Exhibit 10.10
SECURITY AGREEMENT
THIS SECURITY AGREEMENT is entered into as of the 17th day of September,
2001, by and between GRAD PARTNERS, INC., an Ohio corporation (the "Borrower"),
FIFTH THIRD BANK, not in its individual capacity but solely as eligible lender
trustee on behalf of Grad Partners, Inc. (the "Borrower ELT") and FIFTH THIRD
BANK, an Ohio banking corporation (the "Lender").
Section 1. Definitions:
1.1 Specific Definitions. The following definitions shall apply:
(a) "Collateral" has the meaning set forth in Section 2.1 hereof.
(b) "Guarantee Payment" means any payment by a Guarantor with respect to
a Student Loan.
(c) "Guarantor" means any guarantee agency that guarantees the payment
of any Student Loan included in the Collateral.
(d) "Higher Education Act" has the meaning set forth in Section 2.4
hereof.
(e) "Lien" means any security interest, mortgage, pledge, assignment,
lien or other encumbrance of any kind, including interests of vendors or lessors
under conditional sale contracts or capital leases.
(f) "Loan and Security Agreement" means a Loan and Security Agreement
among Borrower, Borrower ELT and a LSA Debtor pursuant to which the LSA Debtor
has granted a security interest to Borrower in certain Student Loans originated
by or on behalf of such LSA Debtor with funds provided by Borrower.
(g) "LSA Debtor" means any graduate school or other student loan
originator who is a party to a Loan and Security Agreement.
(h) "Student Loan Debtor" means the obligor of a Student Loan.
1.2 Other Definitions. Capitalized terms not defined herein have the
meanings set forth in the Credit Agreement of even date herewith between
Borrower and Lender (the "Credit Agreement"). All other undefined terms shall
have the meaning given to them in the Ohio Uniform Commercial Code.
Section 2. Security.
2.1 Security Interest of Lender. To induce Lender to make the Loans, and
as security for all Obligations, Borrower (and Borrower ELT in its capacity as
title holder to
1
the Student Loans that are part of the Collateral) hereby assigns to Lender as
collateral and grants to Lender a continuing first priority pledge and security
interest in the following property of Borrower (the "Collateral"), whether now
owned or existing or hereafter acquired or arising and regardless of where it is
located:
(a) all of Borrower's and the Borrower ELT's right, title and interest
in each Student Loan owned by Borrower, including all instruments, chattel
paper, documents, securities, money, cash, promissory notes, loan applications
and cash proceeds and payments related thereto but excluding any such Student
Loan and the instruments, chattel paper, documents, securities, money, cash,
promissory note, loan application and proceeds relating thereto, that is sold
and transferred to Grad Partners Premier, LLC (and Fifth Third Bank as eligible
lender trustee on its behalf).
(b) all of Borrower's right, title and interest in each Loan and
Security Agreement listed on Exhibit A attached hereto as such exhibit may be
amended from time to time.
(c) all proceeds and products of Collateral and all additions and
accessions to, replacements of, insurance or condemnation proceeds of, and
documents covering Collateral.
2.2 Items Not Included in Collateral. The Lender hereby expressly
acknowledges that the Borrower shall sell Student Loans to Grad Partners Premier
LLC, a Delaware limited liability company and that the proceeds of such sales
shall be used to repay amounts owed by Borrower to Lender under the Credit
Agreement. Lender further expressly acknowledges that it does not have, and if
necessary will immediately release, any Lien on or security interest in, any
Student Loans, and the instruments, chattel paper, documents, securities, money,
cash, promissory notes, loan applications and proceeds relating thereto, that
are sold and transferred to Grad Partners Premier, LLC (and Fifth Third Bank, as
eligible lender trustee on its behalf) and for which the proceeds of such sales
have been delivered to Lender.
2.3 Representations in Schedule I. The representations and warranties in
Schedule I attached hereto entitled the Specific Representation Schedule are
true and correct in all material respects. Except as otherwise permitted
hereunder, Borrower shall not change its name, transfer executive offices or
maintain records with respect to Collateral at any location other than the
present locations specified in that schedule.
