U.S.
$200,000,000
AMENDMENT
AND RESTATEMENT
Dated
as of November 9, 2007
of
RECEIVABLES
LOAN AND SECURITY AGREEMENT
Dated
as of April 11, 2007
Among
EDUCATION
EMPOWERMENT SPV LLC,
as the Borrower
and
AUTOBAHN
FUNDING COMPANY LLC,
as a Lender
and
DZ
BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK,
FRANKFURT
AM MAIN
as the Agent
and
LYON
FINANCIAL SERVICES, INC. (d/b/a U.S. BANK PORTFOLIO
SERVICES),
as the Backup Servicer
This
AMENDED AND RESTATED RECEIVABLES LOAN AND SECURITY AGREEMENT
is made as of November 9, 2007, among:
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(1)
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EDUCATION
EMPOWERMENT SPV, LLC, a Delaware limited liability company (the
“
Borrower ”);
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(2)
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AUTOBAHN
FUNDING COMPANY LLC (“
Autobahn ”),
as a Lender (as defined herein);
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(3)
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DZ
BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK, FRANKFURT AM MAIN
(“
DZ BANK ”),
as agent for the Lender (the “
Agent ”);
and
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(4)
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LYON
FINANCIAL SERVICES, INC. (d/b/a U.S. BANK PORTFOLIO SERVICES), as
the Backup Servicer (as such term is defined herein).
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Background .
The
parties named above have entered into a Receivables Loan and
Security Agreement, dated as of April 11, 2007 (the “
Existing RLSA ”),
and now wish to amend and restate the Existing RLSA to be as set
forth herein.
NOW
THEREFORE, IT IS AGREED as follows:
ARTICLE
I.
DEFINITIONS
SECTION
1.01
Certain Defined Terms .
(a)
Certain
capitalized terms used throughout this Agreement are defined above
or in this
Section 1.01 .
(b)
As
used in this Agreement and the exhibits and schedules thereto
(each of which is hereby incorporated herein and made a part
hereof), the following terms shall have the following meanings
(such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
“
Account Bank ”
means BNYTC, as the Depository Institution with which the Accounts
have been established and are being maintained, or any successor
thereto in such function that is an Eligible Depository Institution
acceptable to the Agent.
“
Account Bank’s Fees ”
means ongoing fees and expenses of the Borrower, if any, in respect
of maintaining the Accounts with the Account Bank.
“
Account Control Agreement ”
means the Account Control Agreement, dated as of the Closing Date,
among the Account Bank, the Borrower and the Agent, in respect of
the Accounts maintained with the Account Bank.
“
Accounts ”
means the Collection Account and the Reserve Account.
“
Active Backup Servicer’s Fee ”
means, for any Remittance Period or portion thereof after the
occurrence of a Servicer Default and the appointment of the Backup
Servicer as Servicer, the amount of fees and expenses stated to be
payable to the Backup Servicer for such period on Exhibit F
hereto.
“
Adjusted Eurodollar Rate ”
means, with respect to any Fixed Period for any Loan allocated to
such Fixed Period, an interest rate per annum equal to the sum of
(i) the applicable Adjusted Eurodollar Rate Margin (whether
for the PrePrime Percentage or the Prime Percentage) to be applied
in using the Adjusted Eurodollar Rate to determine the separate
Yield Rate and calculation of Yield in respect of the PrePrime
Percentage and Prime Percentage of all Loans outstanding, and
(ii) an interest rate per annum equal to the average of the
interest rates per annum (rounded upwards, if necessary, to the
nearest 1/16 of 1%) reported during such Fixed Period on the
Bloomberg Financial Markets system
as the London Interbank Offered Rate for United States dollar
deposits having a term of thirty (30) days and in a principal
amount of $1,000,000 or more (or, if such system shall cease to be
publicly available or, if the information contained in such system,
in the Lender’s sole judgment, shall cease to accurately
reflect such London Interbank Offered Rate, such rate as reported
by any publicly available recognized source of similar market data
selected by the Lender that, in the Lender’s reasonable
judgment, accurately reflects such London Interbank Offered
Rate).
“
Adjusted Eurodollar Rate Margin ”
has the meaning ascribed thereto in the Fee Letter (which shall
ascribe an Adjusted Eurodollar Rate Margin for both the PrePrime
Percentage and the Prime Percentage of Loans).
“
Advance Amount ”
means (a) with respect to the initial Loan hereunder and each
Loan thereafter, other than any Marginal Allowable Advance, an
amount equal to the product of (i) the Maximum Advance
Percentage multiplied by (ii) the aggregate Outstanding
Balances of all of the Eligible Receivables being Pledged hereunder
on the related Borrowing Date to secure such Loan, and
(b) with respect to a Marginal Allowable Advance, an amount
specified by the Borrower in the related Notice of Borrowing for
the Marginal Allowable Advance, not exceeding the excess, if any,
of the Fees and other third party fees and expenses distributable
on the related Remittance Date on which such Borrowing is to occur
pursuant to clauses (i), (ii), (iii), (iv) or (v) of
Section 2.05(c) ,
over the amount of Collections available for the payment of such
Fees and other third party fees and expenses on such Remittance
Date.
“
Advance Percentage ”
means at any time the decimal expressed as a percentage equal
to:
FA-CA
ERB
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where:
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FA
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=
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the
Facility Amount at such time;
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CA
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=
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the
amount of Collections on deposit in the Collection Account at
such time to be applied in accordance with
Section 2.05 on
the next Remittance Date, minus the portion of such Collections
which are required to be set aside for the payment of accrued Yield
pursuant to Section 2.05(a)
hereof;
and
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ERB
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=
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the
Eligible Receivables Balance at such time.
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“
Adverse Claim ”
means a lien, security interest, charge, encumbrance or other right
or claim of any Person other than, with respect to the Pledged
Assets, any lien, security interest, charge, encumbrance or other
right or claim in favor of the Lender (or the Agent on behalf of
the Lender).
“
Affected Party ”
has the meaning assigned to that term in
Section 2.13.
“
Affiliate ”
when used with respect to a Person, means any other Person
controlling, controlled by or under common control with such
Person. For the purposes of this definition, “control,”
when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the
foregoing.
“
Agent ”
has the meaning assigned to that term in the preamble
hereto.
“
Agreement ”
means this Receivables Loan and Security Agreement, as the same may
be amended, restated, supplemented and/or otherwise modified from
time to time hereafter.
“
Amendment Closing Date ”
means November 9, 2007.
“
Amendment No. 1 to Custodial Agreement ”
means the Amendment No. 1 to Custodial Agreement, dated as of the
Amendment Closing Date and amending the Custodial Agreement as
existing on the Amendment Closing Date but prior to giving effect
thereto, among the parties to such Custodial
Agreement.
“
Amendment No. 1 to Servicing Agreement (PrePrime)
”
means the Amendment No. 1 to Servicing Agreement (PrePrime), dated
as of the Amendment Closing Date and amending the Initial Servicing
Agreement (PrePrime) as existing on the Amendment Closing Date but
prior to giving effect thereto, among the parties to the Initial
Servicing Agreement (PrePrime).
“
Amendment No. 1 to Transfer and Contribution Agreement
(PrePrime) ”
means the Amendment No. 1 to Transfer and Contribution Agreement
(PrePrime), dated as of the Amendment Closing Date and amending the
Transfer and Contribution Agreement (PrePrime) as existing on the
Amendment Closing Date but prior to giving effect thereto, between
EEF as transferor and the Borrower as transferree.
“
Amendment Transaction Documents ”
means this Amended and Restated Receivables Loan and Security
Agreement, the Amendment No. 1 to Transfer and Contribution
Agreement (PrePrime), the Transfer and Contribution Agreement
(Prime), the Amendment No. 1 to Custodial Agreement, the Amendment
No. 1 to Servicing Agreement (PrePrime), and the Initial Servicing
Agreement (Prime).
“
Approved Origination Agreement ”
means (i) each Doral Origination Agreement, and (ii) each
other Origination Agreement with an Eligible Originator in form and
substance reasonably acceptable to the Agent (it being understood
that if the Agent is given an opportunity to review such
Origination Agreement and it complies with applicable structural or
legal standards substantially similar to those which the Agent
applied in approving the Doral Origination Agreements, such other
Origination Agreement shall be deemed reasonably acceptable to the
Agent).
“
Assigned Documents ”
has the meaning assigned to that term in
Section 2.14 .
“
Assignment ”
has the meaning set forth in the applicable Transfer and
Contribution Agreement.
“
Assignment and Acceptance ”
has the meaning assigned to that term in
Section 9.04 .
“
Autobahn ”
has the meaning assigned to that term in the preamble
hereto.
“
Backup Servicer ”
means Lyon Financial Services, Inc. (d/b/a U.S. Bank Portfolio
Services), or any substitute Backup Servicer appointed by the Agent
pursuant to
Section 6.15 .
“
Backup Servicer Delivery Date ”
has the meaning assigned to that term in
Section 6.12(e).
“
Backup Servicing Agreement ”
has the meaning assigned such term in Section 6.15(a).
“
Backup Servicing Agreement Servicing Standard
”
means, in connection with a Backup Servicing Agreement, that the
Backup Servicer will perform replacement Servicer functions and
duties in accordance with its customary practices, procedures or
standards with the same care, skill and diligence that it uses or
would use in servicing and administering private student loans or
similar financial assets for its own account (or, if such standard
is higher, that it uses for the account of others, other than the
Borrower and Agent).
“
Bankruptcy Code ”
means Title 11, United States Code, 11 U.S.C. §§ 101
et seq., as amended.
“
Bankruptcy Event ”
shall be deemed to have occurred with respect to a Person if
either:
(a)
a
case or other proceeding shall be commenced, without the
application or consent of such Person, in any court, seeking
the liquidation, reorganization, debt arrangement,
dissolution, winding up, or composition or readjustment of
debts of such Person, the appointment of a trustee, receiver,
custodian, liquidator, assignee, sequestrator or the like for
such Person or all or substantially all of its assets, or any
similar action with respect to such Person under any law
relating to bankruptcy, insolvency, reorganization, winding up
or composition or adjustment of debts, and such case or
proceeding shall continue undismissed, or unstayed and in
effect, for a period of 60 consecutive days; or an order for
relief in respect of such Person shall be entered in an
involuntary case under the federal bankruptcy laws or other
similar laws now or hereafter in effect; or
(b)
such
Person shall commence a voluntary case or other proceeding
under any applicable bankruptcy, insolvency, reorganization,
debt arrangement, dissolution or other similar law now or
hereafter in effect, or shall consent to the appointment of or
taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other similar official)
for such Person or for any substantial part of its property,
or shall make any general assignment for the benefit of
creditors, or shall fail to, or admit in writing its inability
to, pay its debts generally as they become due, or, if a
corporation or similar entity, its board of directors or
members shall vote to implement any of the
foregoing.
