Exhibit 10.4
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FIRST AMENDMENT TO WAREHOUSE LOAN AND SECURITY AGREEMENT
among
NHELP-I, INC.,
as the Borrower
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as the Trustee
and
CONCORD MINUTEMEN CAPITAL COMPANY, LLC,
as the Lender
Dated as of December 15, 1998
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ARTICLE
AMENDMENTS TO ORIGINAL AGREEMENT
Section 1.01. Definitions...................................................... 1
Section 1.02. Amendment to Section 2.02 of Original Agreement.................. 2
Section 1.03. Amendment to Section 5.09(a) of the Original Agreement .......... 3
Section 1.04. Amendment to Exhibit B to Original Agreement..................... 3
Section 1.05. Amendment to Exhibit C to Original Agreement..................... 3
ARTICLE II
GENERAL PROVISIONS
Section 2.01. Date of Execution................................................ 3
Section 2.02. Laws Governing................................................... 3
Section 2.03. Severability..................................................... 4
Section 2.04. Exhibits......................................................... 4
ARTICLE III
APPLICABILITY OF ORIGINAL AGREEMENT
EXHIBIT A DRAW NOTICE
EXHIBIT B FORM OF VALUATION AGENT AGREEMENT
THIS FIRST AMENDMENT TO WAREHOUSE LOAN AND SECURITY AGREEMENT (the
"Amendment") is made as of December 15, 1998, among: NHELP-I, INC., a
corporation duly organized under the laws of the state of Nevada (the
"Borrower"); CONCORD MINUTEMEN CAPITAL COMPANY, LLC, a Delaware limited
liability company ("Concord"); and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
a national banking association, as eligible lender and trustee (the "Trustee").
PRELIMINARY STATEMENTS
1. The Borrower, Concord and the Trustee have previously entered
into that certain Warehouse Loan and Security Agreement dated as of September
30, 1998 (the "Original Agreement").
2. Pursuant to Section 9.01 of the Original Agreement, the
Borrower and the Trustee may amend the Original Agreement with the prior written
consent of the Agent, the Required Lenders and the Liquidity Providers, if any.
As of this date, Concord and the Agent are the Required Lenders, no Liquidity
Providers other than the Agent exist and the Agent has given its written consent
to the execution of this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS TO ORIGINAL AGREEMENT
ADDITIONS ARE INDICATED BY UNDERLINING AND DELETIONS ARE INDICATED BY
BRACKETS THROUGHOUT THIS AMENDMENT.
All words and phrases defined in Article I of the Original Agreement
shall have the same meaning in this Amendment, except as otherwise appears in
this Article.
SECTION 1.01. DEFINITIONS. The definitions set forth below are amended
to provide as follows:
"Advance Percentage Calculation Report" means the report
prepared by the Valuation Agent and delivered to the Required Lenders,
the Agent, the Trustee and the Borrower (a) not later than [four] five
Business Days prior to each Advance, other than a Rollover Advance,
setting forth the Maximum Advance Percentage for the Eligible Loans to
be financed with such Advance, and (b) on each Valuation Date, setting
forth the weighted average of the Maximum Advance Percentage and the
Eligible Loans financed since the last Advance Percentage Calculation
Report, the forms of which are attached as Exhibit A to the Valuation
Agreement. The Maximum Advance Percentage determined pursuant to any
Advance Percentage Calculation Report with respect to any Financed
Loans shall remain in effect with respect to such Financed Loans until
the Borrowing
Date immediately following the delivery of the next Valuation Report
delivered pursuant to Section 5.09.
"Custodian" means, individually or collectively, UNIPAC
Service Corporation, Great Lakes Higher Education Servicing
Corporation, InTuition. Inc., United Student Aid Funds, Inc. and each
additional Servicer or bailee with which the Borrower has entered into
a Custodian Agreement.
"Custodian Agreement" means, individually or collectively, (a)
the Custodian Agreement dated September 30, 1998 among the Borrower,
the Trustee and UNIPAC Service Corporation, (b) the Custodian Agreement
dated September 30, 1998 among the Borrower, the Trustee and Great
Lakes Higher Education Servicing Corporation, (c) the Custodian
Agreement dated December 22, 1998 among the Borrower, the Trustee and
InTuition, Inc., (d) the Custodian Agreement dated December 22, 1998.
among the Borrower, the Trustee and United Student Aid Funds, Inc. and
(e) each additional or successor custodian agreement entered into among
the Borrower, the Trustee and a Custodian and approved by the Required
Lenders and the Agent.
"Interest Period" means a (a) period of one month, commencing
on the [first] second Business Day of each month and ending on (but
excluding) the [first] second Business Day of the immediately
succeeding calendar month or (b) such other period as may be agreed on
from time to time by the Borrower and the Required Lenders. At no time
may there be more than one Interest Period outstanding, unless
otherwise approved by the Required Lenders.
"Settlement Date" means the [first] second Business Day of
each month.
SECTION 1.02. AMENDMENT TO SECTION 2.02 OF ORIGINAL AGREEMENT. Section
2.02(a) and Section 2.02(b) of the Original Agreement are hereby amended as
follows:
(a) Any Advances made by the Lenders during the
Revolving Period, will be made on the [first] second Business
Day of a calendar month (unless otherwise agreed by the
Borrower and the Required Lenders) at the request of the
Borrower, subject to and in accordance with the terms and
conditions of Section 2.01 and this Section 2.02. After the
Revolving Period, the Lenders shall make Advances on the
[first] second Business Day of any calendar month (unless
otherwise agreed by the Borrower and the Required Lenders) at
the request of the Borrower, subject to and in accordance with
the terms and conditions of Section 2.01 and this Section
2.02, solely to the extent necessary to refund any maturing
Advances.