2.4 Provisions Concerning the Collateral. (a) Borrower represents and
warrants that each Student Loan and Loan and Security Agreement contained in the
Collateral reflected on each Collateral report submitted to Lender is, or at the
time it
arises shall be owned by Borrower free and clear of all Liens in favor of any
third party, shall be a bona fide existing obligation and shall not be subject
to any known deduction, offset, counterclaim, return privilege or other
condition, except as applicable under the Federal Family Education Loan Program
as authorized by the Higher Education Act of
2
1965 and all regulations promulgated thereunder, each as amended from time to
time (the "Higher Education Act") or on Collateral reports delivered to Lender.
(b) Any officer, employee or agent of Lender shall have the right, at
any time or times hereafter, in the name of Lender or its nominee (including
Borrower), to verify the validity, amount or any other matter relating to any
Student Loan or any Loan and Security Agreement by mail, telephone, or
otherwise. Lender or its designee may at any time notify LSA Debtors or any
Student Loan Debtor that a security interest has been granted in the Loan and
Security Agreements and the Student Loans to Lender and after default by
Borrower hereunder collect the same directly and charge all collection costs and
expenses to Borrower's account.
(c) If Borrower becomes aware that a LSA Debtor or a Student Loan Debtor
disputes liability or makes any claim with respect to a Loan and Security
Agreement in excess of $10,000 or that a receivership petition or petition under
any chapter of the federal bankruptcy act is filed by or against a LSA Debtor or
a Student Loan Debtor, or that a LSA Debtor or a Student Loan Debtor dissolves,
makes an assignment for the benefit of creditors, becomes insolvent, fails or
goes out of business, or that any other event occurs which adversely affects the
value of any Loan and Security Agreement owed by a LSA Debtor or any Student
Loan owed by a Student Loan Debtor, Borrower shall immediately notify Lender of
each such event where such event is material in nature. After default by
Borrower hereunder, Borrower shall not grant any discounts, credit or allowances
to any LSA Debtor, or to any Student Loan Debtor except as required by the
Higher Education Act. After default by Borrower, Lender may settle disputes and
claims directly with LSA Debtors and Student Loan Debtors, and in such cases,
Lender shall credit Borrower's account with the net amounts collected from such
disputed Loan and Security Agreements or Student Loans, after expenses of
collection.
(d) Effective upon any Event of Default, Borrower (and Borrower ELT on
behalf of Borrower) hereby grant a power of attorney and all necessary
authorization to Lender to maintain any and all collection procedures with
respect to the Collateral, including with respect to Student Loans contained in
the Collateral, filing, pursuing and recovering claims against Guarantors for
Guarantee Payments and taking steps to enforce such Student Loans such as
commencing a legal proceeding to enforce a Student Loan in the name of the
Borrower or the Borrower ELT.
2.5 Liens. Borrower as to the Loan and Security Agreement, and the
Borrower ELT as to the Student Loans, has good and marketable title to its
respective Collateral, and the Liens granted to Lender in this Agreement are
enforceable, and upon (a) receipt by Lender of an Acknowledgment and Acceptance
of Bailment Notice from Great Lakes Higher Education Servicing Corporation as
bailee on Lender's behalf, and (b) the filing of financing statements naming the
LSA Debtor, the Borrower and the Borrower ELT have been duly filed in the
appropriate offices, are fully perfected first priority Liens in the Collateral
with priority over the rights of every person other than Borrower in the
Collateral.
3
2.6 Further Assurances. (a) Borrower shall execute and deliver to Lender
at Lender's request all financing statements, continuation statements and other
documents that Lender may reasonably request, in form satisfactory to Lender, to
perfect and maintain perfected Lender's security interest in the Collateral and
to fully consummate all transactions contemplated under this Agreement. Borrower
hereby irrevocably makes, constitutes and appoints Lender (and any of Lender's
officers, employees or agents designated by Lender) as Borrower's true and
lawful attorney with power to sign the name of Borrower on any such documents.
(b) If any Collateral, including proceeds, consists of a letter of
credit, advice of credit, instrument, money, negotiable documents, chattel paper
or similar property (collectively, "Negotiable Collateral") Borrower shall,
immediately upon receipt thereof, deliver actual physical possession of the
Negotiable Collateral to Lender with such endorsements as may be necessary.
(c) Lender may inspect and verify Borrower's books and records at any
time or times hereafter, during usual business hours, in order to verify the
amount or condition of the Collateral, or any other matter relating to the
Collateral or Borrower's financial condition. Borrower shall promptly deliver to
Lender copies of all books and records requested by Lender.