“
Base Rate ”
means, on any date, a fluctuating rate of interest per annum equal
to the arithmetic average of the rates of interest publicly
announced by JPMorgan Chase Bank and Citibank, N.A. (or their
respective successors) as their respective prime commercial lending
rates (or, as to any such bank that does not announce such a rate,
such bank’s “base” or other rate determined by
the Lender to be the equivalent rate announced by such bank),
except that, if any such bank shall, for any period, cease to
announce publicly its prime commercial lending (or equivalent)
rate, the Agent shall, during such period, determine the Base Rate
based upon the prime commercial lending (or equivalent) rates
announced publicly by the other such banks or, if each such bank
ceases to announce publicly its prime commercial lending (or
equivalent) rate, based upon the prime commercial lending (or
equivalent) rate or rates announced publicly by one or more other
banks reasonably acceptable to the Borrower. The prime commercial
lending (or equivalent) rates used in computing the Base Rate are
not intended to be the lowest rates of interest charged by such
banks in connection with extensions of credit to debtors. The Base
Rate shall change as and when such banks’ prime commercial
lending (or equivalent) rates change.
“
BNYTC ”
means The Bank of New York Trust Company, N.A.
“
Borrower ”
has the meaning assigned to that term in the preamble
hereto.
“
Borrowing ”
means a borrowing of Loans under this Agreement.
“
Borrowing Base Certificate ”
means a report, in substantially the form of
Exhibit A ,
prepared by the Borrower for the benefit of Lender pursuant
to
Section 6.12(c) .
“
Borrowing Base Deficiency ”
means, at any time that the Overcollateralization Amount is less
than the Minimum Overcollateralization Amount, an amount equal to
the amount of such deficiency.
“
Borrowing Date ”
means, with respect to any Borrowing, the date on which such
Borrowing is funded, which date, other than in the case of the
initial Borrowing, shall be a Subsequent Borrowing
Date.
“
Borrowing Limit ”
means as of the Closing Date $100,000,000 and as of the Amendment
Closing Date, $200,000,000;
provided ,
however ,
that at all times, on or after the Early Amortization Commencement
Date, the Borrowing Limit shall mean the aggregate outstanding
principal balance of the Loans.
“
Business Day ”
means a day of the year other than a Saturday or a Sunday or any
other day on which banks are authorized or required to close in New
York City or St. Paul, Minnesota;
provided ,
that, if any determination of a Business Day shall relate to a Loan
bearing interest at the Adjusted Eurodollar Rate, the term
“Business Day” shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London
interbank market.
“
Calculated Hedge Amortizing Balance ”
means, as of any date of determination, the projected amortizing
balance of the Loans advanced by the Lender hereunder with respect
to Pledged Receivables as of such date (including, as applicable,
Receivables which were Pledged by the Borrower on such date thereby
becoming Pledged Receivables on such date), determined by the Agent
in its sole discretion, based upon the Outstanding Balances of such
Pledged Receivables as of such date, adjusted for prepayments,
defaults, recoveries and delinquencies which, in the sole judgment
of the Agent, are representative of expected prepayments, defaults,
recoveries and delinquencies on the Pledged
Receivables.
“
Capital Limit ”
means, at any time, an amount equal to:
ERB
- MOCA + CA
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where:
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ERB
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=
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the
Eligible Receivables Balance at such time;
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MOCA
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=
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the
Minimum Overcollateralization Amount at such time;
and
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CA
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=
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the
amount of Collections on deposit in the Collection Account at
such time to be applied in accordance with
Section 2.05 on
the next Remittance Date, minus
the
portion of such Collections which are required for the payment of
accrued Yield and Fees.
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“
Change of Control ”
means that at any time (i) EEF shall own directly or
indirectly less than 100% of all membership interests of the
Borrower, (ii) any event or condition occurs which results in
any Person or “group” (within the meaning of
Section 13(d) or 14(d) of the Securities Exchange Act of 1934,
as amended) other than a Person or group that owns membership
interests of EEF on and as of the Closing Date: (A) having
acquired beneficial ownership of 50% or more of any outstanding
class of membership interests of EEF having ordinary voting power
in the election of directors or managers of EEF or
(B) obtaining the power (whether or not exercised) to elect a
majority of EEF’s directors or managers, (iii) EEF or
the Borrower merge or consolidate with any other Person or
(iv) any two of the following three people are not employed in
senior management positions at EEF and/or are not involved in the
day-to-day operations of EEF and at least one of such two people
have not been replaced by a person or persons approved in writing
by the Agent within sixty (60) days of the last day on which such
person or persons were employed in senior management positions at
EEF and/or were involved in the day-to-day operations of EEF: Edwin
McGuinn, Jr., Raza Khan and Vishal Garg.
“
Closing Date ”
means April 11, 2007.
“
Code ”
means the Internal Revenue Code of 1986, as amended.
“
Collateral Receipt ”
has the meaning assigned to that term in the Custodial
Agreement.
“
Collection Account ”
means a special trust account (account number 775792) in the name
of the Borrower established by the Borrower at the Account Bank and
subject to the Account Control Agreement, or any successor thereto
with a subsequent Account Bank, if ever any, established under
terms and conditions, including a substantially similar account
control arrangement, acceptable to the Agent, it being understood
that the funds deposited therein (including any interest and
earnings thereon) from time to time shall constitute the property
and assets of the Borrower and the Borrower shall be solely liable
for any taxes payable with respect to the Collection
Account.
“
Collection Date ”
means the date on which the aggregate outstanding principal amount
of the Loans have been repaid in full and all Yield and Fees and
all other Obligations have been paid in full, and the Lender shall
have no further obligation to make any additional
Loans.
“
Collection Policy ”
means
(a)
in
respect of PrePrime Receivables, collectively, the written
student loan servicing policies, guidelines, standards and
undertakings (the “
Servicing Guidelines ”
in respect of PrePrime Receivables) as set forth in the Initial
Servicing Agreement (PrePrime) (including Exhibit A thereto) and
the Initial Collection Servicing Agreement (including Exhibit A
thereto), which agreements are annexed hereto as part of
Schedule V ,
as such Servicing Guidelines may hereafter be amended, modified or
supplemented from time to time in compliance with the terms of this
Agreement, and
(b)
in
respect of Prime Receivables, collectively, the written
student loan servicing policies, guidelines, standards and
undertakings (the “
Servicing Guidelines ”
in respect of Prime Receivables) as set forth in the Initial
Servicing Agreement (Preprime) (including Exhibit A thereto) and
the Initial Collection Servicing Agreement (including Exhibit A
thereto), which agreements are annexed hereto as part of
Schedule V ,
as such Servicing Guidelines may hereafter be amended, modified or
supplemented from time to time in compliance with the terms of this
Agreement.
“
Collections ”
means, with respect to any Pledged Receivable, all cash receipts
and proceeds in respect of such Pledged Receivable and the Other
Conveyed Property securing such Pledged Receivable, all payments of
any principal, interest, fees, delinquent payments recovered in
subsequent months, prepaid principal, liquidation proceeds, late
fees, redemption fees, other penalty fees and charges, or other
amounts with respect to the Contract and any other agreement,
guaranty or instrument related to such Pledged Receivable, all cash
proceeds of any Other Conveyed Property or other Pledged Assets
with respect to such Pledged Receivable and any amounts paid to the
Borrower under any Qualifying Interest Rate Hedge or the interest
rate hedging arrangement contemplated thereby.
“
Collection Servicer ”
means CCS, or any successor loan servicer or collection agent that
the Borrower may engage from time to time in connection with the
component of its Servicing Undertaking consisting of Collection
Services (and that has executed an acknowledgment and consent in
favor of the Agent substantially similar to that executed by CCS in
connection with the CCS Servicing Agreement).
“
Collection Servicer Fees ”
means, in respect of any Remittance Period, any fees and out of
pocket expenses, or the allocable monthly portion thereof relating
to such Remittance Period if such fees and expenses are payable
less frequently than monthly, payable to a Collection Servicer
under the applicable Collection Servicing Agreement (provided, that
if the applicable Collection Servicing Agreement so provides, such
Collection Servicer Fees may be netted from Collections remittable
by the Collection Servicer to the Borrower in accordance with the
terms thereunder).
“
Collection Services ”
means the component of the Borrower’s Servicing Undertaking
hereunder consisting of loan collection activities and services
following loan delinquency exceeding a specified period, to the
extent that such collection services are not covered under the
primary Servicing Agreement.
“
Collection Servicing Agreement ”
means any written agreement procured by the Borrower from any
Collection Servicer in connection with its provision of Collection
Services to or for the benefit of the Borrower (it being understood
that the CCS Agreement is a Collection Servicing Agreement within
the meaning of this term).
“
Commercial Paper Remittance Report ”
means a report, in substantially the form of
Exhibit B ,
furnished by the Borrower to the Agent for the Lender pursuant
to
Section 6.12(d) .
“
Commitment Percentage ”
has the meaning assigned to that term in
Section 9.04(b) .
“
Computer Tape or Listing ”
means the computer tape or listing (whether in electronic form or
otherwise) generated by or on behalf of the Borrower, which
provides information relating to the Receivables included in the
Eligible Receivables Balance.
“
Contract ”
means with respect to any Receivable, collectively, (i) the
student loan agreement or comparable contract or agreement pursuant
to which a Receivable is originated by an extension of credit
advanced to the applicable Obligor, and (ii) the promissory
note evidencing such Receivable, in each case substantially in the
applicable form (PrePrime Contract for a PrePrime Receivable, Prime
Contract for a Prime Receivable) attached hereto as
Exhibit D ,
and which Contract does not evidence an extension of credit funded
under the FFELP Program or the HEALP Program.
“
CP Disruption Event ”
means, at any time, the inability of the Issuer to raise (whether
as a result of a prohibition or any other event or circumstance
whatsoever) funds through the issuance of commercial paper notes in
the United States commercial paper market, including, without
limitation, by virtue of (i) any disruption in the commercial
paper market, (ii) insufficient availability under the
liquidity or enhancement facility entered into by the Issuer with
respect to this Agreement or (iii) a downgrade of the rating
of one or more financial institutions extending credit to or for
the account of the Issuer or having a commitment to extend credit
to the Lender under a liquidity or enhancement facility which
relates to this Agreement to a level lower than that required by
the Rating Agencies.
“
CP Margin ”
has the meaning ascribed thereto in the Fee Letter (which shall
ascribe a CP Margin for both the PrePrime Percentage and the Prime
Percentage of outstanding Loans).