(b) Subject to satisfaction of the conditions
precedent set forth in this Agreement and, if the Advance to
be made is a Liquidity Advance, to satisfaction of the
conditions precedent in the Liquidity Agreement, the Borrower
may request an Advance hereunder by giving written notice to
the Lenders in the form of Exhibit C hereto not later than
12:00 noon, Chicago time, at least [three] four Business Days'
prior to the proposed date of such Borrowing. Each such notice
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shall specify (i) the aggregate amount of such Borrowing,
which shall be in an amount equal to or greater than
$1,000,000, (ii) the date of such Borrowing (which may only be
the [first] second Business Day of a calendar month unless
otherwise agreed by the Borrower and the Required Lenders),
(iii) if the Advance to be made is a Liquidity Advance, the
requested applicable Liquidity Interest Rate for such
Borrowing and (iv) the Requested Advance Percentage. On the
date of such Borrowing, each Lender shall, upon satisfaction
of the applicable conditions set forth in this Agreement, make
available to the Borrower in same day funds, their respective
Pro Rata Share of the amount of such Borrowing by payment to
the account which the Borrower has designated in writing.
Unless otherwise agreed by the Required Lenders, the duration
of all Interest Periods shall be one (1) calendar month.
SECTION 1.03. AMENDMENT TO SECTION 5.09(a) OF THE ORIGINAL AGREEMENT.
Section 5.09(a) of the Original Agreement is hereby amended as follows:
(a) The Borrower will cause the Valuation Agent
to deliver to the Agent (at the address provided in the
Liquidity Agreement) and to the Required Lenders and the
Trustee:
(i) not later than each Valuation Date,
a Valuation Report setting forth the Aggregate Market
Value, the Liabilities and the Asset Coverage Ratio;
and
(ii) not later than [four] five Business
Days prior to each Advance, other than a Rollover
Advance, an Advance Percentage Calculation Report.
SECTION 1.04. AMENDMENT TO EXHIBIT B TO ORIGINAL AGREEMENT. Exhibit B
to the Original Agreement is hereby amended as described in Exhibit A hereto.
SECTION 1.05. AMENDMENT TO EXHIBIT C TO ORIGINAL AGREEMENT. Exhibit C
to the Original Agreement is hereby amended as described in Exhibit B hereto.
ARTICLE II
GENERAL PROVISIONS
SECTION 2.01. DATE OF EXECUTION. Although this Amendment for
convenience and for the purpose of reference is dated as of December 15, 1998,
the actual dates of execution by the Borrower, by Concord and by the Trustee are
as indicated by their respective acknowledgments hereto annexed.
SECTION 2.02. LAWS GOVERNING. It is the intent of the parties hereto
that this Amendment shall in all respects be governed by the laws of the State
of Illinois.
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SECTION 2.03. SEVERABILITY. If any covenant, agreement, waiver, or part
thereof in this Amendment contained be forbidden by any pertinent law or under
any pertinent law be effective to render this Amendment invalid or unenforceable
or to impair the lien hereof, then each such covenant, agreement, waiver, or
part thereof shall itself be and is hereby declared to be wholly ineffective,
and this Amendment shall be construed as if the same were not included herein.
SECTION 2.04. EXHIBITS. The terms of the Exhibits attached to this
Amendment are incorporated herein in all particulars.
ARTICLE III
APPLICABILITY OF ORIGINAL AGREEMENT
The provisions of the Original Agreement are hereby ratified, approved
and confirmed, except as otherwise expressly modified by this Amendment. The
representations, warranties and covenants contained in the Original Agreement
(except as expressly modified herein) are hereby reaffirmed with the same force
and effect as if fully set forth herein and made again as of the date hereof.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE BORROWER:
NHELP-I, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President and Treasurer
Date 12/22/98
c/o National Higher Education Loan Program
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(▇▇▇)▇▇▇-▇▇▇▇
Fax:(▇▇▇)▇▇▇-▇▇▇▇
THE LENDER:
CONCORD MINUTEMEN CAPITAL COMPANY, LLC
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Manager
Date--------------------------------------------
c/o The Liberty Hampshire Company, LLC
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▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
(▇▇▇)▇▇▇-▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
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THE TRUSTEE:
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
Date
Norwest Bank Minnesota, National Association
▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Corporate Trust Services
(▇▇▇)▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ACKNOWLEDGED:
THE AGENT:
MELLON BANK, N.A.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Vice President
Date
Mellon Bank, N.A.
One Mellon Bank Center
Room 410
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax:(▇▇▇)▇▇▇-▇▇▇▇
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EXHIBIT A
DRAW NOTICE
NHELP-I, INC. 1998 WAREHOUSING FINANCING
WITH CONCORD MINUTEMEN CAPITAL COMPANY, LLC, AS THE LENDER
DRAW NOTICE
EXHIBIT C
Date: [4 Business Days prior to date Advance is to be made]
In accordance with Section 2.02 of the Warehouse Loan and Security Agreement
dated as of September 30, 1998 (the "Agreement"), by and among NHELP-I, Inc.
(the "Borrower"), Norwest Bank Minnesota, National Association (the "Trustee")
and Concord Minutemen Capital Company, LLC, the Borrower hereby requests an
Advance in the amount and as of the date provided below. This request is
accompanied by an Advance Percentage Calculation Report as required pursuant to
Section 3.02 of the Agreement.
Date of Borrowing ________________
ADDITIONAL BORROWINGS/ROLLOVER AMOUNTS:
Total Required Additional Borrowings/Rollover Amounts as required
pursuant to Exhibit D of the Agreement ________________
NEW BORROWINGS FOR THE FUNDING OF STUDENT LOANS:
Aggregate Amount of Student Loans to be Financed
Principal ________________
Maximum Advance Percentage, as provided in the
Advance Percentage Calculation Report
for the most recently ended quarter ________________%
Requested Advance Percentage, not to exceed the
the Maximum Advance Percentage provided above ________________%
Amount of borrowing required for principal funding
(Student Loan Principal multiplied by Requested Advance %) ________________
Amount of borrowing required for interest funding ________________
Total Amount of New Borrowing
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TOTAL BORROWINGS TO BE ADVANCED ================
(Sum of Additional Borrowings/Rollover Amounts and
Amount of New Borrowing, provided above)
If a Liquidity Advance, the requested Applicable
Liquidity Interest Rate (Not Applicable)%
TEST OF FACILITY AMOUNT:
Total available Facility Amount 500,000,000
Less the sum of:
Total outstanding Advances ________________
Total projected Yield due on all outstanding Advances ________________
Total outstanding Advances & Yield ________________
Remaining facility amount ================
Capitalized terms not otherwise defined herein shall have the meanings assigned
to them in the Agreement.
