EXHIBIT 10.77
MASTER REPURCHASE AGREEMENT
Dated August 7, 2003
Between
LEHMAN BROTHERS BANK, FSB,
as Buyer
and
ACADEMIC MANAGEMENT SERVICES CORP.
as Seller
Section 1. Applicability. From time to time for a period of
time from the date hereof through August 31, 2003, the parties hereto may,
subject to the terms hereof, enter into transactions in which Academic
Management Services Corp. ("Seller"), which is successor to Educational Finance
Group, Inc., agrees to transfer to Lehman Brothers Bank, FSB ("Buyer") all of
Seller's right, title and interest in and to certain Student Loans against the
transfer of funds by Buyer, with a simultaneous agreement by Buyer to transfer
to Seller its right, title and interest in and to such Student Loans at a date
certain not later than the date then set for termination of this Agreement
pursuant to Section 20 herein, as specified in the Confirmation, against the
transfer of funds by Seller. Each such transaction shall be referred to herein
as a "Transaction" and shall be governed by this Agreement and the related
Confirmation, unless otherwise agreed in writing. Each Transaction shall
commence on the Purchase Date and terminate on the Repurchase Date therefor and
shall be limited to a maximum of 30 days, after which, subject to Section 20
herein, the Buyer and Seller may agree to roll such Transaction into a new
Transaction which shall likewise have a maximum term of 30 days. Pursuant to an
amended and restated guaranty and warranty agreement dated as of the date hereof
(the "Guarantor Agreement"), between Buyer and UICI (the "Guarantor"), the
Guarantor will guarantee certain obligations of Buyer hereunder, subject to the
terms of the Guarantor Agreement.
Buyer and Seller acknowledge that the Higher Education Act
requires that legal title to federally guaranteed student loans be held by an
"eligible lender" as defined in such act. Seller agrees, therefore, that prior
to giving effect to each Transaction relating to any Federal Student Loans,
Seller shall hold the beneficial interest in such Federal Student Loans pursuant
to (a) a Trust Agreement, dated as of February 24, 1998, between Seller and Bank
One, National Association, as trustee and (b) a Trust Agreement, dated as of
February 3, 1994, as amended from time to time, between Seller and Fleet
National Bank, as trustee (each such trustee, in such capacity, the "AMS
Trustee", each such trust agreement, an "AMS Trust Agreement," and each Trust
created thereby, an "AMS Trust"). In addition, Buyer and Seller agree that each
transfer of Federal Student Loans under this Agreement shall, notwithstanding
anything herein to the contrary, constitute a transfer of all of the beneficial
interest in such Federal Student Loans granted to Seller under the related AMS
Trust and only of such beneficial interest, with the legal title thereto being
retained at all times by the related AMS Trustee pursuant to the related AMS
Trust Agreement, together with a pledge of a security interest in such Federal
Student Loans (including a pledge of legal title by the AMS Trustee) as provided
in Section 6. Buyer and Seller further agree that at all times hereunder with
respect to each Transaction, the related AMS Trustee, (i) as AMS Trustee, shall
retain legal title to the Purchased Federal Student Loans for the benefit of
Seller prior to the sale of Seller's beneficial ownership of such Student Loans
to Buyer hereunder, and after repurchase thereof by the Seller, (ii) as Eligible
Lender Trustee for the sole and exclusive benefit of Buyer, shall hold legal
title to the Purchased Federal Student Loans described in the preceding sentence
after sale of Seller's beneficial ownership of such Student Loans to Buyer
hereunder and prior to repurchase thereof by the Seller, pursuant to the related
AMS Trust Agreement; and (iii) as Eligible Lender Trustee, for the sole and
exclusive benefit of Buyer shall hold such security interest under the
Repurchase Trust Agreement (with respect to Bank One, National Association) or
under the Trust Agreement, dated as of February 3, 1994, as amended from time to
time, between Seller and Fleet National Bank, as trustee (with respect to Fleet
National Bank) for the sole and exclusive benefit of Buyer under such agreement
and, accordingly, all references herein to the purchase or other transfer of any
of Seller's right, title
and interest in the Purchased Federal Student Loans to, or the ownership or
other retention of the Purchased Federal Student Loans by, Buyer, or the
granting of the security interest therein pursuant to Section 6, shall be deemed
to refer solely to such Student Loans held in such capacity and manner,
notwithstanding anything else in this agreement to the contrary. Each AMS Trust
Agreement shall be deemed to be amended to the extent necessary to effectuate
the parties' intent as set forth in the preceding sentence. Notwithstanding
anything in this Agreement to the contrary, Buyer shall have no obligation to
enter into any Transaction hereunder.
Section 2. Definitions.
"Act of Insolvency" means, with respect to any Person and its
Affiliates, (i) the filing of a petition, commencing, or authorizing the
commencement of any case or proceeding under any bankruptcy, insolvency,
reorganization, liquidation, dissolution or similar law relating to the
protection of creditors, or suffering any such petition or proceeding to be
commenced by another which is consented to, not timely contested or results in
entry of an order for relief, (ii) the seeking the appointment of a receiver,
trustee, custodian or similar official for such party or an Affiliate or any
substantial part of the property of either, (iii) the appointment of a receiver,
conservator, or manager for such party or an Affiliate by any governmental
agency or authority having the jurisdiction to do so; (iv) the making or
offering by such party or an Affiliate of a composition with its creditors or a
general assignment for the benefit of creditors; (v) the admission by such party
or an Affiliate of such party of its inability to pay its debts or discharge its
obligations as they become due or mature; or (vi) that any governmental
authority or agency or any person, agency or entity acting or purporting to act
under governmental authority shall have taken any action to condemn, seize or
appropriate, or to assume custody or control of, all or any substantial part of
the property of such party or of any of its Affiliates, or shall have taken any
action to displace the management of such party or of any of its Affiliates.
"Additional Student Loans" means Student Loans provided by
Seller to Buyer or its designee pursuant to Section 4(a).
"Affiliate" means an affiliate of a party as such term is
defined in the United States Bankruptcy Code in effect from time to time.
"Agreement" means this Master Repurchase Agreement between
Buyer and Seller, as amended from time to time.
"AMS Trust " has the meaning specified in Section 1.
"AMS Trust Agreement" has the meaning specified in Section 1.
"AMS Trustee" has the meaning specified in Section 1.
"Business Day" means a day other than (i) a Saturday or
Sunday, or (ii) a day on which the Buyer or the New York Stock Exchange or banks
located in Chicago, Illinois are authorized or obligated by law or executive
order to be closed.
"Buyer" has the meaning specified in Section 1.
-2-
"Collateral Amount" means, with respect to any Transaction,
the amount obtained by application of the applicable Collateral Amount
Percentage to the unpaid principal balance (such balance to include, in the case
of Federal Student Loans, accrued interest that is not then payable but is to be
capitalized and added to principal") for the Purchased Student Loans subject to
such Transaction.
"Collateral Amount Percentage" means the amount set forth in
the Confirmation which, in any event, shall not be less than 100% for Purchased
Student Loans.
"Collateral Deficit" has the meaning specified in Section
4(a).
"Collateral Account" has the meaning specified in Section
5(a).
"Collection Account" means the account or accounts into which
the Servicers deposit proceeds on the Student Loans, each of which account or
accounts shall be subject to a Control Agreement.
"Computer Tape" means, with respect to each Transaction, a
list in computer readable form of the Purchased Student Loans, containing such
information with respect thereto as Buyer shall have requested.
"Confirmation" has the meaning specified in Section 3(a).
"Control Agreement" shall mean a control agreement acceptable
to the Buyer.
"DOE" means the U.S. Department of Education, and any
successor thereto.
"Eligible Lender Trustee" means each of (a) Bank One,
National Association, in its capacity as trustee under the Bank One Repurchase
Trust Agreement, or (b) Fleet National Bank, in its capacity as trustee under
the related AMS Trust Agreement.
"Event of Default" has the meaning specified in Section 13.
"Federal Student Loans" means student loans which are
guaranteed as to principal and interest by a guaranty agency pursuant to a
Guaranty Agreement, under pertinent provisions of the Higher Education Act.
"GNIC" means Guaranty National Insurance Co.
"Guarantor" has the meaning specified in Section 1.
"Guarantor Agreement" has the meaning specified in Section 1.
"Guaranty Agreement" means each guaranty agreement entered
into with a guaranty agency under the Higher Education Act and covering one or
more of the Purchased Federal Student Loans or the TERI Guaranty Agreement with
respect to the Purchased Private Student Loans.
-3-
"Higher Education Act" means the Higher Education Act of 1965,
as amended, together with any rules, regulations and interpretations thereunder
of DOE or the applicable guaranty agency.
"Income" means, with respect to any Purchased Student Loan at
any time, any principal thereof when paid and all interest, guaranty payments,
Subsidy Payments or other distributions paid in respect of such Student Loan
less any related servicing fee(s) charged by the Servicer and any trustee fee(s)
pursuant to the Repurchase Trust Agreement.
"LCPI Purchased Student Loans" means the Purchased Student
Loans, any proceeds thereof, to the Servicing Agreements to the extent they
pertain to the Purchased Student Loans, all rights with respect to the related
Guarantee Agreements, and all servicing records pertaining to Purchased Student
Loans, owned by Seller, including but not limited to any and all files,
documents, records, data bases, computer tapes, copies of computer tapes,
closing documentation, payment history records, and any other records relating
to or evidencing the servicing of Purchased Student Loans, as defined in that
certain Amended and Restated Master Repurchase Agreement, dated as of November
13, 1998, by and between the Seller, as successor to Educational Finance Group,
Inc., and Lehman Commercial Paper Inc.
