and unconditionally guarantees the Obligations of Borrower pursuant to
Section 6.7
(Non-Securitization Subsidiary Guaranty) of the Agreement and shall be
deemed to be a party to the Agreement. The undersigned hereby
ratifies, as of the date hereof, and agrees to be bound by all of the terms,
provisions and conditions contained in the Agreement.
Section
2.3.
|
Guaranty of the
Obligations
|
Subject
to the provisions of Section 2.3
(Contribution by Guarantors), the undersigned and each other Guarantor jointly
and severally irrevocably and unconditionally guaranties to Lender (the "Guaranty") the due
and punctual payment in full of all Obligations when the same shall become due,
whether at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise (including amounts that would become due but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11
U.S.C. § 362(a)) (collectively, the "Guaranteed
Obligations").
Section
2.4.
|
Contribution by
Guarantors
|
All
Guarantors desire to allocate among themselves, in a fair and equitable manner,
their obligations arising under this Guaranty. Accordingly, in the event any
payment or distribution is made on any date by a Guarantor (a "Funding Guarantor")
under the Guaranty such that its Aggregate Payments exceeds its Fair Share as of
such date, such Funding Guarantor shall be entitled to contribution from each of
the other Guarantors in an amount sufficient to cause each Guarantor’s Aggregate
Payments to equal its Fair Share as of such date. "Fair Share" means,
with respect to a Guarantor as of any date of determination, an amount equal to
(a) the ratio of (i) the Fair Share Contribution Amount with respect to such
Guarantor to (ii) the aggregate of the Fair Share Contribution Amounts with
respect to all Guarantors multiplied by (b) the aggregate amount paid or
distributed on or before such date by all Funding Guarantors under this Guaranty
in respect of the obligations guaranteed. "Fair Share Contribution
Amount" means, with respect to a Guarantor as of any date of
determination, the maximum aggregate amount of the obligations of such Guarantor
under this Guaranty that would not render its obligations hereunder or
thereunder subject to avoidance as a fraudulent transfer or conveyance under
Section 548 of Title 11 of the United States Code or any comparable applicable
provisions of state law; provided, that solely
for purposes of calculating the "Fair Share Contribution
Amount" with respect to any Guarantor for purposes of this Section 2.3, any
assets or liabilities of such Guarantor arising by virtue of any rights to
subrogation, reimbursement or indemnification or any rights to or obligations of
contribution hereunder shall not be considered as assets or liabilities of such
Guarantor. "Aggregate
Payments" means, with respect to a Guarantor as of any date of
determination, an amount equal to (1) the aggregate amount of all payments and
distributions made on or before such date by such Guarantor in respect of the
Guaranty (including in respect of this Section 2.3), minus (2) the
aggregate amount of all payments received on or before such date by such
Guarantor from the other Guarantors as contributions under this Section
2.3. The allocation among Guarantors of their obligations as
set forth in this Section 2.3 shall not
be construed in any way to limit the liability of any Guarantor hereunder. Each
Guarantor is a third-party beneficiary to the contribution agreement set forth
in this Section
2.3.
Section
2.5.
|
Payment by
Guarantors
|
Subject
to Section 2.3,
Guarantors jointly and severally agree, in furtherance of the foregoing and not
in limitation of any other right which Lender may have at law or in equity
against any Guarantor by virtue hereof, as the Obligations shall become due,
whether at stated maturity, by required prepayment, acceleration or otherwise
(including amounts that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)),
Guarantors shall upon demand by Lender, and without presentment, protest, notice
of protest, notice of non-payment, notice of intention to accelerate the
maturity notice of the acceleration of the maturity or any other notice
whatsoever, pay, or cause to be paid, in cash, to Lender, an amount equal to the
sum of the unpaid Obligations then due as aforesaid, accrued and unpaid interest
on such Obligations (including interest which, but for Borrower becoming the
subject of a case under the Bankruptcy Code, would have accrued on such
Obligations, whether or not a claim is allowed against Borrower for such
interest in the related bankruptcy case).