Please consider this proper authorization to transfer the Total Borrowings to be
Advanced in the Amount noted above to the Collection Account held by the Trustee
on [DATE OF BORROWING]. Pursuant to Article III of the Agreement, I hereby
certify that NHELP-I, Inc. has met the Conditions precedent to all borrowings as
required and as described in such section. I further certify that to the best of
my knowledge and belief, the amounts provided above are accurate and complete.
NHELP-I, Inc.
___________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
EXHIBIT B
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FORM OF VALUATION AGENT AGREEMENT
among
[VALUATION AGENT],
as the Valuation Agent
NHELP-I, INC.,
as the Borrower
and
CONCORD MINUTEMEN CAPITAL COMPANY, LLC,
as the Lender
Dated as of___________,_____
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THIS VALUATION AGENT AGREEMENT (the "Agreement") is made as of ________
_,_______by and among [VALUATION AGENT], a corporation duly organized under the
laws of the State of Delaware (the "Valuation Agent"); NHELP-1, INC., a
corporation duly organized under the laws of the State of Nevada (the
"Borrower"); and CONCORD MINUTEMEN CAPITAL COMPANY, LLC, a special purpose
finance company administered by the Liberty Hampshire Company, LLC ("Concord").
PRELIMINARY STATEMENTS
WHEREAS the Borrower, Concord and Norwest Bank Minnesota, National
Association (the "Trustee") have entered into a Warehouse Loan and Security
Agreement dated as of September 30, 1998 (the "Loan Agreement"), pursuant to
which Concord has agreed to make loans to the Borrower from time to time subject
to the conditions set forth therein for the purpose of financing the purchase of
certain types of education loans (the "Student Loans", and when financed under
the Loan Agreement, the "Financed Loans");
WHEREAS Concord has entered into a Liquidity Agreement dated as of
September 30, 1998 (the "Liquidity Agreement") pursuant to which Concord may
assign to the Liquidity Providers (as defined in the Loan Agreement) its right,
title and interest to the whole or part of the loans made by Concord;
WHEREAS the Loan Agreement and the Liquidity Agreement provide that, in
order to secure the prompt and complete payment of all amounts due and payable
thereunder, the Borrower will grant to the Trustee, for the benefit of Concord
and the Liquidity Providers, a security interest in the Financed Loans, all
revenues and recoveries of principal from the Financed Loans and any other
collections, funds and accrued earnings held thereon held in the various funds
and accounts, created under the Loan Agreement (collectively, the "Pledged
Collateral");
WHEREAS the maximum amount of funds the Lender and the Agent will make
available to the Borrower from time to time for the purpose of financing Student
Loans is in part based upon the characteristics of the Financed Loans and
certain other assumptions as described herein; and
WHEREAS the Valuation Agent has agreed to perform certain calculations
relating to the Pledged Collateral, in accordance with the assumptions and
procedures described herein and at the times and under the circumstances
specified in the Loan Agreement
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this Agreement and its
exhibits, the terms set forth above and in this Section 1.01 shall have the
meanings ascribed thereto (such meanings to be equally applicable to both the
singular and plural forms of the terms defined) unless a contrary definition is
given to such term in the Loan Agreement, in which case the definition in the
Loan Agreement shall be controlling.
"Advance Percentage Calculation Assumptions" means the following cash
flow and related assumptions to be used by the Valuation Agent in connection
with its preparation of each Advance Percentage Calculation Report:
(a) The 91-day Treasury ▇▇▇▇ rate shall equal Current
T-▇▇▇▇;
(b) LIBOR shall be a rate per annum equal to the sum of:
(i) Current T-▇▇▇▇, (ii) the Current ▇▇▇ Spread, and (iii) 0.20%;
(c) the Cost of Funds shall be a rate per annum equal to
the sum of (i) LIBOR, and (ii) 0.225%;
(d) the Discount Rate to be applied to the Net Revenues
shall be a rate per annum equal to the sum of (i) the Cost of Funds,
and (ii) 0.80%;
(e) interest earnings on short-term balances shall be a
rate per annum equal to: (i) LIBOR, less (ii) 0.10%;
(f) the cumulative default rate shall be 15%;
(g) default occurrences shall be spread out evenly over
each year of repayment in accordance with the following schedule: 70%
in the first year of repayment; 20% in the second year of repayment;
10% in the third year of repayment; and 0% thereafter;
(h) the principal balance of Student Loans that receive
an interest rate reduction pursuant to any Borrower Incentive Program
will equal the product of: (i) the aggregate principal balance (not
including any capitalized interest) of Student Loans eligible to
participate in any such program, and (ii) 20%;
(i) servicing fees for Student Loans will be based upon
the fees stated in the applicable Servicing Agreements covering the
Financed Loans that are then in effect. The presently effective
servicing fees for UNIPAC Service Corporation ("UNIPAC") and Great
Lakes Higher Education Servicing Corporation ("Great Lakes") are
attached hereto as Exhibit D;
(j) fees payable to the U.S. Department of Education on
Consolidation Loans made after October 1, 1993 will be charged at a
rate of 1.05% (or such other rate as may
2
be provided for under applicable law) per annum on the outstanding
principal balance of such loans, payable monthly; and
(k) the Portfolio Administration Fee shall be 0.45% per
annum, payable monthly in arrears based upon the unpaid principal
balance of Financed Loans at the end of the prior month.
Pursuant to the terms of the Loan Agreement, the assumptions in
paragraphs (a) through (k) above may be amended from tine to time with the
mutual consent of the Borrower, the Required Lenders and the Agent (with notice
to the Valuation Agent stating the specific nature of such changes and that any
and all consents and approvals necessary to effect such changes have been
obtained). All other assumptions regarding Financed Loans shall be as set forth
in the Portfolio Characteristics.
