Exhibit 10.88
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "AGREEMENT") dated as of
September 25, 2003, is by and among NATIONAL EDUCATION LOAN NETWORK, INC.
"DEBTOR" and M&I XXXXXXXX & XXXXXX BANK, as agent for itself and the other
Secured Parties, as that term is defined in the Credit Agreement described below
(the "AGENT").
R E C I T A L S:
The Debtor and NELNET, INC., as borrowers (collectively,
"BORROWERS"), are entering into that certain Credit Agreement dated of even date
herewith with M&I XXXXXXXX & ILSLEY BANK, SUNTRUST BANK, FIRST NATIONAL BANK OF
OMAHA and FIFTH THIRD BANK, INDIANA (the "BANKS") (such agreement, as it may be
amended or otherwise modified from time to time, herein the "CREDIT AGREEMENT").
The execution and delivery of this Agreement is a condition to the Bank's
entering into the Credit Agreement and making the extensions of credit
thereunder.
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the adequacy, receipt and sufficiency of which
are hereby acknowledged, and in order to induce the Banks to make the Loans
under the Credit Agreement and the other Secured Parties to extend credit to
Borrowers, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, the
following terms have the following meanings:
"COLLATERAL" has the meaning specified in SECTION 2.1
of this Agreement.
"GENERAL INTANGIBLES" means any "GENERAL
INTANGIBLES," as such term is defined in Article or Chapter 9 of the
UCC, now owned or hereafter acquired by the Debtor and, in any event,
shall include, without limitation, each of the following, whether now
owned or hereafter acquired by the Debtor: (a) books, records, data,
plans, manuals, computer software, computer tapes, computer disks,
computer programs, source codes, object codes and rights of the Debtor
to retrieve data and other information from third parties; (b) contract
rights including, without limitation, all right, title and interest in
and to the Servicing Contracts and any documentation pursuant to which
any of the other Collateral was acquired which include, without
limitation, the following: (i) all rights of the Debtor to receive
moneys due and to become due under or pursuant to such agreements, (ii)
all rights of the Debtor to receive proceeds of any insurance,
indemnity, warranty, or guaranty with respect to such agreements, (iii)
all claims of the Debtor for damages arising out of or for breach of or
default under such agreements, (iv) all rights of the Debtor to
terminate such agreements, to perform thereunder and to compel
performance and otherwise exercise all rights and remedies thereunder,
and (v) any rights to Liens arising under or as a result of any such
agreement; (c) all rights of the Debtor to
payment under letters of credit and similar agreements, including
without limitation, all letter of credit rights and other supporting
obligations; (d) choses in action and causes of action of the Debtor
(whether arising in contract, tort or otherwise and whether or not
currently in litigation) and all judgments in favor of the Debtor,
including without limitation, all commercial tort claims; (e) rights
and claims of the Debtor under warranties and indemnities; (f) rights
of the Debtor under any insurance, surety or similar contract or
arrangement; and (g) all payment intangibles.
"OBLIGATIONS" means all "OBLIGATIONS" (as such term
is defined in the Credit Agreement); provided that the obligations
secured hereby shall be limited to an aggregate amount equal to the
largest amount that would not render the Debtor's obligations hereunder
subject to avoidance under Section 544 or 548 of the United States
Bankruptcy Code or under any applicable state law relating to
fraudulent transfers or conveyances.
"PROCEEDS" means any "PROCEEDS," as such term is
defined in Article or Chapter 9 of the UCC and, in any event, shall
include, but not be limited to: (a) any and all proceeds of any
insurance, indemnity, warranty or guaranty payable to the Debtor from
time to time with respect to any of the Collateral; (b) any and all
payments (in any form whatsoever) made or due and payable to the Debtor
from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the
Collateral by any Governmental Authority (or any Person acting, or
purporting to act, for or on behalf of any Governmental Authority); (c)
all instruments, documents, chattel paper and general intangibles
received or arising in connection with a disposition of Collateral; (d)
all dividends or other distributions relating to any of the Collateral;
and (e) any and all other amounts or property from time to time paid,
payable, distributed or distributable under, in connection with or in
exchange for any of the Collateral and all other payment intangibles
relating thereto.
