Exhibit 10.24
CONTINUING GUARANTY
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in
consideration of any credit and/or financial accommodation heretofore or
hereafter from time to time made or granted to Nelnet, Inc., a Nevada
corporation (the "BORROWER") by BANK OF AMERICA, N.A. and any other subsidiaries
or affiliates of Bank of America Corporation and its successors and assigns
(collectively the "LENDER"), the undersigned Guarantor (whether one or more the
"GUARANTOR," and if more than one jointly and severally) hereby furnishes its
guaranty of the Guaranteed Obligations (as hereinafter defined) as follows:
1. GUARANTY. The Guarantor hereby absolutely and unconditionally
guarantees, as a guarantee of payment and not merely as a guarantee of
collection, prompt payment when due, whether at stated maturity, upon
acceleration or otherwise, and at all times thereafter, of any and all existing
and future indebtedness and liabilities of every kind, nature and character,
direct or indirect, absolute or contingent, liquidated or unliquidated,
voluntary or involuntary, of the Borrower to the Lender arising under that
certain Application and Agreement for Standby Letter of Credit dated May 23,
2003 between the Borrower and the Lender (the "CREDIT AGREEMENT") and all
instruments, agreements and other documents of every kind and nature now or
hereafter executed in connection with the Credit Agreement (including all
renewals, extensions and modifications thereof and all costs, attorneys' fees
and expenses incurred by the Lender in connection with the collection or
enforcement thereof) (collectively, the "GUARANTEED OBLIGATIONS"). The Lender's
books and records showing the amount of the Guaranteed Obligations shall be
admissible in evidence in any action or proceeding, and shall be binding upon
the Guarantor and presumptively correct for the purpose of establishing the
amount of the Guaranteed Obligations. This Guaranty shall not be affected by the
genuineness, validity, regularity or enforceability of the Guaranteed
Obligations or any instrument or agreement evidencing any Guaranteed
Obligations, or by the existence, validity, enforceability, perfection, or
extent of any collateral therefor, or by any fact or circumstance relating to
the Guaranteed Obligations which might otherwise constitute a defense to the
obligations of the Guarantor under this Guaranty.
2. NO SETOFF OR DEDUCTIONS; TAXES. The Guarantor represents and warrants
that it is incorporated and resident in the United States of America. All
payments by the Guarantor hereunder shall be paid in full, without setoff or
counterclaim or any deduction or withholding whatsoever, including, without
limitation, for any and all present and future taxes. If the Guarantor must make
a payment under this Guaranty, the Guarantor represents and warrants that it
will make the payment from one of its U.S. resident offices to the Lender so
that no withholding tax is imposed on the payment. If notwithstanding the
foregoing, the Guarantor makes a payment under this Guaranty to which
withholding tax applies, or any taxes (other than taxes on net income (a)
imposed by the country or any subdivision of the country in which the Lender's
principal office or actual lending office is located and (b) measured by the
United States taxable income the Lender would have received if all payments
under or in respect of this Guaranty were exempt from taxes levied by the
Guarantor's country) are at any time imposed on any payments under or in respect
of this Guaranty including, but not limited to, payments made pursuant to this
Paragraph 2, the Guarantor shall pay all such taxes to the relevant authority in
accordance with applicable law such that the Lender receives the sum it would
have received had no such deduction or withholding been made and shall also pay
to the Lender, on demand, all additional amounts which the Lender specifies as
necessary to preserve the after-tax yield the Lender would have received if such
taxes had not been imposed.
The Guarantor shall promptly provide the Lender with an original receipt
or certified copy issued by the relevant authority evidencing the payment of
any such amount required to be deducted or withheld.
3. NO TERMINATION. This Guaranty is a continuing and irrevocable guaranty
of all Guaranteed Obligations now or hereafter existing and shall remain in full
force and effect until all Guaranteed Obligations and any other amounts payable
under this Guaranty are indefeasibly paid and performed in full and any
commitments of the Lender or facilities provided by the Lender with respect to
the Guaranteed Obligations are terminated. At the Lender's option, all payments
under this Guaranty shall be made to an office of the Lender located in the
United States and in U.S. Dollars.
4. WAIVER OF NOTICES. The Guarantor waives notice of the acceptance of
this Guaranty and of the extension or continuation of the Guaranteed
Obligations or any part thereof. The Guarantor further waives presentment,
protest, notice, dishonor or default, demand for payment and any other notices
to which the Guarantor might otherwise be entitled.