"Advance Percentage Calculation Report" has the meaning set forth in
the Loan Agreement, and is to be provided by the Valuation Agent to the
Borrower, Concord, the Agent and the Trustee prior to each new financing of
Student Loans, in the form attached hereto as Exhibit A.
"Borrower Incentive Program" means any interest rate reduction program
applicable to any Financed Loans or Student Loans to be financed.
"Cash Flow Projections" mean the estimates prepared by the Valuation
Agent for the period commencing on the most recent date for which the Valuation
Agent has received the Portfolio Characteristics illustrating: (a) the income to
be received from the Financed Loans (excluding borrower interest, federal
interest subsidy and federal special allowance payments accrued thereon and
unpaid as of the date of the Portfolio Characteristics) and Permitted
Investments, including borrower principal and interest payments, federal
interest subsidy payments, federal special allowance payments, guaranty
payments, sale proceeds and investment earnings (collectively, the "Revenues"),
(b) the costs incurred in the financing of such Financed Loans, including
acquisition fees, debt service, servicing fees, valuation fees, trustee fees,
administrative fees, consolidation loan rebate and any other charges relating to
the financing, servicing and administration of such loans (collectively, the
"Expenses"), and (c) the periodic and cumulative Revenues less the periodic and
cumulative Expenses (the "Net Revenues").
"Cost of Funds" means the interest rate per annum used by the
Valuation Agent in the Cash Flow Projections for computing debt interest
expense.
"Current LIBOR" means the most recent interest rate per annum
available to the Valuation Agent for one-month eurodollar deposits, as published
in The Wall Street Journal.
"Current T-▇▇▇▇" means the most recent bond equivalent yield per annum
available to the Valuation Agent for the auction of 13-week U.S. Treasury Bills,
as published in The Wall Street Journal.
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"Current ▇▇▇ Spread" means (a) Current LIBOR, less (b) Current T-▇▇▇▇.
"Discount Rate" means the rate of discount per annum stipulated in the
Advance Percentage Calculation Assumptions and the Valuation Report Assumptions,
as applicable, to be used by the Valuation Agent in connection with its
determination of the present value of Net Revenues.
"Loan Valuation Percentage" has the meaning set forth in the Loan
Agreement, and is to be determined by the Valuation Agent by: (a) dividing (i)
the present value of the Net Revenues (using the Portfolio Characteristics and
the Valuation Report Assumptions) by (ii) the outstanding principal balance of
Student Loans, and (b) adding 100% to the resulting percentage.
"Net Revenues" means the projected net income to be received from the
Student Loans after taking into account financing costs, loan defaults and
delinquencies, fees and other charges, all as set forth in the Advance
Percentage Calculation Assumptions and the Valuation Report Assumptions, as
applicable.
"Portfolio Characteristics" means the information contained in the
reports provided to the Valuation Agent by or at the direction of the Borrower,
in a form acceptable to the Valuation Agent (such form could also include a
computer tape provided by any Servicer), prior to: (a) each proposed financing
of new Student Loans, and (b) each Valuation Date. Such reports shall set forth
all of the particular characteristics of Student Loans to be financed or
Financed Loans, as the case may be, necessary in order that the Valuation Agent
shall be able to perform the calculations required hereunder or under the Loan
Agreement, including, but not limited to breakdowns by loan type, borrower
interest rate, borrower status, special allowance margin, disbursement date,
remaining term by status, applicable loan servicer, guarantee level and
eligibility for, level of participation in and terms of any Borrower Incentive
Program.
"Valuation Agent Fees" means the fees payable to the Valuation Agent,
pursuant to Section 3.01 hereof and Section 2.06(c)(ix) of the Loan Agreement,
in such amounts and on such dates equal to 0.025% times the average outstanding
principal balance of Advances during each Calculation Period.
"Valuation Report" means a report furnished by the Valuation Agent to
the Required Lenders, the Borrower and the Trustee pursuant to Section
5.09(a)(i) of the Loan Agreement, in the form attached hereto as Exhibit B.
"Valuation Report Assumptions" means the following cash flow and
related assumptions to be used by the Valuation Agent in connection with its
preparation of each Valuation Report required under the Loan Agreement:
(a) T-▇▇▇▇ shall equal Current T-▇▇▇▇;
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(b) LIBOR shall be a rate per annum equal to the sum of:
(i) Current T-▇▇▇▇, and (ii) the Current ▇▇▇ Spread;
(c) the Cost of Funds shall be a rate per annum equal to
the sum of (i) LIBOR, and (ii) 0.20%;
(d) the Discount Rate to be applied to the Net Revenues
shall be a rate per annum equal to the sum of (i) the Cost of Funds,
and (ii) 0.80%;
(e) interest earnings on short-term balances shall be a
rate per annum equal to: (i) LIBOR, less (ii) 0.10%;
(f) the cumulative default rate shall be 15%;
(g) default occurrences shall be spread out evenly over
each year of repayment in accordance with the following schedule: 70%
in the first year of repayment; 20% in the second year of repayment;
10% in the third year of repayment; and 0% thereafter;
(h) the principal balance of Student Loans that receive
an interest rate reduction pursuant to any Borrower Incentive Program
will equal the product of: (i) the aggregate principal balance of
Student Loans receiving any such reduced interest rate as shown in the
Portfolio Characteristics, and (ii) 105%;
(i) servicing fees for Student Loans will be based upon
the fees stated in the applicable Servicing Agreements covering the
Financed Loans that are then in effect. The presently effective
servicing fees for UNIPAC Service Corporation ("UNIPAC") and Great
Lakes Higher Education Servicing Corporation ("Great Lakes") are
attached hereto as Exhibit D;
(j) fees payable to the U.S. Department of Education on
Consolidation Loans made after October 1, 1993 will be charged at a
rate of 1.05% per annum (or such other rate as may be provided for
under applicable law) on the outstanding principal balance of such
loans, payable monthly; and
(k) the Portfolio Administration fee shall be 0.45% per
annum, payable monthly in arrears based upon the unpaid principal
balance of loans at the end of the prior month.