"SERVICING CONTRACT" means an arrangement, whether or
not in writing, pursuant to which the Debtor has the right to service
Student Loans for other Persons.
"UCC" means the Uniform Commercial Code as in effect
in the State of Wisconsin from time to time. For purposes of all
provisions of this agreement, if, by applicable law, the perfection or
effect of perfection or non-perfection of the security interest created
hereunder in any Collateral is governed by the Uniform Commercial Code
as in effect on or after the date hereof in any other jurisdiction,
"UCC' means the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provisions hereof relating to such
perfection or the effect of perfection or non-perfection.
Section 1.2 Other Definitional Provisions. Terms used herein
that are defined in the Credit Agreement and are not otherwise defined herein
shall have the meanings therefor specified in the Credit Agreement. References
to "SECTIONS," "SUBSECTIONS," "EXHIBITS" and "SCHEDULES" shall be to Sections,
subsections, Exhibits and Schedules, respectively, of this Agreement unless
otherwise specifically provided. All definitions contained in this Agreement are
equally applicable to the singular and plural forms of the terms defined. All
references to statutes and regulations shall include any amendments of the same
and any successor statutes and
regulations. References to particular sections of the UCC should be read to
refer also to parallel sections of the Uniform Commercial Code as enacted in
each state or other jurisdiction where any portion of the Collateral is or may
be located. Terms used herein, which are defined in the UCC, unless otherwise
defined herein or in the Credit Agreement, shall have the meanings determined in
accordance with the UCC.
ARTICLE II
SECURITY INTEREST
Section 2.1 Security Interest. As collateral security for the
prompt payment and performance in full when due of the Obligations (whether at
stated maturity, by acceleration or otherwise), the Debtor hereby pledges and
assigns to the Agent, and grants to the Agent a continuing lien on and security
interest in, all of the Debtor's right, title and interest in and to the
following, whether now owned or hereafter arising or acquired and wherever
located (collectively, the "COLLATERAL"):
(a) all rights of the Debtor under all Servicing
Contracts now owned or hereafter acquired by the Debtor;
(b) all rights of the Debtor to receive payments
under or by virtue of the Servicing Contracts described in clause (b)
preceding, whether as servicing fees, servicing income, damages,
amounts payable upon the cancellation of termination of any such
Servicing Contract, or otherwise;
(c) all General Intangibles of the Debtor
relating to or arising out of the Collateral described in clauses (a)
and (b) preceding;
(d) all rights of the Debtor under any Hedging
Agreement now or hereafter entered into by the Debtor to protect the
Debtor against changes in the value of any of the Collateral described
in clauses (a), (b) and (c) preceding; and
(e) all products and Proceeds, in cash or
otherwise, of any of the Collateral described in clauses (a), (b), (c)
and (d) preceding.
Section 2.2 Debtor Remains Liable. Notwithstanding anything to
the contrary contained herein, (a) the Debtor shall remain liable under the
documentation included in the Collateral to the extent set forth therein to
perform all of its duties and obligations thereunder to the same extent as if
this Agreement had not been executed, (b) the exercise by the Agent of any of
its rights or remedies hereunder shall not release the Debtor from any of its
duties or obligations under such documentation, (c) the Agent shall not have any
obligation under any of such documentation included in the Collateral by reason
of this Agreement, and (d) the Agent shall not be obligated to perform any of
the obligations of the Debtor thereunder or to take any action to collect or
enforce any claim for payment assigned hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce the Bank to enter into the Credit Agreement and the
other Secured Parties to extend credit to the Borrowers, the Debtor represents
and warrants to the Bank and the other Secured Parties that:
Section 3.1 Current Servicing Contracts. Attached hereto as
SCHEDULE 3.1 is a true and complete list of all of its Servicing Contracts in
effect on the date hereof. Each of the Servicing Contracts listed in SCHEDULE
3.1 contain provisions that are consistent with those set forth in the form of
Agreement attached hereto as SCHEDULE 3.1A, except that the life of loan
servicing provision found in SECTION 1.2 of SCHEDULE 3.1A appears only in the
Servicing Contracts so noted. The termination, indemnification, and liability
provision of each Servicing Contract listed in SCHEDULE 3.1 are substantially
similar to those provisions contained in SCHEDULE 3.1A.