5. SUBROGATION. The Guarantor shall exercise no right of subrogation,
contribution or similar rights with respect to any payments it makes under this
Guaranty until all of the Guaranteed Obligations and any amounts payable under
this Guaranty are indefeasibly paid and performed in full and any commitments
of the Lender or facilities provided by the Lender with respect to the
Guaranteed Obligations are terminated. If any amounts are paid to the Guarantor
in violation of the foregoing limitation, then such amounts shall be held in
trust for the benefit of the Lender and shall forthwith be paid to the Lender
to reduce the amount of the Guaranteed Obligations, whether matured or
unmatured.
6. WAIVER OF SURETYSHIP DEFENSES. The Guarantor agrees that the Lender
may, at any time and from time to time, and without notice to the Guarantor,
make any agreement with the Borrower or with any other person or entity liable
on any of the Guaranteed Obligations or providing collateral as security for
the Guaranteed Obligations, for the extension, renewal, payment, compromise,
discharge or release of the Guaranteed Obligations or any collateral (in whole
or in part), or for any modification or amendment of the terms thereof or of
any instrument or agreement evidencing the Guaranteed Obligations or the
provision of collateral, all without in any way impairing, releasing,
discharging or otherwise affecting the obligations of the Guarantor under this
Guaranty. The Guarantor waives any defense arising by reason of any disability
or other defense of the Borrower or any other guarantor, or the cessation from
any cause whatsoever of the liability of the Borrower, or any claim that the
Guarantor's obligations exceed or are more burdensome than those of the
Borrower and waives the benefit of any statute of limitations affecting the
liability of the Guarantor hereunder. The Guarantor waives any right to enforce
any remedy which the Lender now has or may hereafter have against the Borrower
and waives any benefit of and any right to participate in any security now or
hereafter held by the Lender. Further, the Guarantor consents to the taking of,
or failure to take, any action which might in any manner or to any extent vary
the risks of the Guarantor under this Guaranty or which, but for this
provision, might operate as a discharge of the Guarantor.
7. EXHAUSTION OF OTHER REMEDIES NOT REQUIRED. The obligations of the
Guarantor hereunder are those of primary obligor, and not merely as surety, and
are independent of the Guaranteed Obligations. The Guarantor waives diligence
by the Lender and action on delinquency in respect of the Guaranteed
Obligations or any part thereof, including, without limitation any provisions
of law requiring the Lender to exhaust any right or remedy or to take any
action against the Borrower, any other guarantor or any other person, entity or
property before enforcing this Guaranty against the Guarantor.
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8. REINSTATEMENT. Notwithstanding anything this Guaranty to the
contrary, this Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any portion of the Guaranteed
Obligations is revoked, terminated, rescinded or reduced or must otherwise be
restored or returned upon the insolvency, bankruptcy or reorganization of the
Borrower or any other person or entity or otherwise, as if such payment had not
been made and whether or not the Lender is in possession of or has released
this Guaranty and regardless of any prior revocation, rescission, termination
or reduction.
9. INFORMATION. The Guarantor agrees to furnish promptly to the Lender
any and all financial or other information regarding the Guarantor or its
property as the Lender may reasonably request in writing.
10. STAY OF ACCELERATION. In the event that acceleration of the time for
payment of any of the Guaranteed Obligations is stayed, upon the insolvency,
bankruptcy or reorganization of the Borrower or any other person or entity, or
otherwise, all such amounts shall nonetheless be payable by the Guarantor
immediately upon demand by the Lender.
11. EXPENSES. The Guarantor shall pay on demand all out-of-pocket
expenses (including reasonable attorneys' fees and expenses and the allocated
cost and disbursements of internal legal counsel) in any way relating to the
enforcement or protection of the Lender's rights under this Guaranty, including
any incurred in the preservation, protection or enforcement of any rights of the
Lender in any case commenced by or against the Guarantor under the Bankruptcy
Code (Title 11, United States Code) or any similar or successor statute. The
obligations of the Guarantor under the preceding sentence shall survive
termination of this Guaranty.
12. AMENDMENTS. No provision of this Guaranty may be waived, amended,
supplemented or modified, except by a written instrument executed by the Lender
and the Guarantor.
13. NO WAIVER; ENFORCEABILITY. No failure by the Lender to exercise, and
no delay in exercising, any right, remedy or power hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy or
power hereunder preclude any other or further exercise thereof or the exercise
of any right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law or in equity. The unenforceability or invalidity of
any provision of this Guaranty shall not affect the enforceability or validity
of any other provision herein.