2.7 Other Amounts Deemed Loans. If Borrower fails to pay any tax,
assessment, government charge or levy or to maintain insurance within the time
permitted by this Agreement or the Credit Agreement, or to discharge any Lien
prohibited hereby, or to comply with any other obligation, Lender may, but shall
not be required to, pay, satisfy, discharge or bond the same of the account of
Borrower, and to the extent permitted by law and all monies so paid out shall be
secured by the Collateral.
2.8 Borrower Remains Liable. Borrower shall remain liable under any
contracts and agreements included in the Collateral to perform all of its duties
and obligations thereunder to the same extent as if this Agreement had not been
executed, and Lender shall not have any obligation or liability under such
contracts and agreements by reason of this Agreement or otherwise.
Section 3 Events of Default and Remedies.
3.1 Events of Default. Any of the following events shall be an Event of
Default:
(a) any representation or warranty made herein by Borrower is incorrect
in any material respect when made; or
(b) Borrower fails to observe or perform any covenant, condition or
agreement herein and the failure or inability of Borrower to cure such default
for a period of 30 days after the occurrence thereof, provided that such 30 day
grace period shall not apply to (i) a breach of any covenant which in Lender's
good faith judgement is incapable
4
of cure, (ii) any failure to maintain insurance or permit inspection of the
Collateral or of the books and records of Borrower, or (iii) any breach of any
covenant which has already occurred; or
(c) an Event of Default occurs under the Credit Agreement, the Loan
Documents or any document or agreement evidencing or securing the Obligations.
3.2 Remedies. If any Event of Default shall occur and be continuing, in
addition to the remedies provided in the Credit Agreement:
(a) Lender may resort to the rights and remedies of a Lender under the
Ohio Uniform Commercial Code including the right to enter any premises of
Borrower, with or without legal process and take possession of the Collateral
and remove it and any records pertaining thereto and/or remain on such premises
and use it for the purpose of collecting, preparing and disposing of the
Collateral;
(b) Borrower shall upon request of Lender assemble the Collateral and
any records pertaining thereto and make them available at a place designated by
Lender; or
3.3 No Remedy Exclusive. No remedy set forth herein is exclusive of any
other available remedy or remedies, but each is cumulative and in addition to
every other remedy given under this Agreement or the Credit Agreement or now or
hereafter existing at law or in equity or by statute.
Section 4 Miscellaneous Provisions.
4.1 Miscellaneous. No delay or omission to exercise any right shall
impair any such right or be a waiver thereof, and a waiver on one occasion shall
be limited to that particular occasion. This Agreement may be amended only in
writing signed by the party against whom enforcement of the amendment is sought.
This Agreement may be executed in counterparts. If any part of this Agreement is
held invalid, the remainder of this Agreement shall not be affected thereby.
4.2 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the respective legal representatives, successors and assigns of
the parties hereto; however, Borrower may not assign any of its rights or
delegate any of its obligations hereunder. Lender (and any subsequent assignee)
may transfer and assign this Agreement or may assign partial interests or
participation in the Loans to other persons.
4.3 Financing Statement. Borrower hereby authorizes Lender to file a
copy of this Agreement as a Financing Statement under the Ohio Uniform
Commercial Code with appropriate county and state government authorities
necessary to perfect the Lender's security interest in the Collateral as set
forth herein.
5
4.4 Notices. Any notices under or pursuant to this agreement shall be
deemed duly sent when delivered in hand or when mailed by registered or
certified mail, return receipt requested, to the addresses then provided for in
the Notices section of the Credit Agreement.
4.6 Governing Law; Jurisdiction. This Agreement shall be governed by the
domestic laws of the State of Ohio. Borrower agrees that the state and federal
courts in ▇▇▇▇▇▇▇▇ County, Ohio or any other court in which Lender initiates
proceedings have exclusive jurisdiction over all matters arising out of this
Agreement, and that service of process in any such proceeding shall be effective
if mailed to Borrower at its address described in the Notices section of the
Credit Agreement. LENDER AND BORROWER HEREBY WAIVE THE RIGHT TO TRIAL BY JURY OF
ANY MATTERS ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
[Signature page follows]
6
IN WITNESS WHEREOF, Borrower, Borrower ELT and Lender have executed this
Security Agreement by their respective duly authorized officers as of the date
first above written.