Section 3.2 Office Locations; Fictitious Names; Tax I.D.
Number. Its principal place of business, chief executive office and jurisdiction
of organization are located at the place or places identified for it on SCHEDULE
3.2. Within the last four months it has not had any other chief place of
business, chief executive office, or jurisdiction of organization except as
disclosed on SCHEDULE 3.2. SCHEDULE 3.2 also sets forth all other places where
it keeps its books and records relating to the Collateral. It does not do
business and has not done business during the past five years under any
trade-name or fictitious business name except as disclosed on SCHEDULE 3.2. Its
United States Federal Income Tax I.D. Number and organizational number is
identified on SCHEDULE 3.2.
Section 3.3 Ownership of Collateral. It is the legal and
equitable owner of the Collateral owned by it, free and clear of all Liens,
except the Lien created hereby.
Section 3.4 Validity of Service Contracts. Each Servicing
Contract is in full force and effect, each Servicing Contract is legal, valid,
and enforceable in accordance with its terms, except as limited by bankruptcy,
insolvency and similar laws of general application affecting the rights of
creditors and general principles of equity, and, to the best of its knowledge,
no default or event of default exists under any Servicing Contract that could
have a Material Adverse Effect.
Section 3.5 Consents; Status. No consent or approval of any
Person, including any Governmental Authority, is required for it to execute,
deliver and perform this Agreement, or for the validity and enforceability of
the Lien and security interest in the Collateral created hereby, that in each
case has not been obtained and is not in full force and effect. It is approved
by, and qualified and in good standing with, all Governmental Authorities
necessary for it to service the Student Loans under the Servicing Contracts.
ARTICLE IV
COVENANTS
The Debtor covenants and agrees with the Agent that until the
Obligations are paid and performed in full and all commitments under the Credit
Agreement have expired or have been terminated:
Section 4.1 Payment Obligations. It shall, in accordance with
its customary business practices, endeavor to collect or cause to be collected
from each obligor on the Collateral, as and when due, any and all amounts owing
under the Collateral. Without the prior written consent of the Agent, it shall
not, except in the ordinary course of business, (a) grant any extension of time
for any payment with respect to any of the Collateral, (b) compromise, compound,
or settle any of the Collateral for less than the full amount thereof, (c)
release, in whole or in part, any Person liable for payment of any of the
Collateral, (d) allow any credit or discount for payment with respect to any of
the Collateral, or (e) release any Lien or guaranty securing any payment
obligation under the Collateral.
Section 4.2 Further Assurances. At any time and from time to
time, upon the request of the Agent, and at its sole expense, it shall, promptly
execute and deliver all such further agreements, documents and instruments and
take such further action as the Agent may reasonably deem necessary or
appropriate to preserve and perfect its security interest in the Collateral and
carry out the provisions and purposes of this Agreement or to enable the Agent
to exercise and enforce its rights and remedies hereunder with respect to any of
the Collateral. Without limiting the generality of the foregoing, it shall upon
reasonable request by the Agent: (a) authorize the Agent to file such financing
statements as the Agent may from time to time require; (b) take such action as
the Agent may request to permit the Agent to have control over any investment
property; (c) deliver to the Agent all Collateral the possession of which is
necessary to perfect its security interest therein, duly endorsed and/or
accompanied by duly executed instruments of transfer or assignment, all in form
and substance satisfactory to the Agent; and (d) execute and deliver to the
Agent such other agreements, documents and instruments as the Agent may
reasonably require to perfect and maintain the validity, effectiveness and
priority of the Liens intended to be created by the Loan Documents.