Section
2.6.
|
Liability of
Guarantors Absolute
|
Each
Guarantor agrees that its obligations hereunder are irrevocable, absolute,
independent and unconditional and shall not be affected by any circumstance
which constitutes a legal or equitable discharge of a guarantor or surety other
than payment in full of the Obligations. In furtherance of the foregoing and
without limiting the generality thereof, each Guarantor agrees as
follows:
(a) this
Guaranty is a guaranty of payment when due and not of collectability. This
Guaranty is a primary obligation of each Guarantor and not merely a contract of
surety;
(b) Lender
may enforce this Guaranty upon the occurrence of an Event of Default
notwithstanding the existence of any dispute between Borrower and Lender with
respect to the existence of such Event of Default;
(c) the
obligations of each Guarantor hereunder are independent of the obligations of
Borrower and the obligations of any other guarantor (including any other
Guarantor) of the obligations of Borrower, and a separate action or actions may
be brought and prosecuted against such Guarantor whether or not any action is
brought against Borrower or any of such other guarantors and whether or not
Borrower is joined in any such action or actions;
(d) payment
by any Guarantor of a portion, but not all, of the Obligations shall in no way
limit, affect, modify or abridge any Guarantor’s liability for any portion of
the Obligations which has not been paid. Without limiting the generality of the
foregoing, if Lender is awarded a judgment in any suit brought to enforce any
Guarantor’s covenant to pay a portion of the Obligations, such judgment shall
not be deemed to release such Guarantor from its covenant to pay the portion of
the Obligations that is not the subject of such suit, and such judgment shall
not, except to the extent satisfied by such Guarantor, limit, affect, modify or
abridge any other Guarantor’s liability hereunder in respect of the
Obligations;
(e) Lender,
upon such terms as it deems appropriate, without notice or demand and without
affecting the validity or enforceability hereof or giving rise to any reduction,
limitation, impairment, discharge or termination of any Guarantor’s liability,
from time to time may (i) renew, extend, accelerate, increase the rate of
interest on, or otherwise change the time, place, manner or terms of payment of
the Obligations; (ii) settle, compromise, release or discharge, or accept or
refuse any offer of performance with respect to, or substitutions for, the
Obligations or any agreement relating thereto and/or subordinate the payment of
the same to the payment of any other obligations; (iii) request and accept other
guaranties of the Obligations and take and hold security for the payment hereof
or the Obligations; (iv) release, surrender, exchange, substitute, compromise,
settle, rescind, waive, alter, subordinate or modify, with or without
consideration, any security for payment of the Obligations; (v) enforce and
apply any security now or hereafter held by or for the benefit of Lender in
respect hereof or the Obligations and direct the order or manner of sale
thereof, or exercise any other right or remedy that Lender may have against any
such security, in each case as Lender in its discretion may determine consistent
herewith or within an applicable security agreement, including foreclosure on
any such security pursuant to one or more judicial or nonjudicial sales, and
even though such action operates to impair or extinguish any right of
reimbursement or subrogation or other right or remedy of any Guarantor against
Borrower or any security for the Obligations; and (vi) exercise any other rights
available to it under the Transaction Documents; and
(f) this
Guaranty and the obligations of Guarantors shall be valid and enforceable and
shall not be subject to any reduction, limitation, impairment, discharge or
termination for any reason (other than payment in full of the Obligations),
including the occurrence of any of the following, whether or not any Guarantor
shall have had notice or knowledge of any of them: (i) any failure or omission
to assert or enforce or agreement or election not to assert or enforce, or the
stay or enjoining, by order of court, by operation of law or otherwise, of the
exercise or enforcement of, any claim or demand or any right, power or remedy
(whether arising under the Transaction Documents, at law, in equity or
otherwise) with respect to the Obligations or any agreement relating thereto, or
with respect to any other guaranty of or security for the payment of the
Obligations; (ii) any rescission, waiver, amendment or modification of, or any
consent to departure from, any of the terms or provisions (including provisions
relating to events of default) hereof, any of the other Transaction Documents,
or any agreement or instrument executed pursuant thereto, or of any other