"Loan Files" means the file customarily maintained for Student
Loans by the Seller's servicer.
"Market Value" means as of any date with respect to any
Student Loans, the price at which such Student Loans could readily be sold or
securitized as determined by Buyer in its sole discretion pursuant to Section 4;
provided, however, that Buyer shall not take into account, for purposes of
calculating Market Value, any Student Loan (i) which is a Federal Student Loan
that is more than 120 days delinquent or a Private Student Loan that is more
than 90 days delinquent, or (ii) with respect to which there is a breach of a
representation, warranty or covenant made by Seller in this Agreement and which
breach has not been cured by repurchase or otherwise.
"Non-cash generating" means any Purchased Student Loan that is
not generating current cash flow exclusive of, in the case or Purchased Federal
Student Loans, special allowance payments.
"Obligor" means a borrower on a Student Loan or any other
Person who is indebted under the related Student Loan.
"Periodic Payment" has the meaning specified in Section 5(b).
"Person" means an individual, partnership, corporation, joint
stock company, trust or unincorporated organization or a governmental agency or
political subdivision thereof.
"Price Differential" means, with respect to any Transaction
hereunder as of any date, the aggregate amount obtained by daily application of
the Pricing Rate of such Transaction to the Purchase Price for such Transaction
on a 360 day per year basis for the actual number of days during the period
commencing on (and including) the Purchase Date for such Transaction
-4-
and ending on (but excluding) the Repurchase Date (reduced by any amount of such
Price Differential previously paid by Seller to Buyer with respect to such
Transaction).
"Pricing Rate" means the sum of (i) the variable rate per
annum described in the Confirmation for determination of the Price Differential
plus (ii) the applicable Pricing Spread.
"Pricing Spread" means, with respect to the portion of the
Purchase Price of each Transaction allocable to Federal Student Loans, (i) 75
basis points or (ii) as otherwise agreed in the related Confirmation.
"Prime Rate" means the rate of interest published by The Wall
Street Journal, northeast edition, as the "prime rate."
"Private Student Loans" means Tuition Guard Loans or TERI
Loans.
"Purchase Date" means the date on which Purchased Student
Loans are transferred by Seller to Buyer or its designee as specified in the
Confirmation.
"Purchased Federal Student Loans" means Purchased Student
Loans that are Federal Student Loans, which are and shall be held hereunder in
the form provided for in Section 1 and in the related Repurchase Trust
Agreement.
"Purchased Private Student Loans" means Purchased Student
Loans that are Private Student Loans.
"Purchased Student Loans" means the Student Loans (including
any Additional Student Loans) sold by Seller to Buyer in a Transaction, any
Additional Student Loans and any Substituted Student Loans. Upon repurchase of a
Student Loan by the Buyer, the Student Loan shall no longer be a Purchased
Student Loan.
"Purchase Price" means on each Purchase Date and for each
Transaction, the price at which the Purchased Student Loans for such Transaction
are transferred by Seller to Buyer or its designee, provided that in no event
shall the Purchase Price be greater than 96% of the lesser of (x) the unpaid
principal balance (such balance to include, in the case of Federal Student
Loans, accrued interest that is not then payable but is to be capitalized and
added to principal) for such Purchased Student Loans and (y) the Market Value of
such Purchased Student Loans.
"Repurchase Date" means the date on which Seller is to
repurchase the Purchased Student Loans from Buyer which will be August 31, 2003,
unless otherwise determined by application of the provisions of Sections 3, 5 or
13.
"Repurchase Price" means the price at which Purchased Student
Loans are to be transferred from Buyer or its designee to Seller upon
termination of a Transaction, which will be determined in each case (including
Transactions terminable upon demand) as (i) the sum of the Purchase Price and
the accreted value as of the date of such determination of the Price
Differential decreased by (ii) all cash, Income and Periodic Payments actually
received for such
-5-
Transaction to and including such date of determination by Buyer pursuant to
Sections 4(a), 5(a) and 5(b), respectively.
"Repurchase Trust Agreement" means the Repurchase Trust
Agreement, dated as of the date hereof, between the Buyer and Bank One, National
Association (the "Bank One Repurchase Trust Agreement").
"Seller" has the meaning specified in Section 1.
"Servicer" means, with respect to any Student Loans, the
entity servicing such Student Loans, and identified as such on the Student Loan
Schedule with respect thereto.
"Servicing Agreement" shall mean each servicing agreement
between the Seller and the related servicer servicing the Purchased Student
Loans, as referred to in Section 25.
"Servicing Records" has the meaning specified in Section 6.
"Student Loans" means Federal Student Loans and Private
Student Loans.
"Subordination and Intercreditor Agreement" means that certain
subordination and intercreditor agreement dated as of August 7, 2003, among
Buyer, Seller and Guarantor.
"Subsidy Payments" means interest subsidy payments, special
allowance payments and any other payments of a similar nature made to the Seller
pursuant to the terms of the Higher Education Act.
"Substituted Student Loans" means any Student Loans
substituted for Purchased Student Loans in accordance with Section 9 hereof.
"TERI" means The Education Resources Institute, Inc., a
Massachusetts non-profit corporation, and its successors.
"TERI Loans" student loans that are fully guaranteed against
non-payment of principal and interest by TERI.
"TERI Guaranty Agreement" means the agreement among TERI, the
Eligible Lender Trustee and Buyer pursuant to which the Purchased Private
Student Loans are fully guaranteed against non-payment of principal and interest
by TERI.
"Transaction" has the meaning specified in Section 1.
"TuitionGuard Loans" means student loans which are
underwritten pursuant to the TuitionGuard Program and is insured by GNIC for 95%
of the principal and interest due on the loan in the event of default thereto.
"UCC" means the Uniform Commercial Code, as in effect from
time to time in the relevant jurisdiction.
-6-
Section 3. Initiation, Confirmation; Termination; Maximum
Transaction Amounts. (a) An agreement to enter into a Transaction may be entered
into orally or in writing at the initiation of either Buyer or Seller; provided,
that this is an uncommitted facility and the Buyer shall have no obligation to
enter into any Transaction. Upon entering into such agreement, the Seller shall
deliver to the Buyer a Funding Request which request shall include (i) the
aggregate principal balance of the related Student Loans; (ii) the aggregate
funding amounts and wire instructions for each Servicer funds are to be wired
to; (iii) loan level detail in the form of Appendix I to Exhibit I hereto for at
least 85% (by principal balance) of the Student Loans to be purchased on the
related Purchase Date; and (iv) an acknowledgment by each related AMS Trustee,
acknowledging such AMS trustee shall act as Eligible Lender Trustee for the
specified Student Loans.
(b) In any event, Buyer shall confirm the terms of each
Transaction by issuing a written confirmation to Seller promptly after the
parties enter into such Transaction in the form of Exhibit I attached hereto (a
"Confirmation"), and Seller shall thereupon provide a copy of such written
confirmation to the Eligible Lender. Such Confirmation shall set forth the
description of the related Student Loans and shall identify Buyer and Seller and
set forth (i) the Purchase Date, (ii) the Purchase Price, (iii) the Repurchase
Date, unless the Transaction is to be terminable on demand, (iv) the Pricing
Rate applicable to the Transaction, (v) the amount of the related Student Loans
that are Federal Student Loans (and the Federal programs represented and the
amount represented by each) and the amount that are Private Student Loans, (vi)
the applicable Collateral Amount Percentages with respect to such Student Loans
and (vii) additional terms or conditions not inconsistent with this Agreement.
After receipt of the Confirmation, Seller shall, subject to the provisions of
subsection (c) below, sign the Confirmation and promptly return it to Buyer.
(c) Any Confirmation by Seller shall be deemed to have been
received by Seller on the date actually received by Seller.
(d) Each Confirmation, together with this Agreement, shall be
conclusive evidence of the terms of the Transaction(s) covered thereby unless
objected to in writing by Seller no more than two (2) Business Days after the
date the Confirmation was received by Seller or unless a corrected Confirmation
is sent by Buyer. An objection sent by Seller must state specifically that such
writing is an objection, must specify the provision(s) being objected to by
Seller, must set forth such provision(s) in the manner that the Seller believes
they should be stated, and must be received by Buyer no more than two (2)
Business Days after the Confirmation was received by Seller.
(e) In the case of Transactions terminable upon demand, such
demand shall be made by Buyer or Seller by telephone or otherwise (in each case,
confirmed by fax), no later than 1:00 p.m. (New York time) on the Business Day
prior to the day on which such termination will be effective.
(f) On the Repurchase Date, termination of the Transaction
will be effected by transfer to Seller or its designee of the Purchased Student
Loans (and any Income in respect thereof received by Buyer not previously
credited or transferred to, or applied to the obligations of, Seller pursuant to
Section 5) against the simultaneous transfer of the Repurchase Price to an
-7-
account of Buyer. Buyer agrees to permit Seller to repurchase all or a portion
of the Purchased Student Loans in connection with a securitization or other
financing or in connection with a sale or transfer to any Person (or any
eligible lender on behalf of any such Person), in each case (other than Section
9) pursuant to which Buyer is paid the allocable portion of Repurchase Price
(and, in addition, any amount due in accordance with the last sentence of
Section 8), and with respect thereto, Buyer shall issue a revised Confirmation
for the remaining Purchased Student Loans and, if Buyer and Seller so agree,
establish a new Repurchase Date.