BORROWER:
GRAD PARTNERS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Title: President
------------------------------
BORROWER ELT:
FIFTH THIRD BANK, as eligible lender
trustee on behalf of Grad Partners, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Title: Trust Officer
------------------------------
LENDER:
FIFTH THIRD BANK
By: /s/ ▇. ▇▇▇▇▇
------------------------------
Title: Senior Vice President
------------------------------
[Signature page to Security Agreement]
7
SCHEDULE I
SPECIFIC REPRESENTATIONS
1. The exact legal name of Borrower is: Grad Partners, Inc.
2. Borrower has not changed its name since it was incorporated.
3. Borrower uses in its business and owns the following trade names:
Student Assistance Group and Consolidation Assistance Group.
4. Borrower was incorporated on October 3, 2000, under the laws of the
State of Delaware, and is in good standing under those laws.
5. Borrower is qualified to transact business in Delaware, California and
Ohio.
6. Borrower has its chief executive office and principal place of
business at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Borrower maintains all its records with respect to the Collateral at that
address.
7. Borrower also has a place of business at Six ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
8. In the past five (5) years, Borrower has never maintained its chief
executive office or principal place of business or records with respect to the
Collateral at any location except that set forth in paragraph 6 above.
9. No entity (a) has been merged into Borrower, (b) has sold
substantially all of its assets to Borrower outside the ordinary course of its
business since Borrower was incorporated.
10. Borrower does not have any subsidiaries, or own stock in any other
corporations, or own an interest in any partnerships or joint ventures, except
Grad Partner Premier, LLC, a Delaware limited liability company.
11. Borrower is not a plaintiff or defendant in any litigation.
8
EXHIBIT A
TO
UCC-1 FINANCING STATEMENT
DEBTOR: SECURED PARTY:
Grad Partners, Inc. Fifth Third Bank
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
This UCC-1 Financing Statement covers the following property of Grad Partners,
Inc. whether now owned or existing or hereafter acquired or arising regardless
of where it is located (collectively referred to herein as the "Collateral"):
(a) all of Borrower's and the Borrower ELT's right, title and interest in
each Student Loan owned by Borrower, including all instruments, chattel paper,
documents, securities, money, cash, promissory notes, loan applications and cash
proceeds and payments related thereto but excluding any such Student Loan and
the instruments, chattel paper, documents, securities, money, cash, promissory
note, loan application and proceeds relating thereto, that is sold and
transferred to Grad Partners Premier, LLC (and Fifth Third Bank as eligible
lender trustee on its behalf).
(b) all of Borrower's right, title and interest in each Loan and Security
Agreement that may be entered into from time to time.
(c) all proceeds and products of the Collateral and all additions and
accessions to, replacements of, insurance or condemnation proceeds of, and
documents covering Collateral.
As used herein, the following terms shall have the meanings set forth
below:
"Borrower" means Grad Partners, Inc.
"Borrower ELT" means Fifth Third Bank not in its individual capacity but
solely as eligible lender trustee on behalf of Borrower.
"Loan and Security Agreement" means a Loan and Security Agreement among
Borrower, Borrower ELT and a LSA Debtor pursuant to which the LSA Debtor has
granted a security interest to Borrower in certain Student Loans originated by
or on behalf of such LSA Debtor with funds provided by Borrower.
"LSA Debtor" means any graduate school or other student loan originator who
is a party to a Loan and Security Agreement.
"Student Loan" - shall mean loans made to or for the benefit of eligible
students to cover the cost of attending eligible post secondary education
institutions that are originated pursuant to the Federal Family Education Loan
Program authorized under the Higher Education Act of 1965, as amended from time
to time, or, subject to the prior written consent of Fifth Third Bank,
authorized under a private consumer education loan program.
9
FIRST AMENDMENT TO SECURITY AGREEMENT
This First Amendment to Security Agreement is entered into the 7th day of
January, 2002 by and among Grad Partners, Inc., an Ohio corporation (the
"Borrower"), Fifth Third Bank, not in its individual capacity, but solely as
eligible lender trustee on behalf of Grad Partners, Inc. (the "Borrower ELT")
and Fifth Third Bank, an Ohio banking corporation (the "Lender").
WHEREAS, Borrower, the Borrower ELT and Lender are parties to a Security
Agreement dated September 17, 2001 (the "Security Agreement"); and
WHEREAS, Borrower, the Borrower ELT and Lender now desire to enter into
this Amendment to modify the Collateral covered by such Security Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, intending to be legally bound, the
parties hereto agree as follows:
1. Construction. All capitalized terms used herein, unless otherwise
defined herein, shall have the meaning given to such terms in the Security
Agreement. By the execution of this Amendment, the parties hereby ratify,
confirm and approve in all respects the Security Agreement and all its
provisions. Except as expressly amended hereby, the Security Agreement shall
continue in full force and effect in accordance with its terms.