Section 4.3 Corporate Changes. It shall not change its name,
identity, jurisdiction of organization, or corporate structure in any manner
that might make any financing statement filed in connection with this Agreement
seriously misleading or its United States Federal Tax I.D. Number unless such
action is permitted or not restricted by the Credit Agreement and it shall have
given the Agent thirty (30) days prior written notice thereof and shall have
taken all action reasonably deemed necessary or desirable by the Agent to
protect its security interest in the Collateral with the perfection and priority
thereof required by the Loan Documents. It shall not change its principal place
of business, chief executive office or the place where it keeps its books and
records unless it shall have given the Agent thirty (30) days prior written
notice thereof and shall have taken all action deemed necessary or desirable by
the Agent to cause its security interest in the Collateral to be perfected with
the priority required by the Loan Documents.
Section 4.4 Performance of Servicing Contracts. It will, at
its expense: (a) perform and observe all of the material terms and provisions of
the Servicing Contracts to be performed or observed by it in accordance with
their terms and with applicable laws and regulations of Governmental
Authorities, maintain the Servicing Contracts in full force and effect, enforce
the Servicing Contracts in accordance with their respective terms, and take all
action to such end as may be from time to time reasonably requested by the Agent
and (b) from time to time (1) furnish to the Agent such information and requests
regarding the Servicing Contracts as the Agent may reasonably request and (2)
upon reasonable request of the Agent make to any other party to any Servicing
Contract such demands and requests for information and reports or for action as
it is entitled to make thereunder.
Section 4.5 Modification to Servicing Contracts. It will not
amend or otherwise modify the terms and conditions of any Servicing Contract if
such amendment or modification could have a Material Adverse Effect.
ARTICLE V
RIGHTS OF THE AGENT
Section 5.1 POWER OF ATTORNEY. THE DEBTOR HEREBY IRREVOCABLY
CONSTITUTES AND APPOINTS THE AGENT AND ANY OFFICER OR AGENT THEREOF, WITH FULL
POWER OF SUBSTITUTION, AS ITS TRUE AND LAWFUL ATTORNEY-IN-FACT WITH FULL
IRREVOCABLE POWER AND AUTHORITY IN THE NAME OF THE DEBTOR OR IN ITS OWN NAME, TO
TAKE, WHEN AN EVENT OF DEFAULT EXISTS, ANY AND ALL ACTIONS AND TO EXECUTE ANY
AND ALL DOCUMENTS AND INSTRUMENTS WHICH THE AGENT AT ANY TIME AND FROM TIME TO
TIME DEEMS NECESSARY OR DESIRABLE TO ACCOMPLISH THE PURPOSES OF THIS AGREEMENT
AND, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IT HEREBY GIVES THE AGENT
THE POWER AND RIGHT ON ITS BEHALF AND IN ITS OWN NAME TO DO ANY OF THE FOLLOWING
WHEN AN EVENT OF DEFAULT EXISTS, WITH NOTICE TO THE DEBTOR BUT WITHOUT THE
CONSENT OF THE DEBTOR:
(a) to demand, xxx for, collect or receive, in
the name of it or in its own name, any money or property at any time
payable or receivable on account of or in exchange for any of the
Collateral and, in connection therewith, endorse checks, notes, drafts,
acceptances, money orders, documents of title or any other instruments
for the payment of money under the Collateral or any policy of
insurance;
(b) to pay or discharge taxes, Liens or other
encumbrances levied or placed on or threatened against the Collateral;
(c) to notify post office authorities to change
the address for delivery of mail of the Debtor to an address designated
by the Agent and to receive, open, and dispose of mail addressed to the
Debtor;
(d) (A) to direct account debtors and any other