(1) Pursuant to the terms of the Loan Agreement, the
assumptions in paragraphs (a) through (k) above may be amended from
time to time with the mutual consent of the Borrower, the Required
Lenders and the Agent (with notice to the Valuation Agent stating the
specific nature of such changes and that any and all consents and
approvals necessary to effect such changes have been obtained). All
other assumptions regarding Financed Loans shall be as set forth in the
Portfolio Characteristics.
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SECTION 1.02. COMPUTATION OF TIME PERIODS. Unless otherwise stated in
this Agreement, in the computation of a period of time from a specified date to
a later specified date, the word "from" means "from and including" and the words
"to" and "until" each mean "to but excluding."
ARTICLE II
VALUATION AGENT; FEES; TERM OF AGREEMENT
SECTION 2.01. APPOINTMENT AND ACCEPTANCE. The Borrower and the Lender
hereby appoint [VALUATION AGENT] as Valuation Agent under this Agreement in
connection with the Loan Agreement and [VALUATION AGENT] hereby accepts such
appointment. For purposes of this Valuation Agent Agreement the principal office
of [VALUATION AGENT] shall be__________________________________________________,
unless otherwise indicated to the other parties hereto and the Agent in writing
by [VALUATION AGENT].
SECTION 2.02. PERFORMANCE BY OTHER PARTIES. The Valuation Agent shall
be obligated to perform hereunder only upon performance in all material respects
by the Borrower (a) to provide statistical information to the Valuation Agent at
the times and in the manner described in the Loan Agreement, and (b) of its
duties and responsibilities hereunder.
SECTION 2.03. RESIGNATION AND DISCHARGE.
(a) The Valuation Agent may at any time resign and be
discharged of the duties and obligations created by this Agreement by
giving at least sixty (60) days' written notice to the Borrower,
Concord, the Trustee and the Agent.
(b) The Valuation Agent may be removed upon at least
sixty (60) days' written notice to the Valuation Agent, at the
direction of the Borrower with the consent of the Required Lenders, by
an instrument signed by the Borrower and filed with the Valuation
Agent, Concord, the Trustee and the Agent. Upon the occurrence of an
Event of Default (as defined in the Loan Agreement), the Required
Lenders may remove the Valuation Agent at any time.
Notwithstanding the foregoing, no resignation or removal of the
Valuation Agent shall be effective until a successor shall have been appointed
by the Borrower with the consent of Concord and the Agent, which shall not be
unreasonably withheld, or by the Required Lenders after an Event of Default (as
defined in the Loan Agreement), provided that such resignation by the Valuation
Agent shall be effective upon sixty days' written notice whether or not a
successor has been appointed if and when the Valuation Agent reasonably
determines that one of the following shall occur: (i) the Borrower is not
diligently pursuing the appointment of a successor Valuation Agent at the level
of compensation generally paid in the marketplace for the services to be
performed by the Valuation Agent, (ii) the Loan Agreement or the Liquidity
Agreement has been amended or modified in such a manner as would affect the
Valuation Agent in general or its ability to properly perform its duties
hereunder without the consent of
6
the Valuation Agent, or (iii) any condition to performance by the Valuation
Agent hereunder or under the Loan Agreement has not been satisfied.
SECTION 2.04. VALUATION AGENT FEES. In accordance with the priorities
set forth in Section 2.06 of the Loan Agreement, the Borrower agrees to cause
the Trustee to pay to the Valuation Agent, on each Settlement Date, the
Valuation Agent Fee. Such fees should be remitted to the Valuation Agent in
immediately available funds using the following instructions:
__________________
__________________
__________________
__________________
__________________
SECTION 2.05. TERM OF AGREEMENT. Unless otherwise terminated pursuant
to the provisions of Section 2.03 hereof, this Agreement shall terminate on
September 30, 2003, unless extended to such later date as mutually agreed to in
writing by the Borrower and the Valuation Agent, with the consent of the
Required Lenders and the Agent.
ARTICLE III
CALCULATIONS
SECTION 3.01. MAXIMUM ADVANCE PERCENTAGE CALCULATIONS.
(a) Pursuant to the terms and at the times required in
the Loan Agreement, the Valuation Agent shall compute the Maximum
Advance Percentage by undertaking certain analytical procedures with
respect to the Student Loans to be financed thereunder. The Maximum
Advance Percentage shall be determined by: (i) dividing (A) the present
value of the Net Revenues (using the Portfolio Characteristics and the
Advance Percentage Calculation Assumptions) by (B) the outstanding
principal balance of Student Loans, and (ii) adding 100% to the
resulting percentage.
(b) Not later than four Business Days prior to each
Advance that does not constitute a Rollover Advance, and in any case
not later than the Business Day preceding each January 31, April 30,
July 31 and October 31, the Valuation Agent shall:
(i) perform Cash Flow Projections based upon the
Portfolio Characteristics and the Advance Percentage
Calculation Assumptions (both as defined herein);
(ii) calculate the Maximum Advance Percentage (as
defined herein and in the Loan Agreement) using the results of
the Cash Flow Projections described in Section 3.01(b)(i)
above; and
7
(iii) submit a report to the Lender, the Agent,
the Borrower and the Trustee in the form of Exhibit A attached
hereto.
SECTION 3.02. LOAN VALUATION PERCENTAGE CALCULATIONS.
(a) Pursuant to the terms and at the times required in
the Loan Agreement, the Valuation Agent shall compute the Loan
Valuation Percentage by undertaking certain analytical procedures with
respect to the Financed Loans.