guaranty or security for the Obligations, in each case whether or not in
accordance with the terms hereof or such Transaction Document, or any agreement
relating to such other guaranty or security; (iii) the Obligations, or any
agreement relating thereto, at any time being found to be illegal, invalid or
unenforceable in any respect; (iv) the application of payments received from any
source (other than payments received pursuant to the other
Transaction Documents or from the proceeds of any security for the
Obligations, except to the extent such security also serves as collateral for
indebtedness other than the Obligations) to the payment of indebtedness other
than the Obligations, even though Lender might have elected to apply such
payment to any part or all of the Obligations; (v) Lender’s consent to the
change, reorganization or termination of the corporate structure or existence of
Borrower or any of its Subsidiaries and to any corresponding restructuring of
the Obligations; (vi) any failure to perfect or continue perfection of a
security interest in any Collateral which secures any of the Obligations; (vii)
any defenses, set-offs or counterclaims which Borrower may allege or assert
against Lender in respect of the Obligations, including failure of
consideration, breach of warranty, payment, statute of frauds, statute of
limitations, accord and satisfaction and usury; (viii) any redrawing by Borrower
pursuant to the terms of the Agreement; and (ix) any other act or thing or
omission, or delay to do any other act or thing, which may or might in any
manner or to any extent vary the risk of any Guarantor as an obligor in respect
of the Obligations.
Section
2.7.
|
Waivers by
Guarantors
|
Each
Guarantor hereby waives, for the benefit of Lender: (a) any right to require
Lender, as a condition of payment or performance by such Guarantor, to (i)
proceed against Borrower, any other guarantor (including any other Guarantor) of
the Obligations or any other Person, (ii) proceed against or exhaust any
security held from Borrower, any such other guarantor or any other Person, (iii)
proceed against or have resort to any balance of any deposit account or credit
on the books of Lender in favor of Borrower or any other Person, or (iv) pursue
any other remedy in the power of Lender whatsoever; (b) any defense arising by
reason of the incapacity, lack of authority or any disability or other defense
of Borrower or any other Guarantor including any defense based on or arising out
of the lack of validity or the unenforceability of the Obligations or any
agreement or instrument relating thereto or by reason of the cessation of the
liability of Borrower or any other Guarantor from any cause other than payment
in full of the Obligations; (c) any defense based upon any statute or rule of
law which provides that the obligation of a surety must be neither larger in
amount nor in other respects more burdensome than that of the principal; (d) any
defense based upon any of Lender’s errors or omissions in the administration of
the Obligations, except behavior which amounts to bad faith; (e) (i) any
principles or provisions of law, statutory or otherwise, which are or might be
in conflict with the terms hereof and any legal or equitable discharge of such
Guarantor’s obligations hereunder, (ii) the benefit of any statute of
limitations affecting such Guarantor’s liability hereunder or the enforcement
hereof, (iii) any rights to set-offs, recoupments and counterclaims, and (iv)
promptness, diligence and any requirement that Lender protect, secure, perfect
or insure any security interest or lien or any property subject thereto; (f)
notices, demands, presentments, protests, notices of protest, notices of
dishonor and notices of any action or inaction, including acceptance hereof,
notices of default hereunder, or any agreement or instrument related thereto, or
notices of any renewal, extension or modification of the Obligations or any
agreement related thereto, ; and (g) any defenses or benefits that may be
derived from or afforded by law which limit the liability of or exonerate
guarantors or sureties, or which may conflict with the terms
hereof.
Section
2.8.
|
Guarantors’ Rights of
Subrogation, Contribution,
Etc.
|
Until the
Obligations shall have been indefeasibly paid in full, each Guarantor waives any
claim, right or remedy, direct or indirect, that such Guarantor now has or may
hereafter have against Borrower or any other Guarantor or any of its assets in
connection with the Guaranty or the performance by such Guarantor of its
obligations under the Guaranty, in each case whether such claim, right or remedy
arises in equity, under contract, by statute, under common law or otherwise. In
addition, until the Obligations shall have been indefeasibly paid in full, each
Guarantor shall withhold exercise of any right of contribution such Guarantor
may have against any other guarantor (including any other Guarantor) of the
Obligations.
