EXHIBIT 99.3
LOAN SALE AND COMMITMENT AGREEMENT
This LOAN SALE AND COMMITMENT AGREEMENT is made and entered into as of the
1st day of November, 1996, by and between UNION BANK AND TRUST COMPANY, a
Nebraska bank and trust company, acting in its own right and in its capacity as
trustee, as seller ("Seller"), and UNION FINANCIAL SERVICES-1, INC, a Nevada
corporation, as purchaser ("Purchaser").
WITNESSETH:
WHEREAS, Seller is engaged in a program of originating, purchasing, holding
and selling loans made to eligible borrowers in accordance with the provisions
of the Higher Education Act (as defined herein), the proceeds of which are used
to pay the costs incurred by students attending post-secondary educational
institutions;
WHEREAS, Purchaser is engaged in a program of purchasing, holding and
financing Student Loans;
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, certain student loans, including Federal Xxxxxxxx Loans,
Federal PLUS Loans and Federal Supplemental Loans for Students, made and
guaranteed or insured pursuant to the Higher Education Act, in accordance with
the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the foregoing premises and mutual
covenants herein contained, the parties agree as follows:
ARTICLE I
DEFINITIONS
The capitalized words and terms used but not otherwise defined in this
Agreement shall have the respective meanings set forth in that certain Second
Amended and Restated Indenture of Trust (the "Indenture") dated as of November
1, 1996 between Purchaser and Trustee. As used in this Agreement, the following
capitalized terms, unless the context or use clearly indicates another or
different meaning or intent, shall have the following meanings:
"Agreement" shall mean this Agreement, including all exhibits attached
hereto and any supplements or amendments hereto.
"Commitment" shall mean Seller's commitment to sell Eligible Loans to
Purchaser pursuant to Section 2.1 hereof.
"Commitment Period" shall mean the period beginning on the date first above
written and ending on April 1, 1999.
"Guaranteed Loan" shall mean a Student Loan which is Guaranteed or Insured.
"Higher Education Act" shall mean the Act.
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"Insured Loan" shall mean a Student Loan which is Insured.
"Interest Benefit Payments" shall mean interest payments on Student Loans
received pursuant to an Interest Benefits Agreement.
"Obligation" shall mean any bond, note or other evidence of indebtedness
issue by
Purchaser to finance the purchase of Eligible Loans hereunder.
"Portfolio" shall mean a group of Eligible Loans sold to Purchaser by
Seller pursuant to Section 2.1 hereof on a Scheduled Sale Date.
"Principal Balance" shall mean the original principal amount of a Student
Loan, PLUS capitalized interest (if any) and items which may not be guaranteed
or insured (such as late charges), LESS payments of principal by or on behalf of
the Student Borrower.
"Purchase Price" shall mean 101.40% of the aggregate Principal Balance of
the Eligible Loans included in the Portfolio, plus accrued and unpaid interest
thereon, each as of the Scheduled Sale Date.
"Purchaser" shall mean Union Financial Services-1, Inc., or its successors
or assigns.
"Scheduled Sale Date" shall mean the dates specified in Section 2.1 for
purchase of a Portfolio of Eligible Loans by Purchaser, unless such date is
changed by mutual agreement of the parties, in which case the Scheduled Sale
Date shall be the new date agreed to by the parties.
"Seller" shall mean Union Bank and Trust Company, in its own right and as
trustee,
or its successors or assigns.
"Student Borrower" shall mean the obligor on a Student Loan.
"Student Loan" shall mean a loan under the Higher Education Act to an
Eligible Borrower for education at an Eligible Institution (or a loan to
consolidate the same).
"UNIPAC" shall mean UNIPAC Servicing Corporation, or its successors or
assigns.
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ARTICLE II
LOAN SALE COMMITMENT
2.1 LOAN SALE COMMITMENT. Subject to the terms and conditions of this
Agreement, and in express reliance upon the representations, warranties and
covenants set forth herein, Seller agrees to sell, and Purchaser agrees to
purchase at the Purchase Price all right, title and interest of the Seller in
and to Eligible Loans having an aggregate Principal Balance of $300 million,
which sale and purchase is to be consummated on or before each of the following
Scheduled Sale Dates: (i) November 1, 1996: $260 million; and (ii) February 1,
1997: $40 million.
Upon sale of the Eligible Loans to the Purchaser, the Seller shall
relinquish all power and control over the original promissory notes relating to
such Eligible Loans, and the Purchaser shall relinquish all power and control
over such original promissory notes upon delivery to UNIPAC as custodian
pursuant to the provisions of that certain Custodian Agreement among the
Purchaser, between UNIPAC and the Trustee dated as of March 1, 1996.
2.2 DELIVERY PRIOR TO SCHEDULED SALE DATE. The parties agree that
consummation of the sale of a Portfolio of Eligible Loans may occur prior to
the Scheduled Sale Dates set forth above at the discretion of the Seller;
provided, however, that the requirements of Section 4.1 shall be met in
connection with such sale; and provided further, that the sale of the
Portfolios of Eligible Loans shall be consummated no later than the dates set
forth above. The aggregate Principal Balance of any Eligible Loans sold by
Seller to Purchaser pursuant to this Agreement or otherwise prior to of the
Scheduled Sale Date shall correspondingly reduce the Seller's commitment on
the Scheduled Sale Date.