(b) Within 30 days after the Valuation Agent's receipt of
a written request for a Valuation Report from any of Concord, the Agent
or the Borrower, in the form of Exhibit C attached hereto, and in any
case not later than the fourth Business Day preceding each January 31,
April 30, July 31 and October 31, (each a "Valuation Date") the
Valuation Agent shall:
(i) perform Cash Flow Projections based upon the
Portfolio Characteristics and the Valuation Report Assumptions
(both as defined herein);
(ii) calculate the Loan Valuation Percentage
using the results of the Cash Flow Projections described in
Section 3.02(b)(i) above; and
(iii) submit a report to Concord, the Agent, the
Borrower and the Trustee in the form of Exhibit B attached
hereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Valuation Agent represents and warrants as follows:
(a) The Valuation Agent is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware and is duly qualified to do business, and is in good standing,
in every jurisdiction in which the nature of its business requires it
to be so qualified.
(b) The execution, delivery and performance by the
Valuation Agent of this Agreement is within the Valuation Agent's
organizational powers, has been duly authorized by all necessary
organizational action, does not contravene (i) the Valuation Agent's
Articles of Incorporation or bylaws, (ii) any law, rule or regulation
applicable to the Valuation Agent, (iii) any contractual restriction
binding on or affecting the Valuation Agent or its property or (iv) any
order, writ, judgment, award, injunction or decree binding on or
affecting the Valuation Agent or its property. This Agreement has been
duly executed and delivered by the Valuation Agent.
(c) No authorization or approval or other action by, and
no notice to or filing with, any Governmental Authority is required for
the due execution, delivery and performance by the Valuation Agent of
this Agreement.
8
(d) This Agreement constitutes the legal, valid and
binding obligations of the Valuation Agent enforceable against the
Valuation Agent in accordance with its terms, subject to (i) applicable
bankruptcy, insolvency, moratorium, or other similar laws affecting the
rights of creditors, and (ii) general principals of equity, whether
such enforceability is considered in a proceeding in equity or at law.
(e) There is no pending or, to the knowledge of the
Valuation Agent, threatened, action or proceeding affecting the
Valuation Agent before any court, governmental agency or arbitrator
that may materially adversely affect the financial condition of the
Valuation Agent or the ability of the Valuation Agent to perform its
obligations under this Agreement. The Valuation Agent is not in default
with respect to any order of any court, arbitrator or any other
Governmental Authority.
(f) Each document and report delivered by, or to be
delivered by, the Valuation Agent pursuant to the terms of Articles II
or III hereof shall be executed on behalf of the Valuation Agent by a
duly authorized officer of the Valuation Agent.
ARTICLE V
INDEMNIFICATION
(a) Without limiting any other rights which the Lender,
the Borrower or any of their respective Affiliates may have hereunder
or under applicable law, and notwithstanding any limitation on recourse
to the Valuation Agent set forth in this Agreement, the Valuation Agent
hereby agrees to indemnify Concord, the Borrower and each of their
respective officers, directors, employees, agents, attorneys-in-fact,
Affiliates and assigns (including without limitation the Liquidity
Providers) from and against any and all damages, losses, claims,
liabilities and related costs and expenses, including reasonable
attorneys' fees and disbursements (all of the foregoing being
collectively referred to as "Indemnified Amounts") awarded against or
incurred by any of them arising out of or as a result of this
Agreement, excluding, however, Indemnified Amounts to the extent
resulting from the gross negligence or willful misconduct of the Person
seeking indemnification. Without limiting the foregoing, the Valuation
Agent shall indemnify the Lender, the Borrower and each of their
respective officers, directors, employees, agents, attorneys-in-fact,
Affiliates and assigns (including without limitation the Liquidity
Providers) for Indemnified Amounts relating to or resulting from:
(i) any representation or warranty made or
deemed made by the Valuation Agent, under or in connection
with this Agreement, which shall have been false or incorrect
when made or deemed made or delivered;
(ii) the failure by the Valuation Agent to comply
with any term, provision or covenant contained in this
Agreement; and
(iii) any failure of the Valuation Agent to
perform its duties or obligations in accordance with the
provisions of this Agreement.
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(b) Without limiting any other rights which the Valuation
Agent or any of its respective Affiliates may have hereunder or under
applicable law, and notwithstanding any limitation on recourse to the
Borrower set forth in this Agreement, the Borrower hereby agrees to
indemnify the Valuation Agent and each of its officers, directors,
employees, agents, attorneys-in-fact and Affiliates from and against
any and all damages, losses, claims, liabilities and related costs and
expenses, including reasonable attorneys' fees and disbursements (all
of the foregoing being collectively referred to as "Indemnified
Amounts") awarded against or incurred by any of them arising out of or
as a result of this Agreement, excluding, however, Indemnified Amounts
to the extent resulting from the gross negligence or willful misconduct
of the Valuation Agent or its Affiliates. Without limiting the
foregoing, the Borrower shall indemnify the Valuation Agent and each of
its respective officers, directors, employees, agents,
attorneys-in-fact and Affiliates for Indemnified Amounts relating to or
resulting from:
(i) any representation or warranty made or
deemed made by the Borrower under or in connection with this
Agreement, which shall have been false or incorrect when made
or deemed made or delivered;
(ii) the failure by the Borrower to comply with
any term, provision or covenant contained in this Agreement;
and
(iii) any failure of the Borrower to perform its
duties or obligations in accordance with the provisions of
this Agreement.
Any amounts determined by a court of competent jurisdiction as a result of a
proceeding brought which is subject to the indemnification provisions of this
Article V shall be paid by the Valuation Agent to Concord, the Borrower or their
respective officers, directors, employees, agents, attorneys-in-fact, Affiliates
or the Liquidity Providers, or by the Borrower to the Valuation Agent or its
officers, directors, employees, agents, attorneys-in-fact or Affiliates, as the
case may be, for the benefit of the applicable payee, within two Business Days
following written demand therefor.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. CONFIDENTIALITY. Except as permitted by the Loan
Agreement, the Valuation Agent, Concord and the Borrower each agree to keep
confidential and not to disclose any non-public information, calculations,
exhibits or documents related to this Agreement or the Loan Agreement, without
the express written consent of the other parties thereto.
SECTION 6.02. AMENDMENT. This Valuation Agent Agreement may be amended
only by a written agreement signed by those parties hereto and with the prior
written consent of the Agent.