Section
2.9.
|
Continuing
Guaranty
|
The
Guaranty is a continuing guaranty and shall remain in effect until all of the
Obligations shall have been paid in full. Each Guarantor irrevocably
waives any right to revoke the Guaranty as to future transactions giving rise to
any Obligations.
Section
2.10.
|
Authority of
Guarantors
|
It is not
necessary for Lender to inquire into the capacity or powers of any Guarantor or
the officers, directors or any agents acting or purporting to act on behalf of
any of them.
Section
2.11.
|
Bankruptcy,
Etc.
|
(a) So long
as any Obligations remain outstanding, no Guarantor shall, without the prior
written consent of Lender, commence or join with any other Person in commencing
any bankruptcy, reorganization or insolvency case or proceeding of or against
Borrower or any other Guarantor. The obligations of Guarantors hereunder shall
not be reduced, limited, impaired, discharged, deferred, suspended or terminated
by any case or proceeding, voluntary or involuntary, involving the bankruptcy,
insolvency, receivership, reorganization, liquidation or arrangement of Borrower
or any other Guarantor or by any defense that Borrower or any other Guarantor
may have by reason of the order, decree or decision of any court or
administrative body resulting from any such proceeding.
(b) Each
Guarantor acknowledges and agrees that any interest on any portion of the
Obligations that accrues after the commencement of any case or proceeding
referred to in clause (a) above (or, if interest on any portion of the
Obligations ceases to accrue by operation of law by reason of the commencement
of such case or proceeding, such interest as would have accrued on such portion
of the Obligations if such case or proceeding had not been commenced) shall be
included in the Obligations because it is the intention of Guarantors and Lender
that the Obligations which are guaranteed by Guarantors should be determined
without regard to any rule of law or order which may relieve Borrower or any of
the Guarantors of any portion of such Obligations. Guarantors shall permit any
trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit
of creditors or similar Person to pay Lender, or allow the claim of Lender in
respect of, any such interest accruing after the date on which such case or
proceeding is commenced.
(c) In the
event that all or any portion of the Obligations are paid by Borrower, the
obligations of Guarantors hereunder shall continue and remain in full force and
effect or be reinstated, as the case may be, in the event that all or any part
of such payment(s) are rescinded or recovered directly or indirectly from Lender
as a preference, fraudulent transfer or otherwise, and any such payments which
are so rescinded or recovered shall constitute Obligations for all purposes
hereunder.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
To induce
Lender to enter into this Joinder, Guarantor represents and warrants each of the
following to Lender:
Section
3.1.
|
Organization;
Power
|
Guarantor
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to carry
on its business as now conducted and to perform its obligations under this
Joinder and, except where the failure to do so individually or in the aggregate
would not have a Material Adverse Effect, is duly qualified to do business and
in good standing in each jurisdiction where such qualification is
required.
Section
3.2.
|
Authorization;
Enforceability; Due Execution and
Delivery
|
This
Joinder is within the legal power of Guarantor and has been duly
authorized, executed and delivered and is enforceable against Guarantor as the
same may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
Section
3.3.
|
Government Approvals;
No Conflicts
|
This
Joinder and the exercise of its rights and performance of its
obligations thereunder (i) do not require any consent, approval, registration or
filing with any Governmental Authority except for those that have been obtained
and are in full force and effect, (ii) shall not violate any law, rule or
regulation, the certificate of incorporation or by-laws or other organizational
documents of Guarantor or any order of any Governmental Authority, (iii) shall
not violate or result in a default or the equivalent under any indenture,
agreement or other instrument binding upon Guarantor or its assets or give rise
to a right thereunder to require any payment by Guarantor and (iv) shall not
result in any Lien on any assets of Guarantor, that in the aggregate may
reasonably be expected to have a Material Adverse Effect.