2.3 REBATE OF PREMIUM. In the event the Seller originates or purchases a
Consolidation Loan under Section 428C of the Higher Education Act and the
proceeds of such Consolidation Loan are used to repay the principal and interest
due on an Eligible Loan sold by Seller to Purchaser under this Agreement, then,
upon demand by Purchaser (or without demand if Seller has actual knowledge of
such repayment), Seller shall rebate the premium paid by Purchaser to Seller in
connection with the purchase of said Eligible Loan by paying to Purchaser an
amount equal to 1.40% of the principal balance of said Eligible Loan then
outstanding; provided, that the rebate specified herein shall not be payable to
the extent paid pursuant to Section 5.2 hereof.
2.4 CHARACTERIZATION OF TRANSFER. The Purchaser and each Seller intend
that each transfer under Section 2.01 be treated as a true and absolute sale of
all of the Seller's right, title and interest in and under the Eligible Loans
and not a transfer intended as a security interest.
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ARTICLE III
PORTFOLIO CHARACTERISTICS AND SERVICING
3.1 PORTFOLIO CHARACTERISTICS. The Portfolios of Eligible Loans sold by
Seller to Purchaser under this Agreement shall have the following
characteristics: (i) the Eligible Loans shall, in the aggregate, have an average
borrower indebtedness ("ABI") of at least $3,500.00; (ii) no more than 30% of
the aggregate Principal Balance of all of the Eligible Loans as of the date of
sale may be attributable to Student Loans the proceeds of which funded tuition
to private Eligible Institutions offering only non-baccalaureate degrees; (iii)
at least 70% of the aggregate Principal Balance of all of the Eligible Loans as
of the date of sale shall be attributable to Federal Xxxxxxxx Loans (as defined
in the Higher Education Act) which qualify for Interest Benefit Payments, PLUS
Loans or SLS Loans; (iv) no more than 30% of the aggregate Principal Balance of
all of the Eligible Loans as of the date of sale may be attributable to
Unsubsidized Loans, and (v) no more than 50% of the aggregate Principal Balance
of all of the Eligible Loans as of the date of sale may be attributable to
Consolidation Loans, unless otherwise agreed by the Parties. An individual
Portfolio of Eligible Loans sold pursuant to this Agreement may not have the
characteristics described in the preceding sentence if, immediately after the
consummation of the purchase of such Portfolio of Eligible Loans, the aggregate
of all Eligible Loans sold to Purchaser pursuant to this Agreement shall have
such characteristics. If Purchaser does not object to the characteristics of
any Portfolio of Eligible Loans, sold pursuant to this Agreement, within 30 days
of such sale, Purchaser shall be deemed to have waived any objection to the
characteristics of such Portfolio.
3.2 SERVICING. All of the Eligible Loans that may be sold by Seller to
Purchaser pursuant to this Agreement are currently serviced (or will be serviced
on the Scheduled Sale Date) by UniPac pursuant to the Servicing Agreement. On
the effective date (determined under Section 4.4 hereof) for the sale of a
Portfolio of Eligible Loans, Purchaser shall cause UniPac to commence servicing
such Portfolio pursuant to the Servicing Agreement at Purchaser's expense and
under the identification number of Purchaser or its designee.
ARTICLE IV
SALE/PURCHASE OF PORTFOLIOS
4.1 TENDER OF ELIGIBLE LOANS TO PURCHASER. With respect to a Portfolio of
Eligible Loans to be sold to Purchaser pursuant to Section 2.1 hereof prior to
the Scheduled Sale Date (or at such other time as the parties may agree), Seller
shall furnish Purchaser or its designee with a list of the Eligible Loans (each,
a "Schedule of Student Loans") to be included in such Portfolio, and shall
authorize and direct UniPac to release such information and documentation to
Purchaser or its designee as Purchaser, in its reasonable judgement, deems
necessary and appropriate to undertake a review of such loans to determine
whether (i) such loans constitute Eligible Loans under this Agreement, and (ii)
the Portfolio, aggregated with the other Eligible Loans that have been sold to
Purchaser by Seller if appropriate, comply with the requirements set forth in
Section 3.1 hereof.