(g) With respect to all Transactions hereunder the aggregate
Purchase Price of all Purchased Student Loans at any one time subject to then
outstanding Transactions shall not exceed $150,000,000.
(h) At least two Business Days prior to any Purchase Date or
any substitution of Student Loans pursuant to Section 9, the Seller shall
deliver to buyer via electronic modem, computer tape or any other format as
agreed to by Buyer the information requested by the Buyer related to the Student
Loans to be so purchased or substituted.
(i) The Confirmation may specify any Repurchase Date for the
related Transaction agreed upon by Buyer and Seller; provided that in no event
shall such date be after the Repurchase Date.
(j) Seller shall pay to the Buyer on or prior to the initial
Purchase Date under this Agreement on the first calendar of each month
thereafter, an amendment fee of $50,000.
(k) With respect to any Student Loan for which the related
Funding Request lacked loan level information, the Seller shall deliver such
loan level information to the Buyer upon receipt but no later than three
Business Days after the related Purchase Date.
Section 4. Collateral Amount Maintenance. (a) If at any time
the aggregate Market Value of all Purchased Student Loans subject to all
Transactions plus all cash delivered to Buyer is less than the aggregate
Collateral Amount for all such Transactions (a "Collateral Deficit"), then Buyer
may by notice to Seller require Seller to transfer to Buyer or its designee
Student Loans "Additional Student Loans") or cash, so that the cash and
aggregate Market Value of the Purchased Student Loans, including any such
Additional Student Loans, will thereupon equal or exceed the aggregate
Collateral Amount.
(b) Notice required pursuant to subsection (a) above may be
given by any means of telecopier or telegraphic transmission. A notice for the
payment or delivery in respect of a Collateral Deficit must be met not later
than 5:00 p.m. on the same Business Day, local time of the party receiving the
notice. Any notice given on a Business Day after 9:00 a.m., local time of the
party receiving the notice, shall be met not later than 2:00 p.m. (New York
time) on the next Business Day. The failure of Buyer, on any one or more
occasions, to exercise its rights under subsection (a) of this Section shall not
change or alter the terms and conditions to which this Agreement is subject or
limit the right of the Buyer to do so at a later date. Buyer and Seller agree
that a failure or delay to exercise its rights under subsection (a) of this
Section shall not limit Buyer's rights under this Agreement or otherwise
existing by law or in any way create additional rights for Seller.
-8-
(c) In the event that Seller fails to comply with the
provisions of this Section 4, Buyer shall not enter into any additional
Transactions hereunder after the date of such failure.
Section 5. Income Payments. (a) Where a particular
Transaction's term extend over an Income payment date, Income on the Purchased
Student Loans shall be the property of Buyer. Seller has established an account
(the "Collection Account") at a depositary institution acceptable to Buyer.
Seller shall use its best efforts to cause the Collection Account to become a
segregated account. Seller and the Eligible Lender Trustee shall deposit all
Income, net of all servicing costs and fees, on the Purchased Student Loans in
to the Collection Account upon receipt. Amounts on deposit in the Collection
Account may be invested at the direction of the Seller in investments acceptable
to Buyer, and shall be invested in a manner sufficient to protect Buyer's
perfected security interest in such amounts. So long as no Event of Default
shall have occurred and be continuing, Seller shall be entitled to all amounts
on deposit on the Collection Account and any other Income on the Purchased
Student Loans on each Repurchase Date, after all amounts due to Buyer have been
paid. Upon the occurrence and continuance of an Event of Default, all Income
with respect to Purchased Student Loans shall be paid to Buyer and distributed
to Buyer pursuant to Section 14 hereof.
(b) Notwithstanding that Buyer and Seller intend that the
Transactions hereunder be sales to Buyer of the Purchased Student Loans, Seller
shall pay by wire transfer to Buyer the accreted value of the Price Differential
(less any amount of such Price Differential previously paid by Seller to Buyer)
(each such payment, a "Periodic Payment") on the Repurchase Date.
(c) Buyer shall offset against the Repurchase Price of each
such Transaction all income and Periodic Payments actually received by Buyer
pursuant to Sections 5(a) and 5(b), respectively.
Section 6. Security Interest. (a) Buyer and the Seller intend
that the Transactions hereunder be sales to Buyer of Seller's beneficial right,
title and interest in and to the Purchased Student Loans (legal title shall
remain with the related AMS Trust) and not loans from Buyer to Seller secured by
the Purchased Student Loans. However, in order to preserve Buyer's rights under
this Agreement, in the event that a court or other forum recharacterizes the
Transactions hereunder as loans and as security for the performance by Seller of
all of Seller's obligations to Buyer under this Agreement and the Transactions
entered into pursuant to this Agreement, Seller grants (which grant is made with
respect to the Purchased Federal Student Loans to the related Eligible Lender
Trustee for the benefit of Buyer) a first priority security interest in the
Seller's beneficial interest in Purchased Student Loans, any proceeds thereof,
the Collection Account, to the Servicing Agreements to the extent they pertain
to the Purchased Student Loans, all rights with respect to the related Guarantee
Agreements, and all servicing records pertaining to Purchased Student Loans,
owned by Seller, including but not limited to any and all files, documents,
records, data bases, computer tapes, copies of computer tapes, closing
documentation, payment history records, and any other records relating to or
evidencing the servicing of Purchased Student Loans (the "Servicing Records"),
the LCPI Purchased Student Loans and which grant includes as to Federal Student
Loans, the grant by the related AMS Trustee, which the related AMS Trustee
hereby makes at the instruction of the Seller, to the
-9-
related Eligible Lender Trustee of a first priority security interest in legal
title to the Federal Student Loans and all other rights to the Purchased Federal
Student Loans held by the related AMS Trust, and in each case all proceeds
thereof.
(b) Seller shall pay all fees and expenses associated with
perfecting Buyer's security interest in the Purchased Student Loans, including,
without limitation, the cost of filing financing documents under the UCC, as and
when required by Buyer in its sole discretion.
Section 7. Payment, Transfer and Custody. (a) Unless otherwise
mutually agreed in writing, all transfers of funds hereunder shall be in
immediately available funds.
(b) On the Purchase Date for each Transaction, ownership of
the Purchased Student Loans shall be transferred to the Buyer or its designee
(subject in the case of Purchased Federal Student Loans, to the retention of
legal title thereto by an AMS Trustee in its capacity as "eligible lender' under
the Higher Education Act as in Section 1 set forth,) against the simultaneous
transfer of the Purchase Price to an account of Seller specified in the
Confirmation.
(c) Seller shall use its best efforts to make arrangements as
soon as possible, but in no event later than August 31, 2003 for the Buyer to
wire or ACH transfer the Purchase Price with respect to the Student Loans
directly to the related Servicers (the "Direct Wiring Capability").
(d) Seller hereby agrees that, with respect to Student Loans
which are originated simultaneously with their funding hereunder, the Purchase
Price shall be delivered as follows:
(i) Prior to Seller's arranging for the Direct Wiring
Capability, on the Purchase Date for each Transaction, the Buyer shall
wire the Purchase Price to the Seller.
(ii) (A) Upon Seller's arranging for the Direct Wiring
Capability, on or prior to the Purchase Date for each Transaction, the
Seller shall (1) deliver to the Buyer wiring instructions and amounts
with respect to the Purchased Student Loans to be funded on such
Purchase Date and (2) remit to the Buyer's designated account an amount
equal to 4% of the principal balance of the Purchased Student Loans to
be funded on such Purchase Date.
(B) Funds shall be wired directly to the applicable
Servicer or such funds shall be made available to the applicable
Servicer for ACH transfer. Prior to the Buyer purchasing any Student
Loans serviced by a Servicer, such Direct Wire Servicer shall have
executed a letter agreement, in a form acceptable to the Buyer,
pursuant to which the Servicer agrees, among other things, to hold such
funds as Buyer's disbursement agent. Buyer shall retain 3% of the
principal balance of the Purchased Student Loans to be funded on such
Purchase Date for payment of required fees with respect to the
Purchased Student Loan on a quarterly basis.
(e) Seller, simultaneously with the delivery to Buyer or its
designee of the Purchased Student Loans relating to each Transaction hereby
sells, transfers, conveys and assigns to Buyer or its designee without recourse,
but subject to the terms of this Agreement, all
-10-
the right, title and interest of Seller in and to the Purchased Student Loans,
including all right, title and interest in and to the Guaranty agreements with
respect thereto, all Subsidy Payments and all federal guaranty or reinsurance
payments with respect thereto and all proceeds of each of the foregoing.
(f) Any Loan Files are and shall be held in trust by Seller's
designated servicer as bailee or custodian of the related Eligible Lender
Trustee for the benefit of Buyer as the beneficial owner thereof as specifically
designated in the Repurchase Trust Agreement or related AMS Trust Agreement, as
applicable. The books and records (including, without limitation, any computer
records or tapes) of Seller and the related Eligible Lender Trustee pertaining
to the Purchased Student Loans shall be marked appropriately to reflect clearly
the sale of the related Purchased Student Loan to Buyer.