“
CP Rate ”
means, with respect to any Fixed Period for all Loans allocated to
such Fixed Period, (A) the per annum rate equivalent to the
per annum rate (or if more than one rate, the weighted average of
the rates) at which commercial paper notes of the Issuer having a
term equal to such Fixed Period and to be issued to fund, in whole
or in part, the applicable Loans (and, at the election of the
Issuer, other loans by the Issuer) by the Issuer may be sold by any
placement agent or commercial paper dealer selected by the Issuer,
as agreed between each such agent or dealer and the Issuer and
notified by the Issuer to the Agent and the Borrower;
provided ,
however ,
if the rate (or rates) as agreed between any such agent or dealer
and the Issuer with respect to any Fixed Period for the applicable
Loans is a discount rate (or rates), the CP Rate for such Fixed
Period shall be the rate (or, if more than one rate, the weighted
average of the rates) resulting from converting such discount rate
(or rates) to an interest-bearing equivalent rate per annum;
provided ,
further ,
however ,
that such rate (or rates) shall reflect and give effect to
borrowings to fund small or odd dollar amounts that are not easily
accommodated in the commercial paper market to the extent that such
amounts are allocated, in whole or in part, to such Loans, plus
(B) the applicable CP Margin (whether for the PrePrime
Percentage or the Prime Percentage) to be applied in using the CP
Rate to determine the separate Yield Rate and calculation of Yield
in respect of the PrePrime Percentage and Prime Percentage of all
Loans outstanding.
“
CP Rollover Fixed Period ”
means any Fixed Period other than any Fixed Period
(i) applicable to the Loan arising as a result of the
Borrowing on the initial Borrowing Date which shall have been
requested in the Notice of Borrowing delivered in connection with
such Borrowing, (ii) applicable to any new Loan arising as a
result of a Borrowing on a Subsequent Borrowing Date which shall
have been requested in the Notice of Borrowing delivered in
connection with such Borrowing or (iii) applicable to any Loan
accruing Yield at the Non-CP Rate.
“
Credit Policy ”
means (i) with respect to PrePrime Receivables, the written student
loan origination and underwriting policies of EEF applicable to
PrePrime Receivables and entitled “Underwriting
Guidelines”, as annexed hereto as part of
Schedule IV ,
as such written guidelines may hereafter be amended, modified or
supplemented from time to time in compliance with this Agreement,
and (ii) with respect to Prime Loans, the written student loan
origination and underwriting policies of EEF applicable to Prime
Loans and entitled “MRU Underwriting Guidelines”, as
annexed hereto as part of
Schedule IV ,
as such written guidelines may hereafter be amended, modified or
supplemented from time to time in compliance with this
Agreement.
“
Credit and Collection Policy ”
means, collectively, the Credit Policy and the Collection
Policy.
“
Custodial Agreement ”
means that certain Custodial and Collateral Agency Agreement dated
as of the Closing Date among the Borrower, the Agent and the
Custodian, as amended by the Amendment No. 1 to Custodial
Agreement, together with all instruments, documents and agreements
executed in connection therewith, and as such Custodial Agreement
may from time to time be further amended, restated, supplemented
and/or otherwise modified in accordance with the terms
thereof.
“
Custodian ”
means BNYTC or any substitute Custodian appointed by the Agent
pursuant to the Custodial Agreement.
“
Custodian’s Fee ”
means, for any Remittance Period, an amount, payable out of
Collections on the Pledged Receivables and amounts applied to the
payment of, or treated as payments on, the Pledged Receivables,
equal to the fees and expenses payable to the Custodian in respect
of its provision of custodial services as set forth in the
Custodial Agreement.
“
Cut-Off Date ”
has the meaning assigned such term in the Transfer and Contribution
Agreement.
“
Debt ”
of any Person means (i) indebtedness of such Person for
borrowed money, (ii) obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments related to
transactions that are classified as financings under GAAP,
(iii) obligations of such Person to pay the deferred purchase
price of property or services, (iv) obligations of such Person
as lessee under leases which shall have been or should be, in
accordance with GAAP, recorded as capital leases,
(v) obligations secured by an Adverse Claim upon property or
assets owned (under GAAP) by such Person, even though such Person
has not assumed or become liable for the payment of such
obligations and (vi) obligations of such Person under direct
or indirect guaranties in respect of, and obligations (contingent
or otherwise) to purchase or otherwise acquire, or otherwise to
assure a creditor, against loss in respect of, indebtedness or
obligations of others of the kinds referred to in clauses
(i) through (v) above.
“
Default Funding Rate ”
means an interest rate per annum equal to three percent (3%) plus
the Base Rate.
“
Defaulted Receivable ”
means, as of any time of determination, any Pledged
Receivable:
(i)
with
respect to which an amount due and payable under the related
Contract remains unpaid for one hundred twenty-one (121) days
or more after the Scheduled Due Date; or
(ii)
with
respect to which any payment or other material terms of the
related Contract have been modified, in connection with
addressing delinquency or other credit concerns applicable to
the related Obligor, after such Contract was acquired by the
Borrower; or
(iii)
which
has been or should be charged off, in accordance with the
Collection Policy, as a result of the occurrence of a
Bankruptcy Event with respect to the related Obligor or which
has been or should otherwise be deemed by the Borrower (either
itself or through the Servicer or Collection Servicer, as
applicable) uncollectible in accordance with the Collection
Policy; or
(iv)
with
respect to which the related Obligor has become
deceased.
“
Deferment ”
means a period of time prior to a Contract entering Repayment
status, during which the payment of principal installment
obligations is deferred and accruing interest is capitalized
periodically and added to the outstanding principal balance of the
Receivable, in accordance with the terms of the applicable Credit
and Collection Policy.
“
Delinquent Receivable ”
means, as of any time of determination, any Pledged Receivable with
respect to which any amount due and payable under the terms of the
related Contract remains unpaid for more than thirty (30) days but
not more than one hundred twenty (120) days after the Scheduled Due
Date, provided, that a Pledged Receivable that has just entered
Repayment status and with respect to which the Obligor has not yet
made an initial installment payment, shall not be deemed to be a
Delinquent Receivable until such Pledged Receivable becomes a
Further Delinquent Receivable.
“
Depository Institution ”
means a depository institution or trust company, incorporated under
the laws of the United States or any State thereof, that is subject
to supervision and examination by federal and/or State banking
authorities.
“
Doral ”
means Doral Bank, FSB, a federally chartered savings
bank.
“
Doral Origination Agreement ”
means
(a)
with respect to any PrePrime Receivable, collectively, the
Loan Program Agreement between Doral and MRU Originations,
dated as of February 28, 2006, and the Loan Sale Agreement
between Doral as seller and EEF as purchaser, dated as of
February 28, 2006, a copy of each of which is attached to the
legal opinion of Hudson Cook delivered at or prior to the
initial Borrowing Date following the Closing Date hereunder,
and
(b)
with respect to any Prime Receivable, collectively, the Loan
Program Agreement between Doral and MRU Originations, dated as
of February 28, 2006, as supplemented by the supplemental
letter agreement thereto relating to Prime Receivables dated
on or about the Amendment Closing Date, and the Loan Sale
Agreement between Doral as seller and EEF as purchaser, dated
as of February 28, 2006, a copy of each of which is attached
to the legal opinion of Hudson Cook delivered at or prior to
the Amendment Closing Date hereunder.
“
DZ BANK ”
has the meaning assigned to that term in the preamble
hereto.
“
Early Amortization Commencement Date ”
means the earlier of (i) the date of occurrence of any event
described in
Section 7.01(a) hereof,
(ii) the date of the declaration of the Early Amortization
Commencement Date pursuant to any other subsection of
Section 7.01 ,
(iii) at the option of the Lender in its sole discretion, upon
written notice to the Borrower and the Backup Servicer of the
occurrence of an Early Amortization Event, or (iv) the Facility
Maturity Date shall have occurred.
“
Early Amortization Event ”
means the occurrence of any of the following events:
(i)
a
regulatory, tax or accounting body has ordered that the
activities of the Lender or any Affiliate of the Lender
contemplated hereby be terminated or, as a result of any other
event or circumstance, the activities of the Lender
contemplated hereby may reasonably be expected to cause the
Lender, the Person, if any, then acting as the administrator
or the manager for the Lender, or any of their respective
Affiliates to suffer materially adverse regulatory, accounting
or tax consequences;
(ii)
an
Event of Default has occurred and is continuing;
(iii)
the
Facility Maturity Date shall have occurred; or
(iv)
a
Replacement Trigger Date has occurred (
provided ,
that such Early Amortization Event shall cease to be an Early
Amortization Event, and the transactions under this Agreement shall
thereafter proceed as if such Early Amortization Event no longer
exists, in the event that the Borrower effects a Replacement within
forty-five (45) days of the related Replacement Trigger
Date).
Notwithstanding
the foregoing clause (i), the conditions described in clause
(i) shall not constitute an Early Amortization Event until the
Lender first shall have notified the Borrower thereof in
writing, and shall have used, or shall have attempted in good
faith to cause the affected Affiliate of the Lender to have
used, reasonable efforts to designate a different lending
office for funding or booking its Loans or commitment
hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the
judgment of such Lender, such designation or assignment
(i) would eliminate the adverse or potential adverse
effects of the condition and (ii) would not subject such
Lender or Affiliate to any unreimbursed cost or expense, and
(iii) would not otherwise be disadvantageous to such Lender or
Affiliate (other than in a
de minimus manner).
“
EEF ”
means Education Empowerment Fund I, LLC, a Delaware limited
liability
company
and the sole member of the Borrower.
“
Eligible Depository Institution ”
means a Depository Institution the short term unsecured senior
indebtedness of which is rated at least Prime-1 by Moody’s
and F1 by Fitch, if rated by Fitch.
“
Eligible Institution ”
means an institution that is both (i) an accredited
institution of higher education, a vocational school, or any other
institution that, in all of the above cases, is an “eligible
institution” as defined in the Higher Education Act, and (ii)
listed in the relevant Credit Policy as an institution the students
of which are eligible for extensions of credit under the PrePrime
Program or the Prime Program, as applicable.
“
Eligible Obligor ”
means a matriculated student (or a co-signor or parent on behalf of
a matriculated student) enrolled at an Eligible Institution and who
is a United States citizen or United States national, within the
meaning of Subpart A of the Student Assistance General Provision,
34 CFR Part 668, or a Permanent Resident, and who otherwise
meets the criteria required for extensions of credit under the
PrePrime Program (in the case of an Obligor under a PrePrime
Contract) or Prime Program (in the case of an Obligor under a Prime
Contract) as set forth in the applicable Credit
Policy.
“
Eligible Originator ”
means a Person (i) which at the time of first becoming an
Originator under this Agreement is a nationally chartered federally
insured financial institution with the capacity to originate, in
compliance with all applicable law, Contracts with Obligors located
in any State of the United States, (ii) as to which, if requested
by the Agent at the time such Originator is identified in the
Borrower's notice to the Agent as a new or additional Originator
hereunder, an opinion from Hudson Cook or other legal counsel to
the Borrower reasonably acceptable to the Agent shall have been
delivered addressed to the Agent and the Lender, confirming
substantially the same substantive legal conclusions as in the
original opinion of Hudson Cook delivered at or prior to the
initial Borrowing Date hereunder, and (iii) as to
whom
no Purchase Termination Event is in effect.