4.2 CONDITIONS OF PURCHASE. Purchaser's obligation to purchase and pay
for Eligible Loans in a Portfolio hereunder shall be subject to the following
conditions precedent:
(a) the Eligible Loans in the Portfolio, aggregated with the other
Eligible Loans that have been sold to Purchaser by Seller if appropriate, shall
meet the requirements described in Section 3.1 hereof;
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(b) all representations, warranties and statements by or on behalf of
Seller contained in this Agreement are true on the Scheduled Sale Date;
(c) any notification to or approval by the Secretary or Guarantee Agency
required by the Higher Education Act or the Guarantee Agreement as a condition
to the assignment of Eligible Loans shall have been made or received and
evidence thereof delivered to both Purchaser and the Trustee;
(d) the entire interest of Seller in each Eligible Loan shall have been
duly assigned by endorsement, such endorsement to be without recourse except as
provided in Article V hereof;
(e) the Seller shall, at its own expense, indicate in its files that the
Student Loans sold on such date have been sold to the Purchaser pursuant to this
Agreement and pledged and assigned by the Purchaser to the Trustee for the
benefit of the Registered Owners, and the Seller shall deliver to the Purchaser
a Schedule of Student Loans certified by the Chairman, the President, the Vice
President or the Treasurer of the Seller to be true, correct and complete as of
the date thereof. Further, the Seller hereby agrees that the computer files
maintained by the Seller as Servicer will bear an indication reflecting that the
Student Loans sold to the Purchaser pursuant to this Agreement are owned by the
Purchaser; and
(f) prior to or on each Scheduled Sale Date, the Seller shall record and
file, at its own expense, appropriate UCC-3 termination statements with respect
to any previous liens on such Student Loans being sold and purchased hereunder.
4.3 REJECTION OF STUDENT LOANS BY PURCHASER PRIOR TO PURCHASE.
(a) If (i) Seller is unable to make or furnish the representations and
warranties required to be made or furnished by it pursuant to this Agreement as
to such Student Loan, or (ii) Seller is unable to fulfill one or more covenants
or conditions of this Agreement as to such Student Loan, or (iii) Purchaser in
its reasonable judgment deems that such Student Loan does not comply with the
terms and conditions of this Agreement or is not being delivered in compliance
with such terms and conditions; or (iv) the conditions of Section 4.2 shall not
have been complied with, then Purchaser may, in its sole discretion, refuse to
accept and purchase any Student Loan.
(b) If Purchaser rejects a Student Loan, any such Student Loan shall be
excluded from the sale, and Seller shall be furnished with a letter identifying
each excluded Student Loan and stating the basis for its exclusion. If
Purchaser rejects a Student Loan, Seller may substitute a different Eligible
Loan for the rejected Student Loan, provided, however, that the terms and
conditions of such Eligible Loan are in compliance with the terms and conditions
of this Agreement.
4.4 CONSUMMATION OF SALE AND PURCHASE OF PORTFOLIO.
(a) To consummate the sale and purchase of a Portfolio of Eligible Loans,
on or before the Scheduled Sale Date, Seller shall deliver to the Trustee on
behalf of Purchaser such instruments of transfer, including a xxxx of sale and
blanket endorsement, as Purchaser shall reasonably deem necessary for conveyance
of title of the Eligible Loans contained in the Portfolio free and clear of all
liens, encumbrances and security interests, and, upon receipt by Trustee of such
instruments of transfer (which may occur by delivery of facsimile copies to be
followed by delivery of the original executed instruments), the Purchaser shall
direct and cause the Trustee, on behalf of Purchaser, to pay to Seller on said
date the Purchase Price for such Portfolio. The purchase and sale of the
Portfolio shall be effective as of the date of the xxxx of sale. Seller shall
retain all ownership rights
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with respect to Eligible Loans in a Portfolio at all times prior to the
effective date of the sale of such Portfolio.
(b) Unless otherwise agreed by Seller, Purchaser and the Trustee, payment
of the Purchase Price for a Portfolio of Eligible Loans shall be made by wire
transfer of immediately available funds to Seller or its designated agent, with
no offset, deduction, reserve or other holdback by Purchaser or the Trustee.
4.5 OTHER INFORMATION AND DOCUMENTS. Seller shall furnish or make
available to Purchaser such additional information concerning Seller's Student
Loan portfolio as Purchaser may reasonably request. Seller shall execute all
other documents and take all Other steps as may be reasonably requested by
Purchaser or the Trustee from time to time to effect the sale hereunder of a
Portfolio of Eligible Loans.
ARTICLE V
REPURCHASE OBLIGATION OF SELLER
5.1 CONDITIONS PRECEDENT TO REPURCHASE OBLIGATION. At the request of
Purchaser or the Trustee, Seller shall repurchase any Student Loan purchased by
Purchaser pursuant to this Agreement if:
(a) any representation or warranty made or furnished by Seller in or
pursuant to this Agreement shall prove to have been materially incorrect as to
such Student Loan;
(b) the Secretary or a Guarantee Agency, as the case may be, refuses to
honor all or part of a claim filed with respect to a Student Loan (including any
claim for interest subsidy, Special Allowance Payments, Insurance, reinsurance
or Guarantee Payments) on account of any circumstance or event that occurred
prior to the sale of such Student Loan to Purchaser; or
(c) on account of any wrongful or negligent act or omission of Seller or
its servicing agent that occurred prior to the sale of a Student Loan to
Purchaser, a maker (or endorser, if any) has a valid defense that makes the
Student Loan unenforceable with respect to his or her obligation to pay all or
any part of the Student Loan.
5.2 REPURCHASE BY SELLER. Upon the occurrence of any of the conditions
set forth in Section 5.1 hereof and upon the request of Purchaser or the
Trustee, Seller shall pay to the Trustee, for the account of Purchaser, an
amount equal to 101.40% of the then-outstanding principal balance of such
Student Loan, plus interest and Special Allowance Payments accrued and unpaid
with respect to such Student Loan from the Scheduled Sale Date to and including
the date of repurchase, plus any attorneys' fees, legal expenses, court costs,
servicing fees or other expenses incurred by Purchaser, the Trustee or the
appropriate successors or assigns in connection with such Student Loans and
arising out of the reasons for the repurchase. The repurchase obligation of
Seller pursuant to this Section 5.2 shall constitute the sole remedy to the
Purchaser against the Seller with respect to any event described in Section 5.1.