Section 8. Rehypothecation or Pledge of Purchased Student
Loans. Title to all Purchased Student Loans shall pass to Buyer (except that,
with respect to the Purchased Federal Student Loans, title shall be held of
record by the related AMS Trustee as set forth in Section 1). Buyer shall have
free and unrestricted use of all Purchased Student Loans, subject to the
requirement, in the case of Purchased Federal Student Loans, that legal title
thereto shall at all times remain held by an "eligible lender" as defined in the
Higher Education Act. Nothing in this Agreement shall preclude Buyer from
engaging in repurchase transactions with the Purchased Student Loans or
interests therein or otherwise pledging, repledging, hypothecating, or
rehypothecating the Purchased Student Loans or interests therein, but no such
transaction shall relieve Buyer of its obligations to transfer Purchased Student
Loans to Seller pursuant to Section 3. Nothing contained in this Agreement shall
obligate Buyer to segregate any Purchased Student Loans delivered to Buyer by
Seller. In the event that there is a material adverse change or other
development in the repurchase markets which results in Buyer being unable to
finance its position through the repurchase market with its traditional
repurchase counterparties, Buyer may accelerate the Repurchase Date for any
outstanding Transactions following reasonable written notice to Seller of the
occurrence of such event. In addition, in the event that any payment of the
Repurchase Price occurs prior to the Repurchase Date set forth in the applicable
Confirmation, Seller shall pay upon demand any resulting loss, cost or expense
incurred by the Buyer, including, but not limited to, any loss (including loss
of anticipated profits), cost or expense incurred in liquidating or employing
deposits from third parties or other financing arrangements with respect to its
position in the Purchased Student Loans.
Section 9. Substitution. (a) Subject to Section 9(b), Seller
may, upon two (2) Business Days' written notice to Buyer, substitute other
Student Loans for any Purchased Student Loans. Such substitution shall be made
by transfer to Buyer or its designee (such transfer to be reflected on Schedule
I hereto) of the Loan File of such other Student Loans and transfer to Seller or
its designee of the Purchased Student Loans requested for release. After
substitution, the substituted Student Loans shall be deemed to be Purchased
Student Loans subject to the same Transaction as the released Student Loans.
(b) Notwithstanding anything to the contrary in this
Agreement, Seller may not substitute other Student Loans for any Purchased
Student Loans (i) if after taking into account such substitution, a Collateral
Deficit would occur on (ii) such substitution would cause a breach of any
provision of this Agreement.
-11-
Section 10. Representations, Warranties and Covenants. (a)
Each of Buyer and Seller represents and warrants to the other that (i) it is
duly authorized to execute and deliver this Agreement, to enter into the
Transactions contemplated hereunder and to perform its obligations hereunder and
has taken all necessary action to authorize such execution, delivery and
performance; (ii) it will engage in such Transactions as principal; (iii) the
person signing this Agreement on its behalf is duly authorized to do so on its
behalf and upon execution this Agreement will create a legal, valid and binding
obligation, enforceable in accordance with its terms; (iv) no approval, consent
or authorization of the Transactions contemplated by this Agreement from any
federal, state, or local regulatory authority having jurisdiction over it is
required or, if required, such approval, consent or authorization has been or
will, prior to the Purchase Date, be obtained; (v) the execution, delivery, and
performance of this Agreement and the Transactions hereunder will not violate
any law, regulation, order, judgment, decree, ordinance, charter, by-law, or
rule applicable to it or its property or constitute a default (or an event
which, with notice or lapse of time, or both would constitute a default) under
or result in a breach of any agreement or other instrument by which it is bound
or by which any of its assets are affected; (vi) it has received approval and
authorization to enter into this Agreement and each and every Transaction
actually entered into hereunder pursuant to its internal policies and
procedures; and (vii) neither this Agreement nor any Transaction pursuant hereto
are entered into in contemplation of insolvency or with intent to hinder, delay
or defraud any creditor.
(b) Seller represents and warrants to Buyer that as of the
Purchase Date for the purchase of any Purchased Student Loans by Buyer from
Seller and as of the date of this Agreement and any Transaction hereunder and at
all times while this Agreement and any Transaction hereunder is in full force
and effect:
(i) Seller represents and warrants that it is duly authorized
under the laws of the Commonwealth of Massachusetts and the State of
Delaware to execute and deliver this Master Repurchase Agreement and to
provide funds for the origination of Student Loans (in the case of
Federal Student Loans, by an eligible lender) hereunder, all necessary
action on the part of the Seller for the execution and delivery of this
Agreement has been duly and effectively taken and this Agreement is the
valid and enforceable obligation of the Seller in accordance with the
terms.
(ii) Seller covenants that it will service or cause to be
serviced all Purchased Federal Student Loans in accordance with
applicable provisions of the Higher Education Act and all Purchased
Private Student Loans in accordance with applicable requirements of
TERI or those with respect to the TuitionGuard Loans, as applicable.
(c) Seller represents and warrants to the Buyer that each
Purchased Student Loan sold hereunder and each pool of Purchased Student Loans
sold in a Transaction hereunder, as of the related Purchase Date conform to the
representations and warranties set forth in Exhibit III attached hereto and that
each Student Loan delivered hereunder as Additional Student Loans or Substituted
Student Loans, as of the date of such delivery, conforms to the representations
and warranties set forth in Exhibit III attached hereto. Seller further
represents and warrants to the Buyer that the Computer Tape with respect to each
Purchased Student Loan is complete, true and correct as of the last calendar day
of each month. It is understood and
-12-
agreed that the representations and warranties set forth in Exhibit III attached
hereto shall survive delivery of the respective Loan File to Buyer or its
designee.
(d) On the Purchase Date for any Transaction, Buyer and Seller
shall each be deemed to have made all the foregoing representations with respect
to itself as of such Purchase Date.
Section 11. Negative Covenants of the Seller. On and as of the
date of this Agreement and each Purchase Date and until this Agreement is no
longer in force with respect to any Transaction, Seller covenants that it will
not:
(a) take any action which would directly or indirectly impair
or adversely affect Buyer's rights in or the value of the Purchased Student
Loans;
(b) pledge, assign, convey, grant, bargain, sell, set over,
deliver or otherwise transfer any interest in the Purchased Student Loans to any
person not a party to this Agreement nor will the Seller create, incur or permit
to exist any lien, encumbrance or security interest in or on the Purchased
Student Loans except as described in Section 6; or (c) amend, alter, modify or
change in any material way its underwriting guidelines with respect to Purchased
Student Loans without Buyer's consent.
Section 12. Affirmative Covenants of the Seller. For so long
as this Agreement is in effect:
(a) Seller covenants that it will promptly notify Buyer of any
material adverse change in its business operations and/or financial condition.
(b) Seller shall provide Buyer with copies of such
documentation as Buyer may reasonably request evidencing the truthfulness of the
representations set forth in Section 10 and in Section 2 of the Guarantor
Agreement, including but not limited to resolutions evidencing the approval of
this Agreement by the board of trustees of Seller and/or Guarantor, and the
Transactions contemplated hereby.
(c) Seller shall, at Buyer's request, take all action
necessary to ensure that Buyer will have a first priority security interest in
the Purchased Student Loans as and to the extent set forth in Section 6, the
Repurchase Trust Agreement and the Fleet AMS Trust Agreement, including, among
other things, filing such UCC financing statements or other instruments as Buyer
may reasonably request.
(d) Seller covenants that it will not create, incur or permit
to exist any lien, encumbrance or security interest in or on any of the
Purchased Student Loans or its beneficial interest therein (other than the
security interests described in Section 6) without the prior express written
consent of Buyer. Seller shall notify Buyer no later than one (1) Business Day
after obtaining actual knowledge thereof, if any event has occurred that
constitutes an Event of Default with respect to Seller or any event that with
the giving of notice or lapse of time, or both, would become of Event of Default
with respect to Seller.
-13-
(e) Seller covenants to use its best efforts to provide Buyer
on or before the 15th Business Day of each month but in no event later than the
20th Business Day of each month with respect to Purchased Student Loans, either
by direct modem electronic transmission, a computer diskette or any other format
agreed to by Buyer, the Computer Tape with respect to all Purchased Student
Loans then subject to Transactions including data as mutually agreed upon by the
Seller and the Buyer.
(f) Seller covenants to provide Buyer with the following
financial and reporting information:
(i) within 90 days after the last day of its fiscal year, each
of Guarantor's and Seller's audited consolidated and consolidating
statements of income and statements of changes in cash flow for such
year and balance sheets as of the end of such year in each case
presented fairly in accordance with GAAP, and accompanied, in all
cases, by an unqualified report of a firm of "Big Six" independent
certified public accountants or any other nationally recognized
independent certified public accounting firm consented to by Buyer
(with consent shall not be unreasonably withheld);
(ii) within 60 days after the last day of the first three
fiscal quarters in any fiscal year, each of Guarantor's and Seller's
consolidated and consolidating statements of income and statements of
changes in cash flow for such quarter and balance sheets as of the end
of such quarter presented fairly in accordance with GAAP;
(iii) within 30 days after the last day of each calendar
month, an officer's certificate from the chief financial officer or
treasurer of the Seller addressed to Buyer certifying that, as of such
calendar month, (x) Seller is in compliance with all of the terms,
conditions and requirements of this Agreement, and (y) no Event of
Default exists;
(iv) within 30 days after the last day of each calendar month,
notice of all audits of or any other actions of a material nature by
the DOE with respect to, Seller or any Affiliate thereof or, to the
extent it has knowledge thereof, of any Servicer or guarantor
(including but not limited to TERI or, with respect to the TuitionGuard
Loans GNIC) under any Guaranty Agreement, and, in each case, notice of
the results thereof (including, with respect to guarantors of the
Purchased Federal Student Loans, but not limited to, the rate of
reimbursement by the DOE for the guarantor under a Guaranty Agreement,
to the extent that such rate is below the maximum permitted under the
Higher Education Act (i.e., 98% with respect to Student Loans disbursed
on or after October 1, 1993 and 100% for loans disbursed prior
thereto));
(v) as promptly as practicable, copies of all reports or
written comments (including, without limitation, audit reports,
management letters and any other reports or communications with respect
to the internal control structure) relating to Seller or the Guarantor
submitted by its independent accountants;
(vi) not later than 11:00 a.m., New York City time, on the
Business Day after Seller becomes aware thereof, a report setting forth
any material changes or
-14-
developments in the business of Seller, including, without limitation,
any material changes, developments or defaults under any agreements;
(vii) as promptly as practicable (but in any event not later
than three (3) Business Days after filing), copies of all materials
filed with respect to the Guarantor with the Securities and Exchange
Commission; and
(viii) such other information as, from time to time, may
reasonably be requested by the Buyer.