parties liable for any payment under any of the Collateral to make
payment of any and all monies due and to become due thereunder directly
to the Agent or as the Agent shall direct (the Debtor agrees that if
any Proceeds of any Collateral shall be received by it after such a
direction from the Agent, it shall promptly deliver such Proceeds to
the Agent with any necessary endorsements, and until such Proceeds are
delivered to the Agent, such Proceeds shall be held in trust by it for
the benefit of the Agent and shall not be commingled with any other of
its funds or property); (B) to receive payment of and receipt for any
and all monies, claims and other amounts due and to become due at any
time in respect of or arising out of any Collateral; (C) to sign and
endorse any assignments, proxies, stock powers, verifications and
notices in connection with accounts or payment obligations and other
documents relating to the Collateral; (D) to commence and prosecute any
suit, action or proceeding at law or in equity in any court of
competent jurisdiction to collect the Collateral or any part thereof
and to enforce any other right in respect of any Collateral; (E) to
defend any suit, action or proceeding brought against it with respect
to any Collateral; (F) to settle, compromise or adjust any suit, action
or proceeding described above and, in connection therewith, to give
such discharges or releases as the Agent may deem appropriate; (G) to
add or release any guarantor, endorser, surety or other party to any of
the Collateral; (H) to renew, extend or otherwise change the terms and
conditions of any of the Collateral; (I) to make, settle, compromise or
adjust any claims under or pertaining to any of the Collateral
(including claims under any policy of insurance); and (J) to sell,
transfer, pledge, convey, make any agreement with respect to or
otherwise deal with any of the Collateral as fully and completely as
though the Agent were the absolute owner thereof for all purposes, and
to do, at the Agent's option and the Debtor's expense, at any time, or
from time to time, all acts and things which the Agent deems necessary
to protect, preserve, maintain, or realize upon the Collateral and the
Agent's security interest therein.
THIS POWER OF ATTORNEY IS A POWER COUPLED WITH AN INTEREST AND
SHALL BE IRREVOCABLE UNTIL TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH
SECTION 7.11. The Agent shall be under no duty to exercise or withhold the
exercise of any of the rights, powers, privileges and options expressly or
implicitly granted to the Agent in this Agreement, and shall not be liable for
any failure to do so or any delay in doing so. Neither the Agent nor any Person
designated by the Agent shall be liable for any act or omission or for any error
of judgment or any mistake of fact or law, except any of the same resulting from
its or their gross negligence or willful misconduct. This power of attorney is
conferred on the Agent solely to protect, preserve, maintain and realize upon
its security interest in the Collateral. The Agent shall not be responsible for
any decline in the value of the Collateral and shall not be required to take any
steps to preserve rights against prior parties or to protect, preserve or
maintain any Lien given to secure the Collateral.
Section 5.2 Assignment by the Agent. The Agent may at anytime
assign or otherwise transfer all or any portion of their rights and obligations
under this Agreement and the other Loan Documents (including, without
limitation, the Obligations) to any other Person, to the extent permitted by,
and upon the conditions contained in, the Credit Agreement, and such Person
shall thereupon become vested with all the benefits thereof granted to the
Agent, herein or otherwise.