With respect to any Student Loan repurchased by Seller pursuant to this
Agreement, the Purchaser shall assign, without recourse, representation or
warranty, to the Seller all of Purchaser's right, title and interest in and to
such Student Loan, and all security and documents relating thereto.
ARTICLE VI
COVENANTS AND ONGOING OBLIGATIONS OF SELLER
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6.1 OBLIGATION OF SELLER TO FORWARD PAYMENTS. Seller shall promptly
remit, or cause to be remitted, to the Trustee or the Servicer as it or they may
direct, all funds received by Seller after the Scheduled Sale Date which
constitute payments of principal or interest or Special Allowance Payments
accrued after the Scheduled Sale Date with respect to any Student Loan sold
pursuant to Section 2.1 hereof.
6.2 OBLIGATION OF SELLER TO FORWARD COMMUNICATIONS. Seller shall
immediately transmit to Purchaser any communication received by Seller after the
Scheduled Sale Date with respect to a Student Loan or the borrower under such a
Student Loan. Such communication shall include, but not be limited to, letters,
notices of death or disability, adjudication of bankruptcy and similar documents
and forms requesting deferment of repayment or loan cancellations.
6.3 NOTIFICATION TO STUDENT BORROWERS. Seller and Purchaser shall provide
each borrower under the Eligible Loans purchased under this Agreement with
notice of the assignment and transfer to the Trustee for the account and on
behalf of Purchaser of Seller's interest in such Eligible Loans as required by
the Higher Education Act.
6.4 NO MODIFICATION OF LENDER AGREEMENTS. Seller will consent to no
amendments to, or modifications of the Contract of Insurance or Guarantee
Agreement that may affect Eligible Loans which are sold or to be sold pursuant
to this Agreement without the prior written consent of Purchaser, which consent
shall not be unreasonably withheld. Amendments or modifications required by the
Higher Education Act are excluded from the requirement of this Section 6.4.
6.5 CLEAR TITLE. The Seller shall cause all termination statements, or
partial releases, as the case may be, with respect to prior liens, financing
statements and continuation statements and any other necessary documents
covering the right, title and interest of the Purchaser in and to the Student
Loans to be promptly filed, and at all times (except with respect to termination
statements) to be kept recorded, registered and filed, all in such manner and in
such places as may be required by law fully to preserve and protect the right,
title and interest of the Purchaser hereunder to the Student Loans. The Seller
shall deliver to the Purchaser and the Trustee file-stamped copies of, or filing
receipts for, any document recorded, registered or filed as provided above, as
soon as available following such recordation, registration or filing. The
Purchaser shall cooperate fully with the Seller in connection with the
obligations set forth above and will execute any and all documents reasonably
required to fulfill the intent of this Section 6.5. The Seller shall be under no
obligation hereunder in the event no prior liens exist with respect to the
Student Loans.
Except for the conveyances hereunder or as specified herein, the Seller
will not purport to sell, pledge, assign or transfer to any other person, or
grant, create, incur, assume or suffer to exist any lien on the Student Loans
purchased and assigned hereunder or on any interest therein, and the Seller
shall defend the right, title, and interest of the Purchaser in, to and under
such Student Loans against all claim of third parties claiming through or under
the Seller.
6.6 DEFENSES. Seller shall take all reasonable actions to assure that no
maker of an Eligible Loan has or may acquire a defense to the payment thereof on
account of Seller's action or inaction during the time in which Seller owned the
Eligible Loan.
6.7 RELEASE OF GUARANTEE AGENCY OR SECRETARY. Seller will not, with
respect to any Eligible Loan subject to this Agreement, agree to release the
Guarantee Agency or the Secretary from any of its contractual obligations to
Guarantee or Insure such loan, or agree to otherwise alter, amend
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or renegotiate any terms or conditions under which such Eligible Loan is
Guaranteed or Insured, without the express prior written consent of Purchaser
and the Trustee.
6.8 BORROWER WITHDRAWAL. In the event a Student Borrower withdraws within
the period specified as qualifying for a cancellation refund by the Guarantee
Agency, Seller agrees to pay the amount of the premium to be refunded to
Purchaser.
ARTICLE VII
REPRESENTATIONS, WARRANTIES AND COVENANTS
7.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby represents
and warrants to Purchaser that:
(a) ORGANIZATION AND AUTHORITY OF SELLER. Seller is duly organized,
validly existing and in good standing under the laws of the State of Nebraska,
and has all necessary statutory power and authority to own its assets and carry
on its business as now being conducted; Seller has, and its officers acting on
its behalf have, all necessary statutory power and authority to make and perform
this Agreement, including (without limitation) the power and authority to sell,
assign and transfer Student Loans to the Trustee on behalf of Purchaser, and to
repurchase Student Loans as required under the terms hereof.