(g) Seller and Guarantor shall each do all things necessary to
remain duly formed or incorporated, validly existing and in good standing as a
corporation, in its jurisdiction and maintain all requisite authority to conduct
its business in each jurisdiction in which it conducts business.
(h) Seller and Guarantor shall each comply with the
requirements of all applicable laws, statutes, rules, regulations and orders of,
and all applicable restrictions imposed by, all governmental authorities having
jurisdiction over its operations in respect of the conduct of its business and
the ownership of its property, except in the case of Guarantor where failure to
do so would not have a material adverse effect on its business or operations or
on its ability to perform its obligations under the Guarantor Agreement;
provided, however, that it shall not be required by reason of this Section 12(h)
to comply therewith at any time while it shall be contesting its obligation to
do so in good faith by appropriate proceedings, and if it shall have set aside
such reserves, if any, with respect thereto as are required by GAAP.
(i) Seller shall not permit the Purchased Student Loans to
contain (i) any Federal Student Loan which is more than 120 days delinquent,
(ii) any Private Student Loan which is more than 90 days delinquent, (iii) more
than 5% by aggregate Purchase Price of Student Loans that are more than 30 days
delinquent, (iv) more than 2.5% by aggregate Purchase Price of Student Loans
that are more than 60 days delinquent, (v) any Federal Student Loan as to which
the applicable federal guarantor's obligation to make guaranty payments or the
federal reinsurance with respect thereto has for any reason been forfeited or
qualified, (vi) any TERI Loan as to which the obligation of TERI to make
guaranty payments under the TERI Guaranty Agreement has for any reason been
forfeited or qualified, (vii) any TuitionGuard Loan as to which the insurance
obligation of GNIC has for any reason been withdrawn or reduced or (viii) more
than 0% by aggregate Purchase Price of Student Loans that are Private Student
Loans. Seller will deliver Additional Student Loans or Substitute Student Loans
as may be necessary to comply with this paragraph.
(j) Seller shall take all actions necessary to ensure that
each Federal Student Loan is subject to a Guaranty Agreement and that each
Private Student Loan is subject to a TERI Guaranty Agreement, or in the case of
a TuitionGuard Loan, is insured by GNIC for at least 95% the principal and
interest due on the loan in the event of a default thereon.
(k) While any Transaction is outstanding, the Seller hereby
agrees to cause the related Servicer to hold the related Purchased Student Loans
for the benefit of the Buyer. The Portfolio Identifier pursuant to which each
Servicer holds the related Student Loans shall be as
-15-
set forth on Exhibit IV hereto. The Seller shall not cause the related Servicer
to, and the related Servicer shall not change the Portfolio Identifier any
Student Loan is held under without the prior consent of the Buyer.
Section 13. Events of Default. (a) If any of the following
events (each an "Event of Default") occur, Buyer shall have the rights set forth
in Section 14, as applicable:
(i) Seller or Guarantor fails to satisfy or perform any
material obligation or covenant under this Agreement;
(ii) An Act of Insolvency occurs with respect to Seller or
Guarantor;
(iii) Any representation made by Seller or Guarantor shall
have been incorrect or untrue in any material respect when made or
repeated or deemed to have been made or repeated;
(iv) Seller or Guarantor shall admit its inability to, or its
intention not to, perform any of its obligations hereunder;
(v) Any governmental, regulatory, or self-regulatory authority
takes any act on to remove, limit, restrict, suspend or terminate the
rights, privileges, or operations of the Seller or Guarantor, which
suspension has a material adverse effect on the ordinary business
operations of Seller or Guarantor and which continues for more than
five Business Days;
(vi) Seller or Guarantor dissolves, merges or consolidates
with another entity, or sells, transfers, or otherwise disposes of a
material portion of its business or assets, provided that a sale of
assets in connection with any securitization or similar type of
financing by Seller shall not constitute an Event of Default under this
subparagraph;
(vii) Buyer, in its good faith judgment, believes that there
has been a material adverse change in the business, operations,
corporate structure or financial condition of Seller or Guarantor or
that Seller or Guarantor will not meet any of the Seller's obligations
under any Transaction pursuant to this Agreement, or any other
agreement between the parties;
(viii) Any of Seller, its Affiliates, any financing vehicles
of the Seller or Guarantor is in default under any material agreement
to which it is a party, provided, however, such a default shall not
constitute an Event of Default if the exercise of such remedies as are
available, as applicable, to Seller's or Guarantor's counterparty with
respect to such default would not result in a material adverse change
in the business operation or financial condition of the Seller or
Guarantor; provided that the defaults outlined in the UICI press
release dated July 21, 2003, that have occurred with respect to EFG
Funding LLC, EFG-II, LP, EFG-IV, LP, AMS-I 2002, LP, AMS-III 2003, LP,
AMS-II 2002, LP, which have been waived by the applicable liquidity
providers and insurers shall not constitute Events of Default under
this section (viii) during the term of such waiver;
-16-
(ix) A final judgment by any competent court in the United
States of America for the payment of money in an amount of at least
$10,000,000 is rendered against Seller or Guarantor, and the same
remains undischarged or unpaid for a period of sixty (60) days during
which execution of such judgment is not effectively stayed;
(x) This Agreement (together, in the case of the Federal
Purchased Student Loans, with the Repurchase Trust Agreement and the
related AMS Trust Agreement) shall for any reason cease to create a
valid, first priority perfected security interest in any of the
Purchased Student Loans purported to be covered hereby;
(xi) A Collateral Deficit occurs with respect to Seller, and
is not eliminated within the time period specified in Section 4(b);
(xii) The Guarantor shall terminate, revoke, rescind,
disaffirm or fail to honor any of its obligations or covenants under
the Guarantor Agreement or notice is received by Buyer from Guarantor
of its intention to take any of the aforementioned actions;
(xiii) TERI's long term credit rating shall not be investment
grade or better as published by any one of Moody's Investors Service,
inc., Fitch IBCA, Inc. and Standard & Poor's (provided, that no Event
of Default shall occur under this subparagraph for so long as (x) two
and the three aforementioned rating agencies continue to rate TERI's
long term credit rating investment grade or (y) no TERI Loans are
included in the Purchased Student Loans); or
(xiv) An Event of Default with respect to Seller or guarantor
shall occur under the Subordination and Intercreditor Agreement.
(b) In making a determination as to whether an Event of
Default has occurred, the Buyer shall be entitled to rely on reports published
or broadcast by media sources believed by such party to be generally reliable
and on information provided to it by any other sources believed by it to be
generally reliable, provided that such party reasonably and in good faith
believes such information to be accurate and has taken such steps as may be
reasonable in the circumstances to attempt to verify such information.
Section 14. Remedies. (a) If an Event of Default occurs with
respect to Seller, the following rights and remedies are available to Buyer:
(i) At the option of Buyer, exercised by written notice to
Seller (which option shall be deemed to have been exercised, even if no
notice is given, immediately upon the occurrence of an Act of
Insolvency), the Repurchase Date for each Transaction hereunder shall
be deemed immediately to occur.
(ii) If Buyer exercises or is deemed to have exercised the
option referred to in subsection (a)(i) of this Section,
(A) Seller's obligations hereunder to repurchase all
Purchased Student Loans in such Transactions shall thereupon
become immediately due and payable,
-17-
(B) to the extent permitted by applicable law, the
Repurchase Price with respect to each such Transaction shall
be increased by the aggregate amount obtained by daily
application of, on a 360 day per year basis for the actual
number of days during the period from and including the date
of the exercise or deemed exercise of such option to but
excluding the date of payment of the Repurchase Price as so
increased, (x) the greater of the Prime Rate or the Pricing
Rate for each such Transaction to (y) the Repurchase Price for
such Transaction as of the Repurchase Date as determined
pursuant to subsection (a)(i) of this Section (decreased as of
any day by (I) any amounts actually in the possession of Buyer
pursuant to clause (C) of this subsection, (II) any proceeds
from the sale of Purchased Student Loans applied to the
Repurchase Price pursuant to subsection (a)(xiii) of this
Section, and (III) any amounts applied to the Repurchase Price
pursuant to subsection (a)(iii) of this Section), and
(C) all Income on the Purchased Student Loans
actually received in the Collection Account pursuant to
Section 5 shall be applied to the aggregate unpaid Repurchase
Price owed by Seller.