14. ASSIGNMENT; GOVERNING LAWS; JURISDICTION. This Guaranty shall (a)
bind the Guarantor and its successors and assigns, provided that the Guarantor
may not assign its rights or obligations under this Guaranty without the prior
written consent of the Lender (and any attempted assignment without such
consent shall be void), (b) inure to the benefit of the Lender and its
successors and assigns and the Lender may, without notice to the Guarantor and
without affecting the Guarantor's obligations hereunder, assign or sell
participations in the Guaranteed Obligations and this Guaranty, in whole or in
part, and (c) be governed by the internal laws of the State of Nebraska. The
Guarantor hereby irrevocably (i) submits to the non-exclusive jurisdiction of
any United States Federal or State court sitting in Dallas, Texas in any action
or proceeding arising our of or relating to this Guaranty, and (ii) waives to
the fullest extent permitted by law any defense asserting an inconvenient forum
in connection therewith. Service of process by the Lender in connection with
such action or proceeding shall be binding on the Guarantor if sent to the
Guarantor by registered or certified mail at its address specified below. The
Guarantor agrees that the Lender may disclose to any prospective purchaser and
any purchaser of all or part of the Guaranteed Obligations any and all
information in the Lender's possession concerning the Guarantor, this Guaranty
and any security for this Guaranty.
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15. CONDITION OF THE BORROWER. The Guarantor acknowledges and agrees that
it has the sole responsibility for, and has adequate means of, obtaining from
the Borrower such information concerning the financial condition, business and
operations of the Borrower as the Guarantor requires, and that the Lender has no
duty, and the Guarantor is not relying on the Lender at any time, to disclose to
the Guarantor any information relating to the business, operations or financial
condition of the Borrower.
16. SETOFF. If and to the extent any payment is not made when due
hereunder, the Lender may setoff and charge from time to time any amount so due
against any or all of the Guarantor's accounts or deposits with the Lender.
17. OTHER GUARANTEES. Unless otherwise agreed by the Lender and the
Guarantor in writing, this Guaranty is not intended to supersede or otherwise
affect any other guaranty now or hereafter given by the Guarantor for the
benefit of the Lender or any term or provision thereof.
18. REPRESENTATIONS AND WARRANTIES. The Guarantor represents and warrants
that (i) it is duly organized and in good standing under the laws of the
jurisdiction of its organization and has full capacity and right to make and
perform this Guaranty, and all necessary authority has been obtained; (ii) this
Guaranty constitutes its legal, valid and binding obligation enforceable in
accordance with its terms; (iii) the making and performance of this Guaranty
does not and will not violate the provisions of any applicable law, regulation
or order, and does not and will not result in the breach of, or constitute a
default or require any consent under, any material agreement, instrument, or
document to which it is a party or by which it or any of its property may be
bound or affected; (iv) all consents, approvals, licenses and authorizations of,
and filings and registrations with, any governmental authority required under
applicable law and regulations for the making and performance of this Guaranty
have been obtained or made and are in full force and effect; (v) by virtue of
its relationship with the Borrower, the execution, delivery and performance of
this Guaranty is for the direct benefit of the Guarantor and it has received
adequate consideration for this Guaranty; (vi) the financial information, that
has been delivered to the Lender by or on behalf of the Guarantor, is complete
and correct in all respects and accurately presents the financial condition and
the operational results of the Guarantor and since the date of the most recent
financial statements delivered to the Lender, there has been no material adverse
change in the financial condition or operational results of the Guarantor; and
(vii) representatives of the Guarantor met with an official of the U.S.
Department of Education ("DOE") on or about January 3, 2003 during which
meeting, a discussion was held with respect to transferring student loans
guaranteed pursuant to the Higher Education Act of 1965, as amended, from
pre-1993 tax exempt financings into taxable financings, and retaining
entitlement to the 9.5% floor on special allowance payments following such
transfer, all as described in Dear Colleague Letter 96-L-186/96-G-287 Q&A No.
30, in which the DOE acknowledged that it had not changed its position on this
issue following issuance of such Dear Colleague Letter.
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19. WAIVER OF JURY TRIAL; FINAL AGREEMENT. TO THE EXTENT ALLOWED BY
APPLICABLE LAW, THE GUARANTOR AND THE LENDER EACH WAIVE TRIAL BY JURY WITH
RESPECT TO ANY ACTION, CLAIM, SUIT OR PROCEEDING ON OR ARISING OUT OF THIS
GUARANTY. THIS GUARANTY REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.
Executed this 23rd day of May, 2003.
NELNET LOAN SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: CFO/Treasurer
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Address: 000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
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