(b) ELIGIBLE LENDER STATUS. Seller has applied for and received the
Secretary's or Guarantee Agency's designation, as the case may be, as an
"eligible lender" under the Higher Education Act.
(c) LEGAL AND BINDING OBLIGATION. The execution, delivery and performance
of this Agreement by Seller have been duly authorized by all necessary corporate
action, and do not require any stockholder approval or approval or consent of or
notice to, any trustee or holders of indebtedness or obligations of Seller; upon
due execution and delivery by the parties hereto, this Agreement will constitute
the legal, valid and binding obligation of Seller, enforceable in accordance
with its terms.
(d) NO CONFLICTS. Neither the execution, delivery or performance by
Seller of this Agreement, nor the consummation or performance by Seller of the
transactions contemplated hereby, will conflict with, result in a violation of
or constitute a default (or an event which could constitute a default with the
passage of time or notice or both) under, (i) any of the term of Seller's
charter or bylaws, or (ii) any indenture, mortgage, contract or other
agreement to which Seller is a party or by which it or its properties are
bound, or any law or regulation by which it or its properties are bound,
where, in the case of this clause (ii), such conflict, violation or default
could have a material adverse effect on Seller's ability to perform its
obligations hereunder. Seller is not a party to or bound by any agreement or
instrument or subject to any charter or other corporate restrictions or
judgment, order, writ, injunction, decree, law, rule or regulation which may
materially and adversely affect the ability of Seller to perform its
obligations under this Agreement.
(e) NO DEFAULTS OR VIOLATIONS. Seller is not in default under any
mortgage, deed of trust, indenture or other instrument or agreement to which
Seller is a party or by which it or its properties are bound, or in violation of
any law or regulation, which default or violation could have a material adverse
effect on Seller's ability to perform its obligations hereunder.
(f) NO CONSENTS. No consent, approval or authorization of any government
or governmental body, including (without limitation) the Office of Thrift
Supervision, the Federal
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Deposit Insurance Corporation, the Comptroller of the Currency, the Board of
Governors of the Federal Reserve System or any state bank regulatory agency,
is required in connection with the execution, delivery and performance of
this Agreement, or the consummation of the transactions contemplated hereby.
(g) NO LITIGATION. There are no pending or threatened actions or
proceedings by or before any court, administrative agency or arbitrator, that
could if adversely determined, materially and adversely affect the ability of
Seller to perform its obligations hereunder, and there are no presently existing
orders of any court, administrative agency or arbitrator that could have a
material and adverse effect on the ability of Seller to perform its obligations
hereunder.
(h) CONTINUING OBLIGATION OF SELLER. Seller agrees that during the term
of this Agreement, it will (i) remain in good standing and qualified to do
business under the laws of the United States of America and the jurisdictions in
which it operates, (ii) conduct its business in accordance with all applicable
state and federal laws, (iii) continue to be qualified to carry out this
Agreement, and (iv) be an "eligible lender" under the Higher Education Act and
continue to be approved by the Guarantee Agency.
(i) SOLVENCY. The fair salable value of the assets on a going concern
basis of the Seller and its subsidiaries, on a consolidated basis, as of the
time of each Scheduled Sale Date is in excess of the total amount of their
liabilities. With respect to each Scheduled Sale Date, at the close of the
immediately preceding fiscal quarter of the Seller, the Seller had a positive
net worth as determined in accordance with generally accepted accounting
principles.
7.2 REPRESENTATIONS AND WARRANTIES OF SELLER WITH RESPECT TO STUDENT
LOANS. Seller hereby represents and warrants to Purchaser that as of the date
of sale of any Eligible Loan:
(a) ACCURACY OF INFORMATION. Any information furnished by Seller to
Purchaser or its agents with respect to any Eligible Loan is true, complete
and correct.
(b) VALIDITY OF LOANS. Each Eligible Loan has been duly executed and
delivered and constitutes the legal valid and binding obligation of the maker
(and the endorser, if any) thereof, enforceable in accordance with its terms.
(c) NO DEFENSES AGAINST REPAYMENT OF LOANS. The amount of the unpaid
principal balance of each Eligible Loan is true and owing, and no counterclaim,
offset, defense or right to rescission exists with respect to any Eligible Loan
which can be asserted and maintained or which, with notice, lapse of time, or
the occurrence or failure to occur of any act or event, could be asserted and
maintained by the borrower against the Trustee as assignee thereof. The rate of
interest carried by each Eligible Loan is the which was allowable by law at the
time the loan was made, and no such Eligible Loan carries a rate of interest in
excess of that permitted by the provisions of the Higher Education Act.
(d) OWNERSHIP AND LOCATION OF LOANS; EXISTENCE OF LIENS. Seller is the
sole owner and holder of each Eligible Loan and has full right and authority to
sell and assign the same free and clear of all liens, pledges or encumbrances,
and upon the endorsement and delivery of promissory notes evidencing such
Eligible Loan to Purchaser pursuant to this Agreement, Purchaser will acquire
full right, title and interest in the Eligible Loan free and clear of all liens,
pledges or encumbrances whatsoever. All documentation relating to the Eligible
Loans, including the original promissory note for each Eligible Loan, is in the
possession of UniPac.