SECTION 6.03. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois.
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SECTION 6.04. NOTICES.
(a) Concord agrees to provide written notice to the
Valuation Agent within three Business Days of the following: (i) a new
Agent, (ii) a new Liquidity Fee, and (iii) the assignment by the
Secured Creditors of the Investment of Concord in the Advances to the
Borrower, such notice to include the amount of such assignment and the
Liquidity Interest Rate applicable to such assignment.
(b) All notices, requests or other communications to the
Valuation Agent, Borrower, Trustee, Lender and Agent, including the
notices required in paragraph (a) above, shall be in writing (unless
otherwise specified herein) and shall be deemed to have been validly
given or made when delivered (via telecopy or by hand) or mailed,
registered or certified mail, return receipt requested and postage
prepaid, addressed as follows:
If to the Valuation Agent,
addressed to: __________________________
__________________________
__________________________
Attn.:____________________
Telephone:________________
Facsimile:________________
If to the Borrower,
addressed to it at: NHELP-1,INC.
c/o National Higher Education Loan
Program
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Lender,
addressed to it at: Concord Minutemen Capital Company, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)▇▇▇-▇▇▇▇
11
If to the Agent,
addressed to it at: Mellon Bank, N.A.
One Mellon Bank Center, Room 410
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Telecopy: (▇▇▇)▇▇▇-▇▇▇▇
If to the Trustee,
addressed to it at: Norwest Bank Minnesota,
National Association
▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Corporate Trust
Services
Telephone: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Each entity listed above may change the address for service of notice
upon it by a notice in writing to the other entities named above. Each such
notice, request or communication shall be effective when delivered to the
address specified herein.
SECTION 6.05. THIRD PARTY BENEFICIARY. The Valuation Agent acknowledges
that the Borrower has granted a security interest in favor of the Trustee for
the benefit of the Secured Creditors (as defined in the Loan Agreement) all of
the Borrower's right, title and interest in, to and under this Agreement. The
Valuation Agent consents to the grant of such security interest and agrees (a)
that the representations, warranties, covenants and other agreements of the
Valuation Agent contained herein (including, but not limited to, the Valuation
Agent's indemnity obligations hereunder) shall run directly to the Trustee and
the Secured Creditors and (b) that the Trustee and the Secured Creditors shall
be entitled to rely on and enforce such representations, warranties, covenants
and other agreements (including, but not limited to, the Valuation Agent's
indemnity obligations hereunder) to the same extent as if they were a party
hereto. The foregoing creates a permissive right on behalf of the Trustee and
the Secured Creditors, and the Trustee and the Secured Creditors shall be under
no duties or obligations hereunder.
SECTION 6.06. ASSIGNMENT BY THE LENDER. The Valuation Agent and the
Borrower acknowledge and agree that to the extent of any assignment by Concord
of its right, title and interest in and to the Investment of Concord in the
Advances to the Borrower pursuant to the terms of the Liquidity Agreement, the
Agent shall succeed to the rights and obligations of Concord hereunder and
Concord shall be released from such obligations without any further act by the
Borrower or the Valuation Agent.
SECTION 6.07. SUBMISSION TO JURISDICTION; WAIVER OF JURY AND BOND. EACH
OF THE BORROWER, CONCORD AND THE VALUATION AGENT HEREBY SUBMIT TO THE
NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE
COUNTY OF ▇▇▇▇, STATE OF ILLINOIS, AND
12
IRREVOCABLY AGREE THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS AGREEMENT
SHALL BE LITIGATED IN SUCH COURTS, AND THE BORROWER, THE LENDER AND THE
VALUATION AGENT EACH WAIVE ANY OBJECTION WHICH IT MAY HAVE BASED ON IMPROPER
VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY PROCEEDING IN ANY PROCESS
UPON IT, AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE BY MAIL OR
MESSENGER DIRECTED TO IT AT THE ADDRESS SET FORTH HEREIN THAT SERVICE SHALL BE
DEEMED TO BE COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT OR FIVE DAYS AFTER THE
SAME SHALL HAVE BEEN POSTED TO SUCH ADDRESS.
EACH OF THE BORROWER, CONCORD AND THE VALUATION AGENT ACKNOWLEDGE THAT
THE TIME AND EXPENSE REQUIRED FOR TRIAL BY JURY EXCEED THE TIME AND EXPENSE
REQUIRED FOR A BENCH TRIAL AND HEREBY WAIVE, TO THE EXTENT PERMITTED BY LAW,
TRIAL BY JURY IN ANY CLAIM OR CAUSE OF ACTION (INCLUDING ANY COUNTERCLAIM)
ARISING DIRECTLY OR INDIRECTLY OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT, ANY OTHER DOCUMENT, INSTRUMENT OR AGREEMENT EXECUTED AND/OR DELIVERED
IN CONNECTION HEREWITH OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE, AND
WAIVE ANY BOND OR SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS
WAIVER, BE REQUIRED OF THE LENDER. NOTHING CONTAINED IN THIS SECTION 6.07 SHALL
AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW. EACH OF THE VALUATION AGENT, CONCORD AND THE BORROWER WAIVES
ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO ABOVE
ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER
THAN, OR IN ADDITION TO, ACTUAL DAMAGES.
SECTION 6.08. NO PETITION. Each of the Borrower and the Valuation Agent
hereby covenants and agrees that prior to the date which is one year and one day
after the payment in full of all outstanding commercial paper of Concord, it
will not institute against or join any other person or entity in instituting
against Concord, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other similar proceeding under the laws of the United
States or any state of the United States.
SECTION 6.09. LIMITED RECOURSE NATURE OF TRANSACTIONS. Each of the
Borrower and the Valuation Agent hereby acknowledges and agrees that all
transactions with Concord hereunder shall be without recourse of any kind to
Concord. Concord shall have no obligation to pay any amounts owing hereunder
unless and until Concord has received such amounts pursuant to the Financed
Loans. In addition, each of the Borrower and the Valuation Agent agrees that
Concord shall have no obligation to pay any amounts constituting fees, a
reimbursement for expenses or indemnities (collectively, "Expense Claims") and
such Expense Claims shall not constitute a claim against Concord (as defined in
Section 101 of Title
13
11 of the United States Bankruptcy Code), unless or until Concord has received
amounts sufficient to pay such Expense Claims pursuant to the Financed Loans and
such amounts are not required to pay the commercial paper of Concord.