“
Eligible PrePrime Receivable ”
means, at any time, a Pledged Receivable that constitutes a
PrePrime Receivable and with respect to which each of the
representations and warranties with respect to such PrePrime
Receivable or the PrePrime Contract related to such Pledged
Receivable contained in
Schedule III hereto
and designated in Schedule III as applicable to PrePrime
Receivables or PrePrime Contracts, is true and correct at such
time.
“
Eligible Prime Receivable ”
means, at any time, a Pledged Receivable that constitutes a Prime
Receivable and with respect to which each of the representations
and warranties with respect to such Prime Receivable or the Prime
Contract related to such Pledged Receivable contained in
Schedule III hereto
and designated in Schedule III as applicable to Prime Receivables
or Prime Contracts, is true and correct at such time.
“
Eligible Receivable ”
means an Eligible PrePrime Receivable or an Eligible Prime
Receivable.
“
Eligible Receivables Balance ”
means, at any time (i) the aggregate Outstanding Balances of
all Eligible Receivables which are Pledged hereunder to secure
Loans at such time,
minus (ii) the
Overconcentration Amount at such time.
“
ERISA ”
means the United States Employee Retirement Income Security Act of
1974, as amended from time to time.
“
Eurodollar Disruption Event ”
means any of the following: (i) a determination by the Lender
that it would be contrary to law or to the directive of any central
bank or other governmental authority (whether or not having the
force of law) to obtain United States dollars in the London
interbank market to make, fund or maintain any Loan, (ii) a
determination by the Lender that the rate at which deposits of
United States dollars are being offered in the London interbank
market does not accurately reflect the cost to the Lender of
making, funding or maintaining any Loan or (iii) the inability
of the Lender to obtain United States dollars in the London
interbank market to make, fund or maintain any Loan.
“
Eurodollar Index ”
means an index based upon an interest rate reported on the
Bloomberg Financial Markets system
as the London Interbank Offered Rate for United States dollar
deposits.
“
Event of Default ”
has the meaning assigned to that term in
Section 7.01 .
“
Excess Spread ”
means as of any date of determination, the annualized percentage,
calculated on the last day of each month, which is a fraction, the
numerator of which is the positive difference, if any, between (x)
the Expected Interest for such month, and (y) the sum of
(i) all Yield payable in respect of Loans for such month,
(ii) all net payments payable by the Borrower during such
month on any Qualifying Interest Rate Swap, (iii) all fees and
expenses payable to any of the Custodian, the Servicer, any
Collection Servicer, the Backup Servicer or the Account Bank for
such month, and (iv) all Fees payable hereunder for such
month, and the denominator of which is the aggregate Outstanding
Balance of Pledged Receivables constituting Eligible Receivables as
of such date.
“
Existing RLSA ”
has the meaning assigned such term in the “Background”
recital at the beginning of this Agreement.
“
Expected Interest ”
means, for any calendar month, the sum of (i) the amount of
interest due or accrued with respect to the Pledged Eligible
Receivables and payable by the related Obligors thereof during such
calendar month (whether or not such interest is actually paid) and
(ii) earnings on Eligible Investments in respect of the
Accounts during such calendar month.
“
Facility Amount ”
means, at any time, the sum of (i) the face amount of
outstanding commercial paper notes (net of the amount of all
interest scheduled to accrue thereon through their respective
stated maturity if such commercial paper notes are issued on a
discount basis) of the Lender issued to fund Loans
hereunder,
plus (ii) the
aggregate Loans Outstanding hereunder bearing interest at the
Non-CP Rate,
plus (iii) accrued
Yield and Fees with respect to the amounts described in the
foregoing clauses (i) and (ii).
“
Facility Maturity Date ”
means the fifth anniversary of the Closing Date.
“
Fee Letter ”
has the meaning assigned to that term in
Section 2.12(a) .
“
Fees ”
has the meaning assigned to that term in
Section 2.12(a) .
“
FFELP Program ”
means the Federal Family Education Loan Program authorized under
the Higher Education Act, including Federal Stafford Loans
authorized under Sections 427 and 428 thereof, Federal Supplemental
Loans for Students authorized under Section 428A thereof,
Federal PLUS Loans authorized under Section 428B thereof,
Federal Consolidation Loans authorized under Section 428C
thereof and Unsubsidized Loans authorized under Section 428H
thereof.
“
FICO Score ”
means the statistical credit bureau score (developed by Fair Isaac
Corporation for individual credit ratings) obtained by the
originator of a Contract in connection with the related credit/loan
application to help assess an Obligor’s credit
worthiness.
“
Fitch ”
means Fitch, Inc. (or its successors in interest).
“
Fixed Period ”
means, for any outstanding Loans, (i) if Yield in respect of
all or any part thereof is computed by reference to the CP Rate, a
period of up to and including sixty (60) days as determined
pursuant to
Section 2.04 or
(ii) if Yield in respect of all or any part thereof is
computed by reference to the Non-CP Rate, the applicable Remittance
Period.
“
Forbearance ”
means a period of time during which payments otherwise due in
respect of a Receivable are temporarily postponed or reduced, at
the option and in the discretion of the Borrower or Servicer, due
to financial difficulties of the Obligor, including without
limitation for “Parental Leave” or
“Unemployment” as described in the applicable
Collection Policy.
“
Further Delinquent Receivable ”
means, as of any time of determination, any Pledged Receivable with
respect to which any amount due and payable under the terms of the
related Contract remains unpaid for more than sixty (60) days but
not more than one hundred twenty (120) days after the Scheduled Due
Date.
“
GAAP ”
means generally accepted accounting principles as in effect from
time to time in the United States.
“
Government Entity ”
means the United States, any State, any political subdivision of a
State and any agency or instrumentality of the United States or any
State or political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
“
HEALP Program ”
means the Health Education Assistance Loan Program authorized under
Title VII, Subpart A, Part I of the U. S. Public Health Service Act
(42 U.S.C. Section 292-2920).
“
Hedging Condition ”
means that, as of any date of determination, the average Excess
Spread for the three most recently elapsed calendar months is less
than the sum of (i) the average of the Minimum Excess Spread
determined as of the end of each of such three calendar months,
plus (ii) 0.40%.
“
Higher Education Act ”
means the Higher Education Act of 1965, as amended or supplemented
from time to time, or any successor federal act, together with any
rules (including, without limitation, the Common Manual),
regulations and interpretations promulgated
thereunder.
“
Indemnified Amounts ”
has the meaning assigned to that term in
Section 8.01 .
“
Initial Collection Servicing Agreement ”
means the CCS Agreement.
“
Initial Servicing Agreement ”
means the Initial Servicing Agreement (PrePrime) or the Initial
Servicing Agreement (Prime) or both, as the context may
require.
“
Initial Servicing Agreement (PrePrime) ”
means, with respect to PrePrime Receivables and related PrePrime
Contracts, the UAS Servicing Agreement for Full Service Plan, dated
as of the Closing Date, among the Borrower, UAS and the Agent, with
respect to the primary servicing on behalf of the Borrower of the
Pledged Receivables constituting PrePrime Receivables and their
related PrePrime Contracts, as the same may be amended,
supplemented or otherwise modified from time to time in accordance
with the terms thereof and with the terms of this
Agreement.
“
Initial Servicing Agreement (Prime) ”
means with respect to Prime Receivables and related Prime
Contracts, the UAS Servicing Agreement for Full Service Plan, dated
as of the Amendment Closing Date, among the Borrower, UAS and the
Agent, with respect to the primary servicing on behalf of the
Borrower of the Pledged Receivables constituting Prime Receivables
and their related Prime Contracts, as the same may be amended,
supplemented or otherwise modified from time to time in accordance
with the terms thereof and with the terms of this
Agreement.
“
Issuer ”
means, collectively, Autobahn and any presently existing or future
Person administered by DZ BANK or otherwise, whose principal
business consists of issuing commercial paper or other securities
to (i) fund or maintain loans secured by receivables,
accounts, instruments, chattel paper, general intangibles and other
similar assets or (ii) fund its acquisition and maintenance of
receivables, accounts, instruments, chattel paper, general
intangibles and other similar assets.
“
Lender ”
means, collectively, Autobahn and/or any other Person (including,
without limitation, any present or future Affiliate of DZ BANK)
that agrees, pursuant to the pertinent Assignment and Acceptance,
to make Loans secured by Pledged Assets pursuant to
Article II of
this Agreement.
“
Liquidation Fee ”
means, for Loans allocated to any Fixed Period during which such
Loans are repaid (in whole or in part) prior to the end of such
Fixed Period, the amount, if any, by which (i) Yield
(calculated without taking into account any Liquidation Fee), which
would have accrued on the amount of the payment of such Loans
during such Fixed Period (as so computed) if such payment had not
been made, as the case may be, exceeds (ii) the sum of
(A) Yield actually received by the Lender in respect of such
Loans for such Fixed Period and, if applicable, (B) the
income, if any, received by the Lender from the Lender’s
investing the proceeds of such payments on such Loans.
“
Liquidity/Credit Enhancement Facility ”
means one or more Liquidity Purchase Agreements, entered into on or
prior to the Closing Date (and as the same may be amended,
supplemented or amended and restated on or prior to the Amendment
Closing Date), among the Issuer, the financial institutions party
thereto (including, if applicable and at any time, financial
institutions which are not Affiliates of DZ BANK) and the Agent
and/or a letter of credit or similar instrument or agreement by the
financial institutions party thereto (including, if applicable and
at any time, financial institutions which are not Affiliates of DZ
BANK) in favor of the Issuer, together with any related agreements,
in each case, entered into on or as of the Closing Date (and as the
same may be amended, supplemented or amended and restated on or
prior to the Amendment Closing Date).
“
Liquidity Ratio ”
means, with respect to Parent on any date of determination, a
quotient (i) the numerator of which is an amount equal to the
aggregate amount shown as “Current Assets” on
Parent’s most recent audited consolidated financial
statement, but not including assets consisting of or relating to
Contracts and/or Receivables, and (ii) the denominator of
which is an amount equal to the aggregate amount shown as
“Current Liabilities” on Parent’s most recent
audited consolidated financial statement, but not including
liabilities relating to or attributable to the financing of
Contracts and/or Receivables.
“
Loan ”
means each loan advanced by the Lender to the Borrower on a
Borrowing Date pursuant to
Article II .
“
Loans Outstanding ”
means the sum of the principal amounts loaned to the Borrower for
the initial and any subsequent borrowings pursuant to
Sections 2.01 and
2.02 ,
reduced from time to time by Collections received and distributed
as repayment of such Loans outstanding pursuant to
Section 2.05 ;
provided ,
however ,
that such Loans outstanding shall not be reduced by any
distribution of any portion of Collections if at any time such
distribution is rescinded or must be returned for any
reason.