Section
3.4.
|
Properties;
Intellectual Property
|
Guarantor
has good title to or valid leasehold interests in all of its real and personal
property material to its business except for minor defects in title that do not
interfere with its ability to conduct its business as currently conducted or to
utilize such properties for their intended purposes. Guarantor owns
or is licensed to use all intellectual property material to its
business.
Section
3.5.
|
Compliance with Law;
Defaults
|
Guarantor
is in compliance with all applicable laws, regulations and orders of any
Governmental Authority applicable to it and its properties and all indentures,
agreements and other instruments binding upon it or applicable to its property,
except where the failure to do so may not be reasonably expected to result in a
Material Adverse Effect.
Section
3.6.
|
Investment Company Act
Status
|
Neither
Guarantor nor any portfolio of student loans held by Guarantor is an investment
company as defined in, or subject to regulation under, the U.S. Investment
Company Act of 1940, as amended.
Section
3.7.
|
ERISA
|
Guarantor
does not maintain any (i) employee benefit plan (as defined in Section 3(3) of
ERISA), subject to Title I of ERISA, or (ii) plan (as defined in Section
4975(e)(1) of the Code) that is subject to Section 4975 of the
Code.
Section
3.8.
|
Title and
Security
|
Guarantor
has good and marketable title to the Guarantor Collateral free and clear of all
Liens other than Permitted Liens. This Joinder creates (subject to
Permitted Liens) a valid, first priority security interest in the Guarantor
Collateral and all proceeds thereof that shall be perfected upon (i) the filing
of UCC-1 financing statements identifying Guarantor and any Subsidiary of
Guarantor that holds items of Guarantor Collateral with the Secretary of State
in the State of Delaware (or other applicable jurisdiction) pursuant to Section 3.1(a)(vii)
(Conditions Precedent to Closing Date) of the Agreement, (ii) with
respect to Goods, Instruments, Money, tangible Chattel Paper or Certificated
Securities, upon possession by or delivery thereof to Lender (other than Student
Loans, which shall be perfected by filing pursuant to clause (i)) and (iii) with
respect to Investment Property, Deposit Accounts, Letter-of-Credit Rights or
electronic Chattel Paper, by Control (within the meaning of such term assigned
under the UCC) of such Guarantor Collateral by Lender.
ARTICLE
IV
COLLATERAL
Section
4.1.
|
Grant of Security
Interest.
|
The
undersigned Guarantor, in order to secure the Obligations, hereby Grants to
Lender, a valid and continuing first priority and perfected Lien on and security
interest in all of Guarantor's right, title and interest in, to and under, the
following property, in each case, whether now owned or existing, or hereafter
acquired and arising (all of which being hereinafter collectively called the
"Guarantor
Collateral") subject in each case only to Permitted Liens:
(a) all
Student Loans now held or hereafter acquired by Guarantor (without regard to
whether such Student Loans satisfy the eligibility requirements set forth in the
definitions for "FFELP
Loans" and "Private
Loans");
(b) all
Retained Securitization Interests now held or hereafter acquired by
Guarantor;
(c) all other
accounts established and maintained in the name of Guarantor from time to time,
together with together with (i) all Securities, Securities Entitlements,
Investment Property, Financial Assets and any other property deposited in or
credited to such other accounts from time to time, (ii) all interest, cash,
instruments, dividends, distributions, return on capital, redemptions,
securities and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any and all of the
property described in subclause (i), (iii) all certificates and instruments, if
any, from time to time representing or evidencing the Financial Assets credited
to such other accounts from time to time, including all rights to renew or
withdraw the same and (iv) all Securities Entitlements credited to such other
accounts from time to time;
(d) all
intercompany debt of Guarantor;
(e) all
Securities (with the meaning given to such term in Section 8-102(a)(15) of the
UCC, and in any event including all Stock and interests of Subsidiaries of
Guarantor and all intercompany notes of Guarantor and such
Subsidiaries;
(f) all books
and records (including, without limitation, computer printouts, computer
software and other computer output materials and records) pertaining to any of
the Guarantor Collateral described in clauses (a) through (e) above;
and
(g) all
Proceeds and other income in respect of the Guarantor Collateral described in
the foregoing clauses (a) through (f) above;
provided, that the
Guarantor Collateral shall not include (i) student loans released in connection
with U.S. federal government student loan programs enacted pursuant to Public
Law 110-22, (ii) student loans released to the Securitization Vehicles that
exist as of the Closing Date in accordance with the related transfer
documentation and (iii) Guarantor Collateral otherwise released in accordance
with Section 5.2
(Release of Collateral).