(iii) After one Business Day's notice to Seller (which notice
need not be given if an Act of Insolvency with respect to Seller or
Guarantor shall have occurred, and which may be the notice given under
subsection (a)(i) of this Section), Buyer, to the extent permitted by
the Higher Education Act, may instruct the related Eligible Lender
Trustee to (A) immediately sell, without notice or demand of any kind,
at a public or private sale and at such price or prices Buyer may
reasonably deem satisfactory any or all Purchased Student Loans subject
to a Transaction hereunder (including with respect to any Federal
Student Loans legal title thereto, and all rights therein held by the
related AMS Trustee, in accordance with the Higher Education Act) or
(B) in its sole discretion elect, in lieu of selling all or a portion
of such Purchased Student Loans, to give Seller credit for such
Purchased Student Loans in an amount equal to the Market Value of the
Purchased Student Loans against the aggregate unpaid Repurchase Price
and any other amounts owing by Seller hereunder. The proceeds of any
disposition of Purchased Student Loans shall be applied first to the
costs and expenses incurred by Buyer in connection with the Event of
Default; second to consequential damages, including but not limited to
costs of cover and/or related hedging transactions; third to the
Repurchase Price; and fourth to any other outstanding obligation of
Seller or Guarantor or any Affiliate thereof to Buyer hereunder or
under any other agreement between Buyer and such parties or otherwise.
(iv) The parties recognize that it may not be possible to
purchase or sell all of the Purchased Student Loans on a particular
business Day, or in a transaction with the same purchaser, or in the
same manner because the market for such Purchased Student Loans may not
be liquid. In view of the nature of the Purchased Student Loans, the
parties agree that liquidation of a Transaction or the underlying
Purchased Student Loans does not require a public purchase or sale and
that a good faith private purchase or sale shall be deemed to have been
made in a commercially reasonable manner. Accordingly, Buyer may elect,
in its sole discretion, the time and manner of liquidating any
Purchased Student Loan and nothing contained herein shall (A) obligate
Buyer to liquidate any Purchased Student Loan on the occurrence of an
Event of Default or to liquidate all
-18-
Purchased Student Loans in the same manner or on the same Business Day
or (B) constitute a waiver of any right or remedy of Buyer. However, in
recognition of the parties' agreement that the Transactions hereunder
have been entered into in consideration of and in reliance upon the
fact that all Transactions hereunder constitute a single business and
contractual relationship and that each Transaction has been entered
into in consideration of the other Transactions, the parties further
agree that Buyer shall use its best efforts to liquidate all
Transactions hereunder upon the occurrence of an Event of Default as
quickly as is prudently possible in the reasonable judgment of Buyer.
(v) Buyer shall, without regard to the adequacy of the
security for the Seller's obligations under this Agreement, be entitled
to the appointment of a receiver by any court having jurisdiction,
without notice, to (or cause the Eligible Lender Trustee to) take
possession of and protect, collect, manage, liquidate, and sell the
Purchased Student Loans or any portion thereof, and collect the
payments due with respect to the Purchased Student Loans or any portion
thereof. Seller shall pay all costs and expenses incurred by Buyer in
connection with the appointment and activities of such receiver.
(vi) Seller agrees that Buyer may obtain an injunction or an
order of specific performance to compel Seller to fulfill its
obligations as set forth in Section 25, if Seller fails or refuses to
perform its obligations as set forth therein.
(vii) Seller shall be liable to Buyer for the amount of all
expenses, reasonably incurred by Buyer in connection with or as a
consequence of an Event of Default, including, without limitation,
reasonably legal fees and expenses and reasonable costs incurred in
connection with hedging or covering transactions, and Seller shall be
liable for all fees and charges of the related Eligible Lender Trustee
and the Servicers whether incurred before or after an Event of Default.
(viii) Buyer shall have all the rights and remedies provided
herein, provided by applicable federal, state, foreign, and local laws
(including, without limitation, the rights and remedies of a secured
party under the applicable UCC to the extent that such UCC is
applicable, and the right to offset any mutual debt and claim), in
equity, and under any other agreement between Buyer and Seller or
Guarantor.
(ix) Buyer may exercise one or more of the remedies available
to Buyer immediately upon the occurrence of an Event of Default and,
except to the extent provided in subsection (a)(iii) of this Section,
at any time thereafter without notice to Seller or Guarantor. All
rights and remedies arising under this Agreement as amended from time
to time hereunder are cumulative and not exclusive of any other rights
or remedies which Buyer may have.
(x) In addition to its rights hereunder, Buyer shall have the
right to proceed against any assets of Seller which may be in the
possession of Buyer or its designee including the right to liquidate
such assets and to set off the proceeds against monies owed by Seller
to Buyer pursuant to this Agreement. Buyer may set off cash, the
proceeds of the liquidation of the Purchased Student Loans, and all
other sums or obligations owed by Seller to Buyer against all of
Seller's obligations to Buyer, whether
-19-
under this Agreement, under a Transaction, or under any other agreement
between the parties, whether or not such obligations are then due,
without prejudice to Buyer's right to recover any deficiency. Any cash,
proceeds, or property in excess of any amounts due, or which Buyer
reasonably believes may become due, to it from Seller shall be returned
to Seller after satisfaction of all obligations of Seller to Buyer.
(xi) Buyer may enforce its rights and remedies hereunder
without prior judicial process or hearing, and Seller hereby expressly
waives any defenses Seller might otherwise have to require Buyer to
enforce its rights by judicial process. Seller also waives any defense
Seller might otherwise have arising from the use of nonjudicial
process, enforcement and sale of all or any portion of the Purchased
Student Loans in a commercially reasonable manner as set forth in this
Agreement, or from any other election of remedies. Seller recognizes
that nonjudicial remedies are consistent with the usages of the trade,
are responsive to commercial necessity and are the result of a bargain
at arm's length.
(xii) Buyer and Seller hereby agree that sales of the
Purchased Student Loans shall be deemed to include and permit the sales
of Purchased Student Loans pursuant to a securities offering.
(xiii) Notwithstanding the foregoing remedies, if the Event of
Default (other than an Event of Default under Section 13(a)(x)) arises
from a breach of any representation or warranty set forth in Exhibit
III attached hereto or the breach of the covenants contained in Section
12(i) with respect to a Purchased Student Loan, then Seller may elect,
subject to Buyers' written consent (which consent shall not be
unreasonably withheld or delayed), to cure such default by repurchasing
such Student Loan or substituting for such Student Loan within two (2)
Business Days of such Event of Default, provided, however, that Seller
shall not have the right to make the foregoing election if such breach
causes a default with respect to Student Loans that in the aggregate
represent ten percent (10%) or more of the aggregate Purchase Price of
all Purchased Student Loans subject to then outstanding Transactions.
The repurchase price for any such repurchase shall be the outstanding
Repurchase Price allocable to such Student Loan. Any such substitution
shall be performed in accordance with Section 9 of this Agreement.
Section 15. Additional Conditions. Seller shall, on the date
of the initial Transaction hereunder and, upon the request of Buyer, on the date
of any subsequent Transaction, cause to be delivered to Buyer, with reliance
thereon permitted as to any Person that purchases the Purchased Student Loans
from Buyer in a repurchase transaction, a favorable opinion or opinions of
counsel with respect to the matters set forth in Exhibit II attached hereto
relating to the Transactions described herein. In addition, Buyer shall have
received the structuring fee and any evidence of corporate authority of Seller
as reasonably requested.
Section 16. Single Agreement. Buyer and Seller acknowledge
that, and have entered hereunto and will enter into each Transaction hereunder
in consideration of and in reliance upon the fact that, all Transactions
hereunder constitute a single business and contractual relationship and that
each has been entered into in consideration of the other Transactions.
Accordingly, each of Buyer and Seller agrees (i) to perform all of its
obligations in respect of
-20-
each Transaction hereunder, and that a default in the performance of any such
obligations shall constitute a default by it in respect of all Transactions
hereunder, (ii) that each of them shall be entitled to set off claims and apply
property held by them in respect of any Transaction against obligations owing to
them in respect of any other Transactions hereunder and (iii) that payments,
deliveries and other transfers made by either of them in respect of any
Transaction shall be deemed to have been made in consideration of payments,
deliveries, and other transfers in respect of any other Transactions hereunder,
and the obligations to make any such payments, deliveries, and other transfers
may be applied against each other and netted; provided, however, that the
parties hereto acknowledge and agree that each Purchased Student Loan is
identified and unique and nothing in this Agreement should limit or reduce
Buyer's obligation to deliver the Purchased Student Loans to Seller or Seller's
obligation to sell the Purchased Student Loans to Buyer, in each case as and
when provided herein.
Section 17. Notices and Other Communications. Unless another
address is specified in writing by the respective party to whom any written
notice or other communication is to be given hereunder, all such notices or
communications shall be in writing or confirmed in writing and delivered at the
respective addresses set forth in the Confirmation.
Section 18. Entire Agreement; Severability. This Agreement
together with the applicable Confirmation, the Repurchase Trust Agreement and
the related AMS Trust Agreement constitutes the entire understanding between
Buyer and Seller with respect to the subject matter it covers and shall
supersede any existing agreements between the parties containing general terms
and conditions for repurchase transactions involving Purchased Student Loans. By
acceptance of this Agreement, Buyer and Seller acknowledge that they have not
made, and are not relying upon, any statements, representations, promises or
undertakings not contained in this Agreement, the Repurchase Trust Agreement and
the related AMS Trust Agreement (or to the extent relevant, the related AMS
Trust Agreement). Each provision and agreement herein shall be treated as
separate and independent from any other provision or agreement herein and shall
be enforceable notwithstanding the unenforceability of any such other provisions
or agreement.