“
Lockbox ”
means a post office box or boxes maintained by the Servicer to
which Collections are remitted for retrieval by the Lockbox Bank
and for deposit by the Lockbox Bank into the Lockbox Account, and
which Lockbox may also be used by the Servicer for depositing
checks or items constituting payments on other student loans that
it services but for no other purpose.
“
Lockbox Account ”
means the deposit account maintained by the Servicer with the
Lockbox Bank to which checks or items deposited into the Lockbox
are credited upon collection, and which Lockbox Account may also be
used by the Servicer for the crediting of collected checks or items
constituting payments on other student loans that it services but
for no other purpose.
“
Lockbox Bank ”
means M&I Marshall & Ilsley Bank, a Wisconsin banking
corporation, or a successor or other Lockbox Bank performing
Lockbox and Lockbox Account functions in respect of the
Servicer.
“
Marginal Allowable Advance ”
means an extension of credit by the funding of a Borrowing
hereunder, that (i) is not accompanied by a related concurrent
Pledge of Receivables, (ii) is requested for funding and is
funded on a Remittance Date as of which the Advance Percentage is
and will be (after giving effect to any other Borrowings on such
date not constituting a Marginal Allowable Advance) less than the
Maximum Advance Percentage, (iii) is in an amount not
exceeding the Advance Amount with respect to such Marginal
Allowable Advance, (iv) the funding of which will be applied
to the payment by the Borrower of Fees and other third party fees
and expenses distributable on the related Remittance Date on which
such Borrowing is to occur pursuant to clauses (i), (ii), (iii),
(iv) or (v) of
Section 2.05(c) ,
to the extent Collections applied on such Remittance Date are
insufficient to pay the same, and (v) otherwise meets all
other applicable conditions to a Borrowing set forth in this
Agreement.
“
Material Adverse Change ”
means the occurrence of an event or a change in circumstances that
has or could be reasonably be viewed as having a Material Adverse
Effect.
“
Material Adverse Effect ”
with respect to any event or circumstance and any Person, means a
material adverse effect on (i) the business, assets, financial
condition, prospects or operations of such Person; (ii) the
ability of such Person to perform its obligations under this
Agreement or any other Transaction Document; (iii) the
validity, enforceability or collectibility of this Agreement, any
other Transaction Document to which such Person is a party, all or
any portion of the Pledged Receivables or their related Contracts,
or any Servicing Agreement; (iv) the status, existence,
perfection, priority or enforceability of the Agent’s
security interest in the Pledged Assets; or (v) the rights and
remedies of the Lender and/or the Agent under this Agreement and/or
any of the Transaction Documents.
“
Maximum Advance Percentage ”
means, at any time, the percentage represented by (A) the sum of
(i) an amount equal to 85% multiplied by the aggregate amount of
the Eligible Receivables Balance that is evidenced by PrePrime
Contracts, plus (ii) an amount equal to 96.5% multiplied by the
aggregate amount of the Eligible Receivables Balance that is
evidenced by Prime Contracts, divided by (B) the Eligible
Receivables Balance evidenced by all Contracts.
“
Measurement Condition ”
means, in respect of any calculation of the Weighted Average First
Delinquency Rate, Weighted Average Second Delinquency Rate or
Weighted Average Annualized Default Rate, and as of any time of
determination, the condition that not less than 1,500 Contracts
were in Repayment status at the end of each of the three Remittance
Periods in respect of which such calculations are to be
determined.
“
Minimum Advance Percentage ”
means, at any time, the percentage represented by (A) the sum of
(i) an amount equal to 80% multiplied by the aggregate amount of
the Eligible Receivables Balance that is evidenced by PrePrime
Contracts, plus (ii) an amount equal to 91.5% multiplied by the
aggregate amount of the Eligible Receivables Balance that is
evidenced by Prime Contracts, divided by (B) the Eligible
Receivables Balance evidenced by all Contracts.
“
Minimum Excess Spread ”
means the sum of (a) the product of (i) the Prime Percentage, and
(ii) 1.50% per annum, plus (b) the product of (i) the PrePrime
Percentage, and (ii) 3.50% per annum.
“
Minimum Overcollateralization Amount ”
means, at any time of determination, an amount equal to
(i) the Eligible Receivables Balance at such time multiplied
by (ii) the result of (A) one
minus (B)
the Maximum Advance Percentage (expressed as a decimal) at such
time.
“
Monthly Remittance Report ”
means a report, in substantially the form of
Exhibit C ,
furnished by the Borrower to the Agent for the Lender pursuant
to
Section 6.12(b) .
“
Moody’s ”
means Moody’s Investors Service, Inc. (or its successors in
interest).
“
Non-CP Rate ”
means, with respect to any Fixed Period for any Loan allocated to
such Fixed Period, an interest rate per annum equal to the Adjusted
Eurodollar Rate;
provided ,
however ,
that if the Lender shall have notified the Agent that a Eurodollar
Disruption Event has occurred, the Non-CP Rate shall be equal to
the Base Rate plus 1.00% (until the Lender shall have notified the
Agent that such Eurodollar Disruption Event has ceased, at which
time the Non-CP Rate shall again be equal to the Adjusted
Eurodollar Rate).
“
Notice of Borrowing ”
has the meaning assigned to that term in
Section 2.02(b) hereof.
“
Notice of Pledge ”
has the meaning assigned to that term in the Custodial
Agreement.
“
Obligations ”
means all present and future indebtedness and other liabilities and
obligations (howsoever created, arising or evidenced, whether
direct or indirect, absolute or contingent, or due or to become
due) of the Borrower to the Lender or the Agent arising under this
Agreement and/or any other Transaction Document and shall include,
without limitation, all liability for principal of and interest on
the Loans, indemnifications and other amounts due or to become due
under this Agreement and/or any other Transaction Document,
including, without limitation, interest, fees and other obligations
that accrue after the commencement of an insolvency proceeding (in
each case whether or not allowed as a claim in such insolvency
proceeding).
“
Obligor ”
means, collectively, each Person obligated to make payments under a
Contract.
“
Officer’s Certificate ”
means a certificate signed by the president, the secretary, the
chief financial officer or any vice president of any
Person.
“
One-Month LIBOR ”
means, as of any date of determination, the interest rate equal to
the interest rate per annum (rounded upwards, if necessary,
e.g. where
not expressed as a decimal, to the nearest 1/16 of 1%) reported on
the
Bloomberg Financial Markets system
as the London Interbank Offered Rate for United States dollar
deposits having a term of thirty (30) days and in a principal
amount of $1,000,000 or more (or, if such report shall cease to be
publicly available or, if the information contained in such report,
in the Agent’s sole judgment, shall cease to accurately
reflect such London Interbank Offered Rate, such rate as reported
by any publicly available recognized source of similar market data
selected by the Agent that, in the Agent’s judgment,
accurately reflects such London Interbank Offered
Rate).
“
Opinion of Counsel ”
means a written opinion of independent counsel acceptable to the
Agent, which opinion, if such opinion or a copy thereof is required
by the provisions of this Agreement or any other Transaction
Document to be delivered to the Borrower or the Agent, is
acceptable in form and substance to the Agent.
“
Origination Agreement ”
means an agreement providing for the origination of Receivables by
or on behalf of an Originator, initially being, with respect to
PrePrime Receivables or Prime Receivables, as the case may be, the
applicable Doral Origination Agreement.
“
Originator ”
means Doral and any other Eligible Originator.
“
Other Conveyed Property ”
means, with respect to any Receivable, (i) all monies at any
time received or receivable with respect to such Receivable after
the applicable Cut-Off Date (as defined in the Transfer and
Contribution Agreement), (ii) the related Contract and all
other items contained in the related Receivable File, any and all
other documents or electronic records that the Borrower keeps on
file in accordance with its customary procedures relating to such
Receivable or the related Obligor, (iii) all Related Security
related to such Receivable, (iv) any Security Deposits related
to such Receivable, and (v) all present and future rights,
claims, demands, causes and choses in action in respect of any or
all of the foregoing and all payments on or under and all proceeds
and investments of any kind and nature in respect of any of the
foregoing.
“
Outstanding Balance ”
means, as of any date of determination with respect to a
Receivable, the outstanding principal balance thereof (and
including for this purpose accrued interest that is or is to be
capitalized as a result of the Receivable being in Deferment or
Forbearance status) as of such date.
“
Overall Hedge Position ”
means, as of any date of determination, the aggregate amortizing
notional balance of all Qualifying Interest Rate Hedges in effect
as of such date.
“
Overcollateralization Amount ”
means, at any time, an amount equal to (i) the Eligible
Receivables Balance at such time,
plus any
amounts on deposit in the Collection Account (minus an amount equal
to the amount of Collections on deposit in the Collection Account
which are required for the payment of accrued Yield and Fees) at
such time to be applied in accordance with
Section 2.05 on
the next Remittance Date,
minus (ii) the
Facility Amount at such time.
“
Overconcentration Amount ”
means, at any time, without duplication, the sum of:
(i)
the
amount by which the sum of the Outstanding Balances of all
Eligible Receivables related to any one Eligible Institution
at such time exceeds 10.0% of the sum of the Outstanding
Balances of all Eligible Receivables at such
time;
(ii)
the
amount by which the sum of the Outstanding Balances of all
Eligible Receivables related to Contracts which are in
Forbearance at such time exceeds 10.0% of the sum of the
Outstanding Balances of all Eligible Receivables at such
time;
(iii)
the
amount by which the sum of the Outstanding Balances of all
Eligible Receivables constituting PrePrime Receivables with
Obligors who, at the time the credit application was approved,
had a FICO Score of at least 560 but less than or equal to
579, exceeds 20.0% of the sum of the Outstanding Balances of
all Eligible Receivables constituting PrePrime Receivables at
such time;
(iv)
the
amount by which the sum of the Outstanding Balances of all
Eligible Receivables constituting PrePrime Receivables with
Obligors who, at the time the credit application was approved,
had a FICO Score of at least 560 but less than or equal to
599, exceeds 40.0% of the sum of the Outstanding Balances of
all Eligible Receivables constituting PrePrime Receivables at
such time; and
(v)
the
amount by which the sum of the Outstanding Balances of all
Eligible Receivables constituting PrePrime Receivables with
Obligors who, at the time the credit application was approved,
had no FICO Score, exceeds 20.0% of the sum of the Outstanding
Balances of all Eligible Receivables constituting PrePrime
Receivables at such time;
(vi)
the
amount by which the sum of the Outstanding Balances of all
Eligible Receivables constituting Prime Receivables with
Obligors who, at the time the credit application was approved,
had a FICO Score of less than 645, exceeds 5.0% of the sum of
the Outstanding Balances of all Eligible Receivables
constituting Prime Receivables at such time; and
(vii)
the
amount by which the sum of the Outstanding Balances of all
Eligible Receivables constituting PrePrime Receivables,
exceeds $176,470,588 at such time
provided ,
that any amount that would otherwise be included in more than one
of the clauses contained in this definition above shall instead be
included only in the one such clause which would lead to the
calculation of the largest Overconcentration Amount, and
provided
further ,
that on any date of measurement or determination of the
Overconcentration Amount where the Facility Amount is not at least
$25,000,000, the Overconcentration Amount shall be
zero.