Such
Grants are made to Lender to secure the Obligations in accordance with the terms
of the Agreement and all other applicable Transaction Documents, including the
payment of all amounts payable under the Agreement and such other Transaction
Documents in accordance with the terms thereof.
This
Joinder shall constitute a security agreement under the laws of the State of New
York, for the benefit of Lender as secured party. Upon the occurrence
of a Default, and following the occurrence of the Change of Control Trigger, in
addition to any other rights available under this Agreement or otherwise
available at law or in equity but subject to the terms thereof, Lender shall
have all rights and remedies of a secured party under the laws of the State of
New York and other applicable law to enforce the assignments and security
interests contained herein and, in addition, shall have the right, subject to
compliance with any mandatory requirements of applicable law and the terms of
the Agreement, to sell or apply any rights and other interests assigned or
pledged hereby in accordance with the terms thereof at public and private
sale.
Guarantor
hereby authorizes the filing of financing or continuation statements, and
amendments thereto, in all jurisdictions and with all filing offices as are
necessary or advisable to perfect the security interests granted to Lender in
connection herewith. Such financing statements may describe the
Guarantor Collateral in the same manner as described in this Joinder or may
contain an indication or description of collateral that describes such property
in any other manner as has been approved by Guarantor. Nothing herein
shall be construed as imposing a duty upon Lender to determine the jurisdictions
or filing offices in which such filings should be made or to make such
filings.
If any
item of the Guarantor Collateral pledged by Guarantor pursuant to this Section 4.1 is
received by Guarantor, Guarantor shall forthwith take such action as is
necessary to ensure Lender's continuing perfected security interest in such
Guarantor Collateral pursuant to this Section 4.1 (subject
to Permitted Liens).
ARTICLE
V
TERMINATION
OF SECURITY INTEREST
Section
5.1.
|
Termination of
Security Interest; Release of
Collateral.
|
Upon the
payment in full of all Obligations and after all of Lender's commitments under
the Agreement are no longer in effect, this Joinder shall terminate and, subject
to the terms of the Agreement, all rights to the Guarantor Collateral granted
hereunder shall revert to Guarantor. In any such case, at the direction of
Guarantor, Lender shall, at Guarantor's expense, execute and deliver to
Guarantor such documents as are necessary or advisable to evidence such
termination of the security interest and/or such release of Guarantor
Collateral. Furthermore, at any time and from time to time prior to the
termination of the security interest as provided in the first sentence of this
Section 5.1 (Termination of Security Interest; Release of Collateral), Lender
may release any of the Guarantor Collateral (not otherwise released in
accordance with this Joinder). In any such case, Lender shall, at
Guarantor's request and expense, execute and deliver to Guarantor such documents
as are necessary or advisable to evidence such termination of the security
interest and/or such release of Guarantor Collateral.
Section
5.2.
|
Termination
Statements.
|
Lender
shall at Guarantor's request and expense, upon the payment in full of
all Obligations and after all of Lender's commitments under the
Agreement are no longer in effect, authorize the filing of UCC termination
statements provided by Guarantor releasing the security interest.
ARTICLE
VI
MISCELLANEOUS
Section
6.1.
|
Amendments, Waivers
and Consents
|
No
amendment to or waiver of any provision of this Joinder nor consent to any
departure by the parties hereto from the provisions of this Joinder, shall in
any event be effective unless the same shall be in writing and signed by each of
the parties hereto, and then such amendment, waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section
6.2.
|
Execution in
Counterparts
|
This
Joinder may be executed in one or more counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same contract.