ARTICLE VI
DEFAULT, RIGHTS AND REMEDIES
If an Event of Default exists, the Agent shall have the
following rights and remedies:
(a) In addition to all other rights and remedies
granted to the Agent in this Agreement or in any other Loan Document or
by applicable law, the Agent shall have all of the rights and remedies
of a secured party under the UCC (whether or not the UCC applies to the
affected Collateral). Without limiting the generality of the foregoing,
the Agent may (A) without demand or notice to it, collect, receive or
take possession of the Collateral or any part thereof and for that
purpose the Agent may enter upon any premises on which the Collateral
is located and remove the Collateral therefrom or render it inoperable,
and/or (B) sell, lease or otherwise dispose of the Collateral, or any
part thereof, in one or more parcels at public or private sale or
sales, at the Agent's offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as the Agent may deem
commercially reasonable or otherwise as may be permitted by law. The
Agent shall have the right at any public sale or sales, and, to the
extent permitted by applicable law, at any private sale or sales, to
bid (which bid may be, in whole or in part, in the form of cancellation
of indebtedness) and become a purchaser of the Collateral or any part
thereof free of any right or equity of redemption on the part of the
Debtor, which right or equity of redemption is hereby expressly waived
and released by the Debtor. Upon the request of the Agent, the Debtor
shall assemble the Collateral and make it available to the Agent at
anyplace designated by the Agent that is reasonably convenient to it
and the Agent. The Debtor agrees that the Agent shall not be obligated
to give more than ten (10) days prior written notice of the time and
place of any public sale or of the time after which any private sale
may take place and that such notice shall constitute reasonable notice
of such matters. The Agent shall not be obligated to make any sale of
Collateral if it shall determine not to do so, regardless of the fact
that notice of sale of Collateral may have been given. The Agent may,
without notice or publication, adjourn any public or private sale or
cause the same to be adjourned from time to time by announcement at the
time and place fixed for sale, and such sale may, without further
notice, be made at the time and place to which the same was so
adjourned. The Debtor shall be liable for all reasonable expenses of
retaking, holding, preparing for sale or the like, and all reasonable
attorneys' fees, legal expenses and other costs and expenses incurred
by the Agent in connection with the collection of the Obligations and
the enforcement of the Agent's rights under this Agreement. The Debtor
shall remain liable for any deficiency if the Proceeds of any sale or
other disposition of the Collateral applied to the Obligations are
insufficient to pay the Obligations in full to the extent provided in
the Loan Documents. The Agent may apply the Collateral against the
Obligations as provided in the Credit Agreement. The Debtor waives all
rights of marshalling, valuation and appraisal in respect of the
Collateral. Any cash held by the Agent as Collateral and all cash
proceeds received by the Agent in respect of any sale of, collection
from or other realization upon all or any part of the Collateral may,
in the discretion of the Agent, be held by the Agent as collateral for,
and then or at any time thereafter applied in whole or in part by the
Agent against, the Obligations in the order
permitted by the Credit Agreement. Any surplus of such cash or cash
proceeds and interest accrued thereon, if any, held by the Agent and
remaining after payment in full of all the Obligations shall be
promptly paid over to the Debtor or to whomsoever may be lawfully
entitled to receive such surplus; provided that the Agent shall have no
obligation to invest or otherwise pay interest on any amounts held by
it in connection with or pursuant to this Agreement.
(b) The Agent may cause any or all of the
Collateral held by it to be transferred into the name of the Agent or
the name or names of the Agent's nominee or nominees.
(c) The Agent may exercise any and all of the
rights and remedies of the Debtor under or in respect of the
Collateral, including, without limitation, any and all rights of it to
demand or otherwise require payment of any amount under, or performance
of any provision of, any of the Collateral.
(d) The Agent may collect or receive all money
or property at any time payable or receivable on account of or in
exchange for any of the Collateral, but shall be under no obligation to
do so.
(e) On any sale of the Collateral, the Agent is
hereby authorized to comply with any limitation or restriction with
which compliance is necessary, in the view of the Agent's counsel, in
order to avoid any violation of applicable law or in order to obtain
any required approval of the purchaser or purchasers by any applicable
Governmental Authority.
ARTICLE VII
MISCELLANEOUS
Section 7.1 No Waiver; Cumulative Remedies. No failure on the
part of the Agent to exercise and no delay in exercising, and no course of
dealing with respect to, any right, power or privilege under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege under this Agreement preclude any other or further
exercise thereof or the exercise of any other right, power, or privilege. The
rights and remedies provided for in this Agreement are cumulative and not
exclusive of any rights and remedies provided by law.
Section 7.2 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Debtor and the Agent and respective
successors and assigns, except that Debtor may not assign any of its rights or
obligations under this Agreement without the prior written consent of the Agent.