“
Overdue Payment ”
means, with respect to a Remittance Period, all payments due in a
prior Remittance Period that the Servicer receives from or on
behalf of an Obligor during such Remittance Period, including any
Servicing Charges.
“
Parent ”
means MRU Holdings, Inc., a Delaware corporation.
“
Permanent Resident ”
means a person lawfully admitted for permanent residence in the
United States, within the meaning of 8 CFR Part 1 or any applicable
successor regulation.
“
Permitted Investments ”
means any one or more of the following:
(i)
direct
obligations of, or obligations fully guaranteed as to
principal and interest by, the United States or any agency or
instrumentality thereof, provided such obligations are backed
by the full faith and credit of the United
States;
(ii)
repurchase
obligations (the collateral for which is held by a third party
or the Trustee), with respect to any security described in
clause (i) above, provided that the long-term unsecured
obligations of the party agreeing to repurchase such
obligations are at the time rated by Moody’s and S&P
in one of their two highest long-term rating categories and if
rated by Fitch, in one of its two highest long-term rating
categories;
(iii)
certificates
of deposit, time deposits, demand deposits and bankers’
acceptances of any bank or trust company incorporated under
the laws of the United States or any State thereof or the
District of Columbia, provided that the short-term commercial
paper of such bank or trust company (or, in the case of the
principal depository institution in a depository institution
holding company, the long-term unsecured debt obligations of
the depository institution holding company) at the date of
acquisition thereof has been rated by Moody’s and
S&P in their highest short-term rating category, and if
rated by Fitch, in its highest short-term rating
category;
(iv)
commercial
paper (having original maturities of not more than 270 days)
of any corporation incorporated under the laws of the United
States or any State thereof or the District of Columbia,
having a rating, on the date of acquisition thereof, of no
less than A-1 by Moody’s, P-1 by S&P and F-1 if
rated by Fitch; and
(v)
money
market mutual funds registered under the Investment Company
Act of 1940, as amended, having a rating, at the time of such
investment, of no less than Aaa by Moody’s, AAA by
S&P and AAA if rated by Fitch;
provided ,
that no such instrument shall be a Permitted Investment if such
instrument evidences the right to receive either (a) interest
only payments with respect to the obligations underlying such
instrument or (b) both principal and interest payments derived
from obligations underlying such instrument, where the principal
and interest payments with respect to such instrument provide a
yield to maturity exceeding 120% of the yield to maturity at par of
such underlying obligation. Each Permitted Investment may be
purchased by the Account Bank or through an Affiliate of the
Account Bank.
“
Permitted Liens ”
means (i) liens in favor of the Agent, for the benefit of the
Lender, granted pursuant to the Transaction Documents, and
(ii) liens for taxes either not yet due or being contested in
good faith and by appropriate proceedings; provided, that
appropriate reserves shall have been established with respect to
any such taxes either not yet due or being contested in good faith
and by appropriate proceedings.
“
Person ”
means an individual, partnership, corporation (including a business
trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture, government (or any
agency or political subdivision thereof) or other
entity.
“
Pledge ”
means the pledge of any Receivable pursuant to
Article II .
“
Pledged Assets ”
has the meaning assigned to that term in
Section 2.15 .
“
Pledged Receivables ”
has the meaning assigned to that term in
Section 2.15(a) .
“
PrePrime Contract ”
means a Contract evidencing a PrePrime Receivable.
“
PrePrime Percentage ”
means, for any date of determination, the percentage equivalent of
a fraction, the numerator of which is the amount of the Eligible
Receivables Balance attributable to PrePrime Receivables as of such
date, and the denominator of which is the Eligible Receivables
Balance as of such date.
“
PrePrime Program ”
means the private student loan origination and purchasing program
of EEF described as the “PrePrime Program” in, and
undertaken in accordance with, the related Credit
Policy.
“
PrePrime Receivable ”
means a Program Receivable originated or acquired under or by
reference to the PrePrime Program.
“
Prime Contract ”
means a Contract evidencing a Prime Receivable.
“
Prime Percentage ”
means, for any date of determination, the percentage equivalent of
a fraction, the numerator of which is the amount of the Eligible
Receivables Balance attributable to Prime Receivables as of such
date, and the denominator of which is the Eligible Receivables
Balance as of such date.
“
Prime Program ”
means the private student loan origination and purchasing program
of EEF described as the “Prime Program” in, and
undertaken in accordance with, the related Credit
Policy.
“
Prime Receivable ”
means a Program Receivable originated or acquired under or by
reference to the Prime Program.
“
Program Receivable ”
means any Receivable, or any similar right to payment from any
Person related to the advancing of a private student loan, in any
case originated or otherwise acquired by the Borrower, EEF or any
Affiliate thereof, which Receivable or right to payment is
originated or acquired under or by reference to the PrePrime
Program or the Prime Program, as the case may be, or any other
private student loan program with substantially similar origination
and underwriting policies and target obligors.
“
Purchase Date ”
has the meaning set forth in the Transfer and Contribution
Agreement.
“
Purchase Termination Event ”
with respect to an Originator means the occurrence of any of the
following events, to the extent that the Borrower had actual
knowledge or had been given written notice of such event:
(a) a Material Adverse Change in the condition of such
Originator has occurred and is continuing; (b) an Event of
Bankruptcy has occurred with respect to such Originator;
(c) such Originator shall fail to pay, or shall default in the
payment of, any principal or premium or interest on any Debt beyond
any applicable grace period, or such Originator shall breach or
default with respect to any other term of any evidence of any Debt,
or of any loan agreement, mortgage, indenture or other agreement
relating thereto, if such failure, default or breach continues
beyond any applicable grace period, if the effect of such failure,
default or breach (i) is to cause the holder or holders of
that Debt (or a trustee on behalf of such holder or holders) to
cause that Debt to become or be declared due prior to its stated
maturity or (ii) would permit the holder of such Debt to
accelerate the maturity of such Debt and if the amount of the Debt
involved in all such failures, defaults and breaches is greater
than $100,000; (d) one or more judgments for the payment of
money in an aggregate amount in excess of $100,000 shall be
rendered against such Originator and the same shall remain
undischarged for a period of thirty (30) consecutive days during
which execution shall not be effectively stayed or a satisfactory
bond against such judgment shall not have been posted, or any
action shall be legally taken by a judgment creditor to attach or
levy upon any assets of such Originator to enforce any such
judgment and a bond shall not have been posted or (e) any
event that would cause or permit termination under an Origination
Agreement shall occur.
“
Qualifying Hedge Counterparty ”
means DZ BANK or any other financial institution that is acceptable
to the Agent and has a short-term debt rating of at least
“A-1” from S&P, “P-1” from
Moody’s and “F-1” from Fitch and a long-term debt
rating of at least “AA” from S&P, “Aa2”
from Moody’s and “AA” from Fitch.
“
Qualifying Interest Rate Cap ”
means an interest rate cap agreement (or agreements, as applicable)
(i) between the Borrower and a Qualifying Hedge Counterparty,
(ii) that provides for a Strike Price, as selected by the
Borrower, that is acceptable to the Agent (iii) having a
varying notional balance which is equal to the Calculated Hedge
Amortizing Balance, as of the effective date thereof, and
(iv) which shall otherwise be on such terms and conditions and
pursuant to such documentation as shall be reasonably acceptable to
the Agent (it being understood that a form of documentation
substantially equivalent to that which, at the time of entering
into such Qualifying Interest Rate Cap, would be acceptable to the
Rating Agencies in connection with hedging associated with a
securitization transaction rated by such Rating Agencies, shall be
deemed reasonably acceptable to the Agent for this
purpose).
“
Qualifying Interest Rate Hedge ”
means, as of any date of determination, either a Qualifying
Interest Rate Cap or a Qualifying Interest Rate Swap.
“
Qualifying Interest Rate Swap ”
means an interest rate swap agreement (or agreements, as
applicable) (i) between the Borrower and a Qualifying Hedge
Counterparty, (ii) under which the Borrower shall receive a
floating rate of interest equal to One-Month LIBOR (or such other
Eurodollar Index acceptable to the Agent) in exchange for the
payment by the Borrower of a fixed rate of interest equal to the
applicable Swapped Rate, (iii) having a varying notional
balance which is equal to the Calculated Hedge Amortizing Balance,
as of the effective date thereof, and (iv) which shall
otherwise be on such terms and conditions and pursuant to such
documentation as shall be reasonably acceptable to the Agent (it
being understood that a form of documentation substantially
equivalent to that which, at the time of entering into such
Qualifying Interest Rate Swap, would be acceptable to the Rating
Agencies in connection with hedging associated with a
securitization transaction rated by such Rating Agencies, shall be
deemed reasonably acceptable to the Agent for this
purpose).
“
Rating Agencies ”
means Moody’s and Fitch and S&P, or such other nationally
recognized statistical rating organizations as may be designated by
the Agent.
“
Receivable ”
means the rights to all payments from an Obligor under a Contract
including, without limitation, any right to the payment with
respect to (i) Scheduled Payments, (ii) any prepayments
or Overdue Payments made with respect to such Scheduled Payments,
(iii) any Servicing Charges and (iv) any
Recoveries.
“
Receivable File ”
means with respect to each Receivable:
(a)
the
original, executed copy of the related Contract;
and
(b)
the
related Truth in Lending Statement; and
(c)
true
and complete copies of all other agreements, documents and
instruments evidencing, securing or guarantying (or otherwise
required by applicable law with respect to) such
Receivable .
“
Receivables Schedule ”
has the meaning assigned to that term in the Custodial
Agreement.
“
Records ”
means all documents, books, records and other information
(including, without limitation, computer programs, tapes, disks,
punch cards, data processing software and related property and
rights) maintained with respect to Receivables and the related
Obligors which the Borrower has itself generated, in which the
Borrower has acquired an interest pursuant to the Transfer and
Contribution Agreement or in which the Borrower has otherwise
obtained an interest.
“
Recoveries ”
means, for any Remittance Period during which, or any Remittance
Period after the date on which, any Receivable becomes a Defaulted
Receivable and with respect to such Defaulted Receivable, all
payments that the Borrower received from or on behalf of the
related Obligor during such Remittance Period in respect of such
Defaulted Receivable, including but not limited to Scheduled
Payments and Overdue Payments.
“
Related Security ”
means with respect to any Receivable:
(i)
any
and all security interests or liens and property subject
thereto from time to time securing or purporting to secure
payment of such Receivable;
(ii)
all
guarantees, indemnities, warranties, letters of credit,
insurance policies and proceeds and premium refunds thereof
and other agreements or arrangements of whatever character
from time to time supporting or securing payment of such
Receivable;
(iii)
the
Other Conveyed Property related to such
Receivable;
(iv)
all
rights of the Borrower with respect to such Receivable under
the related Servicing Agreement, the related Collection
Servicing Agreement and the related Origination Agreement;
and
(v)
all
proceeds of any of the foregoing.