Section
6.3.
|
Further Acts and
Assurances
|
The
undersigned Guarantor agrees that at any time and from time to time, upon the
written request of Lender, it will execute and deliver such further documents
and do such further acts as Lender may reasonably request in order to effect the
purposes of this Joinder.
Section
6.4.
|
No Waiver;
Remedies
|
No
failure on the part of Lender to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
Section
6.5.
|
Waiver of Jury
Trial
|
EACH OF
THE PARTIES HERETO HEREBY EXPRESSLY AND IRREVOCABLY RELEASES, WAIVES AND
RELINQUISHES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY CLAIM, DEMAND, ACTION,
SUIT, PROCEEDING OR CAUSE OF ACTION IN WHICH ANY OF THEM ARE PARTIES, WHICH IN
ANY WAY (DIRECTLY OR INDIRECTLY) ARISES OUT OF, RESULTS FROM OR RELATES TO ANY
OF THE FOLLOWING, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND
WHETHER BASED ON CONTRACT OR TORT OR ANY OTHER LEGAL BASIS: (I) THIS
JOINDER OR THE OTHER TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY; (II) ANY
PAST, PRESENT OR FUTURE ACT, OMISSION, CONDUCT OR ACTIVITY WITH RESPECT TO THIS
JOINDER OR THE OTHER TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY; (III) ANY
TRANSACTION, EVENT OR OCCURRENCE CONTEMPLATED BY THIS JOINDER; (IV) THE
PERFORMANCE OF ANY OBLIGATION OR THE EXERCISE OF ANY RIGHT UNDER THIS JOINDER OR
THE OTHER TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY; AND (V) THE ENFORCEMENT
OF THIS JOINDER OR THE OTHER TRANSACTION DOCUMENTS TO WHICH IT IS A
PARTY. EACH OF THE PARTIES HERETO HEREBY FURTHER AGREES THAT THIS
JOINDER CONSTITUTES ITS WRITTEN CONSENT THAT TRIAL BY JURY SHALL BE WAIVED IN
ANY SUCH CLAIM, DEMAND, ACTION, SUIT, PROCEEDING OR OTHER CAUSE OF ACTION AND
AGREES THAT EACH OF THEM SHALL HAVE THE RIGHT AT ANY TIME TO FILE THIS JOINDER
WITH THE CLERK OR JUDGE OF ANY COURT IN WHICH ANY SUCH CLAIM, DEMAND, ACTION,
SUIT, PROCEEDING OR OTHER CAUSE OF ACTION MAY BE PENDING AS WRITTEN CONSENT TO
WAIVER OF TRIAL BY JURY.
Section
6.6.
|
Submission to
Jurisdiction; Service of
Process
|
Any legal
action or proceeding with respect to this Joinder or any other Transaction
Document may be brought in the courts of the State of New York located in the
City of New York or of the United States of America for the Southern District of
New York, and, by execution and delivery of this Joinder, the undersigned hereby
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The
parties hereto hereby irrevocably waive any objection, including any objection
to the laying of venue or based on the grounds of forum non conveniens, that any
of them may now or hereafter have to the bringing of any such action or
proceeding in such respective jurisdictions.
Section
6.7.
|
Governing
Law
|
THIS
JOINDER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
Section
6.8.
|
Service of
Process
|
The
undersigned hereby irrevocably consents to service of process in the manner
provided for notices in Section 8.9 (Notices,
Etc.) of the Agreement.
IN
WITNESS WHEREOF, the parties hereto have caused this Joinder to be duly executed
and delivered as of the date first written above by their respective officers
thereunto duly authorized.
[___________________,
a [•]
By:
|
/s/ |
Name | |
Title | |
Agreed to
and Acknowledged by:
Citibank,
N.A.
|
|
By:
|
/s/ |
Name | |
Title | |