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(e) GUARANTEE AND INSURANCE ON LOANS. Each Eligible Loan sold hereunder
is either Insured or Guaranteed. With respect to all Insured Loans being
acquired, a Contract of Insurance is in full force and effect with respect
thereto, the applicable Certificates of Insurance are valid and binding upon the
parties thereto in all respects, Seller is not in default in the performance of
any of its covenants and agreements made in respect thereof and such Insurance
is freely transferable as an incident to the sale of each Eligible Loan to be
sold. With respect to all Guaranteed Loans being acquired, a Guarantee
Agreement is in full force and effect with respect thereto and is valid and
binding upon the parties thereto in all material respects, Seller is not in
default in the performance of any of its covenants and agreements made in such
Guarantee Agreement, and such Guarantee is freely transferable as an incident to
the sale of each Eligible Loan to be sold. All amounts due and payable to the
Secretary or the Guarantee Agency, as the case may be have been paid in full by
Seller, and none of the Eligible Loans to be sold to Purchaser has at any time
been tendered to either the Secretary or the Guarantee Agency for payment.
(f) COMPLIANCE WITH HIGHER EDUCATION ACT. Each Eligible Loan complies in
all respects with the requirements of the Higher Education Act and is an
Eligible Loan as those terms are defined in this Agreement.
(g) COMPLIANCE WITH FEDERAL LAWS. Each Eligible Loan was made in
compliance with all applicable local, state and federal laws, rules and
regulations, including without limitation all applicable nondiscrimination,
truth-in-lending, consumer credit and usury laws.
(h) NO DISCRIMINATION. In making each Eligible Loan to be purchased by
Purchaser pursuant to this Agreement, Seller has not discriminated based upon
the educational institutions attended by, or the age, sex, race, national
origin, color, religion, handicapped status, income, attendance at a particular
eligible institution within the area served by Purchaser, length of the Student
Borrower's educational program, or the Student Borrower's academic year in
school.
(i) SERIAL LOANS. The Eligible Loans to be purchased pursuant to this
Agreement include all Eligible Loans of any one borrower held by Seller.
(j) DUE DILIGENCE IN SERVICING LOANS. Seller and any independent servicer
have each exercised and shall continue until the Scheduled Sale Date to exercise
due diligence and reasonable care in making, administering, Servicing and
collecting the Eligible Loans and Seller has conducted a reasonable
investigation of sufficient scope and content to enable it duly to make the
representations and warranties contained in this Agreement. Seller has paid the
costs and expenses incident to origination of the Eligible Loans, and has no
right of reimbursement therefor from Purchaser.
(k) ORIGINATION FEES. Seller has reported the amount of origination fees
(if any) authorized to be collected with respect to any Eligible Loan pursuant
to Section 438(c) of the Higher Education Act to the Secretary for the period in
which such fee was authorized to be collected; and Seller has made any refund of
an origination fee collected in connection with any Eligible Loan which may be
required pursuant to the Higher Education Act.
(l) INSURANCE PREMIUM. For each Eligible Loan Seller has reported the
amount of the insurance premium authorized to be collected, and has paid said
premium to the Guarantee Agency or the Secretary with all rights therein inuring
to Purchaser.
(m) SCHEDULE OF STUDENT LOANS. The information set forth in each Schedule
of Student Loans is true and correct in all material respects as of the opening
of business on the respective
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Scheduled Sale Date, and no selection procedures believed to be adverse to
the Purchaser have been utilized in selecting the Student Loans for inclusion
therein.
(n) TITLE. It is the intention of the Seller that the transfer and
assignment from the Seller to the Purchaser herein contemplated constitute a
true sale of the Student Loans to the Purchaser and that neither the interest in
nor title to the Student Loans shall become or be deemed property of the Seller
for any purpose under state or federal law.
(o) DOCUMENTS. The Seller shall furnish and file, if appropriate, any
document reasonably requested by the Purchaser to perfect the Purchaser's
ownership interest in the Student Loans.
(p) NO FRAUDULENT CONVEYANCE. The transactions contemplated by this
Agreement are and will be in the ordinary course of the Seller's business and
the Seller has valid business reasons for transferring the Student Loans rather
than obtaining a secured loan with the Student Loans as collateral. Both before
and immediately after giving effect to any transfer: (i) the Seller transferred
or will transfer the Student Loans to the Purchaser without any intent to
hinder, delay or defraud any current or future creditor of the Seller; (ii) the
Seller was not or will not be insolvent or did not or will not become insolvent
as a result of any transfer; (iii) the Seller was not engaged and was not about
to engage, and will not engage, in any business or transaction for which any
property remaining with the Seller was or will constitute unreasonably small
capital in relation to the business of the Seller or the transaction; and (iv)
the Seller did not intend or will not intend to incur, and did not believe or
reasonably should not have believed, or will not believe or reasonably shall not
have believed, that it would incur, debts beyond its ability to pay as they
become due.
(q) SALES NOT SUBJECT TO BULK TRANSFER. Each sale, transfer, assignment
and conveyance of the Student Loans by the Seller pursuant to this Agreement is
not subject to the bulk transfer or any similar statutory provisions in effect
in any applicable jurisdiction.