“
Release Price ”
means, with respect to a Pledged Receivable to be released
hereunder, an amount equal to the Outstanding Balance of such
Pledged Receivable at the time of such release.
“
Remittance Date ”
means the fifteenth day of each month or, if such date is not a
Business Day, the next succeeding Business Day;
provided ,
that the final Remittance Date shall occur on the Collection
Date.
“
Remittance Period ”
means (i) as to the initial Remittance Date, the period
beginning on, and including, the Closing Date (or if later, the
initial Borrowing Date hereunder) and ending on, and including, the
last day of the calendar month in which such date shall occur (or
such other dates as the Agent and the Borrower may agree) and
(ii) as to any subsequent Remittance Date, the period
beginning on, and including, the first day of the most recently
ended calendar month and ending on, and including, the last day of
the most recently ended calendar month;
provided ,
that the final Remittance Period shall begin on, and include, the
first day of the then current calendar month and shall end on the
Collection Date.
“
Repayment ”
means the status of a Contract during the period of time when an
Obligor is required under the applicable Contract to make
installment payments in respect of the Outstanding Balance of his
or her related Receivable.
“
Replacement ”
has the meaning assigned such term in
Section 6.15(a) hereof.
“
Replacement Trigger Date ”
has the meaning assigned such term in
Section 6.15(a) hereof.
“
Reserve Account ”
means the special trust account (account number 775793) in the name
of the Borrower established by the Borrower at the Account Bank and
subject to the Account Control Agreement, or any successor thereto
with a subsequent Account Bank, if ever any, established under
terms and conditions, including a substantially similar account
control arrangement, acceptable to the Agent, it being understood
that the funds deposited therein (including any interest and
earnings thereon) from time to time shall constitute the property
and assets of the Borrower and the Borrower shall be solely liable
for any taxes payable with respect to the Reserve
Account.
“
Reserve Account Minimum Balance ”
means at any time, an amount equal to the greater of
(A) $150,000 and (B) an amount equal to 1.00% of the
aggregate outstanding principal balances of all Loans at such
time.
“
Reserve Account Withdrawal Amount ”
has the meaning assigned to such term in
Section 2.06(c) .
“
S&P ”
means Standard & Poor’s Ratings Group, a division of The
McGraw-Hill Companies, Inc. (or its successors in
interest).
“
Scheduled Due Date ”
means, with respect to any Receivable and installment amount
payable in respect thereof, the date by which the related Obligor
is obligated under the applicable Contract to have paid such
amount.
“
Scheduled Payments ”
means, with respect to any Receivable, the periodic installment
payments payable thereon under the terms of the related
Contract.
“
Servicer ”
means initially, UAS, and thereafter, such other student loan
servicer as may be approved by the Agent from time to time for
engagement by the Borrower as the primary provider of student loan
servicing and administration functions to the Borrower in
connection with the Borrower’s Servicing
Undertaking.
“
Servicer Default ”
means with respect to UAS, the occurrence of any of the events
specified in Sections 6(m)(i), (ii), (iii) or (iv) of either
Initial Servicing Agreement (and it being understood that, the
occurrence of any such event in respect of one Initial Servicing
Agreement shall constitute a Servicer Default in respect of both
Initial Servicing Agreements), and with respect to any other
Servicer has the meaning specified in the applicable Servicing
Agreement.
“
Servicer Fees ”
means in respect of any Remittance Period, the fees and out of
pocket expenses, or the allocable monthly portion thereof relating
to such Remittance Period if such fees and expenses are payable
less frequently than monthly, payable to the Servicer in respect of
its provision of services to the Borrower under the Servicing
Agreement (provided, that if the applicable Servicing Agreement so
provides, such Servicer Fees may be netted from Collections
remittable by the Servicer to the Borrower in accordance with the
terms thereunder).
“
Servicing Agreement ”
means (a) either (i) the Initial Servicing Agreement (PrePrime) or
(ii) the Initial Servicing Agreement (Prime), as applicable, and
(b) in the event that UAS shall no longer be the Servicer within
the meaning of this Agreement, then such replacement primary
servicing agreement or agreements as may be entered into in
connection with the Borrower’s Servicing Undertaking in
respect of the PrePrime Receivables and the Prime Receivables among
the Borrower, the replacement servicer and the Agent, in form and
substance acceptable to such parties.
“
Servicing Charges ”
means the sum of (a) all late payment charges paid by Obligors
under Contracts after payment in full of any Scheduled Payments due
in a prior Remittance Period and Scheduled Payments for the related
Remittance Period and (b) any other incidental charges or fees
received from an Obligor, including, but not limited to, late fees,
collection fees and bounced check charges.
“
Servicing Guidelines ”
has the meaning assigned to such term in the definition of
Collection Policy herein,
provided ,
that in the event that a successor Servicer (whether or not the
Backup Servicer) is appointed pursuant to Section 6.15,
“Servicing Guidelines” following such appointment shall
mean the servicing standards, undertakings and guidelines, as
applicable (including in respect of Collection Services, if
covered), set forth in the related Backup Servicing Agreement (in
the case of the Backup Servicer as successor Servicer) or other
successor Servicing Agreement entered into with the applicable
successor Servicer, if not the Backup Servicer.
“
Servicing Undertaking ”
means the agreements and undertakings of the Borrower set forth in
Section 6.01 and 6.02 to procure servicing, administration and
collection services for the Pledged Receivables and related
Contracts and enforce the related agreements under which such
services are procured.
“
Specified Document File ”
has the meaning given such term in the Custodial
Agreement.
“
Standby Backup Servicer’s Fee ”
means, for any Remittance Period or portion thereof prior to the
appointment of the Backup Servicer as successor Servicer hereunder,
the amount of fees and expenses stated to be payable to the Backup
Servicer for such period on Exhibit F hereto (which shall include
the “de-conversion fee”, if ever applicable, referred
to in such Exhibit F).
“
State ”
means one of the fifty states of the United States or the District
of Columbia.
“
Strike Price ”
shall mean, with respect to any Qualifying Interest Rate Cap, the
fixed rate of interest with respect to which the Borrower would
receive the excess, if any, of floating One-Month LIBOR (or such
other Eurodollar Index acceptable to the Agent) over such fixed
rate of interest as provided for under such Qualifying Interest
Rate Cap.
“
Subsequent Borrowing ”
means a Borrowing that occurs on a Subsequent Borrowing
Date.
“
Subsequent Borrowing Date ”
means each Business Day occurring after the initial Borrowing Date
on which the Borrower determines to request an additional Borrowing
from the Lender.
“
Swap Breakage ”
means amounts payable by the Borrower upon the early termination of
a Qualifying Interest Rate Swap, that do not constitute a net
payment of amounts that would otherwise be payable under such
Qualifying Interest Rate Swap in the absence of such early
termination.
“
Swapped Rate ”
means, with respect to any Qualifying Interest Rate Swap, the
annual rate of interest (expressed as a percentage) which the
Borrower, as the fixed-rate payor, is required to pay under such
Qualifying Interest Rate Swap in order to receive a floating rate
of interest equal to One-Month LIBOR (or such other Eurodollar
Index acceptable to the Agent) as provided for under such
Qualifying Interest Rate Swap.
“
Take-Out Securitization ”
means a financing transaction undertaken by the Borrower or an
Affiliate of the Borrower, involving the direct or indirect sale or
other conveyance of Receivables and the Other Conveyed Property
related thereto to a Person that shall privately or publicly sell
securities, notes or certificates backed by such Receivables and
the Other Conveyed Property related thereto.
“
Tangible Net Worth ”
means, with respect to any Person, the amount calculated in
accordance with GAAP (but without giving effect to any adjustments
related to the valuation of any interest rate swaps or similar
derivative instruments required pursuant to the Statement of
Financial Accounting Standards No. 133 issued by the Financial
Accounting Standards Board) as (i) the consolidated net worth
of such Person and its consolidated subsidiaries, plus (ii) to
the extent not otherwise included in such consolidated net worth,
unsecured non-amortizing subordinated Debt of such Person and its
consolidated subsidiaries which matures after the Facility Maturity
Date, the terms and conditions of which are reasonably satisfactory
to the Agent, minus (iii) the consolidated intangibles of such
Person and its consolidated subsidiaries, including, without
limitation, goodwill, trademarks, tradenames, copyrights, patents,
patent allocations, licenses and rights in any of the foregoing and
other items treated as intangibles in accordance with
GAAP.
“
Termination Fee ”
has the meaning set forth in the Fee Letter.
“
Transaction Documents ”
means this Agreement, the Transfer and Contribution Agreements, the
Initial Servicing Agreements, the Initial Collection Servicing
Agreement, the Account Control Agreement, the Fee Letter, the
Custodial Agreement, each Qualifying Interest Rate Hedge, and each
document and instrument related to any of the
foregoing.
“
Transfer and Contribution Agreement ”
means the Transfer and Contribution Agreement (PrePrime), the
Transfer and Contribution Agreement (Prime), or both as the context
may require.
“
Transfer and Contribution Agreement (PrePrime)
”
means that certain Transfer and Contribution Agreement, dated as of
the Closing Date, between EEF, as seller, and the Borrower, as
purchaser, as amended by the Amendment No. 1 to Transfer and
Contribution Agreement (PrePrime), together with all instruments,
documents and agreements executed in connection therewith, and as
such Transfer and Contribution Agreement (PrePrime) may from time
to time be further amended, supplemented or otherwise modified in
accordance with the terms hereof.
“
Transfer and Contribution Agreement (Prime) ”
means that certain Transfer and Contribution Agreement, dated as of
the Amendment Closing Date, between EEF, as seller, and the
Borrower, as purchaser, together with all instruments, documents
and agreements executed in connection therewith, and as such
Transfer and Contribution Agreement may from time to time be
amended, supplemented or otherwise modified in accordance with the
terms hereof.
“
Transition Costs ”
means the fees and expenses (including without limitation the item
identified as the “One Time Successor Servicer Engagement
Fee” set forth on Exhibit F hereto) payable to the Backup
Servicer as described on Exhibit F hereto in connection with the
transfer of servicing functions to the Backup Servicer pursuant to
Section 6.15, including any Standby Backup Servicer’s Fees
that are accrued but unpaid as of the time such transfer is
effected, but not including Active Backup Servicer’s
Fees.
“
Type ”,
when used in reference to a Receivable or Contract, means the
status of such Receivable as constituting a PrePrime Receivable or
a Prime Receivable, as the case may be, or the status of such
Contract as constituting a PrePrime Contract or a Prime Contract,
as the case may be.
“
UAS ”
means University Accounting Services, LLC.