2. Description of Collateral. Section 2.1 (b) is hereby deleted in its
entirety and replaced with the following language:
(b) all of Borrower's right, title and interest in each Loan and Security
Agreement listed on Exhibit A attached hereto, as such exhibit may be amended
from time to time, and all of the Borrower's and the Borrower Eligible Lender
Trustee's right, title and interest under such Loan and Security Agreement in
each Student Loan financed under such Loan and Security Agreement, including all
instruments, general intangibles, accounts, investment property, securities,
money, cash, promissory notes, loan applications and cash proceeds and payments
relating thereto, but excluding any such Student Loan and the instruments,
general intangibles, accounts, investment property, securities, money, cash,
promissory notes, loan applications and proceeds relating thereto, that is sold
and transferred to Grad Partners Premier, LLC (and Fifth Third Bank, as eligible
lender trustee on its behalf).
[Signature page follows]
IN WITNESS WHEREOF, the parties have executed this First Amendment to
Security Agreement effective as of the date set forth above.
BORROWER:
Grad Partners, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: President
------------------------------
BORROWER ELT:
Fifth Third Bank, as eligible trustee
on behalf of Grad Partners, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: Trust Officer
------------------------------
LENDER:
Fifth Third Bank
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: Senior Vice President
------------------------------
SECOND AMENDMENT TO SECURITY AGREEMENT
This Second Amendment to Security Agreement is entered into the 26/th/ day
of March, 2002 by and among Grad Partners, Inc., a Delaware corporation (the
"Borrower"), Fifth Third Bank, not in its individual capacity, but solely as
eligible lender trustee on behalf of Grad Partners, Inc. (the "Borrower ELT")
and Fifth Third Bank, an Ohio banking corporation (the "Lender").
WHEREAS, Borrower, the Borrower ELT and Lender are parties to a Security
Agreement, dated September 17, 2001 (the "Security Agreement"); and
WHEREAS, Borrower, the Borrower ELT and Lender are parties to that First
Amendment to Security Agreement, dated January 7, 2002 (the "First Amendment");
and
WHEREAS, Borrower, the Borrower ELT and Lender now desire to enter into
this Second Amendment to Security Agreement to correct a typographical error, to
amend the definition of "Credit Agreement" and to recognize the change of the
name of Grad Partners Premier, LLC to Education Funding Resources, LLC;
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, intending to be legally bound, the
parties hereto agree as follows:
1. Construction. All capitalized terms used herein, unless otherwise
defined herein, shall have the meaning given to such terms in the Security
Agreement, as amended by the First Amendment. By the execution of this
Amendment, the parties hereby ratify, confirm and approve in all respects the
Security Agreement, as amended by the First Amendment, and all its provisions.
Except as expressly amended hereby, the Security Agreement, as amended by the
First Amendment, shall continue in full force and effect in accordance with its
terms.
2. Error Correction. The preambles to the Security Agreement and to the
First Amendment are hereby corrected to reflect that Grad Partners, Inc. is a
Delaware corporation.
3. Definition of Credit Agreement. The first sentence of Section 1.2 is
hereby deleted and replaced in its entirety with the following: "Capitalized
terms not defined herein have the meanings set forth in the Second Amended and
Restated Credit Agreement, dated March 26, 2002 between Borrower, Student Loan
Xpress, Inc., a Delaware corporation, and Lender (the "Credit Agreement")."
4. Name Change. The references in paragraphs 2.1(a), 2.1(b) and 2.2 to
"Grad Partners Premier, LLC" shall be changed to "Education Funding Resources,
LLC, formerly known as Grad Partners Premier, LLC".
IN WITNESS WHEREOF, the parties have executed this Second Amendment to
Security Agreement effective as of the date set forth above.
BORROWER:
Grad Partners, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Title: Senior VP/Finance
-----------------------------
BORROWER ELT:
Fifth Third Bank, as trustee
on behalf of Grad Partners, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Title: Trust Officer
-----------------------------
LENDER:
Fifth Third Bank
By: /s/ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇. ▇▇▇▇▇
------------------------------
Title: Senior Vice President
-----------------------------
(Signature page to Second Amendment to Security Agreement for
Grad Partners, Inc.)
2