Section 19. Non-Assignability. The rights and obligations of
the Seller under this Agreement and under any Transaction shall not be assigned
by it without the prior written consent of Buyer. Nothing herein shall restrict
Buyer's ability to participate its interests in this Agreement, to the extent
permitted by law. Subject to the foregoing, this Agreement and any Transactions
shall be binding upon and shall inure to the benefit of the parties and their
respective successors and assigns. Nothing in this Agreement express or implied,
shall give to any person, other than the parties to this Agreement and their
successors hereunder, any benefit or any legal or equitable right, power, remedy
or claim under this Agreement.
Section 20. Terminability. This Agreement shall terminate on
August 31, 2003 after the date of the Original Master Repurchase Agreement
unless the Buyer and Seller agree to extend this Agreement for a period of 30
days therefrom, but will remain applicable to any Transactions then outstanding
until payment of the Repurchase Price with respect thereto or any other amounts
due hereunder.
-21-
Section 21. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
Section 22. Consent to Jurisdiction and Arbitration. The
parties irrevocably agree to submit to the personal jurisdiction of the United
States District court for the Southern District of New York, the parties
irrevocably waiving any objection thereto. If, for any reason, federal
jurisdiction is not available, and only if federal jurisdiction is not
available, the parties irrevocably agree to submit to the personal jurisdiction
of the Supreme Court of the State of New York, sitting in New York County, the
parties irrevocably waiving any objection thereto. Notwithstanding the foregoing
two sentences, at either party's sole option exercisable at any time not later
than thirty (30) days after an action or proceeding has been commenced, the
parties agree that the matter may be submitted to binding arbitration in
accordance with the commercial rules of the American Arbitration Association
then in effect in the State of New York and judgment upon any award rendered by
the arbitrator may be entered in any court having jurisdiction thereof within
the City, County and State of New York; provided, however, that the arbitrator
shall not amend, supplement, or reform in any regard this Agreement or the terms
of any Confirmation, the rights or obligations of any party hereunder or
thereunder, or the enforceability of any of the terms hereof or thereof. Any
arbitration shall be conducted before a single arbitrator who shall be
reasonably familiar with repurchase transactions and the student loan industry
and secondary student loan market.
Section 23. No Waivers, Etc. No express or implied waiver of
any Event of Default by either party shall constitute a waiver of any other
Event of Default and no exercise of any remedy hereunder by any party shall
constitute a waiver of its right to exercise any other remedy hereunder. No
modification or waiver of any provision of this Agreement and no consent by any
party to a departure herefrom shall be effective unless and until such shall be
in writing and duly executed by both of the parties hereto. Any such waiver or
modification shall be effective only in the specific instance and for the
specific purpose for which it was given.
Section 24. Intent. The parties understand and intend that to
the maximum extent permitted by law, this Agreement and each Transaction
hereunder constitute a "repurchase agreement" and a "securities contract" as
those terms are defined under the relevant provisions of Title 11 of the United
States Code, as amended.
Section 25. Servicing. (a) Notwithstanding the purchase and
sale of the Purchased Student Loans hereby, Seller shall cause each Servicer to
service the related Purchased Student Loans for the benefit of Buyer and, if
Buyer shall exercise its rights to pledge or hypothecate the Purchased Student
Loan prior to the related Repurchase Date pursuant to Section 8, Buyer's
assigns; provided, however, that the obligations of Seller to service the
Purchased Student Loans shall cease upon the payment by Seller to Buyer of the
Repurchase Price therefor. Seller shall cause each Servicer to service the
related Purchased Student Loans in accordance with the servicing agreements and
in compliance with all applicable federal and state laws, including, in the case
of Purchased Federal Student Loans, the Higher Education Act and in the case of
the Purchased Private Student Loans the servicing guidelines of TERI or those
applicable to TuitionGuard Loans, as applicable.
-22-
(b) Upon the occurrence and continuance of an Event of
Default, Buyer may, in its sole discretion, sell the Purchased Student Loans to
the extent of its interest therein, subject to the servicing agreements relating
to such Purchased Student Loans and, in the case of Purchased Federal Student
Loans, as permitted by the Higher Education Act.
(c) Seller agrees that Buyer is the owner of all Servicing
Records with respect to the Purchased Student Loans. Seller covenants to
safeguard such Servicing Records and to deliver them promptly to Buyer or its
designee at Buyer's request.
(d) Seller shall cause each Servicer hereunder to execute a
letter agreement with buyer acknowledging Buyer's security interest and agreeing
that, upon notice from Buyer that an Event of Default has occurred and is
continuing hereunder, it shall deposit all Income with respect to the Purchased
Student Loans in the account specified in Section 5(a).
Section 26. Miscellaneous. (a) Time is of the essence under
this agreement and all Transactions and all references to a time shall mean New
York time in effect on the date of the action unless otherwise expressly stated
in this Agreement.
(b) Buyer shall be authorized to accept orders and take any
other action affecting any accounts of the Seller in response to instructions
given in writing or orally by telephone or otherwise by an officer of the Seller
or any other person authorized in writing by the Seller to act on behalf of the
Seller, and the Seller shall indemnify Buyer and defend and hold Buyer harmless
from and against any and all liabilities, losses, damages, costs, and expenses
of any nature arising out of or in connection with any action taken by Buyer in
response to such instructions received or reasonably believed to have been
received from the Seller. Seller shall further indemnify Buyer and defend and
hold Buyer harmless for any and all amounts due to the related Eligible Lender
Trustee under Section 10 of the Repurchase Trust Agreement, Section 6 of the
related AMS Trust Agreement or otherwise pursuant to such agreement, and the
related Eligible Lender Trustee agrees to look exclusively to Seller and not to
Buyer for the production of such reports. Buyer shall indemnify Seller and
defend and hold Seller harmless against any and all liabilities, losses,
damages, costs, and expenses caused by Buyer's failure to make a timely delivery
of the Purchased Student Loans as required hereunder.
(c) If there is any conflict between the terms of a
Confirmation or a corrected Confirmation issued by the Buyer and this Agreement,
the Confirmation or the corrected Confirmation shall prevail, as applicable.
(d) This Agreement may be executed in counterparts, each of
which so executed shall be deemed to be an original, but all of such
counterparts shall together constitute but one and the same instrument.
(e) Seller agrees to reimburse Buyer for all reasonable costs
and expenses of Buyer in connection with this Agreement including, without
limitation, (i) the fees, expenses and disbursement of counsel to Buyer, (ii)
due diligence expenses up to $75,000, and (iii) on-going auditing fees.
(f) The headings in this Agreement are for convenience of
reference only and shall not affect the interpretation or construction of this
Agreement.
-23-
(g) The parties acknowledge, intend, and agree that (1) all
provisions in this Agreement that require compliance with the Higher Education
Act are enforceable standards of conduct for the parties, and terms and/or
conditions hereof; (2) all provisions of the Higher Education Act, as amended
from time to time, relevant to such provisions in this Agreement are
incorporated by reference into this Agreement with the same force and effect as
if fully stated herein; (3) any assertion in litigation by a party hereto of a
claim or defense based on a violation of any such provision of this Agreement
constitutes a claim or defense based on the agreed upon terms and conditions of
this Agreement, and does not constitute a private claim or defense under the
Higher Education Act or an attempt to enforce or implement the Higher Education
Act through a state law claim or defense; and (4) in any such Higher Education
Action, the party opposing such claim or defense shall not assert or contend
that such claim or defense is either a prohibited private claim or defense under
the Higher Education Act or preempted by the Higher Education Act due to the
Higher Education Act that the provision at issue requires compliance with the
Higher Education Act.
Section 27. Private Student Loans. For the avoidance of doubt,
the Buyer and the Seller hereby acknowledge and agree that at any time that the
sublimit for Private Student Loans set forth in Section 12(i)(viii) is equal to
0%, the provisions of this agreement with respect to Private Student Loans and
Purchase Private Student Loans shall have no effect.
-24-
EXHIBIT I
FORM OF CONFIRMATION LETTER
(date)
Academic Management Services Corp.
1 AMS Place|
463 Swansea Mall Drive
Swansea, MA 02777
Attn: Rhonda Sayles
Attention:
Confirmation No.
-------------
Ladies/Gentlemen:
This letter confirms our oral agreement to purchase from you
the Student Loans listed in Appendix I hereto, pursuant to the Master Repurchase
Agreement between us, dated August 7, 2003 (the "Agreement"), as follows:
Purchase Date:
Purchased Student Loans:
Aggregate Principal Amount of Purchased Student Loans:
Purchase Price:
Pricing Rate: shall mean, the rate per annum equal to the
corresponding rate appearing at page 3750 of the Dow Jones
Telerate Service as the London interbank offered rate for
deposits in Dollars at or about 11:00 a.m., London time, two
Business Days prior to the related Purchase Date, for a term
equal to one month, or if such rate no longer so appears, the
rate per annum (rounded upwards, if necessary to the nearest
1/100th of 1%) appearing on Reuters Screen LIBO Page as the
London interbank offered rate for deposits in Dollars at or
about 11:00 a.m., London time, one Business Day prior to the
beginning of such LIBOR Period, for a term equal to one month;
provided, however, that if more than one rate is specified on
Reuters LIBO Page, the applicable rate shall be the arithmetic
mean of all such rates (rounded upwards, if necessary to the
nearest 1/100th of 1%).