“
UCC ”
means the Uniform Commercial Code as from time to time in effect in
the specified jurisdiction.
“
Underwriting Guidelines ”
is defined in the definition of Credit Policy herein.
“
United States ”
means the United States of America.
“
Unmatured Event of Default ”
means any event that, if it continues uncured, will, with lapse of
time or notice or lapse of time and notice, constitute an Event of
Default.
“
Weighted Average Annualized Default Rate ”
means, as of any date of determination, an amount (expressed as a
percentage) equal to:
WAPpADR
+ WAPADR
|
where:
|
WAPpADR
|
=
|
the
percentage represented by the product of PpP and
ADRPp;
|
| |
|
|
|
| |
PpP
|
=
|
the
PrePrime Percentage;
|
| |
|
|
|
| |
ADRPp
|
=
|
the
percentage represented by the quotient of (a) the product of
(i) DPpER and (ii) 4, divided by (b) ARPpRS;
|
| |
|
|
|
| |
DPpER
|
=
|
the
aggregate Outstanding Balances of all PrePrime Receivables
which were Eligible Receivables at the time of their Pledge
hereunder and which became Defaulted Receivables during any of
the immediately preceding three Remittance Periods (for this
purpose including repurchased Receivables which would have
become Defaulted Receivables during the relevant period, if
such Receivables had not been repurchased hereunder);
and
|
| |
|
|
|
| |
ARPpRS
|
=
|
the
average of the Outstanding Balances of all Eligible
Receivables constituting PrePrime Receivables that were in
Repayment status as of the first day of each of the
immediately preceding three Remittance Periods;
|
| |
|
|
|
|
and
where:
|
WAPADR
|
=
|
the
percentage represented by the product of PP and
ADRP;
|
| |
|
|
|
| |
PP
|
=
|
the
Prime Percentage;
|
| |
|
|
|
| |
ADRP
|
=
|
the
percentage represented by the quotient of (a) the product of
(i) DPER and (ii) 4, divided by (b) ARPRS;
|
| |
|
|
|
| |
DPER
|
=
|
the
aggregate Outstanding Balances of all PrePrime Receivables
which were Eligible Receivables at the time of their Pledge
hereunder and which became Defaulted Receivables during any of
the immediately preceding three Remittance Periods (for this
purpose including repurchased Receivables which would have
become Defaulted Receivables during the relevant period, if
such Receivables had not been repurchased hereunder);
and
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ARPRS
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=
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the
average of the Outstanding Balances of all Eligible
Receivables constituting Prime Receivables that were in
Repayment status as of the first day of each of the
immediately preceding three Remittance Periods.
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“
Weighted Average Annualized Default Rate Threshold
Amount ”
means an amount equal to the sum of (a) the product of (i) the
PrePrime Percentage and (ii) 6.0%, plus (b) the product of (i) the
Prime Percentage and (ii) 2.0%.
“
Weighted Average First Delinquency Rate ”
means, as of any date of determination, an amount (expressed as a
percentage) equal to:
WAPpFDR
+ WAPFDR
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where:
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WAPpFDR
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=
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the
percentage represented by the product of PpP and
AFDRPp;
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PpP
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=
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The
PrePrime Percentage;
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AFDRPp
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=
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the
percentage represented by the quotient of (a) DPpER, divided
by (b) ARPpRS;
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DPpER
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=
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the
average of the aggregate Outstanding Balances of all Pledged
PrePrime Receivables that are in Repayment status and that
constitute Delinquent Receivables as of the last day of the
immediately preceding three Remittance Periods (for this
purpose including repurchased or substituted Receivables which
would have become Delinquent Receivables during the relevant
period, if such Receivables had not been repurchased or
substituted hereunder, but not including Receivables in
Deferment or Forbearance status); and
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ARPpRS
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=
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the
average of the Outstanding Balances of all Eligible
Receivables constituting Pledged PrePrime Receivables and that
were in Repayment status as of each such last day of the
immediately preceding three Remittance Periods;
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and
where:
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WAPFDR
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=
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the
percentage represented by the product of PP and
AFDRP;
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PP
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=
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The
Prime Percentage;
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AFDRP
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=
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the
percentage represented by the quotient of (a) DPER, divided by
(b) ARPRS;
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DPER
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=
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the
average of the aggregate Outstanding Balances of all Pledged
Prime Receivables that are in Repayment status and that
constitute Delinquent Receivables as of the last day of the
immediately preceding three Remittance Periods (for this
purpose including repurchased or substituted Receivables which
would have become Delinquent Receivables during the relevant
period, if such Receivables had not been repurchased or
substituted hereunder, but not including Receivables in
Deferment or Forbearance status); and
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ARPRS
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=
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the
average of the Outstanding Balances of all Eligible
Receivables constituting Pledged Prime Receivables and that
were in Repayment status as of each such last day of the
immediately preceding three Remittance Periods.
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“
Weighted Average First Delinquency Rate Threshold Amount
”
means an amount equal to the sum of (a) the product of (i) the
PrePrime Percentage and (ii) 18.0%, plus (b) the product of (i) the
Prime Percentage and (ii) 9.0%.
“
Weighted Average Second Delinquency Rate ”
means, as of any date of determination, an amount (expressed as a
percentage) equal to:
WAPpSDR
+ WAPSDR
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where:
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WAPpSDR
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=
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the
percentage represented by the product of PpP and
ASDRPp;
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PpP
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=
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The
PrePrime Percentage;
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ASDRPp
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=
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the
percentage represented by the quotient of (a) DPpER, divided
by (b) ARPpRS;
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DPpER
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=
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the
average of the aggregate Outstanding Balances of all Pledged
PrePrime Receivables that are Further Delinquent Receivables
as of the last day of the immediately preceding three
Remittance Periods (for this purpose including repurchased or
substituted Receivables which would have become Further
Delinquent Receivables during the relevant period, if such
Receivables had not been repurchased or substituted hereunder,
but not including Receivables in Deferment or Forbearance
status); and
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ARPpRS
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=
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the
average of the Outstanding Balances of all Eligible
Receivables constituting Pledged PrePrime Receivables and that
were in Repayment status as of each such last day of the
immediately preceding three Remittance Periods;
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and
where:
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WAPSDR
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=
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the
percentage represented by the product of PP and
ASDRP;
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PP
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=
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The
Prime Percentage;
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ASDRP
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=
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the
percentage represented by the quotient of (a) DPER, divided by
(b) ARPRS;
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DPER
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=
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the
average of the aggregate Outstanding Balances of all Pledged
Prime Receivables that are Further Delinquent Receivables as
of the last day of the immediately preceding three Remittance
Periods (for this purpose including repurchased or substituted
Receivables which would have become Further Delinquent
Receivables during the relevant period, if such Receivables
had not been repurchased or substituted hereunder, but not
including Receivables in Deferment or Forbearance status);
and
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ARPRS
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=
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the
average of the Outstanding Balances of all Eligible
Receivables constituting Pledged Prime Receivables and that
were in Repayment status as of each such last day of the
immediately preceding three Remittance Periods.
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“
Weighted Average Second Delinquency Rate Threshold
Amount ”
means an amount equal to the sum of (a) the product of (i) the
PrePrime Percentage and (ii) 12.0%, plus (b) the product of (i) the
Prime Percentage and (ii) 6.0%.
“
Yield ”
means, with respect to any Fixed Period and for the PrePrime
Percentage and Prime Percentage of any Loan allocated to such Fixed
Period, the sum of:
(a)
the
product of:
PpPYR
x PpPL x
ED
360
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where:
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PpPYR
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=
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the
Yield Rate for such Fixed Period applicable to the PrePrime
Percentage
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PpPL
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=
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the
PrePrime Percentage of the principal amount of Loans
Outstanding allocated to such Fixed Period; and
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ED
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=
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the
actual number of days elapsed during such Fixed
Period;
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plus
(b)
the
product of:
PPYR
x PPL x
ED
360
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where:
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PPYR
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=
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the
Yield Rate for such Fixed Period applicable to the Prime
Percentage
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PPL
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=
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the
Prime Percentage of the principal amount of Loans Outstanding
allocated to such Fixed Period; and
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ED
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=
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the
actual number of days elapsed during such Fixed
Period;
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provided ,
however ,
that (i) no provision of this Agreement shall require the
payment or permit the collection of Yield in excess of the maximum
permitted by applicable law and (ii) Yield shall not be
considered paid by any distribution if at any time such
distribution is required to be rescinded by the Lender to the
Borrower or any other Person for any reason including, without
limitation, such distribution becoming void or otherwise avoidable
under any statutory provision or common law or equitable action,
including, without limitation, any provision of the Bankruptcy
Code.
“
Yield Rate ”
means, with respect to any Fixed Period for any Loan allocated to
such Fixed Period:
(i)
to
the extent the Lender will be funding the applicable Loan on
the first day of such Fixed Period through the issuance of
commercial paper, a rate equal to the CP Rate for such Fixed
Period applicable in each case to the PrePrime Percentage and
the Prime Percentage of such Loan; and
(ii)
to
the extent the Lender will not be funding the applicable Loan
through the issuance of commercial paper and/or to the extent
that such Fixed Period (or any portion thereof) shall occur
after the Early Amortization Commencement Date, (x) a
rate equal to the Non-CP Rate for such Fixed Period applicable
in each case to the PrePrime Percentage and the Prime
Percentage of such Loan, or (y) such other rate as the
Agent and the Borrower shall agree to in writing.
“
CCS ”
means Credit Control Services, Inc.
“
CCS Agreement ”
means the CCS Collection Agreement between the Borrower and CCS,
dated August 30, 2007, as supplemented by the Collection Servicer
Consent Letter dated August 30, 2007 among the Borrower, CCS and
the Agent, pursuant to which CCS provides Collection Services to
the Borrower.
SECTION
1.02
Other Terms .
All accounting terms not specifically defined herein shall be
construed in accordance with GAAP. All terms used in Article 9 of
the UCC in the State of New York, and not specifically defined
herein, are used herein as defined in such Article 9.
SECTION
1.03
Computation of Time Periods .
Unless otherwise stated in this Agreement, in the computation of a
period 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.”
ARTICLE
II.
THE RECEIVABLES FACILITY
SECTION
2.01
Borrowings .
On the terms and conditions hereinafter set forth, the Lender shall
make loans (“
Loans ”)
to the Borrower secured by Pledged Assets from time to time during
the period from the Closing Date until the earlier of the Early
Amortization Commencement Date or the Facility Maturity Date. Under
no circumstances shall the Lender make any Loan if (a) the
principal amount of such Loan exceeds the Advance Amount with
respect to such Loan, (b) the amount of the Borrowing
requested to be made on the applicable Borrowing Date is less than
$250,000, or (c) after giving effect to the requested
Borrowing of such Loan, either (i) an Early Amortization Event
or an event that but for notice or lapse of time or both would
constitute an Early Amor
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