SECTION 6.10. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which when so executed and delivered
shall constitute an original, but such counterparts together shall constitute
but one and the same instrument.
SECTION 6.11. SEVERABILITY. In the event any one or more of the
provisions of this Agreement shall for any reason be held to be illegal or
invalid, such illegality or invalidity shall not affect any other provisions of
this Agreement, and this Agreement shall be construed and enforced as if such
illegal or invalid provisions had not been contained herein.
SECTION 6.12. SECTION TITLES. The section titles contained in this
Agreement are for convenience of reference only and shall be without substantive
meaning or content of any kind whatsoever and are not a part of the Agreement
among the parties hereto.
SECTION 6.13. ENTIRE AGREEMENT. This Agreement, including all Exhibits
attached hereto or incorporated by reference therein constitutes the entire
Agreement among the undersigned with respect to the subject matter hereof and
supersedes all other negotiations, understandings and representations, both oral
and written, with respect to the subject matter hereof.
14
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE VALUATION AGENT:
[VALUATION AGENT]
By ________________________________
Name:
Title:
THE BORROWER:
NHELP-1,INC.
By ________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
CONCORD:
CONCORD MINUTEMEN CAPITAL
COMPANY, LLC
By ________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Managing Director
15
EXHIBIT A
FORM OF ADVANCE PERCENTAGE CALCULATION REPORT
In accordance with the Valuation Agreement among [VALUATION AGENT],
NHELP-1, INC. and Concord Minutemen Capital Company, LLC dated as of__________,
______, [VALUATION AGENT] has acted as Valuation Agent for purposes of preparing
this Advance Percentage Calculation Report. Based upon the Portfolio
Characteristics and the Advance Percentage Calculation Assumptions (both as
defined therein), we hereby submit the following summary of our calculations:
Date of Report:
Date of Proposed Advance:
Cut-off Date for Portfolio Characteristics:
A. Principal balance of loans $
B. Total Revenues $
C. Total Expenses $
D. Total Net Revenues (B - C) $
E. Present value of Net Revenues ("PV") $
F. PV AS A % OF LOAN PRINCIPAL BALANCE (E / A), PLUS 100%
("MAXIMUM ADVANCE PERCENTAGE") %
EXHIBIT B
FORM OF VALUATION REPORT
In accordance with the Valuation Agreement among [VALUATION AGENT],
NHELP-1, INC. and Concord Minutemen Capital Company, LLC dated as
of___________________________________________, ______, [VALUATION AGENT] acted
as Valuation Agent for purposes of preparing this Valuation Report. Based upon
the Portfolio Characteristics and the Valuation Report Assumptions (both as
defined therein), we hereby submit the following summary of our calculations:
Valuation Date:
Date of Report:
Cut-off Date for Portfolio Characteristics:
A. Principal balance of loans $
B. Total Revenues $
C. Total Expenses $
D. Total Net Revenues (B - C) $
E. Present value of Net Revenues ("PV") $
F. PV AS A % OF LOAN PRINCIPLE BALANCE (E / A), PLUS 100%
("LOAN VALUATION PERCENTAGE") %
EXHIBIT C
FORM OF REQUEST FOR VALUATION REPORT
[VALUATION AGENT]
__________________
__________________
__________________
Attn.:____________
[and, if requested by the Lender or the Agent:
NHELP-1, INC.
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ]
Ladies and Gentlemen:
Pursuant to the terms of the Valuation Agent Agreement among [VALUATION
AGENT], NHELP Trust Inc. (the "Borrower") and Concord Minutemen Capital Company,
LLC (the "Lender") dated as of_________________________,_______, and in
particular Section 2.02(b) thereof, we hereby request that you provide us with a
Valuation Report.
[Such notice is also being provided at this time to the Borrower, in
order that they can prepare the Portfolio Characteristics and other information
required by you to compute the Aggregate Market Value and Liabilities.]
or, if requested by the Borrower:
[The information required for you to prepare the Valuation Report,
including the Portfolio Characteristics and other information required to
compute the Aggregate Market Value and Liabilities is attached hereto.]
In accordance with the terms of the Valuation Agent Agreement, please
submit your report to us on or before [insert date], which is 30 days from the
date this notice has been provided to you.
Sincerely,
[Concord Minutemen Capital Company, LLC], or
[Agent], or
[NHELP-1, INC.]
EXHIBIT D
INITIAL LOAN SERVICING FEES
I. STUDENT LOANS SERVICED BY UNIPAC SERVICE CORPORATION
▇▇▇▇▇▇▇▇, SLS CONSOLIDATION
PER ACCOUNT SERVICING FEES & PLUS LOANS LOANS
Enrolled $1.50 per month N/A
Grace $3.20 per month N/A
Deferment $3.20 per month $3.75
Forbearance $3.20 per month $3.75
Repayment (Current) $3.20 per month $3.75
Repayment (More than 30 days past due) $5.45 per month $6.00
Default claim filing $20 per claim filed $20 per claim filed
II. STUDENT LOANS SERVICED BY GREAT LAKES HIGHER EDUCATION SERVICING
CORPORATION
PER ACCOUNT SERVICING FEES ▇▇▇▇▇▇▇▇, SLS & PLUS LOANS
Enrolled $ 1.45 per month
Grace $ 3.05 per month
Deferment $ 3.05 per month
Forbearance $ 3.05 per month
Repayment (Current; months 1 through 12) $ 3.23 per month
Repayment (Current; months 13+) $ 2.86 per month
Repayment (More than 30 days past due; months 1 through 12) $ 3.55 per month
Repayment (More than 30 days past due; months 13+) $ 3.18 per month
Default claim filing $15.90 per claim filed