Repurchase Date:
Repurchase Price:
EXH. I-1
Collateral Amount Percentage with respect to Market Value for
Loans arising under Student Loan Contracts
Names and addresses for communications:
Buyer:
Lehman Brothers Bank, FSB
745 7th Avenue
5th Floor
New York, NY 10019
Attention: Brian Kozak or John Blaslov
With a copy to:
Lehman Brothers Bank, FSB
745 Seventh Avenue
7th Floor
New York, New York 10019
Attention: Patrick Healey or George Janes or Vincent Primiano
Seller:
Academic Management Services Corp.
1 AMS Place|
463 Swansea Mall Drive
Swansea, MA 02777
Attn: Rhonda Sayles
:
LEHMAN BROTHERS BANK, FSB,
Buyer
By:
-------------------------------
Name:
Title:
The Seller hereby confirms that all of the representations and
warranties contained in the Agreement (including Exhibit III) are true and
correct as if made as of the date hereof, the Seller is not in breach of any
covenant contained therein and there exists no Event of Default thereunder.
EXH. I-2
Agreed and Acknowledged:
ACADEMIC MANAGEMENT SERVICES CORP.,
Seller
By:
-----------------------------------
Name:
Title:
EXH. I-3
Appendix I
A. Funding Request Summary
Servicer Name: # of Loans Loan Amt. Disbursement Amt.
SALLIE MAE
Sub-Stafford
Unsub-Stafford
Plus
Consolidation
TOTAL SALLIE MAE
AFSA
Sub-Stafford
Unsub-Stafford
Plus
Consolidation
TOTAL AFSA
OTHER SERVICERS
Sub-Stafford
Unsub-Stafford
Plus
Consolidation
TOTAL OTHER SERVICERS
EXH. I-1
EXHIBIT II
OPINION OF SELLER'S COUNSEL
1. EXISTENCE
2. AUTHORIZATION, EXECUTION AND DELIVERY
3. ENFORCEABILITY
4. NO DEFAULTS
5. NO LITIGATION
6. COMPLIANCE WITH LAWS
7. NO CONSENTS/APPROVALS NEEDED
8. VALIDLY CREATED FIRST PRIORITY PERFECTED SECURITY INTEREST IN
COLLATERAL
EXH. II-1
EXHIBIT III
Representations With Respect to Student Loans
(i) Characteristics of Student Loans. Each Student Loan (A)
was originated in the United States of America, its territories, its possessions
or other areas subject to its jurisdiction to an eligible borrower under
applicable laws and agreements and was fully and properly executed by the
parties thereto, (B) was originated or acquired by the Seller (or by the related
AMS Trustee on its behalf) in the ordinary course of its business, and (C)
provides for payments on a periodic basis that fully amortizes the principal
amount of such Student Loan by its maturity, as such maturity may be modified in
accordance with any applicable deferral or forbearance periods granted in
accordance with applicable laws and restrictions or any related guarantee
agreement, and yields interest at the rates applicable thereto. Each Federal
Student Loan was originated by an "eligible lender" under the Higher Education
Act in the ordinary course of its business and is guaranteed by an eligible
guarantor under the Higher Education Act and qualifies the holder thereof to
receive Subsidy Payments from the DOE and guarantee payments from the related
guarantor and qualified the related guarantor to receive reinsurance payments
thereon from the DOE.
(ii) Schedule of Student Loans. The information set forth in
the relevant Student Loan Schedule is true and correct in all material respects
as of the date of each Transaction. No selection procedures believed to be
adverse to the Buyer were utilized in selecting any Student Loan. The computer
tape regarding the Student Loans made available to the Buyer is true and correct
in all material respects as of the date of the related Transaction.
(iii) Compliance with Law. Each Student Loan complied at the
time of origination and, except as may otherwise be agreed to by Buyer,
complies, at the time of its transfer pursuant to this Agreement, in all
material respects with all applicable requirements of local, state, and federal
laws, rules and regulations which govern the making and servicing of such
Student Loan including the requirements of the applicable Guarantee Agreement
and including, in the case of the Private Student Loans, the TERI or
TuitionGuard Programs, as applicable.
(iv) Binding Obligation. All signatures for the Student Loans
are genuine and the note evidencing each Student Loan has been duly executed and
delivered and constitutes the legal, valid, and binding obligation of the
related borrower enforceable in accordance with its terms.
(v) No Defenses. No right of rescission, setoff, counterclaim,
or defense has been asserted or threatened or exists with respect to any Student
Loan.
(vi) No Default. No Student Loan has a payment that is more
than 120 days delinquent for a Federal Student Loan and 90 days delinquent for a
Private Student Loan as of the date of the related Transaction and, except as
permitted in this paragraph, no default, breach, violation or event permitting
acceleration under the terms of any Student Loan has occurred; and, except for
payment defaults continuing for a period of not more than 120 days for a Federal
EXH. III-1
Student Loan and 90 days for a Private Student Loan, no continuing condition
that with notice or the lapse of time or both would constitute a default,
breach, violation or event permitting acceleration under the terms of any
Student Loan has arisen; and the Seller has not waived and shall not waive any
of the foregoing.
(vii) Title. With respect to Federal Student Loans,
immediately prior to the transfer and sale of each Student Loan to Buyer, the
Seller owned beneficial ownership of each Student Loan, and the related AMS
Trustee held legal title to such Student Loan, free and clear of any lien,
charge, encumbrance, or other interest therein and immediately upon the transfer
and sale of beneficial ownership of such Student Loan to the Buyer, the Buyer
will own such beneficial ownership interest in such Student Loan free and clear
of any lien, charge, encumbrance, or other interest therein (subject in each
case to the retention of legal title thereto by the related AMS Trustee and the
holding of such beneficial ownership interest by the related Eligible Lender
Trustee on its behalf). With respect to Private Student Loans, immediately prior
to the transfer and sale of each Student Loan to Buyer, the Seller owned each
Student Loan, free and clear of any lien, charge, encumbrance, or other interest
therein and immediately upon the transfer and sale of such Student Loan to the
Buyer, the Buyer will own such Student Loan free and clear of any lien, charge,
encumbrance, or other interest therein. The Seller's computer files relating to
the Student Loans have been marked to indicate that such Student Loans have been
sold to the Buyer. Notwithstanding the foregoing, Purchaser acknowledges that
Seller may have pledged certain subordinated interests in such Purchased Student
Loans to UICI.
(viii) All Filings Made. All filings (including UCC filings)
necessary in any jurisdiction to give the Buyer a first perfected ownership
interest in the Student Loans (in the case of the Federal Student Loans as
limited by the Higher Educational Act, and the provisions of this Agreement)
have been made.
(ix) Security Interest. The related Eligible Lender Trustee
has a perfected, first priority security interest for the benefit of the Buyer
in each Student Loan.
(x) No Bankruptcies. To the best of the Seller's knowledge, no
borrower as of the date of the related Transaction was involved in a bankruptcy
proceeding.
(xi) Lawful Assignment. No Student Loan (except, with respect
to Federal Student Loans, as provided in the Higher Education Act) has been
originated in, or is subject to the laws of, any jurisdiction under which the
origination, sale, transfer and assignment of such Student Loan or beneficial
ownership therein is unlawful, void or voidable.
(xii) One Original. There is only one original executed copy
of the promissory note evidencing each Student Loan.
(xiii) Accounts. Each Student Loan may be pledged or
transferred as an "account" or a "general intangible" as defined in the UCC.
(xiv) Disbursement Order. No Student Loan is a subsequent
disbursement unless all of the related first or other prior disbursements under
such Student Loans are Purchased Student Loans. (i)
EXH. III-2
EXHIBIT IV
PORTFOLIO IDENTIFIER
EXH. IV-1
EXHIBIT V
FORM OF FUNDING REQUEST
DATE:_______________________
FUNDING REQUEST SUMMARY
<Table>
<Caption>
MONTHLY
# OF LOANS $ OF LOANS FUNDING BALANCE
MONTH TO
DAILY DATE PREVIOUS
1ST 1ST FUNDING SERVICER MONTH
DISBURSEMENT SUBSEQUENT DISBURSEMENT SUBSEQUENT REQUEST REQUESTS BALANCE
------------ ------------- ------------ ---------- ------- -------- --------
1,829,741.50
RUNNING BALANCE
=prev day(s)
total + =SLMA + previous
SALLIE MAE 5 5 15,466.00 15,466.00 30,932.00 current day month balance
=prev day(s)
total + =SLMA + ACS +
ACS 10 8 180,112.00 140,999.00 321,111.00 current day Prev Mth Bal.
=prev day(s)
total +
OTHER SERVICERS 11 6 190,555.00 80,888.00 271,443.00 current day
=SLMA + ACS +
Other Servicers
TOTAL ALL SERVICERS 26 19 386,133.00 237,353.00 623,486.00 total all above +Prev Mth Bal.
</Table>
EXH. IV-2
IN WITNESS WHEREOF, the parties have entered into this
Agreement as of the date set forth above.
LEHMAN BROTHERS BANK, FSB,
Buyer
By:
--------------------------------
Name:
Title:
ACADEMIC MANAGEMENT SERVICES CORP.,
Seller
By:
--------------------------------
Name:
Title:
Acknowledged and agreed to:
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Eligible Lender
and, with respect to Sections
1, 6 and 7, as AMS Trustee
By:
--------------------------------
Name:
Title:
EXH. IV-3
EXHIBITS
EXHIBIT I Confirmation
EXHIBIT II Opinion of Counsel to Seller
EXHIBIT III Representations and Warranties Regarding Student Loan Contracts
EXHIBIT IV Portfolio Identifier
EXHIBIT V Form of Funding Request