(r) NO TRANSFER TAXES DUE. Each sale, transfer, assignment and conveyance
of the Student Loans (including all payments due or to become due thereunder) by
the Seller pursuant to this Agreement is not subject to and will not result in
any tax, fee or governmental charge payable by the Purchaser or the Seller to
any federal, state or local government ("Transfer Taxes") except such Transfer
Taxes as are paid by the Seller at the time of transfer, assignment and
conveyance and except UCC filing fees. In the event that the Purchaser receives
actual notice of any unpaid Transfer Taxes arising out of the transfer,
assignment and conveyance of the Student Loans, on written demand by the
Purchaser, or upon the Seller otherwise being given notice thereof, it shall
pay, and otherwise indemnify and hold the Purchaser and the Trustee harmless
therefor. The Seller shall not be responsible for the Purchaser's or the
Trustee's income taxes.
7.3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF PURCHASER. Purchaser
hereby represents, covenants and warrants to Seller that:
(a) ORGANIZATION AND AUTHORITY OF PURCHASER. Purchaser is a duly
organized, validly existing corporation in good standing under the laws of the
State of Nevada; Purchaser has, and its officers acting on its behalf have, all
necessary statutory power and authority to make and perform this Agreement,
including (without limitation) the power and authority to purchase Student Loans
from Seller under the terms and conditions of this Agreement.
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(b) LEGAL AND BINDING OBLIGATION. The execution, delivery and performance
of this Agreement by Purchaser have been duly authorized by all necessary
corporate action, and do not require any stockholder approval or approval or
consent of, or notice to, any trustee or holders of indebtedness or obligations
of Purchaser; upon due execution and delivery by the parties hereto, this
Agreement will constitute the legal, valid and binding obligation of Purchaser,
enforceable in accordance with its terms.
(c) NO CONFLICT. Neither the execution, delivery and performance by
Purchaser of this Agreement, nor the consummation or performance by Purchaser of
the transactions, contemplated hereby, will conflict with, result in a violation
of, or constitute a default (or an event which could constitute a default with
the passage of time or notice or both) under, (i) any of the terms of
Purchaser's charter or bylaws, or (ii) any indenture, mortgage, contract or
other agreement to which Purchaser is a party or by which it or its properties
are bound, or any law or regulation by which it or its properties are bound,
where, in the case of this clause (ii), such conflict, violation or default
could have a material adverse effect on Purchaser's ability to perform its
obligations hereunder. Purchaser is not a party to or bound by any agreement or
instrument or subject to any charter or other corporate restrictions or
judgment, order, writ, injunction, decree, law, rule or regulation which may
materially and adversely affect the ability of Purchaser to perform its
obligations under this Agreement.
(d) NO DEFAULTS OR VIOLATIONS. Purchaser is not in default under any
mortgage, deed of trust, indenture or other instrument or agreement to which
Purchaser is a party or by which it or its properties are bound, or in violation
of any law or regulation, which default or violation could have a material
adverse effect on Purchaser's ability to perform its obligations hereunder.
(e) NO CONSENTS. No consent, approval or authorization of any government
or governmental body is required in connection with the execution, delivery and
performance of this Agreement, or the consummation of the transactions
contemplated hereby.
(f) NO LITIGATION. There are no pending or threatened actions or
proceedings by or before any court, administrative agency or arbitrator, that
could if adversely determined, materially and adversely affect the ability of
Purchaser to perform its obligations hereunder, and there are no presently
existing orders of any court, administrative agency or arbitrator that could
have a material and adverse affect on the ability of Purchaser to perform its
obligations hereunder.
(g) CONTINUING OBLIGATION OF PURCHASER. Purchaser agrees that during the
term of this Agreement, it will (i) remain in good standing and qualified to do
business under the laws of the State of Nevada, the United States of America and
any other jurisdictions in which it operates, (ii) conduct its business in
accordance with all applicable state and federal laws, and (iii) continue to be
qualified to carry out this Agreement.
ARTICLE VIII
MISCELLANEOUS
8.1 COMMUNICATIONS AND NOTICES. Unless otherwise expressly provided
herein, all notices, requests, demands or other instruments which may or are
required to be given by either party to the other or to the Trustee, shall be in
writing, and each shall be deemed to have been properly given when served
personally on an officer of the party to whom such notice is to be given, or
upon
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expiration of a period of 48 hours from and after the postmark thereof when
mailed postage prepaid by registered or certified mail, requesting return
receipt, addressed as follows:
If to Seller:
Union Bank and Trust Company
0000 X. 00xx Xxxxxx
Xxxxxxx XX 00000-0000
Attention: Xxx Xxxxxxxxxx, Senior Vice President
(000) 000-0000
Fax: (000) 000-0000
If to Purchaser:
Union Financial Services-1, Inc.
0000 X. Xxxxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxxxxxxx, President
(000) 000-0000
Fax: (000) 000-0000
If to the Trustee:
Norwest Bank Minnesota, National Association
0xx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Department, Student Loan Group
(000) 000-0000
Fax: (000) 000-0000
Any party may change the address and name of the addressee to which subsequent
notices are to be sent to it, by notice to the others given as aforesaid, but
any such notice of change, if sent by mail, shall not be effective until the 5th
day after it is mailed.