Section 7.3 AMENDMENT; ENTIRE AGREEMENT. THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES
HERETO AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS
AND UNDERSTANDINGS,
WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE
CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT OPAL
AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES HERETO. The provisions of this Agreement may be
amended or waived only by an instrument in writing signed by the Debtor and the
Agent.
Section 7.4 Notices. All notices and other communications
provided for in this Agreement shall be given or made in accordance with the
Credit Agreement.
Section 7.5 Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Wisconsin and
applicable laws of the United States of America.
Section 7.6 Headings. The headings, captions, and
arrangements used in this Agreement are for convenience only and shall not
affect the interpretation of this Agreement.
Section 7.7 Survival of Representations and Warranties. All
representations and warranties made in this Agreement or in any certificate
delivered pursuant hereto shall survive the execution and delivery of this
Agreement, and no investigation by the Agent shall affect the representations
and warranties or the right of the Agent or the Bank to rely upon them.
Section 7.8 Counterparts. This Agreement may be executed in
any number of counterparts and on telecopy counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
agreement.
Section 7.9 Waiver of Bond. In the event the Agent seeks to
take possession of any or all of the Collateral by judicial process, the Debtor
hereby irrevocably waives any bonds and any surety or security relating thereto
that may be required by applicable law as an incident to such possession, and
waives any demand for possession prior to the commencement of any such suit or
action.
Section 7.10 Severability. Any provision of this Agreement
which is determined by a court of competent jurisdiction to be prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Agreement, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 7.11 Termination. If all of the Obligations shall have
been paid and performed in full, all commitments of the Bank shall have expired
or terminated, the Agent shall, upon the written request of the Debtor, execute
and deliver to the Debtor a proper instrument or instruments acknowledging the
release and termination of the security interests created by this Agreement, and
shall duly assign and deliver to the Debtor (without recourse and without any
representation or warranty) such of the Collateral as may be in the possession
of the Agent and has not previously been sold or otherwise applied pursuant to
this Agreement.
Section 7.12 Obligations Absolute. All rights and remedies of
the Agent hereunder, and all obligations of the Debtor hereunder, shall be
absolute and unconditional irrespective of: (a) any lack of validity or
enforceability of any of the Loan Documents; or (b) any change in the time,
manner, or place of payment of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of or any consent to any departure
from any of the Loan Documents; any exchange, release, or non-perfection of any
Collateral, or any release or amendment or waiver of or consent to any departure
from any guarantee, for all or any of the Obligations; or any other circumstance
that might otherwise constitute a defense available to, or a discharge of, a
third party pledgor.
Section 7.13 WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEBTOR HEREBY IRREVOCABLY AND EXPRESSLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER
BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE LOAN
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF THE AGENT OR
ANY SECURED PARTY IN THE NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first written above.
DEBTOR:
NATIONAL EDUCATION LOAN NETWORK, INC.
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Chief Financial Officer
AGENT:
M&I XXXXXXXX & XXXXXX BANK,
as Agent for the Secured Parties
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
[Signature Page to National Education Loan Network, Inc. Security Agreement]
SCHEDULE 3.1
TO
SECURITY AGREEMENT
CURRENT FFELP LOAN SERVICING CLIENTS
None.
SCHEDULE 3.1A
TO
SECURITY AGREEMENT
LOAN APPLICATION PROCESSING,
DISBURSEMENT AND SERVICING AGREEMENT
N/A
SCHEDULE 3.2
TO
SECURITY AGREEMENT
OFFICE LOCATIONS; FICTITIOUS NAMES; TAX I.D. NUMBER; ORGANIZATIONAL NUMBER
OFFICE LOCATIONS:
000 Xxxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000
NAMES:
Current Name: NATIONAL EDUCATION LOAN NETWORK, INC.
Prior Names: NELNET, INC.
Fictitious Names: None
TAX PAYER I.D. NO.:
00-0000000