8.2 FORMS OF INSTRUMENTS PROCEEDINGS. All instruments relating to the
sale and purchase of the Student Loans, and all proceedings to be taken in
connection with this Agreement and the transactions contemplated herein, shall
be in form and substance mutually satisfactory to Seller and Purchaser and their
respective counsel.
8.3 PAYMENT OF EXPENSES. Each party to this Agreement shall pay its own
expenses incurred in connection with the preparation, execution and delivery of
this Agreement and the transactions herein contemplated, including, but not
limited to, the fees and disbursements of counsel.
8.4 NON-BUSINESS DAYS. If the date for taking any action required
hereunder is not a Business Day, then such action can be taken, without interest
or penalty, on the next succeeding Business Day, with the same force and effect
as if such action was taken on the required date.
8.5 AMENDMENTS, MODIFICATIONS AND WAIVERS. The provisions of this
Agreement
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cannot be amended, waived or modified unless such amendment, waiver or
modification be in writing and signed by the parties hereto and the Trustee.
Inaction or failure to demand strict performance shall not be deemed a waiver.
8.6 SEVERABILITY. If any provision of this Agreement shall be held, or
deemed to be or shall, in fact, be inoperative or unenforceable as applied in
any particular situation, such circumstance shall not have the effect of
rendering the provision in question inoperative or unenforceable in any other
situation or of rendering any other provision or provisions herein contained
invalid, inoperative or unenforceable to any extent whatsoever. The invalidity
of any one or more phrases, sentences, clauses or paragraphs herein contained
shall not affect the remaining portions of this Agreement or any part hereof.
8.7 REMEDIES. Unless otherwise expressly provided herein, no remedy by
the terms of this Agreement conferred upon or reserved to the Trustee or
Purchaser is intended to be exclusive of any other remedy, but each and every
such remedy shall be cumulative and in addition to every other remedy given
under this Agreement or existing at law or in equity (including, without
limitation, the right to such equitable relief by way of injunction),
or statute on or after the date of this Agreement.
8.8 ASSIGNMENT. This Agreement may not be assigned or otherwise
transferred, in whole or in part, by one party without the prior written consent
of the other parties, which consent shall not unreasonably be withheld;
provided, however, that Seller acknowledges that (i) Purchaser intends to assign
its rights (but none of its duties and obligations) under this Agreement to the
Trustee, (ii) Purchaser intends to pledge the Eligible Loan to the Trustee in
order to grant a security interest pursuant to the Indenture, and (iii) in
connection with and in order to perfect such pledge. Purchaser intends to
deliver possession of the original promissory note evidencing the Eligible Loans
to the Custodian as custodial agent for the Trustee, pursuant to the Custodian
Agreement, and Seller hereby agrees and consents to each of the matters
described in clauses (i) through (iii) hereof. This Agreement may not be
reassigned or otherwise transferred, in whole or in part, by the Trustee (other
than to a successor trustee) without the prior written consent of Seller in its
sole discretion.
8.9 BINDING EFFECT. All covenants and agreements herein contained
shall extend to and be obligatory upon all successors of the respective
parties hereto.
8.10 GOVERNING LAW. This Agreement shall be construed in accordance with
and governed by the laws of the State of Nebraska.
8.11 ENTIRE AGREEMENT. This Agreement embodies and constitutes the entire
understanding between the parties with respect to the transactions contemplated
by this Agreement, and all prior or contemporaneous agreements, understandings,
representations and statements between the parties, written or oral, between the
parties, are merged into and superseded by this Agreement.
8.12 COUNTERPARTS. This Agreement may be simultaneously executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
8.13 THIRD PARTY BENEFICIARY. This Agreement shall inure to the benefit of
the Trustee and its successors and assigns. Without limiting the generality of
the foregoing, all representations, covenants and agreements in this Agreement
which expressly confer rights upon the Trustee shall be for the benefit of and
run directly to, the Trustee, and the Trustee shall be entitled to rely on and
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enforce such representations, covenants and agreements to the same extent as if
it were a party hereto. The foregoing creates a permissive right on behalf of
the Trustee, and the Trustee shall be under no duties or obligations hereunder.
8.14 CONSOLIDATION REIMBURSEMENT. If Purchaser acquires any Eligible Loan
from Seller through the consolidation procedures of Section 428C of the Higher
Education Act, Purchaser shall pay Seller an amount equal to 101.40% of the
Principal Balance of such Eligible Loans so acquired, plus accrued interest to
the date of consolidation.
IN WITNESS WHEREOF, the parties hereto have caused this Loan Sale and
Commitment Agreement to be duly executed as of the day and year first written
above.
UNION BANK AND TRUST UNION FINANCIAL SERVICES-1, INC.
COMPANY In its Own Right and in its
Capacity as Trustee
By: /s/ XXX XXXXXXXXXX By: /s/ Xxxxxx X. Xxxxxxxxxxx
------------------------------ ------------------------------
Xxxxxxx X. Xxxxxxxxxxx
Title: Senior Vice President President
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